TaxProf Blog

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

Sunday, June 24, 2018

February 2018 California Bar Exam Results

California Bar ExamThe California bar has released the results of the February bar exam for first-time and repeat takers, by law schools with 10 or more takers.

  • Overall pass rate: 27.%, 33.8% for California-acccredited schools
  • First-time taker pass rate: 33.8%, 45.3% for California-accredited schools
  • Repeater pass rate: 22.8%, 31.3% for California-accredited schools 


School (US News Rank)


School (US News Rank)



Santa Clara (113)

77% (10/13)

UC-Berjkeley (9)

63% (17/27)


Loyola-L.A. (64)

70% (16/23)

UCLA (16)

53% (18/34)


Cal-Western (Tier 2)

52% (29/56)

Loyola-L.A. (62)

53% (54/102)


Golden Gate (Tier 2)

50% (8/16)

UC-Davis (37)

45% (19/42)


Ave. (ABA-Approved)

45% (143/316)

UC-Hastings (58)

42% (53/127)


San Francisco (Tier 2)

35% (6/17)

San Diego (95)

41% (16/49)


Southwestern (Tier2)

35% (13/37)

USC (20)

38% (9/24)


UC-Hastings (58)

33% (4/12)

UC-Irvine (21)

36% (9/25)


Western State (Tier 2)

29% (5/17)

Pepperdine (62/64)

35% (23/66)


T. Jefferson (Tier 2)

19% (6/32)

Chapman (139)

35% (24/69)


Whittier (Tier 2)

0% (0/17)

Cal-Western (Tier 2)

32% (22/68)




Southwestern (Tier 2)

32% (55/171)



Ave. (ABA-Approved)

31% (445/1423)



San Francisco (Tier 2)

28% (21/76)



McGeorge (Teir 2)

25% (21/76)



T. Jefferson (Tier2)

20% (26/133)



La Verne (Tier 2)  

19% (7/36)


    Whittier (Tier 2)

16% (20/123)


    Western State (Tier 2)

8% (4/50)



Golden Gate (Tier 2) 

7% (5/75)

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June 24, 2018 in Legal Education | Permalink | Comments (0)

The Top Five New Tax Papers

SSRN Logo (2018)There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper and a new paper debuting on the list at #5:

  1. [272 Downloads]  The New U.S. Tax Preference for 'Foreign-Derived Intangible Income', by Chris Sanchirico (Pennsylvania)
  2. [258 Downloads]  IRC Section 678 and the Beneficiary Deemed Owner Trust (BDOT), by Edwin Morrow
  3. [229 Downloads]  Higher Education Savings and Planning: Tax and Nontax Considerations, by Philip Manns (Liberty) & Timothy Todd (Liberty)
  4. [207 Downloads]  Code Sec. 1031 after the 2017 Tax Act, by Brad Borden (Brooklyn)
  5. [194 Downloads]  Introduction to Tax Policy Theory, by Allison Christians (McGill)

June 24, 2018 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, June 23, 2018

This Week's Ten Most Popular TaxProf Blog Posts

Minnesota Associate Dean Tells The Story Behind The Media Coverage Of The Law School's Budget Challenges

Minnesota LogoIn response to yesterday's post, University Of Minnesota Approves $3.6 Million Subsidy For Law School; Regent Urges School To Drop Quest To Retain Top 20 Ranking Due To Projected $100 Million 10-Year Subsidy, incoming Minnesota Associate Dean Bill McGeveran requested that I post this response:

While there have been challenges here at Minnesota, readers should know that the recent media coverage you cite doesn't include the whole story.

First, of the 11 public law schools in the top 30, the only ones to get a lower percentage of their revenue from state support are Berkeley, Michigan, and Virginia — all with endowments 2 to 4 times larger than ours. The so-called "subsidy" is actually bringing us into line with our peers.

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June 23, 2018 in Legal Education | Permalink | Comments (1)

The IRS Scandal, Day 1869: In Meeting With Lois Lerner, McCain Staffer Requested 'Financially Ruinous' Audits Of Advocacy Groups

IRS Logo 2Washington Times, McCain's Office Urged IRS to Use Audits as Weapons to Destroy Political Advocacy Groups:

A new report from Judicial Watch reveals a concerted effort from Sen. John McCain’s office to urge the IRS under Lois Lerner to strike out against political advocacy groups, including tea party organizations.

Thanks to the results of an extensive Freedom of Information Act (FOIA) request that has been delayed for many years, Judicial Watch has obtained several key emails from 2013 that chronicle McCain’s and Democrat Sen. Carl Levin’s efforts to reign in the advocacy groups that sprouted immediately following the Citizens United decision from the Supreme Court.

The documents uncovered by Judicial Watch include notes from a high-level meeting on April 30, 2013 between powerful members of McCain’s and Levin’s staffs and Lerner, then-director of tax exempt organizations at the IRS under Barack Obama. The notes reveal the suggestions from McCain’s former staff director and chief counsel on the Senate Homeland Security Permanent Subcommittee, Henry Kerner who urges Lerner to use IRS audits on the advocacy groups to financially ruin them:

In the full notes of an April 30 meeting, McCain’s high-ranking staffer Kerner recommends harassing non-profit groups until they are unable to continue operating. Kerner tells Lerner, Steve Miller, then chief of staff to IRS commissioner, Nikole Flax, and other IRS officials, “Maybe the solution is to audit so many that it is financially ruinous.” In response, Lerner responded that “it is her job to oversee it all:”

Henry Kerner asked how to get to the abuse of organizations claiming section 501 (c)(4) but designed to be primarily political. Lois Lerner said the system works, but not in real time. Henry Kerner noted that these organizations don’t disclose donors. Lois Lerner said that if they don’t meet the requirements, we can come in and revoke, but it doesn’t happen timely. Nan Marks said if the concern is that organizations engaging in this activity don’t disclose donors, then the system doesn’t work. Henry Kerner said that maybe the solution is to audit so many that it is financially ruinous. Nikole noted that we have budget constraints. Elise Bean suggested using the list of organizations that made independent expenditures. Lois Lerner said that it is her job to oversee it all, not just political campaign activity.

