For Monday

Thursday video--with transcript, without transcript.

We continue with State Power, finishing DCC and then moving to Privileges and Immunities. Consider:

    • Why was the law in Clover Leaf valid, as a good example of a law with a disparate effect?

    • Can you identify any common themes from this round of cases on incidental effects?

    • Can a state favor in-staters over out-staters through subsidies and what are the limits on that? Note the four categories Justice Scalia describes in his concurrence in West Lynn; which is this case and how should it be treated?

    • What is the market participant doctrine and what are the arguments in favor and against that doctrine?

    • What is the Privileges and Immunities Clause? How is it similar to and different from DCC? How does P/I undermine the market participant doctrine?

Note that the legal rules for DCC analysis should become clear at this point (even not in their application); the reading in Choper lays this out well at the beginning of the section (and we discussed this last Thursday). The first question will be whether the law discriminates on its face, in purpose or in means. If it does, apply the virtually per se analysis; if it does not, apply Pike Balancing. Now, these are subject to exceptions--under United Waste, a facially discriminatory law that benefits a government entity is analyzed under Pike rather than under the per se rule. But that basic two-step should be your starting point.

We then turn to Economic Substantive Due Process and Panel # 9. For Monday, read Origins and Lochner and its Era. Consider:

    • What is the source of economic due process and where does the concept come from?

    • What sorts of laws became invalid under that doctrine and why? What could government do in the area of economic regulation? What were the arguments against this doctrine?

For the week if looking to get way ahead, prep through End of Lochner, Incorporation (Panel # 10), and Reproductive Freedom (Panel # 11).