Paul L. Caron
Dean


Thursday, February 27, 2020

NYU Grad Tax Program Launches The Tax Maven Podcast

The Tax Maven:

Tax MavenThe first podcast from the Graduate Tax Program at NYU Law, the Tax Maven, introduces listeners to the people and the ideas that draw so many of us to work in tax. Tax scholars learned long ago what makes tax law both powerful and deeply human. The Tax Maven features conversations with professors from a range of disciplines, revealing tax law’s connection to prosperity, poverty, and history. Each episode will feature a guest—a Tax Maven—sharing the fruits of her scholarly work in a format that will make you think, laugh, and wonder, offering an answer to the perennial question: “Why tax law?”

Episode 1, Is More Open More Fair? (Kimberly Clausing (Reed College; moving to UCLA)):
What if there were one mechanism that could support workers and communities harmed as a result of technological change; mediate the forces of the global economy; and adequately fund urgent public priorities such as education, health, and climate? In this episode, economist Kimberly Clausing stops by to talk with Steven Dean about how tax can address big challenges such as increasing inequality and growing threats to the middle class.

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February 27, 2020 in Tax, Tax News | Permalink | Comments (0)

IRS Names New National Taxpayer Advocate

Treasury and IRS Announce National Taxpayer Advocate Appointment:

Erin CollinsToday, the U.S. Treasury Department and Internal Revenue Service (IRS) announced the appointment of Erin M. Collins to serve as the National Taxpayer Advocate (NTA).

“Erin Collins will be an outstanding voice for American taxpayers,” said Secretary Steven T. Mnuchin.  “She has a wealth of experience representing a broad range of taxpayers before the IRS.  She also developed valuable expertise during her years with the Office of Chief Counsel. Erin is the ideal candidate to help the IRS modernize and improve service for American families and businesses.”

“I am deeply honored to join the talented team at the IRS as the National Taxpayer Advocate and thank Secretary Mnuchin and Commissioner Rettig for the trust they have placed in me,” said Ms. Collins.  “I will work every day to be a strong and effective representative of American taxpayers.”

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February 27, 2020 in IRS News, Tax, Tax News | Permalink | Comments (0)

Pepperdine Caruso Law Builds Pipeline For Historically Underserved Students

Pepperdine Caruso Law Builds Pipeline for Historically Underserved Students:

In honor of Black History Month, Pepperdine University Caruso School of Law is pleased to announce two major developments in its commitment to creating a diverse community on our campus.

Scholarships for HBCU Graduates

We have partnered with three Historically Black Colleges and Universities (HBCU), a partnership that will serve to build an academic pipeline for historically underserved students. Pepperdine Caruso Law will offer a guaranteed half-tuition scholarship to graduates of partnering HBCUs who demonstrate scholastic excellence and plan to matriculate at Caruso School of Law.

Caruso Law guarantees a minimum 50% scholarship to any graduate of Spelman College, Tuskegee University, and Morehouse University who applies to, is accepted, and enrolls at Caruso Law for a Juris Doctorate degree. We are particularly proud to add that there is no limit on the number of students who can receive this guaranteed scholarship. We are especially grateful to alumna Zna Portlock-Houston who was an instrumental part in building the initial relationship with Tuskegee University.

Pepperdine Caruso's Diversity and Inclusion Statement affirms that "our community is rich in political, racial, and spiritual diversity which has formed a strong culture of connection among our students, faculty, and staff. We believe that each person's voice and convictions enhance our community." Led by our faith-based values and true belief that each person is created in God's image and has a place in the law, we embrace a proactive mission to increase and develop diversity within the law.

Assistant Dean of the Career Development Office Chalak Richards said, "As a graduate of both Spelman College and Pepperdine Law, I am committed to seeing both institutions move forward."

Chalak Richards holding a microphone

California's Pathways to Law

In addition, Pepperdine University and Caruso School of Law have become university and law school partners in California LAW's Pathway to Law. This program encourages students from diverse backgrounds to consider careers in the legal profession.

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February 27, 2020 in Legal Ed News, Legal Education | Permalink | Comments (1)

Medical School Mistreatment Of Students Is Tied To Race, Gender, And Sexual Orientation

Journal of the American Medical Association, Assessment of the Prevalence of Medical Student Mistreatment by Sex, Race/Ethnicity, and Sexual Orientation:

Question  Does the self-reported prevalence of medical student mistreatment vary based on student sex, race/ethnicity, and sexual orientation?

Findings  In this cohort study of 27,504 graduating medical students, the following students reported a higher prevalence of mistreatment than male, white, and heterosexual students: female students; Asian, underrepresented minority, and multiracial students; and lesbian, gay, or bisexual students.

Meaning  These findings suggest that there is a differential burden of mistreatment that must be addressed to improve the medical school learning environment.

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February 27, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

NY Times: The Liberal Economists Behind The Wealth Tax Debate

New York Times, The Liberal Economists Behind the Wealth Tax Debate:

Gabriel Zucman and Emmanuel Saez have crashed the Democratic primary with their idea — and angered some economists.

One of the most liberal policy proposals animating the Democratic presidential primaries is the handiwork of two French economists who are not formally advising any campaign and have barely met the candidates running for the White House.

Gabriel Zucman and Emmanuel Saez are the driving force behind proposals for a wealth tax, an idea embraced by Senators Bernie Sanders and Elizabeth Warren as a way to reduce economic inequality by forcing the richest Americans to pay taxes on everything they own and diverting that money to public services like universal health care and free college tuition.

Their efforts documenting a sharp increase in the concentration of wealth at the very top and their outspokenness have vaulted the tax from a fringe idea in American politics to the center of a reinvigorated debate on taxing the rich.

They have also made Mr. Zucman and Mr. Saez the most visible, and polarizing, economists in the 2020 campaign.

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February 27, 2020 in Tax, Tax News | Permalink | Comments (1)

Batchelder: Leveling The Playing Field Between Inherited Income And Income From Work Through An Inheritance Tax

Lily Batchelder (NYU), Leveling the Playing Field between Inherited Income and Income from Work through an Inheritance Tax:

The Problem 
The core objectives of tax policymaking should be to raise revenue in an efficient and equitable manner. Current taxation of estates and gifts (and nontaxation of inheritances) fails to meet these goals, perpetuating high levels of economic inequality and impeding intergenerational mobility. The current system also provides an intense incentive to delay realization of capital gains until death. These shortcomings distort capital markets, encourage nonproductive estate tax planning, and limit the effectiveness of the overall tax code.

The Proposal 
Batchelder proposes to reform the way we tax inheritances by taxing inherited income through income and payroll taxes. She suggests three lifetime exemption levels—$2.5 million, $1 million, and $500,000—to ensure that the proposal only taxes individuals receiving the largest inheritances. Batchelder’s proposal would raise between $337 billion and $1.4 trillion over the next ten years. The proposal would limit tax avoidance through reforms to the rules governing the timing and valuation of transfers through trusts and other devices.

Batchelder

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February 27, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Survey Of Law School Faculty & Staff: Trends in Funding For Legal Scholarship

Primary Research Group, Survey of Law School Faculty & Staff: Trends in Funding for Legal Research & Scholarship (2020):

This study is based on responses for 96 faculty and staff from more than 60 law schools in the USA and Canada.  The report presents detailed data on the amount of time faculty and staff spend in pursuing funding, the results of their searching, and the sources of funding.  Survey participants also comment on their use of specialized databases and other resources to find funding, with specific data on use of general university library resources, law library resources, and general university or law school research office resources.

The study helps its readers to answer questions such as: how many grants have faculty applied for?  How much finding have they brought in?  What do they think of the help that they are receiving from their university and law school research offices, or from the general university or law school library? How satisfied are they with the services of the research office?  What is the outlook for legal research funding in the future?  What percentage of funding comes from the US Federal Government, private sources, or the parent university?

Just a few of the 85-page report’s many findings are that:

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February 27, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

NY Times: One Guaranteed Winner In The Democratic Presidential Primary: Plans To Tax The Rich

New York Times, One Guaranteed Winner in the Democratic Primary: Plans to Tax the Rich:

The Democratic primary race remains highly unpredictable, but there is one thing we already know for sure about the party’s next presidential nominee: She or he has big plans to tax the very rich.

Every leading candidate in the party’s 2020 field — from relative moderates like Joseph R. Biden Jr.Michael R. BloombergPete Buttigieg and Amy Klobuchar to liberals like Bernie Sanders and Elizabeth Warren — has proposed trillions of dollars in new taxes on businesses and wealthy Americans. In each case, and to wildly varying degrees, the money would fund new government spending in areas like health care, education, housing and climate change, and a range of other programs meant to help the poor and the middle class.

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February 27, 2020 in Tax, Tax News | Permalink | Comments (1)

Wednesday, February 26, 2020

Blank Presents Automated Legal Guidance Today At SMU

Joshua Blank (UC-Irvine) presents Automated Legal Guidance, 106 Cornell L. Rev. __ (2020) (with Leigh Osofsky (North Carolina)) at SMU today as part of its Faculty Forum Series

6a00d8341c4eab53ef0240a4467a28200c-300wiThrough online tools, virtual assistants and other technology, governments increasingly rely on artificial intelligence to help the public understand and apply the law. The Internal Revenue Service, for example, encourages taxpayers to seek answers regarding various tax credits and deductions through its online “Interactive Tax Assistant.” The U.S. Army directs individuals with questions about enlistment to its virtual guide, “Sgt. Star.” And the U.S. Citizenship and Immigration Services suggests that potential green card holders and citizens speak with its interactive chatbot, “Emma.” Through such automated legal guidance, the government seeks to provide advice to the public at a fraction of the cost of employing human beings to perform these same tasks.

This Article offers one of the first critiques of these new systems of artificial intelligence.

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February 26, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Maag Presents How Earnings And Child Tax Credit Proposals Impact Income Inequality And Vulnerable Children Today At UCLA

Elaine Maag (Tax Policy Center) presents Boosting Wages or Helping Children? Understanding How New Earnings and Child Tax Credit Proposals Impact Income Inequality and Vulnerable Children (with C. Eugene SteuerleRobert McClelland) at UCLA today as part of its Colloquium on Tax Policy and Public Finance hosted by Kirk Stark and Jason Oh:

MaagThe earned income tax credit (EITC) and child tax credit (CTC) provide substantial benefits to working families with children. The EITC also provides modest benefits to workers without custodial children, often called “childless workers” for tax purposes. Because the amount of credit childless workers can qualify for is modest, almost all benefits from both credits flow to families with children. Together, the credits lift almost 9 million people out of poverty each year (Fox 2019).

Policymakers are looking to build on the success of these credits and further address the joint issues of income inequality between very high-income people and everyone else (Congressional Budget Office 2019) - fueled in part by wage stagnation (Mishel et al 2018) and relatively poor outcomes for low-income children (Duncan, Ziol-Guest, and Kalil 2010; Ratcliffe 2015). Coupled with the CTC increase that was enacted in 2017 being set to expire after 2025, legislators are considering the next phase of work and child subsidies.

We analyze four expansions to the credits:

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February 26, 2020 in Colloquia, Scholarship, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

UC-Irvine Hosts Symposium On Machine Intelligence And The Changing Nature Of Tax Law Practice

UC Irvine (20192)UC-Irvine hosts a two-day symposium on Machine Intelligence and the Changing Nature of Tax Law Practice. Tax Prof speakers include:

  • Ted Afield (Georgia State)
  • Benjamin Alarie (Toronto)
  • Joshua Blank (UC-Irvine)
  • Victor Fleischer (UC-Irvine)
  • Stephanie Hoffer (Ohio State)
  • Christine Kim (Utah)
  • Sarah Lawsky (Northwestern)
  • Omri Marian (UC-Irvine)
  • Manoj Viswanathan (UC-Hastings)

February 26, 2020 in Conferences, Tax, Tax Conferences | Permalink | Comments (0)

London Study Abroad Opportunity For 2Ls And 3Ls In Fall 2020

London Full

One of the major components of our global programs at Pepperdine Caruso School of Law is our Fall London Program, now in its 39th year. I am pleased to announce that Professor David Han will be serving as the program’s academic director in Fall 2020. He and his family will travel with Caruso Law students as well as visiting law students for the Fall semester at Pepperdine’s London House in South Kensington. 

