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Monday, April 14, 2014

The Political Economy of Policy Transitions

OxfordMichael J. Trebilcock (Toronto), Dealing with Losers: The Political Economy of Policy Transitions (Oxford University Press 2014):

Whenever governments change policies—tax, expenditure, or regulatory policies, among others—there will typically be losers: people or groups who relied upon and invested in physical, financial, or human capital predicated on, or even deliberately induced by the pre-reform set of policies. The issue of whether and when to mitigate the costs associated with policy changes, either through explicit government compensation, grandfathering, phased or postponed implementation, is ubiquitous across the policy landscape. Much of the existing literature covers government takings, yet compensation for expropriation comprises merely a tiny part of the universe of such strategies.

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April 14, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Monday, March 31, 2014

Piketty: Capital in the Twenty-First Century

CapitalThomas Piketty (Paris School of Economics), Capital in the Twenty-First Century (Harvard University Press, 2014):

What are the grand dynamics that drive the accumulation and distribution of capital? Questions about the long-term evolution of inequality, the concentration of wealth, and the prospects for economic growth lie at the heart of political economy. But satisfactory answers have been hard to find for lack of adequate data and clear guiding theories. In Capital in the Twenty-First Century, Thomas Piketty analyzes a unique collection of data from twenty countries, ranging as far back as the eighteenth century, to uncover key economic and social patterns. His findings will transform debate and set the agenda for the next generation of thought about wealth and inequality.

Piketty shows that modern economic growth and the diffusion of knowledge have allowed us to avoid inequalities on the apocalyptic scale predicted by Karl Marx. But we have not modified the deep structures of capital and inequality as much as we thought in the optimistic decades following World War II. The main driver of inequality—the tendency of returns on capital to exceed the rate of economic growth—today threatens to generate extreme inequalities that stir discontent and undermine democratic values. But economic trends are not acts of God. Political action has curbed dangerous inequalities in the past, Piketty says, and may do so again.

A work of extraordinary ambition, originality, and rigor, Capital in the Twenty-First Century reorients our understanding of economic history and confronts us with sobering lessons for today.

The New Yorker, Piketty’s Inequality Story in Six Charts:

In this week’s magazine, I’ve got a lengthy piece about “Capital in the Twenty-first Century,” a new book about rising inequality by Thomas Piketty, a French economist, that is sparking a lot of comment and debate. (Brad DeLong has a useful summary of some early reviews.) I’ll go further into that discussion in future posts, but first I thought it might be useful to portray the gist of Piketty’s story in a series of charts.

  Chart 1

Chart 2

New York Times:  Q&A: Thomas Piketty on the Wealth Divide, by Eduardo Porter:

Income inequality moved with astonishing speed from the boring backwaters of economic studies to “the defining challenge of our time.” It found Thomas Piketty waiting for it.

A young professor at the Paris School of Economics, he is one of a handful of economists who have devoted their careers to understanding the dynamics driving the concentration of income and wealth into the hands of the few. He has distilled his findings into a new book, “Capital in the Twenty-First Century,” which is being published this week. In the book, Mr. Piketty provides a sort of unified theory of capitalism that explains its lopsided distribution of rewards.

Financial Times op-ed:  Save Capitalism From the Capitalists by Taxing Wealth, by Thomas Piketty

March 31, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Henderson Reviews The Lawyer Bubble and Tomorrow's Lawyers

BCWilliam D. Henderson (Indiana), Letting Go of Old Ideas, 112 Mich. L. Rev. ___ (2014) (reviewing Steven Harper, The Lawyer Bubble  (Basic Books 2013) and Richard Susskind, Tomorrow’s Lawyers (Oxford University Press 2013)):

Two recently published books apply a rigorous analytical lens to the same topic — the state of the legal profession — and come to dramatically different conclusions. Yet, what is more remarkable is the fact that the authors’ analyses neither overlap nor conflict with one another. One is backward-looking and filled with regret at the legacy we have squandered (Steven Harper’s The Lawyer Bubble); the other is forward-looking and bound to inspire a mix of fear and hope among its readers (Richard Susskind’s Tomorrow’s Lawyers).

Similarly, there’s been a lot of public handwringing in recent years over the state of the legal industry, with some arguing that we are in crisis and others countering that the real problem is overzealous critics. Those looking for a common narrative to unify and lead law practitioners and students must grapple with these two important books. In this review, I suggest that arriving at such an understanding requires each of us to do something uncomfortable and unnatural — let go of old ideas.

Bill blogs about his review on The Legal Whiteboard.

March 31, 2014 in Book Club, Legal Education, Scholarship | Permalink | Comments (0)

Saturday, March 29, 2014

Legal Education's Moment of Impact: How to Design Strategic Conversations That Accelerate Change

MomentsChris Ertel (Deloitte Consulting) & Lisa Kay Solomon (Innovation Studio), Moments of Impact: How to Design Strategic Conversations That Accelerate Change (Simon & Schuster, 2014), reviewed by Adrian Wooldridge (Management Editor, The Economist) in the Wall Street Journal, The Best 'Strategy Meetings' Unleash Fresh Thinking and Offer Maverick Views; The Worst Are Dull, Unstructured Time-Sucks:

Anybody who has anything to do with the corporate world will be only too familiar with "strategy meetings" in which senior managers try to lift their heads above the parapets and gaze over the competitive landscape. The organizers try do everything they can to shake people out of their "default settings." They hold the meetings off-site. They tell everyone to forget about corporate hierarchies and routine agendas. They bring in outside experts to talk about industry trends. They experiment with corporate games.

And the result of all this effort? More often than not a huge waste of time. Few management techniques have produced more toe-curling embarrassment than what the authors of "Moments of Impact" call "strategic conversations." Brain-storming sessions produce airy-fairy nonsense. Attempts to abandon hierarchy generate status hierarchy. The outside experts are nothing more than cliché-mongers. As for the corporate games, the less said the better.

And yet the need for wide-ranging discussions of strategy has never been greater. Many companies confront radical challenges that cannot be dealt with by business as usual....

Mr. Ertel and Ms. Solomon make several points that ought to be obvious but are clearly not, given the number of strategic conversations that go wrong. The first is that you need to define the purpose of your meeting. Are you trying to get a broad overview of industry trends? Or are you trying to make specific decisions? The second is that unstructured meetings are as dangerous as over-structured ones. Companies that are used to having tight agendas often throw agendas out of the window when they hold off-site meetings. But unstructured "brainstorming" sessions seldom produce any light.

"Moments of Impact" is at its best on the importance of promoting different perspectives. Businesses need to look at the world through as many disciplinary lenses as possible if they are to cope with the fast-changing threats that confront them. But day-to-day corporate life is all about fences and silos. Strategic conversations give companies a chance to examine their business models from the outside—and, as the authors put it, to "imagine operating within several different yet plausible environments."

(Click on YouTube button on bottom right to view video directly on YouTube to avoid interruption caused by blog's refresh rate.)

March 29, 2014 in Book Club, Legal Education | Permalink | Comments (0)

Sunday, March 16, 2014

Church Marketing Campaigns for Their Pastor's Books and Private Inurement

Pajama Pages, On Driscoll, It’s Called Inurement, and It’s Probably Illegal:

Real MarriageMark Driscoll may have imperiled his church’s nonprofit status and, with it, cost his congregation millions of dollars in tax deductions. I am neither a lawyer nor an accountant, but I can read IRS publications that describe the kind of hot water that Mars Hill Church and other churches can get into when they use donated money to buy their pastors’ books.

You can read the 50-page IRS description of inurement here, but I’ll try and summarize it for you here and explain why this applies to Driscoll’s NYT campaign and perhaps many other churches that use church resources to benefit their pastors’ publishing careers.

Churches and other charities are granted non-profit status so long as they use the money they raise exclusively for religious, educational or charitable purposes. Although they can pay staff and officers for work they perform to advance their stated purposes for the public, they cannot take special measures to direct the resources of the organization to any private individual or corporate entity, especially an individual that is an insider of the charity. Such activity is considered inurement, but before considering it in more detail, it’s worth reviewing what we know of the Mars Hill/Driscoll arrangement.

Mars Hill spent approximately $220,000 that had been donated to it to purchase services and books to have Driscoll’s book [Real Marriage: The Truth About Sex, Friendship & Life Together] appear on the New York Times best seller list. ... Mars Hill reports that it received $25m in tithes and offerings last year. Assuming an average deduction value of a contribution to be 25 percent, as the Congressional Research Service does, Mars Hill members saved $6.25m in tax payments because of the church’s exempt status. So, a $220,000 investment has the potential to cost church members $6,250,000.

Patheos, Do We Need a Code of Ethics for Mega-Pastors Who Write?:

Recently World Magazine had a piece on Unreal Sales for Mark Driscoll’s Real Marriage to the effect that the Mars Hill Church bought Driscoll’s book a place on the NYT best seller list through a marketing company with a deliberate intent to by-pass the NYT’s own safe guards against authors or publishers artificially inflating the sales figures for their book. This might even violate IRS rules and regulations about non-for-profits committing inurement. CT also has a piece on this where they link to Mars Hill Church’s official response to the issue.

March 16, 2014 in Book Club, Celebrity Tax Lore, Tax | Permalink | Comments (2)

Tuesday, March 11, 2014

Brooks Reviews Global Economic Governance and the Politics of International Tax Cooperation

CoverKimberley Brooks (Dean, Dalhousie University, Schulich School of Law), After the Financial Crisis (reviewing Richard Eccleston (University of Tasmania), The Dynamics of Global Economic Governance: The Financial Crisis, the OECD and the Politics of International Tax Cooperation (2012)):

[The book] is a welcome addition to the literature on the regulatory responses to international tax evasion, authored in the light of the global financial crisis.  Richard Eccleston, a political scientist in Tasmania, shifts the typical legal scholar’s lens from the legal frameworks that facilitate tax evasion to a careful and insightful exploration or the role of political actors in facilitating tax cooperation in response to that evasion.  The work is supported by interviews with more than 40 national tax officials, business and NGO representatives, OECD and UN staff.

Global Economic Governance is written for tax junkies.  It is shot through with detail, carefully crafted, and densely written.  For those with a mild interest in the area, the chapter to spend time on is the first one, and most specifically the section that details the strategies used in international tax evasion: private banking, mass-marketed tax schemes, opaque corporate structures, shell entities, trusts, rules that obscure real ownership, methods of disguising real corporate ownership, and exempt entities.  This reads like the stuff of a good (or perhaps average) Tom Cruise movie: nevertheless, it is daily fare for those who seek to avoid tax liability around the world.

