It’s impossible to determine whether plan is valuable without looking to the branch of government implementing it.

My belief is that the importance of institutional choice and comparative institutional analysis is not universally shared, however. There are, in fact, dramatic anomalies in the study of law and public policy when it comes to the subject of deciding who decides. For example, one would assume that the central issue of constitutional law is the choice of who decides- the choice between alternative social decision-makers such as the executive, the legislature, and the judiciary- and that, therefore, constitutional scholarship would be replete with sophisticated analyses of these alternatives. In turn, one would assume that, when economic analysts of law-usually non-constitutional law-consider the issue of who decides these high priests of trade-offs and opportunity costs would know that one cannot decide who decides by examining only one alternative. Yet most constitutional scholars ignore the issue of who decides or at most treat it with superficial maxims. And when economic analysts of law address the subject of who decides, they often focus their attention on the attributes of only one alternative.

Constitutional law and the economic approach to law are important enough aspects of legal study that such anomalies standing alone would justify searching inquiry. But, in fact, these anomalies are only dramatic examples of pervasive problem in the analysis of law and, more generally, of public policy. Although important and controversial decisions about who decides are buried in every law and public policy issue, they often go unexamined, are treated superficially, or, at best, are analyzed in terms of the characteristics of one alternative.

Most existing theories of law and public policy focus attention on social goals and values. The economic approach to legal analysis is cast in terms of a single social goal- resource allocation efficiency. Its critics attack that goal as insufficient both normatively and descriptively, while its proponents defend its validity. Constitutional law analysis is largely a debate about social goals and values such as resource allocation efficiency, Rawlsian justice, or Lockean protection of property.

Although the choice among social goals or values is an important ingredient in understanding and evaluating law and public policy outcomes, analysis of goal and value choice, standing alone, tells us virtually nothing about these outcomes- what they are or what they should be. Upon close inspection, each social goal bandied about in analyses of law and public policy is generally consistent with virtually any law or public policy outcome. In other words, a given goal can be seen as consistent with liability or no liability, regulation or no regulation, constitutional right or no constitutional right. Goal choice may be necessary to the determination of law and public policy, but it is far from sufficient.

A link is missing - an assumption overlooked- in analyses that suppose a given law or public policy result follows from a given social goal. That missing link is institutional choice. Embedded in every law and public policy analysis that ostensibly depends solely on goal choice is the judgment, often unarticulated, that the goal in question is best carried out by a particular institution. Given the goal of protecting property, for example, the case for recognizing a constitutional right involves the implicit judgment that the adjudicative process protects property better than the political process. In turn, given the goal of promoting safety, the case for removing tort liability involves the implicit judgment that the market for government regulation promote safety better than the adjudicative process. Goal choice and institutional choice are both essential for law and public policy. They are inextricably related. On the one hand, institutional performance and, therefore, institutional choice can not be assessed except against the bench mark of some social goal or set of goals. On the other, because in the abstract any goal can be consistent with a wide range of public policy, it is institutional choice that connects goals with their legal or public policy results.