Federalism has long been celebrated as a structure for policy experimentation. Yet judges, scholars, and politicians have often treated experimentation as an automatic consequence of decentralization and policy devolution, instead of examining the down and dirty mechanics that drive systems to explore new solutions and generate a steady stream of useful policy innovations.
This Article addresses this gap in the literature by using complexity theory to better understand how experimental federalism works. It argues that federalism’s ability to produce meaningful policy experiments is heavily dependent on two dynamics — heterogeneity and interdependence — that are prominent in the research on decentralized systems, but have often been overlooked by legal scholars and practitioners. Meaningful differences in state policy preferences help the federalist system overcome certain obstacles to effective experimentation and problem-solving, while also imposing constraints on the system’s ability to internalize the benefits of some kinds of policy experiments. Moreover, the interdependent flow of information and policy ideas across state borders affects the types of experiments the system generates, and whether states will rely on existing policy solutions or seek out new ones.
In turn, constitutional law’s role in shaping experimental federalism is far more complicated and nuanced than simply identifying the proper boundaries of state and federal authority. Complexity reminds us that experimental federalism’s performance may be contingent on state-level dynamics that drive heterogeneity and interdependence, and that constitutional doctrine may exert its greatest impact on experimentation by influencing the political forces that bring states closer together or further apart.
63 Buff. L. Rev. 241 (2015)