A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine

98 Pages Posted: 16 Jun 2003

See all articles by Maxwell L. Stearns

Maxwell L. Stearns

University of Maryland Francis King Carey School of Law


While the commerce clause neither mentions federal courts nor expressly prohibits the exercise of state regulatory powers that might operate concurrently with Congressional commerce powers, the Supreme Court has long used the dormant commerce clause doctrine to limit the power of states to regulate across a diverse array of subject areas in the absence of federal legislation. Commentators have criticized the Court less for creating the doctrine than for applying it in a seemingly inconsistent, or even haphazard, way. Past commentators have recognized that a game theoretical model, the prisoners' dilemma, can be used to explain the role of the dormant commerce clause doctrine in promoting cooperation among states by inhibiting a regime of mutual defection. This model, however, provides at best a partial account of existing dormant commerce clause doctrine, and sometimes seems to run directly counter to actual case results. The difficulty is not the power of game theory to provide a positive account of the cases or to provide the dormant commerce clause doctrine with a meaningful normative foundation. Rather, the problem has been the limited choice of models drawn from game theory to explain the conditions in which states rationally elect to avoid mutually beneficial cooperative strategies with other states. Professor Stearns shows how a state might avoid cooperation in a situation not captured in the prisoners' dilemma account to disrupt a multiple Nash equilibrium game, thus producing an undesirable mixed strategy equilibrium in place of two or more available pro-commerce, Nash equilibrium outcomes. At the same time, the defecting state secures a rent that only became available as a consequence of the Nash equilibrium, pro-commerce strategies of surrounding states, and that is closely analogous to quasi rents described in the literature on relational contracting. The combined game theoretical analysis, drawing upon the prisoners' dilemma and multiple Nash equilibrium games, not only explains several of the most criticized features of the dormant commerce clause and several related doctrines, but also underscores the proper normative relationship between the dormant commerce clause doctrine and various forms of state law rent seeking.

Keywords: Constitutional Law, jurisprudence, legal philosophy

JEL Classification: K00, K19, K39

Suggested Citation

Stearns, Maxwell L., A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine. William & Mary Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=416301 or http://dx.doi.org/10.2139/ssrn.416301

Maxwell L. Stearns (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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