TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Friday, June 24, 2016

Tax Panel At Today's National Business Law Scholars Conference At University Chicago

Chicago LogoTax panel at today's National Business Law Scholars Conference at the University of Chicago Law School:

The Intersection of Business and Tax Law:

  • Ilya Beylin (Columbia), Taxing Fictive Orders: How an Information Forcing Tax Can Reduce Manipulation and Distortion in Financial Product Markets
  • Limor Riza (Carmel Academic Center), Charitable Contributions and Dependent Care Expenses in a Coherent System
  • Sloan G. Speck (Colorado), Competitiveness as a Rationale for International Tax Reform 
  • Eric C. Chaffee (Toledo), Moderator

June 24, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Weekly SSRN Tax Roundup

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June 24, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Thursday, June 23, 2016

Denning:  Five Takes On Wynne And Direct Marketing Association

Brannon P. Denning (Samford), The Dormant Commerce Clause Wynnes Won Wins One: Five Takes on Wynne and Direct Marketing Association, 100 Minn. L. Rev. Headnotes 103 (2016):

October Term 2014 featured what is to date the most important state and local tax case since 1992’s Quill Corp. v. North Dakota. In Comptroller v. Wynne, the U.S. Supreme Court affirmed a state court decision holding unconstitutional Maryland’s refusal to grant a credit for taxes paid by a resident taxpayer to other states on income earned by the taxpayer in those states. This essay offers summary of the case, as well as five takes on Wynne and another state and local tax case from the 2014-2015 term, Direct Marketing Association v. Brohl.

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June 23, 2016 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, June 22, 2016

The End Of Accounting

EndBaruch Lev (NYU) & Feng Gu (SUNY-Buffalo), The End of Accounting (Wiley, June 27, 2016) (WSJ excerpt):

The problem with reported earnings, and financial statements in general, is that they no longer reflect the realities of businesses. Instead, they follow an arcane set of accounting rules and regulations. An alternate reality which fails to illuminate essential factors that make an enterprise rise or fall, where, for example:

  • The most important, value-creating investments in patents, brands, IT and other intangibles are considered regular expenses, like salaries or rent, without future benefits.
  • Reported earnings are a mixed bag of long-term items (indicating sustained growth) and one-time, transitory gains/losses (restructuring costs, for example), having negligible effect on corporate value. ...
  • Nontraded assets/liabilities, like privately placed bonds, which have no market values are nevertheless required to be marked-to-market in the financial reports. This, of course, is an oxymoron. ...

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June 22, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (3)

Schizer:  Taxing Corporations Or Shareholders (or Both)

David M. Schizer (Columbia), Between Scylla and Charybdis: Taxing Corporations or Shareholders (or Both):

The US taxes both corporations and shareholders on corporate profits. In principle, the U.S. could rely on only one of these taxes, as many commentators have suggested. Although choosing to tax the corporation or its owners may seem like taking money from one pocket or the other, this Essay emphasizes a key difference: corporate and shareholder taxes prompt different tax planning. Relying on one or the other mitigates some distortions and leaks, while exacerbating others. As a result, choosing which tax to impose is like navigating between Scylla and Charybdis.

In response to these dualing distortions, this Essay recommends using both taxes. Some tax should be collected from corporations, and some from investors. The two rates should be coordinated, so they aggregate to the combined rate Congress wants, which ideally would be the rate for pass-through businesses. The main goal of this Essay is to defend the use of both taxes, and to analyze what the balance should be between them. Using both taxes has three advantages. First, if one of these partially overlapping instruments is avoided, the other still raises some revenue. Second, if the goal is to deter a planning strategy, cutting the rate to zero is an overreaction. If the rate is low enough, paying a tax is cheaper than avoiding it, since tax planning is not free. Third, if one tax is cut instead of repealed, the other can be correspondingly lower, and thus induces less planning.

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June 22, 2016 in Scholarship, Tax | Permalink | Comments (3)

Shaviro:  The U.S. Response To OECD-BEPS And The EU State Aid Cases

Daniel Shaviro (NYU), The U.S. Response to OECD-BEPS and the EU State Aid Cases:

This is the slightly expanded text of a talk that the author gave on June 1, 2016, at a conference in Amsterdam that was cosponsored by NYU Law School and the Amsterdam Centre for Tax Law. The conference concerned anti-BEPS implementation in the EU, and the talk concerned the U.S. response to such efforts.

June 22, 2016 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, June 21, 2016

Dorothy Brown's Radical Idea: Deny The Mortgage Interest Deduction To Homeowners In Neighborhoods With < 10% Blacks

Washington Post Wonkblog:  A Radical Idea to Compensate Black Homeowners Harmed by Racial Bias, by Emily Badger:

MortgageHomes in black middle-class neighborhoods, like the one where Natalie Y. Moore grew up on the South Side of Chicago, typically don't gain value over time the same way homes in mostly white middle-class neighborhoods do.

