TaxProf Blog

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

Monday, June 5, 2017

At 89, Law Prof Is Still Going Strong: 'Some Day, They’ll Come ... And Carry Me Out'

CrawfordThe Advocate, At 89, LSU Law Professor Still Going Strong: 'Some Day, They’ll Come ... And Carry Me Out':

At 89, [Bill Crawford] is LSU’s oldest faculty member. He teaches two classes a semester at the Paul M. Hebert Law Center [Louisiana Civil Procedure I & II; Louisiana Security Devices; Advanced Louisiana Torts].

“Some day, they’ll come in here and carry me out,” Crawford says.

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June 5, 2017 in Legal Education | Permalink | Comments (2)

My First Day In The Office As Dean

Because I was at Texas A&M on June 1-3, today is my first day in the office as dean. I walked in this morning to this very nice greeting:


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June 5, 2017 in Legal Education, Tax | Permalink | Comments (5)

Death Of Bill Andrews

Photo Credit: Harvard Law School. Harvard Law Today:

William D. Andrews ’55, the Eli Goldston Professor of Law Emeritus at Harvard Law School, died on May 20, 2017. He was 86.

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June 5, 2017 in Legal Education, Obituaries, Tax | Permalink | Comments (3)

Law School Entry-Level Faculty Hiring Down 25% (63% From 2008)

TaxProf Blog Weekend Roundup

Sunday, June 4, 2017

Anderson, Merritt & Muller On The Push To Lower California's Bar Pass Score

Vischer:  The Secret Sauce For Faith-Based Law Schools To Thrive In A Difficult Market

Religiously Affiliated Law SchoolsRobert K. Vischer (Dean, St. Thomas), How Should a Law School's Religious Affiliation Matter in a Difficult Market?, 48 U. Tol. L. Rev. 307 (2017):

For religiously affiliated law schools, a broad and deep understanding of professional formation should lie at the heart of our reason for being and should grow out of our own religious traditions, allowing us to educate the whole person. Articulating and cultivating this deeper understanding of professional formation is essential for deans of religiously affiliated law schools today as we seek to demonstrate the connection between our religious identity and the value proposition our schools offer to our current and prospective students. ...

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June 4, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

The Top 5 Tax Paper Downloads

SSRN LogoThere is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #4 and #5:

  1. [330 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  2. [216 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  3. [172 Downloads]  Recent Developments in Federal Income Taxation: The Year 2016 , by Martin J. McMahon Jr. (Florida) & Bruce A. McGovern (South Texas)
  4. [152 Downloads]  Corporate Tax Avoidance and Honoring the Fiduciary Duties Owed to Corporation and Its Stockholders, by Eric C. Chaffee (Toledo) & Karie Davis-Nozemack (Georgia Tech)
  5. [132 Downloads]  A Taxonomy for Tax Loopholes , by Heather Field (UC-Hastings)

June 4, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, June 3, 2017

This Week's Ten Most Popular TaxProf Blog Posts

Mankiw:  Due To Economy, Trump Should Pursue Revenue-Neutral Tax Reform Rather Than Reagan/Bush II-Style Tax Cuts

New York Times op-ed:  A Tax Cut Might Be Nice. But Remember the Deficit., by N. Gregory Mankiw (Harvard):

In the debate about federal tax policy, one question looms large: Should we have a tax cut that increases the budget deficit?

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June 3, 2017 in Tax | Permalink | Comments (3)

Florida Dean Resigns After Giving Effusive Reference For Employee Fired For Downloading Porn Through University Email Account

Florida LogoGainesville Sun, Two UF Administrators Lose Jobs Over Poor Judgment:

As the University of Florida’s deputy Title IX coordinator, Chris Loschiavo heard complaints of gender discrimination that sometimes included allegations of sexual battery.

But it has been learned that using a university-supplied email, he also bought pornographic videos with titles that included erotic torture and rough sex, cyborg sex, threesome sex and more.

Loschiavo was fired last year with officials pegging it publicly to a conflict of interest that came to light during the Title IX hearing of UF football player Antonio Callaway.

Loschiavo was recently hired as the Title IX coordinator of Florida Polytechnic University. His UF supervisor, Jen Day Shaw, gave him an effusive recommendation.

Now, both are out of a job.

