TaxProf Blog

Improv For Law Students

Ben Bratman (Pittsburgh), Improv for First-Year Law Students?:

Just over a year ago, in search of a mid-life growth opportunity, I began taking improv (i.e., improvisational performance) classes at a small theater in Pittsburgh. For decades, I had been a fan of improv as a comedy form but did not have the confidence to think that I could step on a stage and do it myself. Then I happened upon Alan Alda’s book, If I Understood You, Would I Have This Look on my Face? Post his acting career, Alda has become a communications consultant of sorts, working primarily with scientists to help them explain complex ideas in ways that a lay audience can understand. One of the central messages of the book is that improv training and exercises can help professionals of all types relate to others more empathetically and communicate with others more confidently and clearly. Alda references studies showing the benefits of improv training and describes his own experiences running improv exercises for groups of engineers and other scientists.

After reading Alda’s book, I realized that my job as a law professor is to communicate complex ideas to a lay audience too. So, I decided that I could benefit from improv classes—and have some fun at the same time.

My improv experiences over the past year, including joining a team and performing numerous short sets before a live audience, have convinced me that, in short, legal education needs improv. More specifically, to improve the learning environment throughout law school, entering first-year law students need improv! (I could write a separate post on the salutary effects that improv training has had on my teaching, but I will focus for now on how exposure to improv could benefit law students.)

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Lesson From The Tax Court: Ipse Dixit Cannot Fix It

Mitchel Skolnick and Leslie Skolnick, et al. v. Commissioner, T.C. Memo. 2019-64 (June 3, 2019) (Judge Lauber) teaches an important lesson about the proper use of expert witnesses.  In Skolnick, the Tax Court rejected the taxpayer’s expert witness valuation of of 153 horses at two points in time 7 years apart because the expert did not adequately disclose the facts and methodology used to value each horse.  Judge Lauber held that the taxpayer could not fix the value of the horses through expert’s ipse dixit.

The form of the lesson is also instructive.  Even though the parties went to trial this past April, Judge Lauber’s opinion does not decide the case...directly.  The opinion merely grants an interstitial motion, called a motion in limine, to exclude the expert’s report from the evidentiary record.  One might ask why the Court would take the time to issue an opinion on just one aspect of a case after the bother of a trial.  Why did not the Court just issue an opinion on the merits of the dispute?  After all, if the expert’s opinion is worthless enough to exclude from evidence, it is unlikely to really be helpful in deciding the merits of the case. 

I give my thoughts on both lessons below the fold, although I won’t blame you if you prefer to just watch this classic Monty Python sketch “The Argument Clinic.” Ipse Dixit is the form of argument that predominates in the sketch and is part of what makes it funny.  In real life, however, taxpayer representatives who do not heed today’s lesson will not be laughing. 

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Law Review Diversity Policies Do Not Decrease The Quality Of Published Articles

Adam S. Chilton, Jonathan S. Masur & Kyle Rozema (Chicago), Affirmative Action in Law Reviews:

Policies designed to increase the diversity of law review editors are being challenged in court. The lawsuits claim that, by "illegally us[ing] race and gender as criteria for selecting law students to staff their most elite academic journals," the law reviews have diminished the quality of the articles they publish. We test this claim by using citations as a measure of article impact and studying changes in diversity policies at the flagship law reviews of the top 20 law schools. Using data on the citations of articles published since 1960, we find no evidence that diversity policies for editor selection meaningfully decrease the impact of published articles. In fact, we find at least some evidence that diversity policies may actually increase the impact of published articles. 

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Unanimous Supreme Court: State Cannot Tax Out-Of-State Beneficiary On Undistributed Trust Income
• Untangling Fear In Lawyering
• Congress Enacts Robust Protections For Tax Whistleblowers

Sunday:

• Mankiw: The National Debt Is Still A Problem
• Death Of William Brown (Pittsburgh): 'He Made Tax Law Fun'
• Academic Freedom And The Catholic University
• The Top Five New Tax Papers

Mankiw: The National Debt Is Still A Problem

New York Times op-ed:  The National Debt Is Still a Problem, by Greg Mankiw (Harvard):

“I’m the king of debt.” So declared Donald Trump while running for president in 2016. Alas, he was not kidding.

When President Trump moved into the White House, the government debt held by the public stood at $14.4 trillion. The most recent figure is $16.1 trillion. And under current law, that number will keep rising with no end in sight. ...

Historically, the most important cause of large deficits has been spending on wars. ... Running a large budget deficit is also reasonable during an economic downturn. ...

But the current budget deficit is not as easily justified. President Trump says his goal is to scale back military entanglements around the world, so temporary wartime spending is no excuse. Nor is the state of the economy. It is currently strong, with employment having grown robustly over the past two years. The unemployment rate is 3.6 percent, its lowest level since 1969.

In these circumstances the norm should be a small budget deficit, or even a surplus. But that is not the case now. In 2018, the deficit was 3.9 percent of G.D.P., compared with an average deficit of 2.1 percent of G.D.P. over the previous 70 years.

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Death Of William Brown (Pittsburgh): 'He Made Tax Law Fun'

Pittsburgh Post-Gazette, Obituary: William J.W. Brown, a Longtime Pitt Law Professor Who Made Tax Law 'Fun':

Anyone who thinks tax law can’t be fun probably didn’t have William J.W. Brown as a professor.

The longtime Squirrel Hill resident so excelled at explaining the intricacies of federal and estate tax law to legions of attorneys-in-the-making at the University of Pittsburgh Law School that even those who had no intention of ever advising a client on such matters often ended up taking his upper level classes anyway, just to hear him teach.

“He was just so affable, and committed to what he was doing as a professor,” said Larry Frolik of Oakland, a longtime friend and colleague.

Mr. Brown was so good, in fact, that at his retirement party in 2000, he discovered someone had anonymously donated $1 million to the school in his honor. ...

After earning a degree from Catholic University’s Columbus School of Law in 1963, he took a job with a law firm on Wall Street. To his mother’s dismay, it wouldn’t last; Catholic invited him back to teach, and he quickly discovered he loved it, said his wife of 35 years, Eliza Brown. 

