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E-Commerce and the Commerce Clause

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Nick Weiss

on 19 April 2011

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Transcript of E-Commerce and the Commerce Clause

Prevailng Interpretations... 1 Is there a place for Original Intent...or maybe original definitions? Commerce pertains to buying and selling... Two Quintessential Readings An Introduction... E-Commerce and the Commerce Clause The Constitution (first article) gives Congress the authority to regulate commerce "among the several States" The interpretation of this clause has varied, yet there has been somewhat of a general understanding...at least for the most part This being said, the advent of the internet has raised new questions concerning the scope of Commerce Clause jurisdiciton... The Internet...whose domain? 2 The Marshall Interpretation The Taney-esque Interpretation Associate Justice Clarence Thomas ...but is this fanciful history or accurate investigation? Challenges posed by the Internet... transmissions don't necessarily stop at jurisdictional borders At issue is the "Dormant" Commerce Clause A Federalist System of Regulation... There is little reason to question Federal authority concerning e-Commerce ...but that does not mean that States should be prohibited
from pursuing their own initiatives Concerns about extraterritoriality, inconsistent regulations, and disproportionate costs and benefits are overblown a la Taney, if these measures are sufficiently local in character and
do not conflict with Federal law then States should be relatively free-handed
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