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Some tasks in understanding law through the lens of public choice
International Review of Law and Economics (1992) 12, 284-288 GENERAL PANEL COMMENTARY
Some Tasks in Understanding Law through the Lens of Public Choice FRANK
H.
EASTERBROOK
U.S. Court of Appeals for the Seventh Circuit, 219 South Dearborn Street, Chicago,IL 60604, USA
The reigning school of statutory interpretation and an aspiring school of constitutional interpretation call on all who implement the law to find and follow the intent of the drafters. That is hard to do. Anyone author has a mix of objectives, motives, desires, and concerns that we fuse together and for which "intent" is a handy label. Legislators care about reelection, about reputation, about ability to do good for constituents or the nation as a whole or posterity. These tug in different directions for anyone with a role in forming or executing laws; the concept of "an" intent for a person is fictive and for an institution hilarious. A hunt for this snipe liberates the interpreter, who can attribute to the drafters whatever "intent" serves purposes derived by other means. 1 What are we to do? The normative aspect of this question is: What is entitled to the force of law in a representative democracy-ours, in particular? How ought persons exercising the power of the state behave in order to carry that concept into effect? Let us put that to one side2 in favor of the positive questions: How do persons exercising the power of the state behave? What are the consequences of these patterns? Public choice, which does almost nothing to answer the normative questions, can tell us a great deal about the positive ones. Rigorous study of the enterprise of making, molding, and implementing the law has attracted some of the most creative thinkers in the discipline, and this attention is beginning to yield nuggets. 3 Yet public choice has some way to go before it supplies substantial ability to un-
'See Frank H. Easterbrook. "The Role of Original Intent in Statutory Construction," II Harv. j.L. & Pub. Pol'y 59 (1988).
2For the moment. I have written about it elsewhere. E.g., "Statutes' Domains," 50 U. Chi. L. Rev. 553 (1983); "What Does Legislative History Tell Us?" 66 Chi.-Kent L. Rev. 30 (1990) (forthcoming); and the article cited in n.l. 3A series of symposia brings much of teday's wisdom together. This issue of the International Review of Law and Economics collects the papers of one conference. For others, see Bernard Grofman and Donald Wittman, eds.• The Federalist Papers and the New Institutionalism (1989); James D. Gwartney and Richard E. Wagner. eds.. Public Choice and Constitutional Economics (1988); "Conference on 'The Organization of Political Institutions,''' 6j.L. Econ. & Org. (1990); "Symposium on the Theory of Public Choice," 74 Va. L. Rev. 167-518 (1988).
Another symposium, in May 1991 at the University of lllinois, is soon to produce its own symposium issue of the Journal of Law, Economics, and Organization. See also Daniel A. Farber and Philip P. Frickey. Law and Public Choice: A Critical Introduction.( 1991). © 1992 Frank H. Easterbrook
