June 28, 2006
Trends in Tax Scholarship
Posted by Victor Fleischer

Having made it through the "extreme" conferencing of the Junior Tax Scholars conference (18 papers in 2 days -- everything is "extreme" here in Boulder, including the sports and the hail storms) ... I thought I'd offer a few words about what I observed in terms of scholarly trends in tax. 

1.  The Declining Importance of Business Law?  Of the 18 papers, only two (mine and David Walker's) were primarily addressing business law issues, although many other papers certainly had relevance for business law, including Alex Raskolnikov's paper on social norms, Adam Rosenzweig's paper on elective tax fictions, and the international papers.  Still, I think it's remarkable that so few of us are primarily interested in how tax affects business. 

Perhaps as tax scholarship matures, the field inevitably becomes more like other areas of public law, and less practice-oriented.  The great papers on budget policy/public finance (Buchanan, Gamage, Doran) certainly trend in the generalist direction.  I wonder also if the rigorous demands of appointments committees inevitably lead to tax scholars whose interests go far beyond business law.  It's no longer enough to practice for a couple of years and jump right into teaching -- you often need a PhD or fellowship to establish your academic cred, even as a tax person. 

Is this a good development?  On the one hand, it's great that all of the papers at our conference were serious, academic papers and not merely descriptive papers talking about the latest changes in practice.  On the other hand, one thing I like about traditional tax scholarship is that, more than in most fields, tax scholars bridge the gap between theory and practice.  Can we do both at the same time?   

Another explanation, perhaps, is that the student editors of law reviews don't really like business tax articles.  So maybe junior tax scholars are just responding to incentives? 

2.  Talk about the imperialism of law and economics is overblown.  Unless I'm mistaken, Neil Buchanan (Rutgers) was the only economist in the room, and none of the papers was pure modeling or quantitative.  Many of the papers incorporated economic ideas, of course, and just about all of us have internalized some of the key lessons of law and economics into our scholarship.  And so while we integrate some law and econ ideas into our scholarship, law and econ simply hasn't taken over tax the same way it has arguably come to dominate corporate law scholarship. 

3.  Intradisciplinarity, not interdisciplinarity.  So, if not law and economics, what is the methodology?  Many papers used an intradisciplinary approach -- e.g. Kristin Hickman (tax law and admin law), David Walker (tax law and accounting), Alex Raskolnikov (tax law and social norms theory), Lloyd Mayer (tax law and election law).  (See also Susan Morse's paper on tax law and Sarbanes-Oxley, highlighted here on the Glom this week.)

On a number of occasions the topic of tax exceptionalism came up -- is tax different than other areas of law?  Should it be?  Do other areas of law have lessons for tax policy?  Does tax have anything to teach other areas?  I see this sort of intradisciplinary scholarship as likely to be the dominant methodology for this generation of tax scholars. 

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