In which I posit you as a legal methodology agony aunt

by | 31 Jan 2023

This is a cry for help! Specifically, it is a cry for legal methodological help.  So if you are good on this stuff please read on and maybe get in touch.

In order to explain my problem, I need to fill you in on some background.  I came to legal scholarship from practice as a tax lawyer, via a PhD on international corporate tax norms.  Now tax law is about as conservative an area as it is possible to imagine, both among practitioners and among scholars.  It is also extremely technical and doctrinal. (NB it is not to do with numbers.  We have accountants to worry about the numbers.  Tax lawyers say whether or not you are legally required to pay tax on the big number once the accountant has added up all the little ones.  We also advise on the legal effectiveness of ruses intended to avoid tax – something we will gladly lie about if you pay us enough.  Tbh that’s the sole number we care about.)

So anyway if you want to do tax law scholarship there is an established way of doing it which is to analyse some tax law through a resolutely doctrinal lens, and then to the extent that the doctrine in question looks like it favours the tax authority over private income or capital, you sound ominious warnings about how it threatens the “rule of law”.  Because for these purposes the “rule of law” is understood without further elaboration to be synonymous with the absolute pre-eminence of private property.  That being the case, mainstream tax law scholarship presents methodological obstacles to a Marxist (which is what I am).

And the obstacles are deeply entrenched.  If you present a challenge to the liberal ideology of a tax lawyer, they are unlikely to be intellectually equipped to even understand that that is what is happening.  They will instead infer that you do not understand the law, and delight in condescendingly telling you so.  I have had this happen to me several times in a scholarly context, despite the fact that when I was in practice I seemed to generally give correct advice to my clients, and sometimes saved them colossal amounts of money by means of carefully constructed arguments referencing this body of law that I am told I don’t understand.

I therefore did my PhD at a business school instead of a law school, and one which is notorious for its Marxist leanings, and I had a political economist and comrade as a supervisor.  And I simply went wild with all the fun theoretical toys that Marxists get to play with, like value theory.  It was great.  But I also tried not to lose sight of my roots as a lawyer and my goal of getting a job in a law school, so I alternated chapters on political economy with chapters on legal doctrine.  It made for a weird read but it worked, or at least my examiners (who were legal scholars) seemed to think so.  And now I am getting a number of journal articles published which are adapted from chapters of my PhD.

At this stage you are probably thinking “what is this lady’s problem? this all sounds fine!”  Well the problem comes when trying to articulate my research agenda to an audience of legal scholars (for example an audience of legal scholars serving as an interview panel for recruitment purposes at a law school).  The fact is, my research agenda isn’t a research agenda in law at all, it is a research agenda in political economy, punctuated by interesting digressions into relevant legal doctrine.

The core of what the research agenda is about is set out in this article, which doesn’t mention law once, and is published in an economic geography journal.  Essentially, it is about how the contestation over revenues between capital and the state is now primarily a matter of taxing the proceeds of value capture, as opposed to taxing the proceeds of value creation, and that has implications for how we understand fiscal asymmetries between rich countries and the rest of the world.

And then spinning off of that core proposition are interesting legal doctrinal tangents like this piece on how British tax judges operationalise for juridical purposes (without ever articulating it) the classical distinction between productive and unproductive labour, and this piece on how the very existence of transnational corporate capital is predicated on an international law anomaly with unmistakeably imperialist and white supremacist underpinnings.

Legal scholars can see that those legal doctrinal tangents constitute legal scholarship, but talking to lawyers about the underlying argument in political economy that holds it all together as a research agenda takes them way outside their comfort zone.  And so my methodological question is this: how do I better integrate the legal doctrinal analysis with the political economy so that when I articulate my research agenda it sounds like the kind of thing a lawyer would do?

Tax is such a siloed technical topic that people who want to talk about it to the wider world necessarily have to step outside their core methodological space.  This means that the wider sphere of tax scholarship is a chaotic interdisciplinary free-for-all where legal, accounting and economics nerds all emerge blinking from the ill-lit subterranean chambers of their specialisms to talk to each other about the political economy of tax unanchored by any actual political economy.  But as a scholar I’m kind of going in the other direction – I’m a political economist who happens to be able to do legal doctrinal analysis.  So how do I make this weird methodological party-trick I possess as a political economist look like the foundation of my work, so that I can get a job in a law school?  Please send your suggestions and reading recommendations to d.clair.quentin at gmail.com

1 Comment

  1. Dear Clair Quentin, I really like your work, and I am sorry you are having this problem. i have researched in `critical tax law `scholarship for decades and will send you some stuff, but basically law schools dont like lawyers who are critical of taxation laws, or who appear critical of the legal profession. Something to do with lawyers being `the organic intellectuals of capitalism`. Just say you are doing a cultural anthropology of western property relations.

    Reply

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