Institutional Design Choices Research Articles

International courts and global democratic values: Participation, accountability, and justification

AbstractIn a post-Cold War era characterised by globalisation and deep interdependence, the actions of national governments increasingly have an effect beyond their own territorial borders. Moreover, key agents of global governance – international organisations and their bureaucracies, non-state actors and private agents – exercise pervasive forms of authority. Due to these shifts, it is widely noted that world politics suffers from a democratic deficit. This article contributes to work on global democracy by looking at the role of international courts. Building upon an original dataset covering the 24 international courts in existence since the end of the Second World War, we argue that international courts are able to advance democratic values and shape democratic practices beyond the state. They can do so by fostering equal participation, accountability, and public justification that link individuals directly with sites of transnational authority. We contend that the ability of international courts to promote these values is conditioned by institutional design choices concerning access rules, review powers, and provisions regarding judicial reason-giving. We canvass these design features of different international courts and assess the promises and pitfalls for global democratisation. We conclude by linking our analysis of international courts and global democratisation with debates about the legitimation and politicisation of global governance at large.

Leading by design: Informal influence and international secretariats

This article tests three hypotheses concerning the influence of international secretariats in world politics. This is a topic that has so far received limited systematic attention by IR theorists, who have tended to regard secretariats as bit players in global affairs. Drawing on institutional design literature, I develop a detailed theoretical explanation for both secretariat leadership and state mastery of international organizations. Because powerful actors anticipate channels for informal influence when designing secretariats, they seek to maximize formal bureaucratic autonomy. I assess the explanatory power of this theory through an analysis of negotiations over the design of the United Nations Environment Programme (UNEP). A detailed archival investigation reveals that powerful countries, led by the United States, sought to maximize the autonomy of the UNEP secretariat. Developing countries, which expected to exert less informal influence on the new secretariat, sought to ensure strong intergovernmental control over UNEP’s secretariat. Since UNEP has been a frequently cited example of secretarial leadership and initiative, finding that the UNEP secretariat’s ability to act autonomously was in significant part determined by past institutional design choices holds relevance for theory development.

Hubs of Governance: Path Dependence and Higher-Order Effects of Preferential Trade Agreement Formation

In this paper, we investigate the causes and consequences of institutional design choices in the liberalization of services trade and investment in preferential trade agreements (PTAs). We distinguish between a positive-list and a negative-list approach to services liberalization, and analyze PTAs signed by countries of the Asia-Pacific. We develop an information-based argument that explains why these different types induce path dependence in subsequent choices, and derive hypotheses that capture the “history” effect of choosing either institutional model. In doing so, we examine whether particular “modes of governance” diffuse through the growing network of trade agreements through the adoption of rules by third parties in their own PTAs. The empirical analysis tests these hypotheses using simulation-based dynamic network analysis methods. We find evidence of strong path dependence in the choice of liberalization approach, affecting the evolution of PTA networks in the Asia-Pacific and the diffusion of services liberalization in general. Such path dependence has long-term consequences for the institutional features of the international trade regime.

Book Review: "The Politics of River Basin Organizations: Coalitions, Institutional Design Choices and Consequences"

Book Review: "The Politics of River Basin Organizations: Coalitions, Institutional Design Choices and Consequences"

Strategic Institutional Design: Two Case Studies of Non-Majoritarian Agencies in Health Care Priority-Setting

Governments’ decisions to delegate policy decisions to non-majoritarian agencies have been both criticized as attempts at blame avoidance or depoliticization and defended as enhancing the rationality and credibility of decisions. This article focuses not on the decision to delegate, but on the decisions of how and to whom to delegate. We argue that strategic motives are relevant not only in the decision to delegate, but equally, and perhaps more importantly, in the selection of the institutional properties of these non-majoritarian agencies. We present two case studies of health care priority-setting, in England and Germany, to illustrate how governments proceed strategically in institutional design choices and how their decisions affect outcomes.

