When Natural Science Meets the Dismal Science

Abstract:     
This article examines how the Supreme Court and appellate courts have taken into account developments in natural science and economics in evaluating Commerce Clause challenges to environmental laws, and applies this examination to the context of wetlands regulation. I present a descriptive claim: that courts, especially the Supreme Court, have already been incorporating new developments in science and economics in their Commerce Clause opinions; this use of developments in scientific and economic research, I contend, arises out of the empirical values embedded in the Constitution. I also argue that apparent doctrinal inconsistencies in Commerce Clause evaluations may arise from inconsistent but unstated commitments to different visions of the nature of science; accordingly, I urge courts to more expressly explore and acknowledge their underlying epistemological commitments in evaluating Commerce Clause challenges.

Number of Pages in PDF File: 73

Keywords: commerce clause, natural science, economics

JEL Classification: K32, A1, A11, A12, K0, K32, Q51, Q57

working papers series