Monday, April 9, 2018
Pardon me while I diverge from the topic of legal education to talk about something abstract like "the rule of law," provoked by recent work of two of my favorite legal educators.
On April 4, Larry Solum (Georgetown) delivered the Regula Lecture at the University of Akron on "Surprising Originalism", which you can watch here. I am always interested in what Larry has to say, first, because we share some common interests in language and philosophy, and, second, because he delivers it so well. If I can summarize his point quickly, it is that (1) sensible originalism is possible if we look not at the founders' intentions, but what the words of the constitutional text actually meant at the time they were uttered; and (2) that originalism in constitutional interpretation is preferable to alternatives like the "living constitution" because the former is more likely to preserve the rule of law - that is, as a restraint on rule by pure power and might. Larry's particular contribution is the application of the work of the philosopher of language H.P. Grice to the constitutional text - looking not merely at the semantics of the sentences as written, but at their pragmatics as well. At the time they were written, what did they say but, more importantly, what did they implicate to the public that would have read or heard the words?
I am not a constitutional scholar, but I have my own reasons for being interested in Grice. Robin Bradley Kar and Margaret Radin have just placed the first Harvard Law Review article on contract law in over ten years. They use Grice's principles to argue that extensive boilerplate and click-throughs in consumer and other contracts ought not to be considered part of the parties' actual agreement. I wrote a response, not necessarily disagreeing with the policy issues regarding boilerplate, but taking issue with, among other things, the references to Grice.
I didn't take issue with Larry Solum's point (1) above, at least in terms of thinking about constitutional meaning as guided by Grice. What I wondered about, as I listened to his lecture, was the move in point (2) - that hewing to a philosophy of constitutional originalism was central to the rule of law. What went through my head was a line I have used before: "the rule of law is not a rule of law."
So I was delighted to see that Linda Meyer (Quinnipiac) happens to have just posted an essay that expands far more eloquently on that thought. It is not a direct response to Larry Solum's argument; I'm the one making that connection! Her essay is Sisyphus and the Clockmaker: Two Views of the Rule of Law in Keally McBride's 'Mr. Mothercountry: The Man Who Made the Rule of Law.' You can see from the abstract why it caught my eye:
Some comments below the break.
Friday, November 28, 2014
Monday, October 22, 2012
The Tax Policy Center hosts a program today on Red Ink and Bad Blood: What Do Federal Budget Politics Mean for the Next President and You? (webcast here):
Fiscal cliff. Taxmaggedon. Debt default. The Great Recession. Political gridlock. Sequestration. The making -- or unmaking -- of the federal budget is at play with each of these. Making sense of it all is the focus of David Wessel’s new book, Red Ink: Inside the High Stakes Politics of the Federal Budget.
- David Wessel (Economics Editor, The Wall Street Journal)
- Alice Rivlin (Co-chair, Bipartisan Policy Center’s Debt Reduction Task Force)
- Joseph Minarik (Senior Vice-President, Committee for Economic Development)
- Eugene Steuerle (Co-founder, Tax Policy Center)
Friday, May 27, 2011
“With our e-book, tax professionals will no longer have to dig through a printed book or even tap the Internet,” said Christopher E. Bergin, Tax Analysts president and publisher. “Our e-book will enable them to keep the information they need at their fingertips, wherever they go.”
The Internal Revenue e-Code & Regs, which costs $50 for a one-time purchase or $100 for an annual subscription with quarterly updates, is available for PCs and Macs using Adobe® Digital Editions.
The e-book is a total e-solution. You can bookmark and make notes within each update of it. The e-book provides extensive linking within and between the code and regulations. It also includes historical notes that link to every corresponding amendment dating back to 1993 – with pre-1993 amendments available for every code section.
Wednesday, June 9, 2010
I previously blogged (here and here) the new novel by Tax Prof Daniel N. Shaviro (NYU), Getting It (iUniverse, 2010). Above the Law today hsa a review of the book along with an interview with Dan. Here is the opening:
If you’re the type who is convinced that the people you work with in Biglaw are evil, conniving, and ready to stab you in the back with a really sharp highlighter, you will love Getting It, a novel by Daniel Shaviro. In a post titled “james joyce meets the paper chase,” an Amazon reviewer says: “If Joyce or Kafka had worked at Arnold and Porter, this would be their book.”
I’ve read a lot of lawyer fiction, but never something quite like this. The satirical novel is populated with sadistic partners and scheming associates competing for partnership, including the caddish Bill Doberman, dopey Arnold Portner, and self-involved Lowell Stellworth. It’s an “American Psycho” take on Biglaw — funny and fast-paced, a great summer quick read. I devoured it on a plane to Chicago.
