National Judicial Power and the Dormant Commerce Clause

Posted: 26 Jul 2003

See all articles by Clifford Carrubba

Clifford Carrubba

Emory University - Department of Political Science

James R. Rogers

Texas A&M University - Department of Political Science

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Abstract

We develop a game in which a court monitors states as they regulate trade among themselves. Contrary to commentators who see Supreme Court oversight of state burdens on interstate commerce as the product of a powerfully ascendant court, we argue that the dormant Commerce Clause (DCC) originates as the strategic product of an institutionally weak court. We provide three lines of argument. First, we refute the notion that merely observing the court ruling against state governments and those governments complying with its ruling is evidence of judicial power. Second, we show that the equilibria of our weak court model directly implies the doctrinal contours of the DCC while the ascendancy hypothesis does not. Finally, we provide evidence that the court announced a weaker version of the DCC doctrine than sincerely preferred by pivotal justices on the court. Our arguments invite a revised understanding of the role of the court in the development of the American political system.

Suggested Citation

Carrubba, Clifford and Rogers, James R., National Judicial Power and the Dormant Commerce Clause. The Journal of Law, Economics, and Organization, Vol. 19, No. 2, pp. 543-570, 2003, Available at SSRN: https://ssrn.com/abstract=405501

Clifford Carrubba (Contact Author)

Emory University - Department of Political Science ( email )

Atlanta, GA 30322
United States
404-727-7915 (Phone)
404-727-4586 (Fax)

James R. Rogers (Contact Author)

Texas A&M University - Department of Political Science ( email )

College Station, TX 77843-4353
United States
(979) 845-2905 (Phone)

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