Civil Private Remedy Under Commerce Clause

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nyg22
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Civil Private Remedy Under Commerce Clause

Postby nyg22 » Sat May 11, 2013 5:48 pm

Hi all - Can anyone clear up a question I have?

Can Congress include a civil remedy into legislation if it has proper authority under the commerce clause?

My read of Morrison is that VAWA was not properly within the commerce clause as it was fundamentally intrastate activity, and therefore, the civil remedy was struck down. Hypothetically, if VAWA was within the reach of the commerce clause, could Congress include a civil remedy?

Thanks

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Bronck
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Re: Civil Private Remedy Under Commerce Clause

Postby Bronck » Sat May 11, 2013 6:00 pm

Why not? For example, Trademark Law (Lanham Act) is federal law (created by the CC, not the IP Clause) and allows for private civil remedies, e.g., a TM owner can receive damages for dilution of her mark.

The point of Morrison is that the commerce clause cannot give Congress the power to provide civil remedies against state govs. This can only be done through s.5 of the 14A

nyg22
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Joined: Sun Dec 09, 2012 2:31 am

Re: Civil Private Remedy Under Commerce Clause

Postby nyg22 » Sat May 11, 2013 6:05 pm

Thanks for your reply. I think the civil remedy in Morrison was actually for private parties to sue other private parties, rather than 11th amendment state immunity issues.

But, point taken on the CC clause and civil remedies.

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Bronck
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Re: Civil Private Remedy Under Commerce Clause

Postby Bronck » Sat May 11, 2013 6:08 pm

nyg22 wrote:Thanks for your reply. I think the civil remedy in Morrison was actually for private parties to sue other private parties, rather than 11th amendment state immunity issues.

But, point taken on the CC clause and civil remedies.


Oh, was that the case? I guess I was misremembering then. Anyway, civil remedies between private parties is fine. I guess [part of] the point of Morrison was that s. 5 of the 14A can't regulate private actors then.




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