Judicial Watch previously reported on the 2013 meeting.  Senator McCain then issued a statement decrying “false reports claiming that his office was somehow involved in IRS targeting of conservative groups.”   The IRS previously blacked out the notes of the meeting but Judicial Watch found the notes among subsequent documents released by the agency.

Julie Tarallo, Senator McCain's communications director, calls Judicial Watch's allegations  "outlandish conspiracy theories that are totally contradicted by the facts":


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June 23, 2018 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Hamilton In London

My wife and I are on a 7-day vacation in London, so we of course had to see Hamilton.  It was wonderful to see the play with a British audience (King George brought the house down), and to pay by far the lowest price (£200 ($265)) of our multiple Hamilton viewings due to an iron-fisted paperless ticket system that effectively prohibits resale of tickets.


See also New York Times, ‘Hamilton’ and Heartache: Living the Unimaginable (Oct. 13, 2016).  For more on my obsession with interest in Hamilton, see here and:

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June 23, 2018 in Legal Education, Tax | Permalink | Comments (0)

Friday, June 22, 2018

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Mason's The Tax Subsidy War

This week, Mirit Eyal-Cohen (Alabama) reviews a new article by Ruth Mason (Virgina), The Tax Subsidy War (June 2018). 

Mirit-Cohen (2018)In her article, Mason discusses European anti-subsidy rules in an era of large-scale tax avoidance by multinationals. This Article is especially timely in light of the recent announcements of the European Commission (EC), the European Union’s (EU) executive body, requiring EU Members States to recover amounts of tax subsidies they provided multinational conglomerates such as Apple, Amazon, Chrislaer-Fiat, Starbucks, and others. In the case of Apple, the EC ordered Ireland to collect from Apple the largest tax deficiency in world history — $14.5 billion (plus interest). Under Europe’s state-aid rules, Member States are prevented from distorting private competition by granting exclusive subsidies to particular firms. The EC concluded that Ireland colluded with, and illegally subsidized, Apple by issuing confidential administrative rulings that significantly relieved Apple from Irish tax. These EC decisions involving U.S. multinationals created much turmoil. U.S. Treasury Department issued a white paper stating that such recoveries would violate tax treaties between the United States and EU Member States. Members of Congress proposed waging a “tax war” urging Treasury to consider imposing retaliatory taxes on the EU. In an unprecedented move, the United States sought to intervene in the upcoming Apple appeal, but the EU courts held that it lacked standing. 

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June 22, 2018 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Facebook Makes It Rain For Academics, $25,000 At A Time

Facebook (2016)Bloomberg, If You’re A Facebook User, You’re Also a Research Subject:

The professor was incredulous. David Craig had been studying the rise of entertainment on social media for several years when a Facebook Inc. employee he didn’t know emailed him last December, asking about his research. “I thought I was being pumped,” Craig said. The company flew him to Menlo Park and offered him $25,000 to fund his ongoing projects, with no obligation to do anything in return. This was definitely not normal, but after checking with his school, University of Southern California, Craig took the gift. “Hell, yes, it was generous to get an out-off-the-blue offer to support our work, with no strings,” he said. “It’s not all so black and white that they are villains.”

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June 22, 2018 in Legal Education | Permalink | Comments (1)

Holderness: South Dakota v. Wayfair — The More Things Change

Holderness (2017)Following up on yesterday's post, Law Profs Weigh In On Supreme Court's Wayfair Decision Clearing The Way For Sales Tax Collections From Out Of State Online Retailers:  TaxProf Blog op-ed:  South Dakota v. Wayfair: The More Things Change, by Hayes Holderness (Richmond):

After the better end of fifty years, the physical presence rule is out. That rule, originally established in the 1967 National Bellas Hess case, prevented a state from compelling a vendor not physically present in the state to collect the state’s sales and use taxes. Though the Court reaffirmed the physical presence rule in its 1992 Quill decision (largely on stare decisis grounds), the rule had been constantly derided by commentators, states, and Main Street retailers as failing to achieve the goals of the Commerce Clause and as providing an unfair advantage to mail order and internet vendors. Yesterday, the Supreme Court issued its decision in South Dakota v. Wayfair and made clear that those critics had been heard.

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June 22, 2018 in New Cases, Tax | Permalink | Comments (1)

University Of Minnesota Approves $3.6 Million Subsidy For Law School; Regent Urges School To Drop Quest To Retain Top 20 Ranking Due To Projected $100 Million 10-Year Subsidy

Minnesota LogoFollowing up on my previous post, University Of Minnesota Law School Seeks $3.6 Million Increase In Subsidy To Maintain Top 20 Ranking:  Minnesota Lawyer,  U of M Regents Subsidize Law School For Another Year:

The University of Minnesota Board of Regents has approved a funding plan that will subsidize the U of M Law School next year with provisional funding for the subsequent two years.

On June 8, the regents approved U of M President Eric Kaler’s proposal to provide $3.6 million to cover a projected deficit for fiscal year 2019—a one-time infusion of $1.9 million along with a $1.7-million increase in its annual appropriations. The proposal calls for two subsequent years of subsidies dependent on the provision of satisfactory metrics by the school that will allow the regents to assess performance. The plan’s goal is to both maintain the law school’s high national ranking and eliminate the school’s annual deficits by 2022.

