tax scholarship: critical and meta-critical approaches

I recently received a free copy of Critical Tax Theory: An Introduction, a collection edited by Profs. Anthony C. Infanti (Pittsburgh) and Bridget Crawford (Pace). The book, at 397 pages, is easily the most comprehensive work on the subject, even including a brief essay that I wrote a few years ago on Women, Poverty, and the Tax Code [perhaps that's why I got the free copy.] Ten, or is it twenty or thirty, years into the critical tax movement it provides an opportunity to take stock of what has and hasn't been accomplished.

The first thing that strikes a reader is the sheer volume and (for the most part) quality of what has been written. Along with race, gender, and sexual orientation, there are chapters on family tax, international tax, tax history, and even a chapter on the moderate/conservative response to the critical tax movement, appealingly labeled "critical perspectives on critical tax theory" (more on this later). All told, there were more than 50 articles, ranging from Grace Blumberg's now classic treatment of the taxation of working women (1971) to work completed in the past decade.

One is also struck by the diversity of approaches, which run the gamut from the application of traditional scholarly tools (fairness, simplicity, economic efficiency) in new topic areas--I am thinking here of work like Patricia Cain's on gay couples or Beverly Moran and William Whitford on taxation of African-Americans--to more offbeat approaches like that of Lisa Philipps on "discursive deficits" or Infanti himself on waging "guerilla warfare" within the tax system. But on the hold, the pieces are remarkably tame, perhaps confirming the suspicion that what is radical to tax lawyers is pretty much mainstream to everyone else. For example the Blumberg article, which leads off the collection, makes the pretty nonradical point that the combination of joint returns, nondeductibility of child care expenses, and other provisions tends to discourage wives and mothers from entering the labor force, a proposition that would seem hard to deny except that nobody had quite addressed it before. The articles on race, sexual orientation, and other hot button issues tend likewise to be rather more adventurous in their subject matter than in their methodology.

I suspect that this squares-masquerading-as-radicals feeling--a little bit like a rap group playing a college fraternity--results from the training of tax lawyers rather than any inherent aversion to more creative approaches. Tax professors are, put simply, more comfortable with economics than with culture, and even then with a very particular type of economics that has become traditional in the field. When noneconomic arguments are made about (say) the tax treatment of marriage or the need to encourage home ownership, there is a tendency to dismiss these as "rhetoric"--a neutral but essentially condescending term--and then return to the economic, or pseudo-economic, analysis that one was previously engaged in. This has always been true of old-fashioned tax professors, but it is interesting to see more critical or left-leaning scholars falling into largely the same pattern.

In this context the final chapter, which discusses the criticisms (so to speak) of critical tax work, is especially interesting. Particularly provocative is the final piece in the collection, by Amy Wax, which suggests that the pretax world may discourage women from becoming homemakers and that additional subsidies for "working" women may thus exacerbate rather than counteract preexisting inequities. Or, to put the matter differently, tax provisions that encourage women (or men) to stay home with their children may reflect an economically dubious, but culturally sophisticated, intuition that traditional family structures are in need of protection, a protection which economically "rational" reforms may strip away.

In the context of Infanti and Crawford's book, this insight appears almost as an afterthought: but what if it is actually the real point? What if the seemingly irrational tax subsidies for marriage, home ownership, domestic oil and gas production, and so on are not so irrational after all, but reflect nonquantifiable but nonetheless powerful intuitions that certain forms of behavior are more beneficial to civilized society than others? (Try to find a study that doesn't conclude that children born to married couples do better than those living in single-parent households.) What, that is, if the real critical scholars are the ones who make the intellectually difficult but vital case in favor of these culturally based provisions, and the self-styled crits--nearly all of whom are trained in traditional tax methodologies and remain highly suspicious of cultural arguments--are the real reactionaries? Something to think about.