TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, August 9, 2016

The IRS Scandal, Day 1188

IRS Logo 2Wall Street Journal editorial, The Dissembling IRS: Documents Show the Agency Misled About its Political Targeting:

The IRS has spent three years trying to slow-roll discovery in lawsuits about the way it slow-rolled the applications of conservative nonprofits. The latest episode is on display in federal court in Washington, D.C., in the lawsuit brought by the pro-Israel group Z Street.

Readers may recall that in 2009 Z Street filed for 501(c)(3) status and had its application caught in the net of IRS targeting for groups that opposed Administration policy. When Z Street called the IRS to check on the hold up, an agent confirmed that its application had been sent for special screening for groups connected with Israel.

Z Street sued the IRS in 2010 for viewpoint discrimination, arguing that the agency’s behavior violates the First Amendment. The IRS tried to claim immunity but lost in federal court, clearing the way for discovery that produces evidence and internal documents. Now taxpayers are getting their first glimpse of how the IRS misled about the reasons for its decision to target Z Street. ...

Discovery has also revealed documents that show the IRS made early attempts to shield and obfuscate its special Israel policy. In a November 29, 2010 email, IRS deputy commissioner Steven Miller asked IRS employee Sarah Ingram about “an article on a letter we apparently sent to an org on Israel settlements. What can you tell me.” Ms. Ingram replied that she “Just told Ruth to pull me out when you have a minute. Not doing email on this.”

There are other emails on the subject that have been produced in discovery but redacted to the point that they are unreadable. The IRS is blocking them on grounds that the documents are protected by so-called deliberative process privilege. But that privilege was created to safeguard internal government deliberations not to prevent the public from getting information about government wrongdoing.

The IRS wants to stonewall evidence production until the clock runs out on the Obama Administration on January 20. Let’s hope the courts keep the pressure on the agency so Z Street can see how and why it was mistreated for partisan purposes.

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August 9, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

Monday, August 8, 2016

Kleinbard:  The Real Reason Trump Won't Release His Tax Returns

Trump (2016)The Hill: Trump’s Pushback on Tax Return Release Reveal True Ambitions, by Edward Kleinbard (USC):

With his nomination secure, Donald Trump has made it clear that he will not release his tax returns. Democrats have responded with outrage, and even bounties for their publication, while Trump supporters scramble to explain why this time is different, and the returns should remain confidential. Trump’s refusal already is costing him in the polls, and the issue will only grow as the election approaches.

So why has Mr. Trump staked out this politically unpalatable position? The answer lies not in any sordid details that Trump’s tax returns might reveal, but rather in what the refusal itself says about the man and his ambitions.

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August 8, 2016 in Political News, Tax | Permalink | Comments (7)

Professor Sues College, Says Requiring Learning Outcomes On Syllabus Violates His Academic Freedom

DIllon 2Post and Courier, Ousted Biology Professor Suing College of Charleston After Syllabus Fight:

Associate Professor of Biology Robert Dillon ... will not return to his lab or the classroom this fall after he locked horns with college leaders in the spring in an obscure battle over a course syllabus. Dillon said he intends to retire on Aug. 15. He is also suing the college and Provost Brian McGee, saying that the college defamed him and denied him due process.

“The Defendants had no right to require Plaintiff to add trivial banalities to the wording of his syllabus,” Dillon wrote in the lawsuit, filed July 21 in Charleston County. ... 

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August 8, 2016 in Legal Education | Permalink | Comments (3)

Law Firms 'Blindsided' By Drop In Demand, Tax Suffers Biggest Drop (3.4%)

Thomson Reuters, Peer Monitor:

[D]emand pulled back 0.9% in the second quarter. It was the biggest quarterly drop in more than three years. ... While overall market demand dropped in the second quarter, Midsize firms were largely unaffected. Demand for the segment rose 1.1%, and is still up 1.6% year-to-date. In contrast, Am Law 100 fell 1.0% in the quarter and is now down 0.2% year-to-date, while Am Law Second Hundred dropped 1.8% and is down 1.0% year-to-date.

Demand by Practice Areas
Transactional practices, which have largely been a bellwether for the market, turned in a mixed-to-weak performance. Corporate work was largely flat, up barely 0.1%. Year-to-date, it remains up 0.5%. Real estate and tax work, however, both retreated and are now negative year-to-date. Real estate was down 2.3% and is now down 0.4% year-to-date. Tax work declined 3.4% and is down 1.9% yearto-date


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August 8, 2016 in Legal Education | Permalink | Comments (4)

NY Times:  Brookings, Other Think Tanks Push Donors’ Agendas, Calling Their Objectivity And Tax-Exempt Status Into Question

Brookings (2016)New York Times, Researchers or Corporate Allies? Think Tanks Blur the Line:

Think tanks, which position themselves as “universities without students,” have power in government policy debates because they are seen as researchers independent of moneyed interests. But in the chase for funds, think tanks are pushing agendas important to corporate donors, at times blurring the line between researchers and lobbyists. And they are doing so while reaping the benefits of their tax-exempt status, sometimes without disclosing their connections to corporate interests.

Thousands of pages of internal memos and confidential correspondence between Brookings and other donors — like JPMorgan Chase, the nation’s largest bank; K.K.R., the global investment firm; Microsoft, the software giant; and Hitachi, the Japanese conglomerate — show that financial support often came with assurances from Brookings that it would provide “donation benefits,” including setting up events featuring corporate executives with government officials, according to documents obtained by The New York Times and the New England Center for Investigative Reporting.

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August 8, 2016 in Tax | Permalink | Comments (1)

SEALS 2016 Annual Conference

SEALs Logo (2013)The Southeastern Association of Law Schools 2016 Annual Conference continues today in Amelia Island, FL.  Among today's highlights:

The Federal Tax Code as a Tool of Public Policy
This panel introduces a variety of proposals aimed at enacting policies through amendments to the Internal Revenue Code. These proposals take the form of deductions, credits and other tax provisions. The policies considered include easing the strain of student loan repayment, the tax consequences of home ownership, and the tax consequences of being a victim of a natural disaster. The panelists consider these and other problems in the context of using tax as a strategic tool for achieving public policy goals.