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June 3, 2017 in Legal Education | Permalink | Comments (9)

Friday, June 2, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new article by Michael Knoll (Penn), Taxation, Competitiveness, and Inversions: A Response to Kleinbard, 155 Tax Notes 619 (May 1, 2017) 

HemelDo U.S. tax laws place U.S.-domiciled companies at a competitive disadvantage vis-à-vis foreign firms? In an influential 2014 article, Edward Kleinbard (Southern California) argued that the answer is no: “there is no credible evidence,” Kleinbard concluded, “that U.S. firms are at a fundamental international business competitive disadvantage under current law.” Now, Michael Knoll responds to Kleinbard’s article and arrives at a contrasting conclusion: while acknowledging the limits of existing empirical work, Knoll says that “the stronger case would seem to be that U.S.-domiciled corporations are often tax-disadvantaged relative to their non-U.S. rivals.”

Both authors agree that the competitiveness question has important implications for the debate over corporate inversions. Inversion defenders often argue that U.S.-headquartered multinationals must be allowed to shed their U.S. domicile so that they can compete on even terms with foreign firms. In Kleinbard’s view, this narrative is a “fable”: competitiveness concerns cannot justify inversions. Consequently, Kleinbard concludes that the U.S. Treasury and Congress should crack down on inversion transactions. In Knoll’s view, “improving competitiveness remains a strong reason for U.S.-domiciled companies to invert,” and “policies intended to curb inversions that ignore this state of affairs are likely to . . . produce adverse consequences.”

My own view, to lay my cards on the table at the outset, is that Kleinbard and Knoll are both right. 

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June 2, 2017 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Caron Presents Faculty Scholarship Assessment: A (Very) New Dean's Perspective Today At Texas A&M

CaronPaul L. Caron (Dean, Pepperdine) presents Faculty Scholarship Assessment: A (Very) New Dean's Perspective at Texas A&M today as part of its Conference for Associate Deans:

I describe how existing measures of faculty scholarly output (publications) and influence (law review citations, Google Scholar citations (H-Index and M-Index), and SSRN downloads) can be used to (1) compare a law school faculty's scholarly productivity to its peers and to assess individual faculty contributions in these areas; and (2) value scholarly productivity of both junior and senior faculty.  I then offer some thoughts on what these existing ranking metrics leave out in quantifying faculty contributions to law school success, especially at faith-based schools.

My co-panelists are:

  • John August (Dean of Faculties and Associate Provost, Texas A&M)
  • Gary Lucas (Professor of Law and Associate Dean for Assessment, Strategic Analysis, and Reporting, Texas A&M)
  • Gregory Sisk (Laghi Distinguished Chair in Law, University of St. Thomas (Minnesota))

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June 2, 2017 in Conferences, Law School Rankings, Legal Education, Scholarship | Permalink | Comments (1)

Overhaul Proposed For How The ABA Governs Law Schools


ABA Section On Legal Education (2016)National Law Journal, Overhaul Proposed for How ABA Governs Law Schools:

The American Bar Association body that reigns over the nation’s law schools is contemplating a major reorganization intended to cut costs, streamline operations and allow it to respond to problem schools faster.

The reorganization is still a concept at this point, but the ABA’s Council of the Section of Legal Education and Admissions to the Bar is scheduled to discuss the idea at its meeting June 2 in Portland, Oregon. The council could decide whether or not to pursue the reorganization further.

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June 2, 2017 in Legal Education | Permalink | Comments (0)

Virginia Tax Review Publishes New Issue

Virginia Tax Review (2016)The Virginia Tax Review has published Vol. 36, No. 1 (Winter 2017):

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June 2, 2017 in Scholarship, Tax | Permalink | Comments (0)

Thursday, June 1, 2017

Tax Exceptionalism: A UK Perspective

Stephen Daly (King's College London, Dickson Poon School of Law), Tax Exceptionalism: A UK Perspective:

In her article in this issue [Administrative Law's Growing Influence on U.S. Tax Administration, 3 J. Tax Adm. ___ (2017)], Professor Kristin Hickman explores the relationship between the US Treasury and Internal Revenue Service (‘IRS’), and exceptionalism to general administrative law principles, dubbed “tax exceptionalism”. It builds upon work that Hickman has produced in response to the 2011 case of Mayo Foundation for Medical Education and Research v. United States in which the Supreme Court is generally considered to have rejected the idea of tax exceptionalism [Administering the Tax System We Have, 63 Duke L.J. 1717 (2014); Unpacking the Force of Law, 66 Vand. L. Rev. 465 (2013)]. Indeed, Hickman’s article deals a decisive blow to the idea of tax exceptionalism by noting that the functions of the IRS are not dissimilar to those of other administrative agencies.

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June 1, 2017 in Scholarship, Tax | Permalink | Comments (0)

Judge Says Yeshiva University Cannot Fire Tenure-Track Professors For Financial Reasons

Yeshiva University Logo (2017)Inside Higher Ed, New York Judge Says Yeshiva University, Based on its Own Policies, Can't Terminate Tenure-Track Professors For Financial Reasons:

You get a tenure-track job. You meet all expectations and then some. Then, halfway through your tenure-track period, you are let go, something like an at-will employee.

