Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.
The Deliberative Stylings of Leading Tax Law Scholars
Andre L. Smith*
*Assistant Professor, FIU College of Law. University of Maryland, B.S.;
Howard University, J.D.; Georgetown University Law Center, LL.M.
This Article examines the deliberative techniques of leading tax scholars as gleaned from articles they have written. It compares their deliberative or interpretative prescriptions to the nine Supreme Court tax cases since 2000. After the comparison, the Article finds that Lawrence Zelenak’s theory describes the Court’s deliberative process better than the theories of the others, that Deborah Geier’s text-based purposivism is the most attractive normative theory of those advanced by these scholars, but that none of them describes judicial deliberation over tax law with enough detail to prescribe a normative or positive technique one can actually follow. However, this problem exists in all areas of law. Thus, this Article also pursues a concept of legal justification, “formulaic deliberation,” based on using mathematical expressions and terminology to develop more precise descriptions and prescriptions of deliberative or interpretative techniques.
Lawrence Zelenak’s Thinking of Nonliteral Interpretations of the Internal Revenue Code appears to have initiated the contemporary discussion of judicial tax deliberation. He shows that the Supreme Court occasionally decides federal income taxation cases by relying on purpose more than text. He also shows the Court’s reliance on purpose to be frustratingly unpredictable. Paul Caron contributes to the discussion by examining the degree with which the Court decides cases relating to tax differently than those relating to other areas of law. He suggests that the Court should reject tax exceptionalism.
Tax scholars of the 1990s and the early 2000s advocated particular interpretative or deliberative techniques, the principal tension being between textualism and purposivism. John Coverdale and Allan Madison defend textualism against the attacks of Deborah Geier, Mary Heen, Noël Cunningham and James Repetti (Cunningham & Repetti), and Richard Lavoie. Geier is a strident purposivist who would allow purposes identified in a certain way to trump text. Heen and Cunningham & Repetti prefer the intent and purposes of Congress as memorialized in regulations to the text of the statute. Richard Lavoie’s attack on textualism suggests that in addition to purposes he would also require judges to consider consequences beyond those contemplated by the legislature. Michael Livingston’s deliberative technique is a bit harder to describe. He attacks purposivism because he finds it unpredictable, but he lauds Eskridge’s practical reason method which asks judges to consider text, intent, purpose, and modern dynamics—a task at least four times as complicated and, for that reason, as unpredictable as purposivism. Properly understood, though, Livingston is arguing for less emphasis on purpose and more on text, intent and modern dynamics, an argument that could have been more cogently presented using mathematic terminology and formula, that is, “formulaic deliberation.” Similarly, despite Geier’s favor for purpose and Coverdale’s affection for text, each of the scholars surveyed argue for greater emphasis on a particular technique rather than myopic and mechanical applications of it.
Each scholar’s work represents a segment of the Supreme Court’s deliberative process, but examination of the nine Supreme Court cases decided since 2000 proves that no article by these scholars describes that deliberative process better than Zelenak’s original piece. United States v. Gitlitz and Galletti v. Commissioner show the Court’s preference for text. In Galletti, the Court relied on the meaning lawyers would attribute to the word “assessment.” In Gitlitz, the Court chose the meaning of “income” that was consistent with a number of closely related tax statutes. However, the Court’s seven other cases belie John Coverdale’s belief that text resolves most tax issues. Moreover, United States v. Craft specifically rejects Allan Madison’s brand of textualism, where plea for judges seeking the plain meaning of a statutory term must accept the determination of state officials, particularly the Secretary of State. While the Court indeed considers purpose, in Fior D’Italia it rejected purposes that were identified in the manner Deborah Geier suggests. Craft and Banks reject Richard Lavoie’s embrace of modern dynamics.
Mary Heen and Cunningham & Repetti are comfortable with the Court ceding consideration of intent and purposes to the Treasury. The Court follows this prescription in Cleveland Indians Baseball, Boeing, and Fior D’Italia. In United Dominion Industries, however, the Court would not rely on the Treasury’s inexpert and ad hoc interpretation as the putative intent of Congress. Although not discussed in this article, scholarship since 2005, like that authored by Gregg Polsky and Kristin Hickman, examines administrative deference doctrines ( Chevron, National Muffler, Mead, Skidmore, Cottage Savings, etc.) attempting to predict when the Court will emphasize the regulation as reflecting the putative intent of Congress.Section II of this Article provides a framework for “formulaic deliberation,” a way of classifying meaning and consequences into functions represented by factors, with the relative emphasis between functions and factors described using coefficients. Section III examines the writings of over ten tax law scholars and recharacterizes their scholarship on statutory interpretation in terms of formulaic deliberation. The Article uses mathematical symbols (sparingly!) to show how mathematical terminology can make the discussion of tax law interpretation more precise and useful. Section IV concludes by using a formula to describe the major points of disagreement between the tax law scholars surveyed.