Putting the Dormancy Doctrine Out of its Misery
![handle is hein.journals/cdozo12 and id is 1771 raw text is: PUTTING THE DORMANCY DOCTRINE
OUT OF ITS MISERY
Richard D. Friedman*
Justice Antonin Scalia has put on the academic table the question
of whether the doctrine of the dormant commerce clause should be
abandoned. That is a significant contribution, for this is an issue that
should be debated thoroughly. But Justice Scalia's campaign against
the doctrine has been notably ambivalent. On the one hand, he argues
that the doctrine lacks justification in constitutional text, history, and
theory.1 On the other hand, assertedly feeling the pressure of stare
decisis,2 he has gone along with, and even led, applications of the doc-
trine, although within narrow limits.3
In this essay, I argue that Justice Scalia's instincts are correct:
the dormancy doctrine ought to be abandoned, though not necessarily
for the reasons he suggests. The doctrine is the result of an historical
anomaly. It has long outlived its usefulness, and stare decisis is an
insufficient prop to keep it standing. I believe the doctrine requires
the courts to make political and economic judgments that could be
made better--certainly more efficiently and legitimately, and perhaps
more wisely as well-by other branches of government. From the
comfort of the academic sidelines that Justice Scalia has left, I suggest
* My thanks to Charlie Bieneman and David Goodhard for very able research assistance
on this piece, and to David Katz, Larry Kramer, Mark Tushnet, and Elliot Weiss for helpful
comments on an earlier draft.
1 See Tyler Pipe Indus. v. Washington, 483 U.S. 232, 265 (1987) (Scalia, J., concurring in
part and dissenting in part) ([T]he Court for over a century has engaged in an enterprise that
it has been unable to justify by textual support or even coherent nontextual theory, that it was
almost certainly not intended to undertake, and that it has not undertaken very well.).
2 It is astonishing that we should be expanding our own beachhead in this impoverished
territory, rather than being satisfied with what we have already acquired by a sort of intellec-
tual adverse possession. Id. But cf. Burt, Precedent and Authority in Antonin Scalia's Juris-
prudence, 12 CARDOZO L. REV. 1685, 1689 (1991) (in Scalia's view, [ilf a judge has correctly
construed the document's original intent, this opinion is worth respect; if not, then not (unless
the judge's error has become too deeply entrenched in practice-repeated too often, relied
upon too extensively-to correct without substantial disruptions).); Strauss, Tradition, Prece-
dent, and Justice Scalia, 12 CARDOZO L. REV. 1699 (1991). Professor Strauss argues that it is
not necessarily a paradox that Scalia appears to be deeply respectful of tradition while not
a great fan of stare decisis: Precedent overlaps tradition; it is not subsumed by it. Some
precedents may be said to be part of a tradition. But not all are. Id. at 1705, 1699, 1706.
3 See Healy v. Beer Inst., Inc., 109 S. Ct. 2491, 2503-04 (1989) (concurring in part);
Goldberg v. Sweet, 488 U.S. 252, 272 (1989) (concurring in judgment); Bendix Autolite Corp.
v. Midwesco Enters., 486 U.S. 888, 897-98 (1988) (concurring in judgment); New Energy Co.
v. Limbach, 486 U.S. 269, 273-74 (1988) (for a unanimous Court).
1745](ViewImageLocal?handle=hein.journals/cdozo12&div=73&collection=&method=preview&ext=.png&size=3)
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Putting the Dormancy Doctrine Out of its Misery
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