Case Baiting

• Author: Ralph Flick,Kathryn Kisska‐Schulze,Corey Ciocchetti
• DOI: http://doi.org/10.1111/ablj.12160
• Date: 01 June 2020
• Published date: 01 June 2020

American Business Law Journal

Volume 57, Issue 2, 321–381, Summer 2020

Case Baiting

Kathryn Kisska-Schulze,*Corey Ciocchetti** and Ralph Flick***

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at

state casino and racetrack venues, in direct conflict with the federal Professional

and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill

106, requiring that certain e-commerce retailers collect and remit sales tax, in vio-

lation of federal law. The two U.S. Supreme Court decisions arising from chal-

lenges to these state statutes—South Dakota v. Wayfair and Murphy

v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic

states implement to challenge federal directives by passing state legislation that

directly conflicts with federal law to lure the Court into granting certiorari and

ruling in their favor. This article argues that South Dakota’s and New Jersey’s tri-

umphs pave the way for other jurisdictions to pursue similar strategies across mul-

tiple legal issues such as abortion restrictions and immigration law. In addition,

this article suggests that case baiting invites further scholarly exploration of impor-

tant policy considerations, including the use of this tactic as a novel approach to

the application of law and strategy, whether case baiting promotes the Court’s pro-

gression toward a more quasi-legislative role, and whether passing conflict legisla-

tion violates state legislators’ oaths of office.

*Assistant Professor at the College of Business, School of Accountancy at Clemson Univer-

sity. The authors would like to thank Lucien Dhooge for his thoughtful recommendations

in the early stages of this research, and John Holden and Mike Schuster for providing con-

structive comments and critiques on later drafts. We also wish to thank our colleagues at

the Kelley School of Business, Department of Business Law and Ethics at Indiana Univer-

sity for the invaluable feedback they provided as part of its Speaker Series. This article also

benefited from feedback received at the Outstanding Proceedings Paper session at the

Academy of Legal Studies in Business annual conference in Montreal, Canada. The authors

also thank the reviewers and the American Business Law Journal editorial team.

**Professor of Business Ethics and Legal Studies at the University of Denver.

***Assistant Professor of Management in the School of Business at Pacific Lutheran

University.

©2020 The Authors

American Business Law Journal ©2020 Academy of Legal Studies in Business

321

INTRODUCTION

On March 22, 2016, South Dakota Governor Dennis Daugaard signed into

law Senate Bill 106 (S.B. 106), requiring that certain e-commerce retailers

collect and remit sales tax as if they were brick-and-mortar establishments

located within the jurisdiction.

1

The state drafted this law in deliberate viola-

tion of U.S. Supreme Court precedent.

2

Similarly, New Jersey employed

comparable tactics to overturn the Professional and Amateur Sports Protec-

tion Act (PASPA)

3

following Governor Chris Christie’s signing of the state’s

Sports Wagering Act in 2014.

4

Thus began two jurisdictions’ efforts to bait

the Court into overturning long-standing federal law.

Although both South Dakota and New Jersey were successful, the Gar-

den State’s endgame was distinctly different from that of South Dakota.

Specifically, South Dakota baited the Court into overturning established

caselaw, whereas New Jersey strove to overturn an act of Congress. By

virtue of these divergent triumphs, both South Dakota v. Wayfair

5

and

Murphy v. National Collegiate Athletic Ass’n (NCAA)

6

now exemplify

U.S. Supreme Court case baiting.

Case baiting is a tested means for states to effectively challenge federal

directives (Supreme Court precedent and congressional legislation). We

define case baiting as a strategy a state or local jurisdiction adopts to

deliberately pass legislation in direct conflict with federal law, with the

goal of luring the Supreme Court into granting certiorari and ruling in

its favor.

7

It involves a multistep process initiated when a jurisdiction

1

See S.B. 106, 2016 Legis. Assemb., 91st Sess. (S.D. 2016) (codified at S.D. CODIFIED LAWS

§10-64 (2017)) (requiring that nonresident retailers whose sales exceeded $100,000 in the

state, or who had 200 or more separate transactions in South Dakota, must collect

sales tax).

