TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Monday, March 14, 2016

Gutman Delivers Lecture On Why A VAT Is The Path To Real Business Tax Reform Today At Temple

GutmanHarry L. Gutman delivers the 2016 Fogel Lecture on Why a VAT Is the Path to Real Business Tax Reform at Temple today:

Legislators face significant challenges in enacting meaningful business tax reform. For at least the last five years the multi-national business community has urged reform; prominent scholars have produced serious policy analyses; and politicians have talked endlessly about the need to reform business taxation. Yet nothing has occurred and the likelihood is that nothing significant will occur this year-- except for more rhetoric. Mr. Gutman will offer his thoughts on what has happened and why, and make the case for a national consumption tax, in the form of a value added tax (VAT), as the best way to fund needed changes to a system of business income taxation that is utterly broken.

March 14, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Alumni Call For Firing Former UC-Berkeley Law School Dean From His Tenured Faculty Position In Wake Of Sexual Harassment Complaint

UC Berkeley (2016)Following up on Thursday's post, UC-Berkeley Law School Dean Resigns After Being Sued For Sexual Harassment:  Brian Leiter (Chicago), Berkeley Law Grads, Apparently Having Learned Nothing About Due Process During Their Legal Education, Call For Ex-Dean Choudhry to be Fired From His Tenured Faculty Position:

This is really disgraceful for a bunch of alleged adults and lawyers, to call for the firing of a tenured faculty member based on a university investigation and a complaint, the latter of which is obviously not an adequate basis on which to base any conclusions.  I agree that the university investigation should have been sufficient to remove him from his role as the Dean, but the demand that he be fired from Berkeley "in any capacity" is shocking. ...

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March 14, 2016 in Legal Education | Permalink | Comments (5)

Is Your State’s Tax System Punching Above Or Below Its Weight?

Richard C. Auxier (TaxVox), Is Your State’s Tax System Punching Above or Below its Weight?:

When debating tax changes, politicians, advocates, and journalists often use rankings to argue whether they reside in a high- or low-tax state. Possibly the most- cited measure is per capita revenue—how much a state raises per resident—because it allows for 50-state comparisons.

But revenues are determined by more than policy decisions. A state’s geography, demographics, and economic mix all affect tax collections. Knowing how much a state could raise, taking these factors into account, can help us understand whether a state is relying too much or too little on specific taxes as well as overall taxes, relative to a national average. In a new report, my coauthors and I calculated just that, called revenue capacity. We also calculated what states would spend if they followed national averages, given their demographics and economies, called expenditure need. Finally, we measured the difference between the two measures, called fiscal gap at capacity.

To calculate revenue capacity, we established a revenue base (what could be taxed) for every tax and fee in each state and then applied a national average tax rate to that base. The national average rate divided national collections by national revenue base from that source.

total_revenue

Source: Urban Institute Calculations, for details on sources and methodology please see the full report.

As a group, most states collected revenue in line with their capacity, but several states deviated from this trend.

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March 14, 2016 | Permalink | Comments (1)

Stiglitz:  Rewriting The Tax Code For A Stronger, More Equitable Economy

Roosevelt LogoJoseph Stiglitz (Columbia), Reforming Taxation to Promote Growth and Equity:

This white paper by Roosevelt Chief Economist Joseph Stiglitz outlines concrete policy measures that can restore equitable and sustainable economic growth in the United States, in the context of the country’s recurring budgetary crises. Effective policies are within our grasp because these budgetary crises are the result of political and not economic failings.

Tax reform in particular offers a path toward both resolving budgetary impasses and making the kinds of public investments that will strengthen the fundamentals of the economy. The most obvious reform is an increase in the top marginal income tax rates—this would both raise needed revenues and soften America’s extreme and harmful inequality. But there are also a variety of other effective possible reforms related to corporate taxation, the estate and inheritance tax, environmental taxes, and ensuring that the government gets full value when it sells public assets. This white paper describes the gravity of the economic situation in the United States, but also shows that there is a way out.

Eric Harris Bernstein (Roosevelt Institute) & Joseph Stiglitz (Columbia), Rewriting the Tax Code for a Stronger, More Equitable Economy:

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March 14, 2016 in Scholarship, Tax, Think Tank Reports | Permalink | Comments (0)

Paige Marvel Elected Chief Judge Of U.S. Tax Court

MarvelJudge L. Paige Marvel has been elected Chief Judge of the United States Tax Court to serve a 2-year term beginning June 1, 2016:

Judge Marvel received a B.A. degree magna cum laude from the College of Notre Dame of Maryland (now, Notre Dame of Maryland University), and a Juris Doctor degree with honors from the University of Maryland School of Law. Judge Marvel was admitted to the Maryland Bar in 1974, and the District of Columbia Bar in 1985. She is a trained mediator.

Judge Marvel practiced law for 24 years, concentrating her practice in Federal and State tax matters and tax controversies. In 1998, President Clinton appointed her to the United States Tax Court for a 15-year term that ended on April 5, 2013. She served as Senior Judge on recall performing judicial duties until she was reappointed by President Obama to a second 15-year term that began on December 3, 2014.

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March 14, 2016 in Tax | Permalink | Comments (0)

The California Roots Of The Lawsuit Against Thomas Jefferson Law School

Thomas Jefferson Logo (2015)Following up on last week's post, NY Times: Law Graduate Gets Her Day In Court, Suing Law School:  National Law Journal, California Dreamin' on Law Jobs?:

[A]s the San Diego trial gets underway, the ABA's data show that the Golden State's law schools generally have had a tougher time placing graduates in law jobs than counterparts in other states, while their tuitions are among the highest in the nation.

The problem is most acute at lower-tier schools such as Thomas Jefferson, which lists tuition at $46,200, yet it placed just 30 percent of 2014 graduates into full-time law jobs. But even California schools near the middle of U.S. News & World Report's law school rankings are pricey and offer no guarantee of an attorney job.

About half of 2014 graduates of California law schools secured full-time, long-term jobs that require a law degree 10 months after graduation — well below the two-thirds who do so in New York and Pennsylvania, ABA data show. The national average? Sixty percent.

In California, the large volume of law school graduates and the legal industry's slow postrecession recovery make for a tight, competitive entry-level job market, said Derek Muller, a professor at Pepperdine University School of Law, in Malibu, California (The state's 21 ABA-accredited law schools produced 4,362 juris doctors in 2015.)

[Derek analyzes employment outcomes for California's 21 ABA-accredited law schools here:]Muller

"We've gotten to the point where these schools have to become smaller in order to provide opportunities for their students," Muller said.

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March 14, 2016 in Legal Education | Permalink | Comments (2)

The Contemporary Tax Journal Publishes New Issue

Contemporary
The San Jose State University Masters of Science in Taxation Program in the Lucas Graduate School of Business has published the sixth issue (Vol. 5, No. 2 (Winter 2016)) of The Contemporary Tax Journal.

March 14, 2016 in Scholarship, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1040

IRS Logo 2Investor's Business Daily editorial, Would A President Hillary Use IRS To Punish Political Foes?:

Corruption:  Lois Lerner won’t be charged for the IRS’ harassment of conservatives, so the lesson is that it’s OK to use it as a political weapon. Would a President Hillary Clinton use the IRS to punish foes? Better believe it.

The Clintons are spiteful people. They have a history of crushing those who get in their way: ...

The infrastructure for IRS persecution is already in place for Clinton, as the tax agency’s targeting of conservative groups continues to this day, more than two years after the practice was exposed. ...

“If the Clintons get back into the White House, it will be retribution time, like the Corleone family consolidating power in ‘The Godfather,'” said Newsweek. “Just think of all the scores to settle, the grievances to indulge.”

Given Clinton’s record, there can be no doubt that she will use the IRS and any other federal agency to intimidate, harass and ruin her political opponents if she is elected president.

Indeed, the Clintons already know how to use the IRS for retribution. This was confirmed by former IRS official Paul Breslan.

And since the Clintons know that there will be no consequences for their actions, given that no one is going to be held accountable in the IRS scandal, there will be no holding back. The IRS will have to hire new agents just to keep up with the Clintons’ dirty work.

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March 14, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (2)

TaxProf Blog Weekend Roundup

Sunday, March 13, 2016

Academia Isn’t So Bad For Conservative Professors

Book CoverWashington Post op-ed:  Forget What the Right Says: Academia Isn’t So Bad for Conservative Professors, by Jon A. Shields (Claremont McKenna) & Joshua M. Dunn, Sr. (Colorado), coauthors, Passing on the Right: Conservative Professors in the Progressive University (Oxford University Press, March 2016):

As two conservative professors, we agree that right-wing faculty members and ideas are not always treated fairly on college campuses. But we also know that right-wing hand-wringing about higher education is overblown. After interviewing 153 conservative professors in the social sciences and humanities, we believe that conservatives survive and even thrive in one of America’s most progressive professions.

First, conservative professors are not helpless victims — they have become quite skilled at navigating the progressive university. About a third of the professors we interviewed said they concealed their politics prior to earning tenure. Of course, being in the closet is not easy. (One particularly distressed professor told us: “It is dangerous to even think [a conservative thought] when I’m on campus, because it might come out of my mouth.”) But it’s also a temporary hardship, since nearly all the conservatives whom we interviewed planned to emerge from the ivory tower’s shadows after gaining tenure. Once tenured, conservatives are free to express their politics and publish research that reflects right-wing interests and perspectives. As one put it to us: “I don’t mind causing trouble now.”

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March 13, 2016 in Book Club, Legal Education, Scholarship | Permalink | Comments (5)

The Top 5 Tax Paper Downloads

SSRN LogoThis 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 within the Top 5:

  1. [393 Downloads]  The Taxation of Crowdfunding: Income Tax Uncertainties and a Safe Harbor Test to Claim Gift Tax Exclusion, by Paul Battista
  2. [385 Downloads]  What Now? A Boomer's Baedeker for the Distribution Phase of Defined Contribution Retirement Plans, by Richard Kaplan (Illinois)
  3. [368 Downloads]  Uncle Sam Wants … Who? A Global Perspective on Citizenship Taxation, by Allison Christians (McGill)
  4. [285 Downloads]  Profit Shifting Of U.S. Multinationals, by Tim Dowd (Joint Committee on Taxation), Paul Landefeld (Joint Committee on Taxation) & Anne Moore (Joint Committee on Taxation)
  5. [254 Downloads]  Evaluating BEPS, by Reuven Avi-Yonah (Michigan)

March 13, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

California Bar Requires Unaccredited Law Schools To Disclose Dropout Rates (Collectively, 85%)

California State Bar (2014)Following up on my previous posts (links below): Los Angeles Times, Rule Targets Unaccredited Law Schools:

California's unaccredited law schools, which collectively have an 85% dropout rate, will soon have to disclose their attrition rates to prospective students.

State bar trustees voted Friday to require the schools to publish their dropout rates for the last five years.

The 12-to-1 vote came after The Times revealed that students in the state's unaccredited law schools were far more likely to drop out than students at nationally accredited law schools, which have a dropout rate of about 12%. ...

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March 13, 2016 in Legal Education | Permalink | Comments (8)

The IRS Scandal, Day 1039

IRS Logo 2Democracy 21, Watchdog Groups Attack IRS Decision to Overrule Proposed Staff Denial of Crossroads GPS’ “Social Welfare” Tax Status:

In a letter sent today to the Internal Revenue Service Commissioner, Democracy 21 joined by the Campaign Legal Center criticized the IRS’ decision made without explanation to grant recognition to Crossroads GPS as a “social welfare” organization under section 501(c)(4) of the Internal Revenue Code.

The IRS Exempt Organizations staff decided in 2013 to deny social welfare status to Crossroads GPS because the staff found that the group spent 54 percent of its total expenditures on campaign activities in an earlier year. This amount of campaign-related spending exceeded the 49 percent rule that Commissioner Koskinen has stated sets the limit of campaign activities that a section 501(c)(4) organization is permitted to undertake.

According to the letter:

Without explanation, an IRS appeals officer reversed the staff ruling and has granted recognition to Crossroads GPS as an exempt social welfare organization. This decision, made without any explanation after the Exempt Organization staff had concluded that Crossroads GPS should not receive section 501(c)(4) tax status, is inexplicable and indefensible. It represents a fundamental failure by the IRS to rationally and properly administer the tax laws.

According to Democracy 21 President Fred Wertheimer:

It is irresponsible for the IRS to overturn a denial of tax-exempt status for Crossroads GPS by its Exempt Organizations staff without any explanation for this action.

It makes no sense for the IRS to grant without explanation tax-exempt status to Crossroads GPS as a social welfare group when the IRS staff found that Crossroads spent more money on campaign activities than IRS Commissioner Koskinen has said is permissible for a social-welfare group.

The IRS owes the American people a prompt explanation of precisely what happened here. The IRS needs to take steps immediately to make publicly clear that social welfare groups are limited in the amount of money they can spend on campaign activities and are not free to run wild and violate the tax laws with impunity.

The letter noted that, “Since its founding in 2010, Crossroads GPS itself has reported to the Federal Election Commission spending more than $100 million on campaign activities. But it has not disclosed the sources of the funds it has used for this spending.”

The letter continued:

Federal tax law does not require section 501(c)(4) social welfare organizations to publicly disclose their donors—unlike political organizations under section 527, which do have such disclosure obligations. The IRS recognition of Crossroads GPS as a social welfare organization means that the group can continue to hide from public scrutiny the identity of the donors who are financing their expenditures to influence federal campaigns.

More broadly, the grant of social welfare tax status to Crossroads GPS signals to the public that the IRS has abandoned any meaningful effort to enforce the provisions of the tax code that limit the amount of campaign activities that can be engaged in by social welfare groups.

As The Washington Post said in a recent editorial (February 19, 2016), the agency’s decision on Crossroads GPS sends the message that the IRS “has thrown in the towel” with regard to policing the misuse of social welfare organizations as vehicles for laundering undisclosed dark money into federal elections.

The IRS decision is very likely to have ramifications that will be severely detrimental to the interests of the American people.

According to the letter:

The use of social welfare organizations to spend undisclosed money in federal elections is now likely to proliferate in light of the agency’s unexplained decision to acquiesce to Crossroads GPS’s claim that it is entitled to tax status as a social welfare organization, notwithstanding its extensive campaign activities. The IRS’s abdication of its responsibility to enforce the law will be responsible for further erosion of the right of citizens to know the identity of the big donors providing money to influence their votes, thereby undermining a bedrock principle of our democracy.

The letter stated:

Given the high public stakes involved—whether purported social welfare organizations can misuse the tax laws to inject hundreds of millions of dollars of secret contributions into federal elections—the agency has an obligation to the American people to do its job responsibly.

This has not occurred in the Crossroads GPS case.  The agency owes the public an explanation for its otherwise inexplicable decision to treat Crossroads GPS as a social welfare organization, summarily reversing without explanation a staff opinion to the contrary.

Step by step over the years, the IRS has progressively eroded the congressional mandate that social welfare organizations must be operated “exclusively” for social welfare purposes, which do not include any activities to influence elections.

The letter concluded:

With this latest ruling, the IRS appears to have abandoned this statutory requirement altogether.  This has resulted in the IRS issuing what amounts to a blanket invitation to section 501(c)(4) groups to violate the tax laws with impunity, and thereby acquiescing to the unfettered spending of secret money in federal elections by social welfare organizations.

The country deserves better from the IRS.

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March 13, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (2)

Saturday, March 12, 2016

This Week's Ten Most Popular TaxProf Blog Posts

Law School Applicants From Top Colleges Plunge 42%

Keith Lee, Top Students Avoiding Law School 2016 Edition:

Back in 2013, I was the first person to notice that students graduating from the top universities in the country were beginning to avoid law school in droves. ... What looked like a leveling off last year was apparently only a brief respite. Graduates from top schools increasingly view law school as a poor option for post-graduate studies.

Lee

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March 12, 2016 in Legal Education | Permalink | Comments (14)

Energy Transfer's Acquisition Of Williams: A Tax-Motivated Frankenstein Structure

ETWNew York Times Deal Book:  Energy Transfer’s Deal Is a Nightmare With No Escape, by Steven Davidoff Solomon (UC-Berkeley):

Energy Transfer Equity’s acquisition of a rival pipeline company, Williams Companies, has turned into a nightmare as troubles in the energy industry worsen.

The risks around the deal have increased. Energy Transfer’s stock has plummeted, and executives at the company are searching for a way out.

Energy Transfer has only itself to blame, but how can it escape its troublesome deal?

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March 12, 2016 in Tax | Permalink | Comments (2)

The IRS Scandal, Day 1038

IRS Logo 2Mediaite, Fox’s Bret Baier Mischaracterizes Potential Climate Probe as ‘Campaign Against Politically Incorrect Thinking’:

It’s being reported that the Justice Department may be investigating energy companies to see if they’ve been purposefully misleading the public about climate change. From this scant thread, Special Report with Bret Baier spun not one, but two, segments Thursday night cynically calibrated to stoke outrage by selling a specious premise that the Obama administration is waging a “campaign against politically incorrect thinking.” ...

Rosen argued that the federal government investigating corporations’ peddling false science on climate change had its closest point of comparison not in the tobacco companies — but in Tea Party groups targeted for their political beliefs. “Any federal action on opponents of the administration on change issues would evoke parallels with the IRS scandal of 2013,” Rosen said, before taking his segment on a broad detour to exhume the scandal, in which IRS agents in 2010 gave extra scrutiny to conservative non-profit groups specifically because they identified as “Tea Party,” “patriot,” or likewise.

The association with the Tea Party-IRS scandal insincerely suggests that the federal government would investigate energy corporations not because of an alleged concerted effort to deceive the public, but because it wished to punish political beliefs that run contrary to the administration’s. In this formulation, the target is not criminal conspiracy, but — as Baier framed it — political incorrectness.

