Judicial federalism : a comparative study of its origin, operation, and significance

This comparative study of judicial federalism analyzes the origin, operation, and significance of the judicial systems found among past and present federations. Federal countries vary in the arrangement of their judiciaries. In some federations (e.g., U.S., Brazil, Australia), the subnational political units, such as states, provinces, and cantons, have judicial systems that belong to the subnational governments. In other federations, (e.g., Spain, Canada, India), the subnational political units do not have judicial systems that belong to the subnational governments. The countries in the first set manifest “judicial federalism,” while the countries in the second set manifest “judicial centralization.” Federations always have legislatures and executives at both the national and regional levels, but they do not always have judicial systems at both levels. This study offers an explanation for this divergence in institutional arrangement. Federations form in one of two ways. "Coming together" federations occur when multiple independent political units join together. “Holding together” federations occur when a country chooses to allow for the creation of subnational legislatures, executives, or judiciaries. Federations created by “coming together” emerge from the federating process with "judicial federalism," while federations created by “holding together” emerge from the federating process with “judicial centralization. Differences between the two processes’ preexisting instittions, such as political borders and separate judicial systems, explains In addition to quantitatively analyzing a medium-N sized dataset of over sixty current and historical federations, this study presents five in-depth case studies of Brazil (both 1834 and 1891), the Central American Federation (1823-1824), Germany (1866-1871), and India (1947-1950). Some evidence exists supporting the hypothesis that territorially concentrated diversity engenders more decentralized federations. Noninstitutional sources of fragmentation within a federation include both the material (e.g., income inequality between political units, factor endowments, geography) and the immaterial (e.g., language, ethnicity, religion). The quantity and quality of the structural diversity present during the creation of these five federations predicts the outcome that both this study’s thesis and the record of history contradict. These five federal moments provide even stronger evidence by being “crucial,” “hard,” or “least probable” cases. The conclusion explains exceptions such as Cameroon, Canada, and Communist federations.