Today's ninth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Historical and Constitutional Analyses:
The scholars on this panel will bring their skills in historical analysis to bear on several classic issues in taxation. The relevance of original attitudes about "direct taxation," the purpose of corporate taxation, and the form of estate and gift taxation continue to be relevant to policy discussions today.
Leandra Lederman (Indiana-Bloomington) (Chair/Discussant)
- Jeffrey A. Cooper (Quinnipiac), Ghosts of 1932: The Lost History of Estate and Gift Taxation:
As part of the 1932 Tax Act designed to combat the Great Depression, Congress made several crucial decisions regarding the structure of estate and gift taxation. The Congress of 2009 likely will face similar decisions and may have much to learn from the choices made in 1932. The paper will provide an historical perspective on both the role of estate and gift taxation in U.S. society and well as the optimal structure of those taxes.
- Ajay Mehrotra (Indiana-Bloomington), The Public Control of Corporate Power: Revisiting the Origins of the 1909 Corporate Tax:
At the turn of the twentieth century, state and federal government actors attempted to use their taxing powers to control the burgeoning power of corporate capital. Using tax policy to contain corporate power soon became a critical intermediary step in the broader historical process of amending national and state constitutions. Indeed, it is no coincidence that Congress introduced the Sixteen Amendment, nullifying Pollock, at the same time that it enacted a new levy on corporations. This paper analyzes how political reformers were able to capitalize on the social anxieties surrounding corporate capitalism to create not only the constitutional amendment, but also the first set of legislative enactments that would soon become the legal foundations for the emerging modern fiscal polity.
- Sachin S. Pandya (UConn), The Diffusion of State Approval of Liability Insurance for Personal Injury Accidents in America, 1886-1910:
This paper explains why American legal institutions authorized the sale of liability insurance for personal injury accidents so quickly after companies first began selling such insurance in 1886. Today, liability insurance for personal injury accidents is both ubiquitous and assumed to substantially influence how and how much law constrains behavior, particularly of sophisticated parties. However, at its inception in the late nineteenth century, it was not inevitable that American legal institutions would permit liability insurance to cover personal injury as well as property damage. In the prevailing account for why they did, judges are the pivotal actors. Based on newly-collected data, this paper shows that State legislators and insurance regulators sanctioned liability insurance for personal injury accidents many years before any judge did. The paper then develops explanations for why legislatures, regulators, and judges accepted America’s first liability insurance market for personal injury accidents. In so doing, the paper advances not only the historical literature on the development of American tort law, but also the growing literature on the diffusion of legal innovation.
- Andre L. Smith (Florida International), Does It Matter What Slaves Thought "Direct Tax" Meant in the United States Constitution?:
This paper explores a peculiar question concerning Constitutional deliberation presented by Professors Calvin Johnson and Erik Jensen’s debate over the meaning of “Direct Tax without Apportionment.” According to Professor Jensen, apportionment of direct taxes was intended to serve as a significant limitation on the Federal government’s ability to tax citizens directly. Professor Johnson, on the other hand, believes the Constitution requires apportionment only of Federal requisitions directly from the States. Professor Johnson’s theory places the issue of slave counting at the core of the debate over taxation and representation. For students of legal construction, interpretation and deliberation, their debate inspires a couple peculiar questions: When interpreting the Constitution does it matter at all what slaves thought particular words or phrases meant? If it does matter, how important is it and how would we discover it? The answer to the question ‘does it matter at all’ is, of course, it depends. Different deliberative/interpretive techniques—textualism, intentionalism, purposivism, and dynamism—answer the question differently. And the results might a represent a political irony to some. Justice Scalia’s brand of originalist textualism accords the most respect to the views of slaves on Constitutional issues. Similarly, it accords the most respect for women’s views. His interpretive theory requires judges to consider what the text of the Constitution meant to the People of the United States. He considers the Federalist papers not to be evidence of the Framers’ intents but as evidence of what the People thought specific words meant. But, even if the Federalist papers represent the best evidence of original Constitutional meaning, they are not the only evidence of what the People of the United States understood. Thus, Scalia’s original textualism requires judges deciding Constitutional questions to consider to some degree and to the extent possible the meaning most likely supplied by blacks, women, and perhaps Native Americans (especially if there is evidence that their understanding differs to some extent from the dominant public sphere of the time).
