Saturday, January 28, 2006
Michael Mulroney (Villanova)
- B.S.C. 1954, Iowa
- J.D. 1959, Harvard
With no intended reflection on those who may follow me in the Spotlight, I can only assume that by asking me to do this one Paul Caron has about reached the bottom of the barrel of candidates for this blog feature who are over the age of 70.
Probably because of the number of appellate cases I’ve argued over the years, and the advice I’ve given to students in moot court competitions, I’m a bit uncomfortable in using the first person to describe myself. But here goes.
I peaked early in my formal education. Just as the Korean War began I graduated first in my Elkader, Iowa high school class of 28–a class rank that I would never again come close to achieving in college or law school. My aunt, the clerk of the local Draft Board, was somewhat apprehensive about the small-town public perception involved in giving me an educational deferment to get an economics degree from the University of Iowa when all the rest of my high school classmates were being sent off to war. However, she was able to rehabilitate herself in her own eyes by shipping me off to basic training (at Camp Caffee, Arkansas then, and maybe still today, the armpit of the universe) the day after college graduation.
Because I had been the only boy in my high school typing class the Army made me a clerk and bundled me off the Germany (not a bad place to fight the Korean War). I was assigned to a truck driving battalion as a school teacher where for two years I taught functionally illiterate sergeants and warrant officers to read and write, multiply and divide, and a bit of American history. It was the most satisfying teaching experience of my life. If only my current Now Generation law students were as motivated as those guys!
I thought I wanted to be a federal banker like my father. But I ran into a couple of other drafted PFCs who had just graduated law school. Enthralled by their anecdotes of intellectual and social derring-do, I decided to give law school a try. I chose Harvard over Columbia and Yale because it was farther from Iowa than the other two. About the only resume’-worthy credential I accumulated from the experience was to follow Ralph Nader as the editor-in-chief of the Harvard Law Record (“All the News that Fits We Print”). I haven’t followed Ralph since then, however.
I decided to return to my roots and take the bar examination in Iowa. That presented several logistic problems that I thought might put me at a competitive disadvantage on the test. First, at least in those days, they didn’t teach much Iowa law at Harvard. Second, the bar examination questions were written mainly by the faculty of the Iowa law school, where the examination took place, and the last month of the 3L Spring semester was devoted to an informal bar review. And third, the examination started two days after my graduation.
In default of a better alternative, I prepared for the examination by borrowing the Martindale-Hubbell All-States Digest volume from the Social Law Library in Boston and memorized the Iowa chapter on the trip out to Iowa City. I guess it worked because I passed. In those days–and hopefully still--the Iowa bar examination was a manifestly civilized process. The test was given on Thursday, Friday, and Saturday morning, the examinations were graded in real time, and by early Saturday afternoon you knew whether or not you had passed. Those of us who did had dinner Saturday night with the full bench of the Iowa Supreme Court, and we were sworn in on the spot.
But, in my case there was one slightly unsettling anomaly. The examination was graded pass/fail; the numeric scores were not disclosed. However, presumably in an effort to have a little good fun, the examiners conducted an oral interview of the top two and the bottom two passing candidates. I was one of the four, and to this day I don’t have a clue as to whether I was at the top or the bottom of the array.
Like many law students, then and now, during law school I didn’t have much of an idea about what I wanted to be when I grew up. So I took only two tax courses (Dean Griswold and Stan Surrey). Both of them frightened me badly. In 1957 Dean Griswold, who had teethed on the 1939 Code, taught the entire introductory course by referring exclusively to 1939 Code sections even though the 1954 Code was firmly on foot and covered in detail in the casebook. Needless to say, the CCH translation tables were in considerable demand among his students. And, Surrey was so far ahead of me (and most of the rest of the class) that I was continually hustling to catch up–and probably still am.
At graduation, again like many 3Ls, I simply took the best job offer available without any regard to how many courses in the job’s legal specialty I had in law school. It happened to be Tax Court clerkship, and so I launched a career in tax law that has spanned almost 47 percent of a century (I love to say that) based on only two tax courses. My judge was John Mulroney. Since he was not a close relative nepotism was not involved, but it didn’t hurt a bit that he and my father had gone to law school together.
In fact, neither the judge nor I could ever quite figure out how closely related we were, but John B. Jones, Jr., did. At the end of my stint at the Tax Court I thought it would be nice to work as an appellate attorney for the Justice Department’s Tax Division. John, a once and future tax partner at Covington and Burling, was the Division’s First Assistant and he interviewed me for the job. The first thing he asked when I walked into his office was: “How are you related to Judge Mulroney?” When I confessed that neither of us knew, he pulled a piece of paper out of his wastebasket, and proceeded to determine our common ancestor. His answer: sixth cousins. That was the full extent of the interview.
In my four years in the Appellate Section I briefed and argued about 70 cases in federal circuit courts and drafted a couple of Supreme Court briefs (which Assistant Solicitor General Wayne Barnett, later of Stanford law school, invariably altered beyond recognition). While there I developed a life-long respect for the ability and integrity of the career attorneys in the Tax Division. In my view, Government tax litigation is generally in very competent hands.
I moved from Justice to Lee, Toomey & Kent, a Washington tax specialty firm (now done in by greed), and over a period of about 25 years worked my way up the letterhead. Mostly we were outside tax counsel for Fortune 500 companies, and my areas of interest (I can hardly say “expertise”) were litigation, foreign matters, natural resources, and corporate adjustments. While many think of federal taxation as an arcane and narrow legal specialty, I view it as the last bastion of the general practitioner. In what other area of the law can you: lose a case on a continuing issue six times (including two denials of cert.) and end up having your adversary concede the issue for all time; advise the largest stud farm in Ireland; in a 34-hour non-stop session in your law firm’s conference room form what is now the biggest hard-mineral company in Australia; own the Queen Elizabeth I in your own name (if only for five minutes as a straw man); or help create Viacom? Along the way, in order to avoid D.C. Superior Court appointments to try criminal cases, I did a fair amount of pro bono appellate representation of juvenile losers in the D.C. Court of Appeals.
By about 1986 I began to notice that, although I had practiced tax law for quite awhile, I didn’t seem to be getting better at it any more. So I decided to teach. To test the waters, I arranged to inherit Jim Holden’s tax-professional responsibility adjunct course in the Georgetown graduate tax program (which I continued to teach for about 15 years). Undaunted by the fact that within 10 minutes of the beginning of the very first law class session I had ever taught, a student sitting directly in front of the podium fell fast and noisily asleep, I decided it was fun and so I confidently applied for a full-time berth at each of the 100 top law schools in the country. Much to my discomfiture, I discovered that law schools were not falling all over themselves to hire a mid-50s white male hot-shot Washington tax practitioner–an unfortunate phenomenon I believe continues unabated to this day.
After two years of constant rejection, in 1988 I was able to sweet-talk Villanova into taking me on to run its graduate tax program. At present I ride herd on 240 graduate tax students, about three-dozen instructors–mostly adjuncts who are among the leading Philadelphia area tax practitioners–and administer a curriculum of 49 graduate-level tax courses. The students are both attorneys (LL.M., 65 percent) and CPAs (M.T., 35 percent) which adds a certain administrative gloss: while no distinction is made in the classroom between the two professions, course content must necessarily be tailored to the sometimes-divergent needs of each audience. I like to think that the result is a somewhat more catholic (note the lower-case “c”) approach to substantive course coverage than is present in the monochordant graduate tax programs.
I teach an introductory tax course and professional responsibility in the J.D. program and, over the years, a variety of courses at the graduate level. Since I get to designate course instructors, I assign myself to teach at least one of the required courses so that I am exposed to each of the students who transit the program: this semester I’m doing the tax research and writing offering.
I belong to the ordinary gaggle of bars (Supreme Court, Tax Court, nine circuit courts of appeals, a couple of federal district courts, and so forth), and the tax functions of the usual array of professional organizations (e.g., ABA, D.C. Bar, Federal Bar Association, Iowa Bar, IFA, ACTC, J. Edgar Murdock American Inn of Court (Founding Master), AALS). Probably my most active involvement is with the ABA Tax Section (Publications, Appointments to the Tax Court, Standards of Practice, Court Procedure) and I am the Managing Editor of the Section’s quarterly journal The Tax Lawyer (send me your good articles).
I’ve written two books on tax procedure and international tax (both now mercifully out of print, so no more supplements), about a dozen and half BNA Portfolios, and a small bunch of articles (including the seminal article on the generation-skipping tax ramifications of the Rule Against Perpetuities).
Personal: Ellen, my wife of 46 years and best friend; five children (a Chicago lawyer/publican, a traffic manager for a California-based office supply firm, a movie actor, a movie script writer, and a former Philadelphia Assistant District Attorney who is now a lobbyist and the director of grants for the Philadelphia Zoo); and a black and tan American coon hound who lives with Ellen and me in a very small 200-year-old house a mile from my law school office. (Think Quality of Life: I can go home for lunch, and rush hour lasts 47 seconds on a bad day.)
Hobby: sports car racing. I drive a 1962 Morgan (British sports car) in Sports Car Club of America and vintage races, and a 1926 Morgan in historic competition. Under the banner of my one-man Phlexed Sphincter Racing Team (consider the physiology of the phrase before you begin to snicker) I have competed in about 150 races over almost 20 years, but have never won one. Thus the team motto: “Never Undefeated, see Ecclesiastes 9:11.” [Editor's note:
I have seen something else under the sun:
The race is not to the swift
or the battle to the strong,
nor does food come to the wise
or wealth to the brilliant
or favor to the learned;
but time and chance happen to them all.]
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