Slow Going On Faculty Diversity

Inside Higher Ed, Slow Going on Faculty Diversity:

Despite more universities placing an emphasis on attempting to diversify their faculty ranks, a new study shows very little progress, particularly at research universities. And much of the success in faculty diversity has been in untenured positions.

According to the study, which was published by the Hispanic Journal of Law and Policy from the South Texas College of Law, Houston, colleges in recent years have not seen substantial growth in racial diversity among faculty members.

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NY Times: Immigration Tests Sweden's High Tax/Generous Social Safety Net Model

New York Times, The Nordic Model May Be the Best Cushion Against Capitalism. Can It Survive Immigration?:

Swedes have long been willing to pay high taxes for a generous social safety net. But that willingness is being tested by an influx of refugees.

In a global economy increasingly besieged by rage over inequality and the pitfalls of winner-take-all capitalism, Sweden has long stood out as a kinder, gentler sort of country, a potential template for other nations eager to avoid destructive populism.

The so-called Nordic model that prevails in Sweden, Denmark, Finland, Norway and Iceland has been engineered to protect people from the commonplace economic afflictions assailing many developed countries, and especially the United States. There, the loss of a job can swiftly imperil health care, housing, sustenance and mental well-being. Under the Nordic model, governments typically furnish health care, education and pensions to everyone.

The state delivers subsidized housing and child care. When people lose jobs, they gain unemployment benefits and highly effective job training programs. When children are born, parents avail themselves of paid leave that seems unimaginable in most societies — 480 days in Sweden.

“If you’re born in Sweden, you’ve basically won at life,” says Adam S. Posen, president of the Peterson Institute for International Economics in Washington. ...

But the endurance of the Nordic model has long depended on two crucial elements — the public’s willingness to pay some of the highest taxes on earth, and the understanding that everyone is supposed to work. The state ensures that working-age people are prepared with the skills for high-wage jobs, in industries like technology and advanced manufacturing.

Sweden’s sharp influx of immigrants — the largest of any European nation, as a share of the overall population — directly tests this proposition.

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CALI Law School and Bar Exam Study Skills Fellowship

CALI Announces the Formation of the Law School and Bar Exam Study Skills Fellowship:

The Center for Computer-Assisted Legal Instruction (CALI) announces the formation of the Law School and Bar Exam Study Skills Fellowship. The Fellowship is comprised of members of the academic success community from U.S. law schools. The goal of the Fellowship is to author CALI lessons to develop students’ critical-thinking skills. The materials will be peer-reviewed by the fellowship team and the CALI Editorial Board. Everyone at CALI member law schools will have access to these materials when they are published in late 2019.

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Rethinking Normative Principles In International Tax

Shay Shimon Moyal (S.J.D. 2020, Michigan), Back to Basics: Rethinking Normative Principles in International Tax, 73 Tax Law. ___ (2019):

International Tax is a relatively new legal system that lacks clear objectives and principles. These principles, which guide unilateral legislation and multilateral coordination, have not been discussed thoroughly through the lenses of jurisprudence and legal philosophy. This paper offers a unique jurisprudential analysis of normative International Tax principles by redefining them and clarifying several basic assumptions.

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Indiana-Indianapolis Seeks To Hire A Tax Chair

Indiana University Robert H. McKinney School of Law is seeking to fill a Chair in Taxation to begin in the 2020-21 academic year:

The law school seeks applications from persons with distinguished records of scholarship and teaching who would be eligible for appointment as a full professor with tenure. We are committed to achieving excellence through intellectual diversity and encourage applications from persons of color, women, persons with disabilities, the LGBTQ+ community, veterans, and members of other groups that are under-represented on university faculties. The law school is an Equal Opportunity/Affirmative Action institution with a strong commitment to inclusion and offers domestic partner benefits.

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Min & Kim: Dual-Class Stock And Corporate Spin-offs

Geeyoung Min (Columbia) & Young Ran (Christine) Kim (Utah), Insulation by Separation: When Dual-Class Stock Met Corporate Spin-offs, 9 UC Irvine L. Rev. ___ (2019):

The recent rise of shareholder engagement has revamped companies’ corporate governance structures so as to empower shareholder rights and to constrain managerial opportunism. Notwithstanding the general trend, this Article uncovers corporate spin-off transactions — which divide a single company into two or more companies — as a unique mechanism that insulates the management from shareholder intervention. In a spin-off, the company’s managers can fundamentally change the governance arrangements of the new spun-off company without being subject to monitoring mechanisms, such as shareholder approval or market check. Those changes often empower managers over shareholders. Furthermore, most spin-off transactions enjoy tax benefits. The potential agency problems associated with the managers’ unilateral governance changes can be further compounded when the managers adopt multiple classes of common stock with unequal voting rights (“dual-class stock”) in the new spun-off company without shareholder approval.

This is the first Article to systematically examine the problem from both corporate and tax law perspectives and to offer possible solutions.

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Law Schools' Lost Opportunity To Transition From 3-Year Degree Stopovers To Lifetime Learning Hubs

Forbes:  Law Schools' Lost Opportunity, by Mark A. Cohen (CEO, LegalMosaic; Fellow, Northwestern Center for Practice Engagement and Innovation):

Law schools have ceded an opportunity to shore up their balance sheets and to do right by grads, the legal industry, and the broader society. How? They have failed to transition from three-year degree stopovers to learning centers for life that upskill grads and other professionals throughout their careers. This would have created “stickiness” with alumni/ae throughout their professional lives and transformed law schools into  lifetime learning hubs. In the digital age where competency, micro-credentialing, collaboration, upskilling, people-skills, and agile learning are critical, law schools are relics of the legal guild. Why? 

There are a legion of explanations: complacency, detachment from the University—notably the business, engineering, computer science, and mathematics schools-- as well as the broader legal ecosystem and business community, faculty composition/hiring criteria, the American Bar Association’s ineffective law school accreditation oversight, and absence of accountability and performance metrics—especially student outcomes, and self-regulation. Law schools are an island that has become increasingly detached from the broader legal mainland.

The inertia of law schools, like law firms, went unchallenged for decades. Their applicant pool was plentiful, the job market was robust, the curricula were unchanged and unchallenged, and they were cash positive. That rosy picture fueled the growth and proliferation of law schools from the 1980’s until the global financial crisis of 2008. The confluence of that economic maelstrom and its aftermath coincided with rapid advances in technology, the ever- escalating cost of law school and its three-year hitch, a downturn in the legal job market, and disaggregation of a growing number of “legal” tasks. This resulted in the migration of young talent away from law and into other professional service and business careers.

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U.S. Investment Since The Tax Cuts And Jobs Act Of 2017

Emanuel Kopp, Daniel Leigh, Susanna Mursula & Suchanan Tambunlertchai (IMF), U.S. Investment Since the Tax Cuts and Jobs Act of 2017:

There is no consensus on how strongly the Tax Cuts and Jobs Act (TCJA) has stimulated U.S. private fixed investment. Some argue that the business tax provisions spurred investment by cutting the cost of capital. Others see the TCJA primarily as a windfall for shareholders. We find that U.S. business investment since 2017 has grown strongly compared to pre-TCJA forecasts and that the overriding factor driving it has been the strength of expected aggregate demand. Investment has, so far, fallen short of predictions based on the postwar relation with tax cuts. Model simulations and firm-level data suggest that much of this weaker response reflects a lower sensitivity of investment to tax policy changes in the current environment of greater corporate market power. Economic policy uncertainty in 2018 also subdued investment growth, although to a lesser extent.

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The Taxes Of San Francisco: Bay Area In Vanguard Of Tax Increase Movement

Bloomberg Tax, The More, the Better: San Francisco Leads New Kind of Tax Revolt:

San Francisco is emerging as one of the most receptive places in the country for new taxes.

In recent weeks: 

• San Francisco leaders supported the proposed overhaul of the city’s gross receipts tax structure, which would be the fourth tax-raising proposal on the city’s November ballot.
• A San Francisco Superior Court judge upheld an initiative raising commercial lease taxes to fund early childhood education and upheld a Salesforce.com-backed initiative imposing gross receipts taxes on companies earning more than $50 million to support homeless services.
• A pair of recent court rulings upheld locally passed tax initiatives—including one backing the city’s authority to seek taxes from drivers who use paid parking lots at state universities—which could embolden tax enthusiasts in San Francisco even more.

“I think SF is going to be the poster child, one way or another, for aggressively looking for money from business,” Joseph Bankman, Stanford University professor of law and business, said. ...

San Francisco is emerging as one of the most receptive places in the country for new taxes. In recent weeks: 

• San Francisco leaders supported the proposed overhaul of the city’s gross receipts tax structure, which would be the fourth tax-raising proposal on the city’s November ballot.
• A San Francisco Superior Court judge upheld an initiative raising commercial lease taxes to fund early childhood education and upheld a Salesforce.com-backed initiative imposing gross receipts taxes on companies earning more than $50 million to support homeless services.
• A pair of recent court rulings upheld locally passed tax initiatives—including one backing the city’s authority to seek taxes from drivers who use paid parking lots at state universities—which could embolden tax enthusiasts in San Francisco even more.

“I think SF is going to be the poster child, one way or another, for aggressively looking for money from business,” Joseph Bankman, Stanford University professor of law and business, said. ...

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UC-Davis Mandates Reference Checks In Faculty Hiring

Inside Higher Ed, UC-Davis Adopts Reference Check Policy To Stem Faculty Misconduct:

Last year, the University of Wisconsin System very publicly launched a new policy against "passing the harasser" on to unwitting institutions: It said it would disclose substantiated misconduct findings when contacted for employee reference checks. The system also put checks in place to guard against being passed someone else's harassers.

Around the same time, the University of California, Davis, more quietly established its own pilot policy on faculty reference checks. Experts say this kind of policy is still extremely rare in academe — but that that will soon change.

A year into its pilot, Davis officials are ready to talk about it. Provost Philip Kass, who recently testified about the policy during a Congressional hearing on harassment in the sciences, said Wednesday that he and colleagues sought ways to prevent and otherwise address issues of sexual misconduct on campus. And they started thinking about how it's "possible for faculty to move between universities without the incoming university knowing about substantiated findings and discipline for any reason at a prior university." ...

The policy centers more on advance warning than disclosure. Job ads say that Davis will conduct reference checks into misconduct. Applicants for tenured and continuing lecturer positions must consent to having a reference check. Those who don't consent don't move forward as candidates.

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UC-Irvine Issues Call For Presentations: Machine Intelligence And The Changing Nature Of Tax Practice

The UC-Irvine Graduate Tax Program has issued a call for presentations at its second annual UCI/Lavar Taylor Tax Symposium on Machine Intelligence and the Changing Nature of Tax Practice on February 24, 2020:

The purposes of this full-day symposium is to launch an in-depth discussion on how Artificial Intelligence (AI) is changing or is expected to change the nature of tax practice. We are interested in submissions for proposed presentations on any area related to tax and AI, including any of the relevant subfields such as machine learning, neural networks, big data analytics, natural language processing, etc. The symposium will be attended by tax industry professionals, government officials, and academic researchers. We expect about 150-200 attendees this year. Presenters of accepted submissions will be invited to present at the symposium. The Graduate Tax Program will cover the presenters’ reasonable travel and lodging expenses.   

We accept submissions from:

• Tax practitioners (in law firms, accounting firms, in-house practices, and tax preparation industry);
• Entrepreneurs in relevant fields;
• Government officials, tax policymakers, and tax policy advocates;
• Academic or industry researchers.

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Journal Prestige And Journal Impact In Law

Ignacio Cofone (McGill) & Pierre-Jean G. Malé (Harvard), Journal Prestige and Journal Impact in Law:

While much has been said about the curiosity of the American law review submissions system, something even more curious has been overlooked: American legal scholars ignore the impact-factor of journals, and choose in which journal to publish based on publishing school’s ranking. To investigate whether ranking translates into impact, we collect and analyze historical data from American law journal’s impact-factor and the ranking of their publishing law schools. We first show that there is a correlation between prestige ranking and impact-factor over the years. However, the correlation is not perfect and it varies substantially over time. Second, journal impact-factor shows a larger inter-annual variation than school ranking. This means that impact-factor is a worse predictor of future journal impact than school ranking is of future school prestige. Third, we show that journals published by better law schools have higher inter-annual variation in impact-factor but lower variation in impact-factor based ranking. This result is surprising. We hypothesize that journals from high-ranked schools belong to a less homogeneous pool: few journals make most of the impact due to an exposure bias. We then move to consider authors’ utility from publishing in one journal or another. The optimal strategy for authors will depend on whether they prefer to maximize their prestige among their peers or their impact on the discipline, and how risk averse they are. Conditional on desiring impact, risk-averse scholars should look at school ranking and risk-neutral scholars should look at impact-factor.

