We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
INACTIVITY, DEREGULATION, AND THE COMMERCE CLAUSE: A THOUGHT EXPERIMENT.
- Authors
DRIESEN, DAVID M.
- Abstract
This Essay examines an unsuspected parallel between the regulation of inactivity and deregulation of activity under the Commerce Clause. The substantial effects test justifying most federal regulation of interstate commerce does not by its terms authorize either regulation of inactivity or deregulation of activity. For that test only authorizes regulation of activities. The courts, however, have not treated regulation of inactivity and deregulation of activity alike. The Supreme Court has disapproved of regulation of inactivity as incompatible with its articulation of the substantial effects test. The courts, however, have upheld laws deregulating activity without noticing their incompatibility with the Supreme Court's articulation of the substantial effects test. Juxtaposing these two types of formalist violations of the substantial effects test sets the stage for a more neutral evaluation of the limits of formalism under the Commerce Clause than one can obtain through analysis of regulation of inactivity alone. While deregulation and regulation formally flunk the substantial effects test, both may advance the Commerce Clause's most fundamental purpose-the promotion of interstate commerce. This Essay therefore suggests some less formalist approaches to addressing the potential for inappropriate invasion of states' rights through deregulation and of individual liberty through regulation of inactivity.
- Subjects
COMMERCE; LAW; APPELLATE courts; FORMAL sociology; LIBERTY
- Publication
Wake Forest Law Review, 2018, Vol 53, Issue 3, p479
- ISSN
0043-003X
- Publication type
Article