Vic Fleischer offers some interesting thoughts on three models of tax scholarship:

1. Fit and Justify
2. Normative-Driven
3. Explain the Anomaly

Vic’s post was sparked by Ted Seto’s comments at the UCLA tax colloquium last week on David Duff’s paper (blogged here):

Fit and Justify is classic law review scholarship: you take your data points (usually judicial opinions, but sometimes statutes) and fit them into a model that explains what’s going on. You might redefine old categories, or create a new category to account for an emerging trend. Scholars tend to recommend incremental policy changes. Larry Zelenak comes to mind as a master of the genre.

Normative-driven scholarship is where you start with a certain normative approach — law and economics, behavioral law and economics, critical approaches, etc. — and view the data through that lens. If the data doesn’t fit, it’s not because the author’s normative approach is flawed, but rather because the producers of data (judges or legislators) are mistaken in their understanding of what the proper goals of the legal system are, which the author then proceeds to correct. So, for example, rather than accept the corporate income tax as an integral part of the system, scholars apply economics to reveal fallacies or to show how the system could be improved. Policy recommendations are often fundamental and sweeping. I find it interesting that many of the top SSRN tax authors — e.g., Kaplow, Weisbach, McCaffery — arguably fall into this category.

Ted’s categories got me thinking. Where do I fit in? I seem to follow a different model, "Explain-the-Anomaly." In looking at the data, I’m drawn to the outliers. What makes them different? I come across a puzzle and try to figure out what explains it, frequently looking to institutional considerations. E.g., why start-ups organize as corporations rather than partnerships, why buyout funds pay a preferred return while venture funds do not, or why innovative companies structure deals in seemingly-inefficient ways. I aspire to follow in the footsteps of Joe Bankman, David Schizer, and Bill Klein…

I wonder if the model we follow is dictated by our training. Those of us who come from law practice will tend towards fit-and-justify. Those of us with training in economics or other disciplines, or who self-identify as outsiders, will tend towards the normative models. As for explain-the-anomaly, perhaps it comes from reading too much Malcolm Gladwell and Steve Levitt.