Ethan Yale (Georgetown) has published Reexamining Black & Decker’s Contingent Liability Tax Shelter, 108 Tax Notes 223 (July 11, 2005), also available on the Tax Analysts web site as Doc 2005-13102, 2005 TNT 132-29.  Here is the abstract:

In this article, Prof. Yale reviews the contingent liability tax shelter employed by Black & Decker, and critiques the arguments the government has made in its appeal to the Fourth Circuit. He concludes that the government’s technical arguments are unpersuasive and demonstrates that if the Fourth Circuit accepts them, it might result in unintended consequences in run-of-the-mill transactions. Yale suggests a different strategy the government should pursue when challenging contingent liability tax shelters, a strategy that would prevent taxpayers from enjoying an undeserved tax windfall in abusive cases without distorting the language of the code.