Month: November 2023

Stategraft, a term coined by Professor Bernadette Atuahene, occurs when governments and government actors supplement their funding by illegally charging individuals. This illegal extraction can be intentional or unintentional, but its impact remains the same: a systemic funneling of funds that belong in the hands of residents into government pockets. Former U.S. Marine Stephen Lara’s case is an instance of alleged stategraft because the practice of ‘equitable sharing’ between state and federal agencies resulted in the allegedly illegal seizure of thousands of dollars from Mr. Lara by the state agency.

Twenty-five years ago, in Morley-Murphy Co. v. Zenith Electronics Corp., the Seventh Circuit warned that courts should not construe the Wisconsin Fair Dealership Law (WFDL) to authorize lost-profits damages arising from sales anticipated outside of Wisconsin, lest doing so raise constitutional concerns under the so-called dormant Commerce Clause. Some commentators and litigants have questioned the basis for this warning. Even though no state or federal court has ever fully adjudicated the issue, courts have continued to heed the Morley-Murphy warning.

The U.S. Supreme Court’s recent decision in National Pork Producers Council v. Ross should trigger reconsideration of the Seventh Circuit’s past suggestion. The Ross decision reaffirms the centrality of an antidiscrimination principle to dormant-Commerce Clause doctrine and clarifies that, absent a showing of purposeful discrimination against out-of-state businesses, the dormant Commerce Clause should not prohibit enforcement of the WFDL, even beyond the borders of Wisconsin.