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CONSTITUTIONAL LAW SPRING 2008 PROF. FISCHER

CONSTITUTIONAL LAW SPRING 2008 PROF. FISCHER. Class 25 The Dormant Commerce Clause Part I. Cooley v. Board of Wardens of the Port of Philadelphia (1851) [C p. 388]. Justice Benjamin Curtis (joined by Taney, Catron, Nelson, Grier, McKinley) 2 dissenters (McLean, Wayne)

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CONSTITUTIONAL LAW SPRING 2008 PROF. FISCHER

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  1. CONSTITUTIONAL LAW SPRING 2008PROF. FISCHER Class 25 The Dormant Commerce Clause Part I

  2. Cooley v. Board of Wardens of the Port of Philadelphia (1851) [C p. 388] • Justice Benjamin Curtis (joined by Taney, Catron, Nelson, Grier, McKinley) • 2 dissenters (McLean, Wayne) • Justice Daniel dissented in reasoning but joined the judgment

  3. Shift to a Balancing Approach • South Carolina State Highway Dep’t v. Barnwell (1938) [C p. 390] (unanimous opinion of Stone; Cardozo and Reed did not participate) • Southern Pacific Co. v. Arizona (1945) [C p. 391] (majority opinion of Stone; Black and Douglas dissented (counsel deference to legislature; disagree that unwise government policy to limit the length of trains))

  4. Balancing Differs • Depending on whether law is discriminatory (strict scrutiny) or not discriminatory (a type of intermediate scrutiny)

  5. When is a Law Discriminatory? • 2 ways • 1. Facial discrimination • 2. Discriminatory in purpose or effect

  6. Philadelphia v. New Jersey (1978) [C p. 395] • Majority by: StewartJoined by: Brennan, White, Marshall, Blackmun, Powell, StevensDissent by: RehnquistJoined by: Burger

  7. The 16 year voyage of the Khian Sea Barge

  8. C & A Carbone, Inc. v. Town of Clarkstown, New York (1994) [C p. 397]

  9. C & A Carbone, Inc. v. Town of Clarkstown, New York (1994) [C p. 397] • Majority opinion by Kennedy, joined by Stevens, Scalia, Thomas, GinsburgConcurrence by: O'ConnorDissent by: SouterJoined by: Rehnquist, Blackmun

  10. Hughes v. Oklahoma (1979) [C p. 401]

  11. Hughes v. Oklahoma (1979) [C p. 401] • Majority by Brennan, joined by Stewart. White, Marshall, Blackmun, Powell, and Stevens • Rehnquist filed a dissenting opinion, in which Burger joined

  12. Unanimous Opinion of the Court by Burger Hunt, Governor of North Carolina v. Washington State Apple Advertising Comm’n (1977) [C p. 402]

  13. West Lynn Creamery, Inc v. Healy (1994) [C p. 407] • Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, and Ginsburg joined. • Scalia filed an opinion concurring in the judgment, in which Thomas joined • Rehnquist filed a dissenting opinion, in which Blackmun joined.

  14. Exxon Corp. v. Governor of Maryland (1978) [C p. 404] • Stevens wrote majority opinion; he was joined by: Burger, Brennan, Stewart, White, Marshall, Rehnquist • Blackman was the only dissenter

  15. State of Minnesota v. Clover Leaf Creamery (1981) [C p. 409] • Justice Brennan wrote majority opinion, joined by Marshall, Burger, White, Stewart, Powell, Blackmun • Rehnquist did not participate • Stevens was the sole dissenter • Clover Leaf Creamery acquired by Kemps in 1979 which became part of MA Hood company in 2004

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