This chapter details the fragmented nature of the last sixty years of Aboriginal land repossession across Australia, both in terms of the nature of the rights and the level of restitution. Exploring the limited and uneven national Aboriginal land rights picture in 2024, we argue for an appreciation of the federal dimension of land rights policymaking. Uneven land restitution has resulted not just from spatially varying degrees of land commodification and the differing trajectories of land rights movements, although these were crucial. We aim to demonstrate that shifting state–Commonwealth (or Federal) relations within the Australian federation – crosscut against differing support from states and Commonwealth governments over time, and differing Commonwealth Government attitudes to federalism – led to a spatially uneven set of legislative land rights regimes across Australia. To do so, we narrate the varied responses to the Aboriginal land rights movement across the country in the wake of the Woodward Royal Commission in 1973 with an eye to the federal dimension. We argue that while the Whitlam, Fraser and Hawke governments from 1972 to 1991 all failed to legislate national land rights, they did so for very different reasons, leaving the land rights agenda to the states. Ultimately, it was the centralizing power of the High Court that brought about a national but inadequate and partial resolution to the Aboriginal land question. Finally, we provide a series of maps and tables describing the jurisdictional variation in rights and interests in land restored to Indigenous Peoples at present.

David Freeman Engstrom (Stanford) and Daniel B. Rodriguez (Northwestern) argue that current structure of American legal services regulation, known as “Our Bar Federalism,” is outdated. Fifty states maintain their own rules and regulatory apparatus for a legal profession and industry that are now national and multinational. This fragmented system is a key factor in the American civil justice system’s access-to-justice crisis, where restrictive state rules support the lawyers’ monopoly. With new legal services delivery models and AI, this scheme will seem increasingly provincial and retrograde. This chapter argues it’s time to rethink "Our Bar Federalism," and explore hybrid state-federal regulatory system.

Chapter One presents a normative theory of judicial review that relies on distinctions among strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override. The chapter defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. Second, courts should apply weak judicial review for most individual rights claims. Courts can provide robust protection for individual rights by applying federal statutes and international human rights treaties, instead of applying the Constitution, as the primary source of protection for individual rights. Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment.

Chapter Seven presents a critique of the Court’s so-called “federalism” doctrines. Those doctrines have had very little practical effect in protecting state autonomy from unwarranted federal interference. Under the banner of federalism, the Court has engaged in illegitimate judicial lawmaking by creating a set of judge-made rules that have no basis in the Constitution’s text. Moreover, when the Court speaks of federalism, it conveniently ignores the fact that the Supreme Court itself is part of the federal government. If the Court truly wants to protect state autonomy from unwarranted federal interference, it should exercise self-restraint by limiting the reach of judge-made law that interferes with state autonomy. In particular, the Court should repudiate incorporation doctrine – a judge-made doctrine invented by the Warren Court that has no basis in the text of the Fourteenth Amendment. As a practical matter, incorporation doctrine imposes much more severe restrictions on state autonomy than all of the federal statutes (viewed in the aggregate) that the Court has invalidated under various federalism doctrines.

Contrary to oft-repeated views, litigation over the KCIR did not result in a ban on compulsory arbitration: in the 1920s, it was understood that the KCIR cases showed compulsion was permissible in most of the era’s major industries. However, US Supreme Court rulings on the KCIR were important: the extremity of the KCIR’s design, and the self-discipline of its labor opponents, created cases that posed important legal questions in uniquely clear, simple form. Drawing from archival material as well as opinions, this chapter shows that KCIR-related litigation was seized upon as a chance to clarify the scope and character of state economic regulation authorized by the public interest, and whether the Fourteenth Amendment categorically protected peaceful, orderly strikes. Justice Taft’s 1923 ‘Wolff Packing Company’ opinion, typologizing regulation in the public interest, was a clarifying landmark underpinning the Court’s sharp anti-regulatory turn. Justice Brandeis’ 1926 Dorchy decision, flatly denying an absolute right to strike under the Fourteenth Amendment, was a stinging and enduring reversal for labor.

