TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, September 6, 2016

Perdue:  Law Schools, Universities, And The Challenge Of Moving A Graveyard

Rethinking 2Wendy Collins Perdue (Dean, Richmond), Law, Universities, and the Challenge of Moving a Graveyard, 50 U. Rich. L. Rev. Online 3 (2015) (reviewing Carel Stolker, Rethinking the Law School: Education, Research, Outreach and Governance (Cambridge University Press 2015)):

The last five years have been difficult ones for American legal education. With applications to law schools declining 40% nationally, many schools are struggling to maintain quality in the face of significant budgetary pressures. But one component of the legal-education world has been robust: there is a boom market in books, articles, reports, websites, and blogs filled with criticism and even anger at the current state of legal education. There are many villains in these narratives—greedy universities that suck resources, self-absorbed faculty who are indifferent to their students, and dishonest deans willing to misrepresent their current reality—and many victims—duped college graduates and lawyers leading miserable lives of tedium, long hours, and depression.

Against this dark narrative genre, Carel Stolker’s new book, Rethinking the Law School, stands in sharp contrast. Having been both a law school dean and university president at Leiden University in The Netherlands, Stolker brings the perspective of a dean who has sought to innovate, and of a university president who has dealt with the political, academic, financial, and managerial complications of a modern university. The book offers a broad look at legal education around the world, along with a thoughtful exposition of the challenges facing law schools and law deans. Stolker is no cheerleader for the current state of legal education, but recognizing that “the nature, content and quality of legal education is a subject that flares up frequently and dies down again,” he approaches the issues without the shrillness and anger that characterize some of the current commentary. He also leavens his realism with some welcomed humor, noting, for example that “changing a university is like moving a graveyard, you get no help from the people inside.” ...

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September 6, 2016 in Book Club, Legal Education, Scholarship | Permalink | Comments (0)

The IRS Scandal, Day 1216

IRS Logo 2Charlotte Observer editorial, Should IRS Chief Be Impeached?:

Congress returns to work Tuesday, and at the top of several members’ to-do list is impeaching IRS Commissioner John Koskinen. ...

It’s hard, we know, to gin up much sympathy among Americans for the chief tax collector. It’s even harder when the Internal Revenue Service has made so many missteps in recent years. The extent of Koskinen’s imperfections, though, is debatable; they almost surely fall far short of the “high crimes and misdemeanors” that impeachment requires. ...

It’s possible his performance has been sporadic and his commitment to transparency inconsistent. That would, unfortunately, make him a Washington regular, but not a criminal traitor.

At a minimum, he deserves an exhaustive hearing and opportunity to defend himself in front of the House Judiciary Committee before such an extraordinary — and politically motivated — action is taken.

That’s not what Freedom Caucus members like North Carolina’s Rep. Mark Meadows envision. They are willing to take Koskinen’s fate to the House floor for an up-or-down vote with no due process. That would violate tradition and establish an ominous precedent.

Koskinen (a Duke grad and former chair of Duke’s board of trustees) took over in December 2013, charged with cleaning up the mess made by Lois Lerner. Lerner was at the center of a scandal prior to Koskinen’s arrival in which the IRS mostly targeted conservative political groups in their applications for nonprofit tax-exempt status.

Congress issued a subpoena to Koskinen seeking all of Lerner’s emails. Weeks later, IRS employees in West Virginia erased 422 backup tapes that contained as many as 24,000 of Lerner’s emails.

There is no evidence that Koskinen was personally involved in the deletion. The Republican-appointed inspector general investigating Lerner’s actions said the erasure was an accident stemming from a miscommunication.

The rest of the resolution to impeach Koskinen is flimsy. It accuses him of making “false and misleading statements” to Congress. Koskinen says he testified to what he thought was true at the time, even if some of it later turned out not to be accurate. ...

Lerner’s actions were unacceptable, and the IRS’s failure to retain vital documents in the case is disturbing. So Congress is right to continue to pursue questions. Impeachment, though, is almost certainly using a bazooka to kill a roach. At the least, Koskinen, who has offered a lifetime of public service and ethical behavior, deserves a chance to fully tell his side of the story.

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September 6, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (4)

TaxProf Blog Holiday Weekend Roundup

Monday, September 5, 2016

IRS Issues Final Regulations Redefining Marriage For Tax Purposes To Include Same-Sex Couples

ObergefellNational Law Journal, New IRS Rules Reflect Supreme Court's Same-Sex Marriage Decisions:

If the only certainties in life are death and taxes, then two U.S. Supreme Court decisions involving same-sex marriages are now certain—effective today. The Internal Revenue Service on Friday formally put into place amendments to regulations that define who is married for tax purposes.

The Supreme Court in 2013 in United States v. Windsor struck down the definition of marriage as only between a man and a woman in the federal Defense of Marriage Act. Two years later, the high court in Obergefell v. Hodges made same-sex marriages legal throughout the nation.

The Windsor case stemmed from a tax dispute. Edie Windsor sought to claim the federal estate tax exemption for surviving spouses after her spouse, Thea Spyer, left her entire estate to Windsor. She paid nearly $400,000 in estate taxes. The IRS denied Windsor a refund.

The IRS regulations, published in the federal register and effective Sept. 2, reflect the holdings of those two high court decisions and define terms in the Internal Revenue Code describing the marital status of taxpayers.

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September 5, 2016 in IRS News, Tax | Permalink | Comments (0)

Labor Day And The Tax Burden On Labor

Kyle Pomerleau & Kevin Adams (Tax Foundation), A Comparison of the Tax Burden on Labor in the OECD, 2016:

Although the United States and most OECD countries are known for having progressive tax systems that tax high-income earners more than low- or moderate-income earners, a large portion of the tax burden still falls on the average worker. Even here in the United States, which has a lower tax burden than most other OECD countries, average workers end up paying nearly one-third of their incomes in taxes. It is true that governments in the OECD, especially European countries, provide more government programs. However, their workers end up paying a much higher price for them.

