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Copyright (c) 1988 Texas Law Review
Texas Law Review

RESPONSE AND REPLY: Understanding (and Misunderstanding) Public Choice: A Response to Farber and Frickey.

April, 1988

66 Tex. L. Rev. 993


Michael E. DeBow * and Dwight R. Lee **


I. Introduction

In a recent issue of this Review, Professors Daniel Farber and Philip Frickey offered a thoughtful analysis of the theory of public choice and its implications for public law. 1 Although Farber and Frickey express respect for the insights into the political process that public choice provides, this respect is cautious. They devote much of their article to a critique of what they consider to be an excessive emphasis on narrow self-interest in public choice analyses of political actions. Because Farber and Frickey see public choice theory as overly cynical, they conclude that public choice at best has limited relevance to a proper understanding of public law and at worst can erode the public interest ethic upon which a beneficent political order depends. 2 This Response defends the usefulness of public choice against the criticisms of Farber and Frickey, a task that we can accomplish through only mild criticism of and disagreement with their position.

Initially, we have two reservations about Farber and Frickey's overall effort. First, they provide little evidence to support their claim that "a simplistic reading of [public choice] literature threatens to distort public law." 3 Judging from Farber and Frickey's assessment of the current state of public law, this negative impact has not yet materialized in the courts. 4 Rather, they perceive this threat as coming from the "[m]any public choice scholars" clamoring for the courts to abandon certain current doctrines in favor of a public choice based ...
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