Thursday, December 1, 2022
Diane Kemker (Southern), “Cracking Open” the Tax Casebook: Genre, Ideological Closure, and the Earned Income Tax Credit:
The Earned Income Tax Credit (EITC) is a large federal grant program that operates as a “negative income tax” for America’s poorest working taxpayers. It also attracts a grossly disproportionate share of IRS enforcement attention, under audit policies that disparately impact poor Black families and communities. One might think that a topic like this, a credit claimed by tens of millions of American taxpayers every year and resulting in hundreds of thousands of audits, would receive robust coverage in the casebooks from which basic federal income tax courses are typically taught in law school. But in three leading casebooks, including one that is over 1000 pages in length and another that expressly states an intention to address race and gender issues in tax law, the entire treatment of the EITC takes up no more than a page or two.
When the book from which law students learn tax law relegates the vital interests of tens of millions of the poorest (often Black) Americans to little more than a footnote, a message is sent about EITC recipients and their tax-related legal rights, of which Critical Tax scholars (and teachers) should take note. But how to respond? In this Article, I use concepts of genre and ideological closure, drawn from literary theory, to argue that familiar responses to problems in a casebook (revision, supplementation, critiquing and “teaching against” the text) will not suffice. Instead, interventions that expose the processes of ideological closure and more radically “crack open” the text offer greater promise for releasing the generative, equality-minded, and liberatory potential of tax law taught critically.