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Federalism and SubsidiarityNOMOS LV$
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James E. Fleming and Jacob T Levy

Print publication date: 2014

Print ISBN-13: 9781479868858

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9781479868858.001.0001

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Federalism(s)’ Forms and Norms

Federalism(s)’ Forms and Norms

Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations

(p.363) 12 Federalism(s)’ Forms and Norms
Federalism and Subsidiarity

Judith Resnik

NYU Press

This chapter examines the sources of identity and norms in federations and the methods for mediating conflicts. It first considers the reasons behind the appeal of federalism, especially in the first decades of the twenty-first century. It then explores the similarities between mediating mechanisms developed in federated and international systems to create spaces for variation in legal norms, and how essentialism is undermined by analyses of jurisdictional interactions and interdependencies. It also explains why a rejection of assumptions about defined subject matter competencies and bounded subunits need not dim interest in exploring the generativity of federalisms. Finally, it discusses the agency—rather than the naturalness—required to fix jurisdictional authority by providing a brief overview of debates about the U.S. Supreme Court's role in federalism allocations and, specifically, its decision to preclude federal power from addressing aspects of violence against women. It argues that the domains of authority are not fixed but renegotiated as conflicts emerge about the import of rights and the content of jurisdictional allocations.

Keywords:   federations, federalism, legal norms, essentialism, jurisdictional authority, U.S. Supreme Court, federal power, violence against women, jurisdictional allocations

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