TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, April 1, 2011

Pepperdine Hosts Symposium on The Most Maligned Supreme Court Decisions

Supreme Mistakes Pepperdine hosts a symposium today on Supreme Mistakes: The Most Maligned Decisions in Supreme Court History:

This symposium will focus on notable United States Supreme Court decisions. However, rather than showcasing the Court’s best or most popularly acclaimed decisions, the symposium will spotlight the most widely criticized decisions the Court has handed down in its history.

Each symposium presenter will articulate exactly why he or she would nominate a particular case for the Supreme Court’s “Hall of Shame.” Another presenter will then have the opportunity to redeem the Court’s reasoning or at least put the case in its historical context.

The underlying goal of the symposium is not to criticize the failings of the Court over its history, but rather to take a serious and scholarly look at the limits of judicial power and discretion through a historical lens.

Panel #1:  Korematsu v. United States:  Erwin Chemerinsky (Dean, UC-Irvine), Trey Childress (Pepperdine), Robert Pushaw (Pepperdine)

Panel #2:  Plessy v. Ferguson:  Akhil Amar (Yale), Barry McDonald (Pepperdine), Robert Pushaw (Pepperdine)

Luncheon Keynote Address:  G. Edward White (Virginia)

Panel #3:  Buck v. Bell:  Victoria Nourse (Wisconsin), Edward Larson (Pepperdine), Barry McDonald (Pepperdine)

Panel #4:  Dred Scott v. Sandford Daniel Farber (UC-Berkeley), Paul Finkelman (Albany), Shelley Saxer (Pepperdine)

Panel #5:  Erie v. Tompkins:  Suzanna Sherry (Vanderbilt), Trey Childress (Pepperdine),  Naomi Goodno (Pepperdine)

Closing Conversation:  G. Edward White (Virginia), Paul Finkelman (Albany), Edward Larson (Pepperdine)

Here are nominees for the most maligned Supreme Court tax decisions:

  • Corn Products Refining Co. v. Commissioner:  Mark Cochran (St. Mary's):  "The Court reached the correct result, but the reasoning was so garbled that it gave rise to an entire misguided body of law, known as “the Corn Products doctrine,” that persisted for 33 years. The Court finally repudiated the doctrine in Arkansas Best Corp. v. Commissioner. In his inimitable style, Justice Marshall wrote that the Corn Products doctrine “finds much support in the academic literature and in the courts. Unfortunately for petitioner, it finds no support in the language of  § 1221."
  • Gitlitz v. Commissioner.  Martin McMahon (Florida):  "Although its holding was very narrow and has since been reversed by Congress, it provides a solid citation for literalists who want to construct tax shelters. Furthermore, it contradicts decades of purposive construction of the Code by the Supreme Court. It's a dishonest and disingenuous decision."
  • Higgins v. Commissioner:  John Columbo (Illinois):  "A truly nutty decision, that led to an even nuttier result in the enactment of § 212. Decision showed an absolute lack of comprehension of the tax system as a system; the rationale for business expense deductions as the dividing line between personal consumption and business consumption, and any conception of a normative tax base."
  • Nordlinger v. Hahn.  Pat Cain (Santa Clara):  "The case holds that California's Prop 13 is rational even though it results in unjustified disparate tax burdens that depend on whether or not you bought your home then or now. As a result, recent immigrants to California are paying many times more than the amount of property tax paid by neighbors with comparable homes."
  • Poe v. Seaborn.  Richard Beck (New York Law School):  "Quite apart from the vast harm it did (and still does) in several other domains, it also established the principle that bad law is immortal."
  • Pollock v. Farmer's Loan & Trust.  Calvin Johnson (Texas):  "This case is clearly the worst, a usurpation by the Supreme Court on the basis of made up history, reversing a 100 years of settled law and on the basis of personal dislike of the income tax that had no legitimate place in a Supreme Court decision. When the Founders still walked on earth they decided Hylton v. United States, holding that apportionability was the sine non qua of a direct tax. A direct tax has to resemble a requisition. Indeed, Pollack turned the constitutional scheme on its head. Apportionment was written to tax the wealthiest states the most, and the Supreme Court pulled out of who knows where a motive to protect the wealtiest states from tax. This is accurately called the Dred Scott of taxation.
  • Quill v. North Dakota.  John Swain (Arizona):  "The case requires out-of-state sellers to have an in-state physical presence before they can be required to collect sales tax from their in-state customers. As a result, mail-order and internet sellers enjoy a de facto sales tax exemption that gives them a unfair competitive advantage over brick-and-mortar retailers and states are losing billions of dollars of revenue. In today's world, the notion that physical presence is a reasonable proxy for determining the level of a seller's compliance burdens is absurd, and decades before the Quill decision the Court had rejected the physical presence test with respect to other types of jurisdictional questions, such as personal jurisdiction and state (non-tax) regulatory jurisdiction."

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Nordlinger v.Hahn doesn't belong here: an excellent and well-reasoned decision that rejected a baseless assertion that property taxes had to be structured in one particular way.

Posted by: Nonce | Apr 1, 2011 7:43:31 AM

I would add Kelo v. City of New London. BTW, almost six years after the decision, the property that the city took for the Phizer development was never used and is now barren land without even that little pink house to generate property taxes for the city. Great move there.

Posted by: Woody | Apr 1, 2011 8:40:15 AM

I'm not sure Erie belongs on the list.

It would be illogical to say that whether a defendant is liable depends on whether she lives in the same state as the plaintiff. Under the previous system, the federal law of tort was different from the state law of tort. That meant that, if the federal law was more favorable to you, whether you won or lost was based not on where the incident happened, but where the head office or home of the tortfeasor was. That is an illogical distinction.

The situation would, in fact, be quite similar to the historical position in England, where at least four different courts - King's Bench, Common Pleas, Exchequer and Chancery - were trying to apply different rules to the same facts. The Common Law courts occasionally had disputes (notably over suing for debt in assumpsit) and all three often clashed with Chancery. The point is that, like the Bill of Middlesex or the Common Law-Equity split, federal common law meant that two different courts applying potentially different substantive law had jurisdiction over any action. Plaintiffs then forum-shop, whilst defendants have to live with the least favorable system. That is not a logical structure for a legal system, and gives plaintiffs in the zone of dual jurisdiction an unjustified windfall.

Erie was right: what the plaintiff should have argued is that Pennsylvania should change its standards for liability at common law, not that because he could go to federal court instead a different substantive law applied.

Posted by: JMS | Apr 1, 2011 4:08:07 PM

It is not maligned in the academy, to be sure, but it is certainly widely maligned in the public square (where Erie's errors are not on many people's radar screens): Roe v. Wade.

Posted by: Rick Garnett | Apr 2, 2011 3:29:14 PM

To the principal (non-tax) list I would nominate>McCleskey v. Kemp, 481 U.S. 279 (1987), where the Court appears to hold that if a valid statistical study demonstrates racial bias in administration of the death penalty (or anywhere in the criminal justice system, it seems), the study must be disregarded, because otherwise its implications would have consequences that simply cannot be accepted. And of course>Bowers v. Hardwick, 478 U.S. 186 (1986), arguably deserves a place on the list as well.

Posted by: Peter G | Apr 3, 2011 8:29:30 PM

Rick: Amen to Roe v. Wade. Gives making it up as you go along a bad name. Rivals Plessy and Pollock in the Pantheon of bad decisions.

Posted by: Elmer Stoup | Apr 4, 2011 2:41:54 PM