Tax law looks absurd and builds in structural uncertainty.

Professor Lawrence Zelenak, in Maybe Just a Little Bit Special After All?, offers a more blunt (if qualified) critique of those who gleefully “danc[e] on the grave of tax exceptionalism.”36 It’s not just tax lawyers who believe tax is special, Professor Zelenak argues. Rather, pretty much everyone views tax as a “uniquely byzantine”37 area of the law, and the frightening complexity of the Internal Revenue Code perhaps earns it some special treatment.

It’s hard to dispute that the tax laws are difficult to understand, but the widespread recognition of that complexity probably stems more from the annual filing requirements than from tax law’s complexity vis-à-vis other areas of code-based law. If, à la the filing of a Form 1040, every individual had to annually determine the priority of her creditors’ claims under the bankruptcy code or had to measure her vehicle’s pollutants under the environmental laws, complaints about bankruptcy complexity or environmental complexity would permeate popular culture, just as complaints about the tax laws do. And although many lawyers express fear of tax even outside of the filing context—in shying away from enrolling in tax courses during law school, for example38—that probably has more to do with the heavy focus of the common law tradition than tax law’s unique complexity. That is, the law school curriculum, especially during the first year, displays a heavy bias towards reading judicial opinions and away from careful statutory analysis. Thus, in their formative first year, law students are taught to view the world through the lens of an English common law judge,39 and they naturally come to believe that tax, with its focus on statutory and regulatory interpretation, reflects a quirky and unique body of law.