Courts-First Federalism: How Model Legislation Becomes Impact Litigation

Abstract

States and interest groups are facilitating a redistribution of government powers under a new courts-first federalism. States are working to claw back powers while interest groups drafting model laws strategically tailor them to skirt the limits of federal law and, once adopted by states, prompt federal courts to review them as parties litigate to clarify their rights. States do not need to be completely successful in litigation to shift the balance of state–national power. Testing this argument, we find that the US Supreme Court grants review to 17% of model laws in our sample produced by the American Legislative Exchange Council (ALEC), whereas merely 1% of other cases are granted certiorari. Ultimately, the states and ALEC were partly successful in constraining federal power. Thus, the combination of model legislation, impact litigation, and courts-first federalism becomes a tool for states to draw power to themselves and from the federal government.