Paul L. Caron
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Friday, August 19, 2022

Stopped Tenure Clocks During The Pandemic Exacerbated Faculty Inequality

Chronicle of Higher Education, Many Professors Stopped the Tenure Clock During the Pandemic. Who Benefited?:

Many colleges allowed faculty members to stop their tenure clocks during the pandemic, to account for the personal and professional disruptions that hampered progress toward promotion.

It was a relatively simple response, administrators reasoned, to a seismic societal event — one designed to ease scholars’ anxiety about their career development as classes moved online, archives and labs closed their doors, and fieldwork and travel became impossible.

Offering a tenure-clock stop was “something that the administration could do quickly, unilaterally,” said L. Lynn Vidler, dean of the University of Colorado at Colorado Springs’ College of Letters, Arts, and Sciences. “It was a morale boost. There was choice involved.”

But as clock-stops — normally seen as one-time measures to ease individual faculty members’ circumstances — became an option for which wide swaths of early-career scholars were automatically eligible, questions emerged about whom the policy benefited, and to what degree. Those are questions Vidler and two colleagues explore in a new study about how faculty members’ decisions to stop their tenure clocks differed by gender, race, and institution type [The “Gift” of Time: Documenting Faculty Decisions to Stop the Tenure Clock During a Pandemic]. Their findings, the authors write, expose inequities inherent in the clock-stop phenomenon.

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August 19, 2022 in Legal Ed News, Legal Education | Permalink

Tax Policy In The Biden Administration

The Number Of Aspiring Law Professors Falls -17% From 2021, -59% From 2020; The Lowest Since At Least 1992

Florida Seeks To Hire An Entry Level Or Lateral Tax Prof

Florida Faculty Posting:

Florida-levinUniversity of Florida Levin College of Law welcomes applications from entry-level and pre-tenure lateral candidates writing in all areas of law. Successful candidates will join a faculty committed to scholarly engagement and growth. Six new tenured or tenure-track professors joined the Levin College of Law faculty at the beginning of the 2022-2023 academic year, and we hope to recruit an even greater number of new professors to join our faculty as of the beginning of the 2023-2024 academic year.

Successful candidates will have publication records, strong scholarly potential, commitment to excellence in teaching, and enthusiasm for creating inclusive environments for all students. Candidates must also have a JD, PhD, or equivalent degree in a related field. In reviewing applications, the Appointments Committee will consider long-term teaching needs in required and large enrollment classes, as well as needs in intellectual property, health law, tax, election law, law and technology, and race and the law. ...

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August 19, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

Which Stanford Degree Is The Better Investment: B-School Or Law School?

Fortune, Stanford Law School vs. Stanford Graduate School of Business—Here’s a Look at Their Paychecks:

Stanford (2016)Ivy League schools may serve as the stronghold for top-notch education on the East Coast, but across the country Stanford University offers some of the most coveted and respected professional programs in the U.S. Two of its most sought-after programs include its law school and business school, both of which are consistently ranked as being among the best in the country.

While Fortune doesn’t rank law schools, Stanford, Harvard, and Yale University typically claim the top three spots on national rankings, and Stanford Graduate School of Business ranked No. 2 on Fortune’s ranking of MBA programs, second only to Harvard Business School. A major part of Fortune’s full-time MBA ranking methodology (the outcomes score, which is 65% of the overall ranking) considers starting salaries and placement rates.

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August 19, 2022 in Legal Ed News, Legal Education | Permalink

Thursday, August 18, 2022

Kaplan: The Legal Advantages And Disadvantages Of Marriage Later In Life

Richard L. Kaplan (Illinois; Google Scholar), Referencing NonMarriage in Later Years, 99 Washington U. L. Rev. 1957 (2021):

Washington U Law Review (2020)Many couples in later life ponder whether marriage provides more legal benefits than drawbacks, and that is the central question of this article. It considers the advantages and disadvantages that marital status conveys to older couples across different legal regimes, focusing especially on Medicaid eligibility to finance long-term care and applicable provisions pertaining to asset transfers and post-mortem recovery of benefits. But the article also considers the treatment of spouses in determining Social Security benefits, income taxation of those benefits and of residential dispositions, employment-based retirement plans, testamentary protections, surrogate decision-making, health insurance, and general indebtedness.

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August 18, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Brooks Reviews Givens's Radical Empathy: Finding A Path To Bridging Racial Divides

Susan L. Brooks (Drexel), Book Review, 5 Int'l J. Restorative Just. __ (2022) (reviewing Terri E. Givens, Radical Empathy: Finding A Path To Bridging Racial Divides (2021): 

Radical empathyIn her recent book, Dr. Terri Givens, a highly accomplished political scientist and entrepreneur, guides readers through the process of her own racial healing and invites them to create parallel journeys for themselves. Givens identifies the core element and requirement for the work of racial healing as empathy, which she defines as ‘the ability to see the world from another person’s perspective, in order to understand their feelings and life experiences.’ She uses the term ‘radical empathy’ to emphasize the need to move from feeling to doing, from recognizing the humanity in another person to taking action toward racial and social justice. Givens separates radical empathy into distinct steps representing the practices required to engage in this ongoing effort. These include becoming grounded in who you are, a willingness to be vulnerable, opening yourself to the experiences of others, and creating change and building trust. Throughout the book she demonstrates these practices by weaving together her personal and family narratives with scholarly writings on racial justice and other topics that represent highlights of her life experience and expertise, including leadership, healthcare, love and marriage, and European history. Consistent with Givens’ emphasis on action, at the end of each chapter she includes a set of suggested steps readers can take to move along the path toward creating positive personal and social transformation.

