A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine
2003; Routledge; Volume: 45; Issue: 1 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)Law, Economics, and Judicial Systems
ResumoABSTRACT While the Commerce Clause neither mentions federal courts nor expressly prohibits the exercise of state regulatory powers that might operate concurrently with Congressional commerce powers, the Supreme Court has long used the dormant Commerce Clause doctrine to limit the power of states to regulate across a diverse array of subject areas in the absence of federal legislation. Commentators have criticized the Court less for creating the doctrine than for applying it in a seemingly inconsistent, or even haphazard way. Past commentators have recognized that a game theoretical model, the prisoners dilemma, can explain the role of the dormant Commerce Clause doctrine in promoting cooperation among states by inhibiting a regime of mutual defection. This model, however, provides at best a partial account of existing dormant Commerce Clause doctrine, and sometimes seems to run directly counter to actual case results. The difficulty is not the power of game theory to provide a positive account of the cases or to provide the dormant Commerce Clause doctrine with a meaningful normative foundation. Rather, the problem has been the limited choice of models drawn from game theory to explain the conditions in which states rationally elect to avoid mutually beneficial cooperative strategies with other states. Professor Stearns shows how a state might avoid cooperation in a situation not captured in the prisoners dilemma account to disrupt a multiple Nash equilibrium game, thus producing an undesirable mixed-strategy equilibrium in place of two or more available pro-commerce, pure Nash equilibrium outcomes. At the same time, the defecting state secures a rent that only becomes available as a consequence of the pro-commerce, pure Nash equilibrium strategies of surrounding states and that is closely analogous to quasi-rents described in the literature on relational contracting. The combined game theoretical analysis, drawing upon the prisoners' dilemma and multiple Nash equilibrium games, not only explains several of the most criticized features of the dormant Commerce Clause doctrine and several related doctrines, but also underscores the proper normative relationship between the dormant Commerce Clause doctrine and various forms of state law rent seeking. I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. For one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the Commerce Clause was meant to end. (1) [I]n the 114 years since the doctrine of the negative Commerce Clause was formally adopted as [a] holding of this Court ... and in the 50 years prior to that in which it was alluded to in various dicta of the Court ... our applications of the doctrine have, not to put too fine a point on the matter, made no sense. (2) INTRODUCTION Describing the pivotal scene in A Beautiful Mind, (3) the 2002 Academy Award winner for Best Picture, is perhaps more problematic for its mathematical than for its political incorrectness. The disturbed but brilliant John Nash, a mathematics graduate student at Princeton, is in a bar with four male classmates. The men spot a group of women that includes an extremely attractive blonde woman. One of Nash's classmates offers the following assessment: According to the teachings of Adam Smith, if all members of the group pursue the blonde woman, competition, or the invisible bond, will increase the likelihood that each man will achieve his desired goal of scoring with one of the women. (4) In a burst of mathematical, if not hormonal, inspiration (Nash leaves the bar without pursuing any of the women), Nash suddenly realizes that this two century-old conventional economic wisdom--suggesting that competition produces the socially optimal result--is misplaced in this context. …
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