Law Commons^™

Centralized Review Of Tax Regulations, Clinton G. Wallace

Faculty Publications

Centralized oversight of agency policymaking and spending by the President’s Office of Management and Budget is a hallmark of the modern administrative state. But tax regulations have almost never been subject to centralized review. The Trump administration recently proposed to require centralized review of tax regulations, but it is unclear what regulations would be subject to such review or how it would be conducted.

This Article examines the normative desirability of the longstanding approach of exempting tax regulations from centralized review, and the alternative of imposing such review. Scholars and policymakers have provided various incomplete justifications for excepting tax policy …

Congressional Control Of Tax Rulemaking, Clint Wallace

Faculty Publications

The notice and comment process is often touted as a mechanism for establishing political accountability, and providing a check on agency decision-making. Based on a survey of three years of recently proposed tax regulations, this Article shows that many notice-and-comment processes for tax regulations have been ineffective for these purposes. Fully one-third of the time, no one participated. The few participants there are have been heavily weighted towards private interests, which commented on approximately two-thirds of all proposed regulations from 2013 through 2015. In contrast, public interest groups commented on less than 24% of proposed regulations. If the notice and …

Legal Transitions And The Problem Of Reliance, David M. Hasen

Faculty Publications

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …