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AndrewCasciniFirstPaper 7 - 12 Apr 2010 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | A Distinction Without a Substance: The Market Participation Exception | | | In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of abandoned cars littered on the sides of the roads by choosing to buy in-state junked cars and in-state junk processing services at higher prices and with more lenient documentation standards. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. | |
>
> | Why don't you link the
case? This is the web. | | | Limitation
Yet market participation was held to have its limits. Eight years later in Central Timber Development v. Wunnicke, the Court ruled that states, while enacting legislation to enable market participation, must not “impose conditions, whether by statute, regulation, or contract that have a substantial regulatory effect outside the particular market.” This restriction marked the “limit of the market-participant doctrine.” | |
>
> | This is a misreading of
the case, which you don't link. In Wunnicke, the Supreme Court did
not issue an opinion on the dormant Commerce Clause issues. Justice
Marshall did not participate, and the sections of Justice White's
opinion reaching that issue have only four votes. On those points,
there's no holding below and no law in the Supreme Court. What the
Court agreed on was the rejection of the Court of Appeals "implied
approval" theory, only.
| | | The Takeaway
The dormant commerce power and the market participation exception, working together, appear to flesh out a cohesive doctrine. When states pass legislation that affects interstate commerce, that legislation is subject to Constitutional review. If it is found to “regulate” the market, it is to be struck down pursuant to dormant commerce clause doctrine. If, however, the legislation merely enables the state to “participate” in the market, it is acceptable. | | | Participation versus regulation – a tidy verbal distinction indeed! The word “participate” has a flavor of passivity. If I run in a race and am awarded a medal for being a “participant,” the strong implication is that I didn’t really affect the outcome in any meaningful way. The word “regulate,” however, has a more active nature. To regulate is to create changes; it implies control and agency. If we accept these notions, the distinct treatment of market participation as opposed to market regulation seems well in step with dormant commerce clause doctrine as a whole, for it is the domain of the federal government to make changes in the realm of interstate commerce and not the states. But how do these categories of behavior actually differ in practice? Directing attention away from the transcendental legal terminology and towards the actual economic effects reveals a categorical breakdown. | |
>
> | Only if you pay no
attention to the fact that "market" is a term of art, not a general
reference to the existence of markets for goods and services in which
states participate. If one were going to claim that Wunnicke
established anything on this point, which it did not, the proposition
it established is that regulatory consequences in markets other than
the one in which the State acts as participant are still subject to
dormant Commerce Clause analysis. Hence, on the facts in Wunnicke,
as Justice White's plurality opinion states, the participation rules
the State imposes on itself in the timber market have regulatory
consequences in a different market, the market for timber processing
services.
| | | Two Terms, One Effect
Imagine that a state decided to pass a law dictating that all state departmental offices may only purchase assets from companies or individuals who had not violated the National Labor Relations Act. Would this be a “regulatory” decision – Constitutionally impermissible – or a simple act of “market participation?” On the one hand, the state can make a claim that it is simply participating in the market as any other economic actor could. Perhaps the state has acknowledged that its employees are happier using products from NLRA-compliant manufacturers which boosts their productivity, or that products manufactured by NLRA-compliant industries tend to be of higher quality. Either rationale would seem an acceptable exercise of market participation for an individual. On the other hand, the legislation could be regarded as an attempt to regulate the market by forcing industries across the nation to comply with the NLRA or lose their presumably lucrative asset supply contracts with the state. The Court, in Wisconsin Dept. of Labor Relations v Gould, deemed the legislation to be an overreaching attempt to regulate commerce, and struck it down. Suppose, however, that the Wisconsin legislature had never passed the offending statute but had still bought assets from the same manufacturers that it had turned to as a result of the ban on NLRA violators - perhaps because these companies offered their goods at the lowest price. Such a decision would doubtlessly be deemed an exercise in market participation, but the economic effect would have been precisely the same. | |
>
> | Here too, you have
misstated the situation in
Wisconsin Department of Industry, Labor, and Human Relations v. Gould,
which you don't link to or name
correctly. Here, the Court found the Wisconsin statute explicitly
preempted by the NLRA. The Court rejects application of a standard
appropriate to situations of Congressional silence.
