70 A.B.A. J. 74 (1984)
Making Tax Law through the Judicial Process

handle is hein.journals/abaj70 and id is 374 raw text is: Over the years, when I have heard tax
lawyers complain that the Supreme Court
should be relieved of jurisdiction over tax
cases because the Court has never under-
stood the tax laws, I have especially relished
my standing as a Fourth Amendment buff. It
is seldom given to mortal man to feel supe-
rior to a tax lawyer. With what gratifying
condescention, then-how like Captain
Ahab's ghost hearing trout fishermen prattle
of the big one that got away-have I listened
to the tax lawyers' criticisms of the Supreme
Court!

Making Tax Law
through the
Judicial Process

-Anthony Amsterdam, Perspectives on
the Fourth Amendment, 58 Minnesota Lawi'
Review 349, 349-50 (1974).

By Martin D. Ginsburg

A USEFUL notion, relevant to judicial
review and perhaps other endeavors,
long ago was capsuled by an excellent
judge much this way: It is often better
that things be settled than that they be
settled right. The useful notion is the
more so in the federal tax field where,
experience teaches, many things won't
be settled right anyway.
Academics and practitioners, and real
people too, ought to agree that as nearly
as can be, there should be uniform
application of the tax laws. But every-
one familiar with tax litigation also
would   agree that we    have not
approached the goal of developing a
coherent body of case law. Hardly sur-
prising for, given the system of dispute
resolution we currently enjoy, the goal is
impossible to accomplish.
Many voices, many answers
Our system for resolving tax disputes
is structured to allow the many U.S.
courts of appeals to express rather
freely their disparate views. Now, inev-

itably, conflicts arise in the tax field as
in every other. It is the conventional
hope that sooner or later, the U.S.
Supreme Court will get around to
resolving conflicts in the tax field.
One might suppose that underpinning
this notion is some belief that the
Supreme Court, offered the opportunity,
will bless us with the right answer. A
kind response might be that the
Supreme Court is populated by general-
ist justices while the tax law is highly
specialized at best, arcane more often.
Since the justices on more than one
occasion have appeared to view the tax
law as anathema, in fairness they cannot
be expected inevitably to reach a right
answer, if indeed there is one, and surely
they cannot be expected readily to get
there in an inevitably sound way.
Before pursuing that subject further,
let us descend two rungs from the High
Court. If you are a potential income tax
litigant, you have a wonderous choice of
forums in which to dispute with your
government. First-instance jurisdiction
over tax controversies is trifurcated. If
you elect not to pay the asserted tax,
you are in a deficiency posture and off
to the United States Tax Court, a spe-

74 American Bar Association Journal

Illustrations by John Sohmelzer

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