TaxProf Blog

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

Friday, September 14, 2018

Gonzaga Seeks To Hire A Tax Clinician

Gonzaga LogoGonzaga University School of Law seeks applicants for a three-quarter-time Lecturer in its Federal Tax Clinic, with flexibility to serve in other areas as needed by the clinical program. This position is dependent on a Low Income Taxpayer Clinic (LITC) grant awarded from the IRS. Gonzaga Law School has been receiving the LITC grant for over 15 years.

The teaching responsibilities of this 12-month-position include the supervision of students in all aspects of client representation, case selection, and client communication along with some administrative duties related to managing cases and record keeping associated with grants. This grant dependent position is a year-to-year, non-tenure track position.

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September 14, 2018 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

Stark: Implementation Negotiation

Tina Stark, a leader in transactional skills education for lawyers (Fordham, Emory, and Boston University), Implementation Negotiation: A Transaction Skill that Builds on and Transforms Classic Negotiation Theory, forthcoming, Transactions, The Tennessee Journal of Business Law.

Implementation negotiation is the specialized negotiation in which deal lawyers engage after the principals negotiate the business terms of the transaction. Classic negotiation principles guide these deal term negotiations. But once the parties agree, the dynamics, tone, content, and purpose of the negotiation change. Parties are no longer looking at whether they can find a way to agree. They do agree. Now, the lawyers must transform the clients’ bare bones agreed-on business terms into a contract that memorializes the parties’ joint vision. This is implementation negotiation, a new way of thinking about contract negotiations. Implementation negotiation theory does not displace classic negotiation theory. It simultaneously builds on that framework and transforms it to work in a different context. This article begins by reviewing classic negotiation theory and principles and then explains how implementation negotiation builds on and transforms those principles, including why BATNA recedes to the background, why seasoned negotiators know the parties’ interests and issues and the expected zone of agreement, even before negotiations begin. The article next details the multiple subcategories of implementation negotiation through narrative and a series of illustrative, simulated negotiations. It concludes by briefly discussing the implications of this new pedagogy for legal education.


When the business parties have agreed on the basic terms of a deal typically requiring far more complex documentation, it now falls upon the lawyers to get it done without blowing the deal.  This essay, chock full of examples, is in the tradition of James Freund's iconic Anatomy of a Merger, teaching both how to see the forest and how to deal with the trees.

September 14, 2018 in Legal Education, Scholarship, Teaching | Permalink | Comments (0)

Thursday, September 13, 2018

Hemel Presents Beyond The Marriage Tax Trilemma Today At Northwestern

Hemel (2018)Daniel Hemel (Chicago) presents Beyond the Marriage Tax Trilemma at Northwestern today as part of its Advanced Topics in Taxation Workshop Series hosted by Sarah Lawsky:

For decades, the famous “marriage tax trilemma” has played a central role in discussions of the tax treatment of the family unit. The “trilemma” refers to the mathematical impossibility of constructing a tax system that imposes the same tax liability across all married couples with the same income (couples neutrality), neither encourages nor penalizes marriage (marriage neutrality), and taxes higher income individuals at higher rates (progressivity). Numerous articles have proposed responses to the trilemma that choose two of the legs over a third or that seek to split the difference among the competing neutrality norms that the trilemma casts as desirable. Most casebooks, meanwhile, use the trilemma to introduce students to the policy debate over the taxation of marriage and the household.

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September 13, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Mehrotra Presents A Comparative History Of U.S. Resistance To The VAT Today At Boston College

Mehrotra (2017)Ajay K. Mehrotra (American Bar Foundation & Northwestern) presents The VAT Laggard: A Comparative History of U.S. Resistance to the Value-added Tax at Boston College today as part of its Tax Policy Workshop Series hosted by Jim Repetti, Diane Ring, and Shu-Yi Oei:

This project explores how and why the United States has historically rejected national consumption taxes. Nearly all developed countries, and many in the developing world, have some type of a national consumption tax, frequently in the form of a value-added tax (VAT). The United States is an exception. This project focuses on the fundamental question: why no VAT in the United States? To address this overall research question, this project explores three key historical periods.

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September 13, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Oei & Ring: Leak-Driven Tax Law

Shu-Yi Oei (Tulane) & Diane M. Ring (Boston College), Leak Driven Law, 65 UCLA L. Rev. 532 (2018):

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

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September 13, 2018 in Scholarship, Tax | Permalink | Comments (0)

Lateral Moves By BigLaw Partners: Age And Gender Implications

P. Cecchi-Dimeglio (Harvard) & H.A. Simons (Ropes & Gray, Boston), Lateral Moves: An Empirical Investigation of Cyclicality, Directional Mobility, and 5-Year Retention Rate by Gender and Age Cohort, 42 J. Legal Prof. 171 (2018):

The present empirical study examines the movements of lateral partners across Big Law firms in the context of what is known as "boundaryless career" movements. We provide statistical evidence on the patterns of the lateral moves of 2,353 partners who moved between AmLaw 100 firms between 2010 through 2012. Our research explores the cyclicality and directional mobility (upward versus downward in terms of new firm profit per partner (PPP) rank and absolute level of new firm PPP rank) of partner moves and their relationship to five-year retention rate (5 years from the initial move) from a gender and age cohort perspective.

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September 13, 2018 in Legal Education, Scholarship | Permalink | Comments (1)

Senate Confirms Pepperdine Law Grad Chuck Rettig As IRS Commissioner

RettigWall Street Journal, Senate Confirms Charles Rettig as IRS Commissioner:

The Senate confirmed Charles Rettig to run the Internal Revenue Service, giving the veteran California tax lawyer one of the toughest, most thankless jobs in the federal government.

