The United States Supreme Court saved the states’ sales tax base in the landmark case of South Dakota v. Wayfair in 2018. This revolutionary decision ended the long ban on states imposing sales tax collection duties on out-of-state retailers without a physical presence in the state, as established in Bellas Hess v. Department of Revenue of Illinois in 1967 and Quill Corp. v. North Dakota in 1992. Wayfair now allows states to impose sales taxation on out-of-state retailers in the era of digitalization. In this article, I provide valuable guidelines and suggestions to aid states on this critical journey toward taxing remote online transactions fairly and efficiently. Specifically, this article strongly supports the state-by-state approach to taxing remote vendors. I emphasize that the first step for each state is to make appropriate policy decisions that fit the interests of that state and to structure its legal frameworks accordingly. At the same time, a multistate layer of harmonization, coordination, and cooperation is essential to the long-term success of online taxation. Therefore, this article argues that states should develop and improve the current framework of the Streamlined Sales and Use Tax Agreement by implementing insights from the European Union’s value-added tax system, which is a result of far greater experience taxing online transactions. Toward that end, this article contributes significant proposals, including the proposal to allow vendors to account for the sales tax in one state, the state of registration, and the proposal to establish a multistate clearinghouse for handling the balances between the states efficiently. This article also contains proposals to increase the use of tax compliance technologies, especially cloud computing, block-chain, and big data. These technologies automate the process of calculating and collecting sales tax in the most efficient manner. Next, this article suggests facilitating tax data sharing and tax collection through payment intermediaries, entities which already have the data and stand at the critical juncture of online transactions. Finally, this article recommends that Congress participate in the states’ efforts to tax online transactions by applying these proposals to international transactions. As the digital transformation of the economy accelerates, each one of these proposals and measures would enhance sales taxation in the era of e-commerce and digitalization post Wayfair.
This Article offers a model for addressing current inequities in U.S. municipal criminal regulation through design justice theory. Historically, municipal courts in the United States have been the arbiter of minor crimes, processing traffic tickets and other low-level criminal charges. They have also served to uphold Black Codes, segregation, anti-protest laws, and “broken windows” criminal regulation. Enhancing equality in municipal courts requires meaningful participation from across the city’s populace. Participatory design- a framework within urban planning, architecture and design fields- is a practice with honed protocols for implementing meaningful participation from “users” of a place or product. The goal of participatory design is to seek out and implement guidance from the people most affected. Design justice, a modern refinement of participatory design, prioritizes perspectives marginalized in local planning and decision-making. Municipal courts have had a disproportionate and deep impact on the advancement of minorities and poor people. This Article proposes that municipalities implement design justice processes in municipal criminal regulation. In this piece, I analogize the use of design justice in contemplating Confederate monuments and other public sites of exclusion to the redesign of municipal criminal regulation. Design justice has emerged as a practice centered on the re-envisioning sites of exclusion and recognizing the invisible power hierarchies that undergird public uses of space. I emphasize that participatory design, and design justice in particular, provides critical tools for meaningful change in municipal criminal regulation. Applying design justice to the reform of local criminal regulation involves three precepts: grappling with the historic role of municipal courts, creating tools for public participation, and articulating clear and shared understandings of the spatial impacts of municipal criminal regulation.Critical uses of design justice allows municipalities to subvert traditional roles of insider and outsider, disenfranchised, and expert in criminal regulation. Ultimately, design justice offers a path towards a broader understanding of court experiences and is adaptable to the work of deconstructing criminal municipal regulation and rebuilding more equitable laws.
While the common law doctrine of veil piercing is well established in New Mexico, New Mexico courts have not explicitly considered whether to adopt and apply outside reverse veil piercing. In a traditional veil piercing case, courts disregard the corporate form to reach the assets of a corporate shareholder to satisfy the corporation’s debt. In an outside reverse veil piercing case, courts disregard the corporate form to reach the assets of a corporation to satisfy the debt of a corporate shareholder. The number of states to consider and adopt outside reverse veil piercing has grown rapidly in recent decades, and it is only a matter of time before New Mexico courts will be asked to explicitly consider its applicability in the state. In anticipation of such development, this article surveys New Mexico veil piercing jurisprudence and other states’ reverse piercing jurisprudence, observing that the similarities between traditional and outside reverse veil piercing doctrines make it difficult to articulate cogent reasons for adopting one and excluding the other. More, outside reverse veil piercing is consistent with both New Mexico law and public policy. The article concludes by suggesting a likely approach to outside reverse veil piercing for New Mexico courts.
