Holding Your Horses: A Violation of the Dormant Commerce Clause

摘要

Upton Sinclair may as well have been referring to state judicial behavior under the dormant Commerce Clause when he penned, "It is difficult to get a man to understand something when his salary depends upon his not understanding it. Indeed, state judges are far more likely to uphold local and state laws than their federal counterparts. In a widely praised piece of scholarship, Professor Mehmet K. Konsar-Steenberg suggests that such "home team" treatment is exacerbated by modern readings of the dormant Commerce Clause doctrine that invite, if not demand, judges to express policy bias in their decisions. Such "ideological bias," however, is generally stifled when a law is deemed discriminatory and consequently reviewed under strict scrutiny.