Thursday, December 3, 2009
Over at our sister blog TaxProf (well, a very big sister), Paul Caron reports this fairly unusual situation in which two established professors of tax law (Ethan Yale of Virginia and David Weisbach of Chicago) are being challenged by the government as "experts" in a tax matter. In one motion last month, the government actually put those sarky quotes around the word. We in the law prof world are not used to this...
Despite the quote marks, the main point of the government's position is less bomb-tossing: they cite the more mundane position that experts should not render purely legal opinions. "The Federal Rules of Evidence do not allow an expert to render opinion testimony about the law, because this Court already 'comes equipped with a ‘legal expert,’ called a judge.' Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997)." The opponent responded that the testimony would not be "legal argument"; for example, Weisbach "is offering testimony regarding industry standards of care as it relates to the issuance of tax opinions and whether or not the tax opinions at issue in this case satisfied those standards."