Right now I’m deep under water, what with the start of a new semester in which I’m teaching both my Tax Policy Colloquium (covering a bunch of new papers every year) and my first-ever Law and Literature seminar (with a novel or shorter work each week). Plus I have several works in progress that I need to get back to once I can, which will not be right away.

But as I think about down the road, I have a project in mind that I am wondering about – would it be of interest? – Is it publishable? – Would it attract interest in the field? – etcetera. It would be a book, but unlike all of my previous books a collection of essays, mostly but not all previously unpublished, that are linked thematically only at a broad level.

As background, some years ago I wrote a piece about Henry Simons, available here. And this past summer I wrote a piece about Stanley Surrey, available here. The latter hasn’t appeared in print yet, but I’ve promised it to a volume of pieces about Surrey in the aftermath of the belated publication of his memoirs.

It occurred to me: What if I had a book of such pieces, about prominent 20th century American tax academics? Each piece would take whatever angle I thought was interesting with respect to that individual, as opposed to attempting biography or comprehensive review. For example, if I wrote about E.R.A. Seligman, the question that would interest me starting out is why on earth did he write that crazy American Economic Review piece / amicus brief in Eisner v. Macomber that led to the absurd result in that case? (This is not suggested muckraking – he was evidently a high-minded guy, but somehow he got onto this train, and I don’t know if there’s anything in his archives, if they exist, that would shed light on his intellectual process.)

Others I might write about include a couple of people I knew well – Walter Blum and David Bradford. Very possibly, William Andrews, whom I also knew decently well. Plus definitely Boris Bittker, and I’d think about whom else. But definitely not anyone in the Warren-Graetz generation or younger.

Obviously this would not be anything remotely approaching a book with mass market appeal. But maybe enough appeal within the biz to be worth doing? Would a university press consider publishing such a thing? I just don’t know – offline feedback welcome!

 When I go to the health club, I need to listen to music to get through the drudgery, and for it to work I really need to be familiar with what I’m listening to.

The last few times, I’ve been playing my way through the Rolling Stones’ collection of singles through about 1972, called the London Years or something like that. Have often had the Beatles in mind while listening, since they were operating in parallel at this time. Some quick thoughts:

1) When the Stones play standard blues stuff, they’re very good, but not I think brilliant or revelatory.

2) On the other hand, Jagger and Richard were utterly brilliant pop singles songwriters. E.g., although Satanic Majesties was a bust album (albeit, with a couple of good songs), they wrote some of the era’s definitive psychedelic singles.

3) While their production and finish could sometimes be more slapdash and less thought-through than the Beatles’, that was more of an issue on the albums’ second-tier cuts. Their singles are imaginatively and cleverly produced, with orchestra etc. added for color effectively.

4) One greatly appealing feature of the early Jagger is his vulnerability. This got lost when he became a preening superhero.

5) Brian Jones was a great rhythm player and especially welcome, as the 60s went on, for his mania about finding interesting and odd instruments to play instead of just guitar.

6) Bill Wyman was a simpler bass player than McCartney. Much less melodic range and counter-melody. But very in-the-pocket and effective, often just what the music seemed to need.

7) Obviously Charlie Watts was a great drummer. He and Ringo seem to have done similar, very interesting things in the high psychedelic period. (E.g., Rain vs. Ruby Tuesday or Dandelion.)

8) Stopping here because I haven’t quite reached 1968 yet, a year in which they dramatically changed and started pushing towards the high point of Exile on Main Street.

 Now that the Inflation Reduction Act has been signed into law, I thought I’d add some quick comments about it – or specifically about the book minimum tax. which reaches the “adjusted financial statement income” (AFSI) of “applicable corporations.” In general, an applicable corporation has had annual AFSI averaging $1 billion over the last three years. (But this is a bit of a one-way ratchet – once on, something extra is needed to get one off the list of companies subject to the tax.)

AFSI is the net income or loss reported on the company’s “applicable financial statement,” but with certain adjustments. Perhaps the biggest adjustment is that accelerated depreciation deductions, to the extent in excess of those already taken into account in the book measure, are subtracted from AFSI and thus do not lead to minimum tax liability.

