greater reliability and adaptability.42 Additionally, he suggested that the
Framers intentionally designed the U.S. government to contain multiple legal
and institutional redundancies.43 Robert Cover similarly challenged the
negative views regarding redundancy. In a provocative reassessment of
jurisdictional and institutional redundancy, Cover proposed that “instead of
viewing the persistence of concurrency as a dysfunctional relic, one may
hypothesize that it is a product of institutional evolution.”44
In Cover’s seminal essay on jurisdictional redundancy, he situated
redundancy within the federalist jurisdictional structure of the American
court system. Cover defined redundancy as “complex concurrency,”
comprised of three attributes: “strategic choice, synchronic redundancy, and
diachronic or sequential redundancy.”45 Strategic choice ( i.e., forum
shopping) allows litigants to choose courts likely to be more favorable in
deciding their case.46 Synchronic redundancy permits multiple similar cases
to be brought simultaneously in different jurisdictions.47 Diachronic or
sequential redundancy authorizes other jurisdictions to resolve some aspects
of a case started elsewhere though appeal or remand.48 Cover identified four
potential benefits of jurisdictional redundancy: (1) reduction of error; (2)
minimization of conflict and self-interest; (3) dissipation of strong
ideological positioning; and (4) encouragement of innovation.49
Landau and Cover’s insights on the positive potential of redundancy as a
tool of governance and policy inspired others to consider the potential
usefulness of redundancy in regulation and development of legal norms and
structures.50 As discussed below, redundancy permeates public health
42. Id. at 348.
43. Martin Landau, Federalism, Redundancy and System Reliability, 3 PUBLIUS 173, 187-
188 (1973) (noting that redundancy in the United States system, exemplified by federalism
and checks and balances across governmental branches, was address first in Federalist No. 10
to seek stability and reliability in the face of “instability, injustice, and confusion”).
44. Cover, supra note 35, at 642.
45. Id. at 646.
47. Id. at 647–48.
48. Id. at 648–49.
49. Id. at 650.
50. See Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas
Corpus and the Court, 86 YALE L.J. 1035, 1044–46 (1977); see also Ahdieh, supra note 19,
at 866; Paul Schiff Berman, Federalism and International Law Through the Lens of Legal
Pluralism, 73 MO. L. REV. 1151 (2008); Jessica Bulman-Pozen, Federalism As A Safeguard
of the Separation of Powers, 112 COLUM. L. REV. 459, 479, 506 (2012); Allan Erbsen,
Horizontal Federalism, 93 MINN. L. REV. 493, 500 (2008); Kirsten H. Engel, Harnessing the
Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159 (2006); Johanna
Kalb, Dynamic Federalism in Human Rights Treaty Implementation, 84 TUL. L. REV. 1025,
1055 (2010). For a more detailed discussion of applications of positive theories of redundancy
and complementarity to public health governance, see infra Section IV.