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Editor: Paul L. Caron
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Friday, August 28, 2015

Weekly Legal Education Roundup

Weekly SSRN Tax Roundup

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August 28, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Grit And Legal Education: Female Students Are Grittier Than Male Students

True GritEmily Zimmerman (Drexel) & Leah Brogan (Drexel), Grit and Legal Education, 36 Pace L. Rev. ___ (2015):

Although research indicates that grit predicts successful performance in a variety of contexts, grit is underexplored in the context of legal education. We investigated the relationship between grit and law school grade point average (GPA) among recent law school graduates. Contrary to expectations, a statistically significant correlation did not emerge between grit and law school GPA. However, average grit scores of women and men did significantly differ, with women reporting higher overall grit scores than men. Female and male participants’ law school GPAs did not significantly differ. This article discusses our research project and the questions regarding legal education that our findings raise. We also identify areas for further research regarding grit, legal education, and law practice.

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August 28, 2015 in Legal Education, Scholarship | Permalink | Comments (4)

Madison: Preparing For Service — A Template For 21st Century Legal Education

Pitt Logo (2015)Michael J. Madison (Pittsburgh), Preparing for Service: A Template for 21st Century Legal Education:

Legal educators today grapple with the changing dynamics of legal employment markets; the evolution of technologies and business models driving changes to the legal profession; and the economics of operating – and attending – a law school. Accrediting organizations and practitioners pressure law schools to prepare new lawyers both to be ready to practice and to be ready for an ever-fluid career path. From the standpoint of law schools in general and any one law school in particular, constraints and limitations surround us. Adaptation through innovation is the order of the day.

How, when, and in what direction should innovation take place? Who should lead, guide, and participate? These are questions often asked in both legal education in particular and in higher education in general. Rarely are answers accompanied by specific examples, strategies, or programs. This paper offers precisely that specificity. It documents one institution’s process and output, beginning with the concept of innovation in the face of multiple challenges and proposing one set of concrete, actionable strategies, tactics, and programs. These range from school-wide interventions to ideas for use at the level of the individual faculty member and course.

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August 28, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Thursday, August 27, 2015

Prebble Presents Tax Papers In Amsterdam

Prebble (2015)John Prebble (Victoria University of Wellington) is presenting two tax papers in Amsterdam:

Aug. 27:   General Anti-Avoidance Rules and the Rule of Law at the International Bureau of Fiscal Documentation (IBFD)

Aug. 28Kelsen, the Principle of Exclusion of Contradictions, and General Anti-Avoidance Rules in Tax Law at the University of Amsterdam as the Opening Address to inaugurate a new Advanced Master’s Degree in International Tax Law.

August 27, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Taylor: Diversity As A Law School Survival Strategy

DiversityAaron N. Taylor (St. Louis), Diversity as a Law School Survival Strategy, 59 St. Louis U. L.J. 321 (2015):

Over the past few years, law schools have been dealing with a drastic and, so far, unyielding decline in student interest. Between 2010 and 2013, student enrollments fell almost 25%, to levels not seen in 40 years. This trend has prompted many to wonder what schools have done, and what they can do, to ensure their survival in this new climate. This article explores the extent to which law schools have used students of color, particularly black and Hispanic students, to bolster enrollments and lessen the effects of the downturn. The results of this analysis suggest that a school’s median LSAT score influenced the extent to which the racial composition of its entering classes changed between 2010 and 2013. Black and Hispanic students were critical components of the enrollment management calculus for private law schools with the lowest median LSAT scores. Higher-median schools tended to rely more heavily on white and Asian enrollments to stem declines. These trends led to increased racial and ethnic stratification in law school enrollments, where black and Hispanic students were more likely to attend schools with lower median LSAT scores in 2013 than in 2010, while white and Asian students were more likely to attend schools with higher median scores. Perceptions of law school quality and prestige are greatly influenced by a school’s median LSAT score; therefore, the trend of stratification may only serve to intensify racial and ethnic differences in career paths and trajectories.

August 27, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Wednesday, August 26, 2015

Kuehn: Measuring Legal Education's Employment Outcomes

Robert R. Kuehn (Washington University), Measuring Legal Education's Employment Outcomes, 2015 Wis. L. Rev. ___ :

This Article examines evidence of a possible link between learning opportunities in law school and J.D. employment outcomes. It responds to a paper [Does Experiential Learning Improve JD Employment Outcomes?] by Jason Yackee that finds, using 2013 data from top 100 ranked schools, “not much evidence” that law clinic opportunities are likely to improve a school’s graduates’ employment outcomes and suggesting that those opportunities may even harm employment prospects.

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August 26, 2015 in Legal Education, Scholarship | Permalink | Comments (2)

Foundation Press Publishes Seventh Edition Of Federal Wealth Transfer Taxation

Federal Wealth Transfer Taxation CoverFoundation Press has published the seventh edition of Federal Wealth Transfer Taxation (amazon), by the late Paul McDaniel (Florida), Jim Repetti (Boston College), and me:

This edition continues the comprehensive, yet flexible, presentation of prior editions. It explores technical and policy issues and is adaptable for use in a single course covering basic wealth transfer taxation or a sequence of such courses at either the J.D. level or LL.M. level. It includes approximately 300 problems, designed to help students master the material covered in each chapter. Within each section, the book moves from the straightforward to the more complex, empowering the professor to select the appropriate level of complexity for her course. It thoroughly integrates all changes in the law through May 1, 2015, including case law, legislation, regulations, rulings, and other administrative pronouncements.

Jim and I have sent the 212-page Teacher's Manual to Foundation Press:

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August 26, 2015 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Tuesday, August 25, 2015

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through August 1, 2015) 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 (Michigan)

47,795

Reuven Avi-Yonah (Michigan)

7284

2

Paul Caron (Pepperdine)

29,046

Ed Kleinbard (USC)

5597

3

Michael Simkovic (Seton Hall)

28,393

Michael Simkovic (Seton Hall)

4493

4

Louis Kaplow (Harvard)

24,592

D. Dharmapala (Chicago)

3979

5

D. Dharmapala (Chicago)

24,131

Gregg Polsky (N. Carolina)

3289

6

Vic Fleischer (San Diego)

21,034

Paul Caron (Pepperdine)

2591

7

James Hines (Michigan)

20,904

Richard Ainsworth (BU)

2051

8

Ted Seto (Loyola-L.A.)

20,142

Omri Marian (UC-Irvine)

1914

9

Richard Kaplan (Illinois)

19,868

Robert Sitkoff (Harvard)

1780

10

Ed Kleinbard (USC)

18,547

Jeff Kwall (Loyola-Chicago)

1777

11

Katie Pratt (Loyola-L.A.)

17,691

Louis Kaplow (Harvard)

1771

12

Carter Bishop (Suffolk)

16,123

Katie Pratt (Loyola-L.A.)

1647

13

Richard Ainsworth (BU)

15.958

Brad Borden (Brooklyn)

1633

14

Dennis Ventry (UC-Davis)

15,749

Dan Shaviro (NYU)

1546

15

Jen Kowal (Loyola-L.A.)

15,694

David Gamage (UC-Berkeley)

1411

16

Chris Sanchirico (Penn)

15,548

Jen Kowal (Loyola-L.A.)

1390

17

Robert Sitkoff (Harvard)

15,524

Dick Harvey (Villanova)

1359

18

Brad Borden (Brooklyn)

15,358

Chris Sanchirico (Penn)

1268

19

David Weisbach (Chicago)

15,286

William Byrnes (Texas A&M)

1245

20

Francine Lipman (UNLV)

14,881

James Hines (Michigan)

1194

21

Bridget Crawford (Pace)

14,622

Ruth Mason (Virginia)

1186

22

David Walker (BU)

14,391

Joe Bankman (Stanford)

1178

23

Dan Shaviro (NYU)

13,569

Carter Bishop (Suffolk)

1096

24

Herwig Schlunk (Vanderbilt)

12,843

Francine Lipman (UNLV)

1062

25

Steven Bank (UCLA)

12,182

Ted Seto (Loyola-L.A.)

1048

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

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August 25, 2015 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Monday, August 24, 2015

Morse Presents Safe Harbors, Sure Shipwrecks Today At Indiana

Morse (2015)Susan C. Morse (Texas) presents Safe Harbors, Sure Shipwrecks at Indiana today as part of its Faculty Speaker Series:

Safe harbors and sure shipwrecks are rule-standard hybrids that appear throughout statutory, regulatory and case law. Safe harbors guarantee compliance, and also leave open the question of compliance for fact situations not described by the safe harbor. Sure shipwrecks provide a conclusive noncompliance result and also leave open the question of compliance outside the sure shipwreck. Safe harbors and sure shipwrecks produce asymmetric behavioral incentives for persons subject to them. Like bright-line rules, safe harbors encourage behavior to converge from both sides of the line drawn by the safe harbor. This is because of the advantage of a zero chance of liability within the safe harbor. Sure shipwrecks generally encourage convergence only from the noncompliant side of the line. Ex ante versus ex post policy making, overinclusion and underinclusion, interest group influence, and other factors also affect safe harbor and sure shipwreck policy making.

August 24, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Sunday, August 23, 2015

The Top 5 Tax Paper Downloads

Friday, August 21, 2015

Weekly SSRN Tax Roundup

Thursday, August 20, 2015

Wells: The Foreign Tax Credit War

FTCBret Wells (Houston), The Foreign Tax Credit War, 2016 BYU L. Rev. ___ :

The government has been involved in a sustained war against objectionable foreign tax credit transactions, and this war has caused the U.S. foreign tax credit regime to be riddled with complexity that spawns incoherent outcomes. The complexity contained in section 901 was created due to a legitimate concern. The threats posed by objectionable transactions that artificially generate excess foreign tax credits represent real policy problems. Since at least 1975, Congress and the Treasury Department have been convinced that the cross-crediting of excess foreign tax credits arising from “objectionable transactions” required a response in addition to simply relying on section 904. Thus, it is understandable that Congress and the Treasury Department would seek to redefine the foreign tax credit eligibility standards in response to transactions that generate foreign tax credits in objectionable ways. However, the historical record indicates that Congress and the Treasury Department ran roughshod over section 901 and used a scorched earth approach in their war against objectionable foreign tax credit transactions. The result is that the U.S. foreign tax credit regime is a “byzantine structure of staggering complexity.” In the rush to enact reforms, ill-conceived provisions were enacted that should not have been enacted.

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August 20, 2015 in Scholarship, Tax | Permalink | Comments (1)

Avi-Yonah & Zelik: Are We Trapped By Our Capital Gains?

Reuven S. Avi-Yonah (Michigan) & Dima Zelik (Michigan), Are We Trapped by Our Capital Gains?:

For political reasons, we seem to be stuck with the current realization-based system of taxing capital gains. This means that lock-in is a serious problem. Inflation can be dealt with by adjusting basis and bunching by averaging devices, but it is hard to address lock-in, especially if step-up on death is retained. The current rate structure is 39.6% for ordinary income (higher if limits of deductions are taken into account) and 23.8% for capital gains. This has already led to a proliferation of conversion transactions and to pressure on the labor/capital distinction. We are doubtful that an effective centrifuge can be devised to segregate income from labor from income from capital. This may work in Sweden, but it may not work in a country like the US with a hyper-sophisticated capital market and very aggressive tax advisors.

Thus, we have reluctantly come to the conclusion that we are indeed trapped by our capital gains, that the current rate structure is indefensible in practice, and that we should revert to an overall rate of 28% for all income.

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August 20, 2015 in Scholarship, Tax | Permalink | Comments (4)

Tuesday, August 18, 2015

What Law Schools Can Learn From Medical Schools

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

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

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

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August 18, 2015 in Legal Education, Scholarship | Permalink | Comments (6)

Monday, August 17, 2015

Simkovic Presents The Knowledge Tax Today At Loyola-L.A.

Simkovic 2Michael Simkovic (Seton Hall) presents The Knowledge Tax, 82 U. Chi. L. Rev. ___ (2015), at Loyola-L.A. today as part of its Tax Policy Colloquium Series:

Labor economists struggle to explain why the rates of return to higher education have remained much higher than the rates of return to other investments. This article proposes a novel explanation: distortionary taxation.

Economic theory suggests that when investments that are substitutes for one another are taxed inconsistently, investors are less likely to choose the investment option that is taxed more heavily. Unfavorable tax treatment of higher education relative to other forms of investment could create an undersupply of educated labor. This distortion would reduce economic growth and social welfare.

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August 17, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (12)

Tax Papers At 2015 Big Ten Junior Law Faculty Conference

Big TenTax papers at last week's 2015 Big Ten Junior Law Faculty Conference at Indiana:

Margaret Ryznar (Indiana-Indianapolis), An Easy Solution to the Marriage Penalty:

The marriage penalty in the federal income tax continues to persist despite universal agreement that there is no place for it. This Article is modest yet revolutionary in its proposal to eliminate the marriage penalty: to create another tax filing status for two-income earning couples that earn an amount within a particular percentage of each other. This filing status would offer double the rates of single filers because it accommodates two incomes. Such a simple solution to the marriage penalty causes the least upheaval to the general legal framework that treats spouses as a single economic unit. It has the additional attributes of finally no longer penalizing a significant subset of women who work and marry.

Adam Thimmesch (Nebraska), Transacting in Data: Tax, Privacy, and the New Economy:

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August 17, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, August 16, 2015

The Top 5 Tax Paper Downloads

Friday, August 14, 2015

Weekly SSRN Tax Roundup

Controversies In Tax Law: A Matter Of Perspective

Controversies in Tax Law CoverControversies in Tax Law: A Matter of Perspective (Anthony C. Infanti, ed. Ashgate 2015):

This volume presents a new approach to today’s tax controversies, reflecting that debates about taxation often turn on the differing worldviews of the debate participants. For instance, a central tension in academic tax literature - which is filtering into everyday discussions of tax law - exists between 'mainstream' and 'critical' tax theorists. This tension results from a clash of perspectives: Is taxation primarily a matter of social science or of social justice? Should tax policy debates be grounded in economics or in critical race, feminist, queer, and other outsider perspectives?

To capture and interrogate what often seems like a chasm between the different sides of tax debates, this collection comprises a series of pairs of essays. Each pair approaches a single area of controversy from two different perspectives - with one essay usually taking a 'mainstream' perspective and the other a 'critical' perspective. In writing their contributions, the authors read and incorporated reactions to each other’s essays and paid specific attention to the influence of perspective on both the area of controversy and their contribution to the debate. With contributions from leading mainstream and critical tax scholars, this volume takes the first step toward bridging the gap between these differing perspectives on tax law and policy.

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August 14, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Wednesday, August 12, 2015

Oregon Symposium: Disruptive Innovation In Law And Technology

DisruptiveSymposium, Disruptive Innovation in Law and Technology, 93 Or. L. Rev. 831-934 (2015):

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August 12, 2015 in Legal Education, Scholarship | Permalink | Comments (2)

Graetz: The End Of Energy

GraetzMichael Graetz (Columbia), The End of Energy The Unmaking of America's Environment, Security, and Independence (Chapters 11 & 12) (MIT Press, 2011):

With the permission of MIT Press, this document includes Chapters 11 and 12 from my 2011 book, The End of Energy: The Unmaking of America’s Environment, Security, and Independence. These two chapters discuss some of the history and merits of taxes, subsidies, and regulation (including cap and trade) as mechanisms to implement policies to curb greenhouse gases. In light of the renewed interest in and discussion of command and control regulations and carbon taxes, these chapters may be useful to readers who do not have the book. The bibliographic material relating to these chapters is contained in the book and has been omitted here.

Description of the book:

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August 12, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (1)

WSJ: Number Of Academic Paper Co-Authors Skyrockets In Bid To Goose Citation Ranking — The Proliferation Of 'Kilo-Authors'

WSJWall Street Journal, How Many Scientists Does It Take to Write a Paper? Apparently, Thousands:

A Frenchman named Georges Aad may have the most prominent name in particle physics.

In less than a decade, Dr. Aad, who lives in Marseilles, France, has appeared as the lead author on 458 scientific papers. Nobody knows just how many scientists it may take to screw in a light bulb, but it took 5,154 researchers to write one physics paper earlier this year—likely a record—and Dr. Aad led the list.

His scientific renown is a tribute to alphabetical order. Almost every paper by “G. Aad et al.” involves so many researchers that they decided to always list themselves in alphabetical order. ...

[T]here has been a notable spike since 2009 in the number of technical reports whose author counts exceeded 1,000 people, according to the Thomson Reuters Web of Science, which analyzed citation data. In the ever-expanding universe of credit where credit is apparently due, the practice has become so widespread that some scientists now joke that they measure their collaborators in bulk—by the “kilo-author.” ...

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August 12, 2015 in Legal Education, Scholarship | Permalink | Comments (1)

Tuesday, August 11, 2015

The 69 Most-Cited Law Faculties

Gregory C. Sisk (University of St. Thomas) et al.,  Scholarly Impact of Law School Faculties in 2015: Updating the Leiter Score Ranking for the Top Third:

This study explores the scholarly impact of law faculties, ranking the top third of ABA-accredited law schools. Refined by Professor Brian Leiter, the “Scholarly Impact Score” for a law faculty is calculated from the mean and the median of total law journal citations over the past five years to the work of tenured members of that law faculty. In addition to a school-by-school ranking, we report the mean, median, and weighted score, along with a listing of the tenured law faculty members at each ranked law school with the ten highest individual citation counts.

1.   Yale
2.   Harvard
3.   Chicago
4.   NYU
5.   Stanford
6.   UC-Irvine
7.   Columbia
8.   Duke
9.   Vanderbilt, UC-Berkeley
11.  Pennsylvania
12.  Northwestern
13.  Cornell, UCLA
15.  Michigan, Georgetown
17.  Virginia, George Washington
19.  Minnesota
20.  Texas
21.  George Mason, Washington University, Boston University
24.  UC-Davis
25.  Case Western, Notre Dame
27.  Illinois, Emory
29.  Cardozo, Arizona, Colorado, Ohio State
33.  North Carolina, Brooklyn
35.  Indiana, Utah, Fordham, San Diego
39.  Florida State, Arizona State, USC, St. Thomas, Iowa
44.  UC-Hastings, William & Mary, Maryland
47.  BYU, Hofstra, Washington & Lee
50.  UNLV, Pittsburgh
52.  Temple, Wake Forest, Florida, Chicago-Kent, Alabama
57.  Georgia, Houston, Loyola-L.A., American, Boston College
62.  Missouri, Toledo
64.  DePaul, Rutgers-Camden, Kansas, Tulane, Hawaii, San Francisco

Here are the 16 Tax Profs among the 10-most cited faculty at the Top 69 law schools:

2.   Harvard:  Louis Kaplow
15.  Michigan: Reuven Avi-Yonah
19.  Minnesota:  Kristin Hickman
24.  UC-Davis:  Dennis Ventry
29.  Cardozo: Ed Zelinsky
33.  North Carolina:  Gregg Polsky
35.  Indiana:  Leandra Lederman; San Diego:  Vic Fleischer
39.  USC:  Ed Kleinbard, Ed McCaffery
47.  BYU:  Cliff Fleming
52.  Temple:  Nancy Knauer; Chicago-Kent: Evelyn Brody
57.  Loyola-L.A.:  Ellen Aprill
64.  Tulane: Marjorie Kornhauser; San Francisco: Joshua Rosenberg

Several law faculties achieve Scholarly Impact Scores well above the rankings reported by U.S. News:

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August 11, 2015 in Law School Rankings, Legal Education, Scholarship, Tax | Permalink | Comments (8)

Sunday, August 9, 2015

The Top 5 Tax Paper Downloads

Friday, August 7, 2015

Krugman Slams Piketty's 'New' Book On Inequality

PikettyNew York Times Book Review:  Thomas Piketty, The Economics of Inequality (Harvard University Press 2015), reviewed by Paul Krugman (Princeton):

Let me be blunt: I don’t know how the decision was made to release this “new” Piketty book in its current form, but it’s not at all the book one might have expected. It is, instead, a slightly revised version of a volume first published in 1997, when Mr. Piketty was in his mid-20s.

And by slightly I mean very slightly. Even the data tables have not, for the most part, been updated, in many cases containing no information later than 1995. Perhaps more important, the basic outlines of the argument haven’t been updated to reflect later scholarship — not even Mr. Piketty’s own work with Mr. Saez. As the author concedes in a note to readers, “This book does not fully take into account the results of the past 15 years of international research on the historical dynamics of inequality.”

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August 7, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (2)

Beyond Gilson: The Art Of Business Lawyering

Praveen Kosuri (Pennsylvania), Beyond Gilson: The Art of Business Lawyering, 19 Lewis & Clark L. Rev. 463 (2015):

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients.

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August 7, 2015 in Scholarship, Tax | Permalink | Comments (1)

Infanti: The House Of Windsor — Accentuating the Heteronormativity In The Tax Incentives For Procreation

Anthony C. Infanti (Pittsburgh), The House of Windsor: Accentuating the Heteronormativity in the Tax Incentives for Procreation, 89 Wash. L. Rev. 1185 (2014):

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which heteronormativity pervades our federal tax laws and of identifying means of eliminating that heteronormativity. To further this work and in keeping with the theme of this symposium issue, “Compensated Surrogacy After Windsor,” this essay explores the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate.

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August 7, 2015 in Scholarship, Tax | Permalink | Comments (0)

Thursday, August 6, 2015

Mehrotra Reviews Zelenak's Learning To Love Form 1040

Learning to Love 1040Ajay K. Mehrotra (Indiana), Reviving Fiscal Citizenship, 113 Mich. L. Rev. 943 (2015) (reviewing Lawrence Zelenak (Duke), Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (University of Chicago Press, 2013)): 

In recent years, numerous lawmakers, policy analysts, and scholars have been decrying the many defects of the present U.S. income tax system. Few have attempted to defend our return-based mass income tax. This essay reviews Learning to Love Form 1040, Lawrence Zelenak’s stirring and persuasive defense of a simplified version of our present federal income tax system. In contrast to the conventional economic critiques, Zelenak explores the underappreciated social, cultural, and political benefits of a return-based, mass income tax. Chief among these, he argues, is the existing regime’s potential to raise the tax consciousness of the average citizen and to enhance modern notions of fiscal citizenship.

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August 6, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (1)

Rhode: The Trouble With Lawyers

TroubleDeborah L. Rhode (Stanford), The Trouble with Lawyers (Oxford University Press, June 1, 2015):

By any measure, the law as a profession is in serious trouble. Americans' trust in lawyers is at a low, and many members of the profession wish they had chosen a different path. Law schools, with their endlessly rising tuitions, are churning out too many graduates for the jobs available. Yet despite the glut of lawyers, the United States ranks 67th (tied with Uganda) of 97 countries in access to justice and affordability of legal services. The upper echelons of the legal establishment remain heavily white and male. Most problematic of all, the professional organizations that could help remedy these concerns instead jealously protect their prerogatives, stifling necessary innovation and failing to hold practitioners accountable.

Deborah Rhode's The Trouble with Lawyers is a comprehensive account of the challenges facing the American bar. She examines how the problems have affected (and originated within) law schools, firms, and governance institutions like bar associations; the impact on the justice system and access to lawyers for the poor; and the profession's underlying difficulties with diversity. She uncovers the structural problems, from the tyranny of law school rankings and billable hours to the lack of accountability and innovation built into legal governance-all of which do a disservice to lawyers, their clients, and the public.

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August 6, 2015 in Book Club, Legal Education, Scholarship | Permalink | Comments (1)

Wednesday, August 5, 2015

Ring: Another Perspective On The Role Of Tax Professionals

JotwellDiane Ring (Boston College), Who Should Be Invited to the Tax Dinner? Another Perspective on the Role of Tax Professionals (Jotwell) reviewing Gillian Brock (Auckland) & Hamish Russell (Toronto), Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals):

Brock and Russell’s article [argues that] the functioning of the tax system depends, in part on our acknowledgement that certain behavior is important to its successful operation, even though that behavior may not have been formalized explicitly into the law. ... [I]t has been ... difficult to establish a shared vision of the moral responsibility for curbing abusive tax avoidance. But Brock and Russell seek to ignite this conversation through their fresh perspective. ...

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August 5, 2015 in Scholarship, Tax | Permalink | Comments (1)

Dynasty Trusts Enable The Wealthy To Control Their Assets Even Beyond The Grave

MadoffThe Nation, How the Rich Can Keep Their Homes, Businesses, Artwork, and Wealth Tax-Free—Forever: Dynasty Trusts Enable the Wealthy to Control Their Assets Even Beyond the Grave, by Mike Koncza:

It’s a common-sense notion that society’s wealth shouldn’t be governed by ghosts. “Our Creator made the earth for the use of the living and not of the dead,” wrote Thomas Jefferson. (Also: “One generation of men cannot foreclose or burthen its use to another.”) But in our new age of inequality—the top 10 percent now own nearly 80 percent of all wealth—old concerns about wealth and inheritance are coming back from the dead.

Americans have, historically, had a simple approach to dealing with wealth after its holder dies: You can do whatever you want with your property, but not for very long. Rich people can disinherit children. They can put extreme conditions on how their successors can inherit, like requiring marriage. They can build monuments to themselves or give everything to their pets. But they can only do it so long. Eventually, time catches up with them and their estates dissolve.

Or at least that’s how it used to be. Remember that the dead can’t actually do any of this themselves because they are, in fact, dead. Instead, a trust is empowered to carry out the last wishes of the deceased. A trust is simply a legal entity that contains property; people tell a trust what they want to do, and the trust acts like a ghost, enforcing their wishes beyond the grave. But there’s a safeguard built in to prevent abuses: Trusts have been governed by something called the rule against perpetuities, which places a roughly 100-year limit on how long they can exist. This prevents people with no connection to the living world from putting restrictions on our country’s wealth.

In recent years, the safeguard of time has been eroded. As the tax expert Ray D. Madoff documents in her 2010 book Immortality and the Law: The Rising Power of the American Dead, we are experiencing a rapid rise of dynasty trusts, which massively expand the power of the dead over the wealth of the living.

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August 5, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (5)

Creating 'Practice Aware' Law Graduates

TransactionalJay Finkelstein (American), Practice in the Academy: Creating 'Practice Aware' Law Graduates, 64 J. Legal Educ. 622 (2015):

Being a transactional partner in an international law firm who has, during the past dozen years, taught transactional law as an adjunct faculty member at four major US law schools [American, Georgetown, Stanford, UC-Berkeley] and on four continents, one develops a “perspective,” informed by experience on both sides of the debate, about what can and should be accomplished through a legal education. Law school education has historically overlooked the transactional side of legal practice. Change has occurred over the past decade, and it is continuing to occur in a positive direction and at an increasing pace toward recognizing the importance of introducing and teaching transactional law topics, practice and skills. This article is a continuing part of that effort.

August 5, 2015 in Legal Education, Scholarship | Permalink | Comments (1)

Tuesday, August 4, 2015

Shaheen: Understanding Lockout

Fadi Shaheen (Rutgers-Newark), Understanding Lockout, 69 Tax L. Rev. ___ (2016):

Based on the notion that the size of an initially-smaller but faster-growing investment would eventually reach and exceed the size of an initially-larger but slower-growing investment, the “full-value model” developed in this paper shows that the assumption that repatriation is eventually unavoidable is not necessary for the new view result to hold. This idea establishes the new view optimum as the benchmark retention optimum for defining lockout and narrows down the real income reasons for lockout to only one: an expected reduction in the repatriation tax rate, either statutorily or effectively through tax planning.

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August 4, 2015 in Scholarship, Tax | Permalink | Comments (0)

Sunday, August 2, 2015

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 #5:

  1. [290 Downloads]  Capital Accounts in LLCs and in Partnerships: Powerful Default Rules and Potential Tax Significance, by Donald Weidner (Dean, Florida State)
  2. [140 Downloads]  How I Learned to Stop Worrying and Love Our Homeowner Tax Rules, by David Hasen (Colorado)
  3. [131 Downloads]  Safe Harbors, Sure Shipwrecks, by Susan Morse (Texas)
  4. [129 Downloads]  The International Tax Regime — A Centennial Reconsideration, by Reuven Avi-Yonah (Michigan)
  5. [95 Downloads]  Reforming REIT Taxation (Or Not), by Brad Borden (Brooklyn)

August 2, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, July 31, 2015

Weekly SSRN Tax Roundup

Thursday, July 30, 2015

Avi-Yonah: The Case For A Destination-Based Corporate Tax

Reuven S. Avi-Yonah (Michigan), The Case for a Destination-Based Corporate Tax:

In 1993, I published a paper advocating a destination-based corporate income tax (DBCT) (Avi-Yonah, 1993). Under DBCT, multinational enterprises (MNEs) would be treated as unitary businesses and taxed based on where they sell their goods or services, i.e., on a destination basis rather than (as in current corporate taxes) primarily on an origin basis. I have subsequently elaborated on this proposal with Kim Clausing and Mike Durst (Avi-Yonah, Clausing and Durst, 2009).

In recent years, DBCT has attracted some support by economists, such as Alan Auerbach and Mike Devereaux (Auerbach, Devereux and Simpson, 2008; Devereux and de la Feria, 2014). While the economists tend to advocate a cash flow DBCT, i.e., a corporate tax that is more consumption than income based because MNEs will be allowed to expense capital outlays, both types of taxes apply to corporate rents in the same way. Moreover, the economists’ proposals raise similar issues as mine, e.g., in regard to compatibility with treaties or with WTO rules.

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July 30, 2015 in Scholarship, Tax | Permalink | Comments (0)

Mann: The Tax Policy Implications Of Economists/Policymakers Miscommunication

Roberta F. Mann (Oregon), Economists are from Mercury, Policymakers are from Saturn: The Tax Policy Implications of Communication Failure, 5 Wm. & Mary Pol'y Rev. 50 (2013):

SaturnPolicymaking lawyers and economists are different types of people who come together in the policymaking realm. Sometimes policymakers rely on economic analysis to make decisions. Sometimes policymakers use economic analysis to support decisions already made. In particular, economic analysis has played a large role in the formation of tax and budgetary policy. However, there is a problem. Not only do economists and lawyers communicate differently, they think, perceive, react and respond differently. They almost seem to be from different planets, speaking different languages. While both lawyers and economists use “stories” to persuade, economic analysis cloaks the story in a complex mathematical model, opaque to those without training in economic theory. The results of economic modeling can obscure the decisions that policymakers and the public need to make — about the direction of the tax system, the nation, and the economy. This article examines the roles economists and lawyers play in the development and implementation of the income tax system. 