2

See ERIKA K. LUNDER,CONG.RESEARCH SERV., CRS 7-5700, LSB10020, UPDATED:WILL THE

SUPREME COURT ADDRESS STATES’POWER TO REQUIRE THAT RETAILERS TAX INTERNET SALES?

1 (Jan. 16, 2018). See also Quill Corp. v. North Dakota, 504 U.S. 298 (1992); Nat’l Bellas

Hess v. Dep’t of Revenue, 386 U.S. 753 (1967).

3

Pub. L. 102-559, 106 Stat. 4227 (1992) (codified at 28 U.S.C. §§ 3701–3704).

4

See S. 2460, 2014 Leg. Sess. (N.J. 2014).

5

138 S. Ct. 2080 (2018).

6

138 S. Ct. 1461 (2018).

7

See infra Part II.A.

322 Vol. 57 / American Business Law Journal

identifies an inequity of law, perhaps fueled by the invitation of one or more

members of the Court.

8

While the jurisdiction must anticipate and tolerate

losses as it maneuvers through the lower courts, the goal is to effectively bait

the Supreme Court to vie for long-term national policy change.

9

This article posits that South Dakota’s and New Jersey’s triumphs

break ground for other jurisdictions to pursue similar case-baiting strate-

gies across multiple legal issues, including abortion rights, the death pen-

alty, public-figure libel, and the qualified immunity doctrine.

10

These

states’ victories, combined with Alabama’s early-stage effort to overturn

Roe v. Wade

11

following the passage of H.B. 314 into law in 2019,

12

per-

haps represent a growing trend by states to attempt case baiting. With

the recent appointments of Justices Gorsuch and Kavanaugh to the

bench, some opine that the Court has become even more politicized.

13

8

See infra Part II.B. This article suggests that state case-baiting efforts may originate from

an invitation of one or more U.S. Supreme Court Justices. Current members of the Court

rarely encourage litigants to challenge existing precedent. However,Wayfair arose from Jus-

tice Anthony Kennedy’s invitation to initiate a case that would grant the Court an opportu-

nity to reconsider its previous decisions in Quill and Bellas Hess. See infra Part

I.A. Whenever any Supreme Court justice openly suggests that the Court might welcome a

particular challenge, such signal is significant to future litigants who are highly motivated

and incentivized to attempt a legal challenge. However, an invitation from one or more jus-

tices out of nine is not necessarily indicative of the Supreme Court as a body attempting to

bait the states, particularly as the opinions of the remaining Justices are rarely known, and

invitations to bring cases often come from sole-authored concurring or dissenting opinions.

Still, while the purpose of this article is to specifically examine and identify states’ efforts to

case bait the Court, we propose that an equally important scholarly examination should

query whether the Court, as a body, ventures to case bait potential litigants.

9

See infra Part II.A.

10

See infra Part III.B.

11

410 U.S. 113 (1973).

12

See H.B. 314, 2019 Leg. Sess. § 4(a)–(b) (Ala. 2019). See also Roe v. Wade, 410 U.S. 113 (1973).

13

See Dan Balz, The Kavanaugh Nomination Is Another Big Step in the Politicization of the Supreme

Court,W

ASH.POST (Sept. 22, 2018, 9:51 AM MDT), https://www.washingtonpost.com/

politics/the-kavanaugh-nomination-is-another-big-step-in-the-politicization-of-the-supreme-

court/2018/09/22/1a13b5c4-be78-11e8-b7d2-0773aa1e33da_story.html?noredirect=on (not-

ing that Justice Kavanaugh’s confirmation transformed the Court into a “more polarizing

political body”). See also Anthony Marcum & Shoshana Weissmann, Packing the Supreme Court

Won’t Work. Confirmation Hearings Are Already Highly Politicized, USA TODAY (Apr. 4, 2019),

https://www.rstreet.org/2019/04/04/packing-the-supreme-court-wont-work-confirmation-

hearings-are-already-highly-politicized/ (discussing the recent evolution of the politicized

Supreme Court).

2020 / Case Baiting 323