Date Posted: October 2012
This essay was written for the Tulsa Law Review Symposium, “Not Your Father’s Federalism”, devoted to the work of Heather Gerken. It explores Gerken’s work on “uncooperative federalism” and “dissenting by deciding,” two of the most important recent steps forward in understanding how “our federalism” works in practice. After lavishing deserved praise for a number of pages, as one does in a festschrift essay, I try to say something a little bit novel. Relying on authorities including Susan Rose-Ackerman, Morris Fiorina, Tone Lōc, Kenneth Arrow, Whit Stillman, Joseph Schumpeter, Arcade Fire, John Updike, The Wire, and some guy named Schleicher, I argue that, because of the role played in state and local politics by national-level mediating institutions like political parties, there remain serious questions about whether we see a sub-optimal amount of uncooperative federalism and dissenting by deciding. I conclude by noting that, even though Gerken’s work has attracted an enormous amount of attention, it deserves even more, particularly work discussing what reforms would generate more dissent and less cooperation.