The people who live there are penalized for biases built into the housing market. White home buyers seldom consider neighborhoods with even a modest black population, and so housing demand is much lower in those communities. That drives down prices and muzzles appreciation. It means that homeownership simply isn't as good of a deal in neighborhoods that are even slightly black.

Moore, a public radio reporter writing in her new book, The South Side: A Portrait of Chicago and American Segregation, quotes an idea from Emory University law professor Dorothy Brown on how to partially remedy this: "Why don't we say no one gets a mortgage interest deduction unless they live in an integrated neighborhood?" Brown told her. "We realize you're taking a penalty in the market, and we want to compensate you by lowering your taxes." And Brown's radical proposal to implement the idea: Let's extend the mortgage interest deduction only to homeowners who live in neighborhoods that are at least 10 percent black. [Shades of the American Dream, 87 Wash. U.L. Rev. 329 (2010).] ...

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June 21, 2016 in Scholarship, Tax | Permalink | Comments (12)

The Cost Of Law Review Articles:  $30,000 $1,000,000

One MillionFollowing up on Sunday's post, More On The $30,000 Cost Of Law Review Articles:  I previously blogged Robert Steinbuch (Arkansas-Little Rock), On the Leiter Side: Developing a Universal Assessment Tool for Measuring Scholarly Output by Law Professors and Ranking Law Schools, 45 Loy. L.A. L. Rev. 87 (2011):

With varying results, many scholars and commentators have focused their attention on judging the quality of law professors, as measured by their scholarly output. First, this Article explains the methods respectively developed by Brian Leiter and Roger Williams University School of Law for top-tier and second-tier law schools, and it considers other works of scholarship that measure academic publication. Then, this Article explicates a protocol (the “Protocol”) for measuring all of the scholarly output of any law school faculty member. Building on the Leiter and Roger Williams methods, the expanded Protocol accounts for a wider breadth of faculty publications and includes weighting factors based on law-journal rankings. Finally, this Article concludes by applying the Protocol to its Author and his colleagues. In sum, the Protocol that this Article develops and applies will provide a significantly more objective set of data with which to evaluate the scholarly performance of legal academics.

This chart must have generated some awkward conversations in the Arkansas faculty lounge:

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June 21, 2016 in Legal Education, Scholarship | Permalink | Comments (2)

Marriage Penalty Relief After Obergefell

Mitchell Engler (Cardozo) & Edward Stein (Cardozo), Not Too Separate or Unequal: Marriage Penalty Relief after Obergefell, 91 Wash. L. Rev. ___ (2016):

Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple’s taxes. Depending on their earnings breakdown, a couple’s taxes could be reduced (a marital bonus for uneven earners) or increased (a marital penalty for even earners). These possibilities exist because the joint brackets are typically larger – but not twice as large – as the unmarried brackets.

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June 21, 2016 in Scholarship, Tax | Permalink | Comments (0)

Columbia Journal Of Tax Law Publishes New Tax Matters: Obergefell v. Hodges

Columbia Journal of Tax Law LogoThe Columbia Journal of Tax Law has published a new issue of its Tax Matters feature, with three short pieces by tax practitioners responding to a specific cutting-edge tax law issue posed by a tax academic. Lawrence Zelenak (Duke), Prompt on the Obergefell v. Hodges Case, 7 Colum. J. Tax L. Tax Matters 1 (2016):

In the oral argument before the Supreme Court in Obergefell v. Hodges, Justice Alito asked Solicitor General Verrilli about the tax implications if the Court were to hold that the Constitution guaranteed a right to same-sex marriage: “Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or college if it opposed same-sex marriage?” The Solicitor General replied, “You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.” In his dissent in Obergefell, Chief Justice Roberts expressed the same concern:

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June 21, 2016 in Scholarship, Tax | Permalink | Comments (0)

Monday, June 20, 2016

UGPA And College Reputation Are Better Than LSAT In Predicting Law School Success

LSAT (2015)Jeffrey S. Kinsler (Belmont), The LSAT Myth, 20 St. Louis U. Pub. L. Rev. 393:

Predicting which students will perform well in law school may seem like an impossible task, but law schools endeavor to do so everyday, and the primary tool they use to make such predictions is the Law School Admission Test (LSAT), a standardized, 101-question multiple-choice examination. This article explores whether the LSAT warrants such prominence. Using statistical and anecdotal evidence, this article analyzes recent graduates of Marquette University Law School (MULS) to ascertain whether: (1) the LSAT is a valid predictor of three-year performance in law school; (2) the LSAT is a better predictor of law school performance than the UGPA or the reputation of the applicant's undergraduate institution; (3) an applicant's undergraduate major is useful in predicting law school performance; and (4) an applicant's age at the time of entry into law school is a valid predictor of law school performance.