For a U.S. company, this is in effect a worldwide tax at a 15 percent rate, with foreign tax credits being allowed. So the marginal reimbursement rate (MRR) for foreign taxes paid generally is 100% until one reaches the limit. There are also rules for foreign-parented multinational groups that have either US subsidiaries or foreign subsidiaries with a US trade or business. In general, affiliated groups are taxed as if they were a single company. However, as got a lot of attention in the press, Senators Sinema and Thune succeeded in removing from the final version a provision that would have aggregated the income from unrelated portfolio companies under common ownership of an investment fund or partnership. This may help, e.g., with their avoiding the $1 billion AFSI test.

With that as background, here are ten quick comments:

1) From an empirical standpoint, it will be very interesting to see how this works out. Who ends up paying how much under it? We are going to learn a lot from what happens in the next few years – not just the payment of minimum tax, but also effects on how much US and foreign tax one pays because the provision affects the payoff to minimizing them.

2) For big companies that are guaranteed to meet the $1 billion AFSI test, the most obvious tax planning idea is manipulating AFSI. That, in turn, would most obviously involve manipulating reported book income.

Accounting professionals almost unanimously HATE the incentives that this creates. But it is worth noting that the managers in publicly held companies often appear to be interested in overstating financial statement income relative to “true” or economic income. This pushes the other way, so it doesn’t automatically need to result in overall distortion being worse. More complicated, certainly.

Studies of the book income preference that was in the corporate AMT for the years 1987-89 showed a lot of increased manipulation, leading (the authors concluded) to a less informative measure for financial markets. But note that the provision at issue there was pre-announced as being for 3 years only. An ostensibly “permanent” measure may play out differently.

3) A second way of reducing one’s minimum tax liability is to make more investments that can be expensed for tax and thus also for AFSI. But if these are real investments then there are certainly issues of expected pretax profitability that will be important to the resulting behavior.

4) Paying more foreign taxes, or at least not incurring costs to avoid them, is another tax planning response. A 100% MRR for foreign taxes does not on its face make one want to pay more of them, and note that the minimum tax also in effect has a 100% MRR for US corporate income taxes otherwise paid. But there are still various margins here that tax planners will explore. Beyond being less willing to incur real costs in avoiding foreign taxes, one may also have extra reason to try to incur taxes in lieu of other expenses that would merely be deductible from AFSI.

5) The tax presumably discourages mergers that would lead the parties to collectively meet the $1 billion AFSI test (where they would individually fall short). But it encourages mergers between companies that would be subject to the minimum tax and those that are paying more than 15% globally. In effect, the latter’s “excess” global tax payments go to offset the former’s minimum tax liability instead of being “wasted.”

6) There is an AMT credit, so that if one (say) has a 10% global rate in Year 1 and a 20% global rate in  Year 2, one gets to offset the Year 1 minimum tax liability against one’s Year 2 US regular corporate tax liability. But I gather that a Year 2 minimum tax credit couldn’t be used against Year 1 liability. Plus, one doesn’t get a US minimum tax credit against foreign tax liabilities that proved to be high in the “wrong” year.

7) Companies subject to the tax will have an incentive to do careful planning under the provision. E.g., they may want to ensure that their global rate on AFSI, as computed under the rule, stays at about 15% annually rather than fluctuating up and down (although the AMT credit does address this issue to a degree).

8) I have written elsewhere about my view that, all else equal, minimum taxes are generally not a great approach. But there is a “compared to what” issue in the provision’s defense (just as there is with respect to its use of book income) given that other, arguably superior, provisions were not going to be passed.

9) While the new book minimum tax is not identical to Pillar 2 of the OECD/G-20 global tax  reform framework, Reuven Avi-Yonah and Bret Wells have recently argued that it moves significantly in the direction of increasing US compliance therewith.

10) One thing we learned from the 1986 Act’s corporate AMT is that these provisions may tend to die the death of a thousand cuts over time. Lobbyists seeking to narrow the corporate AMT base often find that this is sufficiently lacking in salience to be easy pickings legislatively. Hence the 1986 corporate AMT moved far in the direction of undoing itself even before it was officially repealed. I would certainly be unsurprised if this happened again. Indeed, it has arguably already started with the depreciation change, which might conceivably prove to be a harbinger of future legislative efforts taking out additional items.

 It turns out that the Stanley Surrey piece I posted on SSRN was not actually my most current draft. I somehow posted one that lacked the brief Conclusion  that goes at the end. The truly current version (which I believe is the same as that which I posted, except for its having the Conclusion) is available here.

 Here is our schedule of public colloquium sessions with speakers for fall 2022. Assuming that COVID restrictions continue to decline, all sessions will be fully live, and will be followed by dinner nearby with the speaker and a group of about 8 people total (including interested students). All sessions will meet from 4:25 to 6:25 pm, in the NYU Law School main building, Vanderbilt Hall, room 202.

1) Tuesday, September 13: William Gale, Brookings Institution.

2) Tuesday, September 27: Jennifer Taub, Western New England University Law School.

3) Tuesday, October 11: Bridget Crawford, Pace Law School.

4) Tuesday, October 25: Alex Raskolnikov, Columbia Law School.

5) Tuesday, November 15: Goldburn Maynard, Indiana University, Kelley School of Business.

6) Tuesday, November 29: Ariel Jurow Kleiman, Loyola Law School, Los Angeles.

A few quick additional notes: (a) I am hoping that we will be able to offer “hybrid” attendance by people who are interested in the sessions but can’t make it to our NYU site. But don’t know yet how the law school will be operating in this respect.

(b) In general, these public sessions meet every other week, Each is preceded by a class-only session discussing the same paper just with the students (albeit possibly with the author’s participation, in person or remotely). However, the November 15 session comes three weeks after its precursor, because Tuesday, November 8, is Election Day. Also, our first week of class is Tuesday, August 30, but this will be a general introductory session for the students, not focused on a particular paper.

(c) Back in the days when we had 14 public sessions instead of 6 –  because the semester was a week longer, and I had a co-convenor with whom to share the work – I took a certain pleasure in the concept: “And now for something completely different.” In other words, each week’s paper might have absolutely nothing in common with that from the week before. I both found this personally refreshing and felt that it helped to show the students just how intellectually diverse and far-ranging a field tax policy is or can be. The downside was that it could be a bit overwhelming for people.

(d) This fall, by contrast, with just 6 papers, I feel the optimal approach is a bit different. There will be greater topical continuity, and something of a general theme. Most of the papers will address issues around inequality, in one way or another – although I have told the authors that this should not entirely get in the way of their writing and presenting whatever is of greatest current interest to them (and would work for us). Still, this focus will largely hold. That said, there will be a wide diversity of approaches among our speakers, who differ greatly in their interests and methodologies. Also, inequality itself is a very broad topic, as the papers will collectively help to make clear.

 I have just posted on SSRN a  completed draft of an article that I wrote earlier this year on Stanley Surrey. You can download it here.

The abstract goes something like this:

Nearly forty years after his untimely death, Stanley Surrey, the renowned Harvard law professor (and Treasury official), remains perhaps the most important and influential tax law scholar in American history. The recent publication of his highly illuminating memoirs offers a convenient occasion for reassessing his work.
In offering such a reassessment, this essay takes its title from William F. Buckley’s 1974 observation that, while Surrey claimed to analyze tax policy issues with “scientific detachment,” in fact he was a tax “moralist,” whose policy recommendations were “based on a highly articulated set of personal value principles.” Largely agreeing with Buckley as a descriptive matter, the essay considers what Surrey’s work both gained and lost intellectually by hewing so strongly to a set of career-long, deeply held beliefs. Along the way, the essay contrasts Surrey’s moral and intellectual certainty with the skepticism and resistance to grand system-building of Boris Bittker of Yale Law School, Surrey’s only mid-century rival for intellectual leadership of the tax legal academy.

UPDATE: I somehow failed to upload a draft of the paper the first time around. Here it is, definitely with the paper available for download.

 My new book, Bonfires of the American Dream in American Rhetoric, Literature and Film, is out now. Here is the Amazon link, and here is the publisher’s (Anthem Press).

Here is the publisher’s description: 

How could American social solidarity have so collapsed that we cannot even cooperate in fighting a pandemic? One problem lies in how our values mutate and intersect in an era of runaway high-end inequality and evaporating upward mobility. Under such conditions, tensions rise between our egalitarian and democratic traditions on the one hand, and what we often call the “American Dream” of self-advancement and due reward on the other.

In our current Second Gilded Age, as in the first one from the late nineteenth century, the results of economic competition appear to suggest, falsely, that some of us are “winners” who deserve everything they have, while others are contemptible “losers.” The rich ostensibly owe the poor nothing – not even compassion or respect, and certainly not material aid through government.

In Bonfires of the American Dream, Daniel Shaviro develops these themes through close studies, in social context, of such classic novels and films as Atlas Shrugged, The Great Gatsby, It’s a Wonderful Life, and The Wolf of Wall Street. He thereby helps to provide a better understanding of what, apart from racism, has in recent years caused things to go so wrong culturally in America.

And here are the blurbs (none by people whom I have ever met – these are not from the network of back-scratching personal favors):

“This is a wonderful book, a page-turner about popular American thinking about the American Dream. Shaviro shows how much of our cultural experience consists of economic fantasies, and how much in turn those fantasies shape our culture and our politics. Brilliant, accurate, surprising, and unfailingly interesting.” — William Flesch, Professor of English, Brandeis University, USA.

“These readings of film and literature are subtle, convincing, and fascinating. Further, since they are written in short sentences, in plain yet lively prose, with carefully explicit conclusions, they are wholly accessible to the lay reader. Their theme is of exceptional interest to us all, in our anxious perception that American democratic values may be on course for disintegration.” — Professor Chris Fitter, Department of English and Communication, Rutgers University, USA.

“A selective but fascinating tour of American popular culture (Atlas Shrugged, The Great Gatsby, It’s a Wonderful Life, The Wolf of Wall Street) that illuminates destructive discrepancies between American ideals and practices and bitter divisions between rival ideals since the founding. One wonders how America has survived—and if it should.” — Professor Steven Johnston, Political Science Department, The University of Utah, Salt Lake City, USA.

 I now have two completed article drafts that I have not as yet posted anywhere. But they will be available in due course. Each has a presumed publication site (outside of the usual law review rat race), and I would anticipate posting each on SSRN before it appears in print.

The first, tentatively entitled “Moralist” Versus “Scientist”: Stanley Surrey and the Public Intellectual Practice of Tax Policy, should be appearing in a book of essays concerning Surrey that Lawrence Zelenak and Ajay Mehrotra plan to release, in relation to their recently published edited volume of Surrey’s memoirs.

Its abstract goes something like this: “This essay takes it title from William F. Buckley’s 1974 observation that, while Surrey claimed to analyze tax policy issues with ‘scientific detachment,’ in fact he was a ‘tax moralist,’ whose ‘policy recommendations were based on a highly articulated set of personal value principles.’ Largely agreeing with Buckley as a descriptive matter, the essay considers what Surrey’s work both gained and lost intellectually by hewing so strongly to a set of career-long, deeply held beliefs. Along the way, the essay contrasts Surrey’s moral and intellectual certainty with the skepticism and resistance to grand system-building of Boris Bittker of Yale Law School, Surrey’s only mid-century rival for intellectual leadership of the tax legal academy.”

Although I myself am temperamentally closer to Bittker than Surrey, I would say that here I rather take Surrey’s side. The piece also discusses (although Surrey never did, at least in writing) the impact that anti-Semitism may have had on his thinking. (He was a prominent, at least ethnically Jewish, intellectual during am era of rampant, albeit not wholly dominant, mainstream American anti-Semitism.)

The second, a first draft of which I have just now completed, is entitled Would an Unapportioned U.S. Wealth Tax Be Constitutional, and What Does That Mean? It is ticketed for an economics journal, and aimed primarily at non-legal readers. I haven’t actually written the abstract yet. But a large part of the aim is to explain legal reasoning to non-lawyers who are used to substantive areas in which a conclusion may be objectively, and provably, either right or wrong. I also express my views on the current debate about wealth taxes, and about taxing rich people’s unrealized income, leaning heavily on others’ research as this is not an area into which I have delved extensively on my own. And I discuss the relevance to the analysis of the current Supreme Court’s right-wing ideological orientation.

 My new book, Bonfires of the American Dream in American Rhetoric, Literature, and Film, is coming out with Anthem Press in a couple of months. Here are the blurbs (names redacted for now, although they will appear in the volume when it comes out):