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Academic Freedom And The Catholic University

John M. Breen (Loyola-Chicago) & Lee J. Strang (Toledo), Academic Freedom and the Catholic University: An Historical Review, a Conceptual Analysis, and a Prescriptive Proposal, 15 U. St. Thomas L.J. 253 (2019):

This Essay is composed of four parts. In Part I, we sketch the origins of the concept of academic freedom in colleges and universities in the United States. We then examine the contemporary understanding of the concept as set forth in the 1940 Statement of Principles on Academic Freedom and Tenure. Next, we provide a brief history of the experience of academic freedom in Catholic universities in the United States. This history includes a series of pivotal controversies in the 1950s-1960s at four Catholic universities: the University of Notre Dame, St. John’s University, the University of Dayton, and the Catholic University of America. It also includes a brief review of two transformative documents — the Land O’Lakes Statement (1967) and The Catholic University in the Modern World (1972) — in which leading Catholic educators endeavored to articulate a conception of a modern Catholic university that included a robust role for academic freedom. In light of these developments, Catholic universities revised their policies on academic freedom.

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The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #2 and #5:

1. [463 Downloads]  International Effective Minimum Taxation – The GLOBE Proposal, by Joachim Englisch (University of Muenster) & Johannes Becker (University of Muenster)
2. [445 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
3. [203 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
4. [154 Downloads]  Critical Tax Thinking, by Edward Kleinbard (USC)
5. [130 Downloads]  The Supreme Court, Due Process and State Income Taxation of Trusts, by Bridget Crawford (Pace) & Michelle S. Simon (Pace)

This Week's Ten Most Popular TaxProf Blog Posts

1. James Goodnow (Fennemore Craig, Phoenix), Why ‘A’ Students Struggle In BigLaw
2. Bryan Camp (Texas Tech), Lesson From The Tax Court: Your Brand Is Your Business
3. Toronto Sun, The Mother-In-Law From Hell In The Dan Markel Murder Case
4. Department of Justice, DOJ Backs Treasury Secretary Mnuchin's Refusal To Release Trump's Tax Returns To Congress
5. D.C. Circuit, Black Law Professor Ostensibly Denied Tenure For Lack Of Scholarship May Sue D.C. Law School
6. Wall Street Journal, The Long Road To The Student Debt Crisis
7. Forbes, Low-Tax States Are Adding Jobs 80% Faster Than High-Tax States Due To GOP Tax Law
8. YouTube, After Ouster From Deanship For Representing Harvey Weinstein, Law Prof Blasts Harvard's Capitulation To A 'Loud Minority Of Students'
9. Tallahassee Democrat, Dan Markel Murder Suspects To Stand Trial On Sept. 23
10. Steve Friedland (Elon), Law School Teaching And The Forgetting Curve

Unanimous Supreme Court: State Cannot Tax Out-Of-State Beneficiary On Undistributed Trust Income

North Carolina Dept. of Revenue v. Kimberley, No. 18–457 (June 21, 2019):

Joseph Lee Rice III formed a trust for the benefit of his children in his home State of New York and appointed a fellow New York resident as the trustee. The trust agreement granted the trustee “absolute discretion” to distribute the trust’s assets to the beneficiaries. In 1997, Rice’s daughter, Kimberley Rice Kaestner, moved to North Carolina. The trustee later divided Rice’s initial trust into three separate subtrusts, and North Carolina sought to tax the Kimberley Rice Kaestner 1992 Family Trust (Trust)—formed for the benefit of Kaestner and her three children—under a law authorizing the State to tax any trust income that “is for the benefit of” a state resident, N. C. Gen. Stat. Ann. §105–160.2. The State assessed a tax of more than $1.3 million for tax years 2005 through 2008. During that period, Kaestner had no right to, and did not receive, any distributions. Nor did the Trust have a physical presence, make any direct investments, or hold any real property in the State. The trustee paid the tax under protest and then sued the taxing authority in state court, arguing that the tax as applied to the Trust violates the Fourteenth Amendment ’s Due Process Clause. The state courts agreed, holding that the Kaestners’ in-state residence was too tenuous a link between the State and the Trust to support the tax.

Held: The presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain to receive it. Pp. 5–16.

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Untangling Fear In Lawyering

Alexander H. Schmidt, Beyond the Bravado: Some Lawyers Are Scared to Death (reviewing Heidi K. Brown (Brooklyn), Untangling Fear in Lawyering: A Four-Step Journey Toward Powerful Advocacy (2019)):

Great lawyering in the modern era frequently comes from a source far removed from the confident bravado of the lawyer stereotype portrayed in films and on TV. In her fourth book, The Introverted Lawyer: A Seven-Step Journey Toward Authentically Empowered Advocacy (2017), Brooklyn Law School Prof. Heidi Brown revealed that, in a profession dominated by extroverted, self-assured and garrulous personalities, it is often quiet, withdrawn and even under-confident lawyers who shine at the heavy lifting of intellectual research, creative thinking and persuasive writing demanded at the highest levels of today’s competitive and challenging legal environment.

Introverted, shy and socially anxious law students and lawyers, we learned, are hidden gems that every law professor and law firm manager should seek and hone towards self-actualization to maximize their schools’ prestige and their firms’ profits. While dedicated to reassuring reticent lawyers that they are not alone and, given their inward-looking nature, that they can possess essential legal skills of insight, empathy and analytical attentiveness that more outgoing lawyers sometimes do not develop, her earlier book The Introverted Lawyer also served as a much-needed clarion inviting the legal profession to shake off its dusty bias favoring extroversion and embrace the talents and value introverts bring to the table.

Professor Brown’s most recent book, Untangling Fear In Lawyering, is likewise a must read for legal professionals. The book first reminds us that introverts not only belong but can thrive as lawyers—even high stakes litigators—advancing both the profession and the law itself. It then takes the next needed step by providing a wisdom-laden instruction manual that quiet and anxious students, lawyers and their mentors can use to unwind the misaligned thinking, loss of self-esteem and resulting despair that can accumulate in introverts once they are thrust into the arena and expected suddenly to excel at what for them are inherently discomforting tasks: public speaking, facing critical judges and handling hostile adversaries, difficult clients or abusive superiors. ...

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Congress Enacts Robust Protections For Tax Whistleblowers

Jason Zuckerman & Matthew Stock, Congress Enacts Robust Protections For Tax Whistleblowers:

Although plagued by delays and other challenges, the IRS Whistleblower Reward Program has achieved some success in encouraging insiders with information about significant tax underpayments to come forward.  Since Congress established the IRS Whistleblower Program in 2006, whistleblower disclosures to the IRS have enabled the IRS to recover $5 billion, and the Whistleblower Office has awarded whistleblowers approximately $811 million.

But many whistleblowers are reluctant to come forward because there is no federal law protecting tax whistleblowers against retaliation.  For several years, the IRS Office of the Whistleblower has called on Congress to enact statutory protections from retaliation.  In its FY 2018 annual report to Congress, the IRS Whistleblower Office notes that  “[p]roviding whistleblowers with a zone of protection from economic or physical harm is imperative to the success of any whistleblower program as Congress has recognized in other whistleblower statutes . . . The need for greater protection of whistleblowers is amplified as sophisticated taxpayers are increasingly attempting to learn the existence or identity of a whistleblower.”

This week, Congress heeded that request by enacting robust whistleblower protections for tax whistleblowers, modeled on the whistleblower protection provisions of the Sarbanes-Oxley Act and False Claims Act. 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Shanske's State Responses To Federal Tax Law

This week, Mirit Eyal-Cohen (Alabama) reviews Darien Shanske (UC-Davis), States Can and Should Respond Strategically to Federal Tax Law, 45 Ohio N.U. L. Rev. ___ (2019).

Shanske writes this timely symposium piece as part of the aftermath of the Tax Cuts and Jobs Act (TCJA) as states are forced to respond to significant federal tax changes on conformity issues, namely whether and how to adapt to the changes made to federal tax law. The gist of Shanske’s argument is that as a matter of state tax policy, states do not need to conform to the TCJA. Rather, they should view conformity as an opportunity to be strategic and adopt only some federal law but not all in a particular area.

Nevertheless, states acting strategically may disincentivize behavior by taxing it thus undermine national goals.  For example, if a state chooses to levy a sufficiently high tax on an activity that the federal government incentivized (like a railroad system) as to thwart that activity altogether it could be very problematic. So Shanske is looking to draw the line that divides state autonomy and federal sovereignty. He outlines fiscal federalism in theory and practice and incorporates comparative constitutional perspectives to inform the appropriate – and actual – approach that constitutional law takes as to the preemption of state taxes.

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Weekly Legal Education Roundup

• ABA Journal, Mindfulness training helped 1Ls reduce stress and improve well-being, study finds
• Vikram Amar (Dean, Illinois), What Can Law Profs Learn — From Grading Exam Answers — About How To Write Good Questions?
• Bloomberg Law, Fired Black Law Professor May Sue D.C. Law School
• Paul Caron (Dean, Pepperdine), AAUP Adds Vermont To List Of Schools Sanctioned For 'Serious Departure' From Shared Governance In Detenuring 14 Of 19 Law Profs To Close $2 Million Budget Gap
• Paul Caron (Dean, Pepperdine), ABA Sends Proposed Accreditation Standard Changes Out For Notice And Comment

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Tax Policy In The Trump Administration

• Bloomberg Law, Taxpayer Advocate Service 'Drowning' in Cases, Causing Delays
• Bloomberg Law, Treasury Still Weighing Options on Opportunity Zone Guidance
• Bloomberg Law, Trump’s Tax Cuts Could Die the Hard Way: A Little at a Time
• Bloomberg Law, A Year After ‘Wayfair,’ Revenue Uncertain, Legal Issues Coming
• Bloomberg News, The Case for a Financial Transaction Tax

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Trump's Taxes And Tax Returns

• Boston Globe, Steyer's Group Continues Pressure on Neal to Get Trump's Tax Returns
• Daily Signal, Making Trump’s Tax Returns Public Could Endanger Privacy of Your Tax Returns
• The Hill, Liberal Group Presses Democratic Chairman to File Lawsuit for Trump's Tax Returns Quickly
• New York Times, Justice Dept. Backs Mnuchin’s Refusal to Release Trump’s Tax Returns
• Newsweek, Donald Trump's Taxes: Liberal Group Takes Aim at Democrat Who's Yet to File Lawsuit For President's Finances

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Tenured Professor Files Gender, Racial Discrimination Lawsuit Against Idaho Law School, Former Dean

Idaho Statesman, UI Law School, Former Dean Face Gender, Race Discrimination Lawsuit:

A black female University of Idaho law professor has filed a lawsuit against the university, its law school and a former dean alleging race and gender discrimination and retaliation.

According to the complaint filed June 19 in Boise federal court, Shaakirrah Sanders joined the UI College of Law as a tenure-track associate professor in 2011. She earned tenure in 2016. She is the only professor of color and woman of color who has earned tenure or the rank of full professor in the law school.

After Mark L. Adams became law school dean in 2014, Sanders claims he began a “pattern of disparate terms and conditions” of her employment. When she raised concerns, she says he and the law school began retaliating against her.

In one example, Sanders said she wanted to teach a specific class that she had taught before and is in her area of academic research. That course was instead offered “to a white professor with less seniority, who had not taught the class, did not have scholarship in that area, and did not want to teach it,” according to the lawsuit. Similarly, the university then reassigned another class Sanders had been teaching “to a white, male visiting professor, who had not taught the subject and who was allowed to teach it remotely from Moscow, something Professor Sanders had been told she was not allowed to do,” according to the lawsuit. ...

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NY Times: Trump Awards Presidential Medal Of Freedom To Arthur Laffer, Tax-Cut Guru

New York Times, Trump Awards Presidential Medal of Freedom to Arthur Laffer, Tax-Cut Guru:

President Trump bestowed the nation’s highest civilian honor on the conservative economist Arthur Laffer on Wednesday, praising him for policies that he said brought “greater opportunity for all Americans.”

Mr. Laffer is the father of so-called supply-side economics, and is the namesake of a famed theory — the Laffer Curve — which posits that reducing certain tax rates can actually increase government tax revenues by accelerating economic growth. He helped write Mr. Trump’s campaign tax plan and has advised the president on economic policy. He is also the mentor of Larry Kudlow, the director of the White House National Economic Council.

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Dan Markel Murder Suspects To Stand Trial On Sept. 23

Tallahassee Democrat, September Trial Date Set For Accused Markel Murderers:

A fall trial date was set Tuesday for two people charged with killing Florida State law professor Dan Markel.

After a last minute delay in the joint trial of Katherine Magbanua and Sigfredo Garcia earlier this month, they will face murder, conspiracy to commit murder and solicitation of murder on Sept. 23.

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National Taxpayer Advocate Nina Olson Delivers Her Final Report To Congress

IR-2019-119, National Taxpayer Advocate Nina Olson Delivers Her Final Report to Congress:

National Taxpayer Advocate Nina E. Olson today released her 37th and final report to Congress in advance of her previously announced retirement on July 31. In the preface, Olson reflects on her 18 years in the job and provides her assessment of the key challenges facing the IRS and the Taxpayer Advocate Service (TAS) in the coming years. The report also presents a review of the 2019 filling season.

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Freedman: Restoring Trust In The ‘Fairness’ Of Corporate Taxation

Judith Freedman (Oxford), Restoring Trust in the ‘Fairness’ of Corporate Taxation: Increased Transparency and the Need for Institutional Reform, in Tax and Trust Institutions, Interactions and Instruments (Sjoerd Goslinga (Leiden) et al. eds. 2018):

This paper examines the relationship between trust and transparency in the context of corporate taxation. Transparency will not always increase trust and might even undermine it. Sometimes this loss of trust will be deserved and might help to bring about change that is needed, but at other times transparency can lead to misunderstanding and inability to absorb or utilize the information that is being made available, with a consequential unjustified and unfortunate loss of trust. In such cases, increased transparency can actually lower tax morale and the willingness of taxpayers to pay their taxes voluntarily, with little or no corresponding benefit.

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February 2019 California Bar Exam Results

Following up on my previous post, 31% Passed February 2019 California Bar Exam, Up 4% From Last Year: the California State Bar has released school-by-school data on the February 2019 California Bar Exam. The pass rate for first-time test-takers from California ABA-approved law schools was 45.2%, down 0.1% from last year. Here are the results for the California ABA-approved law schools with ten or more test-takers released by the bar (as well as Pepperdine's data) and each school's U.S. News ranking (California and overall):

Bar Pass Rank (Rate)	School	US News Rank CA (Overall)
1 (66.7%)	Pepperdine	7 (51)
1 (66.7%)	Santa Clara	11 (104)
3 (64.3%)	San Diego	10 (86)
4 (63.6%)	USC	4 (17)
5 (45.8%)	Cal-Western	Tier 2
45.2%	Statewide Avg. (CA ABA-Approved)
6 (43.8%)	McGeorge	Tier 2
7 (42.9%)	Western State	Tier 2
8 (42.1%)	Loyola-L.A.	8 (62)
9 (38.5%)	Golden Gate	Tier 2
10 (29.5%)	Thomas Jefferson	Tier 2
11 (28.6%)	Southwestern	Tier 2
12 (25.0%)	Chapman	12 (132)
12 (25.0%)	Whittier	Tier 2

The pass rate for repeat test-takers from California ABA-approved law schools was 37.9%, up 6.6% from last year. Here are the results for the California ABA-approved law schools with ten or more test-takers released by the bar and each school's U.S. News ranking (California and overall):

Bar Pass Rank (Rate)	School	US News Rank CA (Overall)
1 (64.3%)	UCLA	3 (15)
2 (59.3%)	UC-Irvine	5 (23)
3 (58.7%)	UC-Davis	6 (31)
4 (53.1%)	San Diego	10 (86)
5 (52.5%)	Pepperdine	7 (51)
6 (50.0%)	UC-Berkeley	2 (10)
6 (50.0%)	USC	4 (17)
8 (48.3%)	UC-Hastings	8 (62)
9 (46.8%)	Loyola-L.A.	8 (62)
10 (40.9%)	Southwestern	Tier 2
11 (40.7%)	Cal-Western	Tier 2
37.9%	Statewide Avg. (CA ABA-Approved)
12 (37.1%)	Santa Clara	11 (104)
13 (35.6%)	Chapman	12 (132)
14 (34.9%)	McGeorge	Tier 2
15 (27.0%)	Western State	Tier 2
16 (26.8%)	San Francisco	Tier 2
17 (25.4%)	Golden Gate	Tier 2
18 (21.3%)	Whittier	Tier 2
19 (19.4%)	Thomas Jefferson	Tier 2
20 (12.2%)	La Verne	Tier 2

The Recorder, How Law Schools Fared on California's February 2019 Bar Exam:

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Illinois Dean Amar: What Law Profs Learn — From Grading Exam Answers — About How To Write Good Questions?

Vikram Amar (Dean, Illinois), What Can Law Profs Learn — From Grading Exam Answers — About How To Write Good Questions?:

This time of year, as we law professors assess final exams and assign course grades, we naturally reflect on the ways some students could have done better in their test answers. But as I finished grading in my own course over the past few weeks, it occurred to me that it might also be helpful to think — and share my thoughts — about how to improve in creating law school tests. So below I offer — based on my two-and-a-half decades as an exam giver, my several years as an Associate Dean dealing with issues arising from exams given by my entire faculty, and my stint as a dean, that affords me the chance to hear much about what happens not just at my own school but at other law schools — four thoughts for law teachers to consider as they construct future exams.

Frequency
I have come to believe in the past handful of years that midterms (and other, shorter assignments prior to the final exam) are well worth the time investment. ...

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Low-Tax States Are Adding Jobs 80% Faster Than High-Tax States Due To GOP Tax Law

Forbes, Low-Tax States Are Adding Jobs 80% Faster Than High-Tax States Due To Trump's Tax Cut & SALT Cap:

Job growth has been running 80% stronger in low-tax states than in high-tax states since the passage of the Tax Cuts and Jobs Act of 2017 in December 2017. Understanding why holds important lessons for policy, economics, and politics.

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New Study Finds Discrimination Against Women, Racial Minorities In Faculty Hiring

Asia A. Eaton (Florida International), Jessica F. Saunders (UNLV), Ryan K. Jacobson (Florida International ) & Keon West (Goldsmiths University of London), How Gender and Race Stereotypes Impact the Advancement of Scholars in STEM: Professors’ Biased Evaluations of Physics and Biology Post-Doctoral Candidates, Sex Roles: A Journal of Research, Vol. 80, July 2019:

The current study examines how intersecting stereotypes about gender and race influence faculty perceptions of post-doctoral candidates in STEM fields in the United States. Using a fully-crossed, between-subjects experimental design, biology and physics professors (n = 251) from eight large, public, U.S. research universities were asked to read one of eight identical curriculum vitae (CVs) depicting a hypothetical doctoral graduate applying for a post-doctoral position in their field, and rate them for competence, hireability, and likeability. The candidate’s name on the CV was used to manipulate race (Asian, Black, Latinx, and White) and gender (female or male), with all other aspects of the CV held constant across conditions. Faculty in physics exhibited a gender bias favoring the male candidates as more competent and more hirable than the otherwise identical female candidates. Further, physics faculty rated Asian and White candidates as more competent and hirable than Black and Latinx candidates, while those in biology rated Asian candidates as more competent and hirable than Black candidates, and as more hireable than Latinx candidates. An interaction between candidate gender and race emerged for those in physics, whereby Black women and Latinx women and men candidates were rated the lowest in hireability compared to all others. Women were rated more likeable than men candidates across departments. Our results highlight how understanding the underrepresentation of women and racial minorities in STEM requires examining both racial and gender biases as well as how they intersect.

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Chaffee: Collaboration Theory And Corporate Tax Avoidance

Eric C. Chaffee (Toledo), Collaboration Theory and Corporate Tax Avoidance, 76 Wash. & Lee L. Rev. ___ (2019):

Tax revenue is the primary source of income for the government, yet corporations regularly engage in tax avoidance. Corporate managers and advisers commonly claim that the corporate form requires that they undertake this behavior because the nature of that form mandates it. Direct and indirect references are made to the classic case of Dodge v. Ford, as providing an edict that corporations must engage in unrelenting profit maximization that requires them to undertake aggressive tax avoidance.

As explored in my co-authored piece with Professor Karie Davis-Nozemack [Georgia Tech), Corporate Tax Avoidance and Honoring the Fiduciary Duties Owed to the Corporation and Its Stockholders [58 B.C. L. Rev. 1425 (2017)], the “Dodge Mandate,” as it may be termed, is far from absolute.

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Why ‘A’ Students Struggle In BigLaw

James Goodnow (Fennemore Craig, Phoenix), Why ‘A’ Students Struggle In Biglaw:

The skills that made you a great student are not enough to make you a great lawyer.

I’ve been thinking for a long time about a piece of advice I received back in my associate days. I was a freshly minted JD. Since I was a kid, I was always motivated to get that “A” in school, and doing so eventually helped me land my first law firm job. When I started practicing, I was confident those grades would translate into the success I could expect as a lawyer.

Then I heard an older partner musing aloud: “Ya know, if I was in charge of hiring, I’d only hire B students. ... Your students who get Cs, you don’t want to hire them. They’re not gonna hack it. But we go out and hire all these law school kids with straight As, and all they know how to do is research, write, and watch Star Wars. They’re going to work a million hours, give you all this great written product, but they’re not going to be out there hitting the bars every night drumming up business. It’s your B students who are in the sweet spot. Smart enough to do the work, but social enough to bring the work in.”

I’ve been mulling this partner’s concept since he uttered it over a decade ago, and I’m still not quite sure where on the spectrum between total nonsense to profound this theory lies. Early in my career, I convinced myself it was nonsense. The more I’ve practiced, however, the more I’ve come to believe that the partner may have been on to something. ...

I ... think this attorney was circling a more basic tension that law firms place on their associates and many young partners: the tension between being a great attorney and a great business developer. ...

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Addressing Developing Countries’ Tax Challenges Of The Digitalization of the Economy

Monica Victor (S.J.D. 2019, Florida), Addressing Developing Countries’ Tax Challenges of the Digitalization of the Economy:

There is a consensus that the existing international taxation rules and standards are not adequate to allocate taxing rights and income among countries, prevent tax base-eroding transactions carried by multinationals and fight harmful tax competition among countries. The digitalization of the economy rushed and escalated the problems, and even developed countries are not able to collect taxes on the profits of multinationals anymore. Thus, countries are pursuing the reform of the international legal tax system focusing on the corporate taxation standards and the tax challenges of the digitalization of the economy. In this context, the challenges faced by developing countries are higher.

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ABA Sends Proposed Accreditation Standard Changes Out For Notice And Comment

At its meeting held on May 16-18, 2019, the Council of the Section of Legal Education and Admissions to the Bar approved for Notice and Comment proposed revisions to the following Standards and Rules of Procedure of the ABA Standards and Rules of Procedure for Approval of Law Schools:

• Standard 202. Resources for Program
• Standard 206. Diversity and Inclusion
• Standard 307. Studies, Activities, and Field Placements Outside the United States
• Standard 310. Determination of Credit Hours for Coursework
• Standard 311. Academic Program and Academic Calendar
• Standard 502. Educational Requirements
• Standard 509. Required Disclosures
• Rule 13. Actions on Determinations of Noncompliance with a Standard
• Rule 29. Teach-Out Plan
• Rules 30-36. Appeals Panel Procedure
• Rule 37. Complaints in General
• Rule 39. Disposition of Complaints

The Council also approved for Notice and Comment proposed revisions to the Criteria for Foreign Summer and Intersession Programs Offered by ABA-Approved Law Schools in a Location Outside the United States of the ABA Standards and Rules of Procedure for Approval of Law Schools.

