Tim Sandefur, an attorney with Pacific Legal Foundation that litigates Dormant Commerce Clause Cases, had this to say about the People ex rel. Brown v. Puritec decision that I discussed here.
Tim said:
That’s an interesting case, and I have a couple thoughts.
I doubt that any court would say that the DCC stands in the way of state consumer protection requirements, so long as those consumer protection requirements are reasonable. God knows, the court’s upheld plenty of unreasonable ones. Like the milk cases. See, e.g., Shamrock Farms Co. v. Veneman, 146 F.3d 1177 (9th Cir. 1998), cert. denied, 525 U.S. 1105 (1999). See also People ex rel. Lockyer v. Shamrock Foods Co., 24 Cal.4th 415 (2000).
A couple other tangential thoughts.
In Kearney v. Solomon Smith Barney, the question was one of these personal jursidiction/choice of law things where the company was charged with violating a California law regarding telephone calls, where the company is headquartered in Georgia, and the customers originated the calls in California. I believe the case was settled before a decision. But it’s going to be increasingly problematic that states are able to reach their personal jurisdiction very far–to the full limits of Due Process (the only limit on personal jurisdiction), and that on a rational basis level. And that’s what allows this sort of thing to go on. I think we’re really going to have to re-think the way personal jurisdiction works in the internet age, and in a big way. If Due Process protects fundamental fairness, I think people would regard it as fundamentally unfair for a company doing business in another state, with a website, to be forced to redo its business just because readers can access their site from California.
Another thing this reminds me of is the ACLU v. Reno case, where the Court said that, in evaluating whether a law was the “least restrictive means,” they could consider the availability of private, market alternatives. That was really cool, because before then, the only thing the Court would consider when determining least restrictive means was whether the government could have done something less restrictive. But in Reno, the Court said, there is private software filtering available to consumers, and that was a less restrictive alternative to government censorship of the internet. I love that. Anyway, this case you sent seems like a sort of reverse of that. Here, the court’s imposing on businesses a requirement of redoing their website, because doing so is possible.