by Kim Brooks, Åsa Gunnarsson, Lisa Philipps and Maria Wersig (eds.) Portland: Hart Publishing, 2011. 306pp. Hardcover. ISBN: 978-1-84946-123-8.
Reviewed by Andrew Hayashi, Furman Center for Real Estate and Urban Policy, NYU School of Law. Email: andrew.hayashi [at] nyu.edu.
This collection of articles was written in connection with a workshop held at the International Institute for the Sociology of Law by a group of scholars working in the area of tax policy and gender equality, many of whom will be familiar to other tax scholars for their role in the development of critical tax theory. Exploring the bidirectional effects of gender norms on tax policy making and tax policy on gender inequality, the volume exhibits both the advantages and disadvantages of these sorts of compilations in general, but also some shortcomings peculiar to the subject area.
Among the nice features of conference collections are the wide range of topics and methodologies represented and the fact that the articles stand on their own. This generally means that one is rewarded for working through the entire collection with an article that is particularly compelling, and also that unevenness in the quality of the arguments or analysis is less troubling, since any defects are generally limited to the chapter in which they appear. Both are true of Challenging Gender Inequality, which includes articles on a range of topics, such as a historical inquiry into the origins of the married couple as a unit of taxation, an argument for taxing income from surrogacy arrangements, and data on how men and women are impacted differently by facially gender neutral tax policy choices (such as marginal income tax rates, capital gains rates, or VAT exclusions) because of their different patterns of employment, consumption and savings choices. The volume augments topical and methodological diversity by including contributions from scholars who explore the interaction between fiscal policy and gender inequality in countries other than the United States. However, although there are international contributions, only Åsa Gunnarsson's article in Chapter 4 endeavours to really compare tax policy choices across countries and the promise of "comparative perspectives" in the title goes largely unfulfilled.
One of the challenges that this book faces is finding a suitable audience. Some of the articles are written in a voice, and make use of jargon, that will likely be familiar to scholars working within the critical studies tradition but will be a bit perplexing for those on the outside. There is also no discussion of the normative presuppositions motivating the authors’ analysis or policy conclusions. Under what circumstances should tax law be used to challenge gender inequality? Perhaps because it is not an introduction to the area of critical tax studies, these presuppositions are taken for granted; [*148] however, the entire absence of reflection about the tensions created by these undiscussed commitments with other, conventional goals of tax policy, does raise a number of distracting questions along the way. More on this later. Also, some of the essays would have benefited from a much heavier editorial pen. In places throughout the volume, muddled sentences, and typographical and grammatical errors both distract and confuse.
Part I, "Gendering the Fiscal State" contains four chapters that, in different ways, and with varying degrees of success, theorise about the ways that fiscal policy aggravates gender inequalities through even facially neutral rules. In Chapter 1, Kathleen Lahey argues that women have not, and persist in not, being recognized as full and equal subjects of the state with independent concerns, and are instead only considered in light of their relationships to, e.g., their husbands and children, or as members of abstract categories such as "single parents" that obscure the variability and distinctiveness of women’s interests. Point taken. To take an example that recurs (often) throughout the book, we know that the primary effect of a progressive income tax rate structure on labor supply is not in the number of hours that a working person will work (the so-called "intensive margin"), but in whether the second earner in a couple that files jointly decides to work at all (the "extensive margin"). This anonymous "second earner" is, typically, a woman. It is an important contribution to add empirical content about the correlation between these sorts of abstract categories and gender, as well identify the concerns specific to women that these abstract categories fail to draw attention to. Chapters 2 and 3 (by Ann Mumford and Miranda Stewart) purport to bring the theoretical tools of "new institutionalism" and Sen and Nussbaum's “capabilities” approach to analyses of tax reforms. Chapter 2, however, reads more like an intellectual history of certain sociological theories and is dense with obscure references and jargon that will makes it impenetrable to anyone, I suspect, who is not already deeply immersed in that literature. Although relatively light in its application of a capabilities approach (these are short essays, after all), Stewart's chapter is certainly suggestive of the rewards that such an analysis offers in terms of recognizing the diversity and complexity of women's interests that go ignored in a traditional analysis. In Chapter 4, Åsa Gunnarsson focuses on the role that the concept of a public/private divide has played in generating differences in the tax treatment of men and women in several European countries.
Part II moves away from the theoretical to consider how specific tax policy choices, such as whether to tax surrogacy (Chapter 5), the choice of marginal income tax rates (Chapter 6), and the structure of a value added tax (Chapter 7), can affect women's welfare and autonomy. The latter two chapters highlight the importance of collecting data that is disaggregated by gender to allow researchers to identify the disparate impacts that tax policies can have. These chapters also hint at possibilities for exciting collaboration between critical legal scholars and researchers with the empirical tools to rigorously identify the disparate effects of tax policies on women and other [*149] historically subordinated groups.
Part III explores the treatment of different kinds of families under tax law in the United States and abroad, with special attention paid to same-sex couples in Chapters 8 and 9. Anthony Infanti's discussion of how the medical expense deduction provided for in section 213 of the Internal Revenue Code favors the creation of certain kinds of families over others through its effect on the cost of assisted reproductive technologies is particularly interesting. Although the statutory reading that leads to his contrivance of the "body family" as an independent and unarticulated creature of this area of the tax law strikes me as strained, his argument is creative, clear, and provocative.
Part IV examines savings, wealth, and capital gains through a gender lens. Lisa Philipps’ article in Chapter 10 is perhaps the strongest and most nuanced in the volume. Throughout this book, authors return again and again to the effect that joint income tax filing or income splitting has on women's paid labor market participation. You would think that there was no greater barrier to gender equality (aside: does the kind of work matter? Would the world be a more just place if all women who were engaged full time in home production and caregiving performed the same work in someone else's home for compensation?). In the background of this concern about the choice of the taxable unit and whether income from one spouse should be attributed to another for tax purposes is a disconnect between the naive, but legally entrenched, view that market income is shared equally between spouses and the recognition that this is not so. But on the other extreme is the view that a spouse does not share at all in the income of the other. This also is false, and we should be wary of policy prescriptions that rely on this equally naive view. Better would be to align the intra-household allocation of income for tax purposes with the actual command of household members over that income. Philipps’ provocative recommendation is to do just that, granting the tax benefits that arise from income splitting to individual taxpayers only insofar as they actual split command over that income. Her discussion is careful and nuanced and motivates specific policy reform proposals. Chapter 11 explores whether disparate impacts of certain tax expenditures related to pensions in Germany fall afoul of constitutional prohibitions on discrimination. In Chapter 12, Marjorie Kornhauser argues that certain features of a worldview common among men make them more likely to benefit from, and support, a lower rate on capital gains income.
This collection of essays is part of an important project: bringing critical gender analysis to the study of tax policy. It is also tantalizing in the opportunities it suggests for collaboration between those writing from within the crit tradition and empirical tax scholars to identify the effects of tax policy reforms on women’s opportunities, welfare, autonomy, and capabilities. Yet, in order to reach a broader audience, it would have been helpful if the authors had returned occasionally the policy concerns and conceptual tools familiar to tax scholars in general, such as by situating the concern for gender inequality among the other goals we have for the tax system: efficiency, administrability, and [*150] redistribution, as well as by indicating some sensitivity to issues like the difference between the statutory and economic incidence of taxation, ensuring accurate tax enforcement, and the threshold question of under which circumstances tax policy (rather than some other mechanism) is the best, or even a good, means of "prevent[ing] the persistent asymmetrical division of remunerated and non-remunerated work between genders" (p.132).
Copyright 2013 by the Author, Andrew Hayashi.