| | | Participation as a Label | |
<
< | If it is accepted that the latter hypothetical would be deemed mere market participation, two possible conclusions emerge. The first is that the Court simply decided Gould incorrectly. While such a conclusion may indicate that the distinction between market regulation and market participation is much too fuzzy to practically use as a jurisdictional tool, there is otherwise little analytical value in such a conclusion. The second possibility is that the Court is basing their distinction not on the economic effects of the legislation, but rather upon some unspoken assumption about how a reasonable actor will choose to participate in a free market. Perhaps, then, “market participation” is a merely a label for an economic action taken while evaluating only a particular range of economic considerations. If a state makes a decision based on price or quality of a good, that state is participating in the market. If it is compelled to act by other means, this action will be deemed regulatory. | >
> | If it is accepted that the latter hypothetical would be deemed mere market participation, two possible conclusions emerge. The first is that the Court simply decided Gould incorrectly. While such a conclusion may indicate that the distinction between market regulation and market participation is much too fuzzy to practically use as a jurisdictional tool, there is otherwise little analytical value in such a conclusion. The second possibility is that the Court is basing their distinction not on the economic effects of the legislation, but rather upon some unspoken assumption about how a reasonable actor will choose to participate in a free market. | | | | |
<
< | Final Thoughts | >
> | The third possibility is
that you misread the case. | | | | |
<
< | All state economic behavior has consequences in interstate commerce. Yet if market participation is not able to be differentiated from market regulation by an analysis of actual market effect, making a dormant commerce clause exception for the former while still diligently restricting the latter seems unnecessary and arbitrary. Either the market participation exception must be only the first effort in a larger doctrinal shift to erode the dormant commerce clause, or the market participation exception should be deemed an unnecessary departure from dormant commerce clause doctrine and should be eliminated. | >
> | Perhaps, then, “market participation” is a merely a label for an economic action taken while evaluating only a particular range of economic considerations. If a state makes a decision based on price or quality of a good, that state is participating in the market. If it is compelled to act by other means, this action will be deemed regulatory. | | | | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: | >
> | Final Thoughts | | | | |
<
< | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, AndrewCascini | >
> | All state economic behavior has consequences in interstate commerce. Yet if market participation is not able to be differentiated from market regulation by an analysis of actual market effect, making a dormant commerce clause exception for the former while still diligently restricting the latter seems unnecessary and arbitrary. Either the market participation exception must be only the first effort in a larger doctrinal shift to erode the dormant commerce clause, or the market participation exception should be deemed an unnecessary departure from dormant commerce clause doctrine and should be eliminated. | | | | |
<
< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
> | This is three mistakes
arising from the two mistakes you already made. Criticism of a weak
rule used occasionally is easy and probably justified, but the
supposed mere verbal distinction is actually a substantive division
you misstate rather than analyzing, and the supposed conflicts in the
cases are actually failure to differentiate holding from dicta and
opinion of the Court from plurality opinion. The best way to revise,
I think, is to decide whether you have other better points against
this doctrine to put forward, and then to reshape the essay around
the answer. |
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AndrewCasciniFirstPaper 6 - 26 Feb 2010 - Main.AndrewCascini
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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< | Does the Market Participation Exception Make Sense? (I hate this title, it must change) | >
> | A Distinction Without a Substance: The Market Participation Exception | | | -- By AndrewCascini - 24 Feb 2010 | | | ...but What Does It Signify? | |
<
< | Participation versus regulation – a tidy verbal distinction indeed, but how do these two categories of behavior actually differ? The word “participate” has a flavor of passivity. If I run in a race and am awarded a medal for being a “participant,” the strong implication is that I didn’t really affect the outcome in any meaningful way. The word “regulate,” however, has a more active nature. To regulate is to create changes; it implies control and agency. If we accept these notions, the distinct treatment of market participation as opposed to market regulation seems well in step with dormant commerce clause doctrine as a whole, for it is the domain of the federal government to make changes in the realm of interstate commerce and not the states. Directing attention away from the transcendental legal terminology and towards the actual economic effects reveals a categorical breakdown, however. | >
> | Participation versus regulation – a tidy verbal distinction indeed! The word “participate” has a flavor of passivity. If I run in a race and am awarded a medal for being a “participant,” the strong implication is that I didn’t really affect the outcome in any meaningful way. The word “regulate,” however, has a more active nature. To regulate is to create changes; it implies control and agency. If we accept these notions, the distinct treatment of market participation as opposed to market regulation seems well in step with dormant commerce clause doctrine as a whole, for it is the domain of the federal government to make changes in the realm of interstate commerce and not the states. But how do these categories of behavior actually differ in practice? Directing attention away from the transcendental legal terminology and towards the actual economic effects reveals a categorical breakdown. | | | Two Terms, One Effect | |
