Paul L. Caron

Wednesday, April 14, 2021

Avi-Yonah Reviews Rebellion, Rascals, And Revenue: Tax Follies And Wisdom Through The Ages

Reuven S. Avi-Yonah (Michigan), Rebellion, Rascals, and Revenue: Pleasingly Gaudy and Preposterous, 170 Tax Notes Fed. 1885 (Mar. 22, 2021) (reviewing Michael Keen (IMF) & Joel Slemrod (Michigan; Google Scholar), Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages (Princeton University Press 2021)):

RascalsMichael Keen and Joel Slemrod’s Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages (Princeton University Press 2021) is a wonderful book, which should be read by any student of taxation. To most tax policy makers and academics, tax history may seem a bit arcane, because they believe that the study of taxation and especially public finance economics is a story of progress and that we know better how to design good tax systems than our ancestors. To this attitude, Keen and Slemrod offer a decisive rejoinder: We do not necessarily understand taxation better than our predecessors, and in fact we can learn from their experience. Keen and Slemrod’s marvelous book is not an attempt to directly effectuate tax policy or to rewrite tax history. Instead, it is a very wise excursion by two highly experienced public finance economists into the past in order to both understand the present better by comparing it to what was different, and to improve the future by learning from both past wisdom and past follies.

April 14, 2021 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

Dean & Waris: Ten Truths About Tax Havens — Inclusion And The ‘Liberia’ Problem

Steven Dean (Brooklyn Law School) & Attiya Waris (University of Nairobi), Ten Truths About Tax Havens: Inclusion and the ‘Liberia’ Problem, 70 Emory L.J. ___ (2021):

There has been a decades-long effort to repair an increasingly fragile international tax system. One reason it has foundered has been what we identify as the ‘Liberia problem.’ In 2000, the powerful Organization for Economic Cooperation and Development identified Liberia—but not Switzerland—as a tax haven and targeted it for sanctions. It did not go well. During the two decades since, everything has changed; yet seemingly from this lens of inclusion, nothing has changed at all. Awkwardly similar “blacklists” still target ‘Black’ and ‘Brown’ jurisdictions despite the fact that experts mean something quite different when they speak of the “scourge of tax havens” and secrecy jurisdictions. We think differently in important respects but believe that those real disagreements demonstrate the need for a less-insular global tax policymaking apparatus. And we share a conviction that a more inclusive and more level playing field in the international tax arena would benefit all states.

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April 14, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

NALP: Median First-Year Associate Salary Rises To $165,000, Despite Pandemic

NALP, First-Year Associate Salaries Show Modest Growth at Large Firms; 2020 Salary Reductions Put in Place Due to the Pandemic Don’t Have Lasting Impact:

The National Association for Law Placement (NALP) today released its 2021 Associate Salary Survey report, showing that the overall median first-year associate base salary as of Jan. 1, 2021 was $165,000, up $10,000 (6.5%) from 2019, the year of the last survey administration. Law firms of more than 250 lawyers accounted for about 78% of the 572 responses.

“Despite widespread media reports of austerity measures implemented by law firms during the pandemic, including delays in partner draws and in some cases temporary salary reductions for lawyers, the findings from NALP’s latest Associate Salary Survey show that associate compensation has continued to grow over the last two years, with first-year associate compensation of $190,000 now measured as the most common starting salary, reflecting the continued strength of the legal sector despite a difficult year,” said James G. Leipold, NALP’s Executive Director.

Salary increases were not universal across firm sizes. The greatest salary growth was observed in firms of 101-250 lawyers, where median first-year base salaries increased $15,000 from $115,000 in 2019 to $130,000 in 2021 (13.0% increase). First-year salaries in firms of 251-500 lawyers and more than 700 lawyers each grew by $10,000 as compared to 2019, rising to $170,000 and $190,000, respectively. Salaries in firms of 501-700 lawyers were down slightly, dropping from $160,000 in 2019 to $155,000 in 2021. This decrease is not indicative of firms of 501-700 lawyers lowering their first-year salaries since 2019, but it is because of differences in the composition of firms that fell into this firm size between the two years.


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April 14, 2021 in Legal Ed News, Legal Education | Permalink

'You Should Smile More,' Academic Catcalling, and Women-on-Women Crimes

Deborah L. Borman (Arkansas-Little Rock), 'You Should Smile More,' Academic Catcalling, and Women-on-Women Crimes, 65 Vill. L. Rev. 1065 (2020):

Within the legal academy women “catcall” other women in an attempt to control the emotions of colleagues. This aggression is played out as relational or “intrasexual competition between women and arises both covertly and overtly in the form of unwarranted professional criticism or competition, a failure to empathize, a failure to mentor, an effort to destroy or otherwise undermine another woman’s career, and by many other underhanded methods. I refer to the set of phenomena described above as “women-on-women crime.” These crimes act to enhance and protect the historic patriarchy in legal education; challenging patriarchy and successfully bringing a feminist perspective into the classroom is stymied when behind the classroom door female colleagues engage in the crimes of sabotaging, criticism, and undermining.

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April 14, 2021 in Legal Ed Scholarship, Legal Education | Permalink

Federal Judge Allows Student Tuition Refund Class Action To Proceed Against Quinnipiac University Over COVID-19 Shift To Online Learning

Following up on my previous post, GWU And NYU Beat Student COVID-19 Tuition Refund Lawsuits:  Connecticut Law Tribune, Quinnipiac Must Face Some COVID-19 Claims Tied to Remote Education, Judge Rules:

Quinnipiac University Logo (2021)A federal judge in Connecticut issued a partial favorable ruling Thursday to four students suing Quinnipiac University in a class action after its in-person learning was disrupted because of the COVID-19 pandemic.

Judge Kari Dooley ruled the parents of the four students had no standing to sue, but did rule for the students on their breach-of-contract and unjust-enrichment claims. Dooley did dismiss their conversion claim. The plaintiffs are seeking millions of dollars on behalf of the class.

Hundreds of similar lawsuits have been filed against colleges and universities across the nation, drawing a mixed bag of rulings from judges.

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April 14, 2021 in Legal Ed News, Legal Education | Permalink

Brunson, Johnson & Ryznar: Reforming The Home Office Deduction

Samuel D. Brunson (Loyola-Chicago) & Christian A. Johnson (Widener), An Employee Home Office Expense Deduction for the New Normal, 171 Tax Notes Fed. 41 (Apr. 5, 2021):

Brunson and Johnson argue for a limited above-the-line deduction to cover the costs of working from home and suggest that if Congress expands the deduction for unreimbursed home office expenses, it reconsider the requirements.

Margaret Ryznar (Indiana-McKinney), The Design of a Home Office Deduction, 171 Tax Notes Fed. 49 (Apr. 5, 2021):

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April 14, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

If Biden Approves Loan Forgiveness, What Could It Mean For Law School Debt?

ABA Journal, If Biden Approves Loan Forgiveness, What Could It Mean For Law School Debt?:

People with law school loans could benefit if President Joe Biden authorizes a plan to forgive all or a portion of student debt, but it could exclude those who owe private lenders and impose limits based on income, experts say. ...

The issue of student loan debt forgiveness figured prominently in the 2020 presidential campaign. In April, the White House announced that Education Secretary Miguel Cardona had been asked to explore President Joe Biden’s authority to cancel student loans, USA Today reports.

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April 14, 2021 in Legal Ed News, Legal Education | Permalink

Washington & Lee Hosts Virtual Book Event Today On Michelle Drumbl’s Refundable Tax Credits

Washington & Lee Law to Host Book Celebration and Discussion of Refundable Tax Credits:

Tax CreditsWashington & Lee law professor and Tax Clinic director Michelle Drumbl’s recent book, Tax Credits for the Working Poor: A Call for Reform (Cambridge University Press 2021), is the topic of an upcoming book celebration event and discussion.

The event will occur in a virtual format on Wednesday, April 14 beginning at 3:00 p.m. and is open to the public. Registration in advance is required at

Drumbl’s book examines the pros and cons of Congress tasking the Internal Revenue Service with the delivery of social benefits. At the core of the book is an examination of the earned income tax credit (EITC), which was introduced in the U.S. in 1975. According to Drumbl, the EITC remains the most significant earnings-based refundable credit in the Internal Revenue Code.

