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Animal activists have continually criticized animal confinement throughout the United States. These criticisms have led to States implementing regulations relating to animal care, handling, research, and slaughter. State regulations were limited in scope and only affected in-state producers. This all changed, however, when California voters passed Proposition 12, which regulates animal confinement for any piece of pork sold within California's borders. Furthermore, Proposition 12 requires any piece of pork traveling through California to be labeled indicating whether the pork is compliant or not. By requiring out-of-state producers to comply with the California production requirements, Proposition 12 regulates beyond the state's borders. The Supreme Court in National Pork Producers Council v. Ross upheld the constitutionality of Proposition 12, allowing its regulations to take effect. This paper analyzes the Supreme Court's decision and discusses the effects Proposition 12 will have on the United States pork industry., I. INTRODUCTION The Constitution limits states from regulating outside their borders by long-established precedent in the United States. (1) Furthermore, the Constitution gives Congress the power to regulate interstate commerce. [...]

I. INTRODUCTION Gone are the times where employers automatically chain workers to cubicles and bind them to regimented schedules motivated by corporate America. Modern jobs come with new and liberating [...]

[As the 2022 Supreme Court term waned, the press and public waited with trepidation or excitement for noteworthy cases that addressed important policy questions, including affirmative action, student loan forgiveness, and conflicts between religious freedom and gay rights. Fewer people shared the concerns of Civil Procedure scholars who anxiously awaited the Court's decision in Mallory v. Norfolk Southern Railway Co. For over a decade, the Court found that states violated due process in asserting personal jurisdiction over various defendants despite the lack of any meaningful burden on the defendant's ability to defend against claims in the plaintiff's choice of forum. Mallory raised concerns because of some of the Justices' questions during oral argument and because the Court did not issue its decision until the end of the term. This led to speculation that the Court was about to radically alter its due process analysis in personal jurisdiction cases based on the original public meaning of the Fourteenth Amendment. When the Court published Mallory, one could hear a collective sigh of relief. The Court found that the state court had jurisdiction based on its consent statute. But Mallory produced a good bit of head-scratching. The Court divided 5-4. The Justices did not split along the political line exposed in most of the Court's important decisions. Further, Justice Gorsuch wrote the lead opinion, but gained a majority for only part of his reasoning. This article explores what if? What if the Court adopted an originalist approach to personal jurisdiction? For example, this article explores whether an original understanding of personal jurisdiction makes sense given modern transportation, interstate commerce, and communication. It argues against incorporating the Dormant Commerce Clause analysis into personal jurisdiction and concludes that incorporation will reflect another attempt to favor defendants by closing the courthouse door to injured plaintiffs., TABLE OF CONTENTS ABSTRACT 217 TABLE OF CONTENTS 219 I. INTRODUCTION 220 II. MODERN DUE PROCESS ANALYSIS 225 III. MALLORY V. NORFOLK SOUTHERN RAILWAY CO., DUE PROCESS AND 237 STRANGE [...]

