Globalization and Federalism in a Post-Printz World

Abstract

This article, forthcoming in the Tulsa Law Journal, uses the Supreme Court's recent decision in Crosby v. National Foreign Trade Council as the vehicle for examining the constitutional law of federalism in the context of a globalized economy. After arguing that globalization carries with it no necessary implications for federalism, so that different federal systems can develop different responses to globalization, it examines the U.S. constitutional law of federalism and preemption. Its analysis of preemption law as articulated in Crosby suggests that there is an as-yet unresolved tension between the Court's neutral approach to preemption law and its new doctrines of federalism. It argues that preemption can be seen as a form of negative commandeering analogous to the affirmative commandeering that the Court found constitutionally impermissible in Printz, and that prior efforts to resolve that tension are unsuccessful. The article concludes that globalization does require some sort of preemption law in a federal system where the basic laws of contract and property are developed by a nation's component units, but that a doctrine giving some sort of immunity to states from preemption could be compatible with globalization and, arguably, more compatible with Printz than a doctrine, seemingly endorsed in Crosby, that gives states no such immunity at all.