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Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option (Test)

Democratic voters in America are currently witnessing a contest between three broad visions of the role of the federal government. One vision is “democratic socialist” in nature and argues for governments to be the exclusive provider of a range of “core goods”—goods central to a life of full human dignity. This is a common theme of democratic socialist proposals on healthcare, for example. Another vision is market-based: markets should continue to play a leading role and the role of government should be limited to supporting or at times subsidizing access to core goods by low-income earners. A third position is “democratic liberal” in character (or what Jospeh Stiglitz has called “progressive capitalist”). It argues that governments should guarantee universal access to core goods, but not necessarily through exclusive public provision. Instead, it suggests that governments should seek to achieve universal access to core goods in one of two ways: either through an appropriate mix of sticks and carrots for private providers (taxes and subsidies), or a mix of public and private provision.

Enter the idea of the “public option” outlined by Ganesh Sitaraman and Anne Alstott in The Public Option: they argue that the government should provide either a “competitive” or “baseline” public option for citizens wanting to access core goods such as healthcare, housing, education, or childcare. To this list, they also add services such as banking, retirement savings, credit reporting, public defense, and guaranteed employment.

We have written elsewhere about how and why we support a democratic liberal approach over both a more full-blown democratic socialist or free-market approach to the provision of core goods. In short, we think it provides the best mix of dignity, freedom, and equality for all citizens and is the most realistic way of achieving universal access to a decent social minimum—by harnessing the strengths of both the state and markets.

In key respects, Sitaraman and Alstott are also democratic liberal in their approach (they are certainly progressive capitalists): they emphasize the role of both government and private markets in providing access to core goods and services. As they note, they do not “have blind faith in private public administration” or “private firms.” (P. 126.) Instead, they suggest that we must ask “which is the best form of administration given a particular context, history, and the nature of the task at hand.” (P. 126.)

The Public Option offers creative and fresh thinking about how America could in fact realize a democratic liberal vision. For example, the authors propose a public option for retirement savings that involves automatic enrollment, portable benefits, and “simple, sound investment choices with low fees.” (P. 142.) This model involves broad baseline coverage for all Americans and tracks some of the most successful features of the current Australian retirement savings system (though with more emphasis on public funds management). They also suggest a model of childcare that involves ambitious efforts to expand access to high-quality care for American children, and thereby improve childhood outcomes and parental labor force participation: a model of “public infant care (for kids under three), full-day public preschool (integrated with public schools), and public before-and after-care (integrated with public schools).” (P. 194.) And they canvas a range of options for a public option in healthcare. (Pp. 218-22.)

They also provide a cogent defense of the advantages of having the government play a role in providing core goods—advantages such as “economies of scale,” the protection of the vulnerable, the limits of regulation and subsidies in encouraging appropriate private provision, and the benefits of “yardstick competition.” In the classic economic theory of yardstick competition, a regulated firm is reimbursed based on the costs of similar firms. The modern twist on this envisaged in The Public Option is that public provision of goods or services—healthcare is the quintessential example—disciplines private providers by revealing information to consumers about the true cost of provision. In fact, this idea has origins in a 1932 speech by Franklin Delano Roosevelt in Portland, Oregon making the case for public provision of electrical power.

They might also have addedthat the state has important advantages in ensuring the appropriate quality of provision for certain core goods, as the quality of provision is notoriously hard to contract over for some goods and services. Hence, private providers tend to do worse than the government in providing quality (or decency) in areas such as prisons, immigration detention, or certain welfare services. Indeed, some scholars view incentives for the provision of hard-to-contract-on issues like “quality” as the key to understanding what assets governments should own, and therefore have residual control rights over (Hart, Shleifer and Vishny, 1997).

This form of democratic liberal intervention could not come at a better time; Sitaraman and Alstott are both leading contributors to debates over the role of government in achieving economic justice in America. And America is currently witnessing a debate that is not just about the future direction of the Democratic Party but the direction of the country itself.

