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Chapter04 - CHAPTER 4 CONSTITUTIONAL AUTHORITY TO REGULATE...

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25 C HAPTER 4 C ONSTITUTIONAL A UTHORITY TO R EGULATE B USINESS A NSWER TO C RITICAL A NALYSIS Q UESTION IN THE F EATURE C ONTEMPORARY L EGAL D EBATES W HERE D O Y OU S TAND ? (P AGE 85) Clearly, there are two sides to this debate. Many states contend that they must regulate the provision of prescription drugs via the Internet in order to ensure the safety and well-being of their citizens. In some instances, however, the states may be imposing such regulations at the behest of traditional pharmacies, which do not like online competition. What is your stand on whether state regulation of Internet prescription drug transactions violates the dormant commerce clause of the Constitution? Realize that if you agree that it does, then you probably favor less state regulation. If you believe that it does not, then you probably favor more state regulation. There are at least two reasons that state regulation in the context of the Internet is impracticable. A state regulation would likely violate the commerce clause, because a state cannot enact a law that impinges on interstate commerce. If the regulation could pass constitutional muster, however, there is the question of its enforcement how could this be accomplished? There are more users of the Internet, and potential violators of the regulation, outside the state than within it, which also brings up the issue of jurisdiction. If none of these obstacles existed, why might a state still choose not to regulate, thereby compromising its sover- eignty? A state agrees to relinquish some of its sovereignty in ex change for “membership” in the United States. This “membership” includes the political, so cial, and economic benefits of being part of a larger network: legal and military protection, a more stable economy, and increased trade. Individual state regulation of the Internet in general (and out-of-state wine sales in particular) could especially hamper the last benefit on this list. A NSWERS TO Q UESTIONS AT THE E NDS OF THE C ASES C ASE 4.1 (P AGE 82) W HAT I F THE F ACTS W ERE D IFFERENT ?
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26 UNIT ONE: THE LEGAL ENVIRONMENT OF BUSINESS Suppose that the states had only required the out-of-state wineries to obtain a special license that was readily available. How might this have affected the result in this case? Explain. The effect of this requirement on interstate commerce would have been subject to scrutiny and the result might have depended on its economic impact and other considerations. It seems unlikely that this type of regulation would have as heavily burdened the interstate sale of wine as the requirements at issue in this case, but in some cases, even slight infringements on interstate commerce have been invalidated. T HE E-C OMMERCE D IMENSION How might the issues related to the purchase of out-of-state wines have changed as a result of consumers’ increased use of the I nternet? In some ways, the Internet has “leveled the playing field” to make the smallest, most remote wine
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