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State Taxation and Interstate Commerce: A Generalist's View of Today's Terrain |
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| The article was authored by Mark Tushnet and is 6 pages in length. It was originally published in the State and Local Tax Lawyer 2007 Symposium Edition. |
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In the field of state and local taxation, no other clause of -- or silence within -- the Constitution has as much significance as the Commerce Clause. It yields the fundamental limitations on state taxing power with which professionals in our field grapple daily -- nexus, discrimination, and fair apportionment to name a few. This compilation of articles and essays presents analyses by preeminent authorities of not only the intricacies of these "day-to-day" issues, but also the theoretical underpinnings of Commerce Clause jurisprudence. The day-long program from which these pieces are adapted was held at Georgetown University Law Center on May 16th, 2007.
For information on the State and Local Tax Lawyer 2007 Symposium Edition, click here.
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The constitutional law of limitations on state power to tax interstate commerce looks different to specialists and generalists -- and properly so. Specialists are those who deal with these issues on a daily or weekly basis, in jurisdictions throughout the country, with taxes of many types levied on innumerable items. They must advise their clients and present their claims in courts, relying on what the U.S. Supreme Court and other courts have ruled. The controlling Supreme Court decision, Complete Auto Transit, Inc. v. Brady, states the prevailing rule: a ban on discriminatory taxes, with discrimination sometimes determined by examining the relative impact of the taxes on local and non-local commerce in light of the government's purposes in levying the tax, all administered by means of a four-part balancing test.1 Specialists break down the problems they face and fit the components into the Complete Auto test.
Generalists look at the problem differently, or at least so I, a generalist, will contend. The generalist's perspective is important to specialists for several reasons. First, stepping back from the details often allows a lawyer to see her problems differently. Doing so helps the lawyer avoid the temptations presented by the intellectual puzzles posed by apparent mismatches between some small aspect of the problem at hand and the relevant legal doctrine. The best specialists, of course, can see the details and also have the capacity to step back from them. But generalists overlook the details by necessity. We simply do not know the relevant doctrine at a level anywhere near that common among specialists.
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