TaxProf Blog

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

Wednesday, May 9, 2018

Ryznar: Tax Reform On Homeownership

Margaret Ryznar (Indiana-Indianapolis), Tax Reform on Homeownership, 72 U. Miami L. Rev. ___ (2018):

Homeownership is more than just an American dream. In reality, homeownership is a savings vehicle. However, the 2017 tax legislation reduced the tax support for homeownership. The tax reform targeting housing, such as curtailing the deductions for mortgage interest and state and local taxes, frustrates the American public policy of encouraging homeownership.

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

Transform—Don’t Just Tinker With—Legal Education

Gerald P. Lopez (UCLA), Transform—Don’t Just Tinker With—Legal Education, 23 Clinical L. Rev. 471 (2017):

In this two-part article, Part I evaluates how the past decade’s “transformation” of legal education amounts so far to just so much time-honored tinkering. Over the past ten years, most schools changed very little, and the small number that changed a fair amount (overwhelmingly in the second and third years) borrowed directly from what other law schools have been doing for decades. Because we must learn all we can from these recent years (and earlier eras), Part I aspires to present in something like realistic form the institutional, material, and ideological forces we all encounter and too often reproduce. What makes the past decade’s near-ritualistic experience all the more regrettable is that we have available an alternative vision of legal education ready now for a full roll-out. Because this vision traces its origins, its implementation, its improvements to the best of clinical programs in the United States, cynics will doubtlessly scoff. Facing down the disparagers, Part II will sketch the radically different assumptions, methods, and aspirations that define how this vision contrasts with the at best status-quo-plus version of legal education strongly internalized and widely practiced. Part I is not at all the “setup” to Part II, and Part II is not at all an impractical ideal offered to soften the blunt realities portrayed in Part I. The two parts stand alone and belong together, both to chasten and embolden us, at least if we’re willing.

Gerald P. Lopez (UCLA), Transform—Don’t Just Tinker With—Legal Education (Part Two), 24 Clinical L. Rev. 247 (2018):

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

Kades: Natural Property Rights, The Takings Clause, Taxation, And Excessive Rigidity

Eric Kades (William & Mary), The Natural Property Rights Straitjacket: The Takings Clause, Taxation, and Excessive Rigidity, 51 UC Davis L. Rev. 1351 (2018):

Natural property rights theories have become the primary lens through which conservative jurists and scholars view the Constitution’s main property rights provision, the Takings Clause. One of their most striking arguments is that progressive income taxation — applying higher tax rates to higher incomes — is an unconstitutional taking of wealthy taxpayers’ property. This has become part and parcel of well-established battle lines between conservative property rights advocates and their liberal counterparts. What has gone unnoticed is that the very same argument deployed against progressive taxation also deems regressive taxation — applying lower tax rates to higher incomes — an unconstitutional taking of poorer taxpayers’ property. Combined with the stricture against progressive taxation, this means that natural property rights theory maintains that there is one and only one constitutional income tax: a “flat” that applies the same rate to incomes at all levels.

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May 9, 2018 | Permalink | Comments (0)

Why Are Law Professors So Unhappy? — Part Five

Jeffrey Harrison (Florida), The Best Job in the World:

Law teaching is a pretty great job. You are paid more than most academics (although this is lost on most law professors who have never lived the life of a real academic) and you get to do pretty much whatever you like assuming you are intellectually curious. A few times a week you teach a group of students and the only real downside is about two weeks of grading twice a year.

Cool job, right? So why do I see so many people who seem to be so unhappy. Drama is pervasive, Demands are made about the most trivial things. There are always conspiracies afoot. Someone else is racist, sexist, or homophobic, that is, if you listen to the gossip. High blood pressure is far from rare. Emails are sent that demand attention yesterday. There is never enough for whichever "me" you happen to be.

Is it the job or is that people cannot accept having one of he best jobs in the world? What is this with the office to office gossip, the complaints about the wrong room, the wrong secretary, and imagined slights? Really, do people need to be unhappy about something? ...

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May 9, 2018 in Legal Education | Permalink | Comments (8)

Rosenberg: Codification Of The Economic Substance Doctrine — Substantive Impact And Unintended Consequences

Rebecca Rosenberg (Ohio Northern), Codification of the Economic Substance Doctrine: Substantive Impact and Unintended Consequences, 14 Hastings Bus. L.J. ___ (2018):

Section 7701(o) of the Internal Revenue Code of 1986 (the “Code”) imports the judicial doctrine of economic substance into statutory language (i.e., it “codifies” the doctrine). The economic substance doctrine provides that certain tax benefits can be denied if they go beyond congressional intent, even if all of the literal requirements of the Code and its regulations are met. The doctrine is perpetually controversial and has been the subject of recent litigation.

This article argues that codification changed the economic substance doctrine (rather than just copying it into statutory form) and produced unintended consequences, many of which have gone unnoticed. The article analyzes the language and structure of Section 7701(o) in order to explain its actual legal consequences and its substantive differences from previous case law.

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

Tuesday, May 8, 2018

The Ugly Truth Of Being A Black Professor In America

Chronicle of Higher Education Review:  The Ugly Truth of Being a Black Professor in America, by George Yancy (Emory):

"Dear Nigger Professor." That was the beginning of a message that was sent to me. There is nothing to be cherished here, despite the salutation. Years ago, Malcolm X asked, "What does a white man call a black man with a Ph.D.?" He answered: "A nigger with a Ph.D."

The message came in response to an op-ed I published in The New York Times in December 2015. I’d spent much of that year conducting a series of interviews with philosophers about race. I wanted to hold a disagreeable mirror up to white readers and ask that they take a long, hard look without fleeing. My article, "Dear White America," took the form of a letter asking readers to accept the truth of what it means to be white in a society created for white people. I asked them to tarry with the ways in which they perpetuate a racist society, the ways in which they are racist. In return, I asked for understanding and even love — love in the sense that James Baldwin used the term: "Love takes off the masks that we fear we cannot live without and know we cannot live within."

Instead, I received hundreds of emails, phone messages, and letters, an overwhelming number of which were filled with racist vitriol. My university did its important and necessary part — top administrators assured me that my academic freedom was protected. Yet my predicament was not easy. Campus police had to monitor my office. Departmental instructions were clear: No one was to provide any strangers with my office hours. I needed police presence at my invited talks at other universities. It all felt surreal — and dangerous.

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May 8, 2018 in Legal Education | Permalink | Comments (11)

SSRN e-Journal Rankings By Average Downloads Per Paper

SSRN LogoRyan Whalen (University of Hong Kong Faculty of Law), SSRN e-Journals and Downloads:

I did a bit of SSRN/LSN hacking, and determined that ... there are some pretty major differences in the average number of downloads different LSN journals get. The below relies on data from just under a quarter million papers that are classified to LSN e-journals, and only extends to LSN classifications (i.e. working paper series or other SSRN e-journal classifications are not included).

The Tax Law & Policy Journals rank 54th out 94 SSRN e-journals, with 185 downloads per paper:


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May 8, 2018 in Law Review Rankings, Legal Education | Permalink | Comments (0)

In Defense Of Student Evaluations Of Teaching

Student Evaluations (2017)Following up on yesterday's post, Why We Must Stop Relying On Student Ratings Of Law School Teaching — Like The University Of Oregon Is Doing:  Chronicle of Higher Education op-ed:  In Defense (Sort of) of Student Evaluations of Teaching, by  Kevin Gannon (Grand View University):

[W]e know student evaluations matter. Perhaps the better question is: Should they? Given their many demonstrable and potential flaws, why would we still use them to gather feedback on teaching and learning? It turns out the answer is more complicated than appearances suggest.

Certainly, students are not experts qualified to evaluate us on, say, whether we used the best and most applicable course readings. But they are experts on what they experienced and learned in a course, and they ought to have a voice. Just because their feedback is sometimes misused doesn’t mean it’s invalid or unnecessary.

In fact, course evaluations — despite their many problematic elements — may still provide the most accurate information available on teaching effectiveness. Elizabeth Barre, whose research into student evaluations — in particular, the metastudies of the subject — is essential reading, observed that "we have not yet been able to find an alternative measure of teaching effectiveness that correlates as strongly with student learning. In other words, they may be imperfect measures, but they are also our best measures."

And therein lies the rub: We need to assess teaching, and we often have to rely on not the best, but the least worst, option. ...

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

Sanchirico: The New U.S. Tax Preference For 'Foreign-Derived Intangible Income'

Chris William Sanchirico (Pennsylvania), The New US Tax Preference for 'Foreign-Derived Intangible Income':

The new US income tax deduction for “foreign-derived intangible income” effectively lowers the corporate tax rate — from 21% to around 13% — on export-generated income attributable to intangible assets. This paper considers the new provision both in relation to international trade and tax agreements and as a matter of national policy.

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

The Median Tenure Of Law School Deans Is 3.35 Years

Rosenblatt's Deans Database has a wealth of information about law school deans.  The median tenure of the 209 currently serving law school deans is 3.35 years; the average tenure is 4.25 years.  The longest serving current deans are:

  1. John F. O'Brien (New England-Boston):  29.88 years
  2. Bradley J. B. Toben (Baylor):  26.50 years
  3. Don LeDuc (Western Michigan-Cooley):  21.99 years
  4. Katherine S. Broderick (District of Columbia):  18.79 years
  5. Harold J. Krent (Chicago-Kent):  15.36 years
  6. Aviam Soifer (Hawaii):  14.95 years
  7. Joseph D. Kearney (Marquette):  14.87 years
  8. Maureen O'Rouke (Boston University):  12.03 years
  9. Leticia M. Diaz (Barry):  11.34 years
  10. David F. Levi (Duke):  10.86 years
  11. Thomas J. Romig (Washburn): 10.86 years

Four of these deans have announced that they will be stepping down:

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

GOP Tax Law Could Reduce Corporate Tax Revenue By 40%

Baker InstituteRice University Baker Institute for Public Policy, Long-term Macroeconomic Effects of the 2017 Corporate Tax Cuts:

The Tax Cuts and Jobs Act of 2017 could lead to a total corporate tax revenue decline of about 40 percent, but nearly 20 percent of that decline will be recaptured through increased personal income tax revenue, according to an analysis by an expert at Rice University’s Baker Institute for Public Policy.

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May 8, 2018 in Tax, Think Tank Reports | Permalink | Comments (0)

Private College Tuition Discount Rate Hits All-Time High Of 50%

National Association of College and University Business Officers (NACUBO), Average Freshman Tuition Discount Rate Nears 50 Percent:

Private colleges and universities are on the brink of using half the tuition and fee revenue they collect from first-time freshmen to fund institutional grants, according to a new report from the National Association of College and University Business Officers (NACUBO). 

In the 2017 NACUBO Tuition Discounting Study, 404 private, nonprofit institutions reported an estimated 49.9 percent institutional tuition discount rate for first-time, full-time students in 2017-18—the highest in the history of the survey. ... Among all undergraduates, the estimated institutional tuition discount rate was 44.8 percent, another record high. 


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

Will The Trump Tax Cuts Accelerate Offshoring By U.S. Multinational Corporations?

Economic Policy Institute, Will the Trump Tax Cuts Accelerate Offshoring by U.S. Multinational Corporations?:

The Tax Cuts and Jobs Act (TCJA) profoundly changed the tax incentives facing multinational corporations. Join a distinguished panel of experts at an event hosted by the Economic Policy Institute to hear about how the TCJA will affect the offshoring of corporate profits and production. Kimberly Clausing (Reed College), Rebecca Kysar (Brooklyn), and Chye-Ching Huang (Center on Budget and Policy Priorities) will provide a detailed discussion of how various provisions in the law will shape international patterns of production and profit-shifting by multinationals. Rep. Rosa DeLauro (D-Conn.) will provide opening remarks, and Rep. Lloyd Doggett (D-Texas) will provide closing remarks.


May 8, 2018 in Conferences, Tax | Permalink | Comments (0)

Monday, May 7, 2018

Ring Presents Leak-Driven Law Today In Vienna

Ring (2017)Diane Ring (Boston College) presents Leak-Driven Law, 65 UCLA L. Rev. __ (2018) (with Shu-Yi Oei (Boston College)), at the Institute for Austrian and International Tax Law at Vienna University today as part of its PwC-WU-Seminar Series:

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.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially beneficial from an economic welfare perspective. This Article argues, however, that the conventional wisdom is too simplistic.

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

18 New Law School Dean Appointments (61% Are Women)

ABA Section of Legal Education and Admissions to the Bar, New Dean Appointments:

  1. Appalachian:  Sandra McGlothlin
  2. Arkansas-Fayetteville:  Margaret Sova McCabe
  3. Arkansas-Little Rock:  Theresa Beiner
  4. University of California, Irvine:  L. Song Richardson
  5. Duke:  Karen (Kerry) Abrams
  6. Faulkner:  Charles D. Campbell (Interim)
  7. Gonzaga: Jacob Rooksby
  8. Iowa:  Kevin Washburn
  9. Louisville:  Colin Crawford
  10. Miami:  Osamudia James (Acting; Patricia White returns as dean on Jan. 1. 2019 following a sabbatical)
  11. North Texas:  Felecia Epps
  12. Northern Kentucky:  Michael Whiteman (Interim)
  13. Northwestern:  Kim Yuracko
  14. Pace:  Horace Anderson (Interim)
  15. Pittsburgh:  Amy Wildermuth
  16. Washburn:  Carla Pratt
  17. University of Washington:  Mario Barnes
  18. Western New England:  Sudha Setty

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

WSJ: New Tax Law Fattens Corporate Profits (Highest Since 2011)

WSJWall Street Journal, New Tax Law Fattens Corporate Profits:

The largest U.S. companies found a new formula for success in the first quarter: larger pretax profits and smaller tax bills—mostly compliments of the federal tax overhaul.

More than half of the combined net-income growth reported by 200 large public companies for the first quarter stemmed from a decline in the companies’ effective tax rates, a Wall Street Journal analysis of quarterly financial data from Calcbench found.

At a third of the companies, tax expenses fell in dollar terms even as pretax income rose, boosted by strong revenue growth and the expanding economy. ...

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May 7, 2018 in Tax | Permalink | Comments (0)

Muller: Small Law Firm Jobs Shrink Dramatically (-30%), Big Law Hiring Picks Up (+15%)

Derek Muller (Pepperdine), Small Law Firm Jobs Shrink Dramatically and Big Law Hiring Picks Up For the Class of 2017:

Last year, I noted that jobs in smaller firms and business and industry were disappearing for entry-level hires. That continues to be the case. ... A nearly 60% decline in entry-level sole practitioners, and more than a 25% decline in 2-10-attorney firm hiring, is pretty sharp in just four years. ...

[B]ig law hiring — at firms with more than 500 attorneys — has increased 15% in four years. Given the dramatic decline in the number of graduates — 12,000 fewer graduates between 2013 and 2017— things look even better. For the Class of 2013, 8.6% of graduates ended up in the biggest of law firm jobs; that figure climbed to 13.3% for the Class of 2017. ...


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

Lesson From The Tax Court: The Role Of Equity

Tax Court (2017)For various reasons that legal historians can drone on about for hours, the United States legal system started out in 1789 as not one system of courts but two systems of courts. One was system was made up of courts of law, staffed by folks with titles like “Judge” or “Justice.”  The other system was made up of courts of equity, staffed by folks with titles like “Chancellor” or “Vice Chancellor.”  The basic idea was that each system had its own set of powers and you could only get to the equity courts if the law courts lacked the power to give you the relief you sought.

This was a really awkward relationship and a constant source of embarrassment and confusion.  The great legal historian F. W. Maitland put it this way in his 1910 Lectures On Equity:  “I do not think that any one has expounded or ever will expound equity as a single, consistent system, an articulate body of law.  It is a collection of appendixes between which there is no very close connection.”  (p. 19)  And in this 1913 law review article, Professor Wesley Newcomb Hohfeld discussed the difficulty of teaching equity as a system of rules separate from legal rules.

One awkwardness was that often the same individual would wear both hats.  For example, you might file an action at law and have proceedings before the “Judge” sitting as a court of law.  The Judge had power to award damages but did not have power to order depositions.  So you would need to file a completely separate proceeding in equity, seeking a “Bill of Discovery” from the Vice Chancellor because the Vice Chancellor had the power to order depositions (but had no power to award damages).  But you would file that in the same building and be heard by the same individual. So one day the “Judge” would say “I have no power to order discovery” but the next day the very same individual, sitting as “Vice Chancellor,” would suddenly have the power to grant your Bill.

I tell you all this because although the two systems have been merged in federal courts since 1938 (although some states, such as Delaware and Mississippi, keep the two systems separate) federal judges still tend to compartmentalize the two.  The Tax Court in particular has wrestled with the role of equity from its inception.  Two recent Tax Court cases teach useful lessons about the role of equity in Tax Court proceedings.  This week I will look at the innocent spouse case of the Connie L. Minton a.k.a. Connie L. Keeney v. Commissioner, T.C. Memo. 2018-15 (Feb. 5, 2018).  Next week I will discuss the very interesting case of Emery Celli Cuti Brinckerhoff & Abady, P.C. v. Commissioner, T.C. Memo 2018-55 (Apr. 24, 2018), a case that will introduce us to the doctrine of equitable recoupment.

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May 7, 2018 in Bryan Camp, New Cases, Tax, Tax Practice And Procedure | Permalink | Comments (0)

Why We Must Stop Relying On Student Evaluations Of Law School Teaching — Like The University Of Oregon Is Doing

Chronicle of Higher Education op-ed:  Why We Must Stop Relying on Student Ratings of Teaching, by Michelle Falkoff (Northwestern Law School):

Few academics will be surprised to hear that more evidence has come out showing that student evaluations of teaching are often biased.

The latest study [Gender Bias in Student Evaluations], released this year by the American Political Science Association, found that the "language students use in evaluations regarding male professors is significantly different than language used in evaluating female professors." The study also showed that "a male instructor administering an identical online course as a female instructor receives higher ordinal scores in teaching evaluations, even when questions are not instructor-specific."

Table 1

Kristina Mitchell, one of the study’s authors, summarized its findings in Slate last month and concluded: "Our research shows they’re biased against women. That means using them is illegal." Academic institutions must stop giving an inordinate amount of weight to student evaluations when making employment decisions, she argued, until the institutions can account for, address, and eliminate bias.

Unfortunately, there’s no consensus on how best to do that, and gender isn’t the only kind of bias at issue. Still, it’s time for academic institutions to do better on this front. ...

[I]t’s time to stop relying primarily on one approach — in this case, student evaluations of teaching — and move to a more holistic strategy in which multiple factors contribute to a more accurate, consistent, and well-rounded assessment.

I was convinced of that by my experience as director of the program in communication and legal reasoning at Northwestern University’s law school.

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May 7, 2018 in Legal Education, Teaching | Permalink | Comments (3)

WSJ: KKR To Ditch Partnership Structure And Become C Corporation Due To New Tax Law

KKR 2Wall Street Journal, KKR to Ditch Partnership Structure and Become Corporation:

Private-equity firm KKR & Co. said Thursday it would convert to a corporation from a partnership, a significant shift to its structure that signifies how the new tax code is changing the contours of business in the U.S.

In the few months it has been in place, the tax law has catalyzed changes across business: Banks have reported big earnings boosts. Some companies have handed out employee bonuses tied to the extra cash they say they will have, and many have announced a flurry of stock buybacks. Firms large and small have contemplated changing their structures.

For private-equity firms, a conversion to a “C corporation” only became a realistic option with Congress’s passage late last year of the new tax law, which lowered the highest corporate rate to 21% from 35%. KKR’s chief financial officer, William Janetschek, said Thursday that changing the structure will raise the firm’s effective tax rate from roughly 7% to about 22%, a more palatable change than if a conversion had been done under old tax rules. 

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May 7, 2018 in Tax | Permalink | Comments (0)

TaxProf Blog Weekend Roundup

Sunday, May 6, 2018

Universal Basic Income Didn’t Fail In Finland. Finland Failed It.

BasicFollowing up on my previous post, Finland Ends Basic Income Experiment After Two Years:  New York Times op-ed:  Universal Basic Income Didn’t Fail in Finland. Finland Failed It., by Antti Jauhiainen & Joona-Hermanni Mäkinen:

“Thank goodness that this experiment is coming to an end,” the Fox News commentator Stuart Varney said recently, after the Finnish government decided to stop its trial run with universal basic income (U.B.I.) at the end of the year. “You want money, get out there and work for it, please.” ...

But the demise of the U.B.I. experiment in Finland can’t be said to mean that U.B.I. has failed here. Not only are preliminary official results not even expected until 2019, but the Finnish government’s U.B.I. pilot project never really was about U.B.I.

As we wrote last summer, Finland’s program was doomed as soon as it began in early 2017. Targeting just 2,000 randomly selected unemployed Finns to receive 560 euros a month (about $675) for only two years, it was too limited in both scale and duration. ...

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May 6, 2018 in Tax | Permalink | Comments (4)

Catholic University Plan To Cut 35 Profs (Including 10 With Tenure), Increase Teaching Loads (From 2 To 3 Courses Per Semester) Draws Faculty Fire

CatholicFollowing up on my previous post, Is Catholic University’s Devotion To Its Faith Scaring Off Students?:  Washington Post, Catholic University Plans to Cut Full-Time Faculty by 9 Percent:

Catholic University officials are planning to cut their full-time faculty by 9 percent through attrition, buyouts and possibly layoffs, a cost-saving proposal that has rattled professors at the school known for its close ties to the Vatican.

Under the proposal, 35 positions would be eliminated from a roster that this school year includes 381 faculty members. Twenty-five of the departures would be “voluntary” and 10 “involuntary,” according to a Proposal for Academic Renewal, a document that has been circulating over the past several weeks on the campus in Northeast Washington. University officials said they are hoping to keep the number of layoffs of tenured faculty as low as possible.

Officials said their goal is to cut costs without eliminating academic programs. To do that, they’re asking some professors to take on a larger teaching load than they previously had by enforcing, with certain exceptions, a standard of three classes per semester for those in undergraduate and professional programs. Professors in doctoral programs would generally teach two classes a semester.

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May 6, 2018 in Legal Education | Permalink | Comments (3)

Resistance To The New GOP Tax Law In California, New York, And Illinois

The Top Five New Tax Papers

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

  1. [900 Downloads]  Evaluating the New US Pass-Through Rules, by Dan Shaviro (NYU)
  2. [377 Downloads]  The Impact of the 2017 Act's Tax Rate Changes on Choice of Entity, by Jim Repetti (Boston College)
  3. [367 Downloads]  Taxing Income Where Value Is Created, by Allison Christians (McGill) & Laurens van Apeldoorn (Leiden)
  4. [366 Downloads]  Taxation of Investments in Bitcoins and Other Virtual Currencies: International Trends and the Brazilian Approach, by Flavio Rubinstein (Fundação Getúlio Vargas) & Gustavo Gonçalves Vettori (University of São Paulo)
  5. [326 Downloads]  Explaining Choice-of-Entity Decisions by Silicon Valley Start-Ups, by Gregg Polsky (Georgia)

May 6, 2018 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, May 5, 2018

This Week's Ten Most Popular TaxProf Blog Posts

The Academic Billable Hour: Why Law Profs Should Be Required To Track Their Time

TimeEli Wald (Denver), A Thought Experiment About the Academic 'Billable' Hour or Law Professors' Work Habits, 101 Marq. L. Rev. ___ (2018):

This essay imagines a world in which law professors tracked their work hours. It identifies some of the diagnostic attributes of the academic “billable” hour, explores the potential destructive dark side of timekeeping, and examines the nature of the relationship between the diagnostic and destructive qualities of recording academic time. Next, it introduces some of the political implications of recording academic time, and explores some of the normative discussions timekeeping might help inform.

We know little about what law professors do and how they spend their time. While we know law professors’ teaching loads, we do not know how many hours they spend preparing for classes, interacting with students, or developing and grading assignments, let alone how they spend their time pursuing all of these activities. Similarly, while we know quite a bit about how much law professors publish and about the quality and impact of their scholarship, we do not know how they identify topics for inquiry, research, write, and publish. Finally, while we know a fair amount about law professors’ service commitments, such as their committee assignments, we do not know how much time and how they spend their time on service activities. In short, we know very little about law professors’ work habits.

What we do not know matters. Timekeeping by law professors can generate useful diagnostic insights that may inform and improve legal academia. If all law professors were to record their time teaching, serving, and researching we would know more about what law professors do and how they do it and would be able to generate benchmarks and best practices, which may inform individual decision-making by faculty members regarding how to allocate their time, as well as institutional decision-making by law schools about how to assess and allocate their human capital resources and how to effectively train and mentor junior colleagues.

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May 5, 2018 in Legal Education | Permalink | Comments (5)

Politico: Trump’s Lawyer Went To The Worst Law School In America

Thomas Cooley Logo (2017)Politico, Trump’s Lawyer Went to the Worst Law School in America; Michael Cohen’s Alma Mater Has Long Been a Punchline in the Legal World:

Cooley may be, by some measurements, the worst law school in America. And its standing has not been enhanced by a flood of publicity about the quality of the legal work of its best known and, increasingly, most notorious alum: Michael D. Cohen, class of 1991, President Trump’s longtime personal lawyer and the target of a federal criminal investigation in New York that has clearly rattled Trump.

The school is sensitive to the headlines: “In light of the current publicity about Mr. Michael Cohen, one of our graduates, it is disappointing to see all the gratuitous negative comments about our law school from people who know nothing about us,” the school’s general counsel, James Robb, said in an impassioned written statement to Politico. “What I am seeing is incivility and bullying by people who truly know little about legal education—and especially about our fine law school.”

Bullies, however, are not responsible for the troubling statistics that Cooley discloses to applicants on its own website.

The school accepts almost anyone who can pay the $51,000 annual tuition bill—more than 85 percent of its applicants were admitted last year. Fewer than half of its graduates manage to pass a bar exam on their first try; among all law school graduates in the country, about 75 percent pass on their first attempt. The 46-year-old school has had to go to court over the past year to fight for its accreditation from the American Bar Association, which found that the school was out of compliance on basic admission standards for a time. Last year, the National Advisory Council for Law School Transparency gave Cooley a ranking no school wants: It was No. 1 on the group’s list of “the 10 least selective law schools in the country.” ...

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May 5, 2018 in Legal Education | Permalink | Comments (3)

Li: Protecting The Tax Base In A Digital Economy

Jinyan Li (Osgoode Hall), Protecting the Tax Base in a Digital Economy:

This paper provides an overview of the main features of digital economy and why it poses challenges to existing framework and principles of international taxation. It explains the fiscal impact of these challenges in developing countries. Among the challenges is the “cyberization” of tax base because the existing jurisdictional nexus (such as permanent establishment) and profit attribution rules assume physical presence and actual activities, neither is particularly relevant in a digital business.

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

Friday, May 4, 2018

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Luke's Captivating Deductions

This week, Sloan Speck (Colorado) reviews a new work by Charlene D. Luke (Florida), Captivating Deductions, 46 Hofstra L. Rev. __ (forthcoming 2018).

Speck (2017)Charlene Luke’s excellent article, Captivating Deductions, analyzes the tax treatment of captive insurance arrangements under current law and proposes reforms that would better align the treatment of such insurance arrangements with a normative Haig-Simons income tax base. Luke focuses on the treatment of insurance premiums from the insured’s perspective, rather than the special treatment afforded to insurance companies under the Code. For these insureds, captive insurance arrangements can convert non-deductible savings into deductible business expenses, with an added tax benefit if the insurance company can avoid current taxation on returns to any investments made with premiums received. Luke casts such (abusive) arrangements as “in substance, designer investment contracts,” and Luke’s reading of judicial and administrative guidance in this area as fundamentally misguided is undeniably correct.

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May 4, 2018 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Crawford: Change Is Constant In Estate Planning

Bridget J. Crawford (Pace), Change is Constant in Estate Planning: Reflections of an ACTEC Law Journal Editor, 43 ACTEC L.J. 143 (2018):

In this essay, the author provides a brief overview of the history of the flagship publication of the American College of Trust and Estate Counsel, including its past leadership, focus and multiple name changes. The author reflects on her service as editor of the ACTEC Law Journal and the importance of a commitment to publish articles of ever-increasing quality, while simultaneously ensuring that the Journal remains a venue that is inclusive, appealing and useful to all ACTEC Fellows. Although the ACTEC Law Journal explicitly names and norms itself as a law review, as opposed to a newsletter or a venue for publication of CLE materials, it is important that the publication continues to function as resource and target venue for all of the organiation's Fellows. Given the reality that busy practitioners and judges simply do not have the same time in their day that academics have to write long law review articles that engage with prior scholarship, solve novel problems, and propose normative solutions and related policy concerns, during the author's editorship, she sought to create multiple opportunities for all Fellows to submit shorter pieces to the ACTEC Law Journal.

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May 4, 2018 | Permalink | Comments (0)

Field: Tax Implications Of The Dynamex Worker Classification Ruling

Following up on Paul Caron's previous post: California Supreme Court Deals Major Blow to Gig Economy Business Model, Treats Workers as Employees Rather than Independent Contractors: Heather Field (UC-Hastings) at Surly Subgroup: Tax Implications of the Recent Dynamex Worker Classification Ruling 

Greetings from San Francisco, the epicenter of the gig economy, where workers-rights advocates are celebrating Monday’s California Supreme Court decision in the Dynamex case. The ruling, which cites an article by my colleague Veena Dubal, is expected to make it harder for businesses in California to classify gig economy workers (and others) as independent contractors rather than employees. As a result, these workers are more likely to be protected by rules about minimum wage, overtime, rest breaks, and other working conditions, although there are open questions about exactly how these rules will apply to gig workers.

But what is good for workers for employment/labor law purposes may not be so good for workers for federal income tax purposes. As readers of this blog know, independent contractors can generally deduct their business expenses above-the-line and may be able to take the new Section 199A deduction equal to up to 20% of qualified business income (significantly reducing the effective tax rate). Employees, on the other hand, can do neither. Thus, the employment/labor law win for workers in the Dynamex case may come with some unexpected and unwanted tax losses for these same workers. This is especially true for workers with non-trivial amounts of unreimbursed business expenses (although the amount of a worker’s unreimbursed expenses may decline if the worker is classified as an employee because California Labor Code 2802 generally requires employers to reimburse significant business expenses of employees).

So, taking tax into account, is independent contractor status or employee status better for workers? This question involves complicated employment/labor law and tax law tradeoffs. For example, despite the tax disadvantages of employee classification mentioned above, employee status can benefit workers for employment tax and tax compliance purposes. Others (including Shuyi Oei here, Shuyi Oei and Diane Ring here, here and here, and Kathleen DeLaney Thomas here) have written extensively on worker classification/taxation topics, and at least some of them have additional articles forthcoming on these topics. I will defer to them for more details as I am not an expert (at least right now) on worker classification or its tax implications. But even I know that, when analyzing the implications of the Dynamex case, it will be important for commentators to consider the tax, not just employment/labor, consequences.

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May 4, 2018 in New Cases, Shuyi Oei, Tax, Tax Policy in the Trump Administration, Tax Profs | Permalink | Comments (0)

ABA: The Number Of Lawyers Has Grown 15% Since 2007

ABA Journal, Lawyer Population 15% Higher Than 10 Years Ago, New ABA Data Shows:

The number of active attorneys in the United States has increased by 15.2 percent over the last decade, according to the ABA’s National Lawyer Population Survey.

The total number of lawyers in the United States as of Dec. 31 was 1,338,678. Ten years before that, the total number was 1,162,124. ...

In raw numbers, the five states reporting the highest number of resident active lawyers were:

  1. New York – 177,035
  2. California – 170,044
  3. Texas – 90,485
  4. Florida – 78,244
  5. Illinois – 63,422

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May 4, 2018 in Legal Education | Permalink | Comments (0)

Third International Conference On Taxpayer Rights Concludes Today In The Netherlands

ThirdThe National Taxpayer Advocate hosts the Third International Conference on Taxpayer Rights today and tomorrow in The Netherlands hosted by the International Bureau of Fiscal Documentation. For a list of the panels and participants, see here.

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May 4, 2018 in Conferences, IRS News, Scholarship, Tax | Permalink | Comments (0)

2018 Tax Development Conference

Cal StateThe Bookstein Institute for Higher Education in Taxation at California State University, Northridge, in collaboration with the College of Business at Central Washington University, hosts The 2018 Tax Development Conference today at California State University, Northridge.  For a list of the papers and speakers, see here.  Among the papers are Hilary G. Escajeda (Denver), Sustainable Growth or Dead Cat Bounce? A Strategic Inflection Point Analysis of Legal and Professional Dducation:

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May 4, 2018 in Conferences, Tax | Permalink | Comments (0)

Thursday, May 3, 2018

'Westlaw For Originalism': Big Data Meets The Constitution, Big Data Meets the Constitution in New Originalism Project:

Five Georgia appellate judges visited a Georgia State University College of Law seminar recently to evaluate an innovative new big-data tool for ascertaining the original meaning of oft-contested words in the U.S. Constitution and other historic legal texts.

Law students in the seminar on judicial power came up with results that might surprise some Constitutional originalists: In proscribing ”cruel” punishment in the Eighth Amendment, for instance, the framers’ aim may have been to prevent the state’s abuse of power as much as physical pain.

The students are the first to try out a searchable new database, the Corpus of Founding Era English (COFEA), made up of more than 95,000 documents from the era that Brigham Young University Law School is developing. The COFEA documents encompass newspapers, speeches, novels, diaries and personal correspondence that were produced from 1760 to 1799 during the colonial independence movement and subsequent ratification debates over the Constitution and Bill of Rights.

One criticism of originalism, noted the seminar’s professor, Clark Cunningham, is that it’s impossible to know what people really meant with certain terms back then. “Now it’s easier to,” he said.

“This is revolutionary,” said Georgia Appeals Court Chief Judge Stephen Dillard, himself an originalist. “It’s like Westlaw for originalism.” ...

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May 3, 2018 in Legal Education | Permalink | Comments (2)

Krugman: How’s That Tax Cut Working Out?

New York Times op-ed:  How’s That Tax Cut Working Out?, by Paul Krugman:

So far, Donald Trump and his allies in Congress have achieved one and only one major legislative victory: passing a large tax cut, mainly aimed at corporations and business owners. The tax cut’s proponents promised that it would lead to a dramatic acceleration of economic growth and produce big gains in wages; they hoped that it would also yield big political dividends for the midterm elections.

So how’s it going? Politically, the tax cut is a damp squib: Most voters saythey haven’t seen any boost to their paychecks, and Republicans are barely talking about the law in their political campaigns. But what about the economics?

You might be tempted to say that it’s too early to tell. After all, the law has been in effect for only a few months, and we got our first look at post-tax-cut economic growth only last week. But here’s the thing: To deliver on its backers’ promises, the tax cut would have to produce a huge surge in business investment — not in the long run, not five or 10 years from now, but more or less right away. And there’s no sign that anything like that is happening. ...

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May 3, 2018 in Tax | Permalink | Comments (2)

ABA: Florida Coastal Law School Remains Out Of Compliance With Three Of Four Accreditation Standards

Florida Coastal (2017)ABA Accreditation Committee Decision, Public Notice of Specific Remedial Action: Florida Coastal School of Law:

At its March 15-17, 2018 meeting, the Accreditation Committee of the Council of the Section of Legal Education and Admissions to the Bar (the “Committee”) conducted a hearing pursuant to Rules of Procedure 2, 3, 14, 16-18, 20, and 21 with respect to the compliance of Florida Coastal School of Law (the “Law School”) with ABA Standards 301(a), 309(b), and 501(a) and 501(b) and Interpretation 501-1.

Following the hearing and based on the record, the Committee concluded that the Law School is in compliance with Standard 501(a). The Committee further concluded that the Law School remains in non-compliance with Standards 301(a), 309(b), and 501(b) and Interpretation 501-1, and has directed the Law School to take the following specific remedial actions, including, but not limited to, this public notice.

Jacksonville Daily Record, Florida Coastal School of Law Found in Compliance With ABA General Standards:

Florida Coastal School of Law is in compliance with general American Bar Association standards, but remains in noncompliance with others related to admission standards.

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May 3, 2018 in Legal Education | Permalink | Comments (0)

The Unconstitutionality Of The Tampon Tax

Victoria Hartman (J.D. 2018, Northwestern), Note, End the Bloody Taxation: Seeing Red on the Unconstitutional Tax on Tampons, 112 Nw. U. L. Rev. 313 (2017):

Why was there so much activism in the United States, and across the world, to end the tampon tax in 2016? This Note situates the movement to end the tampon tax within a broader history of feminist activism related to tampons and menstruation. It also analyzes the constitutional dimensions of the tax on feminine hygiene products and serves as a litigation guide for plaintiffs claiming that a state, city, or county sales tax on feminine hygiene products violates the Equal Protection Clause.

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May 3, 2018 in Scholarship, Tax | Permalink | Comments (2)

NY Times: Revelations Over Koch Gifts Prompt Inquiry At George Mason

George Mason LogoNew York Times, Revelations Over Koch Gifts Prompt Inquiry at George Mason University:

The president of George Mason University has ordered an inquiry into whether big-money donors are being given undue influence over academic matters, after documents were released showing that the Charles Koch Foundation had been given a voice in hiring and firing professors.

The university president, Angel Cabrera, wrote in an email to faculty Monday night that he was ordering the investigation after learning of documents revealing “problematic gift agreements.”

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May 3, 2018 in Legal Education | Permalink | Comments (4)

Call for Papers: New Voices In Tax Policy And Public Finance (2019 AALS Annual Meeting)

The AALS Tax Section committee is pleased to announce the following Call for Papers:

(co-sponsored by the Section on Nonprofit and Philanthropy Law and Section on Employee Benefits and Executive Compensation)

The AALS Section on Taxation is pleased to announce the following Call for Papers. Selected papers will be presented at a works-in-progress session at the 2019 AALS Annual Meeting in New Orleans, LA from January 2-6, 2019. The works-in-progress session is tentatively scheduled for Saturday, January 5.

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May 3, 2018 in Conferences, Legal Education, Scholarship, Shuyi Oei, Tax, Tax Profs, Teaching | Permalink | Comments (0)

Measuring Law School Clinics

ClinicColleen Shanahan (Temple), Jeffrey Selbin (UC-Berkeley), Alyx Mark (George Washington) & Anna Carpenter (Tulsa), Measuring Law School Clinics, 92 Tul. L. Rev. 547 (2018):

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet.

Though we have these laudable teaching and service goals — and a vast literature describing the role of clinics in both the teaching and service dimensions — we have scant empirical evidence about whether and how clinics achieve these goals. We know from studies that law students value clinics, but do clinics prepare them to be lawyers? We also know from surveys that clinics provide hundreds of thousands of hours of free legal aid in low-income communities, but how well do clinic students serve clients?

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May 3, 2018 in Legal Education, Scholarship | Permalink | Comments (0)

Rosenberg: Application Of The Economic Substance Doctrine To Foreign Tax Credits

Rebecca Rosenberg (Ohio Northern), Stars Wars: Application of the Economic Substance Doctrine to Foreign Tax Credits, and What the Future Holds, 42 U. Dayton L. Rev. 165 (2018):

The recent, controversial STARS (Structured Trust Advantaged Repackaged Securities) cases provide a backdrop for analyzing how the economic substance doctrine ideally should be applied to foreign tax credit cases. The economic substance doctrine is a judicial doctrine that allows courts to disregard the tax consequences of a transaction that violates the intent of the relevant statute. Its application to foreign tax credits has a long and contentious history, and the STARS cases have given new life to the government’s arguments.

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May 3, 2018 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, May 2, 2018

NY Times: California Supreme Court Deals Major Blow To Gig Economy Business Model, Treats Workers As Employees Rather Than Independent Contractors

New York Times, Gig Economy Business Model Dealt a Blow in California Ruling:

In a ruling with potentially sweeping consequences for the so-called gig economy, the California Supreme Court on Monday made it much more difficult for companies to classify workers as independent contractors rather than employees.

The decision could eventually require companies like Uber, many of which are based in California, to follow minimum-wage and overtime laws and to pay workers’ compensation and unemployment insurance and payroll taxes, potentially upending their business models.

Industry executives have estimated that classifying drivers and other gig workers as employees tends to cost 20 to 30 percent more than classifying them as contractors. It also brings benefits that can offset these costs, though, like the ability to control schedules and the manner of work. ...

The court essentially scrapped the existing test for determining employee status, which was used to assess the degree of control over the worker. That test hinged on roughly 10 factors, like the amount of supervision and whether the worker could be fired without cause.

In its place, the court erected a much simpler “ABC” test that is applied in Massachusetts and New Jersey. Under that test, the worker is considered an employee if he or she performs a job that is part of the “usual course” of the company’s business.

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May 2, 2018 in Tax | Permalink | Comments (8)

Khan Academy And LSAC To Offer Free LSAT Prep, Beginning In June

KhanLSATFollowing up on my previous post, Khan Academy To Offer Free LSAT Prep:  ABA Journal, Free LSAT Prep, From Khan Academy and the LSAC, Coming in June:

A free online LSAT prep program from Khan Academy and the Law School Admission Council, announced in 2017, will be available to the public starting June 1.

The collaboration between the LSAC and the nonprofit online platform, known for its large library of interactive math courses, includes two practice tests. One assesses skills, and the other determines the taker’s progress toward his or her goal LSAT score. The product also develops practice plans based on the user’s desired score, and offers practice questions with step-by-step explanations. Beta testing, with 7,600 people, starts April 30. A video about the offering can be seen here.

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May 2, 2018 in Legal Education | Permalink | Comments (0)

Apple Plows Tax Cut Into $100 Billion Stock Buyback

Advice To Law Profs On Using PowerPoint

May 2, 2018 in Legal Education | Permalink | Comments (0)

NY Times: Anonymous Owner, LLC — Why It Has Become So Easy To Hide In The Housing Market?

New York Times, Anonymous Owner, L.L.C.: Why It Has Become So Easy to Hide in the Housing Market:

A way to protect property owners from personal liability has also turned out to be handy for enabling problematic behavior, like laundering money or being a bad landlord.

When Sean Hannity, the popular Fox News host, was revealed this month to be a property owner and landlord of considerable scale, it highlighted how opaque the housing market has become.

Owning real estate in limited liability companies, as The Guardian reported that Mr. Hannity does, is a perfectly legal and increasingly popular practice. But the whiff of secrecy — and the umbrage Mr. Hannity has taken after the secret got out — speaks to the growing role of L.L.C.s in the nation’s housing market.

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May 2, 2018 in Tax | Permalink | Comments (0)