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.
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.