Does the logic of collective action explain federalism doctrine?

Stanford Law Review

Volumn 66, Issue 2, 2014, Pages 217-302

  Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 84892729538     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (529)

1. For the locus classicus of this observation with respect to Congress, see Kenneth A. Shepsle, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 Int'l. Rev. L. & Econ. 239, 244 (1992).
2. The most obvious of these are the Senate and the Electoral College. See U.S. Const. art. I, § 3, cl. 1 (Senate).
3. The most obvious of these are the Senate and the Electoral College. See U.S. Const. art. I, § 3, cl. 1 (Senate).
4. See Russell R. Wheeler & Cynthia Harrison, Creating the Federal Judicial System 4 (1994).
5. This formulation raises an important normative question about the nature of representation in a federal government: how can elected institutions, including Congress and the President, simultaneously represent both aggregate populations of electors and also respect institutional commitments, such as federalism or a role fidelity to their respective branches? For the purposes of this Article, I bracket the hard normative question of how to conceptualize representation in a compound democratic republic. For an insightful analysis through a comparative and historical lens, see generally Bernard Manin, The Principles of Representative Government (1997).
6. 469 U.S. 528, 550-51 (1985).
7. United States v. Lopez, 514 U.S. 549, 578 (1995) (Kennedy, J., concurring).
8. It is common for judges and scholars to align the term "federalism" with claims and outcomes that favor the states over the national government. In this Article, I try to avoid this imprecise and selective usage, except when I am quoting and discussing sources speaking in such terms. Instead, I use the term "federalism" more abstractly to refer to an arrangement of governmental powers across jurisdictions of different sizes that coexist in the same geographic territory. For a useful history of the term, see generally S. Rufus Davis, The Federal Principle: A Journey Through Time in Quest of a Meaning (1978).
9. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
10. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
11. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
12. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
13. Coase famously explained that when transaction costs are zero, an efficient result is reached regardless of the initial assignment of a legal entitlement. R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 8 (1960).
14. Elizabeth Hoffman & Matthew L. Spitzer, The Enduring Power of Coase, 54 J.L. & Econ. S63, S64 (2011).
15. Elizabeth Hoffman & Matthew L. Spitzer, The Enduring Power of Coase, 54 J.L. & Econ. S63, S64 (2011).
16. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 25, 26, and 42 U.S.C.).
17. See, e.g., Neil S. Siegel, Free Riding on Benevolence: Collective Action and the Minimum Coverage Provision, 75 Law & Contemp. Probs. 29, 62-63 (2012) (identifying an "interstate... collective action problem" as the justification for federal intervention in the health care market).
18. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2612 (2012) (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
19. Neil S. Siegel, Collective Action Federalism and Its Discontents, 91 Tex. L. Rev. 1937, 1939-40 (2013)
20. See Sebelius, 132 S. Ct. at 2644-50 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (discussing the constitutionality of I.R.C. § 5000A (2012).
21. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
22. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 552 (1954) (coining and defining the phrase).
23. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 552 (1954) (coining and defining the phrase).
24. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985).
25. For a succinct history of federalism doctrine in the past three decades, see Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429, 452-68 (2002).
26. United States v. Lopez, 514 U.S. 549, 578 (1995) (Kennedy, J., concurring).
27. Note that unlike Justice Ginsburg's health care-specific argument in Sebelius, Justice Kennedy's argument does operate at a wholesale, and not a retail, level. The argument developed in this Article focuses largely on the wholesale, rather than the tailored, use of collective action arguments as templates for the general development of federalism jurisprudence.
28. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
29. Consonant with the body of jurisprudence and literature analyzed here, I bracket the matter of collective action problems among localities within a state. For treatments of spillover effects between local government units, with attention to the problem of defining local boundaries, see, for example, Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115, 1132-44 (1996) (analyzing the relationship between boundary definition and spillover problems).
30. Jerry Frug, Decentering Decentralization, 60 U. Chi. L. Rev. 253, 286 (1993).
31. Christopher Berry, Piling On: Multilevel Government and the Fiscal Common-Pool, 52 Am. J. Pol. Sci. 802, 805-06 (2008) (identifying the common-pool problem and documenting such effects empirically).
32. For an introduction to the diverse lines of doctrine at stake, see Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, 80 U. Chi. L. Rev. 575, 586-611 (2013).
33. See Mikhail Filippov et al., Designing Federalism: A Theory of SelfSustainable Federal Institutions 34, 227 (2004) (noting the possibility of multiple potential federalism equilibria). Filippov et al. argue that this premise suggests the necessity of fixed rules that define "the core institutional structure of the federal center and its relationship to federal subjects. "
34. Pamela E. Oliver, Formal Models of Collective Action, 19 Ann. Rev. Soc. 271, 275 (1993).
35. Douglas D. Heckathorn, The Dynamics and Dilemmas of Collective Action, 61 Am. Soc. Rev. 250, 253-60 (1996) (identifying five distinct formal models within the supposedly unitary category of collective action).
36. Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action 2 (James E. Alt & Douglass C. North eds., 1990). Ostrom is focused on the problem of managing common-pool resources.
37. This tracks Elinor Ostrom's point that there is no one "specific set of rules" that will solve collective action problems in the management of common-pool resources. Elinor Ostrom, Understanding Institutional Diversity 255 (2005).
38. I should be clear about the limits of the claim advanced here: judicial safeguards for federalism might be justified on terms other than the failure of states' political safeguards, such as the Constitution's original meaning. I do not address such arguments here. Rather, my argument is focused on the interaction between one particular strand of political and economic theory (about collective action) and judicial doctrine. Of course, there have been cogent arguments advanced against other potential foundations for federalism doctrine, such as the inference from an original public understanding of the Constitution's diffuse structure. See, e.g., John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2008 (2009) [hereinafter Manning, Generality Problem] (rejecting many other originalist justifications for federalism jurisprudence on the ground that "[w]hen judges enforce freestanding 'federalism,' they ignore the resultant bargains and tradeoffs that made their way into the document").
39. John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1672 (2004) (arguing that "the modern insights of statutory textualism also preclude the application of strong purposivism when interpreting a precise constitutional amendment such as the Eleventh Amendment"). Although I find much to commend in Manning's arguments (and others) against other justifications for federalism doctrine, I do not aim here to canvas the whole waterfront of arguments for federalism doctrine. It suffices to say that my choice to focus on collective action justifications for federalism jurisprudence here reflects an implicit judgment that such arguments are among the most sophisticated and compelling available.
40. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
41. By contrast, courts tend to offer only partially theorized accounts of federalism. In consequence, I focus here largely on scholarship and not judicial opinions.
42. Important earlier works demonstrating the importance of collective action mechanisms include Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1494-96 (1987) (book review) (framing interstate interactions in terms of externalities problems).
43. Maxwell L. Stearns, A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine, 45 Wm. & Mary L. Rev. 1, 69-82 (2003) (using an insightful game-theoretic model to gloss dormant Commerce Clause doctrine).
44. John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1672 (2004) (arguing that "the modern insights of statutory textualism also preclude the application of strong purposivism when interpreting a precise constitutional amendment such as the Eleventh Amendment"). Although I find much to commend in Manning's arguments (and others) against other justifications for federalism doctrine, I do not aim here to canvas the whole waterfront of arguments for federalism doctrine. It suffices to say that my choice to focus on collective action justifications for federalism jurisprudence here reflects an implicit judgment that such arguments are among the most sophisticated and compelling available.
45. Gillian E. Metzger, The Constitutional Legitimacy of Freestanding Federalism, 122 Harv. L. Rev. F. 98, 99-107 (2009) (defending the propriety of justiciable federalism principles).
46. Cf. Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809, 811 (2007) ("Second-order design issues concern the legal institutions that are used to implement the first-order policy goals. ").
47. Neil S. Siegel, Collective Action Federalism and Its Discontents, 91 Tex. L. Rev. 1937, 1939-40 (2013)
48. See 1 The Records of the Federal Convention of 1787, at 20 (Max Farrand ed., rev. ed. 1966) (establishing that the Virginia Plan was introduced on May 29, 1787).
49. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 60-64 (1996) (describing the origins of the Virginia Plan).
50. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 60-64 (1996) (describing the origins of the Virginia Plan).
51. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 60-64 (1996) (describing the origins of the Virginia Plan).
52. See Kurt T. Lash, "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8, 87 Notre Dame L. Rev. 2123, 2134-42 (2012) (providing an alternative view of the Convention's trajectory).
53. Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 6 (2010). Structural principles "explain how the Constitution works in practice and how it should work. "
54. Jack M. Balkin, Living Originalism 142 (2011). There is much more to Balkin's rich analysis, and I focus here on a single, albeit surely a keystone, feature of that analysis.
55. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
56. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
57. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
58. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
59. Coase famously explained that when transaction costs are zero, an efficient result is reached regardless of the initial assignment of a legal entitlement. R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 8 (1960).
60. Coase famously explained that when transaction costs are zero, an efficient result is reached regardless of the initial assignment of a legal entitlement. R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 8 (1960).
61. Coase famously explained that when transaction costs are zero, an efficient result is reached regardless of the initial assignment of a legal entitlement. R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 8 (1960).
62. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
63. Jack M. Balkin, Resolution VI as a Principle of Construction, Balkinization (Aug. 12, 2011, 5:55 AM), http://balkin.blogspot.com/2011/08/resolutionvi-as-principle-of.html.
64. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
65. Balkin is admirably candid about his substantive commitments. See, e.g., Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev. 815, 867 ("I am a liberal defending the modern state.... ").
66. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
67. Neil S. Siegel, Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action, 62 Duke L.J. 797, 803-05 (2012).
68. See, e.g., Richard E. Levy, Federalism and Collective Action, 45 U. Kan. L. Rev. 1241, 1268 (1997) (arguing that "the enumerated federal powers encompass areas where collective action problems such as public goods, externalities, and the prisoner's dilemma prevented effective collective decision making").
69. See, e.g., Peter J. Smith, Federalism, Lochner, and the Individual Mandate, 91 B.U. L. Rev. 1723, 1737 (2011).
70. Ernest A. Young, Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law, 75 Law & Contemp. Probs. 157, 171 (2012).
71. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
72. Note that this argument is distinct from the claim that individuals' actions will generate collectively suboptimal outcomes due to free riding, as has been argued in the context of the individual mandate provision. For a critical view of that claim, see Douglas A. Kahn & Jeffrey H. Kahn, Free Rider: A Justification for Mandatory Medical Insurance Under Health Care Reform?, 109 Mich. L. Rev. First Impressions 78 (2011), http://www.michiganlawreview.org/assets/fi/109/kahn.pdf. The argument considered here focuses on states, not natural persons.
73. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
74. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
75. Neil S. Siegel, Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action, 62 Duke L.J. 797, 803-05 (2012).
76. Robert D. Cooter, The Strategic Constitution 106-07 (2000) (discussing spillovers and arguing for the use of "special districts").
77. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
78. Neil S. Siegel, Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action, 62 Duke L.J. 797, 803-05 (2012).
79. Neil S. Siegel, Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action, 62 Duke L.J. 797, 803-05 (2012).
80. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
81. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
82. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
83. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
84. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
85. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
86. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
87. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
88. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
89. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
90. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
91. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
92. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
93. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
94. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
95. Neil S. Siegel, Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action, 62 Duke L.J. 797, 803-05 (2012).
96. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
97. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985) ("State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power. ").
98. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 552 (1954) (coining and defining the phrase).
99. The Federalist No. 48, at 308-09 (James Madison) (Clinton Rossiter ed., 1961) (denying the proposition that it is "sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power").
100. The Federalist No. 48, at 308-09 (James Madison) (Clinton Rossiter ed., 1961) (denying the proposition that it is "sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power").
101. See Troy E. Smith, Divided Publius: Democracy, Federalism, and the Cultivation of Public Sentiment, 69 Rev. Pol. 568, 574-78 (2007) (comparing Madison's and Hamilton's views).
102. The Federalist No. 48, at 308-09 (James Madison) (Clinton Rossiter ed., 1961) (denying the proposition that it is "sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power").
103. Contemporary economic analysis suggests that a national entity can dominate through a strategy of "divide-and-rule. " See Daron Acemoglu et al., Kleptocracy and Divideand-Rule: A Model of Personal Rule, 2 J. Eur. Econ. Ass'n 162, 164 (2004) ("The logic of the divide-and-rule strategy is to enable a ruler to bribe politically pivotal groups..., ensuring that he can remain in power against challenges. "). Article I, Section 9 of the Constitution, however, limits Congress's ability to engage in economic preferences.
104. See, e.g., U.S. Const. art. I, § 9, cl. 6 (barring any "Preference... to the Ports of one State over those of another"). That is, the Framers formulated an effective solution to the most important form of strategic action by the national government.
105. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 552 (1954) (coining and defining the phrase).
106. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 552 (1954) (coining and defining the phrase).
107. Cf. Steven G. Calabresi & Nicholas Terrell, The Number of States and the Economics of American Federalism, 63 Fla. L. Rev. 1, 18 (2011) (calling the Seventeenth Amendment a "crippling blow to the states"). But it is far from clear that this should be so absent some nonoriginalist commitment to federalism values for their own sake.
108. Andrzej Rapacynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 Sup. Ct. Rev. 341, 373.
109. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215, 282 & n.267 (2000).
110. But see Paul Frymer & Albert Yoon, Political Parties, Representation, and Federal Safeguards, 96 Nw. U. L. Rev. 977, 985-89 (2002) (disputing this claim).
111. Arizona v. Inter Tribal Council of Arizona, Inc., the Court divided over the scope of state authority necessary to define the electorate free of federal direction.
112. 133 S. Ct. 2247, 2257-58 (2013) (emphasizing states' power to define the electorate, and the corresponding limitation on national authority under the Elections Clause).
113. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-51 (1985).
114. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-51 (1985).
115. Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 Stan. L. Rev. 1031, 1042 (1997).
116. Todd E. Pettys, Competing for the People's Affection: Federalism's Forgotten Marketplace, 56 Vand. L. Rev. 329, 333 (2003) ("With two separate governments vying to win their trust, the Framers reasoned, the people would be free continually to assess the sovereigns' conduct and capabilities, and to confer or withdraw regulatory power as they deemed appropriate. ").
117. The Federalist No. 48, at 308-09 (James Madison) (Clinton Rossiter ed., 1961) (denying the proposition that it is "sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power").
118. Lest this all seem far-fetched, we might recall the role that Madison, along with Thomas Jefferson, played in organizing state resistance to the Alien and Sedition Acts. For a capsule account of the relevant historical context, see Geoffrey R. Stone, Perilous Times: Free Speech in Wartime 29-44 (2004).
119. Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 Tex. L. Rev. 1459, 1479 (2001) ("[T]he federal courts must play backup to Congress, to ensure that any unconstitutional legislation that emerges from the political process... will not survive. ").
120. The Federalist No. 48, at 308-09 (James Madison) (Clinton Rossiter ed., 1961) (denying the proposition that it is "sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power").
121. Alison L. LaCroix, The Ideological Origins of American Federalism 179 (2010).
122. The availability of political safeguards for federalism might justify a deflationary recalibration of judicial review's intensity. See, e.g., Jeffrey Goldsworthy, Structural Judicial Review and the Objection from Democracy, 60 U. Toronto L.J. 137, 142 (2010) ("[I]t can be argued that if the national parliament is structured so as to represent both national and state majorities, judges have good reason to adopt a more deferential approach.... ").
123. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
124. Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1065 (1995).
125. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
126. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
127. For an excellent introduction to the tragedy of the commons problem, see Lee Anne Fennell, Commons, Anticommons, Semicommons, in Research Handbook on the Economics of Property Law 35 (Kenneth Ayotte & Henry E. Smith eds., 2010).
128. Roderick M. Hills, Jr., The Eleventh Amendment as Curb on Bureaucratic Power, 53 Stan. L. Rev. 1225, 1244 (2001) ("State autonomy... is a collective good analogous to balanced budgets. ").
129. United States v. Lopez, 514 U.S. 549, 578 (1995) (Kennedy, J., concurring).
130. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
131. Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169, 1194-200 (2001) [hereinafter Devins, Congressional Factfinding] (doubting whether the political economy of the federal legislative process conduces to serious consideration of federal concerns).
132. Neal Devins, The Judicial Safeguards of Federalism, 99 Nw. U. L. Rev. 131, 134 (2004).
133. Neal Devins, The Judicial Safeguards of Federalism, 99 Nw. U. L. Rev. 131, 134 (2004).
134. William H. Riker, The Senate and American Federalism, 49 Am. Pol. Sci. Rev. 452, 455-69 (1955) (arguing that the Senate has protected states' interests only sporadically, with the Seventeenth Amendment proving the culmination of a long process of centralization).
135. Neal Devins, The Judicial Safeguards of Federalism, 99 Nw. U. L. Rev. 131, 134 (2004).
136. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75, 117-24 (2001) (arguing that "some states will harness the federal lawmaking power to impose their policy preferences on other states to the former states' own advantage" (emphases omitted).
137. see also Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 Vill. L. Rev. 951, 961-72 (2001) (same).
138. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75, 117-24 (2001) (arguing that "some states will harness the federal lawmaking power to impose their policy preferences on other states to the former states' own advantage" (emphases omitted).
139. Gun-Free School Zones Act at issue in United States v. Lopez, 514 U.S. 549 (1995).
140. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
141. cf. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 33-34 (2007) (analyzing interest group competition in Congress that may be relevant to federalism outcomes).
142. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
143. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75, 117-24 (2001) (arguing that "some states will harness the federal lawmaking power to impose their policy preferences on other states to the former states' own advantage" (emphases omitted).
144. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
145. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
146. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
147. Both sides in the federalism debate are thus focused on a single, specific moment in the political economy of federalism-either the threshold government responses to a policy problem, or the ensuing national legislative and regulatory process that generates federal responses. Each side identifies a specific dynamic at play in that moment, and then draws general conclusions from that observation. Neither side, however, offers an integrated account of the entire policymaking process-from identification to resolution-that accounts for diverse kinds of collective action problems along the way.
148. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
149. A negative payoff here can be imagined as a prison term of years; a zero result reflects being set free. The row player's options are represented on the vertical axis while the column player's options are represented on the horizontal axis.
150. Cf. Robert Axelrod, The Evolution of Cooperation 9 (1984) ("The Prisoner's Dilemma is simply an abstract formulation of some very common and interesting situations in which what is best for each person individually leads to mutual defection, whereas everyone would have been better off with mutual cooperation. ").
151. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
152. The Nash equilibrium is [t]he central solution concept in game theory. It is based on the principle that the combination of strategies that players are likely to choose is one in which no player could do better by choosing a different strategy given the ones the others choose. A pair of strategies will form a Nash equilibrium if each strategy is one that cannot be improved upon given the other strategy. We establish whether a particular strategy combination forms a Nash equilibrium by asking if either player has an incentive to deviate from it. Douglas G. Baird et al., Game Theory and the Law 310 (1994) (italics omitted).
153. Richard H. McAdams, Beyond the Prisoners' Dilemma: Coordination, Game Theory, and Law, 82 S. Cal. L. Rev. 209, 212 (2009).
154. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
155. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
156. The Nash equilibrium is [t]he central solution concept in game theory. It is based on the principle that the combination of strategies that players are likely to choose is one in which no player could do better by choosing a different strategy given the ones the others choose. A pair of strategies will form a Nash equilibrium if each strategy is one that cannot be improved upon given the other strategy. We establish whether a particular strategy combination forms a Nash equilibrium by asking if either player has an incentive to deviate from it. Douglas G. Baird et al., Game Theory and the Law 310 (1994) (italics omitted).
157. The literature also contains a highly technical strand, which allows for the creation of highly particularized formal models of collective action. For a technical overview, see generally Drew Fudenberg & Jean Tirole, Game Theory (1991).
158. David M. Kreps, Game Theory and Economic Modelling (1990)
159. Steven Tadelis, Game Theory: An Introduction (2013).
160. Steven Tadelis, Game Theory: An Introduction (2013).
161. My analysis, however, remains within a relatively narrow rational choice framework, and does not address the argument that "perceptions of efficacy... ideology, feelings of responsibility, social pressures, and other purposive/solidary dimensions of motivation" also change collective action dynamics. Terry M. Moe, A Calculus of Group Membership, 24 Am. J. Pol. Sci. 593, 629 (1980). In modeling states' (as opposed to individuals') incentives, narrow rationality may well be the better simplification.
162. The Nash equilibrium is [t]he central solution concept in game theory. It is based on the principle that the combination of strategies that players are likely to choose is one in which no player could do better by choosing a different strategy given the ones the others choose. A pair of strategies will form a Nash equilibrium if each strategy is one that cannot be improved upon given the other strategy. We establish whether a particular strategy combination forms a Nash equilibrium by asking if either player has an incentive to deviate from it. Douglas G. Baird et al., Game Theory and the Law 310 (1994) (italics omitted).
163. This tracks Elinor Ostrom's point that there is no one "specific set of rules" that will solve collective action problems in the management of common-pool resources. Elinor Ostrom, Understanding Institutional Diversity 255 (2005).
164. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
165. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
166. See Russell Hardin, Acting Together, Contributing Together, 3 Rationality & Soc'y 365, 366-68, 377 (1991) (identifying and exploring the difference).
167. In addition to inequality of benefits and heterogeneity of benefits, which are discussed in the text, there is also the possibility of asymmetries between contributions and benefits. I do not address this possibility because it is not clearly of importance in the context being addressed here.
