Volume 2013, No. 2

Symposium Issue — Thirty Years of Comparative Institutional Analysis: A Celebration of Neil Komesar

The Logic of the Law and the Essence of Economics: Reflections on Forty Years in the Wilderness

Neil Komesar

In this Article, I explore the role of comparative institutional analysis in understanding and reforming both legal analysis and economic analysis. Like many others, I have been searching for the Rosetta stone of legal analysis—a means to decipher what law is about. In that quest, I have used economic analysis to produce an approach to legal analysis called comparative institutional analysis. In the process, however, I have also found myself searching for the core of economic analysis—especially the economic analysis of law and public policy. I have sought to differentiate the aspects of economics that are essential and those that just get in the way.

Judicial Capacity and the Conditional Spending Paradox

Andrew B. Coan

This Article examines the spending power and anti-commandeering principle through the lens of the author’s judicial capacity model of Supreme Court decision making. Taking the Court’s recent decision in NFIB v. Sebelius as a jumping-off point, this examination yields three important payoffs.

First, it helps to explain the Court’s historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle—a view the Article dubs the “conditional spending paradox.” Third, it offers a rigorous theoretical basis for predicting that NFIB’s spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.

The Varieties of Comparative Institutional Analysis

Daniel H. Cole

“Comparative institutional analysis” (CIA) often is treated as a singular approach to diagnosing and potentially resolving social cost problems (or social dilemmas). In fact, the label represents a family of related but importantly different approaches, based on the different conceptions of “institutions,” as well as different processes or functions individual scholars are attempting to describe and explain.

This contribution to a Festshcrift honoring Neil Komesar, the legal scholar most commonly associated with the CIA methodology, begins by highlighting a myriad of definitions of the word “institution,” offers a functional account of alternative definitions of that term, and attempts to demonstrate the utility of alternative approaches to CIA by comparing and contrasting the substantially different, but equally effective, ways it has been employed in the works of Komesar and Elinor Ostrom. The comparison yields a possible approach to reconciling Komesar’s treatment of institutions with that of Ostrom’s fellow Nobel Laureate, Douglass North.

Expanding Chevron’s Domain: A Comparative Institutional Analysis of the Relative Competence of Courts and Agencies to Interpret Statutes

William N. Eskridge, Jr.

Applying Professor Neil Komesar’s comparative institutional analysis, this Article sets out the case for according agencies primacy over courts in statutory interpretation; under the Article’s analysis, courts would retain an important, albeit secondary role. The implications of this analysis are significant. The Supreme Court’s Chevron doctrine says that federal judges should defer to agency interpretations of statutes when Congress has delegated those agencies lawmaking authority. The comparative institutional analysis here suggests that Chevron’s “domain” should be expanded to include all interpretations promulgated by an agency’s governing board or director.

Komesar’s Razor: Comparative Institutional Analysis in a World of Networks

Shubha Ghosh

This contribution to the Symposium in honor of Professor Neil Komesar’s pathbreaking work on comparative institutional analysis addresses one question: what is the relevance of comparative institutional analysis to a world based on networks of individuals often operating across institutions or working to create new institutions?

After a review of the context for Komesar’s work and an appreciation of “Komesar’s Razor,” the author addresses this key question in the context of three contemporary debates: international intellectual property reform, same-sex marriage, and reform of health care delivery and finance in the United States. The main conclusion is that Komesar’s work provides an important starting point for addressing
institutions in a world of networks.

Law’s Limits: Regulating Statutory Rape Law

Michele Goodwin

This Article examines statutory rape cases of the last decade and submits that both the apparatus to police sexual violence against minors— statutory rape laws—as well as their application against consenting minors create legally untenable, absurd results that frequently impose legal and extralegal burdens on minors that may exceed that of adult, convicted rapists.

No coherent framework has been offered by a politician that responds pragmatically to the empirical realities of adolescent sexuality. Neither federal nor state legislatures offer a coherent, well-articulated approach to militate against the harshest criminal punishments demanded by statutory rape provisions. Indeed, judges interpret and enforce statutory rape cases in a manner that entrenches stereotypes and biases. On the other hand, few scholars wrestle with the broader contemporary applications of statutory rape law despite recent decades of absurd results and disproportionately harsh penalties against teens.

