TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, October 16, 2018

Johnston: We Need A Tax Police To Go After The Likes Of Donald Trump

David Cay Johnston, We Need Tax Police – And They Should Go After the Likes of Donald Trump:

When the New York Times exposed decades of tax cheating and “outright fraud” by the sitting president, it prompted people to ask important questions about the corrupt practices of the Trump family. The answers are central to the future of America.

Where was the Internal Revenue Service? How did the Trumps get away with decades of schemes the Times said allowed them to evade close to a half-billion dollars of income and gift taxes? Is Donald Trump continuing these practices? Is that why he refuses to make his own tax returns public? Can anything be done about it?

I’m in a unique position to answer those questions. I am the Times’ former tax reporter, the journalist who has covered Trump longer than anyone else, more than 30 years. ...

Congress, which makes tax law, has never properly supported the IRS, which I like calling the Tax Police Department.

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October 16, 2018 in IRS News, Tax | Permalink | Comments (0)

Tennessee Higher Ed Commission Rejects Transfer Of Valparaiso Law School To Middle Tennessee State University

ValpoMTSUTHEC Votes Down Proposal to Transfer Valparaiso Law School to MTSU:

Middle Tennessee State University’s president said he was very disappointed by the Tennessee Higher Education Commission’s decision Monday to deny the proposed transfer of Valparaiso University’s School of Law to the Murfreesboro campus.

“We regret that the Tennessee Higher Education Commission did not approve our proposal to establish a college of law to provide the citizens of Middle Tennessee and surrounding areas an accredited, public law school,” said MTSU President Sidney A. McPhee.

Commissioners voted 8 to 5 to deny MTSU’s proposal. The governing boards of both MTSU and Valparaiso earlier this month had endorsed the transfer.

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October 16, 2018 | Permalink | Comments (0)

Rozema: The Unrecognized Relationship Between Tax Law And Public Assistance

Kyle Rozema (Chicago), The Unrecognized Relationship Between Tax Law and Public Assistance:

Lawmakers enact tax laws to raise revenue, redistribute resources, and change behavior. The ability of a tax law to serve its goals depends on how individuals respond to the tax law, and how individuals respond to the tax law can depend on how it interacts with other laws. This article unearths unrecognized connections between the operations of tax law on the one hand and the voluntary nature of public assistance programs on the other.

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October 16, 2018 in Scholarship, Tax | Permalink | Comments (0)

73% Of All Faculty Positions Are Non-Tenure Track

Inside Higher Ed, A Non-Tenure-Track Profession?:

Some 73 percent of all faculty positions are off the tenure track, according to a new analysis of federal data by the American Association of University Professors [Data Snapshot: Contingent Faculty in US Higher Ed]. ...

AAUP

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October 16, 2018 in Legal Education | Permalink | Comments (0)

Monday, October 15, 2018

Brockmeyer Presents Taxation, Information, And Withholding Today At UC-Berkeley

BrockmeyerAnne Brockmeyer (World Bank) presents Taxation, Information, and Withholding: Evidence from Costa Rica (with Marco Hernandez (World Bank)) at UC-Berkeley today as part of its Robert D. Burch Center for Tax Policy and Public Finance Seminar Series:

This paper studies the compliance effect of tax withholding on firms, which is commonly used in developing countries. While a growing literature argues that third-party reporting of tax liabilities is a key mechanism for ensuring tax compliance, and a reason why tax capacity grows along the development path, the literature has ignored the fact that third-party reporting is often associated with tax withholding. Withholding is irrelevant if the tax withheld is fully credited against a taxpayer’s liability, but can increase compliance in the presence of costly reclaim, low salience of enforcement or extensive margin compliance gaps.

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October 15, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Pomerleau Presents Indexing Capital Gains To Inflation Today At UC-Irvine

PomerleauKyle Pomerleau (Tax Foundation) presents Indexing Capital Gains to Inflation: Is It Worth It? at UC-Irvine today as part of its Tax Policy Colloquium Series:

Republican lawmakers and the Trump administration have reintroduced the idea of adjusting the basis of capital gains to inflation. Proponents of capital gains indexing argue that taxing individuals for an increase in the price level is unfair. They also argue that indexing capital gains would unlock capital, which would result in significant economic growth. It is true that indexing capital gains to inflation would increase the incentive to invest and results in a slight boost to the size of the economy. However, the effect would be much smaller than proponents argue. At the same time, it would reduce revenue and make the tax code slightly less progressive.

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October 15, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Glogower Presents A Constitutional Wealth Tax Today At Loyola-L.A.

Glogower (2016)Ari Glogower (Ohio States) A Constitutional Wealth Tax at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Ellen Aprill and Katie Pratt:

A wealth tax could address rising inequality and more accurately tailor the tax system to taxpayers’ economic differences. These reasons to tax wealth may not matter, however, if a wealth tax is unconstitutional. This Article considers the possibilities for the design of a constitutional wealth tax. In particular, this Article argues that, if the Supreme Court were to find a traditional tax on wealth is foreclosed under the Constitution, Congress could instead tax wealth indirectly, by adjusting a taxpayer’s income tax liability on account of her wealth. This Article describes three methods for making this adjustment (collectively, “Wealth Integration” methods): A taxpayer’s wealth could affect her base of taxable income (the “Base Method”), the applicable rate schedule (the “Rate Method”) or the availability of credits against tax (the “Credit Method”).

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October 15, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Manhire Presents An Alternative Approach To Tax Gap Analysis Today In London

Manhire (2018)Jack Manhire (Texas A&M) presents Constraints on IRS Control: An Alternative Approach to Tax Gap Analysis, 12 Int’l J. L. & Pol. Sci. ___ (2018) at the World Academy of Science, Engineering, and Technology’s 20th International Conference on Tax Law and Regulations today in London, England.

A tax authority wants to take actions it knows will foster the greatest degree of voluntary taxpayer compliance to reduce the "tax gap." This paper suggests that even if a tax authority could attain a state of complete knowledge, there are constraints on whether and to what extent such actions would result in reducing the macro-level tax gap. These limits are not merely a consequence of finite agency resources. They are inherent in the system itself. To show that this is one possible interpretation of the tax gap data, the paper formulates known results in a different way by analyzing tax compliance as a population with a single covariate. This leads to a standard use of the logistic map to analyze the dynamics of non-compliance growth or decay over a sequence of periods.

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October 15, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Presser: Make Law Profs And Law Students Great Again

MAGATennessee Star op-ed:  Making Law Professors and Law Students Great Again, by Stephen B. Presser (Northwestern; author, Law Professors: Three Centuries of Shaping American Law (West 2017)):

It was little noticed, and of little effect, but more than 2,000 professors signed a letter urging the U.S. Senate not to confirm Brett Kavanaugh to the United States Supreme Court. Given that he is the best qualified nominee in some time, having graduated from Yale and Yale Law School and having served a clerkship with Justice Anthony Kennedy and for more than a decade on the nation’s second highest court as the author of opinions embraced by the Supreme Court itself, this is curious.

This cri de coeur from the professors tells us more about them than about Kavanaugh, and it tells us about the diseased state of jurisprudence in the law schools. ...

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October 15, 2018 in Legal Education | Permalink | Comments (3)

Lesson From The Tax Court: Using CDP To Stop The Collection Train

Tax Court (2017)I am not a fan of the Collection Due Process (CDP) provisions Congress stuffed into the Code in 1998.  I call them “Collection Delay Process.”  It’s not that I favor taxpayer abuse!  But I think the source of abuse is rarely bad-acting IRS employees.  Bulk processing is generally the culprit.  The combination of computer-processing and over-whelmed employees creates an assessment process that runs over taxpayers who do not understand how to stop it or slow it down and who cannot afford to hire lawyers to do that for them.  And then, the end of that assessment process starts the engine of the collection train.  CDP is designed to keep the train from going down the wrong collection track before it leaves the station.  But CDP is a badly designed mechanism.  That was my conclusion in 2009, after I studied almost 1,000 CDP cases.  I have seen nothing in the past 10 years to change my mind.  

Those who disagree with me point to cases like the one I’m blogging about today: James Loveland Jr., and Tina C. Loveland v. Commissioner, 151 T.C. No. 7 (Sept. 25, 2018), a reviewed decision written by Judge Buch.  This is one of the rare cases where the Tax Court found that the IRS had abused its discretion in deciding to proceed with collection.  Here it looks like CDP prevented the collection train from running over the Lovelands.  The case provides a good lesson for what works, and what does not work, about CDP.  Keith Fogg also has a good post on this case over at Procedurally Taxing, explaining why it is a reviewed opinion.

The case is also an interesting lesson about Tax Court Procedure.  While the case is ostensibly a ruling on an IRS motion for Summary Judgment, Judge Buch effectively grants Summary Judgment to the taxpayers...who never asked for it.  This disposition—while sensible enough---is apparently an unwritten rule of Tax Court procedure.  At least I did not see a rule.  Nothing in 121.  Maybe I missed it.  But I think the Court is silently borrowing from Federal Rules of Civil Procedure 56.

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October 15, 2018 in Bryan Camp, New Cases, Tax Practice And Procedure | Permalink | Comments (0)

White Americans Gain The Most From Trump’s Tax Cuts

New York Times, White Americans Gain the Most From Trump’s Tax Cuts, a Report Finds:

The tax cuts that President Trump signed into law last year are disproportionately helping white Americans over African-Americans and Latinos, a disparity that reflects longstanding racial economic inequality in the United States and the choices that Republicans made in crafting the law.

The finding comes from a new analysis of the $1.5 trillion tax cut using an economic model built by the Institute on Taxation and Economic Policy, a liberal think tank, and released in a joint report with Prosperity Now, a nonprofit focused on helping low-income Americans attain wealth and financial stability [Race, Wealth and Taxes: How the Tax Cuts and Jobs Act Supercharges the Racial Wealth Divide]. It is the first detailed analysis of the law to break down its effects by race.

White Americans earn about 77 percent of total income in the United States, but they are getting nearly 80 percent of the benefits of the individual and business tax cuts generated by the new law, the analysis found. African-Americans received about 5 percent of the benefits, despite earning 6 percent of the nation’s income. Latinos got about 7 percent, although their share of all income is 8 percent.

TCJA

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October 15, 2018 in Tax | Permalink | Comments (2)

TaxProf Blog Weekend Roundup

Sunday, October 14, 2018

NY Times: Jared Kushner Paid No Federal Income Tax For Years

New York Times, Kushner Paid No Federal Income Tax for Years, Documents Suggest:

Over the past decade, Jared Kushner’s family company has spent billions of dollars buying real estate. His personal stock investments have soared. His net worth has quintupled to almost $324 million.

And yet, for several years running, Mr. Kushner — President Trump’s son-in-law and a senior White House adviser — appears to have paid almost no federal income taxes, according to confidential financial documents reviewed by The New York Times.

His low tax bills are the result of a common tax-minimizing maneuver that, year after year, generated millions of dollars in losses for Mr. Kushner, according to the documents. But the losses were only on paper — Mr. Kushner and his company did not appear to actually lose any money. The losses were driven by depreciation, a tax benefit that lets real estate investors deduct a portion of the cost of their buildings from their taxable income every year.

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October 14, 2018 in Tax | Permalink | Comments (6)

Universities Claim To Value Public Engagement In Scholarship, But Do Not In Practice

PublicChronicle of Higher Education, Do Universities Value Public Engagement? Not Much, Their Policies Suggest:

Scholarly work that serves the public is the kind of thing that, theoretically, universities want faculty members to pursue. But a new study of the language used by more than 100 colleges in their tenure-and-promotion criteria shows little evidence that such scholarship is valued in a way that advances faculty careers [How Significant Are the Public Dimensions of Faculty Work in Review, Promotion, and Tenure Documents?].

And because of that, faculty members are given incentives mostly to pursue research that fits in an established framework.

"There’s a very entrenched culture that exists around how we review successful academics," said Juan P. Alperin, the lead author of a report on the study and an assistant professor in the publishing program at Simon Fraser University, in Canada, who studies scholarly communications. "We want this kind of work to be valued on par with the other quantifiable research outputs that are dominant."

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October 14, 2018 in Legal Education | Permalink | Comments (0)

NY Times: It’s Getting Harder To Talk About God

GodNew York Times op-ed:  It’s Getting Harder to Talk About God, by Jonathan Merritt (author, Learning to Speak God From Scratch: Why Sacred Words Are Vanishing — And How We Can Revive Them (2018)):

More than 70 percent of Americans identify as Christian, but you wouldn’t know it from listening to them. An overwhelming majority of people say that they don’t feel comfortable speaking about faith, most of the time.

During the Great Depression, the playwright Thornton Wilder remarked, “The revival in religion will be a rhetorical problem — new persuasive words for defaced or degraded ones.” Wilder knew that during times of rapid social change, God-talk is often difficult to muster.

We may have traded 1930s-level poverty and hunger for a resurgence in racism, sexism and environmental cataclysm, but our problems are no less serious — or spiritually disorienting. While many of our most visible leaders claim to be religious, their moral frameworks seem unrecognizable to masses of other believers. How do we speak about God in times like these when God is hard to spot?

As a student of American Christianity and the son of a prominent megachurch pastor, I’ve been sensing for some time that sacred speech and spiritual conversation are in decline. But this was only a hunch I had formed in response to anecdotal evidence and personal experience. I lacked the quantitative data needed to say for sure.

So last year, I enlisted the Barna Group, a social research firm focused on religion and public life, to conduct a survey of 1,000 American adults. This study revealed that most Americans — more than three-quarters, actually — do not often have spiritual or religious conversations. ...

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October 14, 2018 in Legal Education, Tax | Permalink | Comments (3)

The Top Five New Tax Papers

SSRN Logo (2018)This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

  1. [491 Downloads]  Compelled Subsidies and the First Amendment, by William Baude (Chicago) & Eugene Volokh (UCLA)
  2. [243 Downloads]  The Charitable Contribution Strategy: An Ineffective SALT Substitute, by Andy Grewal (Iowa)
  3. [208 Downloads]   The Death of the Income Tax (or, the Rise of America's Universal Wage Tax), by Edward McCaffery (USC)
  4. [194 Downloads]  Taxing the Robots, by Orly Mazur (SMU)
  5. [185 Downloads]  The International Provisions of the TCJA: Six Results after Six Months, by Reuven Avi-Yonah (Michigan)

October 14, 2018 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, October 13, 2018

This Week's Ten Most Popular TaxProf Blog Posts

Dexter Presents The Burgeoning Role Of Rigorous Formative Assessments Today In Tokyo

Dexter (2018)Bobby Dexter (Chapman) presents Beyond the Laptop Ban: The Burgeoning Role of Rigorous Formative Assessments at the Asian Conference on Education today in Tokyo:

We live in constantly-evolving learning environments that are perpetually fraught with actual and potential distractors in the form of messages, notifications, and the varied temptations of the information superhighway. Achieving meaningful and sustained student focus is an uphill battle. Attempts to compel concentration by restricting the use of electronic devices may achieve enhanced classroom focus, but there are no promises. Students routinely defy edicts (remaining “connected” in some way), and technology may be a critical or highly desirable tool with respect to the larger pedagogical effort. Moreover, without pre-emptive interruption management by the student, considerable distraction potential looms in every non-classroom learning venue (e.g., libraries, residences, transit vehicles, airports, etc.).

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October 13, 2018 in Colloquia, Legal Education, Tax | Permalink | Comments (1)

Only 5% Of Households Are Complying With Nanny Tax Rules

Wall Street Journal, You’re Not the Only One Who’s Not Paying Your ‘Nanny Tax’:

A number of prominent Americans have been caught neglecting to pay taxes on their child-care help. They’re not alone.

New research provides evidence of the massive underpayment of “Nanny Taxes” owed by employers and workers on the wages paid to household help such as child- and elder-care providers, maids and drivers.

According to economist Brian Erard, only 5% of 3.6 million American households that should be filing forms and paying federal taxes related to household help are doing so [Who is Minding the Nanny Tax?]. ...

Table 9

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October 13, 2018 in Tax | Permalink | Comments (4)

University Of Puerto Rico Law School Is Out Of Compliance With Academic Support Accreditation Standard

ABA Journal, Law School at University of Puerto Rico Out of Compliance with Academic Support Standard:

The University of Puerto Rico School of Law is out of compliance with an accreditation standard regarding academic support, according to an Oct. 10 letter posted online by American Bar Association’s Section of Legal Education and Admissions to the Bar.

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October 13, 2018 in Legal Education | Permalink | Comments (0)

Friday, October 12, 2018

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Brunson's Paying for Gun Violence

This week, David Elkins (Netanya) reviews a new paper by Samuel D. Brunson (Loyola-Chicago), Paying for Gun Violence.

Elkins (2018)In Paying for Gun Violence, Professor Samuel Brunson notes that that although gun violence costs the United States many billions dollars annually, political and Constitutional restraints continue to prevent effective gun regulation. Against this background, he proposes a Pigouvian tax on guns, with the goal of forcing gun owners to internalize those costs. Under his proposal, the purchase of a firearm would be subject to an excise tax and the possession of a firearm would be subject to a property tax. He argues that while such a tax would not be barred by the second amendment, a federal property tax on guns would run afoul of the requirement that direct taxes be apportioned among the states in proportion to their populations. Therefore, he suggests that the tax be imposed not on the federal level but on the state level. He writes that while the tax is unlikely to result in any significant reduction of gun ownership, it will at least make society whole by compensating it for the damage cause by gun violence.

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October 12, 2018 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (5)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Fleming Presents Real Worldwide V. Territorial Taxation After The TCJA In Vienna

FlemingJ. Clifton Fleming, Jr. (BYU) presents An Early Look at Real Worldwide v. Territorial Taxation After the TCJA today at the Institute for Austrian and International Tax Law of the Vienna University of Economics and Business:

In the run up to enactment of the 2017 Tax Cuts and Jobs Act (TCJA) one of the principal U.S. tax policy issues was how foreign source active business income of U.S. multinational enterprises (MNEs) should be taxed by the United States if the system of deferring U.S. tax on active income of a foreign subsidiary was ended. Should active foreign income be taxed under a territorial or exemption system—i.e. bear no residual U.S. tax—or should it be subjected to real worldwide taxation—i.e. current taxation at regular U.S. rates coupled with a credit for foreign income tax paid limited to the U.S. tax on the foreign-source income as measured for U.S. tax purposes.

The opposing sides were not without common ground. Both agreed that the existing U.S. system for taxing the foreign-source active-business income of U.S. MNEs was bad because it generally did not impose U.S. tax until the active income of foreign subsidiaries was repatriated, either through dividends or by sale of subsidiary stock at a price reflecting accumulated foreign-source income.

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October 12, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Many Tenured Associate Professors Never Bother Going Up For Full Professor—Including The Latest Nobel Laureate

Chronicle of Higher Education, For Some Scholars, a Full Professorship Calls for ‘a Lot of Paperwork’ That ‘Doesn’t Mean Anything’:

For tenure-track faculty members, the first promotion, to associate professor, can make or break an academic career. Without it, they have to search for another job, since a tenure denial eventually results in termination.

But promotion from associate to full professor is something different. While full professor is typically the highest rank possible, the title isn’t required to maintain employment. Some faculty members simply decide not to pursue it — most notably, one of the winners of this year’s Nobel Prize in Physics, Donna Strickland.

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October 12, 2018 in Legal Education | Permalink | Comments (0)

Liberal Suppression: Section 501(c)(3) And The Taxation of Speech

Liberal SuppressionMark Pulliam (Law & Liberty; Retired Partner, Latham & Watkins), Is Section 501(c)(3) a Form of Censorship?:

Columbia Law School Professor Philip Hamburger is a prodigious and iconoclastic legal scholar. ... Hamburger’s latest subject, in Liberal Suppression ([University of Chicago Press] 2018), is an inquiry into the legitimacy of restrictions on the political speech of non-profit organizations. [1] Section 501(c)(3) exempts religious, educational, and charitable organizations from federal income tax but denies them this exemption if they engage in campaign speech for or against any candidate for public office or devote a substantial part of their activities to propaganda or other attempts to influence legislation. Section 170(c) makes contributions to qualifying non-profits tax-deductible to the donor. According to Hamburger, these exemptions and deductions amount to “many billions of dollars annually.”

Most people’s knee-jerk reaction is that section 501(c)(3)’s restrictions are justified by the tax-exempt status such non-profit organizations applied for and received. Rejecting such preconceptions in his trademark fashion, Hamburger strongly disagrees. Although non-profits are free to express a wide range of opinions—even political opinions—outside of political contests, Hamburger views section 501(c)(3) as “an extraordinary abridgement of an essential freedom,” which ought to be considered unconstitutional. Inasmuch as the Supreme Court has unanimously upheld the lobbying restrictions in section 501(c)(3) [2], Liberal Suppressionis nothing if not ambitious, but is it persuasive? Realizing that his arguments may appear to be an “uphill struggle,” early on Hamburger asks readers to “hold their skepticism in abeyance.”

After reading the book, my skepticism remains stubbornly intact.

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October 12, 2018 in Book Club, Tax | Permalink | Comments (6)

Lawyers At The Peak Of Their Careers: A 30-Year Longitudinal Study Of Job And Life Satisfaction

John Monahan (Virginia) & Jeffrey W. Swanson (Duke), Lawyers at the Peak of Their Careers: A 30-Year Longitudinal Study of Job and Life Satisfaction:

A decade ago, we conducted a 20-year longitudinal study of career and life satisfaction among the class matriculating at the University of Virginia School of Law in 1987. Here, we extend our repeated measures follow-up from 20 to 30 years—from the time when respondents were a mean of 43 to the time they were a mean of 53 years old. The 2017 survey employed substantially the same instrument used in 2007, with the addition of a new section assessing potential period effects occurring over the past decade that might have influenced respondents’ working conditions, including a stronger stress on economic sustainability. The 2017 response rate was 81 percent of those who had responded to the 2007 survey (constituting 58 percent of the class matriculating in 1987). We found respondents to have taken diverse career paths, with no single work setting accounting for more than one-quarter of the respondents and with fully one-third of the respondents changing jobs in the past decade. Marked gender differences in the professional lives of respondents persisted (e.g., women continued to be much more likely than men to forego full-time employment “in order to care for children” (30 percent vs. 4 percent)). Working conditions at large private law firms stayed problematic, with the portion of respondents negatively affected by a stronger stress on economic sustainability being twice as high among those working in large firms (77 percent) than among those working in other settings (38 percent).

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October 12, 2018 in Legal Education | Permalink | Comments (0)

WSJ: Massachusetts Gubernatorial Candidate Wants To Tax The Ivory Tower

MassWall Street Journal, Massachusetts Gubernatorial Candidate Wants to Tax the Ivory Tower:

Massachusetts is home to some of the best colleges and universities in the world—and some of the worst traffic jams.

A Democratic gubernatorial candidate is betting residents of the Bay State will be willing to tax the former to alleviate the latter.

Jay Gonzalez is building his long-shot campaign around a levy on the endowments of nine private schools that would create revenue to invest in public transportation and relieve Boston-area congestion, among other things. Boston drivers spend 14% of their time driving in congestion, the worst of any U.S. city, according to the INRIX, a transportation analytics company.

The 1.6% annual tax, which would be levied only on private, nonprofit schools with endowments that exceed $1 billion, would generate nearly $1 billion, including $563 million from Harvard University and $210 million from the Massachusetts Institute of Technology.

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October 12, 2018 in Tax | Permalink | Comments (8)

Thursday, October 11, 2018

The Reluctant Office Hero: Excel Virtuosos

ExcelWall Street Journal, The First Rule of Microsoft Excel—Don’t Tell Anyone You’re Good at It:

Excel buffs are looking to lower their profiles. Since its introduction in 1985 by Microsoft Corp., the spreadsheet program has grown to hundreds of millions of users world-wide. It has simplified countless office tasks once done by hand or by rudimentary computer programs, streamlining the work of anyone needing to balance a budget, draw a graph or crunch company earnings. Advanced users can perform such feats as tracking the expenditures of thousands of employees.

At the same time, it has complicated the lives of the office Excel Guy or Gal, the virtuosos whose superior skills at writing formula leave them fighting an endless battle against the circular references, merged cells and mangled macros left behind by their less savvy peers.

“If someone tells you that they ‘just have a few Excel sheets’ that they want help with, run the other way,” tweeted 32-year-old statistician Andrew Althouse. “Also, you may want to give them a fake phone number, possibly a fake name. It may be worth faking your own death, in extreme circumstances.” ...

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October 11, 2018 in Legal Education | Permalink | Comments (0)

Exclusionary Taxation

Shayak Sarkar (UC-Davis) & Josh Rosenthal, Exclusionary Taxation, 53 Harv. C.R.-C.L. L. Rev. ___ (2019):

Property tax assessments appear to be technocratic calculations. But they may be calculated to discriminate, even unintentionally. California’s constitutional limitations on property taxes, as first enacted by Proposition 13 in 1978, remain the poster child for the so-called “property tax revolt” of the late twentieth century. Such laws privilege preexisting homeowners by capping assessments at historic levels far below contemporary value. As property prices rise, beneficiary homeowners may even bequeath this taxpayer windfall to their descendants and immortalize these underassessments. Newer, increasingly diverse residents end up paying higher taxes because the law treats them with less regard than their more pedigreed neighbors. These tax policies are rationalized as providing “stability” to the existing residents. The aggrieved have found cold comfort in the Constitution, with the Supreme Court upholding the core of California’s system in the canonical Nordlinger v. Hahn.

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October 11, 2018 in Scholarship, Tax | Permalink | Comments (2)

ABA Rejects Arizona Summit's Teachout Plan With Arizona State; Individualized Plans Required For Each Student To Finish Their JDs Elsewhere

Arizona Summit Logo (2015)Following up on my previous post:  AZ Central, Students of Struggling Law School Now Told They Can't All Finish Degrees at ASU:

Arizona Summit Law School's attempt to have all students finish their law degrees by taking classes at Arizona State University appears to be off.

An urgent email to the embattled school's students Friday said Arizona Summit's accreditor, the American Bar Association, has directed the school to develop "individualized plans" for each student to finish their degree.

"In other words, ASLS will not be partnering with ASU for ASU to 'teach out' ASLS students; instead, some of the remaining ASLS students (but not all) will be able to finish and take classes at ASU," stated the email from Stacey Pynn, who is identified on Arizona Summit's website as the career services counselor.

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October 11, 2018 in Legal Education | Permalink | Comments (0)

Scharff: The Challenge Of Pricing Externalities Under State Law

Erin A. Scharff (Arizona State), Green Fees: The Challenge of Pricing Externalities Under State Law, 97 Neb. L. Rev. 168 (2018):

Policymakers at the state and local level are increasingly interested in using market-based pricing mechanisms as regulatory tools. For example, at the state level, several states have recently considered state-level carbon pricing, while at the local level, municipal governments are increasingly turning to stormwater remediation fees to pay for the treatment of municipal runoff required by the Clean Water Act.

These regulatory programs are inspired by the insight of English economist Arthur Pigou, who suggested governments could price social costs into market transactions by imposing a tax. Such policies, however, are frequently subject to state court litigation challenging them as unlawful taxes. State law restricts both state and local governments’ ability to enact taxes, but similar restrictions are often not in place to limit the enactment of regulatory actions or user fees. Unfortunately, state courts have struggled to appropriately classify these fees under existing state law doctrines.

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October 11, 2018 in Scholarship, Tax | Permalink | Comments (0)

Valparaiso Law School To Move To Tennessee

VMTPress Release:

The governing boards of Middle Tennessee State University and Valparaiso University have endorsed the transfer of Valparaiso’s law school to the Murfreesboro campus, leaders from both institutions announced Wednesday, Oct. 10.

MTSU’s Board of Trustees approved an agreement outlining the transfer, as well as a recommendation to create a College of Law and establish a Juris Doctor degree, at a special Oct. 10 meeting. The vote followed approval of the document last week by Valparaiso’s Board of Directors.

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October 11, 2018 in Legal Education | Permalink | Comments (0)

The Mandatory Repatriation Tax Is Unconstitutional

Sean P. McElroy, The Mandatory Repatriation Tax Is Unconstitutional, 36 Yale J. Reg. 69 (2018):

In late 2017, Congress passed the first major tax reform in over three decades. This Essay considers the constitutional concerns raised by Section 965 (the “Mandatory Repatriation Tax”), a central provision of the new tax law that imposes a one-time tax on U.S.-based multinationals’ accumulated foreign earnings.

