Law Commons^™

The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle

Michigan Law Review

The protagonist in our story has six legs, is one inch long, and dies two weeks after it emerges from the ground. To the untrained eye, the Delhi Sands Flower-Loving Fly looks like, well, a big fly. Entomologists know better. This particular fly can hover like a hummingbird as it uses its long tubular nose to extract nectar from flowers. It can only live in particular fine soils - the Delhi sands - that appear in patches over a forty square mile stretch from Colton to Ontario, California. Today only a few hundred Delhi Sands Flower-Loving Flies survive in less …

Enumerated Means And Unlimited Ends, H. Jefferson Powell

Michigan Law Review

United States v. Lopez can be read as a fairly mundane disagreement over the application of a long-settled test. The Government defended the statute under review in the case, the Gun-Free School Zones Act of 1990, along familiar lines as a permissible regulation of activity affecting interstate and foreign commerce.

In this essay, I do not address the question whether Lopez was an important decision. My concern instead is with the problem that underlies Lopez's particular issue of the scope of the commerce power: Given our commitment to limited national government, in what way is the national legislature actually limited? …

Foreword, Louis H. Pollak

Michigan Law Review

Introduction to the Symposium Reflections on United States v. Lopez

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …

"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …

Commerce!, Deborah Jones Merritt

Michigan Law Review

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Michigan Law Review

This article explores the market-participant rule. Part I traces the rule's evolution and shows how it has proven less rigid than some initially feared. Part II probes the roots of the rule by challenging justifications for it suggested by other observers. Part III offers an alternative theory of the market-participant doctrine, arguing in particular that it rests on a cluster of rationales that properly have led· the Court to uphold marketplace preferences as the "general rule." Part IV builds on Part III to advance a new, four-part framework for evaluating market-participant issues. Part V then uses that framework to apply …

Commerce Clause Restraints On State Taxation: Purposeful Economic Protectionism And Beyond, Walter Hellerstein

Michigan Law Review

Few questions in recent years have spawned as much controversy and as little academic interest as the scope of commerce clause restraints on state tax power. The Supreme Court has handed down an extraordinary number of significant decisions addressed to the limitations the commerce clause imposes on state taxation. Yet these decisions have barely caught the eye of the nation's leading law reviews or constitutional scholars. Even those observers who have recognized the Court's renaissance of interest in the dormant commerce clause have largely confined their attention to state regulation, as distinguished from state taxation, of interstate commerce. If there …

State Income Taxation Of Multijurisdictional Corporations: Reflections On Mobil, Exxon, And H.R. 5076, Walter Hellerstein

Michigan Law Review

The purpose of this Article is twofold: first, to analyze the Mobil and Exxon decisions; second, to consider the congressional reaction they may engender. Because the terrain that this Article covers may be unfamiliar to some readers, a few further words of introduction may be appropriate.

Taken together, the Mobil and Exxon decisions dealt with the three methods of dividing a multijurisdictional corporation's income among the states - specific allocation, separate accounting and apportionment by formula. Each method provides a different solution to the problem of determining the portion of the income of multistate businesses that should be taxable by …

Constitutional Law - Commerce Clause - Power Of States To Levy Net Income Tax On Businesses Engaged In Soley Interstate Commerce, John C. Peters S.Ed.

Michigan Law Review

Appellant, an Iowa corporation, maintained a sales office in Minnesota and employed salesmen who solicited orders from dealers within that state, though all of its sales contracts were made at the corporation's home office in Iowa. In accordance with a Minnesota statute, a state net income tax, fairly apportioned to the state's share of the corporation's interstate business, was levied upon appellant. In a suit brought by the state to collect this tax, appellant contended that the statute as applied violated the commerce and due process clauses of the Federal Constitution because it taxed the net proceeds of a business …

State Taxation Of Interstate Commerce--What Now?, Robert C. Brown

Michigan Law Review

Perennial indeed have been the problems of state taxation affecting interstate commerce and the problems of intergovernmental taxation as between state and federal governments. The two problems are quite similar except that the intergovernmental problem is mutual while the interstate problem affects only state taxing power. But both are alike in that the restrictions on the taxing power are entirely judicial, and that while some restrictions are desirable they must themselves be limited lest we have not regulation but destruction of taxing power.

The intergovernmental problem is virtually settled with the allowance of non-discriminatory taxation on both sides, except as …

Obligatory Jurisdiction Of The Supreme Court: Appeals From State Courts Under Section 237(A) Of The Judicial Code, Seymour J. Rubin, Sidney H. Willner

Michigan Law Review

In two ways, a case decided by the state court of last resort may come to the Supreme Court of the United States: by certiorari, or by appeal. Certiorari is discretionary; and the considerations which will lead the Court to grant a writ of certiorari are set out in Rule 38 of the Supreme Court Rules, and are well-known to the practicing bar. Appeal, however, is directed to the obligatory jurisdiction of the Court. Rule 12 merely sets out the procedure to be followed in seeking an appeal; and for his decision as to whether he has substantive basis for …

Compulsory Construction Of New Lines Of Railroad, Kenneth F. Burgess

Michigan Law Review

In the half century of public regulation of railroads in the United States, regulatory legislation has dealt primarily with functions incident to the operation of existing enterprises. The basic concept has been that railroad corporations as common carriers have voluntarily assumed obligations to the public which the public has a right to require to be performed.

Federal Incorporation, Myron W. Watkins

Michigan Law Review

Since the beginning of our national history the Constitution, which is essentially the source of the law rather than its framework, has with more or less promptitude fulfilled the function of sanctioning new rules of action which will permit a fairly symmetrical institutional development in the face of the changing conditions of the environment in which the people live and think and act. Always the habits of the people are changing, always the situation facts are being modified, and the Constitution in its widest and truest meaning but provides the means whereby thru this flux the body of the people …

Carmack Amendment In The State Courts, Wayland H. Sanford

Michigan Law Review

Prior to the leading case of Adams Express Co. v. Croninger,'- decided January 6th, 1913, there was much diversity in the decisions of the state courts as to the validity of contracts between shippers and carriers limiting the amount of the carrier's liability for injuries to goods shipped. Such limitations were held valid in some states, but invalid in others, and in some were declared invalid by statutes or constitutional provisions.2 State rules were applied to interstate as well as intrastate shipments, it being supposed that Congress had not legislated upon the subject. The CARMACK AmlNDVNT of i9o6s provided that …