Originally published on Forbes.com.
In a recent interview, Judge Albert Lauber of the United States Tax Court told me that he is a textualist. And you may find what in his education influences his textualism surprising. It was the study of classical languages, particularly Greek. So every time a CPA looks at a Code Section and says “It is all Greek to me”, Judge Lauber probably smiles.
Textualism In The News
We have been hearing about textualism in the hearings on the nomination of Amy Coney Barrett to the Supreme Court, which makes Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Byran Garner timely:
We look for meaning in the governing text, ascribe to that text the meaning it has borne from inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s consequences.
It reminds me just a bit of Reilly’s First Law of Tax Planning – It is what it is. Deal with it.
The late Justice Scalia is seen as something of the apostle of textualism and like Barrett was noted as being a devout Catholic. But at the end of the day, that is not what textualism is about. Judge Lauber is a gay atheist. He does however have something else in common with Scalia besides textualism, as we will see.
Education – Lawyers Versus Accountants
When I started blogging I thought of the Tax Court as kind of an abstraction, not paying any attention to the idea that the judges were individuals. Lew Taishoff, who blogs the Tax Court with incredible intensity taught me better. Mr. Taishoff gives the judges nicknames. James Halpern is “Big Jim”. Diana Leyden is “The Taxpayer’s Friend”. Maurice Foley is “Mighty Mo”. Lauber is “Scholar Al”.
I noticed Judge Lauber in the Susan Crile decision. Crile was a professor at Hunter College and a renowned artist. Her activity as an artist independent of her professorship was challenged as not being profit-oriented enough to pass muster under Section 183.
Judge Lauber’s assessment of her artistic career made me reflect on how much better-educated lawyers generally tend to be in comparison to accountants. Judge Lauber seemed to be even above and beyond there and it shows up in his CV. He has a BA and a JD from Yale, but squeezed in between those is an MA in classics from Clare College in Cambridge. Clare College was already over 300 years old when Elihu Yale was born in 1649.
So between his bachelor’s and law school, Judge Lauber spent three years studying literature in ancient Greek and Latin. Judge Lauber told me that the study of Greek, in particular, is what helped make him a textualist.
And Judge Lauber sees the textualist approach as very much similar to what he went through in studying ancient Greek text. The idea is that in interpreting a statute they look at the words (text) and assign to them their ordinary meaning at the time that the statute was drafted. They don’t give a lot of consideration to legislative history and discerning legislative intent. What they do consider is what the words meant when they became part of a statute.
The same Greek word could have a different meaning depending on whether you find it in Homer, Plato, Xenophon or the New Testament. Ancient Greek covers a period of roughly 1,500 years and numerous dialects. To give you an idea of how hard that makes it consider this:
Whan that Aprill with his shoures soote/The droghte of March hath perced to the roote,/And bathed every veyne in swich licour/Of which vertu engendred is the flour;
That’s English from about 600 years ago.
Making Of A Textualist – The Early Days
Now I don’t know much about Clare College or even Yale, but that is not where Judge Lauber starting studying Greek and Latin. Other biographical sources mentioned that he had attended a Jesuit high school, an intriguing detail that I resolved to clarify. I finally nailed it down. Xavier High School, 30 West 16th Street in Manhattan – Class of 1967. I asked Judge Lauber how it was that he went to Xavier and the story is kind of interesting if not that detailed.
He told me that his immediate family was strictly Catholic, but this was the work of a single Irish Catholic grandmother – a formidable woman no doubt. The rest of his ancestry was Alsatian and English.
There was significant wealth in his family. They had been living in New York City, but decided to move to Upper Montclair, NJ thinking that might them spare the expense of private school, but when the time came they decided a Catholic school was in order. Of all the many possibilities in the metro New York area, why Xavier was selected is not something Judge Lauber was privy to or he does not remember. He thinks it might have been because of somebody in the neighborhood.
Keep Marching
What appeared to make Xavier most distinctive was the JROTC regiment, which all students were required to participate in, which meant commuting to school in uniform every day. They were sometimes referred to as “subway commandos”. They marched in the St. Patrick’s Day parade and a couple of reviews and turned out for the annual Turkey Day showdown football game with Fordham Prep – the longest-running high school football rivalry in the history of New York City.
So imagine a teenager from a prosperous New Jersey community starting his sophomore year in high school in 1964. Much as would be the case with a public high school, he will be studying American history, English and American literature, geometry and a modern language. There are however some minor differences.
The school he attends will be all-male – both students and faculty (except the librarian). He will have a commute of over an hour each way to Manhattan in a military uniform which he will have to keep neat with shiny brass and shiny shoes and very short hair, while having a stated expectation of three hours of homework every night.
In addition to the more common courses noted above, he will have Latin, Greek, Theology and Military Science (but no biology or chemistry or that sort of science). Other than that it was just like going to Riverdale High with Archie, Veronica, Betty, and Jughead.
Life On 16th Street
Cadet Lauber’s status as a “rich kid” would not have meant all that much inside the school. Everybody was wearing the same uniform. And not even seniors were driving cars to school. Students could distinguish themselves academically, athletically, with military zeal or in a variety of activities or as authority scorning malcontents.
Asked about the effect of the military aspect of the school he mentioned the strict discipline. But when probed on that he spoke of the Prefect of Discipline, a Jesuit priest. The reign of terror that passed for discipline was actually Jesuit enforced. JROTC just gave it a bit of a military favor with “jug”- Jesuit high school detention – being supervised by cadet officers and NCOs with some marching and standing at attention and hall monitors being designated MPs.
