Tuesday, January 21, 2014
Alice Abreu (Temple) presented The Rule of Law as a Law of Standards: Interpreting the Internal Revenue Code at Northwestern last week as part of its Tax Colloquium Series hosted by by Herbert Beller, Charlotte Crane, David Cameron, Philip Postlewaite, Jeffrey Sheffield, and Robert Wootton:
We begin in Part I by discussing the relationship between rules and the rule of law and explaining why we think so many tax scholars are drawn to a view of the tax law as consisting primarily of rules. In Part II we summarize and expand our previous discussion of the definition of income to determine whether the term is susceptible to construction as a rule. We show that even a brief trip through some of the litigation required to determine whether certain items are income leads to the conclusion that it is not a rule. In Part III we tease out the functions served by interpreting income as a standard and examine the question of where interpretive authority lies with respect to the Code. In Part IV we turn to several examples discussed by Professor Zelenak to distinguish what we regard as interpretation (both “correct” and “incorrect”) from what he, and we, view as either a “disregard” or an “underenforcement” of the law; we think that the contrast clarifies the contours of interpretation.