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August 18, 2022 in Book Club, Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Capital Seeks To Hire An Entry Level Or Lateral Tax Prof

Job Opportunities at Capital University Law School:

Capital law schoolCapital University Law School invites applications for several full-time teaching positions to begin July 1, 2023. We welcome entry-level and lateral candidates seeking tenure-track doctrinal positions across all areas of law; subject areas of particular interest include Business Associations and Property, as well as other first year courses, Trusts & Estates, and Tax. ...

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August 18, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking 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, 2022) 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)  212,141 1 Reuven Avi-Yonah (Michigan) 10,605
2 Daniel Hemel (Chicago) 126,320 2 Daniel Hemel (Chicago) 5,913
3 Dan Shaviro (NYU) 125,236 3 Bridget Crawford (Pace) 4,157
4 Lily Batchelder (NYU) 124,782 4 Ruth Mason (Virginia) 2,874
5 David Gamage (Indiana-Bloom.) 122,019 5 D. Dharmapala (Chicago) 2,844
6 Darien Shanske (UC-Davis) 114,965 6 Zachary Liscow (Yale) 2,762
7 David Kamin (NYU) 112,248 7 Robert Sitkoff (Harvard) 2,745
8 Cliff Fleming (BYU)    107,121 8 David Gamage (Indiana-Bloom.) 2,728
9 Manoj Viswanathan (UC-Hastings) 103,957 9 Lily Batchelder (NYU) 2,727
10 Rebecca Kysar (Fordham) 103,012 10 Darien Shanske (UC-Davis) 2,601
11 Ari Glogower (Ohio State) 102,837 11 Kim Clausing (UCLA)     2,486
12 D. Dharmapala (Chicago) 47,836 12 Richard Ainsworth (Boston Univ.) 2,461
13 Michael Simkovic (USC) 46,426 13 David Kamin (NYU) 2,443
14 Paul Caron (Pepperdine) 39,799 14 Dan Shaviro (NYU) 2,089
15 Louis Kaplow (Harvard) 37,370 15 Kyle Rozema (Washington Univ.) 2,021
16 Richard Ainsworth (Boston Univ.) 35,456 16 Margaret Ryznar (Indiana-Indy)   1,947
17 Bridget Crawford (Pace) 32,605 17 Louis Kaplow (Harvard) 1,909
18 Robert Sitkoff (Harvard) 29,557 18 Edward McCaffery (USC) 1,817
19 Ed Kleinbard (USC) 28,657 19 Brad Borden (Brooklyn) 1,746
20 Vic Fleischer (UC-Irvine) 28,604 20 Ari Glogower (Ohio State) 1,730
21 Brad Borden (Brooklyn) 28,365 21 Francine Lipman (UNLV) 1,569
22 Ruth Mason (Virginia) 26,826 22 Young Ran (Christine) Kim (Cardozo) 1,565
23 Jim Hines (Michigan) 26,723 22 Michael Doran (Virginia) 1,530
24 Ted Seto (Loyola-L.A.) 25,658 24 Jeremy Bearer-Friend (G. Washington) 1,515
25 Katie Pratt (Loyola-L.A.) 25,562 25 Yariv Brauner (Florida) 1,508

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August 18, 2022 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink

Climate Justice And Taxation

Julia M. Puaschunder (Columbia; Google Scholar), in The Palgrave Handbook of Servant-Leadership (2022):

PalgraveServant Climate Justice Leadership: Taxation Transfers and Green Bonds:

Current climate change mitigation and adaptation financing efforts are calling for innovative green investment strategies. An emerging literature and awareness on the economic gains and losses of a warming globe being distributed unequally between countries is the basis of redistribution schemes. Empirically this chapter proposes a taxation-and-bonds strategy over the entire world to fund climate change alleviation. A financial asset transfer as a servant leadership strategy is introduced in form of tax-debt mechanisms. The servant leadership strategy would feature some countries’ financing green bonds via carbon taxation, while other countries are climate bonds premium recipients. The bonds recipients would be funded by the climate taxation countries. The bonds could be tradable and issued controlled by global governance institutions, such as the International Monetary Fund, the World Bank, the United Nations or the World Trade Organization. Five indices are empirically created as a basis to determine which countries should be using a taxation strategy as servant leaders and what countries should be granted climate bonds premiums.

Climate Justice Social Change Leadership:

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August 18, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

It’s Time To Repeal The ABA’s Law School Testing Mandate

Bloomberg Law Op-Ed:  It’s Time to Repeal the ABA’s Law School Testing Mandate, Christopher T. Robertson (Boston University), Marc L. Miller (Arizona),  Robert A. Williams Jr. (Arizona) &  John K. Pierre (Southern):

ABA Legal Ed (2021)Law schools should be free to individualize admission criteria, argue two law school deans, a chancellor, and a law professor. They call on the ABA to repeal the requirement that applicants for J.D. programs submit standardized test scores for admission.

The American Bar Association Council on Legal Education is moving toward an outcome-based model of accreditation. This aligns with a broader reorientation in educational oversight across many fields.

