Issues to Watch

Issues to Watch

Creating an Even Playing Field: State Sales Tax and Internet Transactions


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Brenton Conrad*

In 2016, South Dakota enacted emergency legislation requiring out-of-state businesses to pay South Dakota sales tax for any in-state internet purchase, claiming that the loss of revenue from a sales tax was “causing revenue losses and imminent harm . . . through the loss of critical funding for state and local services.”  South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2088 (2018) (quoting S. 106, 2016 Leg. Assemb., 91st Sess. (S.D. 2016)).  Pursuant to this Act, sellers that delivered more than $100,000 of goods or completed 200 or more transactions in the state annually were required to collect a 4.5 percent sales tax on all purchases within South Dakota.  Id. at 2089.  As a result, South Dakota filed a declaratory judgment action against Wayfair, Inc., Overstock.com, Inc., and Newegg, three companies that had no physical presence in South Dakota, and did not collect any South Dakota sales taxes, but nonetheless met the requirements of the 2016 South Dakota Legislature.  Id. at 2090.  The South Dakota Supreme Court ruled in favor of the Defendants by citing to the U.S. Supreme Court decision in Quill Corp. v. North Dakota, which enforced the “physical presence rule.”  Id. at 2091.  Ultimately, the 2016 Act was struck down by the South Dakota Supreme Court as unconstitutional.  Id. at 2091. (more…)

Issues to Watch

Maryland Offshore Wind Farms: Concerns of Ocean City, Maryland’s Tourism, and the Fishing Industry


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*Curtis Snyder

Under Maryland law, a “qualified offshore wind project” is permitted to be located in an area between ten and thirty miles off the coast of Maryland.  Md. Code Ann., Pub. Util. § 7-701(k)(1)(ii) (West 2017).  A qualified offshore wind project is defined as a wind turbine generation facility, which functions to produce renewable energy from ocean winds off the coast.  Md. Code Ann., Pub. Util. § 7-701(k) (West 2017); About Deepwater Wind, Deepwater Wind, http://dwwind.com/about/ (last visited Oct. 25, 2018).   In 2017, Deepwater Wind and U.S. Wind received approval to construct two qualified offshore wind projects off the coast of Ocean City, Maryland.  Jeremy Cox, U.S. Rep. Andy Harris Calls for Delay of Maryland Offshore Wind Projects for More Studies, Delmarva Now (May 30, 2018, 6:29 AM), https://www.delmarvanow.com/story/news/2018/05/30/andy-harris-calls-more-offshore-wind-development-studies-maryland/627226002/ [hereinafter Cox, Calls for Delay].  Deepwater Wind and U.S. Wind’s construction plans reveal the possibility of forty-seven turbines being built in two separate federal leases off the coast of Ocean City.  Id. (more…)

Issues to Watch

Will the Supreme Court’s Decision in the Case of the Dusky Gopher Frog Forecast the Twilight of the Endangered Species Act?


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*Adrian Aldrich

The unassuming dusky gopher frog has become a flashpoint in an ongoing struggle between private landowners advocating for stronger property rights and conservation efforts by the federal government.  Lawrence Hurley, U.S. Top Court Takes Up Property Rights Case Involving Endangered Frog, Reuters (Jan. 22, 2018, 9:45 AM), https://www.reuters.com/article/us-usa-court-frog/u-s-top-court-takes-up-property-rights-case-involving-endangered-frog-idUSKBN1FB1YO.  This year, the Supreme Court accepted a company’s petition for review of its lawsuit against the U.S. Fish and Wildlife Service (FWS).  Id.  The company alleged that the FWS overreached in its efforts to conserve a highly endangered animal.  Amy Howe, Justices Add Frog Case to Merits Docket, SCOTUSblog (Jan. 22, 2018, 3:02 PM), http://www.scotusblog.com/2018/01/justices-add-frog-case-merits-docket/.  The case’s central issue is whether the FWS overreached by designating private land leased by the Weyerhaeuser Company (the petitioner) as “critical habitat,” thereby imposing restrictions on use of the land, even though the species in question does not and —arguably— cannot live on the land.  Petition for a Writ of Certiorari at *i, Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 2017 WL 2992380 (2017) (No. 17-71) [hereinafter Cert. Petition]. (more…)

Issues to Watch

Can we be inclusive and not discriminate? What will be the effects of the proposed census questions?


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*Elizabeth Strunk

Another ten years have passed, and it is that time again.  The constitutionally required decennial census is upon us.  U.S. Const. art. I, § 2, cl. 3.  The Secretary of Commerce has been given broad discretion by Congress to carry out the decennial census through “the use of sample procedures and special surveys.”  13 U.S.C.A. § 141(a) (Westlaw through Pub. L. 115-223).  The original purpose of the census was for reapportionment; however, now “the census data is used for a myriad of other purposes.”  13 U.S.C.A. § 141(b) (Westlaw through Pub. L. 115-223); Wisconsin v. City of New York, 517 U.S. 1, 5–6 (1996).  Generally, questions on the census are justified because it is “necessary and proper” to collect data for Congress to provide government funding and programs to the communities most in need.  U.S. Const. art. I, § 8, cl. 18; Morales v. Daley, 116 F. Supp. 2d 801, 810 (S.D. Tex. 2000). (more…)

Issues to Watch

Expert Testimony in Maryland: Frye-Reed or Daubert?


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*Reginald Smallwood

Laws undoubtedly evolve over time.  However, is there ever a point when a law evolves into an entirely new law?  Many states use federal laws as guidance for creating new state laws. Michael Morgenstern, Daubert v. Frye – A State by State Comparison, The Expert Inst. (Apr. 3, 2017), https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison. However, if the state law evolves into the federal law, should the state simply adopt the federal law?  This is the current dilemma in Maryland courts regarding the evidentiary rule for evaluating scientific expert testimony.  The state is holding onto the name of its Frye-Reed test, but the test’s application is becoming more like the federal Daubert test. Sissoko v. State, 182 A.3d 874, 892 (Md. Ct. Spec. App. 2018).    (more…)