TaxProf Blog

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

Thursday, October 31, 2013

Borden & Lawsky: Line-Drawing

Iowa Law Review LogoBradley T. Borden (Brooklyn), Quantitative Model for Measuring Line-Drawing Inequity, 98 Iowa L. Rev. 971 (2013):

The law draws lines. It draws lines between manslaughter and murder, negligence and gross negligence, speeding and driving legally, and capital gains and ordinary income. Those lines invariably cause undesirable results. In particular, lines in the law cause inequity because they impose different treatment on similarly situated persons. Despite this inequity, analysts generally embrace the quantitative comforts of inefficiency analysis. This Article introduces a quantitative model for measuring inequity. Consequently, the preference for quantitative measures no longer justifies the disdain for inequity analysis. Instead, democratic and philosophical efforts to assess laws should embrace now-quantifiable inequity analyses as the analytical tools of choice.

The quantitative model introduces a method for measuring line-drawing inequity. The quantitative information it yields illustrates that a line’s location affects the amount of inequity that results from enforcing that line. The model provides an opportunity to test and rethink the relationship between equity and efficiency. It demonstrates that the governed may reduce line-drawing inequity by altering their behavior to avoid negative linedrawing effects. The model also provides quantitative evidence that the perceived tension between equity and efficiency analyses is misinformed. In fact, the model demonstrates that efficiency and equity may correlate in the line-drawing context. Finally, this Article illustrates that the criteria used to draw a line may result in that line having an inappropriate orientation, and concludes that excessive inequity may signal a need to change a line’s orientation within a law or otherwise alter that law to reduce line-drawing inequity.

Sarah B. Lawsky (UC-Irvine), The Problem of Line-Drawing, 98 Iowa L. Rev. Bull. 42 (2013):

Borden’s Article makes a valiant attempt to attack a longstanding problem. The Article does not, however, sufficiently justify the assumptions on which the model it presents depends, including definitions of fairness and of normative tax liability, and it is hard to understand how the model could apply to other areas of law without requiring similarly problematic and contentious assumptions. The particular model Borden’s Article presents is, in short, too contingent to focus intuitions about line-drawing and fairness. Nonetheless, the quantitative approach to fairness has tremendous potential, and Borden’s ambitious article raises important and difficult questions.

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