Living Under Someone Else's Law

36 Democracy Journal 42, 2015

11 Pages Posted: 22 Mar 2015

See all articles by Heather Gerken

Heather Gerken

Yale University - Law School

James Dawson

Yale University - Law School

Date Written: March 20, 2015

Abstract

This Feature takes a counterintuitive view on spillovers, which occur when citizens in one state pass a law that affects citizens in another state. 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 quite useful for people to live under someone else’s law, and that spillovers should be understood as part of a well-functioning democracy.

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 states regulate shoulder-to-shoulder in a tight policy-making space, they inevitably jostle one another. Regulatory overlap is a stubborn fact.

Our second point is that, while spillovers undoubtedly involve real costs, they in fact generate substantial democratic benefits. Indeed, spillovers force us to engage with our opponents and search for common ground. They tee up national debates and prevent politicians from leaving all the hard questions to the states. They help us overcome gridlock by shifting the burden of inertia and pushing both sides to engage. They prod state lawmakers to cross party lines and broker a compromise solution. Spillovers, in short, force state and federal officials to do what they are supposed to do: politic, find common ground, and negotiate a compromise that no one likes but everyone can live with.

Keywords: federalism, democracy, spillovers, states, marijuana, immigration, guns, climate change

Suggested Citation

Gerken, Heather and Dawson, James, Living Under Someone Else's Law (March 20, 2015). 36 Democracy Journal 42, 2015, Available at SSRN: https://ssrn.com/abstract=2581748

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

James Dawson

Yale University - Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

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