Summer 2011

The Supreme Court and the New Old Public Finance: A New Old Defense of the Court's Recent Dormant Commerce Clause Jurisprudence

Articles

The Supreme Court and the New Old Public Finance: A New Old Defense of the Court's Recent Dormant Commerce Clause Jurisprudence

This Article is both descriptive and normative. On the one hand, it describes the Supreme Court’s Dormant Commerce decisions as reaching towards the natural monopoly-inspired reasoning discussed herein. But the author admits that the Court has been less than pellucid in explaining this reasoning and so the Court should explicitly adopt this Article’s analysis. In the meantime, practitioners should avail themselves of this Article’s reasoning because, even if the Court never adopts this reasoning explicitly, this reasoning is to be found throughout the Court’s precedents and these cases are therefore available to justify state and local government programs. That is, a local attorney need not rely on this Article’s interpretation of United Haulers, but can ground herself in a natural monopoly line of cases that remains good law, a line of cases to which United Haulers belongs. In arriving at its proposed approach, this Article brings economic analysis and antitrust law to bear on traditional Dormant Commerce Clause doctrine. Accordingly, the author introduces his argument in terms of traditional Dormant Commerce Clause doctrine, economics, and antitrust law.

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