|Bulletin n. 1/2017
Jonathan Remy Nash
|Doubly Uncooperative Federalism and the Challenge of U.S. Treaty Compliance
|in Columbia Journal of European Law , Vol.14, issue 2 , 2008 , 3-64
|This Article explores the undertheorized and understudied phenomenon of doubly uncooperative federalism. While most commentary examining the behavior of U.S. states with respect to treaty regimes focuses on cooperative behavior-that is, states that aid in the implementation of duly ratified treaties, or even aid in the implementation of treaties that the federal government has yet to ratify-this Article focuses on settings of doubly uncooperative federalism. There, state action (or inaction) is inconsistent with a duly ratified treaty, and may put the national government in breach of the treaty. The Article elucidates the theoretical underpinnings of doubly uncooperative federalism; discusses doubly uncooperative federalism in practice; explains how constitutional and practical limitations on the federal government's ability to compel state compliance create a space for doubly uncooperative federalism; exposes shortcomings in ways the federal government might try to minimize doubly uncooperative federalism; and discusses the consequences of doubly uncooperative federalism-both positive and negative.