TaxProf Blog

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

Monday, February 12, 2018

TaxProf Blog Weekend Roundup

Sunday, February 11, 2018

Anderson: A New Method Of Law Faculty Compensation — Scholarly Residuals From Citations

Robert Anderson (Pepperdine), Scholarly Residuals for Faculty Compensation:

In many law schools and other university departments, faculty are recruited, evaluated, and granted tenure largely based on their research productivity and influence. That system works reasonably well to motivate faculty members prior to tenure, but degrades after that. The best faculty members often are recruited by other institutions and have little incentive to stay other than a "match" by the home institution. Some other faculty members embark on a decades-long "transition" to retirement. One problem is that the compensation of faculty is often not adjusted directly, regularly, and contemporaneously according to scholarly performance to create optimal incentives to maximize output and tie faculty members to the original institution.

In this post, I outline a proposal for compensating faculty based on scholarly productivity and influence based on a "scholarly residuals" model. The model is loosely based on the residuals concept in the entertainment industry, compensating faculty each time their work is cited as creators and performers in films and TV shows are compensated when the film or show subsequently appears. The proposed system will (1) create strong monetary incentives for performance, (2) tie compensation more transparently to performance, and (3) enhance a school's ability to retain productive faculty members. Although there is merit in also tying compensation to teaching performance and service responsibilities, I leave those matters aside in this post. ...

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February 11, 2018 in Legal Education, Scholarship | Permalink | Comments (9)

The Religious Roots Of America's Progressive Income Tax

Joshua Cutler (Houston), The Religious Roots of the Progressive Income Tax in America:

I examine the enactment of the first peacetime income tax in the United States in 1894 to investigate the original sources of the income tax’s popularity and moral legitimacy. I find that congressional proponents repeatedly and explicitly argued that a progressive income tax was a biblical tax that best conformed to Judeo-Christian teachings on economics and fundraising.

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February 11, 2018 in Tax | Permalink | Comments (0)

Gonzaga Law Student On A Mission To ‘Heal Spokane’ Through Acts Of Kindness, Service

HealThe Spokesman-Review, Gonzaga Law Student on a Mission to ‘Heal Spokane’ Through Acts of Kindness, Service:

October was not kind to Sather Gowdy.

Among other hurdles, Gowdy went through a messy breakup, two people close to him died and an inattentive driver caused a crash that wrecked his car and tweaked his spine—all while he tried to focus on his studies at Gonzaga’s law school.

Gowdy, 30, grew up in north Spokane, the only son of a Whitworth University professor and a Rogers High School counselor. He’s a history buff who names Winston Churchill among his heroes, and he flaunts a giant, ’70s-style Afro.

And although Gowdy is typically upbeat, the whirlwind of tragic and frustrating events in October plunged him into a deep depression.

“I’d wake up and just feel bitter, you know? And I’ve always been taught that you don’t want to be that person,” he said. “You don’t want to be the person who’s always complaining about such, or treating the world like it’s against you.”

One day, an elderly neighbor asked Gowdy to help her with some yardwork. To his surprise, the work was therapeutic, a way to center himself while helping someone else. It was, he said, the first time he had felt truly happy in weeks.

So he didn’t stop.

Although he’s often busy poring over 3-inch-thick law textbooks, Gowdy began volunteering as often as he could: shoveling snow, fixing a neighbor’s fence, pulling old mattresses and garbage from the alley behind his house.

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

The Top Five New Tax Papers

SSRN LogoThis week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list.  The #1 paper is #1 and the #2 paper is #2 among 13,346 tax papers in all-time downloads (see Brian Leiter (Chicago), 11 Tax Profs Blow Up The SSRN Download Rankings).

  1. [47,249 Downloads]  The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the New Legislation, by Ari Glogower (Ohio State), David Kamin (NYU), Rebecca Kysar (Brooklyn) & Darien Shanske (UC-Davis) et al.
  2. [31,702 Downloads]  The Games They Will Play: An Update on the Conference Committee Tax Bill, by Ari Glogower (Ohio State), David Kamin (NYU), Rebecca Kysar (Brooklyn) & Darien Shanske (UC-Davis) et al.
  3. [1738 Downloads]  Understanding the Tax Cuts and Jobs Act, by Sam Donaldson (Georgia State)
  4. [927 Downloads]  Federal Income Tax Treatment of Charitable Contributions Entitling Donor to a State Tax Credit, by Joseph Bankman (Stanford), David Gamage (Indiana), Jacob Goldin (Stanford) & Daniel Hemel (Chicago) et al.
  5. [618 Downloads]  Is New Code Section 199A Really Going to Turn Us All into Independent Contractors?, by Shu-Yi Oei (Boston College) & Diane M. Ring (Boston College)

February 11, 2018 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, February 10, 2018

This Week's Ten Most Popular TaxProf Blog Posts

ABA Tax Section Midyear Meeting

ABAThe ABA Tax Section Midyear Meeting is taking place this weekend in San Diego.  Two of the highlights are:

Luncheon Plenary Address:  Edward Kleinbard (USC), Perversion of the Tax Policymaking Process:
The Tax Cuts and Jobs Act can be criticized on many substantive grounds, and for its effect on deficits. But the legislative process also revealed important shortcomings beyond its haste. Traditional tax policy metrics — conventional revenue estimates, dynamic estimates and distributional analyses — yield misleading results in a tax framework that loses over one trillion dollars. The result is that the legislation has even more deleterious welfare implications than these standard metrics suggest.

