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North Carolina Law Review

Publication Title (Abbreviation)

N.C. L. Rev.





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Medieval alchemy is popularly associated with attempts to become rich by transmuting base elements into gold. Such attempts were less than universally successful. Yet, alchemy yielded great benefits in other areas. For instance, alchemy was one of the sources of modern sciences such as pharmacology and metallurgy.' Also, the rich and profound symbology of alchemy has influenced modern psychology.

Something similar may be said of critical tax studies. Such studies have argued that the Internal Revenue Code as a whole, or significant features of it, disadvantage-intentionally or unintentionally-groups historically oppressed or ignored by American society. Some of these arguments have had force, but many, I believe, have failed to present a persuasive case. However, that does not mean that even those efforts have been wasted. Like alchemy, those efforts have been worthwhile because they have hit unintended but still important targets.

To be fully persuasive, an argument that the Code discriminates against, or systematically disadvantages, particular groups should establish all of four elements:

(1) There is some particular Code feature that operates to the substantial disadvantage of some group. Typically, this would involve showing that, as a result of the Code feature, group members pay proportionately more tax than non-members.

(2) The offending Code feature is not compensated for by other aspects of the Code that disproportionately benefit the group in question. That is, there must be an on-balance or on-net evaluation, a showing that the unfavorable Code aspects hurt group members more than the favorable Code aspects help them.

(3) The appropriate way to redress the problem would be changing the Code, rather than changing non-tax rules or practices.

(4) A reasonable solution exists. That is, a way exists to reform the offending Code section, and that way is technically feasible, efficacious, and unlikely to create other serious problems.

More often than not, critical tax commentators have failed to satisfy one or another (sometimes several) of these elements. In the space available, I can defend this assertion only illustratively, not comprehensively. Part I discusses critical sexual-orientation studies, emphasizing the first and second elements above. Part II discusses critical race studies as to home ownership. Although the second element is implicated here as well, the principal focus of Part II is on the third and fourth elements. Finally, Part III explains why, these failures notwithstanding, these and other critical efforts are beneficial. Specifically, the perspectives they develop can profitably inform tax reform initiatives, providing additional intellectual and political support for worthwhile change.


© 1998 Steve R. Johnson


First published in North Carolina Law Review.

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