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Articles 1 - 30 of 68
Full-Text Articles in Law
Bibb Balancing: Regulatory Mismatches Under The Dormant Commerce Clause, Michael S. Knoll
Bibb Balancing: Regulatory Mismatches Under The Dormant Commerce Clause, Michael S. Knoll
All Faculty Scholarship
Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation …
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Pepperdine Law Review
Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of …
Frenemey Federalism, Scott P. Bloomberg
Frenemey Federalism, Scott P. Bloomberg
Faculty Publications
This article introduces the concept of Frenemy Federalism. The term “frenemy” is a portmanteau of “friend” and “enemy” that is defined as a person with whom one is friendly despite a fundamental dislike or rivalry. A frenemy relationship develops between the federal and state governments when the governments work together despite having conflicting objectives in an area of policy. In such situations, mutual incentives make cooperation between the governments conducive to achieving their respective goals, allowing what may otherwise be a contentious relationship to find stability. Amidst the growing body of federalism scholarship, I situate Frenemy Federalism as a point …
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott P. Bloomberg
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott P. Bloomberg
Faculty Publications
Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of …
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 condition called …
Taxing Teleworkers, Young Ran Kim
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 …
State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah
State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah
Dickinson Law Review (2017-Present)
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
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
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 of …
Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio
Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. 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 …
Diploma Privilege And The Constitution, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner
Diploma Privilege And The Constitution, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner
All Faculty Scholarship
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
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
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
Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
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
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
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 several …
Federalism Cases In The October 2004 Term, Erwin Chemerinsky
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
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 and packing plant regulations …
The Economic Foundation Of The Dormant Commerce Clause, Michael S. Knoll, Ruth Mason
The Economic Foundation Of The Dormant Commerce Clause, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
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 Wynne …
Willson V. Black-Bird Creek Marsh Co., 25 U.S. 245 (1829): An Early Test Of The Dormant Commerce Clause, Michael P. Collins Jr.
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 its earlier …
Is The Philadelphia Wage Tax Unconstitutional? And If It Is, What Can And Should The City Do?, Michael S. Knoll, Ruth Mason
Is The Philadelphia Wage Tax Unconstitutional? And If It Is, What Can And Should The City Do?, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
Philadelphia has a complex and antiquated tax system that has long been criticized for driving employers and jobs away from Philadelphia by making it expensive to conduct business in the City. The centerpiece of the Philadelphia tax system is the Philadelphia wage tax, which raised more than $1.6 billion in 2014. That tax has been challenged as unconstitutional in light of the Supreme Court’s 2015 decision in Wynne v. Comptroller of Maryland, which struck down a structurally similar Maryland tax. This Essay explains the constitutional challenge to the City wage tax, argues that the tax is unconstitutional, describes steps …
The Enigma Of Wynne, Edward A. Zelinsky
The Enigma Of Wynne, Edward A. Zelinsky
Articles
The five-justice Wynne majority used that case to make a major statement about the dormant Commerce Clause. In many respects, Wynne is an enigma that perpetuates an inherent problem of the Courts dormant Commerce Clause doctrine: the Court declares some ill-defined taxes as unconstitutionally discriminatory because they encourage in-state investment, while other economically equivalent taxes and government programs that similarly encourage intrastate economic activity are apparently acceptable under the dormant Commerce Clause.
Wynne is thus more important than the immediate situation it addresses, and will have consequences beyond the immediate circumstances it addresses. A decision as enigmatic as it is …
The Case For Lgbt Equality: Reviving The Political Process Doctrine And Repurposing The Dormant Commerce Clause, Terri R. Day, Danielle Weatherby
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 wave …
How The Massachusetts Supreme Judicial Court Should Interpret Wynne, Michael S. Knoll, Ruth Mason
How The Massachusetts Supreme Judicial Court Should Interpret Wynne, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
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
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 how …
The Constitutional Dimensions Of Sports Franchise Takings: Lessons Learned From The Baltimore Colts, Travis Bullock
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
Comptroller V. Wynne: Internal Consistency, A National Marketplace, And Limits On State Sovereignty To Tax, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
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, is …
Federalism Cases In The October 2004 Term, Erwin Chemerinsky
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
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
Amicus Brief In Maryland Comptroller V. Wynne, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
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 tax …
Vol. 5 No. 1, Fall 2013; "Correcting" The Foreclosure Crisis?, Matthew Broucek
Vol. 5 No. 1, Fall 2013; "Correcting" The Foreclosure Crisis?, Matthew Broucek
Northern Illinois Law Review Supplement
Mortgage Resolution Partners, a venture capitalist firm based out of San Francisco, has been visiting with state and local governments across the country. Mortgage Resolution Partners proposes that eminent domain can, and should, be used to seize mortgages and refinance them in an attempt to correct the United States' foreclosure crisis. This article identifies and analyzes the policy issues and constitutional concerns that are inherent in the plan. The most critical constitutional concerns with the plan implicate the Takings Clause, the Contracts Clause, and the Dormant Commerce Clause of the United States Constitution.