<
< | Imagine that a state decided to pass a law dictating that all state departmental offices may only purchase assets from companies or individuals who had not violated the National Labor Relations Act. Would this be a “regulatory” decision – Constitutionally impermissible – or a simple act of “market participation?” On the one hand, the state can make a claim that it is simply participating in the market as any other economic actor could. Perhaps the state has acknowledged that its employees are happier with products from NLRA-compliant manufacturers, or that products manufactured by NLRA-compliant industries tend to be of higher quality. Either rationale would be an acceptable exercise of market participation for an individual. On the other hand, the legislation could be seen as an attempt to regulate the market by forcing industries across the nation to comply with the NLRA or lose their asset supply contracts with the state. The Court, in Wisconsin Dept. of Labor Relations v Gould, deemed the legislation to be an overreaching attempt to regulate commerce, and struck it down. Suppose, however, that the Wisconsin legislature had never passed the offending statute but had still bought assets from the same manufacturers that it had turned to as a result of the ban on NLRA violators - perhaps because these companies offered their goods at the lowest price. Such a decision would doubtlessly be deemed an exercise in market participation, but the economic effect would have been precisely the same. | >
> | Imagine that a state decided to pass a law dictating that all state departmental offices may only purchase assets from companies or individuals who had not violated the National Labor Relations Act. Would this be a “regulatory” decision – Constitutionally impermissible – or a simple act of “market participation?” On the one hand, the state can make a claim that it is simply participating in the market as any other economic actor could. Perhaps the state has acknowledged that its employees are happier using products from NLRA-compliant manufacturers which boosts their productivity, or that products manufactured by NLRA-compliant industries tend to be of higher quality. Either rationale would seem an acceptable exercise of market participation for an individual. On the other hand, the legislation could be regarded as an attempt to regulate the market by forcing industries across the nation to comply with the NLRA or lose their presumably lucrative asset supply contracts with the state. The Court, in Wisconsin Dept. of Labor Relations v Gould, deemed the legislation to be an overreaching attempt to regulate commerce, and struck it down. Suppose, however, that the Wisconsin legislature had never passed the offending statute but had still bought assets from the same manufacturers that it had turned to as a result of the ban on NLRA violators - perhaps because these companies offered their goods at the lowest price. Such a decision would doubtlessly be deemed an exercise in market participation, but the economic effect would have been precisely the same. | | | Participation as a Label | |
<
< | If it is accepted that the latter hypothetical would be deemed mere market participation, two possible conclusions emerge. The first is that the Court simply decided Gould incorrectly. While such a conclusion may indicate that the distinction between market regulation and market participation is much too fuzzy to practically use as a jurisdictional tool, there is otherwise little analytical value in such a conclusion. The second possibility is that the Court is basing their distinction not on the possible effects of the legislation, but rather upon some unspoken assumption about how a reasonable actor will choose to participate in a free market. Perhaps, then, “market participation” is a merely a label for an economic action taken while considering only a particular range of economic considerations. If a state makes a decision based on price or quality of a good, that state is participating in the market. If it is compelled to act by other means, this action will be deemed regulatory. | >
> | If it is accepted that the latter hypothetical would be deemed mere market participation, two possible conclusions emerge. The first is that the Court simply decided Gould incorrectly. While such a conclusion may indicate that the distinction between market regulation and market participation is much too fuzzy to practically use as a jurisdictional tool, there is otherwise little analytical value in such a conclusion. The second possibility is that the Court is basing their distinction not on the economic effects of the legislation, but rather upon some unspoken assumption about how a reasonable actor will choose to participate in a free market. Perhaps, then, “market participation” is a merely a label for an economic action taken while evaluating only a particular range of economic considerations. If a state makes a decision based on price or quality of a good, that state is participating in the market. If it is compelled to act by other means, this action will be deemed regulatory. | | | Final Thoughts |
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AndrewCasciniFirstPaper 5 - 26 Feb 2010 - Main.AndrewCascini
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By AndrewCascini - 24 Feb 2010 | |
<
< | A Folksy Anecdote
My mother bought a Honda coupe in 1975. With some hesitation, she drove it home to see her parents one Christmas. When she brought her luggage out to her car the next morning she noticed the “BUY AMERICAN” bumper sticker my grandfather had applied to the back-end of the car during the night. Granddad had worked on the line at GM for thirty-six years up to that point. “What an asshole Dad was,” my mom says.
