Comparative institutional analysis and NLR

How do we move from detailed empirical research on law to address broader questions about how law operates? Our blog and website this month feature scholarly attempts to join empirical legal research with comparative institutional analysis…

Greg Shaffer, a new legal realist scholar, argues that comparative institutional analysis provides a broader framework for integrating what we learn from on-the-ground studies of law into a sophisticated (and differentiated) big picture of how law operates. Shaffer points to the work of Neil Komesar in particular, as someone who has developed comparative institutional analyses of law. In an earlier post, we also featured the work of Nobel Laureate Elinor Ostrum, whose work speaks to similar issues.

On the NLR webpage, you can find a bibliography of additional work on this subject, as well as links to conference presentations and Shaffer’s new working paper. Here is a brief sample of Shaffer’s argument:

“Komesar’s comparative institutional analysis places law and law’s contingencies front and center, and differs in this way from the generalized treatment of law in much of the social sciences. In terms of debates within the legal academy, he addresses law not from a formal perspective, but from that of the law-in‐action, and in particular the way in which social decision‐making processes shape law’s meaning and effects. In sum, his approach does not reduce law — whether in terms of legal formalism or of the “rules of the game” — but openly acknowledges the contingencies of law and legal interpretation that need to be pragmatically assessed by anyone interested in law’s effects in particular contexts.

Komesar’s approach also differs from new institutional economics in terms of his focus on the dynamics of participation within institutions that affect the pursuit of any social goal, as opposed to a focus on resource allocation efficiency (RAE). Williamson and his followers propose that individuals, firms, and states select institutional devices in order to maximize welfare benefits, net of transaction costs and strategic costs. A number of legal scholars use Komesar’s version of comparative institutional analysis within an RAE law‐and‐economics framework. Dan Cole, for example, insists on the need for welfare‐based measurements in his presentation of comparative institutional analysis, with a particular focus on property law. Joel Trachtman similarly takes such an approach to assess institutional tradeoffs in global and WTO governance from a constitutional economics perspective. In contrast, Komesar’s approach focuses on the dynamics of participation, and, while taking efficiency concerns seriously, remains agnostic about the particular substantive goal pursued. In light of the wide diversity of priorities, perspectives and goals at stake regarding most governance matters, and the bounded character of rationality, it seems presumptuous to prescribe a single goal for the evaluation of all policy contexts.”

**Go to the NLR website to learn more about this proposal for translating between empirical research and law**

**ALSO, note that comparative institutional analysis is different from the “neo-institutionalism” in sociology, as in the work of DiMaggio and Powell, which has been interesting applied to law as well by scholars like Edelman and Suchman**

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