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Dormant commerce clause

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Full-Text Articles in Law

Energy Drink Regulations: Why The Time For More Fda Authority Is Not Ripe And How States Can Protect Children Without Unjustly Infringing On Adult Autonomy, Larry D. Treat Jun 2021

Energy Drink Regulations: Why The Time For More Fda Authority Is Not Ripe And How States Can Protect Children Without Unjustly Infringing On Adult Autonomy, Larry D. Treat

Journal of Food Law & Policy

In December of 2011, Anais Fournier ("Anais"), a fourteen-year-old from Maryland, was at the mall with her friends when she drank a twenty-four ounce Monster energy drink. Within twenty-four hours, Anais consumed a second twenty-four ounce energy drink. Together, the two Monster energy drinks Anais consumed contained around 480 milligrams ("mg") of caffeine. A few hours after the second drink, Anais went into cardiac arrest and later died from cardiac arrhythmia. An autopsy found that caffeine toxicity caused Anais's arrhythmia and impeded her heart's ability to pump blood. As it turns out, Anais suffered from a preexisting heart ...


Taxing Teleworkers, Young Ran Kim Jan 2021

Taxing Teleworkers, Young Ran Kim

Utah Law Faculty Scholarship

Since COVID-19 has forced many governments to restrict travel and impose quarantine requirements, telework has become a way of life. The shift towards teleworking is raising tax concerns for workers who work for employers located in another state than where they live. Most source states where these employers are located could not have taxed income of out-of-state teleworkers under the pre-pandemic tax rules. However, several source states have unilaterally extended their sourcing rule on these teleworkers, resulting in unwarranted risk of double taxation — once by the residence state and again by the source state. At this time, there is no ...


State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah Apr 2020

State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah

Dickinson Law Review

In order to prevent further overuse of prescription opioids, states have adopted a variety of strategies. This article summarizes the growing use of prescription drug monitoring programs, crackdowns on “pill mills,” prohibitions on the use of particularly hazardous opioids, limitations on the duration and dosage of prescribed opioids, excise taxes, physician education and patient disclosure requirements, public awareness campaigns, and drug take-back programs. Although occasionally challenged on constitutional grounds, including claims of federal preemption under the Supremacy Clause, discrimination against out-of-state businesses under the dormant Commerce Clause doctrine, and interference with rights of commercial free speech, this article evaluates the ...


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 ...


Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti Mar 2019

Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti

San Diego Law Review

The Supreme Court lacks a coherent approach to deciding how much to defer to state legislatures when reviewing allegedly unconstitutional legislation. The Court grants very little deference to state legislatures in dormant Commerce Clause cases but significant deference to state legislatures in Fourteenth Amendment cases. The Court has never acknowledged this divergence, let alone justified it. Scholars have also failed to note this divergence or explore whether it can be justified. By ignoring this divergence, the Court and scholars have ignored a situation that exacerbates existing power imbalances and fails to recognize a more promising approach to judicial deference.

This ...


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 ...


Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason Jan 2018

Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason

Faculty Scholarship at Penn Law

In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.


Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa Jan 2018

Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa

Northwestern Journal of Law & Social Policy

No abstract provided.


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 ...


Federalism Cases In The October 2004 Term, Erwin Chemerinsky Jun 2017

Federalism Cases In The October 2004 Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Preempting Humanity: Why National Meat Ass'n V. Harris Answered The Wrong Question, Pamela Vesilind Apr 2017

Preempting Humanity: Why National Meat Ass'n V. Harris Answered The Wrong Question, Pamela Vesilind

Maine Law Review

The 2011-12 Supreme Court term was notable for high profile cases about state undocumented immigrant law, GPS-enabled police searches,chronic liars claiming military honors, and the constitutionality of the Affordable Health Care Act. As such, it is unsurprising that the decision in National Meat Ass’n v. Harris,notable for its unanimity and matter-of-fact concision, received relatively little attention from the media or the academy. Nevertheless, National Meat is a bellwether federalism opinion, the significance of which has been widely overlooked. At first blush, the legal question in National Meat appeared to be relatively unremarkable: whether the USDA’s slaughterhouse ...


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 ...


