Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.

Research Paper Series

Recent Working Papers:

How Epic v. Apple Operationalizes Ohio v. Amex

2-2024 | John Yun


The Supreme Court’s landmark decision in Ohio v. American Express (“Amex”) remains central to the enforcement of antitrust laws involving digital markets. Specifically, the decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and competitive effects analysis across the two distinct groups who interact on the Amex platform, that is, cardholders and merchants. This unified, integrated approach has been controversial, however. The primary debate is whether the Court’s ruling places an undue burden on plaintiffs under the rule of reason paradigm to meet its burden of production to establish harm to competition. Enter Epic v. Apple (“Epic”): a case involving the legality of various Apple policies governing its iOS App Store, which, like Amex, is a transactional, multisided platform. While both the district court and the Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are of broader interest for their fidelity to Amex. A careful review of the decisions reveals that the Epic courts operationalized Amex in a practical, sensible way. The courts did not engage in extensive balancing across developers and users as some critics of Amex contended would be required. Ultimately, the courts in Epic (a) considered evidence of effects across both groups on the platform and (b) gave equal weight to both the procompetitive and anticompetitive effects evidence, which, this Article contends, are the essential elements of the Amex precedent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involving regular, single-sided markets. Additionally, both parties, whether litigating single-sided or multi-sided markets, are fully incentivized to bring evidence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out-of-market effects doctrine in antitrust, which limits what type of effects courts can consider in assessing conduct.

Too Much Sham Pain?

2-2024 | James Cooper, Emily Kral


The right to “petition the government for a redress of grievances” is vital to a functioning democracy. The preservation of competitive markets also provides tremendous benefits to consumers in the form of lower prices and increased quality. On occasion, however, these important values come into conflict when petitioning harms marketplace rivals. Recognizing this potential conflict, the Supreme Court fashioned the Noerr-Pennington doctrine, which immunizes from antitrust scrutiny legitimate attempts to influence all three branches of government. But so-called “sham” petitioning— engaging the judicial, executive, or legislative branch only as a subterfuge to gain market power via the collateral damage imposed on a rival rather than to vindicate First Amendment rights—can cause real pain for consumers. For example, drug companies have used Noerr to shield their attempts to exploit the Hatch-Waxman Act to impose higher drug prices on consumers through reverse settlements and improper Orange Book listings. In two important cases twenty years apart—California Motor Transport and Professional Real Estate Investors (PREI)—the Supreme Court fleshed out the sham exception but left some important ambiguities. Not surprisingly, the lack of clarity led to a circuit split: while all circuits agree that PREI is the correct standard when entertaining a single petition, they disagree over the standard for determining whether a pattern of petitions is a sham. In this paper, we argue that the two standards can coexist once one understands that the optimal standard for a sham must adjust to its informational environment. Employing error-cost analysis, we derive a likelihood ratio test for sham petitioning that takes into account the increased information that accompanies a larger number of petitions. We show that when there is a sufficiently large number of petitions, lowering the threshold showing for a sham can increase the accuracy of the sham test by dramatically increasing the statistical power of courts to detect sham petitioning (reduce type-II errors), while increasing the level of protection for First Amendment petitioning (reduce type-I errors). Accordingly, maintaining the stringent PREI standard when faced with multiple petitions merely squanders valuable information that could potentially save consumers from suffering the anticompetitive pain that comes with sham petitioning. Importantly, this test maintains a necessary objective component as commanded by PREI. If the test for a sham is too stringent, a substantial amount of anticompetitive behavior that does not vindicate First Amendment values may be immunized and go unaddressed. Thus, getting Noerr’s balance between First Amendment and competition values right is key to prevent consumers from suffering too much sham pain.

Trigger Warning

2-2024 | Nelson Lund


The right of the people to keep and bear arms, and its treatment by the courts, has gotten a lot of attention since the 2008 decision in which the Supreme Court for the first time in history held that a gun control regulation violated the Second Amendment. Robert Cottrol and Brannon Denning have published a very useful history of the developments that led to the Court’s dramatic reshaping of Second Amendment doctrine: To Trust the People with Arms: The Supreme Court and the Second Amendment. The book is of manageable length and it will be accessible to a lay audience.

