Second-Order Diversity

TABLE OF CONTENTS INTRODUCTION I. TERMS OF THE DEBATE A. First-Order and Second-Order Diversity B. Disaggregated Democracy C. Minority, Majority, and Racial Identity II. MINDING THE GAP: THE NEED FOR AN ANALYTIC FRAMEWORK TO EVALUATE TWO ONGOING LEGAL DEBATES A. Juries and the Doctrinal Puzzle Created by Batson B. Districts and the Debate over Implementing the Voting Rights Act III. MINING THE GAP: THE TRADEOFFS BETWEEN FIRST-ORDER AND SECOND-ORDER DIVERSITY A. The Tradeoff Between Influence and Control in Disaggregated Institutions 1. The Benefits of Control: Diffusing Power 2. The Costs of Control: The Loss of Influence at Two Levels of Governance (a) Districts and the Influence/Control Tradeoff at the Level of Disaggregated Governing Units (b) Juries and the Influence/Control Tradeoff at the Level of Aggregation 3. The Importance of Context for Evaluating the Tradeoff Between Influence and Control B. Turning the Tables: The Benefits of Destabilization and the Costs of Forced Community 1. The Values Associated with Turning the Tables: Baselines, Identity, and Participation. (a) Baselines and the Participatory Experience (b) Fostering Positive Participatory Habits (c) Destabilizing Political Hierarchies and Identity Categories (i) Winners, Losers, and Group Identity (ii) Variation and Identity Formation 2. Forced Communities and the Costs Associated with Turning the Tables 3. Evaluating the Costs and Benefits of Turning the Tables from an Institutional Perspective C. Dissenting by Deciding: The Tradeoffs Between the Benefits of Visibility and the Costs of Variation 1. The Benefits of Visibility 2. The Costs of Variation 3. Evaluating the Tradeoff Between Visibility and Variation in Context D. Cycling: The Costs and Benefits of Varying Institutional Design Strategies 1. The Values Associated with Cycling (a) Cycling and Experimentation (b) Normative Cycling (c) Cycling as a Strategy for Dealing with Political Conflict 2. The Costs of Cycling: Privileging Conflict over Consensus, Instability over Stasis 3. The Costs and Benefits of Cycling in a Given Institutional Context E. Finding the Best Fit 1. Balancing Costs and Benefits 2. Choosing Among Values IV. SECOND-ORDER DIVERSITY AS A FRAMING DEVICE A. Juries and Districts: A Redux 1. Juries, Swain v. Alabama, and Vote-Dilution Claims 2. Georgia v. Ashcroft B. Theories of Institutional Design 1. The Dynamics of Dissent 2. Multiculturalism CONCLUSION Much scholarship on democratic design is preoccupied with a single problem: how to treat electoral minorities in a majoritarian system. A term often deployed in those debates, particularly those focused on demographic difference, is "diversity." When scholars use the term, they usually mean that something--a class, an institution, a decisionmaking body-- should roughly mirror the composition of the population. The problem with this debate is that its participants often unthinkingly extend theories about diversity derived from unitary institutions to disaggregated ones--institutions in which the governance system is divided into a number of equal subparts (juries, electoral districts, appellate panels, schools committees, and the like). Thus, despite the prevalence of such institutions, scholars have not systematically considered how to tailor our normative commitment to diversity to their unique features. …