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Law Profs Weigh In: What Is The Appropriate Response When A White Student Wears A MAGA Hat In Class?

Following up on my previous post, What Should A Black Law Professor Do When A White Student Wears A MAGA Hat In Class?:

Jacob H. Rooksby (Dean, Gonzaga), Statement:

The School of Law diligently works to provide a respectful and inclusive environment that welcomes all students, faculty, and staff. We respect the points of view of all members of our community. This situation presents an opportunity for our community to listen to and learn from each other.

Howard Wasserman (Florida International), MAGA in the Classroom:

This complaint from Jeffey Omari (Gonazaga) about a student wearing a MAGA hat in his classroom is absurd, as Jonathan Turley (GW) shows.  ...

[I]f, under the rules of the school and the professor, student can wear a baseball hat with any political message in this classroom, in what way did this student fail to meet his "professional expectations"? Other than by wearing a hat with a message the prof does not like. ... Arguably, in fact, Omari, not the student, disrupted the class when he took the time from the substantive discussion to comment on the student's sartorial choices. ...

Frankly, I think the dean, who presumably knows something about law, has a bigger problem: One of his faculty members took to a national publication and called a student--unnamed but readily identifiable within a small institution (Gonzaga has about 350 students)--unprofessional, insensitive, disrespectful, and racist. For engaging in constitutionally protected speech supporting the sitting President. ...

[Omari] presumably will be hitting the meat market for a permanent teaching job in the next few years—this could make him toxic.

Jonathan Turley (George Washington), Law Professor: MAGA Hat “Undeniable Symbol Of White Supremacy”:

[Professor Omari's op-ed] demonstrates the increasingly shrill environment faced by conservative students. Omari took to the pages of the Journal to recount his almost breathless encounter with a student wearing a “Make America Great Again” (MAGA) hat. Most of us are used to students wearing political hats and teeshirts.  I am always happy to see students with such clothing because it shows that they are engaged and passionate regardless of their views. For Omari, the incident was chilling since he declares the MAGA hats worn by many conservatives to be per se racist symbols. Omari insisted that anyone wearing the hats are advancing “racial antagonism” since they are an “undeniable symbol of white supremacy.” ...

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Lesson From The Tax Court: Effect Of Lump Sum SSI Election On Premium Tax Credit

Last year I blogged about one unhappy feature of the Affordable Care Act (ACA):  §36B has no wiggle room in it to deal with reasonable taxpayer errors in calculating their Premium Tax Credit (PTC).  As a result, taxpayers sometimes get hit with really big deficiencies, even when the error is someone else’s fault.

Section 36B(f)(2)(B) tries to limit the harshness.  For families whose income is less than 400% of the relevant poverty line, that provision puts a cap on how much an error will cost them.  But that is no help to families who are just outside of the 400% threshold.  Nor does the law permit the Tax Court or the IRS to distinguish between good faith errors and taxpayer negligence.  I like how Christine Speidel put it in this post: “The problem for taxpayers hoping to avoid strict reconciliation is that section 36B simply does not have a mechanism to consider equity in the reconciliation of APTC.”

The good folks at Procedurally Taxing have really been on top of this §36B problem.  Here’s a list of their blog posts on the subject.  In particular, Christine Speidel has a good summary of the law here, and Samantha Galvin illustrates two recent §36B cases here. 

Two recent Tax Court decisions reveal a new dimension to §36B harshness: it’s interplay with the lump-sum SSI election in §86(e).  In Charles W. Monroe and Rebecca A. Monro v. Commissioner, T.C. Memo. 2019-41 (Apr. 24, 2019) (Judge Ruwe), and in Levon Johnson v. Commissioner, 152 T.C. No. 6 (Mar. 11, 2019) (Judge Gerber), the question was whether an SSI lump sum catch-up payment had to be counted in calculating PTC eligibility when the taxpayers had made an election under §86(e) to reallocate the lump-sum payment from current year into prior years.  The Court looked at the text of §36B and said “yep, gotta include the lump sum.” 

I doubt the Court enjoyed coming to its conclusion because the harsh result turns the tax law into a “gotcha” game that even reasonable taxpayers will lose.  But if you learn the lesson these cases teach, you can at least help your clients who are in similar situations. 

There was an alternative interpretation here, however, that practitioners might press upon the Tax Court in future cases.  A closer look at the §36B language suggests it may well have room for a different "plain language" interpretation consistent with the §86(e) policy.  While the Court's holding was not unreasonable, neither was was it desirable, and it was sure as heck not inevitable.  Details below the fold.

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IRS Releases Draft 2019 Tax Forms

• U.S. Individual Income Tax Return Form 1040
• U.S. Individual Income Tax Return Form 1040, Schedule 1 (Additional Income and Adjustments to Income)
• U.S. Individual Income Tax Return Form 1040, Schedule 2 (Additional Taxes)
• U.S. Individual Income Tax Return Form 1040, Schedule 3 (Additional Credits and Payments)
• U.S. Individual Income Tax Return Form 1040, Schedule R (Credit for the Elderly or the Disabled)
• U.S. Individual Income Tax Return Form 1040, Schedule SE (Self-Employment Tax)
• U.S. Nonresident Alien Income Tax Return Form 1040-NR
• U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents Form 1040-NR-EZ
• U.S. Tax Return for Seniors Form 1040-SR

TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• The Real Story Behind Alabama’s Return Of $26m Gift To Law School Donor
• Stanford Law Faculty Summer Reading List
• Death Of Jeff Sherman (Chicago-Kent)

Sunday:

• WSJ: Biden Made 'Aggressive' Use Of Edwards-Gingrich Sub S Loophole To Skirt $500k In Taxes
• Lawyers Serving Gods, Visible And Invisible
• Should Governments Tax The Rich And Subsidize The Poor? A Comparative Study Of Muslim And Christian Respondents
• The Top Five New Tax Papers

WSJ: Biden Made 'Aggressive' Use Of Edwards-Gingrich Sub S Loophole To Skirt $500k In Taxes

Wall Street Journal, Joe Biden Used Tax-Code Loophole Obama Tried to Plug:

Democratic presidential candidate Joe Biden used a tax loophole that the Obama administration tried and failed to close, substantially lowering his tax bill.

