Tuesday, September 11, 2007

I-300: A Victim of Judicial Objectivity

Yesterday, I had a small epiphany about why I find opinions like Jones v. Gale so frustrating. Very often the courts ignore the things I value when applying their limitless supply of 2-tiered, 3-step tests. I get excited about helping the underdog, small farmers included. I am a big fan of Eddie the Eagle. I also love Jamaican bobsledders and Seabiscuit. The courts, on the other hand, value objectivity and neutral decision rules, which don't often allow lawmakers to craft laws that help out the underdogs. Objectivity is a worthy goal, but I think courts take it too far sometimes.

Take for instance, Jones v. Gale. At its core, Nebraska was trying to help the underdog small farmer with I-300. Unfortunately, the Eighth Circuit's opinion did not allow the argument to center on the validity of this impulse. Instead, the court launched into its DCC analysis by reciting the rule that "the dormant commerce clause prohibits states from enacting laws that “discriminate against or unduly burden interstate commerce.” Jones v. Gale, 470 F. 3d 1261, 1267 (8th 2006). Then the court defined discrimination as "differential treatment of in-state and out-of-state economic interests."

At this point, I feel very frustrated. What is the point of state government if not to provide benefits to its citizens? I recognize that states should not harm their neighbors, but let's get real, they should at least try to help their own citizens. Starting the debate off on this foot forces the state into the strange position of pretending that it did not intend to help its own citizens at the expense of anyone else, but if it did, the help was necessary and couldn't be provided in any other way. This makes it likely that the state will obfuscate the real issues in its argument, which is exactly what the Eighth Circuit accused Nebraska of doing. Well, I think the court should just point that finger back at itself because its weird analysis brought on all the obfuscation in the first place.

In applying the 2-tiered test, the Eighth Circuit distanced itself from the real issues in the case. If this were the Lochner era I would smugly call the opinion formalist. I understand the judicial impulse to strive for objectivity. I do not need to extol its benefits because they are obvious. Rather, I feel the impulse to knock it. Strict objectivity encourages courts to consider concrete issues such as driving times instead of more important issues like morality and helping out poor people. The current DCC test confuses the issue of how much help a state can provide to its citizens which (please don't smite me for writing this!) might be a question best answered without an incremental test. This might make for inconsistent outcomes and case-by-case analysis, but so what. We already have inconsistency, so we might as well try to do a better job or producing it.


Blogger Anthony Schutz said...

Good post. I question the objectivity of making purpose-based inquiries. The interesting question, I think, is defining what purposes count as protectionist. As you mention, the notion of states wanting to help their own is common place. But the DCC may be concerned with trying to do that by harming outsiders. We've discussed this before. The line may, indeed, be fine. And it may not be an objective inquiry.

I also wonder if I-300 was a little-guy law. That is, it allowed large corporate farms so long as they had the correct ownership structure and performed the qualifying activities. Those may be "big," but maybe not as big as those that were restricted. The very identification of the underdog may be difficult, even if we employ the Eagle.

9/14/2007 9:19 AM  
Blogger Samantha Bohrman said...

Good point. I think that objective tests will more likely fail when used to evaluate the subjective motivations of lawmakers, especially when the lawmakers are a bunch of voters. I think that might be the root of the problem with the test.

Point well taken about the law too. I agree that Nebraska did not intend to help the real underdogs, at least no underdogs as far behind as Eddie the Eagle.

9/14/2007 4:43 PM  
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