Bitcoin, the Commerce Clause, and Bayesian Stare Decisis

Abstract

Part I briefly considers the taxation of bitcoin transactions to give the reader some sense of the constitutional Pandora’s box that was opened by South Dakota v. Wayfair. Part II then delves into one aspect of the Wayfair decision that has broad implications for the future. Specifically, when does technological change justify a departure from the Court's previous Commerce Clause decisions? Part III sketches a possible solution to the problem of horizontal precedent: the application of voting to questions of horizontal precedent, or Bayesian Stare Decisis. Part IV summarizes this proposal and concludes.