Law Commons^™

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …

Federalism And Gender Equality, Susan H. Williams

Articles by Maurer Faculty

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and …

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

Articles

I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested …

Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas

Articles, Book Chapters, & Popular Press

Canadian federalism fragments health system governance. Although the Constitution has been interpreted as providing shared jurisdiction over health generally, with respect to health care, the courts have interpreted it as giving direct jurisdiction to the provinces. The federal role in health care is therefore indirect, but nevertheless potentially powerful. For example, the federal government has used its spending powers to establish the Canada Health Act (CHA), which commits funding to provinces on condition they provide first-dollar public coverage of hospital and physician services. However, in recent times, as federal contributions have declined, the CHA has been weakly enforced. …

Judicial Federalism In The European Union, Michael Wells

Scholarly Works

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of …

Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner

Journal Articles

It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this …

Insights From Canada For American Constitutional Federalism, Stephen F. Ross

Journal Articles

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police …

Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay reviews Firat Cengiz’s book Antitrust Federalism in the EU and the US (2012), which compares the role of federalism in the competition law of the European Union and the United States. Both of these systems are “federal,” of course, because both have individual nation-states (Europe) or states (US) with their own individual competition provisions, but also an overarching competition law that applies to the entire group. This requires a certain amount of cooperation with respect to both territorial reach and substantive coverage.

Cengiz distinguishes among “markets,” “hierarchies,” and “networks” as forms of federalism. Markets are the least …

Sustainable Decentralization: Power, Extraconstitutional Influence, And Subnational Symmetry In The United States And Spain, James A. Gardner, Antoni Abat I Ninet

Journal Articles

In the Madisonian tradition of constitutional design, the foundation of a sustainable federalism is thought to be a scientifically precise balancing of national and subnational power. Experience shows, however, that national and subnational actors in highly diverse systems are capable of developing a rich array of extraconstitutional methods of mutual influence, so that the formal, constitutionalized balance of power rarely settles the question of the actual balance of power between levels of government. A more important factor in ensuring the long-term sustainability of a meaningfully federal system is the degree of symmetry across subnational units in their relation to the …

Top-Down Or Bottom-Up? A Look At The Unification Of Private Law In Federal Systems, Daniel Halberstam, Mathias Reimann

Book Chapters

At its current stage, European private law is still more an aspiration than a reality. It is true that there is a substantial body of European private law on the Union level; and it is also true that there are private law principles and rules shared by many—often by most, and sometimes even by all—European legal systems. Still, in most areas, we do not at present have one body of positive private law for all of Europe, but rather a coexistence of more or less similar national laws. Thus, to the extent one considers a European private law desirable, one …

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

Law Faculty Publications

This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to …

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

All Faculty Scholarship

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …

Greenhouse Gas Regulation In Canada: Constitutional And Policy Dimensions, Shi-Ling Hsu, Robin Elliot

Scholarly Publications

Canada’s greenhouse gas emissions have risen dramatically since the 1997 negotiation of the Kyoto Protocol, and that rise has continued through Canada’s 2002 ratification of the Protocol. Along with economic dislocation, constitutional barriers to regulation have sometimes been cited as the reason for caution in regulating greenhouse gases. This article critically evaluates the constitutional arguments and examines the policy considerations surrounding various regulatory instruments that might be used to reduce greenhouse gases. We conclude that the Canadian constitution does not present any significant barriers to federal or provincial regulation and that policy considerations strongly favour the use of two instruments: …

Comparative Federalism And The Role Of Judiciary, Daniel Halberstam

Book Chapters

The distinctive feature of federalism is to locate the central and constituent governments' respective claims of organizational autonomy and jurisdictional authority within a set of privileged legal norms that are beyond the arena of daily politics. For the most part, the debate about the role of the judiciary as federal umpire has taken place within two separate disciplinary compartments: comparative politics and law. Building on recent e��orts to bring these two disciplines closer, this article provides a fresh look at three common criticisms of granting the central judiciary power to protect federalism. It argues that political safeguards of federalism are …

Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand

Articles

This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Faculty Scholarship

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for …

In Search Of Sub-National Constitutionalism, James A. Gardner

Journal Articles

Two recent trends, one favoring federalism as a form of governmental organization and the other favoring written constitutions, have lately combined to produce an impressive proliferation of subnational constitutions. Documents that can fairly be described as constitutions now govern the affairs of subnational units - states, provinces, cantons, Länder - in federal states on every continent. What remains unclear, however, is whether the proliferation of subnational constitutions indicates a corresponding spread of the practice of subnationalism constitutionalism - whether, that is, the appearance of subnational constitutions around the globe evinces a spreading ideological commitment to a strong role for subnational …

Rules And Institutions In Developing A Law Market: Views From The United States And Europe, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

Developments in European choice of law seem to offer the United States a tantalizing opportunity for escape from the chaos of state-by-state choice-of-law rules. Specifically, the Rome Regulations provide the sort of uniform choice-of-law rules that have eluded the United States. Also, decisions of the European Court of Justice that permit firms to adopt home-country rules in some situations seem to facilitate jurisdictional choice by private parties. This top-down ordering of choice-of-law rules contrasts with the seemingly chaotic and decentralized system that prevails in the United States. However, decentralized American-style federalism might have something to offer Europe because choice of …

From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh

Faculty Scholarship

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

In October 2005, a group of distinguished tax experts from the European Union and the United States, who had never met before, convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The purpose of the conference was to shed comparative light on the very different approaches taken by the European Court of Justice (ECJ) and the U.S. Supreme Court to the question of fiscal federalism. The conference was sponsored by the U-M Law School, U-M's European Union Center, and Harvard Law School's …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

Last October, a group of distinguished tax experts from the European Union and the United States convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The conference was sponsored by the Law School, the European Union Center, and Harvard Law School's Fund for Tax and Fiscal Research. Attendees from Europe included Michel Aujean, the principal tax official at the EU Commission, Servaas van Thie1, chief tax advisor to the EU Council, Michael Lang (Vienna) and Kees van Raad (Leiden), who run the …

Federalism In Brazil, Keith S. Rosenn

Articles

No abstract provided.

Federalism And The Allocation Of Sovereignty Beyond The State In The European Union, Ronald A. Brand

Articles

Any discussion of federalism necessarily runs headlong into concepts of sovereignty, with both terms being subject to Tocqueville's statement that, in discussing federalism, "the human understanding more easily invents new things than new words." Thus, just as systems previously considered to have been "federal" at the dawn of the United States of America were something much different from what was developed for our nation at that time, so is the "federal" system of today's United States different from anything to which we make comparisons.

This article reviews a paper by Professor Peter Tettinger's, and extends his analysis. As Professor Tettinger …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Ethnic Federalism: Its Promise And Pitfalls For Africa, Alemante G. Selassie

Faculty Publications

No abstract provided.

Federalism, Democratization, And The Rule Of Law In Russia, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Combining the approaches of three fields of scholarship - political science, law and Russian area studies - the author of this 2002 Oxford University Press book explores the foundations and future of the Russian Federation. Russia's political elite have struggled to build an extraordinarily complex federal system, one that incorporates eighty-nine different units and scores of different ethnic groups, which sometimes harbor long histories of resentment against Russian imperial and Soviet legacies. This book examines the public debates, official documents and political deals that built Russia's federal house on very unsteady foundations, often out of the ideological, conceptual and physical …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …