Paul L. Caron

Wednesday, May 12, 2021

Henderson: The Best Metaphor For Today’s Legal Market Is the Auto Industry Circa 1905

Bill Henderson (Indiana), The Best Metaphor For Today’s Legal Market Is the Auto Industry Circa 1905: A Crowded, Chaotic Landscape in Love With the Future:

[T]the auto industry is a very powerful metaphor to understand the evolution of the legal market, particularly the energy and dynamism of the one-to-many legal ecosystem. ... Yet, on several dimensions, the auto industry is an imperfect metaphor.  Thus, to avoid being led astray, it is worth understanding the metaphor’s boundaries and limitations.  Relatedly, and no less important, many lawyers have a viscerally negative reaction to any suggestion that legal work, or even facets of legal work, can be mechanized or industrialized.  Therefore, in my talks to lawyers—particularly early or late majority audiences, which is most law firms—I tend to steer clear of auto industry comparisons.  Yet, in all candor, I believe this analysis is powerful and important.  ...

This story makes more sense when we start in the middle (present) and then look backward.  This is because our frame of reference on cars is anchored in events that are familiar to most consumers and observers of business.

Section A is about the recent history–the challenges and pathologies of a mature US auto industry and how it was eventually transformed by lean production methods pioneered by Japanese carmakers, with the vast majority of the spoils flowing to consumers.  In some respects, BigLaw’s lucrative one-to-one consultative services model is akin to the privileged market position of the Big Three during the 1960s and ’70s. In short, “Why change?”

Section B looks backward a full century to the brutal competition that winnowed 1,900 companies down to a small handful and ultimately the Big Three. This is a story about standardization, economies of scale, R&D, and picking and executing the right strategy–i.e., one that results in sizable profits, thus enabling management to stay in a game that ultimately ends in consolidation.  It’s also the story that has the greatest parallel with the emerging one-to-many legal landscape–i.e., our future.

The timeline below summarizes the core Part I narrative.

Henderson 3

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May 12, 2021 in Legal Ed News, Legal Education | Permalink

Law Students And Cell Phone Use: Results Of A Six-School Survey

Robert M. Jarvis (Nova; Google Scholar), Cindy Archer Thomas (UC-Irvine), Linda Galler (Hofstra), Hugh D. Spitzer (Univ. of Washington), Jodi Wilson (Memphis), & Mark E. Wojcik (UIC-John Marshall), Law Students and Cell Phone Use: Results of a Six-School Survey, 89 UMKC L. Rev. 2 (2020):

The sight of a law student using his or her cell phone now is so common that law professors do not give it a second though. But what, exactly, is the student doing? Texting with friends? Shopping? Watching a movie? To try to find out, during the Fall 2019 semester we asked our six diverse law schools to take an online survey consisting of eighteen questions. To our knowledge, this is the first phone survey of law students.

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May 12, 2021 in Legal Ed Scholarship, Legal Education | Permalink

Are We On The Brink Of A Female ‘Exodus’ From Big Law?

Bloomberg Law, Are We on The Brink of a Female ‘Exodus’ from Big Law?:

Will the pandemic spawn a major female brain drain in law? Or is that just a lot of hooey? ...

According to a new study by the American Bar Association (“Practicing Law in the Pandemic and Moving Forward”), which surveyed 4,200 ABA members (54% men and 43% women) from September 30 to October 11, 2020, the pandemic has been no friend to female lawyers. Though Big Law lawyers have generally worked like dogs during Covid and suffered stress as a result, women have had a far worse time. The ABA study finds that women are going bonkers trying to juggle family and work, so much so that many are thinking of downsizing their careers or dropping out entirely.

“It is clear that the ‘she-cession’ is occurring in the legal industry,” says Katherine Helm, a New York-based partner at Dechert who has three school-age kids. “I have seen both female associates and partners quit outright or downgrade their careers over the past year,” noting the struggles that women with young kids have. She calls the supposed “benefits” of the pandemic “toxic positivity,” that’s “not particularly helpful to boosting morale or encouraging women to stay in legal practice during these trying times.” The reality, she adds, is that “the gender effects in the legal profession appear to be on par with other working class industries.” ...

