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Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to "deciding who decides." Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?" The answer traditionally given by American legal academics – the federal courts, and especially the Supreme Court – may or may not be the best choice in any given context. Other possible agents of norm articulation – the constitutional amendment process, Congress, the President, administrative agencies, state governments, world organizations, markets – also need to be considered and evaluated on a comparative basis. The law of preemption is ripe for reconsideration in light of this kind of comparative institutional analysis. At least two broad trends support this inference. First, a number of Supreme Court decisions have suggested, at least implicitly, that preemption questions should be redirected from the courts to Congress. In Cipollone v. Liggett Group, Inc., for example, Justice Stevens's opinion for the Court stated that when Congress has enacted an express preemption clause, this should provide the exclusive basis for decision, rather than any doctrine of implied preemption. This proposition, if consistently applied, would promote the view that preemption should be primarily a matter of legislative determination. Other decisions have applied a presumption against preemption unless a "clear and manifest purpose of Congress" to preempt can be discerned. This presumption, if consistently applied, would also shift authority for making preemption decisions from the courts to Congress. A second trend suggesting the need for an institutional choice analysis is a growing controversy about whether courts should defer to the views of administrative agencies on the preemptive effect of statutes and regulations. The Supreme Court dodged the issue in Watters v. Wachovia Bank, N.A., which presented the question whether a preemptive regulation issued by the Office of the Comptroller of the Currency (OCC) was entitled to Chevron deference by reviewing courts. Five Justices, speaking through Justice Ginsburg, concluded that it was unnecessary to reach this question because the statute itself compelled preemption. Three dissenting Justices – Justice Stevens joined by Chief Justice Roberts and Justice Scalia – would have decided the question and held that agencies are not entitled to Chevron deference for preemption determinations. Controversy has also been stirred by the practice of federal agencies offering advisory opinions about the preemptive effect of federal statutes and regulations. Products liability defendants have urged courts to defer to these views. The Supreme Court again recently avoided determining how much weight courts should give such views as advanced by the Food and Drug Administration (FDA), but has granted review in yet another case which now may require that it revisit the issue in the FDA context. Obviously, a general practice of deferring to administrative agencies on questions of preemption would shift authority for resolving preemption controversies away from courts toward agencies.

When U.S. corporations cause harm abroad, should foreign plaintiffs be allowed to sue in the United States? Federal courts are increasingly saying no. The courts have expanded the doctrines of forum non conveniens and prudential standing to dismiss a growing number of transnational cases. This restriction of court access has sparked considerable tension in international relations, as a number of other nations view such dismissals as an attempt to insulate U.S. corporations from liability. A growing number of countries have responded by enacting retaliatory legislation that may ultimately harm U.S. interests. This Article argues that the judiciary's restriction of access to federal courts ignores important foreign relations, trade, and regulatory considerations. The Article applies institutional choice theory to recommend a process by which the three branches of government can work together to establish a more coherent court-access policy for transnational cases.

This paper proposes to celebrate the 10th anniversary of the independence of Timor-Leste by focusing on two controversies that marked the period before its proclamation and whose consequences extend into the present. The first one deals with the "road map to Independence" and comprises the debate on the best process to elaborate a Constitution. It is intertwined with the problem of the extent to which Timorese ought to participate in the critical decisions of the transitional period, conducted under the aegis of the United Nations. The second impinges on the choice of its system of government and its impact on the consolidation of democracy. This section discusses the relevant literature on semi- presidentialism to frame a comparative perspective to events in Timor-Leste and shows the historical evolution of the process of constitutional design and the debates it involved. Finally, this essay proposes to look at those critical choices as a function of the history of Timor-Leste since 1975 and the political balance of forces rather than derived from theoretical principles.

Aftershocks was written in the midst of the deepest economic crisis since the Great Depression. Although it would be premature to presume to identify the repercussions of the crisis, it is clear that it will have profound aftershock effects in the political, economic, and social spheres. The book contains essays based on semi-structured interviews with leading scholars, European politicians and representatives from the world of business. They reflect on the origins of the crisis as well as the possible social, economic, and political transformations it may engender.

This paper examines whether an institution has a differing impact on cooperation if it is introduced by a representative of the affected parties rather than exogenously imposed. The experimental design is able to control for selection effects arising from the democratic policy choice. I find evidence of a large democracy premium in the sense that endogenously implemented institutions lead to more cooperation than iden- tical exogenous institutions. Especially the subjects who initially did not prefer the policy comply if it was brought about by an elected representative. The results have implications for the analysis of decision-making processes and policy recommendations in general.

Defence date: 5 December 2016 ; Examining Board: Professor Marise Cremona (supervisor), EUI; Professor Miguel Maduro, EUI; Professor Francesco Maiani, University of Lausanne; Doctor Günter Wilms, Legal service, European Commission and Legal Advisor, EUI ; The Commission's policy of selective enforcement rests on four pillars: confidentiality, bilateralism, flexibility, and autonomy. For years, the European Parliament, the Ombudsman and stakeholders have put pressure on the Commission to reform its enforcement policy in order to increase its legitimacy in the eyes of EU citizens by, inter alia, allowing complainants access to documentation from its investigations and securing their rights by means of legally-binding measures. They have sought to replace the Commission's existing discretionary model of enforcement with a new approach characterized by such standards as transparency, trilateralism, objectivity, and accountability. The Commission, however, supported by the Court of Justice, has in most part resisted these challenges, changing its policy of selective enforcement only to such a degree that does not substantially interfere with its four pillars. This thesis seeks to explain the reasons for the Commission's commitment to the existing discretionary model of enforcement. By means of the Comparative Institutional Analysis, it is argued that the proposed reforms would distort the balance between the Commission's demand and supply sides. The Commission's capacity to enforce EU law is limited, and burdening it with new responsibilities in order to introduce transparency or objectivity to its operation would lead to the formalization of enforcement measures, increasing its administrative burden and decreasing its efficiency. It would skew its attention towards complainant-relevant violations and transform its enforcement into a vehicle for individual grievances running counter to the Commission's understanding of its enforcement function as guardian of the Treaties. The Commission's opposition to the accountability approach does not, however, mean a rejection of its demands. The EU Pilot is an example of the Commission's effort to address some of these expectations while maintaining the balance between the forces of supply and demand. Selective enforcement thus may not be as much about prioritizing cases as it is about assigning appropriate enforcement measures.