Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that wei... more Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes. This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive. Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.
Critics often deride the billable hour as oppressive and inefficient. This Article presents a nov... more Critics often deride the billable hour as oppressive and inefficient. This Article presents a novel argument in the billable hour’s favor: clients use it to monitor their lawyers’ efforts, thereby mitigating the incentive problems that plague alternative fee arrangements. Prior literature has suggested that law firms use billable hours because they cannot bear the risk of cost overruns. I argue that this perspective is theoretically shaky, and I demonstrate through both historical and empirical evidence that monitoring best explains the popularity of the billable hour.
Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that wei... more Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes. This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive. Although many scholars have stu...
Every line of the Internal Revenue Code is continually vulnerable to revision or repeal. With eac... more Every line of the Internal Revenue Code is continually vulnerable to revision or repeal. With each new session of Congress, rates may rise or fall, transactions may become taxable or tax-free, and incentive programs may be extended or repealed. The resulting uncertainty harms taxpayers, who find it difficult to plan their future business affairs. It frustrates government by making its incentive programs less effective. For example, firms may decline to invest in research facilities because they cannot rely on a tax credit that might soon expire. And it provides fodder for political rent-seeking, as legislators can demand money or votes in exchange for supporting a soon-to-expire tax break. This was recently seen in the furor over bonus depreciation, a purportedly temporary provision that has been the subject of furious lobbying and frequent renewal. This paper proposes commitment devices as an antidote to tax uncertainty. I analyze the economic and democratic costs of tax uncertainty, and why even a perfectly altruistic and rational legislature might benefit from credible policy commitment. I also describe the most practicable tax commitment devices within the bounds of current law, and I consider how those devices can improve current provisions for bonus depreciation and the R&D credit.
Critics often deride the billable hour as oppressive and inefficient. This Article presents a nov... more Critics often deride the billable hour as oppressive and inefficient. This Article presents a novel argument in the billable hour’s favor: clients use it to monitor their lawyers’ efforts, thereby mitigating the incentive problems that plague alternative fee arrangements. Prior literature has suggested that law firms use billable hours because they cannot bear the risk of cost overruns. I argue that this perspective is theoretically shaky, and I demonstrate through both historical and empirical evidence that monitoring best explains the popularity of the billable hour.
A huge literature contemplates the theoretical relationship between judicial deference and agency... more A huge literature contemplates the theoretical relationship between judicial deference and agency rulemaking. But relatively little empirical work has studied the actual effect of deference on how agencies draft regulations. As a result, some of the most important questions surrounding deference—whether it encourages agencies to focus on policy analysis instead of legal analysis, its relationship to procedures like notice and comment—have so far been dominated by conjecture and anecdote. Because Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. applied simultaneously across agencies, it has been difficult to separate its specific causal effect from other contemporaneous events in the 1980s, like the rise of costbenefit analysis and the new textualism. This Article contends with this problem by exploiting a unique event in administrative law: the Supreme Court’s 2011 decision in Mayo Foundation v. United States, which required that courts apply Chevron deference to int...
Modern international tribunals have developed a presumption of unconditional early release after ... more Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international criminal law. I trace the development of this doctrine to a false analogy with the law of domestic parole. I then suggest an alternative approach based on prisoners’ changed circumstances and enumerate criteria for tribunals to use in future early release decisions.
A substantial academic literature considers how agencies should interpret statutes. But few studi... more A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation.
It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism.
These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.
Critics deride the billable hour as oppressive and inefficient, incentivizing lawyers to waste ti... more Critics deride the billable hour as oppressive and inefficient, incentivizing lawyers to waste time in order to inflate their fees. This Article presents a novel argument in the billable hour’s favor: clients use it to monitor their lawyers’ efforts, thereby mitigating the principal-agent problems that plague alternative fee arrangements. Prior literature has suggested that law firms bill by the hour because they cannot bear the risk of cost overruns. This Article argues that this perspective is both theoretically and empirically shaky, and demonstrates through an analysis of historical and contemporary practice that monitoring best explains the popularity of the billable hour.
Modern international tribunals have developed a presumption of unconditional early release after ... more Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international criminal law. I trace the development of this doctrine to a false analogy with the law of domestic parole. I then suggest an alternative approach based on prisoners’ changed circumstances and enumerate criteria for tribunals to use in future early release decisions.
Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that wei... more Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes.
This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive.
Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.
Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that wei... more Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes. This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive. Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.
