TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Cravath Fires Latest Shot In Salary War: $400,000 For 7th Year Associates
• Dan Markel's Mother's Search For Justice And Fight For Grandparent Visitation Rights
• ProPublica: Filing Your Taxes For 'Free' Online Is Confusing And Soul-Sucking By Design

Sunday:

• NY Times Op-Ed: Ash Wednesday Forces Us To Confront Death, But It Also Offers Hope
• NY Times Op-Ed: The Meaning Of Lent To This Unchurched Christian
• New Pepperdine Religious Liberty Clinic Asks Supreme Court To Rule For High School Coach Fired For Praying On Football Field After Games
• The Top Five New Tax Papers

NY Times Op-Ed: Ash Wednesday Forces Us To Confront Death, But It Also Offers Hope

New York Times Op-Ed:  Ash Wednesday Forces Us to Confront Death, but It Also Offers Hope, by Tish Harrison Warren (Priest, Anglican Church; Author, Prayer in the Night: For Those Who Work or Watch or Weep (2021) (Christianity Today's 2022 Book of the Year)):

This Wednesday is Ash Wednesday, which begins the Christian penitential season of Lent. On Ash Wednesday, churchgoers usually kneel and our foreheads are marked with ashes in the shape of a cross. An Ash Wednesday service was one of the first liturgical services I ever attended. And it hit me hard. We, the living, gathered to name the fact of death. The priest marked the foreheads of children, even newborn babies. It felt so true and countercultural, and also incredibly sad.

I have since presided over several Ash Wednesday services as a priest, and it still hits me hard. In the service, I tell the members of my congregation, one by one, “Remember that you are dust, and to dust you shall return.” This black mark of death rests on every forehead — the young and old, rich and poor, strong and weak, sick and well. We carry on our body a recollection and proclamation that we, and everyone we love, will die. ...

Speaking the truth of mortality out loud on Ash Wednesday feels somehow transgressive. In the midst of the bustle of cities, the busyness of our lives, the triviality that subsumes much of our time and the unreality of social media, a priest stands with ashes in hand and calls people back to reality. ...

Oftentimes, by avoiding the truth of death, we end up stifling questions about the meaning of life, about God, about eternity and about who we are, what we are for, where we are headed and why anything matters at all. ...

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NY Times Op-Ed: The Meaning Of Lent To This Unchurched Christian

New York Times Op-Ed:  The Meaning of Lent to This Unchurched Christian, by Margaret Renkl; Author, Graceland, At Last: Notes on Hope and Heartache From the American South (2021)):

On Wednesday, in Catholic parishes across the world, a priest will dip his thumb into a pot of ashes — the burned remains of blessed palms from last year’s Palm Sunday Mass — and smudge the sign of the cross on each congregant’s forehead. Performing this ancient ritual, he will murmur, “Remember that you are dust, and to dust you shall return.”

The priest will say these words on Ash Wednesday, the first day of Lent, but he will not be saying these words to me.

I have had a troubled relationship with the church of my childhood since childhood itself, when I learned in Catholic school that I would never be allowed to become a priest. For decades, nevertheless, the gifts of my faith outweighed the pronouncements of the institutional church that I found alienating or enraging. Human institutions are inherently flawed, and I have always loved the rituals that linked me across time to so many others facing fear and loneliness and pain, to so many others finding solace in their faith.

Then the pandemic quarantines left me unchurched through no choice of my own, and the death of our last parent, for whom there would only ever be one church, left my husband and me free to make our own choices about where to worship. I came to understand that my growing feeling of spiritual alienation wasn’t temporary. I loved my parish, and I loved our brilliant, compassionate pastor, but I was done with the institutional church.

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New Pepperdine Religious Liberty Clinic Asks Supreme Court To Rule For High School Coach Fired For Praying On Football Field After Games

Pepperdine Caruso Law Religious Liberty Clinic Represents American Legion in Supreme Court Amicus Brief:

Pepperdine Caruso Law’s newly-established Hugh and Hazel Darling Foundation Religious Liberty Clinic filed an amicus brief on March 2 at the United States Supreme Court in support of Coach Joseph Kennedy’s appeal against Bremerton School District. The friend of the court brief was submitted on behalf of national veterans’ organization The American Legion. Kennedy, an assistant high school football coach, was fired by the Seattle-area school district because he engaged in private prayer on the football field after games. The Clinic’s brief argues that the First Amendment protects the right of government employees to engage in personal prayer in public places.

The brief was drafted in part by Caruso Law third-year students Anne McCarthy and Seth Shepherd, along with attorneys from global law firm Jones Day, including Noel Francisco, former Solicitor General of the United States.

“It has been a privilege getting to work with and learn from the attorneys at Jones Day,” said McCarthy. “I am glad that we could do our part to protect a robust role for religious expression in the public square.”

“Working on this brief has been one of the highlights of my education at Pepperdine,” said Shepherd. “I am proud that we have been able to make a difference on such an important case, and as someone set to become a Marine Corps Judge Advocate after graduation, I am particularly proud that the clinic is representing the American Legion.”

“Football fields are not religion-free zones,” said Eric Rassbach, visiting professor at Pepperdine and inaugural executive director of the clinic. “The school district got the Constitution exactly backwards by banning prayer instead of allowing it as the First Amendment requires. We hope the Supreme Court throws the yellow flag on this flagrantly unconstitutional behavior.”

This is the first brief filed by the new clinic at Pepperdine Caruso Law, established in January 2022 with the help of a transformational gift from the Hugh and Hazel Darling Foundation. As part of the school’s Nootbaar Institute for Law, Religion, and Ethics, the Religious Liberty Clinic explores enduring questions relating to how civil governments treat the religious beliefs, expressions, and institutions of their citizens and residents. “Faith is at the very core of Pepperdine’s mission,” said Dean Paul Caron. “The new Religious Liberty Clinic is a natural extension of our work, and empowers us to make an even greater impact with our faculty and students in matters of faith and the law.”

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The Top Five New Tax Papers

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 #2:

1. [666 Downloads]  On the Evolving VAT Concept of Fixed Establishment, by Rita de la Feria (Leeds; Google Scholar)
2. [323 Downloads]  Tax Administrative Guidance: A Proposal for Simplifying Pillar Two, by Cedric Döllefeld (Muenster), Joachim Englisch (Muenster), Simon Harst (Ludwig Maximilian University of Munich (LMU)), Deborah Schanz (LMU; Google Scholar) & Felix Siegel (LMU)
3. [317 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
4. [238 Downloads]  The New International Tax Regime, by Reuven Avi-Yonah (Michigan; Google Scholar)
5. [223 Downloads]  Revitalizing The Generation-Skipping Transfer Tax, by Daniel Hemel (Chicago; Google Scholar) & Robert Lord (Americans for Tax Fairness)

This Week's Ten Most Popular TaxProf Blog Posts

1. Paul Caron (Dean, Pepperdine), Preview Of The 2023 U.S. News Law School Rankings: Admissions
2. Bryan Camp (Texas Tech), Lesson From The Tax Court: A New Twist On Travel Away From Home Deductions?
3. U.S. News & World Report, 2023 Law School Rankings
4. U.S. News & World Report, 2022 Law School Rankings
5. Bryce Clayton Newell (Oregon), 2021 Meta-Ranking Of Flagship U.S. Law Reviews
6. Christianity Today, Ketanji Brown Jackson's Faith
7. Law.com, ABA Revises Diversity And Inclusion Accreditation Standard A Third Time
8. Paul Caron (Dean, Pepperdine), 75% Through The Fall 2022 Law School Admissions Season: Applicants Are Down 10% And In All LSAT Bands (Especially 170-180 (-15%) And 160-169 (-14%))
9. Paul Caron (Dean, Pepperdine), South Texas And Vermont Are The 14th & 15th Law Schools To Offer Hybrid Online JDs
10. National Law Journal, Harvard 2L Walks Away From Summer Associate Job In NYC To Protest Law Firm's Work In Russia; Other Offers Come Pouring In

Cravath Fires Latest Shot In Salary War: $400,000 For 7th Year Associates

Law.com, Cravath Tops Davis Polk Salary Scale for 4th Years and Above:

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Dan Markel's Mother's Search For Justice And Fight For Grandparent Visitation Rights

Tallahassee Democrat, 'The Grief Is Like a Life Sentence': Ruth Markel, a Search For Justice and a Fight For Rights:

Ruth Markel believes that closure is just a word in the dictionary.

Since her son, 41-year-old Florida State law professor Dan Markel, was brutally killed in July 2014, painful words like murder and trial and conspiracy have been forced into her vocabulary. At the same time, Markel and her family have been denied access to their grandchildren.

It's been a heartbreaking journey to answer the ultimate question: Why?

“The big question that never goes away is, how could this happen?” Markel said in an exclusive video interview with the Tallahassee Democrat from her home in Toronto. The interview was the first time since appearing on several network television programs that she has spoken in depth about her son's death. ...

Markel, her daughter Shelly and Dan Markel’s father, Phil, will have to wait a little longer.

A Feb. 14 trial of Katherine Magbanua, one of three suspects indicted in connection with the murder, was postponed for the second time since September. Yet another trial date has been set for May 16. ...

Markel's grandsons live with Wendi Adelson in South Florida. Their last names were changed to Adelson to protect them from media coverage of their father's murder. Their visitation was cut off in 2016 when Garcia's arrest revealed that law enforcement also thought the Adelson family was involved. ...

Markel, an author who has been published since the 1980s, will publish her 10th book, which focuses on her grief as a mother amid a murder investigation and her role as an advocate for grandparent rights. Set to be released this summer, The Unveiling: A Mother’s Reflection on Murder, Grief and Trial Life, details her journey.

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ProPublica: Filing Your Taxes For 'Free' Online Is Confusing And Soul-Sucking By Design

Following up on my previous posts (links below):  ProPublica, Is TurboTax Free? What About Easy? Not for This Freelancer.:

One reporter spent 2021 freelancing, giving her just the kind of low-paying tax mess that TurboTax’s innovative services or the IRS Free File program should be able to help with. Her foray into “easy” tax prep tools proved otherwise.

If you watch TV, you’ve likely been inundated with ads about tax prep services that promise to meet your every need or let you file for free.

It’s the time of year when people open search engines and ask: “Is TurboTax free?”

ProPublica has been asking similar questions since 2013, when we first reported on how Intuit, TurboTax’s parent company, fought to keep the government from setting up a free, simple tax filing process. In the intervening years, our reporters have stayed on the story, uncovering the company’s sweeping history of lobbying and “dark pattern” customer tricks, which have helped it fend off a free government tax-filing option and create a multibillion-dollar software franchise.

Last year, we wrote a guide presenting several ways people could file their taxes for free. But this year a few things have changed: For one, TurboTax is no longer participating in the IRS Free File program, a public-private partnership that it helped construct. Under Free File, tax prep companies agreed to provide free online filing to tens of millions of lower-income taxpayers, and in exchange the government agreed not to offer its own free filing tools. In 2019 and earlier years, TurboTax and H&R Block together accounted for around two-thirds of all filings through the program, according to ProPublica’s analysis. But H&R Block left the program in 2020, and now, Intuit wrote in a blog post, it too is leaving “to focus on further innovating in ways not allowable under the current Free File guidelines.”

A spokesperson for Intuit said the company was “at all times clear and fair with its customers” and has upheld its obligations to the IRS under the Free File program.

Despite the departure of the two major players, the IRS Free File program will still let you file your federal taxes for free if you make less than $73,000 a year. You can browse the list of the remaining providers yourself, or you can answer a couple questions and have the lookup tool connect you with the providers you are eligible to use.

Wait, in case you missed that: If you get nothing else from this story, please remember that you can file your federal taxes FOR FREE.

Still, TurboTax’s departure made me wonder: What are these amazing innovations it’s offering that aren’t “allowable” under IRS guidelines? Are they worth the cost of dealing with TurboTax? ...

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Parsons’ Tax’s Digital Labor Dilemma

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Amanda Parsons (Columbia), Tax’s Digital Labor Dilemma, 71 Duke L.J. __ (2022).

In Tax’s Digital Labor Dilemma, Amanda Parsons develops a compelling challenge to conventional frameworks for international tax reform by reconceptualizing traditional distinctions between consumers and workers in digital economy enterprises. Parsons generally agrees with the critics of the 1920s compromise: the historical allocation of taxing authority between source and residence countries fails in the world of today. Under longstanding international tax norms, market countries—in which an enterprise’s goods and services are consumed or used—receive little consideration and less tax revenue. Parsons, among many others, sees justice in transferring some measure of taxing authority to these market countries. The sticky question—and where Parsons shows her careful creativity—is how policymakers should address this shared goal.

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Tax Policy In The Biden Administration

• Bloomberg, 2022 U.S. Tax Policy Trends
• Bloomberg, Green Tax Break Promoter Indicted as IRS Escalates Crackdown
• Business Insider, California Lawmakers Introduce Bill to Tax 'Extreme Wealth,' Proposing New 1.5% Tax on State's Billionaires
• Daily Deduction, Encouraging Retirement Saving, States Still Shop For Tax Cuts
• Daily Deduction, R&D, A Flat Tax, And A State Appeal For Capital Gains Tax

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Weekly Legal Education Roundup

• ABA Journal, Law school recently dinged for bar passage rate comes into compliance
• Sarah Boonin (Suffolk) & Luz Herrera (Texas A&M), From Pandemic to Pedagogy: Teaching the Technology of Lawyering in Law Clinics
• David Case (Mississippi), A Pedagogical Rationale for the Law Professor as Moot Court Coach
• Paul Caron (Dean, Pepperdine), 75% Through The Fall 2022 Law School Admissions Season: Applicants Are Down 10% And In All LSAT Bands (Especially 170-180 (-15%) And 160-169 (-14%))
• Paul Caron (Dean, Pepperdine), South Texas And Vermont Are The 14th & 15th Law Schools To Offer Hybrid Online JDs
• Chronicle of Higher Education, To Stem The Great Resignation Of Staff At Your University Or Law School, Stop Mission-Based Gaslighting

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Next Week’s Tax Workshops

Monday, March 7: Anthony Infanti (Pittsburgh; Google Scholar) will present Tax and Racism: Slavery, Immigrant Exclusion, and the Holocaust as part of the Oregon Tax Policy Colloquium. If you would like to attend, please contact Roberta Mann.

Wednesday, March 9: Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar) will present Whose Child Is This? Improving Child-Claiming Rules In Safety Net Programs, 131 Yale L. J. ___ (2022) (with Jacob Goldin (Stanford; Google Scholar)), as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Robert Lines.

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South Texas And Vermont Are The 14th & 15th Law Schools To Offer Hybrid Online JDs

Council of the ABA Section of Legal Education and Admissions to the Bar, Applications for Substantive Change:

The Council acquiesced in the application of Vermont Law School to establish a part-time hybrid distance education J.D. program.

The Council acquiesced in the application of South Texas College of Law-Houston to establish a part-time hybrid/online J.D. program.

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A Portrait Of The Wall Street Journal's Tax Report Columnist Late In Her Career

Wall Street Journal, Journalist Voices: Laura Saunders:

Laura Saunders is the current writer of "Tax Report," The Wall Street Journal's oldest column and a favorite with readers. She has long specialized in writing about taxes, first at Forbes and since 2009 for the Journal. “Taxes sit squarely at the intersection of economics and politics, with consequences for everybody. I enjoy trying to make them clear for Journal readers,” she says.

She also studies economic thought in literature and has lectured on how Moby-Dick's focus on whaling makes it the greatest novel about American business. She is a native of Tennessee with a B.A. from Sewanee: The University of the South, and an M.A. from Columbia University.

Q: How would you describe what you do each day?
A: I read, report and write about taxes. All tax, all the time. ...

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University Of North Texas-Dallas Law School Receives Full ABA Approval

University of North Texas-Dallas College of Law, College of Law Receives Full Approval From American Bar Association:

The University of North Texas at Dallas College of Law (UNTD COL) has been fully approved by the American Bar Association (ABA). The College of Law received notification late Friday that the Council of the ABA’s Section of Legal Education and Admissions to the Bar had approved the school after a final presentation before the Council by school officials last Friday in San Diego. The UNTD COL admitted its first class in 2014 and had been operating under provisional accreditation since 2017.

UNT Dallas College of Law Dean, Felecia Epps was elated when she received the news on Friday via email that the law school had earned full approval. “This will allow us to continue our mission of providing a high quality, affordable legal education to our students,” shared Dean Epps.

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ProPublica: When Billionaires Don’t Pay Taxes, People 'Lose Faith In Democracy'

Following up on my previous posts (links below):  ProPublica, When Billionaires Don’t Pay Taxes, People “Lose Faith in Democracy”:

In an interview, Senate Finance Chair Ron Wyden described the effect of the tax dodging revealed in “The Secret IRS Files” and argued that his stalled efforts to make the ultrawealthy pay what he calls “their fair share” could still bear fruit.

Last year, ProPublica began publishing “The Secret IRS Files,” a series that has used a vast trove of never-before-seen tax information on the wealthiest Americans to examine their tax avoidance maneuvers.

Since then, the Biden Administration and Democrats in Congress have been trying to close loopholes in the code and raise taxes on the rich to fund their legislative priorities. But the efforts have stalled, amid claims by Republicans that tax increases on billionaires would “destroy investment in America and punish success in America” and resistance from key Democrats, Sen. Joe Manchin, who called such a plan divisive, and Sen. Kyrsten Sinema, who has opposed tax increases more broadly.

Ron Wyden, the Oregon Democrat who chairs the Senate Finance Committee, is one of the top experts in Congress on tax matters and an advocate of raising taxes on the rich. He has proposed a bill that would build on his past efforts to tax the wealthiest. The most recent legislation would tax people with $1 billion in assets (or $100 million in income for three years in a row) not just on their income as it is traditionally defined but also on the growth of their wealth each year. It would take a bite out of so-called unrealized gains, taxing a rise in the value of the stocks, bonds and other assets owned by the ultrawealthy — even if they didn’t sell the assets. For assets that are not readily traded, Wyden’s bill would impose a deferred tax, an annual interest charge that would be added to any capital gains tax owed when the wealthy person sells the asset.