Sadly, it’s not unheard for tenure-track professors to be treated like adjuncts in academe, but a recent legal decision involving Yeshiva University says it can’t happen there, based on its own policies. And elements of those policies exist elsewhere, making the ruling potentially significant to others on the tenure track.

“The question of whether a school has followed its own rules does not involve any highly specialized, academic judgment,” reads an opinion rendered this month by New York State Judge Barbara Jaffe. It orders Yeshiva to conduct a new tenure reappointment review for two professors, Michael Richter and Williams Hawkins, who were let go in 2015, after three years on the tenure track, for financial reasons.

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June 1, 2017 in Legal Education | Permalink | Comments (0)

Crespi:  Will The Public Service Loan Forgiveness Program Ever Forgive Any Loans?

Federal Student AidGregory Crespi (SMU), Will the Public Service Loan Forgiveness Program Ever Forgive Any Loans?:

There is a sharp tension between the expectations that hundreds of thousands to millions of persons have regarding their right to eventually have their student loan debts forgiven under the Public Service Loan Forgiveness program, starting this fall, and the legitimate public concerns regarding the large future costs and regressive incidence of the PSLF program’s benefits.  The Trump Administration has recently proposed prospectively abolishing the PSLF program for future Direct Loans.  Whether or not this proposal is adopted, given the large costs of the program (which I estimate will eventually rise to $12 billion/year or more as an estimated 200,000 people/year or more will eventually seek debt forgiveness), and given the skewed incidence of its benefits in favor of mid-career doctors and lawyers, I think that there will eventually be a more aggressive push by the Administration or members of Congress for retroactive elimination of the program, or at least for a retroactive tax law amendment to include this forgiven debt as taxable income under IRS Code Section 108 as is now done for debts forgiven under the other income-based loan forgiveness plans.

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June 1, 2017 | Permalink | Comments (3)

The Journey Begins . . .

DoorI am honored to begin my term today as Dean of Pepperdine Law School.  I am especially proud to have the support of our faculty, staff, students, and university administration in the ambitious plan I outlined as a dean candidate for Pepperdine to become the nation's premier Christian law school by combining academic and research excellence with a deep-rooted commitment to our Christian mission that welcomes people of all faiths and backgrounds. We will strive to:

  • Maximize our students’ return on investment;
  • Pursue ambitious and accountable excellence in everything we do; and
  • Build a community in which all students, faculty, and staff are loved, nurtured, and challenged to grow professionally, personally, and spiritually.


Maximaize our Students' Return on Investment (3)

My first decision as dean will undoubtedly prove to be my best as I convinced six friends and colleagues to form my leadership team and join me on this exciting journey:

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June 1, 2017 in Legal Education, Tax | Permalink | Comments (8)

Grewal:  Why Lenity Has No Place In The Income Tax

Andy Grewal (Iowa), Why Lenity Has No Place in the Income Tax Laws, 81 Mo. L. Rev. 1045 (2016):

A controversy has emerged over how to interpret statutes under which the government can undertake either civil or criminal action against a person. Should courts interpret these statutes like any other civil statutes, and defer to agencies to resolve ambiguities? Or should courts treat these statutes like pure criminal provisions, and use the rule of lenity to resolve ambiguities in a defendant-friendly fashion?

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June 1, 2017 in Scholarship, Tax | Permalink | Comments (0)

Henderson:  The Legal Profession’s ‘Last Mile Problem’

The Last MileWilliam Henderson (Indiana), The Legal Profession’s ‘Last Mile Problem’:

Since the early 1990s, the telecom industry has struggled to solve the “last mile problem.” In its initial stages, the problem centered around an information superhighway (later known as the internet) that connected together government, universities and large corporations in urban areas. The benefit of adding more users was obvious.

Unfortunately, the infrastructure of copper phone lines couldn’t handle all the data, at least with existing technology. Thus, the “last mile” of connectivity—from the bundle of wires in a box on the street to the individual end user—was the most difficult and expensive to complete. Eventually, technical feats improved quality, which connected more users and spurred more infrastructure investment. If you have affordable, high-quality broadband in your home, please toast the engineers who solved the last mile problem in your locale.

The legal profession has its own last mile problem. Clients are clamoring for legal solutions that are better, faster and less expensive. And in many corners of the profession, we already have the personnel, technology and know-how to make this happen. Missing, however, are business models that will reliably reward lawyers and their organizations for quantum leaps in legal productivity.

