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Virginia\u27s Climate Change Strategies: A Fractured Legal and Policy Environment
No full textA virtual webinar highlighting new climate change laws and Virginia’s position in light of recent developments in federal policy which affect the regulatory and permitting process. Speakers discuss federal attempts to address climate change; the Commonwealth\u27s new Coastal Resilience Master Plan and Community Flood Preparedness Fund; and local and state government efforts to address climate change and improve resilience in the areas of septic/wastewater management and health effects, infrastructure, and water quality
Education, Antidomination, and the Republican Guarantee
Get PDFThis Article offers a new interpretation of the United States Constitution’s republican guarantee and theorizes its protection of a fundamental right to education. Courts and education law scholars have identified the republican guarantee as a plausible source of educational rights but have not detailed how. Drawing on recent work by legal scholars, historians, political scientists, and philosophers, this Article reinterprets the guarantee as the federal government’s obligation to secure freedom as nondomination, and it argues that excellent, equitable public education is necessary to fulfilling this duty. Nondomination, a robust conception of freedom, is freedom from subjection to the will of others, protecting against potential interference and not merely against actual interference. Nondomination has deep roots in American social movements and in the antislavery constitution, and it requires active government answerable to all people, prioritizing laws and institutions that constrain private as well as public power. Under this theory of the republican guarantee, education has a potent role in overcoming the costs of domination, which include psychological costs— such as the atomization of citizens and their failure to see each other as equals—and material costs—such as unpreparedness for democratic participation and individual pursuit of the good life. Although a nondomination guarantee requires strong institutions outside of schools, education has a further role in equipping people with the tools to resist domination when other institutions fail to prevent it. In laying out this theory, this Article addresses both the conventional teaching that the republican guarantee raises nonjusticiable political questions and the genuine conceptual challenge of lawmaking under an ongoing antidomination duty
Federalism, Free Competition, and Sherman Act Preemption of State Restraints
Get PDFThe Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation\u27s resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress\u27s 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\u27s progeny also immunizes hybrid restraints--private agreements that states encourage or supervise.
Both the Supreme Court and numerous scholars have invoked federalism and state sovereignty to justify Parker\u27s state action doctrine. Some suggest that preemption would violate the Constitution. Others contend that these values manifest themselves as canons of construction that illuminate the statute\u27s original meaning. According to these scholars, the Act should not intrude upon traditional state prerogatives unless Congress plainly intended this result.
This article demonstrates that federalism and state sovereignty do not rebut the strong case for Sherman Act preemption of state-created restraints. Such preemption would be a garden-variety exercise of Congress\u27s commerce power. Moreover, Sherman Act preemption would not interfere with any constitutionally recognized attribute of state sovereignty.
Turning to canons of construction, the article concludes that such preemption is so plainly constitutional that the avoidance canon is inapposite. The federal-state balance and anti-preemption canons do protect traditional state regulatory spheres from inadvertent national intrusion. Neither supports Parker itself, which sustained a regime that directly burdened interstate commerce and injured out-of-state consumers. Application of these canons instead reveals that the Court\u27s invocation of federalism is selective at best. Indeed, the Court\u27s rejection of the federal-state balance canon and resulting application of the Act to local private restraints that produce no interstate harm created the very conflict between the Sherman Act and local regulation that the state action doctrine purports to resolve.
Consistent application of federalism principles bolsters the case for preemption, albeit within a much smaller sphere than the Sherman Act currently operates. Such considerations counsel retraction of the scope of the Act and concomitant allocation to states of exclusive authority over restraints that produce only intrastate harm. The resulting allocation of authority over trade restraints would nearly eliminate conflicts between local regulation and the Sherman Act and restore the uniform rule of free competition that best replicates the regulatory framework the 1890 Congress anticipated. Proponents of Parker who see states as laboratories for economic experimentation should welcome such reform, which would ironically result in less preemption of state-created restraints and strengthen the institution of competitive federalism
A New Era of Legal Services: The Elimination of Unauthorized Practice of Law Rules to Accompany the Growth of Legal Software
Get PDFSince the inception of bar associations in the early twentieth century, states have promulgated rules that prohibit unlicensed individuals from providing legal services. These unauthorized practice of law rules have created a monopoly on legal services, which in turn has inflated the price of obtaining legal services to a point where a significant percentage of individuals who need such services are unable to obtain them. Legal software has the potential to disrupt the market for legal services and make such services available to the mass market. However, for innovation and widespread use of legal software to gain traction, these unauthorized practice of law rules must be eliminated. In their place, various guards must be adopted by state and federal legal authorities to ensure consumers are protected following the elimination of unauthorized practice of law rules, including but not limited to the expansion of current false advertising and malpractice law
Section 230 and the Future of Free Speech on the Internet
No full textIn today’s episode, Rick and Sam are joined by William & Mary law school professor Laura Heymann to discuss Section 230, which recently has been in the news as people across the political spectrum have called for its repeal. The conversation begins by examining the nature and intent of Section 230 and why internet content is treated differently from newspaper or book publishers. The discussion then dives deeper into the implications of Section 230 on the First Amendment and free speech generally, along with the costs and benefits of social media and internet content as it relates to civil discourse