On the subject of abortion, the so-called 'United' States of America are becoming more disunited than ever. The U.S. Supreme Court's precipitous decision in Dobbs v. Jackson Women's Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court issued its decision, at least nineteen states have increased restrictions on abortion access, while at least twenty states and the District of Columbia have adopted new legal regimes focused on protecting the right to an abortion. These partisan and geographic divides create perhaps the biggest set of nationwide conflicts of law problems since the era of the Fugitive Slave Act before the Civil War. Indeed, practically every aspect of the new abortion legal landscape is now characterized by uncertainty, creating potential constitutional and federal preemption questions, state versus state conflicts of law issues, and new concerns based on various forms of private regulation related to abortion access. This Article seeks to provide a comprehensive survey of the current state of the law with regard to how such conflicts of law questions might be resolved in the abortion context. Part I surveys the widely divergent state laws being debated or enacted in the country in the wake of Dobbs. Part II discusses potential constitutional challenges to the extraterritorial application of these abortion statutes. If statutes criminalize or impose civil liability on the actual pregnant person seeking the abortion, such statutes might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally. Alternatively, if statutes seek to impose criminal or civil penalties on out-of-state healthcare providers or other actors, those statutes may be vulnerable to a challenge under the Commerce Clause of Article I, Section 8. Part III turns to potential federal preemption of state anti-abortion laws under the Food, Drug, and Cosmetics Act or the Emergency Medical Treatment and Active Labor Act. Part IV addresses the question of whether states can impose civil liability on out-of-state acts or actors--even beyond the right to travel and Commerce Clause concerns--focusing on the classic conflicts of law doctrines of jurisdiction, choice of law, and judgment recognition. Finally, Part V considers the activities of private actors as sources of regulatory authority that create conflicts questions. We discuss the degree to which a state may prevent employers from covering abortion-related expenses as part of their health insurance plans, the privacy concerns that arise when private actors collect data that might be used in criminal prosecutions or civil suits regarding abortions, and the possibility that private religious groups might invoke the First Amendment to claim exemptions from state anti-abortion laws., INTRODUCTION 401 I. THE NEW ABORTION LEGAL LANDSCAPE 406 A. The Anti-Abortion States 407 B. The Pro-Access States 412 C. Practical Impacts 413 II. CONSTITUTIONAL RESTRICTIONS ON EXTRATERRITORIAL ABORTION 416 [...]

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution's original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism's rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would employ a rule-based doctrine for gradually returning our constitutional law to the original meaning without upsetting the reliance interests that stare decisis rightly protects. While originalists, like Justice Scalia, have been extremely critical of the prospective overruling that the Warren Court used to implement its constitutional revolution, we here defend an approach to prospective overruling that would avoid these originalist criticisms. We show that prospective overruling is a legitimate form of the common law of precedent and thus encompassed by the judicial power. We also show that prospective overruling is not dictum that runs afoul of the Constitution's case-or- controversy requirement. In many cases, the substantive constitutional question is so intertwined with the question of precedent that a decision on a provision's original meaning is necessary to decide the stare decisis issue. In other cases, the resolution of the substantive question should be treated as a holding, even if not strictly necessary to the result, because the question was answered using a method that appears designed to resolve the case. We then illustrate how and when prospective overruling should be applied by reference to cases involving the Commerce Clause and the nondelegation doctrine., Introduction I. Precedent as a Common-Law Rule and the Trade-Off Between Originalism and Reliance A. The Problem of Precedent B. The Trade-Off Between Originalism and Reliance Interests C. The Scope [...]

TABLE OF CONTENTS I. SEPARATION OF POWERS AND THE REMOVAL POWER II. THE COMMERCE CLAUSE III. THE ASSAULT ON CHEVRON AND STATUTORY INTERPRETATION DEFERENCE TO ADMINISTRATIVE INTERPRETATION A. The Erosion [...]

INTRODUCTION Uber and Lyft are the two largest examples of what are colloquially known as ride-share companies. (1) Put simply, these companies operate by connecting ride share drivers ('Drivers') with [...]

I. INTRODUCTION '[W]ine,' Thomas Jefferson once said, '[is] a necessary of life with me.' (1) The French Ambassador turned president spent well over $365,000 in today's currency on imported wines [...]

Despite over 200 years of deliberation and debate, the United States has not adopted a federal corporate chartering law. Instead, Delaware is the 'Federal Option' for corporate law and adjudication. The contemporary federal corporate chartering debate is, in part, a referendum on its role. Although the federal government has regulated other aspects of interstate commerce and has the power to charter corporations and preempt Delaware pursuant to its Commerce Clause power, it has not done so. Despite the rich and robust scholarly discussion of Delaware's jurisdictional dominance, its role as a de facto national regulator remains underdeveloped. This Article addresses a vexing question: Can Delaware, a haven for incorporation and adjudication, serve as an effective national regulator? Following an analysis of federal chartering alternatives, such as the Nader Plan, the Warren Plan, the Sanders Plan, and other modes of regulation, the answer is yes, but with some caveats and qualifications. Delaware's adequate, if imperfect, performance as a surrogate national regulator of corporate internal affairs argues against the upheaval of the existing corporate law framework federal chartering would bring. Even in the contemporary moment where longstanding concerns about corporate power, purpose, accountability, and the uneasy relationship between corporations and society are amplified, Delaware can continue to perform an important agency- like role in collaboration with federal regulators and regulated firms. A deeper examination comparing the merits of federal corporate chartering with Delaware's de facto agency function illuminates the potential of existing and future reforms. This Article concludes that federal chartering proposals have an important impact despite not being adopted for centuries. First, federal chartering proposals encourage policymakers to look beyond the status quo toward greater hybridization in regulatory design. Second, elements of previous federal chartering proposals have historically become successful 'a la carte' reforms or part of other successful reform measures. Third, federal chartering proposals provide value as a bargaining tool where the threat of more intrusive federal regulation makes other reform methods more palatable to diverse corporate constituencies., INTRODUCTION I. DELAWARE AS A DE FACTO AGENCY A. Corporate Lawmakers B. Delaware's Institutional Dynamics C. Federal Lawmaking D. The Agency Analogy II. THE FEDERAL CHARTERING DEBATE A. The Recurrence [...]

INTRODUCTION Priding itself on the amateurism present in its sports, the National Collegiate Athletic Association (NCAA) has long disallowed its athletes from making money from their athletic abilities while in [...]

INTRODUCTION 2108 I. LICENSING TO CHILL: THE CHILLING EFFECT OF STATE DIRECT-SHIPMENT LICENSING FEES ON DTC COMMERCE 2111 A. State Direct-Shipment Licensing Frameworks 2111 B. DtC Licensing Fees Are Prohibitively [...]

Introduction 949 I. Background 950 A. The Lawsuit: New Hampshire v. Massachusetts 950 B. Agglomeration Economics 951 C. Doctrine 954 II. Mistaken Contentions of New Hampshire and Its Amici 958 [...]

INTRODUCTION Amazon is among a large list of corporations that have long tried to enforce mandatory arbitration against delivery drivers who file suit in their respective jurisdictions. (1) In recent [...]

States are increasingly legalizing and regulating recreational marijuana, largely as a result of their citizens' actions. The sale of recreational marijuana is strictly regulated, but jurisprudence within the field is scarce. Among these regulations, some states have imposed a durational residency requirement as a prerequisite for a retail marijuana license. Such a requirement mirrors those imposed on retail liquor licenses the Supreme Court recently struck down. States have imposed durational residency requirements in many contexts throughout history and, while some are upheld, many are struck down as unconstitutional impingements on the right to travel. However, courts also use the dormant Commerce Clause doctrine to invalidate such requirements, as seen in the recent case Tennessee Wine & Spirits Retailers Ass'n v. Thomas. This Note explores the constitutionality of durational residency requirements for retail marijuana licenses under the right to travel line of cases and the dormant Commerce Clause doctrine, and ultimately concludes that such requirements should be abolished., Introduction 1440 I. The History of Durational Residency Requirements and Marijuana 1442 A. The Right to Travel: Supreme Court Jurisprudence on State-Imposed Durational Residency Requirements, 1443 B. Under the Influence: [...]

Sports betting plays a major role in how fans and spectators enjoy sports. Fans place bets in their living rooms, engage in online fantasy sports, and travel to Nevada for massive Super Bowl parties just for the thrill of wagering on the 'big game.' Yet, until 2018, the federal government banned sports betting, making states unable to exploit this lucrative business, even though the sports betting industry estimates that billions of dollars are spent on illegitimate sports wagering. With the recent striking of the federal ban on the regulation of sports betting, states have begun to benefit from sports betting within their own borders, creating a patchwork of legislation that operators must navigate. But state-specific legislation does not fully solve the problem of unregulated and untaxed interstate gambling that is still bound to occur. To take advantage of untaxed revenue and protect citizens who might otherwise explore illegitimate and unsafe betting options, this Note argues the federal government must enact comprehensive laws legalizing and creating rules specifically for interstate sports betting operators., TABLE OF CONTENTS I. THE LEGISLATION BANNING SPORTS BETTING AND ITS (PARTIAL) DOWNFALL 164 A. Legislation and Case Law History 164 1. The Wire Act 164 2. Professional and Amateur [...]

The past twenty-five years have seen a dramatic reevaluation of the judiciary's understanding of the Commerce Clause, hallmarked by a categorical approach to activity the Clause can reach. Congress has adapted as well, attempting to shore up the constitutionality of legislation by including language aimed at tying regulated activity to the Clause's categorical jurisdiction (so-called 'jurisdictional elements'). Some courts have struggled in squaring these categorical limits with a traditionally broad understanding of Commerce Clause power. The Fourth Circuit's conviction of James Hill for a bias-motivated assault was one such struggle. This Recent Development argues that the Fourth Circuit's decision in United States v. Hill improperly analyzed Hill's conviction under the Hate Crimes Prevention Act in a manner unmoored from Commerce Clause precedent., INTRODUCTION: UNITED STATES V. HILL Amazon opened its Chester, Virginia, facility in 2012. (1) The expansive facility is responsible for storing, packaging, and shipping millions of products with help from [...]

CONSTITUTIONAL LAW--CATCHING FLIGHTS AND COURT CASES--United States v. Park, 938 F.3d 354 (D.C. Cir. 2019). Article I, Section 8 of the United States Constitution specifies powers vested in Congress, including [...]

I. INTRODUCTION In South Dakota v. Wayfair, Inc., the United States Supreme Court fundamentally reshaped more than a century of precedent on the Dormant Commerce Clause. While this decision carries [...]

CONSTITUTIONAL LAW--WHAT HAPPENED ABROAD SHOULD HAVE STAYED ABROAD: THE FOREIGN COMMERCE CLAUSE AND NOT-SO-SUBSTANTIAL EFFECTS--United States v. Durham, 902 F.3d 1180 (10th Cir. 2018). The Commerce Clause of the United [...]

In 2018, the U.S. Supreme Court decided South Dakota v. Wayfair, Inc., a case abrogating the physical presence rule from Quill Corp. v. North Dakota. The physical presence rule barred a state from forcing a retailer to collect sales taxes on the state's behalf if the retailer lacked a physical presence within the state. The decision came after a decades-long effort by the states to reach sales-tax revenue effectively pushed beyond their reach by the physical presence rule. While enabling states to reach a new revenue source, the Court failed to take full account of the reliance interests dependent on the physical presence rule. In particular, the Court did not consider the effect its decision would have on businesses that used the physical presence rule as a shield from state income-tax liability. Thus, the Court erred in abrogating the physical presence rule without considering the full picture. This Note argues that Congress should pass legislation reinstating the physical presence rule for income-tax purposes to ensure that the Wayfair decision will not result in an unanticipated disruption in commerce., INTRODUCTION 1392 I. ORIGIN AND RATIONALE OF THE PHYSICAL PRESENCE RULE 1395 A. The Dormant Commerce Clause: A Shield Against the State 1395 B. The Road to Wayfair 1397 1. [...]

Sexual assault remains at high levels despite decades of legal reforms. The recent wave of accusations against public figures signals both the persistence of the problem and a new political climate for addressing it. The Article argues that Congress should make forcible rape a federal crime, to the limits of the Commerce Clause. This would bring federal assets to the fight against rape by redirecting them from enforcement of possessory crimes. The simple statutory proposal might be accompanied by a more ambitious reorganization of the Justice Department to include a Bureau of Violent Crimes. Replies are offered to objections based on federalism, feminism, civil liberties, and systemic feedback loops., TABLE OF CONTENTS INTRODUCTION 1688 I. STATE ENFORCEMENT ALONE HAS MADE LITTLE PROGRESS AGAINST RAPE 1693 A. Extent and Trend of Victimization 1693 B. Reporting, Complaint Processing, Prosecutions, and 1700 [...]

