Title: The Implementation of Constitutional Rights: Insights from Law and Economics
Abstract: The study of Law and Economics focuses most often on issues of efficiency and growth. The economic approach made major contributions, for example, in the areas of regulation, liability, and contract. But an economic approach to the study of courts and law can also shed light on an area that is seldom investigated by traditional legal scholars: the implementation of judicial decisions. In this essay I demonstrate the relevance of the economic approach to the implementation of constitutional rights. In particular, I show that the economic analysis of law is central to understanding the efficacy of judicial decisions supportive of the interests of relatively powerless groups within society.' Supreme Court decisions are not self-implementing. As Alexander Hamilton pointed out long ago in The Federalist Papers, courts are particularly dependent on the actions of others. Hamilton argued in Federalist 78 that the judiciary has no influence over either the sword or the purse . . . and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.2 Without external support-from the other branches of government or directly from the citizenry-Court decisions announcing constitutional rights are unlikely to affect or change people's lives in important ways. In contrast to traditional legal analysis, the tools of economic analysis can help explain how Court-mandated constitutional rights of relatively powerless groups are actually implemented. In particular, economic analysis suggests that implementation is more likely to occur if at least one of three conditions is present: