Institutionalism as Conclusion and Approach

Research Methods in Constitutional Law: A Handbook (David Law and Malcolm Langford eds, Edward Elgar Publishing, Forthcoming),

U of Maryland Legal Studies Research Paper No. 2018-12

33 Pages Posted: 9 Apr 2018

See all articles by Mark Graber

Mark Graber

University of Maryland - Francis King Carey School of Law

Date Written: April 5, 2018

Abstract

This essay introduces readers to institutional analysis in public law. Part I discusses the central commitments of institutional analysis. These commitments include claims that legal systems and the law are relatively autonomous, that legal systems constrain individual behavior and that the law shapes individual preferences. Part II compares institutionalism with such apparent alternatives as behavioralism and structural/functionalism. Works by Jeffrey Segal and Harold Spaeth, Lawrence Baum, Ran Hirschl and Howard Schweber illustrate how disputes superficially over whether law and legal systems matter are really over which features of a legal system matter and why. To paraphrase a common cliché, “we are all institutionalists now.” The conclusion suggests that the American obsession with a narrow conception of Supreme Court decision-making is to blame for confused debates over whether law and legal institutions matter. Scholars who take a broader perspective on Supreme Court decision-making or consider the nearly infinite other problems that legal systems present have no difficulty identifying the relative autonomy of law and legal systems, the ways in which legal systems constrain behavior, and how the law shapes preferences.

Keywords: institutionalism, public law, rational choice, interpretive, historical, new historical institutionalism, normative institutionalism, legal institutions, constitutional law

Suggested Citation

Graber, Mark, Institutionalism as Conclusion and Approach (April 5, 2018). Research Methods in Constitutional Law: A Handbook (David Law and Malcolm Langford eds, Edward Elgar Publishing, Forthcoming),, U of Maryland Legal Studies Research Paper No. 2018-12, Available at SSRN: https://ssrn.com/abstract=3157358

Mark Graber (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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