THE JAMES HAUSMAN TAX LAW & POLICY WORKSHOP
presents
Shuyi Oei
Boston College Law School
Whose Tax Law Is It? Constituencies and Control in
Statutory Drafting
Wednesday, March 28, 2018
12:30 - 2:00
Solarium (room FA2), Falconer Hall
84 Queen's Park
The 2017 tax reform produced legislation that many have derided as convoluted and unreadable, leading commentators to ask how such legislation came to pass. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first in-depth empirical examination of how drafters make tax law drafting decisions. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our key finding was that the tax law is written for a small group of experts by a small group of experts: Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held this view because their intended audience was experts and software companies, not ordinary taxpayers or even Congress Members. When revising law, drafters preserve existing formulations so as to not upset settled expectations, even at the cost of increasing convolution. And the entire drafting process is controlled by a few tax law specialists, with little input on formulation decisions from Congress Members or other counsels. These findings have important implications. Law drafted by and for experts may enhance technical accuracy in light of scarce congressional resources and complicated underlying policy. But it may also increase complexity and systematically benefit entrenched users, relative to newcomers and laypersons. This can create tension, whereby taxpayers are subject to responsibilities and penalties for law that drafters do not even expect them to understand. Expert-centric drafting may also reduce congressional engagement with statutory text. For example, our findings show that the 2017 tax reform may be a consequence of longstanding congressional inattention to statutory language, rather than an extraordinary departure from existing practices, raising critical questions about the legislative process that extend well beyond 2017.
Shu-Yi Oei teaches and writes in the areas of tax policy and economic regulation. She joined the Boston College Law School faculty in 2017 after having taught at Tulane Law School from 2009-2017. At Tulane, she was the inaugural holder of the Hoffman F. Fuller Professorship in Tax Law and also received the 2014 Felix Frankfurter Distinguished Teaching award, Tulane Law School’s highest teaching honor. Oei’s recent work has focused on innovations in the arena of human capital investments and the taxation and regulation of new industries such as the gig economy. Her research interests also include social insurance and the relationship between tax administration and economic security, and privacy and transparency in domestic and international tax enforcement and administration.
Before joining the Tulane faculty, Oei practiced tax law in Boston for six years. Her practice included advising clients on federal, state and cross-border tax matters, transactional tax planning and tax controversies. In addition to her law degree, Oei holds a Master of Theological Studies from Harvard Divinity School.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca
