Gregory C. Shaffer, Comparative Institutional Analysis and a New Legal Realism, 2013 Wis. L. Rev. 607 (2013).
This article, for a symposium of the Wisconsin Law Review on Professor Neil Komesar’s work on comparative institutional analysis assesses his framework from a new legal realist perspective. Komesar powerfully shows how the pursuit of any substantive goal is mediated through different institutional processes that will affect outcomes, so that institutional analysis is required. Moreover, since all institutional processes are imperfect, whether the imperfections are in the market, the political process, or the courts, such institutional analysis must be comparative. This article’s core claim 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 of no practical use without an analytic framework in which to translate and organize its findings for purposes of real-life decision making. Comparative institutional analysis and new legal realism are thus complementary components of any policy-relevant analysis of law.
Part I presents Komesar’s comparative institutional analytic framework. Part II compares it with other forms of comparative institutional analysis used in the social sciences. Part III examines the challenge of applying comparative institutional analysis, which can be critiqued (by some) for being too narrow in its neoclassical law-and-economics focus on incentives, and (by others) for being too unwieldy on account of the variables at play. Part IV discusses why a new legal realism grounded in both empirics and a subtle understanding of law’s normativity in different institutional settings needs to complement comparative institutional analysis. Part V presents a brief example of the application of new legal realist empirics and comparative institutional analysis in the international context.