Mike Gilbert Guest Post: What Election Law Can Learn From Law & Economics

This is a guest post by Professor Mike Gilbert:

With many thanks to Rick for the invitation, I’m writing about a book of mine that may be of interest to the election law community. The title is Public Law and Economics, my coauthor is Robert Cooter (Berkeley Law), and the publisher is Oxford University Press. We have open access, and the book can be downloaded for free from many sites, including this one. We designed the book as a teaching tool and hope it will be useful to scholars as well.

We conceive of public law as the product of six fundamental processes: bargaining, voting, entrenching, delegating, adjudicating, and enforcing. The book devotes two chapters to each, with the first presenting (as clearly as we could manage) the economic analysis of that process, and the second applying that analysis to concrete problems in law. To give an example, the first chapter on bargaining explains the Coase Theorem in public law contexts (e.g., legislators trading votes, judges haggling over opinions). The next chapter applies the theorem to federalism, considering when states can successfully bargain to address social problems, and when the federal government can and should step in.

The chapters on voting are most relevant to election law. Among other things, we present the median voter theorem and its assumptions; “intransitivity,” which occurs when a group’s preferences turn circles, (e.g., the group prefers Candidate A to B, B to C, and C to A); and that remarkable and confounding result, Arrow’s Impossibility Theorem. Many ELB readers are acquainted with these ideas, but perhaps not all, and perhaps not fully. The second chapter on voting applies the economic theory to topics at the heart of election law, including the right to vote, one person-one vote, voter information, voter fraud, and direct democracy.

Other parts of the book touch election law as well. The chapters on entrenchment address political speech, fake news, and the choice between constitutional amendments and judicial updating. The chapters on delegation study lobbying, bribery, and campaign finance. The chapters on adjudication discuss interpretation, and the chapters on enforcement consider judicial legitimacy.

Economics prizes efficiency, and this helps explain its resonance in private and business law. This also helps explain the resistance to economics in public law. Many hold the view that efficiency simply is not relevant in this space. At least for some people, I think this reflects a misunderstanding. “Efficiency” does not mean maximizing money or profit (though in reading L&E literature, I understand why one might think otherwise). Rather, it means maximizing the satisfaction of people’s preferences—whatever those preferences happen to be. If people prefer greater equality, then pursuing equality can promote efficiency. Preferences are about people’s lived experiences, including pleasure, fulfillment, and pain. The normative foundations of economics are deeper and richer than one might think.

For non-consequentialists, normative economics will never be satisfying. But even for them, positive economics has value. Most law, including election law, aims to change people’s behavior. That’s easier to achieve with a thorough understanding of incentives. Economics is a powerful tool for studying incentives.

That’s my pitch. Thanks for reading, I hope the book is useful, and comments are always welcome. I’m reachable at [email protected].

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