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

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