Monday, August 24, 2009

Potential Dormant Commerce Clause Case Before Supreme Court

The SCOTUS Blog has an interesting post about a petition for cert recently filed in the Supreme Court. The post, titled "Tracking new cases: A test of 'protectionism'" can be found here. The article states, among other things:
Those are variations on Commerce Clause themes that are now being tested in the Supreme Court, in a new case filed last Friday. The petition — in Brown, et al., v. Hovatter, et al. – is here; it has not yet been assigned a docket number. It challenges a Fourth Circuit Court ruling last March; that decision can be found here.

If the Court were to hear the case, it could provide a significant new review of the scope of the so-called “dormant Commerce Clause” — explicitly, whether that Clause’s scope protects the movement of investment capital across state lines, and whether it protects the choice of a particular structure or form for doing business. Those issues arise in a test of a Maryland law regulating the funeral business, a law that a federal judge who struck down the law (only to be reversed on appeal) called “the most blatantly anti-competitive state funeral home regulation in the naton.”


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