July 30, 2015 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, July 29, 2015

Kadet: Attacking Profit Shifting — The Approach Everyone Forgets

Jeffery M. Kadet (University of Washington), Attacking Profit Shifting: The Approach Everyone Forgets, 148 Tax Notes 193 (July 15, 2015):

Kadet uses hypothetical but realistic examples to show how the IRS could combat profit shifting by directly taxing the effectively connected income of controlled foreign corporations. He also urges Treasury to update the ECI regulations as soon as possible to reflect current technology and modern business models and practices. 

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July 29, 2015 in Scholarship, Tax | Permalink | Comments (0)

Why All Attorneys Should Learn About Entrepreneurship In Law School

EntJ. Mark Phillips (Belmont), Entrepreneurial Esquires in the New Economy: Why All Attorneys Should Learn About Entrepreneurship in Law School, 8 J. Bus. Entrepreneurship & L. 59 (2014):

As the legal industry continues to recover from the shock of the recent recession, it finds itself in a fundamentally different place than it was ten years ago, with even more tumultuous change on the horizon. Economic pressure coupled with continued technological innovation has increased attorney unemployment levels, shifted law firm business models, and changed the expectations of legal clientele. Yet, despite this radically shifting market place, legal education has remained fundamentally unchanged. This article examines the current state of the legal industry through an entrepreneurial lens and juxtaposes it with the current state of legal education. In doing so, this article sets forth three key claims:

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July 29, 2015 in Legal Education, Scholarship | Permalink | Comments (7)

Tuesday, July 28, 2015

Hickman: The Tax Court Delivers An APA-Based Smackdown

Hickman 2014 2TaxProf Blog op-ed:   Altera Corp. & Subs. v. Commissioner: The Tax Court Delivers An APA-Based Smackdown, by Kristin Hickman (Minnesota):

Since the Supreme Court decided the Mayo Foundation case in 2011, the government has done everything it can to limit the scope of the Supreme Court’s 2011 Mayo Foundation decision.  Even though the Mayo Foundation Court declined “to carve out an approach to administrative review good for tax law only” and otherwise signaled fealty to general administrative law norms in the tax context, the IRS and the Department of Justice have repeatedly pursued a narrow construction of Mayo Foundation, and the Tax Court has often been happy to play along.  Not today.

In Altera Corp. & Subs. v. Comm’r,, 145 T.C. No. 3 (July 27, 2015) the Tax Court unanimously invalidated regulations under Section 482 requiring participants in qualified cost-sharing arrangements to include stock-based compensation costs in the cost pool in order to comply with the arm’s length standard, on grounds that the regulations were not the product of reasoned decisionmaking as required by Administrative Procedure Act (APA) § 706(2)(A) and Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co.,, 463 U.S. 29 (1983), known in administrative law circles as State Farm.  From top to bottom, the Altera opinion reads like a treatise on general administrative law requirements and norms.  Without delving into the policy details of the regulation at issue, the following paragraphs summarize the Tax Court’s opinion and its potential implications.

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July 28, 2015 in New Cases, Scholarship, Tax | Permalink | Comments (2)

Sanchirico & Shuldiner: The Deferral Effects Of Passing Through Foreign Subsidiaries’ Passive Income

Chris William Sanchirico (Pennsylvania) & Reed Shuldiner (Pennsylvania), The Deferral Effects of Passing Through Foreign Subsidiaries’ Passive Income:

The immediate U.S. taxation of foreign subsidiaries’ passive, but not active income is a scenario of increasing practical importance. This paper builds on Alvin Warren’s recent analysis of this partially deferral-tempering case. It clarifies some of the legal and economic mechanics behind Warren’s formula. It also makes several points de novo. It highlights the conceptual relationship between passive-income pass-through and delayed realization of accrued gains. It points out that delayed realization inside the subsidiary effectively deactivates passive-income pass-through. And it describes when it does and does not matter that the parent takes interim distributions from the subsidiary, as when it uses such distributions to pay its interim pass-through tax liability.

July 28, 2015 in Scholarship, Tax | Permalink | Comments (0)

Brunson & Herzig: Tax Exemption, Public Policy, And Discriminatory Fraternities

SigmaFollowing up on my previous post, Using the Tax Law to Combat Racist Fraternities and Sororities:  Samuel D. Brunson (Loyola-Chicago) & David Herzig (Valparaiso), Tax Exemption, Public Policy, and Discriminatory Fraternities, 35 Va. Tax Rev. ___ (2015):

In this Essay, Professors Herzig and Brunson make the normative argument that the I.R.S. should reject tax-exemptions of discriminatory social clubs. They look to current Supreme Court jurisprudence to demonstrate a willingness of the Court to import a public policy rule into the social club rules. Alternatively, if this position is untenable under traditional administrative law principles, they propose a statutory fix.