Mr. Rettig, who spent his career representing wealthy taxpayers and businesses in complex disputes with the government, gets a term that runs until November 2022. He will replace David Kautter, the Treasury Department’s top tax policy official, who has been acting as IRS commissioner.

The Senate voted 64-33 in favor of Mr. Rettig’s confirmation. All Republicans who were present joined with 15 Democrats to back the nomination.

Mr. Rettig will run an agency struggling with flat or shrinking budgets, aging computer systems and increased demands from Congress. Last year, the IRS audited 0.62% of individual tax returns, the lowest rate since 2002. In 2017, the agency had 19% fewer employees than in 2010.

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September 13, 2018 in Legal Education, Tax | Permalink | Comments (2)

Job Satisfaction Among Tenured U.S. Law Professors

Katherine Y. Barnes (Arizona) & Elizabeth Mertz (Wisconsin), Law School Climates: Job Satisfaction Among Tenured US Law Professors, 43 Law & Soc. Inquiry 441 (2018)

In this article, we combine quantitative and qualitative methods to investigate why post‐tenure law professors of color and women professors within the US legal academy are differentially dissatisfied with their work lives. Previous social science research has indicated lingering difficulties for professionals from traditionally marginalized groups as they advance to higher levels. Post‐tenure law professors have been understudied relative to similar senior‐level professionals. Mixed methods allow us to isolate institutional structure and implicit cultural bias as key mediators of this dissatisfaction, converging on issues of respect, voice, and collegiality as crucial. We use the example of the legal academy to show how empirical research can shed important light on the realities of legal professionals—here, the faculty who are training the next generation of US attorneys. Following in the new legal realist tradition, we demonstrate the power of mixed empirical methodologies for grasping social realities pertinent to law.

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

Villanova Seeks To Hire Director Of Its Graduate Tax Program

Villanova Grad Tax Program LogoVillanova is seeking to fill a faculty position and is in the process of a national search for a new Director of the Graduate Tax Program. The Graduate Tax Program is jointly run by the Law School and School of Business, and offers a Masters of Laws for lawyers and Masters in Tax for accountants.

The program is innovative and includes an extensive suite of online classes and classes on the ground. Villanova is looking for an experienced practitioner with teaching experience and management skills.

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September 13, 2018 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

Hemel & Kamin On Treasury's New SALT Regulations

David Kamin (NYU), Treasury’s SALT Regulations:

Treasury recently released regulations targeted at one of the strategies states are using to try to effectively maintain the deductibility of state and local taxes paid byindividuals. The regulations aim to stop states from doing so by creating charitable donation programs. These are programs in which residents give money to certain funds or organizations, take a charitable deduction for their giving, and then receive a tax credit — often nearly a one-for-one credit — reducing their state taxes in return. As a result, non-deductible state and local taxes get replaced by what is ostensibly charitable giving.

Treasury’s proposed regulations aim to stop these maneuvers by applying the quid pro quo doctrine to state and local tax benefits. Where applied (and it is applied inconsistently), the quid pro quo doctrine suggests that the amount of the charitable deduction is the difference between the value of what someone gives to a charity and what they get back in return if anything. It hadn’t previously been extended to state tax benefits, but the proposed regulation does so if those benefits exceed certain de minimis thresholds.

The question then is whether Treasury has the authority to take this action. My view is that it does have the discretion to go in this general direction, despite this representing a significant change in the treatment of state tax benefits. To be sure, the SALT cap is still deeply flawed, but, here, Treasury went in a reasonable direction given the mess it was handed. Key is that Treasury chose to treat the old tax credit programs in often “red” states the same as the new tax credit programs in the “blue” states. The possible alternative of discriminating between the red-state and blue-state programs would likely have been based on arbitrary and capricious reasoning in my view and thus should have been struck down by the courts.

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September 13, 2018 in Tax | Permalink | Comments (0)

Wednesday, September 12, 2018

Goldin Presents Complexity And Take-up Of The Earned Income Tax Credit Today At Michigan

Goldin (2017)Jacob Goldin (Stanford) presents Complexity and Take-up of the Earned Income Tax Credit (reviewed by Ari Glogower (Ohio State) here) at Michigan as part of its Tax Policy Workshop Series hosted by Reuven Avi-Yonah

Millions of low-income Americans fail to claim tax benefits for which they are eligible, possibly because the rules governing the benefits are extraordinarily complex. I consider efforts to increase tax benefit take-up in light of this complexity. A key fact is that the vast majority of tax filers today prepare their taxes with assisted preparation methods (APMs) like software or professional assistance. APMs eliminate some – but not all – of the barriers to claiming tax benefits for which one is eligible. With respect to claiming the Earned Income Tax Credit (EITC), I argue that most of the relevant complexity is the type that is eliminated by APMs. Consequently, efforts to increase EITC take-up should focus on inducing EITC-eligible individuals to file a tax return using an APM. In contrast, efforts aimed at increasing awareness of the credit (of the type widely employed by governments and nonprofits today) are less likely to be successful, except to the extent they themselves induce an increase in tax filing. Reforms that appear unrelated to a tax benefit may dramatically affect the benefit’s take-up by altering incentives to file a return.

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September 12, 2018 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Stark Presents State Charitable Tax Expenditures Before And After The TCJA Today At Minnesota

Stark (2014)Kirk Stark (UCLA) presents State Charitable Tax Expenditures Before and After the TCJA at Minnesota as part of its  Perspectives on Taxation Lecture Series hosted by Kristin Hickman:

Many states have long provided 100% tax credits for gifts to certain state-designated transferees, while other states recently have enacted similar but less generous credits for gifts to state-established funds. Both types of credits raise the question whether a donor may claim a full charitable contribution deduction for such gifts or instead must reduce the deduction amount by the value of the state tax savings arising from the gift. If a full deduction can be claimed despite the state tax savings, as the IRS has long allowed, then donors can effectively convert nondeductible taxes to deductible gifts.

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

AccessLex Institute Awards $515,000 Grant To State Bar Of California For Job Analysis Study

California State Bar (2014)AccessLex Institute Awards Grant to State Bar of California for Job Analysis Study:

In step with its ongoing efforts to improve access, affordability and value in legal education, AccessLex Institute has awarded a grant of $515,000 to the State Bar of California to build on studies performed last year to address the state’s bar exam passage rate and other matters related to the exam. In 2017, the State Bar of California conducted a series of tests to evaluate various components of the California Bar Exam, including the pass line and the alignment of the subject matters on the exam in relation to the expected knowledge and skills of entry-level attorneys. While the studies represented a milestone in taking a comprehensive assessment of the California Bar Exam, the conclusions were limited partly due to the lack of appropriate information from an attorney job analysis study.

With funding from AccessLex, the State Bar of California is planning a California Attorney Job Analysis Study to collect detailed, empirical data about how attorneys in their daily routines use their knowledge and skills to perform their tasks with competency. Study results will set the foundation for revisiting issues with the bar exam pass line and content, as well as exam format and other aspects of the test.

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

Charlotte Law School Agrees To Pay $2.65m To Settle Accreditation Lawsuit

Charlotte Logo (2016)Law360, Law School Agrees To Pay $2.65M To End Accreditation Suit:

The Charlotte School of Law has agreed to pay $2.65 million to end a proposed class action alleging the shuttered school misrepresented and failed to inform students and prospective students about its compliance with American Bar Association standards and the status of its accreditation once the ABA had placed it on probation.

In a joint motion filed in North Carolina federal court, former students and the law school said Tuesday they had settled a consolidated proposed class action accusing the former institution of bilking students out of money even as it shirked its educational mission.

Students acknowledged that the settlement fund will not come close to reimbursing each of the 2,500 potential class members the average of $44,000 each spent on single year of tuition.

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

2019 U.S. News College Rankings

US NewsU.S. News & World Report has released its 2019 College Rankings. Here are the Top 25 National Universities and Liberal Arts Colleges (along with their 2016-2018 rankings):

2019

Rank

 

National Universities

2018

Rank

2017

Rank

2016

Rank

1

Princeton

1

1

1

2

Harvard

2

2

2

3

Chicago

3

3

3

3

Columbia

5

5

4

3

MIT

5

7

7

3

Yale

3

3

3

7

Stanford

5

5

4

8

Duke

9

8

8

8

Penn

8

8

9

10

Johns Hopkins

11

10

10

10

Northwestern

11

12

12

12

Cal-Tech

10

12

10

12

Dartmouth

11

11

12

14

Brown

14

14

14

14

Vanderbilt

14

15

16

16

Cornell

14

15

15

16

Rice

14

15

18

18

Notre Dame

18

15

18

19

UCLA

21

24

23

19

Washington (St. Louis)

18

19

15

21

Emory

21

20

21

22

Georgetown

20

20

21

22

UC-Berkeley

21

20

20

22

USC

21

23

22

25

Carnegie Mellon

25

24

23

25

Virginia

25

24

26

Pepperdine is ranked #46 (tied with Georgia and Illinois).

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September 12, 2018 in Law School Rankings, Legal Education | Permalink | Comments (6)

ABA Tax Section Releases 18th Annual Law Student Tax Challenge Problem

LSTCThe ABA Tax Section has released the J.D. Problem (rules; entry form) and LL.M. Problem (rules; entry form) for the 18th Annual Law Student Tax Challenge:

An alternative to traditional moot court competitions, the Law Student Tax Challenge asks two-person teams of students to solve a cutting-edge and complex business problem that might arise in everyday tax practice. Teams are initially evaluated on two criteria: a memorandum to a senior partner and a letter to a client explaining the result. Based on the written work product, six teams from the J.D. Division and four teams from the LL .M. Division receive a free trip (including airfare and accommodations for two nights) to the Section of Taxation 2019 Midyear Meeting, January 17-19, 2019 in New Orleans, where each team will defend its submission before a panel of judges consisting of the country’s top tax practitioners and government officials, including tax court judges. The competition is a great way for law students to showcase their knowledge in a real-world setting and gain valuable exposure to the tax law community. On average, more than 50 teams compete in the J.D. Division and more than 30 teams compete in the LL .M. Division.

IMPORTANT DATES

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September 12, 2018 in ABA Tax Section, Tax, Teaching | Permalink | Comments (1)

Committee Recommends Removal Of Boalt Name From UC-Berkeley Law School Building Due To John Boalt's 1870s Anti-Chinese Racism

Trump Tax Cuts Will Spur Even Greater Migration From High-Tax States To Low-Tax States

Chris Edwards (Cato Institute), Tax Reform and Interstate Migration:

This report looks at changes to individual income taxes, particularly the state and local tax (SALT) deduction. The 2017 tax law cut individual tax rates and roughly doubled standard deductions, but it also imposed a $10,000 cap per return on SALT deductions. Those changes are expected to reduce the number of households that deduct state and local income, sales, and property taxes from 42 million in 2017 to 17 million in 2018.

Millions of households will feel a larger bite from state and local taxes and will thus become more sensitive to tax differences between the states. The tax law may prompt an outflow of mainly higher-earning households from higher-tax states to lower-tax states.

Even before the new tax law, a substantial number of Americans were moving from higher-tax to lower-tax states. Looking at migration flows between the states in 2016, almost 600,000 people with aggregate income of $33 billion moved, on net, from the 25 highest-tax states to the 25 lowest-tax states in that single year. 

Of the 25 highest-tax states, 24 of them had net outmigration in 2016. Of the 25 lowest-tax states, 17 had net in-migration. The largest out-migration is from high-tax New York, whereas the largest in-migration is to low-tax Florida. Florida is enjoying an influx of wealthy entrepreneurs and retirees looking for a tax climate that boasts no income tax or estate tax.

Figure 1

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September 12, 2018 in Tax, Think Tank Reports | Permalink | Comments (2)

Tuesday, September 11, 2018

Remembering September 11th At Pepperdine

Waves

Tenth Annual Waves of Flags Display Honors 9/11 Victims:

For the 10th consecutive year, Pepperdine University’s Alumni Park will become home to the University’s annual Waves of Flags installation that, since 2008, has commemorated the lives lost in the terror attacks of September 11, 2001.

Waves of Flags will feature a display of a total of 2,977 full-size flags—2,887 American flags for each American life lost and 90 various international flags representing the home countries of those from abroad who died in the 9/11 attacks.

The installation became a University tradition in 2008 when the Pepperdine College Republicans, inspired by a similar display, wanted to bring the tribute to the University. Since then, Waves of Flags has become a significant service project for the Pepperdine community. On Saturday, September 8, 2018, a group of more than 200 volunteers, including Pepperdine faculty, staff, students, and Malibu community members, joined together to install and raise the flags.

In addition to the Waves of Flags installation, the Pepperdine community is invited to observe September 11 in honor of the heroes who were lost in 2001 with a brief service to remember the fallen and pray for peace and reconciliation. The service, hosted by the Pepperdine Office of the President and Office of the Chaplain, will be held Tuesday, September 11, at noon at the the Thomas E. Burnett, Jr., Heroes Garden on the Malibu campus. Heroes Garden is a public space for visitors to reflect and honor all those who live heroic lives, including Pepperdine alumnus Thomas E. Burnett, Jr. (MBA ’95), a passenger on United Flight 93 whose life was cut short in the 9/11 attacks. A plaque at the garden's entrance reads: "Dedicated to freedom's heroes of September 11, 2001, and the passengers of United Airlines Flight 93, among them Pepperdine alumnus Thomas E. Burnett, Jr., who sacrificed their lives to overcome terrorists’ intent on destroying American lives and landmarks in our nation's capital. We shall never forget."

Heores Garden

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

Brunson Presents God And The IRS At UC-Irvine

BrunsonSam Brunson (Loyola-Chicago) presented God and the IRS: Accommodating Religious Practice in the Tax Law (Cambridge University Press 2018) yesterday at UC-Irvine as part of its Tax Policy Colloquium Series:

Seventy-five percent of Americans claim religious affiliation, which can impact their taxpaying responsibilities. In this illuminating book, Samuel D. Brunson describes the many problems and breakdowns that can occur when tax meets religion in the United States, and shows how the US government has too often responded to these issues in an unprincipled, ad hoc manner. God and the IRSoffers a better framework to understand tax and religion. It should be read by scholars of religion and the law, policymakers, and individuals interested in understanding the implications of taxation on their religious practices.

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

Crawford & Waldman: The Unconstitutional Tampon Tax

Bridget J. Crawford (Pace) & Emily Gold Waldman (Pace), The Unconstitutional Tampon Tax, 52 U. Rich. L. Rev. ___ (2018):

Thirty-six states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax — commonly called the “tampon tax” — represents an expense that girls and women must bear on top of the cost of biologically-necessary items that they need in order to go to school, work, and otherwise participate in public life. This Article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous tax classification of these products amounts to a facial classification on the basis of sex. There is no “exceedingly persuasive justification” for taxing menstrual hygiene products, and so the tax must fail intermediate scrutiny. Even assuming arguendo that the tampon tax is not viewed as a tax on female sex, it is still unconstitutional because it cannot pass rational basis review.

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September 11, 2018 in Scholarship, Tax | Permalink | Comments (1)

Using Performance Tests To Enhance Student Engagement While Furthering Assessment, Bar Passage, and Other ABA Accreditation Objectives

Sara Berman (AccessLex), Integrating Performance Tests into Doctrinal Courses, Skills Courses, and Institutional Benchmark Testing: A Simple Way to Enhance Student Engagement While Furthering Assessment, Bar Passage, and Other ABA Accreditation Objectives, 42 J. Legal Prof. 147 (2018):

This article explores ways to weave performance tests into the law school curriculum to enhance student engagement and active learning, and to further ABA-mandated assessment and accreditation objectives. Some options include using them as discrete simulation exercises in doctrinal courses, as content for certain dedicated skills courses, or as possible institutional benchmark testing.

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

The 100 Most Influential People In Tax And Accounting

Top 100 4I am honored to be included on the list of Accounting Today's 100 Most Influential People in Tax and Accounting for the thirteenth consecutive year:

Even after his elevation to dean, Caron remains one of the most trusted voices on tax in the blogosphere, helping direct the conversation on multiple fronts.

I am honored to be on the Top 100 list with such high-powered people in the tax and accounting worlds, including:

  • Jon Baron (Managing Director, Thomson Reuters Tax & Accounting)
  • Wayne Berson (CEO, BDO)
  • Kevin Brady (Chair, U.S. House Ways & Means Committee)
  • Wesley Bricker (Chief Accountant, SEC)
  • Jay Clayton (Chair, SEC)
  • Lynne Doughtie (Chair & CEO, KPMG)
  • William Duhnke (Chair, PCAOB)
  • Kimberly Ellison-Taylor (Immediate Past Chair, AICPA)
  • Cathy Engelbert (CEO, Deloitte)
  • George Farrah (Executive Director, Bloomberg Tax)
  • J. Russell George (Treasury Inspector General for Tax Administration)

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September 11, 2018 in About This Blog, Legal Education, Tax | Permalink | Comments (1)

Wright & Zucman: The Exorbitant Tax Privilege

Thomas Wright (University of Sheffield) & Gabriel Zucman (UC-Berkeley), The Exorbitant Tax Privilege (data):

We estimate and attempt to explain the evolution of the taxes paid by U.S. multinationals on their foreign profits since 1966. In the oil sector, taxes paid to oil-producing States have been contained, allowing U.S. firms to earn high after-tax returns. Foreign taxes fell abruptly after the first Gulf War. In sectors other than oil, the effective foreign tax rate has fallen by half since the late 1990s. Almost half of this decline owes to the rise of profit shifting to tax havens. The low foreign taxes paid by U.S. multinationals can explain half of the U.S. cross-border return differential.

Zucman

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

Ex-Law Prof Gets Green Light In Bias Case Claiming CUNY Retaliated Against Her After She Was Diagnosed With Multiple Sclerosis

CUNYLaw.com, Ex-Law Prof Gets Green Light in Bias Case Against CUNY:

A former law professor in charge of a Skadden-sponsored diversity program at City College of New York can move forward with her retaliation suit against the school.

U.S. District Judge Paul Engelmayer of the Southern District of New York on Sept. 7 denied City College’s motion to dismiss Lynda Dodd’s suit on the grounds that she had supplied enough evidence to further argue her claims that administrators undermined her tenure bid after she was diagnosed with multiple sclerosis.

“Dodd has pleaded a number of instances in which protected acts—i.e., complaints that Dodd’s employer reasonably should have understood to concern disability discrimination or retaliation—were followed shortly thereafter by adverse employment actions,” Engelmayer wrote in his opinion. ..

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

Sanchirico: GOP Tries To Tighten The Screws On Dems With Tax Reform 2.0

The Hill op-ed:  GOP Tries to Tighten the Screws on Dems With 'Tax Reform 2.0', by Chris Sanchirico (Pennsylvania):

This week, House Republicans are poised to release what they are calling “Tax Reform 2.0," their update to last December’s massive rewrite of the tax code. GOP leaders promise a floor vote by the end of the month.

As a matter of substance, and against the backdrop of December’s historic changes, the new proposals are more “0” than “2." But as a matter of politics, they put Democrats in a tough position heading into the midterm elections. Still Democrats may have some options. ...

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September 11, 2018 in Tax | Permalink | Comments (2)

Monday, September 10, 2018

Cauble: Taxing Selling Partners

Emily Cauble (DePaul), Taxing Selling Partners, 94 Wash. L. Rev. ___ (2018):

Under current law, when a partner sells a partnership interest, the resulting gain or loss is treated as capital gain or loss, except to the extent that the partnership holds certain items whose sale would result in gain or loss that was not capital. The purpose of the current regime appears to be to prevent taxpayers from obtaining more favorable treatment by selling an interest in a partnership than what would result if the partnership were to sell its underlying assets. Given this apparent aim of legislators, current law produces results for taxpayers that are both unduly favorable and unduly unfavorable. In particular, despite current law’s aim to equate the tax treatment of the sale of a partnership interest with the tax treatment of the sale of underlying assets (at least with respect to the character of income recognized), differences persist. Sometimes sale of a partnership interest produces more favorable tax treatment than the sale of underlying assets. Other times, sale of a partnership interest triggers less favorable tax treatment than a sale of underlying assets.

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

ABA Report Finds Persistent Gender And Racial Bias In The Legal Profession

ABA

UC-Hastings College of Law Center for Worklife Law, You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession

New York Times, Lawyers Say They Face Persistent Racial and Gender Bias at Work:

Women and people of color in the legal profession continue to face barriers in hiring, promotions, assignments and compensation, according to a study released Thursday by the American Bar Association. ...

The researchers had 2,827 lawyers fill out online surveys in spring 2016 about their experiences at work. The surveys were distributed by the bar association’s email list and other professional networks. The association has 400,000 members.

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September 10, 2018 in Legal Education | Permalink | Comments (0)

Thimmesch, Shanske & Gamage: Wayfair And The Retroactivity Of Constitutional Holdings

Adam B. Thimmesch (Nebraska), Darien Shanske (UC-Davis) & David Gamage (Indiana), Wayfair and the Retroactivity of Constitutional Holdings, 88 State Tax Notes 511 (May 7, 2018):

This essay analyzes the issue of retroactivity with respect to the Supreme Court case of South Dakota v. Wayfair.

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

One Way To Show Students You Care — And Why You Might Want To Try It

Chronicle of Higher Education, One Way to Show Students You Care — And Why You Might Want to Try It:

For years, Reesa-Marie Dawkins has included on her course syllabi a note to students titled: “When life happens … send me an email.” In several paragraphs, Dawkins, an adjunct professor for the University of Alaska system who teaches statistics and logistics online, describes the kinds of personal challenges students might confront during the term, and urges them to seek her help when they do. “I will help you get through it,” she writes, “(no matter what it is).”

Dawkins’s message is unusually detailed and personal, but it’s part of an emerging pattern in which instructors seek to communicate their care and concern for students from the outset of a course. Professors, of course, are no monolith, and the matter of how involved they ought to get in students’ lives is in flux. Some point to changes in the college-going population — today’s students are less advantaged than those of years past, and more likely to experience depression and anxiety — and see a need to intervene more proactively.

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September 10, 2018 in Legal Education | Permalink | Comments (0)

Lesson From The Tax Court: No Stopping The Perpetual Debate About Conservation Easements

Tax Court (2017)The recent case of Harbor Lofts Associates, Crowninshield Corporation, Tax Matters Partner v. Commissioner, 151 T.C. No. 3 (Aug. 27, 2018) teaches yet another lesson on the importance of the perpetuity requirements when claiming a charitable deduction for the donation of a conservation easement. Last October I blogged about another conservation easement case, Palmolive Building Investors v. Commissioner, 149 T.C. No. 18 (Oct. 10, 2017). I did not get into the substance of the law in that blog, but instead focused on the Golsen rule and why the Tax Court needed to put its best analytical foot forward. I referred readers to Peter Reilly’s great blog post on Palmolive for the substance.

I encourage readers who don't know the Golsen rule to review the Golsen post, because Harbor Lofts is a case that the taxpayers may appeal to the First Circuit Court of Appeals. That is important because it’s the First Circuit who disagreed with the Tax Court’s position regarding the subordination requirement at issue in Palmolive. While today’s case involves a different part of the perpetuity requirement (and so there is no First Circuit precedent to bind the Tax Court), the Tax Court is again agreeing with the IRS in reading the perpetuity requirement strictly, this time finding that a long-term lease is not sufficient to meet the perpetuity requirements. If the Tax Court’s opinion is appealed to the First Circuit, the First Circuit may decide to take the same liberal interpretation of the perpetuity requirement as it did in Kaufman v. Shulman, 687 F.3d 21 (1st Cir. 2012), the case that was like Palmolive.

Today’s post will therefore comment on the Tax Court’s approach to interpreting the perpetuity requirements for conservation easements.  Long story short, I agree with it.  The First Circuit’s liberal approach, while understandable, is wrong.  This post will explain why. To do so, I will have to dip into the substantive law with the caveat, as always, that what I say is subject to correction from alert readers who know this area better than I do.  In particular, I will doubtless expose my ignorance by asking why the taxpayers did not structure the donation differently.  It was likely for a reason that I just cannot see.  The fun starts below the fold. 

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September 10, 2018 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure | Permalink | Comments (1)

Has The Alternative Legal Provider Market Already Peaked?

Prism Legal, Why Alternative Legal Provider Market Share May be Limited:

Numerous recent articles and blog posts cite the rise of alternative legal service providers, prompted in part by EY acquiring Riverview Law and and UnitedLex deals. ... In a nutshell, all combine multidisciplinary teams, lower cost labor, process focus, and technology investment to deliver more value to clients than do law firms. That’s the argument and I generally agree with it. Nonetheless, I think that alternative legal provider market share may be limited. Here’s why ...

I fear that many of the discussions about alternative legal providers taking share implicitly assume ceteris paribus. The alternative continues growing and nothing else changes significantly. They discount steps law firms take to respond to alternate legal provider growth.

The real world is mutatis mutandis: market players respond to competition. Specifically, I see law firms making many changes. ...

The only time-series data I have found about the alternative legal provider market share comes from the Altman Weil CLO survey. It shows flat if not shrinking share of client spend:

LPO

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September 10, 2018 in Legal Education | Permalink | Comments (0)

Varyani Posts Tax Papers On SSRN

TaxProf Blog Weekend Roundup

Sunday, September 9, 2018

Baude & Volokh: Compelled Subsidies And The First Amendment

William Baude (Chicago) & Eugene Volokh (UCLA), Compelled Subsidies and the First Amendment, 132 Harv. L. Rev. ___ (2018):

Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional? For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy.

In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don’t suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points. But we think the majority — and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar — erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of — likewise with having to pay agency fees.

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September 9, 2018 in Scholarship, Tax | Permalink | Comments (1)

Legal Writing Professors: A Story Of A Hierarchy Within A Hierarchy

Following up on my previous posts (links below):  LawProfBlawg, Legal Writing Professors: A Story Of A Hierarchy Within A Hierarchy:

Today’s column is about a different type of hierarchy in academia. This column is dedicated to some of the hard-working colleagues who go to faculty meetings but don’t speak much, who do a lot of the thankless committee work at many schools, and who spend more time with students than most other law professors. The colleagues who, for the most part, don’t have tenure, get paid a lot less, and in many schools often have smaller offices away from their tenured companions. ...

Good data exists about the structures afforded to legal writing professors, because they actually take meaningful surveys with data. For the 2017 survey, only 21 percent of the legal writing professors described themselves as being in traditional tenure or tenure track positions. About 7 percent involve programmatic tenure. The remainder of legal writing professors are in either 405(c) status (longer term, presumptively renewable contracts), short-term non-renewable, or in five-year or more contracts that are not presumptively renewable. In other words, a lot of legal writing professors are in precarious positions.

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

Will Republicans Press On With Tax Cuts 2.0 Despite SALT Indigestion?

Bloomberg, Republicans Consider Dropping Second Phase of Tax Cuts After SALT Backlash:

House Republicans had planned to use a second phase of tax cuts to force Democrats into a difficult vote ahead of mid-term elections. Now, party leaders may drop the effort, fearing it could backfire by antagonizing voters in some hotly contested Congressional districts.

The proposal would make the individual changes in last year’s overhaul permanent -- including the $10,000 annual cap for state and local tax deductions, one of the law’s most disputed provisions. That would put Republican lawmakers in high-tax states like New York, New Jersey and California in the tricky position of either supporting the cap, or voting against tax cuts backed by their party.

Largely because of the SALT cap dilemma, House Republicans are hitting the pause button on “Tax Reform 2.0” legislation, according to three GOP aides who requested anonymity to speak about the matter. The lawmakers want to weigh the political benefits and risks of a vote on the bill in the coming weeks, and assess if they have enough support to pass it.

Bloomberg, Ryan Says Vote on New Tax Cuts Still Planned, Despite SALT Hangups:

House GOP leaders are forging ahead with a vote on a second phase of tax cuts this month, despite dissension from Republicans in high-tax states who say the measure would hurt their voters.

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

NY Times: Is Yale Law Student Note ('Amazon’s Antitrust Paradox') Seminal Reframing Of Monopoly Law Or 'Hipster Antitrust'?

Amazon logo (2018)New York Times, Amazon’s Antitrust Antagonist Has a Breakthrough Idea:

With a single scholarly article, Lina Khan, 29, has reframed decades of monopoly law.

Amazon has more revenue than Facebook, Google and Twitter put together, but it has largely escaped sustained examination. That is beginning to change, and one significant reason is Ms. Khan.

In early 2017, when she was an unknown law student, Ms. Khan published Amazon’s Antitrust Paradox [126 Yale L.J. 710 (2017)] in the Yale Law Journal.  Her argument went against a consensus in antitrust circles that dates back to the 1970s — the moment when regulation was redefined to focus on consumer welfare, which is to say price. Since Amazon is renowned for its cut-rate deals, it would seem safe from federal intervention.

Ms. Khan disagreed. Over 93 heavily footnoted pages, she presented the case that the company should not get a pass on anticompetitive behavior just because it makes customers happy. Once-robust monopoly laws have been marginalized, Ms. Khan wrote, and consequently Amazon is amassing structural power that lets it exert increasing control over many parts of the economy. ...

The paper got 146,255 hits, a runaway best-seller in the world of legal treatises. That popularity has rocked the antitrust establishment, and is making an unlikely celebrity of Ms. Khan in the corridors of Washington.

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September 9, 2018 in Legal Education, Scholarship | Permalink | Comments (3)

Saturday, September 8, 2018

This Week's Ten Most Popular TaxProf Blog Posts

ABA: Florida Coastal Remains Out of Compliance With Law School Accreditation Standards

Florida Coastal (2017)ABA Journal, Florida Coastal Still Out of Compliance With Accreditation Standards, ABA Legal Ed Council Says:

The ABA Section of Legal Education and Admissions to the Bar has affirmed its findings that Florida Coastal School of Law is out of compliance with certain accreditation standards—increasing the likelihood that the matter will be settled in court.

The decision rebuffs an appeal from Florida Coastal, which the ABA originally found out of compliance in October of 2017. The council found after a March hearing that it had come into compliance with one of the standards but maintained that most of the problems it had identified still existed.

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September 8, 2018 in Legal Education | Permalink | Comments (1)

Lederman Presents Information Matters In Tax Enforcement At Miami

Lederman (2018)Leandra Lederman (Indiana) presented Information Matters in Tax Enforcement (with Joseph Dugan) at Miami on Thursday as part of its Faculty Speaker Series:

Most legal and economics scholars recognize that the government needs information about taxpayers’ transactions in order to determine whether their reporting is honest, and that third-party reporting helps the government obtain that information. Yet, a recent paper by Professor Wei Cui [Taxation Without Information: The Institutional Foundations of Modern Tax Collection] asserts that “modern governments can practice ‘taxation without information.’” Cui’s argument rests on two premises: (1) “giving governments effective access to taxpayer information through third parties does not explain the success of modern tax administration” because, he argues, other important taxes, such as the value added tax (VAT), do not involve information reporting; and (2) modern tax administration succeeds because business firms are “sites of social cooperation under the rule of law,” fostering compliance. As this Essay argues, the literature demonstrates that Cui is wrong on both points.

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

Dealing With Helicopter Parents In Law School

ABA Journal, Halting the Hover: Dealing With Helicopter Parents in Law School:

As an associate dean of the University of Houston Law Center, Sondra Tennessee has witnessed her share of helicopter parents. She’s seen parents ask law schools to switch their child’s professor, because they didn’t think he or she was a good fit.

She’s seen them try to get an extended finals date, without their child knowing they contacted the school. She’s also heard of parents contacting potential employers for law students to get more detail about benefits packages. ...

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September 8, 2018 in Legal Education | Permalink | Comments (1)

Friday, September 7, 2018

Weekly SSRN Tax Review And Roundup: Mazur Reviews Lederman's Does Enforcement Reduce Voluntary Tax Compliance?

This week, Orly Mazur (SMU) reviews a new work by Leandra Lederman (Indiana), Does Enforcement Reduce Voluntary Tax Compliance?, 2018 BYU L. Rev. ___ (2018).

Mazur (2017-2)Does tax enforcement reduce voluntary tax compliance by taxpayers? The answer to this question can have significant implications for tax compliance efforts by the IRS and other tax administrations. Recently, a number of scholars have argued that the answer to this question is yes – that tax enforcement and deterrence negatively affect tax compliance by “crowding out” preexisting intrinsic motivations to comply with the tax laws. However, Leandra Lederman’s new work provides compelling evidence to the contrary. Relying on empirical literature, Lederman’s article challenges this assertion and concludes that tax enforcement does not reduce voluntary tax compliance. In fact, enforcement generally fosters tax compliance.

The work begins by explaining the crowding-out theory and its potential application in several non-tax contexts. Although some existing literature predicts that rewards or punishment can, in some cases, reduce intrinsic motivation to engage in a desired behavior, Lederman determines that it is hard to draw firm conclusions from existing studies and, ultimately, these results are not directly helpful in answering the question of whether enforcement reduces voluntary compliance in the tax context.

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September 7, 2018 in Orly Mazur, Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (1)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

WSJ: Temple Rankings Scandal Spotlights MBA Grads’ Swelling Debt

MBA WSJWall Street Journal, Temple Rankings Scandal Spotlights M.B.A. Grads’ Swelling Debt:

When Temple University said in July that its business school had misreported student data for U.S. News & World Report’s annual M.B.A. rankings, the school disclosed another troubling error: It had understated the debt load its typical business student carried after graduation.

U.S. News ranked the online master’s in business administration at Temple’s Fox School of Business as the nation’s best for four years running, including in 2018, before Fox admitted in January to reporting inflated standardized-test scores. Since then, the university has found Fox staff submitted other incorrect information for six additional Fox programs, and in some instances did so “knowingly and intentionally.”

Some of the inaccuracies concern student-debt records. Fox told U.S. News & World Report that 40% of its online M.B.A. students who graduated last year had loans, owing an average of $16,275 apiece. According to the July report, Fox had included graduates with zero loans when calculating students’ debt burdens from 2016 to 2018, which lowered the average amount. Temple declined to say how much debt its approximately 100 online M.B.A. graduates who had loans last year actually held for the $60,000 degree.

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

Testy: The Quantity And Quality Of Law School Applicants: 2018 Edition

Testy (2018)Kellye Testy (President and CEO, Law School Admission Council), The Quantity and Quality of Law School Applicants: 2018 Edition:

So much has changed in legal education since last summer, when Paul and I first teamed up to post the “state of the state” of law school admission. Back then, the numbers were not good, and neither was the morale of law school administrators and faculty. What a difference a year has made!

Paul’s July 31, 2018 blog post declared: “Legal Education Gets Its Mojo Back.” The buzz started at the end of 2017, and the 2018-2019 admission cycle ended with an 8.1 percent increase in law school applicants and 8.7 percent increase in applications. 

There has been much speculation about the reasons for this increase, the largest since 2010, so I will refrain from doing that. I like data, and LSAC has set as a priority to enhance the useful data available to the legal education community. You can now access applicant and LSAT trends data, updated daily on our website, LSAC.org—no password required. I invite you to interact with the data—it is easy to access, and great for presentations. As our new website launches on September 12, you will find additional tools to enhance public information about legal education.

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

Temple Seeks To Hire A Tax Clinician

TempleFrom Alice Abreu (Temple):

Our Sheller Center for Social Justice has an opening for a clinician who will establish and run a clinic.  There is no subject matter limitation for the clinics that form a part of the Center and the search is simply for someone interested in establishing and running a clinic (either live client or systemic advocacy) at the Center; the precise nature of the clinic will depend on the interests and expertise of the individual selected. The selection Committee is interested in considering individuals who might want to establish an Low Income Taxpayer Clinic, so we'd like to circulate the ad for the position as widely as possible within the tax community.

The ad is blow the fold:

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September 7, 2018 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

A Search Firm's Advice For Nailing The First Dean Interview

Chronicle of Higher Education op-ed:  In a First-Round Interview for a Leadership Post, Make Sure You Show the Love, by Zachary A. Smith (Witt/Kieffer):

A job announcement in senior administration lands in your inbox. Perhaps you weren’t intentionally looking for a new job, but something about this one grabs your eye. Maybe it’s the location, the institution’s innovative reputation, the leadership team. Or perhaps it’s simply an opportunity to take a next-level position that stretches your abilities and offers career growth.

Whatever the reason, you decide to explore the opportunity further. As a search consultant, I can tell you: There are appropriate and inappropriate times to kick the tires. But if this is a position you think you really might want, make sure the search committee can’t tell you’re doing that, or your candidacy will fall flat.

In a previous column, I wrote about the "best" attributes of executive-job candidates. This column is about why you need to express sincere interest in the organization and the position in a first-round interview — and how to show the love.

Search committees spend hours locked in hotel conference rooms listening intently to the candidates, observing expressions and presentation styles, deciphering who might be the best fit. They want to see candidates who are equally as invested. Certainly you’re assessing how you would fit them, too. But if you fail to convince the committee that you genuinely want the job (assuming you do), you won’t advance in the process, let alone get an eventual offer. ...

The next step is deciding whether to go if you are offered a first-round interview. My advice: Do the interview only if the odds are greater than 50/50 that you would take the job if it’s offered. ...

How to show the love. So you’ve accepted the first-round interview and are preparing for your initial exposure to the search committee. During the 60- to 75-minute session, your goal should be to put yourself in a position to be invited to the next interview stage. You may have lingering questions, but they will surely go unanswered if you don’t move forward in the process. And you won’t move forward unless the committee members are convinced that you’re truly interested in the job.

Here are some ways to convince them:

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

Cockfield: Shaping International Tax Law And Policy In Challenging Times

Arthur J. Cockfield (Queen's), Shaping International Tax Law and Policy in Challenging Times, 54 Stan. J. Int'l L. 223 (2018):

This Article was prepared for a symposium at Stanford Law School on What's Law Got Do To With It? Examining the Role of Law in a Changing World. The OECD and G20 Base Erosion and Profits (BEPS) project represents the most comprehensive global cooperative effort to date to inhibit aggressive international tax planning and offshore tax evasion — along with related revenue losses. This cooperation promotes agreement on the underlying tax rules that govern cross-border transactions and reduces tax as a barrier to international trade and investment, hence improving global welfare. It remains unclear, however, whether ongoing cooperative solutions outside of tax administration will curtail perceived problems in any significant sense.

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