Litigation as a Political Safeguard of Federalism

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Daniel Francis

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.

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