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June 20, 2016 in Legal Education, Scholarship | Permalink | Comments (2)

Hatfield:  Privacy In Taxation

Michael Hatfield (University of Washington), Privacy in Taxation, 43 Fla. St. U. L. Rev. ___ (2016):

The IRS has extraordinary legal authority to collect personal information — and it does collect it, on about 290,000,000 individuals each year. Much of this information is not financial: the agency collects notes from therapists’ sessions and surgeons’ files, love letters and reading lists, and information on taxpayers’ sleeping arrangements and the sexual activities of their family members.

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June 20, 2016 in Scholarship, Tax | Permalink | Comments (0)

Columbia Journal Of Tax Law Publishes Symposium On Reforming The IRS

Columbia Journal of Tax Law LogoThe Columbia Journal of Tax Law has published Vol. 7, No. 1 (Symposium on Reforming the IRS, University of Minnesota Law School):

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June 20, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, June 19, 2016

More On The $30,000 Cost Of Law Review Articles

$30,000Following up on my previous posts on Jeff Harrison's estimate that the annual cost of each of the 8,000 law review articles produced by the nation's law professors is $240 million—$30,000 per article:

Jeff Harrison (Florida), Every Decision is Made: P.S. on Peeps:

Law professors are terrified of cost/benefit analysis when it comes to scholarship. I am too unless I am doing it. Actually, they want no part of cost benefit analysis, no matter how broadly defined, whether it comes to scholarship, LLM programs, certificates, or courses.

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June 19, 2016 in Legal Education, Scholarship | Permalink | Comments (4)

The Top 5 Tax Paper Downloads

Friday, June 17, 2016

Weekly SSRN Tax Roundup

Thursday, June 16, 2016

Kysar:  Interpreting Tax Treaties

Rebecca Kysar (Brooklyn), Interpreting Tax Treaties, 101 Iowa L. Rev. 1387 (2016):

The circumstances, if any, that permit non-uniform, or differentiated, treaty interpretation are difficult to define. Generally, a differentiated approach stands in tension with the Vienna Convention’s rules of interpretation, which apply a methodology based on plain meaning to all treaties. Yet courts, states, and scholars widely accept the notion that some treaties warrant special interpretive rules. Thus far, however, efforts to justify differentiated treaty interpretation on the grounds of subject matter or treaty purpose have proven inadequate. A more promising avenue is the examination of the objective characteristics shared within a treaty type. One such characteristic, I argue, is the treaty’s degree of completeness. Specifically, all else being equal, standalone instruments call for less reliance upon extrinsic materials; interstitial instruments demand more.

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June 16, 2016 in Scholarship, Tax | Permalink | Comments (1)

Yin:  A Maritime Lawyer, The Percentage Depletion Allowance, And The Joint Committee on Taxation

George K. Yin (Virginia), A Maritime Lawyer, the Percentage Depletion Allowance, and the Joint Committee on Taxation:

This year marks the 90th anniversary of both the percentage depletion allowance and the Joint Committee on Taxation. This essay relates the curious tale of Norman Beecher, a New York maritime lawyer with little background in energy, natural resources, or tax, who convinced Congress in 1918 to adopt a tax proposal that helped lead to both of these important features of the tax system eight years later.

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June 16, 2016 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, June 15, 2016

NYU Call For Papers:  Human Rights And Tax In An Unequal World

NYUCall for Papers: Human Rights and Tax in an Unequal World:

The NYU Center for Human Rights and Global Justice (CHRGJ) invites submissions of scholarly papers for a conference on human rights and tax, to be held at NYU School of Law on September 22-23, 2016. The conference aims to develop a deeper understanding of the ways in which tax policy is a centrally important form of human rights policy, and to consider how the international human rights framework can best be used to promote greater equality and justice through the global tax regime.

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June 15, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Boston College Symposium:  The Centennial of the Estate Tax

Boston College (2017)Symposium, The Centennial of the Estate Tax: Perspectives and Recommendations, 57 B.C. L. Rev. 801-1078 (2016):

Keynote Address:  Michael J. Graetz (Columbia), "Death Taxes" and Politics, 57 B.C. L. Rev. 801 (2016)

Panel #1

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June 15, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Tuesday, June 14, 2016

Avi-Yonah:  Reflections On 'Google Taxes', BEPS, And The DBCT

Reuven Avi-Yonah (Michigan), Three Steps Forward, One Step Back? Reflections on 'Google Taxes', BEPS, and the DBCT:

Since the market is less subject to tax competition pressures than the location of headquarters or production facilities, reducing the PE threshold makes it easier to prevent BEPS. This has recently led some jurisdictions to enact new taxes aimed specifically at structures that seek to exploit the domestic market while avoiding a PE. This article will discuss these taxes in the UK, Australia and India, explore their relationship to the BEPS project, and then consider whether further steps can be taken toward a destination-based corporate tax (DBCT) that will be a permanent cure for BEPS.