Like most law schools, the U of M has been dealing with steeply declining applications and enrollment since about 2010. Since 2013, the school has been coming to the regents to request subsidies, which have totaled about $17 million since then. Law school Dean Garry W. Jenkins has reported that applications and tuition dollars are now modestly increasing for the first time in years, but that the subsidies are still necessary.

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June 22, 2018 in Legal Education | Permalink | Comments (5)

Avi-Yonah & Mazzoni: Due Diligence In International Tax Law

Reuven S. Avi-Yonah (Michigan) & Gianluca Mazzoni (S.J.D. 2018, Michigan), Due Diligence in International Tax Law:

The concept of due diligence has been primarily developed in the state context (e.g., investor protection, environmental law), where it has been stated that “[t]he obligation to take preventative measures is one of due diligence, not an absolute guarantee against the occurrence of harm.” In international finance law, the concept is applied to private actors, especially financial institutions. The concept was first developed in the prevention of money laundering (covered elsewhere in this book) but then applied to prevention of tax evasion. In that context, since it would put an unreasonable burden on financial institutions to completely prevent tax evasion, all that is required is due diligence.

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June 22, 2018 in Scholarship, Tax | Permalink | Comments (0)

NY Times Ethicist: The Dubious Practice Of Law Profs Enlisting Friends On Other Faculties To Get Articles Accepted In Their Home Law Reviews

New York Times Ethicist (Kwame Anthony Appiah (Professor of Philosophy and Law, NYU)):

Academic publishing in law may be unique in that nearly all scholarly journals are edited by second- and third-year law students, rather than professors or lawyers. Decisions about which articles merit publication are made by students who may be 23 years old and whose only relevant legal experience may consist of having studied law for 20 months or so. Nevertheless, these decisions can affect the way the article and its author are viewed. For example, many law schools brag about their faculty’s prestigious article placements, and such placements can also affect hiring, tenure and salary decisions at law schools.

In recent years, a practice has developed in which authors send their manuscripts to friends on other law faculties and ask them to recommend their paper for publication to the editors of their school’s law journal. Law students understandably feel pressure to defer to the professors who give them grades and who are far more experienced.

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June 22, 2018 in Legal Education | Permalink | Comments (0)

Thursday, June 21, 2018

Frustrated Faculty Struggle To Defend Tenure Before It’s Too Late

ChronicleChronicle of Higher Education, Frustrated Faculty Struggle to Defend Tenure Before It’s Too Late:

[T]he argument that tenure is the essential protection faculty members need to do their jobs is one that an increasing number of professors have felt compelled to make — and almost always to less-than-receptive audiences. In an era where skepticism about higher education runs high and anti-intellectualism thrives in the political discourse, the concept of tenure fuels perceptions that professors are a protected class isolated from the rigors of the real world.

Critics of tenure assert that it’s an antiquated protection, one that can mask, even enable, flagging faculty productivity and that, by default, hinders institutional advancement. Tight budgets make matters worse. Tenure limits flexibility in personnel expenses by locking in the full-time positions that institutions have increasingly cast off to instead hire adjunct faculty who are paid far less than their tenured counterparts. ...

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June 21, 2018 in Legal Education | Permalink | Comments (1)

Law Profs Weigh In On Supreme Court's Wayfair Decision Clearing The Way For Sales Tax Collections From Out Of State Online Retailers

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June 21, 2018 | Permalink | Comments (1)

Rasmussen: Lessons For Academic Leaders From Modern Restructuring Practice

Robert K. Rasmussen (Former Dean, USC), Lessons for Academic Leaders from Modern Restructuring Practice, 92 Am. Bankr. L.J. 233 (2018):

Financial distress has hit higher education. More and more universities and colleges are facing existential challenges as the competition for a dwindling number of students has put a strain on revenues. Unlike leaders in other industries, the presidents and chancellors of a financially distressed institutions of higher education cannot explore the possibility of a Chapter 11 filing under the Bankruptcy Code to restructure their obligations so that they align better with their revenues. Federal law prohibits Title IV loans — the lifeblood of virtually every university and college — from being made to students who attend a school that is in an insolvency proceeding. Yet academic leaders can take lessons from modern Chapter 11 practice: they can, in advance of financial distress, ensure that their boards of trustees have members who can provide advice to the schools’ leaders as to the difficult choices that they face; they can employ restructuring professionals who have experience in turning around operations without a bankruptcy filing; finally, given that many of these institutions have relatively few creditors, they can attempt to negotiate a restructuring support agreement that would restructure the schools’ debts without a bankruptcy filing.

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June 21, 2018 in Legal Education, Scholarship | Permalink | Comments (0)

Why The Treasury Department's Top Lawyer Sold Off His Bitcoin Holdings

Treasury Department (2018), Why the Treasury Department's Top Lawyer Sold Off His Bitcoin Holdings:

The U.S. Treasury Department’s top lawyer sold off up to $30,000 worth of bitcoin in December, a month after Secretary Steven Mnuchin said the department was looking “very carefully” into illegal uses of the cryptocurrency, according to financial disclosures.

Brent McIntosh, a former Sullivan & Cromwell partner who was confirmed as Treasury’s general counsel in August, reported two sales of bitcoin in December, valuing each at between $1,000 and $15,000, according to disclosures released by the U.S. Office of Government Ethics. The sales came at the end of a year that saw bitcoin’s value skyrocket from about $1,000 to a high of nearly $20,000.

A Treasury Department spokeswoman said Tuesday that McIntosh sold his bitcoin to avoid potential ethics conflicts after being asked in late November to participate in a review of digital currencies. Ethics officials advised McIntosh that his continued ownership of bitcoin could raise recusal issues in certain instances, the spokeswoman said.

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June 21, 2018 in IRS News, Tax | Permalink | Comments (0)

National Taxpayer Advocate: The IRS Should Provide More Guidance To Participants In The Sharing Economy

Taxpayer Advocate (2016)ina Olson (National Taxpayer Advocate), Participants in the Sharing Economy Lack Adequate Guidance From the IRS:

In my most recent Annual Report to Congress, I included the IRS’s efforts to reach out to participants in the sharing economy (also know as the “gig economy”) as a Most Serious Problem. ...

These new entrants to the sharing economy will need to spend significant time learning about their tax compliance obligations and devote many hours to recordkeeping. For example, the IRS estimates that it takes taxpayers nearly 40 hours to learn about depreciation methods, keep records, and report the depreciation to the IRS. Yet, according to a recent survey conducted by NASE, 69 percent of entrepreneurs who participate in the sharing economy received absolutely no tax guidance from the service coordinators.

The NASE survey results underscore the importance of educating sharing economy participants about certain basic tax obligations (i.e., making required quarterly estimated payments throughout the year to avoid penalties). There is an opportunity to create a culture of tax compliance among participants in the sharing economy from the outset. Establishing the tax compliance norms for this emerging industry in its infancy will assist the IRS as this segment of taxpayers grows.

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June 21, 2018 in IRS News, Tax | Permalink | Comments (2)

Does Feedback Really Improve Law Student Performance?

National Law Journal, Feedback on Feedback:

Giving law students more feedback and assessments such as practice exams translate into better grades, right?

Not so fast. An upcoming edition of the University of Detroit Mercy Law Review takes up the subject of so-called formative reviews, but the authors of two articles reach different conclusions about the ability of professor interaction and feedback to improve student performance [Symposium, The Impact of Formative Assessment: Emphasizing Outcome Measures in Legal Education, 94 U. Det. Mercy L. Rev. 387-457 (2017)].

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June 21, 2018 in Legal Education, Scholarship | Permalink | Comments (6)

Grossberg: Using The Step Transaction Doctrine To Attack Tax Shelters

Jonathan Grossberg (American), Attacking Tax Shelters: Galloping Toward a Better Step Transaction Doctrine, 78  La. L. Rev.  369 (2018):

Since the beginning of the Internal Revenue Code, taxpayers have sought to lower their tax bills through creative tax planning. The step transaction doctrine is one of several tools used by the Internal Revenue Service and courts to challenge tax shelters and tax evasion. The step transaction doctrine provides that the courts may combine two or more allegedly separate steps in a multi-step transaction into a single step to better reflect the economic reality of the taxpayer’s actions. Derived from Supreme Court decisions in the 1930s, the doctrine deserves renewed scrutiny today because serious conceptual issues exist regarding the three current tests that courts use to determine when to combine various steps in a tax-motivated multiple-step transaction. This Article addresses two perennial themes in tax law: the role of judicial doctrines in a statutory system and the difficulty of taxing related-party transactions.

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June 21, 2018 in Scholarship, Tax | Permalink | Comments (0)

Judge Grants Prosecutors' Motion For Joint Trial Of Markel Murder Suspects, But Warns 'Be Careful What You Wish For'; Post July 18, 2014 Statements Are Now Inadmissible As Evidence

MarkelTallahassee Democrat, Dan Markel Murder: Merging of Suspects' Trials Could Prove Problematic For Evidence:

Prosecutors may not be able to use key statements they say help connect two people to the murder-for-hire plot to kill Florida State law professor Dan Markel.

Sigfredo Garcia and Katherine Magbanua will be tried together after prosecutors succeeded in getting their murder, conspiracy to commit murder and solicitation to commit murder cases joined Wednesday.

But now statements made after the murder was committed and the $100,000 that Tallahassee investigators say they were paid to commit the crime may not be allowed to be presented at their Oct. 8 trial. 

“I’d put it in the category of be careful what you wish for,” Leon Circuit Judge James Hankinson warned Assistant State Attorney Georgia Cappleman prior to his ruling. “I’m not sure the state really wants to be in the posture where they cannot introduce statements after payment is made.”

Hankinson said that the conspiracy ended when money changed hands. Statements between two people that implicate others in a conspiracy cannot be introduced as evidence at trial.

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June 21, 2018 in Legal Education | Permalink | Comments (0)

Wednesday, June 20, 2018

Federal Judge Denies Florida Coastal Law School's TRO Bid Against The ABA

Florida Coastal (2017)Following up on yesterday's post:, Judge Denies Florida Coastal Law School's TRO Bid Against ABA:

A federal judge has declined to issue a temporary restraining order—at least for now—that would have stopped the American Bar Association from requiring Florida Coastal School of Law to make several public disclosures about its accreditation status and bar pass rates.

Judge Brian Davis of the U.S. District Court for the Middle District of Florida ruled June 18 that the ABA should be given an opportunity to respond to the arguments from the Jacksonville school and its owner, InfiLaw Corp., that the disclosures are misleading and would undermine the school’s efforts to recruit more qualified students and boost its bar pass rates.

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June 20, 2018 in Legal Education | Permalink | Comments (0)

Containing Systemic Risk By Taxing Banks Properly

Mark Roe (Harvard) & Michael Troege (ESCP Europe), Containing Systemic Risk By Taxing Banks Properly, 35 Yale J. on Reg. 181 (2018):

Tax specialists normally don’t focus on financial stability and financial regulators and analysts typically do not focus on taxes. This is too bad because the corporate tax structure affects financial stability and does so significantly, as we analyze in this article.

The reason is simple: tax rules influence the capital structure choices of corporations in general and banks in particular, by allowing tax benefits to debt—principally the deductibility of interest—that equity lacks. Today, the corporate tax penalizes equity finance and subsidizes debt relative to equity. As a consequence, corporations overall use more debt than they would in a tax-neutral world.

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June 20, 2018 in Scholarship, Tax | Permalink | Comments (0)

A Simple Low-Cost Institutional Learning-Outcomes Assessment Process For Law Schools

Andrea Anne Curcio (Georgia State), A Simple Low-Cost Institutional Learning-Outcomes Assessment Process, 67 J. Legal Educ. 489 (2018):

Law school institutional learning outcomes require measuring nuanced skills that develop over time. Rather than look at achievement just in our own courses, institutional outcome-measures assessment requires collective faculty engagement and critical thinking about our students’ overall acquisition of the skills, knowledge, and qualities that ensure they graduate with the competencies necessary to begin life as professionals. Even for those who believe outcomes assessment is a positive move in legal education, in an era of limited budgets and already over-burdened faculty, the new mandated outcomes assessment process raises cost and workload concerns. This essay addresses those concerns. It describes a relatively simple, low-cost model to measure institutional law school learning outcomes that does not require any initial changes in individual faculty members’ pedagogical approach or assessment methods.

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June 20, 2018 in Legal Education | Permalink | Comments (0)

We Should Tax The Clintons And Other Former Senior Government Employees At A Higher Rate

Limor Riza (Ono Academic College), Should We Tax the 'Clintons' and Other Former Senior Civil Servants More? Yes, We Should, 18  U.C. Davis Bus. L.J. 109 (2017):

This paper debates whether former civil servants should be taxed differentially. It argues that whenever public officials’ post-retirement income in the private sector is derived from their previous office, an additional tax should be levied on them, since in such situations the ability-to-pay principle is an insufficient horizontal equity criterion. This idea is grounded in equity propositions and may be justified by various liberal theories of equal opportunities and utilitarianism.

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June 20, 2018 in Scholarship, Tax | Permalink | Comments (3)

Why Are Women Underrepresented In Publications In Top Journals?

Inside Higher Ed, Gender Gap Without Gender Bias?:

A major political science study from last year explored publication patterns across 10 prominent journals, finding a significant gap in publication rates for men and women. The gap couldn’t be explained away by a low overall share of women in the field, the article said, prompting soul-searching among editors about whether they were biased against female authors.

A new PS: Political Science & Politics report involving self-audits at five major journals suggests that editorial practices are not, in fact, biased against women. While positive, the findings are also disconcerting, since it remains unclear as to why women are underrepresented as authors in esteemed journals in the discipline.

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June 20, 2018 | Permalink | Comments (1)

Miller: Advice For Jeff Bezos — Social Welfare Organizations As Grantmakers

David S. Miller (Proskauer Rose, New York), Advice for Jeff Bezos: Social Welfare Organizations as Grantmakers, 21 N.Y.U. J. Legis. & Pub. Pol'y ___ (2018):

This paper responds to Jeff Bezos’ request for philanthropic ideas, but with a suggestion for the structure of his grant making. Gifts of appreciated stock should be made to section 501(c)(3) organizations only to the extent that Bezos will be able to use the charitable deduction that the donation generates before it expires. A social welfare organization should receive all other gifts of appreciated stock.

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June 20, 2018 in Scholarship, Tax | Permalink | Comments (0)

Allard: The Future Of The Legal Profession

Nick Allard (Departing Dean, Brooklyn), Remarks At the St. Petersburg International Legal Forum (SPILF VII) on The Future of the Legal Profession

Prime Minister Medvedev, Justice Minister Konovalov, distinguished guests of the St. Petersburg international legal forum, it is an honor to be invited to participate again, for the sixth time, in the St. Petersburg international legal forum which is a unique global, forward- looking collaborative initiative promoting better understanding of the future of law. If I were forced to use only one word to describe the future changes of the legal profession, I would choose the word “inevitable.” The legal profession and legal educators—always slow and even resistant to adaptation—must evolve with the times. Standing still, clinging to the “business as usual” status quo is not an option.

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June 20, 2018 in Legal Education | Permalink | Comments (1)

Rossman: In Search Of Smarter Homeowner Subsidies

Matthew J. Rossman (Case Western), In Search of Smarter Homeowner Subsidies, 40 U. Haw. L. Rev. 270 (2017):

Critics have long assailed the federal tax code’s principal homeowner subsidies as lucrative tax breaks for upper income households that are essentially worthless to those financially constrained from purchasing a home. This article examines the subsidies through a different lens and reveals another serious flaw. It demonstrates how the homeowner subsidies, which represent a massive federal investment in homeownership, do very little to contain and instead probably increase costs on others that result from certain types of housing choices and that other federal policies seek to remedy. These negative housing externalities include: (i) blight, deterioration, and public health risks in disinvested housing markets, (ii) an array of individual and societal harms associated with heightened economic and racial housing segregation, (iii) environmental degradation, and (iv) taxpayer funded disaster relief for those who reside in environmental hotspots. In effect, the subsidies pay for housing choices that the government later pays to cleans up after.

This article provides several explanations for this disconnect. Among these is an idealization of homeownership, reflected in the tax code, which sees only its benefits. Accordingly, the subsidies reward homeowner decisions at large and are insensitive to the varying amounts of positive and negative externalities that follow from particular types of homeowner choices. For this reason, the article contends that the current subsidies are not “smart.”

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June 20, 2018 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, June 19, 2018

Yale And Stanford Law Journals Team Up For #MeToo Project, In a First, Yale and Stanford Law Journals Team Up for #MeToo Project:

The #MeToo movement has highlighted the problem of men wielding their workplace power to sexually harass women, but the issue of gender-based harassment and discrimination is much broader and pervasive than the current media narrative allows.

That’s the takeaway from a new #MeToo Symposium—a collection of 12 essays from leading employment discrimination law experts—published Monday in a collaboration between the Yale Law Journal and the Stanford Law Review.

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June 19, 2018 in Legal Education | Permalink | Comments (1)

Charitable Giving And The Tax Cuts And Jobs Act

AEI (2016)Alex Brill & Derrick Choe (American Enterprise Institute), Charitable Giving and the Tax Cuts and Jobs Act:

This paper investigates how the Tax Cuts and Jobs Act affects household charitable giving in the United States. We find that the law will reduce charitable giving by $17.2 billion (4.0 percent) in 2018 according to a static model and $16.3 billion assuming a modest boost to growth. Four-fifths of this decline is driven by an increase in the number of taxpayers who claim the standard deduction.

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June 19, 2018 in Tax, Think Tank Reports | Permalink | Comments (0)

A College President’s Twitter Strategy

OnoInside Higher Ed, A College President’s Twitter Strategy:

The University of British Columbia’s president, Santa Ono, is a social media star among college presidents.

On Ono’s Twitter feed, there are beautiful pictures of the UBC campus, details of upcoming events and celebrations of the achievements of students and staff.

When not promoting his institution on Twitter, Ono shares more personal posts: a recommendation for a local ramen bar, a quote from Pablo Picasso or the news that the Harry Potter play just won six Tony Awards.

Mixed in with these promotional and personal posts, however, is the occasional statement of university policy. And that, students say, is a big problem.

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June 19, 2018 in Legal Education | Permalink | Comments (0)

Call For Papers: The Commerce Clause And The Global Economy

Chapman Logo (2017)The Chapman Law Review is pleased to invite article submissions on the theme: The Commerce Clause and the Global Economy. Publications will appear in a symposium edition, and authors will receive an honorarium.

With the growth of online retailers and the rise of the global marketplace, federal and state governments have been charged with the task of navigating the waters of the global economy and its inevitable collision with the Commerce Clause. In June, the United States Supreme Court is expected to render a decision in South Dakota v. Wayfair, in which South Dakota has asked the Court to reconsider its ruling in Quill v. North Dakota and allow states to require out-of-state retailers that do not have a physical presence in the state to collect local sales taxes from their customers. Regardless of the outcome, this case has opened up a series of questions about the scope of the Commerce Clause in an increasingly global economy—specifically the ability of state and local governments to regulate global economic actors in order to protect communities against the adverse effects of globalization.

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June 19, 2018 in Conferences, Scholarship, Tax | Permalink | Comments (0)

CBPP Seeks To Hire Tax Analyst

CBPP Logo (2013)Senior Tax Legal Analyst or Tax Legal Analyst:

The Center on Budget and Policy Priorities is a non-profit research organization with a mission to improve the well-being of low- and moderate-income people. The Center has a national reputation for rigorous analysis of fiscal policies and an ability to influence policy debates.   It is widely respected for its expertise on federal budget and tax issues.

The Center seeks to hire a senior tax legal analyst or tax legal analyst to expand our work to identify examples of tax loopholes, gaming, and unintended consequences under the new tax law and lift these examples up among the tax community, policymakers, media, and the public. Working with other experts on the Federal Fiscal Policy team, the analyst will help to shape and drive public debate on these issues.

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June 19, 2018 in Tax | Permalink | Comments (0)

Florida Coastal School of Law Seeks Restraining Order Against The ABA

Florida Coastal (2017)Following up on my previous post, Florida Coastal Law School Sues ABA; Kirkland & Ellis Alleges Arbitrary Enforcement Of Accreditation Standards:, Florida Coastal School of Law Seeks Restraining Order Against ABA:

Florida Coastal School of Law has asked a federal judge to halt new disclosures the American Bar Association has required the troubled school to make to its students, arguing the requirements will undermine its efforts to improve.

In a motion for a temporary restraining order and preliminary injunction, filed June 15 in U.S. District Court for the Middle District of Florida, Florida Coastal and owner InfiLaw Corp. have asked the court to postpone several requirements the ABA imposed in April after determining that the school is out of compliance with rules pertaining to the rigor or it educational program and its academic support.

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June 19, 2018 in Legal Education | Permalink | Comments (2)

Newman: Modern Day Lessons From Two New York Tax Opinions By Benjamin Cardozo

Joel S. Newman (Wake Forest), Two New York Tax Cases, 34 Touro L. Rev. 301 (2018):

While he was on the New York Court of Appeals, Benjamin Cardozo wrote a number of opinions on state tax issues. People ex rel. Studebaker Corp. v. Gilchrist was an early transfer pricing case. Studebaker Corporation established a number of sales subsidiaries, so that income could be shifted away from states with corporate franchise taxes. As a result of its manipulation, a net loss of over $400,000 was reported to New York State in 1920, even though Studebaker earned a profit of over $11 million nationwide. The New York State Tax Commission and the Appellate Division reallocated the income, but the Court of Appeals reversed. Cardozo disagreed with the method of allocation used below. However, his opinion left the door open for reallocations in subsequent cases. Curiously, the facts would have lent themselves to transfer pricing analysis, which is used in modern international tax cases, rather than the formulary apportionment used by the courts below, which has become the standard method in state cases.

