Justice Scalia’s opinion today in United States v. Woods is a minor loss for the taxpayer bar, overturning a longstanding Fifth Circuit doctrine that made it harder for the government to impose exorbitant penalties when it successfully invalidated a transaction as a tax shelter. [Full disclosure: In private practice, I worked on Bemont v. United States, which is expressly abrogated by today’s decision.]
But Woods may be more noteworthy for a minor formatting innovation. [BUT SEE UPDATE BELOW.] As Professor James Duane noted last year to the Green Bag, a legal writing book co-written by Justice Scalia advocates using descriptive headings made of actual words, rather than mere numbers and letters. But as Justice, Scalia had followed this advice only once, in a solo dissent in Gonzalez v. Thaler. Duane wrote:
Justice Scalia’s readers were inspired to hope that his tantalizing dissent in Gonzalez might be a sign that he had finally come around to agreeing with his co-author, and a sign of things to come. But it was not meant to be, at least not yet. Since Gonzalez was decided, Justice Scalia has authored several more opinions, but not one of them follows the novel format of that historic dissent. Is his opinion in Gonzalez a precursor of a bold new writing style we can expect to see from Justice Scalia from time to time in other cases? Or was it merely a device that he thought would somehow be especially appropriate for that case? Only time will tell. In the meantime, those of us who read Supreme Court opinions for a living can only wait and hope.
Well the wait is over. In Woods, the captioned headings have returned! (“I. The Facts” etc.) And this time, in an opinion for a unanimous Court, not a solo dissent.
UPDATE: A perceptive reader points out that Professor Duane and I were misinformed. Justice Scalia has used captioned headings at least once before Gonzalez v. Thaler, in his majority opinion in Morgan Stanley v. Public Utility District of Snohomish County. In our defense, Morgan Stanley was a FERC case, and I don’t think anybody reads FERC cases.