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Articles 1 - 8 of 8
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Regulation Of Interstate Wine Shipments, Vernon L. Smith, George A. Akerlof, Daniel L. Mcfadden, Robert E. Litan, Donald J. Boudreaux, Robert W. Hahn, John Letiche
Regulation Of Interstate Wine Shipments, Vernon L. Smith, George A. Akerlof, Daniel L. Mcfadden, Robert E. Litan, Donald J. Boudreaux, Robert W. Hahn, John Letiche
Vernon L. Smith
Does a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the Twenty-first Amendment?
Technology, Privacy, And The Courts: A Reply To Colb And Swire, Orin S. Kerr
Technology, Privacy, And The Courts: A Reply To Colb And Swire, Orin S. Kerr
Michigan Law Review
I thank Sherry Colb and Peter Swire for devoting their time and considerable talents to responding to my article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. I will conclude with a few comments.
Turning The Endangered Species Act Inside Out, Jud Mathews
Turning The Endangered Species Act Inside Out, Jud Mathews
Journal Articles
Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings". The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation …
White Knight?: Can The Commerce Clause Save The Religious Land Use And Institutionalized Persons Act?, Lara A. Berwanger
White Knight?: Can The Commerce Clause Save The Religious Land Use And Institutionalized Persons Act?, Lara A. Berwanger
Fordham Law Review
No abstract provided.
Harnessing The Treaty Power In Support Of Environmental Regulation Of Activities That Don't "Substantially Affect Interstate Commerce", Katrina Fischer Kuh
Harnessing The Treaty Power In Support Of Environmental Regulation Of Activities That Don't "Substantially Affect Interstate Commerce", Katrina Fischer Kuh
Elisabeth Haub School of Law Faculty Publications
This Article proposes a framework for applying the treaty power that would accomplish the goal of environmental regulation. This framework would be applied where the President has signed, and Congress has ratified, a treaty and Congress has enacted domestic legislation in some way satisfying the goals or requirements of the treaty. Under this framework, the inquiry into whether the treaty power could appropriately be used by Congress in excess of its Article I, Commerce Clause powers would be indexed to the strength of (1) the contract-like nexus between the necessarily reciprocal requirements and the goals of the treaty and the …
Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank
Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank
Faculty Articles and Other Publications
In Spring 2003, both the 5th Circuit and the D.C. Circuit agreed that Congress has the authority under the Commerce Clause to protect intrastate endangered species on private lands under the Endangered Species Act (ESA), but used completely opposite reasoning to reach the same result. The 5th Circuit in GDF Realty v. Norton rejected the government's argument that the economic impact of the commercial development regulated under the statute was the appropriate focus for whether the statute has a substantial effect on interstate commerce. Instead, the 5th Circuit concluded that intrastate spiders and beetles, which have no economic value, do …
A Fistful Of Denial: The Supreme Court Takes A Pass On Commerce Clause Challenges To Environmental Laws, John Eastman
A Fistful Of Denial: The Supreme Court Takes A Pass On Commerce Clause Challenges To Environmental Laws, John Eastman
John C. Eastman
Ever since the Supreme Court's landmark decision in United States v. Lopez invalidating the Gun-Free School Zones Act as beyond the scope of Congress's Commerce Clause power, scholarly commentators from both sides of the ideological spectrum have wondered whether the Court would apply the reasoning of that case in the context of federal environmental laws. Many agreed that, if faithfully applied, Lopez sounded a death knell for a slew of environmental legislation that had at best only a tenuous connection with interstate commerce. For some, that was even more reason to deride the Lopez decision, but for originalists, it was …
The Revival Of Federalism, John C. Eastman
The Revival Of Federalism, John C. Eastman
John C. Eastman
This article explores the efforts over the past quarter century by the conservative public interest law movement to revive the principle of federalism and, ultimately, the notion that the federal government is one of only limited, enumerated powers. Focussing on the Commerce Clause, the article traces the original meaning of the powers of the federal government over interstate commerce, as those powers were understood by those who drafted and ratified the Constitution, and contrasts that understanding with the expansionist view of the Commerce Clause adopted by the New Deal Court, which became the ruling orthodoxy for more than half a …