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The evolution of Sherman Act jurisdiction: A roadmap for competitive federalism

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  • Introduction: Scholars and jurists increasingly acknowledge that the U.S. Supreme Court's Commerce Clause jurisprudence desperately needs a new direction. Even Laurence Tribe, widely regarded as a liberal commentator, concedes that until very recently the Court's decisions in this area came dangerously close to foreclosing it from imposing any kind of principled constitutional limitation on the scope of Commerce Clause jurisdiction. Chief Justice Rehnquist has openly admitted that much of the case law in this area is less than a model of clarity. In what has been heralded by some as the Rehnquist Court's \"celebrated project to re-establish structural constitutional principles on federalism,\" and by others more prosaically as \"the new federalism,'' recent Supreme Court cases have imposed Tenth Amendment constraints on federal commerce power, limited the local application of federal regulatory statutes to Congress's unmistakable intent,\" and most importantly found that local non-economic activities lie outside the constitutional scope of Commerce Clause jurisdiction. Yet, in spite of indications the Rehnquist Court is inclined to seek a new direction, it remains to be seen how it might do so in a way that minimizes troublesome conflicts with the existing body of constitutional precedent. This Article shows that the Court can look to the evolution of Sherman Acto jurisdiction to realign its approach to Commerce Clause jurisdiction to restore the balance of dual sovereignty while posing little immediate threat to constitutional precedent.

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    © 2015 University of Pennsylvania Journal of Constitutional Law. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.
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    • Johnsen, B., & Yahya, M. A. (2004). The evolution of Sherman Act jurisdiction: A roadmap for competitive federalism. University of Pennsylvania Journal of Constitutional Law, 7(2), 403-472. Retrieved from
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