When properly tailored to local circumstances, metrics such as retention, bar passage, and employment hold law schools accountable for achieving their missions of educating future lawyers. Accreditors then encourage schools to innovate and distinguish themselves in how they achieve these and other goals.

As part of this focus on outcomes, the ABA council has called for public comments on whether to repeal Standard 503, which requires almost all applicants for J.D. programs to submit standardized test scores. The standard has been in effect for more than 50 years.

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August 18, 2022 in Legal Ed News, Legal Education | Permalink

Wednesday, August 17, 2022

Public Health And Racial Inequality: Why Opportunity Zones Fail Low-Income Communities And Costs Lives

Katie Raitz (J.D. 2021, UC-Irvine), Note, Public Health and Racial Inequality: Why the Opportunity Zone Program Fails Low-Income Communities and Costs Lives, 12 U.C. Irvine L. Rev. 315 (2021):

Uci-law-review“The rich man’s dog gets more in the way of vaccination, medicine and medical care than do the workers upon whom the rich man’s wealth is built.”

Poor health outcomes are linked to long-standing wealth disparities for people of color in the United States. Wealth inequality has gotten worse over the past decades, despite attempts to improve it. The 2017 Opportunity Zone (OZ) tax program is the federal government’s most recent economic-development intervention. The OZ program provides for low-income census tracts in each state to be designated as “Opportunity Zones” and offers tax benefits for people who make investments in certain types of businesses and properties in OZs. Notwithstanding the bipartisan popularity of the OZ program, this Note reveals why it is largely symbolic and will fall short of its policy goals. Specifically, this Note argues that the OZ program will not increase the income or wealth of OZ community members. 

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August 17, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Teaching To Neurodiverse Law Students

Jennifer Kindred Mitchell (George Washington), Teaching to Neurodiverse Law Students, 29 Persps. ___ (2021):

NeuroTribesAs the legal academy continues to explore ways to incorporate diversity, equity, and inclusion into our schools and curriculum, this article seeks to expand our understanding of DEI to include neurodiversity. Legal writing is a challenging subject to teach and for neurodiverse students can be especially daunting to grasp. This Article is meant to increase awareness of the neurodiversity movement and suggest ways to assist neurodiverse law students develop their legal writing and research skills.

Conclusion
Neurodiverse students bring new perspectives to education and law school. Raising neurodiversity awareness and focusing on students’ strengths are excellent starting points to better attract and integrate neurodiverse people into the legal profession. The neurodiversity concept has certainly turned my view of learning disabilities on its head. Steve Silberman, in his book NeuroTribes, states, “We have to learn to think more intelligently about people who think differently.” Understanding neurodiversity requires thinking about the brain as an adept and adaptive organism that maximizes success from limitations, in other words it makes lemonade from lemons, and not all aspects of an atypical brain are limited.

Silberman summarizes neurodiversity well and challenges us to think from the perspective of neurodiverse people:

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August 17, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

UC-Berkeley Seeks To Hire An Entry Level Or Lateral Tax Prof

UC-Berkeley Faculty Posting:

Logo_berkeleyThe University of California, Berkeley, School of Law, invites applications from tenured and untenured candidates for full-time, tenured and tenure-track faculty positions with an expected start date of July 1, 2023. We welcome applications from candidates across all areas of law, but have a particular interest in the fields of Comparative Law, Employment Law, Environmental Justice, Health Law, Race and the Law, and Tax for lateral candidates. ...

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August 17, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

Pre-Publication Publications: SSRN And Self-Plagiarism

Gregory S. Crespi (SMU; Google Scholar), Pre-Publication Publications:

SSRN Logo (2018)Many law professors now post essentially complete drafts of their articles on SSRN and/or on university-sponsored working paper websites prior to submitting those articles for journal publication. This “pre-publication publication,” so to speak, is useful for both authors and their readers, but it raises some self-plagiarism issues, and there does not yet appear to be a broad consensus on how those issues should be addressed. 

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August 17, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Shaheen: Whirlpool — Law Or Policy?

Fadi Shaheen (Rutgers; Google Scholar), Whirlpool: Law or Policy?, 176 Tax Notes Fed. 959 (Aug. 8, 2022):

Tax Notes Federal (2022)In this article, Shaheen argues that while two U.S. courts reached the desirable policy result in the Whirlpool case [Whirlpool Financial Corp. v. Commissioner, 154 T.C. 142 (2020), aff’d, No. 13986-17 (6th Cir. 2021)], their conclusion that the foreign base company sales income branch rule applies not only to sales branches but also to manufacturing branches is inconsistent with the statutory text.

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August 17, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Rutgers Seeks Dismissal Of Lawsuit Claiming Business School Created Fake Jobs For Graduates To Goose Ranking

Following up on my previous post, Whistleblower Claims Rutgers Created Fake Jobs For Graduates To Goose Business School Ranking:  Law360, Rutgers Aims To Erase Fraud Suit Over Biz School Rankings:

Rutgers Business (2022)Rutgers University called on a New Jersey federal court Monday to toss a proposed class action alleging it boosted its business school's rankings by publications through misrepresenting postgraduate employment statistics, arguing that the suing student cannot pursue claims based on data about a program he does not attend.

The amended complaint alleged that Rutgers inflated the school's rankings in publications such as U.S. News & World Report by hiring graduating MBA students who were unemployed and placing them in "token permanent positions directly with the university." The purported scheme duped prospective students about the potential employment opportunities that come with attending the school, according to the complaint.

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August 17, 2022 in Legal Ed Rankings, Legal Education | Permalink

Tuesday, August 16, 2022

Haneman: Prepaid Death

Victoria J. Haneman (Creighton; Google Scholar), Prepaid Death, 59 Harv. J. on Legis. 329 (2022):

Harvard J. on Legis.The cost of an adult funeral exceeds $9,000. Funerals are expensive and death is not considered an appropriate time to bargain shop. The consumer is generally inexpert and vulnerable due to bereavement. Decisions are often time-pressured and perceived as irreversibly final. Accordingly, the death care industry benefits both from information asymmetry and etiquette uncertainty. Protecting the bereaved consumer calls for reversing the current norm of at-need (after death) purchasing in favor of pre-need (before death) planning and prepayment. Due to excessive influence of the industry over its state regulators, referred to as regulatory capture, current pre-need prepayment instruments are so deeply flawed that conventional wisdom recommends against prepayment.

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August 16, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Weathering Invisible Labor

Ederlina Co (Pacific), Weathering Invisible Labor, 51 Sw. L. Rev. 258 (2022):

SWProfessor Meera Deo’s Unequal Profession: Race and Gender in Legal Academia powerfully demonstrates how the legal academy has adopted many of American society’s social hierarchies as they relate to race and gender. Inspired by Unequal Profession and using a Critical Race Feminism framework, this Essay centers on women of color professors and the problem of invisible labor in legal academia.

Although for many women of color professors invisible labor involves a labor of love, this Essay contends that the legal academy’s unwillingness to recognize it in a meaningful manner marginalizes women of color professors, devalues how important invisible labor is to law students, law schools, and the legal profession, and perpetuates a raceXgender institutional bias. 

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August 16, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Boston College Seeks To Hire An Entry Level Or Lateral Tax Prof

Boston College Faculty Posting:

Bc-lawBoston College Law School added five tenure-track faculty appointments during 2021-22, and we continue our appointments momentum as we welcome our new dean, Odette Lienau, in January 2023.

We expect to make multiple tenure-track faculty appointments for Fall 2023, entry-level through to senior-tenured level. We welcome applications from candidates across all areas of law, and particularly invite expressions of interest from scholars teaching and writing in environmental law, torts, civil procedure/jurisdiction, commercial law/related areas, professional responsibility, family law, technology/privacy/cybersecurity, criminal law/procedure, tax, and constitutional law. ...

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August 16, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

The Median Real Income Of Lawyers Has Fallen 1.9% Since 2001

James V. Koch (Old Dominion) & Barbara Blake-Gonzalez (Old Dominion; Google Scholar), Why Has the Median Real income of Lawyers Been Declining?,  46 J. Econ. & Fin ___ (2022):

The median real incomes of lawyers have been declining. In 2001, the median real income of lawyers in the 50 states plus the District of Columbia was $129,389 (July 2020 prices). Almost two decades later, in 2020, this number had fallen to $126,930, 1.90% less than in 2001.

Lawyers Income 3

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August 16, 2022 in Legal Ed Scholarship, Legal Education | Permalink

Avi-Yonah & Wells: Pillar 2 And The Corporate AMT

Reuven Avi-Yonah (Michigan; Google Scholar) & Bret Wells (Houston; Google Scholar), Pillar 2 and the Corporate AMT, 176 Tax Notes Fed. 953 (Aug. 8, 2022):

Tax Notes Federal (2022)In this article, Avi-Yonah and Wells argue that the corporate alternative minimum tax proposed in the Inflation Reduction Act of 2022 would put the United States in a better position than current law, and arguably even better than would a tax reform package that included a conforming global intangible low-taxed income regime but no book-based corporate minimum tax.

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August 16, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Pepperdine Seeks To Hire A Dispute Resolution Professor

Assistant Professor of Law and Practice, Straus Institute for Dispute Resolution:

Best Campus Photo (2021)Pepperdine University Caruso School of Law’s top-ranked Straus Institute for Dispute Resolution is seeking an Assistant Professor of Law and Practice. This position is a full-time, non-tenured faculty position with teaching, training and administrative duties. The successful candidate will have meaningful practical expertise as a lawyer and as a neutral in dispute resolution as well as a passion for sharing that expertise with law students and the many active lawyers and judges who pursue advanced degrees or skills training at the Straus Institute. The position will support the administration of the Straus Institute through advising, mentoring, and recruiting its students; representing the Institute at conferences; helping conduct skills-based training seminars; and teaching courses in the academic curriculum. Specific expectations, including courses and teaching load, will be determined by Straus leadership with the agreement of the Caruso School of Law administration.

To apply, send the following documents to the chair of the search committee Thomas.Stipanowich@pepperdine.edu by September 30, 2022:

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August 16, 2022 in Legal Education | Permalink

Monday, August 15, 2022

Ordower: Block Rewards, Carried Interests, And Other Valuation Quandaries In Taxing Compensation

Henry Ordower (St. Louis; Google Scholar), Block Rewards, Carried Interests, and Other Valuation Quandaries in Taxing Compensation, 175 Tax Notes Fed. 1551 (June 6, 2022):

Tax Notes (2021)In this article, Ordower contextualizes block rewards litigation with historical failures to tax compensation income paid in kind. Tax fairness principles demand current taxation of the noneconomically diluting block rewards’ market value.

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August 15, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Legal Ed News Roundup

Assaf Harpaz Joins Drexel As A Tax VAP

Assaf Harpaz has joined Drexel Kline School of Law as a Visiting Assistant Professor:

HarpazHis principal areas of interest include tax policy and international taxation. His prior publications include Tax Policy and COVID-19: An Argument for Targeted Crisis Relief, forthcoming in the Cornell Journal of Law and Public Policy, and Taxation of the Digital Economy: Adapting a Twentieth Century Tax System to a Twenty-First-Century Economy, published in the Yale Journal of International Law in 2021.

Professor Harpaz earned his LLB from the Hebrew University of Jerusalem Faculty of Law. He earned his LLM in International Taxation from the University of Florida Levin College of Law, and his SJD from Duke University School of Law. He was also a Nathan J. Perilman Fellow at the Duke Center for Jewish Studies. Before coming to the U.S., Professor Harpaz practiced commercial law in Israel.

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August 15, 2022 in Fellowships & VAPs, Legal Education, Tax, Tax Prof Moves | Permalink

Tenured-Terminations, 2000-2021

Deepa Das Acevedo (Alabama; Google Scholar), Tenured-Terminations:

The debate over faculty tenure has proceeded despite a glaring absence of data on tenure’s real-world operations as an employment practice. I use an original, manually-assembled dataset of “tenured-terminations” from 2000 to 2021 to offer a first look into the landscape of tenured employment via instances where tenure was overcome. The data show reveal remarkable patterns in the demographics and circumstances of tenured-terminations. The data also trouble assumptions about the misuse of academic freedom by illuminating the narratives and counternarratives advanced by the universities and faculty who are involved in tenured-terminations. These findings have implications for supporters and critics of tenure alike.

Tenured-Terminations by Race:
Race

Tenured-Terminations by Age:

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August 15, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Lesson From The Tax Court: Taxpayer Could Not Prove His Way Out Of §162(f)

Camp (2021)The basic rule is simple: the taxpayer bears the burden of proof.  That is, all income is gross income unless the taxpayer proves a statutory entitlement to an exclusion; and no expenditure is deductible unless the taxpayer proves a statutory entitlement to a deduction.

Complexity comes in the statutes that allow exclusions and deductions.  But the basic burden does not change: it is ultimately the taxpayer who must persuade either the IRS or the Tax Court of their entitlement to the exclusion or deduction claimed.

Clement Ziroli and Dawn M. Ziroli v. Commissioner, T.C. Memo. 2022-75 (July 14, 2022) (Judge Nega), shows us how the burden of persuasion applies in the complexity of a deduction statute.  There, the taxpayer sought to deduct an expenditure that was allowed by §162(a) but might or might not be disallowed by the §162(f) prohibition of deductions for penalties.  The taxpayer was unable to persuade the Tax Court that the expenditure was not a penalty.  He could not prove the negative.  Hence, no deduction.

The lesson relates back to the idea we looked at last week: the ambiguity of penalties.  Here, that ambiguity worked against the taxpayer because of the burden of persuasion.  Details below the fold. 

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August 15, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (5)

The Politics Of Bar Admission: Lessons From The Pandemic

Leslie C. Levin (Connecticut; Google Scholar), The Politics of Bar Admission: Lessons from the Pandemic, 50 Hofstra L. Rev. 81 (2021):

The controversy over how and whether to administer the July 2020 bar examination during the COVID-19 pandemic upended the usual process of lawyer regulation. New actors—including bar applicants—very publicly challenged regulators’ decisions and questioned the safety and fairness of plans for the bar exam. Some advocated for emergency admission without the need to satisfy the bar examination requirement. Joined by law school deans and faculty, the advocacy occurred against the backdrop of the politicization of COVID-19, street protests over police misconduct and racial inequality, and long-standing skepticism about the value and fairness of the bar exam. Regulators throughout the United States reached very different decisions about how to proceed.

Bar Exam

This article uses eight case studies of states’ responses to explore why these differences occurred. They reveal how a state’s political culture and political attitudes toward the pandemic seemingly informed some regulators’ responses.

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August 15, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

TaxProf Blog Weekend Roundup

Sunday, August 14, 2022

NY Times Op-Ed: A Model For An Evangelical Christianity Committed To Justice

New York Times Op-Ed:  A Model for an Evangelical Christianity Committed to Justice, by Tish Harrison Warren (Priest, Anglican Church; Author, Prayer in the Night: For Those Who Work or Watch or Weep (2021) (Christianity Today's 2022 Book of the Year)):

Warren 3HIn my first couple years of college I had a minor crisis of faith. I had grown up going to a large Southern church that prided itself on preaching the Gospel, but leaders there did not talk much about systemic injustice or economic disparity. I was taking a class on poverty in the United States and another course taught by an avowed socialist passionately committed to radical politics. I was volunteering with a ministry that worked with undocumented immigrants and among the economically disadvantaged. I felt increasingly disconnected from my evangelical community on issues of nonviolence and social and economic justice.

One night, feeling frustrated and cynical, I walked into a bookstore and stumbled on a book titled Rich Christians in an Age of Hunger: Moving from Affluence to Generosity by Ronald J. Sider, which argues that vast global wealth inequality is a moral failure resulting from systems of oppression and sin. I didn’t know it at the time, but this book, which was first published in 1978, is considered a classic. In 2006, it was listed at No. 7 in The Top 50 Books that Have Shaped Evangelicals by the flagship evangelical magazine Christianity Today and has sold 400,000 copies in nine languages.

