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.
