Taxation, Racial Capitalism, and the International Rule of Law: Reflections on the Inaugural Webinar – ESIL Interest Group on European and International Rule of Law Webinar Series · Webinar 1 · Reflection 1/5
How should we understand taxation when it does far more than raise revenue?
The inaugural event in the ESIL Interest Group on European and International Rule of Law Webinar Series brought into dialogue two major books published in 2025: Anthony C. Infanti’s The Human Toll: Taxation and Slavery in Colonial America and Steven A. Dean’s Racial Capitalism and International Tax Law: The Story of Global Jim Crow. Carliss N. Chatman joined the authors as discussant, bringing her scholarship and teaching in commercial law, race and inequality into conversation with the two books. I conceived, chaired, and moderated the webinar while also participating as discussant.
In preparing the webinar, I framed the conversation around a proposition that reaches beyond tax law: taxation is a form of legal and institutional infrastructure. Fiscal rules classify persons and property, structure markets and political authority, distribute resources and vulnerability, finance public institutions and coercive systems, and affect which claims, experiences, and forms of knowledge become legally visible. Apparently technical categories can therefore embody choices about race, power, sovereignty, distribution, and institutional authority while presenting those choices as neutral or inevitable.
Professor Infanti showed how colonial taxation helped sustain and constitute slavery. Import taxes treated enslaved persons alongside commodities; poll and property taxes repeatedly encoded their legal status; fiscal measures were used to manipulate racial populations; and public revenue compensated slaveholders when enslaved persons were executed or killed under color of law. His archival research also exposed a striking politics of legal memory: fiscal records often preserved owners’ identities and economic claims while leaving the enslaved unnamed or visible only indirectly.
Professor Dean moved the analysis to international tax governance. His account challenged the conventional story that the international tax system simply developed to prevent double taxation. He traced its consolidation during decolonization, including the movement of institutional authority away from the United Nations and toward the OECD. Rules concerning source and residence taxation, treaty protection, corporate taxation, and expert authority limited the fiscal room available to newly independent states while protecting the interests of wealthier states and multinational capital.
Professor Chatman responded to the books particularly through legal education and commercial law. She described using both works in her course on Entrepreneurship, Race, and Inequality and connected Professor Infanti’s research with her own work on teaching slavery in commercial law. Her discussion emphasized the importance of bringing histories excluded from conventional doctrinal teaching back into the classroom and examining how apparently technical commercial rules operate in societies marked by racial inequality. In the concluding round, her central institutional demand was acknowledgment: before law can respond to inequality, legal institutions and legal education must be willing to recognize that unequal racial outcomes exist.
My own interventions developed the broader interdisciplinary dimensions of the conversation. I connected the books with epistemic governance, administrative law, evidence law, constitutional law, international and comparative law, and the rule of law. The questions were not only what law regulates, but what law makes visible or invisible; whose knowledge enters an official record; which experts, institutions, or communities are authorized to speak; and how procedural rules, professional credentials, institutional membership, archives, and legal education produce both knowledge and ignorance.
This also led me to distinguish formal legality from the substantive rule of law. An arrangement may be legally authorized and procedurally regular while remaining deeply problematic from the perspectives of equality, dignity, meaningful participation, accountability, public justification, and access to resources. The histories reconstructed by Professors Infanti and Dean make that distinction particularly difficult to ignore.
The concluding round made the different contributions especially clear. Professor Chatman called for acknowledgment of existing inequality. Professor Infanti emphasized recovering the legal and fiscal imagination necessary for reparative action. Professor Dean identified restoration of the fiscal sovereignty of poorer states and reconsideration of double-tax treaties as concrete priorities. I proposed epistemic due process: institutions should disclose what knowledge they considered, whose expertise they credited, what they excluded, and how those epistemic choices shaped legal outcomes. These distinct answers brought the webinar from historical diagnosis toward questions of institutional responsibility and repair.
This first post introduces four further reflections focusing separately on the contributions of Anthony C. Infanti, Steven A. Dean, Carliss N. Chatman, and my own role as Chair, Moderator, and Discussant.
Because readers may not have seen those earlier posts, the principal bibliography is reproduced below.
Selected Bibliography
Books in Dialogue
Dean, Steven A. (2025). Racial Capitalism and International Tax Law: The Story of Global Jim Crow. Oxford: Oxford University Press – Examines how international tax law has historically contributed to racialized structures of economic power and inequality on a global scale.
Infanti, Anthony C. (2025). The Human Toll: Taxation and Slavery in Colonial America. New York: New York University Press – Explores the relationship between taxation, slavery, and state-building in colonial America, highlighting the human costs embedded in fiscal and legal institutions.
Related Scholarship by Steven A. Dean
Racialized International Tax Law in Research Handbook on Critical Tax Studies (forthcoming Edinburgh University Press, Yvette Lind and Dominic de Cogan, eds.)
Fear of a Black Planet: Africa’s Decolonisation and the Transformation of the International Tax Regime in Taxing People: The Next 100 Years (Cambridge University Press 2026, Tsilly Dagan and Ruth Mason, eds.)
Filing While Black: The Casual Racism of the Tax Law, 2022 Utah Law Review 801, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4081456
Inclusive International Tax Policymaking: FATCA, the U.S. Congressional Black Caucus, and the OECD Blacklist, Revue Européenne et Internationale de Droit Fiscal(2021) (Reprinted in Tax Notes International)
Ten Truths about Tax Havens: Inclusion and the ‘Liberia’ Problem, 70 Emory Law Journal1657 (2021) (with Attiya Waris), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3822421
Dean’s SSRN Author Page https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=440250
Related Scholarship by Anthony Infanti
Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves (The MIT Press 2018).
Critical Tax Theory: An Introduction (Cambridge University Press, Anthony C. Infanti & Bridget J. Crawford eds., 2009). The Introduction is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1333799
Internation Equity and Human Development, in Tax, Law and Development (Edward Elgar Publishing, Miranda Stewart & Yariv Brauner eds., 2013).
Tax Equity, 55 Buff. L. Rev. 1191 (2008), available at https://digitalcommons.law.buffalo.edu/buffalolawreview/vol55/iss4/5/
Tax and Time: On the Use and Misuse of Legal Imagination (NYU Press 2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4006652
Tax Reform Discourse, 32 Va. Tax Rev. 205 (2012), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034869
Critical Tax Theory: Insights from the US and Opportunities for All, 51 Austl. Tax Rev. 81 (2022) (with Bridget J. Crawford), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4236410
Infanti’s SSRN Author Page
Related Scholarship by Carliss N. Chatman
(2023). “Teaching Slavery in Commercial Law.” 28 Michigan Journal of Race & Law 1–38. SMU Dedman School of Law Legal Studies Research Paper No. 611. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3926671 – Examines how slavery and its enduring legacies can be more meaningfully integrated into the teaching and understanding of commercial law.
(2026). “The Contract and the Cure: Building a Private Infrastructure for Reparations.” In Slavery’s Long Tentacles: Entanglements in Historical and Modern Forms of Slavery (Cambridge University Press, forthcoming). https://ssrn.com/abstract=6140369 – Explores the role of private law, contracts, and institutional design in advancing reparative justice for the enduring harms of slavery.
(October 24, 2024). “1981”, 82 Wash. & Lee L. Rev. 1655 (2026), SMU Dedman School of Law Legal Studies Research Paper No. 666, Available at SSRN: https://ssrn.com/abstract=4998718 – Analyzes the continuing significance of 42 U.S.C. § 1981 and its role in addressing racial discrimination, equality, and access to economic opportunity.
(2018). “The Corporate Personhood Two-Step.” 18 Nevada Law Journal 811–862. Posted July 17, 2017; revised August 11, 2023. Chatman, Carliss, The Corporate Personhood Two-Step (June 25, 2017). 18 Nev. L. J. 811 (2018), Available at SSRN: https://ssrn.com/abstract=2992275 – Investigates how legal doctrines of corporate personhood shape corporate power, accountability, and the allocation of rights within modern governance systems.
Chatman’s SSRN Author Page https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2419097
Related Scholarship by Paolo D. Farah
(2026). Epistemic Governance. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6487038 – Develops a framework for understanding how knowledge, authority, expertise, and competing narratives shape governance structures, institutional legitimacy, and global ordering.
(2025) China’s Path to Modernization and Legal Pluralism: Transplants and the Belt and Road Initiative, Asian Journal of Law and Society, Cambridge University Press https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5215873 – Examines how competing legal traditions, governance models, and development paradigms contribute to evolving forms of legal pluralism and the reconfiguration of global order.
(2024). “Energy Justice, Just Transition and International Environmental Law.” In ASIL Proceedings (Just Energy Transition: Legal Challenges Associated with Coal Phase Out), Cambridge University Press. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5055884 – Explores how legal and governance frameworks shape the distribution of benefits and burdens during energy transitions, highlighting questions of historical responsibility, distributive justice, institutional legitimacy, and the role of law in addressing structural inequalities associated with climate and energy transformation.
Farah’s SSRN Author Page https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=629289
Paolo Davide Farah, Paolo Farah
Webinar Reflections 1/5: Taxation, Racial Capitalism, and the International Rule of Law: Reflections on the Inaugural ESIL Webinar