  • Linda Beale (Wayne State) (moderator)
  • Ted Afield (Georgia State)
  • Stephen Black (Texas Tech)
  • Eric Chaffee (Toledo)
  • Bobby Dexter (Chapman)
  • Daniel Hemel (Chicago)
  • Steve Johnson (Florida State)
  • Patrick Tolan (Western Michigan-Cooley)

Is There a Recovery in Your Future? : A Candid Conversation Between Deans and Former Deans
This is a Panel Discussion similar to that in the last several years dealing candidly with hot topics around legal education. The specific topics depend on the “hot issues” of the moment, but are likely to include questions about whether legal education is recovering from the recession, and what it means for law schools and the profession.

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

Tenured Rutgers Law Prof Resigns From Bar After Misappropriating $250,000 Of Client Funds

Rutgers Logo (2016)Following up on my previous post, Tenured Rutgers Law Prof Suspended From Practice Of Law For Misappropriating Client Funds: Michael Frisch (Georgetown), Rutgers Law Prof Admits Misappropriation, Resigns From Bar:

A tenured member of the Rutgers Law faculty [Ari Afilalo] has resigned from the Bar of the New York Appellate Division for the First Judicial Department.

Respondent avers his resignation is voluntary, free from coercion and duress, and he is fully aware of the implications of submitting his resignation. Respondent acknowledges that he is the subject of an investigation into allegations of misconduct in connection with his attorney escrow account based upon a dishonored check drawn from his IOLA Trust Account. Admittedly, respondent misappropriated approximately $255,000 from his IOLA Account, in connection with real estate matters, in order to meet his personal and business expenses. Respondent later replenished the funds from an operating account.

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August 8, 2016 in Legal Education | Permalink | Comments (2)

The IRS Scandal, Day 1187

IRS Logo 2CNN, Court: IRS Needs to Prove It Isn't Targeting Conservative Groups:

A federal appeals court says the Internal Revenue Service has not proven it has ended discriminatory practices against conservative groups seeking tax-exempt status, reinstating a lawsuit against the troubled agency.

The US Court of Appeals for the District of Columbia Circuit's unanimous order on Friday reversed a 2014 lower district court ruling that previously dismissed the lawsuit, which was originally filed the year before.

The federal appeals court found that the IRS had committed some "unconstitutional acts against at least a portion of the plaintiffs," including "Be-On-The-Lookout" or "BOLO" lists where certain organizations' applications for tax-exempt status "were subjected to extended delay" and "were not receiving the same processing as those of other organizations."

Although the IRS announced that it had suspended the use of "BOLO" lists in the application process, the federal appeals court stated that the IRS' use of the word "suspend" indicated that it is not a permanent change.

Additionally, the court ruled that even if the IRS did voluntarily cease all discriminating practices, "it is absurd" to suggest the unlawful activity by the IRS has been eradicated "when two of the appellant-plaintiffs' applications remain pending."

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August 8, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

TaxProf Blog Weekend Roundup

Sunday, August 7, 2016

SEALS 2016 Annual Conference

SEALs Logo (2013)The Southeastern Association of Law Schools 2016 Annual Conference continues today in Amelia Island, FL.  Among today's highlights:

New Tax Scholars Workshop:

  • Neil Buchanan (George Washington) (moderator)
  • Tessa R. Davis (South Carolina), Citizenship and Taxation (Mentor: Patrick Tolan (Western Michigan-Cooley))
  • Adam Smith (Florida), Tax Law Confidential: Limitations on the Attorney-Client Privilege for Tax Lawyers (Mentor: Jennifer Bird-Pollan (Kentucky))
  • Elaine Waterhouse Wilson (West Virginia), Cooperatives in the Exempt Organization Space (Mentor: Terri Helge (Texas A&M))

International Tax Policies and Practices
Papers in this panel address a variety of concerns in the topic of international tax law. Presenters will consider consequences of international tax design questions, as well as issues of international tax enforcement. As international organizations and countries all over the world consider the issue of coordinated international tax enforcement, the topics considered by this panel are more important than ever.

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August 7, 2016 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

The Top 5 Tax Paper Downloads

SSRN LogoThere is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #3:

  1. [365 Downloads]  Dark Pools, High-Frequency Trading, and the Financial Transaction Tax: A Solution or Complication?, by Doron Narotzki (Akron)
  2. [269 Downloads]  Fiduciary Financial Advice to Retirement Savers: Don't Overlook the Prudent Investor Rule , by Max M. Schanzenbach (Northwestern) & Robert H. Sitkoff (Harvard)
  3. [242 Downloads]  The True Economic Effects of Corporate Inversions, by Doron Narotzki (Akron)
  4. [232 Downloads]  Wealth Management, Tax Evasion and Money Laundering: The Panama Papers Case Study, by Ehi Esoimeme (Cardiff)
  5. [210 Downloads]  The U.S. Response to OECD-BEPS and the EU State Aid Cases, by Daniel Shaviro (NYU)

August 7, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

At Harvard Law School, Tim Kaine Was Driven By Faith

KaineThe Boston Globe, At Harvard Law, Tim Kaine Was Driven by Faith:

He was a year younger than most of his classmates, a state-school graduate and devout Catholic from the Midwest suddenly surrounded by Ivy Leaguers on a secular East Coast campus.

It was clear, when Tim Kaine arrived at Harvard Law School in the fall of 1979, that he was not exactly in his natural element. And it didn’t take long for him to lose faith in his chosen field on the cutthroat camp“

He had a crisis of purpose during his first year in law school when he realized most of his fellow classmates went on to become corporate lawyers with practices and principles with which he didn’t agree,” said Scott Brown, a New Hampshire energy investor who met Kaine on their first day of law school. “I encouraged him to veer off.”us of career-minded law students.

