Federalism’s Contribution to Economic Liberty: Catalyzing Technological Progress and Economic Growth

Does the Fourteenth Amendment guarantee economic liberty? If not, what role might states play in advancing economic liberty? Frustrated with the federal government’s inability or unwillingness to solve regulatory or competition-based problems, some states have taken matters into their own hands. This panel will address how states have been, and still can be, laboratories of democracy when it comes to regulation and catalyzing economic growth. It will also address how federal regulators can work with, not against, states to accomplish these goals.

Using case studies ranging from emerging technologies to marijuana deregulation, the panel will explore the state’s role in our modern federal system, with special attention paid to modern interpretations of both the Fourteenth Amendment and the Commerce Clause.

  1. Emerging technology case study Arizona recently created the U.S.’s first state-based regulatory sandbox for “FinTech.” This incubator-like program is designed to spur economic and technological growth. The Sandbox temporarily defers otherwise applicable licensing regulations to provide participants an opportunity to test their product or service in a limited market without having to incur significant up-front licensing costs.  The Sandbox also serves as a front-loaded consumer protection mechanism by granting the Arizona Attorney General’s Consumer Protection Division the authority to oversee and vet potential sandbox participants during the application process, increased investigatory avenues and enforcement powers. The Arizona Attorney General may remove a participant from the Sandbox and investigate that participant if the Attorney General “has reasonable cause to believe that a Sandbox participant has engaged in, is engaging in or is about to engage in any practice or transaction that . . . constitutes an unlawful practice.” H.B. 2434 (emphasis added).
  2. Marijuana deregulation case study The use (or abuse) of federalism to advance economic growth is perhaps most evident in states that have charted their own course on marijuana policy: despite continued federal prohibition, some states have gone beyond repealing their own prohibitions on marijuana to actively foster, regulate, and tax a quasi-legal marijuana industry. Examples include California’s Adult Use of Marijuana Act (CA Business & Professions Code §§ 26000, et seq.; Health & Safety Code §§11000, et seq.; 11357, et seq.; 11362.7, et seq.)and Washington D.C.’s  Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative (DC Code §§ 48-901.02 et seq.; 48-904.01 et seq.) Supporters of marijuana-policy reform point to increases in state revenue, successful entrepreneurs, and the social benefits of bringing the marijuana industry within the ambit of state regulation. Opponents argue that these benefits are exaggerated and warn that such experiments flout clear federal law. In light of several years’ experience with state-regulated marijuana industries, this panel will discuss whether, and how, our federal scheme allows states to try economic reforms where doing so circumvents federal law or policy. 

Discussion will focus on demonstrating the ways in which states can remain flexible in fostering innovation—both technological and regarding social policy—while ensuring that consumers are adequately protected from dangerous product or service testing or other offerings. This flexibility enables states to attract, test, and encourage competition in emerging and innovative technologies, as well as long-existing technologies with lowered barriers to entry.


Moderator and Panelists


MODERATOR - The Hon. Chad Readler (Principal Deputy Assistant Attorney General, Civil Division)

Chad A. Readler has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  His confirmation is pending.

Mr. Readler was appointed Principal Deputy Assistant Attorney General for the Civil Division on January 30, 2017 and served as Acting Assistant Attorney General for the Civil Division between January 30 and November 16. By operation of law, Mr. Readler once again became Acting Assistant Attorney General on December 11, 2017 after the President formally nominated Joseph H. Hunt as Assistant Attorney General.

As the Acting Assistant Attorney General, Mr. Readler oversees the largest litigating division in the Department of Justice. Each year, the Civil Division’s 1,100 lawyers represent some 200 client agencies in approximately 50,000 different matters. The Civil Division represents the United States in a wide array of civil litigation, including challenges to Presidential Executive Orders, Congressional statutes, and federal agency actions as well as federal benefit programs; commercial disputes including contract disputes, banking, insurance, and patents; international trade matters; and enforcement of immigration laws. The Division safeguards the health and safety of Americans by defending cases related to national security and by enforcing criminal and civil statutes to protect the safety of food and medicines. Finally, the Civil Division recovers billions of dollars for taxpayers through affirmative litigation brought under the False Claims Act, including cases targeting health care fraud, financial fraud, and fraud against the military, in addition to enforcing the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), the Food Drug and Cosmetic Act, and consumer protection statutes.