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Symposium: The Commerce Clause And The Global Economy

Symposium, The Commerce Clause and The Global Economy, 22 Chapman L. Rev. 1-183 (2019):

• Seth Barrett Tillman (Maynooth University), Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. 1 (2019)
• Frank J. Doti (Chapman), Introduction: Withering Stare Decisis, 22 Chap. L. Rev. 15 (2019)
• Michael T. Fatale (Deputy General Counsel, Massachusetts Department of Revenue), Wayfair, What’s Fair, and Undue Burden, 22 Chap. L. Rev. 19 (2019)
• Edward A. Zelinsky (Cardozo), Comparing Wayfair and Wynne: Lessons for the Future of the Dormant Commerce Clause, 22 Chap. L. Rev. 55 (2019)
• Darien Shanske (UC-Davis), Proportionality as Hidden (but Emerging?) Touchstone of American Federalism: Reflections on the Wayfair Decision, 22 Chap. L. Rev. 73 (2019)

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Arizona Republic Releases Database Of Government Employee Salaries, Including Professors

AZ Data Central's Arizona Government Salary Database:

The Arizona Republic has assembled the largest public database of government employees’ salaries in the state. It contains information on more than 150,000 people in 21 agencies, including:

• Arizona state government salaries
• City of Phoenix salaries
• Maricopa County salaries
• Arizona State University salaries
• University of Arizona salaries
• Northern Arizona University salaries
• Salaries for Tucson, Glendale, Scottsdale, Mesa, Tempe, Chandler and other cities
• Salaries for Pima Community College and Maricopa Community Colleges

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How Tax-Motivated Inversions Threaten State Sovereignty

Darren Rosenblum (Pace), The Futility of Walls: How Traveling Corporations Threaten State Sovereignty, 93 Tul. L. Rev. 645 (2019):

Inversions — mergers in which one firm merges with another abroad to avoid taxes in its home country — have spread as globalization has reduced many of the transactional costs associated with relocating. As firms acquire the power to choose the laws that govern them, they challenge the sovereignty of nation-states, who find their ability to tax and regulate firms depleted. States and firms compete in a game of cat and mouse to adapt to this new global reality. The subversion of state power by these firms reveals the futility of walls, both literal and regulatory. This Essay describes the phenomenon of these “traveling corporations” and analyzes several remedies that could limit future mergers. We conclude by arguing that inversions provoke deglobalization and yet may continue to flourish despite it as firms take the lead in dictating global norms.

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Is It Time To Ban 'Manels' (All-Male Panels) In The Academy?

Chronicle of Higher Education, NIH Leader Shuns All-Male Panels. Many Applaud the Gesture, but Not All.:

In late March, Francis S. Collins, director of the National Institutes of Health, was on a plane returning to Bethesda from a visit to the University of Washington. On the West Coast, he heard an earful, not for the first time, about sexual harassment and an unwelcoming atmosphere toward women in science.

Collins has focused on diversity at the NIH for years — for instance, appointing the Stanford cardiologist Hannah Valantine, in 2014, as the institutes’ first Chief Officer for Scientific Workforce Diversity. He’d heard concerns about "manels," all-male panels at scientific conferences — often not only all male but all white — and he had been on them. The "disproportionate overrepresentation of white men," he said in a phone interview on Thursday, is "really not the way we should be handling these kinds of gatherings for the betterment of science."

"I was thinking, What else can we do? I could simply say I’m not going to" participate.

So this week Collins announced that "starting now, when I consider speaking invitations, I will expect a level playing field, where scientists of all backgrounds are evaluated fairly for speaking opportunities. If that attention to inclusiveness is not evident in the agenda, I will decline to take part. I challenge other scientific leaders across the biomedical enterprise to do the same."

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Madoff: The Case For Giving Money Away Now, Rather Than Through Perpetual Private Foundations

Wall Street Journal op-ed:  The Case for Giving Money Away Now, by Ray D. Madoff (Boston College):

When it came to investing, no one was smarter than Lewis B. Cullman, who died June 7 at 100. In 1964 he engineered the first leveraged buyout, enabling him to acquire Orkin Exterminating Co., a company worth $62 million, with only $1,000 cash. In 1977 he bought a small calendar company, expanded and rebranded it as At-A-Glance, and sold it for $550 million.

then turned his attention to philanthropy. How does a smart investor act when his goal is to promote the long-term betterment of the world?

The usual answer is the perpetual private foundation, which allows donors to invest their capital and spend the income for charitable causes in perpetuity. The U.S. tax code encourages the creation of such foundations by giving full tax benefits to the donors and by requiring them to spend only 5% of their assets each year. If their investments earn a decent rate of return, the principal need never be spent on charity. The law even allows administrative expenses—including salaries paid to family members and costs for trustee meetings in exotic locales—to count toward the 5% spending requirement.

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The Mother-In-Law From Hell In The Dan Markel Murder Case

Toronto Sun, Mother-in-Law From Hell:

Donna Adelson did not like her son-in-law.

Not in the least.

For 15 months she unleashed a tidal wave of invective via email to her daughter, Wendi Adelson.

Dan Markel was a preeminent legal scholar, with degrees from Harvard and the University of Toronto. He was also embroiled in a bitter child custody fight with his ex.

In the words of Donna, he was “an idiot” and a “bastard.”

“You suffered under his ‘reign,’” Donna wrote in one email. “Narcissistic personality disorder causes major problems in a marriage.” ...

Cops believe this monster of a mother-in-law was pulling the strings in a twisted murder plot that would leave Markel bleeding out on the driveway of his Tallahassee home. ...

Two people — Sigfredo Garcia, 37, and Kathy Magbanua, 34, the mother of his two children — will soon go on trial in the Panhandle for first-degree murder.

But detectives are under no illusions who really pulled the trigger that sweaty day five years ago. ...

Detectives believe Donna Adelson and Wendi’s older brother Charlie shelled out $100,000 to have the professor taken off the board.

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WSJ: Charitable Gifts Slip In First Year Under New GOP Tax Law

Wall Street Journal, Charitable Gifts Slip in First Year Under New Tax Law:

Charitable donations by individuals dropped last year by the most since the financial crisis as tax-law changes and a late-year stock-market dip dampened the effects of the growing economy, according to a report released Tuesday.

Giving by individuals declined 3.4% in inflation-adjusted dollars to $292 billion, after four straight years of growing by at least 2.4%, according to the annual Giving USA report. Overall, giving was down 1.7% in inflation-adjusted dollars, with the decline in individual donations partially offset by corporations and foundations.

Because tax-return data for 2018 aren’t yet available, the report is among the most comprehensive looks at one of the effects of the tax law that Congress passed in late 2017, and its findings mirror other analyses that found flat giving despite rising incomes. ...

As Republicans were writing the bill in 2017, they argued that the effects on giving wouldn’t be very significant, because taxpayers would have more money in their pockets to be able to donate to charity. ...

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Clausing: Fixing The Five Flaws Of The Tax Cuts And Jobs Act

Kimberly A. Clausing (Reed College), Fixing the Five Flaws of the Tax Cuts and Jobs Act:

The tax legislation commonly referred to as the Tax Cuts and Jobs Act (Public Law 115-97) came into effect in 2018. The new tax law was flawed in five important ways. First, the law generates large deficits that will reduce the ability of government to fund important priorities in the future; these deficits also risk justifying a more tepid fiscal response to the next recession.

