By: Shu-Yi Oei
Does tax scholarship look different across different countries? If so, how? And why? In a recently posted paper on SSRN, Wolfgang Schön of the Max Planck Institute for Tax Law and Public Finance looks at these questions, focusing on a comparison of tax law scholarship in the United States and Germany. The abstract is here. Briefly, the paper delineates key distinctive features of US and German tax scholarship and analyzes the similarities and differences between the two. As someone who teaches at a law school with a strong international, comparative and civil law tradition, I found many aspects of this paper interesting and informative, and agreed with many of its arguments. I won’t go into all of them here, but two stood out as especially thought provoking.
First, Schön points out that in US tax scholarship (and in US legal scholarship in general), the “internal” approach to scholarship—that is, doctrinal analyses and interpretations of law—has largely been replaced by an “external” approach that analyzes jurisprudence and the impact of legal rules from an “outsider” (i.e., policy or interdisciplinary) perspective. German academics, by contrast, are more likely to adhere to an internal approach that focuses on systematizing, understanding, and categorizing legal doctrine. This observation doesn’t strike me as very controversial. What was intriguing, however, was Schön’s claim that this external turn is due, in part, to the fact that US academics have less influence over the direction and what he calls the “production” of the actual law than their German counterparts. Specifically, he argues that US judges are less likely and less obliged to consult academic writing in coming to decisions than judges in Germany. Thus, many US legal academics gravitate towards the “external” approach, rather than simply being content to make a limited (and likely ignored) doctrinal contribution. This sounds right to me, at least on the US side. (Anecdotally, I have heard more than one person point out that one’s academic and theoretical freedom is very much tied to the fact that one’s theories are irrelevant to pretty much everybody, and that this is the very thing that allows legal scholars to really push the theoretical and policy boundaries.)
Relatedly, Schön notes that the US move to the “external” approach is tied to the advent of legal realism in the 1920s (with its shift away from formalism and legal determinism and its increased focus on the policy interests and motivations of judges) and also the Critical Legal Studies (CLS) movement in the 1970s (with its deconstructionist bent). Schön’s point is that the embrace of the “external” approach corresponds with these intellectual movements. With respect to tax law, Schön argues that the turn from an internal to an external view came in the 1950s and 60s with Boris Bittker and Stanley Surrey, who brought economic analysis to the tax law and paved the way for perspectives from other disciplines (such as empirical, public finance, political economy, and other policy perspectives) to influence tax scholarship.
This account suggests that the economic modes of analysis that dominate tax scholarship are somewhat more tied to legal realism and CLS than we generally credit. But it also raises further questions. For example, if the path of general legal scholarship towards external approaches was paved by legal realism and CLS, why then did tax scholarship predominantly turn (I think most would agree it did) towards economic approaches rather than alternative pathways (such as realism, law and society, or CLS)? The “internal” vs. “external” frame explains the move away from the purely doctrinal, but does not explain the subsequent choice of direction. Yet, perhaps it does not have to. From a comparative point of view, clearly the most interesting observation is that US tax scholarship made the “external” move, regardless of its ultimate shape, but German tax scholarship by and large did not.