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Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen Dec 1989

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

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There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. The history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing ...


Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen Dec 1989

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

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This article focuses on an important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause. The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...” Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys ...


Rhetoric And Reality In The Law Of Federal Courts: Professor Fallon's Faulty Premise, Michael L. Wells Jul 1989

Rhetoric And Reality In The Law Of Federal Courts: Professor Fallon's Faulty Premise, Michael L. Wells

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Richard Fallon's recent article, "The Ideologies of Federal Courts Law," [74 Va. L. Rev. 1141 (1988)] offers valuable insights into a bewildering body of Supreme Court doctrine. He effectively demonstrates the "substantial doctrinal instability" of this body of law, and also discerns a pattern amid the chaos. Fallon's treatment of the case law and the scholarship is fair-minded, meticulous, and incisive.

I disagree, however, with one aspect of Fallon's thesis. In my view, he falters when identifying sources of the discontinuity in the doctrine. In Part I of his article he argues that the decisions reflect "two ...


The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells Apr 1989

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

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The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that ...


Terrorism, Law, And Our Constitutional Order, Christopher L. Blakesley Jan 1989

State Taxation And The Supreme Court, Walter Hellerstein Jan 1989

State Taxation And The Supreme Court, Walter Hellerstein

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The Supreme Court's outpouring of significant state tax decisions in recent years has elicited little more than a yawn from most constitutional scholars. The nation's preeminent law reviews, which once were filled with articles examining the Court's state tax opinions, pay scant attention to them today. Leading constitutional law casebooks make only passing reference to state taxation. Indeed, the Court itself has expressed ennui over the prospect of adjudicating a seemingly endless stream of state tax controversies. The lack of academic interest in the Court's state tax jurisprudence may be attributable to several factors. Matters of ...


Introduction (The Supreme Court & Local Government Law: The 1988-89 Term), Leon D. Lazer Jan 1989

Introduction (The Supreme Court & Local Government Law: The 1988-89 Term), Leon D. Lazer

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No abstract provided.


Section 1983, Martin A. Schwartz, Leon Lazer, George Pratt, Leon Friedman Jan 1989

Section 1983, Martin A. Schwartz, Leon Lazer, George Pratt, Leon Friedman

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No abstract provided.