"Comparative Federalism and the Role of the Judiciary"

Michigan Law Authors
Areas of Interest
Publish Date
2008
Publication
The Oxford Handbook of Law and Politics
Publication Type
Book Chapter
Abstract

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 efforts 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 insufficient, that concerns about judicial bias are overstated, and that the particular limitations on the judiciary's ability to implement the principles of substantive subsidiarity, instrumental subsidiarity, and integration should inform judicial doctrine more systematically than they currently do.

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