Exit, voice, and disloyalty

Duke Law Journal

Volumn 62, Issue 7, 2013, Pages 1349-1386

  Gerken, Heather K ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84876987405     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (108)

1. EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970).
2. This is an argument about the relationship between the center and the periphery. Here I'll focus on minorities' influencing national policy, but the same basic arguments work with regard to minorities who wish to influence state policy.
3. I thus use the term agency to refer to minorities' exercising control over the administration of national policy. I am intensely grateful to Tom Wolf for suggesting the formulation.
4. For instance, in discussing conventional federalism, I talk about state officials as "outsiders" to the national scheme when, of course, they are differently situated than true outsiders, such as officials from another country. I nonetheless think the distinction is useful, as it provides a means for identifying the difference between, say, state officials administering state law and state officials administering federal law.
5. For an exploration of the relationship between exit and association that pursues different arguments than those offered here, see Evelyn Brody, Entrance, Voice, and Exit: TheConstitutional Bounds of the Right of Association, 35 U.C. DAVIS L. REV. 821 (2002).
6. See, e.g., ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE (forthcoming 2013) (on file with the Duke Law Journal).
7. Richard A. Epstein, Exit Rights Under Federalism, 55 LAW & CONTEMP. PROBS. 147, 149 (1992).
8. Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 386-405 (1997).
9. Clayton Gillette, The Exercise of Trumps by Decentralized Governments, 83 VA. L. REV. 1347, 1347-52, 1408-17 (1997).
10. Daryl J. Levinson, Rights and Votes, 121 YALE L.J. 1286, 1355 (2012).
11. John O. McGinnis & Ilya Somin, Federalism v. States' Rights: A Defense of Judicial Review in a Federal System, 99 NW. U. L. REV. 89-105, 110-12 (2004).
12. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 60 (2004).
13. cf. Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 VA. L. REV. 265, 273 (1990).
14. Thanks to Richard Briffault for offering this formulation of what he takes (correctly) to be the conventional account in constitutional theory.
15. Some of these arguments are explored in greater detail, albeit from a different angle, in Heather K. Gerken, Foreword, Federalism All the Way Down, 124 HARV. L. REV. 4, 11-28 (2010).
16. See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
17. Exit, of course, is partial in the federalism context. As I note above, minorities are partial outsiders in the federalism context.
18. See, e.g., WILLIAM H. RIKER, FEDERALISM: ORIGIN, OPERATION, SIGNIFICANCE 11 (1964).
19. Frank B. Cross, The Folly of Federalism, 24 CARDOZO L. REV. 1, 19 (2002).
20. See, e.g., MALCOLM M. FEELEY & EDWARD RUBIN, FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE 12 (2008).
21. Bradford R. Clark, The Procedural Safeguards of Federalism, 83 NOTRE DAME L. REV. 1681, 1681 (2008).
22. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 222 (2000).
23. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1513 (1994).
24. D. Bruce La Pierre, The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the States as Agents of the Nation, 60 WASH. U. L.Q. 779, 786 (1982).
25. Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 416.
26. Ernest A. Young, Two Cheers for Process Federalism, 46 VILL. L. REV. 1349, 1349, 1358 n.42, 1385 (2001).
27. See, e.g., Richard Briffault, "What About the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1304 (1994).
28. Many have extended the insights of federalism to cities.
29. Federalism, for instance, is thought to promote choice, competition, participation, experimentation, and the diffusion of power. E.g., Gregory v. Ashcroft, 501 U.S. 452, 458-59 (1991).
30. see also Akhil Reed Amar, Five Views of Federalism: "Converse-1983" in Context, 47 VAND. L. REV. 1229 (1994).
31. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 DUKE L.J. 75, 136-39 (2001).
32. Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 774-79 (1995).
33. Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 3-10 (1988).
34. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1491-1511 (1987) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)).
35. Some believe we reel these arguments off too easily. See Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 318-19 (1997).
36. see also Mark C. Gordon, Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court, 14 YALE L. & POL'Y REV. 187, 218 (1996).
37. Richard Briffault is the exception, as he has written on economic institutions at the sublocal level.
38. See generally, e.g., Richard Briffault, A Government for Our Time? Business Improvement Districts and Urban Governance, 99 COLUM. L. REV. 365 (1999).
39. Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 MINN. L. REV. 503 (1997).
40. How robust an exit option they offer is up for debate. See, e.g., Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLUM. L. REV. 1, 5 (1990).
41. Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1069-72 (1980).
42. Many cities enjoy "home rule" provisions whose utility is a subject of intense debate in local government law. Compare David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2257, 2263 (2003).
43. David J. Barron & Gerald E. Frug, Defensive Localism: A View of the Field from the Field, 21 J.L. & POL. 261, 261-62 (2005).
44. See generally Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745 (2005).
45. See, e.g., ANNE PHILLIPS, THE POLITICS OF PRESENCE 79 (1995).
46. Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent "Yes," 61 J. POL. 628, 628 (1999).
47. Charles Taylor, The Politics of Recognition, in MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 25, 25 (Amy Gutmann ed., 1994).
48. To be sure, one might resist the idea that the classification may work only for political minorities. Hirschman's arguments are cast in individualist terms. To the extent he contemplates group action, he assumes that voters and consumers will take a roughly similar view of the problem. The variation on which Hirschman focuses is the different ways people react to an agreed-upon problem.
49. Unless, of course, we are talking about smaller decisionmaking bodies, where dissenters may trade away their dissenting votes in exchange for compromises from themajority.
50. MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE INDIVIDUAL IN PUBLIC SERVICES 3 (1980) (emphasis omitted).
51. Note the parallel here. As with exit and voice, agency takes two forms: one involves direct participation (serving on a jury or school board), and the other involves representation (voting for someone to administer federal law on one's behalf). So, too, voice and exit involve irect participation (the right to speak or form a private association) and representation (voting under the diversity paradigm or under federalism).
52. I borrow these terms from Philip Pettit.
53. See Philip Pettit, Republican Freedom and Contestatory Democratization, in DEMOCRACY'S VALUE 163, 164 (Ian Shapiro & Casiano Hacker-Cordón eds., 1999).
54. Pettit, however, uses them in a slightly different context, discussing the need to grant electoral minorities the opportunity to "edit" the law by contesting it in an acceptably neutral process-such as a proceeding before a judge, a jury, or an administrative agency-and thereby to vindicate what he terms a "contestatory" or "oppositional" model of democracy.
55. See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, 1259 (2009).
56. See Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959, 960 (2007).
57. See, e.g., Jerry L. Mashaw, Accountability and Institutional Design: Some Thoughts on the Grammar of Governance, in PUBLIC ACCOUNTABILITY: DESIGNS, DILEMMAS AND EXPERIENCES 115, 142-44 (Michael W. Dowdle ed., 2006).
58. John T. Scholz, Jim Twombly & Barbara Headrick, Street-Level Political Controls over Federal Bureaucracy, 85 AM. POL. SCI. REV. 829, 831-32 (1991).
59. I used the weasel word roughly because we elect congressional representatives from states and districts and the president via the electoral college, which ensures that particular minorities do better than their numbers would otherwise suggest.
60. The canonical case is Rust v. Sullivan, 500 U.S. 173 (1991).
61. Certain types of jury verdicts, such as "not guilty" verdicts in criminal cases, are an exception.
62. MICHAEL WALZER, INTERPRETATION AND SOCIAL CRITICISM 39 (1987).
63. cf. Ronald Reagan, Remarks at the New Hampshire Republican Primary Debates (Feb. 23, 1980) ("I am paying for this microphone. .. !"); State of the Union (Liberty Films 1948) ("Don't you shut me off; I'm paying for this broadcast." (quoting Spencer Tracy's character)).
64. First Amendment scholars have thought about the rights of whistleblowers, of course, as well as the rights of government employees. See generally, e.g., Rosalie Berger Levinson, Silencing Government Employee Whistleblowers in the Name of "Efficiency", 23 OHIO N.U. L. REV. 17 (1996).
65. Randy J. Kozel, Reconceptualizing Public Employee Speech, 99 NW. U. L. REV. 1007 (2005).
66. Gia B. Lee, First Amendment Enforcement in Government Institutions and Programs, 56 UCLA L. REV. 1691, 1766-71 (2009).
67. Helen Norton, Constraining Public Employee Speech: Government's Control of Its Workers' Speech To Protect Its Own Expression, 59 DUKE L.J. 1 (2009).
68. They are insiders in some senses, but not in the sense I describe here (individuals who are such deeply involved insiders that they control the levers of power).
69. Administrative law scholars have done a good deal of work on this topic, although most focus on different issues than those discussed here.
70. For a similar critique challenging the "usual parochialism story" that depicts localities as hostile to religious minorities, see Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. 1810, 1815 (2004).
71. Romer v. Evans, 517 U.S. 620 (1996). The case has been cast in these terms by scholars of local government law, but not by constitutional theorists.
72. Although election law focuses on minority-majority districts, the main intellectual push behind them is that they are the best means for creating a statistically integrated legislature. In the words of Richard Pildes, "[t]he very theory of districted elections. .. is that democratic institutions are best designed by. .. fragmenting majoritarian domination. Districted elections empower local minorities who would otherwise be swallowed up in a system not self-consciously designed to ensure some representation of their interests."
73. Richard H. Pildes, Diffusion of Political Power and the Voting Rights Act, 24 HARV. J.L. & PUB. POL'Y 119, 124 (2000).
74. See, e.g., Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2317 (2006) ("A critical mechanism to promote internal separation of powers is bureaucracy. ... [B]ureaucracy creates a civil service not beholden to any particular administration and a cadre of experts with a long-term institutional worldview.").
75. Thanks to Jiewuh Song for suggesting the phrase.
76. Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified as amended in scattered sections of the U.S.C.).
77. David S. Meyer, Civil Disobedience, in ENCYCLOPEDIA OF DEMOCRATIC THOUGHT 60, 60 (Paul Barry Clarke & Joe Foweraker eds., 2001).
78. see also JOHN RAWLS, A THEORY OF JUSTICE 363, 365 (1971) (defining civil disobedience within a "more or less just democratic state" as "a political act not only in the sense that it is addressed to the majority that holds political power, but also because it is an act guided and justified by political principles").
79. MARTIN LUTHER KING, JR., Letter from Birmingham City Jail, in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 289, 294 (James M. Washington ed., 1986).
80. See generally, e.g., Robert N. Strassfeld, Lose in Vietnam, Bring the Boys Home, 82 N.C. L. REV. 1891 (2004) (documenting the strategy of Vietnam protesters to counter their opponents' equation of dissent and disloyalty). Steven Shiffrin even goes so far as to argue that dissent functions like a "cultural glue that binds [dissenters] to the political community." STEVEN H. SHIFFRIN, DISSENT, INJUSTICE, AND THE MEANINGS OF AMERICA 18 (1999).
81. Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 6.
82. HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 67 (1965).
83. The lessons Kalven draws from civil-rights protests have apparently not been lost on the mayor of San Francisco, whose staff "made sure that when the mayor came out swinging against Bush's backing for a constitutional amendment banning same-sex marriage, he was standing in front of an American flag." Phillip Matier & Andrew Ross, Newsom Hasn't Been Ad-Libbing, S.F. CHRON., Feb. 29, 2004, at A19.
84. Michael Walzer, The Obligation to Disobey, 77 ETHICS 163, 167 (1967).
85. HANNAH ARENDT, Civil Disobedience, in CRISES OF THE REPUBLIC 49, 96 (1972).
86. STEPHEN L. CARTER, THE DISSENT OF THE GOVERNED: A MEDITATION ON LAW, RELIGION, AND LOYALTY 78 (1998).
87. MICHAEL WALZER, The Problem of Citizenship, in OBLIGATIONS: ESSAYS ON DISOBEDIENCE, WAR, AND CITIZENSHIP 203, 220 (1970).
88. See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
89. Lockyer v. City of San Francisco, 95 P.3d 459, 467 (Cal. 2004).
90. Dean E. Murphy, San Francisco Forced To Halt Gay Marriages, S.F. CHRON., Mar. 12, 2004, at A1.
91. Consider the extant work, beginning with Ernest Young's argument analogizing states to the "shadow governments" found in European systems. Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1286-87 (2004).
92. For a discussion of the role that states play in monitoring federal officials and training the loyal opposition, see Akhil Reed Amar, Some New World Lessons for the Old World, 58 U. CHI. L. REV. 483, 499-505 (1991).
93. Vicki Jackson observes that the usefulness of "direct[ing] political activism and organizing" to states is precisely because their borders do not map on to divisive political identities.
94. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2221-23 (1998).
95. Judith Resnik discusses localism's role in promoting international rights and transnational cooperation. Judith Resnik, Law's Migration: American Exceptionalism, SilentDialogues, and Federalism's Multiple Ports of Entry, 115 YALE. L.J. 1564 (2006).
96. Daryl Levinson describes the role political parties play in diffusing power vertically.
97. See generally Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 938-44 (2005).
98. Lockyer, 95 P.3d 459.
99. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
100. Pam Belluck, Romney Won't Let Gay Outsiders Wed in Massachusetts, N.Y. TIMES, Apr. 25, 2004, at N1. The state ultimately abandoned this policy and ended up marrying samesex couples from out of state. Katie Zezima, Massachusetts: Same-Sex Couples from Other States May now Marry, N.Y. TIMES, Aug. 1, 2008, at A13.
101. Perry v. Brown, 671 F.3d 1052 (9th Cir), cert. granted sub nom. Hollingsworth v. Perry, 133 S. Ct. 786 (Dec. 7, 2012) (No. 12-144). In the interest of full disclosure, I should note that I supervise a program that has allowed Yale Law students to work on this case.
102. Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 5 (1st Cir. 2012).
103. ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 99 (1975).
104. VIRGINIA WOOLF, A ROOM OF ONE'S OWN 75 (reprt. 1991) (1929). With apologies to Virginia Woolf.
105. Thanks to Yair Listokin for pushing me on this point.
106. Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099 (2005).
107. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 885 (1963).
108. See Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641, 1688 (2008).