Circumstances for labor after the pandemic resemble those of the early 1920s: fragmented, labor-unfriendly law has severely curbed the growth of unions under economic conditions and a climate of public opinion remarkably favorable to new organizing. Supreme Court rulings on contracts, employment, unions, and administrative power are restoring many features of law to the conditions before the New Deal. States are the most promising governmental level for protecting organizing and widening its reach in the immediate future; reformers of the 1920s provide a model for an engaged approach to scholarship that can shape state policy. Revisiting the state legal and policy history of the early twentieth century is urgently needed to prepare for foreseeable effects of further Supreme Court reaction, and to explore the era’s remarkable diversity of policy design, which may bring to light both ideas and dormant law useful in addressing labor’s contemporary challenges.

Federalism is a distinctive form of constitutional rule but one that has largely been neglected by both political and constitutional theory. Existing accounts of federalism tend to focus almost exclusively upon its institutional manifestation. What is lacking is an account of the common conceptual underpinnings that unite these various institutional forms within the genus of one constitutional idea. In this chapter Stephen Tierney argues that the core idea of federalism can only be arrived at by way of constitutional theory. Constitutional theory explains both how and why law is used to manage political power. Federal constitutions manage and transform political power for a discrete purpose that is fundamentally distinguishable from other constitutional forms. This chapter contends that federalism must be addressed as a specific genus of constitutional government for the modern state which, in the act of constitutional union, gives foundational recognition and accommodation to the state’s constituent territorial pluralism. The purpose of the federal constitution is to maintain the foundational relationship between pluralism and union through the creation and reconciliation of different orders of government. This marks a significant fork in the road between federal and unitary constitutionalism, not just in institutional terms but at the most fundamental level of constitutional identity and legitimacy.

Climate change, it is often said, is the greatest challenge of our time. As a global phenomenon with a long temporal reach, the impacts of climate change amplify challenges already faced across social, political, economic and ecological spheres. Similarly, constitutional theory is not immune from the impacts of climate change. Yet scholarly engagements between constitutional theory and climate change have thus far been targeted and disparate. This chapter represents an attempt to face up to the challenge of climate change from the perspective of constitutional theory. It takes seriously the discourse of “climate emergency” to argue that emergency is a theoretically defensible framing of the problem. Using the rule of law, rights and federalism as three examples of the challenges that climate change poses for constitutional theory, it highlights some strengths and limitations of existing literatures on these three concepts. Ultimately, it shows that the climate emergency points us to a theory of constitutionalism that builds on these strengths, responds to these limits and provides a path forward for thinking through the role of constitutional theory in a climate-disrupted world.

The witholding of equal public recognition of national, cultural and language identity often causes severe anguish to sub-state peoples and sometimes leads to war. For this reason, political philosophy has an important responsibility to think through the moral grounds and the appropriate means of recognition. This chapter draws a moral map of the recognitional debate, outlining three normative camps: nonrecognition, monorecognition, and recognitional pluralism. I argue for recognitional pluralism, in two steps. The first step establishes, contra nonrecognition, that nations, cultures and languages are recognition-worthy, and that this is so for two reasons: they give people access to cultural life-worlds, and they are sources of dignity. The second step builds the case for a pluralistic means of according public recognition. To do so, I argue, against monorecognition, that egalitarian recognition of life-world access and dignity is to be the driving principle. Within the pluralist camp, I argue for the principle of equal services, which implies that the state accords comparable cultural services to the cultural groups that share a state or territory. Examples of this can be found in equal language rights regimes, egalitarian public holiday systems, as well as in multinational federalism.

Tribes operated governments since time out of mind. Tribes developed institutions to manage their lands, people, and resources. While European arrival brought many hardships, tribes adapted, but eventually, tribes were forced onto reservations. Tribes endured attempts to exterminate their existence as distinct governments and cultures. Despite fifty years of the federal government’s tribal self-determination policy, tribes remain subject to excessive federal constraints on their sovereignty. Hence, tribes continue to struggle with crime and poverty. Tribes need greater autonomy to address the problems in their communities, and this requires treating tribes as nations again.

When tribes are allowed to operate as governments, states will push back because states fear tribal competition. In particular, states are concerned tribes will offer lower tax rates and other legal incentives to attract businesses to their land. This is a misguided concern. States already craft numerous exceptions to their laws, often designed specifically for their favorite corporations; plus, the source of state power over tribes is lacking. Apart from this, tribal development benefits states. New jobs in Indian country often employ non-Indians who purchase goods and pay taxes off reservation. Thus, tribal sovereignty also serves as a shield against state protectionism and promotes economic opportunities that benefit everyone.