Collective action problems arise where every member of a group has a choice between alternatives, and if each member acts in a narrowly self-interested fashion or all members are unable to coordinate their actions, the outcome will be worse for all members by their own estimations than it will be if all or some of them choose another alternative. Collective action problems are caused either by externalities (e.g., a prisoners’ dilemma), or by coordination difficulties (e.g., deciding which side of the road to drive on). This seminar will examine the extent to which the United States Constitution can be understood as solving collective action problems that arise for the states and as empowering the states themselves and the federal government to solve such problems. Topics will include:
- the number and importance of multi-state collective action problems both today and at the time of the creation of the Constitution;
- collective action theory in the social sciences;
- the promise and perils of relying on interstate compacts and other agreements to solve multi-state collective action problems;
- the necessity of federal power to solve such problems and a general examination of how Article I, Section 8, of the Constitution authorizes Congress to do so;
- the Interstate Commerce Clause and related structural principles (i.e., the anti-commandeering doctrine and the dormant commerce doctrine);
- the Taxing and Spending Clause and the Necessary and Proper Clause;
- the many other parts of the Constitution that can be explained to a significant extent by the logic of collective action (e.g., the Foreign and Indian Commerce Clauses; Article I, Section 10; the Treaty Clause of Article II; certain heads of federal jurisdiction in Article III, especially diversity and suits between states; the Privileges and Immunities Clause and the Territories Clause, both of Article IV; Article V’s requirements for constitutional amendments; and Article VII’s requirements for ratification of the Constitution);
- the inability of the collective action theory of the Constitution to explain certain parts of the Constitution, especially the Reconstruction Amendments, which follow a different structural logic;
- various challenges to the theory (e.g., that partisan polarization and congressional dysfunction undermine federal power to solve collective action problems; that the theory threatens to collapse the text of the Constitution into its underlying purposes; that the theory limits federal power too much (according to legal liberals) or not enough (according to legal conservatives); and that claims about whether collective action is rational or likely to occur are historically contingent and normatively contestable; and
- why the theory should matter to judges, elected officials, academics in several disciplines, and engaged citizens.
Readings will draw from The Federalist Papers and other Founding materials (e.g., the Articles of Confederation, Madison’s Vices memorandum, various letters of the Founders, the Virginia Plan, and the Constitution); book chapters (by, e.g., Akhil Amar, Jack Balkin, Daniel Farber, Jack Rakove, and Neil Siegel); law review articles (by, e.g., Robert Stern, Donald Regan, Steven Calabresi, Robert Bork, Robert Cooter, Neil Siegel, and Ernest Young); U.S. Supreme Court opinions from the Marshall Court to the present; and select draft chapters of my book manuscript.
Students will be required to write a 30-page research paper on a topic related to the substance of the seminar, which may be used to fulfill the JD SRWP degree requirements, the LLM writing requirement, or the special writing requirement for JD/LLMs.
Grades will be based on the quality of students’ course participation (40%) and the quality of their research papers (60%).
|Course Areas of Practice|
Knowledge and understanding of substantive and procedural law