Exit, Voice, and Disloyalty

Constitutional Roundtable

Professor Heather Gerkin
Yale Law School

Abstract: Much of constitutional theory is preoccupied with a single question: what does a democracy owe its minorities? And most of the answers to this question fit naturally into the two categories Hirschman made famous: voice and exit. On both the rights side and structural side of constitutional theory, scholars worry about providing minorities with an adequate level of influence. And the solutions they propose almost inevitably offer minorities a chance at voice or exit, as if no other options existed. Professor Gerken will argue that exit and voice are not the only options available to a minority group seeking influence. That’s because much of the nation’s administrative structure looks more like Tocqueville’s democracy than Weber’s bureaucracy. In our highly decentralized and partially politicized system, minorities can wield influence over national policy by virtue of the fact that they routinely administer it. As policymaking insiders, minorities can resist federal policy from within rather than challenge it from without. Professor Gerken will explore the implications of this institutional fact and explain why constitutional theory has long neglected this important form of minority power.

Heather Gerken is the J. Skelly Wright Professor of Law at Yale Law School where she specializes in election law, constitutional law, and civil procedure. Professor Gerken is one of the country’s leading experts on voting rights and election law, the role of groups in the democratic process, and the relationship between diversity and democracy. A native of Massachusetts, Professor Gerken graduated from Princeton University, where she received her A.B. degree summa cum laude in 1991, and from the University of Michigan Law School, where she received her J.D. summa cum laude in 1994. She then served as a law clerk for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and for Justice David H. Souter of the United States Supreme Court, before entering private practice in Washington, D.C. In 2000 Professor Gerken became an assistant professor at Harvard Law School, where she was granted tenure and won the Sachs-Freund teaching award. She joined the Yale faculty in 2006. She is currently working on a book on the trans-substantive concept of “second-order diversity” in American public law.

A light lunch will be served.

For more workshop information and a copy of the draft paper, please contact Nadia Gulezko at n.gulezko@utoronto.ca

Event date: Thursday, March 14, 2013, from 12:30 PM to 2:00 PM
Location: Room FLA, Flavelle House, Faculty of Law, University of Toronto