Tax Foundation 1

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September 5, 2016 in Tax, Think Tank Reports | Permalink | Comments (1)

Labor Day, The Minimum Wage, And The Earned Income Tax Credit

Labor Day 2Joe Kristan (Tax Update Blog), Labor Day and the Earned Income Tax Credit:

[Y]ou may want to ponder the hot “labor” issue of the moment — the minimum wage and its alternatives. ... Many economists argue that an increased Earned Income Tax Credit is a better way to support the working poor.   For example, in The minimum wage versus the earned income tax credit for reducing poverty, Cornell University economist Richard V. Burkhauser states:

Introducing or increasing a minimum wage is a common policy measure aimed at reducing poverty. But the minimum wage is unlikely to achieve this goal. While a minimum wage hike will increase the wage earnings of some poor families and lift them out of poverty, some workers will lose their jobs, pushing their families into poverty. In contrast, improving the earned income tax credit can provide the same income transfers to the working poor at far lower cost. Earned income tax credits effectively raise the hourly wages only of workers in low- and moderate-income families, while increasing labor force participation and employment in those families.

The argument for a perfect earned income tax credit is compelling, but the credit is far from perfect. It is estimated that around 25% of the Earned Income tax credit paid out is paid improperly, including billions in fraud. Earned income tax credit fraud is a big part of the business of corrupt preparers. Many other taxpayers who could properly claim it fail to because of its complexity.

Even if the waste and fraud problem could be solved or overlooked, a properly-functioning EITC is still a poverty trap. The credit phases out as incomes rise, creating a high effective marginal tax rate on each additional dollar earned by a low-income family. It provides help at low income levels, but it discourages improving those income levels.

Implicit 2

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September 5, 2016 in Tax | Permalink | Comments (3)

Despite UC President Napolitano’s Previous Ban, Former UC-Berkeley Law Dean Still On Campus

UC Berkeley (2016)Following up on my previous posts (links below):  Daily Californian, Despite Napolitano’s Previous Ban, Former Berkeley Law Dean Still on Campus:

Former UC Berkeley School of Law dean Sujit Choudhry will be on campus this semester working in his office, according to an email sent Thursday by interim Berkeley Law dean Melissa Murray to law faculty, staff and students.

Earlier this year, UC President Janet Napolitano asked Chancellor Nicholas Dirks to ban Choudhry from campus for the remainder of the spring semester after a former employee sued him for sexual harassment.According to Choudhry’s lawyer William Taylor, however, the ban was never implemented by Dirks, and Choudhry retained access to campus for that time.

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September 5, 2016 in Legal Education | Permalink | Comments (2)

The IRS Scandal, Day 1215

IRS Logo 2The Hill, House GOP Braces For Spending, IRS Fights:

House GOP leaders are preparing their members for fights over government funding and whether to impeach the commissioner of the Internal Revenue Service when Congress returns from its long summer recess. ...

Freedom Caucus members are pushing to vote on a resolution to impeach Koskinen, who they allege wasn't forthcoming with documents regarding the IRS's scrutiny of conservative nonprofits.

Reps. John Fleming (R-La.) and Tim Huelskamp (R-Kan.) introduced a "privileged" resolution on the House's last day of session before the recess to force a vote on impeachment. It's unclear if members of the Freedom Caucus would have to re-file the resolution, given that House rules state that privileged measures must be acted on within two legislative days.

GOP leaders have been wary of staging an impeachment vote, given that the House has only voted one other time in history to impeach a Cabinet official: Secretary of War William Belknap in 1876.

House Republicans' first conference meeting upon returning the day after Labor Day is expected to focus on strategy for the spending bill, with another on the IRS the following week.

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September 5, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (2)

Sunday, September 4, 2016

Schiller:  Today’s Inequality Could Become Tomorrow’s Catastrophe Without Redistributive Tax Policies

Taxing the RichNew York Times: Today’s Inequality Could Easily Become Tomorrow’s Catastrophe, by Robert Schiller (Yale):

Economic inequality is already a concern, but it could become a nightmare in the decades ahead, and I fear that we are not well equipped to deal with it.

Truly extreme gaps in income and wealth could arise from many causes. Consider just a few: Innovations in robotics and artificial intelligence, which are already making many jobs uncompetitive, could lead us into a world in which basic work with decent pay becomes impossible to find. An environmental disaster like global warming, pollution or disease could sharply reduce the ability of people of ordinary means to live in specific regions or entire countries.

Future wars using ever more highly destructive technology, including chemical, biological, radiological or nuclear weapons, could devastate vast populations. And it’s not out of the question that dire political changes, like the rise of racist or otherwise exclusionary social structures, could have terribly damaging consequences for less privileged people.

Of course, I dearly hope none of these things ever happen. But even if they are unlikely, as part of our progress to a better world, we should be thinking now of how we might address them. ...

One way to judge the likely outcome is to look at what has happened in the past. In their new book Taxing the Rich: A History of Fiscal Fairness in the United States and Europe (Princeton 2016), Kenneth Scheve of Stanford and David Stasavage of New York University looked at 20 countries over two centuries to see how societies have responded to the less fortunate [more here and here]. Their primary finding may seem disheartening: Taxes on the rich generally have not gone up when inequality and economic hardship have increased.

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September 4, 2016 in Tax | Permalink | Comments (9)

IRS Releases Summer 2016 SOI Bulletin, 2014 Tax Return Data

The Top 5 Tax Paper Downloads

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

  1. [491 Downloads]  Dark Pools, High-Frequency Trading, and the Financial Transaction Tax: A Solution or Complication?, by Doron Narotzki (Akron)
  2. [398 Downloads]  The True Economic Effects of Corporate Inversions, by Doron Narotzki (Akron)
  3. [320 Downloads]  Property Is Another Name for Monopoly Facilitating Efficient Bargaining with Partial Common Ownership of Spectrum, Corporations, and Land, by Eric A. Posner (Chicago) & E. Glen Weyl (Yale)
  4. [306 Downloads]  Executive Pay: What Worked? , by Steven A. Bank (UCLA), Brian R. Cheffins (Cambridge) & Harwell Wells (Temple)
  5. [244 Downloads]  The Trojan Horse of Corporate Integration, by Edward D. Kleinbard (USC)

September 4, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Fired Medical School Professor Shoots Dean

MountInside Higher Ed, Police: Dean Shot by Fired Professor:

Authorities have charged Hengjun Chao, a former assistant professor at the Mount Sinai School of Medicine, with attempted murder for shooting the school's dean and another man Monday morning at a deli in Chappaqua, N.Y. Chao is being held in jail. ...

