A Further Oddity in Ballard
on Mar 8, 2005 at 9:55 pm
As I explain below, the Court avoided the constitutional and statutory questions on which cert. was granted, and instead held that the Tax Court had violated its own rule. But in her introductory section, Justice Ginsburg, writing for the Court, included the following curious sentence: “We agree that no statute authorizes, and the current text of Rule 183 does not warrant, the concealment at issue.” Is it possible that Justice Ginsburg’s draft opinion at one point resolved the statutory question — at least to the extent of holding that the practice was not authorized by statute, whether or not it was affirmatively prohibited — and that this reference (which also appears in the syllabus prepared by the Reporter of Decisions) is a lingering remnant of that holding?
