The Evolution of Sherman Act Jurisdiction: A Roadmap for Competitive Federalism

Abstract

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.3 Chief Justice Rehnquist has openly admitted that much of the case law in this area is less than a model of clarity.4 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, ''6 recent Supreme Court cases have imposed Tenth Amendment