March 11, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Sunday, March 9, 2014

Advice for Parents and Their Daughters

Interesting juxtaposition in the Weekend Wall Street Journal book review section:

BossyThe Saturday Essay:  Don't Call Us Bossy:

Confident girls are often called the other B-word, and it can keep them from reaching their full potential, write Sheryl Sandberg and Anna Maria Chávez.

Although the two of us come from different backgrounds, we both heard the same put-down. Call it the other B-word. Whether it is said directly or implied, girls get the message: Don't be bossy. Don't raise your hand too much. Keep your voice down. Don't lead.

Even our most successful and celebrated female leaders cannot rise above these insults. A foreign-policy adviser once described former British Prime Minister Margaret Thatcher as "the bossy intrusive Englishwoman." Susan Rice, the U.S. national security adviser, was described as having a "bossy demeanor" by a fellow diplomat, while Supreme Court Justice Sonia Sotomayor has been described as "difficult" and "nasty" by lawyers.

The phrase "too ambitious" is leveled at female leaders from Madeleine Albright to Hillary Clinton and perpetuates our most damning stereotypes. Retired Supreme Court Justice Sandra Day O'Connor has a pillow in her California home that declares: "I'm not bossy. I just have better ideas."...

Despite earning the majority of college degrees, women make up just 19% of the U.S. Congress, 5% of Fortune 500 CEOs and 10% of heads of state. Most leadership positions are held by men, so society continues to expect leadership to look and act male and to react negatively when women lead.

The irony, of course, is that so-called bossy women make great leaders. And we need great leaders. Our economic growth depends upon having women fully engaged in the workforce. Our companies perform better with more women in management. And our homes are happier when men and women share responsibilities more equally.

It's time to end the gendered speech that discourages girls from an early age. So the next time you hear a girl called "bossy," do what CBS anchor Norah O'Donnell advised: Smile, take a deep breath and say, "That girl's not bossy. She has executive leadership skills."

Marry SmartCharlotte Allen, Battle Hymm of a Tiger Mother (reviewing Susan Patton, Marry Smart: Advice for Finding THE ONE (2014)):

If mating today is a game of winner-take-all, should women treat college as a time for husband hunting?

Susan Patton is the infamous "Princeton Mom." A graduate of Princeton (class of '77), with two Princeton sons, Ms. Patton wrote a letter last year to the campus newspaper advising female Tigers: "Find a husband on campus before you graduate." Her point was that never again would these high-achieving and highly ambitious young women have access to so large a pool of single young men who were their intellectual equals. After college, as these educated young women entered the workplace, they would discover that the most desirable men are usually already married. As the letter went viral online, feminists jumped all over Ms. Patton, accusing her of perpetuating archaic gender roles, meddling in her sons' romantic lives and chewing on sour grapes because her own marriage, to a non-Princeton man long after graduation, had ended in divorce after 25 years.

The current expectation for most women attending college, especially a top-ranked college, is to spend their 20s building their careers, experimenting with relationships, and not even thinking about wanting a husband and children until they reach age 30 or so. In "Marry Smart," essentially a book-length expansion of her Daily Princetonian letter, Ms. Patton forthrightly explains why this trajectory is all wrong. "Let's face it: By the time you are thirty years old, your marriage prospects will have diminished dramatically from what they were when you were twenty," she writes. "And when you're thirty and still hope to have children, a distinct panic will start to set in." 

For one thing, there is the matter of looks. "You'll never be more attractive than you are as a very young woman," Ms. Patton writes. This is true. If you want to see beautiful people, visit any college campus. Even the plain girls and the slovenly girls in their sweatpants and rubber shower sandals radiate vitality. They all may still look fine a decade later, but if mating is a game of winner-take-all—and Ms. Patton is quite sure it is—the question is whether men in their own age cohort will prefer their now-older selves to the younger competition.

Since men, even young college men, distinguish between the women they want to have casual sex with and the women they want to marry and have children with, Ms. Patton devotes much of her book to telling readers how to fall into the second category. Avoid the campus hookup scene—it's a waste of precious time. Don't binge-drink—you will do stupid things. Realistically assess your looks and act accordingly: If you are only a "six," that handsome "ten" knows he can do better than you and is probably out of your league. Lose excess weight. Act like a lady. Don't swear like a fishwife. Learn to cook. Don't be a whiny, moody, spoiled, entitled princess ("hothouse tomato" is Ms. Patton's term). Cultivate a generous spirit and a readiness to forgive. Don't chase after "bad boys," especially if they display traits such as drug abuse and physical violence. Don't be a gold-digger ("earn your own fortune").

For some young women, "Marry Smart" will be like a trip to the carwash, where the dust of antagonistic feminist doctrine about sex and marriage gets blasted off the windshield so they can see clearly. Ms. Patton's advice mirrors sociologist Peter Berger's observation that "the lightning shaft of Cupid seems to be guided rather strongly within very definite channels of class, income, education, racial and religious background." Although Ms. Patton's tone can seem snobbish and Ivy-centric, what she has to say is meant to apply equally to young women whose best educational prospects turn out to be a state school, a community college or perhaps no college at all: Start looking for a lifelong mate seriously and early on; don't waste time with jerks, criminals and, unless you are exceptionally beautiful, men outside your social class; and cultivate the moral qualities that will make you attractive to a man of moral quality.

March 9, 2014 in Book Club, Legal Education, Tax | Permalink | Comments (4)

Tuesday, March 4, 2014

Go Ahead, Let Your Kids Fail

Following up on my prior post, Why Failing Well Is the Key to Success:  Bloomberg, Go Ahead, Let Your Kids Fail, by Megan McArdle:

UpI’m on the road this week, giving talks on my new book [The Up Side of Down: Why Failing Well Is the Key to Success (2014)] about learning to fail better: that is, first, to give ourselves the permission to take on challenges where we might very well fail; second, to pick ourselves up as quickly as possible and move on when things don’t work out. This is, I argue, vital on a personal level, as well as vital for the economy, because that’s where innovation and growth come from.

The other day, after one of my talks, a 10th-grade girl came up and shyly asked if I had a minute. I always have a minute to talk to shy high school sophomores, having been one myself.

And this is what she asked me:

“I understand what you’re saying about trying new things, and hard things, but I’m in an International Baccalaureate program and only about five percent of us will get 4.0, so how can I try a subject where I might not get an A?”

I was floored. All I could think as I talked to this poor girl is “America, you’re doing it wrong.”

I was 15 in 10th grade. If you can’t try something new in 10th grade, when can you? If you can’t afford to risk anything less than perfection at the age of 15, then for heaven’s sake, when is going to be the right time? When you’re ready to splash out on an edgy assisted-living facility?

Now is when this kid should be learning to dream big dreams and dare greatly. Now is when she should be making mistakes and figuring out how to recover from them. Instead, we’re telling one of our best and brightest to focus all her talent on coloring within the lines. This is not the first time I’ve heard this from kids and teachers and parents. But I’ve never heard it phrased quite so starkly. ...

Do we want a society that dreams new things and then makes them happen? I hear that we do, every time I hear a teacher, or a politician, give a speech. So why are we trying so hard to teach the next generation to do the exact opposite?

March 4, 2014 in Book Club, Legal Education, Tax | Permalink | Comments (2)

Disinherit the IRS

Disinherit the IRS:

DisinheritDisinherit the IRS is a well-written, easy-to-read and comprehensive estate planning and wealth protection guide that was originally published in 2001. It evolved in response to requests from fellow Americans who feared the fruits of their life's work was under assault by a growing litigious society and tax hungry government. This updated 2014 edition will help you understand current estate tax laws and how they impact the most popular estate planning tools, including trusts and life insurance. You will also gain insight into lawful wealth protection strategies used by real families as well as vital information on how to leave your assets to heirs and favorite causes and not the IRS. Family wealth protection expert and author of Disinherit the IRS, E. Michael Kilbourn recruited estate planning attorney Brad A. Galbraith for the 2014 edition as an extra guarantee that every chapter reflects the most sound advice based on today's laws. In this book, you will discover how to: remove assets from your taxable estate without losing control of them or the income they generate, make a profit by donating to charity, effectively exempt your entire estate from state taxes, avoid capital gains taxes on the sale of your appreciated property and eliminate state taxes on your assets at your death. In essence, you will learn how to leave what you have to whom you want, when you want and in the way you want while minimizing possible court costs, attorney fees and estate taxes.

March 4, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Friday, February 28, 2014

Ring Reviews Resolving Transfer Pricing Disputes: A Global Analysis

Book 2Diane M. Ring (Boston College), Book Review, 73 Tax Notes Int'l 713 (Feb. 17, 2014) (reviewing Resolving Transfer Pricing Disputes: A Global Analysis (Eduardo Baistrocchi & Ian Roxan eds., Cambridge University Press 2013)):

Eduardo Baistrocchi and Ian Roxan have brought a new contribution, Resolving Transfer Pricing Disputes, to the global literature on transfer pricing. The basic structure is straightforward: The introduction provides an overview of the book's mission, coverage, and design process. Chapter 2 outlines the transfer pricing problem, its history, and the evolving international response. The following 18 chapters highlight countries around the globe, both those with a long history of transfer pricing regulation and countries just beginning to develop and implement a national response. The concluding chapters return to themes identified at the outset regarding the evolution of the transfer pricing regime -- the claim that the international tax system has been moving from a rules-based response to a more standards-based approach to the problem of artificial income shifting.

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February 28, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Wednesday, February 26, 2014

Shaviro Presents Fixing U.S. International Taxation Today at Duke

FixingDaniel N. Shaviro (NYU) presents Fixing U.S. International Taxation (Oxford University Press, 2014) at Duke today as part of its Tax Policy Seminar hosted by Lawrence Zelenak:

Part 1, consisting of chapters 2 and 3, first reviews the basic U.S. international tax rules, and then addresses in greater detail the design challenges that they raise, along with their main incentive effects and planning implications. Part 1 could be skimmed or even skipped by readers who either are already well-versed in the operational details, or else do not wish to delve too deeply into the U.S. international tax system’s plumbing. However, it does (chapter 3 in particular) develop some points that are important to the subsequent analysis. Part 2 then shifts to a broader policy focus. To this end, chapter 4 addresses the global welfare perspective on U.S. international tax policy. Chapter 5 addresses the unilateral national welfare perspective. Finally, chapter 6 addresses the question of what practical steps might be taken to improve U.S. international tax policy.

February 26, 2014 in Book Club, Colloquia, Scholarship, Tax | Permalink | Comments (0)

In Defense of Disciplines: Rejecting the Siren Song of Interdisciplinary Research

Inside Higher Ed:  A Call to Embrace Silos:

In DefenseEveryone, it seems, wants to promote interdisciplinary work. College and university presidents love to announce new interdisciplinary centers. Funders want to support such work. Many professors and graduate students bemoan the way higher ed places them in silos from which they long to free themselves, if only they could get tenure for interdisciplinary work.

Jerry A. Jacobs, a professor of sociology at the University of Pennsylvania, wants to end the interdisciplinary love fest. His new book, In Defense of Disciplines: Interdisciplinarity and Specialization in the Research University (University of Chicago Press, 2013), challenges the conventional wisdom that academe needs to get out of disciplines to solve the most important problems and to encourage creative thinking. The most significant ideas (including those related to problems that cross disciplines) in fact come out of specialized, discipline-oriented work, Jacobs argues. Further, he says that the idea that disciplines don't communicate right now is overstated -- and that such communication can be encouraged without weakening disciplines.

In an interview, he said common sense shows that interdisciplinary problems require many disciplines to work on them -- from the strength of their scholarly backgrounds.

February 26, 2014 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Thursday, February 20, 2014

Call for Book Reviews: Michigan Law Review

Michigan The Michigan Law Review has asked me to post its solicitation of book reviews for its 2015 Survey of Books Related to the Law:

The Michigan Law Review publishes an Annual Survey of Books dedicated to book reviews. Book reviews are not included in any other issue of the Michigan Law Review. The Survey includes reviews of books published in the current year and the past three years. The Volume 113 Book Review issue will be published in spring 2015.

Proposal guidelines can be downloaded here. Manuscripts and draft sections to accompany the proposal are appreciated. Please note that all Book Review proposals, drafts, and manuscripts must be submitted via email to michlrev.ed.br@umich.edu. Decisions regarding the upcoming issue will generally be made between March and May of 2014.

Please note that we prefer that finished drafts be no more than 8,500 words, including footnotes.

To request an expedited decision or to contact the Book Review Editors, please e-mail michlrev.ed.br@umich.edu.

February 20, 2014 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Thursday, February 13, 2014

More Reviews of Tamanaha's Failing Law Schools

FailingTwo reviews of Brian Tamanaha (Washington U.), Failing Law Schools (University of Chicago Press, 2012)):

David Burk (Ph.D. Candidate, University of Chicago Department of Economic), Book Review, 63 J. Legal Educ. 349 (2013):

Failing Law Schools is not the right title for Professor Brian Tamanaha’s book. A better one might be, The Sad Fate of Poor Performers at Low-Ranked Law Schools. It is not as catchy, but gives a better idea of what the book is about. Better still would be to excise the sections about how law school is a bad deal, and call the remaining portion Why Law School is So Expensive and What to Do About It, because the book does a fine job of answering those questions

Michael Simkovic (Seton Hall Law School) & Frank McIntyre (Rutgers Business School), Populist Outrage, Reckless Empirics: A Review of Failing Law Schools, 108 Nw. U. L. Rev. Online 176 (2014):

The authors of The Economic Value of a Law Degree ... focus[] on problems with empirical claims in Failing Law Schools regarding outcomes for law graduates and also regarding law faculty compensation. The review also discusses Professor Tamanaha's proposals for reform of legal education in light of economic theory and the empirical economics literature, and finds reasons to doubt that Tamanaha's proposed reforms will have the effects he predicts.

Other reviews of Failing Law Schools:

Continue reading

February 13, 2014 in Book Club, Legal Education, Scholarship | Permalink | Comments (11)

Wednesday, February 12, 2014

Schmidt: How Tax Law Made Modern America

AjayChristopher W. Schmidt (Chicago-Kent), How Tax Law Made Modern America (Jotwell), reviewing Ajay K. Mehrotra (Indiana), Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013):

This book serves as a model for legal historians who are looking to integrate fine-grained, nuanced analyses of historical events and actors with the kind of big-picture ideas that most readily engage our fellow legal scholars. This is a book that illuminates a fundamental transformation of the American state, a transformation in whose shadow we obviously live today. This is also a book that takes ideas quite seriously. (Mehrotra begins one of his chapters with John Maynard Keynes’s quotation about “[p]ractical men” unknowingly being “the slaves of some defunct economist.”) But this book is not, in the end, a work of intellectual history or political theory. It is history in which ideas are important because they moved the machinery of politics and law. Understanding the roots of the policy changes examined in this book requires careful attention to the larger ideas that made the policy seem so urgent and necessary. We are thus witnesses to the complex interplay of ideology, legal development, politics, and social activism. Out of all this, as this book so effectively and smartly demonstrates, arose a new set of legal norms, political expectations, and societal sensibilities.

One of the most important contributions of Making the Modern American Fiscal State is the way in which Mehrotra conceptualizes the very idea of taxes. Taxing, in Mehrotra’s account, was not just a tool for raising revenues to fund whatever policy the government in power favored. It was not just a neutral means to a contested, ideological end. Taxing policy was itself a statement of substantive ideology; it was a discourse through which Americans could talk about their vision of government and civic responsibility. “Fiscal citizenship” is the nicely evocative label Mehrotra attaches to this idea. This is a rich, compelling, and convincing framework through which to think about taxing. And it is a perfect vehicle for telling the story of the rise of progressive taxation and thus the formation of the modern American state.

February 12, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (1)

Tuesday, February 11, 2014

Why Failing Well Is the Key to Success

Megan McArdle, The Up Side of Down: Why Failing Well Is the Key to Success (2014):

UpMost new products fail. So do most small businesses. And most of us, if we are honest, have experienced a major setback in our personal or professional lives. So what determines who will bounce back and follow up with a home run? If you want to succeed in business and in life, Megan McArdle argues in this hugely thought-provoking book, you have to learn how to harness the power of failure.

McArdle has been one of our most popular business bloggers for more than a decade, covering the rise and fall of some the world’s top companies and challenging us to think differently about how we live, learn, and work. Drawing on cutting-edge research in science, psychology, economics, and business, and taking insights from turnaround experts, emergency room doctors, venture capitalists, child psychologists, bankruptcy judges, and mountaineers, McArdle argues that America is unique in its willingness to let people and companies fail, but also in its determination to let them pick up after the fall. Failure is how people and businesses learn. So how do you reinvent yourself when you are down?

Dynamic and punchy, McArdle teaches us how to recognize mistakes early to channel setbacks into future success. The Up Side of Down marks the emergence of an author with her thumb on the pulse whose book just might change the way you lead your life. 

February 11, 2014 in Book Club, Legal Education, Tax | Permalink | Comments (2)

Thursday, February 6, 2014

Careers in Tax Law: Perspectives on the Tax Profession

Careers in Tax Law The ABA Tax Section has published Careers in Tax Law: Perspectives on the Tax Profession and What It Holds for You, by John Gamino, Robb A. Longman & Matthew R. Sontag:

Designed for those considering or beginning a career in tax law, this informative guide presents a series of offerings -- autobiographies in miniature -- by a broad cross section of working tax professionals. Each contribution stands as a unique story of paths taken, choices made, and lessons learned. Each adds to a composite portrait of the profession and its possibilities for the next generation of tax lawyers. In essays divided thematically into the following chapters, over 75 tax professionals share their unique perspectives, knowledge, and experiences. Nowhere else will you find such an honest and entertaining portrayal of the tax profession and what it holds for you.

See the Forward and Table of Contents.  Contributions from Tax Profs include:

  • Edward D. Kleinbard (USC), Private Clients, Public Good, p. 124
  • George K. Yin (Virginia), Lawyer, Teacher, Public Servant, p. 127
  • Leandra Lederman (Indiana-Bloomington), It’s Not Just Teaching, p. 133
  • Alice G. Abreu (Temple), The Best Job in the World, p. 136
  • Mona L. Hymel (Arizona), The Impossible Dream?, p. 140
  • Francine J. Lipman (Chapman), The Gift That Keeps on Giving, p. 143

February 6, 2014 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Slemrod & Gillitzer: Tax Systems

Tax SystemsJoel Slemrod (Michigan) & Christian Gillitzer (Ph.D. 2013, Michigan), Tax Systems (MIT Press, 2014):

Despite its theoretical elegance, the standard optimal tax model has significant limitations. In this book, Joel Slemrod and Christian Gillitzer argue that tax analysis must move beyond the emphasis on optimal tax rates and bases to consider such aspects of taxation as administration, compliance, and remittance. 

Slemrod and Gillitzer explore what they term a tax-systems approach, which takes tax evasion seriously; revisits the issue of remittance, or who writes the check to cover tax liability (employer or employee, retailer or consumer); incorporates administrative and compliance costs; recognizes a range of behavioral responses to tax rates; considers nonstandard instruments, including tax base breadth and enforcement effort; and acknowledges that tighter enforcement is sometimes a more socially desirable way to raise revenue than an increase in statutory tax rates. Policy makers, Slemrod and Gillitzer argue, would be well advised to recognize the interrelationship of tax rates, bases, enforcement, and administration, and acknowledge that tax policy is really tax-systems policy.

Avoidance, evasion, compliance, and administration are 50 percent of the real action but only 5 percent of academic research on taxation. Joel Slemrod has been dominant in rectifying this imbalance. Tax Systems consolidates his and others’ work and leads the way forward.
—Louis Kaplow, Finn M. W. Caspersen and Household International Professor of Law and Economics, Harvard Law School

Research on tax design often overlooks essential issues of policy implementation. Tax Systems addresses this important oversight, providing insightful analysis on topics including compliance, complexity, remittance, and the design of information reports. Researchers and policy-makers will find this volume a compelling demonstration of how economic analysis can inform the key questions of tax administration.
—James Poterba, Mitsui Professor of Economics, MIT, and President, National Bureau of Economic Research

February 6, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Tuesday, January 14, 2014

Bartlett: Eisner v. Macomber: How the Courts Constrain Tax Reform

New York Times:  How the Courts Constrain Tax Reform, by Bruce Bartlett:

Tax StoriesThe taxation of capital gains has always been among the most politically contentious elements of the tax code and will be among the most difficult to resolve when fundamental tax reform is undertaken. But it is made even more difficult by an old Supreme Court case limiting the scope of potential reform. ...

[I]n the 1921 case of Merchants Loan and Trust Co. v. Smietanka, the Supreme Court definitively ruled that capital gains were taxable under the income tax. That left the issue one for Congress to deal with henceforth.

However, one lasting judicial constraint on congressional latitude is the principle that only realized capital gains may be taxed, a legacy of the Eisner decision. [Marjorie E. Kornhauser (Tulane), The Story of Eisner v. Macomber: The Continuing Role of “Realization” in Tax Law and Policy, in Tax Stories (Paul L. Caron, ed.) (Foundation Press 2d ed. 2009).] This is important because many economists believe that a proper income tax ought to tax all capital gains annually, whether realized or not. It also creates a problem with unrealized gains at death and whether they should be taxed as if realized. ...

In short, there aren’t only political and economic barriers to implementing tax reform, but constitutional ones left over from long-ago court cases. Some theorists believe that only by adopting a pure consumption tax, and eliminating the taxation of incomes entirely, can we fully escape the problems inherent in capital gains taxation.

(Hat Tip: Mike Talbert.)

January 14, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Thursday, January 9, 2014

Making Partner: The Essential Guide to Negotiating the Law School Path and Beyond

Making PartnerAdam Gropper (Legislation Counsel, Joint Committee on Taxation), Making Partner: The Essential Guide to Negotiating the Law School Path and Beyond (ABA Press, 2013):

Competition is tough and jobs are limited. Use Making Partner to learn strategies and tactics for achieving your career goals.

Making Partner provides practical information and specific advice about how to obtain a position at a top law firm of any size, including AmLaw 100 firms, and how to excel once you are there. The advice is given in the form of a step-by-step explanation of a highly effective and proven method used to secure a top law firm job, and detailed best practices to follow to be a star associate on the fast track to partnership and a successful junior partner.

This book is recommended for medium and large law firm associates at all levels, as well as for students.

Adam blogs at LegalJob.com.

January 9, 2014 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Tuesday, December 31, 2013

Faculty Pretend to Teach, Students Pretend to Learn

5 YearWall Street Journal op-ed:  We Pretend to Teach, They Pretend to Learn: At Colleges Today, All Parties Are Strongly Incentivized to Maintain Low Standards, by Geoffrey L. Collier (South Carolina State University):

The parlous state of American higher education has been widely noted, but the view from the trenches is far more troubling than can be characterized by measured prose. With most students on winter break and colleges largely shut down, the lull presents an opportunity for damage assessment.

The flood of books detailing the problems includes the representative titles Bad Students, Not Bad Schools and The Five Year Party. To list only the principal faults: Students arrive woefully academically unprepared; students study little, party much and lack any semblance of internalized discipline; pride in work is supplanted by expediency; and the whole enterprise is treated as a system to be gamed in which plagiarism and cheating abound.

The problems stem from two attitudes. Social preoccupations trump the academic part of residential education, which occupies precious little of students' time or emotions. Second, students' view of education is strictly instrumental and credentialist. They regard the entire enterprise as a series of hoops they must jump through to obtain their 120 credits, which they blindly view as an automatic licensure for adulthood and a good job, an increasingly problematic belief.

BadEducation thus has degenerated into a game of "trap the rat," whereby the student and instructor view each other as adversaries. Winning or losing is determined by how much the students can be forced to study. This will never be a formula for excellence, which requires intense focus, discipline and diligence that are utterly lacking among our distracted, indifferent students. Such diligence requires emotional engagement. Engagement could be with the material, the professors, or even a competitive goal, but the idea that students can obtain a serious education even with their disengaged, credentialist attitudes is a delusion.

The professoriate plays along because teachers know they have a good racket going. They would rather be refining their research or their backhand than attending to tedious undergraduates. The result is an implicit mutually assured nondestruction pact in which the students and faculty ignore each other to the best of their abilities. This disengagement guarantees poor outcomes, as well as the eventual replacement of the professoriate by technology. When professors don't even know your name, they become remote figures of ridicule and tedium and are viewed as part of a system to be played rather than a useful resource.

(Hat Tip: Greg McNeal.)

December 31, 2013 in Book Club, Legal Education | Permalink | Comments (5)

Tuesday, December 24, 2013

How A Christmas Carol Shaped My World

Christmas CarolBarry Sullivan (Loyola-Chicago), A Book that Shaped Your World: Charles Dickens, A Christmas Carol, 50 Alberta L. Rev. 934 (2013):

To celebrate the Alberta Law Review's fiftieth volume, the book review editors invited friends and alumni to put aside for a moment their required reading, and reflect briefly on the books that have shaped their approaches to life and the law. Professor Sullivan chose to reflect upon the perennially popular A Christmas Carol, to thoughtful and poetic effect.

The Victorians still have much to say to us. After all, apart from Shakespeare and the Greeks, who has written so insightfully as Trollope about the moral complexity and ambiguities of political life, with its competing claims of conscience and compromise, altruism and self-interest, idealism and corruption? But Dickens also merits our patronage. Dickens is the great moralist. His brief sounds in equity; his interest is fairness. Sentimental and didactic, he does not speak to our intellects in the way that Trollope does. Dickens shamelessly plays on our emotions. He speaks to our hearts. He manipulates us. He points us to the deepest truths about what it means to be human. And nowhere does he do that more effectively or with greater economy than in A Christmas Carol. ... The "power" that Scrooge attributes to Fezziwig is one that belongs to all of us. It is the power to act for good, and lawyers have that power in abundance.

December 24, 2013 in Book Club, Legal Education, Tax | Permalink | Comments (4)

Tuesday, December 10, 2013

Sheppard Reviews Tamanaha's Failing Law Schools

FailingSteve Sheppard (University of Arkansas School of Law), The Self-Fulfilling Prophecy of Law School Crisis (reviewing Brian Tamanaha (Washington U.), Failing Law Schools (University of Chicago Press, 2012)):

For this reviewer, Failing Law Schools is frustrating to read, but I do not think my frustration arises, as Tamanaha forecasts, because it challenges me, my salary, or my work ethic (p. 186). Indeed I have the luxury of working at one of the state law schools like those that Tamanaha sees as potential exceptions from his indictments.

Rather, the book is frustrating because of its rhetoric and use of sources. Each chapter seizes one charismatic point (or a few points), presents the point in detail but without essential context, and then draws inferences that the point cannot support....

The recent fall in law school applications may be seen by some critics as proof of the criticism. Yet it may be as likely that the fall results from the fact of the criticism. The alarm for law schools sounded by Failing Law Schools and similar declamations, predicting further decline in applications based on structural problems it identifies, may be explained by a host of factors that are far beyond the scope of the book, not the least being the general decline in law school applications among college graduates since the end of the Vietnam War. Yet there is more reason to believe that the continuing downturn in applications, extending beyond the drop that would be expected from the jobs recovery in 2009-13, is partly attributable to the criticism itself. Certainly, the scamblog movement described in Failing Law Schools has had an effect, and its encouragement by law professors, such as Tamanaha and Paul Campos at Colorado, has given the scambloggers a veneer of accuracy. This is not to say that the effect of the scambloggers has been to open the eyes of law school applicants to their realistic economic opportunities four years in the future. Rather the effect on the perception of college graduates and other would-be applicants is more likely to be cultural than to be one of economic awareness.

The effects on law schools, however, will be both economic and cultural. One might hope that the cultural effects will be constructive engagement, a continued improvement in legal education, that encourages knowledge, skill, professional ethics, and a rich understanding of the role of law and its function in a democracy. Understanding the need to fund legal services, not just legal education, would be a part of that engagement. It would be a great shame if the result were merely to dumb down law school. The price for that effect would be borne not just by the law students but also by their clients, and ultimately by the country.

Other reviews of Failing Law Schools:

Continue reading

December 10, 2013 in Book Club, Legal Education, Scholarship | Permalink | Comments (2)

David Foster Wallace, Tax, and Arguing Persuasively

Pale KingABA Journal, David Foster Wallace’s Advice on Arguing Persuasively:

David Foster Wallace, born in 1962, was one of the most respected writers of his generation. His novel Infinite Jest was considered by many one of the great English language novels of the late 20th century. ... In a lengthy interview with me in February 2006, Wallace discussed many points of interest to legal writers. It proved to be one of his last long interviews (he committed suicide in September 2008). What follows is an excerpt from a newly released book, Quack This Way: David Foster Wallace & Bryan A. Garner Talk Language and Writing (Oct. 25, 2013)). ...

Why do so many English professors write so poorly?
The simple way to put it, I think, is: Writing, like any kind of communicating, is complicated. When you’re writing a document for your professional peers, you’re sending out a whole lot of different messages. Some of them are the stuff you’re arguing; some of them are stuff about you.

My guess is that disciplines that are populated by smart, well-educated people who are good readers but are nevertheless characterized by crummy, turgid, verbose, abstruse, abstract, solecism-ridden prose are usually part of a discipline where the dynamic between writing as a vector of meaning—as a way to get information or opinion from me to you—versus writing as maybe a form of dress or speech or style or etiquette that signals that “I am a member of this group” gets thrown off.

There’s the kind of boneheaded explanation, which is that a lot of people with PhDs are stupid; and like many stupid people, they associate complexity with intelligence. And therefore they get brainwashed into making their stuff more complicated than it needs to be.

I think the smarter thing to say is that in many tight, insular communities—where membership is partly based on intelligence, proficiency and being able to speak the language of the discipline—pieces of writing become as much or more about presenting one’s own qualifications for inclusion in the group than transmission of meaning. And that’s how in disciplines like academia—or, I’ve read some really good legal prose, but when it’s really, really horrible (IRS Code stuff)—I think that very often it stems from insecurity and that people feel that unless they can mimic the particular jargon and style of their peers, they won’t be taken seriously and their ideas won’t be taken seriously. It’s a guess.

Prior TaxProf Blog coverage:

December 10, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (1)

Tuesday, November 26, 2013

Shaheen: On Shaviro's Fixing U.S. International Taxation

FixingFadi Shaheen (Rutgers-Newark), On Fixing U.S. International Taxation, 8 Jerusalem Rev. Legal Stud. ___ (2013):

This paper was prepared for a book symposium at Hebrew University Law School in June 2013 on Daniel N. Shaviro’s forthcoming book, Fixing U.S. International Taxation (Oxford University Press, 2014). The paper adds a few thoughts to those discussed in the book regarding the international tax neutrality analysis and certain interrelated notions concerning deferral, foreign tax credits, foreign tax deductions, and the tax rate on foreign source income. 

November 26, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Tuesday, November 12, 2013

Sham Transactions (Oxford University Press)

ShamSham Transactions (Edwin Simpson & Miranda Stewart, eds.,  Oxford University Press 2013):

Part I: Context and History
1. Introduction: What is the Sham 'Doctrine'?, Miranda Stewart & Edwin Simpson
2. Sham: Early Uses and Related and Unrelated Doctrines, Mike McNair
3. The Judicial Doctrine of Sham in Australia, Miranda Stewart
4. Sham Transactions in the United States, Joshua Blank & Nancy Staudt
5. Sham and Purposive Statutory Construction, Edwin Simpson
Part II: Sham Transactions
6. 'Shams' in Tenancy Agreements, Susan Bright, Hannah Glover & Jeremias Prassl
7. Sham and Trusts, Matthew Conaglen
8. Sham and Trusts: A Practitioner's Perspective, Nicholas Le Poidevin
9. Sham Doctrine and Company Charges, Lord Neuberger
10. Sham Transactions in Employment Law, Anne Davies
11. Shams and Piercing the Corporate Veil, Robert Miles & Eleanor Holland
Part III: Taxation and Artificiality
12. Tracing the Boundaries of Sham and Ramsay, Malcolm Gammie
13. Sham and Tax Avoidance: What Difference does a GAAR make? - a New Zealand Perspective, Shelley Griffiths & Jessica Palmer
14. Trompe-l'oeil: Sham in the Canadian Tax Courts, Glen Loutzenhiser
15. Sham, Tax Avoidance and 'A Realistic View of Facts', John Vella
16. Sham and Tax Law: Coffee Beans, Trust Funds and Judicial Distaste, Michael Kirby

November 12, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (1)

Wednesday, November 6, 2013

Sheffrin: Tax Fairness and Folk Justice

Tax FairnessSteven M. Sheffrin (Tulane), Tax Fairness and Folk Justice (Cambridge University Press, Oct. 28, 2013):

Why have Americans severely limited the estate and gift tax -- ostensibly targeted at only the very wealthy -- but greatly expanded the subsidies to low-wage workers through the Earned Income Tax Credit, now the single largest poverty program in the country? Why do people hate the property tax so much, yet seemingly revolt against it only during periods of economic change? Why are some groups of taxpayers more obedient to the tax authorities than others, even when they face the same enforcement regime? These puzzling questions all revolve around perceptions of tax fairness. Is the public simply inconsistent? A sympathetic and unified explanation for these attitudes is based on understanding the everyday psychology of fairness and how it comes to be applied in taxation. This book demonstrates how a serious consideration of "folk justice" can deepen our understanding of how tax systems actually function and how they can perhaps be reformed.

A fabulous book! Filled with insights on a crucially important, but underexplored, aspect of tax policy. This book should be required reading for anyone interested in the politics or sociology of taxation. -- David Gamage (UC-Berkeley)

Steve Sheffrin brings together insights from social psychology and philosophy to reconcile how economists think about tax fairness with how everyone else does. It is a fascinating ride, well worth taking, that draws on the author's familiarity with modern economics and with the details of tax systems. Sheffrin's argument that many key features of the tax system are best explained through understanding folk justice concepts is compelling and should be taken seriously by all students of taxation.  -- Joel Slemrod, University of Michigan

November 6, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Wednesday, October 30, 2013

Shaviro Presents Fixing U.S. International Taxation at Columbia

DShaviroDaniel N. Shaviro (NYU) presents Fixing U.S. International Taxation (Oxford University Press, 2014) (purchase from amazon) at Columbia tomorrow as part of its Tax Policy Colloquium Series hosted by Alex Raskolnikov, David Schizer, and Wojciech Kopczuk:

Part 1, consisting of chapters 2 and 3, first reviews the basic U.S. international tax rules, and then addresses in greater detail the design challenges that they raise, along with their main incentive effects and planning implications. Part 1 could be skimmed or even skipped by readers who either are already well-versed in the operational details, or else do not wish to delve too deeply into the U.S. international tax system’s plumbing. However, it does (chapter 3 in particular) develop some points that are important to the subsequent analysis. Part 2 then shifts to a broader policy focus. To this end, chapter 4 addresses the global welfare perspective on U.S. international tax policy. Chapter 5 addresses the unilateral national welfare perspective. Finally, chapter 6 addresses the question of what practical steps might be taken to improve U.S. international tax policy.

Update:  Dan has more details here.

October 30, 2013 in Book Club, Colloquia, Scholarship, Tax | Permalink | Comments (0)

Tuesday, October 22, 2013

Taxing Global Digital Commerce

TaxingArthur J. Cockfield (Queen's University Faculty of Law), Walter Hellerstein (University of Georgia School of Law), Rebecca Millar (University of Sydney Faculty of Law) & Christophe Waerzeggers (IMF), Taxing Global Digital Commerce (Wolters Kluwer Law & Business (Sept. 23, 2013)):

The term e-commerce -- the use of computer networks to facilitate transactions involving the production, distribution, sale, and delivery of goods and services in the marketplace -- has grown from merely streamlining relations between consumer and business to a much more robust phenomenon embracing efficient business processes within a firm and between firms. Inevitably, the related taxation issues have grown too.

This latest edition of the preeminent text on the taxation of electronic transactions -- formerly titled Electronic Commerce and International Taxation (1999) and Electronic Commerce and Multijurisdictional Taxation (2001) -- revises, updates, and expands the book's coverage, reorganizes its presentation, and adds several new chapters. It includes a detailed and up-to-date analysis of VAT developments regarding e-commerce, and explores the implications of e-commerce for the US state and local sales and use tax regime. It discusses developments in Europe and the United States while enlarging its focus to include the tax treatment of e-commerce in China, India, Canada, Australia, and throughout the world. Analysing the practical tax consequences of e-commerce from a multijurisdictional and multitax perspective, the book offers in-depth treatment of such topics as the following:

  • how tax rules governing cross-border e-commerce are increasingly applied to all cross-border activities;
  • how tax rules and processes developed to confront challenges posed by e-commerce provoke optimal tax policy;
  • how technology enhances tax and cross-border information exchanges;
  • how technology lowers both compliance and enforcement costs;
  • consumption tax issues raised by cloud computing; and
  • different approaches to the legal design of VAT place of taxation rules, with examples.

This edition, while building on earlier editions' analysis of the relationship between traditional tax laws and the Internet, contains a more explicit and systematic consideration of e-commerce issues as well as the ongoing policy responses to them. Tax professionals and academics everywhere will welcome the giant step it takes towards the design of multijurisdictional tax regimes that are both conceptually sound and practical in implementation.

See here for Table of Contents, Preface, and Chapter 1.

October 22, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Thursday, October 10, 2013

Simkovic & McIntyre Review Tamanaha's Failing Law Schools

FailingMichael Simkovic (Seton Hall Law School) & Frank McIntyre (Rutgers Business School), Populist Outrage, Reckless Empirics: A Review of Failing Law Schools (reviewing Brian Tamanaha (Washington U.), Failing Law Schools (University of Chicago Press, 2012)):

The authors of The Economic Value of a Law Degree ... focus[] on problems with empirical claims in Failing Law Schools regarding outcomes for law graduates and also regarding law faculty compensation. The review also discusses Professor Tamanaha's proposals for reform of legal education in light of economic theory and the empirical economics literature, and finds reasons to doubt that Tamanaha's proposed reforms will have the effects he predicts.

Other reviews of Failing Law Schools:

Continue reading

October 10, 2013 in Book Club, Legal Education | Permalink | Comments (1)

Saturday, October 5, 2013

Lobel: Aggressive Talent Wars Are Good for Cities

Harvard Business Review LogoHarvard Business Review:  Aggressive Talent Wars Are Good for Cities, by Orly Lobel (San Diego):

California is often ranked among the world’s most inventive regions. But most observers miss one of the major reasons why: the absence of non-compete agreements.

Barring non-competes is one of California longstanding strong talent mobility safeguards. Unlike most other states in the United States, but more like innovative Western European countries like Germany, the Netherlands, and Sweden, California has rules about allowing job mobility within markets. The California Business Code voids all non-competes agreements between businesses and their employees, while the California Labor Code restricts the ability of corporations to require their employees to pre-assign all inventions, even if unrelated to the job, during the course of employment.

California courts have been so adamant about enforcing the state’s prohibition of non-competes, they’ve held that companies who do not hire or promote talented employees who refuse to sign a non-compete (which would be void anyway if taken to court) are liable in tort and should be subject to punitive damages. They’ve even refused to enforce non-competes that were signed in other states, announcing them contrary to state policy.

Conversely, Boston’s Route 128 tech beltway has not flourished the way Silicon Valley has, in part because of restrictive non-compete agreements. Non-competes have contributed to the more rigid, vertically integrated, and prone to insourcing ethos of Boston’s high tech region.

California’s lack of non-compete agreements is the reason Marissa Mayer could assume the position of CEO at Yahoo! immediately upon leaving its direct competitor, Google. And, as it turns out, it’s the reason California’s cities are some of the most innovative in the world – and provides a model for fueling innovation and economic growth elsewhere.

Leaks 2Orly Lobel (San Diego), Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding (Yale University Press, Sept. 30, 2013):

This timely book challenges conventional business wisdom about competition, secrecy, motivation, and creativity. Orly Lobel, an internationally acclaimed expert in the law and economics of human capital, warns that a set of counterproductive mentalities are stifling innovation in many regions and companies. Lobel asks how innovators, entrepreneurs, research teams, and every one of us who experiences the occasional spark of creativity can triumph in today’s innovation ecosystems. In every industry and every market, battles to recruit, retain, train, energize, and motivate the best people are fierce. From Facebook to Google, Coca-Cola to Intel, JetBlue to Mattel, Lobel uncovers specific factors that produce winners or losers in the talent wars. Combining original behavioral experiments with sharp observations of contemporary battles over ideas, secrets, and skill, Lobel identifies motivation, relationships, and mobility as the most important ingredients for successful innovation. Yet many companies embrace a control mentality—relying more on patents, copyright, branding, espionage, and aggressive restrictions of their own talent and secrets than on creative energies that are waiting to be unleashed. Lobel presents a set of positive changes in corporate strategies, industry norms, regional policies, and national laws that will incentivize talent flow, creativity, and growth. This vital and exciting reading reveals why everyone wins when talent is set free.

October 5, 2013 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Wednesday, September 18, 2013

Goldman: The Economics of Law Prof Ebook Publishing

EPubForbes:  Self-Publishing A Legal Casebook: An Ebook Success Story, by Eric Goldman (Santa Clara):

I co-authored a casebook on Advertising and Marketing Law with Prof. Rebecca Tushnet of Georgetown Law. Last July, we self-published the casebook as an ebook via Scribd and Gumroad. Drawing on the past 14 months of data, this post explains why I consider the self-publishing experiment a success.  ...

We decided to self-publish the book as a DRM-free PDF. We deliberately chose a low price of $10. For comparison, the typical traditionally-published casebook run $150-$200 and some other legal casebook ebooks are trying to establish a $30 price point. ...

In the past 14 months, we’ve sold 467 copies at Scribd and 58 at Gumroad, for a total sales volume of 525 copies and net royalties of over $4,100. Assuming a few more adoptions in Spring 2014, we will substantially exceed my expectations for the first two years.

Update:   ABA Journal, Self-Published $10 Law School Casebook a Good Deal for Buyer and Seller, Co-author Says

September 18, 2013 in Book Club, Legal Education, Scholarship | Permalink | Comments (0)

Monday, September 16, 2013

Buchanan: The Debt Ceiling Disasters

Buchanan 2Neil H. Buchanan (George Washington), The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back (Carolina Academic Press, 2013):

In 2011, the new Republican majority in the House of Representatives embarked on a radical and dangerous path, threatening to refuse to increase the limit on federal debt. This new Republican strategy threatened to bring about the first federal default in the history of the United States – a default that would be caused not by economic necessity, but by political opportunism.

Because no one had ever threatened to force the federal government to default on its obligations, politicians and scholars found themselves in uncharted territory. Most commentary was superficial and ad hoc, failing to take seriously the profound legal and economic questions that the Republican strategy raised. Neil H. Buchanan, an economist and a tax law scholar, emerged as the only expert analyst who systematically engaged in depth with all of the issues surrounding the debt ceiling.

This book brings together Professor Buchanan’s accessible and lively analysis of the debt ceiling disasters as they have unfolded since 2011. He also provides an overview of where we now stand. He explains why the debt ceiling forces the President to choose between nothing but illegal and unconstitutional options. He shows that the President must obey the spending and taxing laws rather than the debt ceiling law, that novel strategies such as minting platinum coins are both illegal and dangerous, and that the only way to stop the debt ceiling disasters from continuing into the future is for the President to take a constitutional stand today.

September 16, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (4)

Thursday, September 12, 2013

Mehrotra: Law, Politics, and the Rise of Progressive Taxation

AjayAjay K. Mehrotra (Indiana), Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013):

At the turn of the twentieth century, the U.S. system of public finance underwent a dramatic transformation. The late-nineteenth-century regime of indirect, hidden, partisan, and regressive taxes was eclipsed in the early twentieth century by a direct, transparent, professionally administered, and progressive tax system. This book uncovers the contested roots and paradoxical consequences of this fundamental shift in American tax law and policy. It argues that the move toward a regime of direct and graduated taxation marked the emergence of a new fiscal polity – a new form of statecraft that was guided not simply by the functional need for greater revenue but by broader social concerns about economic justice, civic identity, bureaucratic capacity, and public power. Between the end of Reconstruction and the onset of the Great Depression, the intellectual, legal, and administrative foundations of the modern fiscal state first took shape. This book explains how and why this new fiscal polity came to be. This paper contains the penultimate drafts of the introduction and conclusion of the author’s forthcoming book, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013).

September 12, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Wednesday, September 11, 2013

How Money Walks

MoneyWalks-CoverTravis H. Brown, How Money Walks: How $2 Trillion Moved Between the States, and Why It Matters (2013):

Between 1995 and 2010, millions of Americans moved between the states, taking with them over $2 trillion in adjusted gross incomes. Two trillion dollars is equivalent to the GDP of California, the ninth largest in the world. It s a lot of money. Some states, like Florida, saw tremendous gains ($86.4 billion), while others, like New York, experienced massive losses ($58.6 billion). People moved, and they took their working wealth with them. The question is, why? Why did Americans move so much of their income from state to state? Which states benefited and which states suffered? And why does it matter?

Using official statistics from the IRS, How Money Walks explores the hows, whys, and impact of this massive movement of American working wealth. Consider these facts. Between 1995 and 2010:

  • The nine states with no personal income taxes gained $146.2 billion in working wealth
  • The nine states with the highest personal income tax rates lost $107.4 billion
  • The 10 states with the lowest per capita state-local tax burdens gained $69.9 billion
  • The 10 states with the highest per capita state-local tax burdens lost $139 billion Money and people moved from high-tax states to low-tax ones.

And the tax that seemed to matter the most? The personal income tax. The states with no income taxes gained the greatest wealth, while the states with the highest income taxes lost the most. Why does this matter? Because the robust presence of working wealth is the leading indicator of economic health. The states that gained working wealth are growing and thriving. The states that lost working wealth lost their most precious cargo their tax base and the consequences are dire: stagnation, deterioration, an economic death spiral as they continue to raise taxes and lose people, businesses, and working wealth. The numbers don't lie.

September 11, 2013 in Book Club, Tax | Permalink | Comments (3)

Monday, September 9, 2013

Beyond Economic Efficiency in United States Tax Law

Book CoverBeyond Economic Efficiency in United States Tax Law (Wolters Kluwer 2013) (David A. Brennen (Dean, Kentucky), Darryll K. Jones (Associate Dean, Florida A&M) & Karen B. Brown (George Washington), eds.):

This book is inspired primarily by two events that occurred over the past couple of decades. The first was the start of the Critical Tax Theory movement. The Critical Tax Theory movement began with a series of conferences initiated in 1995. The principal organizer of the first conference was Professor Nancy Staudt. The name ‘‘critical tax theory’’ was apt because the initial participants shared a common dissatisfaction with the traditional way of viewing tax law solely along an equity-efficiency axis, with a narrow construct of equity subordinated to notions of efficiency. The initial conferees presented papers that, without entirely eschewing the equity-efficiency dichotomy, analyzed tax law from perspectives explicitly acknowledging the influence of gender, race, sexual orientation and other social constructs. Except for a three-year break, tax scholars continue today to annually organize similar Critical Tax Theory conferences throughout the United States on or around April 15 - the traditional due date for individual tax returns in the United States. Although many of the papers presented at Critical Tax Theory conferences do not explicitly involve critical legal analysis of tax law, the impetus for the series of conferences was to inject critical legal studies principles into the study of tax law. Taxing America (NYU 1997), a collection of original essays authored by many who participated in the early Critical Tax Theory conferences, was an important milestone because it was the first effort to publish, in book form, a coherent volume of contributions to the Critical Tax Theory debate.

September 9, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (1)

Friday, August 23, 2013

Why Teach?

Why TeachNew York Times:  How Four Years Can (and Should) Transform You Mark Edmundson’s Essays Ask, ‘Why Teach?’:

When young people starting their college careers ask me what they should look for when they get to campus, I tell them: find out who the great teachers are. It doesn’t matter much what the subject is. Find a real teacher, and you may open yourself to transformation — to discovering whom you might become. This can be the great gift of a liberal education.

Yes, I sometimes get puzzled looks. Or eye rolls.

If I meet any students heading to the University of Virginia, I will tell them to seek out Mark Edmundson, an English professor and the author of a new collection of essays called Why Teach? (2014). For Mr. Edmundson, teaching is a calling, an urgent endeavor in which the lives — he says the souls — of students are at stake.

Mr. Edmundson loves to teach, but he hates the conditions under which much teaching takes place today, even at an elite university like Virginia. These conditions — the consumer mentality of students and their families, the efforts of administrators to provide a full spa experience and the rush of faculty to escape from the classroom into esoteric research — make real teachers an endangered species in the academic ecosystem. In this context, Mr. Edmundson reminds us of the power strong teachers have to make students rethink who they are and whom they might become. This is what a real education is all about....

Mr. Edmundson worries that too many professors have lost the courage of their own passions, depriving their students of the fire of inspiration. Why teach? Because great professors can “crack the shell of convention,” shining a light on a life’s different prospects. They never aim at conversion, only at what Emerson called “aversion” — bucking conformity so as to discover possibility.

Despite the forces arrayed against them, in the next few weeks, students across the country will find their way to professors like Mr. Edmundson, teachers eager to continue the fight for real education. I wouldn’t bet against them.

August 23, 2013 in Book Club, Legal Education | Permalink | Comments (0) | TrackBack (0)

Foundation Press Publishes 2013 Supplement to Federal Wealth Transfer Taxation

2013 CB & SP Supplement CoverThe late Paul McDaniel (Florida), Jim Repetti (Boston College), and I have published a 2013 Supplement  (128 pages) to our two Federal Wealth Transfer Taxation (Foundation Press, 6th ed. 2009) books: our casebook and study problems book. Faculty, students, and other interested readers are welcome to download a free copy. Here is the Preface:

This supplement is designed to update our Casebook and accompanying Study problems book: Federal Wealth Transfer Taxation: Cases and Materials (6th ed. 2009), and Federal Wealth Transfer Taxation: Study Problems (6th ed. 2010). We hereby grant permission to users of Federal Wealth Transfer Taxation to distribute copies of this supplement to students, either in hard copy or in electronic form.

This supplement is current through August 1, 2013 and incorporates The American Taxpayer Relief Act of 2012 (Pub. L. No. 112-240, 126 Stat. 2313 (2013)) and The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (Pub. L. No. 111-312, 124 Stat. 3296 (2010)).

We also have published a 2013 Supplement (64 pages) to our teacher's manual accompanying our Federal Wealth Transfer Taxation casebook and study problems book. The 2013 Supplement provides detailed answers to the new and revised study problems, as well as commentary on new and revised material in the casebook. Faculty who would like a free copy of the 2013 Supplement to our Teacher's Manual can email Jim or me.

August 23, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Friday, August 9, 2013

The Political Economy of Transnational Tax Reform

BookThe Political Economy of Transnational Tax Reform: The Shoup Mission to Japan in Historical Context (W. Elliot Brownlee et al., eds.) (Oxford University Press, July 2013):

This volume of essays explores the history of the U.S. tax mission to Japan during the occupation following World War II. Under General MacArthur, economist Carl S. Shoup led the mission with the charge of framing a tax system for Japan designed to strengthen democracy and accelerate economic recovery. The volume examines the sources, conduct, and effects of the mission and situates the mission within the history of international financial and fiscal reform. The book begins by establishing the context of progressive social investigations of taxation, including Shoup's earlier tax missions to France and Cuba. It then goes on to explore the Japanese background to the Shoup mission and the process by which American and Japanese tax experts shaped their recommendations. The book then assesses and explains the mission's accomplishments in the context of the political economies of the United States and Japan. It concludes by analyzing the global implications of the mission, which became iconic among international tax reformers.

Contributors: W. Elliot Brownlee, Ajay Mehrotra, Frances Lynch, Michael R. Adamson, Joseph J. Thorndike, Yasunori Fukagai, Laura Hein, Mark Metzler, Eisaku Ide, Ryo Muramatsu, Monica Prasad, Takatsugu Akaishi, Satoshi Sekiguchi, Martin Daunton

August 9, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Thursday, August 8, 2013

What the Best Law Teachers Do (Harvard University Press)

BestMichael Hunter Schwartz (Dean, Arkansas-Little Rock), Gerald F. Hess (Gonzaga) & Sophie M. Sparrow (New Hampshire), What the Best Law Teachers Do (Harvard University Press, Aug. 2013):

What makes a great law professor? The first study of its kind, What the Best Law Teachers Do identifies the methods, strategies, and personal traits of professors whose students achieve exceptional learning. This pioneering book will be of interest to any instructor seeking concrete, proven techniques for helping students succeed.

What the Best Law Teachers Do introduces readers to twenty-six professors from law schools across the United States. These instructors are renowned for their exacting standards: they set expectations high, while also making course requirements—and their belief that their students can meet them—clear from the outset. They demonstrate professional behavior and tell students to approach class as they would their future professional life: by being as prepared, polished, and gracious as possible. And they prepare themselves for class in depth, even when they have taught the course for years.

The best law professors understand that the little things matter. They start class on time and stay afterward to answer questions. They learn their students’ names and respond promptly to emails. These instructors are all tough—but they are also committed, creative, and compassionate mentors. With its close-to-the-ground accounts of exceptional educators in action, What the Best Law Teachers Do offers insights into effective pedagogy that transcend the boundaries of legal education.

Table of Contents:

  1. Introduction
  2. What Is Exceptional Learning in Law School?
  3. What Personal Qualities Do the Best Law Teachers Possess?
  4. How Do the Best Law Teachers Relate to Their Students?
  5. What Do the Best Law Teachers Expect from Their Students?
  6. How Do the Best Law Teachers Prepare to Teach?
  7. How Do the Best Law Teachers Engage Students in and out of the Classroom?
  8. How Do the Best Law Teachers Provide Feedback and Assess Students?
  9. What Lasting Lessons Do Students Take Away?
  10.  Suggestions for Using This Book

This book fills an enormous vacuum in law teaching literature. Based on painstaking, methodical, individual attention to 26 carefully-selected law professors from around the country, it presents cogent, inspiring, and concrete approaches to teaching and student–teacher relationships in the voices of the teachers and their students themselves.—Jean Koh Peters, Yale University

Reading this book is like sitting down and having extensive conversations with excellent teaching mentors. It is a wonderful addition to the professional mentorship that is so important yet often so lacking in faculty development.—Alison Grey Anderson, University of California, Los Angeles

Reviews:

August 8, 2013 in Book Club, Legal Education | Permalink | Comments (2) | TrackBack (0)

Thursday, August 1, 2013

Larson: A Practitioner's Guide to Tax Evidence

LarsonJoni Larson (Professor of Law and Assistant Director, Graduate Tax Program, Thomas M. Cooley Law School), A Practitioner's Guide to Tax Evidence: A Primer on the Federal Rules of Evidence as Applied by Tax Court (ABA Press, 2013):

A must-read for anyone preparing for trial before the U.S. Tax Court, this new guide from the American Bar Association Section of Taxation takes the reader step-by-step through the Federal Rules of Evidence (FRE) as applied by the Tax Court. This compilation results in an easy-to-read collection of cases to support or guide a practitioner facing an evidentiary problem before the Tax Court. The condensed and well-organized sections allow one to easily spot a particular issue or the Evidentiary Rule at hand and to find the supporting cases, and the case discussions have sufficient detail to allow the reader to know whether to go and read the full case. The brief summary of requirements of the major rules presented along with dozens of practice pointers assist the practitioner in charting the proof necessary to succeed.

Professor Larson has done a great service for all Tax Court practitioners. Her book provides a detailed passage through the FRE as applied by the Tax Court. This compilation results in an easy-to-read collection of cases to support or guide a practitioner facing an evidentiary problem in a Tax Court case. ... Having a book that focuses on the Tax Court’s rulings regarding FRE issues greatly aids the bar of that Court. Professor Larson’s condensed and well-organized sections allow one to easily spot a particular issue or the Evidentiary Rule at hand and to find the supporting cases. The case discussions have sufficient detail to allow the reader to know whether to go and read the full case. The brief summary of requirements of the major rules assists the practitioner in charting the proof necessary to succeed. Overall, those practicing in the Tax Court owe a debt of gratitude to Professor Larson for her work to assist in preparing for trialT. Keith Fogg, Professor of Law and Director of the Federal Tax Clinic, Villanova Law School.

August 1, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Handbook of Research on Environmental Taxation

HandbookHandbook of Research on Environmental Taxation (Janet E. Milne (Vermont Law School) & Mikael Skou Andersen (Aarhus University (Denmark)), eds., Edward Elgar 2013):

The Handbook of Research on Environmental Taxation captures the state of the art of research on environmental taxation. Written by 36 specialists in environmental taxation from 16 countries, it takes an interdisciplinary and international approach, focusing on issues that are universal to using taxation to achieve environmental goals.

The Handbook explores the conceptual foundations of environmental taxation, essential elements for designing environmental tax measures, factors that influence the acceptance of environmental taxation, the variety of ways to implement environmental taxes, their environmental and economic impact and, finally, the larger question of the role of taxation among other policy approaches to environmental protection. Intermixing theory with case studies, the Handbook offers readers lessons that can be applied around the world. It identifies key bodies of research for people who are already working in the field or entering the field and highlights issues that call for more research in the future.

With systematic analysis of key issues in environmental taxation, this book will appeal to researchers, governments, think tanks, NGOs, and academics in law, economics, political science and public finance, as well as students specializing in environmental taxation and other market-based instruments.

July 18, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Friday, July 12, 2013

Shaviro: Trade, Currency, and International Cooperation

JotwellDaniel N. Shaviro (NYU), Trade, Currency, and International Cooperation (Jotwell), reviewing Benn Steil (Council on Foreign Relations), The Battle of Bretton Woods: John Maynard Keynes, Harry Dexter White, and the Making of a New World Order (Princeton University Press, 2013):

It’s always nice when you can combine outside reading for fun with something that is educational and at least indirectly professionally relevant. Benn Steil’s economic and diplomatic history of the 1944 Bretton Woods conference, which established the post-World War II global framework for currency relationships and international trade (while also creating the International Monetary Fund and the World Bank) filled this niche for me during a quiet weekend. While the subject is not literally or directly related to taxation, it touches so closely on finance, macroeconomic policy, and international trade as to occupy a common universe with overlapping concerns.

July 12, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Thursday, June 27, 2013

Book Symposium on Dan Shaviro's Fixing U.S. International Taxation at Hebrew University Law School

ShaviroDaniel N. Shaviro (NYU) participated in a symposium at Hebrew University Law School last week on his forthcoming book, Fixing U.S. International Taxation (Oxford University Press, 2014).  The commentators were Steve Shay (Harvard), Yariv Brauner (Florida), and Fadi Shaheen (Rutgers-Newark).  Here is a dscription of the book:

In today’s global economy, the U.S. international tax rules, which govern how we tax cross-border investment, are increasingly important. Nearly everyone agrees that the existing rules are terrible. Their defects largely reflect the difficulty that both U.S. policymakers and analysts have experienced in choosing between two sharply etched approaches, known in the literature as (1) worldwide or residence-based taxation of U.S. taxpayers, including resident companies, and (2) source-based or territorial taxation, also known as exemption as it involves exempting U.S. companies’ foreign source income (FSI).

Unfortunately, evaluation of these and other choices in international tax policy is impeded by the fact that the underlying literature, despite a more than fifty year history of frequently intensive academic study by exceptionally talented and knowledgeable economists and lawyers, at some point went badly off the rails. Its main terms of debate reflect crucial misunderstandings of key issues and distinctions, along with a misguided focus on concepts that verge on being completely unhelpful. A major rethinking is therefore needed, taking advantage of tools that are routinely used elsewhere in the public economics and tax policy literatures.

Among the common errors in existing literature that the book addresses are the following:

Continue reading

June 27, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 25, 2013

The American Legal Profession in Crisis: Resistance and Responses to Change

MoliternoJames E. Moliterno (Washington & Lee), The American Legal Profession in Crisis: Resistance and Responses to Change (Oxford University Press, 2013):

  • Helps the reader understand the full range of the broad history of the legal profession
  • Focuses on and explains discrete historical periods and important crisis points in American legal history
  • Makes provocative recommendations and prescriptions for reform for the entire legal profession
  • Identifies the underlying causes of the legal profession's anachronism in response to change

For more, see:

June 25, 2013 in Book Club, Legal Education | Permalink | Comments (3) | TrackBack (0)

Sunday, June 16, 2013

Father's Day

Dad Is FatJim Gaffigan, Dad Is Fat (2013):

In Dad is Fat, stand-up comedian Jim Gaffigan, who’s best known for his legendary riffs on Hot Pockets, bacon, manatees, and McDonald's, expresses all the joys and horrors of life with five young children—everything from cousins ("celebrities for little kids") to toddlers’ communication skills (“they always sound like they have traveled by horseback for hours to deliver important news”), to the eating habits of four year olds (“there is no difference between a four year old eating a taco and throwing a taco on the floor”). Reminiscent of Bill Cosby’s Fatherhood, Dad is Fat is sharply observed, explosively funny, and a cry for help from a man who has realized he and his wife are outnumbered in their own home.

Reviews:

Wall Street Journal op-ed:  'Always Be a Gentleman' and Other Fatherly Advice, by Fay Vincent:

My father was definitely old school. He rarely swore, drank only an occasional beer in the high summer heat, and generally lived the solid decent life of what he called "a gentleman." From him I learned the values of decency, honor and pride.

During his lifetime I occasionally felt he was totally behind the times with his regular injunctions that I do my best and honor the family name. Yet now I realize the value of his legacy, which is summed up in the following set of commandments:

  • Always be a gentleman
  • Always keep your shoes shined
  • Save your money
  • Any week in which you do not put some money aside for a rainy day is a wasted week
  • A car is the most expensive thing you can own
  • A pension is important
  • If your boss or employer is not making money on you, you will eventually lose your job
  • It is more important to be able to write and speak well than it is to be able to succeed in athletics
  • There is no such thing as an honest politician
  • Don't get old
  • The finest legacies are often not material things

June 16, 2013 in Book Club, Legal Education, Tax | Permalink | Comments (0) | TrackBack (0)

Monday, May 6, 2013

Epstein: There Is No Crisis in Big Law or Legal Education

The Lawyer BubbleRichard A. Epstein (NYU) reviews Steven J. Harper (Former Partner, Kirkland & Ellis; Adjunct Professor, Northwestern), The Lawyer Bubble (Basic Books, 2013):

Law schools are under siege. Applications have dropped to around 54,000 annually, from around 100,000 in 2004. First-year enrollment has slipped to under 40,000 students, from 50,000 in 2010. Jobs are scarce—especially for students coming from lower-tier law schools. The average annual tuition has risen to just over $40,000 per year, from about $23,000 in 2001. Average debt on graduation has followed suit, jumping to about $125,000 in 2011, from $70,000 in 2001. No wonder many experts expect perhaps a dozen schools to close their doors within a year while other schools slash their class size, faculty and staff to stay open.

