Document Type
Brief
Publication Date
11-2-2017
Abstract
Amici are professors of tax law and economics at universities across the United States. As scholars and teachers, they have considered the economic consequences of this Court's decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and have concluded that Quill's dormant Commerce Clause holding should be overruled. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.
While the Supreme Court is rightly reluctant to overrule its own precedents under any circumstances, the force of stare decisis is less powerful in some contexts than in others. Specifically, stare decisis exerts a weaker pull when judicial doctrine in the relevant area is based not on statutory interpretation but on changing competitive circumstances and evolving economic understandings. Antitrust law is a paradigmatic example of an area in which these conditions are met, but the argument for a flexible application of precedent is similarly strong with respect to dormant Commerce Clause tax cases such as this one.
Thus, to overrule Quill now based on changed competitive circumstances and evolving economic understandings would be to take it on its "own terms." See Kimble v. Marvel Entm't, LLC, 135 S. Ct. 2401, 2413 (2015). It would be to acknowledge that -regardless of whether Quill was rightly decided at the time- the factual assumptions upon which it was based do not apply to the Internet age. The Court should grant South Dakota's petition so it can revisit those assumptions and update its dormant Commerce Clause jurisprudence to a new technological and economic environment.
Recommended Citation
Avi-Yonah, Reuven S., "South Dakota v. Wayfair, Inc.: Brief of Amici Curiae Law Professors and Economists in Support of Petitioner" (2017). Appellate Briefs. 39.
https://repository.law.umich.edu/briefs/39
Comments
Amicus: Avi-Yonah, Professor Reuven S.; Bankman, Professor Joseph; Barry, Professor Jordan M.; Batchelder, Professor Lily; Brooks, Professor John R.; Brunson, Professor Samuel D.; Fleming, Professor J. Clifton; Gamage, Professor David; Glogower, Professor Ari; Goldin, Professor Jacob; Haile, Professor Andrew J.; Hemel, Professor Daniel; Herzig, Professor David; Holderness, Professor Hayes; Johnson, Calvin H.; Kaplan, Richard L.; Knoll, Professor Michael S.; Liscow, Professor Zachary; Listokin, Professor Yair; Mason, Professor Ruth; Maynard, Professor Goldburn P. Jr.; Mazur, Professor Orly; Morse, Professor Susan C.; Pomp, Professor Richard; Repetti, Professor James R.; Roin, Professor Julie A.; Schaffa, Professor Daniel; Shaviro, Professor Daniel N.; Soled, Professor Jay; Scharff, Professor Erin; Speck, Professor Sloan; Stark, Professor Kirk J.; Swain, Professor John A.; Thimmesch, Professor Adam; Viswanathan, Professor Manoj; Zelinsky, Professor Edward; Zolt, Eric M.