Laboratory Federalism and the Kable Principle

Abstract

<jats:p> Federalism permits sub-national diversity and experimentation. The Kable principle limits sub-national diversity and experimentation in relation to state courts. But this apparent tension between ‘laboratory’ federalism and the Kable principle is somewhat illusory. Kable does not always hinder experimentation, but rather enables it by securing its necessary preconditions. By preventing state legislatures and governments from conscripting state courts to implement political designs, the Kable principle prevents state legislatures and governments from using state courts as a ‘cloak’ against political accountability. This preserves the capacity of sub-national communities to compare policies across multiple jurisdictions, to express their preferences through ‘exit and voice’, and thereby to render sub-national experimentation effective on its own terms. </jats:p>

Assessing the Performance of Australian Federalism in Responding to the Pandemic

“…There was also another federal phenomenon on display in the field of social distancing and related policies: “laboratory federalism.” This description of federal relations was made famous by U.S. Supreme Court Justice Louis Brandeis in New State Ice Co v Liebmann , 285 U.S. 262 (1932), when he wrote that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” In Australia, Brendan Lim (2014 , 524) has described the practice of laboratory federalism as founded upon the belief that: “sub-national experimentation with a range of candidate policies will enable the feedback and institutional learning that is necessary to identify the more successful policies.”…”