This Article argues that various philosophically interesting objections to the use of public choice theory in legal education are misguided. Some writers hold that public choice theory, being descriptive, cannot help law students develop the interpretive skills needed by judges and lawyers. I reply that this objection rests on the false assumption that public choice theory lacks resources to accommodate rule following. Others object that public choice theory fosters cynicism and uncooperative attitudes. This rests on an unduly restrictive conception of the theory of rationality presupposed by public choice analysis. The public-choice focus on efficiency has also been disputed. In reply, the author shows that (i) Pareto efficiency is arguably a necessary requirement of distributive justice, (ii) we may have a moral duty to teach wrong principles, and (iii) public choice theory is instrumental to the realization of any ideal of distributive justice. The author also addresses Anthony T. Kronman's objection that legal education should be about case-by-case balancing, and as such makes no room for public choice analysis. The author's reply is that familiarity with public choice theory helps students identify the territories where genuine legal argument, rather than opportunistic bargaining, holds out hope of being persuasive. Finally, against those critics that allege that public choice theory is predictively inaccurate, the author shows that this shortcoming, even if genuine, need not prevent the theory from spotting hidden factors or guiding us towards institutions that economize on virtue.
Should Law Professors Teach Public Choice Theory?,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol79/iss2/7