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Vanderbilt Journal of Transnational Law

Article Title

The Globalizing State

First Page

769

Abstract

he primary purpose of this Article is to consider the relationship of globalization to domestic law, a topic that, for the most part, has been neglected by the legal literature to date. In so doing, this Article shall develop the concept of the globalizing state, a theory of the state based on states' new roles in furthering global competitiveness, as well as the transformative effects of these new roles on the state itself. This Article refers to globalization as an interpretive approach to issues no longer classifiable--or even understandable--in terms of classic dichotomies of domestic and global, public and private, or federal and state. The integration of local and national economies with the global economy, the changing role of the state, the creation of new mixtures of public and private power, and the increasing importance of denationalized sources of law, have significantly changed the meaning of such concepts as "domestic," "private," or "local." The "local" must now be understood as one modality in a complex global process, rather than a unified place or jurisdiction...

This Article concludes that when choices of interpretive approaches to constitutional doctrines exist, those approaches that preserve, increase, or further the flexibility of decision-makers' responses to the global economy should be preferred. Not unlike the New Deal era when the Court had to confront new issues arising from society's political responses to a newly emerging nationally integrated economy, the Court today decides issues against a backdrop of an increasingly integrated global economy. An analysis of the public/private distinction and recent federalism decisions will show that it is important that courts resist constitutional approaches that unnecessarily limit change or new power-sharing approaches to both new and old issues. While it may seem ironic, some of the deferential, constitutional interpretive approaches forged by the Court during the New Deal era may, in fact, be best suited for the political experimentation now necessary, especially if various levels of government and non-state actors are to adapt successfully to the realities of a global economy. This position, however, is not an argument for a return to the New Deal so far as substance is concerned. There is no going back to the nineteenth century or to the state-centric future that courts and law makers have envisioned for the greater part of this nation's history.

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