Article by Blake Hudson
Policy failures receive much attention from the public and from policy makers adjusting policy in response to failure. Yet, lessons learned from policy failures are necessarily ex post observations. Not only has the policy failed to achieve its purposes, but a great deal of political, institutional, temporal, and economic capital has been wasted. A new body of literature on policy success undertakes ex ante analysis of successful policy designs, instrument choices, and other policy-making variables to establish a framework for more effective policy making. Though policy success may be inhibited by a variety of procedural, programmatic, or political factors, institutional analysis—and specifically constitutional constraints on a government’s ability to craft certain policy instruments—has not yet been incorporated into the policy success and various other policy studies literatures. This Article is the first to undertake that integration and demonstrates how institutional analysis in earlier stages of the policy cycle can help society avoid constitutionally driven policy failures and move toward institutional policy successes. Only when this institutional precondition is achieved will the procedural, programmatic, and political components of a policy have an opportunity to succeed.
89 Tul. L. Rev. 669 (2015)