TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, February 21, 2019

Oei Presents Tax Law's Workplace Shift Today At Duke

Oei (2018)Shu-Yi Oei (Boston College) presents Tax Law's Workplace Shift (with Diane Ring (Boston College)) at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

On December 2017, Congress passed major tax reform, including new § 199A of the Internal Revenue Code. This new provision grants independent contractors and other passthrough taxpayers—but not employees or corporations—a potential deduction equal to 20% of their qualified business income. This deduction will affect tens of millions of taxpayers and may be a significant boon to those eligible. Critics argue that the deduction may cause a large-scale workplace shift in favor of independent contractor jobs, as workers seek to take the new deduction. Such a shift could cause workers who leave traditional employment to lose important employee protections and benefits, leaving them more vulnerable.

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February 21, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

U.S. News Updates FAQ On Law School Scholarly Impact Rankings To Address Inclusion Of Non-Doctrinal Faculty

U.S. News Law (2019)Following up on my previous post, U.S. News FAQ: Law School Scholarly Impact Rankings:  U.S. News has updated the FAQ with this new paragraph:

Which faculty will be included in the scholarly impact rankings?
US News is requesting from each law school a list of all fall 2018 full-time tenured and tenure-track faculty. US News is also requesting that each law school identify each of these faculty members as doctrinal faculty, clinicians, librarians, legal writing faculty, or externship instructors. US News is still evaluating whether and how non-doctrinal faculty will be included in the rankings. At the time the rankings are published U.S. News will publish a methodology (see below), including a description of which faculty were included in the scholarly impact analysis.

Prior coverage of the U.S. News Faculty Scholarly Impact Rankings:

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February 21, 2019 in Law School Rankings, Legal Education | Permalink | Comments (2)

Journal Of Legal Education Publishes New Issue

Journal of Legal Education (2018)The Journal of Legal Education has published Vol. 67, No. 3 (Spring 2018):

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February 21, 2019 in Legal Education, Scholarship | Permalink | Comments (0)

Expanding State Fiscal Capacity, Part I: A New and Improved Consumption Tax Paired with a Tax on a Federal Windfall (the QBI Deduction)

Florida Tax Review (2018)Darien Shanske (UC-Davis), Expanding State Fiscal Capacity, Part I: A New and Improved Consumption Tax Paired with a Tax on a Federal Windfall (the QBI Deduction), 23 Fla. Tax Rev. ___ (2019):

The Tax Cut and Jobs Act (TCJA) was the most significant piece of federal tax legislation passed in thirty years. Not surprisingly, the TCJA has spurred the states to rethink their tax systems. This rethinking of state taxes was necessary even before the TCJA. To date, the states have primarily considered reforms that respond to the capping of the State and Local Tax (SALT) deduction, and the current proposals, if enacted and successful, would only return the states to where they were in 2017, which is to say to quite mediocre revenue systems.

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February 21, 2019 in Scholarship, Tax | Permalink | Comments (0)

What Deans Would Tweet To Their Younger Selves

TwitterFollowing up on yesterday's post, What Professors Would Tweet To Their Younger Selves About Teaching:  Inside Higher Ed, What I Would Tell My Younger Self:

If I traveled back in time and met younger me on the cusp of that first deanship, after expressing nostalgia for my hair, what would I say?

  • Individual administrators have far, far, far less power than most people believe. That’s both good and bad. That’s particularly true in the middle ranks, when the broad direction has already been set by folks above. That can be frustrating, as it can be hard to make the difference you want to make. It’s also liberating, in that much of what happens is really beyond your control either way. Just keep pushing in the right direction.
  • Some people will distrust, or even hate, you, ex officio.  It comes with the office. Don’t take it personally. They hated the previous occupant, and they will hate the next occupant. To paraphrase Taylor Swift, haters gonna hate; shake it off. ...
  • Imagine a reporter sitting on your shoulder when you’re making decisions. Imagine a lawyer reading your email back to you in court.
  • Don’t reciprocate nastygrams.  No good comes of it.

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February 21, 2019 in Legal Education | Permalink | Comments (1)

Kirsch: Conditioning Citizenship Benefits On Satisfying Citizenship Obligations

Michael S. Kirsch (Notre Dame), Conditioning Citizenship Benefits on Satisfying Citizenship Obligations, 2019 U. Ill. L. Rev. ___:

Citizenship status is often discussed in terms of both its benefits and its obligations. A recently enacted Federal statute (the FAST Act), which denies U.S. passports to certain citizens who owe significant unpaid taxes, provides an opportunity to examine the linkage between citizenship benefits and obligations. In particular, it raises the question under what circumstances, if any, should the benefits of citizenship be conditioned on compliance with the obligations of citizenship.

This Article identifies a typology for situating unpaid taxes within other circumstances under which passports may be denied to U.S. citizens. It then focuses on the instrumental, constitutional, and expressive impacts of the FAST Act, illustrating that the benefit-obligation linkage can have unintended consequences, not only from an instrumental perspective, but perhaps more importantly from its expressive impact on social norms. The Article then applies these lessons to a broader range of situations where Federal benefits are conditioned on compliance with citizenship obligations, most notably the denial of student loan benefits for those young men who do not register with the Selective Service.

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February 21, 2019 in Scholarship, Tax | Permalink | Comments (1)

BYU To Host First National Storytelling Competition For Law Students

BYU (2016)Law.com, BYU Law to Host First National Storytelling Competition for Law Students:

Got a good story to tell about your life and the law?

The Brigham Young University J. Rueben Clark Law School wants to hear from you. The school is launching the first-ever national storytelling competition for law students, with 10 finalists getting an all-expense-paid trip to Utah in March where they will take the stage to share their stories.