The economic shocks related to the COVID-19 pandemic saw Congress once again turn to the IRS to deliver aid to those in need, as tens of millions of individuals and families received three rounds of Economic Impact Payments. Most recently, Congress enacted a temporary one-year expansion of the Child Tax Credit that transforms the credit in size and scope: parents will receive a higher benefit per child, earned income is no longer a prerequisite to the credit, and part of the credit will be delivered in advance in monthly payments.

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April 14, 2021 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, April 13, 2021

Dean: A Plea To President Biden To Stop Perpetuating Racist Tax Policy

Steven Dean (Brooklyn), A Plea to President Biden to Stop Perpetuating Racist Tax Policy:

Dear President Biden,
You have pledged to fight to rid our nation of systemic racism. I believe you mean that. But it seems that many in your administration do not. Or perhaps they simply underestimate your resolve.

When you announced your plan last week to rebuild our nation’s infrastructure, you showed a way to pay much of the cost with tax increases on corporations. You did not dwell on the complex details, yet you did take time to single out the Cayman Islands and Bermuda to blame for the failures of our corporate income tax. For reasons that I understand all too well, you identified the wrong culprits.

In your remarks, you explained that corporations had hidden profits in the Caymans and Bermuda. That may be true, in a sense. But it also encapsulated the racism and xenophobia you promised to purge from our political discourse. ...

I blame your extraordinary team of tax specialists. When Paul Krugman joked that there were no tax experts that had not already joined your administration, I immediately thought of one whom they had not even had a conversation with until a few days ago.

With her acclaimed book The Whiteness of WealthDorothy Brown showed the world what we tax nerds long suspected.

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April 13, 2021 in Legal Education, Tax, Tax News | Permalink

Western New England Seeks To Hire Adjunct Faculty To Teach Online Tax Courses In Its LL.M. Estate Planning Program

Western New England University School of Law is seeking to hire adjuncts to teach these tax-related courses online for its LL.M. in its Elder Law and Estate Planning Program in either the 2021-22 or 2022-23 academic years:

  • Western New EnglandAdvanced Issues in Wealth Transfer Taxes — Marital Deduction Planning
  • Advanced Issues in Wealth Transfer Taxes — Generation Skipping Transfer Tax
  • Income Taxation of Pass Through Entities
  • Income Tax for Estate Planners
  • Federal Wealth Transfer Taxes
  • Federal Income Taxation of Trusts and Estates

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April 13, 2021 in Tax, Tax Prof Jobs | Permalink

BigLaw Associates Are Burned Out. Special $60,000+ Bonuses May Not Be Enough To Keep Them

Business Insider, Big Law Associates Are Burned Out After a Year Of Rapid-Fire Deals and Intense Hours. Special $60,000-Plus Bonuses May Not Be Enough to Keep Them:

From M&A deals to IPOs to bankruptcy proceedings, Big Law associates are busier than ever.

For some, their jobs advising financial firms and corporations just got a lot more lucrative. At least 25 Big Law firms are awarding special bonuses up to $64,000 to high-performing associates in 2021.

But many of these bonuses aren't just a straightforward reward for all the hard work that's already been done. Some are being announced months before they hit bank accounts, which is unusual by industry standards.

Recruiters and other industry experts say the payouts are an effort to keep burned-out associates from leaving after a grueling year of high-volume remote work. And some associates Insider spoke to said that, while the money is nice, what they'd really like is to see the workload lighten.

Long hours aren't new for the field. Big Law associates, who range from mid-20-year-olds fresh out of law school to senior associates in their 30s with years of practice under their belts, can expect to work 60-70 hours per week in normal times, including late nights and weekends. While more junior lawyers spend their time drafting documents and learning on the job, older associates are expected to find clients and take the lead on some engagements. After about a decade of hard work and meeting billable-hour requirements, some lucky associates succeed in their quest to make partner, which can mean sharing in the firm's profits.

Still, this year has been different for the notoriously old-fashioned industry, with lawyers tackling a wave of restructurings, an onslaught of SPAC work, and an uptick in work in other areas all while working from home. While firms are looking to make lateral hires to help relieve the pressure, they're also scrambling to hold onto talent they already have.

April 13, 2021 in Legal Ed News, Legal Education | Permalink

60% Of Colleges Cut Or Froze Faculty Salaries During The Pandemic; 30% Reduced Or Eliminated Fringe Benefits

AAUP, 2020-21 Faculty Compensation Survey Results:

Data collection for the AAUP’s 2020–21 Faculty Compensation Survey concluded in March, with 929 US colleges and universities providing employment data for nearly 380,000 full-time faculty members as well as senior administrators at nearly 600 institutions. ...

The survey found that real wages for full-time faculty decreased for the first time since the Great Recession, and average wage growth for all ranks of full-time faculty was the lowest since the AAUP began tracking annual wage growth in 1972. After adjusting for inflation, real wages decreased at over two-thirds of colleges and universities. The number of full-time faculty decreased at over half of institutions.

To understand the ways in which institutions responded to the COVID-19 pandemic, the AAUP also asked participating institutions to identify how many faculty members–both tenure-line and non-tenure-track–were impacted by actions taken by institutions. US colleges and universities have taken a wide range of actions in response to financial difficulties stemming from the COVID-19 pandemic. At a time when many institutions were already struggling to balance their budgets, many lowered their expenditures by implementing hiring freezes, salary cuts, fringe benefit cuts, furloughs, and layoffs. The results of the AAUP’s 2020–21 Faculty Compensation Survey highlight the prevalence of such actions and how they have affected faculty members. ...

  • Average salaries increased 1.0 percent. This is the smallest increase on record since the AAUP began tracking this measure in 1972.
  • After adjusting for inflation, real average salaries decreased 0.4 percent. After adjusting for inflation (the Consumer Price Index, or CPI, increased 1.4 percent in 2020), real wages decreased for the first time since the 2011–12 academic year. ...
  • Nearly 60 percent implemented salary freezes or reductions.
  • About 30 percent eliminated or reduced some form of fringe benefits. ...
  • Almost 10 percent implemented furloughs for at least some faculty.

Inside Higher Ed, Faculty Salaries Dip This Year:

Top Salaries for Full Professors at Private Universities, 2020-21 (Average)

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April 13, 2021 in Legal Ed News, Legal Education | Permalink

Only 2.9% Of Harvard Faculty Are Conservative

Harvard Crimson, ‘An Endangered Species’: The Scarcity of Harvard’s Conservative Faculty:

It is no surprise that Harvard’s faculty skews heavily toward the left side of the political aisle. Out of 236 members of the FAS who responded to a question on political leanings in The Crimson’s 2021 Faculty Survey, just seven — 3 percent — identified as “somewhat” or “very conservative,” compared to 183 who identified as “somewhat” or “very liberal.”


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April 13, 2021 in Legal Ed News, Legal Education | Permalink

A New Feudalism: Selfish Genes, Great Wealth And The Rise Of The Dynastic Family Trust

Eric A. Kades (William & Mary; Google Scholar), A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust:

Today’s record levels of economic inequality are infecting our future as the top 0.01% bequest vast wealth to their descendants. With the death of the Rule Against Perpetuities (RAP), this inequality has the potential to harden social class lines not just for a generation or two but forever. Although it may sound implausible, interviews with estate lawyers serving very high net worth clients reveal that some of the wealthiest tier of testators are already exploiting the RAP’s elimination, along with a tax loophole, to establish dynasty trusts that will financially empower their bloodline as long as it continues. Evolutionary biologists will not be surprised by this finding. Recent work in their field shows a universal and powerful human drive for high status descendants — a drive for “quality” progeny so powerful that it appears to trump the usual desire to maximize quantity of offspring. Coupled with the long history of dynastic family wealth in England, this science suggests that today’s wealthiest testators will utilize powerful modern legal institutions (e.g. well-developed laws of contract and trust; deep and efficient capital markets) to forge a new sort of trust that I dub a Dynastic Family Trusts (DFT). These DFTs will be larded with innovative provisions leveraging a founder’s wealth to maximize descendants’ status for generation after generation.

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April 13, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

The Future Of Tenure

Chronicle of Higher Education, The Future of Tenure: Rethinking a Beleaguered Institution

Tenure in the American university system is a lot of things, and they are not always easy to reconcile. It is a form of job protection, one that differs fundamentally from the protections offered by unionization. It is a safeguard for the freedom of academic inquiry — related to but not identical with a larger and peculiarly American commitment to free speech. (At public universities, tenure is part of the armor protecting faculty members for controversial political speech, even when that speech is unconnected to their teaching or research.) And it is a professional prize, a badge of authority, in the university’s hyper-hierarchical symbolic economy.

It is also disappearing. In 1993-94, more than half, or 56.2 percent of faculty members at institutions with a tenure system had tenure. By 2018-19, that number had fallen to 45.1 percent. These declines are driven in part by declines in the percentage of full-time faculty across the university. In 1970-71, almost 80 percent of faculty members were full-time. By 2018-19, that number was under 55 percent.

To politicians, especially red-state politicians at a time when trust in universities among the public is very low, tenure is an easy target. “What other job in the U.S. has protections like that?” as State Sen. Rick Brattin, a Missouri Republican, put it. “If you looked around, you’d come up short.” Meanwhile, an evaporating academic job market and rising adjunctification have severely diminished the ranks of tenure’s potential stakeholders. As Ed Burmila asked last summer in these pages, “Are there enough academic workers with a stake in the tenure system left to defend it?”

With the help of Carolyn Dever, a professor of English and a former provost at Dartmouth College, and George Justice, a professor of English and former dean of the humanities at Arizona State University, we’ve gathered 12 scholars from across fields to address hard questions about the future of tenure. Besides these 12 new pieces, we’ve also included four previously published essays on tenure and its maladies. Our authors don’t always agree with one another — but no discussion of the future of tenure can afford to ignore them.

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April 13, 2021 in Legal Ed News, Legal Education | Permalink

Congress — And Biden — Can Raise Taxes Retroactively

Washington Post op-ed:  Congress — and Biden — Can Raise Taxes Retroactively If They Want To, by David Herzig (E&Y):

Tax increases seem to appear on the horizon. Recently, the Biden administration proposed raising the corporate income tax to 28 percent, among other tax increases, to pay for a $2 trillion infrastructure plan. Depending on where the economy is in the fall, President Biden and the Democratic-controlled House and Senate may advance an agenda heavy on other policy initiatives, such as addressing climate change and reforming the Affordable Care Act. These plans are also likely to be paid for with increased taxes. In recent interviews, Treasury Secretary Janet Yellen and Mark Mazur, a tax policy official, said that Treasury should be thinking broadly about revenue-raising policies to pay for Biden’s campaign proposals.

As lawmakers consider the magnitude of tax increases, taxpayers may wonder whether those increases will be retroactive not only to the date of the bill’s introduction, but to the beginning of 2021. This is an important and interesting question: Can tax legislative increases be retroactive?

Under conventional wisdom, the answer is no. Taxpayers should be able to rely on the existing rules; otherwise, the government’s pursuit of short-term revenue could create a sense of unfairness and animosity toward the system.

In reality, however, the answer is yes. Tax increases can be retroactive, and not just to the current year.

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April 13, 2021 in Tax, Tax News | Permalink

Monday, April 12, 2021

Alstott Delivers Pugh Lecture Today At San Diego On Child Care Reform After The Pandemic

Anne Alstott (Yale) delivers the annual Richard Crawford Pugh Lecture on Tax Law & Policy at San Diego today on Child Care Reform After the Pandemic: Towards a Public Option:


This lecture will build on the work that Ganesh Sitaraman (Vanderbilt) and I do in our book, The Public Option: How to Expand Freedom, Increase Opportunity, and Promote Equality (Harvard University Press 2019), to make four points:

First, child care should not be understood as a private responsibility, one to be met by market purchases by individual parents. Instead, we should frame child care as an important public investment – as we do in the case of public education and public utilities.

Second, we should recognize that the economics of child care doom the market model to failure: by treating child care as a consumer product, like Doritos or air freshener, we guarantee the trifecta of high cost, low quality, and poor working conditions. And tax-based subsidies cannot effectively cure these defects.

Third, there are existing models for a public option in child care, and many states, localities, and nonprofits have begun to take measures that we could extend. A public option has been proved to provide affordable care, verifiable quality, and sound working conditions.

Fourth, a public option will help us weather a future pandemic or public emergency, for reasons of high quality and public accountability.

Previous Richard Crawford Pugh Lectures on Tax Law & Policy:

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April 12, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Halperin: No Basis Step-Up For Marketable Securities With No Tax At Death

Daniel I. Halperin (Harvard), No Basis Step-Up for Marketable Securities With No Tax at Death, 170 Tax Notes Fed. 1709 (Mar. 15, 2021):

Tax Notes Federal (2020)In this article, Halperin proposes an innovative way to achieve realization, without any added tax burden at gift, death, or sale: collecting an equivalent tax in present value during the period the asset is held.

The Biden administration has indicated that it would end the egregious step-up in basis at death under section 1014. The step-up, combined with lack of gain recognition on property transferred to charities, allows wealthy households to escape taxation on a substantial percentage of their income. Importantly, measuring effective tax rates, without adding unrealized gains to the denominator, significantly understates the actual effective tax burden on those who hold appreciated assets until death or transfer them to charity to avoid tax on gains. In fact, those who have great wealth may have little or no reason to sell appreciated property. Risk can be mitigated by a charitable gift, a like-kind exchange for real estate, or the creation of an offsetting position that falls short of triggering a constructive sale. It is long past time to eliminate this enormous tax loophole.

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April 12, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Loneliness In COVID-19, Life, And The Law

Olivia Ash (Indiana) & Peter H. Huang (Colorado), Loneliness in COVID-19, Life, and the Law (111 pages):

This Article analyzes loneliness in the COVID-19 pandemic, life, and the legal profession, especially in legal education. This Article examines: (1) loneliness: what it is, who is lonely, how loneliness affects an individual, and recent evidence about experiences of loneliness in the COVID-19 pandemic; (2) personal, organizational, and societal costs of loneliness; (3) current research about well-being and loneliness in the legal profession and legal education; (4) results from the first loneliness survey of law students; and (5) three evidence-based interventions to mitigate loneliness: mindfulness, talk therapy (cognitive behavioral therapy), and inclusion.

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April 12, 2021 in Legal Ed Scholarship, Legal Education | Permalink

The Lesson From Johns Hopkins' Reversed Suspension Of Employee Retirement Contributions During COVID-19: Faculty Should Use Forensic Audits To Expose Faux Austerity

Chronicle of Higher Education op-ed:  The Era of Artificial Scarcity, by François Furstenberg (Johns Hopkins University):

Johns HopkinsAdministrators have rushed to embrace austerity measures. The faculty should call their bluff.

When does a $5,000 investment pay off with a $100-million return? No, this is not a tale of Wall Street chicanery or Reddit-inspired investing. Rather, it is a story of rank-and-file university employees mobilizing to defend their vision of university governance — and winning big.

Our story begins a year ago, just a month into the pandemic, when the Johns Hopkins University President Ronald Daniels announced a set of “decisive austerity measures” in the face of anticipated revenue declines. These included layoffs, salary freezes, and a suspension of employee retirement contributions.

In a global pandemic that has killed over half a million Americans and confronted untold numbers with economic catastrophe, the travails of one elite university may not seem of great concern. Indeed, given the hardship the pandemic has wreaked on the sector, the suspension of retirement benefits at Johns Hopkins might appear downright trivial.

But it’s precisely the wealth of Johns Hopkins that turns this story into a parable. When an institution with almost $2 billion in reserves slashes employees’ benefits in the face of economic uncertainty, one begins to wonder if a set of ideological assumptions might not be at work. ...

Rather than bowing to alleged economic necessity, employees mobilized, questioning the leadership’s dogma, demanding independent verification, and pushing back against dubious assertions. As it turned out, we had a powerful weapon at our disposal, as do faculty members nationwide: a forensic audit.

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April 12, 2021 in Legal Ed News, Legal Education | Permalink

Paving The Way: The First American Women Law Professors

Herma Hill Kay, Paving the Way: The First American Women Law Professors (Patricia A. Cain (Santa Clara), ed. University of California Press 2021):

Paving the WayThe first wave of trailblazing female law professors and the stage they set for American democracy.

When it comes to breaking down barriers for women in the workplace, Ruth Bader Ginsburg’s name speaks volumes for itself—but, as she clarifies in the foreword to this long-awaited book, there are too many trailblazing names we do not know. Herma Hill Kay, former Dean of UC Berkeley School of Law and Ginsburg’s closest professional colleague, wrote Paving the Way to tell the stories of the first fourteen female law professors at ABA- and AALS-accredited law schools in the United States. Kay, who became the fifteenth such professor, labored over the stories of these women in order to provide an essential history of their path for the more than 2,000 women working as law professors today and all of their feminist colleagues.

Because Herma Hill Kay, who died in 2017, was able to obtain so much first-hand information about the fourteen women who preceded her, Paving the Way is filled with details, quiet and loud, of each of their lives and careers from their own perspectives. Kay wraps each story in rich historical context, lest we forget the extraordinarily difficult times in which these women lived. Paving the Way is not just a collection of individual stories of remarkable women but also a well-crafted interweaving of law and society during a historical period when women’s voices were often not heard and sometimes actively muted. The final chapter connects these first fourteen women to the “second wave” of women law professors who achieved tenure-track appointments in the 1960s and 1970s, carrying on the torch and analogous challenges. This is a decidedly feminist project, one that Justice Ruth Bader Ginsburg advocated for tirelessly and admired publicly in the years before her death.

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April 12, 2021 in Book Club, Legal Ed Scholarship, Legal Education | Permalink

Lesson From The Tax Court: The Incoherence Of §6751(b)

Camp (2017)Two recent Tax Court cases show us that while the §6751(b) supervisory approval requirement does apply to a tax penalty mechanically applied by a human employee it does not apply to the same penalty mechanically applied by a computer.  As a result, two similarly situated taxpayers get treated differently.  One gets penalized and the other does not.  It is an understandable result, but not a sensible one.  To me, it shows the incoherence of the statute.

In Andrew Mitchell Berry and Sara Berry v. Commissioner, T.C. Memo, 2021-42 (Apr. 7, 2021), Judge Marvell holds that a §6662(b)(2) understatement penalty is invalid without proper supervisory approval when proposed as a matter of routine in a 30-day letter issued by a Revenue Agent.  In contrast, Anna Elise Walton v. Commissioner, T.C. Memo. 2021-40 (Mar. 30, 2021) (Judge Urda) explains why supervisory approval is not required for the very same penalty if it is first proposed in a computer-generated CP2000 notice, issued without any human involvement.  Both the 30-day letter and the CP2000 notice serve the same function, to encourage the taxpayer to engage with the IRS to ensure the accuracy of their returns.  Yet the penalty proposed in one requires 2 humans to approve and the penalty proposed in the other requires no human approval.

These cases are straightforward applications of the statute.  They are unremarkable in their conclusions that human-proposed penalties need human review but computer-proposed penalties do not.  That is what the statute indeed says.  However, what makes them worth your time is that they demonstrate the strange interaction of penalty statutes and tax administration.  Here we have two equally culpable (or innocent, take your pick!) taxpayers, but only one gets hit with the same mechanically-computed penalty and that solely because of the difference in how the penalties are first proposed.  The difference is between what is routine and what is automatic.  It’s a difference created by how the IRS operates, the language of the statute, and the Tax Court’s interpretation of that statute.  And it’s a difference that makes little sense, at least to me.   I think there is a better distinction to be made.

If you are already a tax penalty jock and know how incoherent the system is, you do not need this lesson.  Otherwise, I invite you to dive into the details below the fold. 

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April 12, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

The Multistate Bar Exam Is Not A Valid Measure Of Attorney Competence

Steven Foster (Oklahoma City), Does the Multistate Bar Exam Validly Measure Attorney Competence?, 82 Ohio St. L.J. ___ (2021):

2020 brought many challenges, which included administering the bar exam. States jumped through numerous obstacles to continue administering the current form of the exam. However, the current bar exam has never been proven to be a valid measure of attorney competence. This article offers evidence the Multistate Bar Exam (MBE), is invalid. The exam, in other words, does not measure the knowledge and skills that lawyers use in practice. On the contrary, it is an artificial barrier to practice—one that harms the public by failing to screen for the knowledge and skills that clients need from their attorneys.

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April 12, 2021 in Legal Ed Scholarship, Legal Education | Permalink

TaxProf Blog Weekend Roundup

Sunday, April 11, 2021

8th Circuit: University Of Iowa Administrators Are Personally Liable For Deregistering Christian Student Group After It Denied Leadership Role To Gay Student

Following up on my previous posts (links below):  Inside Higher Ed, Appeals Court Says Iowa Administrators Are Personally Liable in Lawsuit Brought by Christian Student Group:

Iowa Business Leaders in ChristA federal appeals court ruled Monday that University of Iowa administrators can be held personally liable and sued for damages due to their actions deregistering a Christian student group that denied a leadership position to a gay student. [Business Leaders in Christ v. University of Iowa, No. 19-1696 (8th Cir. Mar. 22, 2021)].

The case involves a student group called Business Leaders in Christ, whose members believe that same-sex relationships are “outside of God’s design.” After the group denied an executive leadership position to a gay student in 2017 on the stated grounds that the student “disagreed with, and would not agree to live by [BLinC’s] religious beliefs,” the university began a process that ultimately led to the revocation of the group’s status.

BLinC sued and, in a 2019 decision that alarmed advocates for LGBTQ+ students, a district court judge held that the university selectively enforced its Human Rights Policy and violated BLinC members’ constitutional rights to free speech, free association and free exercise of religion. The university did not appeal the judge's holding that it infringed on the BLinC members' First Amendment rights.

Rather, at issue in the appeal was whether the three individual Iowa administrators named as defendants could be personally liable and sued for damages, or whether they are shielded by qualified immunity, a legal doctrine that grants government officials immunity from civil lawsuits except in cases where their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”

In a decision that hinged on an assessment of whether the rights at issue were “clearly established,” the U.S. Court of Appeals for the Eighth Circuit partially reversed the ruling of the district court, which had granted the administrators qualified immunity [Business Leaders in Christ v. University of Iowa, No. 19-1696 (8th Cir. Mar. 22, 2021)]. The appeals court held that the administrators can be held personally liable in relation to the students’ free expression and expressive association claims, but not in relation to claims related to free exercise of religion.

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April 11, 2021 in Legal Ed News, Legal Education, New Cases | Permalink

David French: 'Legal Cannonball' Lawsuit By Dozens Of LGBTQ Christian College Students Has 'No Real Chance Of Success'

Washington Post, Dozens of LGBTQ Students at Christian Colleges Sue the U.S. Education Dept., Hoping to Pressure Equality Act Negotiations:

Elizabeth Hunter says she became suicidal after Bob Jones University administrators grilled the former student about her sexuality for tweeting “happy Pride” and writing a book with lesbian characters. She was fined, sent to anti-gay counseling and removed from her job at the campus TV station. Veronica Penales says she’s told officials at Baylor University, where she is a sophomore, that people leave anti-gay notes on her door, but they don’t investigate. Lucas Wilson said he graduated from Liberty University with “a profound sense of shame” after being encouraged to go to conversion therapy.

The three are among 33 current and past students at federally funded Christian colleges and universities cited in a federal lawsuit filed Monday against the U.S. Department of Education. The suit says the religious exemption the schools are given that allow them to have discriminatory policies is unconstitutional because they receive government funding. The class-action suit, filed by the nonprofit Religious Exemption Accountability Project, references 25 schools across the country.

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April 11, 2021 in Legal Education | Permalink

He's A Famous Evangelical Preacher, But His Kids Wish He’d Pipe Down


New York Times op-ed:  He’s a Famous Evangelical Preacher, but His Kids Wish He’d Pipe Down, by Nicholas Kristof:

The Rev. Rick Joyner is a famous evangelical leader who has called on Christians to arm themselves for an inevitable civil war against liberals, whom he suggests are allies of the devil.

But this is the awkward part: His five children would be on the other side of that civil war, as he and his kids all acknowledge. Just as America is torn asunder by politics and polarization, so is the Joyner family. The Joyners love each other, are there for each other — and despair for each other.

“He talks about Democrats being evil, forgetting that all five of his kids vote Democratic,” said his eldest, Anna Jane Joyner, 36, a climate change activist and podcast host (her father has suggested that climate change is a Communist conspiracy). “Who is he asking his followers to take up arms against? Liberal activists? That’s me.”