Wyden’s bill seeks to counteract a technique that the ultrawealthy can use to avoid income taxes: They hold on to their assets and simply avoid the income — and tax — that comes when they sell them. The rich can live lavishly by employing a technique known as “Buy, Borrow, Die,” in which they buy or build assets, borrow against them and then avoid estate and gift taxes when they die.

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Kleiman Presents Impoverishment By Taxation Today At Duke

Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar) presents Impoverishment by Taxation, 170 U. Pa. L. Rev. __ (2022), at Duke today as part of its Tax Policy Seminar hosted by Lawrence Zelenak:

Viewed in the aggregate, the U.S. fiscal system is progressive, reduces inequality, and cuts poverty. The system improves on market outcomes by transferring income from rich to poor. Yet this bird’s eye view rings hollow on the ground, where millions of low-income taxpayers across the United States are made poor or poorer by paying their state and federal taxes. In truth, while the U.S. fiscal system may be broadly equalizing and poverty reducing, for many struggling households, it is impoverishing.

This Article offers a new way to measure taxation of low-income households in the United States, presenting a concept called fiscal impoverishment. Taxpayers are fiscally impoverished when they are made poor or poorer by paying state and federal taxes, after accounting for the offsetting cash or near-cash public benefits they receive. Distinct from the aggregate and anonymous measures by which we typically assess our tax and transfer system, fiscal impoverishment is dynamic and individualized. It highlights individual human dignity and implicates the economic responsibilities of the state vis-à-vis low-income taxpayers.

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Bogdanski: The IRS Will Move Faster! No, Not For You.

Jack Bogdanski (Lewis & Clark), The IRS Will Move Faster! No, Not For You.:

I've been digging through the tax news of the last few weeks. It's my job. And one of the items that caught my eye was an announcement by the IRS that it's setting up a new "fast track" private letter ruling system for corporate transactions. Private letter rulings are where people with a lot of money go to get the IRS's blessing on their deals before they enter into them.

The timing couldn't be worse for the IRS to be speeding up the process for the well-heeled. The agency is currently sitting on literally tens of millions of tax returns, filed on paper, that it still hasn't gotten to from last year. I think there may be some unprocessed returns lying around from the year before that as well.

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To Stem The Great Resignation Of Staff At Your University Or Law School, Stop Mission-Based Gaslighting

Chronicle of Higher Education, Right Now, Your Best Employees Are Eyeing the Exits:

To stay, they need better pay, reasonable hours, and an end to mission-based gaslighting.

Two years of pandemic life have left campus staff members beyond burned out. They are done. And they are leaving or thinking about it in droves. I know because I was one of them. After nearly 13 years working in residence life — a field to which I was deeply committed — I left higher education last March for the private sector. The move increased my salary by 50 percent and cut my workload in half. ...

Very little is keeping them at your institution. You are hemorrhaging talent and institutional knowledge. The pandemic has forced many labor sectors to fundamentally shift how they view work, and if campus leaders fail to do the same, no one will be left to help you “get back to the way things used to be.”

Here’s what staff members need their institutions to know, hear, and most important, act upon:

Stop engaging in mission-based gaslighting. Stop saying things like, “What did you expect to get paid? You work in education!” or “You should be grateful to still have a job,” or “We don’t get paid much, but it’s worth it to see a student’s growth.” By using the mission to make your staff members feel ridiculous for asking for a raise or better benefits, you are shutting down legitimate concerns. People are rapidly realizing they have a skill set that can be used elsewhere — in positions that benefit others without being subjected to such treatment. ...

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ABA Finds Western New England Law School In Compliance With Bar Passage Accreditation Standard

Following up on my previous post, ABA Finds Western New England Law School Out Of Compliance With Bar Passage Accreditation Standard:  Council of the ABA Section of Legal Education and Admissions to the Bar Decision: Notice of Law School Demonstrating Compliance With Section 316 (Western New England University School of Law) (Feb. 2022):

At its February 17-19, 2022, meeting, the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association (the “Council”) considered the status of Western New England University School of Law (the “Law School”) regarding its noncompliance with Standard 316.

Following consideration of the record in the matter and the Law School’s response to the Council’s November 2021 Decision Letter, the Council concluded that the information provided by the Law School is sufficient to demonstrate compliance with Standard 316. Accordingly, the Rule 13(a)(2) hearing is cancelled in accordance with Rule 20(d). Western New England University School of Law remains an approved law school.

ABA Journal, Law School Recently Dinged for Bar Passage Rate Comes Into Compliance:

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75% Through The Fall 2022 Law School Admissions Season: Applicants Are Down 10% And In All LSAT Bands (Especially 170-180 (-15%) And 160-169 (-14%))

We are now 75% of the way through Fall 2022 law school admissions season. The number of law school applicants reported by LSAC is down 9.8% compared to last year at this time.

77 of the 199 law schools are experiencing an increase in applications. Applications are up 50% or more at 1 law school, and 20% or more at 14 law schools:

Applicants are up in only one region: Other (+8.9%); and are down the most in Midwest (-15.3%), Northwest (-14.8%), and Far West (-13.3%):

Applicants' LSAT scores are down -15.3% in the 170-180 band, -13.8% in the 160-169 band, -9.3% in the 150-159 band, and -7.4% in the 120-149 band:

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Klein: Teaching Critical Tax—What, Why, And How

Diane Klein (Southern), Teaching Critical Tax: What, Why, And How, 19 U. Pitt. Tax Rev. __ (2021):

“Critical tax” is an approach to the analysis of tax law and policy that takes race, gender, sexual orientation, disability, citizenship/immigrant status, and other historically marginalized statuses into account, and does so in a way that is centrally focused on the role of tax law in creating and perpetuating persistent economic inequality and disadvantage. This descendant of Critical Legal Studies and Critical Race Theory has been around for more than twenty years. And yet, critical tax is almost entirely absent from the casebooks and syllabi used for the teaching of the core tax courses. This can and should change, and this Article is a practical guide to both why and how teachers of tax law should integrate critical tax perspectives into their courses.

