Conservative & Libertarian Legal Scholarship: Taxation

XXI. Taxation
June 20, 2014

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XXI. Taxation

Marvin A. Chirelstein, Federal Income Taxation (9th ed. 2002). A very good one-volume student text that provides a readable explanation of basic tax code issues.

Walter J. Blum & Harry Kalven, Jr., The Uneasy Case for Progressive Taxation (1953). The classic investigation of the weaknesses in the idea of progressive tax rate structures. This work appears under the same title at 19 U. Chi. L. Rev. 417 (1952). For a recent survey of the literature in this area, see Donna M. Byrne, Progressive Taxation Revisited, 37 Ariz. L. Rev. 739 (1995).  For a contrasting position see Mark Hoose, The Conservative Case for Progressive Taxation, 40 New Eng. L. Rev. 69 (2005).

Alvin Rabushka, The Flat Tax (1985). The economic manifesto for those who wish to scrap the progressive income tax.

David A. Weisbrach & Jacob Nussim, The Integration of Tax and Spending Programs, 113 Yale L.J. 955 (2004).  An argument for a new theory of analyzing tax expenditures that reframes how to analyze the tax policy from one that focuses entirely on the tax code to a broader approach that analyzes how government implements policy, both within the tax code and through other policy mechanisms.  The professors argue that it is a mistake to focus entirely on the tax code for a theory of tax expenditures as overall government policy is implemented through various channels.

Charles Adams, For Good and Evil: The Impact of Taxes on the Course of Civilization (1993). An attempt at a world history of taxation, with an emphasis on the tendency of taxing authorities to run amok.

Lily L. Batchelder, Fred T. Goldberg, Jr., and Peter R. Orszag, Efficiency and Tax Incentives: The Case for Refundable Tax Credits, 59 Stan. L. Rev. 23 (2006).  An examination of the enormous amount of tax incentives provided by the federal government, and an argument for refundable tax credits to incentivize positive household behavior and guard against macroeconomic shocks.

Symposium: Tax Policy as the Twenty-First Century Approaches, 50 Wash. & Lee L. Rev. 439 (1993). Contains a number of tax policy articles. Two broad overviews of the field are particularly useful: Bernard M. Shapiro, Presidential Politics and Deficit Reduction: The Landscape of Tax Policy in the 1980s and 1990s, id. at 441, and John E. Chapoton, The Clinton Tax Plan: The Tax Policy Pendulum Swings Back, id. at 449, both argue that spending cuts are more important in deficit reduction than changes in the tax laws.

Daniel Shaviro, Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U. Pa. L. Rev. 1 (1990). A history of tax “reform” legislation in the 1980s with an emphasis on the 1986 Act, combined with an argument that neither public choice theory nor conventional political science models can adequately explain or predict such complex phenomena.

Julie Roin, The Consequences of Undoing the Federal Income Tax, 70 U. Chi. L. Rev. 319 (2003).   A brief discussion of the probable effects of the repeal of the federal income tax, along with an argument that a repeal of the income tax would likely not reduce the size of the federal government.

Bradford Anderson, Welcome to My Flipperhood: A Call to Repair the Residential Real Estate Tax Swindle, 7 Geo. J. L. & Pub. Pol’y 415 (2009). A proposal for a revocation of tax-free treatment of residential housing capital gains as an appropriate long-term solution to the problem of residential housing speculation.

Richard Epstein, Taxation with Representation: Or, the Libertarian Dilemma, 18 Can. J. L. & Juris. 7 (2005). Professor Epstein, writing from a libertarian perspective, defends the institution of taxation against “full frontal” libertarian attacks, saying that “the case against redistribution through state power cannot be made on the grounds that all forms of taxation are off-limits to the well-run state.”

Eric Posner, Law and Social Norms: The Case of Tax Compliance, 86 Va. L. Rev. 1781 (2000).  Professor Posner argues that tax compliance is not a function only of the expected legal sanction, but of reputation, and reputation can be understood in terms of signaling of discount rates and that “increased enforcement can result in greater compliance in some communities, and less compliance in other communities, depending on the extent to which tax compliance is a signal (a costly action recognized as such by those who observe them, with the function of disclosing information about the person who sends the signal).

Henry E. Smith, Ambiguous Quality Changes from Taxes and Legal Rules, 67 U. Chi. L. Rev. 647 (2000).   Professor Smith explores the consequences for legal rules from dropping the neoclassical assumption that the mix of attributes within commodities is either fixed or costlessly measured, extending models of quality under commodity-excise taxes to the more complex case of legal rules mandating product enhancements (such as nondisclaimable warranties) and to rules aimed at pricing external harms (such as pollution taxes). He shows that the range of possible quality effects, direct and indirect, of legal rules is greater than that in the case of excise taxation and that quality changes present issues of measurement cost that have been overlooked.

David Schizer, Realization as Subsidy, 73 N.Y.U. L. Rev. 1549 (1998). Dean Schizer defends the deferral of tax consequences of a gain or loss until the realization of the same on the theory that it is a beneficial subsidy for private savings and investment.

Michael Powers, David Schizer, & Martin Shubik, Market Bubbles and Wasteful Avoidance: Tax and Regulatory Constraints on Short Sales, 47 Tax L. Rev. 233 (2004). A critique of the tax constraints on short sales, concluding that, first, short sales play a valuable role in the financial markets but are subject to uniquely poorly tailored regulation; second, investor self-help can ease some of the harm from this poor tailoring, but at a cost; and, third, relatively straightforward reforms can eliminate the need for self-help while accommodating legitimate regulatory goals.

For an overview of the law and economics literature on taxation, see chapter 17 of Richard Posner, Economic Analysis of Law. Chapter 18 deals with estate taxation.

Internet resources: Tax resources on-line include the “Federal Tax Law” links page, and the policy-oriented tax page from the Heritage Foundation,

Last updated April 2011

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