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May 12, 2021 in Legal Ed News, Legal Education | Permalink

OECD Calls For Increased Inheritance, Estate And Gift Taxes To Curb Inequality And Raise Revenue

OECD, Inheritance, Estate and Gift Taxes Could Play a Stronger Role in Addressing Inequality and Improving Public Finances:

Inheritance taxation can be an important instrument to address inequality, particularly in the current context of persistently high wealth inequality and new pressures on public finances linked to the COVID-19 pandemic, according to a new OECD report.

Inheritance Taxation in OECD Countries provides a comparative assessment of inheritance, estate and gift taxes across the 37-member OECD, and explores the potential role these taxes could play in raising revenues, addressing inequalities and improving the efficiency of tax systems in the future.

The report highlights the high degree of wealth concentration in OECD countries as well as the unequal distribution of wealth transfers, which further reinforces inequality. On average, the inheritances and gifts reported by the wealthiest households (top 20%) are close to 50 times higher than those reported by the poorest households (bottom 20%).

The report points out that inheritance taxes — particularly those that target relatively high levels of wealth transfers — can reduce wealth concentration and enhance equality of opportunity. It also notes that inheritance taxes have generally been found to generate lower efficiency costs than other taxes on the wealthy, and to be easier to assess and collect than other forms of wealth taxation.

A majority of OECD countries currently levy inheritance or estate taxes — 24 in total. However, these taxes typically raise very little revenue. Today, only 0.5% of total tax revenues are sourced from inheritance, estate and gift taxes on average across the countries that levy them.


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May 12, 2021 in Tax, Tax News | Permalink

Emotion Bites: A Starter Guide To Teaching Emotional Intelligence In The Law School Classroom

Rebecca Sutton (Edinburgh), Emotion Bites: A Starter Guide to Teaching Emotional Intelligence in the Law School Classroom:

This short, practical guide outlines an approach to integrating the theory and practice of emotional intelligence into the law school classroom, based on my experience doing so at the University of Edinburgh.

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May 12, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

The Foreign Reverse Hybrid And The Estate Tax

Seth J. Entin (Holland & Knight, Miami), The Foreign Reverse Hybrid and the Estate Tax, 101 Tax Notes Int'l 1255 (Mar. 8, 2021):

Tax Notes Int'lIn this article, the author demonstrates that the estate of a foreign individual who dies owning an interest in a foreign reverse hybrid entity is not subject to U.S. federal estate tax in connection with an interest in the entity, even if the entity owns U.S.-situs assets.

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May 12, 2021 in Tax, Tax Analysts, Tax Scholarship | Permalink

Tuesday, May 11, 2021

Goldberg: Partnership Book-Ups And Section 704(c)

Daniel S. Goldberg (Maryland), 'Partnership Revaluations: Book-Ups Are Your Friends (Usually)'—Planning with Revaluations and Their Interplay with Section 704(c), 74 Tax Law. ___ (2021):

ABA Tax Lawyer (2019)The procedure provided in the section 704(b) regulations known as “re-valuation and book-up” (sometimes called simply “book-up”) of a partnership’s assets and capital accounts is available and often used when a new partner enters an existing partnership and acquires a partnership interest in exchange for cash or property. The procedure is also available for use when the new partner obtains a partnership interest for services and when an existing partner’s interest is reduced by a nonproportionate distribution or increased by a nonproportionate contribution.

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May 11, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Newman: Restore The Personal Casualty And Theft Loss Deduction

Joel S. Newman (Wake Forest), Restore the Personal Casualty and Theft Loss Deduction Now!, 11 Wake Forest J. L. & Pol'y ___ (2021):

IRS Statistics of Income data suggest that some 88,000 taxpayers suffered personal casualties in 2018, which would have been deductible under prior law, but were nondeductible pursuant to the Tax Cuts and Jobs Act of 2017 (TCJA).


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May 11, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Jake Brooks To Leave Georgetown For Fordham

John R. Brooks (Georgetown) has accepted a lateral offer from Fordham to begin in Fall 2022. Jake's recent publications include:

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May 11, 2021 in Legal Education, Tax, Tax Prof Moves | Permalink

Do We Need A Bar Exam ... For Experienced Lawyers?

