Wednesday, March 28, 2018
Shu-Yi Oei (Boston College) presents Whose Tax Law Is It? Constituencies and Control in Statutory Drafting (with Leigh Osofsky (Miami)), 104 Iowa L. Rev. ___ (2018)), at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:
The 2017 tax reform produced legislation that many have derided as convoluted and unreadable, leading commentators to ask how such legislation came to pass. But there is little existing research about drafting practices that helps us contextualize such critiques.
In this Article, we conduct the first in-depth empirical examination of how drafters make tax law drafting decisions. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our key finding was that the tax law is written for a small group of experts by a small group of experts: Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held this view because their intended audience was experts and software companies, not ordinary taxpayers or even Congress Members. When revising law, drafters preserve existing formulations so as to not upset settled expectations, even at the cost of increasing convolution. And the entire drafting process is controlled by a few tax law specialists, with little input on formulation decisions from Congress Members or other counsels.
These findings have important implications. Law drafted by and for experts may enhance technical accuracy in light of scarce congressional resources and complicated underlying policy. But it may also increase complexity and systematically benefit entrenched users, relative to newcomers and laypersons. This can create tension, whereby taxpayers are subject to responsibilities and penalties for law that drafters do not expect them to understand. Expert-centric drafting may also reduce congressional engagement with statutory text. For example, our findings show how certain aspects of the 2017 tax reform process may stem from longstanding congressional inattention to statutory language, rather than being an extraordinary departure from existing practices, raising critical questions about the legislative process that extend well beyond 2017.