Law schools have dabbled with incorporating storytelling into their curricula or as an extracurricular activity, according to BYU law dean Gordon Smith. But he said his school’s new storytelling initiative, dubbed BYU LawStories on the Mainstage, is the most formal attempt yet to get law students to embrace storytelling as a way not only to be better lawyers, but to explore their personal relationship with the law.

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February 21, 2019 in Legal Education | Permalink | Comments (0)

Simkovic: Taxing Limited Liability

Michael Simkovic (USC), Limited Liability and the Known Unknown, 68 Duke L.J. 275 (2018):

Limited liability is a double-edged sword. On the one hand, limited liability may help overcome investors’ risk aversion and facilitate capital formation and economic growth. On the other hand, limited liability is widely believed to contribute to excessive risk taking and externalization of losses to the public. The externalization problem can be mitigated imperfectly through existing mechanisms such as regulation, mandatory insurance, and minimum capital requirements. These mechanisms could be more effective if information asymmetries between industry and policymakers could be reduced. Private businesses will typically have better information about industry-specific risks than policymakers.

A charge for limited liability entities—resembling a corporate income tax but calibrated to risk levels—could have two salutary effects. First, a well-calibrated limited liability tax could help compensate the public fisc for risks and reduce externalization. Second, a limited liability tax could force private industry actors to reveal information to policymakers and regulators, thereby dynamically improving the public response to externalization risk.

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February 21, 2019 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, February 20, 2019

Layser Presents The Pro-Gentrification Origins Of Place-Based Investment Tax Incentives And Community Oriented Reform Today At UCLA

Layser (2018)Michelle Layser (Illinois) presents The Pro-Gentrification Origins of Place-Based Investment Tax Incentives and a Path Toward Community Oriented Reform at UCLA today as part of its Colloquium on Tax Policy and Public Finance hosted by Jason Oh:

Place-based investment tax incentives, which encourage taxpayers to invest in poor areas, constitute a particularly controversial, yet undertheorized, category of tax laws. The central problem presented by current place-based investment tax incentives is a contradiction between rhetoric and reality. They are presented as laws that benefit low-income communities, yet the dominant types of place-based investment tax incentives are not designed for this purpose. Understanding the reasons for this disconnect is key to assessing the limits and potential of place-based investment tax incentives as anti-poverty tools. By tracing the development of place-based investment tax incentives to their pro-gentrification origins, this Article argues that what many anti-poverty advocates view as a flaw—the lack of safeguards for poor communities that allegedly opens the door to abuses—is, in fact, an intended feature of most current place-based investment tax incentives.

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February 20, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Vorsatz Delivers Tax Lecture On Globalization: Expanding Your Business Across The World Today At San Francisco

Vorsatz2019 E. L. Wiegand Annual Visiting Fellow Mark Vorsatz Discusses Globalization: Expanding Your Business Across the World:

Mark Vorsatz, CEO and managing director of Andersen Tax, will discuss the explosive growth of international businesses over the past 20 years, providing a first-hand account of how Andersen has accomplished its own rapid expansion. Competition for serving clients is evolving and competitors are emerging for firms needing service capabilities outside the U.S. Globalization of business has had a significant impact on the legal and tax professions, and how firms are managed.

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February 20, 2019 in Tax | Permalink | Comments (0)

What Professors Would Tweet To Their Younger Selves About Teaching

Great Twitter thread. My favorites:

Twitter 1

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February 20, 2019 in Legal Education | Permalink | Comments (0)

The Parallel Head Taxes Of Margaret Thatcher And Barack Obama

Joshua Cutler (Houston), The Parallel Head Taxes of Margaret Thatcher and Barack Obama: Economics As Morality and Its Populist Rejection:

The legacies of Margaret Thatcher and Barack Obama are alike intertwined with failed per capita taxes: Thatcher’s infamous local government poll tax and the individual mandate tax at the heart of Obama’s signature health care reform. Examining these two taxes together reveals that—despite the pronounced differences between the two political leaders—both taxes were conceived, enacted, met with virulent popular opposition, and ultimately repealed under remarkably parallel processes. Both taxes arose out of essentially the same economic idea, and in fact, this animating idea originated from the same small network of think-tank economists in both cases. Crucially, economic theory served as both the technical basis and the moral justification for the taxes. The Thatcher poll tax was morally justified as necessary to increase local government “accountability,” defined economically such that an accountable government is one where all citizens equally bear the full marginal cost of local government spending increases. Likewise, the moral basis of the individual mandate tax was “responsibility,” defined in economic terms such that a responsible person is one who bears the marginal cost imposed on society by their decision not to purchase health insurance.

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February 20, 2019 in Scholarship, Tax | Permalink | Comments (1)

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.  This ranking includes downloads from two 30- and 35-page papers by 12 tax professors on the new tax legislation that garnered a lot of media attention (including the New York Times and Washington Post) and generated a massive amount of downloads (the papers are the most downloaded tax papers of all-time by over 200%).  See Brian Leiter (Chicago), 11 Tax Profs Blow Up The SSRN Download Rankings. (For some reason, Mitchell Kane (NYU) — the twelfth academic co-author of the two papers — is not included in the SSRN download rankings (although the downloads are included on his individual author page)).  Here is the new list (through February 1, 2019) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

182,193

Reuven Avi-Yonah (Mich.)