Before joining the Department, Mr. Readler handled complex civil and criminal litigation matters, with an emphasis on appellate litigation, as a Partner with Jones Day. At Jones Day, Mr. Readler successfully argued before the United States Supreme Court, the Ohio Supreme Court, and lower appellate courts. He also enjoyed a significant pro bono practice, and has been honored for his commitment to pro bono clients.

In addition to his federal service, Mr. Readler has served all three branches of Ohio government in an appointed capacity, including as a member of the Ohio Constitutional Modernization Commission. He is a prior recipient of the Marshall Memorial Fellowship bestowed by the German Marshall Fund of the United States, and he previously served as a volunteer for Lawyers Without Borders, to help train Kenyan lawyers in Nairobi.

Earlier in his career, Mr. Readler served as a law clerk to Judge Alan Norris of the U.S. Court of Appeals for the Sixth Circuit. He earned his undergraduate degree and law degree, with honors, from the University of Michigan.

Relevant Articles, Cases, etc.:

  1. City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 294 (E.D. Pa. 2018) (Readler was counsel for AG Sessions in a case holding that the federal government could not withhold federal funds from sanctuary cities).
  2. Filed brief on DOJ’s behalf in Texas v. United States, arguing that because the ACA's penalties were reduced to zero, it’s no longer a tax, and further arguing that because this provision is inseverable from the rest of the document, the individual mandate is unconstitutional. (
  3. South Dakota v. Wayfair, 138 S.Ct. 2080 (2018) (Readler was counsel for the government in their successful argument as amicus curiae for South Dakota.  In the case, the Court held that due to the changing nature of commerce, the physical presence requirement was overturned, meaning that states can now impose sales taxes on out-of-state sellers without a physical presence in the state).
  4. Adjudging Education Policy: How the Courts Shaped Ohio's Charter School Movement, 45 U. Tol. L. Rev. 601 (2014) that education debates - such as debates about newer innovations like charter schools - should be done by the legislature, not the judiciary).
  5. Local Government Anti-Discrimination Laws: Do They Make A Difference?, 31 U. Mich. J.L. Reform 777, 811 (1998) that private companies should be allowed to “choose their own employment policies” concerning anti-discrimination, as the social control of the market is better than the centralized control of the federal government).

PANELIST - Associate Justice Clint Bolick (Arizona Supreme Court)

Justice Clint Bolick serves on the Arizona Supreme Court. He was appointed by Governor Doug Ducey on January 6, 2016. Previously, he was the as the Vice President for Litigation at the Goldwater Institute.

In a recent profile, the New York Times said that Bolick is “known for his aggressive litigation to defend individual liberties.”  He has argued and won cases in the United States Supreme Court, the Arizona Supreme Court, and state and federal courts from coast to coast. He has won landmark precedents defending school choice, freedom of enterprise, and private property rights and challenging corporate subsidies and racial classifications.

Before joining the Goldwater Institute in 2007, Bolick was co-founder of the Institute for Justice and later served as president of the Alliance for School Choice.  Bolick helped author the Health Care Freedom Act and the Save Our Secret Ballot amendment, which were added to the Arizona Constitution in 2010 and adopted in several other states. He also has assisted policy activists in several states to establish litigation centers based on the Goldwater Institute model.

In 2003, American Lawyer recognized Bolick as one of three lawyers of the year for his successful defense of school choice programs, culminating inZelman v. Simmons-Harris in the U.S. Supreme Court. In 2009, Legal Times named Bolick one of the “90 Greatest D.C. Lawyers in the Past 30 Years.” Bolick received one of the freedom movement’s most prestigious awards, the Bradley Prize, in 2006 for advancing the values of democratic capitalism.

Bolick has authored several books, most recently Death Grip: Loosening the Law’s Stranglehold Over Economic Liberty (2011) and David’s Hammer: The Case for an Activist Judiciary (2007). In addition to his work at the Goldwater Institute, Bolick serves as a research fellow with the Hoover Institution.

