Tax equity

Buffalo Law Review

Volumn 55, Issue 4, 2008, Pages 1191-1260

  Infanti, Anthony C ^a  

^a UNIVERSITY OF PITTSBURGH   (United States)

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EID: 40749102141     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (504)

1. ZYGMUNT BAUMAN, GLOBALIZATION: THE HUMAN CONSEQUENCES 47 (1998).
2. As quoted in PETER IVES, LANGUAGE AND HEGEMONY IN GRAMSCI 79 (2004).
3. E.g., WILLIAM D. ANDREWS, BASIC FEDERAL INCOME TAXATION 6-9 (5th ed. 1999);
4. JOSEPH M. DODGE ET AL., FEDERAL INCOME TAX: DOCTRINE, STRUCTURE, AND POLICY 117-35 (3d ed. 2004);
5. MICHAEL J. GRAETZ & DEBORAH H. SCHENK, FEDERAL INCOME TAXATION: PRINCIPLES AND POLICIES 27-31 (5th ed. 2005);
6. SANFORD M. GUERIN & PHILIP F. POSTLEWAITE, PROBLEMS AND MATERIALS IN FEDERAL INCOME TAXATION 8-14 (5th ed. 1998);
7. MICHAEL A. LIVINGSTON, TAXATION: LAW, PLANNING, AND POLICY, at xxxiv-xxxix (2003);
8. LAURIE L. MALMAN ET AL., THE INDIVIDUAL TAX BASE: CASES, PROBLEMS AND POLICIES IN FEDERAL TAXATION 8-15 (2002);
9. PAUL R. MCDANIEL ET AL., FEDERAL INCOME TAXATION 1-4 (5th ed. 2004);
10. JOEL S. NEWMAN, FEDERAL INCOME TAXATION: CASES, PROBLEMS, AND MATERIALS 24-26 (3d ed. 2005);
11. RICHARD A. WESTIN, BASIC FEDERAL INCOME TAXATION 31-35 (2002).
12. See, e.g., LIAM MURPHY & THOMAS NAGEL, THE MYTH OF OWNERSHIP: TAXES AND JUSTICE 12-13 (2002) (discussing the influence of tax justice in political debates);
13. William B. Barker, The Three Faces of Equality: Constitutional Requirements in Taxation, 57 CASE W. RES. L. REV. 1 passim (2006) (contrasting the U.S. Supreme Court's hands-off approach to applying the Equal Protection Clause as well as more general notions of equality in its constitutionally-based tax decisions with the German Constitutional Court's more frequent reliance on notions of equality in its decisions);
14. Leo P. Martinez, The Trouble with Taxes: Fairness, Tax Policy, and the Constitution, 31 HASTINGS CONST. L.Q. 413, 421, 427-38 (2004) (asserting that while, "[i]n the legislative arena, the concepts of fairness and utility remain fundamental to the formulation and administration of federal tax policy," the U.S. Supreme Court has failed to employ notions of tax equity in determining the constitutionality of taxing statutes);
15. Henry Ordower, Horizontal and Vertical Equity in Taxation as Constitutional Principles: Germany and the United States Contrasted, 7 FLA. TAX REV. 259 passim (2006) (contrasting the U.S. Supreme Court's infrequent use of fairness in its constitutionally- based tax decisions with the German Constitutional Court's more frequent reliance on fairness in its decisions);
16. Richard J. Wood, Supreme Court Jurisprudence of Tax Fairness, 36 SETON HALL L. REV. 421 passim (2006) (discussing the U.S. Supreme Court's use of horizontal and vertical equity principles in analyzing tax issues).
17. To illustrate the concepts of progressivity, proportionality, and regressivity, let us take the income tax as an example. A " progressive" income tax is one in which the tax rates rise as income rises. NEWMAN, supra note 3, at 18-19. Our current income tax is progressive in the sense that the rates are graduated; that is, the rates increase from 0%-for those with taxable incomes less than the amount of the standard deduction plus the personal exemption-in several steps as a taxpayer's taxable income rises, until reaching the top rate of 35%, which, in 2006, applied only to taxpayers with taxable incomes of more than $336,550. I.R.C. § 1 (2000 & West Supp. 2007);
18. INTERNAL REVENUE SERV., DEP'T OF TREASURY, 1040 INSTRUCTIONS, at 79 (2006). In contrast, a "proportional" income tax "is one in which all taxpayers pay the same percentage of their income."
19. NEWMAN, supra note 3, at 17. Under a proportional income tax, the actual amount of tax paid would rise with income; however, the tax rate would remain the same for everyone. For example, under a proportional income tax imposed at 10%, individual A with $10,000 of income and individual B with $100,000 of income would pay tax at the same rate (i.e., 10%). The two would, however, pay very different amounts of tax: A would pay $1,000 of tax (i.e., 10% of $10,000), and B would pay $10,000 of tax (i.e., 10% of $100,000). In other words, under a proportional income tax, B would pay ten times as much tax as A-even though they would both pay tax at exactly the same rate - because B has ten times as much income as A.
20. See id. at 18. A "regressive" income tax is one in which "higher income taxpayers would pay a lower rate of tax than lower income taxpayers."
21. Id. at 21. For example, to take individuals A and B from our discussion of proportionality, B would pay less tax than A under a regressive income tax, even though B has ten times as much income as A.
22. See Nancy C. Staudt, The Hidden Costs of the Progressivity Debate, 50 VAND. L. REV. 919, 919-20 (1997) ("Progressive taxation ... has sparked more than a century of controversy.").
23. Compare Walter J. Blum & Harry Kalven, Jr., The Uneasy Case for Progressive Taxation, 19 U. CHI. L. REV. 417 (1952),
24. with Michael A. Livingston, Blum and Kalven at 50: Progressive Taxation, "Globalization," and the New Millennium, 4 FLA. TAX REV. 731 (2000). For recent contributions to this debate,
25. see, for example, Mirko Bagaric & James McConvill, Stop Taxing Happiness: A New Perspective on Progressive Taxation, 2 PITT. TAX REV. 65 (2005);
26. Neil H. Buchanan, The Case Against Income Averaging, 25 VA. TAX REV. 1151 (2006);
27. Joseph M. Dodge, Theories of Tax Justice: Ruminations on the Benefit, Partnership, and Ability-to-Pay Principles, 58 TAX L. REV. 399 (2005).
28. E.g., Louis Kaplow, Horizontal Equity: Measures in Search of a Principle, 42 NAT'L TAX J. 139 (1989);
29. Louis Kaplow, A Note on Horizontal Equity, 1 FLA. TAX REV. 191 (1992);
30. Richard A. Musgrave, Horizontal Equity: A Further Note, 1 FLA. TAX REV. 354 (1993);
31. Richard A. Musgrave, Horizontal Equity, Once More, 43 NAT'L TAX J. 113 (1990);
32. see also John A. Miller, Equal Taxation: A Commentary, 29 HOFSTRA L. REV. 529 passim (2000) (discussing challenges to the concept of horizontal equity);
33. cf. Jeffrey H. Kahn, The Mirage of Equivalence and the Ethereal Principles of Parallelism and Horizontal Equity, 57 HASTINGS L.J. 645, 652 (2006) ("Many persons do give weight to horizontal equity, and even those who do not frown on unequal treatment of the same item.").
34. Paul R. McDaniel & James R. Repetti, Horizontal and Vertical Equity: The Musgrave/Kaplow Exchange, 1 FLA. TAX REV. 607, 613, 621-22 (1993);
35. see also MURPHY & NAGEL, supra note 4, at 8, 174 (arguing that we should replace our focus on equity in the distribution of tax burdens with a broader view of distributive justice that evaluates taxes as part of the property rights system that taxes help to create).
36. On February 26, 2007, I performed a search in the "U.S. Law Reviews and Journals, Combined" database on LEXIS to ascertain the number of articles published during the previous ten years in which the words "horizontal equity" or "vertical equity" appeared within eight words of "tax" or "taxation." This search returned a total of 311 hits.
37. The burgeoning area of critical tax theory fills a gap in the traditional tax discourse by providing "serious consideration of how the tax system exacerbates marketplace discrimination against traditionally subordinated groups." Karen B. Brown & Mary Louise Fellows, Introduction to TAXING AMERICA 1, 1-2 (Karen B. Brown & Mary Louise Fellows eds., 1996).
38. See, e.g., Cheryl D. Block, Pathologies at the Intersection of the Budget and Tax Legislative Processes, 43 B.C. L. REV. 863, 911-12, 932 (2002);
39. Francine J. Lipman, The Taxation of Undocumented Immigrants: Separate, Unequal, and Without Representation, 9 HARV. LATINO L. REV. 1, 48-58 (2006);
40. Edward J. McCaffery, A New Understanding of Tax, 103 MICH. L. REV. 807 passim (2005);
41. see also infra Part II.B.2.
42. See Livingston, supra note 6, at 757-58;
43. Richard Schmalbeck, Race and the Federal Income Tax: Has a Disparate Impact Case Been Made?, 76 N.C. L. REV. 1817, 1819-21 (1998).
44. See Michael A. Livingston, Radical Scholars, Conservative Field: Putting "Critical Tax Scholarship"in Perspective, 76 N.C. L. REV. 1791, 1792 (1998).
45. The concept of tax equity can be (and, in fact, has been) applied in other areas of tax as well. See, e.g., Bridget J. Crawford, One Flesh, Two Taxpayers: A New Approach to Marriage and Wealth Transfer Taxation, 6 FLA. TAX REV. 757 passim (2004) (applying horizontal and vertical equity analysis to the estate and gift taxes);
46. Bridget J. Crawford, The Profits and Penalties of Kinship: Conflicting Meanings of Family in Estate Tax Law, 3 PITT. TAX REV. 1, 59-60 (2005) (applying a horizontal equity analysis to the estate tax). The discussion of tax equity in this Article, like the tax policy literature in general, will primarily focus on the individual income tax, with only passing references to other taxes. Nonetheless, much of the discussion in the text below applies equally to other forms of taxation.
47. As Alice Abreu has observed, the tax system not only imposes burdens on taxpayers, but also empowers individuals when it gives them "the ability to affect either the amount of tax that will be collected or the identity of the bearer of the resulting economic burden." Alice G. Abreu, Taxes, Power, and Personal Autonomy, 33 SAN DIEGO L. REV. 1, 6 (1996). Abreu argues that tax policy analysts should broaden their focus to include such empowerment because (1) it can (usually adversely) affect the progressivity of the tax system, (2) it can affect the visibility and accountability of the tax system, and (3) it essentially privatizes decisionmaking concerning the allocation of the tax burden.
48. Id. at 6-9.
49. The other two in the triad of overarching tax policy concerns (i.e., efficiency and administrability) are not likely points of entry due to their ostensible concern with the economic neutrality of the tax and the ability of taxpayers to comply with, and the Internal Revenue Service to administer, the tax.
50. This project actually began with an earlier article that highlighted the artificiality of the mainstream/marginal distinction in the tax policy literature and drew attention to the ways in which that distinction can be employed to ignore or discredit critical contributions to the tax policy literature. Anthony C. Infanti, A Tax Crit Identity Crisis? Or Tax Expenditure Analysis, Deconstruction, and the Rethinking of a Collective Identity, 26 WHITTIER L. REV. 707 (2005).
51. BLACK'S LAW DICTIONARY 579 (8th ed. 2004);
52. see also 5 THE OXFORD ENGLISH DICTIONARY 358 (2d ed. 1989) (listing this meaning first under the heading of uses of the word "equity" in jurisprudence).
53. See RICHARD L. MARCUS ET AL., CIVIL PROCEDURE: A MODERN APPROACH 84-86 (4th ed. 2005);
54. see also 1 MOORE'S FEDERAL PRACTICE § 2.02 (Daniel R. Coquillette et al. eds., 3d ed. 2007) (discussing the difference in the context of the merger of law and equity in the federal court system).
55. 51 AM. JUR. 2D Limitation of Actions § 174 (2000).
56. See AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION § 4.06 reporter's note to cmt. a (2000);
57. J. THOMAS OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY § 13.02 (2006).
58. AM. LAW INST., supra note 21, § 2.03 cmt. b.
59. Id.
60. 4A BORIS I. BITTKER & LAWRENCE LOKKEN, FEDERAL TAXATION OF INCOME, ESTATES AND GIFTS ¶ 113.10(2) (2d ed. 1992).
61. 5 THE OXFORD ENGLISH DICTIONARY 358 (2d ed. 1989);
62. see also BLACK'S LAW DICTIONARY 579 (8th ed. 2004).
63. See, e.g., Samuel A. Donaldson, The Easy Case Against Tax Simplification, 22 VA. TAX REV. 645, 739-40 (2003) ("Equity is good. No one argues that an equitable state is morally or functionally flawed.").
64. THE BARNHART DICTIONARY OF ETYMOLOGY 338 (Robert K. Barnhart ed., 1988).
65. ONLINE ETYMOLOGICAL DICTIONARY, http://www.etymonline.com/index.php?term=equity (last visited Oct. 11, 2007).
66. THE BARNHART DICTIONARY OF ETYMOLOGY, supra note 27, at 337.
67. E.g., 1 BITTKER & LOKKEN, supra note 24, ¶ 3.1.4;
68. MURPHY & NAGEL, supra note 4, at 13;
69. Kahn, supra note 7, at 650;
70. McDaniel & Repetti, supra note 8, at 612;
71. Staudt, supra note 6, at 926, 933.
72. See Theodore P. Seto & Sande L. Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. PA. L. REV. 1053, 1073-74 (2006) (describing how comprehensive tax base theory and progressivity - that is, the conventional implementation of vertical equity in our tax system - have "almost no capacity to deal with differences - other than differences in income - in taxpayers' abilities to pay taxes"). This homogenizing influence can even be seen in Murphy and Nagel's book, which, on its face, appears to promote a holistic approach to formulating tax policy. Despite advocating "that societal fairness, rather than tax fairness, should be the value that guides tax policy,"
73. MURPHY & NAGEL, supra note 4, at 173, Murphy and Nagel repeatedly frame their discussion in terms of "economic" or "distributive" justice,
74. id. at 3, 4, 6, 7, and they further describe the "dominant theme" of their book in the following terms:
75. Private property is a legal convention, defined in part by the tax system; therefore, the tax system cannot be evaluated by looking at its impact on private property, conceived as something that has independent existence and validity. Taxes must be evaluated as part of the overall system of property rights that they help to create. Justice or injustice in taxation can only mean justice or injustice in the system of property rights and entitlements that result from a particular tax regime.
76. Id. at 8.
77. Moreover, Murphy and Nagel explicitly disclaim any discussion of invidious discrimination in their book and confine themselves instead to discussing the "purely economic impact" of the "justice of taxation." Id. at 25-26, 39.
78. See Donaldson, supra note 26, at 741-42;
79. see also 1 BITTKER & LOKKEN, supra note 24, ¶ 3.2 (describing the principal areas in which an income tax may have distortionary effects).
80. Donaldson, supra note 26, at 742-45.
81. Id. at 742-43;
82. see also 1 BITTKER & LOKKEN, supra note 24, ¶ 3.8 (discussing complexity in the tax laws).
83. Donaldson, supra note 26, at 742-43.
84. See McDaniel & Repetti, supra note 8, at 619 ("Finally, it follows that the index will not assist in identifying relevant trade-offs in assessing proposed tax changes because [vertical equity] and [horizontal equity] both are derivative concepts. Because [horizontal equity] and [vertical equity] derive their normative base from economic judgments, values based on some theory of justice and efficiency concerns, the relevant trade-off is between or among those potentially conflicting fundamental judgments and values.").
85. See EDWARD J. MCCAFFERY, TAXING WOMEN 195 (1997) (describing, for example, how an optimal tax approach would dictate taxing a dedicated child working to support an ill parent more than a beachcomber because the child's attachment to labor is relatively inelastic compared to that of the beachcomber);
86. see also Marjorie E. Kornhauser, The Rhetoric of the Anti-Progressive Income Tax Movement: A Typical Male Reaction, 86 MICH. L. REV. 465, 486-87 (1987) (indicating that economic analysis "lends a patina of neutrality, because economics - particularly neoclassical economics - is viewed by many noneconomists (and even by some economists) as a 'science,' and therefore as factual and objective").
87. See MURPHY & NAGEL, supra note 4, at 7-8, 12-13, 188-90 (speaking of the role of moral ideas in legitimating our economic system and mentioning horizontal and vertical equity as the historical means of exploring the moral aspects of the tax system);
88. Miller, supra note 7, at 545 ("The view that equality is an empty idea rests on an unrealistic and exaggerated view of the level of precision required in order for equality to have meaning. The idea that we should rely on market efficiencies to resolve equity concerns is a second best solution. Broad acceptance of either view may serve to unwisely loosen the restraints on tax policy that are at the core of a politically and morally acceptable tax system.").
89. I am not suggesting in this discussion that efficiency concerns are unimportant in tax policy debates; rather, my point throughout this Article is that efficiency should not be the only concern that is addressed in those debates.
90. MCCAFFERY, supra note 37.
91. Id. at 1.
92. Id. at 11-160.
93. Id. at 164.
94. In view of the focus of this Article, it is worth noting that Nancy Staudt opened her review of McCaffery's book with the following sentence: "Edward McCaffery's important new book, Taxing Women, explores the convergence between economic and feminist theory in the tax context."
95. Nancy C. Staudt, The Theory and Practice of Taxing Difference, 65 U. CHI. L. REV. 653, 653 (1998)
96. (reviewing MCCAFFERY, supra note 37).
97. MCCAFFERY, supra note 37, at 164 (emphasis added).
98. See id. at 170-84, 187-91.
99. Id. at 190-91, 193, 200-01.
100. Id. at 168.
101. Id. at 165.
102. This, of course, is another illustration of the sanitizing effect of framing an analysis in tax equity terms, which is explored more fully infra Part I.B.2.c.
103. MCCAFFERY, supra note 37, at 169-70.
104. Id. at 201 (emphasis added).
105. Beverly I. Moran & William Whitford, A Black Critique of the Internal Revenue Code, 1996 WIS. L. REV. 751, 751.
106. Id. at 757.
107. See id. at 753 & n.10;
108. see also Beverly I. Moran, Exploring the Mysteries: Can We Ever Know Anything About Race and Tax?, 76 N.C. L. REV. 1629, 1635-36 (1998).
109. Moran & Whitford, supra note 52, at 753-55.
110. I have carefully and consciously chosen to use the word "coincide" here rather than "intersect," because, as described in the next few sentences of the text above, the homogenizing effect of tax equity is much different from the effect of multiple axes of disadvantage described in the literature on intersectionality. See infra Part II.B.
111. See infra Part II.B.
112. See infra note 169.
113. This discussion is in no way meant to imply that class concerns are unimportant-my point throughout this Article is that they are relevant, but by no means the only concerns that are relevant when assessing the fairness of a tax. It is worth nothing here that, as we will explore further in Part III.B, even with its professed focus on class concerns, tax equity seems to better serve the interests of those at the top than those at the bottom of the economic ladder.
114. Moran & Whitford, supra note 52, at 779.
115. Id.
116. Id. at 780.
117. See Dorothy A. Brown, The Tax Treatment of Children: Separate but Unequal, 54 EMORY L.J. 755, 802-05 (2005) (describing how academics who consider the racial implications of the earned income tax credit generally proceed on the assumption that "Blacks are disproportionately poor and more likely than Whites to be eligible for the EITC"-in other words, that race equals class).
118. Moran & Whitford, supra note 52, at 758.
119. Id. at 801.
120. Small Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1605, 110 Stat. 1755, 1838-39 (codified at I.R.C. § 104 (2000)).
121. Karen B. Brown, Not Color- or Gender-Neutral: New Tax Treatment of Employment Discrimination Damages, 7 S. CAL. REV. L. & WOMEN'S STUD. 223, 228, 243-49 (1998).
122. Id. at 254-55, 268.
123. Id. at 260 (footnote omitted).
124. Id. at 254.
125. Id. at 254-57.
126. Id. at 265;
127. see Treas. Reg. § 1.62-2(c)(4) (as amended in 2003).
128. Brown, supra note 67, at 261, 264.
129. Id. at 263 & n.205.
130. See generally Kahn, supra note 7 (discussing parallelism as a horizontal equity issue).
131. See Brown, supra note 67, at 264.
132. Id.
133. See id. at 261-63.
134. Dorothy A. Brown, Race and Class Matters in Tax Policy, 107 COLUM. L. REV. 790 (2007);
135. Brown, supra note 63.
136. Brown, supra note 63, at 763, 765-92.
137. Brown, supra note 79, at 827-31.
138. Brown, supra note 63, at 763 (footnote omitted).
139. Brown, supra note 79, at 799.
140. Id.
141. E.g., Patricia A. Cain, Death Taxes: A Critique from the Margin, 48 CLEV. ST. L. REV. 677, 678 (2000);
142. Christopher T. Nixon, Should Congress Revise the Tax Code to Extend the Same Tax Benefits to Same-Sex Couples as Are Currently Granted to Married Couples?: An Analysis in Light of Horizontal Equity, 23 S. ILL. U. L.J. 41 (1998);
143. Jonathan Brophy, Comment, Death Is Certain, Are Taxes?: Another Argument for Equality for Same-Sex Couples Under the Code, 34 SW. U. L. REV. 635, 646-53 (2005).
144. Patricia A. Cain, Same-Sex Couples and the Federal Tax Laws, 1 TUL. J.L. & SEXUALITY 97, 100, 131 (1991).
145. Id. at 130-31.
146. Cain, supra note 85, at 689-90 (footnotes omitted).
147. See Cain, supra note 86, at 100.
148. See also Shari Motro, A New "I Do": Towards a Marriage-Neutral Income Tax, 91 IOWA L. REV. 1509, 1551 (2006) (advocating the extension of income-splitting to all couples that act as a single economic unit, regardless of whether they are married and regardless of whether the members of the couple are of the same or different sexes, but admitting that, "[a] s a matter of tax policy, there is no reason to limit the economic unity option to pairs").
149. Cain, supra note 85, at 701-07.
150. Id. at 707.
151. Id. at 704-07.
152. Id. at 705.
153. Id. at 706.
154. Id. at 705.
155. Id. at 678.
156. Symposium, Critical Tax Theory: Criticism and Response, 76 N.C L. REV. 1519 (1998).
157. See Brown, supra note 63, at 808-10.
158. Lawrence Zelenak, Taking Critical Tax Theory Seriously, 76 N.C. L. REV. 1521, 1563-66 (1998).
159. Id. at 1565.
160. Id.
161. Id. at 1566-67.
162. Id. at 1567.
163. Id. But even Zelenak would not go quite that far; he would allow arguments based on race to be used in the political arena "to overcome legislative inertia."
164. Id.
165. Schmalbeck, supra note 12, at 1818 (emphasis added).
166. Id. at 1820-21 (emphasis added).
167. James D. Bryce, A Critical Evaluation of the Tax Crits, 76 N.C. L. REV. 1687, 1689 (1998).
168. Id. at 1691.
169. Steve R. Johnson, Targets Missed and Targets Hit: Critical Tax Studies and Effective Tax Reform, 76 N.C. L. REV. 1771, 1773-74 (1998).
170. Id. at 1771-72.
171. Id. at 1779.
172. See supra text accompanying notes 33-35;
173. see also Anthony C. Infanti, The Internal Revenue Code as Sodomy Statute, 44 SANTA CLARA L. REV. 763 passim (2004) (discussing how, by focusing on a purely quantitative measure of fairness, Johnson misses much of the discrimination against same-sex couples embodied in the Code).
174. Charles O. Galvin, Taking Critical Tax Theory Seriously - A Comment, 76 N.C. L. REV. 1749, 1749 (1998) (footnote omitted).
175. Speaking of the tax jargon used to describe the application of § 1014 to property acquired through inheritance, Bittker and Lokken note that, "being perennial optimists, tax practitioners typically accentuate the positive by using 'stepped-up basis' as a generic label, whether the property has gone up or down in value." 2 BITTKER & LOKKEN, supra note 24, ¶ 41.4.1.
176. The inclusion of equity among the guiding principles of tax policymaking has been traced at least as far back as the eighteenth century. See ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 777 (Edwin Cannan ed., Modern Library 1937) (1776);
177. see also Barker, supra note 4, at 8;
178. Michael J. Graetz, Taxing International Income: Inadequate Principles, Outdated Concepts, and Unsatisfactory Policies, 54 TAX L. REV. 261, 294 (2001).
179. See, e.g., MURPHY & NAGEL, supra note 4, at 39 ("Some forms of discrimination among taxpayers will count as unjust even if they do serve other legitimate goals. The familiar suspect categories of race, sex, sexuality, and religion come to mind.");
180. id. at 170 ("A modern tax system cannot hope to be neutral in its incentive effects with regard to people's economically significant decisions about work, leisure, consumption, ownership, and form of life. If there are requirements of neutrality, they must be rather special and related to fundamental matters like sex, race, or religion.");
181. Martinez, supra note 4, at 441 ("There are immutable characteristics that deserve protection, for example, differential taxation based on race would not be accepted.").
182. Susan Pace Hamill, An Evaluation of Federal Tax Policy Based on Judeo-Christian Ethics, 25 VA. TAXREV. 671, 747 (2006).
183. See OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED STATES GOVERNMENT: FISCAL YEAR 2008: HISTORICAL TABLES 6 (2007) (indicating that income taxes accounted for 60% of the federal government's receipts by 1930, that this figure rose to a high of nearly 80% during World War II, and that the figure has more recently hovered between 53% and 58%).
184. Id. at 29-30 tbl.2.1.
185. Id.
186. See MURPHY & NAGEL, supra note 4, at 3;
187. McCaffery, supra note 11, at 830;
188. see also Edward J. McCaffery, Cognitive Theory and Tax, in BEHAVIORAL LAW AND ECONOMICS 398, 417-19 (Cass R. Sunstein ed., 2000) (discussing the cognitive impact of the " prominence" of income taxes);
189. Nancy C. Staudt, Taxation Without Representation, 55 TAX L. REV. 555, 589 (2002) (describing the income tax as "the most visible tax").
190. See Lipman, supra note 11, at 36, 49;
191. Staudt, supra note 6, at 922;
192. Staudt, supra note 122, at 585.
193. I.R.C. § 170 (2000).
194. H.R. REP. NO. 75-1860, at 19 (1938),
195. reprinted in 1939-1 C.B. (pt. 2) 728, 742.
196. See Megan J. Ballard, Profiting from Poverty: The Competition Between For-Profit and Nonprofit Developers for Low-Income Housing Tax Credits, 55 HASTINGS L.J. 211, 212 (2003).
197. I.R.C. § 42 (2000).
198. See id.
199. John K. Eason, Retirement Security Through Asset Protection: The Evolution of Wealth, Privilege, and Policy, 61 WASH. & LEE L. REV. 159, 176 (2004);
200. see also id. at 177 ("Conceptually, commentators and policymakers evaluate the attainment of this retirement income security objective by reference to two related criteria: (1) ensuring a basic standard of living upon retirement; and (2) facilitating some added degree of lifestyle maintenance upon retirement.");
201. SOC SEC. ADMIN., YOUR SOCIAL SECURITY STATEMENT 1 (2007), http://www.ssa.gov/mystatement/ samplel.htm (text of sample statement sent out to beneficiaries) ("Social Security is the largest source of income for most elderly Americans today, but Social Security was never intended to be your only source of income when you retire. You also will need other savings, investments, pensions or retirement accounts to make sure you have enough money to live comfortably when you retire.").
202. See, e.g., I.R.C §§ 219, 401-420 (2000).
203. STAFF OF JOINT COMM. ON TAX'N, PUBL'N NO. JCX-16-99, OVERVIEW OF PRESENT-LAW TAX RULES AND ISSUES RELATING TO EMPLOYER-SPONSORED RETIREMENT PLANS 4 (1999);
204. see also Carol Moseley-Braun, Women's Retirement Security, 4 ELDER L.J. 493, 495 (1996) ("The widening income gap occasioned and influenced by pension inequities shows up as an increased demand for transfer payments and public support.").
205. See I.R.C. §§ 23, 137 (2000).
206. 142 CONG. REC. S8363 (July 19, 1996) (statement of Sen. Craig).
207. See, e.g., I.R.C. §§ 25A, 221, 222, 529, 530 (2000).
208. 143 CONG. REC. S9715 (Sept. 19, 1997) (statement of Sen. Murkowski);
209. see also 143 CONG. REC. S8399 (July 31, 1997) (statement of Sen. Jeffords) ("This agreement also recognizes the critical relationship between education and our national economic well-being. In a day and age beset by downsizing, when job skills are constantly becoming outmoded by technological advances and break-throughs in learning, education will be a lifetime endeavor. I am happy that the bill recognizes this, and makes lifetime learning more easily affordable.");
210. Natasha Mulleneaux, The Failure to Provide Adequate Higher Education Tax Incentives for Lower-Income Individuals, 14 AKRON TAX J. 27, 28-29 (1999) ("Although educational authority rests with the states, the federal government encourages and specifically assists educational activities that are considered in the national interest. The promotion and financial assistance of higher education is clearly in the national interest, as higher education (1) increases the nation's productivity and wealth, (2) assists in social progress and (3) increases the prosperity of individuals." (footnotes omitted)).
211. Mulleneaux, supra note 135, at 30.
212. See STAFF OF JOINT COMM. ON TAX'N, PUBL'N NO. JCS-10-87, GENERAL EXPLANATION OF THE TAX REFORM ACT OF 1986, at 263-64 (1987).
213. Roberta F. Mann, The (Not So) Little House on the Prairie: The Hidden Costs of the Home Mortgage Interest Deduction, 32 ARIZ. ST. L.J. 1347, 1354-55 (2000) (footnotes omitted).
214. Infanti, supra note 17, at 717.
215. Id. at 720 (footnotes omitted)
216. (quoting STANLEY S. SURREY, PATHWAYS TO TAX REFORM: THE CONCEPT OF TAX EXPENDITURES 17 (1973)).
217. Id. at 721.
218. Id. at 721-22
219. (citing STANLEY S. SURREY & PAUL R. MCDANIEL, TAX EXPENDITURES (1985);
220. STANLEY S. SURREY, PATHWAYS TO TAX REFORM: THE CONCEPT OF TAX EXPENDITURES (1973)).
221. See id. at 736-44.
222. Id. at 718.
223. STAFF OF JOINT COMM. ON TAX'N, PUBL'N NO. JCS-2-06, ESTIMATES OF FEDERAL TAX EXPENDITURES FOR FISCAL YEARS 2006-2010, at 30-41 (2006).
224. OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, ANALYTICAL PERSPECTIVES, BUDGET OF THE UNITED STATES GOVERNMENT: FISCAL YEAR 2008, at 287-90 (2007).
225. See I.R.C. §§ 3101, 3121(a) (2000);
226. Brian Balkovic, Internal Revenue Serv., Individual Income Tax Returns, Preliminary Data, 2005, STAT. INCOME BULL., Winter 2007, at 11, http://www.irs.gov/pub/irs-soi/05inplim.pdf;
227. Michael Parisi & Scott Hollenbeck, Internal Revenue Serv., Individual Income Tax Returns, 2004, STAT. INCOME BULL., Fall 2006, at 8, http://www.irs.gov/pub/irs-soi/04indtr.pdf;
228. see also Irene Browne & Joya Misra, The Intersection of Gender and Race in the Labor Market, 29 ANN. REV. SOC. 487, 495 (2003) ("Indeed, the gap in wages between groups is such a well-recognized summary measure of the extent of inequality that 1970s feminist activists wore buttons that simply read '59.'").
229. See RENEE E. SPRAGGINS, U.S. DEP'T OF COMMERCE, WE THE PEOPLE: WOMEN AND MEN IN THE UNITED STATES: CENSUS 2000 SPECIAL REPORTS 12 (2005) ("In 1999, the median earnings of women 16 and over who worked full-time, year-round were $27,200, about $10,000 less than the median earnings of their male counterparts ($37,100).");
230. BRUCE H. WEBSTER, JR. & ALEMAYEHU BISHAW, U.S. DEP'T OF COMMERCE, INCOME, EARNINGS, AND POVERTY DATA FROM THE 2005 AMERICAN COMMUNITY SURVEY 8 (2006) (indicating that, for a period of twelve months ending in 2005, the median earnings of women were only 76.7% of those of men). Although the gender pay gap has narrowed substantially over time, the pace of that narrowing slowed in the 1990s.
231. Francine D. Blau & Lawrence M. Kahn, The U.S. Gender Pay Gap in the 1990s: Slowing Convergence, 60 INDUS. & LAB. REL. REV. 45, 45 (2006) (pointing to census data indicating that, from 1979 to 1989, the gender pay gap experienced a 9 percentage point narrowing, from 59.7% to 68.7%, and that, from 1989 to 1999, the gender pay gap experienced only a 3.5 percentage point narrowing, from 68.7% to 72.2%). Some have argued that closing the wage gap may not signal the achievement of "genuine equality for women"; specifically, McCaffery has attempted to "show how the gender gap might narrow, without undermining ... gender injustice."
232. MCCAFFERY, supra note 37, at 234;
233. see also id. at 234-66 (explaining this point at length).
234. See generally Doris Weichselbaumer & Rudolf Winter-Ebmer, Rhetoric in Economic Research: The Case of Gender Wage Differentials, 45 INDUS. REL. 416 (2006) (studying the use of rhetoric by economists in explaining whether the gender wage gap is due to discrimination or other factors).
235. See SPRAGGINS, supra note 148, at 12 fig. 11 (indicating that, for 1999, the median earnings of African American and Hispanic men ($30,000 and $25,400, respectively) were well below those of white men ($39,235), while those of African American and Hispanic women ($25,589 and $21,634, respectively) were below those of white women ($27,878));
236. WEBSTER & BISHAW, supra note 148, at 11 tbl.5 (indicating that, for a period of twelve months ending in 2005, the median earnings of African American and Hispanic men ($34,433 and $27,380, respectively) were well below those of white men ($46,807), while those of African American and Hispanic women ($29,588 and $24,451, respectively) were well below those of white women ($34,190)).
237. E.g., Sylvia A. Allegretto & Michelle M. Arthur, An Empirical Analysis of Homosexual/Heterosexual Male Earnings Differentials: Unmarried and Equal?, 54 INDUS. & LAB. REL. REV. 631, 631, 644 (2001);
238. Nathan Berg & Donald Lien, Measuring the Effect of Sexual Orientation on Income: Evidence of Discrimination?, 20 CONTEMP. ECON. POL'Y 394, 411 (2002);
239. Dan A. Black et al., The Earnings Effects of Sexual Orientation, 56 INDUS. & LAB. REL. REV. 449, 463 (2003);
240. John M. Blandford, The Nexus of Sexual Orientation and Gender in the Determination of Earnings, 56 INDUS. & LAB. REL. REV. 622, 628 (2003);
241. Christopher S. Carpenter, Revisiting the Income Penalty for Behaviorally Gay Men: Evidence from NHANES III, 14 LAB. ECON. 25, 29-32 (2007);
242. see also M.V. LEE BADGETT, MONEY, MYTHS, AND CHANGE: THE ECONOMIC LTVES OF LESBIANS AND GAY MEN 20-51 (2001)
243. (Badgett's method of identifying lesbians and gay men in her study has been critiqued by both Black et al., supra, at 453-56,
244. and Blandford, supra, at 625-26;
245. this study was originally published as M.V. Lee Badgett, The Wage Effects of Sexual Orientation Discrimination, 48 INDUS. & LAB. REL. REV. 726 (1995)).
246. See ERIKA STEINMETZ, U.S. DEP'T OF COMMERCE, AMERICANS WITH DISABILITIES: 2002, at 8-9 (2006) (all figures relate to individuals age 25-64). With regard to the lower-income range, 39.3% of those without disabilities reported income less than $20,000 and 12.3% of them lived in a household with total household income below $20,000.
247. Id. In comparison, 47.6% of those with a non-severe disability had income less than $20,000 and 18.3% of them lived in a household with total household income below $20,000, while 76.6% percent of those with a severe disability had income below $20,000 and 37.8% of them lived in a household with total household income below $20,000.
248. Id. at 9. Fully one quarter (25.9%) of those with a severe disability were living in poverty, while 11.2% of those with a non-severe disability and only 7.7% of those without a disability were living in poverty.
249. Id.
250. SPRAGGINS, supra note 148, at 12 fig. 11 (indicating that, for 1999, the earnings of Asian American men were $40,650 and those of white men were $39,235, while the earnings of Asian American women were $31,049 and those of white women were $27,878);
251. WEBSTER & BISHAW, supra note 148, at 11 tbl.5 (indicating that, for a period of twelve months ending in 2005, the earnings of Asian American men were $48,693 and those of white men were $46,807, while the earnings of Asian American women were $37,792 and those of white women were $34,190).
252. Mylinh Uy, Note, Tax and Race: The Impact on Asian Americans, 11 ASIAN L.J. 117, 129-36 (2004).
253. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2(a)(6), (a)(8), (b)(2), 104 Stat. 327, 328-29 (codified at 42 U.S.C. § 12101) (indicating that "census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally"; setting forth "equality of opportunity, full participation, independent living, and economic self-sufficiency" as proper national goals for individuals with disabilities; and further stating that one of the purposes of the ADA is "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities").
254. Christine Jolis, Accommodation Mandates, 53 STAN. L. REV. 223, 275 (2000).
255. See id. at 276-78.
256. Peter Blanek et al., Calibrating the Impact of the ADA's Employment Provisions, 14 STAN. L. & POL'Y REV. 267, 268 (2003).
257. Id.;
258. see also Jolis, supra note 155, at 278-80 (acknowledging the shortcomings of the studies upon which she relies).
259. See generally Robert Silverstein et al., What Policymakers Need and Must Demand from Research Regarding the Employment Rate of Persons with Disabilities, 23 BEHAV. SCI. & L. 399 (2005) (describing the difficulties and challenges associated with researching the employment rate of individuals with disabilities).
260. I.R.C. § 63(f) (2000).
261. See Seto & Buhai, supra note 31, at 1123-24.
262. Id. at 1123;
263. see also id. at 1124, 1141.
264. I.R.C. § 67(b)(6), (d) (2000).
265. See Seto & Buhai, supra note 31, at 1131, 1134-35.
266. See id. at 1129.
267. I would note that this statement was made in reliance, in part, on the non-deductibility of impairment-related work expenses for alternative minimum tax (AMT) purposes; however, this assertion appears to be incorrect. While miscellaneous itemized deductions are disallowed under the AMT, see I.R.C. § 56(b)(1)(A)(i) (2000), impairment-related work expenses are expressly carved out from the definition of miscellaneous itemized deductions
268. see id. § 67(b), and I have come across no other provision that disallows these expenses for AMT purposes.
269. See I.R.C. § 62 (2000) (listing "above-the-line" deductions that are allowed in addition to any standard deduction to which a taxpayer is entitled under § 63).
270. See Seto & Buhai, supra note 31, at 1104.
271. See id. at 1143 (referring to an argument made by David Duff in response to a draft of the article, but expressing their disagreement with this argument).
272. Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 149.
273. Id. at 140;
274. see also Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1244 (1991) (building on these observations "by exploring the various ways in which race and gender intersect in shaping structural, political, and representational aspects of violence against women of color"). This perspective is shared by others.
275. See, e.g., Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 371-72;
276. Devon W. Carbado & Mitu Gulati, The Fifth Black Woman, 11 J. CONTEMP. LEGAL ISSUES 701, 704-10, 714-28 (2001);
277. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 587-89 (1990);
278. Darren Lenard Hutchinson, Identity Crisis: "Inter sectionality," "Multidimensionality," and the Development of an Adequate Theory of Subordination, 6 MICH. J. RACE & L. 285, 307-16 (2001);
279. see also Browne & Misra, supra note 147, at 488 (indicating that others share this perspective);
280. Mary Jo Wiggins, Foreword: The Future of Intersectionality and Critical Race Feminism, 11 J. CONTEMP. LEGAL ISSUES 677, 677-78 (2001) (same).
281. Crenshaw, supra note 168, at 149.
282. See Browne & Misra, supra note 147, at 496.
283. Id. at 497;
284. see, e.g., Irene Browne & Rachel Askew, Race, Ethnicity, and Wage Inequality Among Women: What Happened in the 1990s and Early 21st Century?, 48 AM. BEHAV. SCIENTIST 1275 (2005);
285. Leslie McCall, Sources of Racial Wage Inequality in Metropolitan Labor Markets: Racial, Ethnic, and Gender Differences, 66 AM. SOC. REV. 520 (2001);
286. Rosalie A. Torres Stone et al., Beyond Asian American: Examining Conditions and Mechanisms of Earnings Inequality for Filipina and Asian Indian Women, 49 SOC. PERSP. 261 (2006);
287. Rosalie Torres Stone & Julia McQuillan, Beyond Hispanic/Latino: The Importance of Gender/Ethnicity-Specific Earnings Analyses, 36 SOC. SCI. RES. 175 (2007).
288. David A. Cotter et al., Systems of Gender, Race, and Class Inequality: Multilevel Analyses, 78 SOC. FORCES 433, 453 (1999);
289. see also Browne & Misra, supra note 147, at 496, 498.
290. In their book on social dominance, Jim Sidanius and Felicia Pratto put forth the "subordinate-male target hypothesis" that arbitrary-set discrimination (i.e., a residual category that includes any discrimination other than on the basis of age or gender) will disproportionately impact males in the arbitrary-set group. JIM SIDANIUS & FELICIA PRATTO, SOCIAL DOMINANCE: AN INTERGROUP THEORY OF SOCIAL HIERARCHY AND OPPRESSION 49-50 (1999).
291. This hypothesis, which they support with survey data from a number of different areas (e.g., housing discrimination, id. at 144-45, discrimination in the retail market
292. id. at 147, employment discrimination
293. id. at 157-62, and discrimination in education
294. id. at 189-91), is "in direct contradiction to the generally accepted double-jeopardy hypothesis" of the literature on intersectionality.
295. Id. at 50. For instance, the subordinate-male target hypothesis would, all other things being equal, predict that African American males would suffer more as a result of discrimination than African American females, even though African American males experience subordination along only one axis (i.e., race) and African American females experience subordination along two axes (i.e., race and gender).
296. See id. Based on their review of empirical data, Sidanius and Pratto maintain that, "[t]hough women from subordinate arbitrary-set groups clearly suffer from gender discrimination along with women from dominant arbitrary-set groups, the arbitrary-set discrimination against these subordinate women is either relatively mild or nonexistent."
297. Id. at 295. To explain the subordinate-male target hypothesis, Sidanius and Pratto draw on evolutionary psychology and rely upon the idea that men and women engage in different reproductive strategies (i.e., women seek out high status mates while men attempt to monopolize social, political, and economic resources to increase their chances of reproductive success given women's status preference).
298. See id. at 263-65, 295-96. Unsurprisingly, Sidanius and Pratto's work has provoked criticism.
299. See, e.g., Browne & Misra, supra note 147, at 493-94;
300. Michael T. Schmitt & Nyla R. Branscombe, Will the Real Social Dominance Theory Please Stand Up?, 42 BRIT. J. SOC. PSYCHOL. 215 (2003);
301. John C Turner & Katherine J. Reynolds, Why Social Dominance Theory Has Been Falsified, 42 BRIT. J. SOC. PSYCHOL. 199 (2003).
302. Browne & Misra, supra note 147, at 496;
303. see also Cotter et al., supra note 173.
304. Cotter et al., supra note 173, at 446.
305. This appears to be a reference to the elision of gender in efforts to address racial subordination and the elision of race in efforts to address women's subordination. See Deborah K. King, Multiple Jeopardy, Multiple Consciousness: The Context of a Black Feminist Ideology, 14 SIGNS 42 (1988)
306. (cited by Cotter et al., supra, as an example of such an argument about salience).
307. Cotter et al., supra note 173, at 454.
308. Browne & Misra, supra note 147, at 498.
309. Id.
310. Id.
311. Id. at 495.
312. The economics literature appears to be even less advanced in terms of addressing the intersection of multiple lines of disadvantage: With a few recent exceptions, economists who study the status of women of color in the United States have not addressed the intersectionality of gender, race, and class. Studies of the determinants of earnings tend to focus either on racial differences or on gender differences, but rarely on both. To study the effects of race, a researcher compares the wages of black men to those of white men and the wages of black women to those of white women. To study the effects of gender, a researcher compares the wages of black women to those of black men and the wages of white women to those of white men. The combined effects of race and gender are rarely contemplated in the same paper. Rose M. Brewer et al., The Complexities and Potential of Theorizing Gender, Caste, Race, and Class, 8 FEMINIST ECON. 3, 7 (2002).
