In John Ford’s They Were Expendable, sailors at a bar in December 1941 wait for Boats (played by Ward Bond) to toast Doc’s retirement. They even turn down the radio (missing news of Pearl Harbor) to hear him. But Boats says he isn’t giving a speech—“I just got something to say.” I, too, got some things to say: praise for a famous lawyer, criticism of some famous cases, and—as corollary to the criticism—emphasis on the importance of risk. The praise is easy as pie. Erwin Griswold was a summa academic, solicitor general, and probably the most successful tax litigator who ever represented the Treasury. When Dean Griswold first left public service, Chief Justice
Hughes said that this would cost the government a great deal of money. His name on this lecture resonates both as a tax lawyer and an American. At his death, called its midwestern Republican dean “a champion of civil rights and foe of McCarthyism.” Time should not dim how much integrity and guts it took to do that; he was the dean in more ways than one.
Criticism of famous old cases is not as easy, but it matters because everything goes back. Chimes of the National Broadcasting Company spell out the notes G, E, and C because its original owner was General Electric. Telephone area codes (212 for , 312 for ) are based on the smallest number of clicks that rotary phones made in 1947. “The past,” Faulkner wrote, “is never dead. It’s never even past.”
This talk of the past grows out of an NYU course I give called Classic Cases. Each year the students and I read old decisions as if they were new, and see them cited for conclusions they do not support and issues they do not present. Technical analysis of cases like Helvering v. Gregory, Helvering v. Horst, Helvering v. Clifford, and Commissioner v. Court Holding Co. has virtually vanished. What remain are their unhelpful statements about the right to avoid tax and the importance of substance.