Institutionalising social learning: Towards systemic and adaptive governance

This paper critically examines how public policy makers limit policy and other institutional design choices by a failure to appreciate (i) how situations may be characterised or framed; (ii) how practices that generate neologisms (invented terms or concepts) or reify (make into a thing) abstract concepts can displace understandings, and (iii) the epistemological bases of governance mechanism choices. An inquiry into the coining of the neologisms ‘wicked’ and ‘tame’ problems is reported and the implications for research and policy practice explored. As practices, neologising, reifying, categorising and typologising have unintended consequences – they remove us from the primary experiences and underlying emotions that provided the motivation for formulating these concepts in the first place. The failure to institutionalise the understandings and experiences that sit behind the invention of the terms ‘wicked’ and ‘tame’ problems (or similar framing choices such as ‘problematique’, ‘messes’, ‘lowland real-life swamps’, ‘resource dilemmas’ or ‘complex adaptive systems’) present systemic constraints to institutionalising social learning as an alternative yet complementary governance mechanism within an overall systemic and adaptive governance framework. Ultimately situations usefully framed as ‘wicked’,’ such as water managing and climate change are problems of relationship – of human beings with the biosphere. Re-framings, such as institutions as social technologies and other research and praxis traditions concerned with the breakdown of relationships may offer ways forward in the purposeful designing and crafting of more effective institutions.

Institutional Lessons from the 2000 Presidential Election

This essay discusses two issues raised by the 2000 presidential election that are relevant to institutional design and institutional choice and that have applicability beyond the presidential contest. First, the election aftermath illustrates the importance of adopting frameworks to shape decisionmaking before an actual controversy arises. If rules and procedures are determined before it is clear which interests are benefited from particular procedures and which are harmed, it is more likely that rules will be chosen that serve public-regarding objectives rather than self-interested goals of participants. This analysis suggests that Congress was the institution best suited to resolve any lingering disputes from Florida because the Electoral Count Act, which had been adopted over one hundred years before, would have structured deliberation to reduce opportunistic behavior and to ensure that decisions were made transparently. Second, the interplay between the United States Supreme Court and the Florida Supreme Court is a fascinating case study of institutional dynamics, with the federal court decisively outmaneuvering the state supreme court to advance the outcome preferred by a majority of the U.S. Supreme Court justices. In particular, the first unanimous per curiam decision in Bush v. Palm Beach County Canvassing Board contained hints about the effect of Article II on judicial interpretation that discouraged the state supreme court from specifying substandards for any manual recounts. In the end, the real tragedy of the institutional interplay was not that the Florida supreme court was reversed but that Congress, the institution most suited to make any final determination, was prevented from playing that role. The Court's analysis and actions reinforced the unfortunate tendency of the political branches to rely on the unelected federal judiciary to set in and save the country from the chaos of democracy.

Procedural justice and democratic institutional design in health-care priority-setting

Health-care goods are goods with peculiar properties, and where they are scarce, societies face potentially explosive distributional conflicts. Animated public and academic debates on the necessity and possible justice of limit-setting in health care have taken place in the last decades and have recently taken a turn toward procedural rather than substantial criteria for justice. This article argues that the most influential account of procedural justice in health-care rationing, presented by Daniels and Sabin, is indeterminate where concrete properties of rationing institutions are concerned. Such properties inscribe substantial norms into institutions. These norms can derive validity only from democratic majority decisions, which must be seen as an instance of pure procedural justice. We therefore have to move the discussion to a meta-level and ask how concrete properties of institutions are being chosen. I suggest four criteria for sufficiently democratic institutional design choice and conclude that as institutional properties are likely to have effects on the resulting distribution of health care, design choices should be empirically informed and taken both democratically and deliberately.

The external dimension of EU counter-terrorism: the challenges of the European Parliament in front of the European Court of Justice

Since 11 September 2001, the European Union (EU) has significantly increased its involvement in counter-terrorism. A sizeable cluster of those new EU counter-terrorism acts were challenged in front of the European Court of Justice, and many of those acts ended being annulled by the Court. In the foreign dimension, the European Parliament challenged three counter-terrorist acts: the first Transatlantic Agreement on passenger name records, the EU technical assistance to the Philippines and the EU UN terror list. The analysis of the nature and implications of these three cases shed light on the evolving configuration of the EU foreign policy in terms of both institutional design and ideological choices.

