Dormant Commerce Clause Jurisprudence Research Articles

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.

Brief of Constitutional Law Scholars in North Carolina v. Kaestner

Nominally, this case is about whether North Carolina may tax a trust’s undistributed net income because the trust’s beneficiary resided in North Carolina during the relevant tax years. But the broader problem is that many states seek to tax trust income based on the local residence of various persons or assets connected to the trust. The existence of multiple triggers for taxation raises a problem of overlapping jurisdiction that the Due Process Clause is ill-suited to address. For example, if a settlor in State W designates a trustee in state X, who holds assets in an account in state Y, for a beneficiary in State Z, four different states might seek to tax the trust’s income and might not provide offsetting credits. The Due Process Clause, as opposed to the Dormant Commerce Clause, is a poor fit for sorting out this regulatory overlap for at least three reasons. First, the Court’s due process jurisprudence is designed to identify when a given state may act in isolation, rather than when the overlapping authority of multiple states creates a risk of cumulative burdens. Second, current Dormant Commerce Clause jurisprudence provides robust tools for addressing the problem of cumulative burdens. Third, relying on the Dormant Commerce Clause rather than the Due Process Clause would preserve flexibility for Congress to provide comprehensive solutions if it identifies a problem arising from multistate taxation of trust income. In contrast, a ruling on Due Process grounds that North Carolina may not impose the tax at issue here, or that other states may not tax trusts in other circumstances, would tie Congress’s hands in the face of tax avoidance schemes that may undermine reasonable state interests.

Brief of Interested Law Professors As Amici Curiae Supporting Petitioner in Brohl v. Direct Marketing Association

Amici curiae are 14 professors of law who have devoted much of their teaching and research to the area of state taxes and the role of state tax policy in our federal system. The amici are concerned with the effect of this Court’s dormant Commerce Clause jurisprudence on the development of fair and efficient state tax systems. No decision of this Court has had more effect on state sales and use tax systems than Quill Corporation v. North Dakota. We believe the Tenth Circuit properly decided the case below. But if the Court decides to grant the Direct Marketing Association’s petition to review the issue of discrimination which it raises, we respectfully request that the Court also grant the conditional cross-petition filed by Executive Director Barbara J. Brohl of the Colorado Department of Revenue asking the Court to reconsider Quill. This brief sets forth the reasons for our support of that cross-petition.

When Do State Transmission Siting Laws Violate the Constitution?

Many state transmission line siting laws present constitutional problems under the dormant Commerce Clause, specifically statutes that bar out-of-state applicants from seeking to build multi-state energy infrastructure projects in a state or give automatic rights of first refusal to in-state applicants. Dormant Commerce Clause jurisprudence may require state regulators considering transmission line siting applications to consider benefits beyond their jurisdictional borders—particularly in instances where developers propose infrastructure projects to create regional (as opposed to state-specific) benefits in energy markets or where out-of-state developers propose to build interstate lines.

A Climate Change Lens on the Dormant Commerce Clause

Our goal here is two-fold: first, to show that a climate change lens can make us understand that some apparently state treatment of like products is in fact differential treatment of different products, and, second, that there is precedential basis for courts to adopting the climate change lens and hence adopt a more deferential posture toward state climate change initiatives. We are focused on two kinds of state initiatives. The first is, as in California’s low carbon fuel standard, when a state assigns a cost of carbon to a fuel based on life cycle greenhouse gas emissions, with the near inevitable result that otherwise identical fuels produced far away and out-of-state will have a higher assigned carbon cost than fuels produced in-state. The second is, as in a number of state Renewable Portfolio Standards, where a state requires or incentivizes the satisfaction of the RPS by renewable fuel production in the state rather than through sole reliance on imports. Viewed outside the climate change lens, both these situations involve discrimination against like products. Viewed through a climate change lens, they do not. The climate change lens – and whether courts choose to see through it – matters a great deal.We view this lens as having three aspects. First, the GHG and hence climate change impact of any product depends on the lifecycle emissions associated with the product. A state’s residents do not confront merely an ideological or philosophical problem in climate change. It is instead a tangible — and for some states existential — problem in terms of the economic and environmental impacts associated with such fundamental health and welfare issues as coastal flooding, drought, wildfires, and invasive species. A court should understand that the lifecycle emissions of a product directly implicates traditional state police power concerns and in that sense should be understood as an integral characteristic of the product. Thus, ethanol from Ohio is not the same product as ethanol from California. California’s use of the Ohio ethanol means more net GHG emissions and a greater likelihood of real, material climate change impacts in California that will have impacts on the material circumstances of the lives of Californians. We believe this part of the climate change lens finds support in, even flows from, the reasoning adopted by the Supreme Court in Massachusetts v. EPA.Second, energy produced in-state is not necessarily the same or a like product as energy produced elsewhere and then imported because the production itself may have consequences for the environment within the state and hence for the health and welfare of state residents. When a state requires or incentivizes the production of a non-polluting renewable source within a state to meet part of state energy needs, a corresponding amount of dirtier, polluting energy production within the state is much more likely to cease as a consequence. Thus, imported wind power is different, is an unlike product, to locally required or incentivized wind power because a characteristic of the latter, but not the former, is that former it delivers a reduction in local air pollutants and consequent reduction in harms associated with local air pollutants.Third, local energy is a different product seen from a climate change lens because it is more robust with respect to climate-change-related interferences with transport and transmission — interferences from such things as extreme weather. This part of the climate change lens one might call a climate change adaptation lens. What would it mean if courts were to adopt the climate change lens? It would not mean that automatically all climate change or other environmentally-oriented state legislation would be upheld where distinctions were made between in-state and out-of-state products. Instead, the lens would free up courts not to impose the near strict scrutiny of facially discriminatory state legislation that has dominated much Dormant Commerce Clause jurisprudence. It would allow the courts to engage in a more contextual, and more deferential but not toothless, review — a balancing test that courts routinely use to decide Dormant Commerce Clause cases where discrimination does not amount to simple economic protectionism.

