Tuesday, July 22, 2014
Patrick B. Crawford (People's College of Law), Occupy Wall Street, Income Inequality and Tax Scholarship: An Ideology Critique of the Consumption Tax Debate, 12 U.N.H. L. Rev. 137 (2014):
This is the first article to address the question: “What does Occupy Wall Street (“OWS”) have to say about American legal scholarship on income inequality (distributive justice) and tax policy?” The article shows, in the example of the leading tax scholarship on distributive justice and the consumption tax, how legal scholarship on economic regulation more generally systematically obscures rather that illuminates the important most important social welfare issue of our time. That is, the form and framing of analysis in the consumption tax literature preempts from serious analysis OWS major beef with our economic regulations: the fact that over the past 30-odd years big-business and big capital has dramatically increased its rent seeking and capture of the regulatory system.
The article is an ideology critique of the consumption tax literature and, by extension, much of the literature on economic regulation (at least over the past 30-odd years).
The article ‘s more specific contribution to the tax policy literature on distributive justice is as follows. The article is the first to show that the pro-consumption tax literature is wrong to claim that there are no viable fairness objections to shifting the tax base from capital to labor. In this respect alone, the article is an important contribution. The article digs deeper, however, to examine just why the consumption tax literature has been unable to rigorously address fairness claims. It is because of pro-capital ideology in the literature. The article is a rigorous ideology critique of this literature; it shows that the reason the consumption tax literature is incapable to rigorously examine fairness claims is precisely the same reason the legal scholarship on economic regulation overall has been virtually silent on law’s role in creating our present discontent: its very form of analysis systematically blocks out any consideration of how the 1% (big-business and big capital) actually asserts power against the 99% (labor) in America, particularly over the past 30-odd years. Such ideological tax scholarship trumpets highly abstract forms of analyses (econometric as well as a historical “theories of justice”) that obscure how the tax and transfer system actually distributes wealth and power among, particularly workers and owners. Through a detailed reading and critique of the consumption tax literature, this article shows how the literature EXCLUDES any rigorous consideration of how power actually operates in America. Such exclusion is the hallmark of ideology.
The article is also (surprisingly) the first to introduce to the law review literature the rigorous definition of ideology critique and critical theory by the leading English speaking scholar on the subject, Cambridge Philosopher Raymond Geuss. The paper shows how the tax literature fits perfectly the definition of “pernicious ideology” in the German philosophical tradition of critical theory a la Geuss. In this way, the article’s ideology critique of the consumption tax literature can be applied to other areas of economic regulation, from banking law to property law.