Relevant Articles, Cases, etc.:

  1. Leviathan:  The Growth of Local Government and the Erosion of Liberty (2004)
  2. "State Constitutions as a Bulwark for Freedom," 37 Okla. City Univ. L. Rev. 1 (2012)

PANELIST - Hon. Mark Brnovich (Arizona Attorney General)

Mark Brnovich was inaugurated as Arizona’s Attorney General in 2015.  He won re-election to the same post in 2018. He previously served as Director of the Arizona Department of Gaming, as an Assistant U.S. Attorney for the District of Arizona, and as an Assistant Attorney General with the state.  He has also been a Judge Pro Tem of Maricopa County Superior Court, Deputy Maricopa County Attorney, Command Staff Judge Advocate in the U.S. Army National Guard, and Director of the Center for Constitutional Government at the Goldwater Institute.

Attorney General Brnovich received a bachelor’s degree in political science from Arizona State University and his juris doctor from University of San Diego School of Law.  
Has has been honored by the National Federation of Independent Business as a “Champion of Small Businesses.” From 2017-2018, Brnovich served as the Chairman of the Conference of Western Attorneys General, a non-partisan organization of Attorneys General from 15 western states, three Pacific territories, and 13 associate member states.

Relevant Articles, Cases, etc.:

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PANELIST - Ms. Dana Berliner (Institute for Justice - Senior Vice President and Litigation Director)

Dana Berliner serves as Senior Vice President and Litigation Director at the Institute for Justice, where she has worked as a lawyer since 1994. The focus of Dana’s litigation at IJ has been property rights. She successfully represented the Community Youth Athletic Center, a boxing gym and mentoring program for at-risk youth, which challenged the city of National City’s authorization of taking the CYAC’s property for private development; the California Court of Appeal ruled in 2013 that the authorization of eminent domain was invalid and that National City had violated California’s Public Records Act. Dana also represented the home and business owners in Norwood, Ohio, who, on July 26, 2006, secured a unanimous ruling from the Ohio Supreme Court that the city could not take their property for a privately owned shopping mall and “lifestyle center.”  Along with co-counsel Scott Bullock, she represented the homeowners in Kelo v. New London, in which the U.S. Supreme Court ruled that cities could condemn property because other uses may produce an increase in tax dollars and jobs. Dana, along with many others at IJ, worked to turn the nationwide outrage caused by the decision into new state statutes, constitutions and judicial decisions that cut back on eminent domain abuse. She secured a ruling that the Village of Port Chester, N.Y., violated due process in its use of eminent domain to secure waterfront property. Since 2008, 

Dana has been recognized every year as a “Best Lawyer” in eminent domain and condemnation law by the publication Best Lawyers in America. On issues of free speech and economic liberty, Dana successfully defended Carla Main and Encounter Books, who wrote and published a book about eminent domain abuse in Texas and across the country, against a defamation suit brought by a developer who stood to receive property taken by eminent domain.  She secured a victory in favor of two New Orleans entrepreneurs in a federal First Amendment challenge to the city of New Orleans’ ban on sidewalk book vending. As trial counsel, Dana also secured a ruling that the Nevada Transportation Services Authority violated the rights of several would-be limousine entrepreneurs by subjecting them to an onerous and arbitrary licensing process that gave undue power to existing companies opposing competition. And she successfully represented an aspiring teacher of African hair braiding in Mississippi, as well as two of her students, challenging restrictions on learning and teaching African hair braiding in Mississippi.In 2012, Dana became IJ’s Litigation Director. She now oversees all of IJ’s litigation, helping other attorneys craft both their major legal theories and their day-to-day litigation strategies. And she helps to set the litigation directions that IJ will take. 

In 2016, Dana began her role as IJ’s Senior Vice President. Dana authored Opening the Floodgates:  Eminent Domain Abuse in the Post-Kelo World, a report on the use and threatened use of eminent domain for private development in the year since the Kelo decision.  Dana also authored Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain, the first-ever nationwide study on the abuse of eminent domain, released in 2003. Dana has been quoted in The New York Times, USA Today, Wall Street Journal, NPR and The Washington Post as well as on various radio and television broadcasts, including 60 Minutes. Dana received her law and undergraduate degrees from Yale University where she was a member of the Yale Law Journal and represented clients through the legal services program. After law school, she clerked for Judge Jerry Smith on the 5th U.S. Circuit Court of Appeals. 

