Saturday, February 27, 2010
Casey J. Jennings (J.D. 2010, North Carolina) has published Recent Development, To Form a More Perfect Union: Taxation, Economic Efficiency, and the Dormant Commerce Clause in Department of Revenue v. Davis, 88 N.C. L. Rev. 311 (2009). Here is part of the Introduction:
In Part I, this Recent Development will detail the development of dormant Commerce Clause jurisprudence culminating with the expansion of the government function exception in United Haulers. Part I will further explain (1) that dormant Commerce Clause jurisprudence mandates that the Court inquire as to whether the differential tax treatment of bonds impairs national economic unity and efficiency under the Pike standard and (2) that the Davis Court failed to conduct the mandated analysis. In Part II, this Recent Development will conduct the Pike analysis that the Court failed to perform, weighing the local benefits of the Kentucky tax scheme against the burden it imposes on interstate commerce. Using the Pike test, the local benefits of differential taxation may be overstated, and in fact, differential taxation distorts the interstate municipal bond market, thus diminishing national economic efficiency. This Recent Development will conclude that the Davis decision is unclear, incomplete, and violates established precedent.