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Monday, March 05, 2018

Request for Course or Bibliographical Information: "Law and Public Policy"

I am teaching a course in the fall titled “Law and Public Policy.” My rough goal is to give students a basic vocabulary with which to analyze, discuss, and advocate for or against laws and other public policy decisions and issues. Although there is of course great variation among the slowly growing number of Leg-Reg casebooks, part of my motivation was that the Leg-Reg casebook I used last year, although very good on issues like statutory interpretation, was not so good on the political process (roughly two pages in the casebook), or on public policy or regulatory analysis more generally.

My long-term goal is to put together an edited collection—not substantial essays, but an A-Z book of short explanatory descriptions of public policy terms and topics, forming a kind of “Public Policy for Lawyers: A Primer” text, similar to but no doubt less sophisticated than Jon Elster’s book(s) on Nuts and Bolts for the Social Sciences, and similar but more public-law and public-policy-oriented than Ward Farnsworth's The Legal Analyst—that might serve as an inexpensive supplemental text for teachers of Leg-Reg or other public law courses.

With that background (and implicit call for interested contributors to such a primer to reach out and let me know of their interest) in mind, I wonder if any readers can point me toward courses or syllabi at law schools on Law and Public Policy. My brief search found very few, although it found several on specific subjects, such as environmental law and public policy. There were far more “hits” for courses of this sort at schools of government or public administration than at law schools. Similarly, a search on Amazon found very little, and what there was was geared toward MPA students and students in similar programs.

Private emails are welcome, of course, in addition to contributions in the comments.

P.S.: I took “Foundations of the Regulatory State” from Prof. Richard Pierce as a 1L at Columbia, and found it immensely useful for the vocabulary it gave me. Without speaking for him, I gather that Pierce was not crazy about that short-lived curricular experiment. But he should know that at least one former student thought it was very good.  


Posted by Paul Horwitz on March 5, 2018 at 02:44 PM | Permalink


I can’t point toward courses or syllabi at law schools on Law and Public Policy, this is not my area of expertise (indeed, I doubt I’m in possession of any such area), and when I think of “law and public policy” I no doubt imagine a somewhat philosophical take on the topic, or at least an approach that evidences some measure of philosophical sensibility. But given my penchant for lists (in the form of bibliographies on sundry topics, of which there are 86 to date; some of which contain titles useful for such a course, even if only by way of further, ‘recommended reading’), and given an amateur’s or layperson’s ardent interest in this subject, I thought I would quickly compose a group of titles that I would find helpful in directly and indirectly addressing questions and inquiries into law and public policy, although these may not be germane to the immediate pedagogical concerns of the law student, even if I imagine, in the best of all possible worlds, they should be. This was quickly culled together this morning, so no doubt in a few days this list would look a bit different.

• Adler, Matthew D. and Eric A. Posner, eds. Cost-Benefit Analysis: Legal, Economic, and Philosophical Perspectives (University of Chicago Press, 2001).
• Bowman, Scott R. The Modern Corporation and American Political Thought: Law, Power, and Ideology (Pennsylvania State University Press, 1996).
• Brown, Mark B. Science in a Democracy: Expertise, Institutions, and Representation (MIT Press, 2009).
• Chang, Ha-Joon. 23 Things They Don’t Tell You about Capitalism (Bloomsbury Press, 2011).
• Coady, C.A.J. Messy Morality: The Challenge of Politics (Clarendon Press, 2008).
• Fried, Barbara H. The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (Harvard University Press, 1998).
• Goodin, Robert E. Political Theory and Public Policy (University of Chicago Press, 1982).
• Goodin, Robert E. Reasons for Welfare: The Political Theory of the Welfare State (Princeton University Press, 1988).
• Goodin, Robert E. Utilitarianism as a Public Philosophy (Cambridge University Press, 1995).
• Goodin, Robert E., et al. The Real Worlds of Welfare Capitalism (Cambridge University Press, 1999).
• Haack, Susan. Evidence Matters: Science, Proof, and Truth in the Law (Cambridge University Press, 2014).
• Hastie, Reid and Robyn M. Dawes. Rational Choice in an Uncertain World (Sage Publications, 2001).
• Hausman, Daniel M. and Michael S. McPherson. Economic Analysis, Moral Philosophy, and Public Policy (Cambridge University Press, 2nd ed., 2006).
• Isaacs, Tracy and Richard Vernon, eds. Accountability for Collective Wrongdoing (Cambridge University Press, 2011).
• Jasanoff, Sheila. Science at the Bar: Law, Science and Technology in America (Harvard University Press, 1995).
• Kitcher, Philip. Science, Truth, and Democracy (Oxford University Press, 2001).
• Kitcher, Philip. Science in a Democratic Society (Prometheus Books, 2011).
• Light, Andrew and Avner De-Shalit, eds. Moral and Political Reasoning in Environmental Practice (MIT Press, 2003).
• Lucas, J.R. Responsibility (Oxford University Press, 1993).
• MacCormick, Neil. Practical Reason in Law and Morality (Oxford University Press, 2008).
• May, Larry. Sharing Responsibility (University of Chicago Press, 1992).
• Murphy, Liam and Thomas Nagel. The Myth of Ownership: Taxes and Justice (Oxford University Press, 2002).
• Rhode, Deborah L. Access to Justice (Oxford University Press, 2004).
• Shrader-Frechette, K.S. Risk and Rationality: Philosophical Foundations for Populist Reforms (University of California Press, 1991).
• Sunstein, Cass R. Free Markets and Social Justice (Oxford University Press, 1997).
• Tamanaha, Brian Z. Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press, 2006).