While highly sympathetic to the approach proposed by Sitaraman and Alstott in this context, we note one significant challenge to the realization of this vision—especially for a “competitive” public option. If governments create a public option, but then do not subsidize it in any way, the public option will often do little to advance the goal of truly universal access: think of the U.S. Postal Service (USPS) with no government subsidy. It is hard to see how it would ensure deliveries to remote and rural areas at an affordable cost. It could only do so through substantial cross subsidies from urban customers or direct subsidies from the taxpayer. Indeed, this is one reason the U.S. government gives USPS monopoly rights over ordinary mail and spends considerable resources supporting the USPS—as a form of competitive and baseline public option. Last year, USPS lost $3.9 billion on revenue of $70.6 billion.

But there are also dangers to a government adopting a too-generous approach to subsidizing a public option, which is intended to operate in a competitive market—and to preserve genuine competition and individual choice. Too large a government subsidy, in this setting, can effectively undermine what economists call “competitive neutrality.” It can mean that private businesses have an extremely hard time competing with government-owned firms—because they are not doing so on a level playing field.

This is arguably the greatest challenge in designing a public option for something like health-insurance—too small a subsidy, and it is hard to see how the policy will live up to the ideal of “guarantee[ing] access to health care to everyone at a controlled (and affordable) price.” (P. 218.) Healthcare costs are likely to continue to rise, with new medical breakthroughs. And making sure that everyone has access to those breakthroughs is likely to require either a quite significant government subsidy or cross subsidy within private insurance markets (something that is often hard to achieve).

But too great a subsidy and it is hard to see how a public option will “serve as a benchmark and competitor to private options without crowding them out” (P. 218), as former Council of Economic Adviser Chairman Greg Mankiw has noted.

Some current elected officials are not too troubled by this possibility. They would be quite happy, over time, to see a public option (for example, health-care insurance) lead to a model of exclusive public provision—providing that is the result of consumer choice, rather than government mandate. Indeed, this is something that Sitaraman and Alstott themselves seem to think desirable in certain contexts.

That picture may be a little too simplistic, given the problem of competitive neutrality: if the government puts private firms out of business, by undercutting them through large subsidies to a public competitor, they leave individual consumers with limited real choice. This may be justified as part of an effort to guarantee truly universal access to a basic human right (such as health care). But it is not a true competitive public option. It is effectively government providing a universal baseline service or option, and it needs to be understood as such.

The bigger problem, however, is one of cost or affordability: if the government makes the competitive public option too attractive—through subsidies—it is likely to end up having to foot the bill for subsidies for millions of Americans, including many high-income earners. And that is when a public option—initially affordable—can end up becoming extremely expensive for the government, and therefore ultimately the taxpayer. In this context, the most effective democratic liberal policy is one that seeks to provide public subsidies on a more limited or an income-targeted basis.

Sitaraman and Alstott are alive to these kinds of complexities when talking about the challenges facing governments in deciding how much to subsidize private firms or how to impose price-based regulations on private providers, in the provision of core goods. (Pp. 55-65). Indeed, their analysis of the challenges is well worth reading as a valuable contribution in its own right to the current economic debate.

But when it comes to the design of their own preferred model—of public provision as a baseline or competitive option—they largely gloss over these same complexities. A big part of the design challenge in framing a public option is the level and cost at which the government should provide a service, and these are not questions that the book aims to answer in any detail. In part, this is inevitable, given the book’s intended audience and impact. And we support that focus. But it is also a potential weakness in the book and its prescriptions for the Democratic party and the broader American debate. Sitaraman and Alstott are surely right that U.S. government should play a larger role in promoting universal access to a generous social minimum or various core goods. The big question, however, is how it should do so—and whether taxes, subsidies, or direct public provision provide the best instrument. And on that, The Public Option substantially advances the debate but does not conclude it.

