Open Access. Powered by Scholars. Published by Universities.®
- Publication Type
Articles 1 - 6 of 6
Full-Text Articles in Law
Dormancy, Garrick Pursley
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 exercise of …
Dormancy, Garrick B. Pursley
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 exercise of …
Dormancy, Garrick B. Pursley
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 exercise of …
Dormancy, Garrick B. Pursley
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 exercise of …
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
Journal Articles
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 …
Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson
Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson
Faculty Scholarship
This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …