This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: A Practical Interpretation Of The Penalty Approval Statute § 6751
2. Tallahassee Democrat, Florida Bill Would Stop Adelson Family From Preventing Dan Markel's Parents’ Access To Their Grandchildren
3. Mary Bowman (Arizona State), Legal Writing Faculty Bear A Disproportionate Share Of 'Office Housework'
4. Tess Wilkinson-Ryan (Pennsylvania), Lessons Learned From Visits At Harvard, Stanford, And NYU Law Schools That Did Not Produce Offers
5. Joseph Stiglitz (Columbia), Todd Tucker (Columbia) & Gabriel Zucman (UC-Berkeley), The Starving State: Why Capitalism’s Salvation Depends On Taxation
6. ABA, Council Approves Thomas Jefferson Law School's Teach-Out Plan
7. Derek Muller (Pepperdine), Law Schools With The Worst Debt-to-Income Ratios Among Recent Graduates
8. Allison Christians (McGill), Blueprint For A More Sustainable Global Tax System
9. Margaret Farrar (Former Dean, John Carroll University), Is Returning To The Faculty After Deaning An Honor? Or A Demotion?
10. Karen Sloan (Law.com), Dispatches From The AALS Annual Meeting: Rankings, Rankings, And More Rankings

The IRS Tried To Crack Down On Rich People Using An 'Abusive' Tax Deduction. It Hasn’t Gone So Well.

ProPublica, The IRS Tried to Crack Down on Rich People Using an “Abusive” Tax Deduction. It Hasn’t Gone So Well.:

In March 2019, the IRS added a scheme to its annual “Dirty Dozen” list of “the worst of the worst tax scams.” That same scheme was targeted, just weeks earlier, when the U.S. Department of Justice filed a fraud lawsuit against a handful of promoters allegedly responsible for generating more than $2 billion in improper tax write-offs. And the Senate Finance Committee has been investigating that very same racket, recently demanding thousands of pages of documents from six promoters. Lawmakers from both parties have introduced legislation to halt the same practice.

The scheme they’re all trying to kill is what’s called a “syndicated conservation easement,” which the IRS calls “abusive” and says has resulted in bogus deductions for the rich that have cost the U.S. Treasury billions in revenues.

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Harvard Law Students Avoid Applying For Clerkships With Trump-Appointed Judges

Boston Globe, Some Harvard Law School Students Are Avoiding Applying to Clerkships With Trump-Appointed Judges:

Used to be that the promise of earning a sterling line on a resume and connections to stars of the legal profession was enough to lure Harvard law students to federal clerkships.

But recently, when Harvard Law School was urging its students to apply to work for one of President Trump’s newly appointed judges, it felt the need to offer further incentives: “Next to Lake Tahoe and great skiing!” the job alert read.

But that apparently wasn’t enough. Two days later, in mid-December, the law school again nudged its students to apply for clerkships with federal judges, noting that some judges, including two Trump appointees, had received no Harvard applications — calling them “wasted opportunities.”

As Trump reshapes the federal judiciary with staunch conservatives and controversial picks, some Harvard Law School students appear to be thinking twice about applying for clerk jobs with them, and passing up what are generally considered plum positions. ...

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Certified Professional Employer Organizations And Tax Liability Shifting: Assessing The First Two Years Of The IRS Certification Program

Katherine Sanford Goodner (Lewis Thomason, Knoxville, TN) & Ursula Ramsey (North Carolina, Cameron School of Business), Certified Professional Employer Organizations and Tax Liability Shifting: Assessing the First Two Years of the IRS Certification Program, 16 Berkeley Bus. L.J. 571 (2019):

The growing popularity of Professional Employer Organizations ("PEOs") over the past several decades has led to an increasing number of small businesses using third-party organizations to provide everything from payroll services to benefits management to human resource services. Recent data suggests that between 780 to 980 PEOs exist industry-wide and provide services for 156,000 to 180,000 clients. Even more staggering is the $136 billion to $156 billion in client payroll and PEO fees that make up the gross revenues of these PEOs. These PEOs, often referred to as "co-employers," are generally responsible for the remittance of the taxpayer's employment taxes as a part of the PEO's payroll services.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Klein's Contemptuous Tax Reporting

This week, Mirit Eyal-Cohen (Alabama) reviews Israel Klein (Ariel University), Contemptuous Tax Reporting, 2019 Wis. L. Rev. ___ : 

This interesting article is right down my alley, namely R&D tax incentives. Recently, legal scholars (including yours truly here and here) have questioned the justifications for the current R&D tax incentives regime and their effectiveness in inducing additional research expenditures. Every year, about 25 billion dollars of research incentives are claimed by companies. Likewise, the current R&D credit allows companies to reduce tax bills by an amount equal to 14 or 20 percent of their current year Qualified Research Expenditures. The article points out that this tax benefit combined with the U.S. self-assessment principle that encompasses only occasional ex-post audits create an incentive for managers to participate in contemptuous self-reporting, that is reporting their companies’ tax while intentionally miscategorized R&D expenditures. Moreover, the recent repeal of the corporate Alternative Minimum Tax (AMT) in the Tax Cuts and Job Act removed the limits on the extent to which taxpayers can utilize credits and deductions to lower their overall tax liability, thus created a bigger tax break for R&D while perpetuating the incentive to overstate R&D spending.

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Tax Policy In The Trump Administration

• Above the Law, Even Majority Of Republicans Support Wealth Tax, But Totally Objective Billionaires Skeptical
• Bloomberg, Carried Interest Tax Rules Under White House Office Review
• Bloomberg, The Millionaires Who Actually Want to Pay More in Taxes
• Bloomberg, Trump Tax Cut Hands $32 Billion Windfall to America’s Top Banks
• Bloomberg, Trump’s SALT Cap Fuels a Wealth Exodus from High-Tax States

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Weekly Legal Education Roundup

• ABA Journal, California may offer more opportunities for JDs taught entirely online
• ABA Journal, Law grad wins discharge of his student debt in opinion criticizing 'punitive standards'
• ABA Journal, Under teach-out plan, Thomas Jefferson law school has ABA accreditation for 3 more years
• Mary Bowman (Arizona State), Legal Writing as Office Housework?
• Council, ABA Section of Legal Education and Admissions to the Bar, Notice of Council Decision: Thomas Jefferson School of Law Teach-Out Plan

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Trump's Taxes And Tax Returns

• Bloomberg, Congress Went to Court for Trump’s Tax Returns. Why?
• Forbes (Joe Thorndike), There Oughta Be A Law: Why Presidents Should Be Forced To Release Their Tax Returns
• The Hill, Judge Delays Ruling in House Lawsuit Over Trump Tax Returns
• Mother Jones, Bloomberg Intends to Release His Tax Returns, Upping the Pressure on Trump
• National Law Journal, Judge Links Fate of House's Bid for Trump Tax Returns to D.C. Circuit Ruling on McGahn

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Blank And Osofsky Present Automated Legal Guidance Today At Florida

Joshua Blank (UC-Irvine) and Leigh Osofsky (North Carolina) present Automated Legal Guidance at Florida today as part of its Tax Colloquium Series hosted by Yariv Brauner:

The use of artificial intelligence as an aid to law enforcement has received significant attention from legal scholars.  For instance, the introduction of machine learning to identify likely crime hot spots has caused scholars to consider questions such as how to apply Fourth Amendment standards, how to prevent racial discrimination and how to preserve transparency and accountability.  On the other hand, scholars have not addressed the government’s increasing use of artificial intelligence for another purpose—providing guidance to the public regarding legal entitlements and obligations.  For example, the Internal Revenue Service encourages taxpayers to seek answers regarding various tax credits and deductions not from human IRS representatives, but rather from its online “Interactive Tax Assistant.”  Likewise, the U.S. Army directs individuals with questions about enlistment to its virtual guide, “Sgt. Star,” and the U.S. Citizenship and Immigration Services suggests that potential green card holders and citizens speak with its interactive chatbot, “Emma.”

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Harvard Law Students Urge Boycott Of Paul Weiss To Force Law Firm To Drop ExxonMobil As A Client

Medium, Harvard Law Students Shutdown Reception For Law Firm Defending Exxon’s Role in the Climate Crisis:

Students push partners at Paul, Weiss to #DropExxon: “We won’t work for you while you work for them.”

Harvard Crimson, Harvard Law School Students Campaign for Law Firm Paul Weiss to Drop Representation of ExxonMobil:

Dozens of Harvard Law School students disrupted a first-year student recruitment event held by corporate law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP Wednesday night, calling on the firm to stop representing the oil and gas company ExxonMobil in ongoing climate change litigation.

Harvard Corporation member Theodore V. Wells, who works as a partner at the firm, was a lead lawyer for ExxonMobil. The firm did not respond to multiple requests for comment about the protest.

Shortly after the firm’s speaker came on stage, a group of students revealed a banner reading #DropExxon, according to a press release about the protest. They also chanted over the speaker, “We, students of Harvard Law School, will not work for you as long as you work for ExxonMobil. Our future is on fire, and you are fanning the flames. If you want to recruit us, then drop Exxon and join us in fighting for a livable future.”

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Congressional Research Service Seeks To Hire Head Of American Law Division

Assistant Director and Senior Specialist (American Law Division):

Summary:  The Congressional Research Service (CRS) seeks a senior manager to lead its American Law Division (ALD), one of CRS’ five research divisions. CRS provides objective, nonpartisan, and authoritative legislative research, analysis, and consultative support exclusively to the U.S. Congress.

Salary:  $131,239 to $197,300 per year

Responsibilities:  This position serves as head of the American Law Division, a major CRS research division. In this capacity, and reporting directly to the Director of CRS, the Assistant Director leads, plans, directs, and evaluates the work of a team of attorneys in its production of written products and consulting services in support of the U.S. Congress.

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The Unbearable Virtue Mongering Of Academics

Chronicle of Higher Education, The Unbearable Virtue Mongering of Academics:

Stanley Fish is skeptical of free speech, and dismayed by the ubiquity of Subarus.

Charming and pugnacious, the literary critic and legal theorist Stanley Fish, at 81, remains one of the besieged humanities’ most prominent voices. His new book, The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump (2019), out last month from Simon & Schuster, brings his combination of theory and polemic to a host of topical controversies. Probably no one will agree with all of it, but, as ever with Fish, it’s impossible to come away from his arguments without feeling one’s own ideas become sharper.

Fish’s career, from Miltonist to university super-administrator to best-selling intellectual pundit, is difficult to imagine now, when the prestige of the humanities has plummeted, along with the funding. From the present vantage, the influence of figures like Fish — or Judith Butler, or Henry Louis Gates Jr., or any number of other scholars with primary appointments in departments of literary study — might seem idiosyncratic.

"Programs that I grew up with and assumed would always be a part of the educational landscape have disappeared," Fish told me. "That can’t be a good thing if you are interested at all in subjects like literature, history, philosophy."

In 1959, when Fish was finishing college, he faced a choice between graduate school in English and law school. He chose English, in part because Yale offered him a free ride. I asked whether he’d make the same decision today. "That wouldn’t be a choice at all," he said. "I would go for law."

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2020 Tannenwald Tax Writing Competition

The Theodore Tannenwald, Jr. Foundation for Excellence in Tax Scholarship and American College of Tax Counsel are sponsoring the 2020 Tannenwald Tax Writing Competition:

Named for the late Tax Court Judge Theodore Tannenwald, Jr., and designed to perpetuate his dedication to legal scholarship of the highest quality, the Tannenwald Writing Competition is open to all full- or part-time law school students, undergraduate or graduate. Papers on any federal or state tax-related topic may be submitted in accordance with the Competition Rules.

Prizes:

• 1st Place:  $5,000
• 2nd Place: $2,500
• 3rd Place:  $1,500

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Should The Tax System Be Used To Reduce Wealth Inequality In The United States?

Tax Policy Center, Should the Tax System Be Used to Reduce Wealth Inequality in the United States?:

Wealth is highly concentrated in the United States, with the top 0.1 percent of households holding an estimated 10 to 20 percent of all assets. Concerns about the effects of wealth inequality have spurred some presidential hopefuls to propose new taxes on wealth and unrealized capital gains and increases to the existing estate tax.

This policy debate raises broader issues about wealth inequality and how the tax code could reduce it. The causes, impacts on different groups, and effects of substantial wealth inequality are complex. Would higher taxes on the wealthy help fix the problems caused by wealth inequality?

Jason Furman, former chairman of the Council of Economic Advisers in the Obama administration, and panels of experts will consider the following questions:

• What has been the impact of wealth inequality on different groups in the United States?
• How does wealth concentration affect politics and public policy?
• Would reducing after-tax wealth affect the political power of the wealthy and social and economic divisions across groups?
• What are the pros and cons of using the tax system, instead of other government interventions, to reduce wealth inequality?

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Ben Barton Discusses Fixing Law Schools

Inside Higher Ed, Author Discusses Fixing Law Schools:

The decade after 2008 was not a good one for law schools. Applications and enrollment fell. Some closed. This is the subject of Fixing Law Schools: From Collapse to the Trump Bump and Beyond (NYU Press). But the author -- Benjamin H. Barton is professor of law at the University of Tennessee at Knoxville -- also has a path forward for law schools.

He discussed the book via email.

Q: What happened in 2008? Why was the decade that followed so hard for law schools?
A: 2008 is actually the wrong date. For the first few years of the Great Recession, law schools actually saw a rise in applications, as college graduates who worried about a weak job market opted for graduate schools of all types, including law schools. In 2011 the overall economy had started to improve, but job placement for law schools stayed very poor. Suddenly there was a flood of terrible press featuring how bad the job market was, how expensive law school had become and the doubling of student debt during the 2000s. Law schools entered into a tailspin: fewer applicants, fewer enrollees and much more discounting for the students who did come. Revenue and enrollment fell precipitously overall, by around 33 percent. Several law schools closed, and many, many more faced challenging times. ...

Q: How should law schools change?

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Is Returning To The Faculty After Deaning An Honor? Or A Demotion?

Chronicle of Higher Education op-ed:  Does Pausing Your Administrative Career Mean It’s Over?, by Margaret Farrar (Former Dean, John Carroll University):

Last year I was given a career choice that was not, in fact, a choice. The particulars of my situation aren’t important, but here’s the upshot: Last March, I was sitting in a meeting with my university’s new president, discussing my reappointment as dean, and it wasn’t going well.

Ultimately the president offered me a graceful exit: He suggested I stay in the job for an additional year while I searched for a new deanship elsewhere. That way, I could write my own career narrative as one of continual ascent. I hadn’t been ousted — I had decided to "seek a new challenge," "apply my skills to a different kind of institution," or (in the words of LeBron James, when he left Cleveland the first time) "take my talents to South Beach."

I was grateful for the option, but of course the offer wasn’t purely altruistic. An additional year would give the president more time to find my successor. This was what used to be called "a gentleman’s agreement" — a polite, quiet arrangement that would ensure a smooth transition for everyone involved.

I took a weekend to think about it. I knew what I was supposed to do: Accept the one-year extension and start job-hunting; onward and upward. Instead, come Monday morning, I told the president I would stay but not as dean. I opted to take a pay cut and join the faculty. ...

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Lawyers Are Leading U.S. Colleges And Universities More Than Ever Before. Is That Good Or Bad For Higher Education?

Washington Post, Lawyers Are Leading U.S. Colleges and Universities More Than Ever Before. Is That Good or Bad For Higher Education?:

In the following piece, Patricia E. Salkin, provost of the graduate and professional divisions of Touro College in New York, looks at another characteristic of college and university presidents: how many are attorneys, and what that means for higher education. This perspective is part of a multi-year study on lawyer presidents that the author is doing as part of a PhD in creativity at University of the Arts.

The trend over the last three decades indicates that in the 2020s, we can expect to see a record number of lawyers appointed as college and university presidents. With roughly 4,000 colleges and universities, more lawyers in the mix is a good thing in the constant evolution of higher education.

The number of lawyer president appointments has more than doubled each decade of the last three, with a staggering 158 lawyers appointed in the last half of the 2010s. If the trend continues, in the new decade lawyers may account for 300 to 400 presidents — more than 10 percent of all sitting campus presidents. This is astonishing considering that for 90 years, from 1900 to 1989, lawyer presidents made up less than 1 percent of all presidents during any given decade.

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Conference Announcement And Call For Contributions: Taxation And Gender Equality

Announcement of Conference and Call for Contributions:
Taxation and Gender Equality Conference: Research Roundtable and Policy Program

As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.

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Harvard Law School Professor Lawrence Lessig Sues The New York Times For Defamation

Harvard Crimson, Harvard Law School Professor Lawrence Lessig Sues the New York Times for Defamation:

Harvard Law School professor Lawrence Lessig filed a lawsuit against the New York Times Monday after the newspaper published an article suggesting that Lessig was defending the practice of accepting secret donations from deceased sex offender Jeffrey E. Epstein.

In a lawsuit filed in Massachusetts federal court, Lessig accused the Times of publishing a “false and defamatory” story with a headline and lede that served as “clickbait.”

The New York Times story, titled “A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret,” was based on a Sept. 8 Medium post by Lessig in which he explained his decision to sign a petition in support of Joichi “Joi” Ito, who resigned as head of the MIT Media Lab in September after Ronan Farrow reported in the New Yorker that the lab had taken steps to cover up its relationship with Epstein. ...

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Aprill: The Private Foundation Excise Tax On Self-Dealing

Ellen P. Aprill (Loyola-L.A.), The Private Foundation Excise Tax on Self-Dealing: Contours, Comparisons, and Character, 17 Pitt. Tax Rev. ___ (2020):

This paper considers section 4941, the private foundation excise tax on self-dealing, on the occasion of its fiftieth anniversary. Part I gives background on section 4941. Part II compares the rules of section 4941 to the parallel ones applicable to public charities, including the special rules for supporting organizations and donor advised funds. The fiftieth anniversary of the private foundation excises taxes is also an appropriate time to confront two foundational questions, and Part III does so. It first asks whether we can view the private foundation taxes in general and section 4941 in particular as constitutional exercises of Congress’s taxing power under the tests announced in National Federation of Independent Businesses v. Sibelius. Second, it considers whether we should characterize the section 4941 excise tax as a Pigouvian tax — a hot category among economists but less familiar to lawyers. It answers “maybe not” to the first and “yes but” to the second.

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Stiglitz, Tucker & Zucman: The Starving State: Why Capitalism’s Salvation Depends On Taxation

Foreign Affairs:  The Starving State: Why Capitalism’s Salvation Depends on Taxation, by Joseph E. Stiglitz (Columbia), Todd N. Tucker (Columbia) & Gabriel Zucman (UC-Berkeley):

For millennia, markets have not flourished without the help of the state. Without regulations and government support, the nineteenth-century English cloth-makers and Portuguese winemakers whom the economist David Ricardo made famous in his theory of comparative advantage would have never attained the scale necessary to drive international trade. Most economists rightly emphasize the role of the state in providing public goods and correcting market failures, but they often neglect the history of how markets came into being in the first place. The invisible hand of the market depended on the heavier hand of the state.

The state requires something simple to perform its multiple roles: revenue. It takes money to build roads and ports, to provide education for the young and health care for the sick, to finance the basic research that is the wellspring of all progress, and to staff the bureaucracies that keep societies and economies in motion. No successful market can survive without the underpinnings of a strong, functioning state.

That simple truth is being forgotten today. In the United States, total tax revenues paid to all levels of government shrank by close to four percent of national income over the last two decades, from about 32 percent in 1999 to approximately 28 percent today, a decline unique in modern history among wealthy nations.

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Christians & Magalhaes: A New Global Tax Deal For The Digital Age

Allison Christians (McGill) & Tarcisio Diniz Magalhaes (McGill), A New Global Tax Deal for the Digital Age:

The OECD is currently in the midst of a project intended to tackle the tax challenges arising from the digitalization of the economy. As laid out in Pillar 1 of its program of work released in May 2019, the goal seemed broadly to develop consensus on a new taxing right, to allow countries to tax multinationals even in the absence of traditional physical presence. Upon inspection, the plan seems to be about rebalancing taxing rights mostly among the relatively affluent OECD member states plus a few other key non-OECD states. Viewed from this perspective, the urgent effort to forge a new global tax deal for the digital age is destined to forestall a much-needed discussion on the broader distributive implications of the current global tax deal. This Article therefore critically examines the emerging tax bargain. Part I begins with a brief survey of some of the main factors that prompted the OECD to turn its attention to this topic. Part II considers the origins and development of nexus in the international tax regime, showing why this concept is amenable to broad expansion. Part III examines the range of reforms currently under consideration, arguing that the framing on digitalization misses a necessary connection to other pressing international policy programs that are also under development, most notably a global commitment to building institutions that support sustainable economic development.

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NY Times: In A Homecoming Video Meant To Unite The University Of Wisconsin, Almost Everyone Was White

Following up on my previous post, University Of Wisconsin Use Photoshop To Paint Faux Diversity: New York Times, In a Homecoming Video Meant to Unite Campus, Almost Everyone Was White:

The video was created to show off the University of Wisconsin. Instead, it set off a furor, and a reckoning over what it means to be a black student on campus.

The video was just two minutes long: a sunny montage of life at the University of Wisconsin’s flagship campus in Madison. Here were hundreds of young men and women cheering at a football game, dancing in unison, riding bicycles in a sleek line, “throwing the W” for the camera, singing a cappella, leaping into a lake.

“Home is where we grow together,” a voice-over said. “It’s where the hills are. It’s eating our favorite foods. It’s where we can all harmonize as one. Home is Wisconsin cheese curds. It’s welcoming everyone into our home.”

Days before Homecoming Week, the student homecoming committee, tasked with producing the video, posted it online. The outrage was almost instantaneous. Virtually every student in the video was white.

This is the story of a video that galvanized and divided a university plagued by a history of racist incidents, as told by the people who saw it happen. Black students in particular say the homecoming video crystallized a daily fact of life: They feel they are not wanted at the University of Wisconsin, where there are significantly fewer African-Americans per capita than in the state, which is mostly white. This fall, more than 30,000 undergraduates began the school year at the University of Wisconsin-Madison. Fewer than 1,000 of them are African-American.

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Florida Bill Would Stop Adelson Family From Preventing Dan Markel's Parents’ Access To Their Grandchildren

Tallahassee Democrat, Jeff Brandes Bill, Citing Markel Murder Case, Could Allow Grandparents More Visitation Rights:

Friends of Dan Markel are hoping a bill filed by Florida Sen. Jeff Brandes could afford the slain Florida State law professor’s parents, and others like them, more access to their grandchildren.

Markel’s parents, Phil and Ruth Markel, have not seen their grandchildren since 2016 amid allegations that the family of their mother, Wendi Adelson, is being investigated in connection with a murder-for-hire plot.

The childrens’ names were changed to Adelson to shield them from intense media coverage of their father’s murder, Wendi Adelson said. The Markels have also been denied visitation. ...

Pointing to the case that has played out on a national stage, Brandes proposes changing a 2015 law that allows grandparents to petition for visitation if a living parent has been convicted of a felony. The 2020 revision, SB 1886, looks to expand the court remedy to lingering cases in which the living parent’s family is being investigated but is still active in the children’s lives.

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Lessons Learned From Visits At Harvard, Stanford, And NYU Law Schools That Did Not Produce Offers

Tess Wilkinson-Ryan (Pennsylvania), On Visiting:

When I was a teenager there was this meme/prank where a boy would approach a girl and ask “Would you like to dance?” and no matter what her response, he would then announce loudly, “No, I said you look fat in those pants!” I did not have cause to think of this, which even then was usually deployed as a sort of meta-joke, until I tried to explain to a colleague how I felt about my lateral visiting stints. I think there is something about the mild humiliation of an appointments visit, particularly if there’s no permanent offer, that makes most people reluctant to talk about the experience at all. But that pluralistic ignorance is probably bad, because it distorts the cost-benefit calculus that law schools and candidates are employing for an already costly practice. So let’s talk about it.

In the early winter months of 2014, pre-tenure, I got really flattering phone calls from deans at Stanford, Harvard, and NYU, respectively. I agreed to a one-semester visit at Stanford, a three-week teaching visit at Harvard, and eventually to a two-week non-teaching visit at NYU. I was not looking to move, but you never know, and in any case visiting appeared to be the coin of the realm. ...

It’s sort of embarrassing to recount these stories, a real tour of my bad decisions and poor coping skills. But it occurred to me recently in hearing a not-dissimilar tale from a colleague that there is a widely-shared experience that doesn’t get talked about, because it sounds like sour grapes just to describe it. I agreed to all of this! I agreed to be judged and now I’m mad that the judgment was negative! Also it’s just regular embarrassing — I was publicly rejected. ...

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Oei & Ring: The Importance Of Qualitative Research Approaches To Gig Economy Taxation

Shu-Yi Oei (Boston College) & Diane M. Ring (Boston College), The Importance of Qualitative Research Approaches to Gig Economy Taxation:

As the United States tax system continues to grapple with how to tax workers in the gig economy, it confronts a number of questions about the nature and composition of the sector as well as the tax issues confronted by its participants. Many of these questions have proven difficult to answer due to a lack of adequate information. But the answers are important and will shape how tax and other areas of law (such as employment law, labor law, and antitrust) respond to the gig economy. Thus, the question of how to obtain the data and information necessary to formulate sound policies for gig work is vital.

This chapter discusses the limitations of quantitative empirical research on the gig economy and argues that incorporating more qualitative approaches will help generate a more comprehensive understanding of the tax policy issues involved.

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Harvard Recruits African-American Applicants Who Have 'No Chance Of Being Admitted'

New York Times, That Recruitment Letter From Harvard Probably Doesn’t Mean Much:

The message, emailed to more than 100,000 high school students, was seductive and flattering: “Your strong grades and standardized test scores indicate to us that Harvard and other selective institutions may be possibilities for you.”

Harvard encouraged them to apply. But many of the recipients had little chance of getting in, especially if they were black, according to a new analysis of the university’s admissions data by three economists.

Peter Arcidiacono (Duke), Josh Kinsler (Georgia) & Tyler Ransom (Oklahoma), Recruit to Reject? Harvard and African American Applicants:

Over the past 20 years, elite colleges in the US have seen dramatic increases in applications. We provide context for part of this trend using detailed data on Harvard University that was unsealed as part of the SFFA v. Harvard lawsuit. We show that Harvard encourages applications from many students who effectively have no chance of being admitted, and that this is particularly true for African Americans. African American applications soared beginning with the Class of 2009, with the increase driven by those with lower SAT scores. Yet there was little change in the share of admits who were African American. We show that this change in applicant behavior resulted in substantial convergence in the overall admissions rates across races yet no change in the large cross-race differences in admissions rates for high-SAT applicants.

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The Perils of Common Ownership: How Corporate Tax Avoidance Floods (Overwhelms) The IRS

Danielle Chaim (J.S.D. 2020, Columbia), The Perils of Common Ownership: Flooding Strategy:

The increased concentration of shares in the hands of large institutional investors has triggered a phenomenon which I term “flooding.” Under this phenomenon, institutional investors push their portfolio firms towards higher levels of noncompliance. Given limited enforcement capabilities, the simultaneous increase in the levels of noncompliance reduces the probability that such behavior will be detected and adequately penalized. Consequently, the presence of large, diversified shareholders destructs the inherent trade-off between compliance and enforcement. Misconduct becomes less risky and more rewarding, changing the way in which public firms approach legal risks.

This Article focuses on the applicability of flooding in the context of tax avoidance. Data suggests that the emerging ownership pattern in the United States increases levels of corporate tax avoidance. In this Article, I argue that this increase results in flooding, overwhelming the tax agency, now faced with new enforcement challenges.

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Hickman & Thomson: The Chevronization of Auer

Kristin E. Hickman (Minnesota) & Mark R. Thomson (Administrative Conference of the United States), The Chevronization of Auer, 103 Minn. L. Rev. Headnotes 103 (2019):

The Supreme Court is poised in Kisor v. Wilkie to reconsider the standard of review known as Auer deference, whereby courts must defer to an agency’s reasonable interpretation of its own regulation. Auer’s defenders have long argued that the standard advances important practical goals, such as simplifying the judicial task and fostering consistency and predictability in the administrative process. During the last two decades, though, courts have engrafted an increasingly complex array of qualifications and exceptions onto Auer’s basic framework.

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Walker: The Implausibility Of Compensation As An Anticompetitive Mechanism

David I. Walker (Boston University), Common Ownership and Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, 99 B.U. L. Rev. 2373 (2019):

Mutual funds, pension funds, and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies rather than the value of individual companies in isolation, this new reality has led to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the most plausible mechanisms is executive pay design. The idea is that executive pay at companies in concentrated industries with high common ownership may be designed to dampen the incentives of the companies’ managers to compete aggressively with peer firms.

This Article challenges both the theoretical and empirical bases for this argument and contends that executive pay design is actually an implausible mechanism for linking common ownership with reduced competition.

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Are Free Textbooks For Law Students Open Source?

Inside Higher Ed, Free Textbooks for Law Students:

Law school is notoriously expensive, but a growing number of professors are pushing back on the idea that law textbooks must be expensive, too. Faculty members at the New York University School of Law have taken matters into their own hands by publishing their own textbooks at no cost to students.

