Law Review article on frivolity

[Demosthenes]

Source: TaxProf Blog

July 21, 2009
Snyder: The Law of Frivolity and Pro Se Taxpayers
John B. Snyder, III (Baltimore) has published Barbarians at the Gate?: The Law of Frivolity as Illuminated by Pro Se Tax Protest Cases, 54 Wayne L. Rev. 1249 (2008). Here is the Conclusion:

Ultimately, the law of frivolity is a double-edged sword. At its best, it preserves the integrity of the courts and the legal system. Through normative shaming, it enforces a code of behavior for attorneys. It ensures that only legal arguments may be put before courts. Thus, it strengthens the development of a healthy legal subculture.

On the other hand, frivolity at its worst threatens pro se litigants by excluding them from that subculture and fails to accomplish its own goals. Frivolity encourages courts and attorneys to view themselves as an intellectual and perhaps moral elite. Moreover, it encourages hostility to pro se arguments, particularly those cloaked in rhetoric that violates lawyerly norms. This may lead to legitimate arguments' erroneous rejection.

This tension is hardly reason to abandon frivolity as a legal concept. Nor should courts deliberate ponderously over frivolous arguments; they are, and should remain, trespassers in legal discourse. Courts should recognize, however, that to call an argument frivolous is to call it un-legal, a profoundly significant step. Additionally, they should use the practical tips listed in the preceding section to mitigate some of the bad aspects of frivolity in tax protest cases, with an eye toward their eventual expansion to other types of arguments raised by pro se litigants.

To deal effectively with frivolous arguments, courts must show their proponents the meaning of “legal argument,” both by citable example and by sanctioning fearlessly when necessary. In doing so, however, courts must keep in mind that disposing of frivolous pro se arguments is not a waste of time; it is an attempt to educate the public that courts serve.

Nor are pro se litigants, even tax protestors, somehow beneath the legal profession simply because they come to the courthouse not understanding what it means to make a legal argument. They are not the barbarians at the gate, intent on destroying law as attorneys know it. They may be, however, a subculture of their own, just as the legal system is a subculture of society. The tax protest cases that typify frivolous litigation are a meeting of two segments of society that differ wildly in education, behavior, and social norms. They enable the legal system to hold up a mirror to itself, to see itself from the outside. By considering the ways courts, commentators, and attorneys in general think about tax protest arguments and deem them frivolous, the legal community can come to a better understanding of not only the meaning of frivolity, but of its own role in the larger society as a whole, and of the ways it might serve that society better.

[Brandybuck]

There are those tax protesters who are genuinely innocent of their ignorance. They read somewhere that they can get out of paying taxes legally, and haven't yet been slapped down by the truth. But then there are those tax protesters who deliberate avoid the truth. They have become deluded into believing they are right, and will perform any amount of mental gymnastics to protect that belief.

Courts should show restraint on the former, and slap them lightly on the wrist. The latter should be held in contempt.

[LPC]

Ultimately, the law of frivolity is a double-edged sword. At its best, it preserves the integrity of the courts and the legal system. Through normative shaming, it enforces a code of behavior for attorneys. It ensures that only legal arguments may be put before courts. Thus, it strengthens the development of a healthy legal subculture.

"Normative shaming"? Does he really think that Jerold Barringer, Oscar Stilley, Irwin Schiff, Peter Hendrickson, or any other tax protesters care about "normative shaming"?

And I'll have to read the entire article, because it's not at all clear to me that a "healthy legal subculture" is a good thing.

Finally, he seems to have overlooked the most important reason for punishing frivolous arguments, which is that they waste everyone's time.

On the other hand, frivolity at its worst threatens pro se litigants by excluding them from that subculture and fails to accomplish its own goals.

Once again, I'll have to read the article, because this conclusion makes no sense to me. How does the concept of frivololity exclude anyone from anything?

Frivolity encourages courts and attorneys to view themselves as an intellectual and perhaps moral elite.

So does winning. Should we let tax deniers win every once in awhile just so we don't get too full of ourselves?

Moreover, it encourages hostility to pro se arguments, particularly those cloaked in rhetoric that violates lawyerly norms. This may lead to legitimate arguments' erroneous rejection.

"May lead"? There have been tens of thousands of tax protester cases in the courts over the last 30-40 years. Can he point to even one example of a legitimate argument that was erroneously rejected?

This seems highly speculative.

This tension is hardly reason to abandon frivolity as a legal concept.

But it makes a good law review article?

Nor should courts deliberate ponderously over frivolous arguments; they are, and should remain, trespassers in legal discourse.

Got that right.

Courts should recognize, however, that to call an argument frivolous is to call it un-legal, a profoundly significant step.

I don't follow that. What is "profoundly significant" about discouraging people from arguing the same crap over and over again?

Additionally, they should use the practical tips listed in the preceding section to mitigate some of the bad aspects of frivolity in tax protest cases, with an eye toward their eventual expansion to other types of arguments raised by pro se litigants.

As I said, I'll have to read the article.

To deal effectively with frivolous arguments, courts must show their proponents the meaning of “legal argument,” both by citable example and by sanctioning fearlessly when necessary.

I like the "sanctioning fearlessly" part. The "show their proponents" part suffers from the "lead a horse to water" problem.

Tax protesters/deniers are often not ignorant, or even stupid, but willfully delusional. It takes more than showing them some "citable examples" to knock that out of them.

In doing so, however, courts must keep in mind that disposing of frivolous pro se arguments is not a waste of time; it is an attempt to educate the public that courts serve.

It *is* a waste of time when you're dealing with the same argument from the same idiot for the third or fourth time.

Nor are pro se litigants, even tax protestors, somehow beneath the legal profession simply because they come to the courthouse not understanding what it means to make a legal argument. They are not the barbarians at the gate, intent on destroying law as attorneys know it. They may be, however, a subculture of their own, just as the legal system is a subculture of society. The tax protest cases that typify frivolous litigation are a meeting of two segments of society that differ wildly in education, behavior, and social norms. They enable the legal system to hold up a mirror to itself, to see itself from the outside. By considering the ways courts, commentators, and attorneys in general think about tax protest arguments and deem them frivolous, the legal community can come to a better understanding of not only the meaning of frivolity, but of its own role in the larger society as a whole, and of the ways it might serve that society better.

Who is he preaching to?

[Demosthenes]

And I'll have to read the entire article

I just emailed it to you.

[Famspear]

I think it might be helpful for the courts to explain in more detail occasionally WHY the TP arguments are frivolous, rather than just call them frivolous and move on. To non-lawyers, frivolous sounds kind of vague and almost like dodging the question.

Lawdog, you nailed this one!

It also dismays me that many decisions in TP cases are designated "Do Not Publish"; this reinforces the TP delusion that there is some conspiracy to hide "the truth" from the people.

Another excellent point!

[Imalawman]

Nor are pro se litigants, even tax protestors, somehow beneath the legal profession simply because they come to the courthouse not understanding what it means to make a legal argument. They are not the barbarians at the gate, intent on destroying law as attorneys know it. They may be, however, a subculture of their own, just as the legal system is a subculture of society. The tax protest cases that typify frivolous litigation are a meeting of two segments of society that differ wildly in education, behavior, and social norms. They enable the legal system to hold up a mirror to itself, to see itself from the outside. By considering the ways courts, commentators, and attorneys in general think about tax protest arguments and deem them frivolous, the legal community can come to a better understanding of not only the meaning of frivolity, but of its own role in the larger society as a whole, and of the ways it might serve that society better.

Who is he preaching to?

My question exactly. And ditto your previous comments. Part of me wishes to write a response, but I suppose first I should read the entire article.

[Imalawman]

The entire article

Link

[Brandybuck]

I think it might be helpful for the courts to explain in more detail occasionally WHY the TP arguments are frivolous, rather than just call them frivolous and move on. To non-lawyers, frivolous sounds kind of vague and almost like dodging the question.

Every frivolous argument has already been answered. Over and over and over. A judge doesn't need to go over it again. And again and again. Rap the gavel and throw the bum out! The the typical non-lawyer, these are profoundly stupid questions lacking even in the most basic of entertainment values. Fringes on flags? Names in upppercase? Strawmen? WTF?

[Blup]

dude, you go to law school for 3 years and then read all the practice guides for another 3 years so that you don't make frivolous arguments. I feel no sadness for idiots who can't understand how to make a legal argument. I've worked with many who, despite my admonishments that that "what you're saying makes no legal sense," continue to think that I'm the fool and that they know it all.

My worst nightmare of a client is one who thinks he knows what's going on. Imagine you're a doctor and are about to remove an inflamed appendix and the patient, who's never had a lick of medical training other than watching "House," starts telling you the best way to do it.

The problem with the law is that everyone thinks that they can do it, just as everyone secretly thinks that they're a genius. But let's face it, logical thought, and following esoteric & strict guidelines as to what constitutes an argument and what doesn't, aren't skills that everyone has.

I've met a LOT of lawyers who were awful.. incompetent almost to the point of criminality... but if you distrust the entire legal profession and have to go to court I feel very sorry for you. It's like going in for your appendectomy and thinking the medical establishment is there to kill you. You're going to end up doing things that make your bad situation even worse.

[grixit]

All of the court transcripts of tp cases that have been posted here include a lot of back and forth where an argument has been rejected as frivolous, only to have it brought up again and again, and where the court has made "The Truth about Frivolous Arguments" available to the tp. It seems to me that the article is addressing a situation that does not actually exist, except in the minds of tps desperate to not understand.

[ASITStands]

I think it might be helpful for the courts to explain in more detail occasionally WHY the TP arguments are frivolous, rather than just call them frivolous and move on. To non-lawyers, frivolous sounds kind of vague and almost like dodging the question.

Lawdog, you nailed this one!

It also dismays me that many decisions in TP cases are designated "Do Not Publish"; this reinforces the TP delusion that there is some conspiracy to hide "the truth" from the people.

Another excellent point!

Agreed. Some would say, "Every frivolous argument has already been answered," and to a certain extent, that's true, though not every iteration of the argument has been answered.

There are often unanswered questions. Take Weston's capitation argument. Yes, there are answers that reach back into the history of the courts but not much in recent years.

And, no court has addressed the question head on as completely as Weston would like.

I don't think it's sufficient just to say, "It's frivolous!" and dismiss. Some sort of explanation needs to be given or you just face the same argument six months later from another litigant.

It seems to me that addressing an argument more completely would put a stop to further litigation, and not marking decisions, "Not for Publication," would help the ends of justice.

The solution may be some sort of middle road.

[ASITStands]

All of the court transcripts of tp cases that have been posted here include a lot of back and forth where an argument has been rejected as frivolous, only to have it brought up again and again, and where the court has made "The Truth about Frivolous Arguments" available to the tp. It seems to me that the article is addressing a situation that does not actually exist, except in the minds of tps desperate to not understand.

Which one of us are not hoping that the courts address Hendrickson's argument completely?

It seems to me that while we argue, "Every frivolous argument has already been answered," we're hoping the courts will explicitly explain and put to bed 'Cracking the Code.'

EDIT: And, it would help those of us who deal with former CtC adherents.

[Duke2Earl]

I guess I agree in theory that it would be useful to have a more complete explanation in some cases. But that assumes that the readers are rational. Does anyone here think there is any explanation no matter how well explained that Hendrickson will accept? How about Ed Brown? What about Irwin Schiff? What about Chemor? I don't think there is even any explanation that SteveSy will accept. The true believers cannot and will not accept any explanation. They simply cannot... their entire ego and worldview is totally tied up in their righteousness and "analysis." To admit they were wrong requires them to admit to themselves and everyone around them that they have wasted their lives and the lives of their families. It ain't gonna happen. But there are also those that can be saved. There are those that are on or near the fence. To those, a cogent explanation might just make a difference. So yes, I would like to see the Supreme Court actually take a tax protester case and write a 9-0 opinion cutting down some of the more common fallacies. Yes, I would like to see a few more detailed explanations and a few more published decisions. But I do not think it worthwhile to expend that much effort on every case.

[Blup]

But that assumes that the readers are rational.

Exxxxxxactly... but see, if they were rational, they would have done the research to avoid making the stupid argument in the first place.

It's a pointless exercise by the courts to point out idiocy to people who don't care what the courts say one way or the other.

[Pottapaug1938]

Even if the Supreme Court decides a case, 9-0, which demolishes each and every known TP argument, the TPers would find some way of saying that it's invalid, like "the Justices are afraid of IRS audits" or "the Justices are not sitting in a manner allowed by Common Law/the Constitution/the Magna Carta/whatever".

[Demosthenes]

Which one of us are not hoping that the courts address Hendrickson's argument completely?

I'm not. What would be the point? The more words the court uses to say a tax denier theory is really, really stupid, the more the promoters attempt parse those words exposing the hidden meaning therein that helps them sell more books/tapes/videos.

The more detailed and explicit the answer provided by the court is, the more likely that someone like Pete will point out perceived loopholes.

[Lambkin]

I don't consider myself a law-and-order type, but it seems to me the only effective message to the true believers is "you can't win" and that will only be effective by delivering penalties to the promoters and flushing their web sites down the toilet sooner rather than later. Anyone who's going to be persuaded by legal arguments would be satisfied by the IRS frivolous arguments publication, and anyone else just has to be smacked hard enough that they give up. Shortening the time that guys like Pete stay on the street is the best way to stop the brain damage from spreading.

[Mr. Mephistopheles]

I think it might be helpful for the courts to explain in more detail occasionally WHY the TP arguments are frivolous, rather than just call them frivolous and move on. To non-lawyers, frivolous sounds kind of vague and almost like dodging the question.

Every frivolous argument has already been answered. Over and over and over. A judge doesn't need to go over it again. And again and again. Rap the gavel and throw the bum out! The the typical non-lawyer, these are profoundly stupid questions lacking even in the most basic of entertainment values. Fringes on flags? Names in upppercase? Strawmen? WTF?

Lawdog has a very valid point. If you ever encounter tax protestors/deniers on a public forum such as Youtube, you will see the wisdom in his comments.

[ASITStands]

I guess I agree in theory that it would be useful to have a more complete explanation in some cases. But that assumes that the readers are rational. Does anyone here think there is any explanation no matter how well explained that Hendrickson will accept? How about Ed Brown? What about Irwin Schiff? What about Chemor? I don't think there is even any explanation that SteveSy will accept. The true believers cannot and will not accept any explanation. They simply cannot... their entire ego and worldview is totally tied up in their righteousness and "analysis." To admit they were wrong requires them to admit to themselves and everyone around them that they have wasted their lives and the lives of their families. It ain't gonna happen. But there are also those that can be saved. There are those that are on or near the fence. To those, a cogent explanation might just make a difference. So yes, I would like to see the Supreme Court actually take a tax protester case and write a 9-0 opinion cutting down some of the more common fallacies. Yes, I would like to see a few more detailed explanations and a few more published decisions. But I do not think it worthwhile to expend that much effort on every case.

It might not stop the gurus (i.e., Hendrickson, Schiff, etc.), but it would dissuade copycats.

Using whatever means is necessary to remove Hendrickson and Schiff from polite society, or imposing sanctions in whatever sort, might stop their nonsense, but doing a bit more on the frontend of various arguments (in the courts) would help dissuade those who follow.

They might see more clearly the risks involved before they follow the guru.

As I said earlier, it might need a middle-of-the-road approach. A bit of this and a bit of that.

[Duke2Earl]

The problem is that there are two types of folks out there. I completely agree with the hardline opinion with respect to the true believers.... nothing anyone could say will affect them in the slightest. But I still hope and believe that there are some out there who can still be reached. Some "protesters" do see the light and "reform." We have at least one here. That's why I suggested that at least sometimes, in a few selected cases, a more detailed review and explanation might be useful. But so far as the majority goes I agree that explanations other than than those already out there are useless.