Balkinization: The Benefits of Living Under Someone Else's Law

The Benefits of Living Under Someone Else's Law

Heather K. Gerken

James Dawson and I have just published a new piece in the Democracy Journal entitled “Living Under Someone Else’s Law,” which is an extension of some work I did with Ari Holtzblatt on “The Political Safeguards of Horizontal Federalism.” The piece takes a counterintuitive view on spillovers, which occur when citizens in one state pass a law that affects those in another. Spillovers are all but universally condemned inside and outside the academy. It’s not hard to see why. It is unsettling when one state’s policies stretch beyond its territories. No one wants to live under someone else’s law, after all. We argue, however, that it’s in fact quite useful for people to live under someone else’s law and that spillovers should be understood as part of a well-functioning democracy.

As I’ll discuss today and tomorrow, those who condemn spillovers miss two important points. First, if you worry about spillovers, there’s a lot to worry about. Spillovers are ubiquitous in a highly integrated, tightly networked system like ours. When California passes climate change regulation or Texas rewrites its schoolbooks to question evolution or Wisconsin refuses to do business with any company that violates federal labor law or Virginia maintains lax gun rules, the peoples of other states are affected. Detroit automakers change their manufacturing process to avoid losing the California market, so every state suddenly finds itself living under California law. School boards purchase textbooks that are more conservative than their population and thus find themselves living under Texas’s law. Companies seeking to do business in Wisconsin change their practices nationwide. Firearms flood into New York via the “Iron Pipeline” even though New York has restrictive gun regulations. When states regulate shoulder-to-shoulder in a tight policy-making space, they inevitably jostle one another. Regulatory overlap is a stubborn fact.

We could surely try to turn back the clock and return to a simpler time. But the price of avoiding spillovers is maintaining clear jurisdictional lines and limiting policy-making domains. That price is too steep. We’d have to give up on a nationally integrated market. We’d have to give up on a nationally integrated political system. We might even have to stop our citizens from crossing state lines. In the abstract, self-rule sounds like an unalloyed good. In practice, it isn’t. Self-rule always requires a trade-off. And when we recognize the many goods we’d have to sacrifice to attain it—the goods associated with integration—the trade-off is less appealing.

As I’ll explain tomorrow, there are good reasons not just to tolerate spillovers, but to value them. Living under someone else’s law may seem to violate the principle of self-rule, but it’s actually a democratic good unto itself.

Posted 11:43 AM by Heather K. Gerken [link]