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The articles in this volume present various aspects of what the editors term a "principled judicial activism" whose proponents view the constitution not mainly as blueprint for majoritarian democracy but as a charter for limited government and individual rights.
The judicial review of regulatory agencies' decisions, and of statutory enactments with important economic content, presents unique and persistent problems. These decisions are often technical and complex, and the judicial review is usually performed by non-specialists who often seek to provide clear rules and predictability, not case-by-case economic balancing of their own. Sound economic policy requires a balancing of both costs and benefits and demand and supply. In Economic Reasoning and Judicial Review (AEI Press, March 2004)--an essay first presented in December 2003 as the AEI-Brookings Joint Center for Regulatory Studies' 2003 Distinguished Lecture--Stephen G. Breyer, Associate Justice of the United States Supreme Court, discusses these dilemmas in the context of recent Supreme Court decisions and offers suggestions for addressing them. In order to bring economic reasoning to bear in legal fields, such as antitrust law, intellectual property law, and economic regulation, Justice Breyer recommends the following: The law must take into greater consideration the underlying human purposes of the law, rather than simply favor strict legal categories. Courts should consider using independent experts for economic reasoning in technical areas rather than sending judges to economic seminars. These experts should understand the role that administrative considerations, such as the need for rules, play in the law. Given the law's reluctance to rely upon novel approaches, institutions outside the judiciary should debate and adopt economic methods for the courts to model. The legal process, Justice Breyer argues, "is too important to be left simply to the legal specialists, to the lawyers, or even to the judges." Those with basic economic or regulatory policymaking expertise need to participate in the judicial process. Whether serving as experts in individual cases or informed court watchers and critics, these experts can help lawyers and judges understand the tools of analysis and encourage their use. Justice Breyer has long been a leader in the quest to build a rational consensus on the appropriate role of government intervention in a market-based economy. As counsel to the Senate Judiciary Committee, he was one of the chief architects of airline deregulation. As a Harvard University law professor and a Supreme Court Justice, he has made seminal contributions to the understanding of social and economic regulation, copyright law, and administrative law. Justice Breyer is the author of Regulation and Its Reform (Harvard, 1992) and Breaking the Vicious Circle: Toward Effective Risk Regulation (Harvard, 1993).
In this seminal work, Bernard Siegan traces the history of onstitutional protection for economic liberties in the United States. He argues that the law began to change with respect to economic liberties in the late 1930s. At that time, the Supreme Court abdicated much of its authority to protect property rights, and instead condoned the expansion of state power over private property. Siegan brings the argument originally advanced in the .first edition completely up to date. He explores the moral position behind capitalism and discusses why former communist countries flirting with decentralization and a free market (for instance, China, Cambodia, Vietnam, and Laos) have become more progressive and prosperous as a result. He contrasts the benefits of a free, deregulated economy with the dangers of over-regulation and moves towards socialized welfare?most specifically as happened during Franklin Roosevelt's presidency. Supporting his thesis with historical court cases, Siegan discusses the past and present status of economic liberties under the Constitution, clarifies constitutional interpretation and due process, and suggests ways of safeguarding economic liberties. About the original edition, Doug Bandow of Reason noted, "Siegan has written a vitally important book that is sure to ignite an impassioned legal and philosophical debate. The reason?the necessity?for protecting economic liberty is no less than that guaranteeing political and civil liberty." Joseph Sobran of the National Review wrote, "Siegan...makes a powerful general case for economic liberty, on both historical and more strictly empirical grounds.... Siegan has done a brilliant piece of work, not only where it was badly needed, but where the need had hardly been recognized until he addressed it." And Edwin Meese remarked that, "This timely and important book shows how far we have drifted from protecting basic liberties that the Framers of the Constitution sought to secure. I recommend it highly." This new, completely revised edition of Economic Liberties and the Constitution will be essential reading for students of economics, history, public policy, law, and political science.
With the appointment of William H. Rehnquist as Chief Justice of the United States and Antonin Scalia as associate justice, there is renewed interest in questions of judicial activism and the role of the courts in protecting personal and economic liberties. To further public discussion of these fundamental questions, the Cato Institute is pleased to present this debate between Judge Scalia and Richard A.Epstein, James Parker Hall Professor of Law at the University of Chicago and editor of the Journal of Legal Studies. These papers were originally delivered at the Cato Institute's conference "Economic Liberties and the Judiciary" on October 26,1984, and appeared in the Winter 1985 issue of the Cato Journal.
Judicial activism is condemned by both right and left, for good reason: lawless courts are a threat to republican government. But challenging conventional wisdom, constitutional litigator Clint Bolick argues in David’s Hammer that far worse is a judiciary that allows the other branches of government to run roughshod over precious liberties. For better or for worse, only a vigorous judiciary can enforce the limits on executive and legislative action, protect constitutional rights, and tame unelected bureaucrats. That, Bolick demonstrates, is exactly the role the framers intended the courts to play, envisioning a judiciary deferential to proper democratic governance but bold in defense of freedom. But the historical record is painfully uneven. During the Warren era, courts protected freedom of speech and equal protection of the law but denigrated other important rights and took on executive and legislative powers that brought disrepute to the judiciary. The Rehnquist Court restored some balance, reining in judicial excesses and protecting property rights, but stopped far short of the activist judicial role the framers charted for the courts in policing conduct of other branches of government that exceeds constitutional boundaries. Bolick showcases numerous real-world examples of people whose rights to free speech, economic liberty, equal protection of the law, and private property were violated by government—victims of government oppression whose only recourse is the courts. David’s Hammer reclaims for the judiciary its intended role as the ultimate safeguard of a free society.
Nobel Laureate James Buchanan questions how people can live together in peace, prosperity, and justice
Law and economics can be considered as the most exciting development in legal scholarship in recent decades. This volume is the first all-encompassing bibliography in this area. It lists approximately 7000 publications, covering the whole area of law and economics, including `old' law and economics (topics such as antitrust law, labor law, tax law, social security, economic regulation, etc.) as well as `new' law and economics with such topics as tort law, contract law, family law, procedure, criminal law, etc.). The volume also includes the literature on the philosophical foundations and the fundamental concepts of the approach. Part Two gives a special survey of law and economics publications in Europe, written in other languages than English. The Bibliography of Law and Economics is an invaluable reference work for students, scholars, lawyers, economists and other people interested in this field.

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