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March 12, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Friday, March 11, 2016

Tulane Hosts 6th Annual Tax Roundtable

TulaneTulane hosts its 6th Annual Tax Roundtable today:

The Tulane Tax Roundtable brings together tax scholars from around the country, resident Tulane faculty and Tulane students for discussion and debate about important tax policy issues of our time. The roundtable showcases the drafts and works-in-progress of its participants and subjects these works to rigorous analysis in a discussant-driven workshop format.

James Alm (Tulane), Evaluating the Economic Effects of Flat Tax Reforms Using Synthetic Control Methods (with Bibek Adhikari (Tulane))
Discussant:  Brian Galle (Georgetown)

Leigh Osofsky (Miami), Simplexity (with Joshua Blank (NYU))
Discussant:  Lawrence Zelenak (Duke)

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March 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Weekly Tax Roundup

Weekly Legal Education Roundup

Weekly SSRN Tax Roundup

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March 11, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

Georgetown Hosts Conference Today On Taxation Of Intellectual Property In A Global Economy

Georgetown (2016)Georgetown hosts a conference today on Taxation of Intellectual Property in a Global Economy:

Panel #1:  Taxation of Intellectual Property in the U.S. and Abroad

  • Alan Auerbach (UC-Berkeley) (moderator)
  • Paul Oosterhuis (Skadden, Washington, D.C.)
  • Lilian Faulhaber (Georgetown)

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March 11, 2016 in Conferences, Tax | Permalink | Comments (0)

BYU Hosts Symposium Today On The Cutting Edge Of International Tax Reform

BYU (2016)2016 BYU Law Review Symposium, A Scholarly Conversation at the Cutting Edge of International Tax Reform:

  • Allison Christians (McGill), Not-So-Soft Law: The OECD Tax Regime
  • Kimberly Clausing (Reed College), Competitiveness, Tax Base Erosion, and the Essential Dilemma of Corporate Tax Reform
  • J. Clifton Fleming Jr. (BYU) & Robert J. Peroni (Texas), You Can Run But You Can’t Hide: Addressing Inversions and Defending Worldwide Taxation with a Shareholder-based Definition of Corporate Residence
  • Omri Marian (UC-Irvine), Private Investment Funds and International Tax Avoidance

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March 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Merritt:  Race, Debt, And Law School Opportunity

Deborah Jones Merritt (Ohio State), Race, Debt, and Opportunity:

Education opens doors. In law schools, we have tried for decades to open one particular door: the one that welcomes more minority graduates into the profession. In some ways, we have succeeded admirably. The percentage of minority law graduates almost tripled between 1983 and 2012, from 8.6% to 24.2%. The absolute number of those graduates rose almost four-fold during the same years, from 3,169 per year to 11,951 annually.

Today, all of us can name successful minority lawyers, judges, and law professors–as well as minority business people, nonprofit directors, and policymakers with law degrees. Legal education can even point with pride to the first African American President of the United States.

Just as the doors started to open, however, new obstacles emerged. Research shows that minority students earn lower law school grades than white students–even after controlling for entering credentials. We have also dramatically raised the cost of legal education as our student bodies diversified. And, perhaps most disturbing, we now know that these high costs fall disproportionately on Black and Latino/a students. New data from the Law School Survey of Student Engagement (LSSSE) show that these students assume substantially more law school debt than their white and Asian American classmates. That debt gap is new–and growing. ...

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March 11, 2016 in Legal Education | Permalink | Comments (9)

Infanti Presents Tax Law And Politics: Seeing Self And Other In The Tax Mirror At Birmingham

Infanti (2016)The Centre for Tax Governance at the University of Birmingham hosted its second annual conference yesterday on Taxation as a Social and Political Institution (program here).   Anthony C. Infanti (Pittsburgh) delivered the keynote address on Tax Law and Politics: Seeing Self and Other in the Tax Mirror:

This talk focused on recognizing the larger political dimensions of taxation and addressing the significant resistance to outsider perspectives both within and without the tax academy in the United States. Using the metaphor of tax law as a mirror of society, the talk focused on shifting away from thinking about tax as just an economic or pocketbook issue and toward a greater understanding of why tax is relevant not only to each of us separately as individuals but to all of us together as a society. Naturally, we all understand that taxes are important because they directly impact how much money we have left at the end of each pay period, how much things cost us at the store, etc. But what gets overlooked is the important role that taxes play in communicating who and what we are as a society. The U.S. tax system, for example, paints a picture of American society that lets us clearly see those who are included in the collective American “self” (i.e., those whom we value, validate, and support) as well as the many “others” whom we dismiss or leave out because they fail to meet this “ideal.” Once we understand the expressive power of our tax system, it is easy to see that taxes are about much more than just economics or finances. Our tax laws are a reflection of ourselves—of our society as it is and as we wish it would be.

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March 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1037

IRS Logo 2The Daily Signal op-ed:  Republicans Deal a Blow to the IRS, by Paul Ryan (Speaker, U.S. House of Representatives):

Millions of Americans are filing their taxes this month—and getting a good reminder of why they despise the IRS. But thanks to the Republican majority in Congress, the IRS is being forced to start cleaning up its act.

When the IRS scandal broke, Congress demanded answers from the agency’s top officials. Were they targeting groups for their religious and political beliefs?

No, they said, it was just a few rogue employees in Ohio—if anything at all. Well, what happened to Lois Lerner’s emails? Oh, they were lost in a tragic hard drive crash. Shouldn’t we update our laws to prevent future abuses? Don’t worry, the IRS responded with a cavalier attitude, weve got it covered.

By shining sunlight on the IRS, we demonstrated that conservative groups were being targeted for abuse based on their political beliefs. Many important—and perhaps, incriminating—emails were destroyed. And no safeguards were installed to stop any of it from happening again.

It’s not as if President Barack Obama was going to demand change at the IRS. His first reaction was to blame all this on “some boneheaded decisions.”

So we took action. We didn’t just prolong the investigation. We put into place reforms to shift the balance of power back to the taxpayer.

