Excerpted From: Diane Kemker, Teaching Critical Tax: What, Why, & How, 19 Pittsburgh Tax Review 143 (Spring, 2022) (104 Footnotes) (Full Document)


DianeKlein“Critical tax” is an approach to the analysis of tax law and policy that takes race, gender, sexual orientation, disability, citizenship/immigrant status, and other historically marginalized statuses into account, and does so in a way that is centrally focused on the role of tax law in creating and perpetuating persistent economic inequality and disadvantage. This descendant of Critical Legal Studies and Critical Race Theory has been around for more than twenty years. And yet, critical tax is almost entirely absent from the casebooks and syllabi used for the teaching of the core tax courses. This can and should change, and this Article is a practical guide to both why and how teachers of tax law should integrate critical tax perspectives into their courses.

Part I explores a basic question: What is “critical tax”? Part II advocates for the addition of critical tax perspectives to the teaching of tax law by describing some of the intellectual, pedagogical, and professional benefits associated with it. Finally, Part III shows tax teachers how to add these perspectives relatively seamlessly into traditional tax courses by providing an annotated bibliography of readily available readings that can be added to syllabi for the basic Federal Income Tax course. This bibliography is intended to provide some points of access to the critical tax literature; it is only a starting point, of course, and is neither comprehensive nor exhaustive.

The recommendation to include critical tax perspectives has precursors. In 2010, Professor Dorothy Brown published an essay titled “Teaching Civil Rights Through the Basic Tax Course” in the St. Louis University Law Journal. Professor Brown, at that point, framed her approach as “how to incorporate race and class into the basic tax course,” which she paraphrases in her title as “civil rights.” She was not, at that stage, arguing for the inclusion of distinctively critical tax perspectives; it was challenging enough at that time simply to advocate that race (and class and, in some cases, gender) be taken into account at all. Similarly, while Anthony Infanti and Bridget Crawford's 2009 anthology Critical Tax Theory: An Introduction collects many important early works of feminist, queer, and other “outsider” tax scholarship, it too is now more than a decade old, a decade during which the editors and many others have made numerous very substantive contributions to the literature. The legal academic and pedagogical landscape has also changed in the past decade, and Critical Race Theory is currently on everyone's radar. This Article, and particularly Part III, the critical tax bibliography, is intended to reflect this.

[. . .]

There is, as yet, no critical tax counterpart to Critical Race Theory: The Key Writings That Formed the Movement. This anthology, which collects important and influential materials created in the early years of CRT, is so widely known both inside and outside the legal academy that it appears in a 2003 painting by Kerry James Marshall, “SOB SOB,” that now hangs in the Smithsonian. Although there are some collections of writings in critical tax, none have achieved the canonical status of the “big red book.”

So rather than adding another book for students to buy, I recommend adding selected works of scholarship to the existing syllabus, as appropriate. Nearly all are available at no additional charge to anyone with a Westlaw or Lexis subscription; many are also free in open-source formats as well, and thus add no cost to the required course materials.

One way to add selected materials might involve matching articles tightly to specific Code provisions (for example, O'Donnabhain v. Commissioner and § 213, for a unit on deductions Alternatively, one might assign articles about broader topics that run through the Code, like the tax consequences of marriage or homeownership.

Another of the reasons I prefer individual articles to anthologies parallels my preference for cases over casebooks. Expecting students to read articles in their entirety, even when they exceed fifty pages, demonstrates an appropriate level of respect for the authors, and is not unreasonable in an upper-division elective course. Students, especially those facing an upper-class writing requirement, benefit from experiencing an argument unspooling at its own pace, and at its full length. Excerpts necessarily reflect the priorities and choices of the editor, rather than those of the author, and to the extent that critical tax allows marginalized and unheard voices to speak, there is a benefit to permitting them to do so in full, as intended. This is especially true for the materials that are now artifacts of a prior time in legal history, to allow them to convey the legal, social, and political environment in which the author was writing.

What I provide in the following bibliography are selections from (and additions to) my online bibliography, an idiosyncratic and evolving list of materials that can readily be added to a standard introductory Federal Income Tax course.

A final note about the bibliography: This Article argues for a somewhat narrower definition of “critical tax” than has been adopted by others. As a result, some of the materials listed below, including some of the older pieces, might not qualify as “critical” in the sense in which I urge that it be used, particularly going forward. However, they have been included because of their unquestionable influence (including on critical tax) or because others regard them as paradigm examples of critical tax. Pieces like this also allow a faculty member explicitly to address the question of what qualifies as “critical,” and whether, for example, all tax scholarship focusing on marginalized/outsider/minority identities is per se critical tax. Although that is not my view, I would not want to exclude important material used by those who do have that view.

Visiting Professor of Law (remote), Southern University Law Center. AB, Harvard University; JD, UCLA School of Law; LLM (taxation), University of San Francisco School of Law.