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June 19, 2018 in Scholarship, Tax | Permalink | Comments (0)

Google Now Displays Acceptance, Cost And Graduation Data In College Search Results

MontanaChronicle of Higher Education, Google Wants to Play a Bigger Role in Your College Search. Here’s What You Need to Know.:

Google waded into the college-search process on Tuesday, announcing that it would elevate certain statistics about four-year colleges when people use the ubiquitous search engine to seek out information.

Here’s what that will look like in practice, Google says: Enter “University of Montana” into the search bar, and a prominent result will be a selection of statistics about the institution — its graduation rate and average cost after financial aid, among other things.

To get those stats, Google will draw from two favorite data troves of higher-ed researchers: the College Scorecard and the Education Department’s Integrated Postsecondary Education Data System, known as Ipeds.

On a search-by-search basis, the change might seem relatively minor. Searches already amplify information on colleges’ acceptance rates and material drawn from their Wikipedia pages. But Google’s immense power means the shift could have real-world ripple effects for students and the colleges recruiting them.

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June 19, 2018 in Legal Education | Permalink | Comments (0)

Monday, June 18, 2018

Christians: Introduction To Tax Policy Theory

Allison Christians (McGill), Introduction to Tax Policy Theory:

Taxation involves the compulsory transfer of resources among members of society. Tax policy is concerned with how societies carry out taxation. That is a technical and legal question, but it is inescapably a political, social, and cultural one as well. To study tax policy is to engage simultaneously with the existential philosophical foundations of taxation: why and how societies tax. This introduction to tax policy theory presents an overview of tax policy discourse. The goal is to outline a working framework for reflection and analysis to examine the ways in which current assumptions and approaches require further development.

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June 18, 2018 in Scholarship, Tax | Permalink | Comments (0)

University Boardrooms Need Reform

Following up on my previous posts (links below):  Wall Street Journal op-ed:  University Boardrooms Need Reform, by Paul S. Levy:

I recently resigned as a trustee of the University of Pennsylvania and an overseer of its law school to protest the shameful treatment of law professor Amy Wax. Her career-threatening offense was to state that in her experience with black students over 17 years at Penn, few had performed in the top half of their class. Penn Law’s dean, Ted Ruger, declared her in error but refused to provide evidence. For dissenting from politically correct orthodoxy, Mr. Ruger forbade Ms. Wax to teach her much-admired first-year course in civil procedure—for which the university gave her an award in 2015.

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June 18, 2018 in Legal Education | Permalink | Comments (0)

Krugman: Tax Cuts And Leprechauns

New York Times op-ed:  Tax Cuts and Leprechauns (Wonkish), by Paul Krugman:

The political news seems even more horrible than usual today. So to get away from the headlines a bit, I’m going to commit some economics. Specifically, I want to pull together some thoughts — some inspired by Gabriel Zucman’s recent work [Tax Havens Blunt Impact Of Corporate Tax Cuts], some of my own — about the case or lack thereof for corporate tax cuts, the centerpiece of the only major legislation enacted under Trump. ...

There is no question that multinational corporations like low-tax countries like Ireland, and report earning a lot of their profits in those countries. But does this really reflect large-scale capital movements to those low-tax jurisdictions?

No, say Gabriel Zucman and co-authors. They produce strong evidence that most of what we see is basically a statistical illusion: corporations use transfer pricing, allocation of rents on intangible assets, etc. to make profits appear in low-tax countries; but there’s very little real production or employment behind those profits. As Figure 3 shows, tax-haven countries end up showing ridiculously high levels of profits relative to wages, basically because the profits aren’t being earned where they’re being reported.


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June 18, 2018 in Legal Education | Permalink | Comments (4)

Hamilton And Philosophy

HamiltonI gotta get back in the classroom:  Professor Carrie-Ann Biondi at Marymount Manhattan College is teaching a course in the fall on Hamilton and Philosophy:

Alexander Hamilton not only participated in the American Revolutionary War as George Washington’s right-hand man, but he also introduced revolutionary ideas into American political philosophy before and during the early American republic. Inspired by Ron Chernow’s biography of Hamilton, Lin-Manuel Miranda created a revolution of his own on Broadway with his smash-hit Hamilton: An American Musical. In this course, we will explore both the political philosophy of Hamilton and examine various philosophical issues surrounding the creation and reception of Miranda’s Hamilton

Professor Biondi contributed a chapter (Legacy and Happiness in Hamilton: An American Musical) in the book Hamilton and Philosophy (2017):

In Hamilton and Philosophy, professional thinkers expose, examine, and ponder the deep and controversial implications of this runaway hit Broadway musical.

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June 18, 2018 in Book Club, Legal Education | Permalink | Comments (0)

Lesson From The Tax Court: Where Is A Retiree's Tax Home?

Tax Court (2017)The last couple of weeks have seen Tax Court cases with several interesting lessons. The one I choose today is Roger G. Maki and Lilane J. Gervais v. Commissioner, T.C. Summary Op. 2018-30 (June 6, 2018). It teaches a lesson about what constitutes travel “away from home” for purposes of the §162 deduction. I posted a basic lesson (here) on this issue late last year. The wrinkle in today’s case is that the taxpayer was retired and traveled from his home in the Seattle metro area to a house he had inherited, ostensibly to manage the surrounding land for eventual timber sales. The Tax Court decided the travel was deductible. I question whether that’s the right outcome here — it seems to me this was just a commute — but notice this is just a Summary Opinion. That means it can still teach a lesson, even if it carries no precedential weight.

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June 18, 2018 in Bryan Camp, New Cases, Tax | Permalink | Comments (2)

The Problem With Law Schools? They Only Prepare Future Lawyers, The Problem with Law Schools? They Only Prepare Future Lawyers:

Working in today’s legal market requires more skill than just knowing the law, but not all law schools have matched their curriculum to this changing marketplace.

“If you look at the legal market from the point of view of a law student, that is very far removed from the market you see,” said Jae Um, founder & executive director of  legal market insights company Six Parsecs, at the June 8 “Training the 21st Century Lawyer: Envisioning a Legal Industry Alliance” session of Thomson Reuters’ 2018 Legal Executive Forum in New York.

Um noted that the current model of education, which trains around “conceptual subject matter expertise,” is outdated, and what law schools need to do is focus more on teaching students how to work in today’s legal market. Such a market is defined by the recent rise of legal operation professionals, knowledge management staff, and e-discovery managers, all of whom play an integral part in law firms. The work of today’s lawyers and legal professionals, therefore, is as much about solving a client’s business and operational needs as it is their legal ones.

William Henderson, professor of law at Indiana University Maurer School of Law, noted that the rise of these new and different types of law firm positions was proof that the industry had undergone a profound change, even if legal education hasn’t kept up.

“We don’t change very often. But when we change, we change in an order of magnitude that is fairly large,” he said at the forum. “And I hope legal education is on the brink of creating a different narrative.”

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June 18, 2018 in Legal Education | Permalink | Comments (4)

Hackney: Why The IRS Should Go After Trump

New York Times op-ed:  Why the I.R.S. Should Go After Trump. by Philip Hackney (LSU; moving to Pittsburgh):

The New York State attorney general yesterday filed a lawsuit against the Donald J. Trump Foundation and its directors, accusing the charity and the Trump family of violating campaign finance laws, self-dealing and illegal coordination with the presidential campaign. It asks that Mr. Trump pay restitution and be prohibited from leading a nonprofit in New York for 10 years.

As a former attorney for the chief counsel of the I.R.S. who specialized in nonprofit organizations, I believe Mr. Trump is also criminally liable for his actions. If I were still at the I.R.S., based on the lawsuit, I would make a criminal referral, on charges of tax evasion or false statements on a tax return, or both.

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June 18, 2018 in Tax | Permalink | Comments (8)

TaxProf Blog Weekend Roundup

Sunday, June 17, 2018

Supreme Court Votes 7-2 To Deny Accreditation Of Canada's First Christian Law School, Says LGBT Rights Trump Religious Freedom To Ban Student Sex Outside Of Heterosexual Marriage

Trinity WesternFollowing up on my previous posts (links below):  Globe and Mail, Law Societies Can Deny Accreditation to B.C. Evangelical University’s Law School Graduates: Supreme Court:

The Supreme Court has upheld the right of provincial law societies to reject the graduates of a proposed Christian law school over its requirement that students abstain from sex outside of heterosexual marriage [Trinity Western University v. Law Society of Upper Canada; Trinity Western University v. The Law Society of British Columbia].

In a highly anticipated contest between religious freedom and equality, most of the court said the limit on religious freedom was a minor one – well short of “forced apostasy,” as five of the judges put it. By comparison, the effects on equality, if the school had been accredited, would have been large enough to threaten the integrity of the legal system, the judges said.

The court had been asked whether the law societies of British Columbia and Ontario were within their rights when they voted not to give licences to graduates of Trinity Western University’s proposed law school at its campus in Langley, B.C. In a pair of 7-2 rulings, the court said they were.

“Limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, is inherently inimical to the integrity of the legal profession,” five of the seven judges in the majority wrote.

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June 17, 2018 in Legal Education | Permalink | Comments (5)

The Tax Court's Constitutional Home

Allen Madison (South Dakota) & Sharyn M. Fisk (California State Polytechnic), The Tax Court's Home, 157 Tax Notes 1249 (Nov. 27, 2017):

This article analyzes issues related to the Tax Court’s constitutional status. Although the issue has been debated for decades, recent litigation has revived the issue. In Battat v. Commissioner, [148 T.C. No. 2 (Feb. 2, 2017),] the primary issue before Tax Court was whether the President’s limited removal power over tax judges violates the Constitution’s separation of powers. In addressing this issue, the Tax Court outlined the background on the Tax Court’s status to show the Tax Court is not in the Executive branch. Further, the Battat opinion holds that even though the court exercises judicial power, the Tax Court does not exercise the “judicial power of the United States” reserved for Article III courts. Thus, the President’s limited removal power presents no separation of powers violation. The Tax Court did not reach an ultimate answer as to which branch of the government it resides, but it does provide background showing that it lies outside the Executive branch.

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June 17, 2018 in New Cases, Tax | Permalink | Comments (0)

University Of Chicago Drops SAT/ACT Admissions Requirement — Will Other Elite Schools Follow?

The Top Five New Tax Papers

SSRN Logo (2018)This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list, with some reshuffling of the order of the papers within the Top 5:

  1. [290 Downloads]  The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy, by Michael Graetz (Columbia)
  2. [244 Downloads]  IRC Section 678 and the Beneficiary Deemed Owner Trust (BDOT), by Edwin Morrow
  3. [236 Downloads]  The New U.S. Tax Preference for 'Foreign-Derived Intangible Income', by Chris Sanchirico (Pennsylvania)
  4. [223 Downloads]  Higher Education Savings and Planning: Tax and Nontax Considerations, by Philip Manns (Liberty) & Timothy Todd (Liberty)
  5. [185 Downloads]  Code Sec. 1031 after the 2017 Tax Act, by Brad Borden (Brooklyn)

June 17, 2018 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)