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Laws On Locally Grown Food And Constitutional Limits On State And Local Government: Suggestions For Policymakers And Advocates, Brannon P. Denning, Samantha Graff, Heather Wooten
Laws On Locally Grown Food And Constitutional Limits On State And Local Government: Suggestions For Policymakers And Advocates, Brannon P. Denning, Samantha Graff, Heather Wooten
Brannon P. Denning
Locally grown food laws that require, or provide incentives for, purchasing food grown within a defined geographic boundary are vulnerable to challenge under the U.S. Constitution’s restrictions on local and state laws that discriminate against goods and commerce from other states, known as the dormant Commerce Clause doctrine (DCCD). Policymakers and advocates for local food should understand the impact of these restrictions and should take advantage of an important exception to these restrictions when drafting policies to encourage purchase of locally grown food. In particular, they should (1) consider using the “market-participant exception” to the DCCD and tailor policies to …
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
Brannon P. Denning
This article argues that the historic incoherence of the dormant Commerce Clause doctrine reflects the Court's perpetual creation and discarding of decision rules designed to implement a constitutional command that had never been clarified. Drawing on the work of Mitch Berman and Kim Roosevelt, I articulate a constitutional command--prohibition of interstate commerce likely to destabilize political union--derived from the Constitution, then suggest decision rules that would implement that command. While some of my conclusions map onto current doctrine, I recommend that the Court abandon so-called "balancing" since it does not make sense as a decision rule, given the constitutional command …