Text, Purpose, Capacity and Albertson's: A Response to Professor Geier

Abstract

In a recent issue of the Florida Tar Review, Professor Deborah Geier added yet another chapter to the running commentary on the Albertson's litigation, using that case to demonstrate her theories of statutory purpose and to criticize, in particular, statutory textualism as she conceives of it. Professor Geier correctly identifies the underlying issues in Albertson's-the role of statutory purpose, the differing institutional capacities of the Congress and the courts, fidelity to statutory text-but resolves those issues in ways that prompt me to rebuttal.
While I commend Professor Geier for her effort to explicate many important questions about the Code and its interpretation, I find myself in strong disagreement with her conclusions. Professor Geier's basic analysis is unsound and, when applied to Albertson's, produces an incorrect result. Her arguments for assigning to the courts a proactive role in tax controversies like Albertson's are unconvincing, and her mechanical conception of textualism is ultimately unhelpful in exploring the issues in Albertson's.