seen in restrictions on local regulations for tobacco,102 firearms,103 and
product liability litigation104—undermine sequential redundancy.
Policy innovation can flourish across complementary systems. Cover cited
the ability of courts in different circuits to formulate different interpretations
of a regulation as a key to promoting innovation and overcoming
ideologically-driven policy making through redundancy. In the context of
public health law and governance, policy-making diversity across
jurisdictions has advanced public health practice. In the context of non-communicable disease control, redundancy has served as a basis for legal
experimentation; distinctions among dynamic local jurisdictions highlight
effective systems for health promotion.105 Flexible and adaptable systems
provide more varied and robust opportunities for achieving outcomes
otherwise constrained by a less diverse and dynamic system. An analogous
potential benefit of added flexibility in public health governance could be the
ability of agency decision-makers or public health advocates to evade barriers
and bureaucratic bottlenecks, or to more quickly adapt to new public health
challenges. Landau noted that duplication within governance allows for the
detection and correction of errors within the system, while overlap “endows
such systems with a very high degree of adaptability, of flexible and
appropriately responsive changes to external stimuli.”106
Such complementarity may promote beneficial competition between
institutions, which can serve to improve both effectiveness and efficiency.107
Facilitating effectiveness, Ruhl and Salzman further observe that diverse
governance instruments are more effective in the hands of a manageable
number of overlapping agencies as compared with a single agency or
multiple agencies that do not overlap. With multiple overlapping agencies, it
is possible to discover which instruments are most effective at handling the
“particular externalities of a cumulative effects problem” and “passing
instruments around as the cumulative effects problem evolves and its
102. Federal Cigarette Labeling and Advertising Act of 1965, 15 U.S. C. §§ 1331–1340
103. Protection of Lawful Commerce in Arms Act (2005), 15 U.S. C. §§ 7901–7903
(2013) (protecting firearms sellers and manufacturers from civil lawsuits seeking “damages,
injunctive, or other relief resulting from the misuse of their products by others”).
104. Riegel v. Medtronic Inc., 128 S.Ct. 999 (2008) (preempting state law tort claim that
medical device label approved by the FDA was defective).
105. Mark Pertschuk et al., Assessing the Impact of Federal and State Preemption in
Public Health: A Framework for Decision Makers, J. PUB. HEALTH MGMT & PRAC. (2012).
106. Landau, supra note 43, at 189.
107. Gersen, supra note 100. But see Maria Ivanova & Jennifer Roy, The Architecture of
Global Environmental Governance: Pros and Cons of Multiplicity, in GLOBAL
ENVIRONMENTAL GOVERNANCE: PERSPECTIVES ON THE CURRENT DEBATE 48, 51–53 (Lydia
Swart & Estelle Perry eds., Center for UN Reform Education 2007) (questioning the
effectiveness of competition among participants in governance).