The need for such a book arises in part from the complexity of the legal history and in part from confusion that has been created by disputes within the Supreme Court and among the lower courts. In addition, professional historians have very aggressively criticized the Court’s opinions and the legal scholarship that prepared the way for the sea change that began in 2008.

The current state of the law is exceptionally unsettled, and seems likely to remain in ferment for some time to come. Cottrol and Denning are cautiously optimistic that the Court can steer the nation toward a moderate and reasonable gun-control regime, and a majority of the Justices are probably aiming at just this result. Whatever lies ahead, this book will help non-specialists to intelligently follow and assess the coming legal developments.

The Constitutional Case Against Exclusionary Zoning

2-2024 | Joshua Braver, Ilya Somin


We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities - from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.

Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.

We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use their property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin’s “moral reading,” representation-reinforcement theory, and the emerging “anti-oligarchy” constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.

Looking Forward by Looking Backward: The Future of Consumer Finance and Financial Protection

2-2024 | Todd Zywicki


This essay was prepared for “The Future of Financial Regulation Symposium” October 6, 2023, sponsored by the C. Boyden Gray Center. I assess the future of consumer finance and financial protection by looking to the lessons of history. Consumer finance and financial protection in the United States exhibits a spontaneous evolution driven by changes in technology and consumer preferences in a repeated cycle. In general, consumers use consumer finance in a manner consistent with the predictions of rational behavior in order to improve their lives. Consistently, this goal of consumer betterment runs up against paternalistic and repressive laws, which attempt to prevent the beneficial evolution of technology and competition. Eventually economic forces overwhelm regulatory repression for the betterment of consumers.

I track three distinct eras in the evolution of consumer finance and financial regulation that provide a roadmap to the future evolution in the virtual era and emergent threats to consumers from private and public sources, including the growing use of the consumer finance system to infringe on the exercise of constitutionally-protected values.

Evolving the Rule of Reason for Legacy Business Conduct

2-2024 | John Yun


In administering the antitrust laws, is it relevant what a firm’s market power was when a business practice was first implemented? Relatedly, should the commonness of a practice — in terms of use by other firms in a market or industry — be a consideration when assessing its legality? This article proposes that, under certain, well-specified conditions, the legacy of a business practice and its commonness within a market can be used as a “marginally procompetitive presumption” under the rule of reason framework. Specifically, if a practice was implemented before a firm obtained substantial market power or a practice is commonly used by other firms across the market power spectrum, then the burden placed on defendants to demonstrate the practice is procompetitive should be lessened in proportion to the strength of the legacy and commonality.

Disney v. Democracy? A Public Choice and Good Governance Analysis of Florida’s Reedy Creek Improvement Act of 1967 and Its Resulting Regime

2-2024 | Donald Kochan


The Reedy Creek Improvement Act of 1967 [hereinafter “1967 Act”], by all accounts is an extraordinary piece of legislation, designed principally to serve the private interests of a private corporation and its operation of Walt Disney World. This Report concludes that the 1967 Act, the political environment surrounding its creation and the maintenance of authorities under the Act, and governance pursuant to the Act have all accomplished a dangerous relaxation of normal limits on governmental power and structures of democratic accountability. In its analysis, this Report brings scholarly insights to bear upon the inquiry from constitutional law, statutory interpretation, democratic governance and institutional analysis from law and political science, land use planning, local government law, urban planning, administrative law and regulatory policy, and the interdisciplinary work animating positive political theory (explaining how politics actually works rather than how we wished it worked).

In particular the insights from public choice theory are applied to the 1967 Act, the RCID, and Disney for the first time in any substantial way as a matter of academic inquiry. As part of its work, the Report identifies the types of “masks” that Disney has used to obscure the private nature of the legislative deals it has profited from by attempting to clothe the 1967 Act and RCID authority in public interest-sounding frames. This Report also explores the scholarly literature explaining why agencies with single-industry-enhancing purposes or a single- or primary-entity constituency, like the RCID, tend to be captured by entities they govern.

