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Christenson on Cuno: A Normative Change in the Dormant Commerce Clause?

Crist_1Thomas B.R. Christenson (Meissner Tierney Fisher & Nichols, Milwaukee) has published Cuno v. DaimlerChrysler: A Normative Change in the Application of the Dormant Commerce Clause as Applied to State Taxation, 32 Ohio N.U. L. Rev. 23 (2006).  Here is part of the Introduction:

The purpose of this article is to analyze the court’s decision and to discuss how it departs from Supreme Court precedent. The Sixth Circuit’s decision departs from the underlying normative theory of the Commerce Clause. The normative theory under the Commerce Clause is that a state, by raising its tax rate, inhibits the free trade of commerce across state lines and thereby violates the Constitution. The Sixth Circuit’s decision changes that theory, in that if followed, the normative theory is that the collective taxation in all states is the norm, and that if a state chooses not to tax it violates the Commerce Clause.


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