Lawsky on Buchanan on Dorf on Law
Today I will first discuss Neil’s academic scholarship, and then I will talk about some other ways Neil has influenced policy and the tax legal academy.
Academic Scholarship
To find the beginning of Neil’s influential legal scholarship, one has to go all the way back to before the beginning of his legal career—indeed, before he even went to law school. Neil actually had another academic career before he became a law professor: one of his doctorates—yes, he has more than one doctorate—is in economics, and Neil was an economics professor. His deep knowledge of economics has informed his career as a law professor—sometimes as a source of methodological tools, but perhaps more often as a source of, “Hey, do not do this!” One common thread running through Neil’s scholarship is his disruption of standard stories from economics. This sophisticated and nuanced disruption is possible, however, only because of his deep knowledge of economics.
An article Neil wrote even before he earned a law degree contains within it seeds that have bloomed into the areas that have been the focus of his work—areas I’ll discuss in a moment, in particular, the question of what we owe future generations, and critiques of the debt ceiling. But first I will take a moment to discuss this early article because it lays out, in a way, much of what is to come. This article, “Playing with Fire: Feminist Legal Theorists and the Tools of Economics,” cautions against using the “tools of economics” in legal analysis. Economics may appear to be an objective science, he says. (I mean, there are numbers! And equations!) But in fact, economic analysis, in order to make its apparently objective arguments, contains hidden assumptions. It’s problematic enough that they are hidden. But these assumptions also smuggle contested moral commitments into what may seem like “objective” work. And again because economics appears objective and scientific, law and economics work, at the time Neil was writing this article, crowded out other methodological approaches.
As Neil showed in a later article, a core incoherence in the economics approach is its reliance on the idea efficiency. Efficiency seems like an objective measure, but in fact, the idea of “efficiency” itself is a primary way in which assumptions are smuggled into arguments. In other words, Neil argues, efficiency is an empty concept that academics and others can fill with their own values and normative commitments.
The fundamental problem is the baseline problem, which tax scholars and others are often familiar with because of Murphy and Nagel’s book “The Myth of Ownership.” The idea here, as Neil explains, is that there is nothing intrinsically morally preferable about the current distribution of resources. Government creates rules; government essentially creates, or at least profoundly shapes, markets. Government and taxes are inextricably intertwined with the current distribution of resources, and thus there is no meaning in saying that an outcome is “efficient” or “inefficient”—that assumes that there is a reason to prefer the current situation to another situation.
Neil does not hold that economic tools are useless; to the contrary, he uses economic tools in his own analyses. But he exposes and problematizes the assumptions that underlie these economic tools, and thus shows that economics, like any other methodology, is problematic and contested. It takes a very unusual combination of bravery, humility, and confidence to devote one’s career to showing that the area in which one has an enormous amount of methodological expertise is insufficient to answer the big and important questions!
What I’ve described so far might seem like an example of the old saying, “Academic politics is the most vicious and bitter form of politics, because the stakes are so low.” But that saying does not apply here. As Neil’s subsequent work shows, these hidden assumptions push answers to very practical questions. I do not have time today to discuss the full breadth of Neil’s scholarship. I will focus on two of the areas in which has made major contributions: the question of what we owe future generations, and the question of how to think about the debt ceiling. I’ll discuss each of these in turn. In each, we will see that he uses the approach of rooting out silent assumptions and challenging common wisdom that is based, either explicitly or implicitly, on these assumptions.
First, Neil’s work on what we owe future generations. The common wisdom for many years within and without the legal academy was that current generations are being “unfair” to future generations. This comes up over and over—in fact, I saw this argument on Twitter just the other day, and it has much in common with the current trend of what’s referred to as “effective altruism.” It comes up in a range of areas—from education, to health care, to climate change, and so on. And these claims are moral claims, not just economic claims. Economists, law professors, and others who make claims about fiscal responsibility and future generations explicitly use the language of morality. Neil points out that there is in fact no framework to support this claim. It might even be, Neil says, that we are doing too much for future generations!
Neil’s work in this area exemplifies his general approach to scholarship, which is a rigorous and careful approach to a large question, unearthing assumptions and questions that others have glossed over. What is a “generation”? Do future generations deserve anything? Which future people should we be concerned about? Who will be born? How far into the future should we look? How should we measure well-being—GDP? Something else? No question is off the table, and thus Neil shows that the larger question is actually a difficult question.
Neil uses his macroeconomic expertise to suggest that the future actually looks surprisingly good, and this will be true whether or not we consciously take future generations into account. And he draws on his more general approach of challenging economics’ underlying assumptions. He also shows that ultimately the question of what we owe future generations is a distributional question, and we can use tools from distributional analyses to understand the bigger question of what we owe future generations.
The importance of Neil’s intervention can be seen in the fact that some, including at least one very prominent law professor, who used to claim that it is obvious that current generations are being unfair to future generations, have adopted Neil’s approach without even crediting him, saying that we cannot know about the fairness of current generations to future generations because of the uncertainty that attends these discussions. Neil’s argument was so clearly right that it is now seen as obvious. Who could possibly think otherwise? The answer, of course, is that almost everyone within the legal academy thought otherwise until Neil’s intervention.
Neil’s main focus in this area of what we owe future generations, though not his only focus, has been in his area of expertise, macroeconomics, and in particular fiscal issues, including spending on entitlements such as Social Security. In another influential article, Neil dug deep into Social Security’s history and purpose to show that spending on Social Security is not, contrary to common claims, an irresponsible transfer of wealth from future generations to current generations. Current spending on Social Security is, of course, a transfer from future to current generations. But is it unfair to future generations? Neil shows, first, that the net transfer from future to current generations is not a large transfer. But even more importantly, he says, one cannot analyze Social Security in isolation. Here again we see a characteristic move of Neil’s: showing how framing a question narrowly can be misleading, and resituating questions in a larger context, with surprising and sometimes counterintuitive results.
Social Security, he shows, cannot be considered in isolation from other government programs—or indeed from the rest of the economy at large. That Social Security can be seen as separate is just an oddity of how the tax system was arranged. At any rate, even if we accept this myth of the “lockbox,” there are a huge number of different things that can affect the well-being of future generations, including research, infrastructure, and education. To understand intergenerational fairness, one must consider the whole picture, not just one item at a time, not just Social Security. And once again, the question here is a question of distributive justice: who pays not just Social Security, for example, but who pays income tax as well. Neil shows that Social Security is doing exactly what is was designed to do.
Neil has not limited his discussion of justice to future generations to Social Security. In contrast to his arguments about Social Security, in which he argues that spending now is entirely consistent with future generations, he has identified the environment as an area in which current U.S. policies fall short of doing justice to future generations. Again, he is careful to identify the ways that this analysis is difficult. He acknowledges that the interests of current generations are legitimate interests, and that the interests of future and current generations must be balanced against each other. And of course it is impossible to know, again as he acknowledges, what future generations would actually want. Nonetheless, he argues, choosing environmental damage is unlike other types of choices that current generations might make. He compares environmental and economic damage and shows that environmental damage is, unlike economic damage, truly irreversible. And, consistent with his other work, he points out that this debate involves not just science and economics, but necessarily also involves moral judgments, and that once again, the question is, at least in significant part, a distributional question.
Neil has also made important contributions, using his methodology of laying bare assumptions and challenging economic analysis, to the question of whether there should be a debt ceiling. This work closely relates to and builds upon his work on Social Security. A debt ceiling limits borrowing by the United States. Here, working together with Michael Dorf, he wrote a series of highly influential articles arguing that a president faced with the question of whether to ignore the debt ceiling is actually faced with a “trilemma” of unconstitutional options: either borrow and ignore the Congressionally imposed debt ceiling; or cut spending and ignore Congress’s spending power; or raise taxes and ignore Congress’s taxing power. The president should, they argued, choose the least unconstitutional option: ignoring the debt ceiling. This series of articles not only addresses the specific issue of the debt ceiling, but also proposes a broader theory of what the president should do when faced with a situation in which there are no constitutional options.
The way this particular debate played out relates to the way Neil has connected his scholarly work with the public – but more on that momentarily. Before I get to that, I want to discuss one of Neil’s very recent articles, also with Mike Dorf, on the connection between originalism and law and economics. This article is a tour de force, bringing together his work challenging law and economics with his work on the debt ceiling, which implicates constitutional law, but going beyond both to connect them through what is really a meta-understanding of legal scholarship and argumentation. This article points out a connection between two conservative legal approaches, law and economics, on the one hand, and originalism. Law and economics looks for approaches that will promote economic efficiency, while originalism looks for the original public meaning of texts. Why would these approaches be embraced by the same political group, much less lead to common legal outcomes?
This article argues that both law and economics and originalism are formalisms. They are formalisms that claim to be objective and apolitical—this should sound familiar at this point!—but they are actually similarly empty, allowing judges to fill them with their own normative preferences. Efficiency, as Neil has argued for years, is empty without value judgments. And so, the article argues, is originalism.
Other Forms of Influence
All of these debates are not just academic squabbles, as I hope is clear from the discussion of how the work addresses practical problems such as how Social Security should be funded and whether the president should borrow past the debt ceiling. Even if Neil had simply written the articles, with nothing more, his work would be practical. But Neil has gone far beyond that. Indeed, for Neil to be awarded a chair named after James J. Freeland seems to me to be particularly appropriate. Professor Freeland was not only a scholar and an academic but was also deeply engaged with the world of legal practice. And similarly, Neil’s influence is not limited to his scholarship. Rather, Neil engages with the outside world as it were, through his work as what I will call for lack of a better term a “public intellectual.”
In addition to being a prolific scholar when it comes to academic writing, Neil has written literally hundreds of columns and articles over the past decades that are geared not only toward law scholars but also toward the public. He explains his ideas in clear language to make them accessible to everyone. Indeed, an important part of the debate on the debt ceiling, between Neil and Mike Dorf on one side and Larry Tribe on the other, played out through these public columns. (This work was later combined into articles.) In part because of these columns, and because of his facility translating academic work for the public, Neil is often a source for journalists as well.
Although Neil has written about issues specific to the United States, the larger issues he engages, such as intergenerational justice and the baseline problem, are not limited to this country. He is an intellectual leader not only in the United States, but internationally. He has, as one would expect from a scholar of his stature, given talks all over the world, including New Zealand, Italy, Canada, and Germany, among others. But he has also spent more extended periods of time living internationally. He has served as a visiting professor of law or a scholar in residence in England, Austria, and Spain. For a number of years he spent weeks at a time in Australia, resulting in his being awarded his second Ph.D., this time from Monash University.
Neil has been influential through his scholarship and public intellectual work, and he is also an important member of the tax community who has been influential in his support and promotion of others’ work. Starting in 2005 and continuing to the present, Neil has organized the Law, Society, and Taxation subconference at the Law and Society Annual Meeting. This is among the largest, if not the largest, annual gathering of U.S. tax law professors, and is thought of as the best such gathering as well. It is a dynamic, intellectual gathering that would not exist without Neil’s entrepreneurial spirit and vision. This is the only opportunity many tax professors have to see our tax colleagues, who are spread across the country and the world. Neil has helped create a sense of community among tax professors that would not exist otherwise.
I’ve only scratched the surface in this brief talk of the many
ways that Neil is important and influential as a scholar and community member,
and as a friend. I am grateful to have had this opportunity, and my sincere
congratulations to both Neil and the University of Florida Levin College of Law
on Neil’s appointment as the James J. Freeland Eminent Scholar Chair in Federal
Taxation.