Copyright (c) 2009 All rights reserved. http://works.bepress.com/maxwell_stearns Recent documents in Maxwell L. Stearns en-us Tue, 17 Nov 2009 23:22:40 PST 3600 http://works.bepress.com/maxwell_stearns/31 http://works.bepress.com/maxwell_stearns/31 Mon, 16 Nov 2009 12:37:20 PST This is the only course book specifically designed to instruct law students in the discipline of public choice. The book provides a comprehensive, but nontechnical, overview of interest group theory, social choice theory, and game theory (along with elementary price theory), and ties these concepts to a wide range of topics in both public and private law. The book contains chapters devoted to each set of methodological tools and to specific institutional settings: legislatures, courts, executive branch (and bureaus), and constitutions. Maxwell L. Stearns http://works.bepress.com/maxwell_stearns/30 http://works.bepress.com/maxwell_stearns/30 Tue, 10 Mar 2009 09:52:19 PDT Social choice studies the differing implications of the concept of rationality (or transitivity) for individuals versus groups under specified conditions and the significance of these differences in various institutional decision making contexts. This introductory chapter on social choice for the Elgar Handbook on Public Choice (Elgar Publishing Company, Dan Farber and Anne O'Connell, editors), introduces the basic framework of social choice, considers the implications of social choice for various legal and policy contexts, and provides a framework for evaluating a range of normative proposals grounded in social choice for reforming lawmaking institutions. After a brief introduction, part II introduces the following concepts: cycling, the median voter theorem, the Condorcet criterion, path dependence, agenda setting, minimum winning coalitions, multipeakedness, dimensionality, symmetry and Arrow's Theorem. This part then describes several notable voting protocols that have been offered in the literature to ameliorate identified deficiencies in aggregating collective preferences, including Borda Counts, Coombs Voting, Hare Voting (or Single Transferable Voting), Copeland Voting, Plurality Voting and Approval Voting. Part III presents prominent normative proposals advanced by legal scholars relying upon, or calling into question, the discipline of social choice, including proposals to change electoral voting procedures; to modify doctrines affecting judicial deference to legislative bodies; and to alter various voting protocols in legislatures and appellate courts, including most notably the Supreme Court. Part IV will rely upon social choice to present a framework for reassessing several of the normative proposals described in part III, along with some of the critical commentary. This part recasts social choice, and in particular Arrow's Theorem, into a set of positive tools that can be used to respond to some of these proposals and to provide insights into how various institutions operate individually and in combination with other lawmaking institutions. The analysis explains the important role of institutional complementarity in improving the quality and rationality of institutional outputs. This part will also introduce several related concepts including the fallacy of composition, the isolation fallacy, and the nirvana fallacy, and apply these concepts to the various proposals and responses considered in part III. Part V revisits Arrow's Theorem and uses the rationality and fairness criteria as a means through which to compare institutions, with a particular focus on Congress and the Supreme Court. The chapter concludes with some suggestions for future social choice research related to law and lawmaking institutions. Maxwell L. Stearns Law and Economics Political Science http://works.bepress.com/maxwell_stearns/29 http://works.bepress.com/maxwell_stearns/29 Wed, 17 Sep 2008 08:21:21 PDT After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O'Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O'Connor was generally viewed as occupying the Court's centrist, or median, position, Alito has instead continued to embrace the same conservative judicial philosophy that characterized his fifteen-year career on the United States Court of Appeals for the Third Circuit. It now appears that the Roberts Court is one justice shy of what conservatives had long hoped for, namely a core conservative majority that would ensure predictable rulings in key areas of constitutional law, including most notably abortion, equal protection, and criminal procedure. This Article will explain that while this conventional wisdom is generally sound, it is also incomplete in a critical respect. The increasingly prominent conservative center of gravity in the Supreme Court coincides with an overwhelmingly conservative set of federal circuit courts of appeals. This uncommon judicial occurrence becomes all the more significant when we factor in one more consideration. The Supreme Court has proved most willing to alter its standing doctrines, which govern access to the federal judiciary and ultimately to the Court itself, when this combination coincides with a set of standing rules that threaten to undermines the Court's ability, working in alignment with the lower federal judiciary, to further its emerging doctrinal mandate. This even rarer combination has happened only one prior time in the post New Deal period, and that was during the Warren Court.This Article's thesis is ironic: With respect to standing doctrine, which affects the timing of doctrinal transformation, the Roberts Court is most likely to resemble the Warren Court, the very Court whose historical legacy it seeks to counteract. Further core conservative appointments to the Roberts Court will place stress upon strict standing doctrines developed in