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Harvard 2L Walks Away From Summer Associate Job In NYC To Protest Law Firm's Work In Russia; Other Offers Come Pouring In

National Law Journal, Harvard Law 2L Walks Away From Summer Associate Position to Protest Law Firm's Work in Russia:

Ryan Donahue, a 2L at Harvard Law School, took to LinkedIn yesterday to explain why he walked away from a summer associate position at a New York City law firm to show support for Ukraine.

“While most of the world has united in opposition to Putin and his war of aggression against Ukraine, a certain segment of the legal community has not,” Donahue posted. “Amazingly, some Big Law firms have refused to close their offices in Russia and permanently cut ties with Russian oligarchs and state-owned companies.”

“I’m not naming the New York City law firm, because multiple firms are doing this,” Donahue told Law.com on Wednesday. “My post was meant to call out all of these firms.” ...

Since he posted on LinkedIn Tuesday morning, “there have been offers flooding in,” he said. “People offering to help. Asking me to send my resume.”

 

Ukraine: Captured Russian Tanks And Military Equipment Are Not Taxable Income

Business Insider, Ukrainian Authorities Say Citizens Don't Need to Declare Captured Russian Tanks and Military Equipment for Tax Purposes:

Ukrainian authorities have reassured citizens that they don't need to declare captured Russian tanks or any equipment they pick up as personal income.

"Have you captured a Russian tank or armored personnel carrier and are worried about how to declare it? Keep calm and continue to defend the Motherland!" a statement from the Ukrainian National Agency on Corruption Prevention seen by Interfax-Ukraine said.

"There is no need to declare the captured Russian tanks and other equipment, because the cost of this ... does not exceed 100 living wages," or 248,100 Ukrainian hryvnia, the agency said, according to Interfax-Ukraine. The sum equates to about $8,300.

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Speck Presents Transforming Tax Expenditures Today At Toronto

Sloan Speck (Colorado; Google Scholar) presents Transforming Tax Expenditures at Toronto today as part of its James Hausman Tax Law and Policy Workshop:

Since the 1960s, reformers have advocated the repeal of tax expenditures—disguised government spending through preferences in the Internal Revenue Code. And yet, tax expenditures persist, impairing federal tax receipts by more than $1.3 trillion annually. This Article introduces a novel mechanism for tax expenditure reform. If statutory repeal proves impossible, lawmakers can achieve a similar de facto result through a strategy of anti-repeal. By radically expanding a tax expenditure’s scope, then adjusting progressive income tax rates to account for revenue loss and distributional considerations, lawmakers can effectively eliminate tax expenditures from the tax base and integrate them into the rate structure—a process this Article defines as “base-rate transformation.”

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NYU Hosts Forum Tomorrow On Taxing The Rich

NYU hosts a forum on Taxing the Rich: Is It a Problem? If So, What Can Be Done About It? tomorrow at 3:45 PM ET (registration):

ProPublica recently published a series of articles showing that many of the wealthiest Americans pay little or nothing in taxes. In some years, the series reported, the likes of Jeff Bezos, Elon Musk, and Michael Bloomberg didn’t pay a penny in federal income tax. This pointedly raises the question of whether our approach to taxing the rich—particularly the superrich focused on by ProPublica—is right as a matter of fairness and revenue policy. Politicians and policymakers have put forth a number of proposals that would impose higher taxes on the wealthy. At this Forum, a panel of experts will unpack the issues underlying this situation and discuss the pros and cons of ideas put forth to address it.

Panelists: 

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LSAC Acquires Law School Transparency

LSAC Press Release, Acquisition of Law School Transparency Strengthens LSAC LawHub Offerings:

The Law School Admission Council announced today the expansion of its LawHub offerings through the acquisition of Law School Transparency, a nonprofit organization dedicated to providing innovative tools that help aspiring law school students make informed decisions about their legal education future. As part of this expansion, Law School Transparency's cofounder and executive director Kyle McEntee has joined LSAC's growing LawHub team as senior director for prelaw solutions.

"LSAC LawHub is designed to provide a comprehensive set of solutions to guide individuals in their unique legal education journeys, from prelaw through practice," said Annmarie Levins, LSAC's executive vice president and chief strategy officer. "The integration of Law School Transparency's innovative, data-driven tools with LSAC LawHub's ever-expanding services is a major step forward for students, advisors, and the broader community."

Founded in 2009 by McEntee and Patrick Lynch, Law School Transparency has an impressive track record of advocating for policies that ensure more robust and accurate information. LST has helped students consider their legal education options and offered many innovative tools and services that support students starting their learning journey.

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Dividing Law School Faculties Into Academic Departments: Dismantling The Gendered Doctrinal-Skills Hierarchy In Legal Education

Larry Cunningham (Dean, Charleston; Google Scholar), Dividing Law School Faculties into Academic Departments: A Potential Solution to the Gendered Doctrinal-Skills Hierarchy in Legal Education:

This article builds on the many works before it that have documented the inequities associated with the way that law school faculties are structured. At most schools, legal writing, clinical, and academic support faculty have lower salaries, are on contracts, cannot earn tenure, have fewer voting rights than tenure-stream faculty, may be relegated to undesirable offices, and might not even be permitted to call themselves “professor.” Women are more likely to occupy this lower status than men. This hierarchy persists even though women now make up the majority of law students in the United States.

To the extent that those who support this hierarchy are willing to defend it publicly, they do so on the grounds that teaching skills classes is “different”—and, in their view, necessarily lesser—than doctrinal subjects. They also assert, incorrectly, that skills faculty are incapable or unwilling to produce quality scholarship. The result is a gendered, illegitimate status hierarchy within many law schools where the tenured faculty is more heavily male and enjoy the most benefits at the top, while those who teach skills courses are mostly women and are relegated to a lesser status at the bottom.

The gender disparity created by the modern law school faculty hierarchy is well-established, but few workable solutions have been offered. This article fills that gap. Many have advocated for converting contract faculty to the tenure-track. And certainly, more and more schools have taken this welcome step. However, this approach is not without problems. The tenured faculty must be willing to cede voting power and other governance rights. Tenure standards must also be rewritten to account for the fact that teaching writing or in a clinic is different—not lesser, just different—from doctrinal teaching. Additionally, doctrinal faculty must become adept at evaluating teaching and scholarship of skills faculty, and vice versa once skills faculty earn tenure.