27,506

2

Dan Shaviro (NYU)

117,168

Daniel Hemel (Chicago)

25,258

3

David Gamage (Indiana)

112,693

Dan Shaviro (NYU)

21,043

4

Lily Batchelder (NYU)

110,523

David Gamage (Indiana)

20,904

5

Daniel Hemel (Chicago)

110,453

Darien Shanske (UC-Davis) 

20,798

6

Darien Shanske (UC-Davis)

106,758

Manoj Viswanathan (Hastings)

20,051

7

Cliff Fleming (BYU)

102,268

David Kamin (NYU)

18,655

8

Manoj Viswanathan (Hastings)

99,047

Lily Batchelder (NYU)

18,513

9

David Kamin (NYU)

99,038

Ari Glogower (Ohio State)

18,410

10

Rebecca Kysar (Fordham)

98,333

Cliff Fleming (BYU)

18,327

11

Ari Glogower (Ohio State)

96,680

Rebecca Kysar (Fordham) 

18,228

12

Michael Simkovic (USC)

42,151

Richard Ainsworth (BU) 3,598

13

D. Dharmapala (Chicago)

36,107

Michael Simkovic (USC)

3,516

14

Paul Caron (Pepperdine)

35,056

Kirk Stark (UCLA)

3,413

15

Louis Kaplow (Harvard)

30,850

Jacob Goldin (Stanford)

3,014

16

Richard Ainsworth (BU)

26,764

Brad Borden (Brooklyn)

3,011

17

Ed Kleinbard (USC)

25,441

D. Dharmapala (Chicago)

2,798

18

Vic Fleischer (UC-Irvine)

25,221

Ruth Mason (Virginia)

2,719

19

Jim Hines (Michigan)

24,176

Joe Bankman (Stanford)

2,627

20

Gladriel Shobe (BYU)

23,914

Kyle Rozema (Chicago)

2,417

21

Richard Kaplan (Illinois)

23,239

Dennis Ventry (UC-Davis)

2,288

22

Ted Seto (Loyola-L.A.)

23,142

Hugh Ault (Boston College)

2,007

23

Katie Pratt (Loyola-L.A.)

21,733

Margaret Ryznar (Indiana-Indy)

1,917

24

Robert Sitkoff (Harvard)

21,699

Shu-Yi Oei (Boston College)

1,566

25

David Weisbach (Chicago)

20,741

Yariv Brauner (Florida)

1,369

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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February 20, 2019 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

The Case For An ABA Accreditation Standard On Employment Outcomes

Scott F. Norberg (Florida International; Former Deputy Managing Director, ABA Section of Legal Education and Admission to the Bar (2011-14)), The Case for an ABA Accreditation Standard on Employment Outcomes, 67 J. Legal Educ. 1035 (2018):

Students graduating from American Bar Association (ABA)-accredited law schools over the past ten years have faced a declining entry-level legal employment market, stagnant or decreased starting salaries, and increased tuition debt burdens. While most law schools report strong legal employment rates, some consistently place fewer than 40 or 50 percent of their graduates in law jobs (roughly defined as those full-time, long-term jobs for which bar passage is required or the J.D. degree is an advantage in obtaining or performing the job) within 9-10 months after graduation. At least partly in response to the declining legal employment market, law school applications and enrollments have decreased sharply in the past six years. However, some law schools with persistently very weak graduate employment outcomes have lowered admissions standards in order to minimize reduction in class sizes. In doing so, they almost inevitably exacerbate existing problems because their bar passage rates suffer and their graduates’ employment prospects are further diminished.

SN1

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February 20, 2019 in Law School Rankings, Scholarship | Permalink | Comments (5)

Exclusionary Taxation

Shayak Sarkar (UC-Davis) & Josh Rosenthal (National Immigration Law Center), Exclusionary Taxation, 53 Harv. C.R.-C.L. L. Rev. 619 (2018):

Property tax assessments appear to be technocratic calculations. But they may be calculated to discriminate, even unintentionally. California’s constitutional limitations on property taxes, as first enacted by Proposition 13 in 1978, remain the poster child for the so-called “property tax revolt” of the late twentieth century. Such laws privilege preexisting homeowners by capping assessments at historic levels far below contemporary value. As property prices rise, beneficiary homeowners may even bequeath this taxpayer windfall to their descendants and immortalize these underassessments. Newer, increasingly diverse residents end up paying higher taxes because the law treats them with less regard than their more pedigreed neighbors. These tax policies are rationalized as providing “stability” to the existing residents. The aggrieved have found cold comfort in the Constitution, with the Supreme Court upholding the core of California’s system in the canonical Nordlinger v. Hahn.

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February 20, 2019 in Scholarship, Tax | Permalink | Comments (0)

Georgetown Hires The First Computer Scientist Without A J.D. For A Tenure- Track Position At An American Law School

Georgetown (2016)One of World’s Leading Computer and Network Security Experts Joins Georgetown Faculty:

Matt Blaze, an expert in computer and network security and one of the world’s leading cryptographers, has joined the university as a computer science and law professor.

Blaze, on a joint appointment at Georgetown Law and as the Robert L. McDevitt, K.S.G., K.C.H.S. and Catherine H. McDevitt L.C.H.S. Chair in the Department of Computer Science, comes to Georgetown from the University of Pennsylvania, where he was a professor of computer and information science since 2004. ...

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February 20, 2019 in Legal Education | Permalink | Comments (2)

Tuesday, February 19, 2019

Morse Presents Government-To-Robot Enforcement Today At NYU

Morse (2018)Susan Morse (Texas) presents Government-to-Robot Enforcement, 2019 U. Ill. L. Rev. ___ (reviewed by Orly Mazur (SMU) here), at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

Automated legal systems occupy a central place in the administration of most regulatory regimes. Examples include TurboTax, wage and hour software, and self-driving cars. These systems produce results which invite examination and adjudication on a centralized, ex post basis. This is revolutionary. It means that the content of law, which technically applies to individual regulated parties, is determined centrally by interactions between the government and firms that make automated legal systems. I call this trend government-to-robot enforcement.

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February 19, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Liscow: Is Efficiency Biased?

Zachary Liscow (Yale), Is Efficiency Biased?, 85 U. Chi. L. Rev. 1649 (2018) (reviewed by David Gamage (Indiana) and Theodore Seto (Loyola-L.A.):

Efficiency is a watchword in policy circles. If we choose policies that maximize people’s willingness to pay, we are told, we will grow the economic pie and thus benefit the rich and poor alike. Who would oppose efficiency when it is cast in this fashion?

However, there are actually two starkly different types of efficient policies: those that systematically distribute equally to the rich and the poor and those that systematically distribute more to the rich.

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February 19, 2019 in Scholarship, Tax | Permalink | Comments (1)

Simkovic: Taxes, Spending, And Innovation

Michael Simkovic (USC), Taxes, Spending, and Innovation:

  • Innovation is the product of teamwork.
  • Engineers and scientists play a critical role.
  • Scientific research is insufficiently rewarded financially.
  • Taxes can boost innovation by funding human capital investment and basic research.
  • The amount of investment is important – who owns financial assets is not.

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February 19, 2019 in Scholarship, Tax | Permalink | Comments (1)

Call For Papers: UC-Davis/ACTEC Symposium On Empirical Analysis Of Wealth Transfer Law

ACTEC UCD (2019)UC-Davis Law School and The American College of Trust and Estate Counsel have issued a Call for Papers for a symposium on Empirical Analysis of Wealth Transfer Law to be held at UC-Davis Law School on Friday, October 11, 2019, with papers to be published in the UC Davis Law Review:

The event’s goals are to bring together established and emerging scholars and to foster discussion about empirical scholarship about wills, nonprobate transfers, intestacy, inheritance taxation, and related issues.

If you would like to be considered to present a paper, please email an abstract of no more than two pages to Professor David Horton by March 1, 2019. The Law Review will notify those selected by March 15, 2019. Please be aware that speakers must submit drafts that are ready for the editing stage of the production process by mid-November 2019.

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February 19, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Law Prof Commentary On The U.S. News Faculty Scholarly Impact Rankings

Prior TaxProf Blog coverage:

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February 19, 2019 in Law School Rankings, Legal Education | Permalink | Comments (0)

Hemel & Polsky: There’s A Problem With Buybacks, But It’s Not What Senators Think

Daniel Hemel (Chicago) & Gregg Polsky (Georgia), There’s a Problem With Buybacks, but It’s Not What Senators Think, 162 Tax Notes 765 (Feb. 18, 2019):

In a deeply divided Washington, one of the few issues on which leading lawmakers on both sides of the aisle appear to agree is that corporations should be discouraged from buying back their stock from shareholders. Earlier this month, top-ranking Democratic Sen. Charles E. Schumer of New York, along with Vermont independent Sen. Bernie Sanders, unveiled the outline of a proposal that would bar companies from buying back their shares until they pay all workers at least $15 an hour and offer a suite of healthcare, sick leave, and retirement benefits. On February 12, Florida Republican Sen. Marco Rubio — who has criticized buybacks in the past — announced that he wants to change the tax treatment of buybacks as part of a plan to make U.S. industry more competitive.

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February 19, 2019 | Permalink | Comments (3)

2020 U.S. News Law School Rankings


U.S. News Law (2019)Robert Morse (Chief Data Strategist, U.S. News & World Report) announced today that the new 2020 law school rankings will be released on Tuesday, March 12. Here is my coverage of the current 2019 law school rankings:

February 19, 2019 in Law School Rankings, Legal Education | Permalink | Comments (0)

Muller: Law School Ruin Porn Hits USA Today

USA TodayFollowing up on my previous post, Eighteen Law Schools Would Fail ABA's Proposed 75% Bar Passage Within 2 Years Accreditation Standard: Derek Muller (Pepperdine), Law School Ruin Porn Hits USA Today:

I actually laughed out loud when I started reading this “yearlong investigation” by four USA Today journalists on the state of legal education. I call the genre, “law school ruin porn.” ...

The piece is reminiscent of a genre of journalism that peaked in 2011 in a series of pieces by David Segal in the New York Times. ...

The fundamental problem with a piece like this one in USA Today is how it treats the outlier as the norm. The vast majority of law students do pass the bar exam on the first attempt. The vast majority of law schools are at no risk of failing to meet the ABA’s standards. But the piece is framed in quite a different fashion. ...

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February 19, 2019 in Legal Education | Permalink | Comments (2)

Monday, February 18, 2019

Maynard Presents Legislating Tax Cuts With Tall Tales Today At Pepperdine

Maynard (2018)Goldburn P. Maynard Jr. (Louisville) presents Legislating Tax Cuts With Tall Tales at Pepperdine today as part of our Tax Policy Workshop Series hosted by Dorothy Brown and Paul Caron and funded in part by a generous gift from Scott Racine:

Part I provides a brief introduction to the work of philosophers Liam Murphy and Thomas Nagel on everyday libertarianism. This part shows how the narratives of hard work and just desert along with stories of government oppression have been used to support policies that harm those who vote against them. System Justification Theory helps to explain the counterintuitive notion that the disadvantaged have a need to defend the status quo.

Part II proceeds by exploring three tax reform battles from different decades: 1986, 2001, 2017. By comparing the three, this part shows that there was a narrative element to each. Yet, the importance of data decreased across each tax fight. In 1986 there was a genuine commitment to thorough data collection. By 2017, reformers were dodging the data and questioning its effectiveness.

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February 18, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Davis Presents Elective Egg Freezing And The Limits Of The Medical Expense Deduction At SMU

DavisTessa R. Davis (South Carolina) presented Freezing the Future: Elective Egg Freezing and the Limits of the Medical Expense Deduction, 106 Ky. L. Rev. ___ (2019), last week at SMU as part of its Faculty Forum Series:

Section 213 of the Internal Revenue Code (the Code) allows a deduction for unreimbursed expenses for medical care. To qualify as medical care, an individual’s outlay must meet the statutory definition of “medical care” set forth in § 213. Specifically, an outlay must be for care that is either for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” Many costs raise few interpretive challenges. When an individual receives chemotherapy, for example, the costs tied to that care clearly satisfy the disease prong of §213. But as medicine advances, emerging technologies test the breadth of the Code’s concept of medical care. 

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February 18, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

L.A. And NYC Are Hot Lateral Legal Markets

Law.com, New York and Cali Are Hot. But Lateral Hiring Is Big In Texas, Too:

Breaking down all the lateral move activity in 2018 by region, we see some things we might expect. Hiring at Am Law 200 firms is high in cities like New York and Los Angeles. But in the top 20 most active markets  — measuring by partner hires at Am Law 200 firms — there were also three cities in Texas: Houston, Dallas, and Austin.

Laterals

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February 18, 2019 in Legal Education | Permalink | Comments (0)

The Public's Unmet Need For Legal Services And What Law Schools Can Do About It

Andrew M. Perlman (Dean, Suffolk), The Public's Unmet Need for Legal Services & What Law Schools Can Do About It:

Civil legal services in the United States are increasingly unaffordable and inaccessible. Although the causes are complex, law schools can help in three ways beyond simply offering free legal clinics staffed by lawyers and students. Law schools can teach the next generation of lawyers more efficient and less expensive ways to deliver legal services, ensure that educational debt does not preclude lawyers from serving people of modest means, and conduct and disseminate research on alternative models for delivering legal services. These strategies will not solve all of the problems that exist, but they hold the promise of meaningfully improving the affordability and accessibility of civil legal services.

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February 18, 2019 in Legal Education | Permalink | Comments (6)

Lesson From The Tax Court: Jurisdiction To Determine Jurisdiction

Tax Court (2017)Last week’s case of Steven Samaniego v. Commissioner, T.C. Memo. 2019-7 (Feb. 6, 2019) (Judge Lauber) teaches a great (and short) lesson about the Tax Court’s subject matter jurisdiction.  Mr. Samaniego had asked for a CDP hearing but the Office of Appeals thought his request was untimely.  So it gave him an Equivalent Hearing and issued a Determination Letter to reflect its decision.  Mr. Samaniego petitioned the Tax Court.  Problem: the Tax Court does not have jurisdiction to review an Equivalent Hearing.  Solution: Judge Lauber treated the hearing as a CDP hearing because he found that the Office of Appeals had miscounted the applicable time period.  Hey Presto! Jurisdiction.  But getting Tax Court review turned out to be a Pyrrhic victory for the taxpayer, because Judge Lauber found no error. 

As we gear up for post-shutdown litigation over late-filed petitions this case is a useful lesson about how the Tax Court will take seriously its obligation to determine the scope of its own jurisdiction.  The case also shows the Court's willingness to look through form to substance when doing so.  I see the case as a direct descendant of Marbury v. Madison, 5 U.S. 138 (1803).  Details below the fold.

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February 18, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure | Permalink | Comments (0)

Anderson: Some Contrarian Thoughts On The U.S. News Faculty Scholarly Impact Rankings

U.S. News Law (2019)Following up on my previous posts (links below):  Robert Anderson (Pepperdine), Some Preliminary Contrarian Thoughts on the US News Proposal to Rank Based on Scholarly Impact:

There are several lines of criticism. One group worriesthat releasing such a ranking will create incentives for law schools to focus too much on scholarship as opposed to teaching or cutting tuition. I don't have much to say to this group in this post, because that's a broader debate. Another group worries not about placing greater priority on scholarship, but about the idea of quantifying scholarly impact. Although there are real problems with quantifying scholarly impact, that too is a different debate. Scholarly impact or reputation is already quantified, it's just quantified through the use of a somewhat haphazard survey distributed by US News.

In this post, I want to focus on the line of criticism from a third group, those who value scholarship and accept at least in principle the idea of quantifying scholarly impact, but worry about the narrow focus of using law review citations. One of the most common critiques that surfaced on the day of the announcement is that the proposed methodology will undervalue interdisciplinary work. Interdisciplinary work often appears outside of law reviews and is cited by publications other than law reviews.  The concern is that if US News undervalues interdisciplinary work, then because of the sway that US News holds, it may even reduce the incentives for interdisciplinary work.

As an interdisciplinary scholar myself, this critique concerns me. I do almost no "traditional" or "doctrinal" work in my scholarship, although I have done some. However, I think there are several reasons why the concerns might be overblown even for someone like me. In addition, there are actually some advantages to the proposed methodology over one that included interdisciplinary materials more broadly. Let me explain. ...

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February 18, 2019 in Law School Rankings, Legal Education | Permalink | Comments (1)

After Failed Dean Search, North Dakota Law School Turns To Internal Candidates

North Dakota Law School (2019)Grand Forks Herald, UND Law School Looks Internally After Failed Dean Search:

Although an external search for a new UND School of Law dean was not successful, faculty, staff and students say an internal candidate could end up being a better option in the long run.

Brad Myers has been serving as interim dean since August. He took over from Kathryn Rand, who had served as dean since 2009 and chose to step down from the position to return to the law school faculty.

A search committee, made up of professors, alumni and others, was working to fill the position since July. The committee was recently disbanded following the unsuccessful external search.

