As a wave of backsliding has swept across both new and established democracies, scholars have sought to identify formal and informal institutions that can act as guardrails of democracy. But while informal norms, party structures, and formal institutions such as separation of powers have all been singled out as potential bulwarks against democratic backsliding, the literature has had less to say about what role, if any, federalism might play in stopping democracies from sliding into autocracy. While some constitutional designers and scholars have argued that federalism can help to prevent the emergence of a national tyranny, most contemporary research has emphasized the damaging effects federalism can have on democracy. In this article, we assess the relationship between federalism and threats posed by national rulers, with quantitative analysis of that relationship in countries around the world and with structured, focused comparative case studies in the United States, Brazil, Venezuela, and India. Our quantitative analysis finds no systematic relationship between federalism and backsliding, while our comparative case studies support our argument that federalism is only likely to serve as a bulwark against autocratic threats posed by national rulers under a limited set of conditions.

This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.

How are processes of political development structured across space and time by preexisting institutions? This article develops a spatiotemporal theory of institutional change by analyzing the evolving infrastructural power of the European Union's legal order using geospatial methods. Specifically, the authors theorize that the pattern and pace of the domestic spread of EU law has been shaped by preexisting state institutions—particularly by the degree to which national judiciaries are hierarchically organized. To assess this claim, the article compares patterns of domestic judicial enforcement of EU law across France (a unitary state with a centralized judiciary), Italy (a weaker unitary state with a centralized judiciary), and Germany (a federal state with a decentralized judiciary). Developing a geospatial approach to the study of legal integration and historical institutionalism more broadly, the authors leverage an original geocoded data set of cases referred to the European Court of Justice by national courts to visualize how the subnational penetration of Europe's supranational legal order is conditioned by state institutions.

This article argues for a radical recasting of the European Union democratic deficit debate. Critics have long argued that the EU suffers from a democratic deficit and that growing EU power undermines national democracy. But recent backsliding on democracy and the rule of law in Hungary and Poland reminds us that grave democratic deficits can also exist at the national level in member states and that the EU may have a role in addressing them. This article will place the EU’s struggles with democratic deficits in its member states in comparative perspective, drawing on the experience of other democracies that have struggled with pockets of subnational authoritarianism. Comparative analysis suggests that considerations driven by partisan politics may allow local pockets of autocracy to persist within otherwise democratic political unions.

Many studies suggest that strict balanced budget rules can restrain sovereign debt and lower sovereign borrowing costs, even if those rules are never enforced in court. Why might public officials adhere to a rule that is practically never enforced in court? Existing literature points to a legal deterrence logic in which the threat of judicial enforcement deters sovereigns from violating the rules in the first place. By contrast, we argue that balanced budget rules work by coordinating decentralized punishment of sovereigns by bond markets, rather than by posing a credible threat of judicial enforcement. Therefore, the clarity of the focal point provided by the rule, rather than the strength of its judicial enforcement mechanisms, determines its effectiveness. We develop a formal model that captures the logic of our argument, and we assess this model using data on U.S. states. We then consider implications of our argument for the impact of the balanced budget rules recently imposed on eurozone states in the Fiscal Compact Treaty.

The causal logic behind many arguments in historical institutionalism emphasizes the enduring impact of choices made during critical junctures in history. These choices close off alternative options and lead to the establishment of institutions that generate self-reinforcing path-dependent processes. Despite the theoretical and practical importance of critical junctures, however, analyses of path dependence often devote little attention to them. The article reconstructs the concept of critical junctures, delimits its range of application, and provides methodological guidance for its use in historical institutional analyses. Contingency is the key characteristic of critical junctures, and counterfactual reasoning and narrative methods are necessary to analyze contingent factors and their impact. Finally, the authors address specific issues relevant to both cross-sectional and longitudinal comparisons of critical junctures.

