The Perils of Pandora

The Pandora's box of institutional choice has been opened. Tom Merrill is disturbed by what he sees. He fears despair and difficulty. Since I opened the box, he expects me to clean up the mess. But I cannot. Harsh realities have escaped and they cannot be recaptured. As in the original tale, hope is still in the box. But it will take great effort to release it-much more effort than I can muster alone. It will need the combined help of serious scholars, like Tom Merrill. Merrill accepts, without qualification, my position that law and public policy cannot be analyzed by focusing only on goals and values. Goal choice standing alone cannot determine law and public policy. Each goal is consistent with diametrically opposite outcomes-liability/no liability, rights/no rights-depending on issues of institutional choice. Analysis of institutional choice-analysis of who decides-is essential to the understanding of law and public policy. Furthermore, institutional choice cannot be analyzed by focusing on variations in the characteristics of one institution (single institutional analysis)-the pervasive mode of dealing with institutions in law and public policy analysis. Rather, institutional choice can be effectively approached only by employing comparative institutional analysis. In other words, the choice between alternative decision-making processes must be done by comparing the attributes of the alternative processes in each relevant setting rather than by examining only the characteristics of one alternative

Political science · International Arbitration and Investment Law · Law, Economics, and Judicial Systems