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Vischer: Legal Education In An Age Of Polarization

Robert K. Vischer (Dean, St. Thomas-MN; Google Scholar), Legal Education in an Age of Polarization, 18 St. Thomas L.J. __ (2022):

Americans have always disagreed about particular issues, but those disagreements have intensified, widened, and coalesced around shared identities that shape the ways in which we view the world. An increasingly impermeable boundary between broad factions in our society can be seen in recent disputes over vaccines, masks, the 2020 presidential election results, climate change, responses to systemic racism, police reform, immigration, and various issues at the intersection of religious belief and anti-discrimination law. As disagreements become more deeply rooted in our social identities, attorneys can no longer presume that conflict over a particular issue is what it seems on its face.

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Thomas: Cognitive Bias And Income Inequality

Kathleen DeLaney Thomas (North Carolina; Google Scholar), Why Is It So Hard to Reduce the Wealth Gap? Cognitive Bias May Be Partly to Blame (reviewing Joshua Conrad Jackson (North Carolina; Google Scholar) & Keith Payne (North Carolina; Google Scholar), Cognitive Barriers to Reducing Income Inequality, 12 Soc. Psych. & Personality Sci. 687 (2021)):

The problem of income inequality is well-documented. And for those who support greater income redistribution, the current state of affairs is bleak. Proposals for a wealth tax or heavier taxation of capital income appear to have stalled, and little progress has been made towards meaningful reform measures that would shrink wealth and/or income gaps.

So what gives? We already know part of the story. Progressive tax proposals, such as mark-to-market taxation, tend to be complex, which in turn makes them harder to sell to politicians and the public. Similarly, reform measures like a wealth tax face criticism that they would be too hard to administer. Yet adding to these problems appears to be a general indifference, if not outright lack of support, from the public. This is puzzling because, given the evidence that only a very small percent of Americans holds most of the nation’s wealth, a lot of people would benefit from wealth or income redistribution. So why isn’t there more popular support for redistributive tax policies? A recent empirical study offers compelling evidence of another major barrier to reform: our irrational, subjective beliefs about where we fall on the income distribution.

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NALP: 'Law Firms Are Scrambling For Talent, At Both Lateral And Entry Levels'

NALP, Robust Entry-level Law Firm Recruiting Activity Reflects Broader Competition for Legal Talent:

NALP today released its Perspectives on 2021 Law Student Recruiting report. Industry data indicate that 2021 was another banner year financially for law firms, the most profitable year since before the Great Recession, with the strongest growth in demand for legal services since before the onset of the COVID-19 pandemic. NALP’s findings show that fall 2021 recruiting activity was also strong following a year of more conservative hiring decisions early in the pandemic.

“Law firms have been scrambling for talent at both the lateral and entry levels. As a result, recruiting activity in 2021 was robust, with offer rates for summer spots reaching their highest mark since 2007,” writes NALP Executive Director James G. Leipold in the report. “The pandemic has changed some of the methodologies of the law firm recruitment process, but it has not dampened any of the competition. The OCI screening interview process is likely to remain virtual, or at least partially so, and 2L recruiting is likely to continue to happen early and fast. For 1Ls, recruiting is also likely to be robust, particularly for diversity fellowships, and with a little luck, the renewed energy around 3L recruiting will remain for some time.” 

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Hayashi & Hopkins: A Charitable-Giving Tax Credit Could Shift Philanthropic Power Away From The Wealthy

Chronicle of Philanthropy op-ed:  A Charitable-Giving Tax Credit Could Shift the Balance of Philanthropic Power Away From the Wealthy, by Andrew T. Hayashi (Virginia; Google Scholar) & Justin Hopkins (Virginia; Google Scholar):

Two disturbing trends have converged in the nonprofit world in recent years. The first is the effect of income and wealth inequality on whose interests get heard by government, business, and philanthropic leaders. The second is the declining participation in civic institutions, and the increasing number of people who say they feel isolated and alienated from community life.

We believe there is a simple way to start addressing both problems — a refundable tax credit for charitable donations.

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Pittsburgh Tax Review Publishes New Issue

The Pittsburgh Tax Review has published Vol. 19, No. 1 (2021):

• Michelle D. Layser (Illinois; Google Scholar), Financing Affordable Housing in Opportunity Zones, 19 Pitt. Tax Rev. 1 (2021)
• Marie Sapirie (Tax Notes), Made in America, Made in Opportunity Zones, 19 Pitt. Tax Rev. 33 (2021)
• Edward W. De Barbieri (Albany; Google Scholar), Community-Based Tax Incentives, 19 Pitt. Tax Rev. 61 (2021) 

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McGee: Elon Musk And The Case For A Maximum Tax

Robert W. McGee (Fayetteville State; Google Scholar), Elon Musk and the Case for a Maximum Tax:

Several Congresses have passed various forms of minimum tax legislation, both at the individual and corporate level over the years. They have even passed alternative minimum tax bills to squeeze out additional tax revenue that would not otherwise be forthcoming. The underlying theory behind the minimum tax is that individuals and corporations should be made to pay some minimum tax even if other provisions of the tax code would relieve them partially or completely of tax liability.

This paper examines the other side of the coin.

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From Pandemic To Pedagogy: Teaching The Technology Of Lawyering In Law Clinics

Sarah Boonin (Suffolk) & Luz E. Herrera (Texas A&M; Google Scholar), From Pandemic to Pedagogy: Teaching the Technology of Lawyering in Law Clinics, 68 Wash. U. J.L. & Pol'y __ (2022):

The COVID-19 pandemic has transformed the nation’s approach to work and learning. Law schools, law firms, courts, and administrative agencies abruptly closed their offices and quickly reimagined how to perform their daily functions remotely. Many of these institutions have plans to maintain aspects of remote operations and services post-pandemic. With this in mind, the authors of this Article conducted a survey of law school clinical faculty during the winter of 2021 to better understand how clinicians pivoted their instruction and practice using technology during the pandemic. The authors use the survey results to show how the COVID-19 experience positions clinical programs to be leaders in answering the growing calls to incorporate technical competency into legal education. 

