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Bittker on the Regulation of Interstate and Foreign Commerce, Second Edition

Bittker on the Regulation of Interstate and Foreign Commerce, Second Edition

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Overview

With Bittker on the Regulation of Interstate and Foreign Commerce, Second Edition, the authors supply a valuable analysis of constitutional commerce doctrine.

Boris Bittker, the universally recognized authority on federal taxation, turns his formidable talents with the assistance of Brannon P. Denning to an analysis of interstate and foreign commerce in this important work. With its Lopez ruling in 1995, the U.S. Supreme Court signaled a new era in interpretation of the Commerce Clause of the Constitution. Bittker and Denning respond to the many unanswered questions in the wake of the Lopez decision as well as the dramatic changes surrounding electronic commerce as they cover the full range of commerce topics, including the Federal Export Tax Bank, the Supremacy Clause, the Dormant Commerce Clause, economic protectionism by the states, commerce on the Internet, the Indian Commerce Clause, postal, military, and spending powers, the treaty power, the 21st Amendment, and much more. They also explore and explain the effect of the interpretation of the commerce power on various industries, including aviation, banking and financial services, insurance, and shipping. Their insightful analysis of court decisions illuminates the probable judicial approach to both existing and new legislation.

Last Updated 06/11/2019
Update Frequency Semi-annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
SKU 10046436-7777
Table of Contents

Chapter 1 BACKGROUND AND EARLY HISTORY

  • Introduction
  • The Commerce Clause in Justice Marshall's Day
  • The Marshall Court's Legacy

 

Chapter 2 SCOPE OF THE POWER TO REGULATE

  • 2.01 The Power to “Regulate”
  • 2.02 Federal Regulation of Private Behavior
  • 2.03 Prohibitions as “Regulations” of Interstate Commerce
  • 2.04 Regulating Interstate Commerce for “Non-Commercial” or “Ulterior” Purposes: The National Police Power
  • 2.05 Commercial Law as a “Regulation” of Commerce: Introduction
  • 2.06 Taxes as “Regulations” of Commerce
  • 2.07 Requiring the Purchase of a Product as a “Regulation” of Commerce

 

Chapter 3 THE MEANING OF COMMERCE

  • 3.01 Introduction: The Meaning of “Commerce”
  • 3.02 Modes of Transportation
  • 3.03 Civil Aviation
  • 3.04 Manufacturing vs. Commerce
  • 3.05 Mining and Agriculture
  • 3.06 Telecommunications
  • 3.07 Transmission of Power
  • 3.08 Regulation of Insurance
  • 3.09 Banking and Other Financial Services
  • 3.10 Labor and Personal Services as “Commerce”
  • 3.11 Movement of Persons as Commerce
  • 3.12 Shipment of Deleterious Products as “Commerce”
  • 3.13 Crime as “Commerce”
  • 3.14 Non-Profit Activities as “Commerce”
  • 3.15 Trade in State's Natural Resources as “Commerce”
  • 3.16 Inactivity as “Commerce”

 

Chapter 4 INTRASTATE VS. INTERSTATE COMMERCE

  • 4.01 Introduction
  • 4.02 The State “Police Power” Morass
  • 4.03 Cooley v. Board of Wardens—Local vs. National “Subjects”
  • 4.04 Exports: When Does Interstate Commerce Begin?
  • 4.05 Imports: When Does Interstate Commerce End?
  • 4.06 Interruptions En Route

 

Chapter 5 FEDERALIZATION OF LOCAL ACTIVITIES

  • 5.01 Commerce “Among the Several States”: Introduction
  • 5.02 The Supreme Court's Zig-Zags, 1918-1941
  • 5.03 Multum in Parvo: Every Little Bit Counts
  • 5.04 United States v. Lopez (1995) and Its Progeny: About-Face, Detour, or Misstep?
  • 5.05 Federal Forbearance: Introduction
  • 5.06 Federal Preemption: Introduction

 

Chapter 6 THE DORMANT COMMERCE CLAUSE: RESTRICTIONS ON STATE REGULATORY POWERS

  • 6.01 Introduction
  • 6.02 The Dormant Commerce Clause as a Grant of Exclusive Authority to Congress
  • 6.03 “National” vs. “Local” Subjects: The Heritage of Cooley v. Board of Wardens
  • 6.04 “Direct” vs. “Indirect” Effects on Interstate Commerce
  • 6.05 “Balancing” State and National Interests
  • 6.06 Economic Protectionism: Introduction
  • 6.07 Common Dormant Commerce Clause Doctrine Challenges
  • 6.08 Multiple State Regulatory Burdens on and Extraterritorial State Regulation of Interstate Commerce
  • 6.09 Overlapping Constitutional Coverage: The Commerce Clause, The Privileges and Immunities Clause of Article IV, and the Fourteenth Amendment
  • 6.10 Suing States for Violations of the Dormant Commerce Clause

