Retail size caps ... and the restraints of the Constitution and of demand ...

   “Retail Store Size-Cap Ordinances: Legitimate Land Use Regulations or Unconstitutional Economic Protectionism?” is the title of Samford’s Brandon Denning’s cover story in the ABA’s Probate & Property magazine this month.  Denning provides a good summary of the law on whether the U.S. Constitution’s dormant commerce clause would prevent local governments from adopting laws barring out-of-state big-box retailers.  The sticky question of discerning the motivation behind an ordinance is one key factor.

  Although I shake my mind when I think of the idea of discriminating against a business for being based out of state, for some reason I’m not too worried about the effect of a town’s preventing Wal-Mart or Target from moving in.   It won’t actually protect the old local Mom-and-Pops, after all; the town’s shoppers will just drive to the next town to find the big discounters, and the local stores will still die.  What if the next town passes a similar ordinance?  The shoppers will just keep driving until they find their big box; gas at $3 a gallon won’t stop an American in search of a bargain ….