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The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
Seattle University Law Review
When the state acts as a market regulator, the dormant Commerce Clause invalidates discriminatory regulation without the need for an order against the state. The courts simply refuse to enforce the state law on the ground that it is unconstitutional. When the state acts as a market participant, however, the court would have to direct its order against the state or its officials to negate the discrimination. This produces a direct confrontation with the state, the same kind of confrontation the clear statement rule was designed to avoid. Part II of this article examines the theory of the dormant Commerce …
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
Faculty Scholarship
The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather …