Klein: Teaching Critical Tax—What, Why, And How

Diane Klein (Southern), Teaching Critical Tax: What, Why, And How, 19 U. Pitt. Tax Rev. __ (2021):

“Critical tax” is an approach to the analysis of tax law and policy that takes race, gender, sexual orientation, disability, citizenship/immigrant status, and other historically marginalized statuses into account, and does so in a way that is centrally focused on the role of tax law in creating and perpetuating persistent economic inequality and disadvantage. This descendant of Critical Legal Studies and Critical Race Theory has been around for more than twenty years. And yet, critical tax is almost entirely absent from the casebooks and syllabi used for the teaching of the core tax courses. This can and should change, and this Article is a practical guide to both why and how teachers of tax law should integrate critical tax perspectives into their courses.

Part I explores a basic question: what is “critical tax”? Part II advocates for the addition of critical tax perspectives to the teaching of tax law by describing some of the intellectual, pedagogical, and professional benefits associated with it. Finally, Part III shows tax teachers how to add these perspectives relatively seamlessly into traditional tax courses, by providing an annotated bibliography of readily available readings that can be added to Syllabi for the basic Federal Income Tax course. This bibliography is intended to provide some points of access to the critical tax literature; it is only a starting point, of course, and is neither comprehensive nor exhaustive.

The recommendation to include critical tax perspectives has precursors. In 2010, Professor Dorothy Brown published an essay called Teaching Civil Rights Through the Basic Tax Course in the St. Louis Law Review. Professor Brown at that point framed her approach as “how to incorporate race and class into the basic tax course,” which she paraphrases in her title as “civil rights.” She was not, at that stage, arguing for the inclusion of distinctively critical tax perspectives; it was challenging enough at that time simply to advocate that race (and class, and in some cases, gender) be taken into account at all. Similarly, while Anthony Infanti and Bridget Crawford’s 2009 anthology, CRITICAL TAX THEORY: AN INTRODUCTION, collects many important early works of feminist, queer, and other “outsider” tax scholarship, it too is now more than a decade old, a decade during which the editors and many others have made numerous very substantive contributions to the literature. The legal academic and pedagogical landscape has also changed in the past decade, and Critical Race Theory is currently on everyone’s radar. This Article, and particularly Part III, the critical tax bibliography, is intended to reflect this.