Harry N. Scheiber,
Federalism and Legal Process: Historical and Contemporary Analysis of the American System, 14
Law & Soc'y Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/180
Whether federalism is more than a legal fiction is a question that generates considerable controversy among scholars in law and the social sciences. Historians of 19th-century American federalism have differed about the workings of the federal system in the era characterized as "dual federalism." This article provides an analysis of these controversies and offers a theoretical position on the problem of real power under federalism. The historical literature, it is argued, provides legal scholars and social scientists with abundant data on the reach, diversity, and effects of governmental action in the different historical epochs of American federalism. The relationship of federalism in the United States to political freedom, governmental performance and efficiency, and the formation of public policy all receive attention.