Relevant Articles, Cases, etc.:

  1. Strict Construction in Eminent Domain, 34 Prac. Real Est. Law 25 (2018) (survey of state construction of eminent domain)
  2. The Federal Rational Basis Test—Fact and Fiction, 14 Geo. J.L. & Pub. Pol’y 373, 383–85 (2016) (discussing state economic favoritism as an illegitimate government interest for the rational basis standard of review).
  3. Looking Back Ten Years After Kelo, 125 Yale L.J. F. 82 (2015) (discussing state and federal actions in eminent domain after Kelo v. City of New London’s holding that economic development is a “public use” under the Fifth Amendment).
  4. Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain

PANELIST - Prof. Jonathan Adler (Case Western University School of Law)

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law, where he teaches courses in environmental, administrative and constitutional law.  

Professor Adler is the author or editor of seven books, including Business and the Roberts Court (Oxford University Press, 2016) and Rebuilding the Ark: New Perspectives on Endangered Species Act Reform (AEI Press, 2011), and over a dozen book chapters. His articles have appeared in publications ranging from the Harvard Environmental Law Review and Yale Journal on Regulation to The Wall Street Journal and USA Today. He has testified before Congress a dozen times, and his work has been cited in the U.S. Supreme Court. A 2016 study identified Professor Adler as the most cited legal academic in administrative and environmental law under age 50.  
Professor Adler is a contributing editor to National Review Online and a regular contributor to the popular legal blog, “The Volokh Conspiracy.” A regular commentator on constitutional and regulatory issues, he has appeared on numerous radio and television programs, ranging from the PBS "Newshour with Jim Lehrer" and NPR's "Talk of the Nation" to the Fox News Channel and "Entertainment Tonight."  

Professor Adler is a senior fellow at the Property & Environment Research Center in Bozeman, Montana and at the Center for the Study of the Administrative State at the George Mason University Antonin Scalia Law School He also serves on the academic advisory board of the Cato Supreme Court Review, the NFIB Small Business Legal Center Advisory Board, the Board of Directors of the Foundation for Research on Economics and the Environment, and the Environmental Law Institute’s Environmental Law Reporter and ELI Press Advisory Board.  
In 2004, Adler received the Paul M. Bator Award, given annually by the Federalist Society for Law and Policy Studies to an academic under 40 for excellence in teaching, scholarship, and commitment to students. In 2007, the Case Western Reserve University Law Alumni Association awarded Adler their annual "Distinguished Teacher Award."  

Prior to joining the faculty at Case Western Reserve, Adler clerked for the Honorable David B. Sentelle on the U.S. Court of Appeals for the District of Columbia Circuit. From 1991 to 2000, Adler worked at the Competitive Enterprise Institute, a free market research and advocacy group in Washington, D.C., where he directed CEI's environmental studies program. He holds a BA magna cum laude from Yale University and a JD summa cum laude from the George Mason University School of Law.

Relevant Articles, Cases, etc.:

  1. Editor, Ecology, Liberty & Property: A Free Market Environmental Reader (2000).
  2. Editor, Business and the Roberts Court (2016).
  3. Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism, and Conditional Spending after NFIB v. Sebelius (with Nathaniel Stewart), 43 Ecology L.Q. 671 (2016).
  4. Compelled Commercial Speech and the Consumer Right-to-Know, 58 Ariz. L. Rev. 421 (2016).
  5. The Fable of Federal Environmental Regulation: Reconsidering the Federal Role in Environmental Protection, 55 Case W. Res. L. Rev. 93 (2004).
  6. Back to the Future of Conservation: Changing Perceptions of Property Rights & Environmental Protection, 1 N.Y.U. J.L. & Liberty 987 (2005).
  7. Cooperation, Commandeering, or Crowding Out? Federal Intervention and State Choices in Health Care Policy, 20 Kan. J.L. & Pub. Pol’y 199 (2011).
  8. Waste & The Dormant Commerce Clause—A Reply, 3 Green Bag 353 (2000).
  9. The Ducks Stop Here? The Environmental Challenge to Federalism, 9 Sup. Ct. Econ. Rev. 205 (2011).
  10. The Green Costs of Kelo: Economic Development Takings and Environmental Protection, 84 Wash. U. L. Rev. 623 (2006).
  11. Hothouse Flowers: The Vices and Virtues of Climate Federalism, 17 Temple Pol. & Civ. Rts. L. Rev. 443 (2008).
  12. Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. Envtl. L.J. 130 (2005).
  13. Interstate Competition and the Race to the Top, 35 Harv. J.L. & Pub. Pol’y 89 (2012).


