When Natural Science Meets the Dismal Science
Arizona State University Law Journal, Fall 2010
73 Pages Posted: 22 Apr 2010
Date Written: April 21, 2010
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.
Keywords: commerce clause, natural science, economics
JEL Classification: K32, A1, A11, A12, K0, K32, Q51, Q57
Suggested Citation: Suggested Citation