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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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