Tax Exceptionalism: Wanted Dead or Alive
Tax law has just not been the same since January 2011. Did Congress pass earthshaking legislation affecting the Internal Revenue Code? Did the IRS dramatically change regulations? If only it were that exciting. Instead, eight jurists sitting at One First Street in our nation’s capital transformed tax law in a less bloody, but no less profound, way. The thought must have gone through many a tax mind – is tax exceptionalism dead?
Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers
Two related myths have a remarkable currency among law students, lawyers and the general public. The first myth is that tax lawyers are somehow different from other lawyers. Part I of this Article documents how this misperception pervades law schools, the legal profession, and the popular culture. Although this Part chronicles the disparagement of tax lawyers in a light-hearted fashion (as suggested by the reference to the Willie Nelson song in the title), the Article focuses on the serious consequences caused by the related second myth that tax law is somehow different from other areas of the law. As suggested by the reference to tax myopia in the title, the Article contends that tax law too often is mistakenly viewed by lawyers, judges, and law professors as a self-contained body of law. Part II of the Article explains how this misperception has impaired the development of tax law by ignoring insights from other areas of law that should inform the tax debate. Similarly, other areas of law have been impoverished by the failure to consider how tax law can enrich their development. The Article advocates a synergistic relationship between tax and nontax law through which each benefits from the insights of the other. Part III of the Article addresses this theme through several fundamental issues concerning the allocation of legislative, executive, and judicial power in our constitutional system. The Article first injects various statutory construction and legislative process theories developed in the nontax area into the debate over whether the complexity of the Internal Revenue Code requires that tax legislative history be treated differently from its nontax counterparts. The Article then considers how recent Supreme Court administrative law decisions and the statutory reenactment doctrine affect the amount of deference that courts should give to the Treasury Department's interpretation of tax statutes. Finally, the Article examines how the empirical and nontax models of the tax litigation system should inform the litigant's choice of the appropriate tax forum, Congress's allocation of tax jurisdiction, and the federal courts' application of state law in tax controversies. Although I offer my views on these issues, the thrust of the Article is its advocacy of a cross-pollination approach, rather than a definitive resolution of these structural concerns that have bedeviled tax and nontax law for decades. By replacing the myopic vision of the tax law with an appreciation of the symbiotic relationship between tax and nontax law, the ultimate resolution of these tax issues will be facilitated by nontax learning, and tax, in turn, will provide a useful laboratory within which to test and refine these nontax principles.
Exploring the Textual Alchemy of Legal Gender: Experimental Statutes and the Message in the Medium
This article draws on original empirical research to explore the politics of experimental feminist statutes. It has two main aims. First, it traces how conventional legislative drafting techniques have participated in the wider social creation and continuance of sex/gender norms. It shows how dominant statutory expressions of sex and gender that might otherwise appear timeless have shifted with social change and legal innovation. The article contributes to debates in feminist legal studies, legal anthropology, and legislative drafting by making visible, and analysing the particular power of legislative text, its ‘alchemy’, in expressing and re-creating sex/gender as a social, cultural and political artefact. Second, drawing on this research, the article explores what the Future of Legal Gender project might consider and do when drafting an experimental statute to decertify legal gender. Addressing questions of positionality, believability, legal form and the use of potentially innovative or contested drafting techniques (the singular “they”, the second person), the article explores tensions between legislative drafting and feminist legal method, as well as the benefits for bringing feminist analysis and perspectives to this important aspect of legal practice. Given that legislative drafting does not merely inscribe pre-agreed policy ideas into legal text but helps to shape emerging ontologies of gender, then drafting an experimental statute invites feminists to pay attention to interlinked questions of substance and form in the exploration of prefigurative legal futures.