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April 11, 2021 in Legal Education | Permalink

The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #4 and #5. The #1 paper is #231 among 15,897 tax papers in all-time downloads:

  1. SSRN Logo (2018) [1,412 Downloads]  The Impact of Public Perceptions on General Consumption Taxes, by Rita de la Feria (University of Leeds; Google Scholar) & Michael Walpole (University of New South Wales; Google Scholar)
  2. [306 Downloads]  A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development, by Stacy Leeds (Arizona State; Google Scholar) & Lonnie Beard (Arkansas)
  3. [240 Downloads]  Coca-Cola: A Decisive IRS Transfer Pricing Victory, At Last, by Reuven Avi-Yonah (Michigan; Google Scholar) & Gianluca Mazzoni (S.J.D. (International Tax) 2020, Michigan)
  4. [205 Downloads]  Redistribution For Realists, by Zachary Liscow (Yale; Google Scholar)
  5. [169 Downloads]  Tax Treaty Entitlement and Fiscally Transparent Entities: Improvements or Unnecessary Complications?, by Leopoldo Parada (University of Leeds; Google Scholar)

April 11, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, April 10, 2021

This Week's Ten Most Popular TaxProf Blog Posts

Jones Day Nabs NINE U.S. Supreme Court Law Clerks From October Term 2019-20 With $400,000 Bonuses

Jones Day

Jones Day Adds Nine U.S. Supreme Court Clerks From October Term 2019:

The global law firm Jones Day has announced that nine former U.S. Supreme Court clerks from October Term 2019 have joined the Firm as associates in the Firm's Issues & Appeals Practice. Jones Day has recruited 64 U.S. Supreme Court clerks since October Term 2011.

"As we continue to be a leading destination for lawyers who want to work on important, cutting-edge legal issues from the earliest stages of litigation through appeal, we welcome this year's class of clerks, who join five different Jones Day offices," said Traci L. Lovitt, leader of Jones Day's Issues & Appeals Practice. "These talented lawyers have a terrific understanding of case law, and their analytical skills and deep insights into the latest legal developments will be of great value to clients."

The new arrivals, office locations, the Justices for whom they clerked, their law schools [Chicago (2), Duke, Harvard (3), Michigan, Notre Dame, Yale], and prior clerkships are as follows: ...

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April 10, 2021 in Legal Ed News, Legal Education | Permalink

7th Annual Parris Awards At Pepperdine Caruso Law

Congratulations to our student, staff, and faculty winners at Thursday's 7th Annual Parris Awards at Pepperdine Caruso Law:

Parris 1Student Awards

Evan T. Carthen 1L Award
Section A: Tyler Lisea
Section B: Tyra Jenkins
Section C: Susan Posluszny

Excellence in Service
Brynn Barton

Excellence in Professionalism
Gage Eller

Excellence in Peacemaking
Zino Osehobo

Excellence in Courage
Roxanne Swedelson
Sophie Sarchet

Excellence in Leadership
Zachary Carstens
Amy Jicha

Excellence in Character
Alexandra Boutelle

Pepperdine Award
Kelly Shea Delvac

Preceptor Award
Awards are also presented to alumni preceptors, who are paired with first-year students as mentors during their first year of law school

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April 10, 2021 in Legal Ed News, Legal Education | Permalink

Dorothy Brown: College Exacerbates The Racial Wealth Gap

Washington Post op-ed:  College Isn’t the Solution for the Racial Wealth Gap. It’s Part of the Problem, by Dorothy Brown (Emory):

Higher education is supposedly the ticket to a better future, and it usually translates to a larger salary regardless of race, according to a 2011 study from the Georgetown University Center on Education and the Workforce. But college does not pay off for Black students the way it does for White students. At virtually every step — from taking out loans to facing a racist job market to dealing with repayment plans — Black students and their families have disadvantages. As a result, the Black-White wealth gap widens.

Black college graduates have higher debt loads, on average, than White college graduates. Black debt rises over time, White debt diminishes. Upon graduation, the average Black graduate owes $23,400 vs. the White graduate’s $16,000, according to the Brookings Institution. Four years later, the gap triples. Even at the top end of the income spec­trum, Black students have higher student loans ($4,643, on average) than White students ($3,835), and Black parents take out larger loans to help pay for college ($3,303 vs. $1,903).

What accounts for that difference? First, it’s the schools students attend. Wealthier colleges, which can afford to award financial aid and scholarships, disproportionately admit White students: White students are almost five times as likely to go to a selective university than Black students, even when controlling for income. Meanwhile, a higher share (12 percent) of Black students attend for-profit colleges than very selective universities (9 percent), because online and part-time features allow them to work while getting their degrees. These schools usually do not award any financial aid and are in effect extremely expensive, given their low graduation rates

Another factor is the wealth disparity between Black and White families. Black college students are less likely than their White peers to receive tax-free gifts from their parents and grandparents. ...

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April 10, 2021 in Tax, Tax News | Permalink

U.S. Department Of Education Terminates Florida Coastal Law School's Eligibility For Federal Student Loans; ABA Demands Teach-Out Plan

Statement of William E. Adams, Jr., Managing Director, ABA Section of Legal Education and Admissions to the Bar Regarding Florida Coastal School of Law:

Florida Coastal (2017)On April 2, 2021, the ABA Section of Legal Education and Admissions to the Bar was informed of the U.S. Department of Education’s decision to end access to federal student financial aid for Florida Coastal School of Law effective April 1, 2021. While the Department of Education's action could have a bearing on the law school's ability to operate in compliance with the ABA Standards, Florida Coastal School of Law remains an ABA-approved law school. Under the ABA Standards and Rules of Procedure for Approval of Law Schools, formal Council action is required to withdraw a law school’s approval. The process for the law school to qualify for and maintain its access to federal student financial aid is a U.S. Department of Education process.

In the wake of the Department of Education’s decision, the ABA has directed Florida Coastal School of Law to file a teach-out plan.

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April 10, 2021 in Legal Ed News, Legal Education | Permalink

Friday, April 9, 2021

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Measuring And Valuing Wealth For Federal Wealth Tax Reform

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews David Gamage (Indiana; Google Scholar), Ari Glogower (Ohio State; Google Scholar) and Kitty Richards (Independent), How to Measure and Value Wealth for a Federal Wealth Tax Reform, Roosevelt Inst. Issue Brief (2021):   

Mirit-Cohen (2018)

One of the most debated topic in the last decade is wealth inequality and the unequal distribution of assets among individuals in the U.S.. Wealth distribution becomes even more skewed when race and ethnicity are involved with (not surprisingly) a staggering racial wealth gap.

Recent proposals to reduce the wealth gap (such as those proposed by Senators Warren and Sanders) encountered the hurdle that fails to succeed any tax reform—overcoming valuation issues.  Our current income tax system is cash realization–based and thus mostly takes a deferral-based approach to valuation of wealth accumulation, which makes valuation of wealth rather challenging. If we truly want to make a progress on narrowing the income inequality gap and tax income and wealth of the highest income taxpayers in our society, we have to find efficient ways to overcome assessment difficulties, namely how to measure and value taxpayers’ wealth. This report—published under the auspices of the Roosevelt Institute, a think tank of experts on the American economy—is a practical attempt by Gamage, Glogower, and Richards to do just that.  

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April 9, 2021 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Tax Policy In The Biden Administration

Weekly Legal Education Roundup

Next Week's Virtual Tax Workshops

Monday, April 12: Anne Alstott (Yale) will deliver the annual Richard Crawford Pugh Lecture on Tax Law & Policy at San Diego on Child Care Reform After the Pandemic: Towards a Public Option. If you would like to attend, please contact San Diego Law Events.

Thursday, April 15: Allison Christians (McGill; Google Scholar) will present The Case for a Sustainable Excess Profits Tax (with Tarcisio Diniz Magalhaes (Antwerp)) virtually at Indiana as part of its Tax Policy Colloquium Series. If you would like to attend, please contact Leandra Lederman.

Thursday, April 15: Daniel Hemel (Chicago; Google Scholar) will present Law and the New Dynamic Public Finance virtually at Duke as part of its Tax Policy Workshop Series. If you would like to attend, please contact  Richard Schmalbeck or Lawrence Zelenak.

