The Yale Law Journal

April 2014

Federalism as the New Nationalism

15 Apr 2014

A dialogue among a new school of federalism scholars


Federalism as the New Nationalism: An Overview

Heather K. Gerken

Federalism has had a resurgence of late, with symposia organized,1 stories written,2 and new scholarly paths charted. Now is an appropriate moment to assess where the new “new federalism”3 is heading. This Feature thus brings together five scholars who have made unique contribution…


From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism

Jessica Bulman-Pozen

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to aband…


The Loyal Opposition

Heather K. Gerken

The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. On this view, we’ve found our own way to build loyalty while licensing opposition, but it’s been a rights-…


Our [National] Federalism

Abbe R. Gluck

“National Federalism” best describes the modern allocation of state and federal power, but it is a federalism without doctrine. Federalism today comes primarily from Congress—through its decisions to give states prominent roles in federal schemes and so to ensure the stat…


The Shadow Powers of Article I

Alison L. LaCroix

This essay argues that the interpretive struggle over the meaning of American federalism has recently shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfa…


Negotiating Conflict Through Federalism: Institutional and Popular Perspectives

Cristina M. Rodriguez

The contours of our federal system are under constant negotiation, as governments construct the scope of one another’s interests and powers while pursuing their agendas. For our institutions to manage these dynamics productively, we must understand the value the system is capab…