Tax law is political. That is a fundamental assumption of critical tax theory. Critical tax scholars ask why the tax laws are the way they are and what impact tax laws have on historically disempowered groups, such as people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. Far from being an organized “movement,” however, critical tax theory is a label that applies loosely to the work presented in this volume.

Though working mostly independently of one another, these scholars have all been influenced by the seismic intellectual shifts in the legal academy that occurred from the 1970s through the 1990s, namely, the critical legal studies movement and its progeny – critical race theory, feminist legal theory, and queer theory. Scholars working in those fields encouraged investigation into the law's unrevealed biases. They sought to demonstrate how accepted understandings of the law are constructed and contingent. They inspired both their contemporaries and those who work in their wake – including critical tax theorists – to question aspects of the law that might otherwise seem normal, natural, or plainly incontestable.

In the last fifteen years, there has emerged a small but steady stream of scholarship that, taken together, constitutes an incipient body of “critical tax scholarship.” Specialty law reviews and journals have played a key role in bringing this new generation of critical analysis to the marketplace of ideas. This book, however, is the first to present critical tax scholarship as a distinct mode of inquiry.

Critical tax scholars face a high hurdle to gaining entry into – and thus influence on – mainstream tax policy debates. The hurdle is the conventional wisdom that tax policy is a neutral terrain on which experts engage in technical, quasi-scientific debates about the optimally efficient distribution of the tax burden. For those who accept this conventional wisdom, emotionally and ideologically charged topics – such as race, ethnicity, gender, sexual orientation, class, and disability – simply have no place in tax policy discussions. These topics are best discussed – and social problems related to them are best resolved – outside of the tax realm.

In their contributions to this chapter, Dorothy Brown, Lisa Philipps, and Nancy Staudt reexamine different aspects of this conventional wisdom and undermine it in ways that may help critical tax scholars to gain entry into (and influence on) mainstream tax policy discussions. First, in Racial Equality in the Twenty-First Century: What's Tax Policy Got to Do with It?, Brown questions the notion that the U.S. tax system is neutral with regard to race. In the excerpted portion of her article, Brown explores how the federal government, on the one hand, subsidizes employers who engage in race discrimination by allowing them to deduct employment discrimination damage awards, but, on the other hand, adds to the injuries suffered by the victims of employment discrimination by requiring them to pay tax on those same awards. Brown proposes several changes to the tax laws that would rectify this problem and discourage employers from discriminating on the basis of race.

The one area of critical tax theory that most obviously faces the hurdle of the myth of the “neutrality” of the tax laws is the intersection of race and taxation. Mainstream tax scholars are wont to point out that the tax laws are, on their face, race neutral. After all, we do not have one rate schedule for whites, another for African Americans, a third for Latina/os, and so on. The contributions to this chapter illustrate the fallacy of this myth of “neutrality,” underscore the importance of viewing tax through the lens of race, and, at the same time, nicely illustrate the influence that critical race theory and its methodologies have had on critical tax scholars writing in the area of race and taxation.

Deftly using the narrative voice in Tax Counts: Bringing Money-Law to LatCrit, Alice Abreu opens the chapter with “a lesson from Cuba” and an accompanying call to scholars interested in social justice to heed the importance of tax (and “money-law” more generally) as a site for battling subordination. Given her own experience, Abreu urges Latina/os to embrace the study of tax and to enter the tax field because of the diverse perspective that they can bring to this area of the law. To illustrate her point, Abreu identifies how her being Cuban and her immigrant background have shaped her general perspective on tax law and her specific scholarly contributions to the field.

Eschewing the controversial technique of personal narrative, the chapter's remaining contributors turn to statistics, social science research, and conventional legal analysis to explore the tax system through the lens of race.