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Can Courts Make Federalism Work? A Game Theory Approach to Court-Induced Compliance and Defection in Federal Systems

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  • Gemma Sala

    (Department of Political Science, Grinnell College, 1210 Park Street, Grinnell, IA 50112, USA)

Abstract

Few studies on federalism analyze the role of courts as safeguards of the federal arrangement, and those that do tend to be too optimistic about what courts can do. This article analyzes the effect of judicial review on the interaction between the central and a regional government in a federation in order to understand the conditions under which courts may or may not enforce compliance with federalism. It argues that politicians of either level of government anticipate the likelihood of a judicial challenge and an eventual veto, and it finds distinct equilibria in the interaction between central and regional governments (imposition, auto-limitation, negotiation and litigation). Only under auto-limitation do courts effectively prevent transgressions to the federal arrangement. In all other scenarios, defection may take place despite the presence of courts. These findings show that as the court’s jurisprudence becomes more solid and defined, the chances for governments to successfully exceed their powers increase. Not only do transgressions take place despite the presence of the court, but because of it.

Suggested Citation

  • Gemma Sala, 2014. "Can Courts Make Federalism Work? A Game Theory Approach to Court-Induced Compliance and Defection in Federal Systems," Economies, MDPI, vol. 2(4), pages 1-25, December.
    • Handle: RePEc:gam:jecomi:v:2:y:2014:i:4:p:193-217:d:43038
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    References listed on IDEAS

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    1. Gemma Sala, 2014. "Federalism without Adjectives in Spain," Publius: The Journal of Federalism, CSF Associates Inc., vol. 44(1), pages 109-134, January.
    2. Carrubba, Clifford J. & Gabel, Matthew & Hankla, Charles, 2008. "Judicial Behavior under Political Constraints: Evidence from the European Court of Justice," American Political Science Review, Cambridge University Press, vol. 102(4), pages 435-452, November.
    3. Hayo, Bernd & Voigt, Stefan, 2007. "Explaining de facto judicial independence," International Review of Law and Economics, Elsevier, vol. 27(3), pages 269-290, September.
    4. Acemoglu,Daron & Robinson,James A., 2009. "Economic Origins of Dictatorship and Democracy," Cambridge Books, Cambridge University Press, number 9780521671422.
    5. Bednar,Jenna, 2009. "The Robust Federation," Cambridge Books, Cambridge University Press, number 9780521703963.
    6. Bednar,Jenna, 2009. "The Robust Federation," Cambridge Books, Cambridge University Press, number 9780521878999.
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    Cited by:

    1. Julio López-Laborda & Fernando Rodrigo & Eduardo Sanz-Arcega, 2018. "Is the Spanish Constitutional Court an instrument of the central government against the Autonomous Communities?," Constitutional Political Economy, Springer, vol. 29(3), pages 317-337, September.
    2. Julio López-Laborda & Fernando Rodrigo & Eduardo Sanz-Arcega, 2019. "Consensus and dissent in the resolution of conflicts of competence by the Spanish Constitutional Court: the role of federalism and ideology," European Journal of Law and Economics, Springer, vol. 48(3), pages 305-330, December.
    3. Garoupa, Nuno & Gili, Marian & Gómez Pomar, Fernando, 2021. "Loyalty to the party or loyalty to the party leader: Evidence from the Spanish Constitutional Court," International Review of Law and Economics, Elsevier, vol. 67(C).

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