In November, four finalists for the dean's position visited campus. Ultimately, Elizabeth Ann Warner who had served as acting dean of the University of Kansas Law School in 2016 and Brian Gallini, who serves as professor and senior associate dean for faculty at the University of Arkansas School of Law, were each offered the dean's position and each turned it down. Warner declined to comment on the reason she turned down the job. Gallini did not return a request for comment.

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February 18, 2019 in Legal Education | Permalink | Comments (4)

TaxProf Blog Weekend Roundup

Sunday, February 17, 2019

2019 Religious Law School Rankings

Most Devout Law Schools

The Most Devout Law Schools (preLaw Winter 2019):

We gathered detailed information from the religiously-affiliated schools and from other sources. From that data, we compiled a ranking based on: percentage and activity of students who belong to the faith; percentage and activity of faculty who belong to the faith; number of religion-focused courses and other ways the school incorporates the faith into the curricula; religion-related journals, centers and clinics; religious services and clergy at the law school; mission of the law school.

Most Devout Christian Law Schools:

  1. Liberty
  2. Regent
  3. Trinity
  4. BYU
  5. Pepperdine
  6. Baylor
  7. Faulkner
  8. Belmont
  9. Campbell
  10. Concordia

Here is the description of Pepperdine's #5 ranking:

At Pepperdine, social events and official ceremonies begin with prayer. That’s a significant part of the school’s culture. “It is not unusual that business meetings will likewise be convened with a request to God for prudence, understanding and guidance,” the school’s website notes. “Many of Pepperdine’s professors and administrators take the time to spiritually encourage and pray with students and others who need the care that those who profess faith are called to give.” Pepperdine is affiliated with Churches of Christ, but students of all faiths are welcome.

Most Devout Catholic Law Schools:

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February 17, 2019 in Law School Rankings, Legal Education | Permalink | Comments (1)

WSJ: The New World Of Taxes: 2019

WSJ TaxWall Street Journal, The New World of Taxes: 2019 (73 pages):

A year has passed since the Trump administration enacted the biggest tax overhaul in 30 years. Since then, the laws have evolved further, leaving many Americans wondering how to navigate the new changes. 

To help you through this year's filings and returns, The Wall Street Journal has updated our in-depth e-book with key insights on what families, homeowners, retirees, investors, and small-business owners need to know.

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February 17, 2019 in Tax | Permalink | Comments (0)

How One Lawyer Overcame Living With Depression In Big Law

Reed SmithFollowing up on my previous post, 'Big Law Killed My Husband': An Open Letter From A Sidley Partner's Widow:  American Lawyer op-ed, 'Scared. Ashamed. Crippled.': How One Lawyer Overcame Living With Depression in Big Law:, by Mark S. Goldstein (Counsel, Reed Smith, New Yoek):

It was Oct. 16, 2017. A Monday. My wife’s 32nd birthday. A day after the Jets blew a 14-point lead to the Patriots. It was also what I thought would be the last time I would ever walk through the halls of Reed Smith, the law firm at which I had spent the past four-plus years.

Roughly six weeks earlier, I had been diagnosed with severe depression, obsessive-compulsive disorder (OCD) and anxiety. I felt scared. Ashamed. Crippled. As if I was going to die. Perhaps most of all, I felt alone, particularly in a profession that often stigmatizes mental health disorders. A profession that tends to label them, instead, as “burnout,” or sweep them under the rug. The symptoms of my conditions, which had likely been percolating for some time, came on suddenly and swiftly over Labor Day weekend 2017. These symptoms included not only mentally crippling cognitions, but also physically impairing side effects as well. By early the following week, I knew that this was no mere passing phase; it could not be ignored.

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February 17, 2019 in Legal Education | Permalink | Comments (1)

The Top Five New Tax Papers

SSRN Logo (2018)There 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. [551 Downloads]  Spiritus Ex Machina: Addressing the Unique BEPS Issues of Autonomous Artificial Intelligence by Using 'Personality' and 'Residence', by Lucas de Lima Carvalho (University of Sao Paulo)
  2. [424 Downloads]  Ten Reasons to Prefer Tax Partnerships Over S-Corporations, by Bradley Borden (Brooklyn)
  3. [321 Downloads]  The Impact of Soda Taxes: Pass-through, Tax Avoidance, and Nutritional Effects, by Stephen Seiler (Stanford), Anna Tuchman (Northwestern) & Song Yao (Minnesota)
  4. [317 Downloads]  The Proposed Section 163(j) Regulations, by David Miller, Sejin Park, Mani Kakkar & Sean Webb (Proskauer)
  5. [278 Downloads]  A Constitutional Wealth Tax, by Ari Glogower (Ohio State)

February 17, 2019 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, February 16, 2019

This Week's Ten Most Popular TaxProf Blog Posts

Is Email Making Professors Stupid — 'Digital Torture For Serious Scholars'?

GmailChronicle of Higher Education op-ed:  Is Email Making Professors Stupid?, by Cal Newport (Georgetown; author, Deep Work: Rules for Focused Success in a Distracted World (2016)):

Email used to simplify crucial tasks. Now it’s strangling scholars’ ability to think.

Donald Knuth is one of the world’s most famous living computer scientists. He’s known for his pioneering efforts to bring rigorous mathematical analysis to the design of computer algorithms. An emeritus professor at Stanford University, he’s currently writing the fourth volume of his classic book series, The Art of Computer Programming, which he’s been working on since the early 1960s.

Given Knuth’s renown, many people seek him out. If you’re one of those people, however, you’ll end up disappointed. On arriving at Knuth’s homemade Stanford homepage, you’ll notice that no email address is provided. If you dig deeper, you’ll eventually find a page named email.html which opens with the following statement:

I have been a happy man ever since January 1, 1990, when I no longer had an email address. I’d used email since about 1975, and it seems to me that 15 years of email is plenty for one lifetime.

