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Prof. Jerry Mashaw receives Order of the Coif Award

Jerry L. Mashaw, Sterling Professor of Law at YLS, was presented with the Order of the Coif Book Award, which recognizes a book of the "highest order of legal scholarship" published during a three-year period, at the annual AALS meeting in January. Mashaw was recognized for his book Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (Yale University Press, 1997).

Alison Grey Anderson, a professor of law at UCLA, who presented the award on behalf of a selection committee, described Mashaw's work as "thoughtful and elegantly written."

Mashaw characterizes the contents of his award-winning work as "basically a middle of the road book." The terrain he is describing is one of ideas, where theories about law and government constitute the important features.

The task Mashaw set for himself in Greed, Chaos, and Governance was to navigate between two opposing ideological camps that have developed over the last thirty years. Utilizing the observations and methods of economics, one camp argues that they can explain what happens in public organizations by understanding how individuals pursue their own gain. Mashaw calls this "public choice theory," though it exists under other names, such as "rational choice" and "social choice." Other scholars take issue with the assumptions of this approach, and argue that it is "not only inaccurate but harmful," according to Mashaw. This second camp fears that public choice theory tends to promote disdain and cynicism toward public institutions.

As long as this debate has been going on, Mashaw has been observing and thinking about it. He says that he "first started puzzling about this in the early '70s," when he was a founding member of Pegasus, a public choice study group based at the University of Virginia and Virginia Polytechnic Institute. In the intervening years, he published eight books and dozens of articles, many on unrelated topics, before finally setting his ideas about public choice to paper in the late '90s.

In his decades of cogitation, Mashaw applied the theories of the public choice school to a wide variety of institutions, from judicial review to federal bureaucracies, arguing that they should be sifted and evaluated through experimentation. He tested how well they explain what happens in public institutions and tries to glean insights for improvement from the movement. Although Mashaw is not wholly committed to the approach, he says, "There are some things we can learn from public choice theory."

Mashaw came to think that the game theoretic aspects of public choice were its most useful part, particularly when applied to situations where people are already in an antagonistic relationship--such as in litigation. However, he found public choice less helpful in explaining a process like the creation and interpretation of legislation. He writes that public choice provides "no normative foundation upon which to assess the appropriateness of those actions."

Underlying Mashaw's analysis of public choice is his sense of the importance of grasping the theories that shape our understanding of the law. He writes in his opening chapter that "Our vision of what is guides our approach to what ought to be." In other words, the methods of public choice theory play a role in how Americans form a vision of the possibilities of their public institutions.

This entire scenario seems to fit the magnum opus paradigm--a scholarly work decades in the making, leading to a major national award--but Mashaw demurs from this interpretation. "When I finish a book, I'm immediately on to the next project," he says. This means that when he revisits a previous work, he's "often surprised by what I find in it." It was the same with Greed, Chaos, and Governance. And the Order of the Coif Award, when he was notified of it, seemed to come "out of the blue.

Although Mashaw may have nearly forgotten about his book, others clearly remembered it. Anderson concluded her award presentation with the advice: "Whether you are an expert or novice in the area of public choice, if you would like to be educated, charmed, and provoked, read this book."

Related Link:
Yale University Press's Description of Greed Chaos and Governance