This edited volume explores the obstacles to and opportunities for the development and entrenchment of a sustainable and representative multinational federalism. In doing so, it tackles a striking puzzle: on the one hand, scholars agree that deeply diverse multinational and multiethnic democracies should adopt federal structures that reflect and empower territorially concentrated diversity. On the other hand, there are very few, if any, real examples of enshrined and fully operative substantive multinational federalism. What are the main roadblocks to the adoption of multinational federalism? Can they be overcome? Is there a roadmap to realizing multinational federalism in the twenty-first century? In addressing these questions, this book brings together scholars from across the globe who explore a diverse range of cases from different and innovative analytical approaches. The chapters contribute to answering the above questions, each in their own way, while also addressing other important aspects of multinational federalism. The book concludes that the way forward likely depends on the emergence of a specific set of norms and a receptiveness to the complex institutional design.

The principal aim of this book is to revisit the basic theme of “unity and diversity” that remains at the heart of research into federalism and federation. It is time to take another look at its contemporary relevance to ascertain how far the bifocal relationship between unity and diversity has evolved over the years and has been translated into changing conceptual lenses, practical reform proposals and in some cases new institutional practices. This book is structured around four main parts: (1) the evolving conception of diversity over time and across continents; (2) the interplay between unity and diversity in complex settings; (3) federalism as decision-making and new institutional practices that have been put forward and tested; and (4) constitutional design and asymmetrical federalism as a way to respond to legitimate and insisting claims and political demands.

The volume offers new and unexplored perspectives on federalism and its relationships with diversity accommodation. It represents the first structured attempt to use federal theory and practice to frame several phenomena of governance in the area of diversity management. Federalism is here tested as a theoretical and practical tool that may help us better understand phenomena such as non-territorial autonomy, participatory democracy and legal pluralism. This volume unveils the theoretical potential of federalism in explaining complex pluralist legal systems: This theoretical function may be the 21st century dimension of federalism.

How federalism can be used to provide recognition and accommodate ethnic groups is an important topic, not only in Africa, but in multi-ethnic communities around the world. Examining how institutions of multi-ethnic states have been designed to accommodate ethnic diversity while at the same time maintaining national unity, this book locates institutional responses to the challenges of ethnic diversity within the context of a federal arrangement. It examines how a federal arrangement has been used to reconcile the conflicting pressures of the demand for the recognition of distinctive identities, on the one hand, and the promotion of political and territorial integrity, on the other. Comparative case studies of South Africa and Ethiopia as the two federal systems provide a contrasting approach to issues of ethnic diversity. Suggesting new ways in which federalism might work, the author identifies key institutions lessons which will help to build an all-inclusive society.

On August 29, 2005, Hurricane Katrina struck Louisiana and Mississippi. In the aftermath of the hurricane, the city of New Orleans flooded when levees along three major canals ruptured. At one point, approximately eighty percent of New Orleans was under water. Homeowners, renters and commercial property owners suffered tremendous property damage as a result of the New Orleans flood. Because insurance policies typically contain exclusions for damage caused by "flood," however, many of these property owners and renters were denied coverage. Despite the flood exclusions in their insurance policies, many of those who were denied coverage sued to recover their losses. One set of these consolidated cases, In re Katrina Canal Breaches Litigation, recently reached the U.S. Court of Appeals for the Fifth Circuit. In that set of cases, the plaintiffs argued that "the massive inundation of water into [New Orleans] was the result of the negligent design, construction, and maintenance of the levees and that the policies' flood exclusions in this context were ambiguous because they [did] not clearly exclude coverage for an inundation of water induced by negligence." They asserted that "because their policies [were] ambiguous, [the Fifth Circuit] must construe them in their favor to effect coverage for their losses." The parties agreed that Louisiana substantive law applied to the cases. The Fifth Circuit recognized, however, that the Louisiana Supreme Court had "not interpreted a flood exclusion in the context of breached levees." Although several of the plaintiffs filed motions asking the Fifth Circuit to certify to the Louisiana Supreme Court the question of whether the flood exclusions in their policies were ambiguous, in a footnote the Fifth Circuit denied the motions. In doing so, the court acknowledged that it would have to "make an Erie guess and determine, in [its] best judgment," how the Louisiana Supreme Court would decide the issue. The Fifth Circuit ultimately held that the policies were unambiguous, that the damage caused by the New Orleans flood was excluded from coverage, and that the plaintiffs were not entitled to recover. The plaintiffs whose motions to certify had been denied then filed petitions for writs of certiorari in the Supreme Court. The sole question raised by the petitions was whether the Fifth Circuit erred when it failed to certify the state law question before it to the Louisiana Supreme Court. In their petitions, the plaintiffs pointed out that at the time the Fifth Circuit denied their motions to certify, numerous state district courts had already ruled differently than the Fifth Circuit and that at least one of those cases was on appeal. Nevertheless, the Supreme Court denied the petitions. Thirteen years ago, a federal judge stated: "Federal courts evince no clear understanding of when . . . to certify." This Article argues that federal courts today still do not demonstrate a clear understanding of certification and addresses the question of when a federal court should certify an unclear question of state law and when it should decide the issue itself. The United States Supreme Court has said that the certification of unsettled state law questions by federal courts "may 'hel[p] build a cooperative judicial federalism.'" The Court, however, has not provided the lower federal courts with any real guidance regarding how or when they should use certification to foster intersystemic collaboration. Thus, in the diversity context, the circuit courts have developed a variety of approaches to certification. This Article first examines whether these approaches in fact exemplify cooperative judicial federalism in action. This Article concludes that while some circuits may use certification cooperatively, several circuits approach certification as an exercise in dualist federalism. This Article asks whether cooperative or dualist federalism is the appropriate federalism lens through which to view certification. Employing a series of articles written by Professor Robert A. Schapiro, this Article argues that certification today can best advance the goals of federalism and achieve other important benefits if it is viewed as an exercise in interactive, rather than cooperative or dualist, federalism. Using the values of interactive federalism, this Article proposes a new functional standard for the certification of state law questions by federal courts in diversity cases. Part II discusses dualist, cooperative and interactive approaches to federalism. Part III explains intersystemic adjudication and argues that the interpretation of state law by federal courts can be a positive good rather than a necessary evil. This part also explains how Professor Schapiro has applied the theory of interactive federalism to dual state and federal constitutional challenges that are brought in federal court. Part IV discusses certification and analyzes the differing approaches the federal appellate courts take to certification. Part V classifies the circuit courts' approaches to certification as representative of either cooperative or dualist federalism and explains why, from an interactive approach to federalism, these approaches are flawed. Part V then sets forth a new approach to certification based on Professor Schapiro's theory of interactive federalism and applies this approach to the Katrina Canal Breaches Cases. Part V concludes that, from an interactive perspective, the Fifth Circuit correctly denied the motions to certify in those cases.

