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 …

Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower

William & Mary Bill of Rights Journal

Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds …

Out Of Sight, But Not Out Of Mind: Reevaluating The Role Of Federalism In Adequately Regulating Concentrated Animal Feeding Operations, Madhavi Kulkarni

William & Mary Environmental Law and Policy Review

No abstract provided.

Vertical Power, Michael S. Green

Faculty Publications

Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), I argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state …

Retained By The People: Federalism, The Ultimate Sovereign, And Natural Limits On Government Power, Stephanie Hall Barclay

William & Mary Bill of Rights Journal

Brewing tensions between state governments and the federal government have reached a boiling point unmatched since the civil rights debates of the 1960s. In light of the rapid expansion of federal power combined with colliding views on various policies, the call for states’ rights has increasingly become a rallying cry for lawmakers that has gained traction with groups on varying points along the political spectrum, as well as a frequent theory employed by the Supreme Court. While the system of federalism created by the Constitution certainly has its unique benefits, and while it is true that the federal government was …

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Faculty Publications

No abstract provided.

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

William & Mary Law Review

No abstract provided.

Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol

Faculty Publications

No abstract provided.

South Carolina: Her Present Attitude And Future Action, N. Beverley Tucker

Faculty Publications

No abstract provided.

Political Science: A Discourse On The Questions, "What Is The Seat Of Sovereignty In The United States, And What The Relation Of The People Of Those States To The Federal And State Governments Respectively", N. Beverley Tucker

Faculty Publications

No abstract provided.

A Discourse On The Genius Of The Federative System Of The United States, N. Beverley Tucker

Faculty Publications

No abstract provided.