June 14, 2016 in Scholarship, Tax | Permalink | Comments (0)

Ryan:  Marital Sharing Of Transfer Tax Exemptions

Kerry A. Ryan (Saint Louis), Marital Sharing of Transfer Tax Exemptions, 57 B.C. L. Rev. ___ (2016):

This Article analyzes portability and its antecedents in order to distill a positive account of marital sharing of transfer tax exemption amounts. Prior to 2010, the estate and gift tax exemption equivalent was a nontransferable, separate tax attribute of each spouse. A spouse could only access his or her spouse’s effective exemption by shifting property into the other spouse’s tax base. With the enactment of portability, Congress decoupled tax-free availability of a spouse’s unified credit from the necessity of a prior intra-spousal transfer. All that is required is an election by the decedent spouse, via the executor, to share the decedent’s unused exemption equivalent with the surviving spouse.

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June 14, 2016 in Scholarship, Tax | Permalink | Comments (0)

Bilionis:  Professional Formation And The Political Economy Of The American Law School

Louis D. Bilionis (Former Dean, Cincinnati), Professional Formation and the Political Economy of the American Law School, 83 Tenn. L. Rev. ___ (2016):

This article proposes that a comprehensive model for doing professional formation in law school is now in sight. The model can work for formation – which is to say that it has the right vision of the fundamentals and the appropriate program features and pedagogies to effectively support students in the development of their professional identities. The model also can work for the political economy of the typical American law school – which is to say that its strategy and approach to roles and resources makes it congenial to postulates about power, resources, work, and governance that shape relations inside the law school.

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June 14, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Christians & Ezenagu:  Kill-Switches In The New U.S. Model Tax Treaty

KillAllison Christians (McGill) & Alexander Ezenagu (Ph.D. Candidate, McGill), Kill-Switches in the New U.S. Model Tax Treaty, 41 Brook. J. Int'l L. ___ (2016):

The new US model income tax treaty contains an unusual addition: mechanisms for the parties to unilaterally override the negotiated treaty rates in specified circumstances. Previewed last year in proposed form — a first for Treasury — these new mechanisms work as kill-switches, partially terminating the treaty as to one or both treaty partners. The idea is to forestall a more problematic outcome, such as an enduring breach of one of the parties’ expectations, or the opposite, a complete termination of all the treaty terms in the face of such a breach. Yet embedding a kill-switch in a treaty creates distinct legal, procedural, and political pressures in the tax-treaty relationship that implicate treaty negotiation, ratification, interpretation, and dispute resolution. Kill-switches also communicate a defensive tenor in the tax treaty relationships among many countries. This Article analyzes the new kill-switch provisions and concludes that their introduction in the U.S. Model reflects the steady deterioration of tax treaties from essentially diplomatic documents premised on the good faith of the parties to detailed contracts drafted in anticipation of the opposite.

June 14, 2016 in Scholarship, Tax | Permalink | Comments (0)

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 June 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):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

56,816

Reuven Avi-Yonah (Mich.)

10,444

2

Michael Simkovic (S. Hall)

32,439

Michael Simkovic (S. Hall)

4594

3

Paul Caron (Pepperdine)

31,397

D. Dharmapala (Chicago)

3327

4

D. Dharmapala (Chicago)

26,921

Paul Caron (Pepperdine)

2639

5

Louis Kaplow (Harvard)

26,006

Richard Ainsworth (BU)

2413

6

Vic Fleischer (San Diego)

22,410

Jeff Kwall (Loyola-Chicago)

1942

7

James Hines (Michigan)

21,820

Nancy McLaughlin (Utah)

1907

8

Richard Kaplan (Illinois)

21,119

Robert Sitkoff (Harvard)

1761

9

Ted Seto (Loyola-L.A.)

21,044

Louis Kaplan (Harvard)

1756

10

Ed Kleinbard (USC)

19,843

Chris Hoyt (UMKC)

1736

11

Katie Pratt (Loyola-L.A.)

18,905

David Weisbach (Chicago)

1718

12

Richard Ainsworth (BU)

18,018

Omri Marian (UC-Irvine)

1670

13

Robert Sitkoff (Harvard)

17,045

William Byrnes (Texas A&M)

1668

14

Carter Bishop (Suffolk)

17,005

Brad Borden (Brooklyn)

1588

15

Brad Borden (Brooklyn)

16,939

Dan Shaviro (NYU)

1578

16

David Weisbach (Chicago)

16,877

Ed Kleinbard (USC)

1500

17

Jen Kowal (Loyola-L.A.)

16,598

Vic Fleischer (San Diego)

1488

18

Chris Sanchirico (Penn)

16,450

Jack Manhire (Texas A&M)

1472

19

Dennis Ventry (UC-Davis)

16,075

Katie Pratt (Loyola-L.A.)

