While these studies do represent an important step toward defining the president's means of acting beyond informal bargaining (which is difficult to observe), the research program as a whole has yet to systematically analyze memoranda use across time.
Most surveys of the tools of presidential action leave out memoranda.
While this conclusion is now standard and somewhat warranted, memoranda remain an important component of presidential action.
However, the fact that presidential memoranda should be included in that discussion is plainly apparent when one considers the basic points of theories of unilateral action.
Presidential memoranda are a vital part of these outputs.
The Sixth Circuit commented that the two KPMG memoranda bore the label "attorney-client privilege" but not "work-product doctrine.
The Sixth Circuit considered both the content of the memoranda (that they discussed the strengths and weaknesses of the taxpayer's case) and also the circumstances under which the memoranda were prepared.
Because the KPMG memoranda in Roxworthy were received just before the due date of the tax return, rather than before the transaction analyzed, the magistrate judge and district court seemed to assume that they must have been meant to assist the taxpayer in preparing its return.
Despite the attention to timing in Roxworthy, it is difficult to know how much weight if any to assign this particular timing issue--whether the memoranda were prepared before the transaction or rather before the return was filed--when evaluating the core issue whether the document was prepared in anticipation of litigation or controversy with the IRS.
There was ample evidence to support a finding that the firm knew its reports were not limited to Vintech's internal or personal use but were to be included in the offering memoranda
and thus communicated to potential investors.
TEI recognizes that technical advice memoranda and private letter rulings formally have no precedential effect.
During the liaison meeting, we invite discussion of the National Office's efforts - through published guidance, technical advice memoranda, or otherwise - to bring clarity to this area.