The Economic Foundation of the Dormant Commerce Clause

Article — Volume 103, Issue 2

103 Va. L. Rev. 309
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In 2015, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court’s first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination cases, the internal consistency test. In deciding Wynne, the Court relied on economic analysis we provided in an amicus brief. This Article explains that analysis, why the majority accepted it, why the dissenters’ objections to the majority’s reasoning miss their mark, and what Wynne means for state taxation. Essential to our analysis and the Court’s decision in Wynne is the idea that states are capable of discriminating not only on an inbound basis, but also on an outbound basis, and that the Commerce Clause prohibits discrimination on either basis. To aid in explaining our position, this Article introduces the term “retentionism” as an analogue to protectionism. Whereas taxes or regulations are protectionist when they discourage outsiders from engaging in economic activities within a state, taxes or regulations are retentionist when they discourage in-state economic actors from engaging in outof-state activities. As we show, the tax struck down in Wynne was both protectionist and retentionist.

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  Volume 103 / Issue 2  

A Tactical Fourth Amendment

By Brandon Garrett and Seth Stoughton
103 Va. L. Rev. 211

The Economic Foundation of the Dormant Commerce Clause

By Michael S. Knoll and Ruth Mason
103 Va. L. Rev. 309

Government Admissions and Federal Rule of Evidence 801(D)(2)

By Jared M. Kelson
103 Va. L. Rev. 355