David Adam Friedman (Willamette), Do We Need a Bar Exam... for Experienced Lawyers?, 12 U.C. Irvine L. Rev. ___ (2022):

The fierce determination to require a bar exam during the COVID-19 pandemic left quite an impression on new lawyers entering the profession. State bars and state supreme courts made their position clear: the bar exam provides a screening function necessary to safeguard the public. Many disagreed.

Even a cursory look at attorney discipline reveals that the lawyers who get into disciplinary trouble are not mostly new lawyers. The lawyers who get into trouble tend to be more experienced lawyers, who have not had any formal or objective tests of their ability to function since their original bar exam pass. The only check on their performance is discipline after harm has been done.

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May 11, 2021 in Legal Ed Scholarship, Legal Education | Permalink

U.S. News Law School Rankings By Elevation

I was inspired by this item in yesterday's Chronicle of Higher Education Daily briefing:

U.S. News Generic RankingsIn the status-conscious world of higher ed, rankings — however methodologically flawed — exercise a profound and dubious influence on campus and off. Who’s in, and who’s out? Who’s up, and who’s down? So it was not surprising recently to see a question on Quora about where Emory University stands in the academic pecking order. Is it “on the same level as UChicago, UPenn, Cornell, Columbia, and Northeastern, or is it on the same level as UC Berkeley, UCLA, Michigan, CMU, and USC?”

Several dreary replies indulged the questioner’s horse-race view of higher ed. Then Jeff Erickson, a computer-science professor at the University of Illinois at Urbana-Champaign, weighed in. Emory, he wrote, topped Chicago but was below Cornell — in terms of their elevation above mean sea level. He then provided a topographical ranking of all those universities, led by Carnegie Mellon, at 971 feet. At the bottom was Northeastern, at just 13 feet. Erickson’s refreshing view of what really counts in academic stature prompted us to apply it more widely. For example, under his vision, the University of Colorado at Boulder, at over a mile high, might well be the acme of American higher ed, towering over that puny college in Cambridge, Mass., a mere 10 feet above sea level.

Here are the U.S. News Top 50 law schools, re-sorted by their elevation above sea level:

Elevation Rank School Elevation (Feet) Overall Rank
1 Colorado 5,387 48
2 Utah 4,682 43
3 BYU 4,649 29
4 Arizona 2,431 46
5 Arizona State 1,093 25
6 Washington & Lee 1,043 35
7 Wake Forest 935 41
8 Emory 925 29
9 Wisconsin 883 29
10 Michigan 876 10
11 Minnesota 840 22
12 Cornell 817 13
13 Indiana (Maurer) 764 43
14 Notre Dame 735 22
15 Illinois 728 29
16 Ohio State 725 40
17 Iowa 692 29
18 Georgia 659 27
19 Texas 600 16
20 Chicago 591 4
21 Northwestern 587 12
22 Virginia 568 8
23 Vanderbilt 551 16
24 Washington Univ. 541 16
25 North Carolina 469 24
26 George Mason 430 41
27 Pepperdine Caruso 427 46
28 UCLA 397 14
29 Duke 384 10
30 UC-Berkeley 282 9
31 Boston College 213 29
32 Alabama 207 25
33 Maryland 200 50
34 USC 184 19
35 Florida State 174 48
36 Florida 151 21
37 Univ. of Washington 148 45
38 Columbia 128 4
39 Fordham 89 35
40 Yale 79 1
41 Stanford 72 2
41 William & Mary 72 35
43 UC-Irvine 69 35
44 UC-Hastings 62 50
45 George Washington 59 27
46 Penn 56 6
47 UC-Davis 52 35
48 Georgetown 43 15
49 NYU 36 6
50 Harvard 20 3
51 Boston Univ. 16 20

May 11, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

Call For Papers: Indiana/Leeds Summer Zoom Tax Workshop Series

From Leandra Lederman:

2021-indiana-leeds-graphic-2This summer, the Indiana University Maurer School of Law and the University of  Leeds School of Law will run the Indiana/Leeds Summer Tax Workshop Series again. Like last summer, Dr. Leopoldo Parada and I will host it. It will meet online via Zoom on Fridays from 11:30am-1pm Eastern time (4:30-6pm British Summer Time), starting May 28, 2021. We expect to invite a couple of speakers and select the remainder from a call for papers.