Friday, April 16: Ronald J. Gilson (Columbia; Google Scholar) will present Value Creation by Business Lawyers: Legal Skills and Asset Pricing (with Michael S. Knoll (Penn) commentating) virtually at the Oxford-Virginia Legal Dialogs: Tax Meets Non-Tax Series. If you would like to attend, please contact Tsilly Dagan or Ruth Mason.

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April 9, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

2022 U.S. News Omnibus Specialty Rankings v. Overall Rankings

Following up on yesterday's post, 2022 U.S. News Omnibus Specialty Rankings:

Here are the law schools whose U.S. News Omnibus Specialty Ranking most exceeds their overall U.S. News Ranking:

  School Specialty Rank Overall Rank Difference
1 American 22 81 +59
2 Suffolk 75 129 +54
2 UIC-John Marshall 93 147 +54
4 Seattle 74 126 +52
5 Rutgers 46 91 +45
6 Denver 34 78 +44
7 Pace 97 139 +42
8 Pacific 100 141 +41
8 Santa Clara 85 126 +41
10 Mitchell-Hamline 107 147 +40
11 Loyola-New Orleans 105 144 +39
12 Hofstra 81 119 +38
13 Baltimore 94 129 +35
14 Brooklyn 49 81 +32
14 UC-Hastings 18 50 +32
16 San Diego 57 86 +29
17 Loyola-Chicago 50 78 +28
18 Houston 33 60 +27
18 Loyola-L.A. 45 72 +27
20 Chicago-Kent 66 91 +25
20 Miami 47 72 +25
22 New York Law School 95 119 +24
22 San Francisco 123 147 +24
24 Georgia State 55 78 +23
24 Howard 68 91 +23
24 Indiana (McKinney) 88 111 +23
27 Syracuse 80 102 +22
28 DePaul 90 111 +21
28 Ohio State 19 40 +21
28 South Texas 126 147 +21
28 UC-Irvine 14 35 +21
32 Widener (DE) 127 147 +20
33 Stetson 92 111 +19
33 Tulane 41 60 +19
33 Vermont 128 147 +19
33 Univ. of Washington 26 45 +19
37 George Washington 9 27 +18
38 Temple 36 53 +17
39 Southwestern 131 147 +16
40 Case Western 58 72 +14
40 Fordham 21 35 +14
40 Georgetown 1 15 +14
40 South Carolina 82 96 +14
44 Willamette 135 147 +12
45 Golden Gate 136 147 +11
45 Gonzaga 118 129 +11
45 Maryland 39 50 +11
48 Quinnipiac 119 129 +10
49 Widener (PA) 138 147 +9
50 UNLV 52 60 +8

Here are the law schools whose U.S. News Omnibus Specialty Ranking most trails their overall U.S. News Ranking:

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April 9, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

24th Annual Critical Tax Theory Conference At UC-Irvine

UC-Irvine hosts the 24th Annual Critical Tax Theory Conference (program):

UCI_Law_1lineblue_logoThe Critical Tax Theory Conference has a long history of fostering the work of both established and emerging scholars whose research challenges and enriches the tax law and policy literature. Critical tax scholars question assumptions of objectivity in tax, as their work explores how tax law and policy impact historically marginalized groups. At a time when tax policy is once again at the forefront of politics and public discourse, the work of these and other critical tax scholars supports a more robust discussion of the role for tax law in current and future social and economic policy.

Panel #1: 

  • Leslie Book (Villanova), Keith Fogg (Harvard) & Nina E. Olson (Center for Taxpayer Rights), Administrative Burdens, Sludge, and Individual Taxpayer Rights
  • Michelle Layser (Illinois), Subsidizing Gentrification: A Spatial Analysis Of Place-Based Tax Incentives
  • Nancy Shurtz (Oregon) & Esther Sherman, When We Breathe: Reinventing the EITC for a More Just and Caring World
  • Moderator:  Mirit Eyal-Cohen (Alabama) 
  • Commentators:   Joshua Blank (UC-Irvine) & Christine Kim (Utah) 

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April 9, 2021 in Conferences, Scholarship, Tax, Tax Conferences, Tax Workshops | Permalink

LSAC: Law School Policies And Practices — Justice-Impacted Individuals

Elizabeth Bodamer & Debra Langer (LSAC), Justice-Impacted Individuals in the Pipeline: A National Exploration of Law School Policies and Practices:

Approximately one in three adults in the United States has some form of criminal record—similar to the ratio of adults with 4-year college degrees in the U.S. (Friedman, 2015). The wide reach of the criminal justice system, including police contacts, arrests, and incarcerations, is heavily concentrated in poor communities and communities of color. Therefore, it is important to examine barriers specific to justice-impacted individuals throughout the application, enrollment, and educational experience in order to ensure that policies and practices do not unintentionally serve as mechanisms of exclusion that disproportionally impact applicants of color and low-income applicants.

The Law School Admission Council (LSAC), in collaboration with the National Justice Impact Bar Association (NJIBA), developed and administered the 2020 Justice Impact Law School Survey to explore policies and procedures that specifically affect law schools' justice-impacted applicants and students, focusing on policies, practices, and services during the 2019-2020 academic year. Eighty-five schools from across all geographic regions of the U.S. completed some or all of the survey. The results from the survey provide an overview of current law school practices related to (a) recruitment and admission; (b) applicants, admission, and enrollment; (c) application review procedures; (d) student information and services, (e) employees and training; and (f) policies. The purpose of this report is to initiate a conversation about justice-impacted individuals as part of LSAC’s mission to promote equity in access to legal education and to support diversity, equity, and inclusion (DEI) efforts.

Key Survey Results

  • Only 2 of 85 responding schools reported intentionally recruiting students who were justice-impacted.
  • The majority of schools indicated that they require applicants to disclose felony convictions, misdemeanor convictions, felony charges, misdemeanor charges, arrests, juvenile convictions, juvenile charges, and juvenile


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April 9, 2021 in Legal Ed News, Legal Education | Permalink

Gender Equality, Taxation, And The COVID-19 Recovery

Yvette Lind (Copenhagen Business School; Google Scholar) & Åsa Gunnarsson (University of Umea), Gender Equality, Taxation, and the COVID-19 Recovery: A Study of Sweden and Denmark, 101 Tax Notes Int'l 581 (Feb. 1, 2021):

Tax Notes Int'lThe impact of COVID-19 is at the moment undeniably extensive as the world faces the most severe recession in nearly a century. Economic emergency programs, the design and implementation of COVID-19 tax policies and subsequent state aid actions have been launched in many countries to mitigate the impact of the pandemic. Women have, in comparison to men, also reduced their hours of work to care for, and home school, children. Aggregating already existing problems associated to both the loss of paid work hours and to the gender-segregated allocation of unpaid hours for household work and caring. The sudden closure of childcare programs and schools in many countries has had a crucial impact for women whose labour force participation depends on these institutions. The possibility of several waves of the virus that could trigger additional childcare closures make it extremely likely that married women (in general when considering the current norm of heterosexual couples) in particular may be slower to re-enter the work force in the hope of protecting the (single-breadwinner) family income.

The ambition with this paper is to tackle the complexity of both new and old societal challenges for the realization of gender equality obligations through tax provisions and tax policies at the national level.

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April 9, 2021 in Legal Education, Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Thursday, April 8, 2021

Things They Don't Teach You In Dean School

I was ending a meeting with an alum in my yard and the development officer was taking our photo. We heard a rattle and thought it was the sprinklers coming on. Wrong:


April 8, 2021 in Legal Education | Permalink

Biden's Made In America Tax Plan

Cain: The Unfairness Of The Marriage Tax Penalty

Pat Cain (Santa Clara), The Unfairness of the Marriage Tax Penalty:

Wisconsin Republican U.S. Representative Glenn Grothman recently criticized the Covid-19 relief bill by pointing to the marriage penalty that is embedded in the earned income tax credit, the EITC. He then inexplicably used the penalty in the Democratic-backed bill to take a swipe at the Black Lives Matter movement, claiming they did not honor the traditional married family. Representative Grothman is just wrong about the BLM point. The group seeks to value all families, and there are many in all of our communities that do not fit the traditional married family model. On the other hand Representative Grothman is absolutely correct about the problem of the marriage penalty in our tax code.

