Book Reviews Schmidtchen and Robert Cooter (eds ). Constitutional Law and Economics of the European Union . Cheltenham, UK; Lyme, US: Edward Elgar. 1997. Pp. 303. Does economic analysis of constitutional norms add new insights to our understanding of Community constitutional and institutional phenomena? The authors of Constitutional Law and Economics of the European Union answer in the affirmative. To illustrate this, they apply economic analysis to a range of issues (such as Community decision-making, comitology, the balance of power, federalism, judicial discretion, the principle of subsidiarity, competition among rules, enlargement, unanimity), analysis of which is organized round three themes: decision-making, federal structures, and institutional change. But does it? Taking a closer look at the different contributions in the book, it gives a rather sceptical impression of the in-built virtues of the economic approach to constitutional law, at least as developed by the authors of this volume. Why conclude with a sceptical tone? I shall give a number of examples, which are by no means the exception but serve to illustrate the rule. The second essay in the first part examines the issue of comitology from the perspective of game theory. The terse elegance of the model is definitively not matched by the relevance of the conclusions, which reflect but a truism. According to the authors, "our main findings are that - aside from the advisory committee procedure that does not restrict the Commission in the slightest way - the management procedure restricts the Commission the least" (at 55). This would be a big discovery - only if it did not stem from the simple reading of the so-called 1987 "comitology" decision. More examples are found in the first essay of the second part. The main argument of the paper is, if not new, still interesting, since it seeks to place the emphasis on the connection between "majoritarianism" and the Community's social legitimacy deficit. But the conclusions are profoundly spurious. It is one thing to argue that "majoritarianism" could be the cause of many present and future malaises of the Community (the idea has been developed, with special sharpness, by authors such as Dehousse), and a very different thing to conclude that the present decline of popular adherence to the European project in the founding Member States is due to a rise in the Community's majoritarian features, without providing the flesh of empirical support for this conclusion, but simply the bones of an - again, elegant - economic model. The second essay in the second part of the book develops the thesis that judicial discretion is a function of what the authors call "legislative resistance". The argument is well encapsulated in the following formula: "Courts will be more adventurous in interpreting statutes when the probability decreases of legislative repeal of their decisions" (at 109). After a series of comparative analyses of different judicial systems and legal areas, the authors conclude that their assumption holds true in a high number of cases. Turning to the Community context, the authors then predict that due to the increase of "legislative resistance" after the Maastricht Treaty, in terms of more powers for the European Parliament, judicial discretion (understood as legal innovation and judicial activism) "should expand" (at 125). Of course, it is still too soon to have the whole picture of the Communities' Court reaction to the new institutional environment established with Maastricht. But it is probably not too adventurous to say that the emergent pattern after Maastricht has more to do with caution and self-restraint on the part of the ECJ than with judicial activism, as some leading post-Maastricht cases seem to demonstrate (think, for example, of the case-law that N. Reich called the "November revolution", not reflective of a particularly "activist" posture). In other words, the conclusions of the authors seem to be contradicted by reality. And we could go on. In my view, the main shortcomings of Constitutional Law and Economics of the European Union are twofold: firstly, it is not an economic analysis of law, as the title of the book seems to imply, but an economic analysis about law. The legal dimension is almost absent in all the contributions, except in the final paper by Everling, which expounds a lawyer's view of some of the issues dealt with in the book. And secondly, the analysis is extremely formal in character. Economic models are an elegant way to conceptualize reality but, if not rooted in solid empirical research, the outcome risks being but the modelization of conventional wisdom. Antonio Estella de Noriega Universidad Carlos III de Madrid
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