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Cities, Economic Development, and the Free Trade Constitution


Richard Schragger


University of Virginia School of Law


Virginia Law Review, Forthcoming

Abstract:     
The role of cities and local government generally has gone unexamined by legal scholars of the constitutional common market. Yet in a highly urbanized country in which cities and large metropolitan areas dominate the national economy, much of the cross-border movement of persons, goods, and capital inside the United States is more accurately characterized as inter-municipal rather than inter-state. This Article examines the constitutional rules that govern this cross-border movement from the perspective of the city. The Article argues that judges and commentators have misapprehended the jurisprudence of the American common market because they have been looking at its operation on the wrong scale. Examining how the doctrine operates at the municipal level exposes the gaps and contradictions in the jurisprudence, reveals connections between legal doctrines that heretofore had not been considered part of the free trade regime, and highlights the Supreme Court's implicit (and under-theorized) urban economic policy. The reframing of the economic and jurisprudential place of cities in the free trade constitution sheds light on a number of important recent cases, in particular Kelo v. New London, in which the Court upheld a city's use of eminent domain for economic development purposes under the Fifth Amendment's Takings Clause. The Article's city-centric approach also intervenes in a number of judicial and scholarly debates, including the appropriate reach and application of the "dormant" commerce clause, the appropriate judicial oversight of local land use regulations under the Takings Clause, and the role of courts in policing and shaping local economic development efforts more generally.

Number of Pages in PDF File: 60

Keywords: Cities, local government, land use, property, dormant commerce clause, common market, takings clause, constitutional law

JEL Classification: H70, H77

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Date posted: November 20, 2007 ; Last revised: June 16, 2010

Suggested Citation

Schragger, Richard, Cities, Economic Development, and the Free Trade Constitution. Virginia Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1031173

Contact Information

Richard Schragger (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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