Eldon R. Kenseth and Susan M. Kenseth - Page 60




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         statement of Judges Rives and Brown and Judge Wisdom’s dissent is              
         a disagreement about the application of traditional assignment of              
         income principles.  The broader holding, which, the majority and               
         I agree, frames the issue on which the case at hand and other                  
         contingent fee cases should be decided, is discussed below in                  
         subpart ii.  Of course, the majority agree with Judge Wisdom and               
         I agree with Judges Rives and Brown.                                           
              i.  Narrow Ground--Significance of State Law                              
              In deciding Cotnam v. Commissioner, supra, the majority of                
         the Court of Appeals, in the portion of the panel’s opinion                    
         written by Judge Wisdom (hereinafter majority opinion), relied                 
         heavily on two unusual characteristics of attorney’s liens under               
         Alabama law.  The majority opinion noted that the Alabama                      



              35(...continued)                                                          
          Supreme Court of the United States, see, e.g., Logan v. Zimmerman             
          Brush Co., 455 U.S. 422, 438-442 (1982) (separate opinion of                  
          Blackmun, J.); Abbate v. United States, 359 U.S. 187, 196-201                 
          (1959) (separate opinion of Brennan, J.); Wheeling Steel Corp. v.             
          Glander, 337 U.S. 562, 574-576 (1949) (separate opinion of                    
          Jackson, J.); cf. Helvering v. Davis, 301 U.S. 619, 639-640                   
          (1937) (opinion of Cardozo, J.); Andrew Crispo Gallery, Inc. v.               
          Commissioner, 16 F.3d 1336, 1343-1344 (2d Cir. 1994) (opinion of              
          Van Graafeiland, J.), affg., vacating and remanding in part T.C.              
          Memo. 1992-106; In re Estate of Sayre, 279 A.2d 51, 52 n.2 (Pa.               
          1971) (opinion of Bell, C.J.).  As Justice Jackson said in                    
          Wheeling Steel Corp. v. Glander, supra at 576:  “It cannot be                 
          suggested that in cases where the author is the mere instrument               
          of the Court he must forego expression of his own convictions.                
          Mr. Justice Cardozo taught us how justices may write for the                  
          Court and still reserve their own positions, though overruled.                
          Helvering v. Davis, 301 U.S. 619, 639.”  For discussions of the               
          practice, see Aldisert, Opinion Writing, 168-170 (1990);                      
          Llewellyn, The Common Law Tradition: Deciding Appeals 494 (1960).             





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