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Federalism

Antitrust and Trade Regulation

2015

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Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp Apr 2015

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California growers …

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Federalism, First Amendment & Patents: The Fraud Fallacy, Robin C. Feldman Dec 2014

Federalism, First Amendment & Patents: The Fraud Fallacy, Robin C. Feldman

Robin C Feldman

Few arguments echo as strongly throughout United States constitutional history as those related to the role of the states in the federal union. Shifting across time, the role of the states in general has moved from a model of dualism — characterized by a strict separation of federal and state dominion — to a model of overlapping and concurrent powers. In the modern context of overlapping powers, the preemption doctrine manages the intricate areas of overlap, with topics ranging from antitrust to immigration.

Yet the concept of federalism, as applied by the circuit courts in relation to patents, has traveled …

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