48 Pages Posted: 6 Jul 2017
Date Written: 2016
In the 1992 case Quill Corp. v. North Dakota, the Supreme Court held that a vendor is not compelled to collect a state’s use tax unless it has a physical presence in that state. This questionable holding was widely criticized, most notably by Justice Kennedy in his concurrence in Direct Marketing Association v. Brohl. Citing technological and social advances, and the proliferation of online businesses, Kennedy criticizes the outdated and illogical underpinnings of the Quill holding.
This article argues in favor of Kennedy’s position, and urges the Court to reconsider Quill. Section I identifies the underpinnings of Quill by revisiting two crucial prior cases: Miller Brothers and Bellas Hess. Section II analyzes Miller Brothers, and the outrageousness of Justice Jackson’s majority opinion, who distorted the facts in the case, and claimed that the use tax was new and experimental. Furthermore, this section discusses other possible approaches in Miller Brothers, and how a less dogmatic justice may have led the Court in a dramatically different direction. Section III describes the unimaginative holding in Bellas Hess, and the prophetic dissent, which underscored the unfair nature of exempting out-of-state vendors from the use tax while taxing their in-state competitors, and how the dissent focused on many of the issues that have come to control the existing debate over Quill. Section IV discusses the intellectual dishonesty of the Quill Court and its political agenda. This section further criticizes the Court’s bifurcation of Due Process and Commerce Clause nexus.
Suggested Citation: Suggested Citation
Pomp, Richard D., Revisiting Miller Brothers, Bellas Hess, and Quill (2016). 65 Am. U. L. Rev. 1115 (2016). Available at SSRN: https://ssrn.com/abstract=2996675