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Commercial Law

Domant Commerce Clause

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State User Fees And The Dormant Commerce Clause, Dan T. Coenen May 1997

State User Fees And The Dormant Commerce Clause, Dan T. Coenen

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This Article considers the interplay of two central tenets of the U.S. Supreme Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator." The second principle, in contrast, renders the nondiscrimination rule fully applicable to the imposition of state "user fees."

Part II of this Article shows why these doctrinal pronouncements stand in an uneasy tension. It also explains how this tension revealed itself in Oregon Waste Systems, Inc., v. Department of Environmental Quality of Oregon, when …


Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen Dec 1989

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

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There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. The history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing …