Monday, August 22, 2011

Death of Bernard Wolfman

I'm saddened by the death of emeritus Harvard tax law prof Bernard Wolfman, whom I had gotten to know at HLS conferences, and whom I always enjoyed seeing again.

On the academic side of things, the two articles of his that I know best - both diatribes, but in each case justifiably so - are (1) an attack on the Supreme Court's egregious Frank Lyon decision (which upheld a sale-leaseback tax shelter, based on a silly list of 23 factors and a bizarre insistence that 3-party deals are inherently better than 2-party deals), and (2) a critique of Justice William Douglas' tax jurisprudence, which bizarrely switched, I believe it was in 1948, from being routinely pro-government to anti-government (except for one subsequent case, called P.G. Lake, in which Douglas apparently decided that he hated oil company executives even more than the IRS).

Each has some apparent back story. In the Frank Lyon article, I believe one can discern that Wolfman was unhappy on ethical grounds about the behavior of the renowned Erwin Griswold, a tax prof who had been his colleague (and the Harvard Law School Dean) not to mention Solicitor General of the U.S., and who thus carried some clout when he represented the taxpayer before the Supreme Court. In this case, Griswold seems not to have done his best to inform the Supreme Court accurately of the tax stakes in the case (which pertained to tax rate differences, since one of the parties had tax losses that made depreciation deductions unusable). In the Douglas article, Wolfman does not try to explain the reason for the 1948 change of heart, but I wouldn't be surprised if he knew a story that the late Walter Blum once told me, to the effect that Douglas changed sides in tax cases after he was audited, apparently in relation to reimbursements for his wife's travel expenses when he gave speeches. I've never tried to check out this story, but Douglas actually has a somewhat foolish dissent in a case involving this issue that is in my co-authored Tax I casebook. If true, however, bad move by the IRS but not very edifying so far as Douglas is concerned.

One part of Bernie's career that may not be well-known, but that he once told me about at dinner, pertained to his service in World War II. He was in an infantry division on the German front after D-Day, and apparently would have been right at the spot where the Germans attacked in the Battle of the Bulge, except that he was evacuated a few days beforehand due to severe frostbite in his feet. This he attributed to the fact that the U.S. Army, trying to be thrifty, gave its soldiers on the German front - in the middle of what was apparently one of the coldest winters there in the 20th century - footwear that had been designed for fighting in the scorching deserts of North Africa.


Dina said...

Thank you for paying tribute to my father. If you'd like a glimpse of the personal side of him as well, feel free to look at

Daniel Shaviro said...

Thanks, Dina. My best sympathies on your loss.

Dina said...

We have created The Bernard Wolfman Civil Discourse project to honor the legacy of my father, Bernard Wolfman. As you know, having paid tribute on this blog at the time, he died in August 2011 after a life as a champion of civil rights and a respected scholar of legal ethics and tax law. He sought justice through lifelong learning and action and he believed that civil dialogue was key to those outcomes.

While reflecting on my father’s life, I thought about the state of discourse around public policy. If people with differing views could not talk among and truly hear each other, how could we learn? If we could not learn, how could we take meaningful, informed action? And if we could not take action, how could we progress?

The centerpiece of The Bernard Wolfman Civil Discourse Project is a forum for exploring critical policy issues while modeling civil dialogue between leading experts from differing positions and providing concrete opportunities to take action.

Our inaugural forum on March 28th features two nationally recognized experts to discuss the federal government’s role in health care policy: Dr. David Nash, dean of the Jefferson School of Population Health, and Dr. Stuart Butler, director of the Center for Policy Innovation at The Heritage Foundation.

The Bernard Wolfman Civil Discourse Project's first forum will be 7:30 pm, Thursday, March 28 at Beth Sholom Congregation, 8231 Old York Road, Elkins Park, PA. It is free but requires registration at