The 2020 Mortimer H. Hess Memorial Lecture: “Progressive Taxation and a Conservative Supreme Court (and Related Issues)”

Last year, in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the Supreme Court applied the Due Process Clause of the U.S. Constitution in limiting the authority of states to tax out-of-state trusts. Kaestner, along with two other relatively recent decisions, offers some insight into the thinking of members of the Court on the extent to which the U.S. Constitution constrains legislative power in the tax context.

Should the Democrats win the White House and the Senate, progressive tax measures will surely be on the agenda. And with a more conservative Supreme Court, questions about the constitutional validity of these measures will likely be raised. Speaking just days before the U.S. national election and on the heels of one of the most contentious Supreme Court nomination fights in decades, Professor Mitchell M. Gans will draw from the lessons of Kaestner as he explores the constitutional terrain and the headwinds that progressive tax legislation under a Biden presidency may encounter before the Supreme Court.

Professor Mitchell M. Gans is this year’s Hess Lecturer. He is the Rivkin Radler Distinguished Professor in Taxation at Maurice A. Deane School of Law at Hofstra University, and is an Academic Fellow at the American College of Trust and Estate Counsel (ACTEC), where he serves as Academic Editor of the ACTEC Journal. Professor Gans is also an Adjunct Professor of Law at the NYU Law School, and has taught courses in estate and gift tax law to IRS personnel on behalf of that University. He also was a member of a task force that worked with the New York State Department of Taxation and Finance, helping to draft an amendment to the New York State Tax Law designed to limit the advantages out-of-state trusts enjoy. Professor Gans drafted a portion of the amicus brief submitted by ACTEC to the Supreme Court in Kaestner and is the author of Kaestner Fails: The Way Forward, 11 William & Mary Bus. L. Rev. 651 (2020).

Since the late 1960s, the Mortimer H. Hess Memorial Lecture has been sponsored annually by the Estate & Gift Taxation Committee. The lecture series, originally created by the family of the late tax lawyer Mortimer H. Hess, are made possible through a generous grant from Mr. Hess’s family and former partners. The subjects of the lectures are related to the law of trusts, estates, and taxation, subjects on which Mr. Hess was an acknowledged authority.

David E. Stutzman
, Seward & Kissel LLP

Professor Mitchell M. Gans
, Rivkin Radler Distinguished Professor in Taxation, Maurice A. Deane School of Law at Hofstra University

Sponsoring Association Committee:
Estate & Gift Taxation, David E. Stutzman, Chair