Knuth does provide his mailing address at Stanford, and he asks that people send an old-fashioned letter if they need to contact him. His administrative assistant gathers these letters and presents them to Knuth in batches, getting urgent correspondence to him quickly, and putting everything else into a “buffer” that he reviews, on average, “one day every three months.”

Knuth’s approach to email prioritizes the long-term value of uninterrupted concentration over the short-term convenience of accessibility. Objectively speaking, this tradeoff makes sense, but it’s so foreign to most tenured and tenure-track professors that it can seem ludicrous — more parody than pragmatism. This is because in the modern academic environment professors act more like middle managers than monastics. A major factor driving this reality is the digital communication Knuth so carefully avoids. Faculty life now means contending with an unending stream of electronic missives, many of which come with an expectation of rapid reply.

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February 16, 2019 in Book Club, Legal Education | Permalink | Comments (6)

WSJ: The Next Tax Revolution?

Wall Street Journal, The Next Tax Revolution?:

WSJNew Democratic proposals aim to overhaul tax system in the name of fighting inequality, but history suggests that big hikes win support only in times of national crisis.

For decades, the debate in the U.S. over taxing the rich has been a familiar game of tug of war. Republican presidents Ronald Reagan, George W. Bush and Donald Trump pushed top tax rates down. Democratic presidents Bill Clinton and Barack Obama pushed them back up.

Back and forth, up and down, the discussion remained within fairly narrow bounds. Republicans made the case for lower taxes and economic growth, Democrats argued for higher taxes and economic fairness, and since 1986, the top individual rate has stayed between 28% and 39.6%.

The tax debate emerging today is a different game altogether, and it may provide the biggest jolt to the American tax system in a generation. Emboldened by poll numbers showing public sympathy for their views, Democrats are proposing a range of ambitious tax hikes on the rich. Sen. Bernie Sanders (I., Vt.) has floated a top rate of 77% on estates. Sen. Elizabeth Warren (D., Mass) has suggested a new annual levy on fortunes exceeding $50 million. Rep. Alexandria Ocasio-Cortez (D., N.Y.) is urging the party to support a tax rate of 70% on income over $10 million.

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February 16, 2019 in Tax | Permalink | Comments (2)

NY Times: Everyone Needs Legal Help. That Doesn’t Mean Everyone Needs A Lawyer.

New York Times, Everyone Needs Legal Help. That Doesn’t Mean Everyone Needs a Lawyer.:

Rebecca Sandefur, a sociologist and researcher at the University of Illinois at Urbana-Champaign, has spent years considering a question that’s central to the American legal system: Does everyone facing legal issues need a lawyer?

She has found that, especially for everyday matters, many people would benefit more from what she likes to call the “just resolution” of legal problems. “Across a number of common justice problems,” she wrote in a recent article, “nonlawyer advocates and unrepresented lay people have been observed to perform as well or better than lawyers.”

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February 16, 2019 in Legal Education | Permalink | Comments (2)

Friday, February 15, 2019

Weekly SSRN Tax Article Review And Roundup: Layser Reviews The Constitutionality Of A National Wealth Tax

This week, Michelle Layser (Illinois) reviews Dawn Johnsen (Indiana–Bloomington) & Walter E. Dellinger III (Duke), The Constitutionality of a National Wealth Tax, 93 Ind. L.J. 111 (2018).

Layser (2018)Presidential Candidate and Senator Elizabeth Warren recently proposed a wealth tax on household net worth over $50 million, prompting observers from across the political spectrum to question whether the proposed tax was constitutional (see here, here and here). Critics point to a constitutional requirement that would be impossible to satisfy without serious geographic inequities. But Professors Dawn Johnsen and Walter Dellinger argue that a national wealth tax may not trigger such requirements after all—precisely because they would be impossible to satisfy without such inequities.

The requirement at issue is the “apportionment requirement” imposed by Article I, § 2 of the U.S. Constitution. That provision states that “direct Taxes shall be apportioned among the several States . . . according to their respective Numbers.” In other words, “direct taxes” must be apportioned among the states based on population size. For example, consider two states with the same population but residents with different net worth. The first state has a large number of wealthy residents, and the second has only a few. An apportioned wealth tax would require both states to render the same aggregate amount of tax. So the few wealthy residents of the poorer state would be unfairly burdened, forced to pay proportionately more than the wealthy taxpayers in the wealthier state.

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February 15, 2019 in Michelle Layser, Scholarship, Tax | Permalink | Comments (1)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

More Coverage Of The U.S. News Law Faculty Scholarly Impact Rankings

U.S. News Law (2019)Following up on my previous posts:

Law.com, U.S. News to Launch New Way to Rank Law Schools:

University of St. Thomas School of Law professor Gregory Sisk ... said on Wednesday that U.S. News’ entrance into the scholarly impact picture is evidence that citations are a useful measure of law faculty performance and law school quality. But he cautioned that many of the details of how the ranking will be compiled are unclear. “As with any such project, the proof will be in the pudding,” Sisk said. “We may not know for a couple of years how it is coming together, how it relates to the general U.S. News ranking system, and whether the approach and results are reliable.” ...

Pepperdine University Law Dean Paul Caron, who closely follows the U.S. News rankings on his TaxProf Blog, said Thursday that he thinks the publication’s push to evaluate the scholarly impact of law faculties is a positive development. Tracking citations isn’t a perfect method, but it’s the best objective way to measure legal scholarship, he said.

“The simple fact is that law schools vigorously compete to hire the best faculty, and research is far and away the most important determinant,” Caron said. “Prospective law students properly care very much about a law school’s reputation, so it make sense for U.S. News to rank law schools on this objective measure.”

