Tuesday, August 4, 2009
Lilian V. Faulhaber (Harvard Law School), Daniel Martin Katz (Ph.D. candidate, University of Michigan, Department of Political Science) & Michael James Bommarito II (Ph.D. candidate, University of Michigan, Department of Political Science) have posted A Tale of Two Codes: An Empirical Analysis of the Jurisprudence of the United States Tax Court (1990-2008) on SSRN. Here is the abstract:
What can empirical data tell us about the United States Tax Court? What sections of the Internal Revenue Code are most frequently cited and what recent tax legislation has sparked the most change in the Tax Court’s jurisprudence? Contributing to the growing extant literature on citation networks, this Article presents an analysis of the citation practices of the United States Tax Court between 1990 and 2008. While previous citation studies appropriately rely upon case-to-case citations as their unit of analysis, we modify this approach to focus on statutory citations, which represent the best proxy for the underlying content of the decisions in the field of tax law. Building upon prior citation scholarship and leveraging techniques from computer science and informatics, we collected and analyzed more than 11,000 decisions and 244,000 statutory citations authored by the United States Tax Court between 1990 and 2008. Our analysis includes both a static and time-series analysis for the most cited Internal Revenue Code sections. We also offer a network analysis and subsequent analytics focusing both on the static reporting of which Code sections are most often cited and the dynamic patterns of change in citation practices over time. Although this data retrieval itself answers the call for greater empiricism in tax scholarship, we also argue that our findings support the idea that there are effectively two Codes: the legislated Code, made up of the sections that are the basis of legislative action but only infrequently make it into Tax Court opinions, and the litigated Code, made up of the sections most frequently cited by Tax Court judges. We then discuss the implications of this argument, as well as opportunities for further research.