First, this Essay argues that Congress lacks the power to directly tax wealth without apportionment among the states. Congress’s power to tax is expressly granted, and constrained, by the Constitution. While the passage of the Sixteenth Amendment mooted many constitutional questions by expressly allowing Congress to tax income from whatever source derived, this Essay argues the Mandatory Repatriation Tax is a wealth tax, rather than an income tax, and is therefore unconstitutional.

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October 11, 2018 in Scholarship, Tax | Permalink | Comments (0)

The Left-Wing Case Against Tenure

Chronicle of Higher Education op-ed:  The Left-Wing Case Against Tenure, by William Egginton (Johns Hopkins):

Outside of higher education, tenure is a four-letter word. Academe is the only profession in which employees can hope for such thorough protection from termination. As such, tenure is a source of irritation for politicians like State Rep. Rick Brattin, a Missouri Republican, who in January 2017 introduced a bill to eliminate the practice at Missouri State and nullify the protected status of already-tenured professors. As he put it, "In the academic world, you can get away with literally anything and taxpayers are paying their salaries — not to mention students being burdened with millions and millions and millions of dollars of debt."

Such right-wing attacks on tenure are legion, so it might seem mean-spirited to pile on an already-beleaguered institution. But in the current period of extreme contraction — especially in the humanities — tenure raises serious concerns quite different from those of its conservative detractors. Tenure promotes unjust labor relations; discourages risky and innovative thinking during scholars’ most productive years; and intensifies the tendency of faculty to reproduce themselves, not only by area and interest, but also by gender, race, and class. ...

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October 11, 2018 | Permalink | Comments (11)

More On The NY Times Trump Tax Blockbuster

Wednesday, October 10, 2018

Rosenberg Presents The Tax Cuts And Jobs Act And Investment Incentives Today At Penn

RosenbergJoseph Rosenberg (Tax Policy Center) presents The Tax Cuts and Jobs Act and Investment Incentives at Pennsylvania today as part of its Tax Law and Policy Workshop Series hosted by Michael Knoll, Chris Sanchirico, and Reed Shuldiner:

This paper estimates the impact of the Tax Cuts and Jobs Act (TCJA) on incentives to invest in the US as measured by the marginal effective tax rate (METR)—a summary measure of the total federal tax burden on a hypothetical break-even investment. In the near term (2018 law), the TCJA reduces the overall marginal effective tax rate (METR) on new investments from 17 percent to 13 percent, a 4.1 percent increase in the aftertax return. In the longer-term (2027 law), the METR decreases from 19 percent to 17 percent, a 1.5 percent increase in the after-tax return.

October 10, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Tillotson Presents Give and Take: The Citizen-Taxpayer And The Rise Of Canadian Democracy Today At Toronto

Give and TakeShirley Tillotson (Dalhousie University) presents Give and Take: The Citizen-Taxpayer and the Rise of Canadian Democracy (University of British Columbia Press at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

Can a book about tax history be a page-turner? You wouldn’t think so. But Give and Take is full of surprises. A Canadian millionaire who embraced the new federal income tax in 1917. A socialist hero, J.S. Woodsworth, who deplored the burden of big government. Most surprising of all, Give and Take reveals that taxes deliver something more than armies and schools. They build democracy.

Tillotson launches her story with the 1917 war income tax, takes us through the tumultuous tax fights of the interwar years, proceeds to the remaking of income taxation in the 1940s and onwards, and finishes by offering a fresh angle on the fierce conflicts surrounding tax reform in the 1960s.

Taxes show us the power of the state, and Canadians often resisted that power, disproving the myth that we have all been good loyalists. But Give and Take is neither a simple tale of tax rebels nor a tirade against the taxman. Canadians also made real contributions to democracy when they taxed wisely and paid willingly.

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October 10, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Zolt Presents Tax Treaties And Developing Countries Post-BEPS Today At Michigan

Zolt (2014)Eric M. Zolt (UCLA) presents Tax Treaties and Developing Countries: A Better Deal Post-BEPS? at Michigan as part of its Tax Policy Workshop Series hosted by Reuven Avi-Yonah:

Developing countries face tough choices about whether to enter into bilateral tax treaties with developed countries. Several benefits flow from entering into tax treaties. These include increased foreign direct and portfolio investments that may result if tax treaties reduce double taxation, create greater tax certainty for investors, and provide for a dispute resolution mechanism for tax controversies. But there are real costs for developing countries in entering into tax treaties with developed countries. Treaty provisions invariably result in developing countries yielding taxing rights with respect to economic activity taking place in their country.

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October 10, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Law Students Plan Walkout Today To Protest Kavanaugh Confirmation

Chronicle of Higher Education, Law Students Plan Walkout on Wednesday to Protest Kavanaugh Confirmation:

Students from at least 12 law schools will stage a walkout on Wednesday followed by a three-day strike to protest the U.S. Senate’s confirmation of Brett Kavanaugh as a Supreme Court justice. ...

More than 30 organizations, many of them chapters of the National Lawyers Guild and groups like Democratic Socialists of America, had endorsed the strike as of Tuesday afternoon. Participants hail from at least 12 law schools, including those at American, Emory, and George Washington Universities and the Universities of Miami, Richmond, and Southern California. Law students are also organizing at Duke and Rutgers Universities and the Universities of Denver and North Carolina at Chapel Hill, according to the guild, a progressive legal organization. ...

Their efforts are part of a national backlash in the legal community, and law schools in particular, to Kavanaugh’s confirmation. Law students at Ohio State University already staged a walkout, on Monday. More than 2,400 law professors signed a letter urging the Senate to vote against confirmation and criticizing Kavanaugh’s temperament during the Judiciary Committee hearings. ...