[R]evenge is believed to be a motive in the shooting of Dennis Charney, who is being treated for non-life-threatening injuries. The other man who was shot was treated at a hospital and released.

Mount Sinai officials confirmed that Chao was dismissed in 2010. He then sued Mount Sinai in federal court and lost at the district court level and in a ruling by the U.S. Court of Appeals for the Second Circuit. 

In the latter ruling, the appeals court rejected Chao's claims that the medical school and its officials -- including Charney -- defamed him and denied him his rights in finding that he engaged in research misconduct. The appeals court found that Mount Sinai officials had been "presented with substantial evidence indicating that Chao had committed research misconduct." The case involved alleged data fraud, which Chao denied.

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September 4, 2016 in Legal Education | Permalink | Comments (1)

The IRS Scandal, Day 1214

IRS Logo 2Newsmax, IRS Chief Faces Likely Impeachment Vote in US House:

U.S. House conservatives are set to re-launch ... their effort to impeach Internal Revenue Service Commissioner John Koskinen, with or without Speaker Paul Ryan’s go-ahead.

Representative John Fleming says he and other conservatives are prepared to unilaterally force an impeachment vote within days after Congress returns to session on Sept. 6. “The only thing up in the air is whether it will be the first or second week we’re back,” the Louisiana Republican said in an interview.

Any action would be largely symbolic, because the effort would get blocked in the Senate if it passes the House. But Republicans remain angry at Koskinen, who they accuse of impeding an investigation into whether the tax agency improperly targeted conservative non-profits. Their allegations include failing to prevent the IRS from destroying evidence and providing false and misleading information to Congress.

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September 4, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

Saturday, September 3, 2016

This Week's Ten Most Popular TaxProf Blog Posts

Horwitz:  Another Upside of Being A Law Professor—Chronic Illness

Paul Horwitz (Alabama), Another Upside of Being an Academic: Chronic Illness:

I have been generally sick the past two years and had ankle replacement surgery this summer—a pleasant bookend to my last summer, which featured fusion surgery on my other ankle. I will say as a quick side-note that although it's relatively early, both surgeries appear to have gone very well and I'm looking forward to brighter days. 

Chronically-ill-academic pieces are kind of a genre at this point [e.g., here, here, here, and here], and I've written here before on living with chronic pain and illness. ... [G]iven that my skill set as a blogger, such as it is, involves saying professionally imprudent things, but at such length that no one notices, I thought I'd add two points—one mildly contrarian, the other mildly "rude"—that I haven't seen made much of in the law professor posts I've seen on the subject of academics and chronic pain or illness [e.g., here, here, and here].

The first is that, all things considered, one has to be counted as damned lucky to be an academic if one has to be chronically ill. The usual narrative and counter-narrative about law professors, certainly post-2008 but before then too, involves claims on the one side that law professors, like many other academics, wallow in free time and light duties, and extravagant claims on the other about 80-hour weeks and how much harder one works as a legal academic than one did in private practice. Both are exaggerated and both obscure the single greatest academic privilege concerning the use of one's time: flexibility. With few exceptions, law professors and other academics (although we are probably even better situated) have incredibly few fixed time commitments. Sure, we sometimes work long hours (though not as much or as often as the defenders assert). But for the most part we choose whether and when to do so. And, apart from classes and some service obligations, long pauses between major professional activities are easily—no doubt too—available. ...

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September 3, 2016 in Legal Education | Permalink | Comments (3)

NY Times:  If Trump Gets His Way, Real Estate Will Get Even More Tax Breaks

Trump (2016-2)New York Times: If Trump Gets His Way, Real Estate Will Get Even More Tax Breaks, by James B. Stewart:

It’s hard to imagine a tax code more favorable to real estate developers than the one we already have.

Donald Trump has come up with one.

Thanks to some major loopholes in the existing tax code that treat real estate developers as a special privileged class, it’s entirely possible (even likely) that Mr. Trump pays little or no federal income tax.

But Mr. Trump’s new tax proposal doesn’t just preserve those breaks, it piles on new ones for real estate developers like Mr. Trump himself — at an estimated cost of more than $1 trillion in tax revenue over a decade.

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September 3, 2016 in Political News, Tax | Permalink | Comments (0)

LSAT Takers By State, 2010-2016

Keith Lee, LSAT: Don’t Call It A Comeback:

The number of LSAT takers have been on the decline since 2009. This continual downward trend put immense pressure on law schools to shrink class sizes, admit less qualified students, and focus on employment outcomes for graduates. ... It appears that LSAT takers bottomed out last year. In 2014, there were 69,448 LSAT takers. In 2015, there were 71,492 takers, a 2.94% increase.


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September 3, 2016 in Legal Education | Permalink | Comments (1)

The IRS Scandal, Day 1213

IRS Logo 2Government Executive, IRS Chief Affirms That Agency Ended ‘Be on the Lookout’ Lists:

In the latest wrinkle in the controversy over the Internal Revenue Service’s alleged targeting of conservative groups, the tax agency’s chief has written to Congress [letter here] to assure lawmakers that its Exempt Organization’s division long ago discontinued use of so-called “Be on the Lookout” lists to sift through applications from nonprofits.

Earlier this month, a federal appeals court handling an ongoing case from the conservative group True the Vote zeroed in on the IRS’s use of the term “suspended” to describe the practice of flagging groups based on their names, overruling a lower court and restoring the suit against the agency.

On Aug. 18, Internal Revenue Commissioner John Koskinen sought to set the record straight in a letter to the chairman and ranking member of the Senate Finance Committee harking back several years to the multiple investigations of IRS’s allegedly biased processing of applications for tax-exempt status from groups claiming to be social welfare organizations.

