an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Michael Greve has written a remarkable book that should be read by anyone interested in federalism. He also offers an interesting--and quite persuasive--defense of Swift v. Tyson and subsequent "federal common law" and, therefore, critique of Brandeis's success in Erie v. Tompkins in eliminating the ability to provide a national common law to protect, say, the insurance industry against the vagaries of state regulation.
One must begin, incidentally, by clearly distinguishing legal (or constitutionalized) "federalism" from political preferences or policies that instantiate "decentralization." The distinction is crucial, for it underscores that the former is a "locked-in," judicially enforceable legal norm, whereas the latter is only a discretionary decision--often made, ironically or not, by people at the top of a centralized hierarchy who altogether accurately believe that decentralized policy formation or implementation will bring about desirable results. See, eg, modern China, which I gather is remarkably decentralized in many important ways though not remotely "federal."
So why have "federalism"? Many modern defenses sound in the importance of "diversity" or, as in the often fatuous comments of Justices O'Connor or Kennedy, the completely unsubstantiated belief that there is a necessary connection between local autonomy and "liberty"--or, in some versions, self-government. That is not Greve's tack at all. This is most certainly not a book written from a civic-republican sensibility.
Instead, he is primarily interested in what might be termed the "political economy" of federalism, by which I mean its essential role, for Greve, in liberating business from oppressive regulation by generating competition among the states to attract business (and by eliminating the ability of states that might well be reflecting the views of local communities to freeze out goods produced by companies in business-friendly states). This requires vigorous enforcement of the dormant commerce clause, on the one hand, and limitations on congressional power, on the other hand, to impose "cartelization" by a coalition of dominant states who wish to limit the autonomy of outliers. The key examples of the latter, of course, are Hammer v. Dagenhart and its overruling case of Darby Lumber. He would also happily constrain the power of states to impose punitive damages on vulnerable business. He is unabashed and admirably candid in articulating what might ne termed a "Coolidgean view" of the constitutional enterprise, by which the business of Constitutionalism is protecting business.
Many things might be said, of course. A "liberal" or "progressive" will be tempted to say that Greve is basically indifferent about the prospect (or likelhood) of "races to the bottom," where a relatively few states can stymie widely-desired reforms (such as regulating child labor or other working conditions) by holding out and threatening their progressive counterparts with the loss of their manufacturers, for example, to more states with more "business-friendly" policies.
That being said, one of the things I found most interesting about the long, consistently illuminating, and well-argued book is its orthogonal relationship with what passes these days for "conservatism." Thus, for example, he is withering in his dismissal of "originalism.". No doubt there are overlaps between the political preferences of Greve and, say, Randy Barnett, but there is no agreement at all on the underlying meta-theory of interpretation. Nor, as already suggested, does he have any patience for Scalia's hostility to the dormant commerce clause (because it is in fact created nearly out of whole cloth by judges) or his tolerance of state imposition of "disproportionate" punitive damages in the name of state autonomy and restricting judicial power. Nor does Greve seem to have his heart in defending states' rights to stifle alternatives to heterosexuality. This is a book--and argument--about liberating business, nothing more, nothing less. Posted
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