Granddad was an asshole, but he had a point. My mother’s participation in the car market had, in the aggregate with thousands of other like-minded decisions, regulated the American automobile market. | | | A Distinction is Made...
The Commerce Power and the Dormant Commerce Power | | | The Takeaway | |
<
< | The dormant commerce power and the market participation exception, working together, flesh out a tidy doctrine. When states pass legislation that affects interstate commerce, that legislation is subject to Constitutional review. If the legislation merely enables the state to “participate” in the market, it is acceptable. If, however, it “regulates” the market, it is to be treated entirely differently and struck down. | >
> | The dormant commerce power and the market participation exception, working together, appear to flesh out a cohesive doctrine. When states pass legislation that affects interstate commerce, that legislation is subject to Constitutional review. If it is found to “regulate” the market, it is to be struck down pursuant to dormant commerce clause doctrine. If, however, the legislation merely enables the state to “participate” in the market, it is acceptable. | | | ...but What Does It Signify? | |
<
< | THE DISCRETE LABELS, WHAT THEY SIGNIFY BUT WHAT THEY REALLY DO
All Participation Creates Market Changes
GOALS:
Dictating behavior with your dollar.
The Individual Model
GOALS:
Talk about how an individual, through his participation, creates changes in the market
The State Model
GOALS:
Talk about how a state, through its market participation, creates widespread industry changes
PARTICIPATION as a Label | >
> | Participation versus regulation – a tidy verbal distinction indeed, but how do these two categories of behavior actually differ? The word “participate” has a flavor of passivity. If I run in a race and am awarded a medal for being a “participant,” the strong implication is that I didn’t really affect the outcome in any meaningful way. The word “regulate,” however, has a more active nature. To regulate is to create changes; it implies control and agency. If we accept these notions, the distinct treatment of market participation as opposed to market regulation seems well in step with dormant commerce clause doctrine as a whole, for it is the domain of the federal government to make changes in the realm of interstate commerce and not the states. Directing attention away from the transcendental legal terminology and towards the actual economic effects reveals a categorical breakdown, however. | | | | |
<
< | GOALS: | >
> | Two Terms, One Effect | | | | |
<
< | Just a label for a category of changes in a market, instead of a discrete action. THIS HAS BEEN CHANGED FROM REGULATION - the idea here is that all market participation creates market changes, so the court has just labeled consideration of certain factors "participation" and contrasted them, perhaps arbitrarily. | >
> | Imagine that a state decided to pass a law dictating that all state departmental offices may only purchase assets from companies or individuals who had not violated the National Labor Relations Act. Would this be a “regulatory” decision – Constitutionally impermissible – or a simple act of “market participation?” On the one hand, the state can make a claim that it is simply participating in the market as any other economic actor could. Perhaps the state has acknowledged that its employees are happier with products from NLRA-compliant manufacturers, or that products manufactured by NLRA-compliant industries tend to be of higher quality. Either rationale would be an acceptable exercise of market participation for an individual. On the other hand, the legislation could be seen as an attempt to regulate the market by forcing industries across the nation to comply with the NLRA or lose their asset supply contracts with the state. The Court, in Wisconsin Dept. of Labor Relations v Gould, deemed the legislation to be an overreaching attempt to regulate commerce, and struck it down. Suppose, however, that the Wisconsin legislature had never passed the offending statute but had still bought assets from the same manufacturers that it had turned to as a result of the ban on NLRA violators - perhaps because these companies offered their goods at the lowest price. Such a decision would doubtlessly be deemed an exercise in market participation, but the economic effect would have been precisely the same. | | | | |
<
< | FINAL THOUGHTS | >
> | Participation as a Label | | | | |
<
< | GOALS: | >
> | If it is accepted that the latter hypothetical would be deemed mere market participation, two possible conclusions emerge. The first is that the Court simply decided Gould incorrectly. While such a conclusion may indicate that the distinction between market regulation and market participation is much too fuzzy to practically use as a jurisdictional tool, there is otherwise little analytical value in such a conclusion. The second possibility is that the Court is basing their distinction not on the possible effects of the legislation, but rather upon some unspoken assumption about how a reasonable actor will choose to participate in a free market. Perhaps, then, “market participation” is a merely a label for an economic action taken while considering only a particular range of economic considerations. If a state makes a decision based on price or quality of a good, that state is participating in the market. If it is compelled to act by other means, this action will be deemed regulatory. | | | | |
<
