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Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank

Faculty Articles and Other Publications

On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no …