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A Pedagogical Rationale For The Law Professor As Moot Court Coach

David W. Case (Mississippi), A Pedagogical Rationale for the Law Professor as Moot Court Coach, 89 Miss. L.J. 367 (2020):

This article recounts lessons learned and wisdom gained from nearly two decades of experience coaching moot court competition teams in the annual National Environmental Law Moot Court Competition at Pace Law School in White Plains, New York. The field of experiential education is already the beneficiary of previously published personal narratives on the substantial value moot court competition contributes to legal education. Much of the existing literature in this field, however, seeks to convince law students of the important educational value participation in moot court provides. 

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Following Closure Of Florida Coastal, Jacksonville University Launches New Law School, With 20-30 Students In Fall 2022 ($36,000 Tuition, $14,000 Merit Scholarships)

The Next Step in Jacksonville’s Future: Building Tomorrow Together:

For nearly a century, Jacksonville University has pursued bold opportunities that create waves of good in our community. We are proud to partner with the City of Jacksonville to establish the Jacksonville University College of Law in the heart of downtown. With public investment to accelerate its launch, JU's College of Law will meet a pressing need for quality legal education in northeast Florida, while strengthening the pool of educated professionals and future leaders in our community.

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Grewal: The Sixth Circuit Conjures Phantom Tax Regulations

Andy Grewal (Iowa; Google Scholar), The Sixth Circuit Conjures Phantom Regulations:

A few decades ago, various federal trial and appellate courts adopted an odd approach towards tax statutes that call for Treasury regulations but for which no regulations had been issued. These courts decided that they would not wait for the Treasury to act. Instead, they would apply the statute without regulations. In doing so, they would conjure the regulations that they thought the agency might have adopted. “Phantom regulations” were thus born. See Grewal, Substance Over Form? Phantom Regulations and the Internal Revenue Code, 7 Houston Bus. & Tax J. 42 (2006).

A recent and significant case, Whirlpool v. Commissioner, 19 F.4th 944 (6th Cir. 2021), illustrates the serious problems with phantom regulations.

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ABA Revises Diversity And Inclusion Accreditation Standard A Third Time

Following up on last week's post, ABA Legal Ed Section To Send Revised Diversity & Remote Learning Standards To House Of Delegates:  Law.com, Following More Public Comment, ABA Revises Diversity and Inclusion Proposal a Third Time:

The ABA said multiple comments expressed concern that the proposal creates a two-tiered DEI system that gives priority to racial and ethnic diversity at the expense of LGBTQ+ and disability diversity.

The Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar has, for the third time since last spring, revised Standard 206 and released a final version of a proposal aimed at bolstering its existing diversity and inclusion standard.

A Feb. 10 memorandum from the ABA Standards Committee detailed the 10 public comments the proposal received between mid-November, when the last round of revisions was made, and Jan. 21, when the comment period closed. The final recommendations will go to the ABA House of Delegates (HOD) for concurrence at the HOD’s August 2022 meeting. ...

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A Financial Analysis Of Disguised Sales Of Partnership Interests

Bradley T. Borden (Brooklyn; Google Scholar), Douglas L. Longhofer (Central Missouri), Martin E. Connor Jr. (Debevoise & Plimpton) &  Nastassia Shcherbatsevich (Cravath, Swaine & Moore), A Financial Analysis of Disguised Sales of Partnership Interests, 172 Tax Notes Fed. 381 (July 19, 2021):

This article examines the issues that arise in identifying disguised sales of partnership interests, and it explores whether a financial analysis can help in distinguishing disguised sales from recapitalizations. The article examines law that considers both property and financial transactions that raise disguised-sale considerations. It shows that when property is part of a transaction existing case law and rulings provide helpful guidance for determining whether the transaction might be recast as a disguised sale of a partnership interest. The article also shows that, by contrast, existing authority proves mostly unhelpful in determining whether finance transactions are disguised sales of a partnership interest. The article presents a financial analysis that illustrates the difficulty of identifying disguised sales but also shows how a sale of an interest differs from a recapitalization. The analysis provides a general framework for considering the question of disguised sales of partnership interests, but it does not appear to provide a definitive model for analyzing all financing transactions that might be recast as disguised sales of interests in partnerships.

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Lederman Presents Best Practices in Tax Rulings Transparency Today At Oregon

Leandra Lederman (Indiana-Maurer; Google Scholar) presents Best Practices in Tax Rulings Transparency (reviewed by Blaine Saito (Northeastern; Google Scholar) here) at Oregon today as part of its Tax Policy Colloquium hosted by Roberta Mann:

Tax rulings reflect agreement by a tax administration to a particular tax treatment of a planned transaction. They provide certainty to taxpayers and the government, lowering costs on both sides. Such rulings are therefore used by many countries. Yet, secrecy that is followed by leaks and criticism is a recurring aspect of these rulings. Perhaps most well known in this regard is the 2014 LuxLeaks scandal. LuxLeaks revealed numerous tax rulings issued by the European country of Luxembourg containing what the press sometimes termed “sweetheart deals” between the Luxembourg tax authority and multinational companies. The United States has also experienced embarrassing revelations in the tax rulings context, such as during the period before it began disclosing anonymized versions of letter rulings.

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NY Times: Treasury Is Asked To Investigate Its Hiring Of Tax Lawyers From Big Accounting Firms

Following up on my previous post, NY Times: Tax Lawyers At Top Accounting Firms Cycle In And Out Of Top Treasury Posts And Reap Huge Reward For Their Clients And Themselves:  New York Times, Treasury Is Asked to Investigate Its Hiring of Lawyers From Big Accounting Firms:

A pair of Democratic lawmakers asked the Treasury Department’s inspector general on Tuesday to investigate the revolving door between the country’s biggest accounting firms and key policy positions at the Treasury.

Senator Elizabeth Warren of Massachusetts and Representative Pramila Jayapal of Washington were prompted by an investigation published by The New York Times in September detailing how giant accounting firms embed top lawyers inside the government to draft tax rules that benefit their clients.

The Times found at least 35 examples in which lawyers at the country’s biggest accounting firms left to join the government, largely in the Treasury’s tax policy office, and then returned to their old firm.