F. H.
EASTERBROOK
285
derstand the legal system. Economics is the study of rational maximization in the face of scarcity. Assuming scarce goods-Qr equivalent constraints---enables economists to build models that are comparable to one another. One cannot put any model to the ultimate test (indeed, definition) of science-falsifiability-unless it is comprehensive enough to make predictions and comparable enough to other models to allow different persons working in the same field to converse. Economists have converged on a set of norms that facilitates this process. The papers at this conference show some respects in which public choice lags behind branches of economics such as industrial organization. Consider for example the class of models well represented by the Ferejohn-Weingast paper. 4 These models search for a set of "viable" legal interpretations, in which viability depends on the power of other political actors to impose their own will on the outcome. Models of this kind define games that are closely related to the theory of the core. There is a stable set of rules that can endure, in the sense that any move outside a given boundary will be quickly reversed. One can examine any series of moves and demonstrate how the outcome must be inside a prescribed zone. That being so, the entity with the (legal) authority to "move" at a particular time-that is, the court seized of jurisdiction to decide a case or an agency about to issue a regulation-chooses the position in policy space as close to its preferred position as possible without being outside the core. Because everyone understands everyone else's position and powers, all know how far is too far. Indeed, there may be only one move. The legislature (or subcommittee chairman), understanding what presidents, agencies, and judges can do later, proposes the rule that comes closest to its own views and is inside the core. One move, and the game is over. Presidents never veto laws, and if they do anyway (perhaps because they do not understand the game), the vetoes are overridden. Yet we see proposals amended on the floor, presidential vetoes that stick (few are overridden), unexpected regulations, judicial declarations that regulations are invalid, and hundreds of other subsequent "moves," great and small. Perhaps these demonstrate only that the zone of strategy-proof equilibria shifts every time there is an election or a new appointment to an agency or the bench. Perhaps, instead, the problem inheres in a model in which actors try to maximize something (the achievement of their own objectives) but in which there are no scarcities. What is the constraint? How does a need to conserve on some scarce good drive people to an equilibrium? Where is the invisible hand? Information is one candidate for scarcity. Time is another. Governance is impossible without copious expenditures of time-meeting with interest groups, negotiating with other legislators, and on and on. Our Constitution and many aspects of our governmental institutions that have since been established encourage the use rather than the conservation of time. As Saul Levmore observes,s bicameralism serves to prolong and complicate the process of reaching agreement. Much of our governmental structure is about time-right down to the fact that legislatures pass out of existence after two years. If one cannot get a law enacted within that time, one must start over, negotiating with new faces and satisfying new demands. Time sets a cap
'John A. Ferejohn and Barry R. Weingast, "A Positive Theory of Statutory Interpretation," herein, 263-279. 'Saul Levmore, "Bicameralism: When Are Two Decisions Better than One?" herein, 145-162.
286
General Panel Commentary
on what any political body can accomplish, a limit it can avoid only by delegating tasks, with the inevitable agency costs. Time also helps to ameliorate the intensity problem in democracies-those who care deeply about a subject will invest disproportionate time on it, obtaining benefits even if they are a numerical minority. When time is a scarce resource, agenda influence becomes less important, and the polity will assume positions that are outside the set that could be enforced in a world in which every member of Congress could attend to an unlimited number of subjects for as long as necessary. Public choice needs a theory of scarcity. What are the scarce goods? How are they allocated? More: Public choice needs a consistent theory of scarcity. Professor Levmore treats time as a scarce good and shows how the structure of government forces people to use time; other papers at this conference, by contrast, propose models in which government is designed to conserve on time. Consider, for example, the vision of judges as agents helping the parties to relational contracts (that is, regulatory statutes) achieve their objectives more quickly and cheaply.6 Does the addition of a set of independeL~ actors Gudges) really facilitate implementation of the political bargains of strangers? It would be odd, if so, to make the judges independent (agencies with short tenure should be more faithful, at least if the benchmark is the sitting Congress), and odd, too, to tack this institution onto a political structure dedicated to making agreements hard to reach. Tenure is a two-edged sword: it frees a judge from political concerns, making more likely the implementation of rules that have fallen from favor (and thus increasing the durability of political bargains),? but it also frees the judges from political bargains, giving judges independent influence on government. 8 Both effects may have been anticipated: the Federalist contains paeans to the judicial role in honest enforcement of rules and the judicial role in keeping the political branches alert to the public interest and taking the harsh edges off of political deals. Which effect predominates? If courts participate in making policy, they raise the costs of reaching and implementing political agreements. Pablo Spiller emphasizes the independence of judges and, correspondingly, their opportunity to inject a new set of objectives and move the governmental (no longer strictly "political") equilibrium. 9 Here we encounter still another question that public choice needs to tackle: What are judges maximizing? If, as models such as Spiller's imply, judges are maximizing their own conceptions of wise policy (with a generous dollop of judicial discretion as part of the definition of wisdom), why do they not simply declare that the Constitution demands whatever they deem wise? Why would a judge ever expose his druthers to political defeat by merely interpreting statutes and rules? One answer might be that judges are too busy fighting among themselves to have
6E.g., Kenneth A. Shepsle, "Congress Is a 'They,' Not an 'It': Legislative Intent as Oxymoron," herein, 239256. See also the contributions of Gillian Hadfield (257-259) and William Eskridge (260-262), and Daniel B. Rodriguez, "Whose Legislation Is It Anyway? Statutory Interpretation and Political Advantage," herein, 217231. 'See William M. Landes and Richard A. Posner, "The Independent Judiciary in an Interest-Group Perspective," 18j.L. & Econ. 875 (1975). 8See generally Frank H. Easterbrook, "What's So Special About Judges?" 61 U. Colorado L. Rev. 773 (1990). ·Pablo T. Spiller, "Rationality. Decision Rules, and Collegial Courts," herein, 186-190.
F. H.
EASTERBROOK
287
much time left to impose their views on other branches. Appellate courts are multimember bodies subject to the same sort of voting paradoxes as legislatures. Today's winning coalition may be reluctant to approve a principle that would assist today's losers in some other engagement; justices of the Supreme Court are reluctant to approve a principle that grants significant power to inferior courts, and so on. All judges are cognizant that excesses in the pursuit of private agendas would lead Congress to exercise its constitutional power to curtail their jurisdiction. Congress could abolish the inferior federal courts and make "exceptions" to the jurisdiction of the Supreme Court. 1O Some scholars believe that Congress cannot carve off jurisdiction to reverse the results of cases. Very well. Congress could so something even more devastating. It could expand the jurisdiction of the courts! It could flood the lower courts with penny-ante cases while freezing the number ofjudges. It could replace the Supreme Court's discretionary jurisdiction with mandatory jurisdiction, compelling it to hear an appeal from every case decided by a court of appeals. Swamping the Court not only would remove the control over its agenda that is essential to its current influence but also would so delay final decisions that the Court might as well disband. Judges, more than other political actors, must answer the question of why anyone should obey. The president has the army, Congress the purse. Judges have reason. They could assemble political coalitions for protection; the Supreme Court has a formidable constituency (including the press, which relies on the Court to protect speech and repays the debt by rallying to the Court's defense). But other political actors can appeal to the same constituencies, which will not lift a finger to defend judges who march to their own drummer. Judges must persuade other political actors, and the public at large, that courts produce net benefits; only that demonstration makes it sensible for others to obey judicial decisions as a rule, enforcing even edicts that a political majority believe unsound. The rule of law attracts formidable support only so long as people believe that there is a rule of law and not a rule by judges. The need to persuade society to obey sets bounds on judicial creativity; it is most unlikely that obedience will long be forthcoming to an institution that appears to be simply subcommittee chairmen wearing robes. Judges therefore must maximize something other than their (immediate) preferences-and this independent of the fact that the norms of craft, the desire to protect one's reputation, and the belief prevalent on the bench that the public weal lies in judges' suppressing their personal views, all propel judges away from the raw politics Spiller attributes to them. I I I have been suggesting in this roundabout way that scholars who wish to make public choice more useful need to identify the constraints that limit action-not only the fact that other political actors have other desires but also the scarcities they face, which influence what they choose to maximize and how they can maximize it. This problem will be especially difficult as scholars incorporate judges into their models. Other tasks also require attention if we are to achieve useful models of the entire process of making and interpreting laws. One of the most immediate tasks is modeling actual judicial institutions. The papers delivered at this conference-with the
IOArtide III §2 d. 2. "For some sketchy evidence see Frank H. Easterbrook, "Agreement among the Justices: An Empirical Note," 1984 Sup. Ct. Rev. 389.