Still, it doesn’t seem fair to lay the blame at the feet of the Democrats or attribute the problem to the Covid-19 relief bill, as though that is the law that created the problem. The marriage penalty has been lurking throughout the Internal Revenue Code for some time. Both Democrat and Republican administrations have contributed to the problem. Both parties have, at times, taken a stab at reducing the problem. But so far no one has succeeded. ...

How to Remedy the Marriage Penalty Problem

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April 8, 2021 in Tax | Permalink

Legal Education Needs A Wellness Reckoning

Bloomberg Law op-ed:  Legal Education Needs a Wellness Reckoning, by Janet Thompson Jackson (Washburn):

No one goes to law school with the expectation that their mental health and overall well-being will be significantly compromised during those three years. But, for a substantial number of law students, it is. It does not have to be this way.

Bloomberg Law

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April 8, 2021 in Legal Ed News, Legal Education | Permalink

A ‘Bank Run’ At Notre Dame Law School

Update:  Karen Sloan (, A 'Thunderdome' Competition? Admitted Students Got Shut Out at This Law School Amid Deposit Frenzy

Inside Higher Ed, A ‘Bank Run’ at Notre Dame Law:

Notre Dame Law (2020)It was a banner year for law school applications. The number of applicants this year was up about 21 percent compared to last year, according to the Law School Admissions Council. Total applications were up 32 percent.

An increase that big can be tricky for an admissions department. Now, at least one law school has overadmitted its incoming class.

Admitted applicants to University of Notre Dame Law School were told upon acceptance that there were no reserved spaces for students. The deadline was April 15, but if the university received its maximum number of $600 deposits, the rest of the admitted students would be waitlisted.

On Tuesday, a few minutes before 11 a.m. Eastern time, Notre Dame sent those admitted students an email. Two-thirds of the seats had been claimed by deposits, a benchmark usually reached two to three days before the deadline. The email said Notre Dame would send another note when 80 percent of seats were reserved, and two more emails when 90 and 100 percent of seats were claimed.

Five hours later, 80 percent of spots were taken, Notre Dame told admits. One hour after that, at 5 p.m., Notre Dame told applicants there was no more time.

“We have now reached our target number of deposits,” the email said. “We have turned off our deposit forms to ensure that we do not overenroll.”

The incident, first reported in Above the Law, a website for legal news, has shaken prospective law students. Applicants who were waiting on offers from other schools, who weren’t checking their email or who couldn’t come up with $600 quickly saw their chance to attend Notre Dame Law School vanish, despite the fact that they were admitted. ...

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April 8, 2021 in Legal Ed News, Legal Education | Permalink

2022 U.S. News Omnibus Specialty Rankings

6a00d8341c4eab53ef0240a490199b200b-250wiThe new 2022 U.S. News Specialty Rankings include the rankings for 13 specialty programs at 193 law schools. Here are the Top 100 law schools, determined by giving equal weight to each of the 13 separate specialty rankings:

  1. Business/Corporate Law
  2. Clinical Law
  3. Constitutional Law
  4. Contracts/Commercial Law
  5. Criminal Law
  6. Dispute Resolution 
  7. Environmental Law
  8. Health Care Law
  9. Intellectual Property Law
  10. International Law
  11. Legal Writing
  12. Tax Law
  13. Trial Advocacy

  School 1 2 3 4 5 6 7 8 9 10 11 12 13 Avg.
1 Georgetown 12 1 9 11 7 24 7 7 13 5 9 3 15 9.5
2 Stanford 3 15 3 5 4 13 10 7 1 10 114 11 42 18.3
3 NYU 3 4 3 7 1 32 4 45 3 1 68 1 67 18.4
4 Michigan 9 6 13 7 10 32 37 23 15 6 9 8 67 18.6
5 Northwestern 12 9 15 13 13 7 44 37 19 26 25 4 21 18.8
6 Harvard 1 24 1 2 2 1 7 7 19 2 159 8 30 20.2
7 UC-Berkeley 3 9 6 7 2 32 1 45 1 6 121 23 17 21.0
8 UCLA 8 24 9 13 10 32 4 32 19 14 100 8 7 21.5
9 George Washington 22 24 27 26 27 24 10 20 4 6 34 28 54 23.5
10 Duke 12 50 9 13 13 52 16 23 15 10 34 16 67 25.4
11 Virginia 9 56 8 7 4 32 30 41 19 10 80 4 61 27.8
12 Texas 17 40 9 11 17 19 30 29 26 18 68 16 67 28.2
13 Penn 3 32 15 5 7 32 48 20 13 14 68 21 105 29.5
14 UC-Irvine 44 6 20 34 27 24 32 37 19 22 9 6 105 29.6
15 Washington Univ. 25 9 20 23 30 19 48 29 44 22 80 28 19 30.5
16 Columbia 2 22 6 1 7 15 7 45 15 3 159 11 105 30.6
17 Yale 9 4 1 4 4 32 20 15 52 3 154 14 90 30.9
18 UC-Hastings 28 19 33 34 30 8 24 13 30 26 121 16 21 31.0
19 Ohio State 44 56 27 18 13 2 65 18 44 49 25 34 54 34.5
20 Boston Univ. 19 40 24 26 23 63 57 4 12 32 68 16 67 34.7
21 Fordham 18 19 33 23 18 17 65 77 19 18 100 39 8 34.9
22 American 70 3 52 56 23 63 37 11 8 6 61 53 12 35.0
23 Arizona State 48 56 35 45 30 13 20 16 71 32 3 28 67 35.7
24 Minnesota 19 32 27 18 18 48 24 20 38 29 46 25 124 36.0
25 Vanderbilt 12 40 17 17 13 32 15 32 26 22 121 39 105 37.8
26 Univ. of Washington 48 32 46 26 36 19 34 41 15 39 41 34 105 39.7
27 Boston College 36 24 35 34 50 41 24 41 33 35 46 14 105 39.8
28 North Carolina 28 50 20 18 18 77 37 37 52 58 9 25 90 39.9
29 Chicago 7 40 3 2 10 63 73 45 38 18 159 6 79 41.8
30 Cornell 16 50 13 13 22 45 65 77 38 13 61 28 105 42.0
31 William & Mary 36 74 18 26 18 52 57 66 52 29 46 53 42 43.8
32 UC-Davis 22 90 18 26 23 24 24 57 44 26 132 27 61 44.2
33 Houston 52 90 67 45 61 52 20 5 8 43 46 53 42 44.9
34 Denver 64 9 71 56 36 41 24 83 63 58 9 60 12 45.1
35 Emory 22 107 24 22 40 112 48 23 38 32 46 34 42 45.4
36 Temple 52 74 60 53 61 63 90 18 63 16 7 39 1 45.9
37 Georgia 28 24 35 41 40 87 82 41 75 18 68 39 30 46.8
38 Florida 28 90 46 34 50 24 20 57 52 49 121 2 42 47.3
39 Maryland 52 9 41 56 50 15 16 7 97 68 114 73 30 48.3
40 USC 19 79 27 23 40 24 65 45 63 49 68 23 105 48.5
41 Tulane 36 32 46 34 50 52 18 71 63 39 80 47 67 48.8
42 Arizona 52 64 35 56 40 77 32 45 75 35 21 60 67 50.7
43 Indiana (Maurer) 25 79 52 26 40 77 37 57 26 35 68 16 124 50.9
44 Wisconsin 36 56 27 26 30 41 42 45 85 35 100 53 90 51.2
45 Loyola-L.A. 52 99 60 62 36 48 90 57 30 92 46 11 4 52.8
46 Rutgers 64 15 52 68 60 52 73 37 85 49 9 85 42 53.2
47 Miami 48 24 46 56 50 102 48 77 63 29 80 28 42 53.3
48 Colorado 44 79 46 45 36 77 10 66 33 62 80 39 79 53.5
49 Brooklyn 36 24 41 34 27 87 121 71 75 49 34 60 42 53.9
50 Loyola-Chicago 60 74 67 79 81 45 111 3 44 68 25 47 15 55.3
51 Notre Dame 28 74 24 41 66 112 48 83 33 22 100 47 42 55.4
52 UNLV 73 40 67 45 66 5 73 32 71 110 1 60 79 55.5
53 Texas A&M 64 32 76 62 97 8 34 83 7 68 25 73 124 57.9
54 Wake Forest 52 107 52 41 30 112 48 27 102 86 5 68 28 58.3
55 Georgia State 60 40 46 68 66 95 82 1 63 92 100 39 24 59.7
56 Utah 44 64 60 53 30 112 10 32 33 58 80 60 142 59.8
57 San Diego 28 135 20 45 40 112 65 57 19 43 144 21 54 60.2
58 Case Western 78 56 52 74 77 77 57 11 52 16 80 95 67 60.9
59 Cardozo 64 40 41 45 23 8 127 83 10 49 132 68 105 61.2
60 Northeastern 89 22 83 109 50 63 90 5 38 78 25 114 42 62.2
61 Washington & Lee 36 64 60 34 50 52 90 45 85 39 100 34 124 62.5
62 Illinois 28 107 35 18 40 95 82 71 38 62 100 53 90 63.0
63 Alabama 60 50 27 26 40 87 65 71 114 78 132 39 36 63.5
64 Florida State 52 135 41 45 40 77 18 83 75 43 132 28 61 63.8
65 Iowa 28 90 35 41 40 112 121 66 52 43 46 47 124 65.0
66 Chicago-Kent 78 120 52 68 81 63 90 57 10 92 46 85 4 65.1
67 SMU 60 64 76 68 50 102 90 45 44 49 138 53 42 67.8
68 Howard 73 32 52 62 50 95 104 110 52 86 41 95 30 67.8
69 BYU 36 120 60 56 72 95 57 108 44 62 80 47 67 69.5
70 Seton Hall 78 56 71 79 77 87 82 13 90 78 61 60 90 70.9
71 Pittsburgh 78 99 71 62 61 112 90 29 44 43 68 47 124 71.4
72 Richmond 52 129 52 68 50 77 57 77 44 68 68 68 124 71.8
73 St. John's 78 90 67 87 61 24 136 71 75 68 46 114 30 72.8
74 Seattle 73 24 89 87 97 112 48 110 63 86 7 95 90 75.5
75 Suffolk 125 15 121 109 108 32 104 45 52 104 4 141 24 75.7
76 Villanova 70 64 76 68 91 112 90 110 52 92 41 34 90 76.2
77 Connecticut 64 90 60 62 66 102 73 45 90 58 80 68 142 76.9
78 Pepperdine Caruso 64 64 60 74 113 3 136 136 97 49 132 39 36 77.2
79 Tennessee 25 19 83 53 72 112 111 83 114 110 41 77 105 77.3
80 Syracuse 96 90 76 94 81 102 90 83 75 68 61 95 11 78.6
81 Hofstra 89 74 83 101 72 63 127 96 90 86 46 82 21 79.2
82 South Carolina 78 50 110 87 72 112 44 71 121 104 100 53 30 79.4
83 Oregon 78 120 76 62 81 12 10 182 121 68 1 60 162 79.5
84 Drexel 78 64 89 94 108 52 147 32 97 110 21 129 12 79.5
85 Santa Clara 89 107 89 79 81 77 111 123 4 39 100 68 90 81.3
86 Lewis & Clark 111 90 89 101 97 52 1 123 75 68 21 114 124 82.0
87 Michigan State 70 79 71 79 81 87 100 123 52 78 121 82 54 82.8
88 Indiana (McKinney) 89 129 89 79 97 112 82 16 102 68 16 77 124 83.1
89 St. Louis 96 56 83 74 97 112 136 2 90 100 80 77 90 84.1
90 DePaul 89 107 103 109 91 110 151 23 30 100 41 82 61 84.4
91 George Mason 36 129 41 45 81 100 136 108 26 78 159 73 90 84.8
92 Stetson 117 107 103 94 81 24 73 143 151 121 5 95 2 85.8
93 UIC-John Marshall 135 50 143 109 127 41 147 96 33 78 16 129 24 86.8
94 Baltimore 125 15 83 131 66 48 104 123 97 78 46 85 162 89.5
95 New York Law School 105 64 89 131 81 63 127 123 85 68 46 108 79 89.9
96 CUNY 117 1 103 109 61 77 57 104 137 104 46 187 67 90.0
97 Pace 125 79 121 131 113 63 1 83 137 78 144 77 24 90.5
97 SUNY-Buffalo 89 79 89 101 72 112 82 96 102 92 100 108 54 90.5
99 Penn State-Dickinson 96 79 103 94 97 87 82 66 109 62 80 108 124 91.3
100 Pacific 117 135 131 109 127 48 57 143 109 43 21 141 8 91.5

