1. CONSTITUTIONAL LAW SPRING 2008 PROF. FISCHER Class 25 The Dormant Commerce Clause Part I

2. Cooley v. Board of Wardens of the Port of Philadelphia (1851) [C p. 388] Justice Benjamin Curtis (joined by Taney, Catron, Nelson, Grier, McKinley) 2 dissenters (McLean, Wayne) Justice Daniel dissented in reasoning but joined the judgment

3. Shift to a Balancing Approach South Carolina State Highway Dep’t v. Barnwell (1938) [C p. 390] (unanimous opinion of Stone; Cardozo and Reed did not participate) Southern Pacific Co. v. Arizona (1945) [C p. 391] (majority opinion of Stone; Black and Douglas dissented (counsel deference to legislature; disagree that unwise government policy to limit the length of trains))

4. Balancing Differs Depending on whether law is discriminatory (strict scrutiny) or not discriminatory (a type of intermediate scrutiny)

5. When is a Law Discriminatory? 2 ways 1. Facial discrimination 2. Discriminatory in purpose or effect

6. Philadelphia v. New Jersey (1978) [C p. 395] Majority by: Stewart Joined by: Brennan, White, Marshall, Blackmun, Powell, Stevens Dissent by: Rehnquist Joined by: Burger

7. The 16 year voyage of the Khian Sea Barge

8. C & A Carbone, Inc. v. Town of Clarkstown, New York (1994) [C p. 397]

9. Majority opinion by Kennedy, joined by Stevens, Scalia, Thomas, Ginsburg Concurrence by: O'Connor Dissent by: Souter Joined by: Rehnquist, Blackmun

10. Hughes v. Oklahoma (1979) [C p. 401]

11. Majority by Brennan, joined by Stewart. White, Marshall, Blackmun, Powell, and Stevens Rehnquist filed a dissenting opinion, in which Burger joined

12. Hunt, Governor of North Carolina v. Washington State Apple Advertising Comm’n (1977) [C p. 402] Unanimous Opinion of the Court by Burger

13. West Lynn Creamery, Inc v. Healy (1994) [C p. 407] Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, and Ginsburg joined. Scalia filed an opinion concurring in the judgment, in which Thomas joined Rehnquist filed a dissenting opinion, in which Blackmun joined.

14. Exxon Corp. v. Governor of Maryland (1978) [C p. 404] Stevens wrote majority opinion; he was joined by: Burger, Brennan, Stewart, White, Marshall, Rehnquist Blackman was the only dissenter

15. State of Minnesota v. Clover Leaf Creamery (1981) [C p. 409] Justice Brennan wrote majority opinion, joined by Marshall, Burger, White, Stewart, Powell, Blackmun Rehnquist did not participate Stevens was the sole dissenter Clover Leaf Creamery acquired by Kemps in 1979 which became part of MA Hood company in 2004