A Supreme Court homecoming.

Author:Isaacson, George S.
  1. A Local Boy Goes to Washington

I live in a small town on the coast of Maine. My home is across the street from the manicured campus of the liberal arts college where I teach Constitutional Law. I am also a partner in a small law firm, and have developed a niche practice representing catalog and Internet companies, along with their trade associations, in regard to the scope of state regulatory authority under the Commerce Clause. (1)

The Commerce Clause, of course, was intended by the Framers to create a free-trade zone among the newly independent states by addressing the protective trade barriers used by various states to discriminate against manufacturers and merchants in other states. Those tariffs, duties, and taxes contributed to the economic crisis of the 1780s and threatened the very viability of the young republic. The Commerce Clause's solution was to establish a single national marketplace. This vision became the most robust engine of economic growth and prosperity in the history of civilization: the U.S. economy. Indeed, the single-market model created by the Commerce Clause came into being almost 200 years before the Europeans decided to embark on the same experiment--today's European Union.

My case concerned the right to challenge a state law on Commerce Clause grounds in the federal courts. (2) In an opinion by Justice Thomas, the Court held unanimously that the Tax Injunction Act (3) did not bar a federal district court from hearing a challenge brought by my client, the Direct Marketing Association, to a Colorado law requiring out-of-state catalog and Internet retailers to report customer-transaction information to state tax officials. (4)

As might be expected, any Supreme Court decision that affects a large number of businesses will attract considerable attention within the legal community and among industry trade press as well. Moreover, numerous amicus briefs had been filed in my case, which contributed to the attention the case received. So for several days after the decision was issued, I fielded telephone calls from reporters, general counsel, and the like.

What I did not expect, however, was the level of interest this win generated in my hometown. Friends, neighbors, students, and fellow faculty members had been genuinely excited about the prospect of my arguing before the Supreme Court, and they were generous in their expressions of support. After the Supreme Court victory, I received numerous emails and cards of congratulation--even an article in the local newspaper and reports by other media in the state. Apparently, less than a handful of currently practicing Maine attorneys have had the opportunity of appearing before the United States Supreme Court, and some journalists considered this to be a newsworthy "local boy makes good" story.


    A few weeks after the decision, I received a call from the program director at our town library asking if I would be willing to be the featured speaker at a "donors and friends" reception, where I could explain my Supreme Court case. I accepted the invitation without much forethought or reflection on what I would say. As the date approached, however, I grew somewhat nervous. I would be speaking in front of people who knew me well and who would continue to know me after this speech. Would they really be interested in the history of the Tax Injunction Act and the scope of federal jurisdiction over challenges to laws and regulations that deal with state tax administration? I didn't think so. I broke into a cold sweat as I pictured a roomful of bored library patrons, some of whom were starting to nod off and others of whom were eyeing the exits in the hope of making a quick and quiet retreat. Even worse, I realized, I would have to figure out how to avoid running into anyone who attended this event for at least several weeks, until the mortification of my pettifogging presentation had faded into a distant memory. This wouldn't do, so after scrapping several legal- and tax-related themes, I decided to take a very different tack.

    Instead of talking about the case, I decided to describe the experience. In a way, my...

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