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October 10, 2018 in Legal Education | Permalink | Comments (15)

Lawsuits Against Harvard, NYU Law Reviews Claim Racial, Gender Preferences

HNYULaw.com, Suits Against Harvard and NYU Law Reviews Claim Racial, Gender Preferences:

Two prestigious law reviews have been sued over what the plaintiff alleges are illegal racial and gender preferences for membership and article selection.

A Texas-based group called Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) sued the Harvard Law Review on Oct. 6 and the New York University Law Review on Sunday, claiming that their racial and gender preference policies violate federal anti-discrimination laws. The lawsuits come at a time when law reviews—the traditional bastion of white males—are celebrating the increased diversity of their membership ranks. Harvard Law School, for example, had its first black women editor in 2017. The Columbia Law Review has its first black male editor ever this year.

The new suits allege that policies at both law reviews violate the rights of students by giving women and minorities an unlawful advantage in getting onto those sought-after organizations. Moreover, the suits allege policies that give a preference to articles written by women and minority scholars violate the rights of others hoping to place articles there.

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October 10, 2018 in Legal Education | Permalink | Comments (2)

Cui: Residence-Based Formulary Apportionment

Wei Cui (British Columbia), Residence-Based Formulary Apportionment: (In-)Feasibility and Implications, 71 Tax L. Rev. 551 (2018):

I examine one way of taxing international corporate income that has not previously been studied, “residence-based formulary apportionment” or RBFA. I first offer a new taxonomy of different ways of taxing corporate income by reference to individual shareholders, and distinguish what I call the “shareholder attribution” approach from integration, pass-through, and other approaches. I then argue that although traditional international legal norms had led international tax design to avoid taxing foreign corporations “unconnected” with the taxing jurisdiction (e.g. foreign corporations earning only foreign income), these legal norms have gone through substantial transformations in recent years. The exercise of jurisdiction over foreign corporations has vastly expanded in the sphere of international taxation, as has the extent of mutual assistance in tax collection. Consequently, the choice between taxing foreign corporations and taxing shareholders should be made mainly on administrative (including enforceability) grounds other than international legal norms.

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October 10, 2018 in Scholarship, Tax | Permalink | Comments (0)

Law Schools Increasingly Scrutinize Applicants' Social Media Posts In Admissions Decisions

Facebook Twitter InstagramLaw.com, Law Schools Scrutinizing Applicants' Social Media Posts:

If you want to get into law school, better not post that video of your underage self shot-gunning a beer to your Facebook page. And while you’re at it, leave your obsession with actual shot guns off your Twitter account.

It turns out that more than half of law school admissions officials recently surveyed by Kaplan Test Prep—56 percent—said they have looked at the applicants’ social media to get a better sense of them. And fully 91 percent said that social media is fair game when culling through applications. ...

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October 10, 2018 in Legal Education | Permalink | Comments (4)

IRS Internal Watchdog Faults Vigilance On Nonprofits' Political Activities

TIGTAWall Street Journal, IRS Internal Watchdog Faults Vigilance on Nonprofits' Political Activities:

The IRS is still struggling with its role policing nonprofit groups’ political activities, the tax agency's inspector general said in a new report [Review of the Processing of Referrals Alleging Impermissible Political Activity by Tax-Exempt Organizations (2019-10-006) (Oct. 4, 2018)].

The report included no allegations of political bias inside the Internal Revenue Service, but the inspector general found IRS officials aren't sending enough allegations of impermissible political activity—such as involvement in a partisan campaign—to the Political Activities Referral Committee of managers responsible for deciding whether to pursue enforcement.

Based on the inspector general's sample, more than 1,000 cases in 2015 and 2016 could have gone to the the three-person committee, the report said. The committee reviewed 19 high-profile cases.

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October 10, 2018 in IRS News, Tax | Permalink | Comments (0)

Tuesday, October 9, 2018

Infanti: Our Selfish Tax Laws

SelfishAnthony C. Infanti (Pittsburgh), Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves (MIT Press 2018):

Most of us think of tax as a pocketbook issue: how much we owe, how much we'll get back, how much we can deduct. In Our Selfish Tax Laws, Anthony Infanti takes a broader view, considering not just how taxes affect us individually but how the tax system reflects our culture and society. He finds that American tax laws validate and benefit those who already possess power and privilege while starkly reflecting the lines of difference and discrimination in American society based on race, ethnicity, socioeconomic class, gender, sexual orientation and gender identity, immigration status, and disability. Infanti argues that instead of focusing our tax reform discussions on which loopholes to close or which deductions to allow, we should consider how to make our tax system reflect American ideals of inclusivity rather than institutionalizing exclusion.

After describing the theoretical and intellectual underpinnings of his argument, Infanti offers two comparative case studies, examining the treatment of housing tax expenditures and the unit of taxation in the United States, Canada, France, and Spain to show how tax law reflects its social and cultural context. Then, drawing on his own work and that of other critical tax scholars, Infanti explains how the discourse surrounding tax reform masks the many ways that the American tax system rewards and reifies privilege. To counter this, Infanti urges us to work together to create a society with a tax system that respects and values all Americans.

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October 9, 2018 in Book Club, Scholarship, Tax | Permalink | Comments (0)

NY Times: Where In The World Is Denmark’s $2 Billion?

New York Times, Where in the World Is Denmark’s $2 Billion?:

As large as it is, the building would be easy to miss. Plain, gray and near a McDonald’s, it’s part of a generic office complex surrounded by a vast parking lot in a suburb of Copenhagen. “Danish Tax Agency” is stenciled in both English and Danish on a glass front door.

This outpost of SKAT, as the I.R.S. in Denmark is known, seems an improbable setting for what the authorities call one of the great financial crimes in the country’s history. For three years, starting in 2012, so much money gushed from an office here that it was as though the state had sprung a gigantic leak.

Prosecutors in Copenhagen say it was an elaborate ruse, one that ultimately cost taxpayers more than $2 billion — a spectacular sum for Denmark, the equivalent of a $110 billion loss in the far larger American economy.

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October 9, 2018 in Tax | Permalink | Comments (4)

NY Times: With Popularity Slumping, Macron Tries Tax Cuts For France’s Working Class

New York Times, Macron, With Popularity Slumping, Tries Tax Cuts for France’s Working Class:

As President Emmanuel Macron presses ahead with the most business-friendly overhaul of the French labor market in decades, his popularity with many of his countrymen has gone into a tailspin. Consumer confidence is falling. A nascent recovery is cooling off. Unemployment has been stuck above 9 percent for months. 

And then there was the encounter with the gardener.

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October 9, 2018 in Tax | Permalink | Comments (0)

Why Do Faculty Who Espouse Progressive Politics Behave So Regressively In Private?

Chronicle of Higher Education op-ed:  How to Be a Generous Professor in Precarious Times, by Douglas Dowland (Ohio Northern) & Annemarie Pérez (California State-Dominguez Hills):

Precarity has become so commonplace in academe that even some of the tenured have adopted its cruel tactics. There is no other way to explain how those who espouse the most progressive of politics in their scholarship simultaneously behave so regressively in private. And sometimes, in public.

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October 9, 2018 in Legal Education | Permalink | Comments (8)

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  This ranking includes downloads from two 30- and 35-page papers by 12 tax professors on the new tax legislation that garnered a lot of media attention (including the New York Times and Washington Post) and generated a massive amount of downloads (the papers are the most downloaded papers over the past 12 months across all of SSRN and the most downloaded tax papers of all-time by over 200%).  See Brian Leiter (Chicago), 11 Tax Profs Blow Up The SSRN Download Rankings. (For some reason, Mitchell Kane (NYU) — the twelfth academic co-author of the two papers — is not included in the SSRN download rankings (although the downloads are included on his individual author page)).  Here is the new list (through October 1, 2018) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

176,646

Reuven Avi-Yonah (Mich.)

104,534

2

Dan Shaviro (NYU)

113,132

Daniel Hemel (Chicago)

101,579

3

David Gamage (Indiana)

109,012

David Gamage (Indiana)

96,359

4

Lily Batchelder (NYU)

106,906

Darien Shanske (UC-Davis) 

95,948

5

Daniel Hemel (Chicago)

106,213

Manoj Viswanathan (Hastings)

95,447

6

Darien Shanske (UC-Davis)

103,059

Dan Shaviro (NYU)

95,249

7

Cliff Fleming (BYU)

98,817

Lily Batchelder (NYU)

93,267

8

David Kamin (NYU)

95,623

David Kamin (NYU)

93,157

9

Manoj Viswanathan (Hastings)

95,655

Cliff Fleming (BYU)

93,050

10

Rebecca Kysar (Fordham)

94,914

Ari Glogower (Ohio State) 

92,782

11

Ari Glogower (Ohio State)

93,163

Rebecca Kysar (Fordham) 

92,627

12

Michael Simkovic (USC)

41,087

Gladriel Shobe (BYU)

23,052

13

D. Dharmapala (Chicago)

35,261

Jacob Goldin (Stanford)  

3,787

14

Paul Caron (Pepperdine)

34,742

Michael Simkovic (USC)

3,701

15

Louis Kaplow (Harvard)

30,264

Richard Ainsworth (BU)

3,580

16

Richard Ainsworth (BU)

25,717

Kirk Stark (UCLA) 

3,449

17

Ed Kleinbard (USC)

25,157

Joe Bankman (Stanford) 

3,384

18

Vic Fleischer (UC-Irvine)

24,875

D. Dharmapala (Chicago)

3,295

19

Jim Hines (Michigan)

23,983

Dennis Ventry (UC-Davis) 

3,010

20

Gladriel Shobe (BYU)

23,762

Omri Marian (UC-Irvine)  

2,496

21

Richard Kaplan (Illinois)

23,102

Ruth Mason (Virginia) 

2,463

22

Ted Seto (Loyola-L.A.)

22,944

Sam Donaldson (Georgia St.) 

2,437

23

Katie Pratt (Loyola-L.A.)

21,467

Hugh Ault (Boston College) 

2,241

24

Robert Sitkoff (Harvard)

20,999

Kyle Rozema (Chicago) 

2,226

25

David Weisbach (Chicago)

20,461

Brad Borden (Brooklyn)

2,123

Note that this ranking includes full-time tax professors with at least one tax paper on SSRN, and all papers (including non-tax papers) by these tax professors are included in the SSRN data.

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October 9, 2018 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Sexual Harassment At Annual Academic Meetings

Following up on my previous post:  Inside Higher Ed, Sexual Harassment at the Annual Meeting:

Even in the era of Me Too, many academics report that annual meetings of disciplinary associations are environments where rude and/or harassing behavior is all too common. Disciplinary meetings feature large power imbalances — young scholars seeking jobs and senior scholars doing interviews. Many of those interviews take place in decidedly unprofessional locations such as hotel rooms. And some academics see these meetings as a chance to drink to excess and to encourage a (legally and ethically questionable) philosophy of "what happens at the annual meeting, stays at the annual meeting."

The American Historical Association has released a summary of a survey it conducted of those who have attended its annual meeting over any of the last five years. The association found significant minorities of its members reported that they had experienced demeaning or insulting behavior. And a small minority (but one that the association summary says is still of concern) experienced harassment of various types.

American Historical Association, Results of the 2018 AHA Survey on Sexual Harassment:

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October 9, 2018 in Conferences, Legal Education | Permalink | Comments (0)