Laboratory Federalism and the Kable Principle

Abstract

Federalism permits sub-national diversity and experimentation. The Kable principle limits sub-national diversity and experimentation in relation to state courts. But this apparent tension between 'laboratory' federalism and the Kable principle is somewhat illusory. Kable does not always hinder experimentation, but rather enables it by securing its necessary preconditions. By preventing state legislatures and governments from conscripting state courts to implement political designs, the Kable principle prevents state legislatures and governments from using state courts as a 'cloak' against political accountability. This preserves the capacity of sub-national communities to compare policies across multiple jurisdictions, to express their preferences through 'exit and voice', and thereby to render sub-national experimentation effective on its own terms.

Awarded the 2016 Saunders Prize for Excellence in Scholarship in Constitutional Law

Keywords: constitutional law, courts, federalism, institutional integrity, Kable, laboratory federalism, Mistretta, political accountability, principle of legality, separation of powers, state courts