Institutional Design and the New Frontiers of Federalism


Erin F. Delaney

Northwestern Pritzker School of Law

Comparative federalism scholars will find much to like in the remit of the newly formed IACL Research Group, “New Frontiers of Federalism.” The group’s leaders, Erika Arban and Antonia Baraggia, have outlined an ambitious set of research objectives, focusing a federal lens on some of the major challenges of our time — globalization, economic crisis, large-scale human migration, and democratic backsliding. For those already thinking in these terms, the group will be a welcome forum for sharing work, and for others, these new frontiers of federalism can shape or guide future projects.

As federal theory is brought to bear on these governance challenges, policy prescriptions will play out through constitutional and institutional design. Scholars have expended much thought on the roles of legislatures and executives at both the central and constituent-unit levels, as well as on the organization and regulation of political parties and elections. These core elements of a federal polity may well need redesign in the face of twenty-first century challenges, perhaps requiring a reconceptualization of the nature of subnational “units,” including or expanding the role of cities in a broader federal scheme, or rethinking citizenship or the definition of the electorate. The immediate demands of political power-sharing have necessarily focused attention on these key political institutions and the structures that support them.

By contrast, federal judicial design has received far less scholarly consideration, but it too will be critical to effectuating any proposed governance solutions. Over the past forty years, the world has seen the rise of courts and judicial review (in conjunction with the globalization of entrenched human rights) as constituting core elements of national and transnational constitutionalism. Part of the promise of constitutionalism thus rests on effective judicial power and its corollary, judicial legitimacy. In a federal system, courts participate in structuring and mediating the very societal conflicts that contributed to the initial design for power-sharing, multiplying the threats to their legitimacy and power. Designing a federal system’s judicial architecture and its operation thus raises multi-layered questions of legitimacy and effectiveness.

My own work has addressed the role of courts in constructing and policing the boundaries of federalism and the ways in which federalism, in turn, can empower courts. In my research, I use legal doctrine and political science to explore how courts in multilevel governance systems function as institutions, and gain and maintain legitimacy. I am particularly interested in whether and how federal judicial design can strengthen constitutionalism. Judicial design structures contestation in a federal system and is interwoven with other federal design elements, such as the division of competences, the role or existence of subnational constitutions, and any additional written (or unwritten) mechanisms of dispute resolution. And jurisdictional rules and the relationships between and among courts will affect judicial enforcement. A constitutional text may paint the broad brush strokes of a federal apex court’s power — and some texts do identify and constitutionalize lower courts — but the operation of a federal judicial system tends to develop organically; preexisting courts may be pressed into service and jurisdictional tensions can arise, whether through institutional competition or political manipulation.

The complex interactions between political power-sharing and judicial enforcement have long been a subject of study in the European Union and other, individual federal systems. Comparative work is more complicated, however, as it requires deep political familiarity as well as nuanced legal knowledge of multiple systems. Thinking about judicial design in light of new approaches to core political issues — particularly economic inequality and mass migration — will thus require creativity and collaboration among scholars and practitioners. I look forward to undertaking these projects with members of the Group.

In highlighting my own area of interest that intersects with the “new frontiers” proposed above, I hope to encourage other scholars of federalism to join the working group, especially if your own research questions are similarly cross-cutting. It is the nature of our field that we should work in both overlapping and independent spheres. Indeed, some scholars have suggested that we should see the practice of comparative constitutional studies as “concentric” in nature. And this working group reflects that concentric practice, by providing an opportunity for us to collaborate across systems, countries, and disciplines as we explore the potential of federalism to address new and growing global challenges. 

This blog post draws on the author’s chapter “Judicial Federalism in Comparative Perspective,” in Federalism and the Courts in Africa: Organization, Appointment and Impact in Comparative Perspective (Yonatan Fessha & Karl Kössler, eds.) (Routledge, forthcoming 2020).

Erin F. Delaney is a Professor of Law at Northwestern Pritzker School of Law.

Suggested citation: Erin F. Delaney, “Institutional Design and the New Frontiers of Federalism” IACL-AIDC Blog (5 November 2019)