Federalism by Contract

Abstract

Just as private parties use contracts to facilitate joint projects and nation-states use treaties to organize joint undertakings, domestic governments use a breathtaking array of written instruments to coauthor legal rules and coordinate public programs. But we lack a vocabulary — literal and conceptual — to describe these agreements.

Our meager vocabulary does not reflect a meager practice. Intergovernmental agreements define the contours of public-benefits programs, cross-deputize police and immigration officers, facilitate the exchange of land and jurisdiction, manage vast flows of information, and more generally allow our levels of government to coauthor legal rules in a wide range of policy areas.

Nor is our impoverished vocabulary an indication of neglect from our judicial institutions. The Supreme Court, lower federal courts, and state courts routinely address disputes that arise from the distinctive multilateral nature of intergovernmental agreements. The central framework courts use to resolve such disputes is the private law of contract, yet they also adjust those contractual principles — often in an ad hoc way — to accommodate their public parties and public purposes.

By drawing these cases together across contexts, we can see doctrinal patterns, jurisprudential puzzles, and theoretical implications that stem from this dual character as both contract and public law. We can begin, for the first time, to build a treaty law for American federalism.

Keywords: Federalism, constitutional law, contract law