168. See Gerald Marwell & Pamela Oliver, The Critical Mass in Collective Action: A Micro-Social Theory 10 (1993) ("Homogenous groups yield very different results from heterogeneous groups. ").
169. Wendy L. Hansen et al., The Logic of Private and Collective Action, 49 Am. J. Pol. Sci. 150, 151, 163 (2005) (suggesting that firms engaged in lobbying "are motivated as much by private goods as by public goods")
170. David Lowery et al., Collective Action and the Mobilization of Institutions, 66 J. Pol. 684, 693 (2004) (identifying free riding effects in large populations of manufacturing firms that inhibit effective lobbying).
171. See Gerald Marwell & Pamela Oliver, The Critical Mass in Collective Action: A Micro-Social Theory 10 (1993) ("Homogenous groups yield very different results from heterogeneous groups. ").
172. Heterogeneity of participants' interests and heterogeneity of participants' resources are distinct and not necessarily correlated. Nonetheless, they can have the same effect on collective action dynamics. See Douglas D. Heckathorn, Collective Action and Group Heterogeneity: Voluntary Provision Versus Selective Incentives, 58 Am. Soc. Rev. 329, 329-30 (1993) (distinguishing heterogeneity of resources and heterogeneity of interest, but noting similar effects).
173. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
174. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
175. Pamela E. Oliver & Gerald Marwell, The Paradox of Group Size in Collective Action: A Theory of the Critical Mass. II, 53 Am. Soc. Rev. 1, 3 (1988).
176. Rene Cortazar, Non-Redundant Groups, the Assurance Game and the Origins of Collective Action, 92 Pub. Choice 41, 45-50 (1997) (modeling the incentives of the critical masses' members as an assurance game, which does lead to collective action). Larger groups are also more likely to act than smaller groups even when free riders cannot be excluded from a collective good "if the marginal cost of effort rises sufficiently quickly with respect to resources contributed. "
177. Joan Esteban & Debraj Ray, Collective Action and the Group Size Paradox, 95 Am. Pol. Sci. Rev. 663, 664 (2001).
178. Joan Esteban & Debraj Ray, Collective Action and the Group Size Paradox, 95 Am. Pol. Sci. Rev. 663, 664 (2001).
179. See George J. Stigler, Free Riders and Collective Action: An Appendix to Theories of Economic Regulation, 5 Bell J. Econ. & Mgmt. Sci. 359, 364-65 (1974).
180. See Gerald Marwell & Pamela Oliver, The Critical Mass in Collective Action: A Micro-Social Theory 10 (1993) ("Homogenous groups yield very different results from heterogeneous groups. ").
181. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
182. Gerald Marwell et al., Social Networks and Collective Action: A Theory of the Critical Mass. III, 94 Am. J. Soc. 502, 528 (1988).
183. See Gerald Marwell & Pamela Oliver, The Critical Mass in Collective Action: A Micro-Social Theory 10 (1993) ("Homogenous groups yield very different results from heterogeneous groups. ").
184. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
185. I am grateful to Lee Fennell for underscoring this last point to me.
186. Cf. Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States 37 (1970) (connecting the availability of voice to the desirability of exit).
187. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
188. Philip Pettit, Free Riding and Foul Dealing, 83 J. Phil. 361, 373 (1986).
189. A Hobbesian state of nature is one in which the absence of centralized authority means "continual fear and danger of violent death, " such that "the life of man [is] solitary, poor, nasty, brutish, and short. " Thomas Hobbes, Leviathan 76 (Edwin Curley ed., Hackett Publ'g Co. 1994) (1651).
190. Philip Pettit, Free Riding and Foul Dealing, 83 J. Phil. 361, 373 (1986).
191. Philip Pettit, Free Riding and Foul Dealing, 83 J. Phil. 361, 373 (1986).
192. Moving beyond the constraints of a rational actor model, it is also possible to posit that the larger the group, the more free riders there will be, and the greater the resentment felt by members of the operative subgroup.
193. Pamela E. Oliver, Formal Models of Collective Action, 19 Ann. Rev. Soc. 271, 275 (1993).
194. See Michael Taylor & Hugh Ward, Chickens, Whales, and Lumpy Goods: Alternative Models of Public-Goods Provision, 30 Pol. Stud. 350, 352, 363-64 (1982) (associating lumpiness with nonexcludable public goods). I have chosen to characterize the dynamic here in terms of the character of the relevant good. Of course, one might also frame it in terms of payoffs. It seems to me that focusing on the nature of the good is a more useful heuristic for explanatory purposes.
195. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
196. Contributions tend to have "strongly complementary elements"-as is the case with parts of a bridge or the walls that make up a house. Lee Anne Fennell, Lumpy Property, 160 U. Pa. L. Rev. 1955, 1957 (2012).
197. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
198. Contributions tend to have "strongly complementary elements"-as is the case with parts of a bridge or the walls that make up a house. Lee Anne Fennell, Lumpy Property, 160 U. Pa. L. Rev. 1955, 1957 (2012).
199. Thomas C. Schelling, Micromotives and Macrobehavior 221 (1978) (noting the possibility of stable cooperating subgroups).
200. See Michael Taylor & Hugh Ward, Chickens, Whales, and Lumpy Goods: Alternative Models of Public-Goods Provision, 30 Pol. Stud. 350, 352, 363-64 (1982) (associating lumpiness with nonexcludable public goods). I have chosen to characterize the dynamic here in terms of the character of the relevant good. Of course, one might also frame it in terms of payoffs. It seems to me that focusing on the nature of the good is a more useful heuristic for explanatory purposes.
201. This point was first developed in Anthony Downs, An Economic Theory of Democracy 49-50 (1957), which offers the path-marking account of voting from a rational actor perspective.
202. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
203. See Pamela Oliver et al., A Theory of the Critical Mass. I. Interdependence, Group Heterogeneity, and the Production of Collective Action, 91 Am. J. Soc. 522, 533-34 (1985) (explaining that, depending on the gradient of the relevant slope, a linear production function will induce every player to "contribute either everything possible or nothing"). The point can be illustrated by imagining a multiplying pot. Imagine ten players, each of whom has the chance to contribute, have their contribution tripled, and get back one-tenth of the total. The result is a prisoners' dilemma, in which it is always better not to contribute. If contributions are multiplied by eleven, however, it is always worth contributing. I am again grateful to Lee Fennell for this example.
204. Heterogeneity of participants' interests and heterogeneity of participants' resources are distinct and not necessarily correlated. Nonetheless, they can have the same effect on collective action dynamics. See Douglas D. Heckathorn, Collective Action and Group Heterogeneity: Voluntary Provision Versus Selective Incentives, 58 Am. Soc. Rev. 329, 329-30 (1993) (distinguishing heterogeneity of resources and heterogeneity of interest, but noting similar effects).
205. Paul Pierson, Politics in Time: History, Institutions, and Social Analysis 33 (2004).
206. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
207. For support based on simulations of interdependent action, see Michael W. Macy, Chains of Cooperation: Threshold Effects in Collective Action, 56 Am. Soc. Rev. 730, 734, 745-46 (1991) (using computer simulations to model situations in which "participation may be directly triggered by the actions of others, and... thresholds need not correspond to the point at which an individual investment becomes costeffective" and finding that "interdependence facilitates the coordination of responses needed to escape a noncooperative equilibrium").
208. Cf. Brian Barry, Sociologists, Economists and Democracy 16 (1970) (noting this problem in the parallel context of voting).
209. Elinor Ostrom, Collective Action and the Evolution of Social Norms, 14 J. Econ. Persp. 137, 148 (2000); accord Ostrom, supra note 28, at 14.
210. Elinor Ostrom, Collective Action and the Evolution of Social Norms, 14 J. Econ. Persp. 137, 148 (2000); accord Ostrom, supra note 28, at 14.
211. Heterogeneity of participants' interests and heterogeneity of participants' resources are distinct and not necessarily correlated. Nonetheless, they can have the same effect on collective action dynamics. See Douglas D. Heckathorn, Collective Action and Group Heterogeneity: Voluntary Provision Versus Selective Incentives, 58 Am. Soc. Rev. 329, 329-30 (1993) (distinguishing heterogeneity of resources and heterogeneity of interest, but noting similar effects).
212. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
213. Robert Cooter, Expressive Law and Economics, 27 J. Legal Stud. 585, 587 (1998).
214. For the standard definition of conventions, see David K. Lewis, Convention: A Philosophical Study 78 (1969).
215. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
216. For applications in the legal scholarship, see Richard H. McAdams & Eric B. Rasmusen, Norms and the Law, in 2 Handbook of Law and Economics 1573, 1573-618 (A. Mitchell Polinsky & Steven Shavell eds., 2007).
217. Thomas Schelling, The Strategy of Conflict 57 (paperback ed. 1980).
218. Richard H. McAdams, The Focal Point Theory of Expressive Law, in 7 Encyclopedia of Law and Economics 167, 167 (Francesco Parisi ed., 2d ed. 2011).
219. This may happen, for example, through third-party enforcement. See Paul G. Mahoney & Chris William Sanchirico, Norms, Repeated Games, and the Role of Law, 91 Calif. L. Rev. 1281, 1295-99 (2003) (modeling a "defect-for-deviate" strategy that can underpin rational community enforcement of norms).
220. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 352 (1997) (emphasis omitted). The same is true for Mancur Olson's theory of "selective incentives" as a way of accounting for the existence of large associations.
221. Jon Elster, The Cement of Society: A Study of Social Order 40 (1989) ("The provision of selective incentives cannot be the general solution to the collective action problem. To assume there is a central authority offering incentives often requires another collective action problem to have been solved already. ").
222. This tracks Elinor Ostrom's point that there is no one "specific set of rules" that will solve collective action problems in the management of common-pool resources. Elinor Ostrom, Understanding Institutional Diversity 255 (2005).
223. For a useful model of norm entrepreneurship, see Eric A. Posner, Symbols, Signals, and Social Norms in Politics and the Law, 27 J. Legal Stud. 765, 773 (1998).
224. See Ann E. Carlson, Recycling Norms, 89 Calif. L. Rev. 1231, 1239-41 (2001) (canvassing debates about the origins of norms).
225. See Ann E. Carlson, Recycling Norms, 89 Calif. L. Rev. 1231, 1239-41 (2001) (canvassing debates about the origins of norms).
226. See Maxwell L. Stearns, The Public Choice Case Against the Item Veto, 49 Wash. & Lee L. Rev. 385, 402-06 (1992).
227. Maxwell L. Stearns & Todd J. Zywicki, Public Choice Concepts and Applications in Law 68-72 (2009).
228. Maxwell L. Stearns & Todd J. Zywicki, Public Choice Concepts and Applications in Law 68-72 (2009).
229. Beyond norms, recent work shows that some games may be solved by novel mechanisms such as money-back guarantees. See Julia Y. Lee, Gaining Assurances, 2012 Wis. L. Rev. 1137, 1139-40. How such a mechanism might translate to the public law context is an interesting question beyond the scope of my current inquiry.
230. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
231. Cf. Robert Axelrod, The Evolution of Cooperation 9 (1984) ("The Prisoner's Dilemma is simply an abstract formulation of some very common and interesting situations in which what is best for each person individually leads to mutual defection, whereas everyone would have been better off with mutual cooperation. ").
232. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
233. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
234. John A. List, Friend or Foe? A Natural Experiment of the Prisoner's Dilemma, 88 Rev. Econ. & Stat. 463, 463, 470 (2006). Interestingly, this study finds that the magnitude of the stakes does not change strategic choices.
235. Steven Tadelis, Game Theory: An Introduction (2013).
236. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
237. Jon Elster, The Cement of Society: A Study of Social Order 40 (1989) ("The provision of selective incentives cannot be the general solution to the collective action problem. To assume there is a central authority offering incentives often requires another collective action problem to have been solved already. ").
238. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
239. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
240. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
241. Russell Hardin, Collective Action 17 (1982) ("Public goods are defined by two properties: jointness of supply and impossibility of exclusion. " (emphases omitted)
242. Eric A. Posner, Constitutional Possibility and Constitutional Evolution, in Law, Economics and Evolutionary Theory 131, 134 (Peer Zumbansen & Gralf-Peter Calliess eds., 2011).
243. Paul G. Mahoney & Chris W. Sanchirico, Competing Norms and Social Evolution: Is the Fittest Norm Efficient?, 149 U. Pa. L. Rev. 2027, 2039-40 (2001).
244. Drew Fudenberg & David K. Levine, The Theory of Learning in Games 138 (1998) ("[I]n general games, risk-dominant equilibria may fail to be Pareto efficient. The conclusion from the study of stochastic adjustment models is that learning procedures tend to select equilibria that are relatively robust to mutations (risk-dominant equilibria), and this is a different criterion than Pareto efficiency. ").
245. Jon Elster, The Cement of Society: A Study of Social Order 40 (1989) ("The provision of selective incentives cannot be the general solution to the collective action problem. To assume there is a central authority offering incentives often requires another collective action problem to have been solved already. ").
246. Paul G. Mahoney & Chris W. Sanchirico, Competing Norms and Social Evolution: Is the Fittest Norm Efficient?, 149 U. Pa. L. Rev. 2027, 2039-40 (2001).
247. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 352 (1997) (emphasis omitted). The same is true for Mancur Olson's theory of "selective incentives" as a way of accounting for the existence of large associations.
248. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 352 (1997) (emphasis omitted). The same is true for Mancur Olson's theory of "selective incentives" as a way of accounting for the existence of large associations.
249. States' collective action dynamics can be modeled with several other games. See Leslie Meltzer Henry & Maxwell L. Stearns, Commerce Games and the Individual Mandate, 100 Geo. L.J. 1117, 1140-53 (2012) (using plural game-theoretic models to model interstate interactions). The problem of institution creation can also be modeled as an assurance game.
250. See Carlisle Ford Runge, Institutions and the Free Rider: The Assurance Problem in Collective Action, 46 J. Pol. 154, 162-63 (1984).
251. The Nash equilibrium is [t]he central solution concept in game theory. It is based on the principle that the combination of strategies that players are likely to choose is one in which no player could do better by choosing a different strategy given the ones the others choose. A pair of strategies will form a Nash equilibrium if each strategy is one that cannot be improved upon given the other strategy. We establish whether a particular strategy combination forms a Nash equilibrium by asking if either player has an incentive to deviate from it. Douglas G. Baird et al., Game Theory and the Law 310 (1994) (italics omitted).
252. Lee Anne Fennell, Common Interest Tragedies, 98 Nw. U. L. Rev. 907, 946-47 (2004) (explaining and providing a matrix for chicken game). Baird et al. have the two drivers dying; it is not clear how best to represent that outcome numerically.
253. See Michael Taylor, Anarchy and Cooperation 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
254. Cf. Richard Tuck, Free Riding 22 (2008) (explaining why "the causal efficacy of the participants' actions [on each other] is a key feature of a standard prisoners' dilemma").
255. See Michael Taylor & Hugh Ward, Chickens, Whales, and Lumpy Goods: Alternative Models of Public-Goods Provision, 30 Pol. Stud. 350, 352, 363-64 (1982) (associating lumpiness with nonexcludable public goods). I have chosen to characterize the dynamic here in terms of the character of the relevant good. Of course, one might also frame it in terms of payoffs. It seems to me that focusing on the nature of the good is a more useful heuristic for explanatory purposes.
256. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 352 (1997) (emphasis omitted). The same is true for Mancur Olson's theory of "selective incentives" as a way of accounting for the existence of large associations.
257. Jon Elster, The Cement of Society: A Study of Social Order 40 (1989) ("The provision of selective incentives cannot be the general solution to the collective action problem. To assume there is a central authority offering incentives often requires another collective action problem to have been solved already. ").
258. Contributions tend to have "strongly complementary elements"-as is the case with parts of a bridge or the walls that make up a house. Lee Anne Fennell, Lumpy Property, 160 U. Pa. L. Rev. 1955, 1957 (2012).
259. See Michael Taylor & Hugh Ward, Chickens, Whales, and Lumpy Goods: Alternative Models of Public-Goods Provision, 30 Pol. Stud. 350, 352, 363-64 (1982) (associating lumpiness with nonexcludable public goods). I have chosen to characterize the dynamic here in terms of the character of the relevant good. Of course, one might also frame it in terms of payoffs. It seems to me that focusing on the nature of the good is a more useful heuristic for explanatory purposes.
260. See Michael Taylor & Hugh Ward, Chickens, Whales, and Lumpy Goods: Alternative Models of Public-Goods Provision, 30 Pol. Stud. 350, 352, 363-64 (1982) (associating lumpiness with nonexcludable public goods). I have chosen to characterize the dynamic here in terms of the character of the relevant good. Of course, one might also frame it in terms of payoffs. It seems to me that focusing on the nature of the good is a more useful heuristic for explanatory purposes.
261. See Michael Taylor & Hugh Ward, Chickens, Whales, and Lumpy Goods: Alternative Models of Public-Goods Provision, 30 Pol. Stud. 350, 352, 363-64 (1982) (associating lumpiness with nonexcludable public goods). I have chosen to characterize the dynamic here in terms of the character of the relevant good. Of course, one might also frame it in terms of payoffs. It seems to me that focusing on the nature of the good is a more useful heuristic for explanatory purposes.
262. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621, 624 (1998) (defining an "anticommons" problem as one in which "multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use").
263. Contributions tend to have "strongly complementary elements"-as is the case with parts of a bridge or the walls that make up a house. Lee Anne Fennell, Lumpy Property, 160 U. Pa. L. Rev. 1955, 1957 (2012).
264. James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J.L. & Econ. 1, 3 (2000) (emphasizing both commons and anticommons tragedies as a consequence of partially externalized costs).
265. Contributions tend to have "strongly complementary elements"-as is the case with parts of a bridge or the walls that make up a house. Lee Anne Fennell, Lumpy Property, 160 U. Pa. L. Rev. 1955, 1957 (2012).
266. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
267. See Lloyd Cohen, Holdouts and Free Riders, 20 J. Legal Stud. 351, 354-56 (1991). If the rational anticipation of free riding means no collective action occurs, then the potential free rider gains nothing.
268. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
269. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
270. Donald S. Lutz, Why Federalism?, 61 Wm. & Mary Q. 582, 583 (2004) (book review).
271. Keith L. Dougherty, Collective Action Under the Articles of Confederation 78, 89 (2001) (providing a similar figure for number of men). Lutz persuasively explains why Dougherty's self-interest-focused account of this data is not compelling.
272. Keith L. Dougherty, Collective Action Under the Articles of Confederation 78, 89 (2001) (providing a similar figure for number of men). Lutz persuasively explains why Dougherty's self-interest-focused account of this data is not compelling.
273. Donald S. Lutz, Why Federalism?, 61 Wm. & Mary Q. 582, 583 (2004) (book review).
274. Denis P. Duffey, The Northwest Ordinance as a Constitutional Document, 95 Colum. L. Rev. 929, 937 (1995). An earlier version of the Northwest Ordinance, drafted by Thomas Jefferson in 1784, was never implemented because of perceived risks of conflict between the new settler communities and its lack of conformity to geographic realities.
275. Cf. California State Motor Vehicle Pollution Control Standards.
276. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,156, 12,156-57 (Mar. 6, 2008) (invoking this reasoning in order to reject a request by the State of California to impose a higher standard on automobile emissions).
277. See, e.g., Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097, 1097-98 (2009) (discussing history of federal inaction on greenhouse gases).
278. See, e.g., Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097, 1097-98 (2009) (discussing history of federal inaction on greenhouse gases).
279. David Vogel, Trading Up: Consumer and Environmental Regulation in a Global Economy 6, 259-60, 268 (1995) (introducing phrase and describing process by which California has "helped make American mobile emissions standards steadily stronger").
280. See 42 U.S.C. § 7543(b)(1), (e)(2)(A) (2011). The Clean Air Act allows the federal government to step in when the state declines to implement certain provisions. But, as Roderick Hills has explained, when California exercised its right to opt out in the 1970s in the context of a transportation plan, the "EPA immediately backed down because there was no conceivable way it could implement the plan without California's assistance and cooperation. "
281. Roderick M. Hills, Jr., Federalism in Constitutional Context, 22 Harv. J.L. & Pub. Pol'y 181, 185 n.13 (1998).
282. Anu Bradford, The Brussels Effect, 107 Nw. U. L. Rev. 1, 5 & n.19 (2012) (discussing national emulation of Cal. Health & Safety Code §§ 25249.5-.13).
283. Baylen J. Linnekin, The "California Effect" and the Future of American Food: How California's Growing Crackdown on Food and Agriculture Harms the State and the Nation, 13 Chap. L. Rev. 357, 377-78 (2010) (noting same effect in the context of Pennsylvania bread regulation).
284. Notice also that the CAA's safe harbor from preemption implicitly reflects a comparative judgment: it both reflects California's superior political capacity to identify and enact environmental regulation and at the same time gestures toward the weakness of the national political process in that same regard. It thus suggests a need to make comparative judgments about collective action costs.
285. Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 Duke L.J. 795, 809 (2005).
286. Paul Posner, The Politics of Coercive Federalism in the Bush Era, 37 Publius 390, 409 (2007) (criticizing "coercive" federalism tools and advocating "marbleized, networked approaches to governance").
287. See U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State.... ").
288. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
289. Charles R. Shipan & Craig Volden, The Mechanisms of Policy Diffusion, 52 Am. J. Pol. Sci. 840, 853 (2008).
290. Virginia Gray, Innovation in the States: A Diffusion Study, 67 Am. Pol. Sci. Rev. 1174, 1179-80 (1973) (welfare legislation and teachers' qualifications).
291. Donald P. Haider-Markel, Policy Diffusion as a Geographic Expansion of the Scope of Political Conflict: Same-Sex Marriage Bans in the 1990s, 1 St. Pol. & Pol'y Q. 5, 16-20 (2001) (same-sex marriage laws).
292. Charles R. Shipan & Craig Volden, The Mechanisms of Policy Diffusion, 52 Am. J. Pol. Sci. 840, 853 (2008).
293. See Craig Volden, States as Policy Laboratories: Emulating Success in the Children's Health Insurance Program, 50 Am. J. Pol. Sci. 294, 294-95 (2006) (finding that more successful state children's health insurance programs tended to be emulated). Federal intervention through the imposition of a uniform standard may also have socially undesirable effects in the long term. When a state emulates another state's effective policy, and in turn improves it, it can foster a "virtuous circle... creating new knowledge spillovers. "
294. Brett M. Frishmann & Mark A. Lemley, Spillovers, 107 Colum. L. Rev. 257, 269 (2007).
295. Charles R. Shipan & Craig Volden, The Mechanisms of Policy Diffusion, 52 Am. J. Pol. Sci. 840, 853 (2008).
296. Frequently Asked Questions, Uniform L. Commission, http://www.uniform laws.org/Narrative.aspx?title=Frequently%20Asked%20Questions (last visited Feb. 1, 2014).
297. The ULC is also called the National Conference of Commissioners on Uniform State Laws. About the ULC, Uniform L. Commission, http://www.uniformlaws.org/ Narrative.aspx?title=About%20the%20ULC (last visited Feb. 1, 2014).
298. Nim Razook, Uniform Private Laws, National Conference of Commissioners for Uniform State Laws Signaling and Federal Preemption, 38 Am. Bus. L.J. 41, 54 (2000).
299. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
300. Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of Uniform State Laws, 25 J. Legal Stud. 131, 132 (1996).
301. See About the Multistate Tax Commission, Multistate Tax Commission, http://www.mtc.gov/About.aspx?id=40 (last visited Feb. 1, 2014).
302. See U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 479 (1978).
303. One example is tobacco regulation. See Susan Borreson, Texas Firms May Collect Millions in Florida Tobacco Suit, Tex. Law., Dec. 15, 1997, at 4 (describing multistate suit against the tobacco companies).
304. Alison Frankel, After the Smoke Cleared: The Inside Story of the Big Tobacco $206 Billion Settlement, Am. Law., Jan./Feb. 1999, at 48 (noting settlement reached by the National Association of Attorneys General with tobacco companies).
305. Colin Provost, When to Befriend the Court? Examining State Amici Curiae Participation Before the U.S. Supreme Court, 11 St. Pol. & Pol'y Q. 4, 5-6 (2011).
306. It is not the only organization to play this role. The State and Local Legal Center also files amicus briefs on behalf of the major state and local government organizations. See Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 Geo. L.J. 1487, 1501 & n.68 (2008) (discussing the important role that state solicitors general have recently played in Supreme Court litigation).
307. See Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011), cert. denied, 133 S. Ct. 59 (2012).
308. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2576, 2601-09 (2012).
309. See Carter C. Price & Christine Eibner, For States That Opt Out of Medicaid Expansion: 3.6 Million Fewer Insured and $8.6 Billion Less in Federal Payments, 32 Health Aff. 1030, 1030 (2013).
310. Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2621, 2631 (2013).
311. Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The Problem of Permanency, 49 Fla. L. Rev. 1, 7 (1997) ("[U]niform standards are a clear means of addressing prisoner's dilemmas in which the perceived threat of interstate competition leaves all states worse off, with policies they otherwise would reject as contrary to the public interest. ").
312. But see Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1211-12 (1992) (questioning operation of race-to-the-bottom dynamics in the environmental context).
313. Not all interstate compacts require congressional approval. See Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (requiring congressional approval only for compacts "tending to the increase of the political power in the States, which may encroach upon or interfere with the just supremacy of the United States").
314. see also U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 473 (1978) (explaining that the legal standard for whether an interstate compact is constitutional rests on whether the compact "enhances state power quoad the National Government").
315. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
316. Joseph F. Zimmerman, Interstate Cooperation: Compact and Administrative Agreements 3 (2d ed. 2012). To be clear, Zimmerman here is referring to both compacts that have and compacts that lack congressional support.
317. See Reg'l Greenhouse Gas Initiative, About the Regional Greenhouse Gas Initiative (RGGI) (2012), available at http://www.rggi.org/docs/Documents/ RGGI_Fact_Sheet_2012_09_28.pdf.
318. Kirk Johnson, 10 States to Discuss Curbs on Power-Plant Emissions, N.Y. Times (July 25, 2003), http://www.nytimes.com/2003/07/25/nyregion /10-states-to-discuss-curbs-on-power-plant-emissions.html.
319. For an argument that no such approval is needed under current precedent, see Note, The Compact Clause and RGGI, 120 Harv. L. Rev. 1958, 1962-67 (2007).
320. Joseph F. Zimmerman, Interstate Cooperation: Compact and Administrative Agreements 3 (2d ed. 2012). To be clear, Zimmerman here is referring to both compacts that have and compacts that lack congressional support.
321. Note, State Collective Action, 119 Harv. L. Rev. 1855, 1863 (2006).
322. Joseph F. Zimmerman, Interstate Cooperation: Compact and Administrative Agreements 3 (2d ed. 2012). To be clear, Zimmerman here is referring to both compacts that have and compacts that lack congressional support.
323. An example of such a foul dealer problem is Nevada's recent creation of "a noliability corporate law" that may shelter "[f]irms that suffer from weak internal controls [and] need regulation the most. " Michal Barzuza, Market Segmentation: The Rise of Nevada as a Liability-Free Jurisdiction, 98 Va. L. Rev. 935, 940, 945 (2012). Nevada, in effect, exploits the compliance of other states with generally accepted norms of corporate government in a way that imposes potentially significant externalities.
324. An example of such a foul dealer problem is Nevada's recent creation of "a noliability corporate law" that may shelter "[f]irms that suffer from weak internal controls [and] need regulation the most. " Michal Barzuza, Market Segmentation: The Rise of Nevada as a Liability-Free Jurisdiction, 98 Va. L. Rev. 935, 940, 945 (2012). Nevada, in effect, exploits the compliance of other states with generally accepted norms of corporate government in a way that imposes potentially significant externalities.
325. See Charles Stewart III, Analyzing Congress 15-22 (2001) (providing a formal proof of this proposition).
326. See Kenneth A. Shepsle & Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 Pub. Choice 503, 507 (1981) (arguing that "institutional restrictions on the domain of exchange induce stability, not legislative exchange per se" (emphasis omitted).
327. Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking 14 (1998).
328. See generally Barbara Sinclair, The Role of Committees in Agenda Setting in the U.S. Congress, 11 Legis. Stud. Q. 35 (1986).
329. Sarah A. Binder & Steven S. Smith, Brookings Inst., Politics or Principle? Filibustering in the United States Senate 11 (1997) (finding that filibusters had gone from around an average of one per Congress in the 1950s to thirty-five in the 102d Congress (1991-1992) alone).
330. As defined by the Senate itself, a "hold" is "[a]n informal practice by which a senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. " Glossary, U.S. Senate, http:// www.senate.gov/reference/glossary_term/hold.htm (last visited Feb. 1, 2014).
331. Barry Friedman & Andrew D. Martin, Op-Ed., A One-Track Senate, N.Y. Times (Mar. 9, 2010), http://www.nytimes.com/2010/03/10/opinion/10martin.html (discussing examples).
332. Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking 14 (1998).
333. Maxwell L. Stearns & Todd J. Zywicki, Public Choice Concepts and Applications in Law 68-72 (2009).
334. There is also some reason to believe enactment costs of environmental legislation in the states will be lower because of reduced interest group pressure. See Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. Envtl. L.J. 130, 156-57 (2005) ("Empirical studies of state regulatory activity generally fail to support the claim that state governments are more susceptible to interest group pressure than the federal government. ").
335. Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The Problem of Permanency, 49 Fla. L. Rev. 1, 7 (1997) ("[U]niform standards are a clear means of addressing prisoner's dilemmas in which the perceived threat of interstate competition leaves all states worse off, with policies they otherwise would reject as contrary to the public interest. ").
336. See Robert P. Inman & Daniel L. Rubinfeld, Designing Tax Policy in Federalist Economies: An Overview, 60 J. Pub. Econ. 307, 318 (1996).
337. See Robert P. Inman & Daniel L. Rubinfeld, Designing Tax Policy in Federalist Economies: An Overview, 60 J. Pub. Econ. 307, 318 (1996).
338. For evidence that legislative gridlock is unusually constrictive in the health care domain, see Craig Volden & Alan E. Wiseman, Breaking Gridlock: The Determinants of Health Policy Change in Congress, 36 J. Health Pol. Pol'y & L. 227, 236-43 (2011) (presenting evidence from both the context of committee processes and plenary consideration of bills).
339. 132 S. Ct. 2566, 2642 (2012) (joint dissent).
340. See Matthew C. Waxman, National Security Federalism in the Age of Terror, 64 Stan. L. Rev. 289, 293-94 (2012) (identifying uncertainty).
341. For a critical review and reconsideration of potential causal theories, see generally Aziz Z. Huq, The Social Production of National Security, 98 Cornell L. Rev. 637 (2013).
342. Neil S. Siegel, Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action, 62 Duke L.J. 797, 803-05 (2012).
343. See, e.g., Brooke A. Masters, States Flex Prosecutorial Muscle, Wash. Post (Jan. 12, 2005), http://www.washingtonpost.com/wp-dyn/articles/A2107-2005Jan11.html ("[S]tate regulators and attorneys general are bringing legal action and launching investigations in... areas where they say federal regulators have fallen down on the job.").
344. See Ralph H. Folsom, State Antitrust Remedies: Lessons from the Laboratories, 35 Antitrust Bull. 941, 955 (1991) ("The state attorneys general committed themselves to 'filling the gap' created by Reagan administration antitrust policies by increasing their state antitrust prosecutions. ").
345. See E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313, 326 (1985) ("When faced with the threat of inconsistent and increasingly rigorous state laws, [interest groups use] their superior organizational capacities in Washington [to seek federal legislation]. ").
346. see also J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. Pa. L. Rev. 1499, 1500 (2007) (predicting a similar dynamic for climate change legislation).
347. Erin Ryan, Negotiating Federalism, 52 B.C. L. Rev. 1, 8 (2011) ("[F]ederalism bargaining helps bridge pockets of uncertainty that remain after exhausting the more conventionally understood forms of federalism interpretation, to help allocate contested authority and shepherd interjurisdictional collaboration. ").
348. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
349. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1809 (2010) ("The enumerated powers of Article I, Section 8 allowed Congress to establish national standards to solve collective action problems.... ").
350. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
351. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
352. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
353. See, e.g., James Madison, Vices of the Political System of the United States (1787), in Writings 69, 71 (Jack N. Rakove ed., 1999) (framing flaws in the Articles of Confederation by identifying among the several newly independent states an undesirable "want of concert in matters where common interest requires it").
354. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
355. See Garry Wills, Explaining America: The Federalist 13-23 (1981) (describing Madison's education in Hume's works and tracing their influence in The Federalist Papers).
356. Douglass Adair, "That Politics May Be Reduced to a Science": David Hume, James Madison, and the Tenth Federalist, 20 Huntington Libr. Q. 343, 345 (1957) (noting that the work of David Hume and other "prominent... Scottish philosophers... had become the standard textbooks of the colleges of the late colonial period").
357. James E. Pfander & Daniel D. Birk, Article III and the Scottish Judiciary, 124 Harv. L. Rev. 1613, 1634-35 (2011).
358. Hume's A Treatise of Human Nature on the Framers' generation.
359. Hume's example involved a common interest in draining a meadow: Two neighbours may agree to drain a meadow, which they possess in common; because 'tis easy for them to know each others mind; and each must perceive, that the immediate consequence of his failing in his part, is, the abandoning the whole project. But 'tis very difficult, and indeed impossible, that a thousand persons shou'd agree in any such action; it being difficult for them to concert so complicated a design, and still more difficult for them to execute it; while each seeks a pretext to free himself of the trouble and expence, and wou'd lay the whole burden on others. David Hume, A Treatise of Human Nature 590 (Ernest C. Mossner ed., 1969) (1739-1740). Even before Hume, Aristotle had en passant conjured the tragedy of the commons.
360. See Aristotle, Politics bk. II, at 77 (H. Rackham trans., Harvard Univ. Press rev. ed. 1944) (c. 350 B.C.E.) ("Property that is common to the greatest number of owners receives the least attention.... ").
361. See Brian Skyms, The Stag Hunt, 75 Proc. & Addresses of Am. Phil. Ass'n 31, 31 (2001) (noting that Rousseau identified the assurance game in the Discourse on Inequality).
362. Alison L. LaCroix, The Lawyer's Library in the Early American Republic, in Subversion and Sympathy: Gender, Law, and the British Novel 251, 256 (Martha C. Nussbaum & Alison L. LaCroix eds., 2013) (noting that early American lawyers were "avid consumers" of Rousseau's ideas). I do not focus on Rousseau, since Balkin's argument does not depend on the Founders' identification of the assurance game.
363. This cannot be taken for granted. Cf. Iain McLean & Arnold B. Urkin, Did Jefferson or Madison Understand Condorcet's Theory of Social Choice?, 73 Pub. Choice 445, 455 (1992) (noting that while Jefferson and Madison might have read the relevant passages in Condorcet about the voting paradox, there is no evidence they understood his theory of social choice).
364. Hume's example involved a common interest in draining a meadow: Two neighbours may agree to drain a meadow, which they possess in common; because 'tis easy for them to know each others mind; and each must perceive, that the immediate consequence of his failing in his part, is, the abandoning the whole project. But 'tis very difficult, and indeed impossible, that a thousand persons shou'd agree in any such action; it being difficult for them to concert so complicated a design, and still more difficult for them to execute it; while each seeks a pretext to free himself of the trouble and expence, and wou'd lay the whole burden on others. David Hume, A Treatise of Human Nature 590 (Ernest C. Mossner ed., 1969) (1739-1740). Even before Hume, Aristotle had en passant conjured the tragedy of the commons.
365. John Rawls, Lectures on the History of Moral Philosophy 59-61 (Barbara Herman ed., 2000) (explaining Hume's idea of a convention, and identifying it as a solution to collection action problems).
366. Annette C. Baier, The Pursuits of Philosophy: An Introduction to the Life and Thought of David Hume 40-44 (2011) (same).
367. David Hume, Of the Original Contract (1748), in Selected Essays 274, 288 (Stephen Copley & Andrew Edgar eds., 1996) (deriving an "obligation of allegiance" to obey the law, and in effect to refrain from free riding on society, from the fact "that men could not live at all in society... without laws, and magistrates, and judges, to prevent the encroachments of the strong upon the weak, of the violent upon the just and equitable"). Hume's work, in short, is not the place to root a Founding-era belief in a general warrant for external government action to resolve collective action problems.
368. Cf. Richard Tuck, Free Riding 22 (2008) (explaining why "the causal efficacy of the participants' actions [on each other] is a key feature of a standard prisoners' dilemma").
369. In more contemporary terms, we might understand Hume to be talking about Rawlsian reasonableness, rather than Rawlsian rationality. See John Rawls, Political Liberalism 50-51 (1993) (distinguishing in the course of a larger account of political liberalism the concept of rationality, which is understood in terms of maximizing self-interest, from reasonableness, which is framed as "fair social cooperation").
370. Cf. Richard Tuck, Free Riding 22 (2008) (explaining why "the causal efficacy of the participants' actions [on each other] is a key feature of a standard prisoners' dilemma").
371. See, e.g., James Madison, Vices of the Political System of the United States (1787), in Writings 69, 71 (Jack N. Rakove ed., 1999) (framing flaws in the Articles of Confederation by identifying among the several newly independent states an undesirable "want of concert in matters where common interest requires it").
372. To be clear, I do not doubt that Madison saw "too little authority in the center to control the jealousies and animosities of the peripheries" as a problem, or that he believed that "[h]istory and experience... conjoined to produce a new theoretical understanding that a robust and independent central authority was indispensable if the Union (and so the states) were to survive. " Larry D. Kramer, Madison's Audience, 112 Harv. L. Rev. 611, 626-27 (1999).
373. Adrian Vermeule, The Supreme Court, 2008 Term-Foreword: System Effects and the Constitution, 123 Harv. L. Rev. 4, 26 (2009).
374. The Federalist No. 48, at 308-09 (James Madison) (Clinton Rossiter ed., 1961) (denying the proposition that it is "sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power").
375. see also Edward Rubin, The Conceptual Explanation for Legislative Failure, 30 Law & Soc. Inquiry 583, 586 (2005) ("Legislative failure, in Madison's view, occurs when one faction, which may even be a majority of voting citizens, dominates the political process and takes control of government[.]").
376. See Charles C. Brown & Wallace E. Oates, Assistance to the Poor in a Federal System, 32 J. Pub. Econ. 307, 308-09 (1987) (showing that "the potential migration of poor households seriously undermines the case for a decentralized system of poor relief").
377. The conventional modern view-which I do not mean to dispute-is that the General Welfare Clause allows federal action with an economic redistribution effect. Although there is no Supreme Court precedent precisely on point, it suffices here to say that large parts of the federal tax code would be unconstitutional otherwise.
378. Alison L. LaCroix, The Interbellum Constitution and the Spending Power 7-15 (Univ. of Chi. Law Sch., Pub. Law & Legal Theory Working Paper No. 420, 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228335.
379. Alison L. LaCroix, The Interbellum Constitution and the Spending Power 7-15 (Univ. of Chi. Law Sch., Pub. Law & Legal Theory Working Paper No. 420, 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228335.
380. Alison L. LaCroix, The Interbellum Constitution and the Spending Power 7-15 (Univ. of Chi. Law Sch., Pub. Law & Legal Theory Working Paper No. 420, 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228335.
381. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
382. James Meek, In the Sorting Office, 33 London Rev. Books 3, 3 (2011). Meek here is talking centrally about European post offices, but his quite perceptive piece can be understood in more general terms.
383. See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010). I discuss such theories at greater length in Part I. A below.
384. This brackets the question whether the epistemic gains from assignment of enumerated powers questions to the elected branches are overwhelmed by the costs of assigning those decisions to actors with shorter time horizons and the potential distortion of electoral incentives. In this regard, I should note that it is hardly self-evident that matters of constitutional law should always and inevitably be free of short-term, populist influence. See generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).
385. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
386. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
387. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
388. For an account of how the collective nature of a good can lead to underproduction in this fashion, see Richard H. McAdams, Relative Preferences, 102 Yale L.J. 1, 60 (1992).
389. This is separate from, but complements, Jonathan Macey's insight that at times "Congress will delegate to local regulators" in cases when "the political support it obtains from deferring to the states is greater than the political support it obtains from [federal legislators doing the] regulating [themselves]." 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, 267 (1990).
390. See Rui J.P. de Figueiredo, Jr. & Barry R. Weingast, Self-Enforcing Federalism, 21 J.L. Econ. & Org. 103, 104, 123-24 (2005) (describing the "twin dilemmas" of federalism).
391. Rui J.P. de Figueiredo, Jr. et al., Constructing Self-Enforcing Federalism in the Early United States and Modern Russia, 37 Publius 160, 161 (2007) (same).
392. See Jenna Bednar, The Robust Federation: Principles of Design 68-69 (2009).
393. See Rui J.P. de Figueiredo, Jr. & Barry R. Weingast, Self-Enforcing Federalism, 21 J.L. Econ. & Org. 103, 104, 123-24 (2005) (describing the "twin dilemmas" of federalism).
394. Rui J.P. de Figueiredo, Jr. et al., Constructing Self-Enforcing Federalism in the Early United States and Modern Russia, 37 Publius 160, 161 (2007) (same).
395. I am grateful to Eric Posner for helpful discussion on this point.
396. Cf. Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 Yale L.J. 1311, 1313 (2002) (pointing out that "constitutional law has no criteria for isolating transactions from the background relationship between government and citizens"). Levinson's argument concerns government-individual interactions, but his basic insight into the importance of framing can be easily transposed into the intergovernmental relations context.
397. See Ruth Mason, Federalism and the Taxing Power, 99 Calif. L. Rev. 975, 977 & nn.3-6 (2011) (presenting several of the perspectives on this debate). For a useful recent empirical perspective, see generally Brian Galle, The Politics of Federalism: Self-Interest or Safeguards? Evidence from Congressional Control of State Taxation (Bos. Coll. Law Sch. Legal Studies, Research Paper No. 220, 2011), available at http://ssrn.com/ abstract=1759510.
398. Brian Galle, The Politics of Federalism: Self-Interest or Safeguards? Evidence from Congressional Control of State Taxation (Bos. Coll. Law Sch. Legal Studies, Research Paper No. 220, 2011), available at http://ssrn.com/ abstract=1759510.
399. What of the argument that legislators will act systematically to advance the institutional interests of Congress at the cost of states' regulatory domains? As a threshold matter, arguments based on the claim that officials have an incentive of this kind have been comprehensively criticized as wanting in support. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 920 (2005) (arguing that officials often act based on personal and political incentives that do not entail defending institutional powers and prerogatives of the branch that employs them).
400. But see Aziz Z. Huq, Enforcing (But Not Defending) "Unconstitutional" Laws, 98 Va. L. Rev. 1001, 1075-76 (2012) (collecting evidence that Levinson's claim does not hold in respect to executive action).
401. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
402. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
403. Roderick M. Hills, Jr., Federalism in Constitutional Context, 22 Harv. J.L. & Pub. Pol'y 181, 185 n.13 (1998).
404. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75, 117-24 (2001) (arguing that "some states will harness the federal lawmaking power to impose their policy preferences on other states to the former states' own advantage" (emphases omitted).
405. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
406. The baseline problem is exacerbated by the tendency of scholars to use the term "federalism" imprecisely to encompass a plural set of normative values-including sovereignty, democracy, and efficiency-related concepts-that lack any clear metric and are associated with a range of institutional actors. See Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures' Control, 97 Mich. L. Rev. 1201, 1201 (1999) (commenting that it is common, yet misleading, to think of a "state" as speaking with a single voice when a state government encompasses a multitude of subdivisions, branches, and agencies controlled by various individual politicians). Claims about federalism thus risk having an imprecise and mercurial quality.
407. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75, 117-24 (2001) (arguing that "some states will harness the federal lawmaking power to impose their policy preferences on other states to the former states' own advantage" (emphases omitted).
408. see also Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 Vill. L. Rev. 951, 961-72 (2001) (same).
409. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75, 117-24 (2001) (arguing that "some states will harness the federal lawmaking power to impose their policy preferences on other states to the former states' own advantage" (emphases omitted).
410. To be clear, I do not mean here to express a view on the Equal Protection Clause questions at stake in respect to debates on same-sex marriage. Cf. United States v. Windsor, 133 S. Ct. 2675, 2692-93 (2013) (relying on not merely arguments of federalism but also liberty and equality arguments to require recognition of same-sex marriages by the federal government).
411. This parallels the problem in the individual rights context of figuring out "how we are supposed to distinguish... 'prejudice' from principled, if 'wrong,' disapproval. Which groups are to count as 'discrete and insular minorities'? Which are instead to be deemed appropriate losers...?" Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063, 1073 (1980).
412. Michael Greve offers a similar horizontal aggrandizement claim, but uses a libertarian baseline of maximal economic competition to resolve it. See, e.g., Michael S. Greve, The Upside-Down Constitution 7, 11 (2012). Of course, the claim that all forms of economic competition are desirable, even if they produce negative externalities such as atmospheric pollution, wage deflation, or predatory firm behavior, is (to say the least) a controversial one.
413. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
414. For useful discussions of this practice, see Louis Henkin, Commentary, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341, 341, 345-46 (1995).
415. David Sloss, International Agreements and the Political Safeguards of Federalism, 55 Stan. L. Rev. 1963, 1984-87 (2003).
416. For useful discussions of this practice, see Louis Henkin, Commentary, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341, 341, 345-46 (1995).
417. See U.N. Convention Against Transnational Organized Crime, Message from the President of the United States, Feb. 23, 2004, S. Treaty Doc. No. 108-16, at vii, available at http://www.gpo.gov/fdsys/pkg/CDOC-108tdoc16/pdf/CDOC-108tdoc16.pdf.
418. Duncan B. Hollis, Executive Federalism: Forging New Federalist Constraints on the Treaty Power, 79 S. Cal. L. Rev. 1327, 1361-62 (2006) (discussing the United States' ratification of the U.N. Convention).
419. Lee Kovarsky, AEDPA's Wrecks: Comity, Finality, and Federalism, 82 Tul. L. Rev. 443, 459-68 (2007) (discussing 1996 federal habeas statute's legislative history and the Oklahoma City bombing).
420. Prison Litigation Reform Act of 1995, H.R. 2076, 104th Cong. tit. VIII (1995).
421. Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1566-67 (2003) (discussing role of state attorneys general in lobbying for the Prison Litigation Reform Act, which restricted the powers of federal courts to interfere with the administration of state prison systems).
422. See Cornell W. Clayton, Law, Politics and the New Federalism: State Attorneys General as National Policymakers, 56 Rev. Pol. 525, 540 (1994).
423. It bears noting that 1996 also saw enactment of the welfare reform legislation that increased states' policy control over social welfare policies dramatically. See Robert P. Inman & Daniel L. Rubinfeld, Rethinking Federalism, 11 J. Econ. Persp. 43, 56-59 (1997) (describing the law's federalism effects).
424. 2 U.S.C. §§ 1501-1571 (2012).
425. Article II values, though, may be vindicated by the Office of Legal Counsel's (OLC) bill comment process. See Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676, 711-12 (2005) (explaining ex ante review of bills by the OLC).
426. Julie A. Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 380 n.109 (1999).
427. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
428. See Jane G. Gravelle & Jennifer Gravelle, How Federal Policymakers Account for the Concerns of State and Local Governments in the Formulation of Federal Tax Policy, 60 Nat'l Tax J. 631, 631 (2007).
429. Provisions of the Coastal Zone Management Act of 1972, for example, impose such state certification rules.
430. See Coastal Zone Management Act of 1972 § 307, 16 U.S.C. § 1456(c)(1)(A) (2012).
431. See, e.g., PUD No. 1 v. Wash. Dep't of Ecology, 511 U.S. 700, 711-12 (1994).
432. Pub. L. No. 79-15, 59 Stat. 33 (1945) (codified as amended at 15 U.S.C. §§ 1011-1015 (2012).
433. See, e.g., Jonathan R. Macey & Geoffrey P. Miller, The McCarran-Ferguson Act of 1945: Reconceiving the Federal Role in Insurance Regulation, 68 N.Y.U. L. Rev. 13, 17-20 (1993) (suggesting "modifications" to the statute).
434. National Flood Insurance Act of 1968, Pub. L. 90-448, 82 Stat. 572 (codified as amended in scattered sections of 42 U.S.C.).
435. The examples I give might also be explained in terms of the heterogeneous preferences of federal legislators over policy domains where states have an interest. Even if that explanation were compelling-and I am skeptical-it would still mean that states' interests were in fact protected in the federal legislative process, even if not as a result of states' political actions.
436. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
437. Consider, for example, carve-outs for state actors from generally applicable regulatory regimes. These tend to benefit all states, not just those who participated in the lobbying effort. See, e.g., 29 U.S.C. § 630(f) (2012) (exempting "policymaking" officials from the Age Discrimination in Employment Act of 1967).
438. Consider, for example, carve-outs for state actors from generally applicable regulatory regimes. These tend to benefit all states, not just those who participated in the lobbying effort. See, e.g., 29 U.S.C. § 630(f) (2012) (exempting "policymaking" officials from the Age Discrimination in Employment Act of 1967).
439. Neal Devins, The Judicial Safeguards of Federalism, 99 Nw. U. L. Rev. 131, 134 (2004).
440. Roderick M. Hills, Jr., Federalism in Constitutional Context, 22 Harv. J.L. & Pub. Pol'y 181, 185 n.13 (1998).
441. Roderick M. Hills, Jr., Federalism in Constitutional Context, 22 Harv. J.L. & Pub. Pol'y 181, 185 n.13 (1998).
442. See E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313, 326 (1985) ("When faced with the threat of inconsistent and increasingly rigorous state laws, [interest groups use] their superior organizational capacities in Washington [to seek federal legislation]. ").
443. Katherine S. Newman & Rourke L. O'Brien, Taxing the Poor: Doing Damage to the Truly Disadvantaged 140-41 (2011) (noting that the effect is to "subsidiz[e] low-wage employers in the southern states[] who face less wage pressure as a result").
444. Katherine S. Newman & Rourke L. O'Brien, Taxing the Poor: Doing Damage to the Truly Disadvantaged 140-41 (2011) (noting that the effect is to "subsidiz[e] low-wage employers in the southern states[] who face less wage pressure as a result").
445. Consider a simplified two-state version of the dynamic: Both states are within a federal welfare system, and both want to enjoy federal benefits while not investing in a domestic safety net. If both shirk, the net effect is a collapse of the safety net, raising mortality and morbidity without either state gaining. But if one state ties its hands by committing to underinvest, the other state gains little by underinvesting, even as it is committed to the safety net.
446. Katherine S. Newman & Rourke L. O'Brien, Taxing the Poor: Doing Damage to the Truly Disadvantaged 140-41 (2011) (noting that the effect is to "subsidiz[e] low-wage employers in the southern states[] who face less wage pressure as a result").
447. Michael J. Gerhardt, Norm Theory and the Future of the Federal Appointments Process, 50 Duke L.J. 1687, 1687 (2001).
448. See Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis 143 (2000).
449. Michael W. Giles et al., Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 Pol. Res. Q. 623, 624 (2001).
450. Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. L. Rev. 573, 578 (2008).
451. See, e.g., H.R. Con. Res. 299, 105th Cong. (1998) (specifying criteria for executive departments to follow when preempting state law consistent with the Constitution).
452. H.R. Con. Res. 161, 101st Cong. (1989) (expressing the "sense of the Congress that it is in the interest of a viable Federal system of Government that primary regulatory authority over alcohol beverages within their borders shall remain with the States").
453. At least on the assumption that legislators have a preference for being seen as having consistent preferences over time. That is, I presume (reasonably, I think) that there is some credibility-related cost to politicians to taking mutually inconsistent positions at different points in time.
454. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
455. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
456. Paul Pierson, Politics in Time: History, Institutions, and Social Analysis 33 (2004).
457. See Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown 102-04 (2004) (noting Southern resistance).
458. John Lewis, Walking with the Wind: A Memoir of the Movement 129 (1998) (same).
459. I develop the point that the relationship between federalism and individual liberty is an unstable one elsewhere. See Aziz Z. Huq, Standing for the Structural Constitution, 99 Va. L. Rev. 1435, 1484-89 (2013).
460. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 352 (1997) (emphasis omitted). The same is true for Mancur Olson's theory of "selective incentives" as a way of accounting for the existence of large associations.
461. Samuel H. Beer, Political Overload & Federalism, 10 Polity 5, 11 (1977).
462. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
463. Judith Resnik, The Internationalization of American Federalism, Missouri and Holland, 73 Mo. L. Rev. 1105, 1128-30 (2008) (listing organizations with founding dates).
464. John P. Pelissero & Robert E. England, State and Local Governments' Washington "Reps"-Lobbying Strategies and President Reagan's New Federalism, 19 St. & Loc. Gov't Rev. 68, 68 (1987).
465. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
466. John Dinan, Shaping Health Reform: State Government Influence in the Patient Protection and Affordable Care Act, 41 Publius 395, 407 (2011).
467. John Dinan, Shaping Health Reform: State Government Influence in the Patient Protection and Affordable Care Act, 41 Publius 395, 407 (2011).
468. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
469. Harry N. Scheiber, Redesigning the Architecture of Federalism-An American Tradition: Modern Devolution Policies in Perspective, 14 Yale L. & Pol'y Rev. 227, 254 (1996).
470. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
471. See, e.g., Permanent Policy Principles for State-Federal Relations, Nat'l Governors Ass'n, http://www.nga.org/cms/home/federal-relations/nga-policy-positions/ page-ec-policies/col2-content/main-content-list/principles-for-state-federal-rel.html (last visited Feb. 1, 2014) (delineating proposals for reform on structural federalism issues).
472. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
473. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
474. One reason that agenda control is overlooked is identified by Riker, who argues that the existence of "elaborate" legislative choices involving the simultaneous consideration of multiple amendments can obscure the existence of decisional intransitivities. See William H. Riker, The Paradox of Voting and Congressional Rules for Voting on Amendments, 52 Am. Pol. Sci. Rev. 349, 354 (1958). This opportunity for both creating and hiding intransitivities in turn might be exploited by a legislative agenda setter in order to steer outcomes toward his or her preferred policy ends.
475. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
476. John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 82-88 (2009) (explaining how the intergovernmental lobby is a central source for proposed uniform laws).
477. See Catherine M. Sharkey, Federalism Accountability: "Agency-Forcing" Measures, 58 Duke L.J. 2125, 2150-52 (2009) (documenting how agencies were more responsive to state regulatory concerns about the REAL ID Act of 2005 than Congress).
478. Nina A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737, 741 (2004).
479. Erin Ryan, Negotiating Federalism, 52 B.C. L. Rev. 1, 8 (2011) ("[F]ederalism bargaining helps bridge pockets of uncertainty that remain after exhausting the more conventionally understood forms of federalism interpretation, to help allocate contested authority and shepherd interjurisdictional collaboration. ").
480. For inferential evidence of socially undesirable rent-seeking through state taxation, see Charles D. Kolstad & Frank A. Wolak, Jr., Competition in Interregional Taxation: The Case of Western Coal, 91 J. Pol. Econ. 443, 449, 454-55 (1983).
481. See Dennis Coates & Michael C. Munger, Strategizing in Small Group Decision-Making: Host State Identification for Radioactive Waste Disposal Among Eight Southern States, 82 Pub. Choice 1, 2 (1995).
482. Julie A. Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 380 n.109 (1999).
483. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
484. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
485. Frank R. Baumgartner et al., Lobbying and Policy Change: Who Wins, Who Loses, and Why 237 (2009).
486. Frank R. Baumgartner et al., Lobbying and Policy Change: Who Wins, Who Loses, and Why 237 (2009).
487. Frank R. Baumgartner et al., Lobbying and Policy Change: Who Wins, Who Loses, and Why 237 (2009).
488. The most eloquent version of this argument is offered by Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1118 (1997), as part of a larger package of otherwise powerful arguments.
489. Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169, 1194-200 (2001) [hereinafter Devins, Congressional Factfinding] (doubting whether the political economy of the federal legislative process conduces to serious consideration of federal concerns).
490. States' comparative advantage may also be deepened by an epistemic edge they have on private interest groups (although the empirical evidence for this effect is sparse). Recent studies of lobbying suggest that lobbying operates "as a form of legislative subsidy-a matching grant of costly policy information, political intelligence, and legislative labor. " Richard L. Hall & Alan V. Deardorff, Lobbying as Legislative Subsidy, 100 Am. Pol. Sci. Rev. 69, 69 (2006).
491. Kevin M. Esterling, Does the Federal Government Learn from the States? Medicaid and the Limits of Expertise in the Intergovernmental Lobby, 39 Publius 1, 18 (2008).
492. There is evidence that interest group contributions foster access. See David Austen-Smith, Campaign Contributions and Access, 89 Am. Pol. Sci. Rev. 566, 566 (1995).
493. Martin Gilens, Under the Influence, Boston Rev., July/Aug. 2012, at 15, 31 (doubting that differential interest group access explains why federal lawmaking is more responsive to some slices of the population than others).
494. Edward J. McCaffery & Linda R. Cohen, Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. Rev. 1159, 1164 (2006).
495. Fred S. McChesney, Money for Nothing: Politicians, Rent Extraction, and Political Extortion 2 (1997) ("[P]ayments to politicians often are made, not for particular political favors, but to avoid particular political disfavor, that is, as part of a system of political extortion, or 'rent extraction.'").
496. Guy Halfteck, Legislative Threats, 61 Stan. L. Rev. 629, 664 n.145 (2008) (documenting the pervasiveness of rent extraction). Even the threat of adverse government action can have a negative effect on firms.
497. R. Beck et al., Rent Extraction Through Political Extortion: An Empirical Examination, 21 J. Legal Stud. 217, 223 (1992) (demonstrating that Canadian firms suffered negative stock returns following the announcement of potential adverse government action).
498. In addition, it is possible that intraindustry competition will conduce to "races to the Hill" in order to secure exclusionary regulation that enables a lobbying firm to capture monopoly rents. See George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 5 (1971). Although states are said to engage in horizontal competition, it would be surprising if it was as intense as interfirm competition.
499. See Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996) (not allowing abrogation of state sovereign immunity under Article I).
500. Alden v. Maine, 527 U.S. 706, 754 (1999) (holding that Congress could not abrogate state sovereign immunity in state court under Article I).
501. See Printz v. United States, 521 U.S. 898, 929-30 (1997).
502. New York v. United States, 505 U.S. 144, 168-69 (1992).
503. See, e.g., Sossamon v. Texas, 131 S. Ct. 1651, 1658 (2011) (concluding that absent an "unequivocal expression of state consent, " the phrase "[a]ppropriate relief" in the Religious Land Use and Institutionalized Persons Act of 2000 could not be construed to permit money damages).
504. Barnes v. Gorman, 536 U.S. 181, 185-88 (2002) (same for punitive damages).
505. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
506. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 99 (2004).
507. See Christine L. Nemacheck, Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover Through George W. Bush 111, 127-28 (2007) (arguing that Presidents who believe themselves freed of confirmation constraints select nominees from the pool who are the most ideologically compatible).
508. For studies of rates of senatorial disapproval, see Geoffrey R. Stone, Understanding Supreme Court Confirmations, 2010 Sup. Ct. Rev. 381, 382-84 (showing legislative influence over time).
509. Keith E. Whittington, Presidents, Senates, and Failed Supreme Court Nominations, 2006 Sup. Ct. Rev. 401, 408.
510. There is a large body of empirical work to this effect. See Lee Epstein et al., The Role of Qualifications in the Confirmation of Nominees to the U.S. Supreme Court, 32 Fla. St. U. L. Rev. 1145, 1168-70 (2005) (finding that a candidate's ideology as well as her qualifications influences senators' decisions).
511. Charles M. Cameron et al., Senate Voting on Supreme Court Nominees: A Neoinstitutional Model, 84 Am. Pol. Sci. Rev. 525, 530-31 (1990).
512. Jeffrey A. Segal et al., A Spatial Model of Roll Call Voting: Senators, Constituents, Presidents, and Interest Groups in Supreme Court Confirmations, 36 Am. J. Pol. Sci. 96, 113-14 (1992). In addition, legislators have long exercised influence on judicial behavior through court funding and jurisdictional legislation.
513. Howard Gillman, How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891, 96 Am. Po. Sci. Rev. 511, 512, 515-16, 520 (2002).
514. See J. Mitchell Pickerill & Cornell W. Clayton, The Rehnquist Court and the Political Dynamics of Federalism, 2 Persp. on Pol. 233, 240-43 (2004).
515. Cornell W. Clayton & J. Mitchell Pickerill, Guess What Happened on the Way to the Revolution? Precursors to the Supreme Court's Federalism Revolution, 34 Publius 85 (2004).
516. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 355-57 (2009) (summarizing thesis that federal courts' constitutional conclusions rarely stray from national majoritarian preferences).
517. Cornell W. Clayton & J. Mitchell Pickerill, Guess What Happened on the Way to the Revolution? Precursors to the Supreme Court's Federalism Revolution, 34 Publius 85 (2004).
518. Keith E. Whittington, Dismantling the Modern State? The Changing Structural Foundations of Federalism, 25 Hastings Const. L.Q. 483, 527 (1998).
519. I do not wish to overstate the case here. As noted, judges' attention to politics surely declines in the period after their appointment, and the judiciary's agenda may imperfectly overlap with that of the elected branches.
520. Is it possible that the time lag between congressional and judicial preferences will have a smoothing effect on outcomes? It is certainly possible that the preference divergence necessarily created by the lag has a stabilizing effect at some moments. But it might also be that federal judges are appointed to satisfy more ideologically committed factions of a party, such that they run a little ahead of legislators. This possibility would help explain why states may go to federal courts even though they have already sought and failed to obtain a result in Congress (although the frictional effect of vetogates in Congress means that even a court with similar preferences to Congress has a freedom to act that legislators lack).
521. see also Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 Vill. L. Rev. 951, 961-72 (2001) (same).
522. Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31, 82-83 (1991).
523. Decisions that fit this profile might include Bailey v. Drexel Furniture Co., 259 U.S. 20, 44 (1922), which struck down the Child Labor Tax Law. States maintain robust federal court litigation capacity consistent with either a positive story of judicial safeguards or a negative one about rent-seeking through the courts.
524. Paul M. Collins, Jr., Friends of the Supreme Court: Interest Groups and Judicial Decision Making 73-74 tbl.3.6 (2008) (documenting the increase in the number of state amicus briefs filed between 1950 and 1995).
525. Eric N. Waltenburg & Bill Swinford, Litigating Federalism: The States Before the U.S. Supreme Court 60-61 tbl.5.1 (1999).
526. 505 U.S. 144, 187 (1992).
527. See William Michael Treanor, The Case of the Prisoners and the Origins of Judicial Review, 143 U. Pa. L. Rev. 491, 527 (1994) (describing preratification proceedings in which participants believed a statute had to be "dramatically at odds with the constitution" for it to be unconstitutional).
528. For a general statement of the theory, see R.G. Lipsey & R.K. Lancaster, The General Theory of Second Best, 24 Rev. Econ. Stud. 11, 11 (1956) ("[I]f there is introduced into a general equilibrium system a constraint which prevents the attainment of one of the Paretian conditions [i.e., the circumstances that generate Pareto-optimal outcomes], the other Paretian conditions, although still attainable, are, in general, no longer desirable. ").
529. Writing in these pages last year, I offered an analogous institutional capacity argument respecting certain separation-of-powers questions. See Aziz Z. Huq, Removal as a Political Question, 65 Stan. L. Rev. 1, 70-76 (2013) (arguing that Article II challenges to administrative positions based on a deficit of presidential control should not be justiciable). Obviously, the federalism-related argument here resonates with the skepticism about separation-of-powers jurisprudence offered there.