We the People: These United Divided States

59 Pages Posted: 5 Apr 2018 Last revised: 16 Jan 2019

Date Written: January 16, 2019


Examining federalism debates in the context of climate change and sanctuary jurisdictions, this article offers a new theory in arguing that the federal government’s approaches to these inherently transnational concerns represent classic political market failures. Adapting John Hart Ely’s notion of addressing such failures – from Democracy and Distrust – the paper examines a dynamic overlooked by both constitutional law and international law scholars. I explore two political market failures: (1) how minorities (here, immigrants) can be systematically locked out of the political process and, by contrast, (2) how influential minorities (here, the fossil fuel industry) can externalize the costs of their negative conduct through regulatory capture. In such cases, policy making above and below the nation-state is helpful for addressing such failures, as we currently see with state and local policy innovation in the climate and immigration contexts.

Suggested Citation

Powell, Catherine, We the People: These United Divided States (January 16, 2019). Fordham Law Legal Studies Research Paper No. 3155282; Cardozo Law Review, 2018. Available at SSRN: https://ssrn.com/abstract=3155282 or http://dx.doi.org/10.2139/ssrn.3155282

Catherine Powell (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

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