| Abstract: | We develop a game in which a court monitors states as they regulatetrade among themselves. Contrary to commentators who see SupremeCourt oversight of state burdens on interstate commerce as theproduct of a powerfully ascendant court, we argue that the "dormantCommerce Clause" (DCC) originates as the strategic product ofan institutionally weak court. We provide three lines of argument.First, we refute the notion that merely observing the courtruling against state governments and those governments complyingwith its ruling is evidence of judicial power. Second, we showthat the equilibria of our "weak court" model directly impliesthe doctrinal contours of the DCC while the ascendancy hypothesisdoes not. Finally, we provide evidence that the court announceda weaker version of the DCC doctrine than sincerely preferredby pivotal justices on the court. Our arguments invite a revisedunderstanding of the role of the court in the development ofthe American political system. |