General Panel Commentary
notable exception of Lewis Kornhauser's12-treat courts as if they were unitary institutions. The entire judiciary is modeled as a single judge on a single court. It isn't. Courts are messy: state courts, hear federal questions, federal courts hear state questions, parallel jurisdictions hear the same questions (and give different answers), courts with multiple members produce cycling, path dependence, and other unhappy outcomes. 13 Stare decisis is a tendency rather than a rule (if it were a rule, one would get strict path dependence, which no one wants). One should expect these structures to affect outcomes. Federal judges are the product of presidential nomination and senatorial consent; the House is excluded. In Germany both houses of the legislature playa role in confirmation; in England appointments to the bench (including the House of Lords) bypass Parliament entirely. What differences should these structures produce? What, by the way, is the effect of stare decisis as courts in the United States practice it? (Note that courts in civil law nations deny that their own decisions have weight independent of the codes being construed.) The list of structures requiring investigation could go on and on. Let me give two more, which do not depend (not directly, anyway) on anything in our Constitution. Both concern the interpretation of statutes. (I) Most other nations have an institution that puts technical polish on laws, to avoid questions of interpretation (the Office of Parliamentary Counsel in England, the Conseil d'Etat in France). In the United States technical questions are delegated to administrative agencies or not resolved at all, so questions of interpretation proliferate. (2) Most other nations have a meta-law (an "acts interpretation act") telling the bench how to interpret substantive laws when questions arise despite strenuous efforts to avert them. The United States does notand its judges engage in enduring debate about how to interpret laws. Are these choices related-to each other? To other aspects of our structure of government? What effects should such differences have? Public choice is in its infancy. Its mode of inquiry holds out great promise. To fulfill this promise, scholars need to examine more aspects of our existing institutions, contrasting them with political systems that use other methods. Some of the questions I have posed-such as what judges maximize and what ar'? the scarcities that drive equilibria-are not answerable at the level of theory. Scholars must make assumptions, use the assumptions in models that yield predictions, and test their predictions. Whatever models make the better predictions may be declared the winner, and their assumptions applied more widely. That we hunger after models that generate testable predictions is a mark of the distance yet to go.
12Lewis Kornhauser, "I-Path-Dependence Modeling Collegial Courts" herein, 169-185. See also John ~1. Rogers, "'1 Vote This Way Because I'm Wrong': The Supreme Court Justice as Epimenides," 79 Kentucky L.j. 439 (1990-91). "See Frank H. Easterbrook, "Ways of Criticizing the Court," 95 Harv. L. Rev. 802 (1982).
Some Tasks in Understanding Law through the Lens of Public Choice FRANK
H.
EASTERBROOK
U.S. Court of Appeals for the Seventh Circuit, 219 South Dearborn Street, Chicago,IL 60604, USA
The reigning school of statutory interpretation and an aspiring school of constitutional interpretation call on all who implement the law to find and follow the intent of the drafters. That is hard to do. Anyone author has a mix of objectives, motives, desires, and concerns that we fuse together and for which "intent" is a handy label. Legislators care about reelection, about reputation, about ability to do good for constituents or the nation as a whole or posterity. These tug in different directions for anyone with a role in forming or executing laws; the concept of "an" intent for a person is fictive and for an institution hilarious. A hunt for this snipe liberates the interpreter, who can attribute to the drafters whatever "intent" serves purposes derived by other means. 1 What are we to do? The normative aspect of this question is: What is entitled to the force of law in a representative democracy-ours, in particular? How ought persons exercising the power of the state behave in order to carry that concept into effect? Let us put that to one side2 in favor of the positive questions: How do persons exercising the power of the state behave? What are the consequences of these patterns? Public choice, which does almost nothing to answer the normative questions, can tell us a great deal about the positive ones. Rigorous study of the enterprise of making, molding, and implementing the law has attracted some of the most creative thinkers in the discipline, and this attention is beginning to yield nuggets. 3 Yet public choice has some way to go before it supplies substantial ability to un-
'See Frank H. Easterbrook. "The Role of Original Intent in Statutory Construction," II Harv. j.L. & Pub. Pol'y 59 (1988).
2For the moment. I have written about it elsewhere. E.g., "Statutes' Domains," 50 U. Chi. L. Rev. 553 (1983); "What Does Legislative History Tell Us?" 66 Chi.-Kent L. Rev. 30 (1990) (forthcoming); and the article cited in n.l. 3A series of symposia brings much of teday's wisdom together. This issue of the International Review of Law and Economics collects the papers of one conference. For others, see Bernard Grofman and Donald Wittman, eds.• The Federalist Papers and the New Institutionalism (1989); James D. Gwartney and Richard E. Wagner. eds.. Public Choice and Constitutional Economics (1988); "Conference on 'The Organization of Political Institutions,''' 6j.L. Econ. & Org. (1990); "Symposium on the Theory of Public Choice," 74 Va. L. Rev. 167-518 (1988).
Another symposium, in May 1991 at the University of lllinois, is soon to produce its own symposium issue of the Journal of Law, Economics, and Organization. See also Daniel A. Farber and Philip P. Frickey. Law and Public Choice: A Critical Introduction.( 1991). © 1992 Frank H. Easterbrook
F. H.
EASTERBROOK
285
derstand the legal system. Economics is the study of rational maximization in the face of scarcity. Assuming scarce goods-Qr equivalent constraints---enables economists to build models that are comparable to one another. One cannot put any model to the ultimate test (indeed, definition) of science-falsifiability-unless it is comprehensive enough to make predictions and comparable enough to other models to allow different persons working in the same field to converse. Economists have converged on a set of norms that facilitates this process. The papers at this conference show some respects in which public choice lags behind branches of economics such as industrial organization. Consider for example the class of models well represented by the Ferejohn-Weingast paper. 4 These models search for a set of "viable" legal interpretations, in which viability depends on the power of other political actors to impose their own will on the outcome. Models of this kind define games that are closely related to the theory of the core. There is a stable set of rules that can endure, in the sense that any move outside a given boundary will be quickly reversed. One can examine any series of moves and demonstrate how the outcome must be inside a prescribed zone. That being so, the entity with the (legal) authority to "move" at a particular time-that is, the court seized of jurisdiction to decide a case or an agency about to issue a regulation-chooses the position in policy space as close to its preferred position as possible without being outside the core. Because everyone understands everyone else's position and powers, all know how far is too far. Indeed, there may be only one move. The legislature (or subcommittee chairman), understanding what presidents, agencies, and judges can do later, proposes the rule that comes closest to its own views and is inside the core. One move, and the game is over. Presidents never veto laws, and if they do anyway (perhaps because they do not understand the game), the vetoes are overridden. Yet we see proposals amended on the floor, presidential vetoes that stick (few are overridden), unexpected regulations, judicial declarations that regulations are invalid, and hundreds of other subsequent "moves," great and small. Perhaps these demonstrate only that the zone of strategy-proof equilibria shifts every time there is an election or a new appointment to an agency or the bench. Perhaps, instead, the problem inheres in a model in which actors try to maximize something (the achievement of their own objectives) but in which there are no scarcities. What is the constraint? How does a need to conserve on some scarce good drive people to an equilibrium? Where is the invisible hand? Information is one candidate for scarcity. Time is another. Governance is impossible without copious expenditures of time-meeting with interest groups, negotiating with other legislators, and on and on. Our Constitution and many aspects of our governmental institutions that have since been established encourage the use rather than the conservation of time. As Saul Levmore observes,s bicameralism serves to prolong and complicate the process of reaching agreement. Much of our governmental structure is about time-right down to the fact that legislatures pass out of existence after two years. If one cannot get a law enacted within that time, one must start over, negotiating with new faces and satisfying new demands. Time sets a cap
'John A. Ferejohn and Barry R. Weingast, "A Positive Theory of Statutory Interpretation," herein, 263-279. 'Saul Levmore, "Bicameralism: When Are Two Decisions Better than One?" herein, 145-162.
