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Shanske on Recent Dormant Commerce Clause Jurisprudence

By Lawrence Solum

Darien Shanske (University of California, San Francisco - Hastings College of the Law) has posted The Supreme Court and the New Old Public Finance: A New Old Defense of the Court?s Recent Dormant Commerce Clause Jurisprudence on SSRN. Here is the abstract:

The Supreme Court?s decision in United Haulers has already earned a fair share of opprobrium. At the very best, the decision is hard to apply and at worst it is an unprincipled morass. This Article acknowledges the weaknesses of the articulated arguments in United Haulers - especially in light of the Court?s next Dormant Commerce Clause decision in Kentucky v. Davis. Nevertheless, if one focuses on United Haulers, a clear, reasonable and applicable rationale presents itself ? and one the Court had already utilized in the related context of antitrust. In United Haulers, the respondent waste management authority successfully made the argument that, at least for purposes of constitutional review, the waste management market exhibited the features of a natural monopoly. Speaking roughly, a natural monopoly can be said to characterize a market when, because of high fixed costs, only one company can efficiently service a particular market. Because the Court concluded (implicitly) that there was a natural monopoly as to the provision of waste management services, there was no competition, interstate or otherwise, in this market for the Dormant Commerce Clause to protect. This Article opines that the Court?s confused meanderings to this (successful) resolution were caused by the fact that waste management presented the Court with the hard case of a changing industry that behaved more and more like a natural monopoly, confounding judicial doctrines that are typically much more static.

Full post as published by Legal Theory Blog on September 22, 2010 (boomark / email).