1421

20

Francine Lipman (UNLV)

16,010

Yariv Brauner (Florida)

1412

21

Bridget Crawford (Pace)

15,673

Richard Kaplan (Illinois)

1367

22

David Walker (BU)

15,028

Steven Bank (UCLA)

1311

23

Dan Shaviro (NYU)

14,887

Chris Sanchirico (Penn)

1280

24

Steven Bank (UCLA)

13,368

Gregg Polsky (N. Carolina)

1275

25

Herwig Schlunk (Vanderbilt)

13,198

Francine Lipman (UNLV)

1270

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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June 14, 2016 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Monday, June 13, 2016

Brooks:  Using Facts Of Tax Cases To Reveal Something About Who We Are

Kim Brooks (Dalhousie), The High Cost of Transferring the Dream:

This paper is part of a larger project where I use the facts in tax decisions to reveal something about who we are. It looks through a small window into the lives of the people who find themselves caught between our collective and their individual expenditure aspirations. More specifically, it explores the circumstances in which individuals find that their outstanding tax debts pose a threat to their ability to maintain ownership of their home.

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June 13, 2016 in New Cases, Scholarship, Tax | Permalink | Comments (0)

Thirty Reflection Questions To Help Law Students Find Meaningful Employment And Develop An Integrated Professional Identity

Neil W. Hamilton (St. Thomas ) & Jerome M. Organ (St. Thomas), Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation), 83 Tenn. L. Rev. ___ (2016):

Law schools must now define learning outcomes for their programs of legal education. Many law schools (and many professors in individual courses) are defining learning outcomes that include values beyond just minimal compliance with the law of lawyering — called here professional-formation learning outcomes.

This article, drawing on and synthesizing scholarship from law and other disciplines, will focus on the design of a curriculum with thirty reflection questions to help each student’s step-by-step development toward professional-formation learning outcomes beyond mere compliance with the law of lawyering. Section I of this article will describe the present context in which law schools must develop learning outcomes, and will highlight the number of law schools that have embraced one or both of the elements of a professional-formation learning outcome where a law school or a professor in an individual course requires that each student demonstrate an understanding and integration of:

1. proactive professional development toward excellence at all the competencies needed to serve clients and the legal system well;
2. an internalized deep responsibility to clients and the legal system.

Section II of the article analyzes the principles that should inform the design of an effective curriculum for these two professional-formation learning outcomes. Section III of the article will suggest thirty reflection questions that help each student:

1) reflect on the story, experiences and passions that brought her to law school and that she develops during law school as a means of both (a) identifying what she wants to do with her law degree and (b) proactively taking ownership over her growth toward meaningful post-graduate employment; and
2) make progress moving through developmental stages regarding these two professional formation learning outcomes; so that
3) she can begin to define and to live out who she wants to be as a lawyer in the context of what clients and the legal system expect of her.

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June 13, 2016 in Legal Education, Scholarship | Permalink | Comments (1)

Sunday, June 12, 2016

The Top 5 Tax Paper Downloads

SSRN LogoThere is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper and a new paper debuting on the list at #4:

  1. [412 Downloads]  Google's 'Alphabet Soup' in Delaware, by Bret Bogenschneider (Vienna) & Ruth Heilmeier (Cologne)
  2. [328 Downloads]  New Prominence Of Tax Basis In Estate Planning, by Paul L. Caron (Pepperdine) & Jay A. Soled (Rutgers)
  3. [241 Downloads]  Following the Money: Lessons from the Panama Papers, Part 1: Tip of the Iceberg, by Lawrence Trautman (American)
  4. [194 Downloads]  Why Does Inequality Matter? Reflections on the Political Morality of Piketty's Capital in the Twenty-First Century, by Liam Murphy (NYU)
  5. [187 Downloads]  'Death Tax' Politics, by Michael J. Graetz (Columbia)

June 12, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, June 11, 2016

11th Annual Junior Tax Scholars Workshop Concludes Today At UC-Irvine

UC Irvine Logo (2016)Panel #5:  Exempt Organizations/Individual Planning

Manoj Viswanathan (UC-Hastings), Tax Compliance in a Decentralizing Economy
Commentators:  Philip Hackney (LSU), Khrista Johnson (Pepperdine)

Philip Hackney (LSU), Subsidizing the Heavenly(?) Chorus
Commentators:  Manoj Viswanathan (UC-Hastings), Lilian Faulhaber (Georgetown)

Tessa Davis (South Carolina), Reconsidering Alimony and Tax
Commentators:  Khrista Johnson (Pepperdine), Sloan Speck (Denver)

Panel #6:  Grab Bag

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June 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Friday, June 10, 2016

Weekly SSRN Tax Roundup

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June 10, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

11th Annual Junior Tax Scholars Workshop Kicks Off Today At UC-Irvine

UC Irvine Logo (2016)Panel #1:  Tax Bases

Erin Scharff (Arizona State), Pigouvian User Fees
Commentators:  Goldburn Maynard (Louisville), Tessa Davis (South Carolina)

