Second-Order Diversity

97 Pages Posted: 24 Nov 2004 Last revised: 23 May 2008


Much scholarship focused on democratic design is preoccupied with a single problem: how to treat electoral minorities in a majoritarian system. A term often deployed in those debates, particularly those focused on demographic difference, is diversity. When scholars use the term, they usually mean that something - a class, an institution, a decisionmaking body - should roughly mirror the composition of the relevant population.

The problem with this debate is that its participants often unthinkingly extend theories about diversity derived from unitary institutions to disaggregated ones - institutions where the governance system is divided into a number of equal subparts (juries, electoral districts, appellate panels, schools committees, and the like). Thus, despite their prevalence, scholars have not systematically considered how to tailor our normative commitment to diversity to the unique features of these disaggregated institutions.

This Article is a first step toward providing a conceptual framework for describing a recurring set of trade-offs we face when designing disaggregated institutions. Specifically, the paper claims that there at least two types of diversity - first order and second order. The idea I term first-order diversity fits the conventional understanding; it is the normative vision associated with statistical integration, the hope that democratic bodies will someday mirror the polity. The notion of second-order diversity, proposed here, posits that democracy sometimes benefits from having decisionmaking bodies that do not mirror the underlying population but instead encompass a wide range of compositions. Second-order diversity seeks variation among decisionmaking bodies, not within them. It favors interorganizational diversity, not intraorganizational diversity. It fosters diversity without mandating uniformity.

The notions of first-order and second-order diversity provide a framing device that allows us to connect and synthesize the insights offered by a broad array of legal scholarship in assessing the costs and benefits of each approach. This framework thus allows us to play a divergent set of literatures against one another, to find new grounds of criticism and as-yet unexplored sources of connection among them. And it helps put some meat on the bones of a number of undertheorized design practices, identifying values attached to those practices that scholars have thus far neglected.

Suggested Citation

Gerken, Heather, Second-Order Diversity. Harvard Law Review, Vol. 118, No. 4, February 2005, Harvard Public Law Working Paper No. 108, Available at SSRN: or

Heather Gerken (Contact Author)

Yale University - Law School ( email )

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

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