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June 1, 2017 in Legal Education | Permalink | Comments (1)

Wednesday, May 31, 2017

Orin Kerr Leaves George Washington For USC

KerrUSC Press Release:

Orin Kerr, the nation’s leading authority on internet surveillance, computer crime law and criminal procedure, is joining USC Gould School of Law in January.

A law professor at George Washington University since 2001, Kerr’s scholarly publications have been cited in more than 2,500 articles and 250 judicial opinions. He has argued cases before the United States Supreme Court and in federal circuits as well as testified before Congressional committees.

“I am thrilled that Orin is joining our faculty,” said Andrew Guzman, dean of USC Gould. “I have followed his work for years, and hold him in the highest regard. Our faculty and students will greatly benefit from Orin becoming part of our intellectual community.”

A gifted litigator and renowned legal scholar, Kerr formerly worked as aJustice Department attorney in the Computer Crime and Intellectual Property Section. A specialist in internet surveillance and computer crime law, he recently was one of the pro bono lawyers for a defendant sued by Facebook and previously defended MySpace “cyberbully” Lori Drew. He is also a celebrated teacher: The George Washington Law School Class of 2009 awarded him the law school’s teaching award.

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May 31, 2017 in Legal Education | Permalink | Comments (0)

WSJ:  Deans Push To Lower California Bar Pass Score, But Lawyers With Lower Scores Are More Likely To Be Disciplined Or Disbarred

WSJWall Street Journal, California’s Tough Bar Exam, Long a Point of Pride, Faces Pushback:

California’s notoriously difficult bar exam has long been a point of pride among the state’s lawyers. Now it is prompting blowback.

With passing rates hitting historic lows, the state’s law schools are pushing for a controversial change: lowering the score required to pass. The educators argue that California holds graduates to an unreasonably high standard that no longer can be justified, especially as the price of law school skyrockets.

Others say lowering the bar would pander to a recent cohort of law students with weak credentials, and that law schools should either raise their own standards or shut their doors. ...

[T]he State Bar of California is racing to answer a series of existential questions: Is the stringent test—with a passing standard higher than all states but one—serving the public interest? And does the exam even test what incoming lawyers need to know?

A study released this week by two Pepperdine University School of Law professors, Robert Anderson IV and Derek Muller, concluded that California lawyers with lower bar exam scores were more likely to be disciplined or disbarred during their careers, based on limited publicly available data:

Robert Anderson IV (Pepperdine) & Derek T. Muller (Pepperdine), The High Cost of Lowering the Bar:

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May 31, 2017 in Legal Education | Permalink | Comments (1)

Gamage & Shanske:  The American Health Care Act Would Toss The States A Hot Potato

Hot PotatoDavid Gamage (Indiana) & Darien Shanske (UC-Davis), The American Health Care Act Would Toss the States a Hot Potato, 84 State Tax Notes 579 (May 8, 2017):

This essay explains how the American Health Care Act (AHCA) — the House Republicans’ proposed replacement for Obamacare — would toss a hot potato to state governments. Were the AHCA to be enacted into law, state governments would need to act promptly if they are to save individual insurance markets within their states. This essay explains measures that state governments might take to respond to this threat.

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May 31, 2017 in Scholarship, Tax | Permalink | Comments (2)

Chicago Law Schools Consider Accepting GRE As Test Alternative To LSAT

GRELSATFollowing up on my previous posts (links below):  Chicago Tribune, Chicago Law Schools Consider Accepting GRE as Test Alternative to LSAT:

In a move that shirks a tradition as old as baby boomers, law schools around the country are starting to consider accepting an admission test other than the LSAT. And Chicago-area schools are watching closely. ... 

Northwestern University's Pritzker School of Law in Chicago is studying the possibility of accepting the GRE. "This is a new world. Law schools are looking at much more sophisticated data," said Daniel Rodriguez, dean of Northwestern's law school. "It's just simply a matter of time, and probably a short amount of time, before the hegemony of the LSAT will destabilize and law schools will be looking at other criteria for admission.