Goldburn Maynard (Louisville), A Plea for Courts to Abolish the Judicially Created Right of the Wealthy to Avoid Estate Taxes
Commentators:  Erin Scharff (Arizona State), Philip Hackney (LSU)

Emily Satterthwaite (Toronto), Chain Effects and the Small Supplier Election
Commentators:  Ari Glogower (Ohio State), Omri Marian (UC-Irvine)

Ari Glogower (Ohio State), Wealth Integration
Commentators:  Emily Satterthwaite (Toronto), Andrew Hayashi (Virginia)

Panel #2:  Compliance

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June 10, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Crawford:  Valuation, Values, Norms — Proposals For Estate And Gift Tax Reform

Bridget Crawford (Pace), Valuation, Values, Norms: Proposals for Estate and Gift Tax Reform, 57 B.C. L. Rev. 979 (2016):

In their contributions to the Symposium on The Centennial of the Estate and Gift Tax, Professor Joseph Dodge, Professor Wendy Gerzog, and Professor Kerry Ryan offer concrete proposals for improving the existing estate and gift tax system.

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June 10, 2016 in Scholarship, Tax | Permalink | Comments (0)

Thursday, June 9, 2016

Logue Responds To Galle's In Praise Of Ex Ante Regulation

Kyle Logue (Michigan), In Praise of (Some) Ex Post Regulation: A Response to Professor Galle, 69 Vand. L. Rev. En Banc 97 (2016):

Professor Brian Galle recently argued [In Praise of Ex Ante Regulation, 68 Vand. L. Rev. 1715 (2015)] that the growing consensus that ex post regulation is superior to ex ante regulation on efficiency grounds has been overstated by scholars, including me, and that ex ante regulation has advantages that have been ignored or underemphasized.

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June 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Graetz & Greenhouse:  The Burger Court And The Rise Of The Judicial Right

Burger CourtMichael J. Graetz (Columbia) & Linda Greenhouse (New York Times), The Burger Court and the Rise of the Judicial Right (June 7, 2016).  From Columbia Law School:

Early reviews are extolling the insights of The Burger Court and the Rise of the Judicial Right, the new book by Columbia Law School Professor Michael J. Graetz and Pulitzer Prize-winning journalist Linda Greenhouse. Graetz—the author of seven books, an eminent scholar and teacher, and a former official in the U.S. Treasury Department—is the Columbia Alumni Professor of Tax Law. He has argued before the Supreme Court. For nearly 30 years, Greenhouse covered the Supreme Court for The New York Times

The Burger Court and the Rise of the Judicial Right, published today by Simon & Schuster, challenges the accepted portrayal of the Supreme Court from 1969 to 1986 as pragmatic and accommodating, a moderate or transitional period when “nothing much happened.” On the contrary, explain Graetz and Greenhouse, American law moved to the right with President Richard Nixon’s four appointments to the Supreme Court, including Chief Justice Warren Burger. A new conservative majority reacted to the previously liberal Court under Chief Justice Earl Warren, curbing and rolling back landmark rulings on civil rights and civil liberties, while granting a First Amendment right to “commercial speech,” which would enable businesses to invoke the Constitution in opposition to government regulation. The Burger Court and the Rise of the Judicial Right shows how the Court reached its most lasting decisions, laying a legal foundation for the conservative Rehnquist and Roberts Courts. ...

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June 9, 2016 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (1)

AAUP Handbook:  Best Practices In Peer Review

AAUP Handbook, Best Practices in Peer Review (2016):

AAUPThe purpose of this document, written by the AAUP’s Acquisitions Editorial Committee, is to articulate a set of practices that comprise a rigorous process of peer review. The Committee acknowledges, however, that the peer review process is highly complex, involves many individuals, and must be responsive to the norms of the appropriate fields. Thus, while the steps discussed below are recognized as generally acceptable best practices, this document is not intended to prescribe the conduct of an acceptable peer review in every case. Moreover, though strong peer reviews are necessary for moving forward with a project, they form only one part of a broad range of factors, including considerations of fit and budget, that together lead to a publishing decision.

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June 9, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Thimmesch:  State Taxing Power After Direct Marketing Association v. Brohl

Adam B. Thimmesch (Nebraska), State Taxing Power after Direct Marketing Association v. Brohl, 80 State Tax Notes 299 (Apr. 25, 2016):

The Tenth Circuit Court of Appeals’ recent decision in Direct Marketing Association v. Brohl marked another entry into the ongoing saga regarding the scope of state taxing power over remote vendors. That decision, along with the U.S. Supreme Court’s decision in an earlier iteration of the litigation, has predictably increased the debates regarding the meaning and validity of the Court’s long-standing physical presence rule and the merits of congressional intervention.