We welcome David Levi-Faur's critique of our article, both because it serves to stimulate debate on this important topic and because it provides us with the opportunity to elaborate on our arguments and touch on their wider potential applicability. Levi-Faur does not take issue with our central empirical finding—that American legal style is spreading to other jurisdictions—nor with our normative assessment of the mixed blessings of this trend. We agree with Levi-Faur that many questions concerning legal change have been largely overlooked by political scientists, and we agree that he raises a number of points that highlight the need for refinements of our argument. Yet, for all that we agree on, we disagree strongly with Levi-Faur's analysis and his main lines of criticism. His core criticisms concern our conceptualization of the dependent variable in our study, our purported disregard of alternative explanations, and our inadequate attention to the importers of American law and processes of “localization.” In this article, we respond to each of these criticisms in turn. We then discuss the generalizability of our argument beyond Europe and Japan. We conclude with suggestions for further research.

A substantial body of research suggests that the United States has a distinctive legal style characterized by detailed rules, extensive transparency requirements, adversarial procedures for dispute resolution, costly legal contestation involving many lawyers, and frequent judicial intervention in administrative affairs. Recently, scholars of comparative law and public policy have asked whether this American legal style is spreading around the world. Some scholars have argued that legal styles are converging on an American model, while others have argued that distinctive national legal styles will persist. This article addresses this emerging debate. We argue that American legal style is spreading to other jurisdictions. However, we depart from predominant explanations, which attribute convergence to international regulatory competition or emulation. Instead, we argue that economic liberalization and political fragmentation have undermined traditional approaches to regulation and have generated functional pressures and political incentives to shift toward American legal style.The authors thank Kenneth Abbott, Ward Bower, Kent Calder, Robert G. DeLaMater, Tom Ginsburg, Jack Goldsmith, Milton Heumann, Mark D. Hunsaker, Nicolas Jabko, Robert Kagan, Susan Lawrence, Kathleen McNamara, Michael Paris, Mark Ramseyer, Amy Searight, Anne-Marie Slaughter, Tatsushi Terada, David Vogel, Albert Yoon, and participants in presentations at the 2001 International Studies Association Convention, the 2001 American Political Science Association Convention, Northwestern University's Center for International and Comparative Studies, the University of Chicago Law School, and Princeton University's Center of International Studies for their comments on earlier versions of the article. The authors thank Rachael Snyder, Fatima Khan, Hisako Yamamoto, Masako Ishiwata, and Kei Yamaguchi for their research assistance and Akiko Tsuda, Akemi Ideuchi, and Mio Kato for secretarial assistance. Kelemen thanks the Frank Kneller Fund at Rutgers University and the Center of International Studies at Princeton University for financial support. Views expressed herein are those of the authors alone and are not necessarily those of any institutions with which they are affiliated.

This article analyzes the development of environmental regulation in the European Union from the perspective of comparative federalism. It presents a theory of regulatory federalism that explains how the basic institutional structures of federal-type polities shape the development of regulatory policy. The article assesses the theory by systematically comparing the development of environmental regulation in the EU, the US, Canada and Australia. The analysis suggests that the EU's institutional structure encourages the development of a US-style pattern of regulation, characterized by detailed, non-discretionary rules and a litigious approach to enforcement.

We develop a game theoretic model of the conditions under which the European Court of Justice can be expected to take “adverse judgments” against European Union member governments and when the governments are likely to abide by these decisions. The model generates three hypotheses. First, the greater the clarity of EU case law precedent, the lesser the likelihood that the Court will tailor its decisions to the anticipated reactions of member governments. Second, the greater the domestic costs of an ECJ ruling to a litigant government, the lesser the likelihood that the litigant government will abide by it (and hence the lesser the likelihood that the Court will make such a ruling). Third, the greater the activism of the ECJ and the larger the number of member governments adversely affected by it, the greater the likelihood that responses by litigant governments will move from individual noncompliance to coordinated retaliation through new legislation or treaty revisions. These hypotheses are tested against three broad lines of case law central to ECJ jurisprudence: bans on agricultural imports, application of principles of equal treatment of the sexes to occupational pensions, and state liability for violation of EU law. The empirical analysis supports our view that though influenced by legal precedent, the ECJ also takes into account the anticipated reactions of member governments.