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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.

AbstractA model based upon the common concept of rent‐seeking behavior avoids an exclusive focus on the pecuniary motive in private institutions and the power motive in public institutions. Using this model, the case for privatization ranges from very strong to unpersuasive, with some fascinating intermediate cases. Where purchases are frequent, information is abundant, costs of a bad decision are small, externalities are minimal, and competition is the norm, privatization ought to be pursued. At the other extreme, in situations where externalities and collective interests abound, natural monopolies are dominant, distributional goals are important, or debate and experience will alter preferences, governmental determination of service levels and public provision should continue. Intermediate situations such as those involving education, health, and some aspects of enterprise development provide the most interesting and hotly debated areas. These intermediate situations have both private and collective characteristics, choices are made infrequently with little information, have monumental consequences, distributional considerations are critical, and public debate about the level and type of service substantially affects individual behavior.

Why do institutions emerge, operate, evolve and persist? Institutional Choice and Global Commerce elaborates a theory of boundedly rational institutional choice that explains when states USE available institutions, SELECT among alternative forums, CHANGE existing rules, or CREATE new arrangements (USCC). The authors reveal the striking staying power of the institutional status quo and test their innovative theory against evidence on institutional choice in global commerce from the nineteenth through the twenty-first centuries. Cases range from the establishment in 1876 of the first truly international system of commercial dispute resolution, the Mixed Courts of Egypt, to the founding and operation of the General Agreement on Tariffs and Trade, the World Trade Organization, and the International Accounting Standards Board. Analysts of institutional choice henceforth must take seriously not only the distinct demands of specific cooperation dilemmas, but also the wide array of available institutional choices

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.

Scholars of institutional change in Congress offer competing theoretical accounts of the accrual of procedural rights by House majority parties. One camp posits that the interests and capacities of political parties drive procedural change that affects agenda control. An alternative perspective offers a nonpartisan, median‐voter account. I explore these two accounts, survey challenges involved in testing them, and determine the fit of the accounts to the history of procedural change in the House. I find that no single perspective accounts best for the pattern of rule changes affecting agenda control and that the median‐voter model may be time‐bound to the twentieth century—after partisan majorities had constructed the core partisan procedural regime of the House.