Molecular Federalism and the Structures of Private Lawmaking in the Indiana Journal of Global Legal Studies
Abstract
This article explores "molecular federalism." Private lawmakers-ranging from familiar organizations like the American Law Institute and the New York Stock Exchange to less well known ones, like the International Chamber of Commerce and associations of banks-are here envisioned as part ofa federalist scheme that operates at a "molecular" level rather than at the level of the state. The function and legitimacy of private lawmakers, and the strengths and weaknesses of private lawmaking, are assessed under the rubric offederalism. The article takes up both horizontal and vertical aspects of molecular federalism, considering the possibilities of competitive private lawmaking and the potentialfor (and limits ofi governmental control. The article accounts for the extraterritoriality ofprivate lawmaking and considers how private legislation may escape some of the vertical checks and balances associated with state-based federalism, not only through extraterritoriality, but also through some surprising shifts in the federalist hierarchy. The paper also explores how one legal regime can become dominant, while other contexts may suffer legalfragmentation. The paper attempts to place its analysis within the context of some prominent U.S. theorists offederalism, including Herbert Wechsler and Justice Brennan, and contemporary European theorists, such as Gunther Teubner. The conclusion is that molecular federalism, like its statebased counterpart, produces mixed results, and often in a way that accentuates both the strengths and the weaknesses of state-based federalism. The paper also suggests that a constitution for private lawmaking, or a similar system of meta-rules, may be necessary to allow private lawmaking to come closest to its potential.