Regulating Litigation Under the Protection of Lawful Commerce in Arms Act : Economic Activity or Regulatory Nullity?

Since United States v. Lopez first brought the distinction between economic and non-economic activity to the forefront of the Supreme Court's Commerce Clause analysis, courts and commentators alike have been grappling with the issue of what constitutes an economic activity for federal regulatory purposes. Though many Articles have alluded to the economic nature of civil litigation, no Article, to date, has squarely addressed the question of whether civil litigation constitutes an economic activity in light of the Court's modern Commerce Clause framework. My Article addresses this question in the context of the recently enacted Protection of Lawful Commerce in Arms Act (PLCAA), which limits the types of civil actions that can be brought against firearm manufacturers. Drawing upon precedents, scholarly writings, and most significantly, principles from related bodies of law, my Article assesses the economic nature of civil litigation, and in doing so, forecasts the future direction of the Court's Commerce Clause jurisprudence. The PLCAA is only the most recent manifestation of a broader congressional effort to curb civil litigation in state courts, following at the heels of similar bills aimed at limiting medical malpractice liability, products liability, and civil discovery. In light of this legislative trend, and in light of the Court's recent decisions in Pierce County v. Guillen and Gonzales v. Raich, it is only a matter of time before the Court is forced to confront the complex and multifaceted issue regarding civil litigation's place in the modern Commerce Clause framework. This Article attempts to shed some light on this analysis