Aside from keeping current on developments in Commerce Clause jurisprudence and in state and local practices that are relevant to my continuing efforts to establish the unconstitutionality of many state and local tax incentives used to influence business location decisions, I am working on two other current projects:

The first is the latest iteration of my investigations of the interactions of courts, advocates and legislatures in the ongoing state struggles over school finance. My present focus is on two states, Alabama and Ohio, each of whose courts had found the state's financing system unconstitutional and ordered legislative reform. What is fascinating to me is that both states' courts, after years of efforts to compel their legislatures to come up with acceptable reforms, suddenly issued opinions (both in 2002) in which, while maintaining that the existing systems were unconstitutional, dismissed the pending cases in an apparent effort to wash their judicial hands of the problem. The result is the classic case of rights without apparent remedies. I am interested in exploring the dynamics that produced these surprising outcomes, and the resultant political situation in these states, for the lessons that can be learned about the institutional interactions in these constitutional controversies.

The second grows out of my work on state corporate taxation. I am exploring what sense can be made of debates, among policymakers, economists, and legal analysts, about the incidence of corporate taxes, i.e. about the question of who actually ends up bearing the burdens of these taxes that are initially imposed on businesses. My basic point is captured by my tentative title, "People Don't Pay Taxes; Businesses Do," which is meant as an ironic commentary on the familiar reverse argument - "businesses don't pay taxes; people (employees, consumers, shareholders) do." In fact, it is easily shown that the two claims are completely symmetrical, and equally valid (or invalid). That observation is then the starting point for a more careful analysis of what practical significance changes in tax burdens on businesses actually can have, an analysis that is almost always lost in the fog of easy rhetoric.

This is an easy question, because, in reality, I've only litigated one case in my career. That case, DaimlerChrysler Corp. v. Cuno, 126 S.Ct. 1854 (2006), began with a Harvard Law Review article that I published in 1996, which argued that state tax incentives rewarding business location decisions were both terrible public policy and largely unconstitutional, under dormant commerce clause principles. Ralph Nader read the article and asked me to work with him in litigating the Commerce Clause claim, and he introduced me to a group of citizen/taxpayers and small business owners in Toledo who wanted to challenge the hundreds of millions of dollars in tax breaks used to reward DaimlerChrysler for locating a new Jeep assembly plant in Toledo.

With the assistance of local counsel, I took on the role of lead counsel in the case and ultimately had the opportunity, with the help of literally dozens of Northeastern law students over a six-year period, to brief and argue the case before the Sixth Circuit and the Supreme Court. In the Sixth Circuit, we achieved a great victory, a ruling that Ohio's investment tax credit (one of the standard tools used by most states in the competition for business investment) violated the Commerce Clause. Unfortunately, the Supreme Court, instead of addressing the merits of the Commerce Clause issue, concluded that our plaintiffs lacked the requisite personalized injury to ground standing in the federal courts. So, the upshot was a very good decision in the Sixth Circuit (which, while vacated on other grounds, remains the most authoritative discussion of the constitutional issue) and some interesting, if technical, contributions to federal standing law from the Supreme Court.

Sadly, by the time we had the opportunity to revive the case in the Ohio state courts (which have far more liberal standards about standing - and where we had quite deliberately filed the case in the first place), Ohio was phasing out the investment tax credit, leaving us with what was probably a mooted claim. So, we're now looking for other jurisdictions in which to continue our search for a definitive holding on the unconstitutionality of these wasteful state tax giveaways.

"Commerce Clause Constraints on State Business Location Incentives," 2 Competition Policy International 129 (2006).

"A Defense of the Commerce Clause's Role in Constraining State Business Tax Incentives," National Tax Association Proceedings of the 99th Conference on Taxation (2007).

"Constraining State Business Tax Incentives: The Commerce Clause's Role," 45 State Tax Notes (forthcoming Oct. 2007).

Actually, I'll mention two, because they're so different. One is Doris Kearns Goodwin's Team of Rivals, her fascinating study of the Lincoln presidency and particularly of the extraordinary group of people with whom he first competed for the presidency and then built an administration, under incredibly challenging circumstances. It gave a new depth and complexity to a vital piece of our national history. The other is Thomas Pynchon's Against the Day. I had been a fan of some of Pynchon's early works (especially Gravity's Rainbow and The Crying of Lot 49), but had been disappointed by his subsequent books. But Against the Day revives some of the narrative vigor of the early works, while retaining all of Pynchon's fascinating (and infuriating) quirks. And it, too, focuses on an intriguing historical moment involving the rise of anarcho-radicalism, especially in the American West, at the turn of the 19th/20th century.

I started to answer, not untruthfully, that I love walking on beaches, especially though by no means exclusively on Martha's Vineyard, in any season and any weather. But upon reflecting on how I actually spend my time, I realize that the other close competitor for favorite activity is stirring up political activism through grassroots organizing work. Most of my spare time is spent on political meetings and organizing work, whether for Progressive Democrats of Massachusetts or for a local tax referendum or for a preferred gubernatorial candidate. Most of my friendships revolve around shared political work. And many of my satisfactions come from successes in electoral campaigns or organizing efforts. But then it's also awfully nice to be able to escape to walk on a deserted beach with no one but my wife.

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