Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 8 of 8
Full-Text Articles in Law
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 …
Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger
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 Pike …
Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan
Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan
Michigan Law Review
The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …
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 Dormant Commerce Clause And State-Mandated Preference Laws In Public Contracting: Developing A More Substantive Application Of The Market-Participant Exception, Benjamin C. Bair
Michigan Law Review
This Note argues that the current focus on the relationship between states and their local governments as the key determinant of the constitutional validity of state-mandated preference laws is flawed. Instead, a court considering the validity of a state-mandated preference law should uphold such a law only if it distributes the benefits of state expenditures to state residents and does not excessively burden interstate commerce.
The Dormant Commerce Clause And State-Mandated Preference Laws In Public Contracting: Developing A More Substantive Application Of The Market-Participant Exception, Benjamin C. Bair
Michigan Law Review
This Note argues that the current focus on the relationship between states and their local governments as the key determinant of the constitutional validity of state-mandated preference laws is flawed. Instead, a court considering the validity of a state-mandated preference law should uphold such a law only if it distributes the benefits of state expenditures to state residents and does not excessively burden interstate commerce.
State Regulation Of Commerce (Update), Donald H. Regan
State Regulation Of Commerce (Update), Donald H. Regan
Book Chapters
In the period covered by this supplementary article, the Supreme Court has decided a case or two a year on state regulation of commerce. Considered individually, none of the cases through mid-1989 seems destined to become a landmark in DORMANT COMMERCE CLAUSE doctrin. Collectively, however, the cases may indicate a decreasing emphasis on "balencing" and an increasing focus on preventing states from intentionally discriminating against out-of-state interests.
Territoriality And The Perils Of Formalism, Mark P. Gergen
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 …