Tax and Distributive Justice in the Classroom

A few years ago, a student reviewer of my Federal Income Tax Class wrote something that stung a bit: “Good class. But don’t expect her to do much with the theory stuff she brings up at the beginning. The class is mostly black-letter law.” I frowned: Hadn’t the student taken notice of all the policy discussions we’d had? Still, the comment contained more than a smidgen of truth.

I’ve always taken advantage of the introductory class to highlight connections between tax and distributive justice. When we analyze who should pay taxes, how much they should pay, and how their social position or behavior should affect their taxes, we are asking normative questions that have occupied political philosophers for millennia.

But as each semester progressed, and I got busy, and [insert additional excuses here], I found myself focusing on the Code, the cases, and immediate policy options. I left the theory connections until, well, the final lecture.

The student’s comment stayed with me. I’ve always thought that the black-letter law of tax constantly implicates distributive justice — think about the taxation of gifts, the realization requirement, the tax-shelter cases. But even the smartest students can’t make those connections on their own. So this year, I’m making clear(er) the connections between the philosophical questions, on the one hand, and tax doctrine, on the other.

For instance, on the day we discussed Benaglia and fringe benefits, I posted these questions:

What positive and normative judgments underlie the distinction between personal consumption and work costs?

How does the distinction between personal consumption and work costs privilege or disadvantage individuals and groups?

What kind of normative judgments might we make when legal rules alter behavior?

To take another example, I posted these on our Section 102/Duberstein day:

How (if at all) should gifts given or received alter one’s legal obligation to help fund collective projects (i.e., the state)?

Should a just society encourage gifts? Discourage them? Remain neutral (and what should neutrality mean)?

I warn the students that our discussions won’t (and can’t) offer definitive answers to such big questions, which could easily occupy a whole course (or more). But I hope that making the questions explicit can help spur their own thinking.

Of course, it’s possible that this approach is a bit of frolic-and-detour, something that works at Yale, where a good number of students want to be law professors — and many of the rest have a distinct taste for theory. But I wonder whether drawing these connections might help engage all law students by linking to questions they (likely) considered in college. Even as a purely practical matter, it seems to me that questions of justice are especially central in tax, where practitioners, government officials, and academics are constantly debating tax policy.