29 Washburn L.J. 188 (1989-1990)
Commentary: State Antitrust Law in the Context of a New Intergoervnmental and International Environment

handle is hein.journals/wasbur29 and id is 206 raw text is: Commentary: State Antitrust Law in the Context
of a New Intergovernmental and
International Environment
John Kincaid*
INTRODUCTION
The renaissance' of state attorney general enforcement of federal
and state antitrust law in the 1980s is not an isolated development. On
the contrary, this renaissance is part of a more general resurgence of the
states in the American federal system. The biggest story in federalism
today is the revival of state energy, initiative and competence in many
political fields.2 After decades of being viewed by many reformers as (in
comparison to the federal government) backward, racist, fiscally regres-
sive, less than competent, prone to corruption, and even obsolete'3 in
an era of nationalization, the states as a group have reasserted themselves
in ways that have both defied and surprised the long-standing conven-
tional wisdom regarding an inevitable and beneficial nationalization of
governance and centralization of government in the twentieth century.
Within the field of law, moreover, the renewed state interest in anti-
trust law is also not an isolated phenomenon. There has been an even
broader and more important development since the mid-1970s; namely,
the revival of interest in state constitutional law.4 The growing willing-
ness of state high courts to base decisions, especially individual rights
decisions, on independent and adequate state constitutional law grounds
is a development that hardly anyone would have anticipated twenty years
ago.5 Furthermore, many of the reasons cited for the revival of state
constitutional law, and much of the debate over the wisdom of a more
independent state constitutional law jurisprudence, are remarkably simi-
lar to the controversy over state enforcement of antitrust law.6 In gen-
* Executive Director, U.S. Advisory Commission on Intergovernmental Relations; Associate
Professor of Political Science (on leave), University of North Texas; Ph.D., Temple University, 1981.
1. NATIONAL ASSOCIATION OF ATTORNEYS GENERAL, STATE ATTORNEY GENERAL ANTI-
TRUST ENFORCEMENT (May 23-25, 1989).
2. U.S. ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, THE QUESTION OF
STATE GOVERNMENT CAPABILITY, at A-98 (Jan. 1985); See also D. ELAZAR, AMERICAN FEDER-
ALISM: A VIEW FROM THE STATES (3d ed. 1984).
3. Laski, The Obsolescence of Federalism, 98 NEW REPUBLIC 367-69 (May 1939).
4. See, e.g., DEVELOPMENTS IN STATE CONSTITUTIONAL LAW 3 (McGraw ed. 1985); NA-
TIONAL ASSOCIATION OF ATTORNEYS GENERAL, EMERGING ISSUES IN STATE CONSTITUTIONAL
LAW (1988); Collins, Galie & Kincaid, State High Courts, State Constitutions, ard I:dividual Rights
Litigation Since 1980:. A Judicial Survey, 16 PUBLIUS: J. FEDERALISM 141-61 (Summer 1986); State
Constitutions in a Federal System, in THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL
AND SOCIAL SCIENCE 496 (J. Kincaid ed. 1988).
5. Kincaid, State Court Protections of Individual Rights Under State Constitutions: The New
Judicial Federalism, 61 J. STATE GOV'T 163-69 (Sept./Oct. 1988).
6. U.S. ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, STATE CONSTITU-
TIONAL LAW: CASES AND MATERIALS, at M-159 (Oct. 1988).

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