Carolene Products: A Game-Theoretic Approach Difficulties Nevada v. Hicks

This article proposes a game-theoretic model of the Carotene Products notion of a "discrete and insular" minority. It analyzes the democratic process as a bargaining game in which players can form coalitions with other players. When the game is repeated, players have an incentive to maintain a stable majority coalition to seek a long-term advantage for themselves at the expense of an excluded minority. The article applies this model to several issues in Equal Protection doctrine, particularly the definition of a suspect classification. A suspect class is likely to be formed around a trait that is a natural focal point for the formation and maintenance of stable majority and minority coalitions. The article identifies several qualities that such a trait is likely to possess and argues that these provide a means of determining whether discrimination based on a certain trait warrants heightened scrutiny. I. INTRODUCTION An important idea underlying Equal Protection doctrine is the notion that certain groups of people are not able to rely on the democratic process to protect themselves from exploitation by a majority. This idea was articulated in the famous footnote 4 of United States v. Carotene Products Co.: [P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and [so] may call for a correspondingly more searching judicial inquiry.1 The Carolene Products approach recognizes that certain groups, because they are in some sense separate from the political majority, are unable to enter into coalitions with the groups forming the majority and thereby to protect their interests in the political bargaining IMAGE FORMULA8 game. This breakdown in the democratic process provides a role for the judiciary to prevent discrimination against these groups. Carolene Products, which involved a prohibition on the interstate shipment of "filled milk," was not itself an Equal Protection case. Footnote 4 was simply intended to describe situations in which a presumption that a statute is constitutional might be inappropriate. The Supreme Court first referred to Carolene Products in the Equal Protection context in a series of cases applying strict scrutiny to laws discriminating against aliens.2 Since then, the Court has considered a group's status as a discrete and insular minority when deciding whether that group is a suspect class warranting a heightened level of scrutiny.3 However, the Court has not articulated a single test for determining whether classification based on a particular trait is suspect. In addition to examining the effect of the trait on political power, the Court has also asked whether the trait is immutable, whether it is relevant to the classification's purpose, and whether those who bear the trait have suffered discrimination in the past.4 Much controversy exists over the proper place of the Carolene Products analysis in this mix, or, indeed, whether it deserves any place at all.5 This article suggests that the Carolene Products formula is a use-- ful approach to many questions of Equal Protection law and proposes a game-theoretic model of the ways in which discrimination can arise and be perpetuated in a democracy. The model hypothesizes that discrimination-particularly discrimination by the state-- persists to a large extent for rent-seeking purposes.6 That is, laws that IMAGE FORMULA10 discriminate often provide an economic benefit to a majority at the expense of a minority. Subordination of a particular group can occur if that group is persistently excluded from majority political or economic coalitions, thereby becoming the subject of rent seeking rather than being able to gain benefits for itself. Following the Carolene Products model, the democratic process in a rent-seeking situation can be modeled as a cooperative game in which players can form coalitions, and a coalition with the majority of power can determine how to allocate a pot of money among the players. …