Critics often deride the billable hour as oppressive and inefficient. This Article presents a nov... more Critics often deride the billable hour as oppressive and inefficient. This Article presents a novel argument in the billable hour’s favor: clients use it to monitor their lawyers’ efforts, thereby mitigating the incentive problems that plague alternative fee arrangements. Prior literature has suggested that law firms use billable hours because they cannot bear the risk of cost overruns. I argue that this perspective is theoretically shaky, and I demonstrate through both historical and empirical evidence that monitoring best explains the popularity of the billable hour.
Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that wei... more Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes. This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive. Although many scholars have stu...
Every line of the Internal Revenue Code is continually vulnerable to revision or repeal. With eac... more Every line of the Internal Revenue Code is continually vulnerable to revision or repeal. With each new session of Congress, rates may rise or fall, transactions may become taxable or tax-free, and incentive programs may be extended or repealed. The resulting uncertainty harms taxpayers, who find it difficult to plan their future business affairs. It frustrates government by making its incentive programs less effective. For example, firms may decline to invest in research facilities because they cannot rely on a tax credit that might soon expire. And it provides fodder for political rent-seeking, as legislators can demand money or votes in exchange for supporting a soon-to-expire tax break. This was recently seen in the furor over bonus depreciation, a purportedly temporary provision that has been the subject of furious lobbying and frequent renewal. This paper proposes commitment devices as an antidote to tax uncertainty. I analyze the economic and democratic costs of tax uncertainty, and why even a perfectly altruistic and rational legislature might benefit from credible policy commitment. I also describe the most practicable tax commitment devices within the bounds of current law, and I consider how those devices can improve current provisions for bonus depreciation and the R&D credit.
Critics often deride the billable hour as oppressive and inefficient. This Article presents a nov... more Critics often deride the billable hour as oppressive and inefficient. This Article presents a novel argument in the billable hour’s favor: clients use it to monitor their lawyers’ efforts, thereby mitigating the incentive problems that plague alternative fee arrangements. Prior literature has suggested that law firms use billable hours because they cannot bear the risk of cost overruns. I argue that this perspective is theoretically shaky, and I demonstrate through both historical and empirical evidence that monitoring best explains the popularity of the billable hour.
A huge literature contemplates the theoretical relationship between judicial deference and agency... more A huge literature contemplates the theoretical relationship between judicial deference and agency rulemaking. But relatively little empirical work has studied the actual effect of deference on how agencies draft regulations. As a result, some of the most important questions surrounding deference—whether it encourages agencies to focus on policy analysis instead of legal analysis, its relationship to procedures like notice and comment—have so far been dominated by conjecture and anecdote. Because Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. applied simultaneously across agencies, it has been difficult to separate its specific causal effect from other contemporaneous events in the 1980s, like the rise of costbenefit analysis and the new textualism. This Article contends with this problem by exploiting a unique event in administrative law: the Supreme Court’s 2011 decision in Mayo Foundation v. United States, which required that courts apply Chevron deference to int...
Modern international tribunals have developed a presumption of unconditional early release after ... more Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international criminal law. I trace the development of this doctrine to a false analogy with the law of domestic parole. I then suggest an alternative approach based on prisoners’ changed circumstances and enumerate criteria for tribunals to use in future early release decisions.
A substantial academic literature considers how agencies should interpret statutes. But few studi... more A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation.
It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism.
These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.
Critics deride the billable hour as oppressive and inefficient, incentivizing lawyers to waste ti... more Critics deride the billable hour as oppressive and inefficient, incentivizing lawyers to waste time in order to inflate their fees. This Article presents a novel argument in the billable hour’s favor: clients use it to monitor their lawyers’ efforts, thereby mitigating the principal-agent problems that plague alternative fee arrangements. Prior literature has suggested that law firms bill by the hour because they cannot bear the risk of cost overruns. This Article argues that this perspective is both theoretically and empirically shaky, and demonstrates through an analysis of historical and contemporary practice that monitoring best explains the popularity of the billable hour.
Modern international tribunals have developed a presumption of unconditional early release after ... more Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international criminal law. I trace the development of this doctrine to a false analogy with the law of domestic parole. I then suggest an alternative approach based on prisoners’ changed circumstances and enumerate criteria for tribunals to use in future early release decisions.
Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that wei... more Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes.
This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive.
Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.
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It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism.
These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.
This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive.
Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.
It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism.
These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.
This Article argues that anti-abuse doctrines should be considered substantive canons of construction, presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive.
Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.