Alexandra Walker (NYU), The Durability of Tax Laws and Their Objectives, 80 Tax L. Rev. __ (forthcoming 2026):

This Article aims to enhance the tax code’s effectiveness by examining the impact of external inputs on the durability of tax laws and their public-spirited objectives. Conventional wisdom views the realization requirement and nonrecognition rules as fundamentally different—the realization requirement is a (perhaps constitutionally mandated) bedrock of our income tax system, while nonrecognition rules are principle-based exceptions from that presumption. This Article demonstrates that these rules are in fact similar on the most fundamental level in that they both represent departures from the well-accepted timing rule under an ideal income tax driven by policy-based decisions. Despite this fundamental similarity, the traditional view of these concepts exists because they differ in their motivations for deviating from this default rule. Since the public-spirited objectives of the realization requirement are more durable than those of many nonrecognition rules, the realization requirement is viewed as a more permanent feature of our tax system than nonrecognition rules. Due to this difference, many nonrecognition rules are also more likely to become outdated than the realization requirement. As external conditions evolve such that nonrecognition rules may no longer be effective, however, we often fail to reassess and modify such rules. This Article extends these observations to tax laws beyond the realization requirement and nonrecognition rules, creating a framework to categorize tax laws in order to identify those more at risk for obsolescence. It then considers why tax laws may not be reconsidered as external conditions evolve. Finally, it determines whether prior proposals to prevent this fate are likely to be effective with respect to the identified categories of tax laws, finding that new strategies are required to address a previously relatively underexplored category of tax laws.