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Formulaically Expressing 21st Century Supreme Court Tax Jurisprudence
Houston Business and Tax Law Journal (2008)
  • Andre L Smith
This article uses a new conceptual framework for describing judicial deliberation over issues of law. I analyze the Supreme Court’s nine tax cases since the turn of the century—Gitlitz, Cleveland Indians Baseball, Fior D'Italia, Craft, Galletti, United Dominion Industries, Boeing, Banks, and Ballard—and represent the Court’s justificatory process using mathematic formula. In order to do this, I explain first that judicial deliberation over issues of law can be reduced to text, intent, purpose and modern dynamics. In other words, the Court chooses between competing statutory constructions by selecting the one that most coheres with most of our most important legal and social principles, i.e., text, intent, purpose and modern dynamics. Textualism, intentionalism, purposivism and dynamism describe these legal and social principles Second, each meta principle—each deliberative technique--can be represented by a distinct mathematic function. The text function includes plain meaning and context as factors. The intent function includes the different types of legislative history as factors. The intent function also includes as factors administrative and judicial precedents representing the putative intent of the legislature. The purpose function is comprised of consequences tethered to legislative expectations. And modern dynamics represent consequences judges consider which are untethered to legislative expectations. From this, I study the Supreme Court tax cases seeking to glean what relative emphasis the Court places on each function and factor. After examining the cases, I find (somewhat unsurprisingly) that the Court has adopted a legal process ethos towards deciding issues of law. The relative emphasis the Court places on each deliberative item depends on its perceived constitutional legitimacy. Hardly anyone believes considering text is constitutionally illegitimate. Thus, the Court places the most emphasis on it. Purpose and intent are similarly perceived as secondarily legitimate, and the Court places less emphasis on them than on text. Modern dynamics receive the least emphasis because it is the deliberative consideration least consistent with the Constitution. Still, more study is needed. The greatest utility from describing judicial deliberation mathematically relates to internal critique of deliberative techniques. How does one become not just a textualist, but a good one? Which indicia of intent should be emphasized most? Of all relevant consequences, which ones are purposive? And of purposive consequences, which should the Court emphasize most? Which dynamic consequences has the Court legitimated? I argue that mathematically representing textualism, intentionalism, purposivism and dynamism supports greater precision in the description and prescription of deliberative techniques.
  • textualism,
  • intentionalism,
  • purposivism,
  • dynamism,
  • pragmatism,
  • formalism,
  • originalism,
  • translation,
  • practical reason,
  • justification,
  • statutory interpretation,
  • statutory construction,
  • judicial deliberation,
  • mathematics,
  • formula,
  • functions
Publication Date
Citation Information
Andre L Smith. "Formulaically Expressing 21st Century Supreme Court Tax Jurisprudence" Houston Business and Tax Law Journal Vol. 8 (2008)
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