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June 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, June 8, 2016

Caron:  The One Hundredth Anniversary Of The Federal Estate Tax — It's Time To Renew Our Vows

Paul L. Caron (Pepperdine), The One Hundredth Anniversary of the Federal Estate Tax: It's Time to Renew Our Vows, 57 B.C. L. Rev. 823 (2016):

September 8, 2016 will mark the one hundredth anniversary of the federal estate tax. As with many longstanding marriages, America’s commitment to the estate tax has waxed and waned through the years. Our ardor built slowly, growing from the honeymoon years (impacting less than 1% of decedents with an inflation-adjusted exemption of around $1 million and a 10% top rate on estates over $100 million, raising less than 1% of all federal tax revenues) to a mid-marriage peak (impacting more than 7% of decedents with a $350,000 exemption and a 77% top rate on estates over $160 million, raising nearly 10% of federal tax revenues). But our passion has steadily cooled since then, culminating in a one year trial separation in 2010 and today’s withered estate tax (impacting less than 0.2% of decedents with a $5.4 million exemption and a 40% top rate on estates over $6.4 million, raising less than 0.6% of federal tax revenues).

Yet the initial reasons for our commitment to the estate tax – to raise revenue during a time of war, enhance the progressivity of the tax system, and curb concentrations of wealth – are even more compelling today than they were in 1916. This Article argues that we should rededicate ourselves to the vibrant estate tax of our youth.

June 8, 2016 in Scholarship, Tax | Permalink | Comments (3)

Most Stock Buybacks Should Be Taxed As Dividends

Wanling Su (Yale) & Rahul K. Goravara (Yale), What Is a Dividend?:

What is a dividend? It is a trillion dollar question. One on which the Internal Revenue Service (IRS) and the courts profoundly disagree.

The Tax Code defines a dividend as “any distribution of property made by a corporation to its shareholders.” Corporations found a way around this definition and thus the dividend tax. It involves buying back their own stock. A buyback can act like a dividend in substance, distributing cash to shareholders without changing anyone’s stake in the corporation.

This reading has been taken for granted by scholars. We argue the Tax Code provisions are not simple. In fact, the IRS misinterprets them. Most buybacks should actually be taxed as dividends.

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June 8, 2016 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, June 7, 2016

Christians:  Tax Treaty Practice in Canada

Allison Christians (McGill), While Parliament Sleeps: Tax Treaty Practice in Canada, 10 J. Parl. & Political L. 15 (2016):

Canada’s Parliament plays little but a perfunctory role in the adoption of tax treaties, even though these agreements have significant impact on Parliamentary autonomy over core national budgetary matters as well as core legal and administrative functions. This article argues that Canada’s tax treaty process reflects a studied and intentional preference against public engagement in international fiscal policy, and that this stance has a negative impact on the rule of law.

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June 7, 2016 in Scholarship, Tax | Permalink | Comments (0)

Sunday, June 5, 2016

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 #4:

  1. [465 Downloads]  The Panama Papers and Tax Morality, by Usman W. Chohan (University of New South Wales)
  2. [397 Downloads]  Google's 'Alphabet Soup' in Delaware, by Bret Bogenschneider (Vienna) & Ruth Heilmeier (Cologne)
  3. [310 Downloads]  New Prominence Of Tax Basis In Estate Planning, by Paul L. Caron (Pepperdine) & Jay A. Soled (Rutgers)
  4. [179 Downloads]  Following the Money: Lessons from the Panama Papers, Part 1: Tip of the Iceberg, by Lawrence Trautman (American)
  5. [176 Downloads]  'Death Tax' Politics, by Michael J. Graetz (Columbia)

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

Sunstein:  The World According to Star Wars—Lessons On Faith, Fathers & Feminism

SunsteinCass Sunstein (Harvard), The World According to Star Wars (May 31, 2016):

There’s Santa Claus, Shakespeare, Mickey Mouse, the Bible, and then there’s Star Wars. Nothing quite compares to sitting down with a young child and hearing the sound of John Williams’s score as those beloved golden letters fill the screen. In this fun, erudite, and often moving book, Cass R. Sunstein explores the lessons of Star Wars as they relate to childhood, fathers, the Dark Side, rebellion, and redemption. As it turns out, Star Wars also has a lot to teach us about constitutional law, economics, and political uprisings.

In rich detail, Sunstein tells the story of the films’ wildly unanticipated success and explores why some things succeed while others fail. Ultimately, Sunstein argues, Star Wars is about freedom of choice and our never-ending ability to make the right decision when the chips are down. Written with buoyant prose and considerable heart, The World According to Star Wars shines a bright new light on the most beloved story of our time.

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June 5, 2016 in Book Club, Legal Education, Scholarship | Permalink | Comments (1)

Friday, June 3, 2016

Weekly SSRN Tax Roundup

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June 3, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

Roberts: A Structural Examination Of Energy Tax Subsidies

Tracey M. Roberts (UC-Hastings), Picking Winners and Losers: A Structural Examination of Tax Subsidies to the Energy Industry, 41 Colum. J. Envtl. L. 63 (2016):

The shibboleth that “government should not be picking winners and losers” has dominated the public discourse over renewable energy subsidies. This way of framing the debate ignores the nation’s long history of support for fossil fuels and obscures the economic theory behind the subsidies. This article contributes to the discussion in four ways.

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June 3, 2016 in Scholarship, Tax | Permalink | Comments (1)

Thursday, June 2, 2016

Lederman Presents Does Enforcement Crowd Out Voluntary Tax Compliance? At Oxford And Vienna

Ledderman (2016)Leandra Lederman (Indiana-Bloomnington) presented Does Enforcement Crowd Out Voluntary Tax Compliance? at Oxford University's Saïd Business School and Vienna University of Economics and Business:

Governments commonly use deterrence methods, such as audits and the imposition of penalties, to foster compliance with tax laws. Although this approach is consistent with economic modeling of tax compliance, some scholars caution that deterrence may backfire, “crowding out” intrinsic motivations to pay taxes and thus reducing compliance. This article analyzes the evidence to date to determine the extent of such an effect. Field studies suggest that deterrence tools, such as audits, generally are highly effective at increasing tax collections but that crowding out may occur in some contexts, with respect to certain subgroups of taxpayers.

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

The Importance Of Qualitative Assessment In Complementing Quantitative Measures Of Mid-Career Scholarly Performance

Mid-CareerFrank Pasquale (Maryland), Scholarship and Mid-Career Self-Assessments: A Brief Reflection on Simkovic’s What Can We Learn from Credit Markets?:

Chris J. Walker has written a very helpful series of posts for young professors on “how to become a voice in one’s field.” ... I also think that we can learn a great deal from the content of successful scholars’ inquiry. Usually, researchers only undertake this type of self-reflection when applying for jobs and preparing research agendas (a mostly private process), or at the end of a career (when a long list of accomplishments may seem too daunting to be relatable to younger peers). But winners of the ALI Young Scholars Medal appear to get invited to give a public talk on their work at an earlier stage of inquiry. Mike Simkovic (whose work I’ve previously praised here) gave such an address in May. ...

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June 2, 2016 in Legal Education, Scholarship | Permalink | Comments (1)

Today's Law, Society & Taxation Panels

L&SToday's Law, Society, and Taxation panels at the 2016 Law & Society Association Annual Meeting in New Orleans (program here):

  • Panel #1:  Business Taxes
  • Panel #2:  Controversies in Theory and Practice
  • Panel #3:  Comparative Tax Issues
  • Panel #4:  Evasion and Compliance
  • Panel #5:  Deterrence and Enforcement

Panel #1:  Business Taxes (Diane Ring (Boston College), Chair/Discussant))

  • Karie Davis-Nozemack (Georgia Tech), The Conceptual Incompatibility of Corporate Tax Avoidance with CSR and Stakeholder Theory
  • Calvin Johnson (Texas), A Conceptual Framework for Capital Gains
  • Melina Rocha Lukic & José Roberto Afonso (Fundacao Getulio Vargas), An Empirical Analysis of the Allowance for Corporate Equity (ACE) System in Brazil
  • Doron Narotzki (Akron), Corporate Social Responsibility and Taxation: The Next Step of the Evolution, 16 Hous. Bus. & Tax J. 167 (2016)

Panel #2:  Controversies in Theory and Practice (Philip Hackney (LSU), Chair/Discussant)

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June 2, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Villanova Hosts Symposium Today On Tax Policy And The 2016 Election

Villanova Grad Tax Program LogoThe Villanova Graduate Tax Program hosts its inaugural tax policy symposium today on Fundamental Tax Reform and Tax Policy Issues in Election Year 2016:

Welcome:  Edward A. Liva (Professor of Practice and Director, Villanova Graduate Tax Program)

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

16th Annual Oregon Tax Institute

OregonThe 16th Annual Oregon Tax Institute kicks off today in Portland.  Tax Prof speakers include:

  • Howard Abrams (San Diego), Partnership Leveraged Distributions: Traps Getting In and Tips on Getting Out

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

Wednesday, June 1, 2016

Yale:  Anti-Basis

Ethan Yale (Virginia), Anti-Basis, 94 N.C. L. Rev. 485 (2015):

Anti-basis is the untaxed benefit enjoyed by a taxpayer when a liability or obligation is incurred. In the business context, the untaxed benefit is an increase in asset basis or a tax deduction. In the personal context, the untaxed benefit might take one of those forms, or it might be (nondeductible) personal consumption. A well-functioning income tax system must keep track of any such untaxed benefit. If the liability from which the benefit derived is avoided by the taxpayer, the prior untaxed benefit must be taken into income (or must reduce basis). If there was no prior untaxed benefit relating to a liability, exceptions are necessary to various rules requiring income recognition (or basis reduction) on discharge or shifting of liabilities.

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