Mr. Biden and his wife, Dr. Jill Biden, routed their book and speech income through S corporations, according to tax returns the couple released this week. They paid income taxes on those profits, but the strategy let the couple avoid the 3.8% self-employment tax they would have paid had they been compensated directly instead of through the S corporations.

The tax savings were as much as $500,000, compared to what the Bidens would have owed if paid directly or if the Obama proposal had become law.

“There’s no reason for these to be in an S corp—none, other than to save on self-employment tax,” said Tony Nitti, an accountant at RubinBrown LLP who reviewed the returns.

The technique is known in tax circles as the Gingrich-Edwards loophole—for former presidential candidates Newt Gingrich, a Republican, and John Edwards, a Democrat—whose tax strategies were scrutinized and drew calls for policy changes years ago. Other prominent politicians, including former President Barack Obama and fellow Democrat Hillary Clinton, as well as current contenders for the 2020 Democratic nomination Sens. Elizabeth Warren and Bernie Sanders, received their book or speech income differently and paid self-employment taxes. ...

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Lawyers Serving Gods, Visible And Invisible

Jonathan R. Cohen (Florida), Lawyers Serving Gods, Visible and Invisible, 53 Gonz. L. Rev. 187 (2017):

Abstract. A critique of the American legal profession can be framed through the metaphor of idolatry, specifically the proclivity of lawyers to serve visible rather than invisible interests in their work. This proclivity has ramifications ranging from broad matters like lawyers' responses to deeply embedded social injustices to specific matters such as the excessive focus on pecuniary interests in ordinary legal representation and the high level of dissatisfaction that many lawyers experience in their careers. Using as a lens biblical teaching concerning idolatry, this article begins by describing "visible" as opposed to "invisible" interests in the context of legal practice. It then argues that lawyers, clients, and ultimately society could benefit from lawyers paying greater attention to invisible interests.

Introduction. Religious ideas can sometimes offer a distinctive lens or vantage point for gazing upon ordinary life. For example, seeing a person as created "in God's image" may lead one to ask a different set of questions (e.g., is that person being treated with dignity?) and assert a different set of values (e.g., that human life is precious) than one might ask or assert without that religious metaphor. One need not, of course, invoke religious language to discuss subjects like human dignity and worth, but religious teachings can lend insights into them. Here I suggest that another fundamental religious teaching, namely the biblical prohibition against idolatry, provides a useful lens for critiquing the American legal profession. Akin to worshiping a visible rather than invisible God, many lawyers have a proclivity to focus on visible rather than invisible interests in their work. This proclivity has ramifications ranging from the "small" issue of low job satisfaction among lawyers, to the broader issue of the tendency of many lawyers to focus excessively on their clients' pecuniary rather than nonpecuniary interests, to the even broader issue of the failure of many lawyers to undertake the prophetic work of confronting deeply embedded social injustices.

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Should Governments Tax The Rich And Subsidize The Poor? A Comparative Study Of Muslim And Christian Respondents

Robert W. McGee (Fayetteville State University), Serkan Benk (Inonu University, Turkey) & Bahadir Yuzbasi (Inonu University, Turkey), Should Governments Tax the Rich and Subsidize the Poor? A Comparative Study of Muslim and Christian Respondents:

This study used the most recent World Values Survey dataset to determine whether Christian and Muslim views on the acceptability of taxing the rich and subsidizing the poor was an essential feature of democracy. The sample size included more than 23,000 individuals from more than 50 countries. More than a dozen socioeconomic and attitudinal variables were also examined to determine whether significant differences existed. The study found that differences in viewpoint were often significant.

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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 a new #1 paper and a new paper debuting on the list at #4:

1. [479 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
2. [222 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
3. [179 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
4. [150 Downloads]  Wayfair, What's Fair, and Undue Burden, by Michael Fatale (Massachusetts Department of Revenue)
5. [138 Downloads]  The Supreme Court, Due Process and State Income Taxation of Trusts, by Bridget Crawford (Pace) & Michelle Simon (Pace)

This Week's Ten Most Popular TaxProf Blog Posts

1. Jeffrey Omari (Gonzaga), What Should A Black Law Professor Do When A White Student Wears A MAGA Hat In Class?
2. Bryan Camp (Texas Tech), Lesson From The Tax Court: When Does A Business Start?
3. Andrea Curcio (Georgia State), Malcolm Gladwell, Yale Dean Heather Gerken, And The Dialectic Tension Within Legal Education
4. MLive, Hillsdale College Sues University Of Missouri Over $5 Million Donation
5. ABA Journal, Over Past Three Years, Seven Law Schools Have Tried To Be Acquired By Universities
6. Law.com, Buffalo Law Student Dies From Suicide, Family Establishes Mental Health Fund For Athletes
7. Harvard Business Review, Women Score Higher Than Men In 17 Of 19 Leadership Skills
8. Alan Wolfe (Boston College), The Unbearable Pointlessness Of PowerPoint
9. Law.com, Are Undergraduate Law Degrees The Next Big Thing?
10. Jonathan Choi (NYU), The Substantive Canons of Tax Law, 72 Stan. L. Rev. ___ (2019)

The Real Story Behind Alabama’s Return Of $26m Gift To Law School Donor

Following up on my previous posts (links below):  Martin Morse Wooster (Capital Research Center), The Real Story Behind Alabama’s Return of $26m Gift to Law School Donor:

What can donors and colleges learn from the Culverhouse episode?

First, the issue of abortion is a smokescreen that played no role in the arguments Culverhouse had with the University of Alabama.

Second, the hiring and firing of faculty is a bright line that no donor can cross. Donors should realize that they can have no say in hiring professors.

Third, Culverhouse should have realized that just because he put up a lot of money for an endowed chair that the money could not buy talent. Maybe the big name constitutional law professors were happy where they were. It’s also plausible that the finalists for the chair were the most qualified ones willing to move.

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Stanford Law Faculty Summer Reading List

2019 Stanford Law Faculty Summer Reading List:

Death Of Jeff Sherman (Chicago-Kent)

In Memoriam: Professor Jeffrey G. Sherman:

The Chicago-Kent College of Law community mourns the death of Professor of Law Emeritus Jeffrey G. Sherman, a one-of-a-kind professor who served as an institutional conscience to the law school for 32 years. He passed away recently at the age of 72.

“Jeff Sherman was a gifted teacher, a fabulous colleague and a zealous defender of the integrity of the English language,” says Chicago-Kent Dean Harold J. Krent.

Sherman joined the Chicago-Kent faculty as an associate professor in fall 1978. Over the years, he taught the courses in Estates and Trusts, Gift and Estate Tax, and Employee Benefits Law. Prior to joining the law school, he was an assistant professor of law at the University of Illinois at Urbana-Champaign from 1976 to 1978. He also was a visiting professor at Harvard in 1993 and 1995 and also visited at University of California Los Angeles in 1990, the University of Miami in 1987, the University of Illinois in 1983, and the University of Arizona in 1981.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Blank & Osofsky's Legal Calculators And The Tax System

This week, Michelle Layser (Illinois) reviews a new work by Joshua D. Blank (UC-Irvine) and Leigh Osofsky (North Carolina), Legal Calculators and the Tax System, 15 Ohio St. Tech. L.J. ___ (2019).

The IRS has long attempted to aid wary taxpayers by publishing informal guidance that translates tax laws into more understandable statements. In previous work, Professors Joshua Blank and Leigh Osofsky have argued that such plain language guidance often oversimplifies complicated tax laws, opening the door to errors. They have called this characteristic “simplexity.” In their newest article on the subject, Blank and Osofsky identify another—potentially more serious—example of tax guidance that reflects simplexity: automated legal calculators like the IRS’s Interactive Tax Assistant.

In the context of tax compliance, legal calculators are essentially algorithmically programmed, automated tax advisors that perform mathematical calculations and attempt to calculate taxpayers’ legal consequences. It sounds technical, but anyone who has ever used TurboTax is familiar with the basic concept. The legal calculator “asks” the user questions about their profile and economic activities, and then it generates advice about what income might be taxable, what deductions or credits may be available, whether it makes sense for a taxpayer to itemize, and so forth.

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Weekly Legal Education Roundup

• ABA Journal, Urge to Merge: Difficult Times for Law Schools Have Prompted Several to Attempt to be Acquired by Other Schools
• Mark Cohen (Forbes), Law Schools' Lost Opportunity
• Scott Fruehwald (Legal Skills Prof Blog), Positive Self-Talk in the Second Person Works Better than in the First Person
• Law.com, Are Undergraduate Law Degrees The Next Big Thing?
• Law.com, Buffalo Law Student Dies From Suicide, Family Establishes Mental Health Fund

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Tax Policy In The Trump Administration

• Bloomberg News, Democratic Senator Brown Attacks Trump Capital Gains Tax Cut Bid
• Bloomberg News, Making Trump’s Tax Cuts Permanent Would Cost Nearly $920 Billion
• Bloomberg News, France to Tax Facebook, Google In Spite of U.S. Trade Threat
• Bloomberg News, Small Business Tax Credit Floated to Boost $15 Minimum Wage Bill
• Bloomberg News, U.S. Investigates France's Plan to Impose a Tax on Tech Giants

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Trump's Taxes And Tax Returns

• Bloomberg Law, California May Mandate Tax Returns for Presidential Candidates
• Bloomberg New, House Democrats Consider Getting Trump’s New York Tax Returns
• Bloomberg Tax, Border Wall Ruling Gives Clues to Judge on Trump Tax Returns
• Huffington Post, The Trump Tax Return Case Could Take A Year Or Longer
• Law.com, Cuomo Signs Legislation Allowing Congress to Request Trump's NY State Tax Returns

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California Supreme Court Fails Bar Examinees

TaxProf Blog op-ed:  California Supreme Court Fails Bar Examinees, by Mitchel L. Winick (President & Dean, Monterey College of Law):

It is July, and that means another bar exam is looming large for recent law school graduates. In California, it also brings our attention back to the ongoing effort to have the California Supreme Court adjust the bar exam minimum passing score from the arbitrary and unvalidated 1440 cut score that is currently in place to the national mean score of 1350. As Dean of Monterey College of Law, a California accredited law school, I understand that there are those who shrug off this issue as mere whining of California law school deans about low pass rates. However, I would like to offer some facts that better frame the importance of this issue to the profession.

First let me say that recently released bar data provides the best response for the second most common question that I get . . . "why am I arguing for dumbing down the bar exam?" I'll let the data speak for itself . . .

February 2019 - MBE Scores – First time takers
1340      National mean score
1371      California mean score
1374      Monterey College of Law mean score

The results . . . California examinees outscored the nation . . . and our Monterey College of Law examinees outscored California.  

Despite these high-performance scoring results, because California uses an artificially inflated minimum passing score of 1440, the California first-time pass rate in February 2019 was 41% and the MCL first-time pass rate was 40% (the 1% statistical difference is due to MCL’s small cohort). In comparison, based on a national mean passing score of 1350, the national first-time passing rate was over 60%. 

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Big Data And Inheritance Rules In The Modern Family

Shelly Kreiczer-Levy (Emory), Big Data and the Modern Family, 2019 Wis. L. Rev. 349:

Despite numerous reforms over the years, intestate succession rules continue to privilege traditional, white, heterosexual families. It is evident that the one-size-fits-all scheme cannot truly reflect diversity of lifestyles and associations. This Article considers an innovative option that has become increasingly popular in recent years: using big data to create personalized rules, tailored to the personal characteristics of each decedent. This Article explores the promise and drawbacks of personalized intestacy, arguing that personalized default rules fall short in the realm of inheritance, because these rules are personal and inheritance law is inherently relational.

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Average Student Loan Debt For Law School Graduates: $145,500

NerdWallet, Average Student Loan Debt for Law School Graduates:

Law school graduates finish school with an average student loan debt of $145,500, according to the most recent data from the National Center for Education Statistics. That total includes student loans that law students took out for their undergraduate degrees.

A student loan balance of $145,500 would cost $198,700 if repaid over the standard 10-year plan, assuming current interest rates. The average law school loan payment for that amount of debt would be $1,656 a month. ...

Seventy-five percent of 2018 law school graduates took student loans, according to Law School Transparency, a nonprofit organization.