< | This definitely needs a conclusion, and you might want to distinguish some of the external reasons that might force the court to distinguish "regulation" from participation in states. Either way we need to expand this. | >
> | Final Thoughts | | | | |
>
> | All state economic behavior has consequences in interstate commerce. Yet if market participation is not able to be differentiated from market regulation by an analysis of actual market effect, making a dormant commerce clause exception for the former while still diligently restricting the latter seems unnecessary and arbitrary. Either the market participation exception must be only the first effort in a larger doctrinal shift to erode the dormant commerce clause, or the market participation exception should be deemed an unnecessary departure from dormant commerce clause doctrine and should be eliminated. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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AndrewCasciniFirstPaper 4 - 25 Feb 2010 - Main.AndrewCascini
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By AndrewCascini - 24 Feb 2010 | |
<
< | BACKGROUND | >
> | A Folksy Anecdote | | | | |
<
< | The Commerce Clause and the Dormant Commerce Clause | >
> | My mother bought a Honda coupe in 1975. With some hesitation, she drove it home to see her parents one Christmas. When she brought her luggage out to her car the next morning she noticed the “BUY AMERICAN” bumper sticker my grandfather had applied to the back-end of the car during the night. Granddad had worked on the line at GM for thirty-six years up to that point. “What an asshole Dad was,” my mom says. | | | | |
<
< | Article I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." This is referred to as the commerce clause. While the Constitution never explicitly bars individual states from interfering with this Congressional power, the Supreme Court has inferred the presence of a "dormant commerce clause" from the text of Article I. This dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states. | >
> | Granddad was an asshole, but he had a point. My mother’s participation in the car market had, in the aggregate with thousands of other like-minded decisions, regulated the American automobile market. | | | | |
>
> | A Distinction is Made...
The Commerce Power and the Dormant Commerce Power
Article I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." The Supreme Court has inferred the presence of a "dormant commerce clause" from this text. The dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states. | | | The Market Participation Exception | | | Origin | |
<
< | In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of junked cars. The state would purchase the cars, paying a disproportionate amount for cars with in-state plates and imposing less stringent documentation requirements from in-state scrap processors. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. Choosing to buy in-state junk and junk processing serves was merely participation. | >
> | In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of abandoned cars littered on the sides of the roads by choosing to buy in-state junked cars and in-state junk processing services at higher prices and with more lenient documentation standards. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. | | | Limitation | |
<
< | Yet market participation was held to have its limits. Eight years later in Central Timber Development v. Wunnicke, the Court ruled that states, while enacting legislation to enable market participation, must not “impose conditions having a substantial regulatory effect outside the particular market.” This restriction marked the “limit of the market-participant doctrine.”
"Downstream" and "upstream" effects | >
> | Yet market participation was held to have its limits. Eight years later in Central Timber Development v. Wunnicke, the Court ruled that states, while enacting legislation to enable market participation, must not “impose conditions, whether by statute, regulation, or contract that have a substantial regulatory effect outside the particular market.” This restriction marked the “limit of the market-participant doctrine.” | | | | |
<
< | GOALS: | >
> | The Takeaway | | | | |
<
< | Describe the downstream and upstream effects. (does this need to be here?) | >
> | The dormant commerce power and the market participation exception, working together, flesh out a tidy doctrine. When states pass legislation that affects interstate commerce, that legislation is subject to Constitutional review. If the legislation merely enables the state to “participate” in the market, it is acceptable. If, however, it “regulates” the market, it is to be treated entirely differently and struck down. | | | | |
<
< | MARKET PARTICIPATION VERSUS MARKET REGULATION | >
> | ...but What Does It Signify? | | | THE DISCRETE LABELS, WHAT THEY SIGNIFY BUT WHAT THEY REALLY DO |
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AndrewCasciniFirstPaper 3 - 25 Feb 2010 - Main.AndrewCascini
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
<
< | Does the Market Participation Exception Make Sense? | >
> | Does the Market Participation Exception Make Sense? (I hate this title, it must change) | | | -- By AndrewCascini - 24 Feb 2010 | | | The Commerce Clause and the Dormant Commerce Clause | |
<
< | GOALS:
The Commerce Clause. The Dormant Commerce Clause. Why we infer a DCC. What the DCC is designed to prevent.
TEXT:
Article I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." This is referred to as the commerce clause, and this clause has been interpreted to authorize Congress to enact an extremely broad range of legislation.