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February 26, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

2021 U.S. News Law School Rankings

Robert Morse (Chief Data Strategist, U.S. News & World Report) announced yesterday that the new 2021 law school rankings will be released on Tuesday, March 17.  For the first time, they will include specialty rankings in business/corporate law, criminal law, constitutional law, and contracts/commercial law (in addition to Clinical Training, Dispute Resolution, Environmental Law, Health Care, Intellectual Property, International Law, Legal Writing, Tax, and Trial Advocacy).  Here is my coverage of the current 2020 law school rankings:

February 26, 2020 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink | Comments (0)

Thomas: How Should We Think About Wealth Tax Avoidance?

Jotwell (Tax) (2016)Kathleen DeLaney Thomas (North Carolina), How Should We Think About Wealth Tax Avoidance? (JOTWELL) (reviewing Diana Onu (Exeter), Lynne Oats (Exeter), Erich Kirchler (WU Vienna), & Andre Julian Hartmann (Vienna), Gaming the System: An Investigation of Small Business Owners' Attitudes to Tax Avoidance, Tax Planning, and Tax Evasion, 10 Games 46 (2019)):

A recently published empirical study by Diana Onu, Lynne Oats, Erich Kirchler, and Andre Julian Hartmann compares taxpayer attitudes towards acceptable tax planning, aggressive (yet legal) tax avoidance, and illegal tax evasion. While the study itself examines small business owners subject to income tax in the U.K., its implications should be of great interest to policymakers concerned about legal avoidance strategies with respect to any tax base. For example, aggressive but legal tax avoidance might be an important concern under recent wealth tax proposals in the United States.

As noted by the study’s authors, tax compliance literature has traditionally focused on the binary choice between compliance and evasion. That literature explores the various underpinnings of the decision to evade, from deterrence theory, to social norms, to attitudes that evasion is a victimless crime. But largely absent from this literature on individual taxpayers are studies of the motivations underlying aggressive, yet legal, tax avoidance strategies.

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February 26, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

NY Times: Digital Tax Fight Emerges As Global Economic Threat

New York Times, Digital Tax Fight Emerges as Global Economic Threat:

The world’s top economic leaders warned on Saturday that an international tax fight between the United States and Europe poses a new threat to the global economy if a resolution is not reached this year.

After two years of economic fallout from a trade war between the United States and China, finance ministers and other senior officials at the Group of 20 meeting in Riyadh expressed alarm about an impasse over plans by foreign governments to impose new taxes on American technology companies. If a deal proves elusive in the coming months, European countries will begin collecting levies, which would probably set off retaliatory tariffs from the United States. ...

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February 26, 2020 in Tax, Tax News | Permalink | Comments (0)

Distributive Justice, Indirect Tax, And Emerging Technologies

Andrew Leahey (LL.M. Tax 2019, NYU), Distributive Justice, Indirect Tax and Emerging Technologies: Problems and Solutions:

This paper first gives a brief overview of the concept of distributive justice, and how it might apply to indirect tax rulemaking, expenditures and enforcement. It then gives an overview of the concept of indirect taxation, and applies the aforementioned distributive justice concepts to a concrete example – state sales tax in the United States. This paper proposes policy and enforcement solutions, enabled now by emerging technologies, that might help move indirect and sales tax towards justice. Finally, it outlines conclusions and known limitations to this paper and its underlying proposals.

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February 26, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Tuesday, February 25, 2020

Lockwood Presents The Optimal Taxation Of Lotteries Today At Georgetown

Benjamin B. Lockwood (Wharton) presents The Optimal Taxation of Lotteries: Who P(l)ays and Who Wins? (with Hunt Allcott (NYU) & Dmitry Taubinsky (UC-Berkeley)) at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Brian Galle:

Lockwood 2The average American household spends $665 per year playing state-run lottery games. There is a long-standing debate as to whether these lotteries are a regressive “tax on people who are bad at math” or a “win-win” that generates both consumer surplus and government revenues. We study optimal lottery policy through the lens of optimal taxation, where lotteries are a taxed good whose consumers may be subject to behavioral biases. We derive new sufficient statistics formulas for optimal pricing and attributes of a government-provided good. We then estimate the key parameters using lottery prizes and sales data and a large new nationally representative survey. Individual-level lottery expenditures are highly correlated with survey measures of innumeracy and poor statistical reasoning, but our observable measures of behavioral bias statistically explain only about 15 percent of lottery purchases for the average household. We estimate that lottery demand is highly responsive to ticket prices and jackpot amounts, but not to smaller prizes.

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February 25, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Altshuler Delivers Lecture On The International Tax Landscape: Past, Present And Future Today At San Diego

Rosanne Altshuler (Rutgers) delivers the annual Richard Crawford Pugh Lecture on Tax Law & Policy at San Diego today on The International Tax Landscape: Past, Present and Future:

Altshuler (2020)The Tax Cut and Jobs Act made major changes to the system the United States uses to tax the cross-border income of U.S. corporations. Professor Altshuler will discuss what motivated the changes, what the landscape looks like today, and what we might we expect in future reforms.

About the Richard Crawford Pugh Lecture on Tax Law & Policy
The Richard Crawford Pugh Lecture on Tax Law & Policy brings a distinguished practitioner, judge or government official who has played a significant role in shaping U.S. and international tax policy to the law school each year to discuss current and developing tax law and policy trends. The endowed lecture was established in 2009 in honor of the long and illustrious career of USD's Professor of Law Emeritus Richard Crawford Pugh.

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February 25, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Harvard, Yale And Stanford Law Students Chide Judiciary Over Its Handling Of Sexual Misconduct

Karen Sloan (National Law Journal), Harvard, Yale and Stanford Law Students Chide Judiciary Over Its Handling of Sexual Misconduct:

Stanford Yale HarvardStudents from the top three law schools in the country are pushing the federal judiciary to step up its efforts to combat sexual misconduct by judges, saying they are "frustrated by the slow progress" achieved since the problem came to national attention in 2017.

