Tax Shelters, Tax Law, and Morality: Codifying Judicial Doctrines

Дата публикации: 07-10-2026 00:00:00

The premise of this article is that theoretical examinations of the working and interpretation of rules, such as Professor Frederick Schauer's Playing by the Rules, can illuminate and perhaps advance the debate about corporate tax shelters. In his book Schauer posits a close relationship between rules and their justifications. He further argues that rules not only foster predictability, reliance, and certainty, but also serve as devices for the allocation of power. This paper uses Schauer's work to suggest that the recent corporate tax debate has conflated concerns about the appropriate level of generality for tax shelter anti-avoidance rules with concerns about separation of power, failing to sort out the relationship between these different aspects of rules. Taking these concerns as separate parts of any analysis clarifies the issues at stake and their possible resolution. In particular, such an analysis underscores the extent to which parties to the debate disagree about...

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