286
General Panel Commentary
on what any political body can accomplish, a limit it can avoid only by delegating tasks, with the inevitable agency costs. Time also helps to ameliorate the intensity problem in democracies-those who care deeply about a subject will invest disproportionate time on it, obtaining benefits even if they are a numerical minority. When time is a scarce resource, agenda influence becomes less important, and the polity will assume positions that are outside the set that could be enforced in a world in which every member of Congress could attend to an unlimited number of subjects for as long as necessary. Public choice needs a theory of scarcity. What are the scarce goods? How are they allocated? More: Public choice needs a consistent theory of scarcity. Professor Levmore treats time as a scarce good and shows how the structure of government forces people to use time; other papers at this conference, by contrast, propose models in which government is designed to conserve on time. Consider, for example, the vision of judges as agents helping the parties to relational contracts (that is, regulatory statutes) achieve their objectives more quickly and cheaply.6 Does the addition of a set of independeL~ actors Gudges) really facilitate implementation of the political bargains of strangers? It would be odd, if so, to make the judges independent (agencies with short tenure should be more faithful, at least if the benchmark is the sitting Congress), and odd, too, to tack this institution onto a political structure dedicated to making agreements hard to reach. Tenure is a two-edged sword: it frees a judge from political concerns, making more likely the implementation of rules that have fallen from favor (and thus increasing the durability of political bargains),? but it also frees the judges from political bargains, giving judges independent influence on government. 8 Both effects may have been anticipated: the Federalist contains paeans to the judicial role in honest enforcement of rules and the judicial role in keeping the political branches alert to the public interest and taking the harsh edges off of political deals. Which effect predominates? If courts participate in making policy, they raise the costs of reaching and implementing political agreements. Pablo Spiller emphasizes the independence of judges and, correspondingly, their opportunity to inject a new set of objectives and move the governmental (no longer strictly "political") equilibrium. 9 Here we encounter still another question that public choice needs to tackle: What are judges maximizing? If, as models such as Spiller's imply, judges are maximizing their own conceptions of wise policy (with a generous dollop of judicial discretion as part of the definition of wisdom), why do they not simply declare that the Constitution demands whatever they deem wise? Why would a judge ever expose his druthers to political defeat by merely interpreting statutes and rules? One answer might be that judges are too busy fighting among themselves to have
6E.g., Kenneth A. Shepsle, "Congress Is a 'They,' Not an 'It': Legislative Intent as Oxymoron," herein, 239256. See also the contributions of Gillian Hadfield (257-259) and William Eskridge (260-262), and Daniel B. Rodriguez, "Whose Legislation Is It Anyway? Statutory Interpretation and Political Advantage," herein, 217231. 'See William M. Landes and Richard A. Posner, "The Independent Judiciary in an Interest-Group Perspective," 18j.L. & Econ. 875 (1975). 8See generally Frank H. Easterbrook, "What's So Special About Judges?" 61 U. Colorado L. Rev. 773 (1990). ·Pablo T. Spiller, "Rationality. Decision Rules, and Collegial Courts," herein, 186-190.
F. H.
EASTERBROOK
287
much time left to impose their views on other branches. Appellate courts are multimember bodies subject to the same sort of voting paradoxes as legislatures. Today's winning coalition may be reluctant to approve a principle that would assist today's losers in some other engagement; justices of the Supreme Court are reluctant to approve a principle that grants significant power to inferior courts, and so on. All judges are cognizant that excesses in the pursuit of private agendas would lead Congress to exercise its constitutional power to curtail their jurisdiction. Congress could abolish the inferior federal courts and make "exceptions" to the jurisdiction of the Supreme Court. 1O Some scholars believe that Congress cannot carve off jurisdiction to reverse the results of cases. Very well. Congress could so something even more devastating. It could expand the jurisdiction of the courts! It could flood the lower courts with penny-ante cases while freezing the number ofjudges. It could replace the Supreme Court's discretionary jurisdiction with mandatory jurisdiction, compelling it to hear an appeal from every case decided by a court of appeals. Swamping the Court not only would remove the control over its agenda that is essential to its current influence but also would so delay final decisions that the Court might as well disband. Judges, more than other political actors, must answer the question of why anyone should obey. The president has the army, Congress the purse. Judges have reason. They could assemble political coalitions