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Interest And Irritation: Brown V. Maryland And The Making Of A National Economy, Henry P. Callegary Nov 2016

Interest And Irritation: Brown V. Maryland And The Making Of A National Economy, Henry P. Callegary

Legal History Publications

This paper examines the United States Supreme Court case Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), which struck down Maryland’s licensing fee on wholesalers of imported goods. In doing so, the Court reaffirmed its commitment to a national economic policy, instead of a state-centric system. This paper explores the context of the decision, including profiles of the parties involved, the attorneys for both sides, the lower court decisions, and the majority opinion and dissent from the United States Supreme Court. Additionally, this paper follows the lineage of the case through to the present day, examining its doctrinal impact …


Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue Jun 2016

Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue

Michigan Business & Entrepreneurial Law Review

When Chief Justice John Roberts wrote the opinion of the Court in National Federation of Independent Businesses v. Sebelius (NFIB) explaining the constitutionality of the Affordable Care Act’s (ACA) minimum essential coverage provision (sometimes referred to as the individual mandate), he reasoned that the mandate—or, more precisely, the enforcement provision that accompanied the mandate (the Shared Responsibility Payment or SRP)—could be understood as a tax on the failure to purchase health insurance. According to this view, the enactment of the mandate and its accompanying enforcement provisions fell within Congress’s virtually unlimited power to “lay and collect taxes.” This tax-based interpretation …


The Constitution And Slavery Overseas, George Rutherglen May 2016

The Constitution And Slavery Overseas, George Rutherglen

Seattle University Law Review

This Article examines the resources available under American law to address the issues raised by extraterritorial enforcement of one of the most widely recognized human rights—to be free from physical coercion and the loss of liberty. Part I reviews the history of adoption, interpretation, and enforcement of the Thirteenth Amendment. The scope of the Amendment gradually expanded through the joint efforts of Congress and the Supreme Court, resulting in a prohibition that now goes beyond involuntary servitude to all forms of peonage, whether supported by state or private action. Part II then looks to other sources of congressional power—the Commerce …


The Internet Tax Freedom Act: Necessary Protection Or Deferral Of The Problem?, Timothy Fallaw Apr 2016

The Internet Tax Freedom Act: Necessary Protection Or Deferral Of The Problem?, Timothy Fallaw

Journal of Intellectual Property Law

No abstract provided.


The Federalism Cases, Leon Friedman Mar 2016

The Federalism Cases, Leon Friedman

Touro Law Review

No abstract provided.


Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard Jan 2016

Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard

Journal of Law and Policy

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …


Rule Originalism, Jamal Greene Jan 2016

Rule Originalism, Jamal Greene

Faculty Scholarship

Constitutional rules are norms whose application depends on an interpreter's identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assumption that the Constitution's more specifw or structural provisions support straightforward interpretive inferences. Normatively, this Article offers a partial defense of what it calls "rule originalism," grounded in the fact of its …