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Case Baiting
Author(s) -
KisskaSchulze Kathryn,
Ciocchetti Corey,
Flick Ralph
Publication year - 2020
Publication title -
american business law journal
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.248
H-Index - 23
eISSN - 1744-1714
pISSN - 0002-7766
DOI - 10.1111/ablj.12160
Subject(s) - statute , supreme court , law , legislation , certiorari , legislature , state (computer science) , federal law , political science , commerce clause , common law , constitutionality , politics , original jurisdiction , federalism , algorithm , computer science
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 violation of federal law. The two U.S. Supreme Court decisions arising from challenges 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 triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important 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 progression toward a more quasi‐legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.