On Judge Richard Posner (11/18/19)

I recently posted the following entry.  The Notice of Deficiency (Federal Tax Procedure Blog 11/8/19), here.  In that post, I had the following concluding paragraph on the history of the seminal tax decision in Helvering v. Taylor, 293 U.S. 507 (1935), here:

Finally, if you really want a better--dare I say more holistic--understanding of Helvering v. Taylor, I recommend that you read Judge Learned Hand's decision in the Second Circuit that preceded the Supreme Court case.  Taylor v. Commissioner, 70 F.2d 619, 620-621 (2d Cir. 1934), here, aff’d Helvering v. Taylor, 293 U.S. 507 (1935). And, if you don't know who Judge Learned Hand was, you should.  See Wikipedia entry here.

I write today on another, later generation appellate judge, a giant in the law, Richard Posner, retired from the Seventh Circuit Court of Appeals.  (Wikipedia here.)  The inspiration for today’s blog entry is this blog: Eric Segall, Solum on Posner and the Descriptive/Normative Gap in Originalist Theory (Dorf on Law 11/15/19), here.

Starting at least by the late 1990s while teaching Tax Procedure and Tax Fraud and Money Laundering I always had my students read at least one Judge Posner opinion, not just because it was on topic but also because of the quality of the legal analysis that Judge Posner usually displayed.

Professor Segall quotes Professor Solum as follows:

I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time.

The discussion centers around originalism, but Judge Posner’s opinions in the tax law and other areas of the law are wonderful.  Here are some that I have used in teaching (I located these on quick searches of my Federal Tax Procedure book and the latest edition of my Federal Tax Crimes book):

• United States v. Frederick, 182 F. 3d 496 (7th Cir. 1999), here (On § 7525 Federally Authorized Tax Practitioner Privilege), here.
• Lantz v. Commissioner, 607 F.3d 479 (7th Cir. 2010) (On statutes of limitations not specified by the Code), here.
• Kohler v. United States, 468 F.3d 1032 (7th Cir. 2006), here (valuation issue; I just included this case in an article on valuation that will be published in the ABA The Tax Lawyer publication in 2020; the article is tentatively titled Burden of Proof in Tax Cases: Valuation and Ranges - An Update.
• Mortenson v. National Union Fire Insurance Co., 249 F.3d 677 (7th Cir. 2001), here (a magnificent nontax opinion dealing with the issue of the TFRP, § 6672, in an insurance setting and whether the TFRP is a penalty risk that can be insured; I used to include in my Federal Tax Procedure book an extensive quote from the this case, but as I undertook one of my infrequent efforts to reduce the size of the book, I eliminated the discussion of this case and the extensive quote).
• United States v. Giovanetti, 919 F.2d 1223, 1228-1229 (7th Cir. 1990), here (on deliberate ignorance/ostrich instruction in criminal cases).
• United States v. Black, 530 F.3d 596, 604 (7th Cir. 2009), here (where Judge Posner came to the defense of the ostrich).
• United States v. Ytem, 255 F.3d 394 (7th Cir. 2001), here (on circumstantial evidence to prove willfulness for tax crimes).
• United States v. Kontny, 238 F.3d 815 (7th Cir. 2001), here (on sophisticated means sentencing enhancement in tax crimes cases).
• United States v. Bownes, 405 F.3d 634 (7th Cir. 2005), cert. denied 126 S.Ct. 320 (2005), here (on the nature of plea agreements).

Also, I have cited the following articles:

• Richard A. Posner, An Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1506-1507 (1999), here.

I wrote an article on one of Judge Posner’s opinions:  John A. Townsend, Judge Posner’s Opinion in Kikalos, 108 Tax Notes 593 (Aug. 1, 2005), here.  In this article I did have a version of a footnote on footnotes (see footnote 3 of the article) which I subsequently expanded and revised and included in earlier versions of my Federal Tax Procedure book, but when the footnote just got too large, I moved it to an Appendix to the book.  It is now in Appendix C in the the annual versions of my Federal Tax Procedure Book (both editions).

One other way that Judge Posner inspired me was to have a non-footnoted version of my Federal Tax Procedure book for students.  Judge Posner reputedly never used footnotes in opinions.  So, on the first couple of versions of the Federal Tax Procedure book, I did not have footnotes at all.  Important case and Code citations were included in the text.  Thereafter I began putting footnotes in the working draft to keep me honest (by having references if I needed them), but then stripping out the footnotes when I put the book in pdf version for distribution to students.  And then, I said to myself, that as long as I was putting copious footnotes for myself, I would make those footnotes available to practitioners.  The latest Practitioner Edition (2019) is 1004 pages (excluding opening matter such as table of contents) and has 4209 footnotes.  I do strip out the footnotes for the Student Edition.