Constitutional Process: A Social Choice Analysis of Supreme Court Decisionmaking. (book review)

Michigan Law Review, May, 2002 by George, Tracey E.; Pushaw, Robert J., Jr.

CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISIONMAKING. By Maxwell L. Stearns. Ann Arbor: University of Michigan Press. 2000. Pp. ix, 420. $65.

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." (1) This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production.

Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all...

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