Police officers are almost universally offered and admitted as experts in gang prosecutions. Without being subjected to the stringent requirements of Frye and Daubert expert standards, criminal Defendants’ due process rights are violated. Once admitted, police officers are permitted to testify to the psychology, customs, motivations, social structures and subjective mental states of individual gang members and gang organizations. Police gang expert testimony should only be admitted after the underlying criminal matter has been proven beyond a reasonable doubt, and even then, only if the police gang expert testimony abides by clearly defined rules of evidence. This article advocates for a strict application of the Frye and Daubert expert standards to police officer testimony, when offered as experts in gang prosecutions. This article proceeds in six parts. Part I provides the social political context of gang prosecution, an overview of lay-witness and expert witness admissibility standards, then describes the development and codification of the Frye and Daubert expert standards in trials. Part II demonstrates that gang expert testimony is “social scientific” in nature and experts must be scrutinized under the Frye or Daubert standard depending on the jurisdiction of the offense. Part III uses a case study to demonstrate the flawed logic courts employ when refusing to apply Frye and Daubert in state gang cases. Part IV demonstrates that the evidence police experts offer in gang cases is unreliable and would fail a Frye or Daubert test, if applied. Part V explores the impact upon criminal Defendants’ due process rights when admitting gang “expert” testimony in gang cases. Finally, Part VI explores courts treatment of DRE in the context of driving under the influence cases and proposes that like DRE, when police gang experts cannot fulfill the requirements of Frye and Daubert, they must be limited to lay-witness observations or excluded completely. State gang statutes, patterned after the Federal Racketeering Influenced and Corrupt Organization Act (RICO), are part of a broader move toward complex criminal liability that deprives criminal Defendants of their due process rights. Like RICO, gang statutes further expand the prison industrial complex and facilitate mass incarceration by circumventing well-established expert standards. Due process protections are eviscerated by state gang statutes when they allow unduly prejudicial speculation, hearsay evidence without exception and unreliable findings. These state gang statutes have operated to incarcerate poor, young, men of color—seasoned gang member, novice gang member, or simply the accused gang member—under a different set of legal standards than the constitution mandates. State gang statues must be abolished but until then, amended to comply with due process.
The United States Supreme Court saved the states’ sales tax base in the landmark case of South Dakota v. Wayfair in 2018. This revolutionary decision ended the long ban on states imposing sales tax collection duties on out-of-state retailers without a physical presence in the state, as established in Bellas Hess v. Department of Revenue of Illinois in 1967 and Quill Corp. v. North Dakota in 1992. Wayfair now allows states to impose sales taxation on out-of-state retailers in the era of digitalization. In this article, I provide valuable guidelines and suggestions to aid states on this critical journey toward taxing remote online transactions fairly and efficiently. Specifically, this article strongly supports the state-by-state approach to taxing remote vendors. I emphasize that the first step for each state is to make appropriate policy decisions that fit the interests of that state and to structure its legal frameworks accordingly. At the same time, a multistate layer of harmonization, coordination, and cooperation is essential to the long-term success of online taxation. Therefore, this article argues that states should develop and improve the current framework of the Streamlined Sales and Use Tax Agreement by implementing insights from the European Union’s value-added tax system, which is a result of far greater experience taxing online transactions. Toward that end, this article contributes significant proposals, including the proposal to allow vendors to account for the sales tax in one state, the state of registration, and the proposal to establish a multistate clearinghouse for handling the balances between the states efficiently. This article also contains proposals to increase the use of tax compliance technologies, especially cloud computing, block-chain, and big data. These technologies automate the process of calculating and collecting sales tax in the most efficient manner. Next, this article suggests facilitating tax data sharing and tax collection through payment intermediaries, entities which already have the data and stand at the critical juncture of online transactions. Finally, this article recommends that Congress participate in the states’ efforts to tax online transactions by applying these proposals to international transactions. As the digital transformation of the economy accelerates, each one of these proposals and measures would enhance sales taxation in the era of e-commerce and digitalization post Wayfair.
