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Jody Freeman, Network Federalism (Nov. 18, 2013).

Abstract: “Dual federalism,” “cooperative federalism,” and “federalism all the way down” — these are some of the terms constitutional and administrative law scholars have used to try to capture how decision making power is allocated between the federal and state governments. Drawing from examples in the field of energy and environmental regulation, this article presents an alternative conception of such power arrangements as “network” federalism. The network analogy best captures three key features of how certain contemporary governance systems actually work: authority is divided among different levels of government, dispersed across institutions at the same level of government and shared among both public and private actors. The Article explores the example of U.S. electricity regulation, which divides authority between the Federal Energy Regulatory Commission and state public utility commissions; disperses relevant power across multiple agencies at each level of government; relies on private bodies to oversee system reliability and establish critical operational standards; and deputizes non-profit regional organizations to coordinate, control and monitor the electricity system. Such networks are complex but not necessarily chaotic. They can be orderly while also being dynamic. Network federalism puts a premium on coordination and dispute resolution, and requires legal mechanisms for negotiating boundaries. From this perspective, it is misleading to describe policy as driven either by the government or the private sector, or led by federal versus state actors. Instead, policy is the product of the network.