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North Carolina Law Review


The psychology of the estate tax is extraordinarily interesting and surprisingly underexplored. In this Article, Professor Fennell considers the ways in which behavioral law and economics might augment and revise existing understandings of the tax and of redistributive policy generally. The Article is structured around two puzzles that have been frequently identified in the estate tax literature: first, why popular opposition to the tax is so great, even among those who have no reason to expect estate tax liability; and second, why those whose estates are likely to be subject to the tax often do not take advantage of the opportunity to lighten the transfer tax burden through inter vivos giving. Professor Fennell posits that cognitive theory can help answer both questions and can thereby contribute to a richer positive account of the estate tax. She then explores some possible normative implications of this enhanced positive account, and suggests that the estate tax may hold greater potential as a redistributive tool than existing accounts would indicate. The estate tax's impending (yet temporary) repeal makes the project particularly timely and important.

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