Abstract

http://ssrn.com/abstract=1436142
 
 

Footnotes (445)



 


 



The Supreme Court's New Public-Private Distinction Under the Dormant Commerce Clause: Avoiding the Traditional Versus Nontraditional Classification Trap


Bradford C. Mank


University of Cincinnati - College of Law

July 15th, 2009

Hastings Constitutional Law Quarterly, Vol. 37, p. 1, 2009
U of Cincinnati Public Law Research Paper No. 09-11

Abstract:     
In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held that the ‘dormant’ Commerce Clause doctrine (DCCD) allows for a distinction between appropriate laws establishing local government monopolies that provide public services such as waste disposal as opposed to inappropriate laws favoring the self interest of in-state private businesses over out-of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky v. Davis, the Court reaffirmed United Haulers’ distinction between laws preferring government activities that serve the public interest and laws that favor local private firms at the expense of other private firms, but clarified to what extent it matters whether a government function is traditional or nontraditional. This article argues that there are compelling reasons to treat public entities differently from private entities, but that courts should be wary of focusing on whether a government function is traditional or nontraditional. Instead, courts should focus on whether a challenged local law fulfills a legitimate public purpose or instead favors local private firms at the expense of out-of-state firms.

Number of Pages in PDF File: 61

Accepted Paper Series





Download This Paper

Date posted: July 21, 2009 ; Last revised: February 12, 2010

Suggested Citation

Mank, Bradford C., The Supreme Court's New Public-Private Distinction Under the Dormant Commerce Clause: Avoiding the Traditional Versus Nontraditional Classification Trap (July 15th, 2009). U of Cincinnati Public Law Research Paper No. 09-11. Available at SSRN: http://ssrn.com/abstract=1436142

Contact Information

Bradford C. Mank (Contact Author)
University of Cincinnati - College of Law ( email )
P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0094 (Phone)
513-556-1236 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 797
Downloads: 67
Download Rank: 208,366
Footnotes:  445

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.266 seconds