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May 31, 2017 in Legal Education | Permalink | Comments (3)

A Law School Should Not Impose Its Faculty's Social Justice Views On Students Through Mandatory Pro Bono Or Clinics (Unless There Is A Sufficient Variety Of Clinical Offerings)

Julie D. Lawton (DePaul), Teaching Social Justice in Law Schools: Whose Morality Is It?, 50 Ind. L. Rev. 813 (2017):

A few years ago, when I began interviewing for a position as a law professor, Pepperdine University School of Law invited me to interview for a position on their impressive law faculty. The Vice-Chair of the Faculty Appointments Committee asked if I would send for their review, as part of their normal evaluation process, a statement of my research agenda and a brief description of my teaching philosophy. These requests are relatively standard, but the third request was quite unusual — the Chair asked if I would also provide a statement describing how I could contribute to the mission of the University and the law school, including, of note to me, a description of my involvement, if any, with a community of faith. I responded that I was uncomfortable with a discussion of my faith, or my involvement in a faith community, as part of my professional interactions, and thus, declined the interview. However, the experience remained with me as I pondered the question that their faculty at the law school had already answered — what role should the personal ethics and morality of a law professor play in teaching?

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May 31, 2017 in Legal Education, Scholarship | Permalink | Comments (10)

AALS Call For Papers: The Use Of Nonprofit Organizations In Political Campaigns

AALS (2019)The AALS Section on Nonprofit and Philanthropy Law, in co-sponsorship with the Section on Election Law, has issued a Call for Papers on The Use of Nonprofit Organizations in Political Campaigns for the Section’s program at the January 2018 AALS Annual Meeting in San Diego:

By the end of 2016, the nonprofit sector was on the verge of becoming politicized. In that year alone, Donald Trump vowed to destroy the “Johnson Amendment,” a rule of tax law that prohibits charities and all other 501(c)(3) organizations (including churches) from political campaign intervention; the IRS determined that Karl Rove’s nonprofit organization “Crossroads GPS” was a valid “social welfare” organization under section 501(c)(4) of the tax code; IRS Commissioner John Koskinen faced impeachment threats in the House of Representatives in the continuing aftermath of the IRS tea party targeting controversy of 2013; and federal courts in New York and California weighed in on the constitutionality of requiring the disclosure of nonprofit donors. All of these events relate to a growing pressure on the nonprofit form to be used for political purposes.

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May 31, 2017 in Conferences, Legal Education, Tax | Permalink | Comments (0)

Is Arizona Summit's $36k Stipend To Defer Bar A Lifeline For At-Risk Students Or Ploy To Disguise Abysmal 25% Pass Rate?

Arizona Summit Logo (2015)ABA Journal, Arizona Summit Offers Stipend For At-Risk Grads To Put Off Exam And Get Extra Bar Prep:

To participate in [the Legal Residency Program], Arizona Summit graduates would delay taking a bar exam; in exchange they got four months of specialized bar review courses, optional law clerk positions and a stipend of about $36,000. ...

But what may be a career saver for some law students has come under fire from some law school critics who see it as a way to change the bar-passage rates law schools are required to report under ABA accreditation standards. The cynical view is that money spent on the pilot program could be a cost of doing business for the law school, which has 279 students and charges $45,424 for annual, full-time tuition.

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May 31, 2017 in Legal Education | Permalink | Comments (6)

Tuesday, May 30, 2017

Arizona Summit, Placed On Probation Following 25% Bar Pass Rate, Ordered To Post $1.5M Bond To Repay Students If Law School Closes; Court Dismissed Lawsuit By Fired Tenured Married Couple

Arizona Summit Logo (2015)Following up on my previous posts (links below): ABA Journal, Arizona Summit Ordered To Post $1.5M Bond To Repay Students If The School Closes:

Arizona Summit School of Law, part of the for-profit InfiLaw System, must post a $1.5 million bond, which would reimburse students if the school closes. ...

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May 30, 2017 in Legal Education | Permalink | Comments (1)

Batchelder:  77% Of Trump’s Giant New Tax Loophole Goes To The Top 1%

New York Times op-ed: Trump’s Giant Loophole, by Lily Batchelder (NYU):

One of the major goals of tax reform is to reduce the opportunities for savvy taxpayers to game the system. But if President Trump and House Republicans have their way, we will have a new contender for the tax code’s largest loophole: a new special cap on the tax rate for so-called pass-through business income.

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May 30, 2017 in Tax | Permalink | Comments (5)

UC-Berkeley Adjunct Calls For Renaming Boalt Hall Due To John Boalt's 1870s Anti-Chinese Racism

Boalt HallSan Francisco Chronicle op-ed: The Case For Renaming Boalt Hall, by Charles Reichmann (Adjunct Professor, UC-Berkeley):

Many colleges and universities have grappled in recent years with a difficult question: Under what circumstances should an institution remove a historical name from a building or other campus space, and what principles should guide such a decision? ...

Berkeley Law’s main classroom building is named Boalt Hall after John Henry Boalt, whose widow, Elizabeth Josselyn, made a substantial donation to erect a building in memory of her husband, dedicated in 1911. ...

