Preserving the American Common Market: State and Local Governments in the United States Supreme Court

Abstract

The dormant Commerce Clause of the U.S. Constitution, according to the Supreme Court, creates a free trade zone among the states. This article argues that state and local governments act as "fire alarms" in dormant Commerce Clause cases, bringing to the Supreme Court's attention laws of other states that interfere with this American common market. Because states are more reliable fire alarms than private parties, the article predicts that the Court is more likely to strike down statutes opposed by other states than ones without state opposition. The empirical evidence presented is consistent with that prediction. The Court's ability to learn from fire alarms enhances the effectiveness of its oversight of interstate trade, and supports the Court's role under the dormant Commerce Clause in preserving the American common market.