Tuesday, July 18, 2006

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 ….

http://lawprofessors.typepad.com/land_use/2006/07/retail_size_cap.html

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Comments

A longer paper by the same author on the same subject can be found at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=676548

Posted by: Kurt Paulsen | Jul 19, 2006 9:46:05 AM

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