Who was Boalt? Berkeley Law’s website identifies him only as an attorney and the husband of its benefactor. An established lawyer in Nevada, Boalt moved to California in 1871 at a time when Chinese immigration was rising in the state. From the time of the Gold Rush, Chinese settlers had come to California, but the 1870s saw their numbers increase 67 percent. By 1880 a full 8.7 percent of California’s population was Chinese, with few eligible for citizenship. The 1870s were also an era of economic crisis and increasing class tensions. Labor groups — and politicians eager to court them — blamed the Chinese for unemployment, poor working conditions and low wages. The call for Chinese exclusion began to be heard in the Golden State.

Boalt prospered in California and soon was president of the Bohemian Club. In 1877, Boalt delivered an influential address, “The Chinese Question,” at the Berkeley Club. ...

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May 30, 2017 in Legal Education | Permalink | Comments (17)

George Fletcher Sues Columbia Law School For Age Discrimination, Says His Course Assignments May No Longer Allow Him To Teach One Semester Per Year For Full Pay

Columbia FletcherWall Street Journal, Columbia Fights Law Professor's Age-Discrimination Lawsuit:

Columbia University is battling allegations of age discrimination leveled by one of the elite school’s most prominent law professors.

Lawyers for the New York City-based university have asked a judge in Manhattan to dismiss a complaint brought by 78-year-old law professor George P. Fletcher, an influential scholar of criminal law.

Prof. Fletcher sued Columbia University and the dean of its law school in March, alleging that the administration was pressuring him to retire and giving favorable treatment to younger faculty members.

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May 30, 2017 in Legal Education | Permalink | Comments (11)

Anderson, Merritt & Muller Debate: Is The Bar Exam Broken?

California Bar ExamFollowing up on my previous post, Deborah Jones Merritt (Ohio State), The Bar Exam Is Broken:

Robert Anderson (Pepperdine), Some Skepticism About Bar Exam Skepticism:

The pass rate on the California bar exam last July was the lowest since 1984. This has sent many people scrambling for an explanation for the dive in the pass rate. In reality, however, the reason for the drop is not mysterious. The main reason the bar pass rate dropped is that as law school applications declined beginning in 2010, schools have admitted weaker and weaker incoming classes that were less able to pass the bar. Although other factors likely played a role, especially the increasingly predatory law school transfer market, the decline in applicant quality is the main cause of the current "crisis" in the California bar exam.

The stress of declining bar pass rates has prompted many critics of the bar exam to emerge, especially among California law school deans. The California deans predictably contend that the passing score for the bar exam is too high in California. Other critics (including some law school deans) go farther, however, arguing that the exam lacks "validity" even if the passing score were changed. That is, the critics believe the exam doesn't test the skills that it is intended to test, regardless of how difficult it is to pass. According to these critics, although lowering the passing score in California might help, really the solution is to revamp the test altogether.

I refer to these critics as "bar exam skeptics," in the sense that they express profound doubt about the conventional wisdom that the bar exam tests "minimal competence" to practice law. One of the more thoughtful skeptics is Professor Deborah Merritt. ...

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May 30, 2017 in Legal Education | Permalink | Comments (2)

TaxProf Blog Holiday Weekend Roundup

Monday, May 29, 2017

Welcoming The Pepperdine Law School Class of 2020

Courtney and I are very much looking forward to getting to know the incoming Pepperdine Law School Class of 2020 at a series of summer dinners, beginning tonight.

Caron Admitted Students Dinners

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May 29, 2017 in Legal Education | Permalink | Comments (0)

The Business Of Law Is NOT Changing As Much As Pundits Claim

David Lat (Above the Law), 5 Ways In Which The Business Of Law Is NOT Changing Anytime Soon:

Journalists have a bias in favor of change. Something’s not “news” unless it’s new. Pronouncements of “seismic shifts” and “sea changes” generate more buzz and page views than saying things aren’t really changing all that much. This explains why we media types tend to go on breathlessly about “transformation” this and “disruption” that.

But picking up on the major theme of my story from yesterday about the latest Am Law 200 rankings, in which I argued that reports of Biglaw’s death (or even disruption) are greatly exaggerated, I’d like to provide more examples of how the practice and business of law aren’t changing as much as some might think. ...

3. Robots aren’t taking all your jobs.

Jamie Wine, global chair of the litigation department at Latham & Watkins, talked about how her firm is working with IBM (of Watson fame) to see how artificial intelligence can improve the delivery of legal services. But AI is still not a total substitute for actual lawyers. For example, artificial intelligence can streamline the due diligence process, but it’s still not perfect; for example, it’s not great at detecting when key provisions are missing from a contract.

As Stuart Ingis, chairman of Venable, added, “Computers aren’t yet able to advocate. We are being hired to advocate, whether in court or in a deal, and computers can’t yet do that.” ...

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May 29, 2017 in Legal Education | Permalink | Comments (1)

Memorial Day Tax Resources For U.S. Armed Forces (And Their Families, Employers)

IwaContinuing a TaxProf Blog Memorial Day tradition, I want to pass along links to the Tax Information for Members of the U.S. Armed Forces material maintained on the IRS web site:

The tax laws provide some special benefits for active members of the U.S. Armed Forces, including those serving in combat zones. For federal tax purposes, the U.S. Armed Forces includes officers and enlisted personnel in all regular and reserve units controlled by the Secretaries of Defense, the Army, Navy and Air Force. The Coast Guard is also included, but not the U.S. Merchant Marine or the American Red Cross. However, these and other support personnel may qualify for certain tax deadline extensions because of their service in a combat zone.

For dozens of links to military tax resources, see below the fold.

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May 29, 2017 in Tax | Permalink | Comments (0)

Sunday, May 28, 2017

New York Times College Rankings

New York Times Sunday Review, Top Colleges Doing the Most for the American Dream:

Welcome to the third annual College Access Index. It's a New York Times ranking of colleges — those with a five-year graduation rate of at least 75 percent — based on their commitment to economic diversity. The ranking is based on a combination of the number of lower-and middle-income students that a college enrolls and the price it charges these students. The top of the ranking is dominated by campuses in the University of California system, while the most diverse private colleges include Amherst, Pomona, Harvard and Vassar. Notably, a college's endowment does not determine its commitment to economic diversity. There are wealthy colleges and much less wealthy ones at both the top and bottom of the ranking.

NY Times

New York Times Sunday Review, The Assault on Colleges — and the American Dream:

The country’s most powerful engine of upward mobility is under assault.

Public colleges have an unmatched record of lofting their students into the middle class and beyond. For decades, they have enrolled teenagers and adults from modest backgrounds, people who are often the first member of their family to attend college, and changed their trajectories.

Over the last several years, however, most states have cut their spending on higher education, some drastically. Many public universities have responded by enrolling fewer poor and middle-class students — and replacing them with affluent students who can afford the tuition. ...

The decline of economic diversity at top public colleges is the clearest pattern in The Times’s third annual ranking of leading colleges — the roughly 170 nationwide with a five-year graduation rate of at least 75 percent. (Yes, you can be disappointed that so few colleges clear that bar.)

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May 28, 2017 in Law School Rankings, Legal Education | Permalink | Comments (10)

Richard Bierschbach (Cardozo) Named Dean At Wayne State

Bierschhbach 2Richard Bierschbach (Cardozo) has been named Dean at Wayne State, succeeding Jocelyn Benson, who was the youngest woman to ever be a law school dean (and the only law school dean to run the Boston Marathon while eight months pregnant), who stepped down to be CEO of a national campaign for equality in sports. Bierschbach joined the Cardozo faculty in 2005 after clerking for Justice O'Connor and has a spectacular publication record as a criminal law scholar (with articles in the Georgetown, Michigan (2), Minnesota, Northwestern, Pennsylvania, Virginia (2) and Yale law reviews, among others).  He served as Vice-Dean at Cardozo from 2015-16 and since February 2017 has been Associated Law Professor at Orrick, Herrington & Sutcliffe in New York City (following over six years as Special Counsel at the firm).

Wayne State has attracted a lot of attention recently for its efforts to fire five underperforming tenured professors:

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May 28, 2017 in Legal Education | Permalink | Comments (1)

The Top 5 Tax Paper Downloads

SSRN LogoThere is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #4 and #5:

  1. [323 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  2. [212 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  3. [194 Downloads]  A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits, by Reuven S. Avi-Yonah (Michigan) & Haiyan Xu (Michigan)
  4. [136 Downloads]  Recent Developments in Federal Income Taxation: The Year 2016 , by Martin J. McMahon Jr. (Florida) & Bruce A. McGovern (South Texas)
  5. [127 Downloads]  Why Don't White Supremacists Pay Taxes?, by Eric Franklin Amarante (UNLV)

May 28, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, May 27, 2017

This Week's Ten Most Popular TaxProf Blog Posts

Raskolnikov:  A Tale of Two Tax Plans — What Trump And Ryan Get Wrong

Foreign Affairs 2Foreign Affairs:  A Tale of Two Tax Plans: What Trump and Ryan Get Wrong, by Alex Raskolnikov (Columbia):

Republicans have long panned the U.S. tax system; now they have a plan to change it. In fact, two plans. The first comes from Congress, the second from the White House. The congressional “Better Way” plan, championed by Paul Ryan, the Speaker of the House, and Kevin Brady, chair of the House Ways and Means Committee, would create a business tax system that has never existed anywhere in the world. The White House plan would enact a massive tax cut, mostly for the wealthy.

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May 27, 2017 in Tax | Permalink | Comments (4)

88% Of Law Firms Have 'Chronically Underperforming Lawyers': 'Decreasing Demand For Legal Services Is Endemic In The Profession'

ABA Journal, Law Firm Leaders Report Lawyer Oversupply and 'Chronically Underperforming Lawyers':

Fifty-two percent of law firm leaders responding to Altman Weil’s Law Firms in Transition Survey  said their equity partners are not sufficiently busy. Sixty-two percent said nonequity partners are not busy enough, and 25 percent said associates don’t have enough work. Eighty-eight percent of the leaders said they have “chronically underperforming lawyers” at their firms. When asked why, 82 percent identified weak business development skills and 59 percent said flat or declining market demand was part of the problem.

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May 27, 2017 in Legal Education | Permalink | Comments (8)

Friday, May 26, 2017

The Last Weekly Tax Highlight And Roundup?

TaxProf Blog LogoOn August 1, 2016, I announced that, due to my growing other commitments, I was reducing the amount of time that I devote to TaxProf Blog by dropping my weekly tax, legal education, SSRN, and student tax note roundups.  Happily, Joe Kristan took over the weekly tax roundup, Scott Fruehwald took over the weekly legal education roundup, and David Gamage (Indiana), Ari Glogower (Ohio State), Daniel Hemel (Chicago), and Erin Scharff (Arizona State) took over the weekly SSRN roundup — and frankly have done better jobs than I did. (Regrettably, no one volunteered to take over the weekly student tax note roundup and it remains dormant.) 

As Joe describes below, this is the 31st and last installment of his weekly tax roundup on TaxProf Blog.  On behalf of all of my readers, I thank Joe for sharing his great work with us.  Joe belongs on the Mount Rushmore of tax bloggers.  We will miss him greatly. 

As I get ready to assume the Pepperdine deanship on June 1 (more here, here, here, here, and here), I am struggling to fulfill my commitment to continue TaxProf Blog.  If you are a law professor who has found TaxProf Blog a helpful resource and would like to help it continue by contributing legal education or tax content on a regular basis, please email me.

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May 26, 2017 in About This Blog, Legal Education, Tax, Weekly Tax Roundup | Permalink | Comments (1)

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new work by Chris William Sanchirico (Penn), Optimal Redistributional Instruments in Tax Policy and Law & Economics: Survey and Assessment, in The Oxford Handbook of Law & Economics, Vol. 1: Methodology and Concepts 321 (Francesco Parisi, ed., 2017)

Glogower (2016)In his new work, Chris Sanchirico surveys the current literature on the optimal redistributional instruments, which seeks identify the most efficient policy tool(s) for redistribution.

Sanchirico identifies three broad strands in the literature.  First, the tax substitution argument generally holds that redistribution is best accomplished through a tax on labor earnings, because redistribution through any other policy can be substituted for redistribution through the labor income tax, at a lower cost.  As Sanchirico has argued in prior work, however, the assumptions about labor income taxation underlying the tax substitution argument could similarly be used to justify optimal redistribution through other policies or instruments.

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May 26, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (1)

Weekly Legal Education Roundup

Henderson:  The Number Of Law School Graduates Has Fallen 28% Amidst Declining Demand For Legal Services

Bill Henderson (Indiana), Supply of Law Graduates Is Shrinking, But So Is Demand:

Henderson 3

The ABA just released 10-months out employment data for the class of 2016.  The percentages of grads employed in full-time/long term Bar Passage Required and JD Advantage jobs is up (72.5% compared to 70.1% in 2015).  However, the total number of these jobs is down (28,029 to 26,923).

Is this good news for law schools? Not really.  The employment percentage is up only because the number of law grads is dropping faster than the number of jobs. But both numbers — grads (supply) and jobs (demand) — are declining. A true recovery would show the opposite.

The graph above reveals a dramatic drop in the number of law grads.  The green bars reflect historical data.   The orange bars are projections for the next three years based on incoming 1L classes that have already enrolled. (Based on a 10-year historical average, 90.1% of entering 1Ls receive a JD three years later.)  Between 2013 and 2019, the size of graduating classes will drop 28.0%.

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May 26, 2017 in Legal Education | Permalink | Comments (9)

Tax Policy In The Trump Administration