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Afterword: Federalism’s Options, Symposium Issue: Yale Law & Policy Review/Yale Journal on Regulation 465 (1996)


Several of the essays in this symposium, Constructing a New Federalism: Jurisdictional Competition and Competence, illustrate the current framework in which debates within the United States about federalism—be it legislative, judicial, or executive—proceed. The task at hand is to consider (from a rich range of perspectives) whether a particular arena about which laws are made (be it torts, the environment, or welfare) belongs either to state or to federal governance, or when overlapping regulatory regimes and judicial decision making are permissible. While the limits of either state or federal powers are not fixed, and the doctrinal and policy arguments change somewhat, the pervasive sense is that preexisting (albeit vague and contested) boundaries and options exist; opportunities for invention are not generous.

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