Boris Bittker

Boris Bittker, the eminent tax law professor who was at Yale Law School for almost 60 years, died last week at the age of 88. He was an extraordinary man whose work continues to interest younger generations of tax academics despite all the changes in intellectual life over the last few decades.

I never knew Bittker personally, even though I attended Yale Law School while he was still teaching. I took all of my tax courses with Marvin Chirelstein, whose delightful wit made me think him the preferable choice. When I was a student there, Bittker had a reputation as a bit of a curmudgeon, although actually not in a way that did him personally any discredit. The story was that he was more or less tired of spending his time talking to people who didn't know or understand the subject nearly as well as he did. So in a way it was a tribute to his intelligence and knowledge, as well as his taste for more penetrating conversation than we callow twenty-somethings could offer him.

In a recent article of mine, concerning tax expenditures and published in a recent Tax Law Review, I invoked the old Isaiah Berlin phrase about the fox who knows many things and the hedgehog who knows one big thing. Bittker was the fox, and Stanley Surrey the hedgehog. Bittker is famous for his naysaying when people such as Surrey tried, as he saw it, to over-simplify in support of big themes. I do feel that Bittker was a bit too much of a nihilist, sometimes overly pooh-poohing important things in the interest of contrarian exactitude. But on the other hand, this is a man who, in the 1960s, before economics reasoning and training had greatly penetrated law schools, outpointed leading public economics figures in economics. I am thinking of the "comprehensive tax base" debate, where he hit them with the theory of the second best (under which minimizing total distortion need not imply minimizing the number of separately countable errors). But still I think he was on the wrong side of that fight overall. Another thing I said about him in that TLR article was that his response to Surrey, in their debate concerning tax expenditures, was a "yes, but" that read like a "no."

While Bittker sometimes pushed his contrarianism too far, obscuring important points because they needed to be qualified in this way or that, his stance was quite aesthetically appealing. He also had a distinctive voice as a writer, witty and controlled, that made a striking contrast with the usual run of the mill. He was a person who we contrarian younger folk, not always very impressed with the immediately preceding generation, admired even if, with the passage of time, we were going a different way.