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.