Ordinary institutional design and limits, democratic accountability mechanisms, and constitutionally-grounded processes of good governance serve important purposes. They exist to ensure that government powers remain limited, democratic principles remain protected, citizens remain empowered, and powerful interest groups like Disney are thwarted from capturing the strong arm of the state to advance their private purposes. Indeed, the preservation of these principles of limited government and the rule of law requires erecting and respecting hurdles to government intervention to (1) ensure that government interference in private affairs is limited to serving the public interest and to those actions truly necessary and requiring such public intervention; and (2) to maximize the space for private ordering and market competition free of special privileges so that economic freedom, competition, innovation, and growth may flourish. Consequently, governance is intentionally difficult and time consuming, with the opportunity for the kind of broad public participation and scrutiny that leads to optimal decisionmaking, including balancing competing interests and recognizing that the neutrality principle grounding good governance prohibits picking favorites. Legislation that sets a framework risking the relaxation of these norms should be re-evaluated. Such re-evaluation is the focus of this Report.

This Report was originally filed with the Florida Legislature in December 2023 as “A Legal and Structural Analysis of the Legitimacy and Consequences of the Governance Regimes Established By the State of Florida’s 1967 Reedy Creek Improvement Act and Associated Laws.” The 2023 Report serves as the draft for a law review article now in progress by the working title at the head of this abstract.

New Jury Trial Expansion and Structural Constitutional Reform

2-2024 | Jennifer Mascott


Evidence from British practice to the 1789 Judiciary Act then up through nineteenth-century judicial opinions and the contemporary Federal Rules of Criminal Procedure suggests that the “interest of justice” standard to grant a new trial is more defendant-protective than the standard a number of federal circuit courts apply. That evidence suggests new trials were considered warranted whenever a guilty verdict was “contrary to the evidence.” Early jurists and theorists viewed the new trial right as an important safeguard of the underlying, more fundamental, constitutional right to a criminal jury trial—rather than in tension with it as several circuit courts have suggested in recent opinions.

Over the past two years, at least three federal circuit courts have issued opinions deepening the circuit divide on the proper evidentiary standard for district courts to grant Federal Rule of Criminal Procedure 33 new trial rights. The proper standard for affirming new trial grants was recently raised in a petition to the Supreme Court from one of Hunter Biden’s business associates, making the legal question an issue in cases with significant public valence. Although the Court recently denied this petition, another Second Circuit case raising the same circuit split continues to percolate following the Second Circuit’s interlocutory reversal of a new trial grant.

Evidence unpacked by the article includes every reference to the new trial mechanism in documentary histories of the constitutional ratification debates and the First Congress, along with nineteenth and twentieth-century judicial opinions showing the important of the new trial motion in safeguarding the liberty of minorities, as well as the drafting history of the initial federal rules of criminal procedure. This evidence demonstrates the connection between criminal new trial motions and key constitutional democratic norms underlying the federal separation of powers and the role of jury trials in constraining federal executive authority.

The Patriot President: Virtue Politics in American Government

1-2024 | Francis Buckley


While the Framers sought to create a document that would promote civic virtue, the Constitution they gave us fails to do so and its misincentives explain why America scores poorly on cross-country measures of public integrity. Amongst voters, there is nevertheless a demand for virtue politics, which bids to transform our system of government into one of strong presidential rule. The extent to which it will do so will depend on how courts police the trade-off between virtue and liberty. In doing so, courts will be called on to grapple with the most fundamental questions of political philosophy, even as the Framers had done.

The Supreme Court “Pulled a Brodie”: Swift and Erie in a Commercial Law Perspective

1-2024 | Todd Zywicki


Erie Railroad v. Tompkins is a cornerstone of modern American law. Erie overturned Swift v. Tyson, a case that had stood for nearly a century with minimal objection. Swift involved the negotiability of commercial paper and the holding of the case, that in disputes heard in federal courts under diversity jurisdiction, the court should use traditional common law methods to resolve the case rather than feeling bound by the authoritative pronouncements of a state court.