This book examines different approaches by which states characterised by federal or decentralized arrangements reconcile equality and autonomy. In case studies from four continents, leading experts analyse the challenges of ensuring institutional, social and economic equality whilst respecting the competences of regions and the rights of groups.

Disputes about sovereignty mainly arise in those cases where fundamental rights are infringed, or democratic participation denied, on account of the citizens' membership in certain ethno-cultural minority groups. Moreover, the fact that serious challenges to sovereignty can be detected even in ethno-culturally diverse polities, which by all standards qualify as fairly just liberal-democracies, can only mean that the complex relationship between sovereignty and the diversity challenge is in need of serious consideration and analysis. By observing sovereignty and diversity through the lens of a broader liberal-democratic doctrine, this book sets out plausible strategies to cope with the problems that evolve from this issue. Sovereignty and Diversity is divided into three parts. In Part I, various normative theories of secession are evaluated both in relation to philosophy and to political science. Furthermore, the value and possible role of the uti possidetis principle is discussed. Part II addresses the value of various other methods to accommodate population diversity as means to solve disputes over sovereignty - namely multiculturalism, federalism, and decentralization, as well as minority rights. Finally, Part III groups together three case studies - the first two dealing with the secession and partition theme, while the last one shows the potential of other, less controversial means to address tensions about sovereignty. This volume is a collection of updated papers presented at the University of Belgrade in July 2005, at the international conference "Legal and Political Solution to Disputes over Sovereignty - From Kosovo to Quebec."

The authors of this engaging book discuss whether federalism promotes or undermines rights. With emerging democracies in Europe and elsewhere currently attempting to design constitutions that combine effective government, recognition of ethnic diversity within their populations, and protection of individual rights, the importance of these questions cannot be overstated. The authors examine both the theoretical perspectives on the relationship between federalism and rights, and the historical and contemporary relationship between federalism and rights in the United States. The contributors to this volume analyze the U.S. federal system as a potential model for contemporary constitution-makers as well as explore how its system can serve as a cautionary example. Sponsored by the Center for the Study of Federalism. Contributors include: Dorthy Toth Beasley; Irwin Cotler; Talbolt Dälemberte; Daniel J. Elazar; A.E. Dick Howard; Gary J. Jacobsohn; Koen Lenaerts; Jean Yarborough; Michael P. Zuckert.

How and to what degree do federations produce uniform law within their system? This comparative empirical study addresses these questions comprehensively for the first time. Originally produced under the auspices of the International Academy of Comparative Law, this volume examines legal unification in twenty federations around the world. Each of the successive chapters presents the forces of unification through the lens of a particular federal system. A comparative overview chapter provides a detailed analysis of the overall results with compelling visual illustrations of legal unification along different dimensions (e.g. by area of law; by federation; by civil vs common law system). The overview chapter summarizes and analyzes the means and methods of legal unification and the degree of legal unification of each system, and explains the driving forces of legal unity and diversity in federations more generally. The volume presents surprising findings that should make scholars rethink their abandonment of the civil law vs. common law distinction in comparative law. ​ This book is a milestone in the study of federalism. It is a rare and welcome melding of comparative law and comparative politics using both original data and qualitative analysis. Wide-ranging, probing, and definitive, this book is an invaluable resource for students of law, politics, and multi-level governance. Gary Marks, Burton Craige Professor, UNC-Chapel Hill, and Chair in Multilevel Governance, Vrije Universiteit Amsterdam