Litigation as a Political Safeguard of Federalism

Arizona State Law Journal, Vol. 49, No. 3, 2017 (Forthcoming)

Invited contribution to a symposium on "The Future of Federalism," Classical Liberal Institute, NYU School of Law (November 2016)

38 Pages Posted: 14 Feb 2017 Last revised: 4 Dec 2017

Date Written: February 13, 2017

Abstract

When federalism scholars write about judicial review, they routinely focus on adjudication and neglect or ignore the process of litigation. Nowhere is this approach clearer than in the literature on the “safeguards” of federalism, which contrasts the “judicial safeguards” of federalism (constituted by what judges do and say at the end of judicial review proceedings) with its “political safeguards” (constituted by an array of interactions and institutional connections outside the courtroom). But the reduction of judicial review to adjudication has obscured the significance of the interactions among federal and state officials and institutions, citizens, and interested members of civil society in and around the litigation of judicial review cases, and particularly the ways in which those interactions may help to maintain and protect American federalism. In other words, it has prevented us from seeing that the process of litigation might constitute a neglected political safeguard of federalism.

In this paper I offer a perspective on the litigation of judicial review cases — a perspective that I call “Litigation as Process,” as a complement to the dominant view of “Litigation as Adjudication” — and identify some ways in which it may protect the federal character of the U.S. constitutional order. I argue that Litigation as Process may contribute to the maintenance of American federalism in at least four ways: (1) by providing a forum for direct public opposition between elements of the federal system; (2) by protecting what I call the “independence of voice” of elements of the federal system; (3) by clarifying the lines of responsibility and accountability on which a meaningful federalism depends; and (4) by helping to solve incentive problems that may prevent levels of government from opposing one another in the ways contemplated by federalism theory.

The implications for federalism of seeing Litigation as Process clearly — toward which this contribution is just a first step — are at least three-fold: first, it advances the ongoing interpretive project of better understanding the institutional relations that structure “Our Federalism”; second, it provides grounds for treating with caution the prescriptions offered by those writing in the “political safeguards” tradition who favor barring the court door in federalism cases; and, third, it suggests grounds for re-thinking the substantive, institutional, and procedural rules that structure judicial review, in order to maximize the benefits of this unique form of federalism’s politics.

Keywords: Federalism, Constitutional Law, Litigation, Judicial Review

JEL Classification: H1, H7, K41

Suggested Citation

Francis, Daniel, Litigation as a Political Safeguard of Federalism (February 13, 2017). Arizona State Law Journal, Vol. 49, No. 3, 2017 (Forthcoming), Invited contribution to a symposium on "The Future of Federalism," Classical Liberal Institute, NYU School of Law (November 2016), Available at SSRN: https://ssrn.com/abstract=2916263

Daniel Francis (Contact Author)

NYU School of Law ( email )

40 Washington Square South
New York, NY 10011
United States

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