Correspondence between Harvard Law School’s Lon Fuller and Yale’s Arthur Corbin—arguably the two greatest Contracts Law professors of the mid-Twentieth Century—reveals widespread ridicule and dismay among commercial lawyers and scholars following Erie. Fuller quotes the great Harvard Constitutional Law scholar as saying the Supreme Court “pulled a brodie” in Erie. This article reviews Erie from the perspective of commercial law, rather than the public law commentary that has dominated discussion of the Erie doctrine since its birth, seeking to understand the depth of contempt for Erie among commercial lawyers in terms of its consequences, reasoning, and jurisprudential approach.

Empowering Hispanics to Vote With Their Feet

1-2024 | Ilya Somin


This symposium contribution outlines the significance of foot voting for America’s Hispanic population and highlights ways in which we can better empower them to “vote with their feet.” People vote with their feet when they make individually decisive choices about the government policies they wish to live under, as opposed to ballot box voting, where each voter usually has an only an infinitesimally small chance of determining electoral outcomes or otherwise affecting policy. There are three major foot voting mechanisms: through international migration, by moving between jurisdictions in a federal system, and by making choices in the private sector.

Part II summarizes the advantages of foot voting over conventional ballot box voting as a mechanism of political choice. Foot voters have more meaningful opportunities to make decisive choices with a real impact on their lives, and better incentives to become well-informed. Part III outlines ways in which Hispanics often benefit from foot voting opportunities even more than most other groups in American society. This applies to both international migration and domestic foot voting. Part IV describes ways in which we can enhance both international and domestic foot voting opportunities for Hispanics. Much can be accomplished by increasing access to legal migration, legalizing the status of current undocumented migrants within the United States, and breaking down barriers to domestic interjurisdictional foot voting.

Expanding Hispanic foot voting is not merely a benefit for this group alone. Empowering them to “move to opportunity” also benefits other groups, including native-born Americans of all races. The liberty and prosperity of America’s largest minority group is of obvious significance to the nation as a whole.

Posner Meets Hayek: The Elements of an Austrian Law & Economics Research Program

12-2023 | Todd Zywicki


To date, Friedrich Hayek is the only winner of the Nobel Prize in Economics who also holds a law degree. The role of law is central to Hayek’s work and prominent in the research program of the Austrian School of Economics generally. Although Hayek’s contributions to jurisprudence are manifest, as are the influence of his economics ideas, his influence on the field of law and economics has remained modest. This lecture, delivered as the Keynote Lecture at the 2023 Asian Law & Economics Association Annual Meeting, provides an introduction to the fundamentals of an Austrian Law & Economics research program in contrast to the mainstream, Chicago-school research program that has dominated the field since its early history. Compared to the neoclassical approach, Austrian thinking provides a more insightful approach to many of the key concepts generally associated with the economic analysis of law: the nature and success of the common law as a system of law, the importance of stability and simple rules in the law, and the strong preference for private ordering via contract, personal autonomy, and voluntary exchange exhibited in the common law.

I identify and briefly describe six key distinguishing characteristics of the Austrian school that distinguishes it from neoclassical law and economics: (1) Methodological individualism, (2) utility and costs are subjective, (3) the division of knowledge, (4) spontaneous order, (5) competition as a discovery procedure, and (6) the nature of economic equilibrium. I will also highlight some of the ways in which examining law and economics through an Austrian framework provides valuable insights about law and economics.

Book Review, Splitsville, USA: A Democratic Argument for Breaking Up the United States, By Christopher F. Zurn

12-2023 | Ilya Somin


The US political system has been suffering from multiple serious problems, most notably severe polarization and weakening of crucial political norms underpinning democracy. In Splitsville USA, political philosopher Christopher Zurn advocates a radical solution: national divorce. He contends that Americans will be better off if the United States were divided up into two or more new nations. The book is a useful thought experiment and will surely help stimulate debate. But ultimately, Zurn’s proposed remedy is unconvincing. The author overstates the feasibility and effectiveness of peaceful dissolution, while undervaluing those of some potential alternatives, most notably decentralization and limitation of government power. Splitsville also fails to convincingly address a number of potential negative effects of dissolution, particularly the threat to dissenting minorities within the new nations, and the impact on the international system.