Posted by: Patrick S. O'Donnell | Mar 6, 2018 9:38:13 AM

I inadvertently left out an extremely important title: Peter Cane's Responsibility in Law and Morality (Hart Publishing, 2002).

Posted by: Patrick S. O'Donnell | Mar 7, 2018 1:25:05 AM

Thanks Pat!
What books would you recommend on the morality (or lack thereof) of excise taxes?

Posted by: Overtaxed in Seattle | Mar 7, 2018 9:30:11 AM

I prefer to be called Patrick. While I may regret overcoming the hesitancy to respond to your question, one might note that the power of taxation (its particular form here not a salient issue) is accorded to the government by the Constitution, and insofar as one component of the legal and democratic warrant for that power involves the (promotion of) "general welfare," I suggest the sincerely interested and properly motivated inquirer take a look at how such welfare is related to and thus understood within the context of the aims, purposes, and public justifications associated with a (capitalist) liberal democracy and constitutional order, in this case, "our" exemplification of same, hence: Alan Brudner's Constitutional Goods (Oxford University Press, 2004), Sotirios A. Barber's Welfare and the Constitution (Princeton University Press, 2003), and the late Marcus G. Raskin's The Common Good: Its Politics, Policies and Philosophy (Routledge & Kegan Paul, 1986).

Posted by: Patrick S. O'Donnell | Mar 7, 2018 11:26:10 AM

Just as poll taxes don't promote the general welfare--because they are regressive--presumably excise taxes don't either for the same reason.

Posted by: the regressive left | Mar 7, 2018 12:25:15 PM


What books would you recommend on strict scrutiny analysis, or statutory interpretation in general? Thanks.

Posted by: Kent | Mar 7, 2018 2:57:15 PM

I can't tell whether the last question was a serious one or not. The Internet is difficult that way sometimes. That said, and taking as a given that Patrick often offers bibliographical comments, I did actually put up a post for information that, if not directly aimed at general bibliographical information, certainly was receptive to receiving it. So I am grateful for Patrick's bibliography and think it was on point. Some of these books I know about and have used in my past Leg-Reg teaching to supplement either my private reading or students' reading; others I didn't know about and will be happy to look at, or didn't think of in this connection and will be happy to look at again.

Posted by: Paul Horwitz | Mar 7, 2018 4:37:49 PM

Kent, When I posted this list on FB, I wrote: "I have not included literature related to the legislative process, statutory interpretation, and conventional 'law and economics' stuff (among other things one might find, say, in a standard course on this topic in a law school or a graduate course in political science)." This was largely due to the fact that I am not a law professor and because this is not an area in which I've tried to keep abreast of the literature, so I'm definitely not the person to ask for a recommendation along these lines. That said, I'll simply share with you three books from my library which I have found helpful for thinking about statutory interpretation (I am not aware of their status among those with the requisite expertise): William N. Eskridge, Jr., Dynamic Statutory Interpretation (Harvard University Press, 1994); a textbook-like volume (if not a textbook) by Eskridge, Frickey and Garrett, Legislation and Statutory Interpretation (Foundation Press, 2nd ed., 2006); Richard Ekins, The Nature of Legislative Intent (Oxford University Press, 2012); and, a book which is not so much about interpretation as such, Jeremy Waldron's The Dignity of Legislation (Cambridge University Press, 1999). Finally, I think one should be clear about the nature of the democratic warrant for legislators in a representative government, and the book I've found most persuasive for understanding that, I recommend Nadia Urbinati's brilliant work, Representative Democracy: Principles and Genealogy (University of Chicago Press, 2006), which for me, at any rate, is far and away the best defense of democratic representation, even if it reminds us how and why actual "representatives" in our society fall far short short of conforming to this normative political model.

Posted by: Patrick S. O'Donnell | Mar 7, 2018 4:59:41 PM


"the nature of the democratic warrant for legislators in a representative government"

On that note, what are the best books defending the idea of a bill of rights against a tyrannical majority?
Not just defending equality/universal-suffrage, but unpopular speech, sexual and reproductive freedom, etc.

Posted by: Cooley | Mar 7, 2018 10:21:24 PM

Here are three titles that emphasize the public policy half of your question:

* Handbook of Public Policy, edited by B. Guy Peters and Jon Pierre.
* American Public Policy, by B. Guy Peters
* Public Administration and Law by David H. Rosenbloom, Rosemary O'Leary, and Joshua Chanin

Posted by: Phil | Mar 14, 2018 1:44:56 PM

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