Dormant Commerce Clause Doctrine Research Articles

Bounded Extraterritoriality

Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is often conflated—nexus and “undue burdens” on interstate commerce. We also propose several approaches to deciding extraterritoriality cases.

Adopting a Low Carbon Fuel Standard: Pruning Discriminatory Factors From California’s Regulatory Template

As part of a plan to curtail climate change, states with executive targets of net-zero GHG by 2050 necessitate using a proven approach to reduce GHG from the transportation sector, which nationally accounts for 28% of GHG emissions—more than any other sector. Any substantial reduction in total carbon dioxide (CO2) emissions will necessarily address this fossil fuel reliant sector. An approach modeled after the California Low Carbon Fuel Standard (LCFS), as part of a comprehensive climate change legislation, is indispensable to achieving a meaningful GHG reduction and, thus, should be pursued. Although set out as a model regulatory template, California’s LCFS has not been immune to legal challenges since its inception, and this Comment identifies certain impermissible aspects of this market-based regulation that can be adjusted to bring it in compliance with Dormant Commerce Clause doctrine and the letter of the U.S. Constitution.

American Common Market Redux

The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and supporting amici curiae did not ask it to review the issue. The Doctrine was established by 19th Century Supreme Court decisions that set the legal framework for the American common market—until justices advocating the Doctrine’s abolition seemed close to a majority early in the present Century. The Tennessee Wine opinion eliminated that threat for the foreseeable future.

The Camel’s Nose Under the Tent: Next Steps for State-Based Alcohol Policy After Tennessee Wine and Spirits

Following the repeal of nationwide Prohibition with the ratification of the Twenty-first Amendment on December 5, 1933, states enacted broad controls on the manufacturing, distribution, and sale of alcoholic beverages. These state-based alcohol policies were adopted pursuant to § 2 of the Twenty-first Amendment, which provides that “[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Initially, courts construed this provision broadly to confer upon states the authority to exercise “large discretion” in protecting their citizens against the evil incident to intoxicants. States could prohibit any importation of alcoholic beverages which did not comply with conditions prescribed by the states “unfettered by the Commerce Clause.” But state-based alcohol policies must now overcome two additional considerations. First, the U.S. Supreme Court has recognized that § 2 of the Twenty-first Amendment does not supersede all previously adopted positive constitutional provisions. Second, particular attention must now also be given to the negative, or dormant, Commerce Clause. In fact, a trilogy of recent dormant Commerce Clause cases have called into question the states’ longstanding prerogative to regulate the importation of intoxicating liquors for delivery or use within their borders. The first was Bacchus Imports, Ltd. v. Dias, in which the Court held that Hawaii’s liquor-tax exemption for certain locally-produced alcoholic beverages violated the Commerce Clause. The second was Granholm v. Heald, which struck down wine-importation laws in Michigan and New York, finding that they discriminated against interstate commerce in violation of the Commerce Clause, and that such discrimination was neither authorized nor permitted by the Twenty-first Amendment. The third was Tennessee Wine & Spirits Retailers Association v. Thomas, which held that Tennessee’s two-year durational residency requirement for retail liquor store license applicants violated the Commerce Clause because it discriminated against nonresidents and was not justified as a public health or safety measure. Part II of this paper considers the history of state-based regulation of alcoholic beverages within the context of the states’ agreement to ratify the Twenty-first Amendment. It also provides a brief overview of the states’ regulation of alcoholic beverages immediately after the Amendment’s adoption. Finally, it considers the impact of other constitutional provisions. Part III discusses the Court’s initial interpretations of the Twenty-first Amendment. Part IV looks at the Court’s dormant Commerce Clause doctrine as it has been applied to state-based alcohol policies adopted pursuant to § 2. It analyzes Bacchus (liquor taxes), Granholm (imported wine), and Tennessee Wine and Spirits (durational-residency requirements). Part V considers Tennessee Wine’s impact on next steps for state-based regulation of alcoholic beverages. In particular, this part studies the decision’s impact on other states’ durational-residency requirements, direct-to-consumer shipping, and whether a national market for alcoholic beverages is inevitable. This section will also provide recommendations for state legislators, regulators, and the alcoholic beverage industry itself in the wake of the Tennessee Wine decision.

Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause

This Note argues that current state postmortem right of publicity statutes are unconstitutional under the dormant Commerce Clause. The dormant Commerce Clause doctrine is an implicit restriction within the Commerce Clause that prohibits states from regulating interstate commerce. The current patchwork of state postmortem right of publicity statutes violates the dormant Commerce Clause in two different ways. First, postmortem right of publicity laws containing “all comers” provisions like those in Indiana, Washington, and the proposed bill in New York violate the dormant Commerce Clause because they can be applied extraterritorially to the estates of nonresident individuals. By allowing non-resident estates to bring right of publicity actions, these laws can be used to stifle commerce occurring wholly outside of the state—precisely the sort of burden the dormant Commerce Clause prohibits. Second, even those postmortem right of publicity laws that do not contain “all comers” provisions can violate the dormant Commerce Clause when applied to certain businesses operating without distinct geographic boundaries, such as websites. Courts have struck down state laws regulating website content in the past under the dormant Commerce Clause, reasoning that such laws create de facto national regulation and impose the policy preferences of one state on other states in which a particular website can be accessed. The same principle can be applied to state postmortem right of publicity laws, which in effect require website operators using the likenesses of deceased individuals to tailor their business practices to the most expansive postmortem right of publicity provisions. In this way, state postmortem right of publicity statutes impose significant costs on Internet content providers by adding another group of right holders with which those content providers must negotiate. The desire to protect individuals from commercial exploitation after death—especially beloved celebrities like Prince—is understandable. The dormant Commerce Clause, however, prohibits one state from designing the means by which that protection is afforded across the entire country. This Note proposes that the only means of remedying the constitutional issue posed by the current patchwork of postmortem right of publicity statutes is through federal action. Congress must either create a federal right of publicity or explicitly authorize states to create their own right of publicity laws. Part I traces the origination and evolution of state postmortem right of publicity laws over the past forty years, concluding with New York’s recently proposed bill. Part II examines current dormant Commerce Clause jurisprudence and how the dormant Commerce Clause has been applied to invalidate extraterritorial state laws and regulations of the Internet. Using the recently proposed bill in New York as a case study, Part III shows that: (1) postmortem right of publicity laws with “all comers” provisions are facially unconstitutional under the dormant Commerce Clause; and (2) other postmortem right of publicity laws are unconstitutional as applied to Internet businesses. Part III then concludes by suggesting that congressional consideration of the right of publicity is necessary to alleviate dormant Commerce Clause violations created by current state right of publicity statutes.

Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause

This Note argues that current state postmortem right of publicity statutes are unconstitutional under the dormant Commerce Clause. The dormant Commerce Clause doctrine is an implicit restriction within the Commerce Clause that prohibits states from regulating interstate commerce. The current patchwork of state postmortem right of publicity statutes violate the dormant Commerce Clause in two different ways. First, postmortem right of publicity laws containing “all comers” provisions like those in Indiana, Washington, and the proposed bill in New York violate the dormant Commerce Clause because they can be applied extraterritorially to the estates of non-resident individuals. By allowing non-resident estates to bring right of publicity actions, these laws can be used to stifle commerce occurring wholly outside the state — precisely the sort of burden the dormant Commerce Clause prohibits. Second, even those postmortem right of publicity laws that do not contain “all comers” provisions can violate the dormant Commerce Clause when applied to certain businesses operating without distinct geographic boundaries, such as websites. Courts have struck down state laws regulating website content in the past under the dormant Commerce Clause, reasoning that such laws create de facto national regulation and impose the policy preferences of one state on other states in which a particular website can be accessed. The same principle can be applied to state postmortem right of publicity laws, which in effect require website operators using the likenesses of deceased individuals to tailor their business practices to the most expansive postmortem right of publicity provisions. In this way, state postmortem right of publicity statutes impose significant costs on Internet content providers by adding another group of rightsholders with which those content providers must negotiate. The desire to protect individuals from commercial exploitation after death — especially beloved celebrities like Prince — is understandable. The dormant Commerce Clause, however, prohibits one state from designing the means by which that protection is afforded across the entire country. This Note proposes that the only means of remedying the constitutional issue posed by the current patchwork of postmortem right of publicity statutes is through federal action. Congress must either create a federal right of publicity or explicitly authorize states to create their own right of publicity laws.

One Toke Over the (State) Line: Constitutional Restrictions on State 'Pot Tourism' Restrictions

Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing” — visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally reselling the pot. Colorado’s legislature adopted the Task Force’s recommendation in House Bill 1317, recently signed into law by Colorado’s governor, which established the regulatory framework for the legal sale of marijuana. Among its provisions is a quarter-ounce purchase limit for nonresidents.Treating purchasers of a legal product differently based on state residency implicates constitutional doctrines that limit a state’s ability to discriminate against nonresidents. This essay is the first to examine the Colorado recommendation in light of two of those doctrines: the Privileges and Immunities Clause of Article IV, section 2 and the dormant Commerce Clause doctrine (DCCD). At first glance, Colorado’s facially discriminatory law appears to be almost certainly unconstitutional under current doctrine. I will argue in the remainder of this essay, however, that Colorado can put forth compelling arguments that its law passes constitutional muster, especially in light of the recent Department of Justice memorandum clarifying its enforcement priorities in light of state legalization. The essay also suggests a role the federal government could play to remove considerable, though not all, constitutional doubt from state regulations of pot tourism.

Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem

Among the various branches of the dormant Commerce Clause doctrine (“DCCD”) — the judge-made rules grounded in the Constitution’s grant of power over interstate commerce to Congress — is that which prohibits so-called “extraterritorial” state legislation. As recently as 1989, the Supreme Court held that the DCCD “precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State...” That broad articulation of the principle, however, represented extraterritoriality’s high tide. The Court has since retreated; in 2003 it seemed to limit the extraterritoriality principle dramatically, rejecting arguments that a Maine prescription drug subsidy program actually attempted to fix prices outside the state. At this point, the extraterritoriality principle looks to be quite moribund. This essay, then, is an autopsy of sorts. Assuming, as I do, that extraterritoriality — at least the strong form articulated by the Court in the 1980s — is dead, and unlikely to be revived by the current Court, its passing offers an opportunity to examine the lifecycle of constitutional doctrine, from birth to death. In Part I, I describe extraterritoriality’s early emergence. In its early form, it was not exclusively yoked to the DCCD. The Due Process Clause of the Fourteenth Amendment was also cited as a source, as were less clause-bound structural principles. Beginning in the early twentieth century, however, the doctrine became closely linked with the DCCD; it emerged as a robust branch of that doctrine in the 1980s. This association is described in Part II. Its decline is detailed in Part III; in Part IV, I return to the question of what “killed” extraterritoriality. I conclude that extraterritoriality’s demise was likely overdetermined. Factors contributing to its demise include what Kermit Roosevelt calls a “loss of fit” between the doctrine and the purposes of the DCCD generally, as well as the doctrine’s calcification; the lack of a limiting principle that would prevent it from curtailing legitimate state regulatory power; the Court’s decision to locate limits on punitive damage awards in the Due Process Clause after flirting with the notion that those limits grew out of DCCD extraterritoriality; and shift in attitude on the Court itself from robust enforcement of the DCCD to a desire to limit the doctrine. In Part V, I consider the impact of extraterritoriality’s demise on a related doctrine: the Court’s periodic invalidation of state laws that presented the problem of “inconsistent state regulations.” A brief conclusion follows.

The Dormant Commerce Clause and California's Low Carbon Fuel Standard

California’s Low Carbon Fuel Standard (LCFS), enacted as part of the State’s pioneering Global Warming Solutions Act (AB 32), purports to regulate the amount of carbon emissions associated with fuels consumed in the state. Part of this scheme involves assigning numeric scores to vehicle fuels reflecting the amount of carbon emissions associated with their production, transportation, and use. The scores are part of a “cap-and-trade” scheme to lower the state’s total amount of carbon emissions associated with fuel use. Out-of-state industry groups brought a challenge in the United States District Court for the Eastern District of California, alleging that the LCFS violated the “dormant Commerce Clause” of the United States Constitution. The United States District Court for the Eastern District of California agreed with the Plaintiffs, and issued a preliminary injunction. On October 16, 2013, the Ninth Circuit reversed and remanded. This Note describes the background of the dormant Commerce Clause and its application in previous environmental regulations. It then analyzes the arguments on both sides of the challenge to California’s LCFS, and suggests a course of action for California and other states going forward to comply with the Constitution in this developing area of law. Finally, this Note discusses the application of dormant Commerce Clause doctrine to the scenario of global climate change, and the relevance of global warming as a critical issue that states can be allowed to regulate, especially when the federal government has not.

