Does the Logic of Collective Action Explain Federalism Doctrine?

By Huq, Aziz Z. | Stanford Law Review, February 2014 | Go to article overview

Does the Logic of Collective Action Explain Federalism Doctrine?


Huq, Aziz Z., Stanford Law Review


2. Noncoercive solutions to interstate collective action problems

The second reason to reject a single logic of collective action turns on the existence of noncoercive solutions to states' collective action problems of the kind intimated in Part II.C. As Cooter and Siegel rightly observe, one such tool is the interstate compact. (221) They dismiss the utility of such agreements, however, citing the putative difficulty of securing unanimity among any numerically large number of participants. (222) They also decline to discuss other possible modalities of cooperation. Yet both compacts and other non-national government-based forms of state-to-state cooperation merit more than passing attention as potential solutions to collective action problems.

There are three ways in which states voluntarily coordinate without federal coercion. First, states can align their regulatory policies to yield collective goods without any formal mechanism via an informal process of learning or policy diffusion. Empirical studies of smoking bans, welfare programs, teacher qualification rules, same-sex marriage laws, and other regulations identify "robust patterns of policies and institutions spreading from ... state to state." (223) Diffusion of this sort can generate legal uniformity, eliminating externalities and ensuring wide adoption of successful policies. (224) Diffusion overcomes a collective action dilemma because the production of new state-level policies is not costless. Rational states have an incentive to refrain from innovation because they will not be able to capture all its benefits. Instead, they prefer to free ride on the innovation of others. Despite this free riding problem, a significant amount of diffusion is observed in practice. Like many other collective action-related norms, the diffusion mechanism operates through observation, imitation, or economic pressure--and not federal coercion. (225) Second, intergovernmental organizations such as the Uniform Law Commission (ULC) can serve as institutional loci for the development of"rules and procedures that are consistent from state to state" in areas where "new technology wears away geographical borders and matters of law implicate more than one state." (226) The ULC itself defies collective action expectations. Despite being voluntary (such that any state could free ride on its efforts), every state is a member. (227) The ULC "has proposed uniform laws in virtually every area of state law," some of which--e.g., the Uniform Commercial Code--have been adopted "in nearly every jurisdiction." (228) Nor is the ULC unique. The Multistate Tax Commission (MTC) also operates free of national governmental imprimatur and yet counts forty-seven states as members. (229) Its function is to issue fiscally consequential rules for apportioning and allocating tax receipts from multistate taxpayers--hardly a matter with low stakes for states.

Yet another example is the national organization formed by state attorneys general, which has overcome collective action hurdles to effectively deploy federal court litigation as a policy tool. (230) The National Association of Attorneys General has run a Supreme Court project since 1982 to coordinate state litigation efforts and to supply technical aid to litigators. (231) In addition, it "play[s] an important networking and lobbying role" and in that way has increased the volume of state participation in federal court litigation. (232) Seeking injunctive relief in a federal court of appeals--or, better yet, the U.S. Supreme Court--is a way for a subset of states to secure a policy benefit for most or all states that would otherwise be beyond the reach of states operating within the metes and bounds of the national political process.

Recent, high-profile constitutional cases demonstrate the potency of legal action in this vein by a minority of state attorneys general. It is thus worth recalling that one of the first legal challenges to the health care law was filed by a state attorney general, and many state attorneys general remained deeply involved in the case until its finale. …

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