The book changed my life — probably not as much as it should have. Its call to generosity is something I still wrestle with and need to grow toward, even now. But more than the particular contents of the book, what discovering Sider offered me was hope that there was a movement of Christians who cared deeply about the Bible and also about the Bible’s call to seek justice here on Earth. Sider introduced me to an entire world of Christians whose passion for God defies political and cultural categories.

Sider died last month at 82 and as I’ve read tributes to his work, I find myself grateful for his legacy and struck by how his countercultural voice remains vital and important even now. Christianity Today described Sider as the burr in “‘the ethical saddle’ of the white evangelical horse.” ...

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August 14, 2022 in Faith, Legal Education | Permalink

Justice Alito's Keynote Address At Notre Dame's Religious Liberty Summit In Rome

Following up on my previous post, Notre Dame Dean Marcus Cole's Address In Rome On Religious Liberty:  Notre Dame News, U.S. Supreme Court Justice Samuel Alito Delivers Keynote Address at 2022 Notre Dame Religious Liberty Summit in Rome:

The Law School’s Religious Liberty Initiative hosted the 2022 Notre Dame Religious Liberty Summit in Rome last week to highlight that freedom of religion or belief is a global issue.

U.S. Supreme Court Justice Samuel Alito — who delivered the keynote address at the Religious Liberty Summit’s gala dinner on Thursday, July 21 — noted that the Roman setting also brought to mind how religious freedom has been challenged and championed throughout history.

“I find myself thinking about the proud civilization that was centered here two millennia ago,” Alito said near the beginning of his remarks.

“As I think back, I also think ahead, and I wonder what historians may say centuries from now about the contribution of the United States to world civilization,” he said. “One thing I hope they will say is that our country, after a lot of fits and starts, and ups and downs, eventually showed the world that it is possible to have a stable and successful society in which people of diverse faiths live and work together harmoniously and productively while still retaining their own beliefs. This has been truly an historic accomplishment.”

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August 14, 2022 in Faith, Legal Education | Permalink

Faith, Forgiveness, And Little League Baseball

Following up on my posts on the power of forgiveness (links below):  Deseret News, Think There’s No Crying in Baseball? Then Don’t Watch This Viral Little League Moment:

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August 14, 2022 in Faith, Legal Education | Permalink

The Top Five New Tax Papers

This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list. The #1 paper is #923 among 16,951 tax papers in all-time downloads:

  1. SSRN Logo (2018)[674 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (Catholic University Portugal & IBFD; Google Scholar)
  2. [342 Downloads]  Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I, by Abraham Sutherland (Virginia; Google Scholar)
  3. [329 Downloads]  The Treatment of Tax Incentives under Pillar Two, by Belisa Ferreira Liotti (Google Scholar), Joy Waruguru Ndubai, Ruth Wamuyu, Ivan Lazarov (Google Scholar) & Jeffrey Owens (all of Vienna University of Economics and Business)
  4. [275 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)
  5. [247 Downloads]  Would the Securing a Strong Retirement Act Secure More Retirement Equity?, by Albert Feuer (Law Offices of Albert Feuer, New York; Google Scholar)

August 14, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, August 13, 2022

This Week's Ten Most Popular TaxProf Blog Posts

Deans' Advice To The Law School Class Of 2025

Law.com, Self-Care, Time Management and Typing Skills: How (and How Not) to Prepare for Law School:

Class of 2025First-day-of-school jitters can happen no matter how old you are, but for those about to start law school, the anxiety can be particularly intense.

So how does one prepare to enter the unknown of law school? Turns out, there are several schools of thought on that topic.

Law.com gathered tips from interviews with law deans and from discussions on social media in an effort to help new law students prepare for the journey ahead. ...

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August 13, 2022 in Legal Ed News, Legal Education | Permalink

Stanford Law Profs' Son — A 'Vegan Crypto Billionaire' Megadonor — Seeks To Change Washington, D.C.

Following up on my previous post, Stanford Law Profs' Son Is A 'Vegan Crypto Billionaire':  Los Angeles Times, A Young Crypto Billionaire’s Political Agenda Goes Well Beyond Pandemic Preparedness:

Joe Barbara SamIn May, an eccentric 30-year-old cryptocurrency billionaire named Sam Bankman-Fried made a startling proclamation. In a podcast interview, Bankman-Fried said he would spend as much as $1 billion of his estimated $12.8-billion fortune on American politics by the 2024 election, joining the ranks of megadonors such as George Soros and the Koch brothers.

At the time, Bankman-Fried, raised in the Bay Area by two Stanford law professors, was far from a household name. FTX, the crypto exchange he founded and runs, makes most of its money overseas, and was perhaps best known in America for buying the naming rights for the Miami Heat’s arena.

In Washington, though, Bankman-Fried — known as SBF online — has become a familiar sight on Capitol Hill, meeting with lawmakers, chatting with aides and testifying before congressional committees.

This week, an FTX ad featuring a giant image of the mop-topped billionaire graced a billboard in D.C.'s Union Station, towering over Hill staffers on their way to work. (Bankman-Fried’s famous hair, which makes him look even younger than his years, is available for purchase as an NFT.) And he has opened his pockets as promised, giving at least $34 million to political candidates and causes since January. ...

Bankman-Fried is the largest donor to Protect Our Future, a super PAC focused on advancing Democrats who “will be champions for pandemic prevention — candidates who, when elected, will have their eyes on the future,” according to its website. He has donated $27 million of POF’s $28 million total raised. His younger brother, Gabe, is the founder and director of the Guarding Against Pandemics, a super PAC which has raised $362,000. Bankman-Fried donated just $5,000, according to FEC records. ...

Bankman-Fried can afford to spend a lot more: The $34 million he’s handed out so far this year amounts to only 0.26% of his reported $12.8-billion net worth. “I think that there are, in some ways, surprisingly little money in politics,” he said in the podcast back in May.

Politico, How the Newest Megadonor Wants to Change Washington:

Sam Bankman-Fried has a big fortune and big plans for how to spend it — including an unusual political power-building strategy.

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August 13, 2022 in Legal Ed News, Legal Education, Tax | Permalink

Millennial Leadership In Law Schools: Essays On Disruption, Innovation, And The Future

Millennial Leadership in Law Schools: Essays on Disruption, Innovation, and the Future (Ashley Krenelka Chase (Stetson; Google Scholar), ed. 2021):

Millenial Leadership 3This book explores the role millennials will play—as faculty, administrators, or staff members—in shaping the future of legal education, and what the academy can do to embrace the millennial generation as colleagues, not students.

Section I brings together chapters that focus on the culture of law schools, and the need to embrace a new, forward-thinking and innovative way of defining what law schools are and do and how we educate students. The chapters in Section II focus on relationships: the relationships millennials in the academy have with ourselves, our institutions, and the community. Section III includes chapters that detail how Millennial leaders work in the classroom, how they use things like feedback and assessment to change the dynamic in the classroom and to innovate law school pedagogy to educate well-rounded lawyers. Section IV is an essential read for anyone who spends time thinking about the current legal economy and law schools’ roles in educating practice-ready lawyers. Finally, Section V includes chapters on change. Legal education has no choice but to evolve, and these authors present ideas on how to embrace millennial ideology to do just that.

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August 13, 2022 in Book Club, Legal Ed Scholarship, Legal Education | Permalink

Friday, August 12, 2022

Weekly SSRN Tax Article Review And Roundup: Layser Reviews Opportunity Zones: A Program In Search Of A Purpose By Eldar & Garber

This week, Michelle Layser (San Diego; Google Scholar) reviews Ofer Eldar (Duke; Google Scholar) and Chelsea Garber (J.D. 2023, Duke), Opportunity Zones: A Program in Search of a Purpose, 102 B.U. L. Rev. 1397 (2022).

Layser (2018)

When I give talks about place-based tax incentives, the discussion nearly always turns to an important question: What is the purpose of providing tax breaks for investment in low-income communities? Or, more directly, am I sure that the purpose of these laws is to benefit low-income residents? My answer: Not really (see here), but they tend to be sold as such, so it’s worth thinking about how they could be designed to advance that purpose. (Some of my thoughts about that are set forth in How Place-Based Tax Incentives Can Reduce Geographic Inequality, 74 Tax L. Rev. 1 (2020)).

That said, it is overwhelmingly clear that most place-based tax incentives are not designed to benefit low-income communities, and they may even harm them. 

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August 12, 2022 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

Price Of Law School Hits New High At Columbia ($110,450), With Others Close Behind

Reuters, Price of Law School Hits New High at Columbia, With Others Close Behind:

Columbia (2017)A degree from Columbia Law School opens doors to lucrative law firm jobs, but attending the highly ranked law school in expensive New York City comes with a hefty price tag.

Columbia now pegs its cost of attendance at $110,450 for the current academic year, appearing to beat the estimate of any other law school. The figure includes the Manhattan law school’s $75,572 tuition, plus living expenses and various university fees.

That means a Columbia law student could spend more than $330,000 to complete their three-year degree.

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August 12, 2022 in Legal Ed News, Legal Education | Permalink

Blue J: Accurate Financial Recordkeeping And Business Deductions

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Kathrin Gardhouse (Legal Research Associate, Blue J Legal), Situational Awareness: Accurate Financial Recordkeeping and Business Deductions, 176 Tax Notes Fed. 713 (Aug. 1, 2022):

Tax Notes Federal (2022)In this article, Alarie and Gardhouse explore the Tax Court decision in Skolnick [v. CommissionerT.C. Memo. 2021-139 (Dec. 16, 2021)], which emphasizes the importance of keeping accurate financial records for activities that may be subject to IRS scrutiny regarding their business nature.

Conclusion
The Tax Court decision in Skolnick emphasizes the importance of keeping accurate financial records of activities that may be subject to IRS scrutiny regarding their business nature. Whether this is the case can be most easily determined with a machine-learning tool such as Blue J’s section 162 trade or business predictor.

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August 12, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

WSJ: Chinese Student Visas To U.S. Plunge 50% From Pre Pandemic Levels, Imperiling University Finances

Wall Street Journal, Chinese Student Visas to U.S. Tumble From Prepandemic Levels:

The number of U.S. student visas issued to Chinese nationals plunged by more than 50% in the first half of 2022 compared with pre-Covid levels, with the U.S. losing ground as the most-coveted place for Chinese students to pursue higher education abroad.