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National Taxpayer Advocate Publishes 'Subway Map' Of Taxpayer’s Journey Through The Tax System

IR-2019-123 (July 10, 2019), National Taxpayer Advocate Nina Olson Releases Comprehensive Report Intended to Improve EITC Administration; Publishes "Subway Map" of Taxpayer’s Journey Through the Tax System:

National Taxpayer Advocate Nina E. Olson today released a special report on the Earned Income Tax Credit (EITC), which makes recommendations designed to increase the participation rate of eligible taxpayers and reduce overclaims by ineligible taxpayers. Also today, the Taxpayer Advocate Service (TAS) published a subway map that depicts a taxpayer’s “journey” through the tax system to help taxpayers and policymakers better understand the tax administration process.

Special report on Earned Income Tax Credit

The EITC report, Earned Income Tax Credit: Making the EITC Work for Taxpayers and the Government, presents a detailed examination of the strengths and weaknesses of the EITC as currently structured and administered, and makes legislative and administrative recommendations to improve it. The report runs more than 100 pages – roughly half text and half appendices consisting of EITC data tables (page 49) (PDF) and a comprehensive literature review (page 82) (PDF).

“But this report is not just a research document,” Olson wrote in her preface. “It is a call to action. As we show throughout this report, the way the EITC is structured and the way the IRS is administering it often harms the very taxpayers it is intended to serve. We have made specific, common sense recommendations to mitigate that harm and reform the administration of the EITC. All our recommendations are actionable and supported by data and research.”

The report makes both general, conceptual recommendations and specific recommendations. Among the general recommendations:

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Buchanan: Tax Law Is The Lynchpin Of Civilization

Neil H. Buchanan (George Washington), The Law of Taxation Is the Lynchpin of Civilization (JOTWELL) (reviewing John Snape (Warwick) & Dominic de Cogan (Cambridge), Introduction: On the Significance of Revenue Cases, in Landmark Cases in Revenue Law 1 (John Snape & Dominic de Cogan eds. 2019):

John Snape and Dominic de Cogan, two legal scholars from universities in England, have provided a significant contribution to the emerging scholarly discussion in many different countries about the nature and limits of the law—not just tax law, which is their nominal domain in this chapter and book, but of all law. Without being at all polemical, and although they give a fair hearing to those with whom they disagree, they make an undeniable case for the claim that the study of tax law is ultimately the study of, to be honest, everything. ...

Snape and de Cogan’s edited volume is part of the Landmark Cases series, an analogue (which the editors readily acknowledge) to the Law Stories series in the United States that began with Tax Stories. Like its American counterpart, a Landmark Cases volume can serve as an avenue for understanding an area of the law through the study of a small canon of foundational legal decisions that continue to shape our understanding of that particular area of the law. ...

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College Student Rented $150 Textbook For $63; Amazon Charged Her Father $3,800 When She Was Four Days Late Returning It

Philadelphia Inquirer, College Student Was Late Returning a Textbook to Amazon, So the Company Took $3,800 From Her Dad:

Amazon tells customers that renting textbooks instead of buying them can save up to 80 percent off the purchase price: “Get your textbooks delivered to your door and save both time and money."

What Amelia SanFilippo, a thrifty college freshman, wasn’t expecting was that the Seattle-based online retailer would withdraw nearly $4,000 from her father’s checking account because she was a few days late returning the book. ...

In February, SanFilippo, 19, a cognitive science major, used her father’s debit card to rent Cultural Anthropology: A Toolkit for a Global Age for the spring semester at the University of Delaware. Cost $62.70.

The book was due back June 24. She had asked her father, Anthony, to mail it for her. But it slipped his mind while he was packing for a week-long trip. On June 28, she received an email from Amazon with the subject line: “Your Amazon.com rental has been purchased.” ...

Cost: $3,800.60 — more than 30 times the price of the textbook. ...

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The Trump Economy Is Leaving Many Americans Behind

New York Times op-ed:  The Trump Economy Is Leaving Many Americans Behind, by Steven Rattner:

2020 presidential candidates should highlight the economic shortcomings that still exist to counter the president’s sunny narrative.

A major new poll released Sunday showed that Donald Trump’s approval rating is on the rise, particularly for his handling of the economy. How can Democrats make their case for why the economy may not be as good as it can appear? Here are three examples of groups of Americans who are being left behind.

It may be common knowledge that African-Americans are not as well-off financially as white Americans, but what is not widely understood is the extent to which black Americans have fallen further behind over the past nearly two decades. In 2002, African-Americans, on average, earned just over 80 percent of what white Americans earned. By the first quarter of this year, after various ups and downs, that figure had fallen to about 76 percent. ...

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NY Times: Harvard Suspends Star Economist After Sexual Harassment Claims

New York Times, Harvard Suspends Roland Fryer, Star Economist, After Sexual Harassment Claims:

Roland G. Fryer, a onetime rising star in economics who has been accused by several women of sexual harassment, will lose his Harvard University research lab and be suspended for two years, the university said Wednesday.

Harvard’s actions represent a remarkable fall from grace for an economist who until recently was among the profession’s most admired researchers — and one of Harvard’s highest-paid faculty members. He is also one of the most prominent African-Americans in a field that has long struggled with racial diversity.

Mr. Fryer, 42, has been the subject of several concurrent university investigations, which concluded that he had engaged in “unwelcome conduct of a sexual nature” against at least five employees over the course of a decade.

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Are Undergraduate Law Degrees The Next Big Thing?

Law.com, Are Undergraduate Law Degrees The Next Big Thing?:

At the end of June, the State University of New York at Buffalo Law School announced its plans to launch an undergraduate degree in law, taught by the law faculty. It will become just the second such program in the United States. ...

This got me thinking about the University of Arizona James E. Rogers College of Law, which became the first to offer an undergraduate law degree in the U.S. in 2014. The goal of the program is to expand access to legal education and help prepare students for law-adjacent careers, as well as allow them to explore whether they want to pursue a full law degree—the same reasons officials at Buffalo have said they are launching a B.A. in law. So are undergraduate law programs the wave of the future?

In order to better understand the potential of such programs, I reached out to Arizona law dean Marc Miller to find out how his five-year-old B.A. in Law is going. ... Here’s what he said: “The B.A. in Law program is a jewel. It has succeeded on every dimension we hoped, including being a dramatic pathway for diversity, broadly understood.” ...

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Clausing: Taxing The Rich

Kimberly Clausing (Reed College), Taxing the Rich:

The Issue: Many Americans have not felt the benefits of strong GDP growth in recent decades, as thirty-five years of rising income inequality have concentrated the income growth at the top of the distribution. While the federal income tax system is progressive, it has failed to counter these trends, and some of our tax policy changes have in fact exacerbated inequality. At present, many feel that the U.S. government needs more revenue for urgent fiscal priorities such as infrastructure, yet the federal government is operating with high budget deficits and debt. Thus, as policy-makers search for new revenues, some are eager to increase tax payments by those at the top of the income distribution.

The Facts: Economic inequality has increased dramatically in the United States, and because of this, gains in real GDP per-capita are often not felt by many in our society. (See chart.)

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NY Times: Can States Just Say No To Corporate Giveaways?

New York Times editorial, Can States Just Say No to Corporate Giveaways?:

No place better illustrates the absurdities of the proliferating use of tax incentives for job creation than the Kansas City metro area, which straddles the Missouri-Kansas state line.

Over the past decade, Missouri and Kansas have offered more than $330 million in tax breaks to lure companies back and forth across State Line Road. More than 100 companies and more than 12,000 workers have moved to new offices, some headed east, some headed west. Missouri poached Swiss Re and Applebee’s; Kansas got JPMorgan Chase and AMC Entertainment.

The net result? No increase in economic activity; no improvement in the lives of workers. Just a few more jobs in Kansas, a few less in Missouri — and a big loss of tax dollars.

Corporate tax incentives are a dubious business. The giveaways frequently serve no higher purpose than rewarding businesses for moving where they already plan to move or creating jobs they already plan to create. And even when incentives prove motivational, there is often reason to question whether governments are getting value for the money.

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Hillsdale College Sues University Of Missouri Over $5 Million Donation

MLive, Hillsdale College Sues Over $5 Million Gift to University of Missouri:

Hillsdale College is suing the University of Missouri, claiming an endowment gift from a deceased MU alum is not being spent according to his wishes.

Hillsdale claims it is entitled to the $5 million endowment gift left in the will of Sherlock Hibbs in 2002 that directed Missouri’s Board of Curators to divide the funds into six separate funds named by Hibbs.

In the lawsuit filed in 2017, Hillsdale claims the university found the terms of the gift “distasteful” and was concerned MU and its Business School were being “held hostage by a particular ideology,” ultimately disputing that his gift resulted in a trust, according to the lawsuit.

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Symposium: Feminist Judgments — Rewritten Tax Opinions

The Pittsburgh Tax Review has published Symposium, Feminist Judgments: Rewritten Tax Opinions, 16 Pitt. Tax Rev. 115-208 (2019):

• Anthony C. Infanti (Pittsburgh) & Bridget J. Crawford (Pace), The Critical Tax Project, Feminist Theory, and Rewriting
  Judicial Opinions, 16 Pitt. Tax Rev. 115 (2019)
• Kim Brooks (Dalhousie), Feminist Statutory Interpretation, 16 Pitt. Tax Rev. 125 (2019)
• Diane Klein (La Verne), United States v. Davis and Prof. Cain’s Rewritten Opinion: An Intersectional Argument for Capping Section 1041, 16 Pitt. Tax Rev. 135 (2019)
• Ann Mumford (King's College London), “Rhiannon O’Donnabhain Is a Taxpayer”: Tax and the Social Contract in O’Donnabhain v. Commissioner, 16 Pitt. Tax Rev. 145 (2019)
• Ajay K. Mehrotra (Northwestern), “Life in All Its Fullness”: Cardozo, Fellows, and the Critical Context of Welch v. Helvering, 16 Pitt. Tax Rev. 151 (2019)

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When White Scholars Pick White Scholars: Diversity, Inclusion, And Merit

Inside Higher Ed, When White Scholars Pick White Scholars:

All but one of the National Communication Association’s 70 distinguished scholars are white. Most if not all members of the organization agree that’s a problem. But the association’s new plan for selecting its distinguished scholars — in which a special committee, not the existing group of scholars, chooses new honorees — has proven controversial. And one of the association’s distinguished scholars in particular just fanned the flames with an editorial that critics say pits merit against diversity.

“The change is being pursued under the banner of ‘diversity,’ which is, of course a god-term of our age, and rightly so,” Martin J. Medhurst, distinguished professor of rhetoric and communication and professor of political science at Baylor University, and editor of Rhetoric and Public Affairs, wrote recently therein about the association’s procedural shift. “But there is a difference in trying to promote diversity within a scholarly consensus about intellectual merit and prioritizing diversity in place of intellectual merit.”

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Ring: International Tax Reform And Improved Wealth Distribution Across The Globe

Diane Ring (Boston College), A Path to International Tax Reform and Improved Wealth Distribution Across the Globe (JOTWELL) (reviewing Tarcísio Diniz Magalhães (International Bureau of Fiscal Documentation), What Is Really Wrong with Global Tax Governance and How to Properly Fix It, 10 World Tax J. (2018)):

Thomas Piketty’s work brought the reality of unequal distributions of wealth into mainstream media and popular discourse. In the tax world, the conversation now regularly turns to a consideration of whether and how the international tax regime contributes to existing patterns of wealth and income distribution across nations. Certainly, the tax norms and rules that shape the basic roadmap of international tax (including source, residence and permanent establishment provisions) contribute to existing distributions of wealth—and relatedly taxable income—across jurisdictions. Why do these patterns persist? And perhaps more importantly, what would it take for change?

A recent article by Tarcísio Diniz Magalhães aims to develop answers to both questions.

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Lecture Capture Reduces Attendance, But Students Value It

Inside Higher Ed, Lecture Capture Reduces Attendance, but Students Value It:

One of the biggest studies of its kind to date has concluded that although the introduction of lecture capture does lead to reduced class attendance, academics must accept that students see it as a valuable part of the learning experience.

Video recording of teaching is now common on most Western campuses, but it remains a contentious issue for some academics, who have raised concerns about issues ranging from intellectual property rights to the use of footage to undermine industrial action, as well as the impact on students’ attendance. ...

