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89 Tul. L. Rev. 669 (2014-2015)

handle is hein.journals/tulr89 and id is 715 raw text is: Institutional Preconditions for Policy Success Blake Hudson* Policy failures receive much attention from the public and from policy makers adjusting policy in response to failure K4 lessons learned from policy failures are necessanly ex post observations. Not only has the policy failed to achieve its purposes, but a great deal ofpolitical, institutional, temporal, and economic capital has been Wasted A new body of literature on policy success undertakes ex ante analysis ofsuccessfulpolicy 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 ofprocedural, programmatic, or political factors, institutional analysis-and specifically constitutional constraints on a governmentk ability to crafm certain policy instnents-has not yet been incorporated into the policy success and various other policy studies literatures. This Arbcle 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, programnatic, and political components ofapolicyhave an opportunity to succeed I. INTRODUCTION ............................................................................. 670 II. INSTITUTIONAL VULNERABILITIES: THE GOVERNANCE COMMONS AND CONSTITUTIONAL RIGHTS ................................. 677 A. Allocation ofLegalAuthoty as an Institutonal Vulnerability: The Governance Commons ....................... 677 B. Infingement oflndivdual Rights as an Institutional Vulnerability ....................................................................... 679 C Institutional Vulnerabilities Within the Precondition Fram ework .......................................................................... 682 III. REMEDYING INSTITUTIONAL VULNERABILITIES AS A PRECONDITION FOR POLICY SUCCESS: THE POLICY L ITERATURE ................................................................................. 685 A. New institudonalism and Constitutions as Meta- Institutions ........................................................................ 687 * © 2015 Blake Hudson. Associate Professor, Joint Appointment, Louisiana State University Law Center and LSU School of the Coast and Environment, Baton Rouge, Louisiana. For their comments and insights, I wish to thank Michael Howlett and Anil Hira, although the conclusions drawn in this Article are my own. I would like to thank the faculty of political science at Simon Fraser University for allowing me to discuss earlier iterations of this research and for providing valuable feedback incorporated into the Article. I would also like to thank the editors of the Tulane Law Review for their hard work in making the Article better. Finally, I would like to thank the LSU Law Center for providing generous research support for this Article.

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