TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, February 16, 2017

Hayashi Presents A Theory Of Facts And Circumstances Today At Duke

HayashiAndrew Hayashi (Virginia) presents A Theory of Facts and Circumstances at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

The legal consequences of an action often depend on information that only the actor knows, such as her intentions. This information is often inferred from the observable “facts and circumstances” attending the actor’s conduct, which creates a seemingly unresolvable tension in legal design. On the one hand, the unstructured nature of these analyses gives free rein to the factfinder’s judgment about which facts justify an inference to the hidden information. On the other hand, if the law were to specify in advance the facts that would be used to draw that inference it would provide a roadmap for actors to strategically adjust their conduct to manipulate the factfinder’s conclusions. I argue that this tension can be resolved by applying insights from the economics literature on asymmetric information.

These insights help answer both the substantive question of which facts and circumstances should be taken into account, and the procedural question of whether they should be specified by the legislature or left to the courts. I provide a principle for identifying relevant facts and circumstances and argue that facts and circumstances tests are generally best implemented as “principled standards.”

Colloquia, Scholarship, Tax | Permalink