European Journal of Law Reform

Artikel

Competing Constitutional Ideals in the United States’ Force Majeure-Federalism Cases

Calling the Shots in Disaster Management

Keywords federalism, force majeure, disaster, commerce clause, necessary and proper clause
Authors Riddhi Dasgupta
Author's information

108810 Riddhi Dasgupta
Doctoral student (Expropriation in International Investment Regimes), University of Cambridge.
  • Abstract

      Structure is no less important than substance in the long run. When dealing with disaster management, what is truly national and what is truly local? Disasters are the “perfect” time, if only because of the confusion they sow and/or witness, for the central government to usurp some sovereign powers of its constituent states (and sometimes vice versa). This article examines where, in the American model with its strong federalism tradition, the constitutional tipping point lies. The article conveys the practical imperatives of federalism and why ordinary citizens should care: a federalist structure to promote democratic participation and the carrying out of democratic will by splitting up authority and stopping any one layer of government from becoming too powerful or making it a dysfunctional appendage. That has special significance in the disaster context, of course, and there is no better kaleidoscope than the recent Gulf of Mexico oil spill.

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