The Basic Principles of the Dynamics of Participation and Comparative Institutional Analysis

As I stated in the introduction, it is my view that the essence of understanding governance and of understanding how to get better governance is the understanding of the workings of governance mechanisms. To me this seems self-evident. But it is not the normal mode of analysis for a subject like global governance. Instead, it is common to begin with some conception of the good and to argue for this conception versus some alternatives. These contesting conceptions include communitarianism, cosmpolitanism and liberalism. These conceptions and their role in analyzing global governance are

on exhibition in the Komesar-Maduro paper (hereafter “K-M”) that serves as background for this paper.1

Such a strategy for the analysis of global governance seems to start at the wrong place for several reasons. First, as I have argued often, goals and goal choice are never sufficient to generate proposals for law and public policy.2 _{They must be accompanied by a parallel consideration of the institutional}

mechanisms available to carry out the goal. This seems even more primal when we deal with the world of global governance where institutions are large and complex. If governance was a matter of traveling to an oracle and telling this oracle what goal you wish to achieve, then the focus should be on goal choice. That’s because we have already solved the institutional choice question; the oracle is in place. But real world decision-making alternatives don’t operate by top-down instruction. They operate by the interaction of bottom-up forces and the choice among them is hardly obvious and, therefore, constitutes an essential subject for study.

So I will start the study of governance by focusing on the workings of governance mechanisms– in my terms, institutional behavior. In turn, obtaining superior governance is a matter of choosing the best governance mechanism or set of governance mechanisms– in my terms, institutional choice. Effective law and public policy analysis requires the choice of the best governance mechanism in each setting. A central question of global governance, for example, is when and whether global or international governance mechanism should be substituted for national governance mechanisms. The only sensible means of understanding governance (the behavior of decision-making processes and the choice between them) in a normatively meaningful way is through institutional comparison.

Understanding the performance of alternative governance mechanisms means understanding the patterns of participation in each mechanism: which interests are influential in each governance mechanism and which are not. Participation is, in turn, a function of the costs and benefits of participation. This is the dynamics of participation. In other words, those with higher per capita stakes are more likely to understand when participation is worthwhile and to know how to participate effectively. As a general matter, the same set of potential participants operate (or don’t) in all governance mechanisms.

Take the example of product safety. A large scale manufacturer is likely to understand the costs and benefits of better safety, whether there is a market for safety (or whether less safe products will be rejected by the market), whether there is a risk of regulation and how to blunt either the attempt to pass such regulation or to implement it. The manufacturer will also understand the character of judicial remedies for the failure to produce safe products (products liability) – the probability of successful suit and the damages awards to be paid if found liable. The manufacturer also would understand the relative merits of dealing with products liability through litigation, lobbying in the legislature or contributing to the political campaigns of legislators or judges.

By contrast, the average potential victim of product safety is less likely to understand the safety level of products and, therefore, may not be in position to send the market signals to the manufacturer that might produce safer products. Nor would potential victims of product malfunction– a very large group with small per capita stakes – have the incentives to understand the workings of legislatures and the administrative agencies or even where the best interests of that potential victim might lie in connection with a given piece of regulation. The adjudicative process might be somewhat different because the actors are actual victims. But even this depends on whether the form of injury results in many small injuries and, therefore, little possibility of litigation or whether the form of injury results in a small number of large injuries and, therefore, a sufficient incentive for victims to bring products liability claims.

1 _{See Neil Komesar and Miguel Maduro, From Constitutions to Constitutionalism, chapter one of this book.} 2 _{See Neil Komesar, Imperfect Alternatives (1994).}

Put more generally, manufacturers, as high stakes players, will have the incentive to understand their market opportunities, the potential for seeking advantage in the political process, the dangers of and means to blunt regulation and whether they will be liable for torts damages. Consumers, as low stakes players, will have much less incentive and, therefore, less likely to participate.

This is a crude example which I have dealt with more extensively elsewhere.3 _{But the basic point is}

revealed. The behavior of governance mechanisms like the political process, the adjudicative process and the market depend on the dynamics of participation. And the dynamics of participation can vary across subject, setting and interest.