Dr Ira Lindsay
Dr. Ira K. Lindsay is a Reader at the University of Surrey School of Law where he teaches taxation and property law. Dr. Lindsay graduated with a B.A. in history from Swarthmore College and received a Fulbright Fellowship to study Russian history at the European University of St. Petersburg. At Yale Law School, he served as a teaching assistant for Contracts and assisted in the legal defense of detainees before military commissions in Guantanamo Bay. After graduating from Yale, he practiced tax law at Cleary Gottlieb Steen & Hamilton in New York City and served as a law clerk to Judge Stephen F. Williams at the U.S. Court of Appeals for the D.C. Circuit. Dr. Lindsay defended a doctoral dissertation in philosophy, "A Humean Theory of Property Rights," at the University of Michigan in 2014. From 2014 to 2016, he was a postdoctoral fellow at Dartmouth College in the Department of Philosophy and the Political Economy Project. Dr. Lindsay's research interests include taxation, property, jurisprudence, comparative law and political philosophy. His work has appeared in Legal Theory, Florida Tax Review, Santa Clara Law Review, Columbia Journal of European Law, and Studies in the History of Tax Law.
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This chapter argues that the importance of trust between actors within the legal system has important implications for legal method. Governance by law is a conventional practice. Conscientious officials prefer to follow the law if other officials do so as well, even at some cost to their other aims. But they are unlikely to do so when the law conflicts with their other goals unless they believe that officials with differing moral or political views will also follow the law in similar circumstances. For this reason, trust between actors in the legal system plays an important role in creating and maintaining the rule of law. This has implications for both legal interpretation and institutional design. In general, we should prefer legal methodologies that increase agreement about the content and proper application of the law independently of any epistemic considerations. Theories of statutory interpretation should therefore be chosen in part on the basis of how much agreement they generate between different interpreters. Different methodologies may be preferable in different areas of law. Textualist methodology may yield greater agreement in areas of law in which pervasive moral disagreement generates stark differences in legal intuitions, while purposivist methodologies may be preferable in areas of law in which there is wide convergence in judgment about the underlying normative issues. The result is a modest relativism about interpretive method.
Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.
Tax policy must address three fundamental questions: what is taxed, who is taxed, and how tax burdens are allocated among taxpayers. This chapter examines the ethical dimensions of these questions, including the merits of income taxation, consumption taxation and Pigouvian taxes, the tax treatment of families and of corporations, the justification of progressive taxation, and tax competition. It considers theories of tax fairness grounded in taxpayers’ ability to pay and in the benefits taxpayers receive from government as well as the perspectives of utilitarians, egalitarians, and public choice theorists.
Horizontal equity is the principle that people who earn equal income should owe equal tax. It has gotten a bad name. Although horizontal equity remains a textbook criterion of tax fairness, scholarly literature is largely hostile. Scholars ranging from the legal theorist Louis Kaplow to philosophers Thomas Nagel and Liam Murphy question its conceptual coherence and normative significance. The crux of the case against horizontal equity is that it seems irrational to worry about the relationship between pre-tax income and tax obligations rather than determining tax policy in light of what our best theory of distributive justice tells us is the best post-tax outcome. I argue that horizontal equity is best understood as a compromise principle for people who disagree about deeper principles of distributive justice. The debate over horizontal equity reflects two distinct ways of thinking about fairness. One approach starts with principles that specify a just distribution of income, resources or utility and uses these principles to derive appropriate tax laws. A second approach analyzes fairness norms as stable and mutually advantageous compromises between people who have conflicting interests and differing moral commitments. Proponents and opponents of redistributive taxation can agree that at any given level of redistribution they will each be better off if taxes are horizontally equitable. Horizontally equitable taxation can thus prevent rent-seeking and ideological conflict over tax policy from generating a wasteful patchwork of narrow taxes and tax subsidies. Observing horizontal equity may be unimportant when people agree on ideal principles of justice and the relevant empirical facts. But under more usual conditions of deep moral and empirical disagreement over tax policy, treating pre-tax income as a normative baseline can prevent conflict over distributive questions from leading to wasteful and inequitable tax policy.
The benefits theory of tax fairness was the dominant approach to tax justice until the late nineteenth century. This paper examines the reasons for the rejection of the benefits principle in the nineteenth century and the evolution of benefits theory in the twentieth century in response to this criticism. It uses this historical inquiry as a launching point for re-evaluation of the prospects for benefits theory. Benefits taxation has a number of advantages. As an ethical claim, it appeals to intuitive principles of fair cooperation. As a rule of procedural justice, it tends to protect against oppressive tax schemes. Although benefits theory has the resources to respond to some of the most historically influential criticisms, it faces additional challenges. These include specifying the baseline against which benefits are to be measured and fair treatment of taxpayers who take a public-spirited view of government spending as opposed to those who are mainly concerned with their private advantages.
When the Soviet Union collapsed, many observers hoped that decollectivization would improve the infamously inefficient Soviet agricultural sector and raise collective farm workers out of poverty. The initial results of market reform in Russian agriculture were a severe disappointment in both respects. Under Putin, Russia finally allowed agricultural land to be bought and sold. The effects of this latest reform neither met the expectations of its supporters nor realized the fears of its opponents. Russia's experience with land reform suggests that while private ownership of farmland may offer significant advantages, successful land reform requires much more than the creation of legal rights. This Article explores the role of property law in post-Soviet Russian agriculture and charts the development and effect of land markets in rural Russia, revealing broad implications for the effects of land privatization on agriculture, the barriers to creating well functioning land markets, and the significance of property law for economic development.
Lindsay, Ira K. 'In Praise of Nonconformity' Santa Clara Law Review (forthcoming).