If anyone at a law school outside the Top 100 would like the data for their school's rank, email me.

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April 8, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

AI For Tax Analogies And Code Renumbering

Andrew Blair-Stanek (Maryland; Google Scholar) & Benjamin Van Durme (Johns Hopkins; Google Scholar), AI for Tax Analogies and Code Renumbering, 170 Tax Notes Fed. 1997 (Mar. 29, 2021):

Tax Notes Federal (2020)Blair-Stanek and Van Durme present an artificial intelligence tool that can complete analogies in tax law and provide evidence-based guidance on how Congress can renumber IRC sections in future tax reform efforts.

We have described two limited applications of AI in tax law, but we and other researchers are pursuing many others. New models with millions of mathematical neurons approximating the neurons in the human brain promise much more power than the model we used here. Moreover, all AI models rely on data; having more data and higher-quality data is always better. The full Tax Analysts Federal Research Library, just released under an agreement between Tax Analysts and Deloitte Tax LLP, contains extensive, very high-quality tax law text. This combination of more powerful models with more and better data is reason for optimism that AI will result in many more tools to aid tax practitioners and policymakers.

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April 8, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

COVID-19 Blew Up The Bar Exam. Even Bigger Changes Are Coming.

Karen Sloan (National Law Journal), COVID-19 Blew Up the Bar Exam. Even Bigger Changes Are Coming.:

The first indication that COVID-19 would upend the bar exam status quo arrived March 22, 2020, in the form of a working paper penned by 11 legal academics and educational policy experts [The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action].

The paper argued that it would be unsafe—if not impossible—to administer the upcoming July bar exam in convention halls with hundreds of law graduates packed together. Instead, the academics urged bar exam authorities to rethink the exam and paths to attorney licensure and swiftly announce alternatives.

Their words proved prescient. One year into the COVID-19 pandemic, the bar exam looks wildly different in most of the country. Examinees log into the exam from their bedrooms, kitchens or wherever they can find some peace and quiet and a strong Internet connection. Facial recognition technology scans their pictures to ensure they are who they claim to be. And their computer cameras and microphones track and record them to ward off cheating.

The sudden shift to online bar exams—more than 30,000 people took the first-ever national remote bar exam in October—is the single biggest shakeup in the history of the attorney licensing test. But it won’t be the last. As bar examiners struggled over the past year to find safe ways to test law graduates, the national organization that designs the test was also finalizing a long-gestating overhaul of the exam’s content and format. If all goes according to plan, the National Conference of Bar Examiners will roll out a vastly different test in 2025 that better integrates the evaluation of legal knowledge with the skills new lawyers need to succeed.

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April 8, 2021 in Legal Ed News, Legal Education | Permalink

Dorothy Brown: ‘The System For Wealth Building Is Designed To Build White Wealth’

New York Magazine, Dorothy Brown: ‘The System for Wealth Building Is Designed to Build White Wealth’:

Whiteness of WealthHow often do you think about your taxes? Once a year, maybe, when it’s time to file, or when you got married, or when you bought a home? If you’re white, taxes are often an inconvenience at worst. The tax code may even benefit you when you get married and start filing a joint return. If you’re Black, says Emory University law professor Dorothy Brown, your story is likely different: The joint return is less likely to reward a marriage with a tax cut when two spouses of equal income work outside the home, something that’s more likely to be true of Black couples. That’s not an accident, she argues in her new book, The Whiteness of Wealth. Well-off, mostly white Americans litigated and lobbied their way into making sure the tax code protects their wealth. Black Americans, who typically lack family wealth, were left out and deliberately held back. They can’t catch up, and that’s the point. The system is working as designed for whom it was designed: white Americans.

In The Whiteness of Wealth, Brown brings the American tax code to life. Hands shape it and wield it like a shield in the defense of the most powerful among us. The tax code tells a story about American priorities. The news isn’t good, Brown writes, but there’s still time to change the future.

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April 8, 2021 in Book Club, Legal Education, Scholarship, Tax, Tax News, Tax Scholarship | Permalink