Antitrust federalism and state restraints of interstate commerce: an essay for Professor Hovenkamp

Professor Hovenkamp has made important and insightful contributions to the literature on antitrust federalism, antitrust history, and the influence of evolving theories of political economy on antitrust doctrine and constitutional law. This Essay builds upon these contributions, particularly as they relate to the appropriate federal antitrust response to state regulation that unreasonably restrains interstate commerce. Under modern constitutional law, states may restrain interstate commerce by imposing restrictions on price or banning reasonable, wealth-creating restraints. Congress could preempt such restraints, but the Supreme Court has repeatedly held that the Sherman Act does not nullify such legislative interference with free competition. The Court has justified these results by invoking considerations of "federalism" and "state sovereignty." Thus, the Court has imputed to Congress a refusal to exercise the full scope of its commerce power out of deference to state regulatory prerogatives.