Law Commons^™

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

Preemption As A Consistency Doctrine, Jesse Merriam

William & Mary Bill of Rights Journal

No abstract provided.

When States’ Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson

William & Mary Environmental Law and Policy Review

This Article explores the nationally common problem of tension and conflict among state oil and gas statutes, constitutional home rule, and local control by considering intersections and tensions among the Ohio Constitution’s home rule authority, the Ohio oil and gas law’s preemption provision, and the many regulatory efforts of Ohio’s local governments. It explores the scope of the Ohio Constitution’s home rule authority, in part, by evaluating courts’ statements on the validity of several types of local ordinances, as they confront home rule and a legislative attempt at preemption. Types of local ordinances evaluated include those that prohibit or ban …

The Twin Aims Of Erie, Michael S. Green

Faculty Publications

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid 'forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. …

Can Erie Survive As Federal Common Law?, Craig Green

William & Mary Law Review

No abstract provided.

General Law In Federal Court, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

No abstract provided.

The Transformation Of Immigration Federalism, Jennifer M. Chacón

William & Mary Bill of Rights Journal

No abstract provided.

Federalism Under Obama, Gillian E. Metzger

William & Mary Law Review

No abstract provided.

Legislating Preemption, Jamelle C. Sharpe

William & Mary Law Review

Federal preemption is perhaps the most important public law issueof the day. The stakes in preemption cases are enormous, as preemption determines whether the federal government or the statescontrol regulatory policy in a host of politically controversial contexts. Congress clearly has primary constitutional authority insetting federal preemption policy, but, for numerous political and practical reasons, cannot be solely responsible for its implementation.Determining which organ of the federal government is best at implementing preemption policy has therefore become the central preoccupation of the academic literature. While this comparative institutional analysis is certainly important in allocating preemptionpolicy-making business, it has elided a …

Texas Elective Workers' Compensation: A Model Of Innovation?, Jason Ohana

William & Mary Business Law Review

Workers' Compensation is often described as a bargain between employers and employees. Employees give up the right to sue their employers in negligence for workplace injuries, and, in return, employers agree to pay predictable, statutorily mandated benefits to injured employees. Over time, this “bargain” became compulsory in every state but one. Texas is the only state in which employers and employees can decide whether or not to enter the workers' compensation bargain. This elective system has some fairly serious problems, and many have advocated its abandonment. This Note analyzes the system's history, compares the system to conventional compulsory systems, analyzes …

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

William & Mary Bill of Rights Journal

Enforcing federalism is most commonly thought to involve the search for a
constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress
has exceeded its authority in reenacting the Voting Rights Act’s preclearance requirements. …

Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer

Faculty Publications

No abstract provided.

The Vote From Beyond The Grave, Krysta R. Edwards

William & Mary Law Review

No abstract provided.

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

Who Should Regulate? Federalism And Conflict In Regulation Of Green Buildings, Shari Shapiro

William & Mary Environmental Law and Policy Review

No abstract provided.

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

William & Mary Law Review

This Article considers the broad range of "tort experiments" states have undertaken in recent years, as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, while states have limited tort rights and remedies in the products liability and personal injury areas in recent years, they have at the same time increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, Congress has eliminated state tort law entirely in targeted areas without replacing it with corresponding federal remedies. The Supreme …

Of State Laboratories And Legislative Alloys: How "Fair Share" Laws Can Be Written To Avoid Erisa Preemption And Influence Private Sector Health Care Reform In America, Darren Abernethy

William & Mary Law Review

No abstract provided.

The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky

William & Mary Law Review

The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.

Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, …

Democratizing The Administrative State, Richard J. Pierce Jr.

William & Mary Law Review

Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Supreme Court Justices seemed poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court retreated from that abyss and took a major step toward legitimating and democratizing the administrative state. It instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute, basing this doctrine of deference on the superior political accountability of agencies. Henceforth, politically unaccountable judges were prohibited from substituting their policy preferences for those of politically accountable agencies. The …

Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro

William & Mary Law Review

No abstract provided.

Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi

William & Mary Law Review

Frequently, state-wide executive agencies and localities attempt to implement federally inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made.

This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally inspired programs. To the extent the predominant ways of resolving the …

American Insurance Association V. Garamendi And Executive Preemption In Foreign Affairs, Brannon P. Denning, Michael D. Ramsey

William & Mary Law Review

No abstract provided.

The Slippery Slope Of Secrecy: Why Patent Law Preempts Reverse-Engineering Clauses In Shrink-Wrap Licenses, John E. Mauk

William & Mary Law Review

No abstract provided.

Erisa Section 104(B)(4): What Documents Do Employees Have A Right To Demand From Their Employers?, Anne-Marie M. Miles

William & Mary Law Review

No abstract provided.

Is "Diligent Prosecution Of An Action In A Court" Required To Preempt Citizen Suits Under The Major Federal Environmental Statutes?, Derek Dickinson

William & Mary Law Review

No abstract provided.

Brownfields, Environmental Federalism, And Institutional Determinism, William Wade Buzbee

William & Mary Environmental Law and Policy Review

No abstract provided.

Evolution Of The Safe Drinking Water Act: A Search For Effective Quality Assurance Strategies And Workable Concepts Of Federalism, William E. Cox

William & Mary Environmental Law and Policy Review

No abstract provided.

Safe Drinking Water: A Federalism Perspective, A. Dan Tarlock

William & Mary Environmental Law and Policy Review

No abstract provided.

A Landowner's Remedy Laid To Waste: State Preemption Of Private Nuisance Claims Against Regulated Pollution Sources, Kathleen Roth

William & Mary Environmental Law and Policy Review

No abstract provided.

Reconceptualizing Federal Preemption Of Tort Claims As The Government Standards Defense, Lars Noah

William & Mary Law Review

No abstract provided.