The papers announce today Justice John Paul Stevens' long expected retirement. He is a great judge and will be missed on the Supreme Court and throughout the country.
I had first encountered Judge Stevens in arguments in the 7th Circuit Court of Appeals long ago. I found him exceptionally sharp and willing to mix it up intellectually. I eschew war stories here, however interesting they may be to me. Being a tax lawyer and being concerned about the development of the tax law for the good of society as a whole, I can point to one particular matter in which his voice, spoken in dissent, should have been heeded. That was in Frank Lyon Co. v. United States, 435 U.S. 561 (1978), a case that, in my opinion (I am not alone) was wrongly decided by the majority and has had disastrous consequences to the orderly development of the tax law over the years. Therefore, I quote Judge Stevens' dissent in Frank Lyon in its entirety. Although it would help to have read the majority opinion to knew the target he is shooting at, it is not critical. If you have been more than casually involved in or observing the tax shelter industry over the years, you will understand why he is right: The doctrine of economic substance developed on the shoulders of his dissent would have been a lot more coherent.
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