Teaching Taxation ProgramEvolving Constraints on Tax Administration:
The IRS and Treasury Department have faced increasing budget and legal constraints over the past few years. Treasury is also experiencing limits on its rulemaking, both from the current Presidential Administration and from courts applying administrative law, such as with respect to the anti-inversion regulations. IRS budget constraints and workforce decreases started around 2011, and the IRS’s image has suffered following a 2013 report from the Treasury Inspector General for Tax Administration (TIGTA) on the IRS’s review of applications for determination of tax-exempt status. A 2017 TIGTA report revisited that issue in a balanced way, but where does it leave the IRS? This panel will look at how we got here, what it means, and what the ideal environment for tax administration looks like. The panelists will discuss the recent cases of Altera and Chamber of Commerce and assess how the IRS, taxpayers, and counsel should proceed given the ever-evolving constraints on tax administration.
Philip Hackney (LSU), Kristin Hickman (Minnesota), Leandra Lederman (Indiana), Kerry Ryan (St. Louis)

The full program is here. Other Tax Profs with speaking roles include:

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February 10, 2018 in ABA Tax Section, Conferences, Tax | Permalink | Comments (0)

AT&T, Other Companies Play Tax Arbitrage In Paying Worker Bonuses In Response To Trump Tax Cuts

AT&T LogoBloomberg:  AT&T, Walmart Bolster Their Tax Savings in Paying Worker Bonuses, by Lynnley Browning:

The surprise bonuses that corporations like Walmart and AT&T are bestowing upon rank-and-file American workers are currying favor with the public and President Donald Trump.

But there’s another perk — the companies can use the payouts to minimize their tax bills.

It’s no secret that companies are allowed to deduct most compensation expenses from their taxable income as a cost of doing business. There’s a wrinkle this year, though — since the corporate tax rate was slashed to 21 percent from 35 percent, big firms that account for the expense in 2017 stand to save tens of millions of dollars more in taxes than if they book the expense in 2018.

“That’s a big tax arbitrage play,” said Len Burman, a co-founder of the Urban-Brookings Tax Policy Center and a former senior Treasury tax official. ...

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February 10, 2018 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (1)

Most Popular Undergraduate (Engineering) And Graduate (MBA; Law Is #5) Degrees For Millionaires

One MillionHere’s What To Study If You Want to be a Millionaire:

Want to have the best chance of becoming a millionaire after graduation? Then engineering is the subject for you.

More existing millionaires have degrees in engineering than anything else according to new data from GlobalData WealthInsight published in association with Verdict, though among graduate degrees MBAs take the top spot.

For undergrads, economics comes in second place, though engineering gets the second spot for post-graduate millionaires.

Completing the top three is bachelor of business administration (BBA) for undergrads and economics for post-grad students.


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

Friday, February 9, 2018

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Herzig's The Income Equality Case For Eliminating The Estate Tax

This week, Sloan Speck (Colorado) reviews a new work by David Herzig (Valparaiso), The Income Equality Case for Eliminating the Estate Tax, 90 S. Cal. L. Rev. 1143 (2017).

Speck (2017)David Herzig’s forthcoming article, The Income Equality Case for Eliminating the Estate Tax, has a bombshell for a title, juxtaposing two ideas—income equality and estate tax elimination—that at first blush may seem in tension. Herzig, however, spends much of his excellent article carefully explicating and emphasizing the interaction between the estate tax and the income tax, both in historical terms and as a current area of policy concern. Essentially, Herzig argues that estate tax planning enables income tax avoidance among high-income and high-wealth households. Giving these households a choice between tax instruments guarantees lower revenues from a group that should pay more under a progressive tax system. From this deep and nuanced framework, Herzig draws a series of policy prescriptions. Only after teasing out the political impediments to an ideal solution does Herzig turn to estate tax repeal as a possible second-best outcome—and a potential improvement on today’s patchwork agglomeration of estate, gift, and income tax rules.

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February 9, 2018 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Number Of Americans Renouncing Their U.S. Citizenship Fell In 2017, The First Decline In Five Years

International Tax Blog, 2017 Fourth Quarter Published Expatriates – First Annual Decrease in Five Years:

Today the Treasury Department published the names of individuals who renounced their U.S. citizenship or terminated their long-term U.S. residency (“expatriated”) during the fourth quarter of 2017.


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February 9, 2018 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (5)

Call For Proposals: Association For Mid-Career Tax Law Professors

The Association for Mid-Career Tax Law Professors (“AMT”) has issued a Call for Proposals:

Mid-Careerhe 2018 AMT organizing committee—Jordan Barry (San Diego), Mirit Eyal-Cohen (Alabama), Brian Galle (Georgetown), Charlene Luke (Florida), and Leigh Osofsky (Miami, moving to North Carolina)—welcomes proposals for our annual conference.

AMT is a recurring conference intended to bring together relatively recently tenured professors of tax law for frank and free-wheeling scholarly discussion. Our fourth annual meeting will be held on Monday and Tuesday, May 21 and 22, 2018, on and near the campus of Georgetown University Law Center. We’ll begin early on Monday and adjourn by noon on Tuesday. We remind travelers that GULC, the nation’s only “law center,” is deep in the swamp (i.e., on Capitol Hill), not in the Georgetown neighborhood.

2015 Conference at Ohio State (Day 1Day 2)
2016 Conference at UC-Davis (Day 1Day 2)
2017 Conference at Arkansas (Day 1, Day 2)

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February 9, 2018 in Conferences, Scholarship, Tax | Permalink | Comments (0)

New Charges Filed Against Two Suspects In Dan Markel's Murder

SuspectsTallahassee Democrat, Markel Murder Suspects Facing Additional Charges:

New charges filed Wednesday against the two accused murderers of Florida State law professor Dan Markel reflect what investigators say was their integral role in the plot to have him killed.

In addition to first-degree murder charges, Sigfredo Garcia and Katherine Magbanua now face counts of conspiracy and solicitation to commit murder. ...

Prosecutor Georgia Cappleman said the additional charges don’t come from new evidence in the case but were filed to make sure the entirety of what investigators say went into the scheme is reflected. “The first-degree murder doesn’t cover all the conduct that was involved,” she said, adding that both Garcia and Magbanua were involved in planning the murder, she said, and then turned to recruit others. ...

Magbanua's attorneys say the additional charges point to a lack of readiness by prosecutors to go forward with trial. "I thought they were ready for trial? That’s what they keep telling the judge," said defense attorney Christopher DeCoste in a text. "Yet years into the case and they’re still trying to figure out charges? This means they don’t understand the case and is the very reason why they’ve wrongfully included Katie."

The same court documents charging Garcia and Magbanua point to a murder-for-hire plot investigators say was orchestrated by Markel’s former in-laws following his contentious divorce from fellow law professor Wendi Adelson. She now works as the executive director of The Immigration Partnership & Coalition Fund in Coral Gables.

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February 9, 2018 in Legal Education | Permalink | Comments (2)

How The Trump Tax Cuts Handed GM A $5 Billion Loss

GM Logo (2018)Bloomberg:  How a Tax Cut Handed GM a $5 Billion Loss, by Megan McArdle:

General Motors Co. had a pretty good quarter in the last months of 2017. Sales of its SUVs surged, surpassing those of competitors like the Ford Escape and fueling fat gross margins. Looking ahead to 2018, the company forecasts strong earnings. And of course it’s staring at a healthy tax cut, courtesy of the administration of President Donald Trump and Republicans in Congress.

Naturally, when the time came to do its earnings call, the company reported a $5.15 billion loss for the quarter.

Actually, if you know a bit about accounting, this is entirely natural. In lowering the company’s corporate taxes, the government suddenly made the ability to avoid those taxes less valuable.

Between 2005 and 2008 (when the government stepped in to bail it out), GM lost roughly $80 billion. These are gruesome numbers. But that grim cloud had a silver lining: Those staggering losses created something called an “NOL carryforward.” ...

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February 9, 2018 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

Law Schools Tackle The New Blockchain Frontier

BlockchainNational Law Journal, Blockchain 101: Law Schools Tackle the New Frontier:

The end of 2017 signals a full explosion of blockchain into the public eye, most notably its use within cryptocurrencies. Bitcoin, the open-source distributed ledger payment system through which the technology first made headlines in 2009, saw a massive value spike this fall as bitcoin futures prepped for a December 2017 launch. And while cryptocurrencies have long been exciting for the niche communities that develop and trade in them, public appreciation for the digital assets seems to have surged, too. “Bitcoin” was the second most searched global news topic on Google in 2017; “how to buy Bitcoin” was the third most searched question.

This interest in blockchain and cryptocurrency is quickly working its way into the legal sector. Increasingly, legal practitioners are considering uses of blockchain beyond finance, piloting distributed ledger technology in sectors such as health care, cybersecurity and entertainment. Legal technology blogger Bob Ambrogi even declared it his “2017 Word of the Year,” beating out major buzz topics such as artificial intelligence and chatbots.

Law schools seem to be working hard to keep up with the pace of technological innovation in training the next generation of attorneys. A recent project from Michigan State University College of Law professor Daniel Linna, the “Law School Innovation Index,” found that at least 40 different law programs now provide students with opportunities to learn and engage with technology as part of their formal curriculum, but only a few schools have formal blockchain-based coursework or clinic opportunities.

However, this lack of blockchain focus seems to be changing quickly as schools scramble to help law students establish a background in what seems to be an increasingly important technology.

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February 9, 2018 | Permalink | Comments (0)

Thursday, February 8, 2018

Shaviro Presents The Disgraceful U.S. Passthrough Rules Today At Duke

Shaviro (2015)Daniel Shaviro (NYU) presents The Disgraceful U.S. Passthrough Rules at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

Bad as the passthrough rules looks by themselves, in some ways they look even worse when paired with the lower corporate rate and absence of significant safeguards against using corporations as tax shelters. From now on, anyone who is thinking of running a business or being an independent contractor, and for whom the dollar stakes are large enough, is going to have to think seriously about both the C corporation and passthrough alternatives. Tax advisors will need to be consulted, and large bills run up (although the tax savings may more than pay for these). Had the Congressional Republicans in 2017 expressly set out to make the tax system a far more intrusive nuisance and headache (albeit, in the guise of tax planning opportunities) than it already was, they could hardly have done “better” than they did.

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February 8, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Speck Presents Debt And Taxes Over The Life Cycle Today At UCLA

Speck (2017)Sloan Speck (Colorado) presents Debt and Taxes over the Life Cycle at UCLA today as part of its Tax Policy and Public Finance Colloquium Series hosted by Jason Oh and Kirk Stark:

The deductibility of non-business interest under the United States income tax has bedeviled policymakers and commentators since the early twentieth century. Debates have centered around definitional and normative questions about the tax base—whether non-business interest should be deductible under a normative income tax, or whether non-business interest should be taken into account as part of a consumption tax base. Essentially, this literature asks how interest deductibility fits, or should fit, within the broader tax system.

This paper argues for a different approach. In the United States, the tax aspects of non-business debt are situated within a broader matrix of regulations governing various categories of household debt. Certain types of household debt—this paper considers home mortgage loans and loans for higher education—are structured in ways that have implications, explicit and tacit, across borrowers’ life cycles. This context should inform normative determinations about the value of interest deductibility for household debt.

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February 8, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Higher Education Is Headed For A Supply And Demand Crisis

DDWashington Post, Higher Education Is Headed For a Supply and Demand Crisis:

Already, we’re beginning to see the impact of demographic changes in higher education. A survey released last week by the Chronicle of Higher Education found that 52 percent of private colleges and 44 percent of public colleges didn’t meet their enrollment goals this past fall.

“We’re an expensive product,” Kathryn Coffman, vice president and dean of admissions and financial aid at Franklin College in Indiana, told the Chronicle. “Now more than ever, outcomes are critical, and people want to know that the investment they’re making is going to result in something.” ...

The raw numbers are sobering. But then a new book landed on my desk a few weeks ago that put the figures in a new, and disturbing, light. In Demographics and the Demand for Higher Education [(Johns Hopkins University Press 2017)], Nathan D. Grawe, an economics professor at Carleton College, in Minnesota, explores the overall decline in high school graduates in greater detail.

