Law Commons^™

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Enforcing Interstate Compacts In Federal Systems, Michael Osborn

Indiana Journal of Constitutional Design

The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision outlining …

Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell

Washington and Lee Law Review

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …

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 …

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

Robert B. Ahdieh

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 …

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

Robert B. Ahdieh

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 …

The Case For Effective Environmental Politics: Federalist Or Unitary State? Comparing The Cases Of Canada, The United States Of America, And The People’S Republic Of China, Justin Fisch

University of Michigan Journal of Law Reform

Federalism, by its nature, is a segmented system of governance. The Canadian and American constitutional orders are divided along very clear lines of jurisdictional authority between levels of government. Environmental issues, by their nature, are holistic in scope—they transcend borders, governments, jurisdictions, and authorities. For this reason, one might assume that a unitary state would be better positioned to tackle them. Is this justified? This Article examines the Chinese unitary state, in comparison to the federalist systems in Canada and the United States of America, to discern whether a unitary government can better manage issues plaguing the environment.

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 …

Book Review: Foreign Affairs And The Constitution. By Louis Henkin. Mineola, N.Y.: The Foundation Press, 1972. Pp. 553. $11.50., Carl Marcy

Georgia Journal of International & Comparative Law

No abstract provided.

The Teaching Of International Law, Edward Mcwhinney

Georgia Journal of International & Comparative Law

No abstract provided.

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 Ross

Stephen F Ross

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 …

The Future Of Canadian Federalism, Susan Lavergne

Georgia Journal of International & Comparative Law

No abstract provided.

Germany And The U.S. Present: A Roadmap For Protecting State Sovereignty In The European Stability Mechanism, Matthew Gregory

Georgia Journal of International & Comparative Law

No abstract provided.

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 …

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

The Inefficiencies Of Legislative Centralization: Evidence From Chinese Provincial Tax Rate Setting, Wei Cui

Wei Cui

Legislative power in China is centralized to an unusual degree, both in comparison to other countries and relative to the country’s high degree of administrative decentralization. Given its a priori inefficiencies, this arrangement should be significant from both positive and normative perspectives, but, surprisingly, has received little attention in legal and social scientific scholarship. We devise a novel method for analyzing the inefficiencies of centralization through studying provincial government behavior, examining provincial rate setting for the vehicle and vessel tax (VVT) in 2007 and 2011. Because all provinces have assigned VVT revenue and VVT administration to sub-provincial governments, provincial rate-setting …

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 …

Freedom Of Reincorporation And The Scope Of Corporate Law In The U.S. And The E.U., Federico Mucciarelli

Federico M. Mucciarelli

In the U.S. corporations can be incorporated in any of the 50 states and can “reincorporate” afterwards in any other state. In the E.U. such freedoms are a recent achievement: In the last decade, first the European Court of Justice has liberalized initial incorporations and only in 2005 the cross-border directive has open the doors to freedom of midstream reincorporation from one member state to another. Midstream reincorporations, however, in the E.U. have a much different impact than on the other side of the Atlantic. In the U.S., indeed, the competence of the state where a company is incorporated is …

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 …

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

D. A. Jeremy Telman

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 …