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Law in Contemporary Society
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Does the Market Participation Exception Make Sense? (I hate this title, it must change)-- By AndrewCascini - 24 Feb 2010BACKGROUNDThe Commerce Clause and the Dormant Commerce ClauseArticle I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." This is referred to as the commerce clause. While the Constitution never explicitly bars individual states from interfering with this Congressional power, the Supreme Court has inferred the presence of a "dormant commerce clause" from the text of Article I. This dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states.The Market Participation ExceptionThe dormant commerce clause does not bar all state and local legislation that may in any way affect the interstate economy, however. The Court has carved an exception from dormant commerce clause doctrine in instances where states, through legislation, are deemed to be merely “participating” in the market.OriginIn Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of junked cars. The state would purchase the cars, paying a disproportionate amount for cars with in-state plates and imposing less stringent documentation requirements from in-state scrap processors. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. Choosing to buy in-state junk and junk processing serves was merely participation.LimitationYet market participation was held to have its limits. Eight years later in Central Timber Development v. Wunnicke, the Court ruled that states, while enacting legislation to enable market participation, must not “impose conditions having a substantial regulatory effect outside the particular market.” This restriction marked the “limit of the market-participant doctrine.”"Downstream" and "upstream" effectsGOALS: Describe the downstream and upstream effects. (does this need to be here?)MARKET PARTICIPATION VERSUS MARKET REGULATIONTHE DISCRETE LABELS, WHAT THEY SIGNIFY BUT WHAT THEY REALLY DOAll Participation Creates Market ChangesGOALS: Dictating behavior with your dollar.The Individual ModelGOALS: Talk about how an individual, through his participation, creates changes in the marketThe State ModelGOALS: Talk about how a state, through its market participation, creates widespread industry changesPARTICIPATION as a LabelGOALS: Just a label for a category of changes in a market, instead of a discrete action. THIS HAS BEEN CHANGED FROM REGULATION - the idea here is that all market participation creates market changes, so the court has just labeled consideration of certain factors "participation" and contrasted them, perhaps arbitrarily.FINAL THOUGHTSGOALS: This definitely needs a conclusion, and you might want to distinguish some of the external reasons that might force the court to distinguish "regulation" from participation in states. Either way we need to expand this.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line: # * Set ALLOWTOPICVIEW = TWikiAdminGroup, AndrewCascini Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
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