July 28, 2015 in Scholarship, Tax | Permalink | Comments (1)

2nd National Symposium On Experiential Education In Law

ElonSecond National Symposium on Experiential Education In Law, 7 Elon L. Rev. 1-430 (2015)

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July 28, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Monday, July 27, 2015

McCubbins & Seljan: The Effect Of Proposition 13 On Municipal Revenue Sources

Prop 132Colin H. McCubbins (Stanford) & Ellen Seljan (Lewis & Clark), Staying at Home: The Effect of Proposition 13 on Municipal Revenue Sources:

The effects of California's Proposition 13 are far reaching in both California state and municipal government finance. For local governments, who relied most heavily on property taxes to fund infrastructural development and public services, the effects were especially pronounced. Previous findings have indicated that this has caused local governments to substitute away from property taxes towards uncapped revenue sources, such as sales taxes and charges and fees. To better understand the effects of Proposition 13 on local government finance, we leverage a peculiarity in the letter of the law: homes are reassessed upon sale. As such, we test the effects of high homeowner mobility on local government finances. We find that in municipalities with greater mobility have larger proportions of their revenue generated by property taxes, indicating that as more houses are reassessed, local governments are shifting their revenue burdens back towards property taxes.

July 27, 2015 in Scholarship, Tax | Permalink | Comments (1)

Sunday, July 26, 2015

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 #1 paper and a new paper debuting on the list at #5:

  1. [226 Downloads]  Capital Accounts in LLCs and in Partnerships: Powerful Default Rules and Potential Tax Significance, by Donald J. Weidner (Dean, Florida State)
  2. [200 Downloads]  Reducing Inequality With A Retrospective Tax On Capital, by James Kwak (Connecticut)
  3. [132 Downloads]  How I Learned to Stop Worrying and Love Our Homeowner Tax Rules, by David Hasen (Colorado)
  4. [109 Downloads]  Safe Harbors, Sure Shipwrecks, by Susan C. Morse (Texas)
  5. [107 Downloads]  The International Tax Regime — A Centennial Reconsideration, by Reuven S. Avi-Yonah (Michigan)

July 26, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, July 24, 2015

Weekly SSRN Tax Roundup

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July 24, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Grewal: Petaluma Takes A Bizarre Turn

Andy Grewal (Iowa), Petaluma Takes a Bizarre Turn:

Petaluma FX v. Commissioner, a case involving some complex tax procedure issues, has gone on for nearly a decade and has made three trips to the D.C. Circuit. The strangest twist seemingly occurred in 2012 when, in a case involving similar issues, the Tax Court performed a “reverse benchslap” on the D.C. Circuit, allegedly flouting the court’s first opinion in Petaluma. However, things have managed to get even stranger.

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July 24, 2015 in Scholarship, Tax | Permalink | Comments (0)

Trigger Warnings And The Law School Crisis

Trigger Warning 2Kim Chanbonpin (John Marshall), Crisis and Trigger Warnings: Reflections on Legal Education and the Social Value of the Law, 90 Chi.-Kent. L. Rev. 615 (2015):

This Essay begins by understanding the law school crisis through the framework of disaster capitalism. This framing uncovers the ways in which reformers are taking advantage of the current crisis to restructure legal education. Under the circumstances, faculty may reasonably read the contemporaneous student-led movement to require trigger warnings in the classroom as an assault on academic freedom. This reading, however, clouds the water. Part II attempts to clear the confusion by decoupling the trigger-warning movement from the broader phenomenon of law school corporatization. Trigger-warning demands might alternatively be read as a student critique of traditional law school pedagogy. Especially in the first year, the role of faculty is to indoctrinate students in a system of dispassionate analysis where subjective experiences and emotional reactions have no place. In this light, the trigger warning debate offers an opportunity to fundamentally alter the learning process by inviting students to become partners in the production of knowledge by allowing them to reclaim power in the classroom. Attending to student concerns facilitates robust discussions where the assigned materials are thoroughly dissected and debated, a result that ultimately benefits everyone in the classroom. Part III proposes that law school is still a good option for those students who are interested in both rigorous intellectual exercise and developing the practical skills necessary for the effective representation of clients. This discussion lays the foundation for a reflection on a broader question—the role of law in a democracy. Although the U.S. legal system falls short of perfect justice and equality, lawyers ought to be vigilant when confronted with market demands that would force law and society to cede ground to powers that represent solely private interests.

July 24, 2015 in Legal Education, Scholarship | Permalink | Comments (7)

Wednesday, July 22, 2015

Fall 2015 Law Review Article Submission Guide

Nancy Levit (UMKC) & Allen Rostron (UMKC) have updated their incredibly useful document, which contains two charts for the Fall 2015 submission season covering 204 law reviews.

The first chart (pp. 1-52) contains information gathered from the journals’ websites on:

  • Methods for submitting an article (such as by e-mail, ExpressO, regular mail, Scholastica, or Twitter)
  • Any special formatting requirements
  • How to request an expedited review
  • How to withdraw an article after it has been accepted for publication elsewhere

The second chart (pp. 53-60) contains the ranking of the law reviews and their schools under six measures:

  • U.S. News: Overall Rank
  • U.S. News: Peer Reputation Rating
  • U.S. News: Judge/Lawyer Reputation Rating
  • Washington & Lee Citation Ranking
  • Washington & Lee Impact Factor
  • Washington & Lee Combined Rating

They also have posted a list of links to the submissions information on each law journal’s website. Nancy notes:

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July 22, 2015 in Legal Education, Scholarship | Permalink | Comments (0)