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Full-Text Articles in Law

Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason Mar 2020

Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason

Faculty Scholarship at Penn Law

In an earlier article, we argued that the Utah Supreme Court failed to follow and correctly apply clear U.S. Supreme Court precedent in Steiner v. Utah when the Utah high court held that an internally inconsistent and discriminatory state tax regime did not violate the dormant commerce clause. Unfortunately, the Supreme Court recently declined certiorari in Steiner, but the issue is unlikely to go away. Not every state high court will defy the U.S. Supreme Court by refusing to apply the dormant commerce clause, and so the Court will sooner or later likely find itself facing conflicting interpretations ...


Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio Jan 2020

Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio

Scholarly Works

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are ...


A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch Mar 2018

A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch

Michigan Law Review Online

The Supreme Court has long debated the existence and scope of its power to restrict state regulation under the so-called negative or dormant Commerce Clause. The Court took a broad view of that power in the late 1800s, but it has refined and restricted its role over time. One area where the Court has continued to wield considerable power, however, has been in the context of state taxes. Specifically, the Court has continued to restrict states' power to compel out-of-state vendors to collect their sales and use taxes based on a physical-presence "nexus" rule. That rule dates back to the ...


Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly Dec 2017

Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly

Maine Law Review

The Commerce Clause of the United States Constitution provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Interpreting this explicit grant of power to Congress, the Supreme Court has long recognized the existence of an implied limitation on the power of a state to legislate in areas of interstate commerce when Congress has remained silent. Under what is referred to as the negative or “dormant” Commerce Clause, the federal courts have thus scrutinized state legislation for well over one hundred years. In the past ...


The Economic Foundation Of The Dormant Commerce Clause, Michael S. Knoll, Ruth Mason Jan 2017

The Economic Foundation Of The Dormant Commerce Clause, Michael S. Knoll, Ruth Mason

Faculty Scholarship at Penn Law

Last Term, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court’s first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination cases, the internal consistency test. In deciding Wynne, the Court relied on economic analysis we provided. This Essay explains that analysis, why the majority accepted it, why the dissenters’ objections to the majority’s reasoning miss their mark, and what Wynne means for state taxation. Essential to our analysis and the Court’s decision in ...


The Case For Lgbt Equality: Reviving The Political Process Doctrine And Repurposing The Dormant Commerce Clause, Terri R. Day, Danielle Weatherby Jan 2016

The Case For Lgbt Equality: Reviving The Political Process Doctrine And Repurposing The Dormant Commerce Clause, Terri R. Day, Danielle Weatherby

Brooklyn Law Review

As a reaction to the Supreme Court’s historic marriage equality decision earlier this summer, many Southern state legislators opposing the trend toward LGBT-protective laws have proposed legislation that would essentially prohibit municipalities from carving out new antidiscrimination protections for the LGBT community. Conservative Senator Bart Hester spearheaded the passing of one of these “anti” antidiscrimination laws in Arkansas, and states like Texas, West Virginia, Michigan, and Oklahoma are not far behind. These “Hester-type laws” are strikingly similar to the Colorado amendment struck down by the Romer v. Evans Court 20 years ago. Both the Colorado amendment and the new ...


How The Massachusetts Supreme Judicial Court Should Interpret Wynne, Michael S. Knoll, Ruth Mason Dec 2015

How The Massachusetts Supreme Judicial Court Should Interpret Wynne, Michael S. Knoll, Ruth Mason

Faculty Scholarship at Penn Law

In this special report, Knoll and Mason discuss how the Massachusetts Supreme Judicial Court should apply Wynne when it hears on remand First Marblehead v. Commissioner of Revenue. The authors conclude that when it originally heard the case, the Massachusetts court mistakenly considered, as part of its internal consistency analysis, whether Gate Holdings Inc. experienced double state taxation. As developed by the U.S. Supreme Court and most recently applied in Wynne, the internal consistency test is not concerned with actual double taxation that may arise from the interaction of different states’ laws. Rather, the test is designed to determine ...


Comptroller V. Wynne: Internal Consistency, A National Marketplace, And Limits On State Sovereignty To Tax, Michael S. Knoll, Ruth Mason Jan 2015

Comptroller V. Wynne: Internal Consistency, A National Marketplace, And Limits On State Sovereignty To Tax, Michael S. Knoll, Ruth Mason

Faculty Scholarship at Penn Law

On November 12, 2014, the U.S. Supreme Court heard oral argument in Comptroller of the Treasury v. Wynne. The case, which has already been called the Court’s most important state tax case in decades, asks how the dormant Commerce Clause restrains state taxation of individual income. Because Wynne lacks the usual indicia of “certworthiness,” the case raises the possibility that the Court will reshape the constitutional balance between the states’ sovereign interest in collecting taxes and the national interest in maintaining an open economy.

The challenge for the Court, whose dormant Commerce Clause rulings have attracted intense criticism ...


Amicus Brief In Maryland Comptroller V. Wynne, Michael S. Knoll, Ruth Mason Sep 2014

Amicus Brief In Maryland Comptroller V. Wynne, Michael S. Knoll, Ruth Mason

Faculty Scholarship at Penn Law

The internal consistency test reveals that Maryland applies systematically higher “county” taxes to interstate commerce than to in-state commerce.

Economic analysis of Maryland’s tax regime — including its taxes on inbound, outbound, and domestic activities — confirms what the internal consistency test suggests, namely, that the Maryland “county” tax discourages interstate commerce. Specifically, the Maryland tax regime discourages Maryland residents from earning income outside of Maryland, and it simultaneously discourages nonresidents from earning income in Maryland. Maryland alone causes this distortion; the distortion does not depend on the taxes imposed by any other state.

Petitioner’s argument that Maryland’s outbound ...


Agency Determination Concerning Delegation Of Sovereign's Pipeline Eminent Domain Power To Public Utility Interstate Pipeline Based Upon "Public Need" Comports With Dormant Commerce Clause: Substantial Evidence Review Applied To Public Need Determination: Lakehead Pipeline Company V. Illinois Commerce Commission, S. Ellyn Farley Apr 2013

Agency Determination Concerning Delegation Of Sovereign's Pipeline Eminent Domain Power To Public Utility Interstate Pipeline Based Upon "Public Need" Comports With Dormant Commerce Clause: Substantial Evidence Review Applied To Public Need Determination: Lakehead Pipeline Company V. Illinois Commerce Commission, S. Ellyn Farley

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger Dec 2007

Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger

Michigan Law Review

State antitrust laws ordinarily supplement federal law by providing a cause of action for anticompetitive activity that occurs in the state. Some states, however, have construed their antitrust regimes to reach conduct that occurs outside the state's boundaries. Such regulation raises significant federalism and Commerce Clause concerns by creating possible extraterritorial liability for conduct with virtually no in-state effect. This Note examines two Commerce Clause standards that may limit the degree to which state antitrust laws may exercise extraterritorial force-the "dormant" or "negative" Commerce Clause and the so-called "Extraterritorial Principle." Unfortunately, the dormant Commerce Clause test, as articulated in ...


Constitutional Law—Direct Shipment Of Alcohol—Well-Aged And Finally Uncorked: The Supreme Court Decides Whether The Twenty-First Amendment Grants States The Power To Avoid The Dormant Commerce Clause. Granholm V. Heald, 125 S. Ct. 1885 (2005)., Robert L. Jones Iii Apr 2006

Constitutional Law—Direct Shipment Of Alcohol—Well-Aged And Finally Uncorked: The Supreme Court Decides Whether The Twenty-First Amendment Grants States The Power To Avoid The Dormant Commerce Clause. Granholm V. Heald, 125 S. Ct. 1885 (2005)., Robert L. Jones Iii

University of Arkansas at Little Rock Law Review

No abstract provided.


Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone Jan 2005

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.


The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi Jan 2002

The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi

Michigan Law Review

Over the last thirty years, regulators have deregulated just about every regulated industry. In no industry has deregulation raised as much fear and concern as in electric power markets. Even before the Enron debacle, a crisis that is more about the failures of corporate than regulatory law, it was clear that something had gone seriously wrong in the turn towards deregulation of electric power. Recent events in California are illustrative. In early 2000, consumers in California, the first state to deregulate retail power markets on a mass scale, saw repeated months of power interruptions. Many utility customers experienced a risk ...


The Commerce Clause Quartet, Martin A. Schwartz Jan 1995

The Commerce Clause Quartet, Martin A. Schwartz

Touro Law Review

No abstract provided.


Territoriality And The Perils Of Formalism, Mark P. Gergen Jun 1988

Territoriality And The Perils Of Formalism, Mark P. Gergen

Michigan Law Review

Recently in this journal Donald Regan published a pair of essays on CTS Corp. v. Dynamics Corp. of America. Much of the first essay elaborates his theory that what the Supreme Court should be doing and what it is doing under the dormant commerce clause is checking state laws adopted with a substantial protectionist purpose. The rest of the first essay and all of the second essay develop a different check on state lawmaking power in interstate affairs: a rule that states may not regulate conduct beyond their borders. He calls this the extraterritoriality principle. Elsewhere I have questioned whether ...