Among Gerken’s most influential works on federalism are “Federalism All the Way Down,” “Dissenting by Deciding,” “Second-Order Diversity,” and “Uncooperative Federalism” (coauthored with Jessica Bulman-Pozen). Much of her work focuses on the benefits of subnational jurisdictions where nationwide minorities are local political majorities. In “A New Progressive Federalism”(2012), Gerken seeks to persuade her fellow liberals that federalism has greater value than most on the left tend to think. More recently, she explained how the left can use federalism to resist Donald Trump.
I offered an assessment of Gerken’s important work on federalism in a contribution to a symposium devoted to her scholarship; you know you’ve really arrived in academia when people organize entire symposia that are all about you! Gerken and I have a longstanding debate about whether federalism works better with strong judicial enforcement of constitutional limits on federal power. However, I think she has been relatively more open to judicial enforcement in her more recent writings. I also believe that the need for judicial enforcement is implicit in her strategy for using federalism against Trump. We are unlikely to reach a consensus on this issue any time soon. But hopefully the debate will continue.
In addition to her pioneering work on federalism, Gerken is also known for her interest in many forms of diversity, including ideological diversity, which is often lacking in academia, including the legal academy. I hope that Gerken’s tenure as dean will help stimulate new interest in both federalism and diversity, and the ways in which the two interact. All three subjects are now as important and timely as ever.