Prospecting, Sharecropping, and the Recording Industry

11-2023 | Olufunmilayo Arewa


Digital-era disruption has had a significant impact on the recording industry and the business of music more generally. Digital-era music disruption draws attention to patterns of continuity within the recording industry. Notably, despite widespread use of digital technologies for the creation, dissemination, and consumption of music, core recording industry business models largely still draw from the predigital era. Recording industry business models have long been compared to other exploitative business models based on debt, including the sharecropping business. Business models in the recording industry have been a source of dispute by a broad range of recording artists, including highly successful ones such as Taylor Swift. These models have also reflected racialized patterns of extraction that have particularly disadvantaged generations of African American artists. This Article considers the impact of racialized extraction patterns in the recording industry for the racial wealth gap. It also discusses the need for alternative business and compensation models for all artists in the recording industry.

Patent Injunctions and the FRAND Commitment: A Case Study in the ETSI Intellectual Property Rights Policy

10-2023 | Adam Mossoff


Many academics and government officials claim that owners of patents on standardized technologies, such as 5G or Wi-Fi, cannot obtain injunctions as a remedy for infringement of their patents. They believe this is mandated in the contractual commitment by an owner of a standard essential patent (SEP) to license on fair, reasonable, and non-discriminatory (FRAND) terms. This conventional wisdom is profoundly mistaken. FRAND agreements do not prohibit SEP owners from receiving injunctions for continuing infringement of their patents. One of the oldest, exemplary FRAND agreements evinces this basic legal truth: the FRAND commitment set forth by the European Telecommunications Standards Institute (ETSI). According to the plain text, contractual context, and historical provenance of the ETSI FRAND commitment, it is clear that it does not prohibit injunctions as remedies for infringement of SEPs. In recent years, this has been confirmed by courts in jurisdictions throughout the world repeatedly issuing injunctions to SEP owners under the ETSI FRAND commitment. Unfortunately, the mistaken belief that FRAND prohibits injunctions persists among American academics and courts. It is important to clarify the legal requirements of FRAND and the availability of injunctive relief for SEP owners because normative theories or economic models about SEP licensing and litigation should be based in legal facts. Otherwise, incorrect claims about FRAND allegedly prohibiting injunctive remedies will continue to proliferate among academics and officials, provoking unnecessary litigation and unjustified agency actions by antitrust officials. These legal errors impose costs on innovators and implementers alike, which undermine the efficient growth in the global innovation economy.

Reimagining Antitrust Institutions: A (Modest?) Proposal

12-2023 | Douglas Ginsburg, Joshua Wright


It is always an appropriate time to reevaluate, reexamine, and question the optimal scope and shape of our antitrust institutions. For example, the United States is peculiar in having two distinct antitrust enforcement agencies. More peculiar still, the agencies have both common and unique functions. For example, both the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) review mergers pursuant to Section 7 of the Clayton Act and enforce Sections 1 and 2 of the Sherman Act through civil actions. At the same time, the Division alone is responsible for criminal enforcement of the Sherman Act, and the FTC alone enforces the Clayton Act provisions that prohibit tying and unfair methods of competition. Layered atop the peculiar dual jurisdiction of the FTC and DOJ at the federal level is a remarkably complex and decentralized system of competition enforcement authority distributed among myriad federal sectoral regulators, state attorneys general, and private litigants.

This article asks whether the current distribution of competition functions in the U.S. can be improved by some reorganization or other reform. We answer in the affirmative and propose several changes — perhaps the most significant being consolidating the competition functions of the FTC into the Antitrust Division. We also propose stripping the Federal Communications Commission of authority independently to review mergers, as the Congress did with regard to the Department of Transportation in view of its similarly poor performance reviewing airline mergers. Our more general proposals regarding the authority of sectoral regulators over competition should not be overlooked, however; it would do much good and has little or no downside.

