TaxProf Blog

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

Tuesday, March 6, 2018

More Tax Profs Weigh In On South Dakota v. Wayfair

Following up on this morning's post, 60 Tax Profs File Amicus Brief Urging Supreme Court To Overrule Quill v. North Dakota:

Edward Zelinsky (Cardozo), The Political Process Case to Overturn Quill v. South Dakota:

By deciding to review Wayfair v. South Dakota, the US Supreme Court has thrust itself into the long and contentious debate about the proper tax treatment of internet sales. As I argue [The Political Process Argument for Overruling Quill, 82 Brook. L. Rev. 1177 (2017)], the Court should use this opportunity to overturn Quill v. North Dakota. In light of the relevant political process concerns, the Supreme Court should overrule Quill in the Court’s role as guardian of the states against federal commandeering. ...

Adam B. Thimmesch (Nebraska), A Unifying Approach to Nexus Under the Dormant Commerce Clause, 116 Mich. L. Rev. Online ___ (2018):

The Supreme Court recently granted certiorari in South Dakota v. Wayfair, a case questioning the ongoing validity of the Court’s 1992 decision in Quill Corporation v. North Dakota. The particular question presented in the cert petition was whether Quill’s physical-presence rule should be overruled, but resolution of that question will force the Court to confront its approach to the dormant Commerce Clause more generally. This is an issue that has not yet been addressed in the literature. Tax scholars have critiqued the physical-presence rule for decades, but have not addressed the question of what the Court would do post-Quill or how that question relates to, or would be influenced by, the Court’s non-tax dormant Commerce Clause doctrine.

This essay takes on that task and evaluates the potential options for the Court if it were to reverse Quill. It concludes that the best approach for the Court post-Quill would be to completely eliminate any special nexus requirement under the dormant Commerce Clause. That approach might seem drastic, but it is the option that would best balance the Court’s interests in protecting our common national market and state autonomy while limiting its own role as an arbiter of the complex economic and political interests involved in balancing those two divergent goals.

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