A coalition of law student groups from Harvard, Yale and Stanford sent a letter Feb. 24 to U.S. Supreme Court Chief Justice John Roberts and the chief judges of the country’s 13 federal appellate courts that urges the judiciary to bolster its mechanisms for judicial clerks and other court employees to report misconduct, and to adopt a more uniform process to collect data on harassment and make it available to the public and to law schools.

“We write on behalf of law students who believe that the federal judiciary has responded inadequately to widespread misconduct and are concerned that the judiciary is not a safe working environment,” the letter reads.

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February 25, 2020 in Legal Ed News, Legal Education | Permalink | Comments (3)

Male Students Ask For — And Get — Grade Changes Far More Frequently Than Female Students

Inside Higher Ed, Male Students Ask For Grade Changes Far More Frequently Than Female Students:

Are male college students more likely than female students to ask for a grade change, and do they do so more frequently when they receive a grade they don’t like? Do male students have more favorable outcomes as a result of asking?

The answer to these questions is yes, according to new research by two university economists.

Male students are 18.6 percent more likely than female students to receive favorable grade changes when they ask for a grade change or challenge a grade, the researchers report.

Cher Hsuehhsiang Li (Colorado State) & Basit Zafar (Arizona State), Ask and You Shall Receive? Gender Differences in Regrades in College:

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February 25, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

Justice Thomas, In Lone Dissent, Thrashes 'Chevron' and His Own 'Brand X' Decision

National Law Journal, Justice Thomas, in Lone Dissent, Thrashes 'Chevron' and His Own 'Brand X' Decision:

Justice Clarence Thomas on Monday sharply criticized his own majority opinion in a 15-year-old telecommunications case and an underlying decision that says courts must give deference to agencies interpreting their own regulations, urging his colleagues to reconsider both rulings.

Thomas wrote alone in an 11-page dissent that said the Supreme Court should have agreed to review the tax case Baldwin v. United States. The Baldwin petition, arriving from the U.S. Court of Appeals for the Ninth Circuit, had asked the justices outright to overrule Thomas’s 2005 decision in National Cable & Telecommunications Assn. v. Brand X Internet Services, a regulatory case that said a federal agency had correctly interpreted the Communications Act of 1934.

Thomas used the Baldwin case to raise and advance his concerns about his prior Brand X decision, and the underlying doctrine called “Chevron deference,” a bedrock part of administrative law that says courts generally adopt agencies’s views, if reasonable, of their rules. That deference has drawn criticism from conservatives members of the court, but no justice has moved to overturn the 1984 ruling.

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February 25, 2020 in Tax, Tax News | Permalink | Comments (1)

The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 73, No. 2 (Winter 2020):

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February 25, 2020 in ABA Tax Section, Scholarship, Tax | Permalink | Comments (0)

White Paper: July 2019 MBE Mean Score

Following up on my previous post, July 2019 Bar Exam Pass Rates Are Poised To Rise, As MBE Scores Increase At Highest Rate In 11 Years:  Adam Maze (Senior Academics Director, Kaplan Bar Review), White Paper - July 2019 MBE Mean Score: Depends on Your Lens:

This autumn, recent law graduates and law school personnel anxiously awaited the results of the July 2019 bar exam. For law graduates, their individual results would largely determine whether they would become a member of the legal profession or have to put their ambitions on hold. For law school officials, aggregate results could signal institutional success or a lack thereof. Overall, however, there was cause for optimism. The National Conference of Bar Examiners (NCBE) reported in September that MBE ® scores had rebounded from the decline observed the prior year. But, what degree of optimism was warranted? And, more importantly, does this optimistic report portend future upward trends in the average MBE ® score and, in turn, in pass rates? 

Most commentary on the July 2019 MBE® results confidently noted that the increase observed in this past summer’s average MBE ® score had positive implications for pass rates for this past summer’s bar exams. And indeed, pass rates in most jurisdictions have increased. But, as for its implications for pass rates on future bar exams, the commentary—to the extent it has addressed this concern—has been varied and couched in circumspection. Some have cautiously suggested that the recent results might signal a turning point in bar passage rates after several years of depressed results. Others have offered a combined sense of uncertainty and pessimism about the long-term significance of the July 2019 MBE ® results, noting that a similar increase observed in the July 2017 MBE ® mean score was immediately followed the next July with a not insignificant decrease in the MBE ® mean score.

To get a sense of where things stand when it comes to average MBE ® scores, we suggest looking at the data from multiple perspectives, that is, through different ways of framing the data. Prioritizing one frame over another might simplify the story we tell ourselves, but it also risks that we tell ourselves a story that—if not wrong—is unduly incomplete. ...

MBE

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February 25, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

New Tool Examines How U.S. Taxes And Spending Affect Income Inequality

Economic Policy Institute, New Tool Examines How U.S. Taxes and Spending Affect Income Inequality:

EPIToday, the Economic Policy Institute is launching a website aimed at shedding light on how the U.S. tax and spending system affects household income up and down the income distribution.

The U.S. Tax & Spending Explorer allows users to take a deep dive into the ways that the federal government affects the inequality of households’ incomes through taxes and through spending on social insurance and safety net programs. The explorer also examines so-called “tax expenditures,” sometimes referred to as the hidden federal budget. ...

