When Stanley Surrey—possibly the most prominent tax academic of the twentieth century—died in 1984, the school of thought sometimes known as the “new textualism” that has gained such influence in the United States over the last three decades had not yet emerged. Surrey would have been very interested in this development. As revealed in his recently published memoirs, he had extensive first-hand experience with the tax legislative process and recognized early on the connection between that process and statutory interpretation. He would have been surprised by some of the assumptions about the process underlying the new textualist claims as well as recent empirical findings about the process reported by scholars. This article aims to fill in some of Surrey’s missed engagement. Drawing on his memoirs and other sources, the article describes aspects of the tax legislative process—the preparation of tax statutes and legislative history—of significance to statutory interpretation and the positions of the new textualists. Importantly, the description is at the granular level at which Surrey experienced it, material not generally included in standard political science or legal scholarship on the topic. After considering the on-the-ground special features of the tax legislative process, this article contends that in interpreting tax statutes, courts should rely upon both textual canons and other common tools of judicial interpretation (questioned by recent scholar-empiricists) and legislative history (questioned by textualists). The article also explains why, contrary to the claims of textualists, pre-enactment committee reports of all federal legislation, not just tax legislation, are authoritative evidence of statutory meaning.
George K. Yin, Textualism, the Role and Authoritativeness of Tax Legislative History, and Stanley Surrey, Law and Contemporary Problems (2023).