Following up on my previous post about teaching, I thought I’d revisit the question of how historical analysis can inform the teaching of more "traditional" or “doctrinal” law school courses. As Al Brophy, Elizabeth Dale, and other bloggers have suggested, such teaching can be a form of “applied legal history.” In my own experience teaching tax law, I’ve also found the concept of “thinking in time” as a useful form of applied history.
The title of this blog post is a variation of a book often used in public policy schools to show how history can enlighten important decision-making. Written by Richard E. Neustadt and Ernest R. May, the book, Thinking in Time: The Uses of History for Decisions Makers (1988), uses a number of significant case studies to show how past policymakers have used and (more often) misused history. The book is drawn from a class that the two authors regularly taught at the Kennedy School of Government. Although the case studies they use are derived mainly from foreign policy contexts, the analytical lessons of Thinking in Time can apply to a whole host of decision-making situations, including legal decisions.
Among the book’s many lessons, some are quite familiar for historians and law professors. The importance of precedent and reasoning by analogy are, of course, staples of legal and historical training. Other parts of thinking in time, specifically the role of context and sequence, are frequently less recognized in traditional law classes.
Many law school casebooks, for example, provide only a glimmer of the broader social, political, and economic circumstances in which canonical cases are decided and laws are enacted. Too often the texts of appellate cases and statutory provisions are ripped out from their historical context. Providing such historical context can frequently be enlightening for students. For example, when I teach the introduction to federal income tax class, I try to show how tax rules and judicial decisions are part and parcel of their time period. How, for instance, changing marginal tax rates were a product of changing geopolitical circumstances like the two world wars. How these legal changes affected the positions taken by taxpayers and the government in well-known tax controversies. And how judges and lawmakers themselves responded to changing historical conditions.
Similarly, the sequence of historical events and processes is vital to understanding the development of legal doctrine. By tracing the origins of current laws and placing them into the “stream of time,” as Neustadt and May suggest, we can see how critical junctures lead to changes in legal regimes that often become entrenched over time.
The U.S. Internal Revenue Code is filled with examples of such path-dependent provisions. The American tax code, in many ways, is a political document. It is littered with provisions enacted during specific historical moments for particular political reasons. Gradually, some of these provisions become transformed into entrenched tax benefits via a historical feedback mechanism. Although the origins of such benefits may be ambiguous, over time they create powerful political constituencies that become wedded to such tax benefits. Consider, for instance, the home mortgage interest deduction, which Dennis Ventry Jr. has aptly labeled as the “accidental deduction” because of its path-dependent origins. Ultimately, it’s through historical analysis that we see the unintended consequences of initial legal decisions, and the contingent nature of current laws.