Laws to Require Purchase of Locally Grown Food and Constitutional Limits on State and Local Government: Suggestions for Policymakers and Advocates

Locally grown food laws that require, or provide incentives for, purchasing food grown within a defined geographic boundary are vulnerable to challenge under the U.S. Constitution’s restrictions on local and state laws that discriminate against goods and commerce from other states, known as the dormant Commerce Clause doctrine (DCCD). Policymakers and advocates for local food should understand the impact of these restrictions and should take advantage of an important exception to these restrictions when drafting policies to encourage purchase of locally grown food. In

All Things in Proportion? American Rights Doctrine and the Problem of Balancing

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 constitutional judges in other systems use PA, assesses the costs and benefits of adopting it, and contrasts proportionality with American strict scrutiny. Part III recovers the foundations of proportionality in American rights review, focusing on two critical junctures: (1) the emergence of a version of PA in Dormant Commerce Clause doctrine in the late nineteenth century, the core of which persists today; and (2) the consolidation of the strict scrutiny framework in the mid-twentieth century. Part IV demonstrates that the “tiered review” regime chronically produces pathologies that have weakened rights protection in the United States, and undermined the coherence of the Supreme Court’s rights jurisprudence. PA, while not a cure-all for the challenges facing rights-protecting courts, avoids these pathologies by providing a relatively systematic, transparent, and trans-substantive doctrinal structure for balancing. We also show that all three levels of review - rational basis, intermediate review, and strict scrutiny - have, at various points in their evolution, contained core elements of proportionality. In Part V, we argue Supreme Court can and should develop a home-grown version of PA, based on its existing case law and American constitutional traditions and values, and we respond to objections to the argument.

The False Modesty of Department of Revenue v. Davis: Disrupting the Dormant Commerce Clause Through the Traditional Public Function Doctrine

In Department of Revenue v. Davis, the United States Supreme Court held that the Kentucky income tax statute and, by extension, other states' similar laws do not discriminate for purposes of the dormant Commerce Clause. By explicitly deferring to established practices and expectations, Davis is, at first blush, the kind of modest, pragmatic decision advocated today by many, including, most prominently, Chief Justice Roberts. However, on a second look, Davis has broad implications. Indeed, Davis disrupts the Court's preexisting dormant Commerce Clause doctrine by confirming the Roberts Court's use of the category to immunize government activity from dormant Commerce Clause scrutiny. Over two decades ago, in Garcia v. San Antonio Metropolitan Transit Authority, the Supreme Court rejected for Commerce Clause purposes the doctrine as unworkable. The Garcia Court's criticism remains persuasive today: There is no principled basis for determining when a government function is old enough to be or public enough to be public. Every government activity is traditional or becomes so. Given the breadth (indeed, the indeterminacy) of the category, that category, as affirmed in Davis, encompasses and gives dormant Commerce Clause protection to all governmental activities including tax-based subsidies the Court has previously stricken as impermissibly discriminating under the dormant Commerce Clause. As these previously stricken activities constitute functions, Davis logically protects them from dormant Commerce Clause scrutiny.

Balancing and Proportionality in US Commerce Clause Cases

The US dormant commerce clause doctrine allows for a true balancing test between legitimate state objectives and the burdens placed upon commerce.However, the doctrine relies strongly on ‘pre–screening’ facts to determine whether or not a law is discriminatory. The difference between a law that is de facto discriminatory and one which is ‘even handed’ but incidentally burdens commerce is a fine line, and it is not clear in the US practice that the courts have been able to give the doctrine a consistent effect over time.

The Mismatch between Public Nuisance Law and Global Warming

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

Federalism, the Rehnquist Court, and the Modern Republican Party

Most scholars agree that federalism was central to the Rehnquist Court's constitutional agenda. But there is a part of the federalism story that has been largely overlooked: the Court's decisions involving the structural constraints on state governments, the most significant of which are preemption and the dormant Commerce Clause. This article makes two empirical claims about the Rehnquist Court's federalism jurisprudence, one descriptive and one interpretive. The descriptive claim is that that the Court's overall approach to federalism was more complicated than many have assumed, and it was not necessarily friendly to the states. To support this contention, I present an empirical study. Part of the study is qualitative, analyzing the justices' modest alterations to preemption and dormant Commerce Clause doctrine during Rehnquist's tenure as chief justice. The other part is quantitative, offering a statistical analysis of the justices' voting patterns in decisions handed between October 1991 and June 2005, the fifteen terms that Rehnquist, O'Connor, Scalia, Kennedy, and Thomas served together. My interpretive claim is that these apparently inconsistent attitudes towards state autonomy are quite understandable once we consider the broader historical and political context. In fine, the Rehnquist Court's federalism decisions reflected the values of the post-Watergate Republican Party, the political coalition that empowered and sustained a majority of the Court's justices. The modern GOP has generally endorsed the abstract principle of devolving greater power to state governments, and particularly the judicial enforcement of the limits on Congress's enumerated powers. But when the principle of state policymaking autonomy has clashed with the goal of reducing economic regulation, Republicans have repeatedly opted to reduce regulation at the expense of state authority. The Rehnquist Court's federalism jurisprudence largely mirrored these priorities.

Is the Dormant Commerce Clause Expendable? A Response to Edward Zelinsky

Professor Edward Zelinsky has proposed that courts abandon the dormant Commerce Clause doctrine's (DCCD) bar against state laws, at least in cases involving state taxes. He argues that the anti-discrimination principle is incoherent at its core because the case law treats subsidies, which have economically identical effects to taxes and tax credits, differently. More generally he argues that it makes no sense to describe one set of taxes as discriminatory and another set as non-discriminatory when all taxes differentiate between in-state and out-of-state taxpayers - between those subject to the taxing jurisdiction of the state and those that are not. If Professor Zelinsky is correct, then it seems that the anti-discrimination principle should be discarded in non-tax cases as well. In fact, Professor Zelinsky seems to recognize where the logic of his critique leads: to the elimination of the DCCD altogether. But this radical change does not worry him; he assures us that the DCCD is no longer necessary. Political safeguards exist that render the DCCD obsolete, he argues. In this essay, I take issue with both Professor Zelinsky's core argument - that the antidiscrimination principle is incoherent - and his assurances that political safeguards could substitute for judicial enforcement of the DCCD. Part I outlines Professor Zelinsky's main argument against the anti-discrimination principle. Part II explains why Professor Zelinsky's critique and his solution is not a modest one, but rather, taken seriously, means the end of the DCCD itself. Part III defends the anti-discrimination principle against charges of inconsistency and incoherence and argues that political safeguards are insufficient to warrant discarding the principle or the DCCD. A brief conclusion follows.

The American Common Market

Through various provisions, most notably the dormant Commerce Clause, the United States Constitution commits the United States to a common market system. The nature and scope of the American common market, however, has been incompletely - and, at times, inconsistently - described by the Supreme Court, which has led to widespread criticism of the Court's use of the dormant Commerce Clause to limit state regulatory and tax authority. This article provides an original, normative justification for the dormant Commerce Clause and a comprehensive framework for reviewing state regulatory and tax measures that impact interstate trade. As I argue, the central constitutional commitment is one of deliberative equality - that is, states and localities may regulate or tax interstate trade if and only if the state or local government gives equal regard to similarly situated in-state and out-of-state interests burdened by the regulation or tax. Deliberative equality best accommodates the competing values of state regulatory autonomy and open market access by requiring states, to the extent they wish to regulate interstate commerce, to adopt the same nation-regarding attitude the Framers expected of Congress. Moreover, not only does deliberative equality provide a compelling normative foundation for the American common market, it best explains and accounts for the Court's two-tier dormant Commerce Clause doctrine, which prohibits protectionism and requires a reasonable degree of regulatory and tax harmonization.

