Author: Richard K. Greenstein

People laughing

Toward a Jurisprudence of Social Values

Legal theory wrestles perennially with a variety of seemingly intractable problems. I include among them questions about what we are doing when we interpret legal texts, the distinctions between hard and easy cases and between rules and standards, and the meaning of the rule of law. I argue in this essay that we can, in fact, make substantial progress toward clarifying these problems and making them much more intelligible by keeping in mind the role that social values play in law. And that role is fundamental: social values constitute the law. Part I sketches a jurisprudential framework for thinking about the relationship of social values to law. Part II suggests the utility of that framework by showing how it casts new and revealing light on the important jurisprudential puzzles noted above – puzzles about interpretation, hard and easy cases, rules and standards, and the rule of law. Download the Paper from the Washington University Jurisprudence Review  

Tax

The Rule of Law as a Law of Standards: Interpreting the Internal Revenue Code

In a recent essay on what he identifies as “customary deviations” from the dictates of the Internal Revenue Code, Professor Larry Zelenak asserts that the Internal Revenue Service has regularly created administrative deviations from the Code that produce taxpayer-favorable results that cannot be challenged in the courts because taxpayers lack standing to bring such challenges.[1] He worries that “the lack of any judicial check on unauthorized giveaways by tax administrators threatens rule-of-law values,” [2] and he concludes by proposing “legislation aimed at retaining the practical advantages of customary deviations while assuaging rule-of-law concerns.” [3] To illustrate the customary deviations that he identifies, Professor Zelenak analyzes the IRS’s announced decision not to take the position that employee-retained frequent flyer miles earned on employer-funded or business travel produce income when used for personal travel by employees, but observes that other examples abound. As Professor Zelenak notes, we have devoted some effort to exploring the gap between the expansive literal meaning of various statutory and judicial definitions of income and the narrower meaning that emerges from IRS policies …