Meanwhile "Big Law"—the largest 200 or so law firms, which serve elite corporate clients in major urban areas—are under stress. Firm size has topped out, and both partnership shares and entry salaries are treading water at best. Clients now scour bills and disallow certain fees. Alternative, transaction-based fee arrangements are now more common. Competition has replaced cushy long-term relationships.

Terrible news, for sure. But is the "Profession in Crisis," as the subtitle of Stephen J. Harper's "The Lawyer Bubble" has it? The answer is no. A bubble may have burst, but not for the high end of the profession or for the thousands of attorneys working in specialized niches. ...

[T]he author ignores the more salient fact that the vast majority of big firms have avoided this grisly fate. Mr. Harper never looks into how these savvy firms survive in a tough environment. They do so, in part, by avoiding overstaffing, by cutting bad clients and by paying premium wages to young associates—many of whom, debts paid, happily bail out for less stressful work as in-house counsel for companies or in the government and nonprofit sectors. Over all, the model proves stable: With Congress passing monstrosities like Dodd-Frank and the Affordable Care Act, top-flight legal talent is needed more than ever to guide well-heeled clients through the growing regulatory maze.

Ironically, Mr. Harper misses the most significant recent dislocation in the practice of law, which is at the consumer end of the market: the rise of low-cost online law firms like LegalZoom and RocketLawyer that aid clients in drafting standard partnerships, wills, leases and the like. These firms pose a mortal threat to sole practitioners, not to Big Law.

So what does the new legal environment mean for legal education? Mr. Harper thinks that law schools fail because their faculties won't sully their hands with people with "actual experience" but seek out people "who are good at big ideas." ... Mr. Harper charges that academics like me, who are obsessed with high theory, cause "institutional inertia" in law schools and prevent the sort of evolution necessary to gear students up for the 21st-century legal market. The author's recipe for change includes large doses of hands-on instruction on business relations and practice skills. But law schools can't just be "practical training" centers, as Mr. Harper would have them; they must make sure that their students grasp the fundamentals of legal theory and doctrine. Future lawyers must also be capable of connecting law with collateral disciplines ranging from corporate finance to game theory to cognitive psychology. ...

Mr. Harper's blunderbuss condemnation of most large firms and most law schools is off-target. By and large, they have proved resilient in a competitive legal climate.

WSJ Law Blog, Pricking the "Lawyer Bubble":

Mr. Harper told Law Blog by email that “despite Professor Epstein’s contrary assertion, my book doesn’t advocate that law schools abandon the ‘fundamentals of legal theory’ in favor of practical training.” And as to the question of Mr. Epstein’s experience, Mr. Harper stands by his description, saying, “The perspective of a retained expert for a client is much different from that of anyone who has worked inside a big firm.”

May 6, 2013 in Book Club, Legal Education | Permalink | Comments (6) | TrackBack (0)

Sunday, May 5, 2013

Self-Congratulation and Faculty Scholarship

Paul Campos (Colorado), Self-Congratulation and Scholarship, 60 UCLA L. Rev. Disc. 214 (2013):

Brian Tamanaha’s Failing Law Schools argues that American law schools now cost far too much to attend, given long-term trends in the employment market for people with law degrees. ... Professor Jay Sterling Silver criticizes Tamanaha’s proposals. [The Case Against Tamanaha’s Motel 6 Model of Legal Education, 60 UCLA L. Rev. Disc. 52 (2012).] Silver believes the proposals will lead to a stratified hierarchy of law schools, with only a few elite institutions continuing to provide the high-quality pedagogical experience that Silver assumes everyone now enjoys by attending law schools accredited by the ABA. Silver argues that Tamanaha’s reforms would force the vast majority of law schools to provide their students a “cut-rate education,” much to the detriment of the students’ future clients.

Professor Silver’s response contains a number of unsubstantiated assertions. This Essay addresses three of them: the current cost of legal education is an accurate reflection of the real cost of producing adequately trained lawyers, the scholarship produced by tenured law faculty has enormously beneficial effects on the operation of the legal system, and Tamanaha’s reform proposals would stratify legal education. These claims illustrate how, in my view, the crisis of the American law school is in large part a product of the tendency of law school faculty to indulge in platitudinous self-congratulation.

1. Market Failures. ... Silver does not dispute Tamanaha’s diagnosis. Instead he recommends the budgetary equivalent of a couple of aspirin and some bed rest: Law schools must “tighten their belts, reduc[e] the size of incoming classes, cut[] administrative costs, and forgo[] hiring for a while,” rather than the more aggressive treatments Failing Law Schools advocates.

2. Tenured Faculty and Legal Scholarship. ... Silver argues that tenure and low teaching loads are necessary for the production of valuable legal scholarship. ... This argument makes several assumptions: (1) That the production of valuable critiques of the legal system is a common outcome of the current publication requirements for tenure-track faculty at American law schools; (2) That seriously suboptimal amounts of these valuable critiques of the legal system would be generated by law schools if Tamanaha’s reforms were adopted; and (3) That these valuable critiques of the legal system constitute an important practical counterweight to the invidious effect self-interested actors have on the legal system. These three assumptions strike me as, respectively, implausible, incredible, and utterly fantastic. ...

3. Two Tiers of Legal Education and the Socratic Method. Silver then turns from the more general, societal benefits of law review article publication to what he calls “the needs of students and clients.” Tamanaha’s suggested reforms would result, Silver says, in a stratified system of legal education with Ritz-Carlton law schools for a favored few and a Motel 6 education for their less privileged peers. ... [I]n the 1970s teaching loads for law faculty were much higher, salaries were much lower, law reviews were publishing approximately one-sixth as many articles as they do now, and not coincidentally tuition at private law schools was a quarter of what it is today in constant dollars, while resident tuition at almost all public law schools was essentially nominal. If Silver is to be believed, this state of affairs should have produced a generation of Motel 6–quality attorneys, while allowing the wielders of power to operate without facing the various trenchant critiques that otherwise would have been appearing in the nation’s law reviews. Again, does Silver or anyone else have any evidence that either the quality of legal education or the social value of legal scholarship are substantially higher than they were a generation ago?

Conclusion. I have gone to the trouble of critiquing Silver’s attempt to reply to Tama­naha’s criticisms of contemporary legal education because Silver’s essay displays the same characteristic weakness as American legal academic culture: a tendency to make bold assertions about the value of legal scholarship and the effectiveness of law school pedagogy, while at the same time providing no support for these assertions beyond a willingness to repeat self-congratulatory platitudes about who we are and what we do. Self-congratulatory platitudes, however, do not become true merely through constant repetition.

May 5, 2013 in Book Club, Legal Education | Permalink | Comments (10) | TrackBack (0)

Friday, April 26, 2013

Goldberg: The Death of the Income Tax

DeathDaniel S. Goldberg (Maryland), The Death of the Income Tax:  A Progressive Consumption Tax and the Path to Fiscal Reform (Oxford University Press, 2013):

The Death of the Income Tax explains how the current income tax is needlessly complex, contains perverse incentives against saving and investment, fails to use modern technology to ease compliance and collection burdens, and is subject to micromanaging and mismanaging by Congress. Daniel Goldberg proposes that the solution to the problems of the current income tax is completely replacing it with a progressive consumption tax collected electronically at the point of sale.

  • takes a fresh look at what kind of tax system a 21st century nation should have and can achieve
  • offers to change the way every American will relate to his government by eliminating the annual tax return for many of them
  • proposes a transformational change in how the U.S. will be funded by taxation, which will have far-reaching ramifications

April 26, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 24, 2013

Brauner & Stewart: Tax, Law and Development

TldTax, Law and Development (Yariv Brauner (Florida) & Miranda Stewart (Melbourne), eds.) (Edward Elgar  2013):

Comprising original essays written by top legal scholars, this innovative volume is the most comprehensive collection to date of independent academic work exploring the relationship between tax, law and development. Contributors cover a range of tax issues, drawing on economic, political, social, and institutional perspectives to offer a comprehensive view of how tax laws affect and are affected by human economic development.

Hailing from across the globe, contributors offer expert insight into tax issues in China, Brazil, South Africa, India, and other developing countries. Following a thorough examination of current policy approaches to tax problems in developing nations, the writers conclude that new solutions are needed, and outline a number of groundbreaking ideas and proposals designed to mitigate many of the problems associated with tax law and economic development.

Professors, students, and researchers with an interest in tax, law, development, and globalization will find much to admire in this critical and groundbreaking addition to the literature.

Foreword
Stephen E. Shay

PART I: INTRODUCTION: TAX REFORM AND FINANCING FOR DEVELOPMENT
1. Introduction: Tax, Law and Development
Yariv Brauner and Miranda Stewart

PART II: TAX COMPETITION AND TRAGIC CHOICES
2. The Future of Tax Incentives for Developing Countries
Yariv Brauner

3. The Tragic Choices of Tax Policy in a Globalized Economy
Tsilly Dagan

4. Economic Development and the Role of Tax in Southern Africa: The South African Headquarter Company Structure
Tracy Gutuza

5. Tax Sparing: A Reconsideration of the Reconsideration
Luís Eduardo Schoueri

PART III: IN SEARCH OF ‘SEARCHERS’ TO FIND UNIQUE SOLUTIONS TO COMMON TAX CHALLENGES
6. Is this a Pipe? Validity of a Tax Reform for a Developing Country
Ana Paula Dourado

7. The Place of Law in the Evolution of Chinese Fiscal Federalism
Wei Cui

8. The Globalization of Tax Expenditure Reporting: Transplanting Transparency in India and the Global South
Lisa Philipps

PART IV: TAX EQUITY, REDISTRIBUTION AND AID
9. Internation Equity and Human Development
Anthony C. Infanti

10. The Role of Developed World Tax Incentives in Microfinance
Charlene D. Luke

PART V: TAX COOPERATION
11. Geographical Boundaries of Tax Jurisdiction, Exclusive Allocation of Taxing Powers in Tax Treaties and Good Tax Governance in Relations with Developing Countries
Pasquale Pistone

12. Tax Activists and the Global Movement for Development through Transparency
Allison Christians

13. Global Tax Information Networks: Legitimacy in a Global Administrative State
Miranda Stewart

April 24, 2013 in Book Club, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)