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National Judicial Power and the Dormant Commerce Clause

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  • Clifford Carrubba

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. Copyright 2003, Oxford University Press.

Suggested Citation

  • Clifford Carrubba, 2003. "National Judicial Power and the Dormant Commerce Clause," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 19(2), pages 543-570, October.
    • Handle: RePEc:oup:jleorg:v:19:y:2003:i:2:p:543-570
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    Cited by:

    1. Jeffrey K. Staton & Georg Vanberg, 2008. "The Value of Vagueness: Delegation, Defiance, and Judicial Opinions," American Journal of Political Science, John Wiley & Sons, vol. 52(3), pages 504-519, July.
    2. Michael Gilligan & Leslie Johns & B. Peter Rosendorff, 2010. "Strengthening International Courts and the Early Settlement of Disputes," Journal of Conflict Resolution, Peace Science Society (International), vol. 54(1), pages 5-38, February.

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