This Article argues, using the case of responses to traffic congestion, that public choice theory provides a greater explanation for the emergence of property rights than does economic efficiency. The traditional solution to traffic congestion is to provide new roadway capacity, but that is not an efficient response in that it does not lead to internalization of costs and may actually exacerbate congestion problems by inducing travel that would not have taken place but for the new construction. By contrast, congestion charges, which impose tolls designed to internalize the costs of driving, offer an efficient way to address the problem of congestion. Nonetheless, the continued popularity of providing new roadway capacity turns upon public choice theory. New roadway construction is attractive for politicians as a way to satisfy both constituents generally, and well-organized and powerful interest groups in particular. Although congestion charging regimes tend to be less popular across the board politically, there appears currently to be a shift in position. This Article argues that it is possible for concerns of efficiency to override (or at least to curtail) politics when the inefficiencies of a response grounded in political economy become too large. But at the same time, public choice theory continues to hold considerable sway—the shift toward congestion pricing may require not only pressing efficiency concerns, but also a shift in the political climate.
Jonathan R. Nash, Economic Efficiency Versus Public Choice: The case of Property Rights in Road Traffic Management, 49 B.C.L. Rev. 673 (2008), http://lawdigitalcommons.bc.edu/bclr/vol49/iss3/2