THE ECONOMIC FOUNDATION OF THE DORMANT COMMERCE CLAUSE

In 2015, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court's first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination...

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Bibliographic Details
Published inVirginia law review Vol. 103; no. 2; pp. 309 - 354
Main Authors Knoll, Michael S., Mason, Ruth
Format Journal Article
LanguageEnglish
Published Charlottesville VIRGINIA LAW REVIEW ASSOCIATION 01.04.2017
The Virginia Law Review Association
Subjects
Cement
COMMERCE
Comptrollers
CONSTITUTIONAL LAW
Copyright
Court decisions and opinions
DISCRIMINATION
DOUBLE TAXATION
Economic analysis
Economic aspects
INTERGOVERNMENTAL RELATIONS
Law schools
Legal research
Protectionism
Redistricting
Social aspects
Sovereignty
State court decisions
State laws
State taxes
TAXATION
UNITED STATES
United States > US
Maryland
Virginia
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Summary:In 2015, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court's first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination cases, the internal consistency test. In deciding Wynne, the Court relied on economic analysis we provided in an amicus brief. This Article explains that analysis, why the majority accepted it, why the dissenters' objections to the majority's reasoning miss their mark, and what Wynne means for state taxation. Essential to our analysis and the Court's decision in Wynne is the idea that states are capable of discriminating not only on an inbound basis, but also on an outbound basis, and that the Commerce Clause prohibits discrimination on either basis. To aid in explaining our position, this Article introduces the term "retentionism" as an analogue to protectionism. Whereas taxes or regulations are protectionist when they discourage outsiders from engaging in economic activities within a state, taxes or regulations are retentionist when they discourage in-state economic actors from engaging in out-of-state activities. As we show, the tax struck down in Wynne was both protectionist and retentionist.
Bibliography:VIRGINIA LAW REVIEW, Vol. 103, No. 2, Apr 2017, 309-358
2019-10-03T15:10:12+10:00
VIRGINIA LAW REVIEW, Vol. 103, No. 2, Apr 2017: 309-358
Informit, Melbourne (Vic)
ISSN:0042-6601