The Fate, and Fade, of the Dormant Commerce Clause

Abstract This article presents and analyzes an original, comprehensive data set of the Supreme Courts’s decisions under the dormant Commerce Clause from the New Deal era to the current day. Oriented toward questions of political economy rather than legal doctrine, the study examines the subject matter of litigation; the origin of cases in state or federal court; parties to the litigation; the grounds of decision; and parties’ win/loss record. The empirical evidence tends to support the view, common among legal scholars, that the post-New Deal Court has substantially relaxed dormant Commerce Clause constraints on the states and correspondingly expanded the role of Congress and federal administrative agencies in ensuring economic integration. However, closer examination of cases involving the alcohol industry and “remote” sales of goods across state lines suggests that in those venues of recurrent litigation, the Court has remained mindful of its important role in protecting interstate commerce.