Mariana Mota Prado, Michael J. Trebilcock


In a very thoughtful reaction to our book, Kevin Davis points to the ambiguity in the use of the term experimentation, and carefully distinguishes randomized controlled trials (RCTs) from other forms of experimentation, which are associated with the concept of “experimentalist governance”. The central point of his piece is to call attention to the fact that institutional bypasses are primarily associated with “experimentalist governance” and to warn the reader of the limited inferences one can make based on the type of experimentation proposed in our book. More specifically, Davis argues that institutional bypasses do not allow us to truly compare the performance of two institutions, in a way that RCTs would. What is being observed is the performance of the bypass along with the dominant institution; we do not know how the bypasses would operate if it were the only institution. Therefore, one has to refrain (or at least be extremely careful) in extrapolating from this experiment to the conclusion that the bypass is a superior institutional arrangement. Only randomized controlled trials would allow us to assert if one arrangement is superior to the other.


Institutional Bypasses; Law; institutional design

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Banerjee, Abhijit V., Raghabendra Chattopadhyay, Esther Duflo, Daniel Keniston, and Nina Singh. 2012. “Improving Police Performance in Rajasthan, India: Experimental Evidence on Incentives, Managerial Autonomy and Training.” SSRN Scholarly Paper ID 2025301. Rochester, NY: Social Science Research Network.

Davis, Kevin E. 2010. “Legal Universalism: Persistent Objections.” University of Toronto Law Journal 60 (2): 537–53.

Prado, Mariana Mota, and Steven J. Hoffman. 2019. “The Promises and Perils of International Institutional Bypasses: Defining a New Concept and Its Policy Implications for Global Governance.” Transnational Legal Theory 10 (3–4): 275–94.

Sabel, Charles F., and Jonathan Zeitlin. 2008. “Learning from Difference: The New Architecture of Experimentalist Governance in the EU.” European Law Journal 14 (3): 271–327.

Sabel, Charles F., and Sabel Zeitlin. 2012. “Experimentalist Governance.” In Oxford Handbook of Governance, edited by David Levi-Faur. Oxford Handbooks. Oxford, UK: Oxford University Press.

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Direitos autorais 2020 Mariana Mota Prado

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