Issue 8

A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause

The dormant Commerce Clause, though a longstanding feature of American constitutional law, is of dubious legitimacy. Or so some argue (and many have come to believe). The Clause is the target of frequent attack by justices and commentators, usually of an originalist bent. They claim the Clause is without textual support, has “no basis” in Founding-era history, and is the platform for an unjustified intrusion of the federal judiciary into the affairs of the states.

But they’re wrong. This Article provides a comprehensive response to the dormant Commerce Clause Skeptics from an historical and originalist perspective. Far from lacking legitimacy, the Clause has deep roots in Founding history. It addresses one of the central problems that drew the Framers to the Philadelphia Convention, and it employs the very device for reviewing state legislation the Framers preferred, judicial review. From a historical perspective, the Court’s modern dormant Commerce Clause doctrine is actually far more respectful of state authority than the understanding of the Clause likely held at the time of the Framing. But looking with presentist eyes, the Skeptics miss this entirely. The story of the dormant Commerce Clause is one of many twists and turns, nearly inscrutable doctrine, and political manipulations. But no matter what other problems the doctrine may suffer, its fundamental legitimacy is not among them.

Globalized Corporate Prosecutions

In the past, domestic prosecutions of foreign corporations were not noteworthy. Federal prosecutors now advertise a muscular approach targeting major foreign firms and even entire industries. High-profile prosecutions of foreign firms have shaken the international business community. Not only is the approach federal prosecutors have taken novel, but corporate criminal liability is itself a form of American Exceptionalism, and few other countries hold corporations broadly criminally accountable. To study U.S. prosecutions of foreign firms, I assembled a database of publicly reported corporate guilty plea agreements from the past decade. I analyzed U.S. Sentencing Commission data archives on federal corporate prosecutions and also data concerning federal deferred and non-prosecution agreements with corporations. Not only are large foreign firms prosecuted with some frequency, but they typically plead guilty, are convicted, and then receive far higher fines than otherwise comparable domestic firms. In this Article, I develop how foreign corporate convictions have become common in distinct substantive criminal areas, and how they share important features. The prosecutions are concentrated in crimes prosecuted by Main Justice, and international treaties and cooperation agreements have facilitated extraterritorial prosecutions. Larger and public foreign firms are prosecuted, and the typical resolution involves not only higher fines, but also a guilty plea and not pre-indictment leniency. I argue that due to their new prominence, we should consider foreign corporation prosecutions as a group so that we can better evaluate and define the emerging prosecution approach.


Structural Exceptionalism and Comparative Constitutional Law

For over the past two decades, there has been an ongoing debate over whether the Supreme Court should rely on comparative constitutional law when interpreting the U.S. Constitution.This Note offers an exceptionalist critique of the practice. Specifically, it argues that the U.S. Constitution’s exceptional view of the role of the judiciary cautions against this use of comparative constitutional law. The U.S. Constitution is rare among contemporary charters in its reflection of the belief that the judicial branch should be confined to matters of law instead of questions of policy. This separation of law and politics is primarily expressed in the relative absence of institutional safeguards to control the federal judiciary. Whereas architects of foreign constitutions expected some judicial policy-making and consequently built in ex ante and/or ex post controls into their systems, the U.S. Constitution treats the judiciary as a relatively unthreatening institution. This Note contends that when the Supreme Court draws on the constitutional law of these countries without their accompanying safeguards, it risks that the reasoning of foreign judges will operate unconstrained by the checks they took for granted and lead to unintended costs for American society.

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