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- Title
MUST THE STATES DISCRIMINATE AGAINST THEIR OWN PRODUCERS UNDER THE DORMANT COMMERCE CLAUSE?
- Authors
Driesen, David M.
- Abstract
This Article works out the implications of an insight mentioned, but not developed, in the literature on free trade law: A polity that regulates its own producers without regulating outside producers serving that polity discriminates against its own producers. This insight gives rise to a question. Should laws serving free trade values require polities to discriminate against their own producers?. This Article examines the legitimacy of requiring discrimination against in-state producers through the dormant Commerce Clause's extraterritoriality doctrine--which prohibits regulating wholly outside the enacting state's borders. This doctrine, by prohibiting regulation of producers outside the regulating state, seems to require discrimination against the enacting state's producers. Descriptively, it shows that governments rarely discriminate against their own producers, instead commonly using import restrictions to facilitate evenhanded regulation. This practice suggests that evenhanded regulation may have some justification. It then examines the normative case for allowing states to regulate evenhandedly and explains how this case challenges the extraterritoriality doctrine. The analysis developed to explore the extraterritoriality doctrine's legitimacy also informs domestic and international free trade law more broadly and contributes to an emerging literature on "horizontal federalism"--the law of interstate relations.
- Subjects
INTERSTATE commerce clause; DORMANT commerce clause (Constitutional law); FREE trade laws; DISCRIMINATION in criminal justice administration; FEDERAL courts; APPELLATE courts
- Publication
Houston Law Review, 2016, Vol 54, Issue 1, p1
- ISSN
0018-6694
- Publication type
Article