Cite as: Rosalind Dixon & Richard Holden, Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option (Test), JOTWELL (October 11, 2019) (reviewing Ganes Sitaraman & Anne L. Alstott, The Public Option: How to Expand Freedom, Increase Opportunity, and Promote Equality (2019)), https://zetasec.jotwell.com/towards-universal-coverage-reflections-on-the-promise-and-pitfalls-of-a-public-option-test/.

Caption Test

Beth Tucker Long

Beth Tucker Long

The death of John Gardner this summer, at age 54, is a fearful loss. This generous, multi-talented, and much-loved man was a world-renowned figure in several fields of jurisprudence, including not only the general topic of the nature of law but also in the special theories of criminal law, tort, and sexual assault. He was one of the pillars of Oxford’s outstanding strength in the philosophy of law. What irony that one of the last of his writings was titled The Twilight of Legality.

The article itself is something of an elegy for the imminent passing away of a still familiar self-conception of the law, and of the lawyer’s calling, that some will think already archaic. This is a conception of the lawyer as not merely a service-provider, but as public citizen having a special obligation to foster legality as a public good. This obligation in turn entails seeking justice according to law, and not merely justice between parties. John was conscious that his remarks might come across as cultural criticism, but he framed his subject as a philosophical puzzle: how to reconcile the trend toward ever-greater juridification of everyday life with legality, that is, with the rule of law? “Juridification” meaning: the manufacture of laws and legally enforceable non-law norms—especially contracts binding consumers to terms set in boilerplate language dictated by corporations.

At first glance no puzzle is apparent. More laws and more legally enforceable norms means more law to be ruled by, and more law to be ruled by means more rule of law, no? No. Beneath this specious surface, juridification conceals trends whose confluent effect is to erode the rule of law. One of these trends is a side effect of the capitulation of democracies to the demands of corporate power. Governments make a “pathetic display of legislative machismo,” (P. 3) by reflexively criminalizing whatever arouses the moral panic of the hour (so long as, I would add, the newly-to-be-criminalized class is powerless). In evidence, John cites a recent decade in which the UK created an astonishing 3000 novel criminal offenses. This is not as draconian as we would assume, because it is buffered by a counter-trend toward selective under-enforcement. But, as John points out, the counter-trend itself is alarming, and especially so for its insidiousness.

The rule of law, for law-and-order types, demands strict obedience by the public. Where that strict obedience is not forthcoming, then for the law-and-order types among us, officials ought to use lawless means. John rightly rejects this “symmetrical” view. The rule of law makes asymmetrical demands of officials and of citizens (as Rawls, among many others, recognized). Simply put, “We ordinary folk should laugh at stupid laws; officials, poor things, have to uphold them.” (P. 7.) When the law is ridiculous, or, worse, it is unknowable and unmemorable, the rule of law suffers because the law cannot guide us. It cannot rule us, only officials can. But officials, in turn, cannot rule us by law either, despite even their earnest efforts to do so, if too much is left to their discretion.

Of equal concern to John is the accelerating privatization of the domain of private law. This trend is most obvious to us when we agree to “click-through” to access on-line resources that would otherwise be closed to us. In the process of “agreeing” we waive rights too numerous and extensive even to want to know about; and the rule of law suffers, as Margaret Radin and Judith Resnik have argued. John focuses on one aspect of this: the take-it-or-leave-it consignment of consumer disputes to private arbitration. This kind of privatization is especially insidious when, as is typical, it uncouples dispute resolution and judicial oversight. Here, the familiar Diceyan objections to droit administratif—as judicially unsupervised bureaucratic lawmaking—are amplified by the fact the corporations that insist upon isolating legal power from legal oversight do so solely to maximize profit. The parties may benefit from the legal enforceability of private arbitral outcomes but the public good of legality goes unprovided.1 There is no common law, no judging with an eye to wider consequences, and no working pure of the legal doctrines that ought to guide the interpretation and application of contract terms.

