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: Ninomania

By David M. Wagner

Interesting things about Dept. of Revenue of Ky. v. Davis:

* My friends in the libertarian litigating community took it on the chin: only two Justices -- Kennedy and Alito -- bought into their claim that the Dormant Commerce Clause doctrine is a fountainhead (as it were) of judicial enforcement power for the free market.

* In dissent, Kennedy is -- once again -- off and running with high-flying generalizations, this time about history and economics. He cites at least one Lochner-era precedent, albeit one authored by Holmes. So, those who say Kennedy is a neo-Lochnerian: you're probably right. But whether he gets more than one vote besides his own depends on the doctrine being applied: Justice Alito's very brief dissent explains that he joins Kennedy's only because of the stare decisis status of the Dormant Commerce Clause doctrine...

*...speaking of which: Scalia and Thomas differ here, as they have before in Dormant Commerce Clause cases, on stare decisis. Scalia (concurring in all but III-B and IV) says, keep the DCC but don't extend it; Thomas says (I paraphrase freely) the DCC is twaddle, and who really needs stare decisis anyway, but Kentucky's differential taxation system for its own bonds vis-a-vis those of other states can be upheld solely on the grounds that states have long favored their own bonds in their tax systems, and Congress, though it has power to override this practice, has not done so; therefore -- concur in judgment only.

I'm with Thomas on this one.

Full post as published by Ninomania on May 19, 2008 (boomark / email).