US v. Morrison -- question

[Douglas Laycock]

The trial lawyers carefully set up the facts in Raich; there was no
exchange.  Plaintiffs grew their own in their homes; the more disabled
plaintiffs had friends do it for them, for free.  The government's
theory was that there was production, which is economic, and which
substituted for a commerical exchange.
 
True enough, but equally true of all household production.  Cooking
dinner is production, and it substitutes for going out to a restaurant.
Picking up the mess in your bedroom produces a service of economic
value, and it substitutes for hiring a cleaning service.   On the
government's theory, the market transaction for which the household
production substitutes does not have to be a legal transaction, so more
intimate bedroom activities may also substitute for a commercial
transaction.
 
This does not overrule the exclusion of "noneconomic activities" in
Lopez and Morrison, but it announces a very expansive conception of what
counts as economic.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)
 

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Don Crowley
Sent: Thursday, November 03, 2005 3:39 PM
To: 'Sean Wilson'; conlawprof at lists.ucla.edu
Subject: RE: US v. Morrison -- question



Depends on what you mean by backing off.  I suppose the Raich case could
be cited as backing off but there the issues get complicated by the drug
question and conservatives can distinguish the case from Morrison by
saying that there was an economic exchange.  

 

Conceivably you are thinking of Tenn v. Lane where O'Connor joins the
centrists (couldn't resist) to apply the application of Title II of the
ADA to the States over an 11th amendment claim.

 

Or you could be thinking of Nevada v. Hibbs where individuals were
allowed to sue states in federal court under the Family and Medical
Leave Act.  Here both O'Connor and Rehnquist showed "cold feet" to the
recent Court trend.

 

Don

 

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Thursday, November 03, 2005 12:26 PM
To: conlawprof at lists.ucla.edu
Subject: US v. Morrison -- question

 

Has there been a case decided after US v. Morrison that tells us whether
or not the Court is backing off this commerce clause stuff? I had
thought that O'Connor was getting cold feet, but I can't remember how
that thought arrived in my head. I seem to remember another case out
there -- is there one? Could someone please post its cite or case name?
Many thanks in advance.  

 

________________________________

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