Kaine’s bumpy years at Harvard helped clarify what he wanted — and didn’t want — in life, friends said, and introduced him to some of the issues, like the death penalty, that he would later confront as a governor, senator, and, now, Democratic vice presidential nominee.

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August 7, 2016 in Legal Education, Political News | Permalink | Comments (7)

The IRS Scandal, Day 1186

IRS Logo 2Walter Olson, DC Circuit Reinstates Conservative Groups’ Lawsuits against IRS Targeting:

Remember the claims from Obama administration fans that the scandal of the Internal Revenue Service targeting Tea Party and conservative groups wasn’t really much of a scandal after all; that it was the result of inadvertence or incompetence and, in any event, has been fully addressed so that it won’t happen again?

A unanimous panel of the DC Circuit Court of Appeals isn’t buying it. Today the circuit’s three-judge panel unanimously reinstated lawsuits against the IRS over the targeting program. With scathing language, it ruled that a lower court had improperly credited the IRS’s promises that it had ended its abusive targeting and sought to rectify the harms being sued over. In fact, the court said, evidence indicates that the IRS has not only failed to provide adequate guarantees of future good behavior, but continues even now to hassle some of the groups it harassed.

American Center for Law & Justice, ACLJ Wins Significant Victory Against the Obama Administration’s IRS Targeting:

We just secured a major victory in federal appeals court against the Obama Administration’s IRS.  The court unequivocally agreed with our position that the IRS’s targeting of conservatives has not ended and that our clients – numerous conservative, Tea Party, and pro-life groups – deserve to have their day in court.

Just hours ago, the U.S. Court of Appeals for the D.C. Circuit issued a decision in our IRS targeting scandal case, affirming in part and reversing in part the district court’s decision of dismissal, and remanding the case for further proceedings on all constitutional claims.

In its opinion, the appellate court agreed that the district court’s decision dismissing our clients’ – thirty-eight non-profit organizations from twenty-two states subjected to numerous violations of their First Amendment rights – claims was made in error on the unfounded position that the IRS had since ceased all allegedly illegal activity.

The court was quick to criticize the IRS’s absurd arguments that it had voluntarily ceased all illegal activity, stating unequivocally in the opinion that “voluntary cessation [by the IRS of the alleged illegal activity] has never occurred.”

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August 7, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (6)

Saturday, August 6, 2016

This Week's Ten Most Popular TaxProf Blog Posts

How To Stay Married To A Lawyer

JBThe Lawyerist, How to Stay Married to a Lawyer:

What are the challenges that come with marrying a lawyer and maintaining a happy marriage with a lawyer? Are there special rules or considerations when loving a lawyer?

I sat down with two therapists, Laura Freeman and Will Meyerhofer to help me figure this out. Freeman, a clinical psychologist in California, is in a unique position to share her insights and advice because she is married to a lawyer, Brian Freeman. Meyerhofer is a former Sullivan & Cromwell BigLaw refugee who went on to become a psychotherapist.

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August 6, 2016 | Permalink | Comments (0)

SEALS 2016 Annual Conference

SEALs Logo (2013)The Southeastern Association of Law Schools 2016 Annual Conference continues today in Amelia Island, FL.  Among today's highlights:

Philosophies and Approaches to Law School Teaching
What are the philosophies of teaching held by experienced and effective law professors? How do these teachers approach the law school classroom? More specifically, how do the professors define their learning goals for their students? What are the things these teachers do that make them effective? This panel answers these and other questions about the art and science of teaching.

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August 6, 2016 in Conferences, Legal Education, Teaching | Permalink | Comments (0)

The IRS Scandal, Day 1185

IRS Logo 2True the Vote v. IRS, No. 14-5316 (D.C. Cir. Aug. 5, 2016):

The IRS offers a rather puzzling explanation for why the continued failure to afford proper processing to at least some of the victim applicants should not prevent a finding of cessation. That explanation is that the organizations whose applications were still pending “were involved in ‘litigation’ with the Justice Department ….” The Service’s brief further illuminates this point with a footnote explaining that “[u]nder long-standing procedures, administrative action on an application for exemption is ordinarily suspended if the applicant files suit in court.”

It is not at all clear why the IRS proposes that not ceasing becomes cessation if the victim of the conduct is litigating against it. The IRS position is reminiscent of Catch-22 from the novel of the same name.

Under that “catch,” World War II airmen were not required to fly if they were mentally ill. However, anyone who applied to stop flying was evidencing rationality and therefore was not mentally ill. “You are entitled to an exemption from flying,” the government said, “but you can’t get it as long as you are asking for it.”

Parallel to Joseph Heller’s catch, the IRS is telling the applicants in these cases that “we have been violating your rights and not properly processing your applications. You are entitled to have your applications processed. But if you ask for that processing by way of a lawsuit, then you can’t have it.”

We would advise the IRS: if you haven’t ceased to violate the rights of the taxpayers, then there is no cessation. You have not carried your burden, be it heavy or light.

The IRS’s only further attempt to justify the lack of cessation as to some of the applicants is to refer to its Catch-22 litigation rule as a “longstanding policy.” To this we would advise the IRS: if you haven’t ceased discriminatory conduct, the fact that you have been failing to cease it for a long time does not create cessation. You still have not carried your burden….

Even if we assumed there was voluntary cessation, we would still conclude that the government has not carried its burden to establish mootness because it has not demonstrated that “(1) there is no reasonable expectation that the conduct will recur [or] (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” ...

[T]he complaints alleged extensive discriminatory conduct including “delayed processing … harassing, probing, and unconstitutional requests for additional information that … required applicants to disclose, among other things, donor lists, direct and indirect communications with members of legislative bodies, Internet passwords and user names, copies of social media and other Internet postings, and even the political and charitable activities of family members.” While the Inspector General’s Report references many of these discriminatory actions, neither it nor anything else presented by the government meets the heavy burden of establishing that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.

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August 6, 2016 in IRS News, IRS Scandal, Law Review Rankings | Permalink | Comments (2)

Friday, August 5, 2016

Oei Reviews Dick's U.S. Tax Imperialism In Puerto Rico

Jotwell (2016)Shu-Yi Oei (Tulane), U.S. Tax Policy and Puerto Rico's Fiscal History, JOTWELL (2016) (reviewing Diane Lourdes Dick (Seattle), U.S. Tax Imperialism in Puerto Rico, 65 Am. U. L. Rev. ___ (2016):

U.S. Tax Imperialism in Puerto Rico is a careful, interesting, and timely account of how the U.S. has designed tax policies with respect to Puerto Rico since 1898, but its contribution does not end there. The article also raises broader questions.

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August 5, 2016 in Scholarship, Tax | Permalink | Comments (0)

Pepperdine Law Grad Brittney Lane To Clerk For Justice Thomas

LanePress Release:

Pepperdine School of Law valedictorian Brittney Lane (JD ’12) will clerk for Supreme Court Associate Justice Clarence Thomas during the October 2017 term. Lane, currently an associate attorney with O’Melveny & Myers in Los Angeles, previously clerked on the Sixth and Ninth Circuit Courts of Appeal. The last Pepperdine Law graduate to clerk for the Supreme Court was Jack L. White (JD ’03), who served Justice Samuel A. Alito, Jr., in 2008-2009.

“Pepperdine School of Law is very proud that Brittney Lane will be clerking for Justice Clarence Thomas,” says Dean Deanell Reece Tacha, Duane and Kelly Roberts Dean and Professor of Law at Pepperdine and former Chief Judge of the U.S. Court of Appeals for the Tenth Circuit. “Justice Thomas honors us with this selection and recognizes one of our most outstanding graduates. Brittney will bring to her clerkship all of the talents of the finest lawyers: a brilliant intellect, excellent writing and analytical skills, superb experience in prior clerkships, and a refreshing openness to new ideas, perspectives, and approaches to legal problems. She is animated by a strong sense of personal integrity and humility. She will serve the Justice according to the highest personal and professional standards and will be a joy for him to have in his chambers.”

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

Georgetown 3L:  Put Down That Law School Application, Part 2

Following up my previous post, Georgetown 3L: Law School Is A Terrible Idea For Most People:  Boston Globe, Put Down That Law School Application: Part 2, by Isvari Mohan (J.D. 2016, Georgetown):

A few weeks ago, I wrote a piece on why law school is a bad idea for many people who pursue it. Among the reasons I cited the were the costs, the narrow training, and the reality that the financial payoff may not be as big as expected.

I also mentioned the 1 percent of people it’s right for — people who have experience working in the law and actually like it, people who want the flexibility to bounce between government and private sector jobs, and people who have the money and time to spend three years in school.

But even if you’re not in that 1 percent — and I wasn’t — you might end up in law school. A few years ago, everyone told me not to go, and I went nonetheless. Today, I couldn’t love it more.

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August 5, 2016 in Legal Education | Permalink | Comments (1)

Weekly Legal Education Roundup 2.0

Note from Paul Caron:  As I explained on Monday, due to my growing other commitments, I have taken steps to reduce the amount of time I devote to TaxProf Blog. Two weeks ago, I stopped doing the weekly tax, legal education, SSRN, and student tax note roundups. Scott Fruehwald of our sister Legal Skills Prof Blog has graciously agreed to take over the weekly legal education roundup. If you would like to take over the weekly SSRN or tax roundups as a service to the tax community, please let me know.

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August 5, 2016 in Legal Education, Weekly Legal Education Roundup | Permalink | Comments (0)

Number Of LSAT Test-Takers Falls 0.8% in June

After registering the first increase in LSAT test-takers in six years in the 2015-16 cycle, LSAC reports that the number of test-takers was down 0.8% in the first test administration (June) of the 2016-17 cycle:


Matt Leichter, LSAT Tea-Leaf Reading: June 2016 Edition:

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

SEALS 2016 Annual Conference

SEALs Logo (2013)The Southeastern Association of Law Schools 2016 Annual Conference continues today in Amelia Island, FL.  Among today's highlights:

Scholarship Nuts and Bolts
This panel addresses how to create an environment, agenda and process for successful scholarship. It explores such topics as using research assistants, developing outside resources, co-authors, and more. The session emphasizes the scholarship process for all kinds of publications, including law review articles, books, bar association reports, and the like. It offers perspectives on how to prioritize work, as well as suggesting some dos and don’ts.

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August 5, 2016 in Conferences, Legal Education, Scholarship | Permalink | Comments (0)

Former Davis Polk Tax Partner Named Dean At Touro Law School

BallanFollowing up my previous post, Former Davis Polk Tax Partner Now Plays A Different Tune: Music (And The Brain):  Touro Law School, Press Release:

The Touro College & University System today announced that Harry Ballan will join Touro College Jacob D. Fuchsberg Law Center as its new Dean. Ballan previously served as a partner and senior counsel for the New York office of the international law firm Davis Polk & Wardwell LLP. Ballan received a bachelor of arts, master of arts, and a Ph.D. in history and theory of music—all from Yale University. Ballan attended Columbia Law School and was awarded his J.D. in 1992. 

Ballan has more than 30 years of experience in higher education. He began his teaching career as an instructor in music at Yale University, and since then, he has taught music at Penn State University and Brandeis University. His career in legal education began in 2003 as an adjunct associate professor of law at Brooklyn Law School and has also taught law as an adjunct professor at New York University. At Yeshiva University, he has taught a range of subjects relating to music and the brain, creativity, and decision-making. Additionally, he has served as Vice Chairman of the Academic Affairs Committee and member of the Investment Committee at Yeshiva University among many other volunteer roles throughout his career.

