We the People: These United Divided States

85 Pages Posted: 5 Apr 2018 Last revised: 28 Jul 2019

Date Written: July 23, 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 (July 23, 2019). Fordham Law Legal Studies Research Paper No. 3155282, 40 Cardoza Law Review 2685, 2019, 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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