313. E.g., Black et al., supra note 150, at 466;
314. Blandford, supra note 150, at 638-39;
315. see also Letitia Anne Peplau & Adam Fingerhut, The Paradox of the Lesbian Worker, 60 J. SOC. ISSUES 719, 720-21 (2004) (mentioning a number of studies).
316. See Black et al., supra note 150, at 466-69;
317. Blandford, supra note 150, at 639-40;
318. Peplau & Fingerhut, supra note 181, at 721-27.
319. Yin Paradies, A Systematic Review of Empirical Research on Self-Reported Racism and Health, 35 INT'L J. EPIDEMIOLOGY 888, 892 (2006);
320. see also id. at 895 ("The most consistent findings in this body of research to date have been for negative mental health outcomes and health-related behaviours and evidence from longitudinal studies also suggests that self-reported racism precedes ill health rather than vice versa.").
321. Id. at 892 tbl.2.
322. See, e.g., Robin J. Lewis et al., Stressors for Gay Men and Lesbians: Life Stress, Gay-Related Stress, Stigma Consciousness, and Depressive Symptoms, 22 J. SOC & CLINICAL PSYCHOL. 716, 717-18, 725-26 (2003);
323. Ilan H. Meyer, Minority Stress and Mental Health in Gay Men, 36 J. HEALTH & SOC. BEHAV. 38, 45-52 (1995);
324. Ilan H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence, 129 PSYCHOL. BULL. 674, 679-82 (2003) [hereinafter Meyer, Prejudice];
325. Ilan H. Meyer & Laura Dean, Internalized Homophobia, Intimacy, and Sexual Behavior Among Gay and Bisexual Men, in STIGMA AND SEXUAL ORIENTATION: UNDERSTANDING PREJUDICE AGAINST LESBIANS, GAY MEN, AND BLSEXUALS 160, 178-83 (Gregory M. Herek ed., 1998).
326. See generally Joanne DiPlacido, Minority Stress Among Lesbians, Gay Men, and Bisexuals: A Consequence of Heterosexism, Homophobia, and Stigmatization, in STIGMA AND SEXUAL ORIENTATION, supra, at 185.
327. Meyer, Prejudice, supra note 185, at 691.
328. See Daniel Shaviro, The Man Who Lost too Much: Zarin v. Commissioner and the Measurement of Taxable Consumption, 45 TAX L. REV. 215, 224 (1990) ("[T]axable consumption commonly is viewed as limited to satisfactions from the use of economic resources . . . not, say, to seeing a beautiful sunset or making a new friend. The chief reason for this limitation is administrative: Nonmaterial psychic income may be impossible to measure." (footnotes omitted)).
329. See I.R.C. § 104(a) (2000) (flush language) (the § 104(a)(2) exclusion for damages received on account of "physical" injury or sickness does not apply to emotional distress except to the extent of amounts paid for medical care);
330. id. § 213 (allowing a deduction for extraordinary medical expenses).
331. Infanti, supra note 113, at 783-88.
332. Id. at 801
333. (quoting Evan Wolfson & Robert S. Mower, When the Police Are in Our Bedrooms, Shouldn't the Courts Go in After Them?: An Update on the Fight Against "Sodomy"Laws, 21 FORDHAM URB. L.J. 997, 997 (1994)).
334. 1 U.S.C. § 7 (2000) (defining "marriage," for purposes of all federal laws-including the Code-as "a legal union between one man and one woman as husband and wife").
335. Meyer, Prejudice, supra note 185, at 675;
336. see also Infanti, supra note 113, at 800-03 (explaining how the Code operates in much the same way as a sodomy statute).
337. It is worth noting that income is not just a poor proxy for discrimination. Those who believe that "[redistribution in favor of those with bad brute luck is attractive on both utilitarian and liberal egalitarian grounds" have similarly found income to come up short in its ability to serve as a proxy - in that case, for endowment. Lawrence Zelenak, Taxing Endowment, 55 DUKE L.J. 1145, 1181 (2006).
338. See generally id. (surveying the endowment tax literature). And, tying into the next section in the text, Zelenak even critiques the idea that the income tax, by itself, is simply the best that can be done in approaching an endowment tax base.
339. See id. My thanks go to Adam Rosenzweig for pointing me in the direction of this literature.
340. See supra note 114 and accompanying text.
341. See supra note 114, at 1752.
342. Simplicity, on the other hand, is not inherently good. . . .[S]imple tax laws may be good or bad, depending upon their effect on equity on [sic] efficiency. To the extent simple tax laws enhance equality and efficiency they are good. They are not good strictly because they are simple - they are good because they promote the other, more important objectives. No one would argue that equity is good because it is simple; nor would anyone contend that efficiency is good because it promotes simplicity. Simplicity, therefore, is a means and not an end. If simplicity were more often than not a helpful means to the ends of equity and efficiency, one could at least argue that simplicity was generally a good thing. Again, however, the propensity for simplicity to do just as much damage to these core values, as much as it might help them, cuts against this argument. Donaldson, supra note 26, at 740.
343. Graetz, supra note 116, at 310.
344. See 2 BITTKER & LOKKEN, supra note 24, ¶ 46.1, at 46-6 ("The capital gain and loss provisions are a leading source of complexity in the tax law . . . .").
345. I.R.C. § 1221 (2000).
346. See 2 BITTKER & LOKKEN, supra note 24, ¶¶ 47.1-.9.
347. See id. ¶¶ 48.1-.4.
348. See I.R.C. § 1231 (2000).
349. See id. §§ 1245, 1250.
350. 7d. § 1(h);
351. Rev. Proc. 2006-53, § 3.01, 2006-48 I.R.B. 996;
352. see also INTERNAL REVENUE SERV., U.S. DEP'T OF TREASURY, 2006 1040 INSTRUCTIONS, at D-I to D-10 (2006) (providing instructions on reporting and calculating the tax on capital gains);
353. INTERNAL REVENUE SERV., U.S. DEP'T OF TREASURY, SCHEDULE D (FORM 1040) (2006) (form for reporting and calculating the tax on capital gains).
354. See I.R.C. § 1211 (2000).
355. See id. § 1 212.
356. See ANDREWS, supra note 3, at 1043-46;
357. Donaldson, supra note 26, at 714 n.325.
358. Compare STAFF OF JOINT COMM. ON TAX'N, supra note 145, at 34 tbl.1 (classifying the preferential capital gain rates as a tax expenditure)
359. with OFFICE OF MGMT. & BUDGET, supra note 146, at 299, 305 (indicating that the preferential rate for capital gains recognized on the sale or exchange of corporate stock has not been treated as a tax expenditure under the "reference law baseline" since 2005)
360. id. at 317 (indicating that the preferential rate for capital gains is not reported as a tax expenditure when a consumption tax is used as the baseline)
361. and id. at 321 (reporting capital gains recognized on the sale or exchange of corporate stock as a "negative" tax expenditure-i.e., as an overpayment of tax to the federal government).
362. A major complaint made by some about lower gains rates cut is that they primarily benefit very high income individuals. Capital gains are concentrated among higher income individuals because these individuals tend to own capital and because they are likely to own capital that generates capital gains. For example, the Joint Committee on Taxation indicated that for 2005, 88% of the benefit of lower rates [sic] to individuals with incomes over $ 200,000 and 95% would go to individuals with incomes over $100,000. Individuals with $200,000 of income account for about 3% of taxpayers and individuals with incomes over $100,000 account for less [sic] about 14%. JANE G. GRAVELLE, CONG. RESEARCH SERV., LIBRARY OF CONG., REP. NO. 96-769, CAPITAL GAINS TAXES: AN OVERVIEW, at CRS-6 (2007), available at http://www.opencrs.com/ getfile.php?rid=56609;
363. see also CITIZENS FOR TAX JUSTICE, WHO PAYS CAPITAL GAINS TAXES? 1 (2006), http://www.ctj.org/pdf/cg0306.pdf (indicating that, in 2005, "[t]he wealthiest 10 percent of taxpayers enjoyed 90 percent of the capital gains eligible" for preferential rates, while "[t]he poorest sixty percent of Americans, by contrast, collectively received just 2 percent of the capital gains eligible for the lower capital gains rates").
364. Infanti, supra note 17, at 712-13.
365. See Quintin Hoare & Geoffrey Nowell Smith, General Introduction to SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI, at xvii, xvii-xviii, xciii-xciv (Quintin Hoare & Geoffrey Nowell Smith eds. & trans., 1971) [hereinafter PRISON NOTEBOOKS].
366. Douglas Litowitz, Gramsci, Hegemony, and the Law, 2000 BYU L. REV. 515, 518;
367. see also id. at 515 (describing Gramsci's concept of "hegemony" as a "central theme during the heyday of the Critical Legal Studies movement");
368. CARL BOGGS, GRAMSCI'S MARXISM 7 (1976) (describing the rising influence of Gramsci's thought in Western Europe and the United States during the 1960s and 1970s);
369. Duncan Kennedy, Antonio Gramsci and the Legal System, 6 ALSA F. 32, 32 (1982) (stating that Gramsci's concept of hegemony made "him a crucial figure in 20th century Marxist theory").
370. Recourse to this concept is particularly appropriate in the context of the current project because, through his development of the concept of hegemony, Gramsci is credited with abandoning economic determinism (i.e., the view that the superstructure - that is, law, politics, and ideology-is merely a reflection of the base - that is, the economic structure of society) in favor of a more complex and dynamic view of the interaction between base and superstructure. See BOGGS, supra note 211, at 36-38;
371. IVES, supra note 2, at 3;
372. Litowitz, supra note 211, at 527-29;
373. see also PRISON NOTEBOOKS, supra note 210, at 366, 377, 407-09.
374. Litowitz, supra note 211, at 519.
375. PRISON NOTEBOOKS, supra note 210, at 12;
376. see also Edward Greer, Antonio Gramsci and "Legal Hegemony," in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 304, 305 (David Kairys ed., 1982);
377. Litowitz, supra note 211, at 518.
378. PRISON NOTEBOOKS, supra note 210, at 57-58.
379. Id. at 12.
380. Litowitz, supra note 211, at 519.
381. See PRISON NOTEBOOKS, supra note 210, at 12.
382. See id. at 59, 310;
383. Litowitz, supra note 211, at 518-19.
384. See Quintin Hoare & Geoffrey Nowell Smith, Preface to PRISON NOTEBOOKS, supra note 210, at ix, xiii-xiv.
385. PRISON NOTEBOOKS, supra note 210, at 12.
386. See id. at 196-200;
387. IVES, supra note 2, at 96-98;
388. see also infra note 228 and accompanying text.
389. See PRISON NOTEBOOKS, supra note 210, at 328-29, 341, 421-22.
390. Id. at 196.
391. Id. at 322.
392. See id. at 161;
393. see also Greer, supra note 214, at 305-06.
394. PRISON NOTEBOOKS, supra note 210, at 348.
395. Id. at 328;
396. see also id. at 103-04, 325, 327.
397. Litowitz, supra note 211, at 519.
398. PRISON NOTEBOOKS, supra note 210, at 12;
399. see id. ("This way of posing the problem has as a result a considerable extension of the concept of intellectual, but it is the only way which enables one to reach a concrete approximation of reality.").
400. Id. at 9.
401. See id. at 10, 338-39, 341, 390, 395-96, 419-20;
402. IVES, supra note 2, at 72-77.
403. RAYMOND WILLIAMS, MARXISM AND LITERATURE 113 (1977);
404. see also BOGGS, supra note 211, at 40.
405. WILLIAMS, supra note 233, at 113-14.
406. Id. at 113-14;
407. see also PRISON NOTEBOOKS, supra note 210, at 333, 365-66.
408. See BOGGS, supra note 211, at 40-42;
409. PRISON NOTEBOOKS, supra note 210, at 59, 60-61, 388;
410. see also IVES, supra note 2, at 68 (indicating that Gramsci never used the term "counter-hegemony" and noting "confusion about the extent to which Gramsci advocates hegemony").
411. WILLIAMS, supra note 233, at 113-14.
412. See IVES, supra note 2, at 64-67;
413. Kennedy, supra note 211, at 33;
414. Litowitz, supra note 211, at 523.
415. BOGGS, supra note 211, at 39-40.
416. For other recapitulations, see WILLIAMS, supra note 233, at 108;
417. Kennedy, supra note 211, at 32;
418. and Litowitz, supra note 211, at 519.
419. Kennedy, supra note 211, at 35;
420. Litowitz, supra note 211, at 530.
421. See Greer, supra note 214, at 308.
422. PRISON NOTEBOOKS, supra note 210, at 246.
423. See Litowitz, supra note 211, at 530.
424. See PRISON NOTEBOOKS, supra note 210, at 247.
425. Id. at 195;
426. see also id. at 247, 258.
427. See id. at 195-96;
428. Litowitz, supra note 211, at 530.
429. BOGGS, supra note 211, at 39.
430. Donaldson, supra note 26, at 739-40 (footnotes omitted).
431. E.g., Ellen P. Aprill & Richard Schmalbeck, Post-Disaster Tax Legislation: A Series of Unfortunate Events, 56 DUKE L.J. 51, 55 (2006) (stating "the standard criteria for good tax policy: horizontal equity, vertical equity, and economic efficiency");
432. Donna M. Byrne, Progressive Taxation Revisited, 37 ARIZ. L. REV. 739, 747 (1995) ("While the hallmarks of a good tax system have included as many as seven different criteria, the many criteria are often reduced to the three broad categories of equity, efficiency, and simplicity." (footnotes omitted));
433. John F. Coverdale, Missing Persons: Children in the Tax Treatment of Marriage, 48 CASE W. RES. L. REV. 475, 511 (1998) ("In future work, I hope to put forward concrete proposals for favorable tax treatment of married couples with children that meet the internal design criteria of a good tax system (horizontal and vertical equity, administrability, etc.) and yet accommodate other social goals.");
434. Eric J. Gouvin, Radical Tax Reform, Municipal Finance, and the Conservative Agenda, 56 RUTGERS L. REV. 409, 414 n.24 (2004) ("Although the exact formulation of the attributes of a good tax system vary, commentators almost always include 'equity,' 'efficiency,' and 'simplicity,' together with some other attribute or two, which often serves as a catch-all for other desirable aspects of a tax system.");
435. Kahn, supra note 7, at 649 ("The principles of horizontal and vertical equity and parallelism are among the myriad goals of a good tax system . . . .");
436. Jeffrey A. Maine, Linking Limited Liability and Entity Taxation: A Critique of the ALI Reporters' Study on the Taxation of Private Business Enterprises, 62 U. PITT. L. REV. 223, 268 (2000) ("aiming for equity and economic efficiency, important criteria for good tax policy");
437. Katherine Pratt, The Debt-Equity Distinction in a Second-Best World, 53 VAND. L. REV. 1055, 1098 (2000) ("The goals of a good tax system include efficiency and equity.");
438. Victor Thuronyi, The Concept of Income, 46 TAX L. REV. 45, 92 (1990) ("[E]quity is not the only criterion of good tax policy.").
439. BOGGS, supra note 211, at 39.
440. See supra note 3.
441. Not coincidentally, the tax law professoriate is overwhelmingly (i.e., 80%) male (and slightly more overwhelmingly male than the law professoriate on the whole), overwhelmingly (i.e., 91.16%) white (and, again, slightly more overwhelmingly white than the law professoriate on the whole), Eric A. Lustig, Who We Are: An Empirical Study of the Tax Law Professoriate, 1 PITT. TAX REV. 85, 95-97 (2003), and overwhelmingly (i.e., 98.25%) straight, Infanti, supra note 113, at 768 n.19. To the extent that these overwhelmingly straight, white, and male tax law professors also proceed from economically privileged backgrounds, they may be counted among the "organic intellectuals" of the dominant group, facilitating that group's ideological hegemony over other social groups.
442. See PRISON NOTEBOOKS, supra note 210, at 10, 12, 14 (referring to the intellectuals who proceed from, and are connected with, a social group as that group's "organic intellectuals");
443. see also EDWARD W. SAID, ORIENTALISM 11 (Vintage Books 1979) ("For if it is true that no production of knowledge in the human sciences can ever ignore or disclaim its author's involvement as a human subject in his own circumstances, then it must also be true that for a European or American studying the Orient there can be no disclaiming the main circumstances of his actuality: that he comes up against the Orient as a European or American first, as an individual second. And to be a European or an American in such a situation is by no means an inert fact.");
444. cf. Jose Gabilondo, Asking the Straight Question: How to Come to Speech in Spite of Conceptual Liquidation as a Homosexual, 21 WIS. WOMEN'S L.J. 1, 32-36 (2006) (exploring the role of lesbian and gay "organic intellectuals" in countering heteronormativity). Even if they do not proceed from economically privileged backgrounds, these tax law professors have been elevated to an economically privileged status by entering the legal profession and the law professoriate - a status that sets them above and apart from their organic social group and renders them "traditional" intellectuals who are open to assimilation.
445. See PRISON NOTEBOOKS, supra note 210, at 14-15. For an interesting discussion of how these different axes of (dis)advantage form an interlocking and mutually reinforcing system of subordination and how political conservatives have exploited a "discourse of distinctness" (i.e., disregarding the overlap of the different axes of discrimination) to stymie intergroup coalitions aimed at progressive reform
446. see Nancy Ehrenreich, Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems, 71 UMKC L. REV. 251 (2002).
447. See supra notes 5-6;
448. see also Joseph Bankman & Thomas Griffith, Social Welfare and the Rate Structure: A New Look at Progressive Taxation, 75 CAL. L. REV. 1905, 1906 (1987) ("A progressive rate structure has been part of the federal income tax system since its inception in 1913. Notwithstanding its lineage, the progressive rate structure has always been controversial, and the degree of progressivity has been subject to constant, and occasionally radical, change." (footnote omitted)).
449. See Rev. Proc. 2006-53, § 3.01, 2006-48 I.R.B. 996.
450. Bankman & Griffith, supra note 253, at 1909.
451. Id. at 1910.
452. See Michael J. Graetz, To Praise the Estate Tax, Not to Bury It, 93 YALE L.J. 259, 270 (1983).
453. Thomas Piketty & Emmanuel Saez, How Progressive Is the U.S. Federal Tax System? A Historical and International Perspective, 21 J. ECON. PERSP. 3, 22 (2007). Interestingly, the authors note that: [T] he most dramatic changes in federal tax system progressivity almost always take place within the top 1 percent of income earners, with relatively small changes occurring below the top percentile. For example, many of the recent tax provisions that are currently hotly debated in Congress, such as whether there should be a permanent reduction in tax rates for capital gains and dividends, or whether the estate tax should be repealed, affect primarily the top percentile of the distribution-or even just an upper slice of the top percentile. This pattern strongly suggests that, in contrast to the standard political economy model, the progressivity of the current tax system is not being shaped by the self-interest of the median voter.
454. Id. at 23.
455. See generally Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982).
456. See supra text accompanying note 7.
457. See generally Hamill, supra note 118, at 731-34 (describing how economics is used to lend an air of scientific certainty to the claim that tax cuts for the wealthy will ultimately benefit everyone).
458. See supra note 117 and accompanying text. In conversation, Dorothy Brown has remarked to me that you simply cannot talk about race with tax academics.
459. See also Brown, supra note 63, at 808 ("[M]any of those same academics are quite skeptical - even hostile - to the idea that race (and in certain instances gender) can ever be relevant when discussing tax policy.").
460. See 1 U.S.C. § 7 (2000);
461. Dianne Williamson, Gay Right Springs a Leak, SUNDAY TELEGRAM (Worcester, MA), Mar. 4, 2007, at B1.
462. For further discussion, see ANTHONY C. INFANTI, EVERYDAY LAW FOR GAYS AND LESBIANS (AND THOSE WHO CARE ABOUT THEM), ch. 6 (2007).
463. See 28 U.S.C. § 1738c (2000).
464. For further discussion, see INFANTI, supra note 263, at chs. 6-8.
465. Compare Act of Dec. 21, 2001, Pub. L. No. 107-96, § 118, 115 Stat. 923, 950, with Act of Oct. 5, 1992, Pub. L. No. 102-382, 106 Stat. 1422, 1422.
466. District of Columbia Appropriations Act, 1990, Pub. L. No. 101-168, § 141, 103 Stat. 1267, 1284 (1989) (codified at D.C. CODE § 2-1402.41(3) (LexisNexis 2001 & Supp. 2007)).
467. See 10 U.S.C § 654 (2000).
468. For further discussion, see INFANTI, supra note 263, at ch. 4.
469. It is worth noting that the Bush Administration has been less than enthusiastic about enforcing these protections and, through executive order, has actually ended the unequivocal prohibition of discrimination on the basis of sexual orientation in the granting of security clearances that the Clinton Administration had put in place. See Christopher Lee, Groups Applaud Discrimination Ban, WASH. POST, Apr. 10, 2004, at A3 (discussing the administration's resistance to enforcing prohibitions against discrimination on the basis of sexual orientation for federal employees).
470. Compare Memorandum from Stephen J. Hadley, Assistant to the President for Nat'l Sec. Affairs, to William Leonard, Dir., Info. Sec. Oversight Office, ¶ 12 (Sept. 29, 2005), available at http://www.fas.org/sgp/ isoo/guidelines.pdf, with Exec. Order No. 12,968, § 3.1(c)-(d), 60 Fed. Reg. 40,245, 40,250 (Aug. 7, 1995).
471. For further discussion, see INFANTI, supra note 263, at ch. 5.
472. MURPHY & NAGEL, supra note 4, at 14.
473. Sidanius and Pratto have identified "notions of individual responsibility" and the Protestant work ethic as among the most subtle, yet
474. Id. at 45. Such myths are "hierarchy-enhancing" if they "justify and support group-based social inequality . . . ."
475. Id. at 45-46.
476. Remarks on Signing H.R. 3838 into Law, 22 WEEKLY COMP. PRES. DOC. 1423, 1424 (Oct. 22, 1986) (emphasis added).
477. Kornhauser, supra note 37, at 476.
478. See Hamill, supra note 118, at 711-26.
479. Remarks on Signing the Tax Increase Prevention and Reconciliation Act of 2005, 42 WEEKLY COMP. PRES. DOC. 943, 944 (May 17, 2006) [hereinafter TIPRA 2005 Remarks];
480. see also Remarks on Signing the Economic Growth and Tax Relief Reconciliation Act of 2001, 37 WEEKLY COMP. PRES. DOC. 858 (June 7, 2001) ("We cut taxes for every income tax payer. We target nobody in; we target nobody out. And tax relief is now on the way.") [hereinafter EGTRRA 2001 Remarks].
481. See Lipman, supra note 11, at 56.
482. See Brown, supra note 79, at 804-05.
483. TIPRA 2005 Remarks, supra note 274, at 945;
484. see also Remarks on Signing the Jobs and Growth Tax Relief Reconciliation Act of 2003, 39 WEEKLY COMP. PRES. DOC. 666, 667-68 (May 28, 2003) (containing a number of similar statements).
485. MURPHY & NAGEL, supra note 4, at 35.
486. EGTRRA 2001 Remarks, supra note 274, at 858-59.
487. Estate- and gift-tax critics maintain that abolishing transfer taxes will benefit all Americans, from farmers to small businessmen, from retired old economy workers to new economy professionals. A vote against repeal is a vote against average citizens. In criticizing Bill Clinton's veto of H.R. 8, for example, Speaker of the House Dennis Hastert, R-Ill., stated that the president "disappointed millions of Americans who worry that a lion's share of their life's work will be passed on to the Internal Revenue Service rather than left to families." Dennis J. Ventry Jr., Straight Talk About the 'Death' Tax: Politics, Economics, and Morality, 89 TAX NOTES 1159, 1160 (2000) (footnote omitted);
488. see also id. ("[T]he editors at The Wall Street Journal claim that 'estate-tax repeal has rolled over the political class on a wave of grassroots support, notably from farmers and small business, but also from average folks who think it's unfair to confiscate the fruits of a lifetime of hard work.'");
489. id. at 1161 ("Seventeen percent of those surveyed by Gallup in June indicated that they would 'personally benefit' from the elimination of inheritance taxes. But less than 2 percent of all estates passing to heirs in any given year pay transfer taxes.");
490. id. at 1163 (In the context of estate tax repeal, "[t]he 'true winners' . . . are extremely wealthy families. Philanthropist George Soros recently argued, 'The truth is that repealing the estate tax would give a huge tax windfall to the wealthiest 2 percent of Americans. . . . For the rest of the public, it is a cruel hoax.'");
491. CITIZENS FOR TAX JUSTICE, WHO PAID THE FEDERAL ESTATE TAX IN 2005? 1 (2007), available at http://www.ctj.org/pdf/wherethemoneygoes.pdf (indicating that the 18,431 estate tax returns filed in 2005 showing a taxable estate comprised only 0.8% of the people who died in 2004).
492. See Ari Fleischer, The Taxpaying Minority, WALL ST. J., Apr. 16, 2007, at A15.
493. Neil H. Buchanan, Is It Really So Tough to Be Rich? The New, Brazen, and Completely Dishonest Attack on Progressive Taxation, http://writ.lp.findlaw.com/commentary/20070423_buchanan.html (last visited Oct. 14, 2007).
494. J.T. Young, Outer Limits of Class Warfare, WASH. TIMES, Dec. 3, 2002, at A17;
495. see also Fleischer, supra note 281 (making a similar argument).
496. Paul Krugman, Losing Our Country, N.Y. TIMES, June 10, 2005, at A21.
497. See id.;
498. Lori Montgomery, Democrats Craft New Tax Rules, New Image, WASH. POST, Apr. 23, 2007, at Al;
499. Ben Stein, In Class Warfare, Guess Which Class is Winning, N.Y. TIMES, Nov. 26, 2006, § 3, at 3.
500. As I also mentioned at the outset of this Article, this is a project that began with an earlier article debunking the artificial distinction between "mainstream" and "marginal" tax scholars. See supra note 17.
501. And, given the larger project, I hope that tax scholars will similarly begin to question the "naturalness" of other ideas that are treated as conventional wisdom in tax policy circles. See supra note 17.
502. See BOGGS, supra note 211, at 41.
503. See id. at 40-42. Again, by extension, I hold out this same hope with regard to other ideas that are treated as normal, natural, and incontrovertible in tax policy circles.
504. See supra note 287.