John deftly debunks the libertarian notion that the law is coercive whenever it interferes with private orderings except when it enforces the supposed terms of private orderings; and he summarizes:

any effect that the law gives to contractual norms should be an effect that the law, through the courts, ultimately get to determine. And that implies, I suggest, no ouster of the courts’ final jurisdiction over questions of law arising under the contract, including its legal construction, which is an integral part of the determination of its legal effects. (P. 8.)

The global corporate behemoths are not (yet?) so far along on their way toward becoming outright Hobbesian Leviathans that they need not appeal to public governments to enforce their legal rights. Their ideal is “juridification without legality,” which can be seen as another aspect of what Elizabeth Anderson2 calls private government, and what Samuel Freeman3 counts as feudalism: the appropriation, for the purpose of extending private dominion, of the normative forms of public power.

What do these trends mean for those who would become lawyers, and those who train them? The germ of the article is his Irvine Lecture, delivered in 2015 to faculty and students at Cornell Law School. John concludes with reflection upon his career as a barrister, during which interval lawyers came to be thought of as a pricey category of service-providers. To invoke the lawyer’s special responsibility to assure “access to justice” is the easier part of tailoring lawyers to the service-provider template: “Much harder to integrate into the service-provider model…is our special responsibility, as lawyers, for upholding the rule of law. That is because the rule of law is for the most part a public good in which our clients may well have relatively little individual interest.” (P. 16.) Winning strings of victories for underdogs is not enough:

Today’s young lawyers…have a “special responsibility for the quality of justice” going beyond any that the original drafters of the Bar Model Code of ethics could have anticipated. For they face a world more hostile to legality, and yet more wedded to juridification, than any we have seen before. (Id.)

Tackling the special “evil of privatization” manifest in the displacement of legality by juridification is now an indispensable task of lawyering “in the best sense”—a task left to us to pursue without John Gardner along to guide us.

  1. On concierge justice between well-resourced commercial parties, see VIP Courts, Private Eye (July 2019), at P. 39.
  2. Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It) (2017).
  3. Samuel Freeman, Liberalism and Distributive Justice (2017), at 87-88.

Footnote break test

Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN.

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy;2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections.

Katz tells this story in three steps. The first step is the gradual criminalization of family non-support in the late nineteenth century. States adopted criminal penalties for family non-support, usually at the misdemeanor level, at the behest of overburdened charities using a discourse of paternal moral failures reminiscent of the “deadbeat dads” of more recent welfare reforms. Some criminalized non-support as a felony, but in most states misdemeanor non-support was judged sufficient to qualify for extradition, a tool thought of as necessary in an era of increasingly mobile family deserters.

  1. See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. Gender Race & Just. 617 (2012); Cynthia Godsoe, Redefining Parental Rights: The Case of Corporal Punishment, 32 Const. Comment. 281 (2017); Jeanie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Andrea L. Dennis, Criminal Law as Family Law, 33 Ga. St. U.L. Rev. 285 (2016).
  2. See, e.g., Suk, supra note 1; Dennis, supra note 1.
  3. See, e.g., Murray, supra note 1.
  4. See, e.g., Anna R. Igra, Wives Without Husbands: Marriage, Desertion, &Amp; Welfare In New York, 1900-1935 (2007); Michael Willrich, City Of Courts: Socializing Justice In Progressive Era Chicago (2003); Amy J. Cohen, The Family, the Market, and ADR, 2011 J. Disp. Resol. 91, 100-103 (2011).
  5. With exceptions as Katz notes. See, e.g., Amy J. Cohen, supra note 4; Janet Halley, What Is Family Law?: A Genealogy Part II, 23 Yale J.L. & Human. 190 (2011).
Cite as: Michael Froomkin, Footnote break test, JOTWELL (April 1, 2019) (reviewing Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN), https://zetasec.jotwell.com/footnote-break-test/.

Wp to twitter test post

Beth Tucker Long

Beth Tucker Long

This post update should show a smaller thumnbail author image. An alternate post update with minor tweak to the new filter. This is a new post for tweeting that uses a different profile image. Using a new filter to upload the author image (if it exists).

WP to Twitter Test post

Beth Tucker Long

Beth Tucker Long

As more and more states legalize physician aid in dying, it appears that the acceptability of aid in dying turns on three critical requirements—that the patients be competent to make medical decisions, that they be terminally ill, and that they self-administer the lethal dose of medication. From Oregon to Hawaii, every state that has legalized aid in dying has included these three criteria for eligibility. But a report from Canada on that country’s experience with aid in dying suggests that only two of the three requirements may be needed.

The three basic requirements help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination1 rather than the irrational choice of someone suffering from mental illness. Controversial cases of aid in dying have involved patients who were no longer able to express their wishes or who appeared to need psychiatric care.

Like Oregon and other states, Canada restricts aid in dying to adults who possess decision-making capacity and who are terminally ill, though Canada has a different definition of terminal illness (the patient’s death must be “reasonably foreseeable” rather than expected2 within six months). But Canada allows physicians and nurse practitioners to administer the lethal dose rather than requiring self-administration. And in the government’s most recent report on the country’s experience with aid in dying, health practitioners administered the medication in virtually all cases. Self-administration occurred in only 5 out of the 1,382 cases that were included in the report. (The Netherlands reports similar data—in 2015, physician-administration outnumbered self-administration by 829 to 22.)

  1. * This is the first footnote
  2. * This is the second footnote

Despite the fact that bisexuals are, by most counts, the largest sexual minority group in the United States, they remain woefully under-researched and under-theorized. This invisibility in the realm of research and scholarship may be tied to the fact that bisexual programs and organizations receive only a minuscule amount of funding compared to either gay or lesbian organizations. As one study noted, over a forty-year period, bisexual programs and organizations received less than 0.3% of the funding awarded to their gay or lesbian counterparts. See Anthony Bowen, Forty Years of LGBTQ Philanthropy: 1970–2010, 33 (2012). Furthermore, bisexuals face alarming physical and mental health disparities—including higher levels of mood and anxiety disorders and of suicidal ideation—compared to individuals of other sexual orientations, which may well be a consequence of the fact that bisexuality is stigmatized by both heterosexual and homosexual communities.

This background of invisibility and stigmatization helps illustrate the importance of Brian Dodge et al.’s Attitudes Toward Bisexual Men and Women Among a Nationally Representative Probability Sample of Adults in the United States, published in the journal PLoS ONE. The article—and the study on which it is based—fills an important gap in the existing research on bisexuality as to prevailing societal attitudes toward bisexuals and the persistence of common stereotypes of this group, despite the considerable advances in societal attitudes towards gays and lesbians. 

Prior to the publication of this article, the only published research to address such attitudes that was based on a nationally representative probability sample was a 2002 article by Gregory Herek in which he found that heterosexuals rated bisexual men and women lower than any of the other fourteen named political, racial, ethnic, and religious groups identified in the study—except for injecting drug users. See Gregory M. Herek, Heterosexuals’ Attitudes Toward Bisexual Men and Women in the United States, 39 J. Sex Res. 264, 268 (2002). While compelling, Herek’s findings have become outdated, particularly given the known advances in societal attitudes toward gay men and lesbians over the past decade and a half. Moreover, unlike the work of Brian Dodge and his colleagues, Gregory Herek was able to assess only heterosexuals’ attitudes toward bisexuals because the number of gay and lesbian respondents in his study was too low. Id. at 267. Because bisexuals are known to face prejudice from both the straight and LGBT communities and because this intra- and inter-group prejudice is thought to contribute to bisexuals’ poorer health outcomes, the information that Dodge and his colleagues obtained about gay and lesbian attitudes is crucial.

Dodge and his colleagues, who specialize in public health, medicine, and social work, asked their respondents to rate the extent to which they either agreed or disagreed with five stereotypes of bisexuals, relating to perceptions of confusion, perceptions of HIV/STI “riskiness,” perceptions of non-monogamy, perceptions of promiscuity, and perceptions of bisexuality as temporary. Because attitudes toward bisexual males are known to be more negative than those toward bi women, the researchers asked about attitudes toward each gender group separately, without separating out transgender men and women from either group.