Second, after more than 35 years of increasing income inequality, the tax law moves the tax system in a regressive direction.

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Law School Teaching And The Forgetting Curve

Steve Friedland (Elon), The Forgetting Curve:

My first teaching opportunity arose less than a year after graduating from law school when I was asked to teach Evidence to approximately 70 upper level law students at a law school in South Florida. Without training or guidance, I did what many people probably would have done under similar circumstances — essentially replicate what I had seen as a student. I covered assignments day-by-day and waded through the traditional doctrinal topics contained in the traditional casebook I had chosen. For me, it was all about segmented coverage of material.  From a student’s perspective, though, I am sure the class felt very different, more like a grueling teen tour through Europe — 13 countries in three days.

By framing my class as an educational assembly line, I thought I had done my job – cover doctrinal material and foster critical analysis. Now it was the students’ job to learn and apply the substantive doctrines on their own for the exam. Yet if I knew then what I know now, my teaching approach would have been dramatically different.

In the past two decades, scientists using advanced technology have learned so much about the brain, including more about how learning takes place. Scientists have studied what happens to information that is communicated to learners in a class.  Do students immediately store that information in brain files like computers do for ready and easy access whenever the information is needed? Does the process of note-taking mean students can access what they have learned at anytime?  Does multi-tasking affect the learning process? If yes, then how?

The scientific answers to these questions are both nuanced and complex.  They tell us that teaching does not equate to learning, especially long-term retention and recall.  If the goal is to become a self-directed and effective learner, what first counts is paying attention, focusing on information, and then engaging in useful retrieval practices to make that information stick. ...

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Papers From The 2018 IRS-TPC Research Conference On Tax Administration

The IRS has released the papers from the 2018 IRS-TPC Joint Research Conference: on Tax Administration (program, research bulletin):

Foreword

1. Interventions: Factors That Contribute to Voluntary Compliance

• Does Employer Withholding Affect Tax Compliance, and Why? 
  William Boning
• Accountants are not tax advisors: Using random audit data to test the effect of certified accountancy on SME’s tax compliance in Denmark between 2008 and 2014
  Johanne Søndergaard
• Compliance Spillovers Across Taxes: Results from a Field ExperimentResolving Unpaid Taxes and the Notice of Federal Tax Lien: Evidence from the Fresh Start Initiative
  Carlos Scartascini and Andrea López-Luzuriaga

2. Behavioral Responses to IRS Interventions

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Defogging The Path To Full Professor By Expanding The Definition Of Scholarship

Inside Higher Ed, New Paths to Full Professor:

[Worcester Polytechnic Institute] faculty ... got to work to defog the promotion process and, in so doing, improve it. In the end, they decided it was all about scholarship — defined five different ways. This is not just a synonym for traditional research. Each definition is a criterion for promotion to full professor, and professors who excel in some areas but not in others already have succeeded.

• Scholarship of discovery — creation of new knowledge, demonstrated in publications and presentations
• Scholarship of integration — interpretation and analysis of existing knowledge
• Scholarship of application and practice — application of knowledge to address important individual, institutional and societal problems
• Scholarship of teaching and learning — development and improvement of pedagogical practices that are shared with others
• Scholarship of engagement — collaborative partnerships with communities for the mutually beneficial exchange of knowledge and resources ...

Previously, promotion to full professor at the institute was based on the triad of teaching, research and service, with some kind of leadership or distinction in research or teaching. That's an approach commonly used for tenure. And as it does on so many other campuses, WPI’s process appeared to favor what Peter Hansen, professor of history and director of international and global studies, called “traditional publications and funded research.” ...

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Layser: A Typology Of Place-Based Investment Tax Incentives

Michelle D. Layser (Illinois), A Typology of Place-Based Investment Tax Incentives, 25 Wash. & Lee J. Civ. Rights & Soc. Just. __ (2019):

This Article develops a typology of place-based investment tax incentives that can be used to evaluate the relevance of empirical findings, identify new areas of research, and predict the impact of specific tax incentive designs. This typology will be especially valuable for the purpose of analyzing the new federal Opportunity Zones investment tax incentives.

This Article makes several contributions to tax, poverty, and empirical legal literature. First, it defines the category of place-based investment tax incentives and identifies key elements of variation across the category. Second, the typology presented here can be used by both tax and poverty law researchers to help assess the applicability of existing empirical studies to specific types of place-based investment tax incentives. Third, this Article identifies areas for further legal and empirical research.

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Soled: Reimagining The Estate Tax In The Automation Era

Jay Soled (Rutgers), Reimagining the Estate Tax in the Automation Era, 9 UC Irvine L. Rev. 787 (2019):

In a technological age, labor no longer plays the central role it once did in the nation’s economy. Instead, automation has become more ubiquitous. This economic transformation has important and far-reaching consequences for the nation’s tax system and, in particular, the means by which to fund public expenditures.

Under current law, the central underpinning to automatization, namely, capital, yields income that is either lightly taxed or, in some instances, escapes taxation altogether. This puts tremendous stress on the nation’s coffers and further perpetuates wealth disparities. Yet, levying a heavier capital gains tax burden might (i) dissuade taxpayers from realizing their gains and (ii) in a global arena, result in its flight.

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At Harvard Business School, Diversity Remains Elusive

Boston Globe, At Harvard Business School, Diversity Remains Elusive:

For seven years, Steven Rogers has been unrelenting in his push to include more diverse voices in Harvard Business School’s celebrated case studies, its primary tool for helping students understand how real-life business executives tackle crucial decisions.

But this past year, Rogers, one of a handful of black professors at the business school, faced an executive dilemma of his own: What do you do if you are frustrated by your employer’s lack of African-Americans in its faculty, leadership, student body, and featured in its curriculum?

For Rogers, 62, the answer was retirement. The senior lecturer, who has been featured in Harvard’s internal publications for his efforts to excavate and study the stories of overlooked African-American business leaders, said he will step down from teaching at the country’s premier business school, discouraged that the institution has given short shrift to the black experience.

