Kornhauser on Taxing Bachelors

Marjorie E. Kornhauser, Tulane University School of Law, has posted Taxing Bachelors in America: 1895-1939:

The Bachelor's Ideal (NYPL)

Bachelor taxes have existed across the globe and throughout millennia. In modern income taxes, they occur only indirectly, as by-products of favorable exemptions and tax rates for married couples. However, in prior centuries—even the 20th century—bachelor taxes existed as direct, explicit taxes levied on bachelors as bachelors. From 1895 through 1939, American municipalities and states proposed these taxes with surprising frequency and newspapers consistently reported on them as well as on foreign bachelor taxes.

Although often greeted with hilarity and rarely passed, explicit bachelor taxes during this period were motivated by serious concerns. The need for revenue was one reason these taxes were proposed. It was not, however, the only—or even the major—reason.

This paper suggests that social unease was the primary motivation for American bachelor taxes in this period. Decades of industrialization, urbanization, immigration, and increased consumerism had created social tensions and dislocations by radically altering everyday living patterns and basic social institutions. The bachelor tax proposals and discussions during this period expressed many people’s discomfort with the changes. Since they believed marriage was the foundation of society and American democracy, they perceived any threat to marriage as threatening the fabric of America. Consequently, they viewed bachelor taxes as a remedy for the moral decay of the nation. In actuality, the taxes were mainly expressive in nature. Not only did most of them fail to pass, but even if they did pass, they were largely ineffective methods to increase marriages, as some contemporaries noted.

The demise of explicit bachelor taxes did not end concerns about marriage and the moral state of society. These same concerns were part of the debates about mandatory joint returns in the late 1930s and early 1940s. Similarly, they remain an important element of recent debates about marriage penalties and the tax treatment of families.

Repetti on Taft v. Bowers

And while we’re on the topic of tax history, James R. Repetti, Boston College Law School, has posted Taft v. Bowers: The Foundation for Non-Recognition Provisions in the Income Tax, which appears in the ACTEC Law Journal 42 (2017): 23-27:

Taft v. Bowers is a Supreme Court decision that is rarely studied in law schools or discussed by scholars. Yet, it is a case of vast significance. In the Taft decision, the Supreme Court confirmed that Congress may create non-recognition exceptions to the income tax that merely defer the recognition of income, rather than permanently exclude it. If the Taft case had been decided differently, it is likely that the number of non-recognition provisions in the Internal Revenue Code ("Code") would be significantly reduced.

New Tax History from Mehrotra

Ajay K. Mehrotra, American Bar Foundation, has posted three papers.  The first is A Bridge Between: Law and the New Intellectual Histories of Capitalism, which appeared in the Buffalo Law Review 64 (2016): 1-22:

The American historical profession has in recent years witnessed a significant revival of two subfields that were once thought to be nearly dead. Both intellectual history and what is often referred to today as the history of capitalism are flourishing. In some cases, the two fields have converged. What role has law and legal history played in this revival and convergence? How have formal and informal laws, legal institutions, and legal actors and processes informed our conceptual understanding of the origins and development of modern American capitalism? This essay explores these historiographical and programmatic questions as part of a symposium directed at “Opportunities for Law’s Intellectual History.” This brief essay explores the role of law and legal history as a bridge between the two revived subfields. It does so in three parts. Part I briefly chronicles the recent revival of the two subfields. Part II explores why law, in its broadest sense, may be particularly well suited to help integrate the convergence between intellectual history and the new histories of capitalism. Why, that is, law has been and may continue to be a bridge between the two subfields. Part III uses the history of American tax law and policy as one example to show how law is vital to our understanding of the new intellectual histories of capitalism. The essay concludes with a modest set of observations on where the new literature on law and the intellectual histories of capitalism may be headed. 

The second is "From Contested Concept to Cornerstone of Administrative Practice": Social Learning and the Early History of U.S. Tax Withholding, which appeared in the Columbia Journal of Tax Law 7 (2016): 144-168:

The process of establishing a stable and effective system of taxation is a hallmark of nearly all modern states. Among the many modern administrative innovations adopted to facilitate effective tax compliance in the United States, arguably none has been more significant than the use of third-party reporting and tax withholding. Yet, like most administrative achievements, the effective implementation of information reporting and tax withholding did not occur quickly or easily. The evolution of withholding and third-party reporting thus raises a series of important historical questions: how did a contested administrative concept become an accepted and celebrated method of tax collection? What were the pivotal periods of administrative reform during this seemingly path-dependent process? Why were activists, commentators, and lawmakers opposed to the growth of this administrative practice? And, how did reformers and government officials overcome this hostility during critical junctures in the development of this important administrative achievement? One of the principal aims of this article is to attend to the early U.S. history of income tax withholding and third-party information reporting. Building upon earlier studies, this article contends that examining the pre-1943 adoption of income tax withholding is critical not only to a deeper historical understanding of how information reporting and withholding were transformed from a contested concept to an administrative cornerstone, but also to our future expectations of administrative and bureaucratic reform.

The third, written with Julia Ott, The New School for Social Research, is The Curious Beginnings of the Capital Gains Tax Preference, which appeared in the Fordham Law Review 84 (2016): 2517-2536

Despite the importance of the capital gains tax preference, and the controversy it often evokes, there has been relatively little serious scholarly attention paid to the historical development of this highly significant tax provision. This Article seeks to move beyond the normative and presentist concerns for or against the tax preference to recount the empirical beginnings and early twentieth-century development of this important tax law. In exploring the curious beginnings of the capital gains tax preference, this brief Article has several aims. First, its main goal is to show that the preference is not a timeless or transhistorical concept, but rather a historically contingent one—a concept that has been shaped not purely by economic logic, but rather by political compromise and social experience. Second, it uses the capital gains tax preference to shed light on broader historiographical questions about the rise and fall of different guiding principles of American political economy. Third, by examining the shifting political coalitions and constituencies behind the tax preference, it intends to show that it is not simply wealthy and elite American taxpayers and their representatives who have supported this tax law. Rather, over time, the law has had a variety of proponents, suggesting that the provision’s persistence can be explained as much by political forces and institutional inertia as by seemingly inexorable economic reasoning. Ultimately, an exploration of the beginnings and early twentieth-century development of the capital gains tax preference provides an opportunity to think about how “we are what we tax” -- the theme of this law review symposium.

Yin on the Origins of the Percentage Depletion Allowance

George K. Yin, University of Virginia School of Law, has posted A Maritime Lawyer, the Percentage Depletion Allowance, and the Joint Committee on Taxation:

This year marks the 90th anniversary of both the percentage depletion allowance and the Joint Committee on Taxation. This essay relates the curious tale of Norman Beecher, a New York maritime lawyer with little background in energy, natural resources, or tax, who convinced Congress in 1918 to adopt a tax proposal that helped lead to both of these important features of the tax system eight years later. While Beecher’s idea ended up providing a major tax break for the oil and gas industry, this essay presents evidence that the source of the proposal was Beecher himself, and not the industry, as a result of his misunderstanding of the proposal’s tax effect. Since the conditions especially favorable to enactment of the proposal were very short-lived, this essay offers the intriguing possibility that but for Beecher (or his misunderstanding), the tax system might never have included percentage depletion or, conceivably, the Joint Committee.

Opportunities for Law's Intellectual History

We recently realized that papers from the conference Opportunities for Law's Intellectual History, held at the Baldy Center at the SUNY Buffalo Law School, are out as 64:1 of the Buffalo Law Review.  Here they are:

Mark Fenster & John Henry Schlegel, Introduction Opportunities for Law’s Intellectual History, 64 Buff. L. Rev. i (2016) 
 
Ajay K. Mehrotra, A Bridge Between: Law and the New Intellectual Histories of Capitalism , 64 Buff. L. Rev. 1 (2016) 
 
Edward A. Purcell, Jr., Capitalism and Risk: Concepts, Consequences, and Ideologies, 64 Buff. L. Rev. 23 (2016) 
 
Christopher Tomlins, Organic Poise? Capitalism as Law, 64 Buff. L. Rev. 61 (2016) 
 
Charles Barzun, Causation, Legal History, and Legal Doctrine, 64 Buff. L. Rev. 81 (2016) 
 
Mark Fenster, Mr. Peabody’s Improbable Legal Intellectual History, 64 Buff. L. Rev. 101 (2016) 
 
Cynthia Nicoletti, Writing the Social History of Legal Doctrine, 64 Buff. L. Rev. 121 (2016) 
 
John Henry Schlegel, On Absences as Material for Intellectual Historical Study, 64 Buff. L. Rev. 141 (2016) 
 
Susanna Blumenthal, Humbug: Toward a Legal History, 64 Buff. L. Rev. 161 (2016) 
 
Laura F. Edwards, Textiles: Popular Culture and the Law, 64 Buff. L. Rev. 193 (2016) 
 
Robert W. Gordon, Some Final Observations on Legal Intellectual History, 64 Buff. L. Rev. 215 (2016)

Johnson on "Imposts" and Ratitification in New York

Calvin H. Johnson, University of Texas School of Law, has posted “Impost Begat Convention”: New York's Ratification of the Constitution:

The meaning of the Constitution is said to be set by the ratification debates. The key issue in New York was nationalizing the tax on imports, called the “impost.” The sides as to ratification in New York were set by the debates over the 1783 proposal to give Congress power to impose the impost. The defeated proponents of the 1783 impost in New York became the Federalists in favor of the Constitution in 1788, and the party that had defeated the 1783 impost remained intact to become the Anti-Federalists in opposition to the Constitution in 1788.

Nationalizing the state imposts was the key economic necessity for the Constitution as a whole. The first mission of the Constitution, under proponents’ understanding, was to give Congress a tax of its own to make payments on the debts of the Revolutionary War. In the next and inevitable war, Congress would need to borrow from the Dutch again. The impost was considered across the nation as the easiest tax and most appropriate one under the mercantilist economics of the times.

If New York legislature had granted the general government the power over the impost, the confederation mode of government under the Articles probably would have survived. The confederate congress would not have been replaced by the self-sufficient, vigorous, supreme national government that the Constitution formed, or at least not until some future crisis. As Hamilton appropriately put it, “Impost Begat Convention.”

Littlewood on Taxation in New Zealand, 1840-45

Michael Littlewood, University of Auckland Faculty of Law, has posted In the Beginning: Taxation in Early Colonial New Zealand:

For the first five years of the colonial period, from 1840 to 1845, the New Zealand government was insolvent, spiraling deeper and deeper into debt and failing to pay salaries and other bills. It conscientiously adopted the revenue-raising methods proposed by London (mainly land sales and customs duties) plus several others (notably liquor licensing, a tax on auctions, and borough council rates), but the revenues raised never came close to covering spending. In desperation, it resorted to borrowing, printing money and experimenting with an income tax – an extraordinarily innovative move in 1844. Unsurprisingly, none of these measures proved satisfactory. London blamed the Colony’s governors, but the real problem was that its economy was simply too small to sustain a government even remotely resembling the British colonial norm.

Weekend Roundup

• HNN collects much historical and historically inflected commentary on Justice Scalia's legacy and the appointment of his successor here.  Along similar lines, Wednesday's New York Times ran a piece by Emily Bazelon and John Fabian Witt (Yale Law School) on "Senate Republicans and the Supreme Court: Where Is This Headed Exactly?"

• From the Rome News Tribune: “The Georgia Legal History Foundation will present a workshop in Rome on March 3-4 that will revisit ‘Georgia’s Last Frontier: The People, Lawyers and Judges of Northwest Georgia-Cherokee Country.’”

Roger B. Taney (credit)

• Randall Lesaffer, Professor of Legal History at Tilburg Law School, reviews the history of Dutch-Belgian land swaps on OUPblog.

• Seth Barrett Tillman, in the Baltimore Sun, on whether Ex parte Merryman speaks to whether Taney’s statue (right) should remain on public view 

• Paul Finkelman on HuffPo on whether Ted Cruz is a “natural born citizen.”

• We all know that in 2013 US tax historians rose to the occasion of their great centennials, that of the Sixteenth Amendment and the Revenue Act of 1913.  Now come the Canadians: “Osgoode Hall Law School of York University and the Canadian Tax Foundation are planning a special centennial publication to mark the 100th anniversary of the Income Tax Act,” writes Canadian Legal History Blog. 

• The Library of Congress has digitized its collection of Rosa Parks's papers and put them on-line.

• The legal historians Annette Gordon-Reed and Kenneth Mack participated in a discussion at the Harvard Law School on “an international legal effort now underway in the Caribbean to hold European nations that engaged in that region’s slave trade accountable to the modern-day descendants of those slaves.”  H/t: Harvard Gazette

• Princeton University's School of Architecture is sponsoring a series of lectures called Detroit 101.  It asks, "Is the contemporary narrative of Detroit based on a fact or fiction?"  The topics are Arts & Image, Urbanism & Design, The Arts of Urban Transition, Philanthropy & Public Policy, and History, Race and Real Estate, a topic upon which Thomas Sugrue, NYU, will, with others, address.

• ICYMI: the Washington Post ran a lovely, illustrated story on FSA photographers and the Great Depression; NPR ran one on The Life and the Adventures of a Haunted Convict, "the earliest known prison memoir by an African-American writer."

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Dick on Tax Imperialism in Puerto Rico

Diane Lourdes Dick, Seattle University School of Law, has posted U.S. Tax Imperialism in Puerto Rico, which is forthcoming in the American University Law Review 65 (2016):

This Article uses historical and legal analysis to demonstrate how U.S. domination over Puerto Rico’s tax and fiscal policies has been the centerpiece of a colonial system and an especially destructive form of economic imperialism. Specifically, this Article develops a novel theory of U.S. tax imperialism in Puerto Rico, chronicling the sundry ways in which the United States has used tax laws to exert economic dominance over its less developed island colony. During the colonial period, U.S. officials wrote and revised Puerto Rican tax laws to serve U.S. economic interests. In more recent years, U.S. tax laws have disadvantaged Puerto Ricans, who still lack voting rights and full democratic representation in Congress. A theory of tax imperialism may also have application far beyond the U.S.-Puerto Rican experience. For instance, it may help us understand the relationships between the United States and its other possessions and territories throughout history, and between the United Kingdom and its British Crown dependencies, overseas territories, and newly-independent colonies.

Call for Contributions: Feminist Judgments - Tax Volume

We have the following Call for Contributions:

Feminist Judgments: Rewritten Tax Opinions

Volume Editors

Bridget J. Crawford 

Anthony C. Infanti

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Tax Opinions. This edited volume, to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, will be published in 2016 by Cambridge University Press. (That book’s Introduction and Table of Contents are available here.) Subsequent volumes in the series will focus on different courts or different subject matters. This call is for contributions to a volume of tax decisions rewritten from a feminist perspective. 

Tax volume editors Bridget Crawford and Anthony Infanti seek prospective authors for 8 to 10 rewritten tax-related opinions covering a range of topics. Authors are welcome to suggest cases of their own choosing or to consult the editors or others for ideas. All tax-related cases are appropriate for rewriting. Possible cases from U.S. courts are listed here, but that is not an exhaustive list.  Cases may come from any jurisdiction and any court, including non-U.S. jurisdictions. The volume editors conceive of feminism as a broad movement concerned with justice and equality, and welcome proposals to rewrite cases in a way that bring into focus issues such as gender, race, class, disability, sexual orientation, national origin, and immigration status.

As the core of the Feminist Judgments Project is judicial opinions, proposals must be either to (1) rewrite a case (not administrative guidance, regulations, etc.) or (2) comment on a rewritten case.  Rewritten opinions may be re-imagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000 word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made (4,000 word maximum for the commentary). Commentators and opinions writers who wish to work together are welcome to indicate that in the application.

In suggesting possible cases for rewriting, the volume editors have had the input and advice of an Advisory Panel of distinguished U.S. scholars including Alice Abreu (Temple), Patricia Cain (Santa Clara), Joseph Dodge (Florida State), Mary Louise Fellows (Minnesota), Wendy Gerzog (Baltimore), Steve Johnson (Florida State), Marjorie Kornhauser (Tulane), Ajay Mehrotra (American Bar Foundation, Northwestern), Beverly Moran (Vanderbilt), Richard Schmalbeck (Duke), Nancy Shurtz (Oregon), Nancy Staudt (Washington University), and Lawrence Zelenak (Duke).

The U.S. Feminist Judgments Project approaches revised judicial opinion writing as a form of critical socio-legal scholarship.  There are several world-wide projects engaged in similar efforts, including the U.K.-based Feminist Judgments: From Theory to Practice (2010); Australian Feminist Judgments: Righting and Rewriting Law (2014); the Women’s Court of Canada; ongoing projects in Ireland, New Zealand, and a pan-European project; and other U.S.-based projects currently under way. 

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten tax cases should fill out an application here. 

Applications are due by February 29, 2016 at 5:00 p.m. eastern. Editors expect to notify accepted authors and commentators by April 15, 2016. First drafts of rewritten opinions will be due on August 15, 2016. First drafts of commentary will be due on September 15, 2016. 

Cases that might be particularly well-suited to a historian's perspective include United States v. Rickert, 188 U.S. 432 (1903) (tribal trust lands and improvements are exempt from state and local taxes); Moritz v. Commissioner, 469 F.2d 466 (10^th Cir. 1972) (gender-based classification for eligibility for certain dependency deduction constitutes denial of equal protection); and Windsor v. United States, 570 U.S. (2013) (estate tax exemption for same-sex couples) 

CFP: Graduate Student Workshop on the History and Politics of Public Finance

We have the following call for applications:

8th Annual Graduate Student Workshop 

The last decade has witnessed a revival of multidisciplinary research on the social, political, and historical sources and consequences of public finance. We invite interested graduate students from history, law, public policy, and the social sciences to participate in a one-day workshop on this “new fiscal sociology.” In addition to brief lectures introducing students to the comparative history of taxation and public finance, the workshop will consist of discussion of classic and contemporary texts.