 

Chapter 7 EXCEPTIONS TO THE DORMANT COMMERCE CLAUSE DOCTRINE

  • 7.01 Introduction
  • 7.02 The Market Participation Exception and Its Scope
  • 7.03 The “Relevant” Market
  • 7.04 Municipal Waste Removal: The Markets
  • 7.05 Taxation as Market Participation?
  • 7.06 State-Wide Mandates to Subordinate Political Legal Entities
  • 7.07 Postscript
  • 7.08 Discrimination in Favor of Publicly Owned Entities

 

Chapter 8 STATE AND LOCAL TAXATION

  • 8.01 Introduction
  • 8.02 Emergence and Fall of the Direct/Indirect Dichotomy
  • 8.03 Balancing State and National Interests in State Tax Cases
  • 8.04 Chief Justice Stone's Criteria for State Taxes
  • 8.05 Discrimination Against Interstate Commerce
  • 8.06 “Compensatory” Taxes
  • 8.07 Multiple State Tax Burdens
  • 8.08 The Apportionment Principle
  • 8.09 Revival of Direct/Indirect Formalism
  • 8.10 Complete Auto Transit, Inc. v. Brady
  • 8.11 Internal and External “Consistency”
  • 8.12 The Multistate Tax Compact
  • 8.13 Federal Intervention
  • 8.14 State Taxation of Foreign Commerce

 

Chapter 9 CONGRESSIONAL CONSENT TO OTHERWISE UNCONSTITUTIONAL STATE REGULATIONS OF COMMERCE (RECONVEYANCE)

  • 9.01 Introduction
  • 9.02 Early Development and Theory of Congressional Consent Principle
  • 9.03 Static and Dynamic Conformity
  • 9.04 Current Law
  • 9.05 Congressional Consent, State Taxes, and the Uniformity Clause
  • 9.06 Proving Congressional Consent

 

Chapter 10 THE FOREIGN AND INDIAN COMMERCE POWERS

  • 10.01 Introduction: The Foreign Commerce Clause
  • 10.02 The “Affirmative” Congressional Power over Foreign Commerce
  • 10.03 Dormant Foreign Commerce Clause Restrictions on State Actions
  • 10.04 State Taxation of Foreign Commerce
  • 10.05 The Indian Commerce Clause

 

Chapter 11 PROHIBITION OF FEDERAL TAXES ON EXPORTS AND PORT PREFERENCES

  • 11.01 Introduction: Federal Export Tax Clause
  • 11.02 The Meaning of “Articles Exported”
  • 11.03 “Tax” or “User Fee”?
  • 11.04 Port Preference Clause

 

Chapter 12 STATE IMPORT-EXPORT TAXES AND TONNAGE DUTIES

  • 12.01 Introduction: The Import-Export Clause
  • 12.02 Interstate Commerce and the Import-Export Clause
  • 12.03 “Status of U.S. Territories and Possessions”
  • 12.04 Imports: The Michelin Tire Case and the Demise of the Original Package Doctrine
  • 12.05 “Imposts or Duties on Imports or Exports”
  • 12.06 Exports after the Michelin Tire Case
  • 12.07 Goods in Transit
  • 12.08 Inspection Charges
  • 12.09 Congressional Consent
  • 12.10 Tonnage Duties

 

Chapter 13 THE REGULATION OF LIQUOR UNDER THE TWENTY-FIRST AMENDMENT

  • 13.01 Introduction: The Eighteenth Amendment
  • 13.02 Drafting and Ratification of the Twenty-First Amendment
  • 13.03 The Twenty-First Amendment and the Dormant Commerce Clause
  • 13.04 Residual Commerce Clause Restrictions on State Regulation of Liquor
  • 13.05 Other Constitutional Restrictions on State Regulation of Liquor
  • 13.06 The Effect of the Twenty-First Amendment on the Power of Congress to Regulate Interstate Commerce
  • Appendix A Excerpts from the Philadelphia Confederation (1787)
  • Appendix B Confederation-Era Discrimination Against Interstate Commerce and the Legitimacy of the Dormant Commerce Clause Doctrine
  • Appendix C Reconstructing the Dormant Commerce Clause Doctrine
  • Table of Cases
  • Table of Authorities
  • Index
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