Heather Gerken, the J. Skelly Wright Professor of Law at Yale Law School, presented the annual Brainerd Currie Memorial Lecture at Duke Law School on Tuesday, March 27.
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, Gerken focused her lecture on constitutional theories about how minorities can wield power in democratic structures.
Gerken has published numerous articles on these subjects in top law reviews and news publications, including the Harvard Law Review, the Stanford Law Review, the Yale Law Journal, Legal Affairs, Legal Times, The New Republic, and American Prospect Online. She has served as a commentator on legal issues for national media and has testified on election law questions before Congress and the Massachusetts state legislature.
In 2007 and 2008, Gerken served as a senior adviser to the national election protection team for Obama for America. Before entering the academy, Gerken clerked for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and for U.S. Supreme Court Justice David Souter. She worked as an associate at Jenner & Block in Washington, D.C., between 1995 and 2000.
Gerken presented her paper, “Exit, Voice and Disloyalty.” The paper’s summary follows:
“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.”