PANELIST - Prof. Kimberly J. Robinson (University of Richmond School of Law)

Professor Kimberly J. Robinson serves as the Austin E. Owen Research Scholar & Professor of Law at Richmond School of Law.  She is a national expert who speaks domestically and internationally about educational equity, equal educational opportunity, civil rights and the federal role in education. She received her B.A. from the University of Virginia, and her J.D. from Harvard Law School.  Upon graduation from Harvard Law, Prof. Robinson clerked for James R. Browning of the U.S. Court of Appeals for the Ninth Circuit.  She then served as an Associate with Hogan & Hartson, LLP (now Hogan Lovells); worked in the General Counsel’s Office of the United States Department of Education; served as an Associate Professor of Law at Emory University School of Law; and a visiting fellow at George Washington University Law School.  She joined the Richmond Law faculty in 2010, and currently serves as a Senior Fellow at the Learning Policy Institute.

Her scholarship has been published widely in leading journals, including the Harvard Law Review, University of ChicagoLaw Review, Boston College Law Review, William and Mary Law Review, UC Davis Law Review, and Stanford Law and Policy Review. In 2019, New York University Press will publish her second edited book, tentatively titled Thoughts on a Federal Right to Education, which gathers leading constitutional and education law scholars to consider the challenging questions raised by recognizing a federal right to education in the United States. In 2015, Harvard Education Press published her book that was co-edited with Professor Charles Ogletree, Jr. of Harvard Law School titled The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity. Professor Robinson’s article, titled “Disrupting Education Federalism” in the Washington University Law Review, won the 2016 Steven S. Goldberg Award for Distinguished Scholarship in Education Law from the Education Law Association. 

Professor Robinson is a frequent lecturer on education law and policy issues, including serving as the Dean’s Distinguished Lecturer at the Harvard Graduate School of Education in March 2014 and the keynote speaker at the "Is Education a Civil Right?" conference at Harvard Law School in April 2013. She also has written editorials that address national education law and policy issues, including co-authoring with Professor Charles Ogletree, Jr. an article in 2017 in Education Next titled “Inequitable Schools Demand a Federal Remedy” and “Neglecting the Broken Foundation of K-12 Funding” in Education Week on May 18, 2016.

Relevant Articles, Cases, etc.:

  1. No Quick Fix for Equity and Excellence: The Virtues of Incremental Shifts in Education Federalism, 27 Stan. L. & Policy Rev. 201, 202 (2016).
  2. Disrupting Education Federalism, 92 Wash. U. L. Rev. 959, 962 (2015).

PANELIST - Prof. Allan Ides (Loyola Law School)

Professor Allen Ides received a B.A. from University of California, Los Angeles; an M.A. from Loyola Marymount University; and a J.D. from Loyola Law School. After graduating from Loyola Law School summa cum laude, Prof. Ides served as a law clerk to the Honorable Clement F. Haynsworth, Jr., Chief Judge of the U.S. Court of Appeals for the Fourth Circuit from 1979-80 and then clerked for the Honorable Byron R. White, Associate Justice of the United States Supreme Court from 1980-81. Professor Ides joined the Loyola Law School faculty in the fall of 1982 and served as Associate Dean for Academic Affairs from 1984-87. From 1989-97, Professor Ides was a member of the law school faculty at Washington & Lee in Lexington, Virginia. He returned to Los Angeles and to Loyola in 1997. 

He has written extensively in the areas of Constitutional Law, Civil Procedure and Federal Jurisdiction and Practice, and is actively involved in various public service projects, ranging from civil rights litigation to the representation of individuals in deportation proceedings. He currently serves as Professor of Law and Christopher N. May Chair of law at Loyola Law School.

Relevant Articles, Cases, etc.:

  1. Constitutional Law: National Power and Federalism 6th ed. (with Christopher N. May) (Aspen 2013)
  2. Constitutional Law: Individual Rights 6th ed. (with Christopher N. May) (Aspen 2013)
  3. Economic Activity as a Proxy for Federalism:  Intuition and Reason in United States v. Morrison, 18 Constitutional Commentary 563 (2002).