Tax: Different, Not Exceptional

Abstract

Tax is different from other fields of law, just as any field of law is different from others. But tax scholarship, judicial opinions in tax litigation, and public attitudes toward taxation have long claimed more than difference in doctrinal details. They have claimed that tax is different in kind from other fields of law—that it is unique. Some scholars have gone so far as to distinguish between “the legal system” and “the tax system.” Even though the Supreme Court seemed to kill tax exceptionalism in its 2011 decision in Mayo Foundation for Medical Education & Research v. United States, claims of tax exceptionalism have hardly abated. In this article we take on the concept of tax exceptionalism directly. We begin by accepting that scholars, judges, and taxpayers experience tax as different from other fields of law, but we then tackle the question whether these differences add up to tax exceptionalism. Our view is that they do not, and we believe that pragmatism provides a useful framework for identifying just what is mistaken about claims of tax exceptionalism.