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Full-Text Articles in Law
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Faculty Scholarship
Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …
The Constitution And Our Debt To The Future, Rena I. Steinzor
The Constitution And Our Debt To The Future, Rena I. Steinzor
Faculty Scholarship
Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …
Oy Canada! Trade's Non-Solution To "The Problem" Of U.S. Drug Prices, Daniel Gilman
Oy Canada! Trade's Non-Solution To "The Problem" Of U.S. Drug Prices, Daniel Gilman
Faculty Scholarship
Price disparities—price “differentiation” or “discrimination”—in pharmaceuticals markets have, in recent years, been the subject of much discussion. Price sensitivity should come as no surprise: Medicines play an increasingly important role in healthcare, while pharmaceuticals prices continue to rise. When prices vary greatly within markets or between neighboring markets, the pressure towards arbitrage is clear. This paper considers the question whether the re-importation of medicines from Canada or the EU is well advised and argues that it is not. First, we might reasonably question the extent to which we wish, as a matter of policy, to manage pharmaceuticals pricing; among other …
Taxpayer Standing And Daimlerchrysler V. Cuno: Where Do We Go From Here?, Kristin E. Hickman, Donald B. Tobin
Taxpayer Standing And Daimlerchrysler V. Cuno: Where Do We Go From Here?, Kristin E. Hickman, Donald B. Tobin
Faculty Scholarship
In granting certiorari in the case of Daimler-Chrysler Corp. v. Cuno, the Supreme Court asked the parties to brief "whether respondents have standing to challenge Ohio's investment tax credit." This report applies modern standing doctrine to the Cuno case and concludes that the Cuno plaintiffs do no have standing to raise their claims in federal court. Moreover, the authors write, allowing the Cuno plaintiffs' case to be resolved in federal court would open the federal court system to a wide range of taxpayer challenges better left to the political branches of government. Nevertheless, they recognize that there may be …
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
Faculty Scholarship
The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the …
The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger
The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger
Faculty Scholarship
In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention- sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress’ power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 …
The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
Faculty Scholarship
This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by …
A Beautiful Mend: A Game Theoretical Analysis Of The Dormant Commerce Clause Doctrine, Maxwell L. Stearns
A Beautiful Mend: A Game Theoretical Analysis Of The Dormant Commerce Clause Doctrine, Maxwell L. Stearns
Faculty Scholarship
No abstract provided.
The Hunting Of The Shark: An Inquiry Into The Limits Of Congressional Power Under The Commerce Clause, David S. Bogen
The Hunting Of The Shark: An Inquiry Into The Limits Of Congressional Power Under The Commerce Clause, David S. Bogen
Faculty Scholarship
No abstract provided.