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Full-Text Articles in Law
Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese
Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese
Faculty Publications
The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …
Uncooperative Environmental Federalism 2.0, Jonathan H. Adler
Uncooperative Environmental Federalism 2.0, Jonathan H. Adler
Faculty Publications
Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.
Our Federalism On Drugs, Jonathan Adler
Our Federalism On Drugs, Jonathan Adler
Faculty Publications
Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the …
Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules
Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules
Faculty Publications
The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.
This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes …