Rules, Dispute Resolution, and Judicial Behavior

Abstract

Georg Vanberg is the first to elaborate a formal model of legislation in the shadow of constitutional adjudication. Vanberg's contribution to the study of constitutional politics - by which I mean the relationship between legislators (governments and members of parliaments) and constitutional judges (members of constitutional courts) in the making of public policy and the construction of constitutional law - is potentially seminal of a new wave of research. Vanberg's piece can also be profitably read by many who do not work primarily in the rational choice-institutionalist, or game-theoretic, tradition. He focuses not only on the crucial, policymaking core of constitutional politics, but has largely (if not quite enough) resisted temptations to narrow the domain of inquiry to facilitate the task of model-building. In the first two sections, I shall discuss constitutional politics as legislative bargaining, and argue that Vanberg's model of these politics is misspecified at key points. Although I reference the results of prior research in this area, and bring to bear certain empirical findings, I do so within the confines of Vanberg's own preferred epistemology. Thus, I accept that: (1) all actors behave rationally, in the sense that they select strategies designed to maximize their relative payoffs given the institutional constraints they confront; (2) at any given point in time, these institutional constraints, or the rules of the 'constitutional politics game', are fixed; and (3) the underlying preferences of all actors are exogenously constituted, and are therefore also taken as given. In the following section, I shall focus on some of the consequences of the fact that game-theoretic approaches, at least at their present stage of development, are incapable of dealing with the single most important feature of constitutional politics, namely, the continuous adaptation of the rules of the game by constitutional adjudication.