Michael Devereux (Oxford)
Lilian Faulhaber (Georgetown)
Michelle Hanlon (MIT)
Jim Hines (Michigan)
Wolfgang Schön (Max Planck)
John Vella (Oxford)
What is OMG?
On behalf of the Oxford University Centre for Business Taxation, University of Michigan, Massachusetts Institute of Technology, Max Planck Institute for Tax Law and Public Finance, and Georgetown University Law Center, we are excited to announce the OMG Transatlantic Tax Talks will continue this academic year. (Why OMG? Oxford-Michigan-MIT-Munich-Georgetown.)
This speaker series will be taking place on Zoom. It is an interdisciplinary series, with experts in taxation from law, economics, and accounting presenting their work.
Ruth Mason, University of Virginia School of Law, will present her paper "Bibb Balancing: Regulatory Mismatches Under the Dormant Commerce Clause" (co-written with Michael S. Knoll) on Thursday 26 January.
All talks will be on Zoom at 11:00 Eastern time/4:00 UK/5:00 CET. Presenters will speak for about 20 minutes, and the remaining 40 minutes will be used for Q&A.
Bibb Balancing: Regulatory Mismatches Under the Dormant Commerce Clause
Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a further distinction that divides cases into single-state burdens, which arise from the application of a single state’s law alone, and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation and those of other states. We label this analysis “Bibb balancing,” after the famous mudflaps case, and we show that mismatch cases present the Court with a more challenging set of issues than do other types of dormant Commerce Clause cases. Despite the criticisms that attach to Bibb balancing, failing to restrain regulatory mismatches would threaten the smooth functioning of the national marketplace and undercut important federalism values. Thus, in addition to clarifying the doctrine and acknowledging the drawbacks of Bibb balancing, this Article provides advice for achieving more consistent and defensible results in mismatch cases.