From Federalism to Intersystemic Governance: The Changing Nature of Modern Jurisdiction

Abstract:     
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 increasing overlap in such jurisdiction? And how should such overlap be "resolved"?

With an eye to encouraging heightened engagement among the wide range of scholars attentive to these questions, I draw on the diverse set of papers published in a recent symposium on "The New Federalism: Plural Governance in a Decentered World" - by David Bederman, Bill Buzbee, Charles Koch, Judith Resnik, Robert Schapiro, Mark Tushnet, and Ernie Young - to explore potential elements of a modern conception of jurisdiction. I highlight four features as particularly standing out in the collected works: (1) A pervasive sense of complexity and an emphasis on jurisdictional overlap as a critical source of that complexity; (2) A perhaps resulting attention to dynamics of coordination in law and regulation; (3) Suggestion of a certain interdependence of regulatory actors; and (4) An orientation to dynamics of persuasion, rather than more hierarchical mechanisms of regulatory control. Individually, these elements represent interesting and potentially useful subjects of study. Operating in conjunction, they would seem to represent something quite new in the nature (and study) of jurisdiction, offering a framework for future research, perhaps particularly across the otherwise divided scholarly spheres noted above.

Keywords: federalism, intersystemic governance, dialectic, pluralism, subsidiarity, jurisdiction, complexity, overlap, coordination, dependence, interdependence, persuasion, rhetoric, international

JEL Classifications: D73, F02, F15, F42, G18, H77, K10, K33

Accepted Paper Series