Document Type

Response or Comment

Publication Date



This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and labeled Chief Justice Roberts’s criticisms as ‘‘logically flawed’’ and ‘‘unpersuasive and overstated.’’ I wrote a piece in Tax Notes disputing Cohen’s analysis and concluded that Chief Justice Roberts’s criticisms were ‘‘persuasive and accurately stated.’’ Cohen then responded to me in another Tax Notes article in which he concluded that my arguments are ‘‘contestable and perhaps even untenable.’’ This piece is a rejoinder to Cohen’s reply.


Reprinted with the permission of Tax Analysts.