Brian Leiter (Chicago), USNews.com to Start "Scholarly Impact" Rankings:

knows it has been repeatedly burned by misleading self-reporting by schools that it never carefully audits, so switching to non-manipulable metrics no doubt seems preferable. And since their academic reputation surveys are now just echo chambers of recent overall rankings, adding in an impact/productivity component would be a slight corrective to that. ...

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February 15, 2019 in Law School Rankings, Legal Education | Permalink | Comments (3)

Florida Tax Review Publishes New Issue

Florida Tax Review (2018)The Florida Tax Review has published Vol. 22, No. 1:

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February 15, 2019 in Scholarship, Tax | Permalink | Comments (0)

International Graduate Student Enrollments And Applications Drop For 2nd Year In A Row

Chronicle of Higher Education, International Graduate-Student Enrollments and Applications Drop for 2nd Year in a Row:

International graduate enrollment and applications have declined for the second year in a row, according to a new report from the Council of Graduate Schools. ...

China and India still lead the way in the number of international graduate applications and first-time enrollments. Chinese applicants and enrollments did not drop, but first-time enrollments by students from India dropped 2 percent, and applications fell 12 percent, according to the report.

Inside Higher Ed, New International Graduate Applications Decline 4%:

New enrollments of international students at U.S. graduate schools fell for the second year in a row, according to a survey from the Council of Graduate Schools.

First-time international enrollments fell by 1 percent from fall 2017 to fall 2018, following on a 1 percent decline the year before that.

First-Time International Enrollments at U.S. Graduate Schools, by Region or Country of Origin

  Fall 2012 to Fall 2013 Fall 2013 to Fall 2014 Fall 2014 to Fall 2015 Fall 2015 to Fall 2016 Fall 2016 to Fall 2017 Fall 2017 to Fall 2018
Overall +10% +8% +5% +5% -1% -1%

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February 15, 2019 in Legal Education | Permalink | Comments (3)

Preservation Of NOLs Of Bank Holding Companies

Vijay Sekhon & Ryan Hicks (Sidley Austin, Los Angeles), Preservation of Net Operating Losses of Bank Holding Companies, 37 Rev. Banking & Fin. L. 267 (2017):

[B]ecause the preservation of NOLs benefits companies with significant NOLs and their shareholders, permitting bank holding companies to implement NOL “poison pills” and transfer restrictions does not (contrary to the assertions in SR 15-15) benefit certain shareholders at the expense of others. Furthermore, because companies in other industries are able to use NOL “poison pills” and transfer restrictions to protect these valuable tax assets, permitting bank holding companies to take the same reasonable measures would make it easier for bank holding companies to attract capital (especially distressed bank holding companies that need the most capital).

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February 15, 2019 in Scholarship, Tax | Permalink | Comments (0)

'Light Touch' Targeted Feedback To Students Improves Their Performance

Inside Higher Ed, Can Light Touch Targeted Feedback To Students Improve Their Performance?:

Students benefit from increased faculty engagement. Yet many professors still resist more student-centered teaching.

Part of the problem is that graduate schools are slow to adopt pedagogical training, meaning that some professors may want to up their interaction with students but don’t know how. Another part of the problem is that becoming a better teacher takes time, an increasingly scarce faculty resource.

What if engagement wasn’t complicated and didn’t take that much time? Preliminary research called My Professor Cares: Experimental Evidence on the Role of Faculty Engagement, presented last week at the annual meeting of the American Economics Association, suggests that even “light touch” interventions can make a difference to students.

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February 15, 2019 in Legal Education | Permalink | Comments (0)

Thursday, February 14, 2019

Zelenak Presents The Intersection Of College Sports And The Federal Income Tax Today At Indiana

Zelenak (2016)Larry Zelenak (Duke) presents The NCAA and the IRS: Life at the Intersection of College Sports and the Federal Income Tax, 92 S. Cal. L. Rev. ___ (2019) (with Richard Schmalbeck (Duke)) (reviewed by Mirit Eyal-Cohen (Alabama) here) at Indiana today as part of its Tax Policy Colloquium Series hosted by David Gamage:

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment—sometimes because of the failure of the IRS to enforce the tax laws enacted by Congress, sometimes because Congress itself has conferred dubious tax benefits on college sports. In just the past year, however, there have been signs of what may be a major attitudinal shift on the part of Congress—although so far there have been no signs of a corresponding change at the IRS. This article offers an in-depth look at the history and current status of four areas of intersection between the federal tax laws and college sports.

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February 14, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

University Of Virginia Law School Class Of 1990 Reports 91% Life Satisfaction

Virginia Law (2019)Grads Report 91% Life Satisfaction:

Graduates of the University of Virginia School of Law reported 91 percent career and life satisfaction in a new study published Tuesday in the Journal of Empirical Legal Studies [Lawyers at the Peak of Their Careers: A 30‐Year Longitudinal Study of Job and Life Satisfaction].

Law Professor John Monahan, the John S. Shannon Distinguished Professor of Law, has tracked the progress of members of the Law School’s Class of 1990 for almost 30 years.

In his most recent installment of the longitudinal study, a total of 91 percent of respondents said they felt satisfied with their lives, ranging from “average satisfaction” to “very highly satisfied.” What’s more, their happiness has risen over time. In 2007, 86 percent reported feeling satisfied. The average age of participants in 2017 was 53.

The findings cut against the image — cast by popular culture and, Monahan suggests, some suspect high-profile research — that lawyers are a largely unhappy bunch, relatively more prone than other similar professionals to depression, substance abuse and suicide. ...

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February 14, 2019 in Legal Education | Permalink | Comments (2)