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August 5, 2016 in Legal Education | Permalink | Comments (0)

The IRS Scandal, Day 1184

IRS Logo 2Washington Free Beacon, Obama Donor, DOJ Prosecutor Spent More Than 1,500 Hours Looking Into IRS Targeting of Conservative Groups:

A Department of Justice prosecutor and Obama donor spent more than 1,500 hours investigating the IRS’ targeting of conservative groups, Judicial Watch reported.

Judicial Watch filed a Freedom of Information Act (FOIA) request to find out how much time Barbara Bosserman had spent looking into the IRS’ targeting of conservative groups.

“As compiled from the Interactive Case Management System, Ms. Bosserman’s investigative efforts totaled 1,529.25 hours,” according to the letter.

Federal Election Commission records show Bosserman contributed $6,750 to Barack Obama campaigns and the Democratic National Committee between 2004 and 2012. She made twelve contributions to Obama for America from 2008 to 2012.

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August 5, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

Thursday, August 4, 2016

Chamber Of Commerce Sues To Block Inversion Regs For Violation Of APA's Notice And Comment Requirement

Reuters, Business Groups Sue Over New U.S. Limit on Tax-Driven Foreign Buyouts:

Two business groups sued the Obama administration on Thursday over a crackdown on U.S. companies that try to reduce their U.S. taxes by rebasing abroad in a process known as inversion. The U.S. Chamber of Commerce and the Texas Association of Business filed a lawsuit in Texas federal court that said a regulation from the U.S. Treasury Department in April exceeded what the law allows the department to do.

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August 4, 2016 in IRS News, New Cases, Tax | Permalink | Comments (0)

Marian Named National Reporter For Congress Of The European Association of Tax Law Professors

Marian (2016)Press Release, Omri Marian Named National Reporter for Congress of the European Association of Tax Law Professors:

The University of California, Irvine School of Law tax Professor Omri Marian has been appointed the United States national reporter for next year’s Congress of the European Association of Tax Law Professors (EATLP), a professional organization of professors teaching tax law at universities in Europe. The annual Congress will be held June 2017 in Lodz, Poland. This year’s topic is “Corporate Tax Residence and Mobility” and national reporters are called upon to submit a report describing the legal status in their jurisdiction on the topic. ...

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

Former UC-Berkeley Law School Dean Files Supplement To Grievance Over Attempt To Revoke His Tenure In Wake Of Sexual Harassment Complaint

UC Berkeley Primary Logo Berkeley BlueFormer UC-Berkeley Law School Dean Sujit Choudhry, who resigned in March amidst a sexual harassment scandal, which prompted calls for the revocation of his faculty tenure, has filed a supplement to his grievance with the university's tenure committee.

Brian Leiter again has criticized the University's actions:

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

Tax Court Gives Whistleblowers Big Win: Award Includes Percentage Of Criminal Fines And Civil Forfeitures, In Addition To Taxes

IRS Whistleblower (2014)Wall Street Journal, Big Win for Tax Whistleblowers as Pair Gets $17.8 Million:

The U.S. Tax Court awarded $17.8 million to a pair of whistleblowers in a decision that significantly expands the scope of what can be claimed in such cases. The ruling for the first time allowed the whistleblowers to get a portion of criminal fines and civil forfeitures in addition to part of the taxes the government recouped because of information they provided.

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August 4, 2016 in New Cases, Tax | Permalink | Comments (5)

The Empire Strikes Back, Part II:  LSAC Stops Certifying Matriculant Admissions Data In Response To Law Schools' Use Of GRE

GREFollowing up on my previous posts (links below):  Above the Law, Raising The Stakes In The Fight Over The LSAT:

You may recall Arizona Law has decided to accept the GRE in lieu of the LSAT. They claim it is a move designed to increase diversity, but some see increasing the school’s applicants as another nifty benefit. While most schools aren’t ready to make the move to the GRE just yet, the LSAT’s dominance may be in jeopardy. The first move LSAC made to stem the tide was to threaten to take away Arizona Law’s membership (and the application data that comes with it), but that move was wildly unpopular with law school deans, and LSAC backed off.

Now LSAC has announced another ramification of moving away from the LSAT. In a letter sent to admissions professionals at all law schools yesterday, LSAC announced it intends to stop certifying matriculant admissions data. Amid concerns about the accuracy of law school admissions data, beginning in 2011, LSAC began certifying the accuracy of the data (i.e., average LSAT scores). Now LSAC intends to stop that:

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

SEALS 2016 Annual Conference

SEALs Logo (2013)The Southeastern Association of Law Schools 2016 Annual Conference continues today in Amelia Island, FL.  Among today's highlights:

Productive and Fulfilling Scholarship Across the Tenure Spectrum
This panel covers strategies for achieving scholarly success and satisfaction both before and after tenure. Panelists with a range of experience address opportunities for and limitations on scholarly development during all stages of the tenure process: years 1-2, years 3-4, years 5-6, and post-tenure. The panel examines the role of law review articles as the primary form of scholarly output and explores other forms of scholarship. Panelists share their perspectives on co-authoring, finding mentors, gaining readership, leveraging past projects, and networking as well as the joys and perils of bar journal contributions, books, book chapters, book reviews, blogging, casebooks, CLE materials, essays, monographs, newsletters, and reports.

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August 4, 2016 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

WSJ:  Tougher Bar-Passage Standard For Law Schools Sparks Objections

Following up on yesterday's post, Diversity, Consumer Groups At Odds Over Proposed Tougher Bar-Passage Rule For Law Schools:  Wall Street Journal, Tougher Bar-Passage Standard for Law Schools Sparks Objections:

Bar-exam passage rates and racial diversity are two flashpoints in the legal industry. The two are now bumping against each other as the legal establishment weighs a proposal to tighten law school accrediting standards. ...

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

The IRS Scandal, Day 1183

IRS Logo 2Forbes:  Heading The IRS Shouldn't Be Mission Impossible: GOP Call To Impeach Koskinen Is Tragic Political Theater, by Len Burman:

The 2016 Republican Party platform demands that Congress impeach and convict Internal Revenue Service Commissioner John Koskinen. His “high crimes and misdemeanors” primarily consist of annoying congressional leaders and heading an agency charged with interpreting and enforcing the incoherent tax laws that Congress has inflicted on the American public—the definition of a thankless job. Impeaching the commissioner may be good political theater, but it’s bad for the country.

Over the years, the IRS has been led by a long list of admirable public servants of both parties. One, Mort Caplin, just celebrated his 100th birthday. Mort, a war hero decorated for valor at Normandy, probably saw serving as JFK’s Commissioner as a comparatively safe job.

Current Commissioner John Koskinen is only dodging metaphorical bullets, but the hail of fire is unrelenting. ...

He probably didn’t anticipate that his hard work would result in some House leaders and the official GOP platform calling for his impeachment. The charges: some emails lost by IRS staff and making a House committee wait a few weeks before responding to a subpoena. The same Treasury inspector general who flagged the targeting of conservative groups called Koskinen “exceptionally cooperative.” (AEI’s Norm Ornstein published an excellent dissection  of what he calls the House “show trial” in The Atlantic.) ...

Koskinen, who is tough as nails, will be okay, but the damage to our fiscal system could be longer lasting. If the goal is to improve the IRS—as it should be—the agency needs more people like Koskinen, Caplin, and the admirable souls who served between them (many of whom have rallied to Koskinen’s defense). Public servants willing to take on the enormous challenges facing the IRS shouldn’t have to face a hail of metaphorical bullets for trying to do their job.

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

Wednesday, August 3, 2016

The Adelson Family (Through Their Attorneys) Deny Any Involvement In Dan Markel's Murder

Adelson FamilyOn behalf of the Adelson family, we continue to send our deepest condolences to the Markel family.  Dan's death was a tragedy, and the loss is profound.  Although Wendi and Dan were divorced, he was the father of their two children, who must now grow up without their dad.

There has been a lot of unsupported speculation that the Adelsons had something to do with the murder.  That speculation is categorically false.  To be clear, none of the Adelsons – Wendi, her brother Charlie, or their parents Donna and Harvey – had anything to do with Dan’s murder.

We respect the process and the enormous amount of work that the Tallahassee police department has done in this case.  They have spent the past two years reviewing every shred of evidence out there -- every phone record, financial record, text message, email, internet search, everything.  We understand why the government has put the Adelson family through this type of severe scrutiny. But nothing has turned up that supports this fanciful fiction that the Adelsons were involved. The investigation has gone so deep that it employed FBI agents, undercover agents, and a tip line.  There is a reason that the police have not arrested any of the Adelsons – they weren’t involved in Dan’s death.

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August 3, 2016 in Legal Education | Permalink | Comments (8)

Walker:  The Practice And Tax Consequences Of Nonqualified Deferred Compensation

David I. Walker (Boston University), The Practice and Tax Consequences of Nonqualified Deferred Compensation:

Although nonqualified deferred compensation plans lack explicit tax preferences afforded qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after‐tax return on deferred sums than employees could do on their own. Several commentators have proposed tax reform aimed at leveling the playing field between cash and nonqualified deferred compensation, but reform would not be easy or straightforward. This Article investigates nonqualified deferred compensation practices and shows that joint tax minimization often takes a backseat to accounting priorities and participant diversification concerns.

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August 3, 2016 in Scholarship, Tax | Permalink | Comments (0)

Schumer Decries 'Victory Tax,' Urges House To Pass Senate Bill Exempting Olympic Medals From Tax

Olympic RingsPress Release, Schumer Urges House of Representatives to Immediately Pass Bipartisan Legislation That Will Block IRS From Taxing Olympic Medals; Senator Says Olympic and Paralympic Athletes Should Not Have To Pay a Victory Tax:

During a visit to the Olympic Training Center in Lake Placid, U.S. Senator Charles E. Schumer joined with Olympic athletes and launched a major push to urge the U.S. House of Representatives to pass legislation that would prevent the Internal Revenue Service (IRS) from taxing Olympic and Paralympic athletes on medals or other prizes awarded to them in future Olympic games.

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August 3, 2016 in Congressional News, Tax | Permalink | Comments (5)

Professional Ethics For The Tax Lawyer To The Holmesian Bad Man

Bret N. Bogenschneider (Vienna), Professional Ethics for the Tax Lawyer to the Holmesian Bad Man, 49 Creighton L. Rev. 775 (2016):

The “manufacture” of factual indeterminacy in furtherance of tax avoidance activity constitutes potentially unethical attorney conduct. The structuring of facts toward tax avoidance is not merely the rendering of legal advice as contemplated by the Model Code of Professional Conduct, and instead may assist the Holmesian “bad man” client toward conduct which is normatively prohibited under the tax laws. As such, only tax planning via factual structuring, which results in determinative tax avoidance, is ethical attorney conduct.

Since a purely formalistic method of legal interpretation is not applied in the United States, the circumstance of determinative tax avoidance is extraordinarily rare in the modern era. The moral aspects of legal representation in furtherance of tax evasion are also re-evaluated from both the parochial and postmodern perspectives.

August 3, 2016 in Scholarship, Tax | Permalink | Comments (0)

Utah Seeks To Hire A Tax Prof

Utah Logo (2016)The University of Utah S.J. Quinney College of Law invites applications for faculty positions at the rank of associate professor (tenure track), professor (with tenure), or career line (long-term clinical or other non-tenure track, rank consistent with experience) beginning academic year 2017-2018:

Qualifications include a record of excellence in academics or practice, successful teaching experience or potential as a teacher, and strong scholarly distinction or promise for tenure track or tenured positions. The College is particularly interested in candidates in the area of tax law. Interested persons should submit an application to the University of Utah Human Resources website.

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August 3, 2016 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

SEALS 2016 Annual Conference

SEALs Logo (2013)The Southeastern Association of Law Schools 2016 Annual Conference kicks off today in Amelia Island, FL.  Among today's highlights:

Scholarship: What Is It? And How Do We Maximize Its Impact?
Traditional academic lore is publish or perish. But publish where? In legal scholarship, publication means placing articles in highly ranked student-run law reviews and, after tenure, writing more articles and a book or two. However, few (other than fellow law professors) read law review articles. Thus, scholars have increasingly taken their scholarship “on the road” in the form of writing amicus briefs in highly notable cases, testifying before Congress, or using social media. This panel explores the future of legal scholarship. What are the avenues that best create scholarly impact? To what degree has scholarship transformed into activism once it leaves the law review? What is the appropriate role of law professor experts in court and in the public sphere?

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August 3, 2016 in Conferences, Legal Education, Scholarship | Permalink | Comments (2)

Trump Wants To Repeal The Johnson Amendment And Make Churches The New Super PACs

Following up on my previous posts (here and here):  The Atlantic, Trump Wants to Make Churches the New Super PACs: His Promise to Repeal the 1954 Johnson Amendment Isn’t About Free Speech—It’s About Cash:

Why have some religious conservatives decided to support Donald Trump for United States president? Leaders have named their reasons: He’s promised toappoint pro-life Supreme Court justices; he’s allegedly good at business. But they have also consistently cited something else, perhaps more unexpected: the tax code.

Trump has promised to repeal the so-called Johnson Amendment, a 1954 provision that prohibits tax-exempt organizations from participating in political activities. Proposed by then-Senator Lyndon B. Johnson and later revised by Congress, it keeps churches and other non-profits from lobbying for specific causes, campaigning on behalf of politicians, and supporting or opposing candidates for office.

While opponents of the Johnson Amendment often frame their objections in terms of free speech, the provision’s primary impact may be financial. Right now, the IRS makes a clear distinction between non-profit groups—from charities and universities to certain private schools and houses of worship—and political organizations.

If the Johnson Amendment were repealed, pastors would be able to endorse candidates from the pulpit, which they’re currently not allowed to do by law. But it’s also true that a lot more money could possibly flow into politics via donations to churches and other religious organizations. That could mean religious groups would become much more powerful political forces in American politics—and it would almost certainly tee up future court battles. ...

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August 3, 2016 in Political News, Tax | Permalink | Comments (9)

Diversity, Consumer Groups At Odds Over Proposed Tougher Bar-Passage Rule For Law Schools

National Law Journal, Diversity, Consumer Groups at Odds over Tougher Bar-Pass Rule Proposed for Law Schools:

Factions are again forming in the battle over the American Bar Association’s bar-passage standard for law schools, with diversity and consumer advocates at odds over a proposal to strengthen the rule.

The proposal now under consideration by the ABA would jeopardize the accreditation of many schools with large numbers of minority students and would discourage schools from admitting them, according to diversity advocates and the deans of all six law schools housed at historically black colleges and universities.

Consumer advocates counter that a tougher standard is necessary to protect law students from spending three years and thousands in tuition to obtain a law degree if they are unlikely to pass the bar exam. “Graduates who fail the bar cannot diversify the profession,” wrote Deborah Jones Merritt, a professor at Ohio State University Michael E. Moritz College of Law, in a comment to the ABA. “Instead, these graduates suffer substantial personal and financial costs.”

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

The IRS Scandal, Day 1182

IRS Logo 2Politico, Morning Tax: Sounds About Right:

A new document release from Judicial Watch shows that then-interim IRS chief Steven Miller was none too pleased when first informed about the tea party controversy that would eventually lead to his ouster. As Joseph Lawler of the Washington Examiner put it: “Miller threw his pencil across the room and yelled, ‘Oh, s — t,’” when told in the spring of 2012 that the agency had been improperly scrutinizing conservative organizations. Full Examiner story.

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August 3, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Tuesday, August 2, 2016

Does Vic Fleischer's Appointment As Senate Finance Committee Co-Chief Tax Counsel Imperil Tax Reform, Or Give It A Shot In The Arm?

Fleischer (2016)Following up on my recent posts:

Forbes:  Senator Ron Wyden Endangers Tax Reform With Hire of Radical Partisan Victor Fleischer, by Ryan Ellis:

While most Americans over the past two weeks were consumed with the drama and intrigue of the two party conventions, a major hire was made in Washington, D.C. which could have devastating negative implications for fundamental tax reform prospects in 2017.

Senate Finance Committee Ranking Member Ron Wyden (D-Ore.) has hired University of San Diego law professor Victor Fleischer as co-chief tax counsel. Should the Democrats gain a majority in the Senate this fall, Fleischer would have a key role in shaping the direction of tax reform discussions next year with the new president and with a presumably Republican House of Representatives. Wyden called Fleischer a “true outside thought leader in this space.”

That is very bad news if you were hoping to see fundamental tax reform finally become a reality next year.

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August 2, 2016 in Congressional News, Legal Education, Tax | Permalink | Comments (4)

Treasury Issues Proposed Regs To Limit Valuation Discounts For Fractional Interests

DiscountsWall Street Journal, U.S. Aims to Clamp Down on Tactic to Avoid Estate Tax:

The U.S. government on Tuesday proposed making it harder for wealthy business owners to transfer assets to heirs without paying estate and gift taxes.

The Treasury Department and Internal Revenue Service plan would place new limits on a common technique used to transfer interests in illiquid businesses.

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August 2, 2016 in Tax | Permalink | Comments (2)

What Every Law Student Really Needs To Know: An Introduction To The Study Of Law

ReallyJust in time for 1Ls starting classes in a few weeks, Tracey E. George (Vanderbilt) and Suzanna Sherry (Vanderbilt) have published the second edition of their wonderful book, What Every Law Student Really Needs to Know: An Introduction to the Study of Law (Wolters Kluwer 2016).  Tracey and Suzanna have posted a 12-page introduction to the book on SSRN:

Law school is an exciting and enriching experience but also an intimidating and difficult one for students. Students and professors want students to succeed. We have written this essay and a book in order to decrease students' anxiety and increase their chances of achieving academic success. We offer here a short introduction to how a new law student can succeed, taken from the Introduction and first chapter of the book. The full book serves as a law school success guide, featuring insight into how and why law school works the way it does and the tools and techniques to fully understand first-year substantive law. In addition to teaching techniques for getting the most out of reading and out of class, the book also conveys information about the American legal system and court structure, and about cross-cutting legal concepts such as burdens of proof and standards of review.

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August 2, 2016 in Book Club, Legal Education | Permalink | Comments (1)

San Francisco ‘Tech Tax’ Is Dead

Tech TaxFollowing up on my previous post, NY Times: San Francisco Considers 'Tech Tax' To Pay For Boom’s Downside:  Time, The San Francisco ‘Tech Tax’ Is Dead:

In a committee meeting on Monday, one of the more controversial proposals to bubble up in San Francisco in recent years was effectively killed. But the angst that the proposed “tech tax” exposed was left in its wake, after being put on display during an afternoon of commentary from lawmakers and members of the public.

The measure, intended for the November ballot, would have levied a 1.5% payroll tax solely on the booming tech sector, and the estimated $140 million in annual revenue from that special tax would have been earmarked for projects like housing the homeless and building affordable housing. While supporters argued that there was a Robin Hood-esque justice this would bring to the city — well-paid tech workers have flowed in and lower-income residents have been pushed out — critics like Supervisor Mark Farrell described the proposal as simplistic “scapegoating” that threatened to drive economic powerhouses to other places.

One of the city’s 11 lawmakers and the chair of the committee that stopped the measure from moving forward, Farrell opened by comparing the spirit of the tax to “the politics of Donald Trump,” describing him as one of “those who divide us.” The allusion did not sit well in a city where lawmakers are often distinguished by being progressive or moderate Democrats, leading at least one supporter of the measure to hold back tears of anger. While everyone agreed that rising rents and limited housing stock have reached crisis levels, there was not agreement on how much the tech boom is to blame, nor on what the true character of the tech industry is. ...

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August 2, 2016 in Tax | Permalink | Comments (0)

NY Times:  Donald Trump Ducks Tax Disclosure

Trump (2016)New York Times editorial, Donald Trump Ducks Tax Disclosure:

As Donald Trump’s tweets pile one atop another, generating sensational headlines, issues of true substance are tending to get lost in the shuffle. None is more important for voters to keep in mind than the failure of Mr. Trump to disclose his full income tax returns, something he is not likely to do by Election Day.

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August 2, 2016 in Political News, Tax | Permalink | Comments (1)

Department Of Education Panel:  'The ABA Is Nero, Fiddling While Much Of Legal Education Burns Down'

ABANLast month, I blogged the stunning news that the National Advisory Committee on Institutional Quality and Integrity (NACIQI) voted to recommend that the U.S. Department of Education suspend for one year the ABA's power to accredit new law schools due to the ABA's "lack of attention to student achievement."  The transcript for that meeting has now been released, and it is an extraordinary shot across the bow of legal education and the ABA.  I encourage folks to read the riveting back and forth, beginning at page 168.  The committee essentially accused the ABA of being Nero, fiddling while much of legal education burns down.

The committee said the ABA was focused on minutia.  On its own, the committee raised virtually every hot button issue facing legal education: rising tuition and student debt, declining bar passage and job placement rates, accreditation standards that drive up costs and for which the ABA admitted it had no data to support the educational benefit, protecting faculty at the expense of students, and the ABA's failure to punish law school perfidy.

The ABA Journal covers the hearing in Federal Panel 'Sent a Signal' to ABA About Law School Loans and Accreditation Enforcement. Deborah Jones Merritt (Ohio State) has a detailed (1,800 word) description of the hearing at Law School Cafe

It’s clear that the panel intended its action to “send a signal” to the ABA Council that accredits law schools. All of us in legal education need to hear that signal: It affects the standards we adopt for accrediting law schools, as well as the continued availability of federal loans for our students. ...

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August 2, 2016 in Legal Education | Permalink | Comments (13)

Richmond Seeks To Hire An Entry-Level Tax Prof

Richmond LogoThe University of Richmond School of Law seeks to fill two entry-level tenure-track positions for the 2017-2018 academic year, including one in tax law:

Candidates should have outstanding academic credentials and show superb promise for top-notch scholarship and teaching. The University of Richmond, an equal opportunity employer, is committed to developing a diverse workforce and student body and to supporting an inclusive campus community. Applications from candidates who will contribute to these goals are strongly encouraged.

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

Documents Reveal Wendi Adelson's Odd Behavior After Murder Of Dan Markel

Markel & AdelsonTallahassee Democrat, Documents Reveal Early Markel Investigation:

The just released documents also shed new light on Wendi Adelson's behavior before and after her ex-husband's murder. ...

One of the reports describes an investigation into Jeffrey Lacasse, a former boyfriend of Wendi Adelson. Lacasse, an FSU professor, was cleared as a suspect a few days after Markel’s death.

Several weeks later, on Aug. 12, Lacasse contacted Tallahassee police investigators to tell them about text messages between him and Wendi Adelson he had been reviewing. He said he and Adelson made reservations to travel to California July 11 to 17. She canceled plans on June 4 – two weeks before Rivera and Garcia traveled to Tallahassee during what investigators say was a botched first attempt to kill her ex-husband.

Lacasse said Wendi and others had told him that three weeks after Markel was killed, her brother Charlie Adelson contacted her and asked her to go out and celebrate. That dinner was memorable. Wendi Adelson vomited on the table. Lacasse found that highly suspicious.

“He believed that Wendi Adelson may be indirectly responsible for the murder of her ex-husband, Daniel Markel," the Dec. 4, 2014 TPD report says. “When I informed him that Wendi was not a suspect, he stated ‘well she should be.’”

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August 2, 2016 in Legal Education | Permalink | Comments (6)