Forum, Federalism, and Free Markets: An Empirical Study of Judicial Behavior Under the Dormant Commerce Clause Doctrine

Abstract

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic judicial panels. The authors found similar results on tax issues at the Federal level between the years 1993 and 2009. These results suggest that among more conservative judges, traditional anti-regulation attitudes may hold more sway than federalism and judicial restraint. These findings provide insight into the connections between forum selection, politics, and judicial behavior under the doctrine and open avenues for further research.

Keywords: dormant commerce clause, interstate commerce, federalism, judicial behavior, free markets, tax injunction act, empirical, courts