Law Commons^™

Bibb Balancing: Regulatory Mismatches Under The Dormant Commerce Clause, Michael S. Knoll

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Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation …

Making Federalism Work: Lessons From Health Care For The Green New Deal, Jesse M. Cross, Shelley Welton

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For decades, federalism had a bad reputation. It often was perceived as little more than a cover for state resistance to civil rights and other social justice reforms. More recently, however, progressive scholars have argued that federalism can meaningfully advance nationalist ends. According to these scholars, federalism allows for spaces in which norms can be contested, developed, and extended. This new strain of scholarship also recognizes, however, that these federalist structures can still shield national-level reforms from reaching all Americans. Many see such gaps as a regrettable but unavoidable feature of our federalist system. But to embrace federalism as an …

Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan

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This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …

Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp

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The Supreme Court has now agreed to review the Eleventh Circuit's decision in Phoebe-Putney, which held that a state statute permitting a hospital authority to acquire hospitals implicitly authorized such acquisitions when they were anticompetitive – in this particular case very likely facilitating a merger to monopoly. Under antitrust law’s “state action” doctrine a state may in fact authorize such an acquisition, provided that it “clearly articulates” its desire to approve an action that would otherwise constitute an antitrust violation and also “actively supervises” any private conduct that might fall under the state’s regulatory scheme.

“Authorization” in the context of …