psalaman at POP.UKY.EDU
Fri Jan 2 11:30:43 PST 1998
Professors Laycock and McConnell are talking about the commerce power...
I am at a loss to think of a non-idiosyncratic principle that
distinguishes between phenomena properly subject to regulation under the
commerce power and phenomena not so subject. I understand the holding of
Lopez, but I assume the United States would have won that case had the law
been drafted better and had it established any of the following:
1. That the gun had been made in another state, or another country,
and transported to Texas.
2. That one of its parts had been made elsewhere, and transported
3. That any money whatsoever had changed hands in connection with
the gun. (I have heard this referred to as the "ka-ching rule.")
Ironically, my reading of Lopez suggests that the empirical "impact"
rule of Jones & Laughlin and Wickard v. Filburn would not have swayed the
majority, because of the number of causal steps between guns on school
grounds and poor performance on the job. Consequently, I read the Chief
Justice's analysis in this regard as a mild reprise of Carter Coal.
I certainly wouldn't mind being disabused of my incomprehension.
Paul E. Salamanca
Assistant Professor of Law
University of Kentucky
College of Law
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