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COMMENT
JAMES M. BUCHANAN
Virginia Polytechnic Institute & State University
903
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904
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COMMENT
905
the basic paradigm might be modified. Many actions of the courts, and
especially of the last quarter century, are not consistent with the role for the
judiciary in the Landes-Posner model. But as and if we observe judges
increasingly trying to promote their own private versions of "public good"
should we modify our paradigm? Descriptively, scientifically, we must do
so. But we may still hold fast to a normative description of the judicial role,
to a paradigm that is consistent with "democratic values" in a more inclusive
sense. The demonstration of this consistency is, itself, a part of positive
analysis. But it is also normative argument, and, as such, valuable in the
ongoing discussion of public philosophy. Through such analyses as that of
Landes and Posner, we may explain why the public and the elected politicians should want a politically independent and ethically-neutral judiciary,
but we must also allow for the possibility that the judiciary which we observe has strayed beyond rationally-desired limits.
I have found it useful to think of the basic rules, of the law, as public
capital.2 This economic dimension makes us think about the quasipermanent nature of law, about a whole sequence of periods in which income is yielded, about the necessity for maintaining the stock in order to
maintain the income yield, about the dangers of allowing the stock to depreciate or to erode. The Landes-Posner role for the judiciary can be readily
discussed within this metaphor. But the modern political science or Warren
Court model of a judiciary which they criticize cannot, by any stretch of the
imagination, be made consistent with a "public capital" conception of law.
Economists may be easily convinced. But this is not the problem. The
Warren Court attitude informs far too many of our legal scholars, our
lawyers, and our judges. We must, I fear, experience still further erosion in
the public capital stock that our basic law represents before the reeducation
process (which may only now be in its beginning stages) can have an appreciable effect.
2
See James M. Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (1975).
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