The diffusion of financial supervisory governance ideas

ABSTRACT Who is watching the financial services industry? Since 1980, there have been multiple waves of thought about whether the ministry of finance, the central bank, a specialized regulator or some combination of these should have supervisory authority. These waves have been associated with the convergence of actual practices. How much and through what channels did internationally promoted ideas about supervisory ‘best practice' influence institutional design choices? I use a new dataset of 83 countries and jurisdictions between the 1980s and 2007 to examine the diffusion of supervisory ideas. With this data, I employ Cox Proportional Hazard and Competing Risks Event History Analyses to evaluate the possible causal roles best practice policy ideas might have played. I find that banking crises and certain peer groups can encourage policy convergence on heavily promoted ideas.

Delegation and Institutional Design in Health‐Care Rationing

The delegation of decision‐making powers to nonmajoritarian, independent agencies has become a significant phenomenon in more and more policy areas. One of these is the health‐care sector, where decisions on the range of services covered within public systems have, in most developed countries, been delegated to specialized bodies. This article offers an analytical framework that seeks to grasp the empirical variety and complexity of delegative processes and appointed institutions. The framework is used to describe decision‐making processes and institutions in six countries: Austria, Germany, Norway, Sweden, New Zealand, and the United Kingdom. We find that, although constrained by preexisting institutional structures and traditions, delegators enjoy a considerable degree of discretion in their institutional design choices and engage in strategic design and redesign of appointed bodies.

The (Misunderstood) Genius of American Corporate Law

In standard rhetoric of corporate literature, federalism is the genius of American corporate law - an engine of efficiency, motivating a (or at least a leisurely walk) to top. Some have dissented, suggesting that prevailing wisdom is wrong as to either direction or vitality of promised race. But latter critiques are too forgiving. The standard account misunderstands basic question; its answer, as such, is not even wrong. Rather than weighing in on race debate, thus, I challenge fundamentally flawed discourse behind it. I offer a distinct framework for evaluating role of federalism in American corporate governance, which points to distinct measures of efficiency and a reinvigorated study of institutional design in corporate law. To begin, I challenge literature's merger of two distinct competitions - state and managerial - into one. More critically, I decry resulting linkage between corporate law's central goal-efficient regulation of separation of ownership and control - and central element of its institutional design - federalism. That rhetorical linkage has led us astray in important respects: First, it has bootstrapped a role for federalism in advancing not merely quality of corporate law, but also substantive quality of corporate governance. Second, it has essentialized role of federalism, casting it as indispensable to production of good law. Dominant as these conceptions are in discourse of corporate law, neither is true. I suggest an alternative account of federalism's contribution to American corporate governance. Federalism is not directed to traditional goal of corporate - regulation of vertical separation of ownership and control within firm. Rather, it advances a distinct, horizontal goal of regulating relationship of firm as a whole with state regulators external to it. Given as much, a federal regime is not dictated by a commitment to efficiency in corporate law. Rather, it is an institutional design choice, to be evaluated for its efficacy and utility - as well as its limitations - in one area of corporate versus another.

Survey Article: Recipes for Public Spheres: Eight Institutional Design Choices and Their Consequences

Journal of Political PhilosophyVolume 11, Issue 3 p. 338-367 Survey Article: Recipes for Public Spheres: Eight Institutional Design Choices and Their Consequences Archon Fung, Archon Fung Harvard UniversitySearch for more papers by this author Archon Fung, Archon Fung Harvard UniversitySearch for more papers by this author First published: 04 August 2003 https://doi.org/10.1111/1467-9760.00181Citations: 470Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume11, Issue3September 2003Pages 338-367 RelatedInformation

The Rational Design of International Institutions

Why do international institutions vary so widely in terms of such key institutional features as membership, scope, and flexibility? We argue that international actors are goal-seeking agents who make specific institutional design choices to solve the particular cooperation problems they face in different issue-areas. In this article we introduce the theoretical framework of the Rational Design project. We identify five important features of institutions—membership, scope, centralization, control, and flexibility—and explain their variation in terms of four independent variables that characterize different cooperation problems: distribution, number of actors, enforcement, and uncertainty. We draw on rational choice theory to develop a series of empirically falsifiable conjectures that explain this institutional variation. The authors of the articles in this special issue ofInternational Organizationevaluate the conjectures in specific issue-areas and the overall Rational Design approach.