Barton Beebe, a law professor at NYU, published the sixth edition of his trademark-law textbook last year. Fellow NYU professors Jeanne Fromer and Christopher Jon Sprigman also published the first edition of their copyright-law textbook in 2019. Both titles are available to download electronically at no charge and are already in use at dozens of universities. Print copies of the textbooks can be ordered on demand through Amazon for the bargain-basement price of $20.26 and $15.40, respectively. The authors make no profit from these sales.

Professors authoring free textbooks isn’t a new concept. The open educational resources (OER) movement, which depends on faculty members sharing their work with the public for no personal monetary gain, was established over a decade ago. But law professors have been slow to embrace the OER movement, preferring to assign titles from well-known publishers that typically charge students in excess of $200 per book. At NYU, law students are advised to budget $1,450 for books and supplies each year on top of their $66,000 tuition.

Whether the free textbooks that Beebe, Fromer and Sprigman authored should be considered OER is a surprisingly complex question. The term “OER” is noticeably absent from the university’s promotion of the free textbooks, despite the textbook authors themselves embracing the term. Yes, the textbooks are free, but are they open?

Definitions of OER vary, but many advocates agree that OER content must be openly licensed to make clear that users can revise and remix the content however they desire. Creative Commons licenses requesting that users provide attribution to the original author, or preventing them from selling the work commercially, are common for OER materials. But licenses stating “no derivatives” are not. These licenses prohibit users from sharing content they have modified without prior permission, even if their changes improve the original material.

Another Path For Public Service: Pro Bono In Big Law

New York Law Journal, Another Path for Public Service: Pro Bono in Big Law:

A growing number of young lawyers today say they want to use their law degrees to take on the world’s challenges, which seem to grow knottier every day. According to the Stanford Social Innovation Review, the “Millennial generation wants to create social impact with their skills and talent, and not just with their checkbooks or by spending a day in the soup kitchen.” The Pro Bono Institute likewise notes that many lawyers say they want to make a difference in the lives of others and the fate of the planet and “demand a sense of purpose” in their work.

At the same time, recent graduates can face some seriously scary debts, which often take years or even decades to pay off. Law School Transparency, a non-profit organization, found that 75% of 2018 law school graduates took students loans. These students on average borrowed about $115,000 to pay for law school. This amount may be on top of additional debt from their undergraduate studies, as the Pew Research Center reports that the percentage of young adult households with any student debt has doubled in the last 20 years. New lawyers going straight into public service can participate in law school loan-forgiveness programs, but even those require up to a 10-year commitment of work at a legal service provider or NGO. Once there, lawyers do incredibly important and rewarding work but just like lawyers in corporate practice can face long hours, frustration and burnout.

Navigating between “doing well” and “doing good” has traditionally required picking either a corporate or a public service path. There is still no magic bullet, but because of how big firms have evolved, there is a counter-intuitive and increasingly attractive option. These days there are great opportunities to do enormously powerful public interest work in large private firms—with the firms actively seeking the work, encouraging it and supporting it financially.

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Wealth Of World’s Richest Rose 25% In 2019; Jeff Bezos Stays #1 Despite $9 Billion Divorce

Bloomberg News, World’s Richest Gain $1.2 Trillion in 2019 as Jeff Bezos Retains Crown:

The world’s 500 wealthiest people tracked by the Bloomberg Billionaires Index added $1.2 trillion, boosting their collective net worth 25% to $5.9 trillion.

Such gains are sure to add fuel to the already heated debate about widening wealth and income inequality. In the U.S., the richest 0.1% control a bigger share of the pie than at any time since 1929, prompting some politicians to call for a radical restructuring of the economy.

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Legal Writing Faculty Bear A Disproportionate Share Of 'Office Housework'

Mary Bowman (Arizona State), Legal Writing as Office Housework?, 68 J. Legal Edic. ___ (2020):

This essay examines persistent status issues that legal writing faculty face through the lens of Joan Williams’s “office housework” paradigm [Harvard Business Review, “Office Housework” Gets in Women’s Way]. Office housework includes tasks that are not valuable for career advancement, even when they are necessary for an organization’s success. Williams’s research shows significant gender and racial disparities across industries in who carries disproportionate burdens of office housework. These disparities mirror the disparities seen when comparing the composition of legal writing faculties to the composition of law school faculties generally, as well as the salary and security of position disparities between the two groups.

Applying this paradigm, the essay argues that legal writing faculty disproportionately bear the burden of three types of office housework:

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Cato: Taxing Wealth And Capital Income

Chris Edwards (Cato Institute), Taxing Wealth and Capital Income:

Taxing the wealthy is a hot issue among Democratic candidates for president. Sen. Elizabeth Warren (D-MA) is proposing an annual wealth tax on the richest households, while other candidates are proposing higher taxes on incomes, estates, capital gains, and corporations.

Calls for tax increases are animated by claims about the fairness of income and wealth distributions in the economy. Warren wants to address “runaway wealth concentration,” while Sen. Bernie Sanders (I-VT) says that the wealthy are not “paying their fair share of taxes.”

The proposed tax increases run counter to the international trend of declining tax rates on capital income and wealth. The number of European countries with a Warren-style wealth tax has fallen from 12 in 1990 to just 3 today.

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Scholarship As Fun

Thomas Schultz (King's College London), Scholarship as Fun:

This paper — which is part of a symposium for Pierre Schlag — argues that the pursuit of fun is possibly better than most of our usual pursuits in legal scholarship. This has three likely implications, which are reflected in the structure of the paper: a recognition of the coexistence of mutually exclusive legal realities entertaining dialectic relationships; the abandonment of oneness of the legal academy; and the need to situate ourselves within tangled socio-professional hierarchies.

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Mason Presents The Transformation Of International Tax Today At Boston University

Ruth Mason (Virginia) presents The Transformation of International Tax at Boston University today as part of its Tax Policy Colloquium hosted by David Walker:

The Great Recession precipitated a political crisis that motivated an unprecedented international project to curb corporate tax dodging. Contrary to dominant scholarly views, this Article argues that this effort transformed international tax, by changing its norms, agenda, decisionmakers, and even its legal forms. Although effective at coordinating the actions of independent states, these new procedures and instruments of international tax reduce democratic legitimacy and accountability, and they increase the complexity of tax law. Perhaps the most important, but often unacknowledged impact of the project was that efforts to close corporate tax loopholes opened a rift over the resulting revenues that threatens to unravel the international tax regime.

Christians Presents Blueprint For A More Sustainable Global Tax System Today At BYU

Allison Christians (McGill) presents Blueprint For a More Sustainable Global Tax System at BYU today as part of its Tax Policy Colloquium Series hosted by Cliff Fleming and Gladriel Shobe:

The international tax system incentivizes unsustainable business practices because it ignores the private profits created by offloading social and environmental costs to the public. This paper proposes a corrective in the form a blueprint for reforming the way multinational business is taxed. The blueprint calls for applying living wage and life cycle analyses to the rules for establishing market prices for tax purposes (namely, transfer pricing and permanent establishment income attribution rules). A relatively complex but arguably more accurate method and a complementary but relatively simpler proxy method are proposed. The blueprint addresses the implications of each method in the context of the legal parameters for cross-border tax cooperation via treaty-based and domestic coordinating rules and processes. The paper concludes that the blueprint provides a viable a starting point to make the global tax system support sustainable business practices without running afoul of international standards and without necessarily driving down foreign investment.

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Dispatches From The AALS Annual Meeting: Rankings, Rankings, And More Rankings

Following up on my previous coverage (links below):  Karen Sloan (Law.com), Dispatches from the Association of American Law Schools' Annual Meeting:

Rankings, Rankings, and More Rankings
In case that headline didn’t tip you off, rankings were a big deal at this year’s annual meeting. More specifically, U.S. News & World Report’s introduction of a “scholarly impact” ranking of faculties appears to have more than a few people in a tizzy. That ranking was a focus of no less than three separate panels over the weekend, two of which featured Bob Morse, U.S. News’ chief data strategist and the person responsible for the law school rankings. Legal academics love to hate on Morse and the U.S. News rankings, primarily for what they see as the outsized influence of the rankings on prospective students and the pernicious effects of playing the rankings game. So Morse is used to facing the slings and arrows of law professors, and frankly, he got away from this year’s AALS relatively unscathed. ...

Here are some of the big concerns raised by academics about the project:

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Scholarly Refereeing Is Not Productive

Aboozar Hadavand (Johns Hopkins), Daniel S. Hamermesh (Barnard) & Wesley W. Wilson (Oregon), Is Scholarly Refereeing Productive (at the Margin)?:

In economics many articles are subjected to multiple rounds of refereeing at the same journal, which generates time costs of referees alone of at least $50 million. This process leads to remarkably longer publication lags than in other social sciences. We examine whether repeated refereeing produces any benefits, using an experiment at one journal that allows authors to submit under an accept/reject (fast-track or not) or the usual regime. We evaluate the scholarly impacts of articles by their subsequent citation histories, holding constant their sub-fields, authors’ demographics and prior citations, and other characteristics. There is no payoff to refereeing beyond the first round and no difference between accept/reject articles and others. This result holds accounting for authors’ selectivity into the two regimes, which we model formally to generate an empirical selection equation. This latter is used to provide instrumental estimates of the effect of each regime on scholarly impact.

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ABA Approves Thomas Jefferson Law School's Teach-Out Plan

Following up on my previous post, Thomas Jefferson Loses ABA Accreditation, To Continue As California-Accredited Law School:  Council, ABA Section of Legal Education and Admissions to the Bar, Notice of Council Decision: Thomas Jefferson School of Law Teach-Out Plan:

This notice is being issued pursuant to Rule 48 of the ABA Rules of Procedure for Approval of Law Schools.

At a meeting on January 6-8, 2020, the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association (the “Council”) considered a teach-out plan submitted by Thomas Jefferson School of Law (the “Law School”). After careful review of the Law School’s submission, the Council approved the teach-out plan filed on December 31, 2019.

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Lesson From The Tax Court: A Practical Interpretation Of The Penalty Approval Statute § 6751

Section 6751 is a poorly written statute that has caused no end of headaches for taxpayers, the IRS and the Tax Court.  It requires supervisory approval of tax penalties at some point before those penalties are assessed.  But that statute does not say at what point.  Last week a surprisingly divided Tax Court created a relatively bright line for taxpayers and the IRS to know by when the IRS must conform to the supervisory approval requirements.  The Tax Court did so by giving the statute a practical rather than hyper-textual construction.  The cases are: (1) Belair Woods, LLC, et al v. Commissioner, 154 T.C. No. 1 (Jan. 6, 2020) (Judge Lauber writing for a majority of nine); (2) Tribune Media Company v. Commissioner, T.C. Memo 2020-2 (Jan. 6, 2020) (Judge Buch).  Details below the fold.

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Winners Of The Second Annual Leading Edge Prize For Legal Education Innovation

Wolters Kluwer Announces Winners of Second Annual Leading Edge Prize for Educational Innovation:

Wolters Kluwer Legal & Regulatory today announced the winners of the second annual Leading Edge Prize for Educational Innovation, which rewards teams with $10,000 for the best educational and professional solutions for law students and new legal professionals. ...

One of the winning teams, The Underrepresented Experience: How Low Income and Minority Students Successfully Navigate the First Year of Law School, seeks to better understand the Council on Legal Education’s CLIC program, a group admission model for underrepresented students from non-traditional backgrounds that provides scholarship funding and continued academic support for students in the program. Led by Carla D. Pratt, Dean and Professor of Law, Washburn University School of Law and Camille deJorna, deputy for legal and global higher education at the Law School Admission Council, the team will interview CLIC students and use these interviews to analyze how navigating legal education with a small cohort of students with similar backgrounds contributed to their law school success. ...

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• WSJ: Economists Question The Benefits Of $30 Billion/Year Spent By State & Local Governments On Targeted Tax Breaks
• Death Of Martin Dickinson (Kansas)
• Law Schools With The Worst Debt-to-Income Ratios Among Recent Graduates

Sunday:

• Five Lessons From The New England Patriots For Long Term Law School Success
• Nina Olson: We Need A Permanent National Taxpayer Advocate, Now.
• Shaping The Next Generation Of Lawyers: A Call To The Christian Legal Community
• The Top Five New Tax Papers

Five Lessons From The New England Patriots For Long Term Law School Success

Bloomberg, What the Patriots Can Teach Us About Business:

[The New England Patriots have] won six Super Bowl titles, matching the record held by the Pittsburgh Steelers, and it has done so in less than 20 years. As notable, the Patriots have been so consistently successful that they had not had to play in the first round of the playoffs since 2009; and since then, until this season, they had never failed to make it to at least the divisional round of the playoffs. ...

[T]he Patriots excelled continuously. Among the many reasons for this, five have stood out for me consistently and are extremely relevant for sustained business success:

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Nina Olson: We Need A Permanent National Taxpayer Advocate, Now.

Nina Olson (Former National Taxpayer Advocate), We need a permanent National Taxpayer Advocate, now.:

This week, the acting National Taxpayer Advocate released the 2019 Annual Report to Congress, on the heels of the IRS’s release of its own “annual report” about its performance. Reading the two documents together, one wonders whether they are reporting on the same agency. The NTA’s report focuses on the challenges the agency faces and makes concrete recommendations about how to address them; the IRS’s report celebrates the agency’s performance over the last year and how it is on track to fulfill the goals of its 2018 to 2022 strategic plan. One report is forward looking; the other is a status update.

I’ll be scouring the contents of both reports over the next month or so, but their arrival reminds me of the important and unique role the National Taxpayer Advocate (NTA) plays in U.S. tax administration today. The NTA is the protector of taxpayer rights and, according to the National Commission on Restructuring the IRS, serves as the “voice of the taxpayer” inside the agency. Each of the Most Serious Problems, Most Litigated Issues, and Legislative Recommendations in the NTA’s 2019 Annual Report to Congress is prefaced with the relevant rights enunciated in the Taxpayer Bill of Rights; they form the framework for analysis. On the other hand, the IRS annual report doesn’t get around to mentioning “taxpayer rights” until page 12. Tellingly, the words “taxpayer rights” do not appear in any of the strategic goals listed in the annual report, nor are they listed among the “core values” of the agency.

This contrast highlights why it is so important to have a permanent National Taxpayer Advocate in place, to hold the IRS’s feet to the fire about promotion and protection of taxpayer rights, especially as it hires more audit and collection employees and launches new compliance and enforcement initiatives.

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Shaping The Next Generation Of Lawyers: A Call To The Christian Legal Community

Jeffrey A. Brauch (Former Dean, Regent), Shaping the Next Generation of Lawyers: A Call to the Christian Legal Community:

In 2007, the Carnegie Foundation published Educating Lawyers, its influential and comprehensive assessment on how well law schools law schools train our students. One of the most important recommendations made by Carnegie that law schools should provide an apprenticeship in professional identity. Professional identity “draws to the foreground the purposes of the profession and the formation of the identity of lawyers guided by those purposes.”  To Carnegie, an apprenticeship in professional identity means training students both in professional ethics and professionalism, what it called “the wider matters of morality and character.”

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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. [665 Downloads]  Double Counting Accounting: How Much Profit of Multinational Enterprises Is Really in Tax Havens?, by Jennifer Blouin (Penn) & Leslie Robinson (Dartmouth)
2. [263 Downloads]  EU General Anti-(Tax) Avoidance Mechanisms: From GAAP to GAAR, by Rita de la Feria (University of Leeds)
3. [189 Downloads]  Commentary on the 'OECD Secretariat Proposal for a 'Unified Approach' Under Pillar One, by Lorraine Eden (Texas A&M) & Oliver Treidler
4. [175 Downloads]  Cryptocurrency Economics and the Taxation of Block Rewards, by Abraham Sutherland (Virginia) (reviewed by Young Ran (Christine) Kim (Utah) here)
5. [154 Downloads]  How Big is Profit Shifting?, by Kimberly Clausing (Reed College; moving to UCLA)

This Week's Ten Most Popular TaxProf Blog Posts

1. Wall Street Journal, Making It As A Young Lawyer In Boston On $50,000/Year
2. Paul Caron (Dean, Pepperdine), The Top 10 Legal Education Posts Of The Decade
3. Karen Sloan (Law.com), Changes To U.S. News Law School Rankings Met With Skepticism
4. Ben Barton (Tennessee), The Law School Crash
5. Mike Spivey, ABA 509 Report Data: 73% Of Law Students Receive Scholarships (Up From 49% In 2012)
6. Paul Caron (Dean, Pepperdine), The Top 10 Tax Posts Of The Decade
7. Wall Street Journal, Upending Bankruptcy ‘Myths,’ Judge Erases $220,000 Student Loan Debt
8. Kimberly Clausing (Reed College; moving to UCLA), How Big is Profit Shifting?
9. Mike Spivey, ABA 509 Report Data: Acceptance Rates Fall (To 45%), Yields Increase (To 32%)
10. Bryan Camp (Texas Tech), Lesson From The Tax Court: Taxpayer Who Got $1.6m Assessment Reduced To $170k Not Entitled To Costs

WSJ: Economists Question The Benefits Of $30 Billion/Year Spent By State & Local Governments On Targeted Tax Breaks

Wall Street Journal, Economists Question the Benefits of Targeted Tax Breaks:

State and local governments across the U.S. spend at least $30 billion a year to attract and keep companies, but the biggest deals generate little in the way of economic benefits.

The research calls into question the common practice of using narrow, firm-specific tax breaks to attract businesses and boost employment. The largest deals appear to be associated with job growth in the targeted industry but don’t clearly produce the hoped-for benefits for the broader regional economy, according to the study from Columbia Business School economist Cailin Slattery and Princeton University economist Owen Zidar [Evaluating State and Local Business Tax Incentives]. ...

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