The graduate student workshop will be held on Wednesday, November 16th, 2016, in Chicago, Illinois in conjunction with the annual meeting of the Social Science History Association (SSHA). Participants may also have the opportunity to present their own work on Thursday, November 17^th, as part of the Public Finance network at the SSHA conference.

Space is limited. Some funds for reimbursement of housing and travel expenses will be available for a limited number of participants.

Applicants should submit a CV and a paragraph explaining their interest in this workshop, and (if applicable) a draft of a research paper that they would like to present at the SSHA. Preference will be given to students who also submit conference papers, but we encourage applications from all students interested in the workshop, including those at early stages of their graduate careers.

Submit materials via e-mail no later than February 20, 2016 to:

• Isaac Martin, Department of Sociology, University of California – San Diego (iwmartin@ucsd.edu)
• Lucy Barnes, Department of Political Science, University College London  (l.barnes@ucl.ac.uk)
• Molly Michelmore, Department of History, Washington and Lee University  (MichelmoreM@wlu.edu)

Smith on Australian State Income Taxation

Julie Smith, Australian National University Research School of Social Sciences, has posted Australian State Income Taxation: A Historical Perspective, Australian Tax Forum 30 (2015): 679-712:

Contrasting with social insurance taxes and the key revenue raising role of VAT for northern European welfare states, Australia’s income tax has funded expansion of Australia’s social security system. The uniform income tax plan of 1942 unified Australia’s system of income taxes, and was central to funding the introduction of Australia’s unique social security system, establishing national child endowment, unemployment benefits and the widows’ pension in 1944.

This article will describe the increasing reliance of Australian states on income taxation during the period 1915 to 1942, and the constraints arising from the increasing mobility of taxpayers and post-Federation economic integration; show how these states’ income tax policies responded to the economic shocks of the Depression which depleted the states’ revenues contemporaneously with increasing demands on governments to provide social protection; and identify how the concepts, design and administration of state income taxes were embedded in Australia’s national tax and social security systems established between 1942 and 1944.

The design of Australia’s unified income tax system was not based on a clean slate, nor was it simply an expedient response to wartime revenue or macroeconomic management needs. In this article, it is shown to be based on an income tax template derived closely from Australian state income taxes during the interwar period, reconfigured by the economic shocks of the Depression years, and glued together by federal/state finance institutions and agreements which redistributed national revenues to less affluent jurisdictions. Income tax unification addressed the key barriers to funding adequate social protection that had confronted states during the Depression.

"Beyond the New Deal Order" Conference Program

Next week (September 24-26) the University of California, Santa Barbara hosts a conference titled "Beyond the New Deal Order." The full program is now available here. Panels of particular interest to our readers include:

Plenary: State Building: Democratic and Managerial

Chair: Alice O’Connor, UCSB

Meg Jacobs, Princeton University, “Reconsidering Regulation in the New Deal and
Beyond”

K. Sabeel Rahman, Brooklyn Law, “Transcending the New Deal Idea of the State:
Managerialism, Neoliberalism, and Participatory Democracy in the Regulatory State”

William Novak, University of Michigan Law School, “Beyond the Idea of the New
Deal State”

New Perspectives on New Deal Social Politics 

Elizabeth Shermer, Loyola University of Chicago, “Indentured Students and Mass
Higher Education”

Mark Santow, University of Massachusetts, Dartmouth, “Castles Made of Sand?
Home Ownership and the New Deal Order”

Doug Genens, UCSB, “Legal Services and the War on Poverty in Rural California”

Commentator and Chair: Tom Sugrue, New York University

Tax and Fiscal History as Cat Scan of Post-New Deal Order

Elliot Brownlee, UCSB, “The New Deal Order and Beyond: The Fiscal Issues”

Isaac William Martin, UC, San Diego, “The Tax Revolt and the Fall of the New Deal
Order”

Joseph Thorndike, Tax Analysts, and Ajay Mehrotra, American Bar Foundation, ”New
Deal Taxation and the Long 20th Century of Progressive Taxation”

Commentator and Chair: Romain Huret, EHESS

Labor and the Law

Kate Andrias, University of Michigan Law School, “Law and the Labor Question in
the Post New Deal Order”

Joseph McCartin, Georgetown University, “Public Sector Unions and the New Deal
Order: Logical Extension, Catalyst of Crisis, Agent of Revival and Revision”

William P. Jones, University of Wisconsin, “The Other Operation Dixie: Public
Employees and the New Deal Order”

David Bensman, Rutgers University, and Donna Kesselman, University of Paris, Est
Creteil, “From the New Deal Standard Employment Relationship to Employment
Grey Zone”

Commentator and Chair: Bob Master, Communications Workers of America

The Politics of Regulation In and Beyond the New Deal Order

Paul Sabin, Yale University, “Environmental Law and the End of the New Deal Order”

Paul V. Kershaw, Charles Warren Center, Harvard University, “The Ascendance of
the Neoliberal Political Order: A Triumph of Interests, Not Ideology”

Reuel Schiller, University of California, Hastings College of the Law, “Beyond New
Deal Regulation: Neo-Liberalism and the Modern Administrative State”

Commentator and Chair: Mary Furner, UCSB

Plenary: Race in the Configuration and Reconfiguration of the New Deal Order

Matt Garcia, Arizona State University, “The Unexpected Virtues of Exclusion: Farm
Workers and the New Deal”

Tom Sugrue, New York University, “The State and Planning: Race, the Metropolis
and Policymaking from Liberalism to Neoliberalism”

Kelly Lytle Hernandez, UCLA, “Caged Birds: The Rise of Mexican Incarceration in the United States, 1929-2015”

Civil Rights and American Federalism 

Kristoffer Smemo, UCSB, “Holding the Balance of Power: The Black Vote, The
Republican Party, and the Politics of Coalition Building in the 1940s”

Brent Cebul, American Academy of Arts and Sciences and Mason Williams, Williams College, “Revisiting the Question of Federalism: Intergovernmental State-building and the New Deal Roots of Urban Liberalism and Sunbelt Conservatism”

David Stein, CUNY Graduate Center, “Containing Keynesianism in an Age of Civil
Rights: Jim Crow Monetary Policy and the Struggle for Guaranteed Jobs, 1957-1979.”

Commentator and Chair: Gary Gerstle, University of Cambridge

Individual Rights and Administrative Power in New Deal History

Sophia Lee, University of Pennsylvania Law School, “Against Rights Essentialism:
Labor, Civil Rights, and the New Deal State”

Karen Tani, University of California, Berkeley School of Law, “The Unanticipated
Consequences of New Deal Poor Relief: Welfare Rights, Empowered States, and the Revival of Localism”

Joanna Grisinger, Northwestern University, “The Right to Participate and the Civil
Aeronautics Board”

Jeremy Kessler, Columbia University Law School, “The New Deal in the New Draft
Conscription, Conscientious Objection, and the Decline of Administrative Autonomy”

Commentator and Chair: Laura Kalman, UCSB

Cohen on Judge Ginsburg's Seg Academy Case

My Georgetown Law colleague Stephen B. Cohen has posted “Seg Academies,” Taxes, and Judge Ginsburg, which is forthcoming in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (Cambridge University Press, 2015):

This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.

Cambridge writes of the collection:

Ruth Bader Ginsburg is a legal icon. In more than four decades as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. This book chronicles and evaluates the remarkable achievements Ruth Bader Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg's career. Together, these perspectives document the impressive legacy of one of the most important figures in modern law.

 The TOC is here.

Studies in the History of Tax Law

We’ve been noting the posting of abstracts for chapters in volume 7 of Studies in the History of Tax Law, edited by Peter Harris and Dominic de Cogan, which is forthcoming from Hart.  The editors say of the collection:

These are the papers from the 2014 Cambridge Tax Law History Conference revised and reviewed for publication. The papers fall within six basic themes. Two papers focus on colonialism and empire dealing with early taxation in colonial New Zealand and New South Wales. Two papers deal with fiscal federalism; one on Australia in the first half of the twentieth century and the other with salt tax in China. Another two papers are international in character; one considers development of the first Australia-United States tax treaty and the other development of the first League of Nations model tax treaties. Four papers focus on UK income tax; one on capital gains, another on retention at source, a third on the use of finance bills and the fourth on establishment of the Board of Referees. Three papers deal with tax and status; one with the tax profession, another with the medical profession and a third with aristocrats. The final three papers deal with tax theorists, one with David Hume, another with the scholarship of John Tiley and a final paper on the tax state in the global era.

One chapter is Customs Revenue in the British Colony of New South Wales 1827-1859. And Inquiries Concerning Frederick Garling, Artist and Customs Department Employee, by Diane Kraal, Monash University:

Customs duties in the British Colony of New South Wales provided important funds for the economic development of the settlement. This significant source of revenue led to the Colony's Customs Department being established, in Sydney 1827, to administer the collection process. The shift from physical assessments of duty by powerful individuals to a process with legislated and more regulated procedures was not without challenges. The first aim of this chapter is to provide insights into five early inquiries concerning the system of the Colony's customs duties, legislation and practice. With a particular focus on the last two inquiries, it is asked whether any modifications were made to legislation and practice. The second aim is to provide a fuller account of the employment of Frederick Garling (1806-1873) with the Customs Department, Sydney. He was found guilty of serious neglect of duty by the NSW Board of Inquiry of 1858/59. Today, Garling is a recognised Australian colonial artist for his genre of marine watercolours.

Another is A Historical Account of Taxes on Goods and Services in the Transition to Post-Socialist China, by Yan Xu, Chinese University of Hong Kong:

The taxes on goods and services, subject to a very brief interruption, have been separately applied since their inception in early times in modern China. Until now, the Value Added Tax (VAT) is still an incomplete tax as the tax on goods is separate from the tax on services according to the basic legislation, although the two taxes are moving towards an integrated system. The adoption of bifurcated taxes on goods and services has caused a number of problems for the economy and businesses. The question is why the government did not choose a normal VAT system in the first instance if the separation is inefficient. This chapter addresses the question by way of an examination of the historical development of the system of taxes on goods and services in modern China and argues that the design of the system was historically constrained by a number of factors including economic foundations, the level of tax administration and inter-governmental fiscal relations.

Weekend Roundup

• Of course, legal historians know all about Law for the Elephant--but an elephant for the law? 

• The schedule for Fall 2015 for the Washington History seminar is out.  Sessions include Adam Rothman on Beyond Freedom’s Reach: A Kidnapping in the Twilight of Slavery and Philippa Strum on Speaking Freely: Whitney v. California and American Speech Law.

• A report on that recent congressional briefing on tax history and policy appears on the AHA's blog.

• From Balkinization: Jack Balkin talks with David Sehat (Georgia State) about his new book, The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon & Schuster, 2015). 

•  The National History Center's updated guide to researching in the National Archives is here.

• Over at New Books in History, it's Princeton week: Julian E. Zelizer on The Fierce Urgency of Now and Kevin M. Kruse, on One Nation Under God.

• The US Senate on its retiring historian, Donald Ritchie on HNN.

• Over at the Faculty Lounge: The Making of a Lawyer, 1878 Version.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Tax Reform in Historical Perspective: A Congressional Briefing

[We have the following announcement from the National History Center.]

The National History Center of the American Historical Association is pleased to announce our upcoming Congressional briefing, co-sponsored with the Joint Committee on Taxation, on “American Families, Global Competition, and Comprehensive Tax Reform in Historical Perspective.” Ajay Mehrotra of Indiana Law School [and an LHB Guest Blogger]; Bruce Bartlett, former deputy assistant secretary of the Treasury; and Joe Thorndike of Tax Analysts will discuss the history of tax reform in the United States.  Professor Dane Kennedy, Director of the National History Center, will moderate the discussion.

The briefing will be held on Friday, May 8, at 10 a.m. in Rayburn House Office Building, Room 2103.  RSVPs are requested.  To RSVP or for further information, please contact the Center’s assistant director, Dr. Amanda Moniz, at amoniz@historians.org or 202-450-3209.

The National History Center's Video Library

The National History Center has recently posted a pointer to its nicely indexed, web-based library of videos, mostly recordings of the Center's Congressional Briefings and meetings of the Washington History Seminar. Here's the list or recordings for the "State and Society" category:

Congressional Briefings
    NHC Congressional Briefing on Immigration Policy: April 5, 2013
    NHC Congressional Briefing on the Great Depression: May 21, 2009
    NHC Congressional Briefing on the Federal Role in Race and Reconstruction: March 13, 2006

Washington History Seminars
    Human Rights before Carter: December 8, 2014
    The Secret Ballot in the United States: April 7, 2014
    Vagrancy Laws and the Long 1960s: January 13, 2014
    Bureaucracy, Citizenship and Remembrance in Wartime Iraq: April 22, 2013
    Historical Perspective on the Arab Spring: April 8, 2013
    Weatherman Underground Terrorism: April 1, 2013
    Lincoln and the Emancipation Proclamation: January 28, 2013
    Islam and Democracy for the 21st Century: February 13, 2012
    Abraham Lincoln and the Irish: January 23, 2012
    Statelessness in 20th Century America: October 24, 2011
    Civil Military Relations: April 11, 2011
    The “Good Occupation”: Military Government in the American Imagination: March 14, 2011
    Rethinking the History of the French Welfare State: March 7, 2011
    Territory, Statehood, and Sovereignty: From Westphalia to Globalization: February 7, 2011
    The Protestant Boomerang: American Missionaries and the United States: November 15, 2010
    Reflections on the Mau Mau and the End of Empire: September 27, 2010
    Why a Congress and Not a Parliament?: September 13, 2010
    C. Vann Woodward and the Civil Rights Movement: May 10, 2010
    The French and American Revolutions and Modern Democracy: April 26, 2010
    Rising Inequality and the Return of Jim Crow: April 5, 2010

Miscellaneous Events
    Passing the Voting Rights Act, 1965: January 4, 2015 (Audio only)

Forthcoming is the Center's next Congressional Briefing, American Families, Global Competition, and Comprehensive Tax Reform in Historical Perspective, co-sponsored with the Joint Committee on Taxation.  It will be held May 8 at 10 a.m. in 2103 Rayburn House Office Building.

Hutchison on the Origins of the Debt/Equity Distinction

Camden Hutchison, a PhD candidate at the University of Wisconsin-Madison, has posted The Historical Origins of the Debt-Equity Distinction, which is forthcoming in the Florida Tax Review.  Here is the abstract:

The U.S. tax code favors corporate debt over corporate equity, a distinction long criticized by economists, legal scholars, and other tax commentators as both theoretically and practically unsound. For decades, academics and policymakers from a variety of disciplinary and political backgrounds have argued that this so-called “debt-equity distinction” distorts corporate financing decisions, encourages excess borrowing, and invites troublesome tax-avoidance behavior. Surprisingly, despite widespread critical attention, the origins of this policy remain a mystery. Primarily focused on its contemporary significance, scholars have disregarded the distinction’s past.

This article uses historical evidence to trace the debt-equity distinction’s origins, development, and continuing evolution. Citing legislative history, business lobbying efforts, and important changes in the broader historical context, it argues that the disparate treatment of debt and equity was never a conscious policy goal, but was rather the unintended outcome of an extended series of short-term political decisions. These political decisions were historically specific — i.e., formulated in response to temporary historical contingencies — but had consequences that have persisted to the present day. The article concludes by assessing the broader implications of this history for both the current structure of the U.S. tax system and the prospects of future tax reform.

Edling's "Hercules in the Cradle"

Max M. Edling, King’s College London, has just published A Hercules in the Cradle: War, Money, and the American State, 1783-1867, with the University of Chicago Press.

Two and a half centuries after the American Revolution the United States stands as one of the greatest powers on earth and the undoubted leader of the western hemisphere. This stupendous evolution was far from a foregone conclusion at independence. The conquest of the North American continent required violence, suffering, and bloodshed. It also required the creation of a national government strong enough to go to war against, and acquire territory from, its North American rivals.

In A Hercules in the Cradle, Max M. Edling argues that the federal government’s abilities to tax
and to borrow money, developed in the early years of the republic, were critical to the young nation’s ability to wage war and expand its territory. He traces the growth of this capacity from the time of the founding to the aftermath of the Civil War, including the funding of the War of 1812 and the Mexican War. Edling maintains that the Founding Fathers clearly understood the connection between public finance and power: a well-managed public debt was a key part of every modern state. Creating a debt would always be a delicate and contentious matter in the American context, however, and statesmen of all persuasions tried to pay down the national debt in times of peace. A Hercules in the Cradle explores the origin and evolution of American public finance and shows how the nation’s rise to great-power status in the nineteenth century rested on its ability to go into debt.

Here are two quite impressive endorsements:

Richard R. John, Columbia University
“Edling’s Hercules in the Cradle shows how vitally important fiscal policy has been in laying the groundwork for the modern state. Revisionist historians have long challenged the Cold War shibboleth that the national government in the early republic was nothing but a ‘midget institution in a giant land.’ Edling’s distinctive contribution is to bring this revisionist sensibility to the study of public finance. This lucid and informative monograph vaults Edling to the front ranks of historians of state and society in the nineteenth-century United States; it should remain a standard work in the field for many years to come.”

Jack Rakove, author of Original Meanings: Politics and Ideas in the Making of the Constitution
“In his first book, Max Edling virtually forced American historians to rethink the first premises underlying the adoption of the Constitution. The Federalists of 1787-1788, he demonstrated, were true state-builders. In his new book, Edling traces what that state looked like, how it evolved, and how, notwithstanding all the constitutional controversies it provoked, it proved to be a far more effective vehicle for mobilizing national resources for war than most scholars have appreciated. Thanks to Edling, we now have a much more sophisticated basis for comparing the development of the American state after 1789 to its European counterparts.”

 TOC after the jump.