Willson V. Black-Bird Creek Marsh Co., 25 U.S. 245 (1829): An Early Test Of The Dormant Commerce Clause, Michael P. Collins Jr. Nov 2016

Willson V. Black-Bird Creek Marsh Co., 25 U.S. 245 (1829): An Early Test Of The Dormant Commerce Clause, Michael P. Collins Jr.

Legal History Publications

In 1822, Delaware authorized the Blackbird Creek Marsh Company to bank and drain the Blackbird Creek in New Castle County. Subsequently, Thompson Wilson and others destroyed the structure built by the marsh company. The marsh company subsequently sued Mr. Wilson for the damage to its property. The parties eventually appealed their dispute to the Supreme Court of the United States. The Court held that Delaware’s authorization to bank and dam the creek did not conflict with the federal government’s exclusive authority to regulate commerce between the several states. Ultimately, the Court decided Willson in a manner inconsistent with ...


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 ...


All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet Aug 2015

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Jud Mathews

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of ...


The Constitutional Dimensions Of Sports Franchise Takings: Lessons Learned From The Baltimore Colts, Travis Bullock Jan 2015

The Constitutional Dimensions Of Sports Franchise Takings: Lessons Learned From The Baltimore Colts, Travis Bullock

Legal History Publications

This paper chronicles the history of the Baltimore Colts up to and during that franchises’ relocation from Baltimore City to Indianapolis. Although Baltimore City attempted to prevent the relocation by taking the franchise through eminent domain, the Colts were no longer subject to Maryland’s, and therefore the city’s, jurisdiction. By moving, the Colts exposed an important limitation on State eminent domain authority; that condemned property must be located within a state’s territory in order to be subject to eminent domain. Further, the commerce clause would likely have prevented the city from condemning the Colts.


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 ...


Federalism Cases In The October 2004 Term, Erwin Chemerinsky Dec 2014

Federalism Cases In The October 2004 Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.


Courts Cap The "Trade": Regulation Of Competitive Markets When Courts Overturn State And Federal Cap-And-Trade Regulation, Steven Ferrey Dec 2014

Courts Cap The "Trade": Regulation Of Competitive Markets When Courts Overturn State And Federal Cap-And-Trade Regulation, Steven Ferrey

West Virginia Law Review

No abstract provided.


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.


Regulating Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster Jan 2013

Regulating Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster

Faculty Scholarship

This white paper evaluates the legal workability and constitutionality of what is frequently considered the most feasible mechanism for RGGI to use in regulating imports: an obligation on RGGI “load serving entities” (LSEs) – those companies responsible for supplying electricity to end-use customers – to purchase allowances to account for the emissions associated with the electricity they sell that is imported. Ultimately, although there are many design complexities yet to be worked out, we find that an LSE-centered approach could present a viable pathway forward for RGGI states’ regulation of imports. It is likely to create long-term price signals about the value ...


The Supreme Court Lends States A Break: Department Of Revenue Of Kentucky V. Davis And The Civic Responsibility Exception To The Negative Commerce Clause, Ryan D. Wheeler Feb 2012

The Supreme Court Lends States A Break: Department Of Revenue Of Kentucky V. Davis And The Civic Responsibility Exception To The Negative Commerce Clause, Ryan D. Wheeler

Pepperdine Law Review

No abstract provided.


The Politics Of Federalism: Self-Interest Or Safeguards? Evidence From Congressional Control Of State Taxation, Brian D. Galle Aug 2011

The Politics Of Federalism: Self-Interest Or Safeguards? Evidence From Congressional Control Of State Taxation, Brian D. Galle

Boston College Law School Faculty Papers

We present for the first time in the literature a quantitative analysis of the efficacy of the "political safeguards of federalism." We also test the popular theory that congressional control of state authority to tax maximizes national welfare. Both analyses rely on a hand-collected data set of every federal statute to date affecting state power to tax.

Overall, our data suggest that federal decisions to curtail state autonomy are strongly influenced by congressional self-interest. Conditional on enactment, statutes affecting state taxing power are more likely to reduce state authority when a concentrated special interest group stands to benefit, and also ...


Dormancy, Garrick Pursley Feb 2011

Dormancy, Garrick Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered ...


Dormancy, Garrick B. Pursley Feb 2011

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered ...


Dormancy, Garrick B. Pursley Feb 2011

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered ...


Dormancy, Garrick B. Pursley Feb 2011

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered ...