Paul L. Caron

Monday, December 2, 2019

Osofsky: Constructing Doctrines For Modern Tax Legislative Realities

Leigh Osofsky (North Carolina), Constructing Doctrines For Modern Legislative Realities (JOTWELL) (reviewing Jesse M. Cross (South Carolina), The Staffer's Error Doctrine, 56 Harv. J. on Legis. 83 (2019)):

Jotwell (2020)In recent years, legal scholars have begun to focus in earnest on the realities of the legislative process. Just to name a few topics, this research has included studies about congressional drafting and canonsagency involvement in legislative draftinghow legislative drafting has changed over timehow statutory drafters make discrete drafting decisions, and much more. Understanding these realities is essential to how we use, and make meaning of, the statutes that pervade our legal system.

Jesse Cross’s recently published article, The Staffer’s Error Doctrine, is an important contribution to this body of work. In this article, Cross provides a deep account of how Congress has come to rely upon what Cross calls a “staffer delegation model.” Cross explains that Congress has not always relied so extensively on congressional staff to draft legislation. Rather, Congress previously used a mix of committees and delegation to agencies. Cross argues that concern over executive power, along with expanded internal bureaucracy, has prompted Congress instead to increasingly turn to an army of congressional staffers to draft legislation. As Cross explores, members of Congress have acknowledged that this turn to staffers gives staffers not only clerical tasks, but also significant power to make policy through legislation. And, as Cross persuasively argues, this is a systematic byproduct of a Constitution that creates generalist legislators, notwithstanding a world that increasingly requires subject-matter experts to create good law. ...

Aside from deepening our knowledge about the legislative process generally, Cross’s work has practical significance for the burgeoning study of the tax legislative process. Shuyi Oei and I have studied how tax law drafters make particular drafting decisions. In more recent work, I have examined the many drafting mistakes that were made as part of the 2017 tax reform. The latter work details how agencies, like the IRS, often quietly go about fixing such mistakes, as was the case with the sexual abuse drafting mistake from the 2017 tax reform. How we feel about such fixes should include an understanding of the legislative process that went into making the mistakes. Cross’s article, with its elaboration of the “one-page rule” and other details, is a real contribution to this understanding.

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This is interesting, but hardly new, there were dozens of articles on this 20-30 years ago. I wonder if it wouldn't be better to have some kind of advanced degree in law (as in Europe) rather than continually recycling ideas like this.

Posted by: Mike Livingston | Dec 2, 2019 8:01:14 PM