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

This Essay seeks to demonstrate that the interpretive use of standards in applying provisions of the Internal Revenue Code is not inconsistent with the rule of law. Part I discusses the relationship between rules and the rule of law and explains why we think so many tax scholars are drawn to a view of the tax law as consisting primarily of rules. We then demonstrate that the definition of income is properly understood as a standard. Part II addresses the descriptive dimension of this claim, summarizing and expanding our previous discussion of the definition of income to determine whether the term is susceptible to construction as a rule. We show that even a brief trip through some of the litigation required to determine whether certain items are income leads to the conclusion that the definition of income is not a rule. Part III addresses the normative dimension of our claim. There, we tease out the functions served by interpreting income as a standard and question where the interpretive authority lies with respect to the Code in order to argue that income ought to be treated as a standard. Part IV turns to several examples of what Professor Lawrence Zelenak regards as either a “disregard” or an “underenforcement” of the law to clarify our understanding of interpretation. We then conclude by observing that the Code does not “read itself”: Deciding whether a provision is itself a rule or a standard is itself an act of interpretation. Moreover, interpreting a provision as a standard is fully consistent with the rule of law

Social Justice as an Essentially Contested Concept: Theoretical and Practical Implications for “Access to Justice”

In the current hyper-partisan environment, it is tempting to treat those who disagree on social, political, and even legal issues with disdain—as willfully ignorant or irrational or profoundly mistaken or even evil. This is surely true with respect to debates on issues regarding access to justice. Besides courtesy, there is an important philosophical reason for avoiding this attitude and treating opponents in our arguments about access to justice with respect: W.B. Gallie’s idea of “essentially contested concepts,” which, as Gallie describes it, includes social justice. My goal in this essay is to illustrate how understanding social justice as an essentially contested concept helps us see more clearly what is at stake when we debate issues pertaining to access to justice

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

Social Justice as an Essentially Contested Concept: Theoretical and Practical Implications for “Access to Justice”

In the current hyper-partisan environment, it is tempting to treat those who disagree on social, political, and even legal issues with disdain—as willfully ignorant or irrational or profoundly mistaken or even evil. This is surely true with respect to debates on issues regarding access to justice. Besides courtesy, there is an important philosophical reason for avoiding this attitude and treating opponents in our arguments about access to justice with respect: W.B. Gallie’s idea of “essentially contested concepts,” which, as Gallie describes it, includes social justice. My goal in this essay is to illustrate how understanding social justice as an essentially contested concept helps us see more clearly what is at stake when we debate issues pertaining to access to justice