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February 8, 2018 in Legal Education | Permalink | Comments (2)

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. ___ (2018):

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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February 8, 2018 in Scholarship, Tax | Permalink | Comments (1)

Marian Reviews Tax Evasion And Inequality

Jotwell (2016)Omri Marian (UC-Irvine), What We Now Know We Didn't Know About Tax Evasion (And Why It Matters) (JOTWELL) (reviewing Annette Alstadsæter, Niels Johannesen & Gabriel Zucman, Tax Evasion and Inequality (NBER Working Paper No. 23772 (2017)):

Over the past several years, a series of leaks related to offshore tax avoidance and evasion (SwissLeaksLuxLeaksthe Panama PapersBahama Leaks, and Paradise Papers, to name a few) has fueled calls for tax transparency. To date, most discussion of the leaks has been policy-oriented (leaks: good or bad?) and largely anecdotal (based on some truly outrageous revelations). It was not until very recently, however, that a small group of researches started delving into the data exposed by these leaks to make statistically significant empirical findings. AlstadsæterJohannesen & Zucman’s (AJZ) paper is an excellent example of such paper, which combines methodological sophistication, public data, and leaked data, to make important new contributions to the voluminous literature on the offshore tax world. ...

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February 8, 2018 in Scholarship, Tax | Permalink | Comments (0)

Northwestern Offers 6-8 Graduate Tax Program Tuition Scholarships ($64k) To Serve As Student Editors Of The Tax Lawyer

Northwestern Tax LawyerFollowing up on last week's post, After 50 Years, ABA Tax Section Shifts Publication Of The Tax Lawyer From Georgetown To Northwestern:  Philip Postlewaite (Director, Northwestern's Graduate Tax Program):

Along with Karen Hawkins, the current Chair of the ABA Tax Section, I am proud to announce that The Tax Lawyer, the flagship journal of the ABA’s Tax Section, will be moving to Northwestern in the fall of 2018. We look forward to the beginning of a close and engaging relationship with the Editorial Board and the Council of the ABA Tax Section. David Cameron will become the Faculty Editor, supervising student and faculty involvement in the publication process.

In order to assist in the publication of The Tax Lawyer, Northwestern will select a six-to-eight member Student Editorial Board from among the admitted students in each of our future LLM classes. In order to encourage highly-qualified applicants to apply to, and matriculate at, Northwestern and to serve as student editors, we have created The Northwestern Pritzker Dean’s Scholarship Fund. Importantly, Dean’s Scholars will receive scholarships equal to the cost of tuition [$63,558] at Northwestern.

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February 8, 2018 in ABA Tax Section, Legal Education, Tax | Permalink | Comments (0)

Insuring Your Charitable Donation: An Experiment

Renate Buijze (Erasmus University Rotterdam), Christoph Engel (Max Planck ) & Sigrid Hemels (Erasmus University Rotterdam), Insuring Your Donation: An Experiment, 14 J. Empirical Legal Stud. 858 (2017):

There is a rich experimental literature on the determinants of consumers’ generosity (summarized by a meta study one of us has published, (Engel 2011)). This literature shows, inter alia, that donations are the higher the more the recipient is deserving help; the higher the bigger the effect on the recipient; the lower the more pronounced the uncertainty. To the best of our knowledge we are the first to study – with the help of a lab experiment using a real charity, a real risk, and a real insurer – whether consumers are willing to pay for insuring them against the risk that the donation misses its intended goal, or that the donation is not rewarded by a refund. We find a pronounced willingness to pay for either insurance. But the availability of insurance only increases the frequency of donations if the risk affects the recipient’s deservingness.

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February 8, 2018 in Scholarship, Tax | Permalink | Comments (0)

What Makes The 1st Year Of Law School Crazier? Playing Division l Basketball

Following up on my previous post, Missouri, Pepperdine 1Ls Play Division I Basketball:, What Makes the 1st Year of Law School Crazier? Playing Division l Basketball:

Three first-year law students from schools across the country [Missouri, Pepperdine, William & Mary] are playing big-time college basketball this year. Their schedules are not for the faint of heart. ...


What reaction did you get from classmates when they first heard you are also playing basketball? ...
[Kevin Hempy (Pepperdine)]:  I think some people didn’t really know it was allowed or possible. One of the best parts of the year for me has been getting to know the people in my classes. I’ve had buddies come down to the games and cheer us on. Overall, people have been supportive and encouraging.

Why did you decide to go to law school? ...
Hempy:  Pepperdine allows undergraduates to get a certificate in conflict management through the Strauss Institute for Dispute Resolution, which is part of the law school. You take classes in negotiation, mediation, and some elective classes. That is really where my interest in law school came from. I took four classes at the law school as an undergrad. I really enjoyed that program. ...

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February 8, 2018 in Legal Education | Permalink | Comments (0)

Wednesday, February 7, 2018

Brooks Presents Legal Interpretation Of Canadian Tax Law Today At Toronto

Brooks (Kim)Kim Brooks (Schulich School of Law, Dalhousie University) presents Legal Interpretation of Tax Law: Canada at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

This chapter is designed to lay the ground for comparative study into legal interpretation in tax law. To that end, its goal is primarily descriptive. It is designed to address the kinds of factors that might support a comparative analysis of Canada’s approach to legal interpretation. Presumably, similarities and differences among countries might be identified and explained based on a set of factors, including the structure of government, the design of adjudication mechanisms (both administrative and judicial), the dominant philosophies of language, the historic practices of interpretation, the importance of legislative purpose and the extent to which external aids are relied upon, and the overarching norms of grammar and their interaction with legislative drafting.

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February 7, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

How Much Do Professors Work?

Chronicle of Higher Education, How Much Do Professors Work? One Researcher Is Trying to Find Out:

How many hours should professors work each week? Everyone has a different answer, especially professors.

Case in point: When Nicholas A. Christakis, a professor at Yale University, asserted on Twitter that graduate students should work more than 60 hours each week, a debate ensued. Professors pointed to studies that suggested not everyone can devote more than 40 hours each week to their jobs — for example, if they have kids — or that the institutions and departments they work for may have different standards of work, research, and competitiveness. 

Christakis drew his point from a study [The Long, Lonely Job of Homo academicus: Focusing the Research Lens on the Professor's Own Schedule] at Boise State University that found that faculty participants reported working, on average, 61 hours per week. They self-reported working 10 hours per day Monday to Friday and about that much on Saturday and Sunday combined, with a significant portion of their days spent dealing with email and attending faculty meetings.


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February 7, 2018 in Legal Education | Permalink | Comments (2)

Hickman & Kerska: Restoring The Lost Anti-Injunction Act

Kristin E. Hickman (Minnesota) & Gerald Kerska (J.D. 2017, Minnesota), Restoring the Lost Anti-Injunction Act, 103 Va. L. Rev. 1683 (2017):

Should Treasury regulations and IRS guidance documents be eligible for pre-enforcement judicial review? The D.C. Circuit’s 2015 decision in Florida Bankers Association v. Treasury puts its interpretation of the Anti-Injunction Act at odds with both general administrative law norms in favor of pre-enforcement review of final agency action and also the Supreme Court’s interpretation of the nearly identical Tax Injunction Act. A 2017 federal district court decision in Chamber of Commerce v. Internal Revenue Service, appealable to the Fifth Circuit, interprets the Anti-Injunction Act differently and could lead to a circuit split regarding pre-enforcement judicial review of Treasury regulations and IRS guidance documents.

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February 7, 2018 | Permalink | Comments (0)

Christine Beshar, Cravath's First Woman Partner, Dies At 88

BesharWall Street Journal, Accidental Lawyer, Carved a Trail for Women:

Christine Beshar made her mark as a partner in the male-dominated world of Wall Street law firms.

After graduating from Smith College in 1953, she had no career plan but was determined to work. Since her husband, Robert Beshar, was a lawyer, she applied to law firms. One hired her as a switchboard operator. Another made her assistant librarian. Then she spent several years assisting her husband, who represented Sperry & Hutchinson, the issuer of green stamps that rewarded loyalty at grocery stores.

While working and having babies, Ms. Beshar gained practical legal experience and read books on contracts, rules of evidence and constitutional law. Without attending law school, she took the New York bar exam and passed on her first try. Cravath, Swaine & Moore hired her in 1964 and seven years later made her its first woman partner. She was so surprised and delighted by the news that she gave the presiding partner, Roswell Gilpatric, a hug.

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February 7, 2018 in Legal Education | Permalink | Comments (0)

Pepperdine Law Grad Chuck Rettig To Be Named IRS Commissioner

RettigCharles Rettig (J.D. 1981, Pepperdine; Tax LL.M. 1982, NYU), tax partner at Salkin, Rettig, Toscher & Perez (Beverly Hills, CA), is slated to be President Trump's nominee to be IRS Commissioner.  Wall Street Journal, Trump Soon to Nominate Tax Lawyer Charles Rettig to Run IRS:

President Donald Trump will nominate Charles Rettig, a California tax lawyer, to run the Internal Revenue Service, a person familiar with the matter said Monday.

If confirmed by the Senate, Mr. Rettig will take one of the most thankless jobs in Washington. He would run an agency that despite a shrunken budget is responsible for implementing the sprawling Republican overhaul of the U.S. tax system passed by Congress last year. He would also be charged with overseeing the agency Mr. Trump has said has been auditing his tax returns from 2002 onward. The president has cited that process as the reason he hasn’t released those documents to the public.

Mr. Rettig’s selection departs from the recent trend of IRS commissioners. The most recent Senate-confirmed commissioners—John Koskinen, Douglas Shulman, Mark Everson and Charles Rossotti —weren’t career tax experts when they were picked.

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February 7, 2018 in Legal Education, Tax | Permalink | Comments (1)

Shanghai Law Students Seek To Oust Former Case Western Dean, Say #MeToo Movement Should Apply In China

Mitchell 2Following up on my previous posts (links below):  Cleveland Scene, Disgraced Former CWRU Law Dean Lawrence Mitchell is Now a Professor in Shanghai:

In 2014, Case Western Reserve University Law School Dean Lawrence Mitchell resigned amidst a lawsuit alleging rampant sexual impropriety and retaliation against a professor who tried to blow the whistle.

The salacious details of that suit — including Mitchell's repeated attempts to enlist students and underlings in threesomes — and the complicity of CWRU administrators, including President Barbara Snyder, were chronicled in this 2014 Scene feature story. The suit was settled two months after publication. ...

He is now a professor of Law at the Shanghai University of Finance and Economics (SHUFE) in China, and students have lately learned of his past (un)professional conduct. ... One student suggested in an email that China should not be excluded from the #MeToo movement and cited two recent cases in Chinese higher education where professors had been removed due to accusations of sexual harassment. Some SHUFE students are now trying to raise awareness about Mitchell.

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February 7, 2018 in Legal Education | Permalink | Comments (5)

Leiter: Using 'Hidden' Faculty Hiring Criteria As Decisive Factor Raises Ethical And Legal Questions

ChronicleChronicle of Higher Education op-ed:  Academic Ethics: ‘Hidden’ Hiring Criteria, by Brian Leiter (Chicago):

Any seasoned academic who has been involved with job searches knows there are two sets of criteria for some positions: the ones in the published ad and the "hidden" ones.

"The dean says we must hire a woman this time," reports the chair. Or the dean says: "The department’s lack of racial diversity is becoming a problem, you’ve got to fix that with this year’s search." Or the department’s star faculty member tells the chair, "If you don’t hire my spouse into a permanent line finally, we will take jobs elsewhere next year." All of those fall into the hidden-criteria column.

The published job ads connected to such searches reveal nothing of the underlying reality. For legal reasons, no job ad can say, "Only women should apply," or "This job is open only to spouses of very famous members of our department."

Of course, every job search may involve considerations that are not part of the position’s public advertisement. Unbeknownst to applicants, the search committee may be stacked in favor of quantitative candidates in international politics, rather than theorists; or in favor of corporate-law experts, rather than public-law scholars. Even more commonly, members of the search committee take seriously only applicants from certain programs, or with certain recommenders — even though the ad says nothing about either.

