Academic journal article Law & Society Review

Investigating Legal Consciousness through the Technical Work of Elite Lawyers: A Case Study on Tax Avoidance

Academic journal article Law & Society Review

Investigating Legal Consciousness through the Technical Work of Elite Lawyers: A Case Study on Tax Avoidance

Article excerpt

Tax avoidance is a complicated story that presents the most profitable multinationals as paying virtually no taxes while still abiding by the letter of the law.1 It portrays tax authorities as vigorously devoted to hunting down tax evaders but concentrating only on small contractors and black-market workers, thus leaving big businesses and wealthy individuals largely undisturbed (e.g., Spire and Weidenfeld 2015). It is an ambiguous tale about cooperation and competition in which states are committed to creating a level playing field among themselves but create loopholes in their own legislation and indulge the tax havens most beneficial to their nationals (Palan et al. 2009). Tax avoidance is sometimes described as acceptable and efficient and sometimes as aggressive, abusive, unethical, and, perhaps, even illegal. Some equate it with mere tax planning-simply "the ordering of one's affairs in such a way as to reduce the tax that would otherwise be payable" (Li et al. 2017: 530). Others amalgamate it with fraudulent tax evasion, stressing the shared goal and effect of each (i.e., the rich paying less than their fair share of taxes) and the elusive delineation between avoidance and evasion (Likhovski 2004: 991-95; McBarnet and Whelan 1991). Faced with an issue that the law seems incapable or unwilling to solve, tax activists, nongovernmental organizations, and the media try to reframe the debate in broader terms of morality and justice rather than reduce it to legal technicalities (Christians 2013; Christians 2014: 39-40).

Yet, this narrative speaks little to one of its crucial characters: elite lawyers specialized in tax planning. Whether practicing in multinational law firms or in multidisciplinary firms, such as global accounting firms,2 that offer legal services, elite lawyers are the experts of legal technicalities underlying most tax-avoidance strategies, but they are also more than this: their technical work shapes our broader legal culture. While several studies have examined the ways professional ideology, career strategies, and the rise of global law firms may influence the development of law (Dezalay and Garth 1996; Faulconbridge et al. 2008; Flood 2007; Sarat 2002; Shamir 1995), few scholars have examined how elite lawyers' technical inventions impact common understandings of law. Previous works have shown that in areas other than tax, elite law firms were a "pillar of globalization" (Flood 2007: 41). By serving as advisers, advocates, lobbyists, and negotiators for both businesses and governments, elite lawyers have been found to contribute to the harmonization of legal solutions worldwide, the construction of global regulatory regimes, and the emergence of a new global law (Arthurs 2001: 275; Faulconbridge and Muzio 2012: 144; Gessner et al. 2001: 18; Lewkowicz and Van Waeyenberge 2010). Their work in corporate and capital-markets law, for instance, is said to enable transnational business deals that, without their involvement, would seem too risky (Flood 2007: 38). In other areas, and in a less visible manner, however, elite lawyers also orchestrate the fragmentation and complexity of law (Arthurs 2001: 275-77; Wainwright 2011: 288-91). Where they wish, they can mount a "highly skilled resistance" (Llewellyn 1930: 459) to regulators by designing strategies to circumvent or to "comply creatively" (McBarnet and Whelan 1991: 848) with the law. They mastermind the most sophisticated "tax optimization schemes"- intricate contractual and corporate devices designed to push the frontiers of tax legality. Elite lawyers, like all lawyers, know how to "use the methods of the law to neutralize its impact" (McBarnet 1992: 257) for the benefit of their clients. Unlike other lawyers, however, these lawyers train and develop knowledge for their broader professional community while positioning their offices as a central node in the transnational networks underlying contemporary capital flows. For this reason, elite lawyers' technical feats hold unparalleled sway over legal practice. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.