Paul L. Caron

Friday, December 16, 2022

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Yin’s Textualism, Tax Legislative History, And Stanley Surrey

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by George K. Yin (Virginia), Textualism, the Role and Authoritativeness of Tax Legislative History, and Stanley Surrey, 86 Law & Contemp. Probs. __ (2023).


In Textualism, the Role and Authoritativeness of Tax Legislative History, and Stanley Surrey, George Yin uses Stanley Surrey’s writings to reflect on the edicts of new textualism as applied to tax statutes. Surrey, of course, is a foundational figure in postwar tax policy, and his lateral and longitudinal engagement, inside and outside of government, sheds light on virtually every iteration of tax legislation from the late 1930s through the early 1980s—just shy of the judiciary’s textualist turn, as led by Antonin Scalia. Although Yin’s speculations are emphatically counterfactual, his project ably bridges two eras in legal history, shedding light on what changed—and perhaps what was lost—as the last vestiges of the New Deal order yielded to the rise of modern conservatism.

Yin appropriately aligns Surrey with present-day purposivism, which has an almost poignant resonance in the wake of Justice Kagan’s 2015 declaration that “we are all textualists now.” (More recently, Kagan took notice that “Americans have never had much enthusiasm for paying taxes,” which Surrey might attribute, in part, to pervasive tax expenditures.) But Yin uses Surrey’s writings to show where textual analysis works, as well as where other interpretive tools, such as committee reports, may operate effectively. From this perspective, on-the-ground legislative processes should inform courts’ choice of tools in the task of statutory interpretation, and a pluralistic approach has a better chance of capturing the complexity of the United States’ postwar tax system.

Critical to Yin’s argument is the historical function of legal experts in producing tax legislation. Since 1916, elected legislators have played a limited role in the day-to-day drafting of tax legislation. Instead, legislative counsel have directed the translation of legislative ideas into concrete statutory language, and these drafting efforts have been led by a relatively small number of individuals—Middleton Beaman, Ward Hussey, and their successors. Surrey describes Beaman’s process as fundamentally textual: “I learned how words should be used in a statutory draft—words held up to as intense an examination as would a jeweler searching a precious stone.” In addition to text, these coalitions focused on “the style, structure, and underlying interpretive assumptions” that might inform judicial (and private) constructions of legislation. And, Yin argues, Beaman and Hussey saw courts as their ultimate audience. Although proper translation from the drafting room to the courtroom remained contingent, Surrey’s depiction of the nuts and bolts of the tax legislative process are not inconsistent with a version of Scalian textualism.

Surrey, however, likely would have rejected an analysis that started and ended with statutory text. As Yin details, tax legislation after 1939 was surgical, rather than narrative: “just a series of snippets” that modified the codified law. Without high-level expertise, “readers could be expected to be completely lost in the tax maze.” Filling in the gaps were committee reports and other authorities commonly categorized as “legislative history.” Yin notes that, during Surrey’s time in government, expert tax-drafting groups coproduced committee reports alongside legislation, with the reports showing issue development, context, and change over time. Lay readers—including members of Congress—could (and did) use these reports to make decisions about statutory text. As actually used by lawmakers, committee reports represent an a priori, integral part of the underlying legislation, rather than epiphenomena abstracted from the core legislative process. Indeed, courts treated committee reports as “authoritative evidence” before new textualism became vogue. Tin persuasively argues that, at least in taxation, courts should take a textual approach that is tempered by legislative history.

Yin’s tightly reasoned analysis, like textualism itself, implicates questions about the ultimate goal of the interpretive process. To some extent, Yin recharacterizes the interpretive process from a dialectic between democratically accountable legislators and courts to one between unelected tax experts and judges (also unelected, and expert in their own way). If the relevant value is systemic integrity or coherence, then this second conversation seems likely to produce good results. I am less sanguine that other values—a Breyer-esque consequentialism, for example—fare as well under the regime that Yin abstracts from Surrey’s writings. These other values often are the stakes obscured (perhaps superficially) by textualist approaches, and any normative evaluation of interpretative schema should incorporate bottom-line outcomes and their collateral effects.

By focusing on the particulars of the tax legislative process, Yin also alludes to a sort of tax exceptionalism that has come under duress in academic and judicial circles over the last several decades. Contra Gitlitz, tax statutes may be a little bit special, after all. This conclusion, however, leans heavily on an idiosyncratic and regimented tax legislative process. If this process changes—for example, the Tax Cuts and Jobs Act’s closed-door approach becomes dominant—then the factors that give weight both to textualist canons and purposivist legislative histories may not exist. Alternatively, Yin’s case study may illustrate the broader direction of legislation in the age of the administrative state. Laws are more complicated, more expert-driven, and more disconnected from narrative understandings of policy. More Joint Committees are needed. If this second arc dominates, then textualism may prove unsuited to the task of statutory interpretation—and Yin’s nuanced approach to the conventional hierarchy of legal authorities may travel well to other domains. From my perspective, Yin’s brand of thick description can’t hurt.

Overall, Yin’s article effectively juxtaposes Stanley Surrey’s lived experience of the tax legislative process with various assumptions underlying the new textualism. Tax academics and policymakers, as well as scholars interested in questions of statutory interpretation, should find Yin’s empirical and analytical claims important and thought-provoking.

Here’s the rest of this week’s SSRN Tax Roundup:

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