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Full-Text Articles in Law
How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus
How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus
Articles
For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …
The Sometimes-Bumpy Stream Of Commerce Clause Doctrine (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman
The Sometimes-Bumpy Stream Of Commerce Clause Doctrine (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman
Articles
The title of this essay is a somewhat feeble use of an unoriginal pun.' I am not talking about the doctrine of the stream, but about the stream of the doctrine. That is, my principal subject is not the "stream of commerce doctrine," but rather the historical development of the doctrine governing Congress's power under the Commerce Clause in the twentieth century, and especially in the years centering on the New Deal. My basic thesis is this: Although the doctrine developed rapidly in the New Deal era, there were no major discontinuities in it. That does not mean that it …
"Charting The Course Of Commerce Clause Challenge (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman
"Charting The Course Of Commerce Clause Challenge (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman
Articles
Recognizing Barry Cushman's formidable skills in both research and argument, and his enormous wealth of knowledge, I have long known that I would much rather be on the same side of an issue with him than on the opposite side. And I am glad that we have been on the same side of an important issue, for both of us doubt that Franklin Roosevelt's Court-packing plan had much to do with the constitutional transformation of the 1930s. But now I have expressed disagreement with some propositions he has asserted, and I have made some assertions with which he disagrees, he …
Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
Articles
This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …
How To Think About The Federal Commerce Power And Incidentally Rewrite United States V. Lopez, Donald H. Regan
How To Think About The Federal Commerce Power And Incidentally Rewrite United States V. Lopez, Donald H. Regan
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Almost sixty years after the "revolution" of 1937, we still do not have an adequate theory of the commerce power. The Court was right to abandon the theory of dual federalism epitomized by Carter v. Carter Coal Co.;' and it has got the right results in the major cases decided since then. But our post-1937 theory, whether before or after Lopez, is a mess. On the one hand, we have a collection of doctrinal rules that, if we take them seriously, allow Congress to do anything it wants under the commerce power. On the other hand, we continue to pay …
Putting The Dormancy Doctrine Out Of Its Misery, Richard D. Friedman
Putting The Dormancy Doctrine Out Of Its Misery, Richard D. Friedman
Articles
Justice Antonin Scalia has put on the academic table the question of whether the doctrine of the dormant commerce clause should be abandoned. That is a significant contribution, for this is an issue that should be debated thoroughly. But Justice Scalia's campaign against the doctrine has been notably ambivalent. On the one hand, he argues that the doctrine lacks justification in constitutional text, history, and theory.1 On the other hand, assertedly feeling the pressure of stare decisis,2 he has gone along with, and even led, applications of the doctrine, although within narrow limits.3 In this essay, I argue that Justice …
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Articles
What follows is two essays, related as Siamese twins. Both essays developed from a single conception. They are distinct, but they remain connected by a shared subtopic. The first essay is about CTS Corp. v. Dynamics Corp. of America1 as a contribution to dormant commerce clause doctrine. The second essay is about the constitutional principle that states may not legislate extraterritorially, which I shall refer to as the "extraterritoriality principle." The shared subtopic is the extraterritoriality problem in CTS. (There is an extraterritoriality problem in CTS, even though the Court does not discuss it in those terms.) I could have …
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
Articles
For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice. The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is …
The Liability Of The Common Carrier As Determined By The Recent Decisions Of The United States Supreme Court, Edwin C. Goddard
The Liability Of The Common Carrier As Determined By The Recent Decisions Of The United States Supreme Court, Edwin C. Goddard
Articles
An understanding of the present day liability of the common carrier under conditions as they exist, especially in interstate shipments, is best reached by an historical journey from the early decisions of the Supreme Court of the United States to the end of the year just past.
Limitation As To The Amount Of Liability For Loss Of Goods By Carriers, Edwin C. Goddard
Limitation As To The Amount Of Liability For Loss Of Goods By Carriers, Edwin C. Goddard
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A carload of automobiles was shipped by express, under an express receipt limiting recovery to $50, unless a greater value was named and a greater carrying charge paid. The shipper knew of this stipulation, and deliberately chose the restricted liability so as to secure the lower rate. On a suit for loss of the automobiles, recovery was limited to $50. Geo. N. Pierce Co. v. Wells Fargo & Co., 189 Fed. 561, commented on in 10 MICH. L. REB. 317. The United States Supreme Court has just affirmed this decision, 35 Sup. Ct. 351.
The Commodity Clause Of The Hepburn Act, Edwin C. Goddard
The Commodity Clause Of The Hepburn Act, Edwin C. Goddard
Articles
The Supreme Court of the United States has added another to the interesting line of cases construing the so-called "Commodity Clause" of the HEPBURN ACT of 1906. In United States v. Delaware, Lackawanna & Western Railroad Co. and the Delaware, Lackawanna & Western Coal Co., decided on June 21, 1915, 35 Sup. Ct. 873, the court reversed the decree of the District Court as reported in 213 Fed. 240, and found the relation and contract between the Railroad Company and the Coal Company to be in violation of the HEPBURN ACT and the SHERMAN ACT.
Interstate Commerce And State Control Of Foreign Corporations, Ralph W. Aigler
Interstate Commerce And State Control Of Foreign Corporations, Ralph W. Aigler
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Corporations are the creatures of their parent state and outside the borders of the state creating them they have no existence except such as is granted them by comity. Bank of Augusta v. Earle, 13 Pet. 519; Lafayette Ins. Co. v. French, 18 How. 404; Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; Liverpool Ins. Co. v. Massachusetts, 10 Wall, 566; Home Ins. Co. v. Morse, 20 Wall. 445; Horn Silver Mining Co. v. New York, 143 U. S. 305; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; Security Mut. L. I. Co. v. Prewitt, …
State Regulations Affecting Interstate Commerce, Horace Lafayette Wilgus
State Regulations Affecting Interstate Commerce, Horace Lafayette Wilgus
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The line between regulations of intrastate and interstate commerce is difficult to draw and hard to maintain. This is well illustrated in the recent case of St. Louis Southwestern Railway Company v. Arkansas, decided by the Supreme Court of the United States April 4, 1910, Advance Sheets, May I, 1910, p. 476, 30 Sup.Ct. 476.
What Is Interstate Commerce?, Horace Lafayette Wilgus
What Is Interstate Commerce?, Horace Lafayette Wilgus
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In the case of International Text-book Company v. Pigg, Advance Sheets May 1, 1910 (30 Sup. Ct. 481) the Supreme Court of the United States, decided April 4, 1910, that a "corporation engaged in imparting instruction by correspondence, whose business involves the solicitation of students in other states by local agents, who are to collect and forward to the home office the tuition fees, and the systematic intercourse between the corporation and its scholars and agents, wherever situated, and the transportation of the needful books, apparatus, and papers," is engaged in interstate commerce, and a state statute which makes the …
Labor Organizations In Legislation, Jerome C. Knowlton
Labor Organizations In Legislation, Jerome C. Knowlton
Articles
During the first months of the current year, the Supreme Court of the United States handed down three decisions on important questions in labor legislation.1 The Employers' Liability Act was declared unconstitutional, but on grounds that may be avoided by subsequent legislation; the boycott was decided to be an unlawful conspiracy against interstate commerce, and in violation of the Anti-Trust Act and the congressional enactment providing criminal punishment for the discharge of an employee because of his membership in a labor organization was also held unconstitutional. These decisions have been unjustly spoken of by some, as unreasonably severe on labor …
The Northern Securities Decision, Horace Lafayette Wilgus
The Northern Securities Decision, Horace Lafayette Wilgus
Articles
March 14 the Supreme Court of the United States decided one of the most important cases that has been before it for a number of years. The litigation referred to is the Northern Securities case. The question involved was whether the control of the Great Northern and Northern Pacific railway companies through the ownership of the majority of the stock of each of those companies by the Securities company violated the national anti-trust act. The majority of the Supreme Court held it did, but four of the judges dissented.