Charitable Giving, Tax Expenditures, and the Fiscal Future of the European Union

This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence and does not provide a clear rule for distinguishing between the two, adding to the confusion of Member States and taxpayers. The Article then surveys the Supreme Court’s Dormant Commerce Clause jurisprudence, under which the Court analyzes discriminatory state spending provisions. The Article concludes that although both the Supreme Court and the ECJ prioritize formalism over economic equivalence, the Supreme Court’s approach to tax expenditures is more defensible than that of the ECJ due to the different federal structures of the two jurisdictions.

Discrimination and the Low Carbon Fuel Standard: A Proposal for a Better Dormant Commerce Clause

Over the past few decades the dormant Commerce Clause has often been used to invalidate state environmental laws that discriminate against out-of-state actors. Now it threatens California's groundbreaking Low Carbon Fuel Standard program. This article uses the California case to demonstrate the dysfunction in current dormant Commerce Clause jurisprudence, and proposes that rather than invalidate virtually all discriminatory laws, the dormant Commerce Clause should invalidate only laws with a protectionist motive.

What is Free Trade? The Real Issue Lurking Behind the Trade and Environment Debate

This article argues that a fundamental question, What is trade?, lurks behind the ongoing debate about the relationship between international law competing legal regimes. It also lurks behind much of the confusion in the Supreme Court's dormant commerce clause jurisprudence under the United States constitution, sometimes mentioned as a model for international law. Yet, the literature has remarkably little to say about trade's definition, although it contains volumes about the reasons for trade. This article explores three possible concepts of trade, from discrimination against foreign companies, from coercion, from restraint, i.e. laissez-faire, primarily in the context of environment disputes. Only defined as of discrimination offers a legitimate conception of that the World Trade Organization (WTO) can credibly administer. The misunderstandings between environmentalists traders reflect law's tendency to amalgamate the anti-discrimination, anti-coercion, laissez-faire concepts. Free traders tend to think of law as primarily aimed at policing discrimination, while environmentalists tend to think of it as aimed at laissez-faire, the least legitimate concept. The law provides some support for both views. Indeed, prominent environment cases combine holdings moving toward laissez-faire anti-coercion concepts with dicta disavowing any such move. Recognizing the conceptual question lurking behind and debates opens up the possibility of thinking about the debates as searches for an appropriate definition of trade. Until now, most scholarship on the subject has treated these debates as a search for the scope of permissible exceptions to trade, assuming (wrongly) that free trade has a simple agreed upon meaning. A concept of as from discrimination will only appear legitimate if the definition of discrimination is reasonably intelligible. The WTO has used a very ad hoc approach to discrimination. This article develops a concept of bright line discrimination to show that a more coherent approach is at least possible. Adoption of bright line discrimination would require some narrowing of the scope of in order to enhance its legitimacy. The search for an appropriate definition of is absolutely central to making progress in understanding and debates. This article seeks to spark a debate about this neglected question.

The Internet and the Dormant Commerce Clause

This paper challenges the conventional wisdom that the dormant commerce clause requires invalidation of most state regulation of the Internet. The paper argues that conventional wisdom is flawed in three respects: it rests on an impoverished understanding of the architecture of the Internet; it misreads dormant commerce clause jurisprudence; and it misunderstands the economics of state regulation of transborder transactions. The paper does not argue that all state regulation of Internet communications should be immune from dormant commerce clause scrutiny. Such a general conclusion would be inappropriate because different state raise different empirical and technical issues that remain unresolved. The paper aims, more modestly, to deflate the emerging conventional wisdom and to show that the dormant commerce clause, properly understood, leaves states with much more flexibility to regulate Internet transactions than is commonly thought. Along the way, the paper contributes to dormant commerce clause theory generally by bringing theoretical clarity to the extraterritoriality and inconsistent regulations prongs of dormant commerce clause jurisprudence.

The Internet and the Dormant Commerce Clause

This paper challenges the conventional wisdom that the dormant commerce clause requires invalidation of most state regulation of the Internet. The paper argues that conventional wisdom is flawed in three respects: it rests on an impoverished understanding of the architecture of the Internet; it misreads dormant commerce clause jurisprudence; and it misunderstands the economics of state regulation of transborder transactions. The paper does not argue that all state regulation of Internet communications should be immune from dormant commerce clause scrutiny. Such a general conclusion would be inappropriate because different state raise different empirical and technical issues that remain unresolved. The paper aims, more modestly, to deflate the emerging conventional wisdom and to show that the dormant commerce clause, properly understood, leaves states with much more flexibility to regulate Internet transactions than is commonly thought. Along the way, the paper contributes to dormant commerce clause theory generally by bringing theoretical clarity to the extraterritoriality and inconsistent regulations prongs of dormant commerce clause jurisprudence.

Formalism and Realism in Commerce Clause Jurisprudence

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly expanded federal power and prompted a crisis in Commerce Clause jurisprudence that was ultimately resolved by adoption of a political process approach to both affirmative and dormant Commerce Clause adjudication. The categories that had unified affirmative and dormant Commerce Clause jurisprudence were abandoned, decoupling the two lines of doctrine and rendering them no longer developmentally interdependent. The two lines went their separate ways, economic substantive due process disappeared, and the enterprise of interdoctrinal coordination that had held a vast body of constitutional law together was lost to history. We continue to study the development of these lines of doctrine in our Constitutional Law curricula, but we do so in an ahistorical manner that obscures understanding. We study the development of doctrine topically rather than synchronically, wresting lines of doctrine from the related doctrinal contexts in which they developed. Such decontextualization, in this case as in others, is a surefire method of making the entire undertaking look preposterous. Looking back at this jurisprudence from the vantage and through the categories of our contemporary constitutional sensibility, it becomes difficult to understand how any intelligent person could ever have taken the enterprise seriously. Yet a very great many clearly did. This piece seeks to understand why and how that could have been, while at the same time explaining why the enterprise unraveled in the way it did when it did. What emerges, I hope, is a new way of thinking and teaching about constitutional development in this critical period.

Formalism and Realism in Commerce Clause Jurisprudence

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly expanded federal power and prompted a crisis in Commerce Clause jurisprudence that was ultimately resolved by adoption of a political process approach to both affirmative and dormant Commerce Clause adjudication. The categories that had unified affirmative and dormant Commerce Clause jurisprudence were abandoned, decoupling the two lines of doctrine and rendering them no longer developmentally interdependent. The two lines went their separate ways, economic substantive due process disappeared, and the enterprise of interdoctrinal coordination that had held a vast body of constitutional law together was lost to history. We continue to study the development of these lines of doctrine in our Constitutional Law curricula, but we do so in an ahistorical manner that obscures understanding. We study the development of doctrine topically rather than synchronically, wresting lines of doctrine from the related doctrinal contexts in which they developed. Such decontextualization, in this case as in others, is a surefire method of making the entire undertaking look preposterous. Looking back at this jurisprudence from the vantage and through the categories of our contemporary constitutional sensibility, it becomes difficult to understand how any intelligent person could ever have taken the enterprise seriously. Yet a very great many clearly did. This piece seeks to understand why and how that could have been, while at the same time explaining why the enterprise unraveled in the way it did when it did. What emerges, I hope, is a new way of thinking and teaching about constitutional development in this critical period.

Untangling the Market-Participant Exemption to the Dormant Commerce Clause

There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing the law of criminal procedure, and cut down federal judicial authority through development of the abstention doctrine and state-favoring constructions of the eleventh amendment. This article focuses on another important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause.The core of the Court's dormant commerce clause jurisprudence is well-settled: The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method... Over the past two decades, however, the Court has lifted this prohibition when states act as market participants rather than as market regulators. Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing services, sells cement, purchases goods, or hires workers.This article explores the market-participant Part I traces the rule's evolution and shows how it has proven less rigid than some initially feared. Part II probes the roots of the rule by challenging justifications for it suggested by other observers. Part III offers an alternative theory of the market-participant doctrine, arguing in particular that it rests on a cluster of rationales that properly have led the Court to uphold marketplace preferences as the general rule. Part IV builds on Part III to advance a new, four-part framework for evaluating market-participant issues. Part V then uses that framework to apply the market-participant rule to nine key categories of cases. This article rejects an all-or-nothing approach to these cases, advocating instead a sensitive application of the market-participant rule in light of its underlying justifications.Many observers have attacked the market-participant this article seeks to show that these challenges are misplaced. Court's market-participation decisions reflect a sound, if complex, accommodation of competing constitutional values. This article lays bare those values and details the course they suggest courts should follow in deciding future market-participation cases.