Tuesday, November 9, 2021
Ruth Mason (Virginia; Google Scholar) & Michael Knoll (Penn) present Unbundling Undue Burdens at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:
Criticizing dormant Commerce Clause doctrine for, among other reasons, involving arbitrary distinctions and inviting judicial legislation, jurists and commentators have advocated for its abandonment or severe curtailment. This Article shows that when dormant Commerce Clause cases are divided by the type of burden they impose on interstate commerce, the need for different approaches to different types of cases emerges. Unbundling the doctrine helps explain the Supreme Court’s various doctrinal approaches in the cases, making it less ad hoc and haphazard and more connected to its justifications, which lie in federalism and the need to preserve a smoothly functioning national market.
Moreover, our approach enables us to isolate the narrow set of cases most likely to generate judicial lawmaking and to make suggestions for limiting the impact of those cases. Our approach brings much-needed clarity to the doctrine and preserves the essential role of the dormant Commerce Clause in our federalism.