Part Of The Regiment
Cadet Lauber was underwhelmed with the quality of the military instruction and would sometimes get in trouble over his hair. So the number one military slot – the colonel of the regiment was not open to him.
Charlie Brown, Colonel of the Class of 1970, explained it this way.
My understanding is that the decision process for the top ranks was more inclusive. I believe that a number of the Jesuits were at least polled for their suggestions and then were given an opportunity to weigh in as the list got smaller. My opinion always was that to be considered for rank you had to have at least distinguished yourself academically, participate in some school activities, accepted the military as a part of Xavier life and it didn’t hurt to participate in a varsity sport.
So what did they do about Cadet Albert Lauber, the number one student academically, all-together lacking in military enthusiasm and deterred from activities by his long commute? The yearbook, which I cannot reproduce here has the photos and activity summaries of the top officers of the Regiment on a separate page. And Major Lauber is on it along with the colonel and four lieutenant colonels.
Cadet officers for the most part had very little in the way of actual duties, but the top rankers were different. The Colonel in some ways embodied the school and would often be addressing the students. The commanders of the first and second battalions were, subject to adult supervision, in charge of roughly 40% of the student body as they weekly practiced marching and standing in formation at the Armory of the famed 69th New York (The First Regiment of The Irish Brigade during the Late Unpleasantness)
Cadet Major Lauber was given command of the Third Battalion. The Third Battalion was composed of special units – the color guard, the band, the precision drill team and the Regimental Supply Corps. The special units never assembled as a battalion. So Major and then Lieutenant Colonel Lauber did not even have a weekly drill to attend.
An Odd Coincidence
And here we have a bizarre coincidence. The textualist who preceded Judge Lauber at Xavier maintained an attachment to the school later in life. In 2011 Justice Antonin Scalia, Class of 1953, addressed the Regiment, now a voluntary activity making it more the size of a Civil War regiment that was being mustered out after engaging in several major battles and losing even more to disease, than the thousand or so that had been there in Lauber’s time. Scalia lamented that Xavier was no longer thoroughly military and bragged just a bit:
Whatever Regimental glory I won when I graduated in 1953 is unrecorded. The one item I can point to is that I rose to the rank of Lt. Colonel, commanding officer of the Marching Band. I count that an honor because traditionally the post had been held by a Major.
So Scalia and Lauber were the top students academically at Xavier in their respective classes and both graduated with the rank of lieutenant colonel. Justice Scalia’s military enthusiasm must have been somewhat infectious. One of his sons Colonel Matthew Scalia, West Point Class of 1995, currently commands Fort Benning.
The one thing that Judge Lauber found of benefit from Military Science was learning to read topographic maps. He also enjoyed taking apart the M-1 rifle and putting it back together again. He used the topographic map skill to plan some hikes late in life.
But the Greek really stuck with him, although he admits that now he would probably not do too well trying to read it.
Textualism In Tax
Judge Lauber has knocked out some pretty important opinions since his appointment by President Obama effective on January 1, 2013. Amazon.Com, Inc stands out for the stakes – over $200 million. As I hunted for something distinctively textual, though, the best I came up with was in the Abrahamsen decision. where a taxpayer was arguing that she did not understand the implications of a waiver she signed.
We expect that many foreign nationals seeking permanent resident status in the United States could advance similar arguments. If such arguments were sufficient to nullify the Forms I–508 they signed, the carefully constructed waiver procedure set forth in the regulations would become the exception rather than the rule.
That is kind of obscure, so for the best example of tax textualism overall I will give you an example from Reading Law (the Scalia book noted above). To illustrate the Conjunctive/Disjunctive Canon, the authors used Office Max Inc. v United States which concerned the telephone excise tax. The tax was applied to charges for calls that varied based on both the time and distance of the call.
Taxpayers argued that flat rate long distance plans were not subject to the tax since distance was not a factor in those charges. The court agreed. If you have been at the tax game for a while you will probably remember, the 2006 income tax returns where people would either dig out old phone bills or just go for $30 or $60. Seems like every tax season has something. And that was the thing for that year. You can blame textualism.
End Of An Era
The education that Judge Lauber received at Xavier was probably not that different from Scalia’s. And there is continuity even till today. Xavier is still at 16th Street and still Jesuit, although there are not nearly as many of them. Even the President and Headmaster are laymen. The student body is still all-male, but not the faculty. The military remains, but it is an optional activity. And the JROTC program nationally has become somewhat demilitarized focusing more on citizenship and character without blocks of instructions on weapons, tactics, and counterinsurgency. Latin is elective and there is no Greek.
Much of that change started happening not long after Lauber’s graduation, but that is beyond the scope of this piece.
There Is More
I spent a lot of time trying to figure the educational changes out, particularly when it comes to the Jesuits and the classical languages. I interviewed Father Jose Mesa SJ -Secretary of Education for the Society of Jesus- and Father Joseph Parkes SJ – Provincial Assistant for Secondary Education for the Jesuits’ USA Northeast and Maryland Provinces. That story is too far from the tax lane for me to tackle here, but I will have something on it on another platform soon.
Disclosure
I was Lauber’s contemporary at Xavier, a freshman when he was a senior, but did not know him.
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