The Summons Power and the Limits of Theory: A Reply to Professor Hyman
Leo P. Martinez
University of California Hastings College of the Law
Tulane Law Review, Vol. 71, No. 6, 1997
Professor David Hyman's recent article, "When Rules Collide: Procedural Intersection and the Rule of Law," which appeared in the last issue of the Tulane Law Review, explains the problems associated with what he terms "procedural intersections." Professor Hyman finds that a "procedural intersection" occurs when parties are engaged in separate adjudicative proceedings in different fora, regarding the same issue, and each forum offers competing procedural rules.
Dean Martinez's criticism of Professor Hyman's theory is not centered on the grand vision Professor Hyman takes, but rather on the narrow grounds that would appear to preclude the use of the administrative summons power in the Tax Court.
The criticism is in three parts. The first part is that Professor Hyman's theory understates the extent of the sovereign's power to tax. The second is that Professor Hyman's theory emphasizes the "level playing field" in the tax context to an unjustified extent. The third is that Professor Hyman's theoretical construct simply does not apply in the Tax Court.
Date posted: December 3, 1998