Todd S. Aagaard (Villanova University, Charles Widger School of Law; Resources for the Future) has posted Federalism’s Non-Interference Principle, 80 Vand. L. Rev. (forthcoming 2027), on SSRN. Here is the abstract:
Regulatory conflicts between governments are an inherent feature of American federalism. It seems obvious that the rules that courts use to adjudicate federalism disputes should be tailored to the structure of the intergovernmental relationship in play. Unfortunately, this is not the approach that existing federalism doctrine takes. Instead, the doctrine applies generic rules that give courts broad discretion, which tends to produce ad hoc judicial reasoning that often reflects judges’ policy preferences rather than disciplined, principled analysis.
This paper proposes a more systematic framework for analyzing federalism conflicts. The framework operates on two levels. First, a unified principle of non-interference applies to all regulatory federalism: governments must exercise their regulatory authority without impermissibly intruding on the proper authority of another government. Second, specific operative rules of federalism derive from the general non-interference principle but are tailored to the type of federalism system in which the rules are applied.
The paper explains the framework and shows how it applies in two common types of federalism systems: dual federalism and concurrent federalism. Using examples from current controversies and recent cases in energy law (dual federalism) and environmental law (concurrent federalism), it demonstrates how the framework’s approach tailors its rules to the structure of the relevant intergovernmental relationships, promoting clear and principled decision-making.
Highly recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum