by Laura Kleinberg and Dennie Zastrow; edited by John Basenfelder
Professor Alice Abreu joined the faculty of Temple Law in 1985. She teaches a variety of tax courses, including corporate taxation and international tax. Her scholarship largely focuses on the formulation of federal tax policy. She recently sat down with Temple Law Review to discuss her latest research projects and how to pursue scholarly research.
TLR: Just tell us, first, generally about what it is that you spend your time researching. Very broadly, for our audience here.
AA: So, for the last couple of years Professor [Richard] Greenstein and I have been working on a series of articles essentially trying to bring jurisprudence to tax and starting from the premise that tax is law and tax ought to be regarded as law, and as law, it ought to have available to it, and part of its jurisprudence, all of the analytical techniques that exist in other areas of law. So that although many people, including many if not most tax professionals, think of the tax law as being a bunch of rules, the tax law, we think, is, as law, more appropriately and fulsomely thought about as containing some rules but also standards. And that once you understand some of the bedrock doctrines in tax as standards rather than rules, then the operation of the law and what you see becomes no longer a puzzle, but just the application of standards, which are indeterminate and have all the usual disadvantages and advantages of standards versus rules.
TLR: That’s very interesting. So is that what you’ve worked on in the past? There’s more than one paper in this?
AA: Yes, there are now a series of three published papers, and we are now working basically on a fourth and a fifth simultaneously, and what we’re hoping to do is eventually, after this fourth and fifth, and maybe there’s one more after that, turn it into a book.
TLR: Oh, that’s interesting. So a total of what, six? So for the one that you’re working on currently, can you give us a little idea of what that one is going to be about?
AA: So that one is, at the moment, the working title is “Tax is Every Law.” That one tackles the subject of tax exceptionalism head on. We think that part of what has isolated tax and prevented its adoption and embracing of normal jurisprudential analysis is this idea that tax is somehow fundamentally different. And the position we’re taking in this paper is that we think that tax exceptionalism really has two prongs or two facets, and one is the experience of the tax law. And on that, there’s a fair amount of really interesting psychological literature on how we process things psychologically and what things are salient and how that makes us react. It’s really fascinating work that suggests that there’s good reason why tax feels different. There’s no other area of the law that forces people to come before their government and bare their financial souls once a year and to do this, just to be in compliance with the law. You can’t mind your own business and keep the government away in the tax law. You’ve got to interact with the government and so that makes the tax law feel unique. But a number of those things, we think, there’s a difference between the sort of experienced exceptionalism of tax, or the duty to file a tax return, and the objective— what ought to be the objective analysis of the law. So that’s what we’re trying to tease out.
TLR: What would be the substantive, practitioner argument for why tax exceptionalism should still exist and should be treated differently?
AA: Well, I think, one easy answer is that everybody likes to feel special. And tax lawyers in some quarters are seen to be especially nerdy, and that’s not good. But in other quarters, they’re also seen to be especially smart, and that’s good.
TLR: That is very good!
AA: And sort of being the gurus of the tax law and being able to master this mysterious field that is incomprehensible and impenetrable unless you possess these amazing powers. So that’s good.
TLR: You’re focusing on tax exceptionalism. Do you think this sort of idea that tax law is different from other law has impacted the way the field has developed over time? Is that something that you’ve looked at?
AA: That’s a really good question. I think the answer is actually yes. I think it affects the way law students think of the tax law and that tax is, you hear law students say, “well gee, maybe I actually like this intro tax class, but if I wanted to be a tax lawyer, it’s so hard and it takes so long, and I have to get an LLM.” That is the only area in which people say, “oh yeah, I have to get an LLM.” And so, I also think the view of tax and the tax system as a system that takes from the private sector and transfers to the public sector makes the tax law seem as something that only people who represent or want to represent rich people or business enterprises ought to worry about. And although I think that’s demonstrably not true, because the tax system today is the biggest provider of government transfer payments from the public sector to the private sector, that’s how we fund the bulk of our transfers from the public to the private sector. The Earned Income Tax Credit, which as you all know is a refundable credit, it’s not just getting back money that you’ve paid in, but it’s, in many cases, the government cutting people a check. It’s the biggest federal transfer payment there is. It’s bigger than food stamps and TANF (Temporary Assistance for Needy Families) and all those programs put together. And now, of course, the ACA, the Affordable Care Act, is enforced through the tax system. And so the tax law is broader than simply transferring funds from the private sector to the public sector, but I think that perception hasn’t yet percolated down. So it’s kind of seen as law for rich people who want to be richer.
TLR: Just generally, what have you learned about the process of scholarly writing and research that you would think might help law review students writing their first-ever massive research paper?
AA: It’s really hard.
TLR: It is!
AA: I think the biggest challenge for me still is having a focused enough topic that I don’t end up going all over the place. There’s just so much interesting law and so many interesting issues that it’s just, it’s hard to know where to stop and how to keep things focused and be efficient and produce a piece of writing that really makes one point and makes that point thoroughly and well. And I think part of that for me, and I think in academia generally, is getting feedback from colleagues. And not just colleagues in your field, but some of the most useful comments I’ve gotten on drafts of papers have come from people who are not tax people, and I think this probably applies in all areas, not just because tax is the weirdo exceptional. But it’s fresh eyes and a fresh perspective.
TLR: Do you really think about how to make something unique, or do you find that that’s something that just happens as you go along? In certain areas, there are just so many things that have been written for years by brilliant professors, especially as a student coming to this, one wonders, “how can I possibly make some kind of relatively unique contribution to this?”
AA: I think every scholar worries about that. Sometimes I think for many of us it’s having an intuition and then following it. The uniqueness or the import of the idea doesn’t, I mean, for some people it may be a thunderbolt of lightning, and then they have the idea, but that’s not the way it’s worked for me. For me, it’s kind of like, I’m puzzled by something and I think about it. And I also find I don’t really know what I think until I write it.
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I find that writing, that coming up with a title and writing an introduction are, for me, vital. The title really forces you to [think]: what is it that you really want to say? What is the point of this? And it’s really hard.
TLR: Have you always written your scholarship about tax or have you ever went out of your comfort zone a little bit?
AA: Actually yes. For a couple of years, I was doing a lot of writing in a sort of part of jurisprudence that is referred to as Lat Crit—Latino Critical Studies. So that was sort of a movement of bringing a critical perspective from the Latino side, from those of us who have Latino roots. I’m Cuban. In fact, one of the articles I wrote when I was doing a lot of Lat Crit stuff I titled, “Cubans Without Borders.” [] And I did another piece that I titled, “Bringing Money Law to Lat Crit,” and that tried to make the point that critical scholars ought to be thinking about not just civil rights, which are obviously really important, but that economic rights and the parts of the law that deal not with civil rights but with economic transactions ought to be important .
TLR: That’s what money law is? The idea that there are other, maybe not as important, but almost as important things . . .
AA: Yeah, because economic well-being is important to be able to assert your civil rights. And there are connections between poverty and denial of rights, and economics matters. Those areas of law sometimes seem to have less representation from people who are progressive and have progressive values and I think we ought to be at the table. And if you don’t have that knowledge and that expertise, you can’t be at the table.
TLR: Do you think that’s just because there’s less guttural reaction, like when someone’s civil rights are violated, and you have that feeling, and then there’s also monetary and economic injustice, but there’s not [that same emotional reaction].
AA: It’s not as visceral.
TLR: I’m sure you’ve helped a lot of students writing their law review pieces over the years. Do you have any advice? Are there any pitfalls that you see that students should avoid when they’re researching, or just any words of wisdom?
AA: A fascinating and I think terrific dividend from teaching your class is that I’m now supervising three law review students writing their pieces. Which is great, because there’s all this tax law in the Law Review! I think definitely keeping the subject narrow enough and focused enough that at this stage in your careers you have something meaningful to say. And cabining it to where it’s within your ability. You shouldn’t be trying to reform the entire legal system and the world.
TLR: We’re very idealistic.
AA: Not that it may not need reformation, but yeah, I think that’s the hardest thing, just keeping it focused. And, of course, writing well. I think one of the great things that comes from working on any journal is that the level of attention to detail that you get will stand you in good stead no matter what you do.
TLR: Even just doing these cite checks, the level of detail involved in that—most students would not have thought it would take twenty hours to go through thirty different footnotes.
AA: And I will confess that I hated that. And I even thought about quitting law review because, who wants to spend the time? But my first summer at Dechert after the whole second-year law review experience, I realized that what I had learned as a result of this, as much as I had to be dragged to it kicking and screaming, really made me a much better lawyer. I think it’s an experience that as many people as possible should have. You also have the advantage of having several people take your writing and take it seriously and engage with it and really push you to clarify and to make it as clear and as concise as you can, and then eventually you internalize that, and you learn how to become a better editor yourself.