Institutional Evolution through Purposeful Selection: The Constitutional Economics of John R. Commons

The paper relates John. R. Commons view on the roleof human design in institutional evolution to the views thathave been advanced on this matter by F. A. Hayek, in German ordo-liberalism,and in constitutional political economy. It is argued that Commonsconcept of purposeful selection points in the direction ofa theoretical perspective that consistently integrates the notionsof institutional evolution and constitutional design.     

Resurrecting Lochner: A Defense of Unprincipled Judicial Activism

Lochner v. New York, 198 U.S. 45 (1905), stands as one of theSupreme Court's most reviled decisions. We challenge the criticalconsensus against Lochner and provide a defense, albeit a contingentdefense, of "unprincipled" judicial activism. To do so, we developa game-theoretic model of judicial–legislative interaction.We use the model to compare outcomes generated in a system oflegislative supremacy to outcomes generated in a system in whichjudicial review is provided by a legally unprincipled, activistjudiciary. We show that judicial review, even when providedby an activist, politicized judiciary, can promote importantconstitutional values and improve legislative quality relativeto a deferential judiciary. In doing so, we identify an important"passive" component to the effect that judicial review has onlegislatures and on legislation. Finally, we demonstrate thatthe addition of other institutions and constraints on judicialbehavior amplify the beneficial effects that judicial reviewprovides to the legislative process.     

Liberal constitutionalism,constitutional liberalism and democracy

The tension that is often seen to exist between the ideals of liberalism and of democracy is examined in this paper in light of the distinction between two liberal outlooks at constitutional regimes, namely, on the one side, a liberal constitutionalism that focuses on the need to provide institutional safeguards of individual liberty as private autonomy and, on the other hand, a constitutional liberalism that focuses on the need to respect the freedom of individuals to choose the constitutional environment in which they wish to live. It is argued that a liberalism that consistently extends its fundamental ideal of individual sovereignty to the level of constitutional choice can be reconciled with the basic democratic ideal of citizen sovereignty.     

James M. Buchanan’s contractarianism and modern liberalism

This paper contrasts Buchanan’s contractarian–constitutional liberalism with Hayek’s evolutionary liberalism and Rothbards free-market liberalism as representative branches of the classical liberal tradition. While Hayek and Rothbard focus on individual liberty as private autonomy, Buchanan posits that individual sovereignty should be recognized as the fundamental normative premise of liberalism. He insists that a consistent application of this premise requires liberals to respect individuals as sovereigns not only in their capacity as private law subjects but also at the constitutional level of choice where, as sovereign citizens, they choose, jointly with their fellow citizens, the rules under which they wish to live. It is argued that by supplementing the notion of individual liberty as private autonomy with the concept of individual sovereignty in constitutional matters Buchanan lays the theoretical foundation for complementing the well-developed liberal theory of the market with a consistent liberal theory of democracy.     

Experimental evidence that quorum rules discourage turnout and promote election boycotts

Many democratic decision making institutions involve quorum rules. Such rules are commonly motivated by concerns about the “legitimacy” or “representativeness” of decisions reached when only a subset of eligible voters participates. A prominent example of this can be found in the context of direct democracy mechanisms, such as referenda and initiatives. We conduct a laboratory experiment to investigate the consequences of the two most common types of quorum rules: a participation quorum and an approval quorum. We find that both types of quora lead to lower participation rates, dramatically increasing the likelihood of full-fledged electoral boycotts on the part of those who endorse the Status Quo. This discouraging effect is significantly larger under a participation quorum than under an approval quorum.     

On the Economics of Moral Preferences

Abstract . The long‐standing critique of the “economic model of man” has gained new impetus, not least due to the broadening research in behavioral and experimental economics. Many of the critics have focused on the apparent difficulty of traditional rational choice theory to account for the role of moral or ethical concerns in human conduct, and a number of authors have suggested modifications in the standard model in response to such critique. This article takes issue with a quite commonly adopted “revisionist” strategy, namely, seeking to account for moral concerns by including them as additional preferences in an agent's utility function. It is argued that this strategy ignores the critical difference between preferences over outcomes and preferences over actions, and that it fails to recognize that “moral preferences” belong in the second category. Preferences over actions, however, cannot be consistently accounted for within a theoretical framework that focuses on the rationality of single actions. They require a shift of perspective, from a theory of rational choice to a theory of rule‐following behavior.