Several concerns frame this Article: (1) the advent of extralegal punishments imposed on minors convicted of fornicating with minors, such as mandatory sex offender registration requirements; (2) the strict liability enforcement approach to such cases, which leaves room only for technical assessments (Did sex occur or not?) rather than critical, nuanced evaluation (Did the minors consent? Was there maturity and capacity to consent? Would the punishment imposed by the legislature lead to an absurd result or unjust outcome?); (3) the muddling and conflation of teen consensual intimacy with rape; (4) the collective failure of legislative, prosecutorial, and judicial branches of government to take account of the robust empirical literature that provides a different account of teen sexuality norms; (5) the failure to account for perverse social outcomes; and (6) the production of disparate criminal law norms that relate to race, class, and gender, produced by judges and other legal actors, such as police and prosecutors. The Article offers two novel ways forward to address teen sex and statutory rape.

In Search of a Meaning and Not in Search of the Meaning: Judicial Review and the Constitution in Times of Pluralism

Miguel Poiares Maduro

This Article revisits the traditional debate on the role of courts in relation to the constitution. It highlights how this debate often ignores the nature of constitutionalism itself. It is argued that, first, traditional theories of judicial review fail to fully recognize and engage with the pluralist character of constitutionalism and, second, that constitutionalism is incompatible with the single institutional preferences expressed by those different theories of judicial review.

This argument is linked to a conception of constitutionalism that does not limit its role to taming politics and entrenching certain values so as to protect them from ordinary politics. Instead, constitutionalism is also about making politics possible and productive. This conception of constitutionalism has important consequences for the role of courts and the nature of constitutional interpretation. Constitutions are more about framing the search for meaning in a political community than the revelation of a meaning that has been previously set into constitutional rules. The Article concludes by putting forward a model of discursive interpretation that, it is argued, better fits the role to be played by courts in light of the current nature of constitutionalism.

Some Observations of Comparative Institutional Analysis in Action

Paul Olszowka

Legal practitioners should value comparative institutional analysis. This Article discusses two recurring issues in modern commercial litigation and how understanding the features of the adjudicative process can help shape legal arguments relating to those issues. The Article also describes how a comparative institutional perspective can aid practitioners in communicating with clients, opponents, and decision makers.

The Illusion of Property as a Right and Its Reality as an Imperfect Alternative

Edward L. Rubin

The Fifth Amendment provision that the government cannot take someone’s property without providing compensation is often regarded as flowing from the principle that property is a human right or a natural right. Yet regulatory programs commonly reduce the value of people’s property, and neither the courts nor society in general regards compensation as appropriate in this context. Neil Komesar’s Imperfect Alternatives provides an explanation for this apparent conundrum. He shows us that the market is one of the imperfect alternatives that we can choose to achieve our political or social purposes. Property, more specifically transferable property, is simply the device that is necessary to establish a market and thus make use of this alternative. Thus, it is not a right, but a social instrumentality.

A review of Western history from its earliest times reveals that property has always been regarded as nothing more than an instrumentality, originally as a means of local governance and material maintenance, and more recently as a means of creating markets and increasing wealth in the manner that Komesar’s theory suggests. The natural rights approach to property was a rhetorical argument employed for a relatively brief time. It was clearly not incorporated in the United States Constitution. The just compensation clause is not derived from the idea of property as a right but from our commitment to due process. It protects individuals from being treated unfairly by government. If government wants to take someone’s property as punishment, it must do so through a fair adjudication; if it wants to do so for a public purpose, it must provide compensation. But if government takes property by general legislation that affects a group with access to the political process, it does not need to provide either an adjudication or compensation. That is because, as Komesar’s analysis illuminates, property is not a right; it is an instrumentality fully subject to governmental control.

Comparative Institutional Analysis and a New Legal Realism

Gregory Shaffer

If there are hedgehogs and foxes in scholarship, as Isaiah Berlin opined, then Neil Komesar is surely a hedgehog. He has developed a powerful analytic framework called comparative institutional analysis that has been of immense value to many foxes. Komesar’s work has had a huge impact across subject areas, as reflected in this Symposium, from torts to property, from environmental to constitutional law, from regional governance in the European Union (EU) to global trade governance in the World Trade Organization (WTO).

My core claim in this Article is that comparative institutional analysis is empty without a new legal realist assessment of how real-life institutions operate in particular contexts, and that new legal realism is ofno practical use without an analytic framework in which to translate and organize its findings for purposes of real-life decision making. Komesar’s participation-centered comparative institutional analytic framework, I contend, is critical for a new legal realist scholarly agenda that aims to inform institutional choices. Comparative institutional analysis and new legal realism are complementary components of any policy-relevant analysis of law.

Institutional Choice in an Economic Crisis

David A. Skeel, Jr.

With the publication of his classic book Imperfect Alternatives1 two decades ago, and even earlier in the articles that preceded it, Neil Komesar identified a ubiquitous weakness in debates over whether a particular issue is best handled by courts, markets, or legislation. Scholars nearly always considered the institutions in isolation, engaging in what Komesar called “single institution” analysis.2 Focusing on the capabilities of a single institution can be deeply misleading. Even if courts are not well positioned to resolve some kinds of issues, such as product market flaws that cause relatively small harms to many victims, they may be more effective than markets or legislatures. Similarly, issues that play to courts’ strengths might be handled even better by other institutions.

My aim in this Article is to advance, at least in a small way, our understanding of institutional choice during and after an economic crisis. Part I very briefly revisits the recent crisis, emphasizing its institutional dimensions. Part II identifies three puzzles posed by a crisis for standard Komesarian analysis. Part III then shows how Posner and Vermeule’s executive-centered theory partially but not completely addresses these puzzles. Part IV offers an expanded institutional analysis of a crisis. In addition to exploring the endogenous interactions between the executive branch and Congress, this Part also argues the courts’ choice set isbroader and more significant than is sometimes recognized. Even if courts accede to the executive’s wishes, as they did in the most recent crisis, the way a court characterizes its ruling can have a significant effect on the subsequent development of the law.

Finding the Best of the Imperfect Alternatives for Privacy, Health IT, and Cybersecurity

Peter Swire

Neil Komesar’s book Imperfect Alternatives is an excellent guide to those perplexed by information policy issues, namely health privacy, electronic health records (EHRs), Internet privacy, and cybersecurity. This Article begins by applauding Komesar’s insistence, all too rare in political debates, that there are significant market failures and government failures. It then builds on Komesar’s approach to assess the Health Insurance Portability and Accountability Act (HIPAA) medical privacy rule, the 2009 support for EHRs in the stimulus law, the current Internet privacy debates, and the ongoing debates about whether federal legislation is needed for cybersecurity.

First, the HIPAA privacy rule illustrates how one approach may be the best available, even with its known flaws. Despite plenty of warts as HIPAA went into effect, my judgment a dozen years later is that it was appropriate to create national health privacy standards by regulation.

Second, the apparent success of the 2009 health IT funding illustrates how government action can overcome market failures caused by the difficulty and cost of coordinating among numerous actors. The stimulus bill provided $19 billion as incentives for providers to shift to electronic clinical records. My judgment is that the financial incentives and meaningful use standards have kickstarted a major new round of adoption of EHRs.

Third, the Internet privacy discussion shows serious enough flaws in the market/self-regulatory approach to make legislation appear preferable. For the initial phase of the Internet, through the late 1990s, I believe the best choice quite possibly was the position taken by President Bill Clinton’s administration. The policy was to encourage industry self-regulation, backed up by Federal Trade Commission enforcement if industry fell short of its promises. Today, however, there is now an infrastructure to write, enforce, and comply with baseline privacy rules for the Internet.

Fourth, the cybersecurity discussion reminds us that government failures may outweigh market failures even where some market failures are apparent. The pessimistic conclusion that legislation cannot cause any real increase in security leaves me, at this time, without a convincing strategy for improving cybersecurity on the Internet.

Finally, the discussion of adjudication shows that courts are unlikely to be the appropriate institution for many issues of privacy, security, or health information technology. Courts are relatively good at adjudicating whether a specific violation has occurred in the past; they are much less effective at guiding the design of complex technological systems that evolve rapidly.

The Participation-Centered Model Meets Administrative Process

Wendy Wagner

In this Article, I use Neil Komesar’s participation-centered model as a tool for gaining new insights into the balance and vigor of pluralistic participation in administrative process. This preliminary investigation exposes a number of ways in which well-meaning administrative process requirements may actually impede, rather than encourage, engagement from a broad spectrum of affected participants. Legal processes that depend on robust engagement from affected groups require rigorous analysis to ensure that they are in working order. Komesar’s model provides the type of exploratory tool needed to understand whether these processes are in fact doing what they promise and to troubleshoot how they might go wrong.