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The most interesting issues of public law (for us) are those relating to institutional design and function. When thinking about statutory interpretation, judicial review, and legislative and administrative procedures, it is useful to have a theory about how the governmental system works in our regulatory state, how it breaks down, and how it leads to decisions that do not serve the public interest. Hence, theories of regulatory pathology are useful. Within the academy, public choice theory has been particularly popular: selfish interest groups and public officials highjack the governmental process for their private gain, thereby undermining the public interest in efficient rules and distributions. The main regulatory pathology for public choice theory is rent-seeking, the private plunder of the public fisc. Republican theory offers a less cynical point of view. It maintains that politics is the forum where collective problems are resolved and values are advanced. The main regulatory pathology for republican theory is breakdowns in the deliberative process.
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