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Netanya Hosts 6th International Roundtable On Taxation And Tax Policy

Session #1: Jurisdiction to Tax
Chair: Lior Davidai (College of Law & Business)
Rifat Azam (Radzyner), Online Taxation After Wayfair: Technology and the One Stop Shop (abstract)
Sagit Leviner (Ono), (Going) Down the Rabbit Hole: Conceptualizing Citizenship in a Globalized World (abstract)
Yariv Brauner (Florida), Taxing the Digital Economy Post BEPS ... Seriously

Session #2: Corporate Taxation and Tax Accounting
Chair: Rifat Azam (Radzyner)
Doron Narotski (Akron), Code Section 304: The Gift That Keeps on Giving
Lior Davidai (College of Law & Business), A New Accord on Timing a Tax-Event Creation is Needed and Cash-Based Reporting Revisited (abstract)

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Illinois Symposium: Basic Income

Symposium, Basic Income, 40 Comp. Lab. L. & Pol'y J. 151-261 (2019):

• The Editors, Introduction, 40 Comp. Lab. L. & Pol'y J. 151 (2019)
• Robert van der Veen (University of Amsterdam) & Loek Groot (Utrecht University), Unconditional Basic Income and the Rejuvenation of the Welfare State, 40 Comp. Lab. L. & Pol'y J. 153 (2019)
• Brishen Rogers (Temple), Basic Income and the Resilience of Social Democracy, 40 Comp. Lab. L. & Pol'y J. 199 (2019)
• Jose A. Noguera (Universitat de Barcelona), The Second-Best Road Ahead for Basic Income, 40 Comp. Lab. L. & Pol'y J. 223 (2019)
• Guy Standing (SOAS University of London), Basic Income as Common Dividends: A Rejoinder, 40 Comp. Lab. L. & Pol'y J. 239 (2019)

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What The Alabama Returned Gift Episode Can Teach Us About Donor Relations

Following up on my previous posts (links below):  Chronicle of Higher Education, U. of Alabama’s Returned Gift Is a Case Study in Donor Relations Gone Bad:

The saga is a case study in how donor relations can go bad, complete with a crescendo of national publicity and a frenzied public-relations effort to set the record straight. ...

The falling out in Alabama is a worst-case example — though hardly the first of its kind — involving universities and big-money donors. Doug White, a philanthropic adviser and author, said it highlighted the need for mutual expectations to be made clear for each party’s role in the relationship after a donation is made or pledged.

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McGovern & Brewer: 2018 Federal Income Tax Developments

Bruce A. McGovern (South Texas) & Cassady V. Brewer (Georgia State), Recent Developments in Federal Income Taxation: The Year 2018, 72 Tax Law. __ (2019) (134 pages):

This article summarizes and provides context to understand the most important developments in federal income taxation for the year 2018. The items discussed primarily consist of the following: (i) significant amendments to the Internal Revenue Code; (ii) important judicial decisions; and (iii) noteworthy administrative rulings and regulations promulgated by the Service and Treasury. The article focuses primarily on subjects of broad general interest — tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties.

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Why Are 99% Of The Applications For Debt Discharge Under The Public Service Loan Forgiveness Program Being Denied, And Will This Change?

Gregory S. Crespi (SMU), Why Are 99% of the Applications for Debt Discharge under the Public Service Loan Forgiveness Program Being Denied, and Will This Change?:

During the first 18 months after October 1, 2017 that student loan borrowers were able to apply for tax-free debt forgiveness under the Public Service Loan Forgiveness program a striking 99% of the 76,002 applications that have been fully processed have been denied. The more recently adopted Temporary Expanded Public Service Loan Forgiveness program also has a 97% to 99% application denial rate, depending on how it is calculated. This short article discusses the various factors that may be contributing to such a bizarrely high denial rate, and why the number of applications filed and the proportion of applications filed that are approved are both likely to increase significantly over time, particularly after 2024, and to a greater extent if the Department of Education improves its currently inadequate borrower outreach and loan servicer oversight activities.

AAUP Adds Vermont To List Of Schools Sanctioned For 'Serious Departure' From Shared Governance In Detenuring 14 Of 19 Law Profs To Close $2 Million Budget Gap

Following up on my previous posts (links below):  AAUP Updates (June 15, 2019):

Delegates to the 105th Annual Meeting of the AAUP voted today ... to add Vermont Law School to the AAUP’s list of institutions sanctioned for serious departures from AAUP-supported standards of academic governance. ...

AAUP sanction is imposed when an institution violates generally accepted standards of college and university governance, as set forth in the Statement on Government of Colleges and Universities. ...

Added to AAUP’s Sanctioned Institutions list in 2019:

Vermont Law School (South Royalton, Vermont) – The investigating committee’s report describes departures from AAUP-supported standards of academic governance evident in a faculty “restructuring” process at Vermont Law School that resulted in lowering salaries, reducing the number of full-time positions, and effectively eliminating the tenured status of nearly 75 percent of the institution’s highest paid faculty members. Fourteen of the nineteen tenured faculty members were essentially turned into at-will employees—transferring the bulk of the teaching load to lesser-paid faculty members serving on contingent appointments and radically reducing the size of the full-time faculty. Faculty members who accepted restructured appointments in lieu of termination were required to sign releases-of-claims and nondisclosure and non-disparagement agreements. The investigating committee found that the faculty played no meaningful role in analyzing, assessing, or, most important, approving the restructuring plan. The report also found that unacceptable conditions of academic governance prevail at the institution.

Vermont Law School Response to AAUP Decision:

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Lesson From The Tax Court: Your Brand Is Your Business

Self-promotion is as American as P.T. Barnum.  So is wanting to avoid tax.  In K. Slaughter v. Commissioner, T.C. Memo. 2019-65 (June 4, 2019), Judge Wells teaches a lesson that all YouTube influencers and their return preparers need to learn: it is difficult to avoid self-employment tax on earnings from self-promotion.  Ms. Slaughter argued that her “brand” was an intangible asset separate from her business of writing crime novels, and so earnings attributed to her brand were not self-employment income.  The Court rejected her attempt to assign part of her earnings to what amounted to her investment in herself.  Her brand was itself her business.  Hey, at least she avoided penalties because her tax position was her accountants’ idea.  However, that leaves the accountants potentially vulnerable to penalties under §6694.  Details below the fold.   

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