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Retroactivity Revisited, 98 Harvard Law Review 1820 (1985)


In three prior articles, I considered transitional problems of changes the tax law. My general analysis and its specific application to the adoption of a consumption tax were criticized last year in this journal by Avishai Shachar. By taking liabilities explicitly into account in considering tax transition rules, Shachar extended the fundamental principles generated by my theory of legal transitions. Shachar, however, misunderstood or mischaracterized much of my earlier work.

In this comment, I respond briefly to Shachar's criticisms. In Part I, I set out the context and conclusions of my general theory and suggest that Shachar agrees with its principal insights. In Part II, I show that, although Shachar correctly suggests that a comprehensive analysis of transitional rules must take liabilities into account, his central analytical premise—that "[e]ach increase in the price of an asset has an equal and offsetting impact on the 'burden' of a liability"—is surely wrong. I also demonstrate in that Part several difficulties with Shachar's general approach to transitional problems. Finally, in Part III, I comment briefly on his specific recommendations for transition to a consumption tax.

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