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Dormancy Versus Innovation: A Next Generation Dormant Commerce Clause, Sam Kalen

Sam Kalen Mr.

The vitality of the dormant commerce clause is becoming increasingly suspect. Modern academic commentary questions the Supreme Court’s rationale for this negative aspect of the Commerce Clause. Yet the emphasis of the scholarship overlooks how our society has changed dramatically since the Court developed its present analysis, and it is the analysis perhaps more than the rationale that is bankrupt. The analysis the Court employs under the clause is cabining innovate state and local programs, such as responses to climate change. The article, therefore, traces the dynamic nature of the dormant commerce clause, how its modern formulation ignores societal changes …