Constituencies and Control in Statutory Drafting: Interviews with Government Tax Counsels

76 Pages Posted: 6 Jul 2018 Last revised: 15 Aug 2018

Shu-Yi Oei

Boston College Law School

Leigh Osofsky

University of North Carolina (UNC) at Chapel Hill

Date Written: July 6, 2018

Abstract

Tax statutes have long been derided as convoluted and unreadable. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first in-depth empirical examination of how tax law drafting and formulation decisions are made. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our interviews revealed that tax legislation drafting decisions are both targeted to and controlled by experts. Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held this view because their intended audience was tax experts, regulation writers, and software companies, not ordinary taxpayers. When revising law, drafters prioritize preserving existing formulations so as to not upset settled expectations, even at the cost of increasing convolution. While Members, Member staff, and committee staff participate in high-level policy decisions, statutory formulation decisions are largely left to a small number of tax law specialists. Our findings carry important implications for statutory interpretation, affirming prior research, but also calling into deeper question arguments for textualism and the validity of certain interpretive canons. Our findings also have important implications for the design of our tax system, illuminating the distributive tradeoffs inherent in drafting practices. Finally, our findings reveal a contrast between public expectations about the legislative process and how the process actually works, underscoring underexplored questions about what makes this process legitimate.

Keywords: taxation, tax policy, statutory drafting, statutory interpretation, textualism, legislation, tax legislative process, Congress, congressional committees, qualitative research, interviews, empirical legal studies

JEL Classification: H20, H24, H25, H26, H29, J41, K10, K20, K23, K34, K40, L51, L52

Suggested Citation

Oei, Shu-Yi and Osofsky, Leigh, Constituencies and Control in Statutory Drafting: Interviews with Government Tax Counsels (July 6, 2018). Iowa Law Review, Vol. 104, 2019 Forthcoming; Boston College Law School Legal Studies Research Paper No. 485. Available at SSRN: https://ssrn.com/abstract=3203657

Shu-Yi Oei (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

Leigh Osofsky

University of North Carolina (UNC) at Chapel Hill ( email )

102 Ridge Road
Chapel Hill, NC NC 27514
United States

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