Across all of the stereotypical statements regarding bisexual men and women, the authors found that the largest proportion of respondents—over one-third—neither agreed nor disagreed with each stereotype. Although it may appear on the surface that this result reflects neutrality toward bisexuals, in fact the result is quite concerning in that it appears to evidence a widespread unwillingness to disavow such stereotypes, whereas, with better-understood groups, one would expect respondents to readily recognize the perniciousness of stereotypes. Instead of recognizing the stereotypes as such, the largest proportion of respondents could be viewed as expressing indifference or perhaps lack of knowledge or understanding of bisexuals. Another cause for concern is that the authors found that attitudes toward bisexual men were in fact more negative across the board than those toward bisexual women. Although, for most of the stereotypical statements, these differences were slight, the negative attitudes were significantly stronger toward bisexual men on the question of the riskiness of contracting HIV or STIs from having sex with bisexuals. While, as the authors point out, there are several factors relating to the behavior of bisexual men that suggest that they are in fact less likely than members of other groups to transmit HIV, the study demonstrates that this stereotype of bisexual men as a bridge for HIV transmission is unfortunately alive and well. Finally, the study indicates that heterosexuals harbor more prejudice toward bisexuals than do gays and lesbians. Those who identified themselves as “other” or “asexual,” by contrast, demonstrated the least prejudice toward bisexuals.

While studies that utilize convenience samples are also valuable, the fact that the Dodge et al. study is based on a nationally representative probability sample is important because it means that the study provides generalizable information about our societal outlook as a whole. In an era when the United States government is dropping questions about sexual orientation from its own surveys and even forbidding agencies from mentioning some sexual minorities in their budget requests, the information uncovered in the Dodge et al. study will undoubtedly prove all the more valuable. See, e.g., Lena H. Sun & Juliet Eilperin, CDC Gets List of Forbidden Words: Fetus, Transgender, and Diversity, Wash. Post (Dec. 15, 2017). Moreover, this trend in the federal government is highly likely to lead to less research funding being available for the study of LGBT communities, which in turn will make studies based on nationally representative probability samples more difficult to conduct because of the expense of obtaining such samples.  

In short, this study will serve as an indispensable resource for legal scholars who conduct empirical work or who engage in normative scholarship on bisexuality. It provides a much-needed lay of the land as to prevailing attitudes regarding bisexuality, demonstrating that, although attitudes have improved somewhat over the past fifteen years, perceptions of bisexuals still lag behind those of gays and lesbians. Moreover, the study particularly highlights the need for strategies to reduce stigmatization of bisexual men.

Rules vs. Standards

Sarah Lawsky, A Logic for Statutes (Fla. Tax Rev., forthcoming), available at SSRN.

Professor Sarah Lawsky (Northwestern) has written a fascinating and thought-provoking essay on the logic of statutory interpretation—specifically as it applies to the Internal Revenue Code. Notwithstanding a long tradition of scholarship addressing the interpretation of legislative texts in general, careful attention to interpretation of the Code has received comparatively little attention. An important reason for this, as we have argued in previously published articles, has been the tendency to frame Code provisions as rules and to apply them deductively to the facts of particular cases. Such a practice pushes in the direction of a more-or-less mechanical interpretation of the Code, which in turn makes questions regarding statutory interpretation seem fairly uninteresting. Professor Lawsky’s essay engages directly and critically with this practice.

Professor Lawsky argues that while the application of statutes involves “rule-based reasoning,” it is “not best understood as merely deductive.” Rather, the proper logical model for understanding statutory reasoning is what Professor Lawsky calls “default logic.” She argues that application of the Internal Revenue Code does not proceed as the direct, deductive application of an individual statutory provision to a set of facts; rather, the structure of the Code comprises two different orders of rules: (1) “default rules” (if-then rules) and (2) priority rules (rules that establish the “relationship between” and the “relative priority of” the default rules). As an example, Professor Lawsky applies this more complex rule structure to Section 163(h) of the Code (which permits a deduction for home mortgage interest), and argues that default logic “more accurately reflects rule-based legal reasoning as actually practiced by lawyers, judges, and legislative drafters.”

What has prompted us to comment on Professor Lawsky’s forthcoming article is its conception of statutes, generally, and tax statutes, particularly, as rules. Professor Lawsky understands her project of developing a “logic for statutes” as explicating “rule-based reasoning,” and her proposed model for statutory reasoning is one that applies multiple orders of rules. But as we have claimed in our own work, a complex statute, including the Internal Revenue Code, cannot be reduced to rules. 1

To see where Professor Lawsky’s approach differs from ours, consider that her analysis explicitly “examines the structure of rule-based reasoning after ambiguities [in the statutory rule] are resolved and the meaning of the rule’s terms established.” As we see it, to by-pass engagement with the ambiguities of a statutory text is to neglect the very issues that form the core of statutory interpretation. As Karl Llewellyn, whom Professor Lawsky appropriately cites, famously argued, a statutory text is intrinsically susceptible to different constructions, and applying the text requires choices among those different constructions. These choices, we have argued, require taking into account a variety of often competing values. In the context of interpreting the Code, they include tax values, values having to do with the significance of statutes, and broader social values. And it is precisely because these values are multiple and heterogeneous that statutory provisions appear “ambiguous.” In short, ambiguities in statutes cannot be “resolved,” much less assumed away, without making decisions about which values will be advanced. Indeed, this swirl of relevant values renders the very rules on which Professor Lawsky’s approach depends—the default rules and the priority rules—ambiguous; that is, determination of just what the default and priority rules are requires the choices Llewellyn pointed to.

Moreover, when we sort through the complex of values relevant to interpreting tax statutes, it turns out that many provisions in the Internal Revenue Code are best interpreted not as rules at all, but as standards. As we have argued, for example, determining whether catching a record-breaking homerun baseball or receiving a haircut from one’s spouse constitutes “gross income” under section 61(a) of the Code requires that all relevant facts and circumstances be taken into account. That is, the definition of income is a standard, and the application of standards cannot be subsumed within Professor Lawson’s model of default and priority rules. That model simply will not tell us whether this or that accession to wealth counts as gross income under the Code.

Interpreting section 61(a) as a standard enables judgments about what is and is not income. However, those judgments (like all judgments involving the application of standards) are necessarily contestable and provisional, turning on debate over what facts and circumstances are relevant—the opposite of conclusions arrived at through deductive reasoning. In this sense we agree with Professor Lawsky about the inadequacy of a simple deductive model of statutory reasoning. Where we differ is in the reason for the inadequacy. Professor Lawsky believes that statutory reasoning requires complexifying the deductive model by adding priority rules to resolve conflicts among the default rules. We believe that what appear to be conflicts among statutory rules are often better understood as the indeterminacy that occurs when standards are applied to new facts and circumstances.

Our particular disagreements notwithstanding, Professor Lawsky’s analysis of statutory reasoning in the context of tax law is an important contribution to this undertheorized concern for practitioners and scholars. From our different perspectives we share the objective of showing that the application of the Internal Revenue Code is a more complex enterprise than has been traditionally thought. Her objection that statutory interpretation is “taken as simple in legal scholarship” seems to us a correct worry, especially when applied to tax analysis. Professor Lawsky’s essay vigorously engages with that mistaken view, and in so doing, pushes forward the development of this critical issue in tax jurisprudence.