[N]ew research conducted at the University of Leeds draws on data across a whole institution following the installation of lecture-capture technology and finds that the availability of video footage does cause a drop in attendance.

The paper [Lecture Recordings to Support Learning: A Contested Space Between Students and Teachers], published in Computers & Education, says that although attendance at lectures that were not recorded was 85.7 percent, this dropped to 81 percent when videos were available.

In a survey of instructors, 53.6 percent of respondents agreed that lecture capture encouraged poor attendance.

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Business Tax Symposium Today At Oxford

The Centre for Business Taxation's annual three-day summer symposium concludes today at the Saïd Business School, University of Oxford (program):

Thiess Buettner (FAU), Sales and Price Effects of Pre-announced Consumption Tax Reforms: Microlevel Evidence from European VAT (with Boryana Madzharova (FAU))
Discussant: Paul Baker (Bath)

Chris Evans (New South Wales), Diagnosing the VAT Compliance Burden: A Cross-Country Assessment (with Richard Highfield, Binh Tran-Nam & Michael Walpole (New South Wales))
Discussant: Alice Pirlot (Oxford)

Enda Hargaden (Tennessee), Does Statutory Incidence Matter? Earnings Responses to Social Security Contributions (with Barra Roantree (Economic and Social Research Institute))
Discussant: Michael Stimmelmayr (ETH Zurich)

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Advice For Young Lawyers: Choose Your Path, Soon

Daily Report op-ed:  Advice for Young Lawyers: Choose Your Path, Soon, by Doug Chalmers (Managing Partner, Chalmers & Adams, Atlanta):

Having practiced law now for nearly a quarter of a century, I frequently get questions from younger lawyers on how to develop a law practice. Here are a few of the more important lessons I’ve learned over the years.

Lesson 1: Choose a Specialty and Become the Go-To Lawyer in That Area. ... Successful lawyers often pick practice areas in which prospective clients satisfy three criteria: They have money, they have significant legal issues, and they will pay you well for your expertise. ...

Lesson 2: Until You Have Your Own Clients, You Are Always at Risk. ... That lesson was brought home to me years ago when I watched closely the divergent career paths of two excellent lawyers. The two lawyers had much in common. They graduated from similar law schools at about the same time. They spent their careers in private practice at big law firms. They also worked roughly the same number of hours each year. But they spent their time very differently.

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Gianni: Partnership Audit Rules After The Final Regulations

Monica Gianni (California State University Northridge), Partnership Audit Rules: After the Final Regulations, 128 J. Tax'n 9 (June 2019):

As part of the Bipartisan Budget Act of 2015 (BBA), Congress repealed the TEFRA audit rules and the audit rules for electing large partnerships and replaced them with a new audit regime (the BBA audit rules). The BBA audit rules generally are effective for audits of partnership returns for tax years beginning after 2017. Although the TEFRA audit rules were enacted in 1982 to address issues with partnership audits, particularly tax shelters, they proved difficult to implement. In a 1990 report to Congress, the Internal Revenue Service (IRS) and the Treasury concluded that large partnership audits were an inefficient and time-intensive use of limited resources. The BBA audit rules address the deficiencies of the TEFRA audit rules through a centralized audit system that requires partnership adjustments to be determined at the partnership level and any tax attributable to the adjustments to be assessed and collected at the partnership level. The rules allow for a small-partnership opt-out and an elective alternative to “push out” the audit adjustments made and tax paid to the partners. The audit process is streamlined by limiting the right to notices and participation in the audit to one “partnership representative” who has the “sole authority” to act for the partnership in an audit.

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Krieger: The Hidden Stresses Of Law School And Law Practice

Lawrence S. Krieger (Florida State) has updated his wonderful booklet, The Hidden Stresses of Law School and Law Practice (2018) (table of contents) (ordering information) (thoughts about timing and use):

It is time for the summer announcement of the student assistance booklets (now updated) that I’ve been doing for several years. Some of you may want to provide them to incoming or present classes at your school. Please note: We will be away from July 15-30, so if you need these little books for early August, please let me know. ... If you have questions, just email me directly, lkrieger@law.fsu.edu. If you wish to order, have any questions, or wish to view the entire contents before ordering, just email me directly.

Why This Book?

In the past few years there have been powerful scientific findings about lawyers and law students. They are so recent that few lawyers, students, or even law teachers are aware of them. These findings show clearly what makes us happy, and what happens in law school and then law practice that can undermine that happiness. This book explains this science and the largely hidden stresses of law school and law practice – how we first encounter them in school, why they continue to impact lawyers long after graduation, and why it doesn’t have to be that way. It offers practical, direct approaches to preserve and improve your well-being, based on these findings and decades of teaching, litigating, and working with law students and lawyers. The closing sections extend this knowledge specifically to career and job choices.

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Over Past Three Years, Seven Law Schools Have Tried To Be Acquired By Universities

ABA Journal, Urge to Merge: Difficult Times for Law Schools Have Prompted Several to Attempt to be Acquired by Other Schools:

Law school enrollment has decreased significantly since the Great Recession, as have many law schools’ reputations. Fewer graduates are passing the bar, and for the past two years, less than 70% of new lawyers were hired for full-time, long-term jobs that require bar passage after graduation—jobs that, at one point, had been the minimum expectation for newly minted JDs.

In the past three years, seven law schools announced plans to partner, gift or sell themselves to universities—all but begging the question: Why would anyone want them?

The answer comes down to net tuition revenue, which matters more than academic reputation, says Ken Redd, the senior director of research and policy analysis at the National Association of College and University Business Officers. According to him, a private institution with net tuition that grows 3% or more annually is generally seen as desirable.

“It’s about trying to make as much money as possible for healthy institutions. If there was some scandal that made the news, you might see some hesitation. But if it’s just something garden variety, like ABA probation, [universities] do not care about that,” Redd says.

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Choi: The Substantive Canons Of Tax Law

Jonathan H. Choi (NYU), The Substantive Canons of Tax Law, 72 Stan. L. Rev. ___ (2019):

Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual violations of the separation of powers.

This Article argues that anti-abuse doctrines should be considered substantive canons of construction, interpretive presumptions that can be rebutted by statutory text or purpose. This resolves apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconciles them to textualists as constitutionally permissible background norms. It also provides a framework to test the validity of disputed doctrines and allows them to be more flexible and intuitive.

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