For example, in 2011, we learned that the IRS was threatening to impose the gift tax on donors to conservative non-profits, which would have forced many of these groups to close their doors. So Congress passed a law to make it clear that these donations are exempt.

There is now a codified Taxpayer Bill of Rights hanging at every IRS building across the country. Because of the actions we’ve taken, agency employees like Lois Lerner can no longer use their personal email addresses for official business. Organizations can self-declare their tax-exempt status, and if the IRS rescinds their status, they have the right to appeal.

As a result of our legislation, if the IRS compromises an organization’s confidential information, it can learn exactly what happened and who is responsible. And finally, political targeting is now a firing offense.

This is the difference a Republican majority has made, but we still have much more to do.

Just weeks ago, we learned that a cyber-attack may have breached the accounts of more than 700,000 taxpayers. That’s more than double the agency’s original estimate. All Americans deserve to have confidence that they will be treated fairly by the IRS—and our work won’t stop until this is a reality.

The single best thing we can do to rein in the IRS is to fix our tax code. Instead of a tax code all of us can live by, we have a code that none of us can understand. We need to simplify the code so that it helps create jobs and raise wages. And that’s why tax reform is at the top of our agenda to restore a confident America.

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March 11, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (2)

Thursday, March 10, 2016

2017 U.S. News Law School Rankings Leak: The Top 50 100

2017 U.S. NewsAlthough the new 2017 law school rankings will be released online on Wednesday, March 16, the Top 50 has been leaked online

The biggest winners are Houston (+9), Indiana (+9), UC-Hastings (+9), Wake Forest (+7), Boston University (+6), Boston College (+4), Ohio State (+4), Michigan (+3), Arizona (+2), Iowa (+2), Temple (+2), UC-Irvine (+2), Washington & Lee (+2)

The biggest losers are Alabama (-6), University of Washington (-5), BYU (-4), North Carolina (-4), William & Mary (-4), Duke (-3), Emory (-3), Fordham (-3), George Mason (-3), George Washington (-3), Utah (-3), Georgia (-2), Minnesota (-2), Wisconsin (-2)

Update: The Top 100 is now available here and here.

March 10, 2016 in Law School Rankings, Legal Education | Permalink | Comments (15)

UC-Berkeley Law School Dean Resigns After Being Sued For Sexual Harassment

UCBThe Daily California, Dean of Campus Law School Takes Leave of Absence From Position After Allegations of Sexual Harassment Arise:

Sujit Choudhry will be taking an indefinite leave of absence from his position as dean of the UC Berkeley Law School, but will remain a faculty member of the school, amid allegations of sexual harassment.

According to a statement issued Wednesday by Executive Vice Chancellor and Provost Claude Steele, based on the findings of an investigation of the allegations of sexual harassment, the campus determined that Choudhry’s behavior violated the university’s sexual harassment policies.

On Tuesday, Choudhry — as well as the UC Board of Regents — was sued by Choudhry’s executive assistant, Tyann Sorrell, for alleged sexual harassment, including hugging, kissing or caressing Sorrell at least multiple times per week, among other allegations. The lawsuit states that after Choudhry became dean of the law school in July 2014, Choudhry began making unwanted sexual contact with Sorell until March 2015. “(Choudhry) demonstrated a failure to understand the power dynamic and the effect of his actions on the plaintiff personally and in her employment,” Steele said in the statement.

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March 10, 2016 in Legal Education | Permalink | Comments (8)

Mason Presents Citizenship Taxation Today At Duke

Mason (2015)Ruth Mason (Virginia) presents Citizenship Taxation, 88 S. Cal. L. Rev. ___ (2015), at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

The United States is the only country that taxes its citizens’ worldwide income, even when those citizens live indefinitely abroad. This Article critically evaluates the traditional equity, efficiency, and administrability arguments for taxing nonresident citizens. It also raises new arguments against citizenship taxation, including that it puts the United States at a disadvantage when competing with other countries for highly skilled migrants. 

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March 10, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Davis Presents The Role Of Tax Law In Constructing Citizenship Today At Northwestern

DavisTessa R. Davis (South Carolina) presents Of Tax Crimes and "Bad Citizens": The Role of Tax Law in Constructing Citizenship at Northwestern today as part of its Advanced Topics in Taxation  Workshop Series hosted by Herbert Beller, Charlotte CraneDavid Cameron, Philip Postlewaite, Jeffrey Sheffield, and Robert Wootton:

Scholarship on the role citizenship should play in taxation frequently focuses on the appropriate regimes of international and domestic tax governing citizens and noncitizens, addressing whether residence or citizenship-based taxation is more equitable and administrable. These questions, while important, only partially address the connections between citizenship and taxation. The recent Supreme Court decision in Kawashima v. Holder makes evident the breadth of this gap in the literature.

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March 10, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Bank Presents Executive Pay: What Worked? Today At Colorado

Bank (2016)Steven Bank (UCLA) presents Executive Pay: What Worked? (with Brian R. Cheffins (Cambridge) & Harwell Wells (Temple)) at Colorado today as part of its Tax Policy Colloquium Series hosted by David Hasen and Sloan Speck:

CEO pay is a controversial issue in America but there was a time, often overlooked today, when chief executives were not paid nearly as much as they are now. From 1940 to the mid-1970s executive pay was modest by today’s standards even though U.S. business was generally thriving. What worked to keep executive pay in check? Economist Thomas Piketty and others credit high marginal income tax rates, leading to calls for a return to a similar tax regime. This paper casts doubt on the impact tax had and also shows that neither the configuration of boards nor shareholder activism played a significant role in constraining executive pay.

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March 10, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Manhire Presents The Impact Of Unconscious Bias On Campus Climate Today At Texas A&M

ManhireJack Manhire (Texas A&M) presents The Impact of Unconscious Bias on Campus Climate at Texas A&M today as part of its Campus Climate Conference:

Unconscious bias is not necessarily a “bad thing.” Rather, it is a human cognitive reality that is indispensable for navigating our everyday lives. But unconscious bias can be very dangerous when it comes to people decisions in any organization, including institutions of higher education. This presentation clarifies what unconscious bias is cognitively, explains how it can manifest itself in a campus environment, and gives proven strategies to mitigate the negative effects of bias both structurally and in our personal interactions.

March 10, 2016 in Colloquia, Legal Education, Scholarship | Permalink | Comments (0)

41 (Including 2 Top 50) Law Schools Would Fail ABA's Proposed New 75% Bar Pass Within Two Years Of Graduation Accreditation Standard

ABA Legal EdFollowing up on my previous posts (links below):  The American Lawyer, Why the ABA's Bar-Passage Rule Isn't As Tough As It Looks, by Matt Leichter:

One way to ease fears about schools churning out unprepared students would be for the ABA to set specific minimum standards for incoming students. Instead, the ABA's committee for reviewing law-school accreditation rules proposed a new regulation in February that might motivate schools like Florida Coastal to think twice before admitting students who will struggle with the bar exam. The rule may be approved by the committee's governing body as soon as March 11. ...

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March 10, 2016 in Legal Education | Permalink | Comments (0)

SUNY-Buffalo Law School, After Reducing Faculty By 50% Through Buyouts, Pays Former Dean $300k While He Works For World Bank

MutuaThe Spectrum, UB Still Paying Former Law School Dean Makau Mutua Full Salary Despite His New Job; Mutua, on Title F Leave, Has Taken Job with World Bank:

Law professor Makau Mutua has been on leave from UB for nearly a year and recently took a job in Washington D.C., yet the university is still paying the former law school dean his full salary – a salary that nears $300,000.

Mutua is working as a human rights adviser for World Bank, an international financial institution that provides loans to developing countries. Such consultants in Washington, D.C., where Mutua’s Twitter account shows he spends most of his time, make an average salary of $90,000.

World Bank would not confirm if Mutua made such a salary or his exact position, but on his social media accounts he calls himself a World Bank human rights adviser. ...

According to SUNY policy, the university president has to approve outside income for a faculty member earning salary while on sabbatical. The president also can choose to lower the faculty member’s salary if that member receives outside income while on leave. That did not occur in Mutua’s case.

UB officials say this is because Mutua is on a special kind of leave, known as Title F leave, which doesn’t require faculty members to get approval for outside earnings.

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March 10, 2016 in Legal Education | Permalink | Comments (5)

Grinberg:  A Constructive U.S. Counter To EU State Aid Cases

Following up on my previous post, Senate Finance Committee Urges Treasury To Use Section 891 To Combat EU Investigations Of American Companies:  Itai Grinberg (Georgetown), A Constructive U.S. Counter to EU State Aid Cases, 81 Tax Notes Int'l 167 (Jan. 11, 2016):

U.S. Treasury officials and members of Congress from both parties have expressed concern that the European Commission’s current state aid investigations are disproportionately targeting U.S.-based multinational enterprises. At the same time, a Treasury official recently suggested in congressional testimony that there are limits to what Treasury can do beyond strongly expressing its concerns to the commission. In that testimony, Treasury’s representative hinted at two specific pressure points: whether the state aid investigations could undermine U.S. tax treaties with EU member states; and whether any assessments paid by the foreign subsidiaries of U.S. MNEs as a result of state aid investigations would be creditable for U.S. income tax purposes.

March 10, 2016 in Scholarship, Tax | Permalink | Comments (0)

Atkinson:  Tax Favors For Philanthropy

Rob Atkinson Jr. (Florida State), Tax Favors for Philanthropy: Should Our Republic Underwrite de Tocqueville's Democracy?, 6 Wm. & Mary Pol'y Rev. 30 (2014):

Tax theorists have long debated the rationales for the federal income tax system’s favorable treatment of philanthropy. The debate has certainly become more sophisticated, but it has nonetheless failed to produce anything near full convergence of opinion. This article reviews that debate and reaches a paradoxical conclusion: Although the present system of exemption and deduction is perhaps impossible to justify in any other way, that system almost perfectly co-ordinates three basic features of American society: the populist and anti-statist sources of American philanthropy, the consumerist orientation of our form of market capitalism, and our tax system’s reliance on income as its principal revenue source.

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March 10, 2016 in Scholarship, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1036

IRS Logo 2Press Release, California Violates Federal Donor Privacy Law; Kamala Harris Is the ‘Lois Lerner’ of State Attorneys General:

American Target Advertising, Inc., America’s largest and oldest conservative direct marketing and fundraising consulting agency, filed comments this week with California Attorney General Kamala Harris explaining that her dragnet demands for the names of donors to charities and other nonprofit organizations that ask Californians for donations violate post-Watergate reforms to the Internal Revenue Code. The tax code protects against unauthorized inspection of and intra-office access to confidential federal tax return information by government officials, and creates an exclusive and rigid regime for state charity regulators that Ms. Harris has bypassed in obtaining donor names on Schedule B of charities’ federal tax returns. The comments address a proposed confidentiality rule issued by Ms. Harris, and may be viewed here.

“We have seen the lawlessness directed at nonprofit organizations under ex-IRS official Lois Lerner, and her arrogance in acting ‘above the law.’ The very partisan Ms. Harris is carrying on that formula in her role as California’s top charity regulator,” said lawyer and fundraising executive Mark Fitzgibbons, who added, “The quantity of charities affected by California’s evasion of federal law far exceeds those affected by Lois Lerner’s lawlessness.”

Citing federal tax code section 6104(c) as “exclusively and rigidly” regulating the process for accessing and using confidential federal tax return information in administration of state charitable solicitation laws, interpretations by the IRS, and even a published article by the former head of California’s Registry of Charitable Trusts, the comments state: “[D]emands for Schedule B donor names and addresses are a bold, brash, and startling statement that the Attorney General believes she is not bound by or beholden to IRC 6104(c).”

Ms. Harris unilaterally decided to use the charitable solicitation registration process to acquire confidential donor names on Schedule B of charities’ federal tax returns. Those demands also violate the rights of association and privacy explained in the 1958 landmark case NAACP v. Alabama.

Another set of comments explaining the potential civil and criminal penalties for state officials who engage in unauthorized inspection of confidential federal tax return information, signed by five lawyers who specialize in tax and nonprofit law, were filed and may be viewed here. Both sets of comments were sent to Janet Kleinfelter, president of the National Association of State Charity Officials, which organization claimed Lois Lerner as its “partner in the regulation of charities.”

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March 10, 2016 in IRS News, IRS Scandal | Permalink | Comments (5)

Wednesday, March 9, 2016

McCaffery:  The Meaning Of Capital In The Twenty-First Century

PikettyEdward J. McCaffery (USC), The Meaning of Capital in the Twenty-First Century:

America is on a path towards a level of both wealth and income inequality unparalleled in recorded history. Thomas Piketty’s Capital in the Twenty-First Century summarizes and conveys the work of Piketty and many co-authors, over many decades, looking at the structure of income and wealth inequality across many nations and centuries. This review essay builds on Piketty’s ambitions as well as his data, in order to put forth a better solution: one that accepts and even embraces the facts of unequal ownership of capital, but changes the social meaning of those facts to avoid the social harms that follow from unfettered private party capitalism. A progressive spending tax does not simply take capital away from the wealthy. It allows the rich to keep and manage their wealth, as they have shown the ability and temperament to do so. But it curtails their ability to spend their capital on themselves and their luxurious wants. The social distinction of holding wealth can continue; the progressive spending tax makes this state of affairs work to the common utility.

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March 9, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (0)

LoPucki:  Disciplining Legal Scholarship

Lynn M. LoPucki (UCLA), Disciplining Legal Scholarship, 90 Tul. L. Rev. 1 (2015):

American law schools are hiring large proportions of J.D.-Ph.D.s in tenure-track faculty positions in an effort to increase the quantity and quality of empirical legal scholarship. That effort is failing. The new recruits bring methods and objectives unsuited to law. They produce lower-than-predicted levels of empiricism because they compete on the basis of methodological sophistication, devote time and resources to disputes over arcane issues in statistics and methodology, prefer to collaborate with other Ph.D.s, and intimidate empiricists whose work does not require high levels of methodological sophistication. In short, Ph.D.s impose the cultures of their disciplines on legal scholarship.

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March 9, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Gender Gap In Law Firm Associate Promotions And Turnover Is Higher When Partners Are Conservative

ABA Journal, Gender Gap in Associate Promotions and Turnover Is Higher When Bosses Are Conservative, Study Says:

Gender disparities in associate promotions and turnover are greater when male partners in the associates’ practice area are more politically conservative, according to a study of the nation’s largest 200 law firms.

One of the study authors, University of Michigan assistant professor Seth Carnahan, spoke about the findings in an article published at the University of Michigan website. [Managers’ Political Ideology and Gender Inequality within Organizations]

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March 9, 2016 in Legal Education | Permalink | Comments (2)

Knaplund:  Predicting And Encouraging Charitable Bequests In Wills

Kristine S. Knaplund (Pepperdine), Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills, 77 Pitt. L. Rev. 1 (2015):

What causes people to leave their property to charity in their wills? Many scholars have explored the effects of tax laws on charitable bequests, but now that more than 99% of Americans’ estates are exempt from federal taxes, what non-tax factors predict charitable giving? This Article explores charitable bequests before the federal estate tax and a deduction for charitable bequests were enacted by Congress. By examining two years of probate files in Los Angeles and St. Louis, in which 16.6% of St. Louis testators, but only 8.3% in Los Angeles, made charitable bequests, we can begin to discern why testators in St. Louis were far more inclined to give to charity. The surprising results may help policy makers encourage those in the United States and in developing countries to give beyond their family and friends.

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March 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Desai:  The Trump-Obama Corporate Tax Reform Fail

TrumpWall Street Journal op-ed:  The Trump-Obama Corporate Tax Reform Fail, by Mihir A. Desai (Harvard):

Removing the incentive for American companies to move their headquarters abroad is a widely recognized goal. To do so, the U.S. will need to join the rest of the G-7 countries and tax business income only once, in the country where it was earned. Notably, this principle—called territoriality—is included in the bipartisan framework for international tax reform developed by Sens. Rob Portman (R., Ohio) and Charles Schumer (D., N.Y.) in 2015.

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March 9, 2016 in Tax | Permalink | Comments (0)

Farber:  Legal Scholarship In The Progressive Era And Today

Daniel A. Farber (UC-Berkeley), Back to the Future? Legal Scholarship in the Progressive Era and Today, 100 Minn. L. Rev. 1 (2015):

This article introduces volume 100 of the Minnesota Law Review. Like much of legal scholarship today, Issue 1 was deeply and unapologetically embedded in the concerns of its day, which was on the cusp between the Progressive Era and the outbreak of World War I. It is not uncommon to contrast modern legal scholarship with some past era in which scholarship was more doctrinal, less policy oriented, and more focused on issues relevant to practicing lawyers. Yet, of the four articles in Issue 1 of the law review (published in 1917), two are international or comparative, and three (including the comparative article) rely on policy arguments rather than limiting themselves to doctrinal analysis. The subjects include children’s rights and the juvenile justice system along with American neutrality in World War I. Indeed, even by the late nineteenth Century, there were complaints that law professors and law school education had departed too far from the realities of legal practice. The golden age in which practicing lawyers and law professors walked hand in hand into the sunset may be little more than myth, like so many other golden ages.

March 9, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Luke: The Taxing Problem of Debt Principal

Charlene Luke (Florida), Of More Than Usual Interest: The Taxing Problem of Debt Principal, 39 Seattle U. L. Rev. 33 (2015):

Leverage is an essential but often troubling component of the U.S. market. In the tax area, the potentially problematic incentive effects of interest deductibility have long engaged a wide array of tax commentators and policymakers. While interest deductibility rightly receives widespread scrutiny, a more comprehensive approach to leverage is needed. This Article focuses on the surprisingly complicated tax treatment of cash (and cash equivalent) borrowings. This Article highlights that using debt principal to finance business and investment tax benefits yields favorable tax timing mismatches for taxpayers and thereby theoretically amplifies any distortions caused by the deductibility of debt interest.

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March 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Thimmesch:  Testing The Models Of Tax Compliance — The Use-Tax Experiment

Adam Thimmesch (Nebraska), Testing the Models of Tax Compliance: The Use-Tax Experiment, 2015 Utah L. Rev. 1083:

Researchers in a number of fields have explored the question of why people voluntarily comply with the tax laws. The resulting scholarship suggests that a number of factors influence that decision, but the precise role of, and interaction between, those factors continue to be subjects of debate, and more research is needed. That includes field research to put the current theories to test in real-life settings. This article proposes that state use taxes — known primarily as the taxes that are due when we purchase items online without paying sales taxes — provide a remarkable opportunity for that research.

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March 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1035

IRS Logo 2The Daily Caller News Foundation, IRS Failing To Properly Handle Data Nearly 2 Years After Lois Lerner:

Internal Revenue Service (IRS) officials don’t consistently report crucial information that ensures data backups are created and usable, a government watchdog reported Monday.

The IRS doesn’t know if its data backups are deleted or not created, and doesn’t test to ensure backups can be used if information is lost, even after a “significant” December 2014 incident, according to a Treasury Inspector General for Tax Administration (TIGTA) report.

“The IRS is not effectively managing its Tier II environment backup and restoration process,” the report said. “If the data is not backed up properly, a possibility exists that all taxpayer and management information could be lost and become unrecoverable.” ...

“IRS management does not have information to detect if a required backup is not created,” the report said. The IRS also doesn’t have consistent procedures to ensure backups are created routinely. Instead, officials rely on “professional judgement,” the report said. Advertisement Additionally, the IRS “does not routinely test restore of backups to ensure the integrity and reliability of the data by performing restores,” the report said. “Without forming a strategy for backup restore testing, the IRS cannot be assured it will have reliable backup data when needed.”

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March 9, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (5)

Tuesday, March 8, 2016

Seto Presents Preference-Shifting And The Nonfalsifiability Of Optimal Tax Theory Today At NYU

Seto (2014)Theodore Seto (Loyola-L.A.) presents Preference-Shifting and the Nonfalsifiability of Optimal Tax Theory at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Chris Sanchirico:

Optimal tax theory is based on a core factual assumption – that preferences reflect welfare. In practice, this assumption is neither tested nor questioned. Science requires falsifiability – of both theories and their factual predicates. That the core factual assumption upon which optimal tax theory is based is neither tested nor questioned is therefore problematic.

Advertising offers a useful context in which to think about the extent to which preferences do or do not reflect welfare. Some advertising conveys information. In the language of market theory, it remedies informational failures. To the extent it does so, market theory would not characterize it as changing preferences; market theory would rather characterize it as allowing pre-existing preferences to be satisfied more efficiently. Not all advertising, however, achieves its goals by conveying information.

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March 8, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Arkansas Law School Dean Worried About ‘Harm’ From Professor’s FOIA Suit For Access To Admissions Data

UALRCampus Reform, Arkansas Law School Dean Worried About ‘Harm’ From Professor’s FOIA Suit:

Without waiting for the courts to rule in a pending FOIA lawsuit from a professor seeking access to admissions data, a law school dean recently sent a cryptic email to the school’s attorneys warning of potential reputational harm from the professor’s “inaccurate” statements.

Prof. Robert Steinbuch filed suit against the University of Arkansas at Little Rock’s (UA) Bowen School of Law in November, alleging that the administration had refused to provide him with data sets he had requested for his research into the effects of race-based admissions policies, despite having turned the same data over on two previous occasions.

In December, Steinbuch wrote an op-ed about the case in National Jurist, a trade publication, outlining his case, arguing that when he first requested the admissions data in 2012, the Arkansas Attorney General “issued an opinion confirming my right to receive the public records I sought,” but that the very dean who approved the original request, Michael Schwartz, is now refusing to release the exact same data on the grounds that it would violate student privacy.

Steinbuch, however, believes that the administration’s reluctance to share the data with him is actually based on fears that his research will reveal that lower admissions standards for minority applicants have caused those students to drop out of school and fail the bar examination at higher rates than other students.

“My research conflicts with certain political viewpoints, so when people with those viewpoints are presented with that conflict, they see it as a challenge, and perhaps we’re seeing some of the results of that conflict,” he told Campus Reform. ... Steinbuch explains that his research, as outlined in a recent article in the Texas Review of Law and Politics, is not concerned with the inherent abilities of minority students, but rather with documenting the effects of enrolling students with lower GPA’s and test scores than are traditionally required.

Robert Steinbuch (Arkansas-Little Rock) & Kim Love (Georgia), Color-Blind-Spot: The Intersection of Freedom of Information Law and Affirmative Action in Law School Admissions, 20 Tex. Rev. L. & Pol. 1 (2015):

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March 8, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Color-Blind-Spot: The Intersection Of Freedom Of Information Law And Affirmative Action In Law School Admissions

Robert Steinbuch (Arkansas-Little Rock) & Kim Love (Georgia), Color-Blind-Spot: The Intersection of Freedom of Information Law and Affirmative Action in Law School Admissions, 20 Tex. Rev. L. & Pol. 1 (2015):

This third article, in an unexpected trilogy, documents the difficulties that a tenured, now-former member of the admissions committee had in obtaining public data from a state law school in Arkansas in which he is faculty. The story contains both the success of ultimately obtaining some—but not all the requested—public data about affirmative action, and the analysis of the ensuing unique information. The former is a tale of ongoing roadblocks presented to getting public information. The ultimate success in obtaining the key documents led to the largest contemporary longitudinal case study of race admissions at any law school. And the results are dramatic: Ethnicity has been significantly related to success in the University of Arkansas at Little Rock School of Law, as measured by probability of passing the bar exam and law school GPA, because African-Americans as a cohort had been admitted with significantly lower objective metrics than Whites. Consequently, African-Americans have performed significantly poorer in law school and on the bar exam than Whites at UALR Law School. The affirmative action program at UALR Law School often harmed the very individuals it was designed to help.

March 8, 2016 in Legal Education | Permalink | Comments (0)