About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

37 Hastings Const. L.Q. [i] (2009-2010)

handle is hein.journals/hascq37 and id is 1 raw text is: HASTINGS CONSTITUTIONAL LAW QUARTERLY VOLUME 37 FALL 2009 NUMBER 1 Table of Contents ARTICLES THE SUPREME COURT'S NEW PUBLIC-PRIVATE DISTINCTION UNDER THE DORMANT COMMERCE CLAUSE: AVOIDING THE TRADITIONAL VERSUS NONTRADITIONAL CLASSIFICATION TRAP by B radford M ank ................................................................................. 1 In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held the dormant Commerce Clause doctrine (DCCD) allows for a distinction between appropriate laws establishing local government monopolies providing public services such as waste disposal, and inappropriate laws favoring the self-interest of in-state private businesses over out-of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky v. Davis, the Court reaffirmed United Haulers' distinction between laws preferring government activities serving the public interest and laws favoring local private firms at the expense of other private firms, but clarified to what extent it matters whether a government function is traditional or nontraditional. This article argues there are compelling reasons to treat public entities differently from private entities, but that courts should be wary of focusing on whether a government function is traditional or nontraditional. Instead, courts should focus on whether a challenged local law fulfills a legitimate public purpose or favors local private firms at the expense of out-of-state firms. In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held the DCCD allows for a distinction between appropriate laws establishing local government monopolies providing public services such as waste disposal, and inappropriate laws favoring the self-interest of in-state private businesses over out- of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky v. Davis, the Court reaffirmed United Haulers' distinction between laws preferring government activities serving the public interest and laws favoring local private firms at the expense of other private firms, but clarified to what extent it matters whether a government function is traditional or nontraditional. This

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most