Article by Erik M. Jensen
In a recent article, John F. Coverdale calls for judicial adherence to the text of the Internal Revenue Code. Professor Coverdale discusses a number of cases in which judges proceeded as if actual statutory language were irrelevant, and it is not the judiciary's function, he reasonably argues, to redirect congressional determinations of appropriate tax policy.
I am generally sympathetic to the Coverdale position; courts ought not to act as if they were unconstrained by text. But Professor Coverdale overestimates the extent to which statutory text leads to unequivocal results. And he gives short shrift to one critical question: if years, maybe decades, of judicial decisions have added a generally accepted gloss to statutory language, is it really appropriate for a court, even the Supreme Court, to try to reclaim first statutory principles?
In these brief comments I focus on the well-known case of Tufts v. Commissioner because Professor Coverdale suggests that some commentators on Tufts, including me, have shown “blithe unconcern for the text of [a] statute.” I apparently did that by concluding that the result in Tufts was “unexceptionable.” In fact, I was neither blithe nor unconcerned. I used that term because the result was consistent with (even though not absolutely required by) judicial precedent and common understanding. Professor Coverdale seems to be—dare I say it?—blithely unconcerned about judicial developments that inevitably affect statutory interpretation.
About the Author
Erik M. Jensen. Professor of Law, Case Western Reserve University, Cleveland, Ohio.
Citation
72 Tul. L. Rev. 1749 (1998)