17 Mar 2020
Professor Adam Thimmesch’s recent article, The Unified Dormant Commerce Clause has been published in the Temple Law Review.
The article traces the history of the Supreme Court’s dormant Commerce Clause doctrine as it developed in tax and nontax matters. For decades, the Court has formally applied different tests for evaluating those different types of state laws, but the Court has never adequately explained or justified that bifurcated approach. The result has been a confused and shifting doctrine that creates significant uncertainty for states and taxpayers. The article explains how the Court’s recent decisions in a series of tax cases have eroded what little distinction existed between the Court’s disparate tests, with the result that the Court has effectively adopted a unified dormant Commerce Clause. The article argues that the Court should explicitly recognize a unified approach and explains the benefits that would flow to courts, states, and taxpayers.
Professor Thimmesch’s research focuses on state and local tax matters, with a focus on the allocation of taxing power between the states and between the states and the federal government.