  1. * See Alice G. Abreu & Richard K. Greenstein, The Rule of Law as a Law of Standards: Interpreting the Internal Revenue Code, 64 Duke L.J. Online 53 (2015); Alice G. Abreu & Richard K. Greenstein, It’s Not a Rule: A Better Way to Understand the Definition of Income, 13 Fla. Tax Rev. 101 (2012); Alice G. Abreu & Richard K. Greenstein, Defining Income, 11 Fla. Tax Rev. 295 (2011).
Cite as: Alice Abreu & Richard Greenstein, Rules vs. Standards, JOTWELL (May 26, 2018) (reviewing Sarah Lawsky, A Logic for Statutes (Fla. Tax Rev., forthcoming), available at SSRN), https://zetasec.jotwell.com/rules-vs-standards/.

Photo Plugin Test

Beth Tucker Long

Beth Tucker Long

Lorem ipsum dolor sit amet, an soluta ceteros mandamus his. Nominavi offendit accusamus ne duo, facilisis patrioque in mel. Ullum nonumy ne nam. Sea et dicant corrumpit, per utroque dissentiet cu. Harum prompta insolens at eos, ea mel solet maluisset, no eos case postea.

Melius numquam vix no, usu ne mazim choro. Ad vim regione recusabo, ut nusquam reprimique efficiendi eam, ne illud civibus vis. Per quaestio eleifend ut, causae viderer appellantur eu eum, his dicam doctus inciderint in. Ex libris omittantur qui.

Atqui causae et mea, mei ea putent viderer facilis. Omnesque appetere at vis, tation iisque ei ius, ne eius choro recusabo his. Ex nam esse vero, at est luptatum expetenda interpretaris. Percipit praesent similique nam eu, qui et sale summo eruditi. Diam scribentur has ei.

Nec malis periculis eloquentiam eu, aeque blandit sea an. Ex vim vocent vidisse, ius malis affert sanctus eu, ne pro expetenda assentior. Mei ei oblique malorum, enim fuisset ut eum, qui duis ullum integre et. Sumo posidonium nam in, tale aliquip nusquam nam ne, ea sea meliore fierent elaboraret. Ut vim adhuc pericula incorrupte, quo wisi diceret in. Ludus facete mea ne, eu has iisque sapientem assentior, cum te possim perfecto.

Vim essent labores feugait cu. Ei mel tacimates pertinacia. Sed aperiri salutatus eu, primis invidunt accusata ut vis. Est tantas volutpat at, malorum torquatos vis in.

Magna error nec te, pri id ignota volumus voluptua, ei mei eruditi rationibus efficiantur. No dicta oblique mel, quo liber epicuri id. Adhuc ipsum tollit his in, per constituto theophrastus reprehendunt cu. Has at eirmod laboramus concludaturque. Duis aperiri adolescens has et, mea ne brute aperiri, mei erat tollit ex. Sale dicit ad duo, mei movet congue quidam ut, mel quod fierent molestie ne.

Ne erroribus posidonium vis, ei nisl suas copiosae mea. Atqui prompta deterruisset ei has, te eum hendrerit abhorreant efficiendi. Zril repudiare pri ex. Pro quem reque petentium in. Noster putant ancillae sed et. Inani dictas instructior qui ei, at ius appetere maiestatis, solet albucius hendrerit et nec.

Oratio necessitatibus in nec. In alii ceteros usu. Et nec equidem consetetur. Vel ex imperdiet repudiare, no natum alterum gubergren ius.

Similique pertinacia vim ne, in habemus salutatus eum. Eu stet ludus scaevola quo. Per soleat laoreet ad, nec alia nihil quaestio te. Vix munere saperet adolescens no. Cu pri vocent aliquam referrentur, ut quas honestatis sed.

Duo lorem dicam sensibus ex, te accusam ancillae salutatus vix. Nulla commodo vis cu. Te nec veritus volutpat, per quas decore democritum ad. Commodo scriptorem efficiantur ex vim, ne vim elit invenire, usu decore audire suscipit an. Et mea rebum modus mollis. Elit dissentiet cu mei. Duo exerci aliquip ornatus te, te per feugait accommodare.