Institutionalism as Conclusion and Approach

This essay introduces readers to institutional analysis in public law. Part I discusses the central commitments of institutional analysis. These commitments include claims that legal systems and the law are relatively autonomous, that legal systems constrain individual behavior and that the law shapes individual preferences. Part II compares institutionalism with such apparent alternatives as behavioralism and structural/functionalism. Works by Jeffrey Segal and Harold Spaeth, Lawrence Baum, Ran Hirschl and Howard Schweber illustrate how disputes superficially over whether law and legal systems matter are really over which features of a legal system matter and why. To paraphrase a common cliche, “we are all institutionalists now.” The conclusion suggests that the American obsession with a narrow conception of Supreme Court decision-making is to blame for confused debates over whether law and legal institutions matter. Scholars who take a broader perspective on Supreme Court decision-making or consider the nearly infinite other problems that legal systems present have no difficulty identifying the relative autonomy of law and legal systems, the ways in which legal systems constrain behavior, and how the law shapes preferences.