Chapter 5. THE SCOPE OF STATE POWER

    2. Discrimination Against Interstate Commerce
 

• State laws can be "repugnant to the power to regulate commerce in its dormant state" (Marshall, Willson v. Black-Bird Creek Marsh Co., CB p. 153 (1829).
• NEW ENERGY CO. OF INDIANA V. LIMBACH, p. 271 (1988)
• What substantive economic policy is the commerce clause understood to embody?
• Does the regulation discriminate against out-of-state economic interests in favor of local ones?
• What justifications are offered?
• Wyoming v. Oklahoma, p. 274 (1992): is de minimis discrimination prohibited?
 

• What is the difference between an "implied restriction" and the prohibition against discrimination?
• Buck v. Kuykendall, p. 276 (1925)
• Is the regulation in question discriminatory as between in-state and out-of-state interests?
• What is the nature of the objection?
• California v. Thompson, p. 276 (1941): how does this differ from Buck?
• KASSEL V. CONSOLIDATED FREIGHTWAYS CORPORATION, p. 284 (1981).
• does the state regulation explicitly discriminate against IC? in effect?
• what role do the statutory exceptions play in Powell's plurality opinion?
• what role do they play in Brennan's concurring opinion?
• does it unduly burden IC?
• what is the nature of the burden?
• does the regulation in fact protect the legitimate local interest?
• how do the burden and the benefit balance out?
• who has the burden of persuasion on the issue of balance?