Colonialism and Africa’s Future Paths

11-2023 | Olufunmilayo Arewa


This introductory chapter examines and provides an overview of the past, present, and future paths of Nigeria and other African countries, in relationship to digital technologies and through the lens of disruption (and disruptive innovation), including the 2020 #EndSARS protests. The chapter, which outlines the overall book, also discusses the key themes of Africa’s digital-era with their existing laws and institutions that were constructed under colonial rule. Due to the frameworks that have been established during and after colonialism, much of the law-making process continues to impact how digital technologies are being created, implemented, and regulated in the 21st century. It is important to examine, challenge, and disrupt the past patterns of these external relationships, external and internal networks, as well as external models that derived from those European powers.

Global Antitrust Institute Response to the ITA-USPTO-NIST Request for Information on Standards-Essential Patents

11-2023 | Alexander Raskovich, Douglas Ginsburg, Tad Lipsky, John Yun


The Global Antitrust Institute submits this response to the request for information (RFI) on standards-essential patents (SEPs) by the International Trade Administration (ITA), Patent and Trademark Office (USPTO), and National Institute of Standards and Technology (NIST). We review recent developments in SEP policy in the U.S., Europe and China. We recommend that, given their subject matter expertise in innovation and standardization, the USPTO and NIST continue to work closely with the U.S. Department of Justice on principles of SEP review, exercising their thought leadership on the importance of robust intellectual property protections and a continued commitment to the industry-led, voluntary, consensus-based approach to standards development. We likewise recommend that the USPTO reach out a collaborative hand to the European Patent Office on these issues, and the Department of Commerce lend support to the Office of the U.S. Trade Representative in furtherance of the goal of bringing China into compliance with the WTO Agreement on Trade-Related Intellectual Property Rights.

Organizational Form and Enforcement Innovation

11-2023 | Luke Froeb, Bruce Kobayashi, John Yun


In this article, we examine one mechanism through which enforcement innovation occurs and is passed into practice at the U.S. antitrust agencies. Our main thesis is that agency economists are uniquely situated to produce, adapt, and disseminate new methodologies that improve enforcement accuracy because of the multiple and conflicting roles they play. Agency economists are trained in academic PhD programs to value methodology above application, and to read and publish in academic journals. They know how to narrow questions, so that they can be answered precisely, using theoretical and/or empirical models. But when they arrive at the agencies, these economists trained in academic PhD programs are thrust into decision-making roles where they must render judgments on messy, real-world cases, typically with imperfect knowledge, and often in conflict with agency attorneys, political appointees, and/or the economists and attorneys who appear on behalf of parties. How to manage this process in a way that produces growth (useful innovation) is a primary institutional challenge for the antitrust agencies.

We focus on the organizational structure of the U.S. antitrust agencies with an eye toward isolating the factors that encourage or discourage the development and application of useful, innovative economic tools. Specifically, we examine how the relationship between academia and the agencies and the dual responsibilities of research and casework serve to encourage what has become known as “enforcement R&D,” the development and application of new methodologies for screening and evaluating mergers, and for quantifying the expected harm to competition of various behaviors.

How Federalism Promotes Unity Through Diversity

10-2023 | Ilya Somin


Does federalism promote unity? In one obvious sense, the answer is surely “no.” Federalism necessarily reduces unity because it leads to divergence on at least some policy areas. If there were no significant policy differences between the various state and local governments, then there would be little point in having federalism in the first place.

But the diversity federalism creates can also help promote unity, by reducing the conflict that arises when the federal government has the power to impose one-size-fits-all policies throughout the country. Decentralizing authority can mitigate that conflict. It can also empower people to make better choices by “voting with their feet.” As a result, more people can live under policies that they prefer, and the choices they make are likely to be better-informed. There are some limitations to the idea that federalism can promote unity and better decision-making through diversity. But it has tremendous value, nonetheless.

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