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February 25, 2020 in Tax, Tax News, Think Tank Reports | Permalink | Comments (1)

Monday, February 24, 2020

Zelenak Presents Design Of Personal Tax Expenditures Today At BYU

Lawrence A. Zelenak (Duke) presents Giving Credits Where Credits are (Arguably) Due: A Half Century’s Evolution in the Design of Personal Tax Expenditures at BYU today as part of its Tax Policy Colloquium Series hosted by Cliff Fleming and Gladriel Shobe:

Zelenak (2016)In the late 1960s, when Stanley Surrey introduced the concept of tax expenditures and the federal government began producing tax expenditure budgets, personal tax expenditures in the form of deductions (for nonbusiness interest, charitable donations, state and local taxes, and medical expenses) equaled roughly 1.2 percent of GDP and personal tax expenditures in the form of credits were virtually nonexistent. Although Surrey was critical of all tax expenditures, he had particular scorn for tax expenditures in the form of deductions, which he characterized as upside-down subsidies. He explained that converting deduction tax expenditures to credits would make them less objectionable, by eliminating their upside-down character. Over the ensuing half century, Congress has shifted from deductions to credits–gradually for decades, with a dramatic acceleration of the shift in 2017. Today, in sharpest contrast with the Surrey era, major tax expenditures in the form of personal credits equal roughly 1.27 percent of GDP, while major deduction expenditures have fallen to about 0.62 percent. This article describes this fundamental transformation of a significant fraction of the national economy, first from a big-picture perspective, and then with detailed accounts of the evolution of the major personal tax expenditures.

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February 24, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (1)

Kleiman & Barry Present The Arbitrary Foreign Tax Credit At San Diego

Ariel Kleiman (San Diego) & Jordan Barry (San Diego) presented The Arbitrary Foreign Tax Credit at San Diego last Friday as part of its Faculty Colloquium Series:

Kleiman BarryThe foreign tax credit allows taxpayers a dollar-for-dollar offset against U.S. tax liability for foreign income taxes paid abroad. It is a cornerstone of the U.S.’s international tax architecture. Unfortunately, careful analysis reveals that it is surprisingly arbitrary, in two ways.

First, the concept of an income tax is indeterminate, since economically identical levies can be decomposed into multiple combinations of income taxes and other taxes, with the income tax element varying in size. Thus, when considering whether, and to what extent, a levy is an income tax, there is not one “economically correct” answer. Second, policy rationales underlying the foreign tax credit fail to justify limiting it to income taxes only, as current regulations require. Rather, faithfully following purported policy justifications would require expanding creditability to other, non-income taxes. Thus, the credit’s design is strategically arbitrary, as it fails to achieve the goals that the credit is meant to pursue.

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February 24, 2020 in Colloquia, Scholarship, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

The Latest Assault On Tenure: Firing Faculty To Avoid Declaring Financial Exigency

Chronicle of Higher Education, The Latest Assault on Tenure:

[There is a group of tenured faculty whose numbers] are small but whose significance looms large for the future of shared governance and widely understood norms of academic labor: They are professors whose tenured status has not protected them from being laid off as a cost-cutting measure.

Traditionally, institutions that dismiss tenured faculty for business reasons must declare financial exigency — a kind of higher-education version of bankruptcy, what the American Association of University Professors calls "a severe financial crisis that fundamen­tally compromises the academic integrity of the institution as a whole and that cannot be alleviated by less drastic means." ...

[In a recent twist, some colleges have been] firing tenured faculty in order to dodge a declaration of financial exigency. Yet a tenured faculty member, suggests the AAUP, can be fired only for cause related to performance or conduct, or "under extraordinary circumstances such as financial exigency and program discontinuation." ...

Chronicle

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February 24, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

Do The Religious Beliefs Of Law Professors Matter?

Following up on my previous posts:

Michael Simkovic USC), Law Professors Are More Religious Than Scientists, but It Probably Doesn’t Matter Much:

At Taxprof blog, Paul Caron (Dean, Pepperdine) covers a study by James Lindgren (Northwestern) about the religious beliefs and practices of law professors.  Lindgren compares law professors to the overall U.S. population and finds that law professors are more likely to express doubts about the existence of God.

This study is part of a line of research from Lindgren and others which compares law professors to the general population or the median member of congress on dimensions like religious or political views.  In my view, these comparison groups are uninformative and inappropriate for some of the uses to which they have been put.  For example, some argue for hiring preferences for faculty members with certain supposedly under-represented ideological views.

Law professors should not be judged by their ideological beliefs, but by their academic rigor. Law professors should not be compared to the general U.S. population or members of congress, but rather to scientists. Like scientists, law professors are much more highly educated than the general population, have higher incomes, and have opted into a career where they are expected to advance knowledge, often by relying on data collection and analysis based on scientific principles of causal inference.  Even non-empiricists are taught and teach that legal adjudication depends on application of legal rules and standards to facts and evidence, not on faith. (Brian Leiter notes that law professors are also more religious than philosophers).

Karen Sloan (Law.com), Whither The Religious Law Professor?:

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February 24, 2020 in Legal Ed News, Legal Ed Scholarship, Legal Education | Permalink | Comments (5)

Lesson From The Tax Court: What Is 'New Matter' That Shifts Burden Of Proof To IRS?

Tax Court (2017)Tax Court Rule 142 provides that “the burden of proof” in a Tax Court case is generally on the taxpayer.  Among the exceptions is the “new matter” exception.  When the IRS introduces a “new matter” it bears the burden of proof.  In Alvin E. Keels, Sr. v. Commissioner, T.C. Memo. 2020-25 (Feb. 19, 2020) (Judge Colvin) the NOD disallowed certain deductions for lack of substantiation.  After trial the IRS said that taxpayer's error was misapplication of §409A.  The Tax Court said that was a new theory and, hence, a new matter.  Because the IRS had not introduced any evidence to show how the taxpayer had misapplied §409A, the Court handed the taxpayer a sweet, sweet victory.  I read the case as a lesson in how broadly the Tax Court will construe the new matter exception.  The result was that while both the taxpayer and the IRS messed up, it was the IRS error that proved fatal thanks to the burden of proof shift in Rule 142.  I question the result here.  All of that comes below the fold. 

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February 24, 2020 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Mitchell Hamline To Train Peking Faculty To Deliver Online Legal Instruction To Replace Classes Cancelled Due To Coronavirus

Minneapolis Star-Tribune, Minnesota Law School to Jump-Start Online Learning for China University Closed by Coronavirus Restrictions:

MHPThe Mitchell Hamline School of Law's reputation for online classes has expanded all the way to China, where one law school is seeking to learn how to teach students remotely due to the government restrictions over the novel coronavirus outbreak.

Professors from Peking University School of Transnational Law will log in Tuesday to receive training from experts at Mitchell Hamline in St. Paul, which was the first law school in the nation to provide online classes that met the accreditation standards of the American Bar Association.

Training professors so they can teach students in China, where in-person classes have been suspended this spring amid the outbreak, will be rewarding, said Kelly Von Ruden, Mitchell Hamline's director of blended learning, which is a term for coursework completed in-person and online. ...

The Peking law school is unique in providing students in Beijing with a four-year program that combines American and Chinese law school approaches and traditions.

Evacuated From Wuhan, Law Prof Works On Her Law Review Article During 14-Day Mandatory Coronavirus Quarantine

February 24, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

Columbia Hosts Program Today On The Global Consequences Of The U.S. Tax Cuts And Jobs Act

Columbia Business Schools hosts a program today on The Global Consequences of the U.S. Tax Cuts and Jobs Act of 2017:

Columbia Business School LogoWith the Tax Cuts and Jobs Act of 2017, the US government had great goals of improving US competitiveness by lowering the corporate tax rate, enabling the movement of money back to the United States, and driving job growth in the country. More than two years after enactment, there are a number of important questions to consider. Has corporate behavior changed as a result of the legislation? More broadly, how are businesses in the United States and abroad reacting to the changes? What is happening to tax policies around the world? And how might this change in the future, given the resulting deficits, rising US debt levels, and the impending US election?

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February 24, 2020 in Conferences, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

TaxProf Blog Weekend Roundup

Sunday, February 23, 2020

'Learning From Notre Dame And Baylor,' BYU Removes ‘Homosexual Behavior’ As Honor Code Violation

Inside Higher Ed, BYU Removes Policy on Same-Sex Intimacy:

BYU (2015)Brigham Young University's recent removal of “homosexual behavior” as a prohibited and punishable act under its honor code has caused both celebration and skepticism in the LGBTQ community.

On the surface, the removal of a passage in the honor code on Feb. 19 indicates that members of the university who display such physical intimacy will no longer be subjected to disciplinary measures, including removal from the university, which is owned by the Church of Jesus Christ of Latter-day Saints. But in a series of tweets the next day, university representatives said “there may have been some miscommunication” about what the changes mean.

“We have removed the more prescriptive language and kept the focus on the principles of the honor code, which have not changed,” said Carri Jenkins, assistant to the president for university communications. “We will handle questions that arise on an individual, case-by-case basis.”

The response has left many LGBTQ students enrolled at the Utah institution in the dark about how they can express their sexual orientation, since the university did not make it explicitly clear.

Before Wednesday's changes, the university said it would act on "behavior" rather than "feelings or attraction." The now-deleted paragraphs state that homosexual behavior, which "includes not only sexual relations between members of the same sex, but all forms of physical intimacy that give expression to homosexual feelings" is in violation of the honor code.

A spokeswoman for the university declined to explain what the revision will mean for LGBTQ couples who kiss, hug, hold hands, date or otherwise express their sexual orientation in public.

Salt Lake Tribune, BYU and Its Honor Code Are Learning From Schools Such as Notre Dame and Baylor About How to Open Their Arms to the Future:

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February 23, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

What Is Caesar's, What Is God's: Fundamental Public Policy For Churches

Lloyd Hitoshi Mayer (Notre Dame) & Zachary B. Pohlman (J.D. 2021, Notre Dame), What Is Caesar's, What Is God's: Fundamental Public Policy for Churches:

Bob Jones University v. United States is both a highly debated Supreme Court decision and a rarely applied one. Its recognition of a contrary to fundamental public policy doctrine that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case and Congress has shown no desire to change the underlying statutes to alter the case’s result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances.

The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than racial discrimination in education might qualify and fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case. The IRS has taken the position that churches are no different than any other tax-exempt organizations in this context, although it has only denied or revoked the tax-exempt status of a handful of churches based on this doctrine.

The emergence of the Bob Jones University decision in the Obergefell oral argument, along with developments over the past several decades both with respect to the legal status of churches and what arguably could be considered fundamental policy, render consideration of these issues particularly timely. This Article therefore explores whether there are emerging conflicts between a significant number of churches and what could be considered fundamental public policy, not only with respect to sexual orientation discrimination but also with respect to sex discrimination, sanctuary churches, and other areas.

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February 23, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Spokane Bishop Criticizes Gonzaga's Decision To Open The First Jesuit Law School LGBTQ+ Clinic

Catholic News Agency, LGBTQ+ Law Clinic at Gonzaga Law Raises 'Serious Concerns' For Spokane Bishop:

GonzagaGonzaga University’s plan to become the first Jesuit university to open a law clinic focused primarily on LGBT advocacy has raised “serious concerns” for Spokane's Bishop Thomas Daly.

“While the Catholic tradition does uphold the dignity of every human being, the LGBT Rights law clinic’s scope of practice could bring the GU Law School into conflict with the religious freedom of Christian individuals and organizations,” the Spokane diocese said Feb. 19 in a statement to CNA.

“There is also a concern that Gonzaga Law School will be actively promoting, in the legal arena and on campus, values that are contrary to the Catholic faith and natural law.” ...

The Lincoln LGBTQ+ Rights Clinic at Gonzaga was developed in partnership with the school’s Center for Civil and Human Rights, the university said in an announcement Feb. 14.

The clinic “aims to advance the equal rights and dignity of individuals who identify as LGBTQ+ through education, programming, advocacy, research, and legal representation.” It will also provide “a special opportunity for Gonzaga law students to help protect and advance the rights of the LGBTQ+ community,” the university added.

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February 23, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

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 #1:

  1. [302 Downloads]  A New Global Tax Deal for the Digital Age, by Allison Christians (McGill) & Tarcisio Diniz Magalhaes (McGill)
  2. SSRN Logo (2018)[268 Downloads]  How Big is Profit Shifting?, by Kimberly Clausing (Reed College; moving to UCLA)
  3. [167 Downloads]  Tax Wars: How to End the Conflict over Taxing Global Digital Commerce, by Arthur Cockfield (Queen's University)
  4. [139 Downloads]  From Tax Policy to Social Insurance, by Edward Kleinbard (USC)
  5. [122 Downloads]  Reversing the Fortunes of Active Funds, by Adi Libson (Bar-Ilan) & Gideon Parchomovsky (Pennsylvania)

February 23, 2020 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Saturday, February 22, 2020

This Week's Ten Most Popular TaxProf Blog Posts

The Limits Of Nudging: Why Can't California Get People To Take Free Money?

NPR Planet Money, The Limits Of Nudging: Why Can't California Get People To Take Free Money?:

EITC CA 2The Earned Income Tax Credit supplements incomes through the tax code, awarding thousands of dollars each year primarily to low-wage workers with kids. But there's a problem: a huge population of eligible workers fails to file their taxes and get the money each year.

Several years ago, the state of California established their own state EITC (CalEITC) on top of the federal one. Depending on how many kids they have and how much they earn, a Californian who files for both the state and federal credit can get upwards of $6,000. For the poorest households with kids, those tax credits could almost double their household income. There's a lot of money on the table to help the most at-risk families in the state, and California policymakers have grown concerned about the large number of eligible workers failing to file taxes and claim their credits.

In 2018, the state of California and the California Policy Lab, an interdisciplinary think tank of scholars from various University of California schools, started trying to solve this problem, and they commissioned one of the most fascinating experiments in "nudging" we've seen in a while.

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February 22, 2020 in Tax, Tax News | Permalink | Comments (6)

Stephen Ferruolo To Step Down After Nine Years As San Diego Dean

Dean Ferruolo’s Thank You Tour: Nine Years, Nine Cities:

Ferruolo (2020)After nine years as Dean of the University of San Diego School of Law, Stephen C. Ferruolo has announced his plans to step down as dean of the law school in the summer of 2020. Dean Ferruolo will continue his role as a tenured member of the law school faculty, concentrating on teaching, scholarship, and coaching the Transactional Law Team.

We are grateful for the leadership Dean Ferruolo has provided. Notable accomplishments of Dean Ferruolo’s tenure include development of the first-year Experiential Advocacy Practicum, a marked increase in external scholarship funding, expansion of the Legal Clinics (including the launch of the Veterans and Women’s Clinics and revamping the Entrepreneurship Clinic), growth of Academic Success and Bar Program resources, creation of the Washington D.C. Externship program, new exchange partnerships with top law schools around the world, collaborating on two new concurrent degree programs, and leading the Transactional Law Team to a national championship. As a practicing member of the State Bar of California, Dean Ferruolo has advanced USD Law’s relationships with and connections to the legal community and the judiciary.

Stephen is the longest serving dean in San Diego's history. He has been a leader among deans nationwide and in California, particularly in his work advocating for bar exam reform. A search committee has been established to conduct a nationwide search, co-chaired by Professor Michael Devitt.

February 22, 2020 in Legal Ed News, Legal Education | Permalink | Comments (1)

Newman: Reforming College Admissions Through The Charitable Deduction

Joel S. Newman (Wake Forest), Charitable Contributions and College Admissions: A Proposal, 165 Tax Notes 1453 (Dec. 2, 2019):

Payments of $20,000 or more to colleges should be denied charitable contribution deductions when (1) the child or grandchild of the payer has applied for admission and (2) the payment is made during the year in which the application is considered.

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February 22, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Friday, February 21, 2020

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Newman's Sales And Donations Of Self-Created Art, Literature, And Music

This week, David Elkins (Netanya, visiting Cornell Spring 2020) ) reviews a recently posted work by Joel S. Newman (Wake Forest), Sales and Donations of Self-Created Art, Literature, and Music, 12 Pitt. Tax. Rev. 57 (2015):

Elkins (2018)

I have always enjoyed the writings of Professor Joel Newman. He combines insightful analysis with a touch of humor that is distinctive in the tax discourse. In the article reviewed here, Professor Newman discussed the tax treatment of sales and donations of self-created art, literature and music.

The first part of the article concerns sales. In 1948, General Dwight D. Eisenhower sold his memoirs. As he was a general and not a professional writer, the sale of those memoirs received capital gains treatment. In response, Congress enacted what is now §1221(a)(3), which provides that the term capital asset does not include “a copyright, a literary, musical, or artistic composition, a letter or memorandum, or similar property, held by a taxpayer whose personal efforts created such property.” Thus, the sale of memoirs by a future general would produce ordinary income. In 2005 Congress made an exception to the general rule (pun intended) and granted songwriters capital gains treatment on the sale of copyright to their works.

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February 21, 2020 in David Elkins, Scott Fruehwald, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Law Journals And Scholarly Integrity In The Digital Age

Janet Sinder (Brooklyn), Correcting the Record: Law Journals and Scholarly Integrity in the Digital Age,:

In the age of electronic publications, post-publication correction of errors in law journal articles may seem like a simple, technical matter. Unfortunately, a lack of standardized practices or policies related to errors discovered after publication has allowed multiple versions of articles to co-exist and retracted or plagiarizing articles to remain unnoted. An examination of a sampling of articles with publication errors highlights the need for a uniform system to allow readers to know which version of an article is the most current and correct, what changes have been made to corrected articles, and whether other, even more serious, problems were discovered.

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February 21, 2020 in Legal Ed Scholarship, Legal Education | Permalink | Comments (0)

Graetz & Shapiro: The Wolf At The Door: The Menace Of Economic Insecurity And How To Fight It

Michael J. Graetz (Columbia) & Ian Shapiro (Yale), The Wolf at the Door: The Menace of Economic Insecurity and How to Fight It (Harvard University Press 2020):

WAD.Front CoverThe acclaimed authors of Death by a Thousand Cuts argue that Americans care less about inequality than about their own insecurity. Michael Graetz and Ian Shapiro propose realistic policies and strategies to make lives and communities more secure.

This is an age of crisis. That much we can agree on. But a crisis of what? And how do we get out of it? Many on the right call for tax cuts and deregulation. Others on the left rage against the top 1 percent and demand wholesale economic change. Voices on both sides line up against globalization: restrict trade to protect jobs. In The Wolf at the Door, two leading political analysts argue that these views are badly mistaken.

