Pragmatic Administrative Law and Tax Exceptionalism

Abstract

“Tax exceptionalism” holds that, like the animals of an island long cut off from a continent, the administrative law of tax has evolved into different forms than those found in general administrative law. Critics take a dim view of this diversity, contending that general principles of administrative law should apply in the tax context just as they do in others. This universalistic approach has the virtues of simplicity, elegance, and commitment to the rule-of-law concept that the law should be the same everywhere and for everyone. It runs the risk, however, of downplaying the virtues of pragmatism, flexibility, and realism. An objective look at the evolution of administrative law in the United States indicates that it is, and will likely forever remain, a muddled mess in important respects. This Essay’s simple contention is that courts and other commentators should give due weight to the history and virtues of this mess — and consider embracing the pragmatism and flexibility that it enables — before killing off more mutations from the island of misfit tax administrative law doctrines.

Keywords: tax exceptionalism, judicial deference, notice-and-comment rulemaking