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Sunday, July 05, 2015

What Explains the Trend?

        Thanks to all for engaging with my last post, which suggested that there is an increasingly prominent trend in U.S. tax law scholarship toward thinking about tax law through the lens of administrative law and administrative discretion.  I take the points made by commentators that this trend may be reinforced by the increased attention to administration by scholars in other fields.  For instance, as Brian Galle pointed out, public finance economists have been paying more attention to enforcement and administration as of late. Nonetheless, I think that there are also other factors that have led to an increasing focus on administrative law and administrative discretion by U.S. tax law scholars in particular.  What might some of these be?


        I am thankful to Kristin Hickman for commenting on my prior post because I think that the increasing focus by tax law scholars on administrative law and administrative discretion owes at least in part to her important, pioneering work.  Kristin has been writing persuasively for years about how administrative law really does apply to tax (and how tax practitioners and administrators alike historically failed to fully accept this), a fact that (as Kristin pointed out) the Supreme Court recently acknowledged in Mayo Foundation. Kristin’s diligent exploration of how administrative law applies to tax, and the Supreme Court’s (as well as other courts’) ultimate acceptance of this fact, has set the stage for the U.S. tax law community’s long overdue grappling with tax and administrative law.  Kristin hasn't been working in isolation, of course. Tax scholars such as Leandra Lederman, Steve Johnson, and Bryan Camp, to name just a few, have engaged in groundbreaking work that underscores the importance of studying tax administration.

        Separately, the topic of administration of the tax law (whether justifiably or unjustifiably) has been the subject of some major headlines as of late.  The most notorious recent example, of course, is the seemingly never-ending coverage of the IRS’s purported targeting of Tea Party groups.  More generally, the IRS’s administrative budget is frequently on the chopping block, yielding somewhat constant hand-wringing about how the nation’s tax system will continue to be administered. 

        Finally, administrative discretion has been quite important on the political stage in recent years outside of the tax context.  Most notably, the Obama Administration’s DAPA program, which inspired extensive scholarly and political debate, still hangs in the balance after recent judicial decisions.  DAPA, of course, is only the latest flashpoint of debate regarding the ability of administrative agencies (whether or not at the direction of the President) to create guidelines that limit their enforcement discretion.  As I have argued recently, these instances may inform tax nonenforcement, and vice versa.

        While the above suggestions of course are not the only, possible explanations for the U.S. scholarly trend toward tax law and administration (and commentators have already helpfully offered more), these factors likely play at least some role.  As headlines continue to pop up regarding either administration of the tax system, or administrative discretion generally, I believe that the trend will only increase.  Stay tuned for future posts in which I will explore where the trend might (or should, in my view) be going. . . .


Posted by Leigh Osofsky on July 5, 2015 at 10:43 AM | Permalink


2L editors prefer admin to tax, so admin places better. Both pre-tenure and post-tenure respond to incentives.

Posted by: Nona | Jul 5, 2015 2:22:02 PM

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