Constitutional Law and Economics

Forthcoming in Research Methods in Constitutional Law: A Handbook (Malcolm Langford & David S. Law eds., Edward Elgar)

Virginia Public Law and Legal Theory Research Paper No. 2018-08

Virginia Law and Economics Research Paper No. 2018-02

UC Berkeley Public Law Research Paper

36 Pages Posted: 14 Feb 2018 Last revised: 5 Jun 2019

See all articles by Robert D. Cooter

Robert D. Cooter

University of California, Berkeley - School of Law

Michael D. Gilbert

University of Virginia School of Law

Date Written: January 24, 2019

Abstract

This chapter addresses a new and fertile research program: constitutional law and economics. Constitutional law and economics asks questions like, ‘What is the extent of the U.S. Congress’s power to regulate commerce?’; ‘How much legislative authority can be delegated to administrators?’; and ‘When should constitutional change happen through judicial updating rather than formal amendment?’ To address such questions, constitutional law and economics blends positive, normative, and interpretive analysis. This chapter describes all three but emphasizes interpretation, which is new to many economists and paramount to lawyers. After introducing these modes of analysis, we turn to constitutional law. Six processes make and sustain constitutions: bargaining, voting, delegating, entrenching, adjudicating, and enforcing. Economic theory illuminates these processes, and constitutional law reflects them. We cannot describe all of the relevant economic theory here, but we provide some snapshots. Afterwards, we apply the theory to concrete problems in constitutional law. We demonstrate what constitutional law and economics has achieved and showcase its potential.

Keywords: Constitutional law, law and economics, constitutional interpretation, constitutional processes, bargaining, voting, federalism, single subject rule

Suggested Citation

Cooter, Robert D. and Gilbert, Michael, Constitutional Law and Economics (January 24, 2019). Forthcoming in Research Methods in Constitutional Law: A Handbook (Malcolm Langford & David S. Law eds., Edward Elgar), Virginia Public Law and Legal Theory Research Paper No. 2018-08, Virginia Law and Economics Research Paper No. 2018-02, UC Berkeley Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3123253

Robert D. Cooter

University of California, Berkeley - School of Law ( email )

Berkeley, CA 94720-7200
United States
510-642-0503 (Phone)
510-642-3767 (Fax)

Michael Gilbert (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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