The Internet and the Dormant Commerce Clause

38 Pages Posted: 9 Nov 2000  

Jack Landman Goldsmith III

Harvard Law School

Alan O. Sykes

Stanford University - Law School

Abstract

This paper challenges the conventional wisdom that the dormant commerce clause requires invalidation of most state regulation of the Internet. The paper argues that conventional wisdom is flawed in three respects: it rests on an impoverished understanding of the architecture of the Internet; it misreads dormant commerce clause jurisprudence; and it misunderstands the economics of state regulation of transborder transactions. The paper does not argue that all state regulation of Internet communications should be immune from dormant commerce clause scrutiny. Such a general conclusion would be inappropriate because different state regulations raise different empirical and technical issues that remain unresolved. The paper aims, more modestly, to deflate the emerging conventional wisdom and to show that the dormant commerce clause, properly understood, leaves states with much more flexibility to regulate Internet transactions than is commonly thought. Along the way, the paper contributes to dormant commerce clause theory generally by bringing theoretical clarity to the "extraterritoriality" and "inconsistent regulations" prongs of dormant commerce clause jurisprudence.

Suggested Citation

Goldsmith, Jack Landman and Sykes, Alan O., The Internet and the Dormant Commerce Clause. Yale Law Journal. Available at SSRN: https://ssrn.com/abstract=246100 or http://dx.doi.org/10.2139/ssrn.246100

Jack Landman Goldsmith III (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Alan O'Neil Sykes

Stanford University - Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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