Michael Graetz and Ian Shapiro focus on what really worries people: not what the rich are making but rather their own insecurity and that of people close to them. Americans are concerned about losing what they have, whether jobs, status, or safe communities. They fear the wolf at the door. The solution is not protectionism or class warfare but a return to the hard work of building coalitions around realistic goals and pursuing them doggedly through the political system. This, Graetz and Shapiro explain, is how earlier reformers achieved meaningful changes, from the abolition of the slave trade to civil rights legislation. The authors make substantial recommendations for increasing jobs, improving wages, protecting families suffering from unemployment, and providing better health insurance and child care, and they guide us through the strategies needed to enact change.

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February 21, 2020 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Concordia’s Boise Law School Gets New Parent, Will Not Close

Following up on my previous posts:

Idaho Statesman, Concordia’s Boise Law School Gets New Parent. Here’s How That Affects Students, Workers:

A Minnesota university has agreed to take over operation of the Concordia University School of Law in Boise.

This fall, the Boise law school will become part of Concordia University St. Paul, the two Lutheran schools announced at a news conference Thursday.

The agreement removes the threat that the school might cease along with the rest of Concordia University in Portland, which opened the law school eight years ago but which is now closing.

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February 21, 2020 in Legal Ed News, Legal Education | Permalink | Comments (0)

UC-Hastings Hosts Symposium Today On Revolution or Evolution: Administrative Law In The Age of Trump

Hastings Law Journal Symposium: Revolution or Evolution: Administrative Law in the Age of Trump:

UC Hastings LogoThis year, we will consider how the Trump administration has pushed the boundaries of regulatory policy and upended longstanding policy assumptions in a variety of different domains. Specifically, the symposium will consider the Trump administration’s use of administrative procedures to advance policy goals, the judicial response to Trump administration policies, and whether any administrative law doctrines and theories should be reconsidered. At the symposium, we plan on having panels dedicated to discussing how the Trump administration’s use of administrative law has impacted environmental law, immigration law, and tax policy.

Tax Law Panel:

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February 21, 2020 in Conferences, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

NY Times: Harvard, 38 Other Colleges Allow Students To Indicate Their Pronouns On Course Rosters

New York Times, Gender Pronouns Can Be Tricky on Campus. Harvard Is Making Them Stick.:

Pronouns 2For generations of future diplomats and cabinet officials educated at Harvard’s renowned John F. Kennedy School of Government, orientation day has come with a name placard that the students carry from class to class, so their professors can easily call on them.

When Diego Garcia Blum, 30, got his placard last fall, the first-year graduate student immediately took a Sharpie to it, writing “He/Him” next to the big block letters of his name. Other students did the same thing, writing “She/Her” and “They/Them.”

“Yup! Day 1,” Mr. Garcia Blum, recalled, adding, “That’s when I thought, the students are ahead of the school.”

But despite its reputation as a bastion of the establishment, the Kennedy School followed the students’ lead, agreeing to provide clear plastic stickers this semester with four pronoun options that students could apply to their name cards: “He/Him,” “She/Her,” “They/Them” and “Ze/Hir.” ...

Last week New York University said students would now be able to indicate their pronouns in the system that provides class rosters and seating charts to faculty members. At least 39 other schools allow students to indicate their pronouns on course rosters, according to a national clearinghouse maintained by the director of the University of Massachusetts Amherst’s Stonewall Center.

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February 21, 2020 in Legal Ed News, Legal Education | Permalink | Comments (1)

Thursday, February 20, 2020

Liscow Presents Equality, Taxation, And Law & Economics Today At Indiana

Zach Liscow (Yale) presents Equality, Taxation, and Law and Economics in the 21st Century at Indiana today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

Liscow (2017)Inequality is one of the defining issues of our time. Orthodoxy among public policy scholars, prominently including those in law and economics, has long been that the most effective means of addressing inequality is through taxes and transfers—in other words, cash. Given the choice between cash and in-kind legal changes, goods, or services, cash seems better because it lets the recipient choose what to get and the payer choose what to give up. So the law should ignore equity and let its distributive alibi, taxes, address those concerns.

Unfortunately, our standard approach is deeply at odds with social reality, so it yields bad policy prescriptions that fail to address or even magnify inequality. Ordinary people don’t think about policy like economists do, fungibly trading off redistribution through one means or another. Instead, people view policies through their own internal norms. For tax policy, the poor are deemed to not deserve free cash and the rich are deemed to deserve a decent share of their income, thwarting sufficient redistribution through taxation. A democracy where Congress is attentive to such views will need to look elsewhere to achieve distributive justice.

The Article turns standard economics prescriptions on their heads.

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February 20, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Oei Presents Falling Short In The Data Age Today At Northwestern

Shu-Yi Oei (Boston College) presents Falling Short in the Data Age (with Diane Ring (Boston College)) at Northwestern today as part of its Advanced Topics in Taxation Colloquium Series hosted by Herbert Beller, David CameronCharlotte Crane, Sarah LawskyAjay MehrotraPhilip Postlewaite, and Jeffrey Sheffield:

Oei (2019)Humans are imperfect and do not always comply with the law, but the reality is that we are sometimes permitted to fall short of law’s requirements without consequences. This informal space to fall short and not be held accountable—which may arise from a confluence of information imperfections, resource constraints, politics, or luck—exists in addition to formal legal provisions that allow flexibility and discretion (such as tiered penalties or equitable provisions allowing leniency under specified circumstances). Fall-short spaces often pass unnoticed, but are in fact quite significant in intermediating the relationship between humans and the law.

This Article examines how the increasing access to data and information will change the availability and shape of law’s fall-short spaces. We introduce a taxonomy of how leeway arises, outlining the reasons it exists and the different ways it is deployed. Applying this taxonomy, we show how increasingly ubiquitous data and information have caused and will continue to cause the availability of leeway to contract, and we highlight the risk that we will see disparate contraction for different populations.

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February 20, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)