“I want to be clear that no matter how you say it -- whether it's suspended, eliminated or ended -- the IRS stopped this practice long ago and is committed to never using such a list or process ever again,” Koskinen wrote, citing his own repeated testimony to Congress, his speeches and the reports from the Treasury Inspector General for Tax Administration saying the BOLO lists ended three years ago.

“The IRS and its leadership team have been, and remain, absolutely committed to avoiding any selection and further review of potential political cases based on names and policy positions,” he added. “There should be no doubt on this point, or regarding the continued, ongoing commitment by the IRS to be guided by the tax law and nothing else.”

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September 3, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (11)

Friday, September 2, 2016

Networks Are More Responsible For Career Success Of Young Lawyers (And Everyone) Than Achievements

Keith Lee, Social Behavior More Indicative of Career Success Than Achievements:

Many freshly minted lawyers (and law students) are concerned about their career opportunities. Things have never really been the same since 2007. Law firms continue to shed excess lawyers and defer the start of new associates. Or they just don’t hire new lawyers at all. Here’s a chart I made in 2015 if you need a visualization.


In this environment, new lawyers are doing everything they can to get hired and then stay hired. They’re working harder, better, faster, stronger. Many new lawyers likely focus on their achievements to display their competence when it comes to their work. Yet evidence suggests defining success by “achievement” and “competence” might actually be detrimental to career success. ... [P]eople who are able to emphasize social relationships and adaptability are more likely to find career success in an organization than those who exclusively pursue work achievements. ...

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September 2, 2016 in Legal Education | Permalink | Comments (2)

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new paper by Daniel Hemel (Chicago) and Kyle Rozema (Northwestern), Inequality and the Mortgage Interest Deduction, forthcoming in the Tax Law Review:

Glogower (2016)Hemel and Rozema ask a question that we thought was well settled: What are the distributional consequences of repealing the mortgage interest deduction (“MID”)? Their conclusion (spoiler alert): It depends.

The article is important in two respects. First, it introduces a more sophisticated analysis of the distributional consequences from repealing (or limiting) the MID and other tax preferences. Through this exercise, the article also adds empirical perspective to the choices for measuring progressivity in tax reforms.

Building on David Kamin’s work on progressivity in tax reforms, the article begins with a result we’ll call the “Tax Burden Paradox”: Repealing a tax preference that provides a larger benefit to high-income taxpayers in dollar terms may in fact decrease those taxpayers’ share of society’s total tax burden.  Consider the article’s example of a two-household society, one rich with pretax income of $100, and one poor with pretax income of $50, and progressive rates that tax the first $50 of income at 20%, and additional income at 40%.  The rich and poor households pay $12 and $9, respectively, in mortgage interest. With the MID, the rich household pays $25.20 in taxes, or 75.4% of the society’s total $33.40 tax burden. If the MID is repealed, the rich household pays $30 in taxes, for a reduced 75% share of the society’s total $40 tax burden.

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September 2, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Drake Seeks To Hire A Tax Prof

Drake LogoDrake University Law School invites applications from entry level and lateral candidates for a tenure-track or tenured position beginning in the 2017-18 academic year:

We are especially interested in candidates with demonstrated interest or experience in Wills and Trusts or Taxation. Qualifications include: a record of academic excellence, substantial academic or practice experience, and a passion for teaching. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.

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September 2, 2016 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

UCLA Graduate Student Body President Leaves Law School For NYU Due To Anti-Israel Harassment

UCLA LogoDaily Bruin, Former Graduate Stduent Association President to Leave UCLA, Finish Law School at NYU:

Former Graduate Students Association president Milan Chatterjee announced he will leave UCLA for his last year of law school.

In a letter dated Aug. 24 and addressed to Chancellor Gene Block, Chatterjee claimed to have been bullied and harassed by members of the Boycott, Divestment, Sanctions movement.

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September 2, 2016 in Legal Education | Permalink | Comments (5)

Mazur: Transfer Pricing Challenges In The Cloud

CloudOrly Mazur (SMU), Transfer Pricing Challenges in the Cloud, 57 B.C. L. Rev. 643 (2016):

Cloud computing — the provision of information technology resources in a virtual environment — has fundamentally changed how companies operate. Companies have quickly adapted by moving their businesses to the cloud, but international tax standards have failed to follow suit. As a result, taxpayers and tax administrations confront significant tax challenges in applying outdated tax principles to this new environment. One particular area that raises perplexing tax issues is the transfer pricing rules. The transfer pricing rules set forth the intercompany price a cloud service provider must charge an affiliate using its cloud services, which ultimately affects in which jurisdiction the company’s profits are taxed. This Article argues that the fundamental features of cloud computing exacerbate some of the more difficult transfer pricing problems that already exist.

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September 2, 2016 in Scholarship, Tax | Permalink | Comments (0)

Professor Goes on Hunger Strike Following Denial Of Tenure By President And Board, Following 12-1 Favorable Faculty Committee Vote

RojoInside Higher Ed, Going Hungry for Tenure:

Lafayette professor goes on a hunger strike to protest what he sees as irregularities and injustices in his failed tenure bid. He is the latest minority professor to raise questions about fairness of teaching evaluations.

Professors who think they’ve been treated unjustly in their tenure bids have protested in a variety of ways, including lawsuits and social media campaigns. Juan Rojo, an assistant professor of Spanish at Lafayette College, is doing something different, and arguably harder. After receiving the final word on his failed tenure bid last month, he announced at a faculty meeting this week that he was going on a hunger strike until his job is restored. Rojo’s main contention is that his bid was approved by two separate faculty bodies — one unanimously — before it was a rejected by Lafayette’s president, Alison Byerly, over concerns about his teaching. Much of the evidence she cited against him was taken from student evaluations of teaching, which can be highly subjective.

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September 2, 2016 in Legal Education | Permalink | Comments (2)

The IRS Scandal, Day 1212

IRS Logo 2The Daily Caller, Real Power Behind IRS Conservative Targeting Scandal Still A Mystery:

An FBI investigation missed the IRS official who first set in motion the illegal targeting of conservative and tea party non-profit groups applying for tax exemption, documents obtained by a government watchdog group reveal.

