Sunday, July 01, 2007

What Would Donna Reed Do?

Fellow blogger Morgan Holcomb recently turned me onto a very obscure debate occurring in the tax law/dormant Commerce Clause world. The two debaters are Edward Zelinsky and Brannon Denning. Both agree that dormant Commerce Clause analysis leads to inconsistent decisions. For example, DCC anaylsis gives discriminatory subsidies a free pass, but gives discriminatory taxes the boot, despite a similar economic effect. Zelinsky proposes abandoning the anti-discrimination principle, whereas Denning proposes changing the way it is applied.

Denning contends, and I have to agree, that abandoning the anti-discimination principle would hamstring the dormant Commerce Clause. First of all, I have to ask myself, do I care? Right now I don't. I'm more concerned with what to make for dinner. However, if I became a dairy farmer and Wisconsin blocked their market with really protectionist laws I might be bummed. That might not be likely, but I don't have a law job yet, so I want to preserve my options. Therefore, I vote to keep the dormant Commerce Clause and change the way it is applied.

Denning argues that national unity rather than protection of free trade should guide the analysis. This sounds great. I love national unity. However I'm trying to figure out how that would translate into a workable test and am a little stumped. Luckily I have a proposal. Those of you who are already disappointed in my lack of scholarly analysis, should stop reading . . . . . . . . . . . now.

I find it very confusing to think about discrimination at the state level and decided to try workable decision rules by thinking of simpler situations. Here is my best analogy: Instead of states, I'm going to think of several families, each with a couple of kids. All of the familes want to maximize the happines of their own children, but they don't want to hinder the happiness of the neighbors' kids. For example, the parents will probably try to pay for their childrens' educations. However, they would neither pay, nor tax the neighbor kids' college funds. Therefore, under my "what would Donna Reed do?" test, taxes are discriminatory and subsidies are OK. So far, I agree with the Supreme Court. Maybe they already talked about this? While many critics would knock my test for this result, I'm OK with it because it makes intuitive sense.

Next, I'm thinking about the Washington apple case, Hunt. Good parents would not disallow the neighbor kids from bragging about getting an A when visiting. The neighbor kid should definitely be given credit for a job well done. Therefore, I agree with the Supreme Court that Washington should be able to stamp all of its apples as Washington, even if it makes North Carolina apples look a little less impressive.

How about anti-corporate farming laws? In my Donna Reed world, the question would be - are the corporate farmers really "bullies?" If the corporate farmers really are bullies, then good parents would certainly not invite them over and might want to provide their children with some shelter. Therefore, if the corporate farmers truly are bullies and the bullying is not merely illusory, then anti-corporate farming laws should be upheld.

My Donna Reed test does not get us out of weighing burdens and benefits. However, by importing some blatant paternalism into the weighing of burdens and benefits, states would be allowed to enact a few more protectionist laws, which I think is a good idea. The free market is a rough place and some players, like family farmers, might need some extra help.

Therefore, as it stands now, I think the Justices should apply the Donna Reed test, with an eye toward national unity. (It's too bad I didn't get around to posting this on the fourth.)


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