Despite its size and economic impact, the United States Patent and Trademark Office (USPTO) has historically been recognized as less than a full administrative agency possessing substantive rulemaking authority—unlike, say, the Food and Drug Administration, the Environmental Protection Agency, or the Securities and Exchange Commission. Following the passage of the sweeping America Invents Act (AIA) in 2011 and the Supreme Court’s decisions in Cuozzo Speed Technologies, LLC v. Lee and SAS Institute, LLC v. Iancu, it is clear that the USPTO is no exception and is an agency like any other, has Congressional authority to promulgate substantive rules, and is bound to the same Administrative Procedures Act (APA) procedural safeguards as any other arm of the administrative state. Yet the USPTO has continued to routinely issue precedential rules and take significant action with substantive effect, calling them guidance, policy documents, or administrative rulings, and it has done so without fully complying with the APA’s notice and comment requirements, seeking stakeholder input, or properly noticing the business communities those rules are set to affect. That must change. Like any agency, it cannot act against the will of Congress, stakeholders, or the Courts without observing the strictures and constraints required by law. This Article analyzes the some of the recent rules, guidance documents, policy-based administrative decisions, and rulemaking procedures used by the USPTO, and concludes that the USPTO is improperly promulgating substantive rules sub rosa via, inter alia, updates to the Trial Practice Guide (TPG), an ostensibly nonbinding document that controls many broad substantive and procedural aspects of the Patent Trial and Appeal Board (PTAB), and in doing so, avoids appellate, Congressional, or stakeholder review of such decisions. This Article will also look to the consequences of such improper substantive rulemaking and, as an example, analyze whether the 2018 TPG Update complies with the Paperwork Reduction Act of 1995 and Executive Orders 12,866 and 13,771.
The New Mexico Constitution guarantees that felony charges shall not be brought against a person prior to either a grand jury indictment or a preliminary hearing finding of probable cause. But in March 2020, due to the COVID-19 pandemic, New Mexico courts were forced to halt the use of grand jury proceedings. As a result, all felony charges brought for the remainder of the year 2020 were vetted through preliminary hearings. Moreover, New Mexico is a unique jurisdiction because it applies the Rules of Evidence in full strength at preliminary hearings. This Comment makes a case for the continued expansion in the use of preliminary hearings even as COVID-19 restrictions ease and grand juries become available again. Acknowledging the necessity to balance the use of preliminary hearings with grand jury proceedings this comment (1) illustrates the contours of both the grand jury and preliminary hearing rights in New Mexico; (2) describes the ongoing tension within the Second Judicial District regarding preliminary hearings and grand juries; (3) surveys states that either prioritize or offer prosecutors the discretion to use preliminary hearings and examines how these states treat the Rules of Evidence; (4) analyzes how the practical benefits of preliminary hearings are viable for both the prosecution and defendants; and (5) addresses how preliminary hearings balance the policy interests of the state with the rights of defendants.
Should college athletes be compensated for their play and if so, how? The first question has been a debate for some time now. But the second question—the “how”—not so much. This writing addresses both questions in depth. With the Ed O’Bannon case that was decided back in August of 2014 and the palaver the Northwestern football team raised in their efforts to unionize, it is acknowledged that the discussions on this issue may have reached its crescendo years ago. That is until now. On September 27, 2019, Gavin Newsom, the Governor of California, signed into law Senate Bill 206. Senate Bill 206 is a law that will allow athletes who compete in collegiate sports for California colleges and universities to profit off of their name, image or likeness; a practice that is currently prohibited under NCAA rules. The law is scheduled to go into effect January 1, 2023. California’s passing of S.B. 206 has set off a chain reaction. As of May 25, 2020 over 34 states have drafted their own Pay for Play provisions. California’s initiative with a large majority of states following suit has forced the NCAA to do something it has resisted doing for more than 60 years. On April 29, 2020 the NCAA’s Board of Governors announced it is moving forward with a plan that would allow college athletes to earn money for endorsements and a host of other activities involving personal appearances and social media content. The NCAA’s Pay for Play version is scheduled to go into effect in the fall of 2021. A quick review of some of the groundwork the NCAA is laying on this issue reveals that the NCAA will be attempting to reign in and place tighter restrictions on what the athletes can do by way of endorsement and promotions than the more general provisions found in the respective state Pay for Play provisions. For example, the NCAA’s Pay for Play provision will more than likely prohibit her athletes from using their respective universities’ names and school logos in any of the athlete’s endorsements or promotions thus severely limiting the athletes’ ability to use their name, image, or likeness optimally. By contrast, S.B. 206 does not contain such restrictions. Thus the stage has been set for some wrangling that will occur between the NCAA, and the respective states. Dynamics that spark a host of interesting issues for analysis and exploration for another day. But key for the task at hand is the fact that none of these Pay for Play provisions address the prohibition against the universities themselves compensating the college athlete. Those prohibitions are still in place and the NCAA has given every indication that it intends to do everything it can to keep it that way. Accordingly, this writing focuses on the step yet to be taken. The Universities themselves compensating the college athlete. That act would be far more significant as university compensation would reach a larger portion of Division I athletes and not just the highly marketable superstars that pepper the top echelon Division I programs. This writing makes the clear case for universities’ compensating their athletes. This writing stands alone in that it also shows the viability of compensating the college athlete by setting the analysis within the context of an NCAA Division I program; namely the University of Michigan. This article proposes with specificity how compensating the college athlete can be done without disrupting existing athletic programs. Popular refrains of athletic program poverty and having to shut down other sports programs are addressed and summarily debunked. The time has come to recognize that these athletes are university employees and are an integral part of the revenue generating component that earns millions for their respective universities. It’s time that these athletes be compensated fairly and appropriately for their efforts. This piece makes the clear case for it and quantifies it by the numbers.
Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, federal Indian law makes up an inextricable part of American rule of law. Despite its importance, federal Indian law follows a long and circuitous road that requires “wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years.” That road has long oscillated between two poles, with the Supreme Court sometimes applying foundational principles that view tribes as sovereigns “retaining all their original natural rights,” and at other times treating tribes as mere “wards subject to a [self-imposed] guardian.” Supreme Court respect for tribal sovereignty and self-determination reached its zenith in the so-called “modern era” of federal Indian law, spanning from 1959 through the late 1970s. During this era, the Court tended to adhere to federal Indian jurisprudence and solidified a relatively coherent doctrine based upon the foundational principles developed in the 1830s. The late Dean David Getches described the modern era as a time that “encouraged a reinvigoration of tribal governments throughout the country. During this period, tribes gained political influence and economic security as [the federal government] generally promoted a policy of tribal self-determination.” The Court turned away from its foundational Indian law principles with the onset of the 1980s and the departure intensified as Chief Justice William Rehnquist was appointed chief justice in 1986. Since then, the touchstone of the Supreme Court’s federal Indian jurisprudence has been to employ a “subjectivist” approach whereby it “gauges tribal sovereignty as a function of changing conditions”—demographic, social, political, and economic—and the expectations of non-Indians that may be potentially by the exercise of tribal power. As a result, the Supreme Court became a strikingly hostile place for American Indian tribes as the Court became increasingly willing to divest tribes of governmental powers, not by upholding the enactments of Congress, but through its own interpretation of what tribal inherent governmental rights ought to be. The appointment of Justice Sonia Sotomayor and, more recently, Justice Neil Gorsuch seems to have brought change to the Court’s direction in Indian law cases. Since then, cases have been consistently decided in favor of tribal litigants by reaffirming treaty rights through the application of foundational principles that focus on the plain language of treaties and the application of the Indian canons of construction. However, to be sure, even the Rehnquist Court did “recite[] and sometimes act[] upon foundation principles,” but those cases were limited to situations where “non-Indian interests [were] not seriously threatened.” All of Indian Country waited for, or perhaps dreaded, a true litmus test. That test came to the Supreme Court in the form of two Indian law cases—Sharp v. Murphy and McGirt v. Oklahoma—both of which were framed by non-Indian parties to affect the interests of an estimated 1.8 million people in eastern half Oklahoma. Ready or not, Indian Country found its test case, which squarely placed the Court’s competing jurisprudential philosophies— its foundation principles versus its “subjectivist” approach—on a collision course. In a powerful and uncharacteristically passionate decision, Justice Gorsuch wrote for a 5-4 majority, upholding treaty-based rights to re-recognize the historic reservation boundaries of the Muscogee (Creek) Nation, the fourth largest Indigenous nation in the United States. The decision was the fourth consecutive treaty-rights victory and seemed to solidify a shift toward a consistent approach rooted in foundational principles. The victory was short-lived. Just weeks after the Court’s decision in McGirt, Justice Ruth Bader Ginsburg passed away, once again shifting the make-up of the United States Supreme Court. As a result, Federal Indian law once again finds itself at a crossroads. The Murphy and McGirt decisions are landmark decisions that bring change to the legal landscape of much of Oklahoma. It remains to be seen whether the perceived new Supreme Court era in Indian law is here to stay.