An internal IRS document prohibited the targeted applicants from being approved automatically for tax exemption, and agency officials were told to send all such applications to the Orwellian-named Group 7822 to await additional guidance, FBI interviews obtained by Judicial Watch show.

It’s still unclear who authored the internal document that established Group 7822 and who ordered targeted applications be sent to Group 7822.

Disgraced IRS senior executive Lois Lerner has taken most of the heat since retiring from the federal tax agency, but the FBI investigation, which resulted in no prosecutions, suggested that Lerner didn’t write the internal guidance. It’s unclear if she had a role in creating Group 7822. ...

It’s unclear why the FBI did not press IRS officials on who was behind the BOLO and Group 7822. Judicial Watch did reveal, however, that a Department of Justice attorney who donated $6,750 to the Obama campaign and the Democratic National Committee spent more than 1,500 hours on the investigation.

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September 2, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

Thursday, September 1, 2016

Reuven Avi-Yonah Leaves Michigan For UC-Irvine

Avi-YonahPress Release, University of California, Irvine School of Law Welcomes New Faculty, Largest First-Year Class in School's History and New LL.M. Program:

University of California, Irvine School of Law has hired four new full-time faculty members, bringing the total number of full-time professors to 48. ... All of these new faculty members are leading scholars and skilled practitioners in their respective areas of expertise. ...

Reuven S. Avi-Yonah
Professor Avi-Yonah specializes in corporate and international taxation, international law and legal history. His scholarship focuses on defining the underlying principles of an international tax regime and what consequences follow from these principles for the allocation of tax revenues among countries and for the taxation of multinational enterprises. He will join UCI Law in fall 2017 from University of Michigan Law School, where he has been the Irwin I. Cohn Professor of Law and Director of the International Tax LL.M. program.

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September 1, 2016 in Legal Education, Tax, Tax Prof Moves | Permalink | Comments (3)

More On The EU-Apple $14.5 Billion Tax Dispute

Jerry Brown Vetoes 50-Hour Pro Bono Mandate For California Bar Admission, Citing 'Skyrocketing' Costs Incurred By Students Who 'Struggle To Find Employment'; Instead, Focus Should Be On Lowering Costs Of Law School And Bar Exam

California State Bar (2014)Veto Message (Aug. 29, 2016):

I am returning Senate Bill 1257 without my signature.

This bill requires an applicant for membership in the State Bar to complete at least fifty hours of supervised pro bono legal service. It also requires that a practicing lawyer or law professor supervise the student.

I certainly support law students and lawyers providing pro bono legal services. Some law schools already promote volunteerism and pro bono service in various ways and many employers also require a certain amount of pro bono hours for associates and clerks. While I commend the author for his desire to further these efforts, I don't believe a state mandate can be justified.

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September 1, 2016 in Legal Education | Permalink | Comments (6)

Hellerstein:  A Hitchhiker’s Guide To The OECD’s International VAT/GST Guidelines

Florida Tax Review  (2015)Walter Hellerstein (Georgia), A Hitchhiker’s Guide to the OECD’s International VAT/GST Guidelines, 18 Fla. Tax Rev. 589 (2016):

The OECD’s International VAT/GST Guidelines, which were released in their consolidated form at the OECD’s Global Forum on VAT in Paris in late 2015, are the culmination of nearly two decades of efforts to provide internationally accepted standards for consumption taxation of cross-border trade, particularly trade in services and intangibles. This article provides a roadmap to the Guidelines, especially for readers who may be unfamiliar with consumption tax principles, in general, or VATs in particular.

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September 1, 2016 in Scholarship, Tax | Permalink | Comments (0)

July 2016 Bar Exam Scores Rise, But Remain Near All-Time Low Amidst Declining LSAT Scores

MBEDeborah Jones Merritt (Ohio State), Surprise: MBE Scores Rise in 2016:

Erica Moeser, President of the National Conference of Bar Examiners, sent a memo to law school deans today. The memo reported the welcome, but surprising, news that the national mean score on the MBE was higher in July 2016 than in July 2015. Last year, the national mean was just 139.9. This year, it’s 140.3.

That’s a small increase, but it’s nonetheless noteworthy. LSAT scores for entering law students have been falling for several years.

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September 1, 2016 in Legal Education | Permalink | Comments (1)

Chodorow:  Snape On Taxes

SnapeTaxProf Blog op-ed:  Snape on Taxes, by Adam Chodorow (Arizona State):

Every fall, as I prepare to teach again after a 3-month hiatus, I am reminded of a scene from the first Harry Potter book. The students, some bright-eyed, others fearful, file into Professor Snape’s dungeon classroom for their first Potions class. Glaring out at his students, he introduces them to the subject he loves, but which he fears they will barely comprehend. The passage reads as follows:

You are here to learn the subtle science and exact art of potion-making,” he began. He spoke in barely more than a whisper, but they caught every word – like Professor McGonagall, Snape had the gift of keeping a class silent without effort. “As there is little foolish wand-waving here, many of you will hardly believe this is magic. I don’t expect you will really understand the beauty of the softly simmering cauldron with its shimmering fumes, the delicate power of liquids that creep through human veins, bewitching the mind, ensnaring the senses…I can teach you how to bottle fame, brew glory, even stopper death – if you aren’t as big a bunch of dunderheads as I usually have to teach.

What if Snape taught tax? Many of our students would likely equate the two subjects. Regardless, with apologies to J.K. Rowling, here’s what I imagine he would say:

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September 1, 2016 in Celebrity Tax Lore, Legal Education, Tax, Teaching | Permalink | Comments (1)

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September 1, 2016 in About This Blog, Legal Education, Tax | Permalink | Comments (0)

Revised ABA Law School Accreditation Standards

ABA Logo (2016)ABA Section of Legal Education and Admissions to the Bar Memorandum on Adoption and Implementation of Revised Standards and Rules of Procedure for Approval of Law Schools, Criteria for Accepting Credit for Student Study at a Foreign Institution, and Criteria for Summer and Intersession Programs Offered by ABA-Approved Law Schools in a Location Outside of the United States (Aug. 31, 2016):

At its meeting in March 2016, the Council approved changes to the ABA Standards and Rules of Procedure for Approval of Law Schools. The changes had been circulated for Notice and Comment and a public hearing was held on January 29, 2016. The following amended Standards and Rules of Procedure became effective upon concurrence by the ABA House of Delegates at its meeting on August 8-9, 2016:

  • Standard 304: Simulations Courses, Law Clinics, and Field Placement
  • Standard 305: Other Academic Study
  • Standard 307(a): Studies, Activities, and Field Placements Outside the United States
  • Interpretation 311-1: Academic Program and Academic Calendar

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September 1, 2016 in Legal Education | Permalink | Comments (0)

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September 1, 2016 in About This Blog, Legal Education, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1211

IRS Logo 2Forbes: More Than 100 Law Professors To Congress: Impeaching The IRS Commissioner Is A Bad Idea, by Kelly Phillips Erb:

More than 100 tax law professors have sent a letter to House leaders in opposition to a resolution to impeach or censure Internal Revenue Service (IRS) Commissioner John Koskinen.

The letter was addressed to Speaker of the House Paul Ryan (R-WI); House Ways and Means Committee Chair Kevin Brady (R-TX); Minority Leader of the House Nancy Pelosi (D-CA); and House Ways and Means Committee Ranking Member Sander Levin (D-MI). The letter urged those Congressional leaders to “oppose any resolution to impeach or censure John Koskinen, the Commissioner of Internal Revenue.” ...

Censure is, of course, not as drastic as impeachment: it’s a public condemnation and requires a simple majority vote in the House and no action in the Senate. Impeaching an official requires a vote in the full House and, after a formal trial, a 2/3 vote of the Senate to remove the official from office. If that sounds like a high bar, it is: no agency official has been impeached in more than 140 years.

Tax Update Blog:  Profs For Koskinen, by Joe Kristan:

I favor censure because it’s clear that Koskinen has been, if you want to be charitable, tone-deaf to the implications of the IRS targeting of political opposition. He repeatedly has made statements on the investigation that have proven untrue, meaning he is either inept or a liar.

I oppose impeachment because it is a waste of time. The Senate would never convict.

I don’t like the letter because it completely ignores how Koskinen has completely lost the confidence of GOP Congressional appropriators. Nothing he has done provides them any reassurance that funding the IRS doesn’t mean funding their own opposition. If they really are concerned about the institutional integrity of the IRS, the professors should also call on Koskinen to resign in favor of somebody who can merit the respect of both parties.

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September 1, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (4)

Wednesday, August 31, 2016

Is The ABA Using Dallas, Ave Maria Law Schools As Scapegoats To Deflect Criticism From Department Of Education?

UNTAMInside Higher Ed, ABA Tightens Up:

The ABA takes a hard line on two law schools' admissions standards amid criticism that the group's accrediting arm is not doing enough to help struggling law-school graduates.

Earlier this month, the ABA’s accrediting arm recommended against approving the University of North Texas-Dallas College of Law, citing low admissions test scores of entering students. Days later, it found Ave Maria Law School in Florida out of compliance with its standards, again citing admissions practices.

The bar association also has considered tightening bar-passage standards to make them tougher for schools to meet. Taken together, the moves might indicate a tougher approach at a time when law-school graduates are facing a tougher job market with ever-growing debt loads.

The struggles of law-schools' former students have led to increased criticism of the association and the schools. That scrutiny came to a head in a summer meeting of the federal panel that oversees higher education accreditors, who grilled ABA leaders over their monitoring practices and suspended the group from accrediting new institutions for one year.

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August 31, 2016 in Legal Education | Permalink | Comments (4)

The Implications Of Apple's $14.5 Billion EU Tax Bill

Apple EUFollowing up on yesterday's post, EU Orders Apple To Repay $14.5 Billion In Irish Tax Breaks:

New York Times editorial, Apple, Congress and the Missing Taxes:

Apple and the United States are crying foul over the ruling in Europe that Apple received illegal tax breaks from Ireland and must hand over 13 billion euros ($14.5 billion), a record tax penalty in Europe. But Apple and the United States have only themselves to blame for the situation.

Apple has engaged in increasingly aggressive tax avoidance for at least a decade, including stashing some $100 billion in Ireland without paying taxes on much of it anywhere in the world, according to a Senate investigation in 2013. In a display of arrogance, the company seemed to believe that its arrangements in a known tax haven like Ireland would never be deemed illegal — even as European regulators cracked down in similar cases against such multinational corporations as Starbucks, Amazon, Fiat and the German chemical giant BASF.

Congress, for its part, has sat idly by as American corporations have indulged in increasingly intricate forms of tax avoidance made possible by the interplay of an outmoded corporate tax code and modern globalized finance. The biggest tax dodge in need of reform involves deferral, in which American companies can defer paying taxes on foreign-held profits until those sums are repatriated. Initially, deferral was a convenience for multinationals, as they sought investment opportunities abroad. Today, it is the taproot of global tax avoidance.

Bloomberg View editorial, The EU's Apple Ruling Is a Victory for Tax Confusion:

The European Commission’s decision to impose a tax bill of 13 billion euros ($14.5 billion) on Apple is unjust and unnecessary. And the harm is not confined to a single company: The ruling has cast a cloud of uncertainty over Europe’s corporate-tax rules, potentially affecting all multinational investors.

Wall Street Journal editorial, Europe’s Apple Tax Ambush:

Even by the usual Brussels standards of economic malpractice, Tuesday’s €13 billion ($14.5 billion) tax assault on Apple is something to behold. The European Commission decided that Dublin’s application of Irish tax law to an American company violated European antitrust rules. Orwell would understand.

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August 31, 2016 in Tax | Permalink | Comments (0)

Rotunda:  Why Does The ABA Charge Different Fees To Different Authors To Use Model Ethics Rules?

ABA Logo (2016)Ronald D. Rotunda (Chapman), The ABA Wants Copyright Royalties From Authors Who Publish the Law:

  • The ABA requires law schools to study the ABA Model Rules (even if those Rules are not law).
  • Law students must pass the Multistate Professional Responsibility Examination (MPRE), which is based on the ABA Model Rules, even if those Rules are not law. When the ABA amends its Model Rules, the MPRE automatically follows the change, usually within one year even if no state adopts the ABA change.
  • Law professors (or at least some of them) must prepare teaching materials on the ABA Model Rules.
  • This is the interesting part: The ABA is prohibiting many authors (but not all) from using the ABA Model Rules unless they first pay hefty royalties to the ABA. ...

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August 31, 2016 in Legal Education | Permalink | Comments (1)

Smith:  The PACT Act And The Constitutionality Of The Marketplace Fairness Act

Florida Tax Review  (2015)Eric Smith (Weber State), The PACT Act as Indicium of the Due Process Validity of the Marketplace Fairness Act, 19 Fla. Tax Rev. 1 (2016):

If passed into law, the Marketplace Fairness Act would impose a federal duty on out-of-state sellers to collect a state-defined and state-benefitting use tax. This unique exercise of federal power implicates due process. The PACT Act represents the only other instance in which Congress has similarly compelled state law compliance. Two circuit courts of appeals have found the PACT Act vulnerable on concerns of due process. This Article relies on the PACT Act analogue to simulate how the Marketplace Fairness Act would fare under similar scrutiny. To this end and in this uncommon context, two novel constitutional questions are considered: 1) with which sovereign, the federal government or the state, are minimum contacts measured; and 2) if measured with the state, is a single sale sufficient to meet due process thresholds?

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August 31, 2016 in Scholarship, Tax | Permalink | Comments (1)

Battle Over Plummeting Bar Exam Pass Rates Is Roiling Legal Education

ABA Journal (2014)ABA Journal (Sept. 2016), Bar Fight: Exam Passage Rates Have Fallen, but Battles Over Why and What It Means Are Roiling Legal Education:

David Frakt is a lawyer, a lieutenant colonel in the Air Force Reserve and a former law professor who has studied the relationship between LSAT scores, undergraduate grades, law school performance and bar passage rates. But he may be better known as the candidate for dean of the Florida Coastal School of Law in Jacksonville (which had a July 2015 first-time bar pass rate of 59.3 percent) who was asked to leave the campus in the middle of his presentation to faculty and staff. He had dared to suggest that the school was risking its accreditation by admitting too many students with little or no chance of ever becoming lawyers.

Frakt concedes that some applicants with modest academic qualifications can excel in both law school and practice, but he says there’s a point below which a candidate’s aptitude for legal studies and legal reasoning is highly predictive of failure. “However dedicated and skilled law professors and academic support staff may be,” Frakt maintains, “there is only so much they can do with students with no real aptitude for the study of law. They are not miracle workers.”

Frakt was shown the door in 2014, which may seem to be old news. The problem is that much of current bar passage news isn’t much different. To be plain, it has been lousy:

  • The mean test score on the February administration of the Multistate Bar Examination fell significantly for the fourth consecutive time, down 1.2 points from 2015 to a dismal 135—its lowest score since 1983.
  • February’s decline followed an even bigger drop in the average score on the July 2015 administration of the exam, which fell 1.6 points from July 2014 to 139.9, its lowest level since 1988. (July and February results are not comparable because the test pool is smaller and has more repeat test-takers.)
  • And last year’s poor showing followed the single biggest year-to-year drop in the average MBE score in the four-decade history of the test, from 144.3 in 2013 to 141.5 in 2014.

The numbers don’t lie, but proffered explanations for the descent in bar exam scores leave serious questions about what’s happening with law school admissions, legal education and even the quality of legal representation in the future.

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August 31, 2016 in Legal Education | Permalink | Comments (5)

Pittsburgh Tax Review Publishes New Issue

What Law Schools Can Learn From Medical Schools

Law MedicineNeil W. Hamilton (St. Thomas) & Sarah Schaefer (St. Thomas), What Legal Education Can Learn from Medical Education About Competency-Based Learning Outcomes Including Those Related to Professional Formation (Professionalism), 29 Georgetown J. Legal Ethics 399 (2016):

Following the ABA’s August 2014 changes in the accreditation standards for law schools requiring the establishment (and assessment) of learning outcomes that include “competency” in knowledge of the law, legal analysis, legal research, problem-solving, effective communication and “the exercise of proper professional and ethical responsibilities,” every law school will now develop competency-based learning outcomes and a curriculum that help each student develop and be able to demonstrate both the listed core competencies and “other professional skills needed for competent and ethical participation as a member of the legal profession.” These accreditation changes require a greater emphasis on professional and ethical responsibilities and both the articulation of learning outcomes for each student on these responsibilities and assessment of the learning outcomes.

Medical education, following accreditation changes in 1999 that emphasized learning outcomes (and assessment) of core competencies is fifteen years in front of legal education in learning how most effectively to help students achieve competency-based learning outcomes including those emphasizing ethical responsibilities. This article analyzes what legal education can learn from medical education’s experience over these past fifteen years with competency-based learning outcomes, especially ethical competencies.

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August 31, 2016 in Legal Education, Scholarship | Permalink | Comments (2)

The IRS Scandal, Day 1210

IRS Logo 2The Morning Call, Here's a Job for Lois Lerner:

There is no need for the taxpayers to bear the expense of a special prosecutor to investigate the Clinton Foundation. Lois Lerner can be asked to resume her position with respect to approval and oversight of nonprofits and foundations that have qualified under one of the IRS 501(c) classifications.

Lerner honed those skills when she copiously and intrusively examined the applications for recognition of tax-exempt status filed by conservative organizations. She might apply the same degree of intrusion and assertiveness toward the Clinton Foundation. Heck, she is drawing a taxpayer-financed pension so allow her skills to be applied with no additional expense to the taxpaying public. But then if questioned, will Lerner's emails (produced on taxpayer funded time) be lost or will the emails be forthcoming?

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August 31, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

Tuesday, August 30, 2016

ABA Responds To Department Of Education Panel's Threat To Suspend Its Power To Accredit Law Schools

ABA Journal (2014)Following up on my previous posts (links below) on the June recommendation by a Department Of Education panel to suspend the ABA's power to accredit law schools due to its "lack of attention to student achievement":  ABA Journal (Sept. 2016), ABA Responds To Accreditation Panel's Threat to Suspend its Role:

Facing a Department of Education panel recommendation that the ABA’s accreditation power for new law schools be suspended for one year, the association has responded by filing a confidential comment. “We think we’re in compliance with the standards,” says Barry Currier, ABA managing director of accreditation and legal education.

A June discussion by the National Advisory Committee on Institutional Quality and Integrity swirled around enforcement of accreditation standards and the need for a response to law school costs, student debt and the lack of lawyer jobs. The fact that no law schools have had ABA accreditation withdrawn over the past five years and that the organization continues to accredit new ones while law school tuition rises and the number of jobs in the profession shrinks were all part of the debate. ...

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August 30, 2016 in Legal Education | Permalink | Comments (6)

Blank:  The Signalling Function Of Presidential Tax Return Disclosure

Wall Street Journal op-ed: Trump’s Tax Withholding Is a Signal, by Joshua D. Blank (NYU):

Of all Donald Trump’s portrayals of his tax returns, including “extremely complex,” “beautiful” and “very big,” no phrase has ignited more passion or dismay than “none of your business.” Hillary Clinton has posted to her campaign website full copies of her tax returns since 2007, as well as returns for her running mate, Sen. Tim Kaine. Yet Mr. Trump refuses to follow suit. ...

As the law stands, candidates must disclose voluntarily, which provides voters with a valuable signal. The same way that wearing a suit to a job interview at a law firm suggests professionalism, a presidential candidate’s choosing to post personal tax returns indicates a willingness to be transparent and forthcoming. ...

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August 30, 2016 | Permalink | Comments (5)

Herzig:  Walmart, Puerto Rico And Taxes

WalmartFollowing up on Thursday's post, First Circuit: Puerto Rico's Special 100% Tax Imposed Only On Wal-Mart Is Unconstitutional:  David J. Herzig (Valparaiso), Walmart and Puerto Rico:

In order to generate liquidity to pay debt and run government operations, Puerto Rico began to look to the deepest pockets for help. If you are looking for a deep pocket, look no further than Walmart. The question facing Puerto Rico was how to get more money out of Walmart without actually targeting the corporation (that would be unconstitutional.)

The territory, instead, tinkered with an old law to created a tax hikes which on the face seemed neutral. However, the law, according to Walmart, targeted primarily the large retail corporation. The after-tax effect of the corporate alternative minimum tax change was to raise Walmart’s Puerto Rican tax liability to over 90% of its income. ...

In March of 2016, the District Court agreed with Walmart and in a 109 page opinion stated, “Puerto Rico’s AMT, on its face, clearly discriminates against interstate commerce.” ... Late last week, the 1st Circuit agreed with the District Court. The 1st Circuit concluded, “As to the merits of the Commerce Clause challenge, the AMT is a facially discriminatory statute that does not meet the heightened level of scrutiny required to survive under the dormant Commerce Clause.” ...

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August 30, 2016 in Tax | Permalink | Comments (0)

New York Ethics Panel:  Law Firms Can Charge Clients For The Work Of Unpaid Law Student Interns

InternsABA Journal, Law Firms May Bill for Work of Unpaid Interns, Ethics Opinion Says:

Some labor and law-student groups are criticizing a New York ethics opinion that says law firms may bill clients for the work of unpaid student interns.

The Committee on Professional Ethics of the New York State Bar Association issued the opinion in March, the New York Law Journal reports.

The ethics opinion said a law firm using interns that receive academic credit, but no pay, may bill for the interns “provided that the client has been advised of the firm’s intent to charge for the intern’s services and the basis of the charge (e.g., per task or per hour or some fraction thereof) and provided, further, that the fee is neither excessive nor illegal.”

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August 30, 2016 in Legal Education | Permalink | Comments (4)

EU Orders Apple To Repay $14.5 Billion In Irish Tax Breaks

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through August 1, 2016) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):







Reuven Avi-Yonah (Mich.)


Reuven Avi-Yonah (Mich.)



Michael Simkovic (S. Hall)


Michael Simkovic (S. Hall)



Paul Caron (Pepperdine)


D. Dharmapala (Chicago)



D. Dharmapala (Chicago)


Paul Caron (Pepperdine)



Louis Kaplow (Harvard)


Richard Ainsworth (BU)



Vic Fleischer (San Diego)


Robert Sitkoff (Harvard)



James Hines (Michigan)


Nancy McLaughlin (Utah)



Ted Seto (Loyola-L.A.)


William Byrnes (Texas A&M)



Richard Kaplan (Illinois)


Jeff Kwall (Loyola-Chicago)



Ed Kleinbard (USC)


Dan Shaviro (NYU)



Katie Pratt (Loyola-L.A.)


Chris Hoyt (UMKC)



Richard Ainsworth (BU)


Ed Kleinbard (USC)



Robert Sitkoff (Harvard)


Omri Marian (UC-Irvine)



Carter Bishop (Suffolk)


David Weisbach (Chicago)



Brad Borden (Brooklyn)


Louis Kaplow (Harvard)



David Weisbach (Chicago)


Vic Fleischer (San Diego)



Jen Kowal (Loyola-L.A.)


Yariv Brauner (Florida)



Chris Sanchirico (Penn)


Brad Borden (Brooklyn)



Francine Lipman (UNLV)


Katie Pratt (Loyola-L.A.)



Dennis Ventry (UC-Davis)


Jack Manhire (Texas A&M)



Bridget Crawford (Pace)


Francine Lipman (UNLV)



Dan Shaviro (NYU)


Steven Bank (UCLA)



David Walker (Boston Univ.)


Richard Kaplan (Illinos)



Steven Bank (UCLA)


Jordan Barry (San Diego)



Herwig Schlunk (Vanderbilt)


Stephen Shay (Harvard)


Note that this ranking includes full-time tax professors with at least one tax paper on SSRN, and all papers (including non-tax papers) by these tax professors are included in the SSRN data.

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August 30, 2016 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)