Professor Richard Kaplan joined a group of sixty law professors and economists in filing an amicus brief at the Supreme Court, urging the Justices to overrule the Dormant Commerce Clause holding of Quill Corp. v. North Dakota, 504 U.S. 298 (1992). The Clause bars states from enforcing sales taxes against retailers who lack a "physical presence" in the state.
The brief argues that stare decisis applies with "less than usual force" to the physical presence rule, and the Court should overrule Quill in light of changed competitive conditions and evolving economic understandings. From the brief:
"The Court's decision in Quill was predicated on the competitive circumstances and economic understandings of its time. And in the quarter century since Quill, those circumstances and understandings have evolved. While the Quill Court was focused on the mail-order industry, it could not and did not foresee the meteoric rise of online retail, which has magnified the revenue losses that result from the physical presence rule. In the age of online retail, the physical presence rule has become a drag on economic efficiency and a potential impediment to investment across state lines. Meanwhile, the development of tax automation software over the past quarter century has led to a dramatic reduction in sales tax compliance costs for multistate retailers—so much so that overruling Quill would likely reduce aggregate compliance costs for individuals and firms seeking to abide by state tax laws."
Read the full brief.