New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

RESEARCH HANDBOOK ON LAW AND PUBLIC CHOICE, Daniel A. Farber and Anne Joseph O'Connell, eds., Edward Elgar Publishing, Forthcoming

Abstract

As the law governing the political arena transitioned from first-order participation concerns to the integrity of the democratic process itself, legal scholarship looked in part to political science and public choice theory for guidance in structuring the oversight of the political process. This chapter provides a survey of the developments in the public choice literature on electoral processes and describes how those insights have been incorporated into the law of democracy. After providing a brief review of the public choice literature in this area as background, this chapter traces the emergence of a distinct approach in law, one drawing more from Joseph Schumpeter and public choice models of political competition, than from classic constructs of equal protection. The issues of campaign finance, gerrymandering, and the role of political parties provide case studies in how legal scholarship has adopted institutional approaches to politics. Finally, emerging areas in this field of law are described, particularly as concerns the institutional dimensions of the political process. This chapter will be included in an edited volume on Public Choice and Public Law, edited by Dan Farber and Anne Joseph O'Connell and published by Edward Elgar.

Date of Authorship for this Version

April 2009