In 2015, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court’s first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination cases, the internal consistency test. In deciding Wynne, the Court relied on economic analysis we provided in an amicus brief. This Article explains that analysis, why the majority accepted it, why the dissenters’ objections to the majority’s reasoning miss their mark, and what Wynne means for state taxation. Essential to our analysis and the Court’s decision in Wynne is the idea that states are capable of discriminating not only on an inbound basis, but also on an outbound basis, and that the Commerce Clause prohibits discrimination on either basis. To aid in explaining our position, this Article introduces the term “retentionism” as an analogue to protectionism. Whereas taxes or regulations are protectionist when they discourage outsiders from engaging in economic activities within a state, taxes or regulations are retentionist when they discourage in-state economic actors from engaging in outof-state activities. As we show, the tax struck down in Wynne was both protectionist and retentionist.
Issue 2
A Tactical Fourth Amendment
What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil, criminal, and administrative rules governing police use of force all remain deeply contested. Members of the public may assume that police rules and procedures provide detailed direction for when officers can use deadly force. However, many agencies train officers to respond to threats according to a force “continuum” that does not provide hardedged rules for when or how police can use force or deadly force. Nor, as recent cases have illustrated, does a criminal prosecution under state law readily lend itself to defining appropriate police uses of force. People might assume that the U.S. Constitution protects citizens against completely unjustified uses of deadly force. They would be wrong to expect clear constitutional rules either, particularly in the wake of the U.S. Supreme Court’s ruling in Graham v. Connor. Can the Fourth Amendment doctrine be revitalized? This Article begins by excavating key lessons from an earlier moment in time when the Supreme Court did, after careful consideration, adopt in Tennessee v. Garner constitutional rules based on the then-new field of police tactics. Today, where can we turn to develop sound guidance for police use of force? Police tactics have advanced considerably in the decades since, as has policing technology. We conducted an empirical analysis of the force policies of the fifty largest policing agencies in the United States, and found that many agencies lacked guidance on key subjects, such as the need to provide verbal warnings before using force. However, we identify a consistent approach among prominent agencies that adopt detailed policies incorporating tactical methods to de-escalate and minimize the need to use force, some in response to Department of Justice consent decrees. We also find real promise in lower court rulings that rely on tactical research and policy when assessing liability of police. This Article develops a theory of police use of force grounded in the growing body of police-tactics research designed to accomplish law enforcement goals while protecting the lives of officers and citizens. The courts, law enforcement, and the public all desperately require a revitalized constitutional standard regulating police use of force: It is time that we adopt a tactical Fourth Amendment.
Waiver by Removal? An Analysis of State Sovereign Immunity
The Supreme Court has never definitively outlined the theoretical un- derpinnings of state sovereign immunity. The unresolved circuit split over whether a state waives immunity that it would otherwise retain by removing a case from state court to federal court provides a helpful lens to consider the broader doctrinal strands of state sovereign immunity. Under any conception of sovereign immunity, courts should reject a blanket waiver by removal rule that would require states to give up all immunity upon removal. It is imperative that courts make a distinction between substantive immunity and jurisdictional immunity. Even if removal is sufficient to waive jurisdictional immunity, it should not affect the underlying presence (or absence) of a cause of action. Additionally, courts should be careful to distinguish between personal jurisdiction and subject matter jurisdiction aspects of immunity, because the way courts conceive of sovereign immunity can impact how they answer the waiver by removal question. Correspondingly, states must take care to protect their sovereign immunity. Merely forbidding state courts from hearing causes of action brought against a state may not be sufficient to protect state immunity upon removal to federal court. States need to protect their immunity with both substantive and jurisdictional means.