Retail Store Size-Cap Ordinances and the Dormant Commerce Clause Doctrine

In an effort to control suburban sprawl, many local land use planners have targeted large, big box retailers - Wal-Mart, for example - alleged to be catalysts for sprawl. Size-capping ordinances limiting the amount of square feet that stores may occupy have become a popular alternative to complex, expensive smart-growth regimes. However, we argue that many of these size-cap ordinances are vulnerable to dormant Commerce Clause doctrine (DCCD) challenges because, though facially-neutral, they are passed with either an avowed protectionist purpose (protecting local retailers from competition) or discriminate against out-of-state retailers in their effects. The following essay furnishes evidence for this assertion, as well as providing tentative answers to two vexing doctrinal questions that the Supreme Court has never explicitly answered in its DCCD jurisprudence. First, how are courts to tease out a protectionist purpose? Second, which effects count as discriminatory under the DCCD?

Confederation-Era Discrimination Against Interstate Commerce and the Legitimacy of the Dormant Commerce Clause Doctrine

It is an article of faith among critics of the dormant Commerce Clause doctrine (DCCD) that it is utterly lacking in textual or historical support. Critics argue that (1) the doctrine has no textual foundation; (2) there is no indication that the Framers intended the Court to read into the positive grant of power to Congress any implicit, judicially-enforceable restrictions on states; and (3) if indeed such restrictions were intended, they were not widely understood to be there; for if the public were to have had such an understanding it would have revolted against such a bold restriction on state power. Some critics have been so bold as to suggest that the doctrine's provenance is so questionable that the Supreme Court ought to abandon it once and for all. An even stronger version of this argument tracks a long-running dispute among historians regarding the degree to which states actually discriminated against one another during the Confederation Period. Revisionist historians denied that any appreciable discrimination took place; and asserted that states were actually cooperating with one another, contrary to the standard account holding that a shooting war would have erupted from various commercial disputes among the new states. Strong critics of the DCCD argue that this historical evidence shows the DCCD to be nothing less than a constitutional fraud. In this work, I will demonstrate (1) that fears of present and future disputes among states over interstate commerce occupied the minds of the Framers who saw the need for locating the power to regulate interstate commerce in Congress; (2) that this discrimination was not the product of the fevered imagination of nationalist bent on reining in the states, but that it really existed, and showed no signs of abating on the eve of the Philadelphia Convention; (3) that the abuses of the Confederation Era were specifically addressed in the text of the Constitution; and (4) that the text of the Constitution and the history surrounding its adoption furnishes an ample textual and historical basis for much of the DCCD as it has developed.

A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine

While the commerce clause neither mentions federal courts nor expressly prohibits the exercise of state regulatory powers that might operate concurrently with Congressional commerce powers, the Supreme Court has long used the dormant commerce clause doctrine to limit the power of states to regulate across a diverse array of subject areas in the absence of federal legislation. Commentators have criticized the Court less for creating the doctrine than for applying it in a seemingly inconsistent, or even haphazard, way. Past commentators have recognized that a game theoretical model, the prisoners' dilemma, can be used to explain the role of the dormant commerce clause doctrine in promoting cooperation among states by inhibiting a regime of mutual defection. This model, however, provides at best a partial account of existing dormant commerce clause doctrine, and sometimes seems to run directly counter to actual case results. The difficulty is not the power of game theory to provide a positive account of the cases or to provide the dormant commerce clause doctrine with a meaningful normative foundation. Rather, the problem has been the limited choice of models drawn from game theory to explain the conditions in which states rationally elect to avoid mutually beneficial cooperative strategies with other states. Professor Stearns shows how a state might avoid cooperation in a situation not captured in the prisoners' dilemma account to disrupt a multiple Nash equilibrium game, thus producing an undesirable mixed strategy equilibrium in place of two or more available pro-commerce, Nash equilibrium outcomes. At the same time, the defecting state secures a rent that only became available as a consequence of the Nash equilibrium, pro-commerce strategies of surrounding states, and that is closely analogous to quasi rents described in the literature on relational contracting. The combined game theoretical analysis, drawing upon the prisoners' dilemma and multiple Nash equilibrium games, not only explains several of the most criticized features of the dormant commerce clause and several related doctrines, but also underscores the proper normative relationship between the dormant commerce clause doctrine and various forms of state law rent seeking.