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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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