So why should we be concerned about the hidden criteria in some searches but not in others?

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February 7, 2018 in Legal Education | Permalink | Comments (7)

The IRS Scandal, Day 1735: The End Of IRS Targeting?

IRS Logo 2Wall Street Journal, The End of IRS Targeting?:

It can be hard to keep track of Obama-era targeting of the political opposition by federal administrative agencies. But this week brings fresh hope that such abuses will not be repeated.

The Journal reports:
President Donald Trump will nominate Charles Rettig, a California tax lawyer, to run the Internal Revenue Service, a person familiar with the matter said Monday.
If confirmed by the Senate, Mr. Rettig will take one of the most thankless jobs in Washington.

Of course in recent years it has been thankless for especially good reason. During the Obama administration, the tax agency targeted conservative organizations for exceptional scrutiny and even harassment. Last year the IRS settled lawsuits brought by organizations that had been mistreated simply because they advocated for limited Constitutional government. The government shelled out millions of dollars to settle one suit involving 428 organizations, according to an October report in the New York Times. In a separate case brought by different organizations, an apology for the IRS’s egregious conduct was enough to resolve the litigation.

Reported the Times:
The settlements were the conclusion of two legal battles that have dogged the I.R.S. since the initial lawsuits were filed after a 2013 treasury inspector general’s audit that found groups with “Tea Party” or “Patriot” in their names received more scrutiny over their applications for tax-exempt status. The revelations plunged the I.R.S. into a firestorm that ultimately led to the ouster of its acting commissioner and prompted accusations that the agency was being used as a political weapon by the Obama administration.

While Mr. Obama did force the resignation of the acting IRS commissioner in the wake of the scandal in 2013, he made no serious effort to reform the agency and proclaimed that the targeting had involved “not even a smidgen of corruption” long before his government had finished investigating.

Mr. Obama also placed John Koskinen atop the agency. Mr. Koskinen’s failures to comply with subpoenas and to report accurately to the Congress inspired an effort to impeach him in 2015. A Journal editorial at the time noted:
In February 2014 Congress instructed Mr. Koskinen to supply all emails related to Lois Lerner, who ran the IRS Exempt Organizations division during the targeting. We now know Mr. Koskinen made little or no effort to preserve or track these communications and that, only a few weeks after the subpoena, IRS employees in West Virginia erased 422 backup tapes, destroying up to 24,000 Lerner emails.

So the bar has been set very low. Can the new IRS chief clear it? ...

A man who has spent a career across the table from the IRS, sometimes clashing with the agency in court, would seem to possess some useful experience. Here’s hoping he chooses to be a reformer.

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February 7, 2018 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

Tuesday, February 6, 2018

Koester Presents Corporate Subsidies And Political Connections: State-level Evidence Today At Georgetown 

KoesterAllison Koester (Georgetown) presents Corporate Subsidies and Political Connections: State-level Evidence (with Daniel Aobdia (Northwestern) & Reining Petacchi (Georgetown)) at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by Lilian Faulhaber and Itai Grinberg:

This paper examine s whether corporate political connections are associated with government awarded subsidies, and how this relation impacts subsidy effectiveness in spurring future economic growth beyond the firm. Subsidies relate to foregone government revenues through tax credits/abatements and to government resource transfers through grants and cost reimbursement programs. Using novel datasets to identify state-awarded corporate subsidies and corporate contributions to state political candidates, we find robust evidence that political contributions increase both the likelihood a company is awarded a state subsidy and the dollar value of subsidy awarded.

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February 6, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Auten Presents Income Inequality In The United States Today At NYU

NYU Law (2016)Gerald Auten (U.S. Treasury Department) presents Income Inequality in the United States: Using Tax Data to Measure Long-Term Trends (with David Splinter (Joint Committee on Taxation)) at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

Previous studies using U.S. tax return data, such as Piketty and Saez (2003), concluded that top one percent income shares increased substantially since 1960. But tax return based measures are biased by tax base changes and missing income sources. Accounting for these limitations reduces the increase in top one percent income shares by two-thirds. Further, accounting for government transfers reduces the increase over 80 percent. After-tax income results are similar.

This shows that unadjusted tax return based measures present a distorted view of inequality because incomes reported on tax returns are sensitive to tax law changes and omit significant income sources

February 6, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

The New Tax Law Summarized In One Interactive Page

Tax lawyers at the Texas law firm Jackson Walker (including 2016 Pepperdine graduate Brady Cox) have produced a fantastic 233-page PowerPoint presentation, 2018 Tax Reform: What You Need to Know Now.  The presentation summarizes the entire TCJA in a single interactive page that allows users to click on relevant portions and go to the detailed slides on that topic:


February 6, 2018 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

Pepperdine Law School: The Next Chapter

Pepperdine Law School just realeased the inaugural edition of a new publication, The Brief:

The Brief

February 6, 2018 in Legal Education | Permalink | Comments (2)

Aprill & Hemel: The Tax Legislative Process — A Byrd's Eye View

Ellen Aprill (Loyola-L.A.) & Daniel Hemel (Chicago), The Tax Legislative Process: A Byrd's Eye View, 81 Law & Contemp. Probs. ___ (2018):

The Byrd rule, a once-obscure Senate procedural provision, captured the spotlight in December 2017 when it briefly derailed an effort by congressional Republicans to enact the most sweeping tax overhaul in a generation. And while the Byrd rule did not prevent the ultimate passage of the new tax law, it profoundly influenced both the substance and the form of the final legislation. The immediate aftermath of the 2017 tax overhaul thus provides an opportune moment to take stock of the Byrd rule’s role in the making of federal tax law. This essay—part of a symposium issue of Law and Contemporary Problems on “The Past, Present, and Future of the Tax Legislative Process”—considers the myriad ways in which the Byrd rule has influenced federal tax law and policy in the three dozen years since the rule’s emergence.

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February 6, 2018 in Scholarship, Tax | Permalink | Comments (0)

The Scholar's Motivation

Chad M. Oldfather (Marquette), The Scholar's Dilemma, 101 Marq. L. Rev. ___ (2018):

This essay pursues questions relating to scholarly motivation. What motivates the production of scholarship, and what ought to motivate it? Is it appropriate for a scholar to seek a reputation for its own sake, or for the associated invitations, recognitions, and lateral offers a reputation might produce? Or should the scholar be more like the (stereotypical) artist, seeking to pursue her conception of truth regardless of whether the world rewards her vision?

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February 6, 2018 in Legal Education, Scholarship | Permalink | Comments (1)

Request For Proposals: 2019-20 ACTEC Symposium

ACTECRequest for Proposals: ACTEC Foundation 2019-20 Academic Symposium:

The Legal Education Committee of the American College of Trust and Estate Counsel (ACTEC) requests proposals for a $20,000 grant to host an academic symposium on trust and estate law during the 2019-2020 academic year. ...

The RFP should provide the following information. A. Theme. The theme of the symposium should be related to trust and estate law, defined to include any topic related to the gratuitous transfer of property (e.g., probate law, trust law, elder law, transfer tax law). A broad theme permits a wide range of papers and is more likely to be successful. Past themes have included Trust Law in the 21st Century (Cardozo 2005); Inheritance Law in the 21st Century (UCLA 2008); Philanthropy Law in the 21st Century (Chicago-Kent 2009); The Uniform Probate Code: Remaking of American Succession Law (Michigan 2011); The Role of Federal Law in Private Wealth Transfer (Vanderbilt 2014); and The Centennial of the Estate Tax: Perspectives and Recommendations (Boston College 2015). The theme of the most recent symposium, which took place at the University of Iowa College of Law in September 2017, was Wealth Transfer Law in Comparative and International Perspective (articles will be published in the Iowa Law Review). ...

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February 6, 2018 in Conferences, Scholarship, Tax | Permalink | Comments (0)

The Extraordinary Rise And Sudden Decline Of Law School Tuition: Veblen Effects In Higher Education

VeblenPaul F. Campos (Colorado), The Extraordinary Rise and Sudden Decline of Law School Tuition: A Case Study of Veblen Effects in Higher Education, 48 Seton Hall L. Rev. 167 (2017):

This Article attempts to give a partial answer to the question of why, over a period of several decades, American law schools were able to continually raise tuition far faster than the rate of inflation. My thesis is that from at least the middle of the 1950s until the early years of the present decade, law school tuition often displayed the characteristics of a Veblen good, a good for which demand increases as price increases. I then argue that over the past few years, what I call the “law school reform movement” has made it increasingly difficult for law schools to market their credentials as Veblen goods. As a result, after more than half a century of constant increases, real law school tuition has suddenly fallen significantly.

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February 6, 2018 in Legal Education, Scholarship | Permalink | Comments (1)

Monday, February 5, 2018

Mason Presents Why State Aid Needs Discrimination Today At BYU

Mason (2016)Ruth Mason (Virginia) presents Why State Aid Needs Discrimination at BYU today as part of its Tax Policy Colloquium Series hosted by Cliff Fleming and Gladriel Shobe:

In August 2016, the European Union’s (EU) Commission dropped a bombshell: it would require Ireland to collect more than $14.5 billion in back taxes from Apple under anti-subsidy rules that most American tax lawyers had never even heard of—the state-aid rules. Suspicions that certain EU Member States colluded with large multinationals to help them evade other states taxes suggests the need for a supra-national authority that could curb harmful state tax practices.

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February 5, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Kleinbard Delivers Lecture On Fiscal Policy In An Age Of Inequality Today At Georgia

Kleinbard (2015)Edward D. Kleinbard (USC) delivers the 115th Sibley Lecture at Georgia today on What’s a Government Good For?: Fiscal Policy in an Age of Inequality:

The debate surrounding the Tax Cuts and Jobs Act demonstrated the intellectual bankruptcy of U.S. fiscal policy debate. The TCJA has serious flaws as a matter of narrow tax policy, but it is more fundamentally flawed when viewed through the proper policy lens, which is overall fiscal policy – the net of government taxing and spending. The TCJA greatly exacerbates already untenable budget deficits. Its tax prescriptions are even more regressive when the spending cuts contemplated by the legislation itself are reflected. And the law’s regressivity is compounded further when plausible financing paths for these large deficits are included in the analysis. In particular, the “dynamic” growth analysis whose tax ramifications were part of the debate leading up to the law was predicated on enormous cuts to future transfer payments, and confused GDP growth with enhanced welfare.

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February 5, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Leigh Osofsky Leaves Miami For North Carolina

Osofsky (2016)Tax Law Expert Leigh Osofsky Joins UNC School of Law Faculty:

UNC School of Law is pleased to welcome Leigh Osofsky as a tax law professor. Osofsky joins the Carolina Law faculty from the University of Miami School of Law, where she has taught courses addressing various aspects of taxation and policy for the last seven years. Before joining the University of Miami faculty, Osofsky was an acting assistant professor of tax law at New York University from 2009 to 2011.

“We are thrilled to have Leigh join our faculty this summer,” says Kathleen DeLaney Thomas, assistant professor of law and director of the UNC School of Law Tax Institute. “Leigh is a well-respected and accomplished tax scholar, as well as a committed and effective teacher. We’re also excited that she will help us expand our tax law course offerings at the law school and will be a great resource for our students.”

Leigh's recent publications include:

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February 5, 2018 in Legal Education, Tax, Tax Prof Moves | Permalink | Comments (0)

Addressing Loafing On Faculty Committees

Andrea Anne Curcio (Georgia State) & Mary A. Lynch (Albany), Addressing Social Loafing on Faculty Committees, 67 J. Legal Educ. 242 (2017):

Scholarly productivity reaps tangible internal and external rewards, while the "reward" for excellent faculty committee work performance often is additional committee work. Some faculty members perform substantial institution-sustaining committee work while others are institutional service work “social loafers”. This essay suggests this traditional workload distribution model may be unsustainable.

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February 5, 2018 | Permalink | Comments (1)

Lesson From The Tax Court: Forms Follow Function In Return Filing

Montana Road SignLaw is often a mixture of form and function.  Formalist rules help create order and certainty but sometimes do so at the expense of justice and meaning.  Discerning and following the function or purpose of the law may create juster outcomes but sometimes does so at the expense of certainty.  All can agree that there is a time and a place for each mode of analysis, but the devil is in the details. 

The speed limit sign to the right illustrates the difference.  It's a sign you might have encountered driving through Montana up until 1999 when the Montana Supreme Court ruled that the "reasonable & prudent" rule was unconstitutionally vague.  It gives two rules for drivers:  a bright-line night rule that you may not drive faster than 65 mph and a fuzzy day rule that gives no set speed limit but just says you may not drive unreasonably or imprudently. 

In applying the speed limit sign, formalists and functionalist might disagree on when the night rule applies. A formalist might look to the dictionary definition of night as the period between sunset and sunrise and so apply the night rule at the minute after sunset. But a functionalist might say that the purpose of the night rule is to set a limit when night-time conditions make it presumptively unsafe to drive faster. So a functionalist might not apply the night rule until later after sunset, and might also apply it during the “day” when a weather event, such as a haboob or an eclipse, creates sufficiently night-like conditions. Of course, formalist thinkers might disagree among themselves if they use different dictionary definitions of “night."  Likewise, functionalist thinkers might disagree among themselves if they have different ideas about the purpose of the night rule.

Last week’s reviewed opinion Melissa Coffey Hulett a.k.a. Melissa Coffey, et al v. Commissioner, 150 T.C. No. 4 (January 20th, 2018) is a case where the Tax Court takes a largely functional approach to IRC §6501(a) statute of limitations on assessment and yet the functionalists on the Court disagree with each other about the proper outcome.  Section 6501(a) says that the IRS has a period of three years “after the return was filed” to assess “any tax imposed by this title.” The opinion for the Court, authored by Judge Holmes, is a mix of formalism and functionalism, using the passive voice in the statutory language as an opening to implement one important purpose of §6501: closure. A concurring opinion by Judge Thornton gives a more robustly functionalist view, resting entirely on the closure purpose of the statute.  And a spirited dissent, authored by Chief Judge Marvel, also presents a functionalist analysis but one that focuses on a different purpose of the statute to come to a different outcome in the case.

What I find particularly interesting about this case is how all three approaches seem to be inconsistent with the Tax Court’s approach to interpreting the §6501(c) exception to §6501(a)’s general three year rule. That statute presents a similar question of statutory interpretation but all of the opinions in last week’s case are contrary to the Tax Court’s rationale in Allen v. Commissioner, 128 T.C. 37 (2007).

Details below the fold.

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February 5, 2018 in Bryan Camp, New Cases, Tax, Tax Practice And Procedure | Permalink | Comments (1)

Florida Hosts 8th Annual Tax Policy Lecture

UFThe Florida Graduate Tax Program on Friday hosted its 8th Annual Ellen Bellet Gelberg Tax Policy Lecture by Richard Reeves on Dream Horders, Or: The Political Economy of Tax Policy, followed by a panel discussion with:

  • Lily Batchelder (NYU)
  • William Gale (Brookings Institution)
  • Fred Murray (Florida)

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February 5, 2018 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Would A Federal Student Loan Overhaul Bring Down Law School Tuition?

ABA Journal, Would an Overhaul of Federal Student-loan Programs Help Bring Down Law School Tuition?:

Could reforming the federal student-loan program be a way to halt the skyrocketing cost of attending law school? At the 2018 ABA Midyear Meeting in Vancouver, British Columbia, the American Bar Foundation gathered a panel together to discuss the issue in The Perennial (and Stubborn) Challenge of Cost, Affordability and Access in Legal Education: Has it Finally Hit the Fan?

“If I have to put the blame for the title of this panel on any one place, I would put it on these student loan programs and the fact that they are basically unregulated, really, in terms of the amount,” said Barry Currier, the ABA’s managing director of accreditation and legal education.

“The students can borrow as much money through those programs as they want,” Currier said. “So if Harvard Law School or New England Law School said, ‘Tuition at our school next year is $200,000, and living expenses are $50,000,’ the federal government wouldn’t say, ‘You’ve got to be kidding me!’ They would say, ‘Where can we send that check for $250,000?’” ...

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February 5, 2018 in Legal Education | Permalink | Comments (14)

TaxProf Blog Weekend Roundup

Sunday, February 4, 2018

Had Cris Collinsworth Followed His Original Post-NFL Plan To Be A Tax Lawyer, He Would Be Poring Over The New Tax Law Today Rather Than Calling The Super Bowl

CollinsworthMinneapolis Star-Tribune, Calling NFL Games a Taxing Job For Ex-Bengals Receiver Cris Collinsworth:

If his life had unfolded as he planned, Cris Collinsworth wouldn’t be spending this week in the Twin Cities, studying video of the Patriots and Eagles. He’d be in an office, poring over the details of the new U.S. tax code.

The former Bengals receiver began attending law school while still playing in Cincinnati [J.D. 1991, University of Cincinnati College of Law]. Armed with an accounting degree — and an affinity for business and tax law — Collinsworth saw his future in the legal world, even after a radio station asked him to be a fill-in host. ...

Collinsworth’s secondary mission is to share the “terrific story lines’’ of Super Bowl LII.

As he clicked off the list — Eagles quarterback Nick Foles’ comeback! LeGarrette Blount and Chris Long winning rings with the Patriots last year, now playing for Philly! — Collinsworth’s voice bloomed with excitement, in a way it probably wouldn’t have if he were discussing tax law.

“Believe me, I’m not longing for the days when I was going to become a lawyer,’’ he said, laughing. “Especially come tax time.’’

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February 4, 2018 in Celebrity Tax Lore, Legal Education, Tax | Permalink | Comments (0)