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The Invisibility Factor: The Limits of Public Choice Theory and Public Institutions

Publication Title

Washington University Law Quarterly

Abstract

Public choice theory, which seeks to apply economic analysis to the political process, is "one of the dominant themes in contemporary legal scholarship." Public choice is not simply a scholarly theory, but is also used frequently in judicial decisionmaking. Therefore, the theory must be carefully examined to expose its flaws. This Article's thesis is that because public choice theory underestimates the ability of the majority to influence the political process, it is of limited use as a predictive tool. More specifically, this Article suggests that in certain circumstances, public choice theory incorrectly predicts whether a special interest group can successfully pass its legislation. This Article examines this thesis in the context of state education funding reform and shows that public choice theory would have incorrectly predicted some recent legislative responses in that area.

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