Even before the pandemic, Chinese students were shifting their study-abroad sights elsewhere, driven by doubts about whether they would feel welcome in the U.S. and the emergence of more domestic and international alternatives. Travel restrictions and heightened safety concerns during the pandemic accelerated that decline.

In the first six months of 2022, the U.S. issued 31,055 F-1 visas to Chinese nationals, down from 64,261 for the same period in 2019, according to data from the U.S. State Department. The drop has hit revenue at big and small colleges and universities around the country, including state flagships.

WSJ

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August 12, 2022 in Legal Ed News, Legal Education | Permalink

Thursday, August 11, 2022

Shaviro Reviews Rebellion, Rascals, And Revenue: Tax Follies And Wisdom Through The Ages

Daniel Shaviro (NYU; Google Scholar), Tell Me a Tax Story (JOTWELL) (reviewing Michael Keen (IMF) & Joel Slemrod (Michigan; Google Scholar), Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages (Princeton University Press 2021)) (reviewed by Reuven Avi-Yonah (Michigan; Google Scholar), Steven Bank (UCLA; Google Scholar), and Frank Colella (Pace)):

RebellionAs the saying ought to go, those who forget history are doomed to miss out on a lot of great stories. In Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages, Michael Keen and Joel Slemrod do their formidable best to save us from this dire fate. They also amply fulfill their aim of proving the truth of their opening quotation, from H.L. Mencken, to the effect that taxation is not just “eternally lively” but of greater interest than “either smallpox or golf.”

Keen and Slemrod are also so impressively comprehensive in their self-set task of combing thousands of years of history, across multiple continents, for enjoyable or illuminating tax anecdotes that I started to take it as a challenge. I read a lot of history books on the side. So, could I think of stories worth including that they had left out?

This did not go so well. Taxes as the subject of the Rosetta Stone? Check. Window taxes, salt taxes, beard taxes, and taxes on bachelors? Of course. Classic-era British rock lyrics complaining about high taxes? Everyone knows about the Beatles in “Taxman,” but what about the Who in “Success Story”? Or the Kinks in “Sunny Afternoon”? Yes, they have all three. ...

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August 11, 2022 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

The ABA Should Be Required To Disclose Law School Accreditation Information

Henry Webb (Palm Beach Atlantic), Patrick Baker (Tennessee; Google Scholar) & Kaleb Byars (J.D. 2021, Tennessee), Accreditation Information Produced by United States Law Schools to the American Bar Association Should be Made Available to the Public From Both Law and Policy Perspectives, 34 Loy. U. Chi. Consumer L. Rev. 79 (2021):

ABA Legal Ed (2021)This article argues that, from a legal perspective, the American Bar Association (“ABA”) is the functional equivalent of a government agency and so is subject to the United States Freedom of Information Act. Under Soucie v. David and related cases, the fact that the ABA has the final decision-making authority to decide whether a United States law school is or is not to be accredited renders it the functional equivalent of a government agency, and the ABA’s refusal to make available to the public the voluminous amount of important information produced to the ABA by law schools going through the accreditation and accreditation review processes is illegal and would not likely survive a challenge in court.

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August 11, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Emory Seeks To Hire 1-2 Entry Level Or Lateral Tax Profs

Emory University Careers, Tax Law Professor (Open Rank):

Emory Law (2018)Emory University School of Law seeks to fill one to two positions in tax law beginning in the 2023-2024 academic year. The positions are open to entry-level and lateral candidates at the rank of assistant or associate professor (with or without tenure).

Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in tax law or related fields, and the ability to teach at least one tax course. Where a candidate has met the law school’s standards for scholarly excellence and demonstrated the ability to teach tax-related courses, a candidate’s interest in teaching in the 1L curriculum will be an additional positive factor.

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August 11, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

What Do Law Professors Believe About Law And The Legal Academy?

Eric Martínez (Graduate Student, MIT) & Kevin Tobia (Georgetown; Google Scholar), What Do Law Professors Believe about Law and the Legal Academy? An Empirical Inquiry:

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates.

Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law.

Top 10

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August 11, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

The Tax Treatment Of The Metaverse Economy And The Potential For A New Offshore Tax Haven

Jeffrey Owens & Nathalia Oliveira Costa (Vienna University of Economics & Business), The Tax Treatment of the Metaverse Economy and the Potential for a New Offshore Tax Haven, 176 Tax Notes Fed. 657 (Aug. 1, 2022):

Tax Notes Federal (2022)In this article, Owens and Oliveira Costa consider how the development of the metaverse, cryptocurrencies, and non-fungible tokens could fundamentally change established tax concepts and the way tax compliance functions.

Future Research
The metaverse, with its unimaginable potential, will continue to be the subject of a complex and wide-ranging discussion. Virtual worlds are still part of our physical world and, as such, they must be subject to laws, taxes, and rules. This article merely scratches the surface of some of the metaverse’s tax challenges, and there are more questions than answers.

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August 11, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Trailblazing And Living A Purposeful Life In The Law: A Dakota Woman’s Reflections As A Law Professor

Angelique EagleWoman (Mitchell|Hamline; Google Scholar), Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman’s Reflections as a Law Professor, 51 Sw. U. L. Rev. 227 (2022):

SWThis Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. Unequal Profession: Race and Gender in Legal Academia is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As a Native American woman law professor, my experience and journey in legal academia resonate with many of the topics in this important work.

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August 11, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink