THE STRATEGIC CONSTITUTION by Robert D. Cooter. Princeton: Princeton University Press, 2000. 412 pp. Cloth $45.00. ISBN 0-691-05864-4.

Reviewed by Georg Vanberg, Department of Political Science, Florida State University.

Robert Cooter's primary aim in writing THE STRATEGIC CONSTITUTION is to demonstrate that the application of simple, intuitive economic arguments to questions of constitutional law can yield insights that are potentially important in deciding issues of constitutional design and interpretation. Intended primarily as a textbook, the book yields few novel insights in providing this perspective. Instead, Cooter focuses on summarizing and integrating an extensive inter-disciplinary literature in law and economics (and, to a lesser extent, political science). On the whole, this book can be employed profitably in advanced undergraduate or first-year law school classes in law and economics or constitutional law. However, the book also has weaknesses, which I highlight below.

Economic analysis rests on the assumption that individuals, given their preferences, will respond optimally to a set of constraints and incentives facing them. Because different institutional arrangements create different sets of constraints and incentives for citizens and policy-makers, they can lead to different patterns of behavior. In applying this approach to constitutional law, Cooter sets out to show that different constitutional arrangements produce different consequences for how politics "works." For example, he concludes that courts have more discretionary power in a bicameral system than in a unicameral system because overriding a judicial decision requires the cooperation of two chambers in the former but not the latter (p. 228 ff.). Throughout, Cooter stresses that by characterizing the consequences of different constitutional rules, the analysis allows for an informed choice over constitutional arrangements. In this sense, the word "strategic" in the title can be understood in at least two ways. First, the constitution is strategic in inducing strategic responses by citizens and policy-makers. Second, in light of these responses, constitution-writers can strategically choose institutions to bring about desired consequences.

One achievement of the book is that it consistently conveys this crucial insight while discussing a wide range of important issues, including legislative bargaining, federalism, the separation of powers, and citizen rights. Another advantage is that the analysis is limited to a level of complexity that advanced undergraduate students with some proficiency in microeconomics should be able to master. Most of the arguments are illustrated using graphs and straightforward numerical examples. In addition, each section is followed by a list of questions designed to reinforce the material and to encourage students to think about the insights in a critical manner. For anyone looking for a textbook that provides a systematic introduction to the economic analysis of constitutional law in an

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accessible manner while covering a wide range of topics, it would probably be hard to find a more suitable book.

Ironically, this strength of the book is also one of its weaknesses. In maintaining accessibility, Cooter sometimes oversimplifies and suppresses more subtle aspects of the analysis. On occasion, this leads him to overstate the power of particular explanations or insights. Although it may appear unfair to pick on a particular section in a 400-page book, an example that is typical is useful to illustrate what I mean. After discussing the generic emptiness of the core under majority rule in multiple dimensions, Cooter applies the same logic to coalition government.

"Coalition governments in some countries are notoriously unstable.. Bargaining theory helps explain the instability. Earlier in this chapter I explained that a game of redistribution under majority rule with symmetrical voters has an empty core. Similarly, a game of coalition government with symmetrical parties has an empty core. An empty core causes instability" (pp. 75-76).

The trouble with this argument is that its logic applies to almost ANY situation of bargaining among multiple parties. But coalitions are not unstable in ALL multi-party situations. Some countries enjoy highly stable coalition governments while others are less stable. As a result, the generic emptiness of the core cannot be at the root of explaining coalition (in)stability. Other institutional factors that have been examined by political scientists (some of whom working in the paradigm favored by Cooter) are crucial. In trying to apply the analysis in straightforward ways like this, Cooter often oversimplifies issues that deserve closer scrutiny.

Another accomplishment of the book is that it draws on a daunting interdisciplinary literature, making use of work in economics, law and, to a lesser extent, political science. In surveying such a large body of work, it is obviously impossible to include all relevant research. Nevertheless, even with this caveat in mind, important works that are central to the issues of concern to Cooter are conspicuously absent from the book. For example, Cooter employs a contractarian perspective in discussing constitutions, likening the process of writing a constitution to bargaining over a contract (p. 273). Recently, important new approaches within the rational-choice tradition have begun to question this contract analogy, and have instead proposed that constitutions should be viewed as coordination devices rather than as solutions to a Prisoner's Dilemma problem (for example, see work by Randy Calvert, Russell Hardin, and Barry Weingast). Since viewing constitutions in this light has important consequences for thinking about a variety of issues (notably constitutional stability), discussion of these arguments would have been a valuable addition. Similarly, in discussing electoral law, Cooter largely ignores a substantial political science literature. For example, one section examines the impact of district magnitude on the party system, and ends like this: "I conclude that a reduction in district magnitude tends to reduce the number of parties" (p. 181). No mention is made of Gary Cox's excellent and widely acclaimed 1997 book MAKING VOTES COUNT, whose core contribution is to establish the connection between district magnitude and party systems (what Cox terms the "M+1 rule"). In short, in

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focusing on the literature in economics and law, Cooter pays less attention to contributions in political science that are at the heart of his concerns and which would have merited inclusion.

Although the focus of the book is largely on familiarizing students with a theoretical approach, Cooter does not underestimate the importance of empirical work. At the outset, he declares explicitly that empirical testing is a crucial component of successful analysis,

"Unlike explicating the meaning, history, and philosophy of texts, scientific proofs require data. Relatively few social scientists do empirical research on constitutional law, however, and the legal issues mutate quickly. When theories and events outrun data, arguments fall short of the standards of proof desired in social science. .Lawmakers would do better to use imperfect empirical analysis than perfect nonempirical analysis. It is better to cut bread with a dull knife than a perfect spoon. By using available data to make predictions about constitutions, I cannot offer conclusive proofs, but I can improve the quality of argument" (p. 5).

Throughout the book, Cooter makes an effort to meet this standard by linking his analysis with particular "real world" examples, drawing largely on the US experience. Many students are likely to find these examples engaging and illustrative. However, in the end, I think the effort to provide an empirical component to the argument largely fails. Most of the evidence that Cooter presents is anecdotal and not systematic (ironic in light of the fact that he pokes fun at anecdotal evidence early in the book on page 5). Sometimes, the "facts" that are presented are simply wrong (such as the claim on page 234 that "most European countries have no judicial review.") Most importantly, however, little effort is made to engage the "evidence" in a serious way and much of it is presented in passing without sufficient comment. This is particularly troubling when the cited evidence seems to contradict expectations. For example, on page 220, Cooter cites experimental results in bargaining games that seem to contradict expectations rooted in game-theoretic models. Instead of discussing the issues raised by contrary evidence, he simply concludes that "Insofar as these experiments with college students apply to career politicians, the economic models require modification.".

To conclude, THE STRATEGIC CONSTITUTION is an ambitious attempt to provide a textbook that covers a wide-range of topics raised by the application of the economic way of thinking to constitutional issues. Largely, this effort is successful. Cooter has written a book that will encourage students to think about constitutional issues from a new perspective in an engaging way. I would recommend it to anyone teaching an undergraduate class in law and economics. Nevertheless, while recognizing this accomplishment, it is important to note that the book also has several shortcomings, some of which are the direct result of sacrificing precision and depth in the analysis for the sake of maintaining accessibility.