Abstract: The states that have legalized cannabis maintain a complicated relationship with the federal government. Since the Ogden Memorandum was issued in 2009, the federal government has left regulation of [...]

Abstract: The constitutional use taxation framework, which regulates the circumstances under which states can require out-of-state sellers to collect and remit use taxes on products sold for use within the [...]

Justice Kennedy's concurring opinion in Direct Marketing Association v. Brohl marked a rare occasion: a Supreme Court Justice urged states to promulgate laws that violate the Commerce Clause. The hope that Justice Kennedy shares with the states is that the Supreme Court will ultimately have an opportunity to recraft the Commerce Clause analysis in relation to sales and use tax collection. Given the chance, Justice Kennedy would do away with Quill Corp. v. North Dakota's physical presence standard and replace it, in all likelihood, with some sort of measurement based on an out-of-state vendor's economic presence in the state. As the issue plays out in coming years, the Commerce Clause will take center stage. In all of this though, the Due Process Clause should not be ignored. This Article considers due process implications related to state economic nexus laws that were promulgated in response to Justice Kennedy's concurring opinion. It identifies due process vulnerabilities among these laws and offers a recommendation on how the states might accommodate both the Commerce Clause (assuming a reversion from physical presence) and the Due Process Clause. To complement this discussion, a due process analysis is offered with respect to state notice-and-reporting statutes. The Tenth Circuit recently upheld Colorado's notice-and-reporting law as a lawful exercise of state power under the Commerce Clause. Other states have followed Colorado's model and enacted their own versions. This Article tests these laws for due process vulnerability and identifies Louisiana's version as a model for other states., Table of Contents I. Introduction 834 II. Quill and Due Process 841 III. Economic Nexus 841 A. Alabama 842 B. South Dakota 843 C. Vermont 845 D. Analysis 845 1. [...]

This Article provides a comprehensive examination of post-recession sales tax nexus expansion developments as a primer for what is likely to be continued rapid developments and judicial conflict. States advanced expansive approaches to sales tax nexus as the nation emerged from the Great Recession. Those approaches included attributional nexus techniques like click-through nexus, affiliate nexus, and conventional agency nexus, as well as alternative techniques like use tax notice requirements and negotiated presence. The post-recession state-level sales tax nexus expansion phenomenon was accelerated by Justice Kennedy's call to find an appropriate case for the United States Supreme Court to reexamine the bright-line physical presence rule for sales tax nexus. The states responded provocatively with economic nexus, more notice requirements, more click-through nexus, more affiliate nexus, more conventional agency nexus, and more negotiated presence. All this state action has provoked federal activity legislatively and judicially. Congress responded by enacting the Trade Facilitation and Trade Enforcement Act of 2015 with provisions making the Internet Tax Freedom Act's state and local taxation limitations permanent. The United States Supreme Court denied certiorari on Colorado's use tax notice requirements for out-of-state retailers. Moving forward, states are likely to continue to expand sales tax nexus within the bright-line physical presence rule. Economic nexus' viability is hobbled by ongoing litigation in Alabama and South Dakota. The viability of attributional nexus techniques, like click-through nexus, affiliate nexus, and conventional agency nexus, remain strong. Alternative sales tax nexus expansion techniques, like use tax notice requirements and negotiated presence, also remain viable. These dynamics are likely to cause further innovation in expanding attributional nexus through e-commerce and integrated business activities, further innovation in alternative techniques like use tax notice requirements and negotiated presence, and more state-level variations in sales tax nexus criteria., Table of Contents I. Introduction 908 II. Legal Backdrop 911 III. Economic Nexus 913 IV. Notice 916 V. Attributional Nexus 921 A. Click-Through Nexus 921 B. Affiliate Nexus 929 C. [...]

I. Introduction The taxpayer's successful challenge of Maryland's tax scheme in Comptroller of Treasury of Maryland v. Wynne placed the constitutionality of many states' tax schemes into question. (1) The [...]