The Times found that while in the government, many of those lawyers granted tax breaks to their former firms’ clients, softened efforts to clamp down on tax shelters and approved loopholes used by their former firms. In nearly half the examples, the officials were promoted to partner upon rejoining their old firm.

The pattern has been repeated in both Democratic and Republican administrations, including those of Donald J. Trump, Barack Obama, George W. Bush and Bill Clinton.

Since October, the two lawmakers collected information from five accounting firms — PwC, EY, Deloitte, RSM and KPMG — detailing the phenomenon. ...

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A Conversation With Lloyd Hitoshi Mayer (Notre Dame)

Capital Research Center, A Conversation with Notre Dame Law School’s Lloyd Hitoshi Mayer (Part 1):

The scholar of nonprofit and election law talks to Michael E. Hartmann about what should and shouldn’t be considered a subsidy for charities, and the relationships between charity, politics, and government.

Professor Lloyd Hitoshi Mayer has researched, studied, taught, and written about many various aspects of nonprofit and election law since he came to Notre Dame Law School 17 years ago from the Washington, D.C., office of Caplin & Drysdale, where he’d practiced in those same areas for almost a decade.

Mayer’s recent published scholarship, for example, has thoroughly examined charitable crowdfunding, when tax exemption should and shouldn’t be considered a subsidy, fundamental public policy and the tax exemption of churches, and government use of “Big Data” in nonprofit regulation, among other things. His thoughtful “When Soft Law Meets Hard Politics: Taming the Wild West of Nonprofit Political Involvement,” in Notre Dame’s Journal of Legislation, caught our attention in particular and likely will inform policymaking discourse in the coming years.

Capital Research Center, A Conversation with Notre Dame Law School’s Lloyd Hitoshi Mayer (Part 2 of 2):

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Snitches Get Stitches: Ditching The Toleration Clause In Law School Honor Codes

Meredith C. Manuel (J.D. 2021, Georgetown), Note, Snitches Get Stitches: Ditching the Toleration Clause in Law School Honor Codes, 33 Geo. J. Legal Ethics 703 (2020):

Introduction
In Part I this Note will first provide a brief overview of the relevant distinctions between honor codes, conduct codes, and codes of professional ethics. Part II will then narrow the discussion to analyze the debate surrounding a school’s use of the “toleration clause” which mandates student reporting of observed violations, with emphasis on the United States Naval Academy as a relevant example. Part III will provide an overview of modern law school approaches at the top one hundred schools in the nation. Finally, Part IV will argue that more law schools should remove the toleration clause to better prepare future attorneys for the reality of their eventual practice of law in their respective jurisdictions.

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UC-Hastings Hosts Virtual Conference Today On Tax Lawmaking During Times Of Uncertainty

The UC-Hastings Center on Tax Law hosts a conference today on Tax Lawmaking During Times of Uncertainty at 8:30 AM-2:30 PM PT (register here):

Hear from scholars, practitioners, and current and former government officials about the tax lawmaking process. Panelists will discuss the challenges of passing tax legislation, administering tax law during times of transition, and giving tax advice to clients when tax laws might change. The discussion will reflect on recent efforts to make tax law changes and will consider how tax lawmaking will continue to evolve.

8:30 AM: Welcome

• David Faigman (Chancellor & Dean, UC-Hastings; Google Scholar) 
• Manoj Viswanathan (UC-Hastings)
• Heather Field (UC-Hastings; Google Scholar)

8:45 AM: The Tax Legislative Process: Reconciliation, Budgeting, and More

• Victor Fleischer (UC-Irvine; Google Scholar)
• Jane Gravelle (Congressional Research Service)
• Daniel Hemel (Chicago; Google Scholar)

10:15 AM: Tax Practice Perspectives Amid Uncertainty

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How To Juice Citations To Your Legal Scholarship

Rob Willey (George Mason) & Melanie Knapp (George Mason), How to Increase Citations to Legal Scholarship, 15 Ohio St. Tech. L.J. 157 (2021):

Using nearly 250,000 law review articles published on HeinOnline over a five-year period, the authors analyze citation patterns and their relation to characteristics of the articles such as title length, number of authors, article length, publication format, and more. The authors also describe past citation studies and best practices in Search Engine Optimization (SEO). The authors find that factors beyond article quality likely impact scholarly citations. Drawing from the lessons in the citation patterns, article characteristics, and SEO best practices, the authors offer techniques to increase the article citation counts of articles published in U.S. law journals. Using lessons from the SEO world, the authors conclude with a detailed discussion of potential problems with citation ranking schemes, such as citation cartels, keyword stuffing, and perverse incentives for authors to avoid writing on obscure but important legal topics.

Based on data pulled from Hein, U.S. News will introduce a new scholarly impact ranking later this year. While this new ranking has the potential to improve the overall law school rankings, it opens the door to a wide-range of potential issues from citation cartels to keyword stuffing to less focus on important but less well-known areas of the law. Using lessons from the SEO world, the authors conclude with a detailed discussion of these potential problems.

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Lesson From The Tax Court: A New Twist On Travel Away From Home Deductions?

When I teach the §162 travel away from home deductions I tell my students to distinguish between transportation costs (on the one hand) and meals/lodging costs (on the other hand).  Transportation costs are covered by Rev. Rul. 99-7.  Their deductibility turns on job site location.  To deduct meals and lodging expenses, however, the taxpayer must meet an overnight rule as well.  United States v. Correll, 389 U.S. 299 (1967).  I have never taught that the overnight rule applies to transportation costs.

After reading today’s case, I may have to change how I teach this issue.  In James P. Harwood and Connie J. Harwood v. Commissioner, T.C. Memo. 2022-8 (Feb. 15, 2022) (Judge Urda), Mr. Harwood worked at various temporary job sites located in cities away from his tax home in Yakima, Washington.  Sometimes he stayed overnight at the job sites, coming home on weekends.  Sometimes he drove there and back in the same day.  If I’m reading the opinion correctly, Judge Urda applied an overnight rule to hold that when Mr. Harwood chose to drive to and from his job site in the same day, he could not deduct the transportation costs.  That’s a new twist on the law from what I can tell.  So we should pay attention.  Details below the fold.

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