can lead to collective action problems where multiple participants reduce
their effort, or zero out funding, expecting another entity to perform the
necessary task.34 In underregulating regulated entities, while some systems
(e.g., courts) can successfully utilize redundant structures to correct errors
and hold institutional actors accountable for mistakes through the subsequent
review of judicial ruling through appeal and remand processes,35 redundancy
in other systems may allow for savvy entities to avoid regulation as
regulatory agencies disclaim responsibility for governance failures or accede
to industry demands due to collective action problems.36
Despite these concerns, some researchers and policymakers argue in favor
of redundant systems. Consistent with their orientation toward less
centralization and reduced government control, the New Governance and
devolved governance models take a more accepting position on redundancy.
This view implicitly incorporates redundancy into various theories
articulating the potential governance benefits of polycentric regulatory
structures,37 pluralistic legal regimes with overlapping authority,38 and
widespread participation of multiple parties within and outside government.39
Legal and policy scholars have come to challenge the prevailing negative
view of redundancy and highlighted its potentially positive impacts.40 In his
classic article, Martin Landau criticized the notion that redundancy connotes
“whenever there is an excess or superfluity of anything” as unnecessarily
negative.41 Landau argued that institutions with redundant structures have
108, 121-26 (2005); Marisam, supra note 22.
34. Michael M. Ting, A Strategic Theory of Bureaucratic Redundancy, 47 AM. J. POL. SCI.
274, 275 (2003) (using game theory to examine the potential benefits and drawbacks of
35. Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and
Innovation, 22 WM. & MARY L. REV. 639, 642 (1981).
36. Marisam, supra note 22.
37. Julia Black, Constructing and Contesting Legitimacy and Accountability in
Polycentric Regulatory Regimes, 2 REG. & GOVERNANCE 137, 140 (2008) (identifying five
central notions of decentered regulation: complexity, fragmentation, interdependencies,
ungovernability, and rejection of a clear public/private distinction); Jody Freeman,
Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 4–7 (1997);
Robert A. Schapiro, Polyphonic Federalism: State Constitutions in the Federal Courts, 87
CALIF. L. REV. 1409, 1411 (1999).
38. Berman, supra note 11; Christine Parker, The Pluralization of Regulation, 9
THEORETICAL INQUIRIES L. 349, 352–55 (2008) (examining the normative argument for legal
pluralism in regulation); Brian Z. Tamanaha, A Non-Essentialist Version of Legal Pluralism,
27 J.L. & SOC’Y 296, 312–20 (2000) (outlining a non-essentialist theory of legal pluralism).
39. See Burris et al., supra note 16, at 4–6 (articulating a theory of nodal governance). But
see Fidler, supra note 16, at 282 (arguing that a multiplicity of nodes will have anarchic effects
40. For a more detailed discussion of the positive aspects of redundancy, see infra Section