TaxProf Blog

Saturday, July 10, 2004

Martin Begleiter (Drake) has published The Gambler Breaks Even: Legal Malpractice in Complicated Estate Planning Cases, 20 Ga. St. U. L. Rev. 277 (2003). Here is part of the Conclusion:

The last 15 years have witnessed a pause in the malpractice revolution. Concerns over the impact of the increase in both malpractice actions and liability on the legal profession, the potential conflicts of interest and the dilution of the attorney’s duty to the client caused by the imposition of a duty on the lawyer to will beneficiaries, and the increasingly difficult legal questions raised by these actions have resulted in courts’ dismissing actions against attorneys or upholding summary judgments for different reasons. The courts have developed a variety of rules (or exceptions to rules) in an attempt to strike the correct balance between just decisions for disappointed beneficiaries and protection of attorneys….[T]his Article shows evidence that the decided cases have gravitated toward a rule requiring beneficiaries in complicated legal malpractice actions to present or refer to written evidence-letters, unexecuted wills, attorney’s notes, bills, etc.-in their complaints to survive a motion to dismiss or a motion for summary judgment. This Article shows that this rule explains most of the categories of decided cases….

Friday, July 9, 2004

Maureen Cavanaugh (Penn State) presented Are Tax Shelters the Necessary Consequences of the Rule of Law? at the Critical Tax Conference at Rutgers-Newark. Among the 13 quotations she discussed was this from Aristotle:

We thus arrive at law; for an order of succession implies law. And the rule of law, it is argued is preferable to that of any individual. On the same principle, even if it is better for certain individuals to govern, they should be made only guardians and ministers of the law. For magistrates there must be – this is admitted; but then men say that to give authority to any one man[,] when all are equal[,] is unjust. There may indeed be cases which the law seems unable to determine, but such cases a man could not determine either. But the law trains officers for this express purpose, and appoints them to determine matters which are left undecided by it, to the best of their judgment. Further, it permits them to make any amendments of the existing laws which experience suggests. Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire. (Politics, 1287a)

Thursday, July 8, 2004

Nancy Staudt (Washington Univ.) presented Competing Models of Statutory Interpretation at the Critical Tax Conference at Rutgers-Newark. Here is part of the Introduction:

For purposes of this study, we selected an area of the law that has kept both the Supreme Court and Congress busy throughout the Twentieth Century—taxation. The Court has decided more than 1,000 tax cases between 1900-2000, and Congress has reconsidered the tax laws nearly every year over that same time period. In choosing taxation as our area of study, we move considerably beyond the existing empirical studies of statutory interpretation—all of which focus on civil rights controversies….

In Section II, we describe five prominent theories of statutory interpretation. The first model, the sincere political model of decision making, posits that Supreme Court justices are motivated bytheir own political beliefs in the interpretive process and this motivation leads to legal outcomes that reflect the Court’s own sincerely held policy positions. The second and third models, the textualist and intentionalist approaches, argue the Court may be driven more by jurisprudential considerations—namely promoting the law as set out in the statute or legislative history. The fourth model, the sincere deferential model of voting, holds that the Court will defer to agency interpretations of the statute for purposes of reaching outcomes. Finally, the fifth model of decision making, the strategic model, is agnostic as the justices particular aims or goals; instead,this model posits a rational Court that will reach outcomes that take into consideration not only the justices’ own preferences (be they political or jurisprudential) but also the preferences of the all the other relevant actors in the legal and political setting. These five models, widely investigated in the legal and social science literatures, each contain empirical claims about judging and, in particular, statutory interpretation. Accordingly, in addition to describing the underlying theory of each model, we explain the empirical implications of each.

In Section III, we investigate how the Court itself describes its decision making procedures; in this section we examine the Court’s stated rationales for reaching outcomes in the many tax controversies it has considered. Finally in Section IV, we devise statistical models to test the theories of statutory interpretation against our data.