Harvard Law Review’s Drive-By Attack on Overseas Americans

In February 2024 the Harvard Law Review published a student “Note” defending the constitutionality of the exit tax (I.R.C. § 877A). (Moore than Meets the I.R.C.? The Apportionment Rule’s Originalist Backstop for I.R.C. § 877A, see here for claimed authorship).

In defending the exit tax, the Note accepted and repeated – without investigation – stigmatizing tropes about Americans who renounce U.S. citizenship.

The Note contained numerous demonstrably false assertions and implications about the taxes owed by Americans who renounce U.S. citizenship, about what happens in the years before an American renounces U.S. citizenship, and about the reasons why Americans renounce U.S. citizenship.

Because of these failures, the Note missed a rare and important opportunity to have a beneficial effect on U.S. policy. Instead, the Note serves to further entrench the invisible but no less real fiscal bars surrounding the United States, keeping all Americans inside.

In late February SEAT co-founder Laura Snyder submitted a response to the Note. This week the Harvard Law Review rejected it for publication without explanation.

To date, the Harvard Law Review has not published any response to the Note from any member of the community the Note wrongly defames. By publishing the Note while refusing to publish a response, the journal has effected a virtual drive-by attack on overseas Americans. One of the most influential law journals in the country has published assertions and implications about overseas Americans that are both defamatory and demonstrably false. The journal does not acknowledge any problem with the Note and has refused to publish a correction. The dearth of integrity is remarkable.

Snyder’s rejected response is now available here, as a SEAT Working Paper.

An abstract of Snyder’s response is as follows:

The publication in the Harvard Law Review of a student note about the exit tax was a rare and important opportunity to explore the realities of the tax: (i) who Americans that live outside the United States are and the reasons why they live outside the United States; (ii) the reasons why some of those Americans renounce U.S. citizenship and thus, in some cases, trigger the tax, (iii) how the tax ensnares and unfairly penalizes middle class Americans, (iv) how the tax should be modified to further a legitimate purpose of preventing tax abuse without penalizing ordinary people who have not engaged in tax abuse, and (v) how changing the exit tax to a departure tax is an important step in a larger reform of the U.S. tax system that would enable Americans living outside the United States to remain U.S. citizens.

 

Unfortunately, the Note accepted – without investigation – stigmatizing tropes about Americans who renounce U.S. citizenship. Because it did not investigate the tropes, the Note missed the opportunity to have a considerably more beneficial effect on policy than any defense of the constitutionality of the exit tax could have. The Note missed the opportunity to influence policy to benefit not just Americans currently living outside the United States, but all Americans who may one day imagine doing the same. Today, no American is truly free to live outside the United States. The bars at the border may not be physical, but they are fiscal.

 

Harvard Law Review’s publication of the Note and refusal to publish a response is yet another example of the invisibility of American emigrants. As Snyder explains in an article recently published in the DePaul Journal for Social Justice, Americans living outside the United States are for the most part invisible. And on those rare occasions when they are not, they are assumed to be questionably wealthy/tax evaders/unpatriotic in order to justify punishing policies like the exit tax (among many other punishing policies). Because of these prejudices, no doubt many will see the Harvard Law Review’s drive-by attack on overseas Americans to be justified.

If you care about what is happening and want to make your voice heard, please participate in SEAT’s new survey. Learn more about the survey here. If you read Snyder’s response to the Harvard Law Review, you’ll understand how important surveys like this are.

Listen to SEAT’s podcast discussing the Note and the Harvard Law Review’s failure to publish any correction here:

2 thoughts on “Harvard Law Review’s Drive-By Attack on Overseas Americans

  1. This is DISGUSTING!!! Harvard as a seemingly well respected institution, with its name recognised worldwide, should act better than this. The “full story” of expatriate Americans who renounce their citizenship should have their whole story be told as to why they did this. Of course, if this was the other way around, that is dual citizenship Americans living in the US being taxed by the country of their other citizenship as well as the US, there would be considerable uproar by those people and would seemingly be recognised and published by the Harvard Law Review. This is a blight on the quality of this publication! Laura Snyder’s to the Note made very relevant points.

    1. With one hand they condemn renunciants as rich people leaving the USA and renouncing the next day to evade US taxes…with the other hand they give Boris Johnson as an example of rich Americans renouncing to avoid paying their fair share.

      But Boris did not leave the US and renounce, he left as a child fifty years previously!

      They mock his claim that the tax was “outrageous” as an example of Americans abroad who just don’t like paying their taxes. It’s beyond disgusting!

      The only way Boris differs from the typical renunciant is that he’s wealthy and famous, he’s otherwise typical. Left the USA aged five as a British citizen with his British parents and is only a US citizen though circumstances of his birth.

      He’s handed a large tax bill on the sale of his British home by a nation he left as a child 50 years ago, of course the bloody bill is outrageous!

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