Courts and Federalism: Judicial Doctrine in the United States,
Australia, and Canada, Gerald Baier, Vancouver and Toronto: UBC
Press, 2006, pp. 207.Is everything old new again? Gerald Baier's insightful book
brings back into the mainstream a long neglected examination of federalism
from the perspective of judicial review. His analysis of the courts'
impact on the development of federalism involves a detailed study of
division of powers jurisprudence in the United States, Australia, and
Canada. In each of these countries, Baier argues, the decisions of the
highest courts continue to affect the shape of federalism, but his central
claim turns on how these decisions are made. For Baier, judicial doctrine
plays a significant role in influencing the reasoning of the courts and
must be considered an independent variable worthy of study in its own
right. Many scholars have debated the significance of doctrine on judicial
decision making. However, Baier takes issue with scholars who, on the one
hand, have characterized doctrine as a tool of objectivity and certainty,
and those, on the other hand, who view doctrine as entirely political in
nature (27). For Baier, doctrine is neither of these but it is
“distinctly legal in character” and it is this legal reasoning
that shapes outcomes (27).
