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Thursday, March 16, 2023
Mason Presents Bounded Extraterritoriality Right now At UCLA
Ruth Mason (Virginia; Google Scholar) presents Bounded Extraterritoriality (with Michael Knoll (Penn)) at UCLA at present as a part of its Colloquium on Tax Coverage and Public Finance hosted by Kirk Stark and Jason Oh:
Politics in america is ever extra divided, stymying federal laws. States have responded to this political polarization and congressional gridlock by searching for to impose their insurance policies exterior their very own borders. Outstanding examples embrace current California regulation of the composition of company boards, together with of corporations integrated in Delaware, in addition to regulation of the dimensions of cages that confine hogs situated in different states. The Supreme Court docket’s withdrawal of the federal proper to abortion likewise has impressed legislative proposals in abortion-restrictive states meant to hamper or forbid residents from searching for abortion companies not solely at house, but in addition in abortion-permitting states. The twenty-first century has impressed a brand new mode of interstate “rivalries and reprisals” consisting not of the tariffs that plagued the Founding, however reasonably of substantive regulation that state legislatures intentionally goal outward, to conduct going down in different states.
This Article explores dormant Commerce Clause limits on extraterritorial state regulation. We argue that commentators and courts have conflated three distinct strands of dormant Commerce Clause doctrine—nexus, extraterritoriality, and burdens—resulting in each under- and over-enforcement of the precept of extraterritoriality. Prior commentators have concluded that, as a result of almost all regulation has spillover results in different states, there exists no legally or conceptually defensible restrict to extraterritoriality. The absence of a limiting precept has led some decrease courts to learn extraterritoriality out of the dormant Commerce Clause, whereas it has led different decrease courts to preclude state laws overzealously, threatening, within the view of some, a brand new Lochner period.
We offer a limiting precept. A state regulates in an unconstitutionally extraterritorial method when it makes use of an internally inconsistent jurisdictional foundation. A jurisdictional foundation is internally inconsistent when use by all states of that very same jurisdictional foundation would lead to duplicative regulation of interstate commerce. We derive the interior consistency take a look at from the Court docket’s jurisprudence evaluating the extraterritoriality of tax legal guidelines, and we clarify why the identical method is sensible in regulation circumstances. The interior-consistency method to extraterritoriality forces states to slender the bases upon which they promulgate guidelines, which inspires them to pick out a foundation with significant native impacts, thereby decreasing extraterritorial results and avoiding interstate animosities.
https://taxprof.typepad.com/taxprof_blog/2023/03/mason-presents-bounded-extraterritoriality-today-at-ucla.html
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