Michael Knoll (University of Pennsylvania Law School ; University of Pennsylvania – Real Estate Department) and Ruth Mason (University of Virginia School of Law) have posted Wynne v. Comptroller: Striking a Balance between State Sovereignty and Interstate Commerce (U of Penn, Inst for Law & Econ Research Paper No. 14-44) on SSRN. Here is the abstract:
Wynne v. Comptroller, the dormant Commerce Clause case currently before the Supreme Court, has already been called the Court’s most important state tax case in decades because the Court seems poised to reshape the Constitutional balance between state sovereignty over taxation and the national interest in maintaining an open economy. The challenge for the Court, whose dormant Commerce Clause rulings have been strongly criticized by commentators and the Court itself, is to prescribe clear limits on tax discrimination without unduly restricting the states’ taxing authority. In a series of articles focusing on a similar line of cases from the European Union, we used economic analysis to develop a framework to resolve tax discrimination cases in a consistent and intuitive manner that provides states with broad flexibility while maintaining an open interstate market. In this essay, we apply that framework to Wynne; we also describe how our approach resolves many issues that seemed to trouble the Justices at oral argument, especially the confusion between double taxation and tax discrimination.
Posted at 6:14 AM