While the Constitution never explicitly bars individual states from interfering with Congress' commerce power, the Supreme Court has inferred the presence of a "dormant commerce clause" from the text of Article I. This dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states. | >
> | Article I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." This is referred to as the commerce clause. While the Constitution never explicitly bars individual states from interfering with this Congressional power, the Supreme Court has inferred the presence of a "dormant commerce clause" from the text of Article I. This dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states. | | |
The Market Participation Exception | | | Origin | |
<
< | In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of junked cars. The state would purchase the cars, paying a disproportionate amount for cars with in-state plates and imposing less stringent documentation requirements from in-state scrap processors. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. | >
> | In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of junked cars. The state would purchase the cars, paying a disproportionate amount for cars with in-state plates and imposing less stringent documentation requirements from in-state scrap processors. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. Choosing to buy in-state junk and junk processing serves was merely participation. | | | Limitation | | | GOALS: | |
<
< | Describe the downstream and upstream effects. | >
> | Describe the downstream and upstream effects. (does this need to be here?) | | | MARKET PARTICIPATION VERSUS MARKET REGULATION | |
>
> | THE DISCRETE LABELS, WHAT THEY SIGNIFY BUT WHAT THEY REALLY DO | | | All Participation Creates Market Changes
GOALS: | | | Talk about how a state, through its market participation, creates widespread industry changes | |
<
< | Regulation as a Label | >
> | PARTICIPATION as a Label | | | GOALS: | |
<
< | Just a label for a category of changes in a market, instead of a discrete action. | >
> | Just a label for a category of changes in a market, instead of a discrete action. THIS HAS BEEN CHANGED FROM REGULATION - the idea here is that all market participation creates market changes, so the court has just labeled consideration of certain factors "participation" and contrasted them, perhaps arbitrarily. | | | FINAL THOUGHTS |
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AndrewCasciniFirstPaper 2 - 25 Feb 2010 - Main.AndrewCascini
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<
< | | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
<
< | Paper Title | >
> | Does the Market Participation Exception Make Sense? | | | -- By AndrewCascini - 24 Feb 2010 | |
<
< | Section I | >
> | BACKGROUND
The Commerce Clause and the Dormant Commerce Clause
GOALS:
The Commerce Clause. The Dormant Commerce Clause. Why we infer a DCC. What the DCC is designed to prevent.
TEXT:
Article I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." This is referred to as the commerce clause, and this clause has been interpreted to authorize Congress to enact an extremely broad range of legislation.
While the Constitution never explicitly bars individual states from interfering with Congress' commerce power, the Supreme Court has inferred the presence of a "dormant commerce clause" from the text of Article I. This dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states.
The Market Participation Exception
The dormant commerce clause does not bar all state and local legislation that may in any way affect the interstate economy, however. The Court has carved an exception from dormant commerce clause doctrine in instances where states, through legislation, are deemed to be merely “participating” in the market.
Origin
In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of junked cars. The state would purchase the cars, paying a disproportionate amount for cars with in-state plates and imposing less stringent documentation requirements from in-state scrap processors. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority.
Limitation
Yet market participation was held to have its limits. Eight years later in Central Timber Development v. Wunnicke, the Court ruled that states, while enacting legislation to enable market participation, must not “impose conditions having a substantial regulatory effect outside the particular market.” This restriction marked the “limit of the market-participant doctrine.”
"Downstream" and "upstream" effects
GOALS:
Describe the downstream and upstream effects.
MARKET PARTICIPATION VERSUS MARKET REGULATION
All Participation Creates Market Changes
GOALS: | | | | |
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< | Subsection A | >
> | Dictating behavior with your dollar. | | | | |
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> | The Individual Model | | | | |
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< | Subsub 1 | >
> | GOALS: | | | | |
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< | Subsection B | >
> | Talk about how an individual, through his participation, creates changes in the market | | | | |
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> | The State Model | | | | |
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< | Subsub 1 | >
> | GOALS: | | | | |
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> | Talk about how a state, through its market participation, creates widespread industry changes | | | | |
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< | Subsub 2 | >
> | Regulation as a Label | | | | |
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> | GOALS: | | | | |
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> | Just a label for a category of changes in a market, instead of a discrete action. | | | | |
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< | Section II | >
> | FINAL THOUGHTS | | | | |
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< | Subsection A | >
> | GOALS: | | | | |
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< | Subsection B | >
> | This definitely needs a conclusion, and you might want to distinguish some of the external reasons that might force the court to distinguish "regulation" from participation in states. Either way we need to expand this. | | |
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AndrewCasciniFirstPaper 1 - 24 Feb 2010 - Main.AndrewCascini
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-- By AndrewCascini - 24 Feb 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
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