Thursday, April 8, 2010
Kristin E. Hickman (Minnesota) & Claire A. Hill (Minnesota) have published Concepts, Categories, and Compliance in the Regulatory State, 94 Minn. L. Rev. 1151 (2010). Here is the abstract:
Kristin also has published Federal Administrative Law: Cases and Materials (Thomson West 2010) (with Richard J. Pierce Jr. (George Washington))
Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that they can only be explained or understood by reference to history. At its (perhaps caricatured) extreme, such a regime is one in which regulated parties expend significant efforts attempting to comply with the law and often succeed in complying at the most minimal level possible, to the point that compliance is perceived as optional and, to some non-trivial extent, is indeed so. Some set of activities the regime manages to sanction or constrain is perceived as, and to some non-trivial extent is, unanchored to any reasonable conception of the regime’s purpose. Indeed, under such a regime, activities that might seem to warrant the same treatment are sometimes treated differently, and activities that might seem to warrant different treatment are treated the same. This happens frequently enough that the regime’s coverage is difficult to justify in any principled manner, compromising its efficacy and legitimacy.
What does a regime that is so importantly shaped by its trajectory look like, and how does a regime get to that state? In articulating its requirements and prohibitions, law often starts with a prototype, a paradigmatic case of what it wants to regulate. Ideally, where it is unclear whether particular actions resemble the prototype sufficiently to warrant sanction, the interactions between regulated parties, regulators, and other interested parties would not only resolve those cases but also refine and elaborate the regime’s goals and means for achieving them. Sometimes, however, the trajectory goes awry, and the similarity assessment yields results that depart appreciably from any reasonable conception of the regime’s text or purpose. Compounding the difficulty further, law often emphasizes certainty and encourages planning by providing detailed roadmaps of necessary and sufficient conditions for achieving particular legal consequences. Such rules are susceptible to formalistic interpretation. Law typically seeks to avoid the potentially absurd extremes of rules or formalistic interpretations of statutory text through the use of ex post standards, which often take the form of what we call goal-derived categories. Yet, given the role of precedent and predictability, at a certain point, we may just be stuck with unintended, spirit-violative results. In a regime that relies strongly on its trajectory in articulating its requirements, many rules will permit considerable spirit-violative behavior, the standards ostensibly available to address such behavior will find themselves foreclosed, and the overall coverage of the regime will reflect its history far better than its substance and purpose.
In our Article, we describe a basic theory by which minimalist compliance and regulator reactions thereto may lead to a regime that is far better explained by its trajectory than by statutory or regulatory text or purpose, establishing a foundation for future work in which we will elaborate the theory in more detail and apply it comparatively across a broad range of regulatory regimes such as tax, campaign finance, antitrust, environmental law, and securities law.
Thursday, April 1, 2010
The Graduate Tax Series is the first and only series of course materials designed for use in tax LL.M. programs. Like all books in the Series, Regulation of Tax Practice was designed from the ground-up with the needs of graduate tax faculty and students in mind:
- More focus on Internal Revenue Code and regulations, less on case law
- Analysis of complex, practice-oriented problems of increasing sophistication
- Teacher’s manual with solutions to problems and other guidance
- On-line access to the comprehensive and current Code and regulations, designed to complement the book
Six other books in the Series also are available for adoption:
- Civil Tax Procedure (2d ed. 2007), by David Richardson (Florida), Jerome Borison (Denver), and Steve Johnson (UNLV).
- Employee Benefits Law: Qualification Rules and ERISA Requirements (2006), by Kathryn Kennedy (John Marshall) & Paul Shultz (Director, Employee Plans Rulings & Agreement, IRS)
- Federal Tax Accounting (2006), by Michael Lang (Chapman), Elliot Manning (Miami) & Steven Willis (Florida)
- Partnership Taxation (2d ed. 2008), by Richard Lipton (Baker & McKenzie, Chicago), Paul Carman (Chapman & Cutler, Chicago), Charles Fassler (Greenebaum, Doll & McDonald, Louisville) & Walter Schwidetzky (Baltimore)
- Tax Crimes (2008), by Steve Johnson (UNLV), Scott Schumacher (Washington), Larry Campagna (Adjunct Professor, Houston) & John Townsend (Adjunct Professor, Houston).
- United States International Taxation (2008), by Allison Christians (Wisconsin), Samuel Donaldson (Washington) & Philip Postlewaite (Northwestern)
Other forthcoming books in the Series are:
- Bankruptcy Taxation, by Frances Hill (Miami) & William Lyons (Nebraska)
- Estate and Gift Taxation, by Robert Danforth (Washington & Lee) & Brant Hellwig (South Carolina)
- Federal Corporate Income Taxation, by Charlotte Crane (Northwestern) & Linda Beale (Wayne State)
- Federal Taxation of Property Transactions, by Elliott Manning (Miami) & David Cameron (Northwestern)
- For more details about the Graduate Tax Series, see here.
- Click on these links to purchase a copy of Civil Tax Procedure, Employee Benefits Law, Federal Tax Accounting, Partnership Taxation, Tax Crimes, and United States International Taxation. Faculty can request a complimentary review copy by emailing here (in the body of your email, note the title of the book you are requesting and your contact information).
- Email me if you would like more information about the Series or if you would like to submit a book proposal.
Friday, March 26, 2010
Climate change and justice are so closely associated that many people take it for granted that a global climate treaty should--indeed, must--directly address both issues together. But, in fact, this would be a serious mistake, one that, by dooming effective international limits on greenhouse gases, would actually make the world's poor and developing nations far worse off. This is the provocative and original argument of Climate Change Justice. Eric Posner and David Weisbach strongly favor both a climate change agreement and efforts to improve economic justice. But they make a powerful case that the best--and possibly only--way to get an effective climate treaty is to exclude measures designed to redistribute wealth or address historical wrongs against underdeveloped countries.
In clear language, Climate Change Justice proposes four basic principles for designing the only kind of climate treaty that will work--a forward-looking agreement that requires every country to make greenhouse--gas reductions but still makes every country better off in its own view. This kind of treaty has the best chance of actually controlling climate change and improving the welfare of people around the world
In clear language, Climate Change Justice proposes four basic principles for designing the only kind of climate treaty that will work--a forward-looking agreement that requires every country to make greenhouse--gas reductions but still makes every country better off in its own view. This kind of treaty has the best chance of actually controlling climate change and improving the welfare of people around the world.
Sunday, February 21, 2010
The Michigan Law Review publishes an Annual Survey of Books dedicated to book reviews. Book reviews are not included in any other issue of the Michigan Law Review. The Survey includes reviews of books published in the current year and the past two years. So, for example, the 2011 Survey, which will be published in April 2011, will include reviews of books published in 2011, 2010, and 2009.
The Book Review Office welcomes unsolicited submissions. Proposal guidelines can be downloaded here. Manuscripts and draft sections to accompany the proposal are appreciated. Please note that all Book Review proposals, drafts, and manuscripts must be submitted via email. Decisions for the upcoming year's issue are generally made between March and May.
Please note that we require that finished drafts be no more than 8,500 words, including footnotes.
Wednesday, December 30, 2009
Rutsel Silvestre J. Martha (General Counsel, International Fund for Agricultural Development) has published Tax Treatment of International Civil Servants (Martinus Nijhoff Publishers 2010). Here is the abstract:
What sets the tax treatment of the international civil servants apart are the legal considerations derived from public international law. Often the matter is approached from the perspective of privileges and immunities. However, when regarded as a concern with the equal pay for equal work it boils down to employment conditions that need to be satisfied by international organisations due to the peculiar legal setting in which international civil servants discharge their duties. By adding a perspective from the jurisprudence of international (administrative) tribunals to the current scholarship, the present study – the first of its kind - purports to contribute to a better understanding of the matter of taxation of the salary, emoluments and pensions of employees of international organizations.
(Hat Tip: Jacob Cogan.)
Wednesday, May 20, 2009
Joel Hesch (Liberty) has published a new book, Reward: Collecting Millions for Reporting Tax Evasion (Your Complete Guide to the IRS Whistleblower Reward Program) (Liberty University Press, 2009). From the publisher's description:
Are you aware...
- $350 billion in taxes go unpaid each year.
- The IRS pays 15-30% to report tax evasion.
- Multi-million dollar rewards are waiting.
The new IRS Whistleblower Reward Program pays you up to 30% of the unpaid taxes it collects. That means if a company or individual you know about underpaid their taxes, you could receive huge rewards for reporting them. If you have the right kind of a case, you will receive millions of dollars. Chances are you or someone you know is eligible!
But the process is far more than calling a hotline or simply filling out a form. You must scrupulously follow each technical requirement and informal procedure. That's where this book fi ts in. It is the first complete guide to the IRS Reward Program. From numerous stories and examples to checklists and evaluation techniques, Reward helps you understand the benefits and avoid pitfalls.
Monday, April 27, 2009
The Legal Aid Society of Middle Tennessee and the Cumberlands has published The Innocent Spouse Manual: Representing Taxpayers in Innocent Spouse Cases (2d ed. 2009):
The manual is free to Low Income Tax Clinics operating under I.R.C. section 7526 grants and to other legal aid offices which represent taxpayers in innocent spouse controversies. To obtain a PDF copy, fax a request for the Innocent Spouse Manual on your organization's letterhead to 615-244-6186. Direct the request to Robert B. Nadler and include your email address in the letter. You will be sent a PDF copy of the manual by email.
For other parties interested in obtaining a copy, you can order a PDF copy here. The cost is $25.00.
(Hat Tip: Francine Lipman.)