The Barking Dog

Abstract

Professor Tushnet, and indeed many of the participants in this symposium, seem to believe that United States v. Lopez will have some lasting significance. Those participants who disagree have suggested that the case's lack of significance will stem from inadequacies of the test set out by the Court: it is easily evaded by Congress, or it does not vary much from prior cases, or it applies only in narrow circumstances. I agree that Lopez will have little significance, but its minimal impact has little to do with the specifics of the test. Instead, I believe that Lopez will join a growing list of cases that have been a nine-days wonder: cases that appear to be startling changes in direction and therefore create great joy and great consternation when first decided, but that are subsequently ignored by the Court. In one of these cases, the Supreme Court was described as having created "islands in [the] stream," and Lopez fits this description admirably.