for protection; the Supreme Court has a formidable constituency (including the press, which relies on the Court to protect speech and repays the debt by rallying to the Court's defense). But other political actors can appeal to the same constituencies, which will not lift a finger to defend judges who march to their own drummer. Judges must persuade other political actors, and the public at large, that courts produce net benefits; only that demonstration makes it sensible for others to obey judicial decisions as a rule, enforcing even edicts that a political majority believe unsound. The rule of law attracts formidable support only so long as people believe that there is a rule of law and not a rule by judges. The need to persuade society to obey sets bounds on judicial creativity; it is most unlikely that obedience will long be forthcoming to an institution that appears to be simply subcommittee chairmen wearing robes. Judges therefore must maximize something other than their (immediate) preferences-and this independent of the fact that the norms of craft, the desire to protect one's reputation, and the belief prevalent on the bench that the public weal lies in judges' suppressing their personal views, all propel judges away from the raw politics Spiller attributes to them. I I I have been suggesting in this roundabout way that scholars who wish to make public choice more useful need to identify the constraints that limit action-not only the fact that other political actors have other desires but also the scarcities they face, which influence what they choose to maximize and how they can maximize it. This problem will be especially difficult as scholars incorporate judges into their models. Other tasks also require attention if we are to achieve useful models of the entire process of making and interpreting laws. One of the most immediate tasks is modeling actual judicial institutions. The papers delivered at this conference-with the
IOArtide III §2 d. 2. "For some sketchy evidence see Frank H. Easterbrook, "Agreement among the Justices: An Empirical Note," 1984 Sup. Ct. Rev. 389.
General Panel Commentary
notable exception of Lewis Kornhauser's12-treat courts as if they were unitary institutions. The entire judiciary is modeled as a single judge on a single court. It isn't. Courts are messy: state courts, hear federal questions, federal courts hear state questions, parallel jurisdictions hear the same questions (and give different answers), courts with multiple members produce cycling, path dependence, and other unhappy outcomes. 13 Stare decisis is a tendency rather than a rule (if it were a rule, one would get strict path dependence, which no one wants). One should expect these structures to affect outcomes. Federal judges are the product of presidential nomination and senatorial consent; the House is excluded. In Germany both houses of the legislature playa role in confirmation; in England appointments to the bench (including the House of Lords) bypass Parliament entirely. What differences should these structures produce? What, by the way, is the effect of stare decisis as courts in the United States practice it? (Note that courts in civil law nations deny that their own decisions have weight independent of the codes being construed.) The list of structures requiring investigation could go on and on. Let me give two more, which do not depend (not directly, anyway) on anything in our Constitution. Both concern the interpretation of statutes. (I) Most other nations have an institution that puts technical polish on laws, to avoid questions of interpretation (the Office of Parliamentary Counsel in England, the Conseil d'Etat in France). In the United States technical questions are delegated to administrative agencies or not resolved at all, so questions of interpretation proliferate. (2) Most other nations have a meta-law (an "acts interpretation act") telling the bench how to interpret substantive laws when questions arise despite strenuous efforts to avert them. The United States does notand its judges engage in enduring debate about how to interpret laws. Are these choices related-to each other? To other aspects of our structure of government? What effects should such differences have? Public choice is in its infancy. Its mode of inquiry holds out great promise. To fulfill this promise, scholars need to examine more aspects of our existing institutions, contrasting them with political systems that use other methods. Some of the questions I have posed-such as what judges maximize and what ar'? the scarcities that drive equilibria-are not answerable at the level of theory. Scholars must make assumptions, use the assumptions in models that yield predictions, and test their predictions. Whatever models make the better predictions may be declared the winner, and their assumptions applied more widely. That we hunger after models that generate testable predictions is a mark of the distance yet to go.
12Lewis Kornhauser, "I-Path-Dependence Modeling Collegial Courts" herein, 169-185. See also John ~1. Rogers, "'1 Vote This Way Because I'm Wrong': The Supreme Court Justice as Epimenides," 79 Kentucky L.j. 439 (1990-91). "See Frank H. Easterbrook, "Ways of Criticizing the Court," 95 Harv. L. Rev. 802 (1982).