Incomplete Designs

Many legal rules are designed to address the imperfections of real-world institutions. Rules of justiciability and deference, statutes setting administrative deadlines, multinational treaties that protect foreign nationals—all are designed, at least to a degree, to minimize and correct the limitations of courts, agencies, and self-interested states at making the decisions the law requires of them.

But these and countless other efforts at institutional design are subject to a subtle yet pervasive problem. Rules intended to reallocate or restructure institutional authority typically cannot be made without further decisions of their own—to fill in details, to develop supporting structures, or to apply rules in individual cases. There is no assurance that an institution will be capable of making those decisions any more competently than it makes those decisions that the design is intended to improve. And the risk—indeed, the inevitability— that institutions will often make such decisions poorly has in practice undermined or negated the effectiveness of many proposed institutional reforms.

This Article explores this critical but underrecognized characteristic of institutional design, which it calls “incompleteness.” It details a number of real-world and academic designs in which incompleteness has generated significant or fatal problems that might have been avoided if this feature had been identified at the outset. It describes the unique problems presented by delegating institutional decisions to downstream actors, from circularity to imperfect veils of ignorance to entrenchment to system effects. And it develops the rudiments of a toolkit that might be used to engage in more complete and effective institutional design in the future.