the Burger and Rehnquist Courts, as the Supreme Court, working in alignment with the conservative lower federal judiciary, seeks to move substantive constitutional doctrine in its preferred ideological direction. Over time, an increasingly conservative Roberts Court will seek to relax the strictest features of standing doctrine to facilitate its broader doctrinal agenda.To support this thesis, this Article develops and presents two new sets of data. Adapting the Martin-Quinn scoring system, the first data set tracks the ideological center of gravity and the stability of dominant coalition structures on the Supreme Court itself from 1937 through 2005. The second data set is the product of original research drawn from the Federal Judges Biographical Database, compiled by the Federal Judicial Center. These data track the ideological balance of the federal circuit courts, for each year from 1933 through 2006 based upon the party of appointing President. This Article transforms these two sets of data into a readily comparable form and presents them together in a chronological table covering the Supreme Court and circuit courts from 1933 through 2006. This Article relies upon these data to explain the conditions under which the Supreme Court has historically developed and transformed its principal doctrinal gatekeeper, namely standing, in an effort to control developing constitutional doctrine in concert with the lower federal courts. The Article then places the Roberts Court in a broader theoretical and empirical perspective that tracks the Court's internal coalition structures and accounts for the historical relationship between ideological dominance on the Supreme Court and the majority of the federal circuit courts. The analysis helps not only in assessing the significance of the Roberts and Alito appointments, but also of potential future appointments in affecting doctrinal change.The Supreme Court's standing rules have long been viewed as a conservative set of doctrines. The Court's most recent, and controversial, standing pronouncement, Massachusetts v. Environmental Protection Agency ("EPA"), which over the dissents of the four core conservatives, afforded standing to the Commonwealth of Massachusetts to challenge the EPA's denial of rulemaking respecting the regulation of greenhouse gas emissions under the Clean Air Act, is consistent with casting standing in such ideological terms. A longer historical view, however, belies the claim that strict standing inevitably serves conservative interests. Since the doctrine's inception in the New Deal, the Supreme Court has willingly modified standing to fit its changing circumstances and in doing so, has also changed the doctrine's ideological cast. This Article provides theoretical and empirical support for the thesis that as the Roberts Court moves further in a conservative direction, it will be poised once more to modify the strict form of standing that characterized that doctrine in the Burger and Rehnquist Courts as a means working with the aligned conservative lower federal judiciary to move doctrine in its preferred ideological direction. Maxwell L. Stearns Law and Economics Constitutional Law Legal History Law and Society http://works.bepress.com/maxwell_stearns/28 http://works.bepress.com/maxwell_stearns/28 Tue, 29 Jul 2008 08:34:58 PDT Commentary on "Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeal" by Jonathan Matthew Cohen. Ann Arbor, University of Michigan Press, 2002. Maxwell L. Stearns Constitutional Law http://works.bepress.com/maxwell_stearns/26 http://works.bepress.com/maxwell_stearns/26 Wed, 16 Jul 2008 10:11:41 PDT Maxwell L. Stearns http://works.bepress.com/maxwell_stearns/27 http://works.bepress.com/maxwell_stearns/27 Wed, 16 Jul 2008 10:09:02 PDT Maxwell L. Stearns Constitutional Law http://works.bepress.com/maxwell_stearns/25 http://works.bepress.com/maxwell_stearns/25 Wed, 16 Jul 2008 06:56:11 PDT Maxwell L. Stearns http://works.bepress.com/maxwell_stearns/24 http://works.bepress.com/maxwell_stearns/24 Wed, 16 Jul 2008 06:56:05 PDT Maxwell L. Stearns http://works.bepress.com/maxwell_stearns/22 http://works.bepress.com/maxwell_stearns/22 Wed, 16 Jul 2008 06:52:41 PDT In the short span of eight years, the Supreme Court has issued two seemingly opposite answers to the question of whether Congress has free reign to provide private citizens with standing to redress violations of federal environmental law, when those violations have not produced any discernible harm to the claimants. In his prior scholarship, Professor Maxwell Stearns has developed a model of standing based upon the theory of social choice, which focuses primarily upon constitutional standing rules. The recent doctrinal transformation from Lujan v. Defenders of Wildlife, to Friends of the Earth v. Laidlaw Environmental Services, Inc., has provided a valuable opportunity for Professor Stearns to expand his social choice model and to apply it in the context of statutory standing. In this article, which develops a preliminary model of environmental standing, Professor Stearns considers how bargaining over standing expands the issue spectrum for legislative bargaining as it affects the optimal compliance level under a proposed environmental statute. He then considers the differential signaling value of a citizen suit versus agency enforcement as a proxy for the optimal compliance level of the median member of the enacting Congress. The model of statutory standing, which grows out of this analysis, provides several valuable insights into recent environmental standing cases, and suggests a plausible means of reconciling Lujan and Laidlaw. Maxwell L. Stearns http://works.bepress.com/maxwell_stearns/20 http://works.bepress.com/maxwell_stearns/20 Mon, 14 Jul 2008 12:25:34 PDT Maxwell L. Stearns