The Call for Papers opens today and will close on May 14, 2021 at midnight British Summer Time (7pm Eastern Daylight Time). If you are interested in presenting in the Workshop, please send the following before then to both and, with “Indiana/Leeds Workshop submission” in the subject line of your email:

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May 11, 2021 in Colloquia, Tax, Tax Scholarship, Tax Workshops | Permalink

More On The Use Of The 'N-Word' In Law School

Tax Practitioners Scoff At Janet Yellen's Comment That 'The IRS Has Put On A Masterclass In How The Machinery Of Government Should Work'

Forbes, Treasury Secretary’s IRS Praise Sparks Backlash From Those Who Must Deal With The Tax Agency:

IRS Logo 2Is the IRS broken? It depends on whom you ask. Yesterday Treasury Secretary Janet Yellen tweeted “It’s a stunning achievement. In the midst of a crisis, the IRS has put on a masterclass in implementation and how the machinery of government should work.” The pushback from tax industry professionals was immediate and vehement.

Brian Streig, CPA and Tax Director at Calhoun, Thomson & Matza, LLP in Austin, Texas, responded “Yes, the IRS did a great job at implementing CARES Act and other Covid tax law changes. But, the IRS has completely failed American taxpayers in their primary function of processing tax returns, issuing refunds, and handling notices.” ...

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May 11, 2021 in IRS News, Tax, Tax News | Permalink

Monday, May 10, 2021

Northwestern Law Faculty To Vote Today On New Dean Hari Osofsky's Tenure In Controversial Search Process

UpdateHari M. Osofsky Named Dean of Northwestern Pritzker School of Law

Update:  Glenn reports that the Northwestern faculty approved Dean Osofsky's tenure.

Glenn Reynolds (Tennessee) reprinted a lengthy anonymous email he received, purportedly from a member of the Northwestern Law faculty, which included this email from the interim dean:  

Northwestern (2018)Sent: Friday, May 7, 2021 9:55 AM
Subject: Meeting Monday, at 10:00 a.m.: Candidacy of Professor Hari Osofsky

Dear colleagues:
I am calling a tenure-line faculty meeting for next Monday, May 10, at 10:00 a.m., for the purpose of discussing and voting on a recommendation that the Provost’s selection for our new dean, Professor Hari Osofsky, be named to the tenured faculty of the Law School. Professor Osofsky is currently the Dean of both the Law School and the School of International Affairs at Penn State. She was previously on the faculty at Minnesota Law, among other schools. She is an accomplished scholar in several fields, including international and environmental law, and, of course, an experienced administrator.

I attach to this email Professor Osofsky’s CV, and here is her webpage. Members of the search committee will also speak to her background and qualifications at the meeting.

This unusually expedited procedure is necessary, given the continuing nonpublic nature of the search. In that regard, this meeting is being held before any public announcement and before any broader internal announcement. I therefore request (as does the Provost) that you refrain from sharing this information either internally or externally and keep this confidential until the matter is concluded and such public announcements can be made.

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May 10, 2021 in Legal Ed News, Legal Education | Permalink

Brooks Reviews Brauner's International Tax Handbook

Kim Brooks (Dalhousie University, Schulich School of Law; Google Scholar), A Hand Up in International Tax (JOTWELL) (reviewing Research Handbook on International Taxation (Yariv Brauner (Florida; Google Scholar) ed. Elgar 2020):

JOTWELL (2020)Handbooks are the best. A good one tells you something about how the discipline is organized, identifies major debates, showcases thoughtful researchers, and captures the momentum of the field. Brauner’s editorial work on the Research Handbook on International Taxation achieves all those advantages.

The volume has twenty chapters, organized in five parts. Part I, Fundamentals, digs into some of the issues that situate the discipline as a whole. Is there such a thing as international tax law? How did we get here? Who is responsible? And is there an international doctrine of tax fairness that can serve as a platform for constructive engagement? ...

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May 10, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

California Bar Violated State Policy In Awarding $3.8 Million To ExamSoft For Online Bar Exam

California State Auditor, The State Bar of California It Is Not Effectively Managing Its System for Investigating and Disciplining Attorneys Who Abuse the Public Trust:  Section 3: The State Bar Appropriately Administered the Bar Exam During the COVID‑19 Pandemic, but Its Procurement of Exam Software Did Not Comply With Its Policy:

California Bar (2021)Key Points

  • At the direction of the Supreme Court, the State Bar developed a provisional licensure program for recent law school graduates who were negatively affected by bar exam delays caused by the COVID‑19 pandemic. In addition, to avoid the risks associated with in‑person contact during the pandemic, the State Bar modified how it administered the bar exam, allowing applicants to take the October 2020 bar exam remotely.
  • The State Bar did not follow its contracting policy when it entered into software agreements worth nearly $4 million related to the bar exam. As a result, it did not verify that it was using its resources responsibly. ...

The State Bar Entered Into Multimillion Dollar Agreements Without Adequately Justifying the Vendor It Selected
The State Bar’s procurement policy provides its staff with significant levels of discretion when selecting vendors for the administration of the bar exam. However, the State Bar did not follow its contracting policy when it entered into software agreements related to the bar exam. Although state law requires the State Bar to use formal competitive bidding procedures and obtain at least three competitive bids or proposals for information technology‑related goods and services in excess of $100,000, it provides an exception from competitive bidding for contracts related to licensing or proficiency testing examinations, such as the bar exam (exam exemption). In these instances, the State Bar’s procurement manual gives contract managers the authority to select the vendor to provide the required goods or services, rather than requiring competitive bidding. The State Bar used the exam exemption to approve both the five‑year, $3 million contract with ExamSoft and the $830,000 contract amendment we describe in the previous section.

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May 10, 2021 in Legal Ed News, Legal Education | Permalink

February California Bar Exam Pass Rate Rises 10 Percentage Points; It Would Have Hit All-Time Low Of 23.7% Without Change In Cut Score

State Bar of California Releases Results of February 2020 Bar Exam:

California State Bar (2019)Today the State Bar released results of the February 2021 California Bar Exam and announced that 1,151 people (37.2 percent of applicants) passed the General Bar Exam. This pass rate represents an increase of 10.4 percentage points, or nearly 39 percent, from the February 2020 General Bar Exam pass rate of 26.8 percent.  ...

This year’s February exam was the second administered remotely, after the near-record cohort who took the exam in October. It was also the second graded under the reduced cut score of 1390, directed by the California Supreme Court in July 2020. If the cut score had remained at 1440, approximately 734 General Bar Exam takers (23.7 percent) would have passed this examination.

The February exam cohort was smaller than typical for a February exam (approximately 3,100 compared to 4,000–5,000 on average), likely attributable to the increased number of test takers for the October 2020 exam cohort, the availability of the new provisional licensure program, and the higher pass rate on the October exam. As is typical, a majority of the February exam cohort were repeat takers, although at a lower percentage than average (approximately 60 percent compared to the typical 70 percent).

February 2020 General Bar Exam preliminary statistics

  • Completed the exam: 3,098 applicants
  • First-time applicants: 1,227 (39.6 percent of total)
  • Pass rate for first-time applicants: 53.0 percent overall
  • Repeat applicants: 1,871 (60.4 percent of total)
  • Pass rate for repeat applicants: 27.0 percent overall

Pass rate for the General Bar Exam (rounded to whole numbers) by law school type:

 School Type  First-Timers  Repeaters

 California ABA



 Out-of-State ABA



 California Accredited (not ABA)



 Unaccredited: Fixed-Facility



 Unaccredited: Correspondence



 Unaccredited: Distance-Learning



 All Others



 All Applicants



Cheryl Miller (The Recorder), California February Bar Exam Pass Rate Climbs to 37%:

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May 10, 2021 in Legal Ed News, Legal Education | Permalink

ABA Tax Section May Meeting Kicks Off Today With The Emergence Of Analytics For Tax Positions

The ABA Tax Section virtual 2021 May Meeting kicks off today (program). Today's highlight:

ABA TaxBenjamin Alarie (Osler Chair in Business Law, University of Toronto Faculty of Law; Co-Founder & CEO, Blue J Legal), The Emergence of Analytics for Tax Positions at 2:30 PM ET:

When defending a client’s position to the IRS or a judge, it can be hard to ensure you are making the strongest possible argument for the client’s position, mitigating the risk of the position being successfully challenged and providing time- and cost-effective service for your client. Join us as we discuss how leading tax professionals are using advanced analytics tools to strengthen client positions and gain an advantage in settlement discussions by:

  • Using artificial intelligence to identify the strength of a position with greater than 90% accuracy;
  • Testing the effect of various changes to the facts on the strength of the position;
  • Gaining a comprehensive view of the law by identifying authorities and guidance that may pose a risk to the position or can be used to support it;
  • Providing independent, 3rd party reports to foster favorable resolutions

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May 10, 2021 in ABA Tax Section, Conferences, Legal Education, Tax | Permalink

Lesson From The Tax Court: The Measure Of Intent For Gift Exclusions Under §102(a)

Camp (2017)When my church stopped in-person worship services in 2020, we kept paying our part-time child-care workers.  We first paid them with PPP loan money (which we treated as wages).  When that ran out, we decided to continue payments.  Why did we do that?  First, they were part of our church family and we knew that losing those amounts would be a hardship for them.  Second, we wanted to retain goodwill so they would come back when we resumed in-person worship.  So we had dual intent, mixed motives.  Which dominated would determine whether those continued payments were taxable compensation or non-taxable gifts.  How is a Court supposed to figure that out?

Juan Pesante, Jr., and Maria A. Moreno-Pesante v. Commissioner, (Bench Opinion, May 6, 2021) (Judge Copeland) teaches how the Tax Court measures the intent of a payor to determine whether a taxpayer may exclude a payment as a gift under §102(a).  There, the payor had sent mixed messages on whether a $25,000 payment to Mr. Pesante was a gift.  The Tax Court agreed with the IRS that the payment was not a gift.  Judge Copeland’s reasoning gives a great road map for how taxpayers and their tax advisors should approach this messy life-in-all-its-fullness issue.  Details below the fold. 

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May 10, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

Retrial Of Katherine Magbanua Set For October 4, More Than 7 Years After Dan Markel's Murder

WXTL, Magbanua's Re-scheduled Trial Set for October:

Katherine Magbanua is set to stand trial in October for the murder of FSU professor Dan Markel.

On Thursday, the judge set a trial date for October 4, 2021. The trial is scheduled to last two weeks.

Magbanua’s scheduled re-trial comes exactly five years to the day since the warrant for her arrest in the murder was issued.

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May 10, 2021 in Legal Education | Permalink

TaxProf Blog Weekend Roundup

Sunday, May 9, 2021

What We’ve Lost In Rejecting The Sabbath: 'A World Without The Sabbath Is A World Without Soul'

Wall Street Journal Saturday Essay:  What We’ve Lost in Rejecting the Sabbath, by Sohrab Ahmari (Author, The Unbroken Thread: Discovering the Wisdom of Tradition in an Age of Chaos (2021)):

Unbroken Thread 3Setting aside one day a week for rest and prayer used to be an American tradition. In an age of constant activity, we need it more than ever.

The share of Americans who don’t identify with any religion continues to grow, and even many believers reject the concept of the Sabbath as a divinely ordained day of rest. Instead, we are encouraged to pursue lives of constant action and purpose, and we do. Smart devices allow white-collar professionals to freely mingle work and play. The gig economy and the Covid-19 work-from-home trend have further blurred the line between the two. The Sabbath doesn’t fit into the rhythm of our lives. It feels like an imposition—it is an imposition.

Americans’ turn away from the Sabbath has been going on for a long time. In the mid-20th century, Rabbi Abraham Joshua Heschel, one of America’s foremost Jewish thinkers, wrote about the Sabbath in terms of “the realm of time” and “the realm of space.” Modern life is all about conquering space: winning geopolitical territory, growing and prospering economically. But “the danger begins,” Heschel worried, “when in gaining power in the realm of space we forfeit all aspirations in the realm of time.” In that realm, “the goal is not to have but to be, not to own but to give, not to control but to share, not to subdue but to be in accord.”

Many of his American coreligionists in those days saw the ritual as an impediment to freedom: the freedom to shop, work and socialize as much as they wanted. For Heschel, this brand of freedom was missing something profound. It barred entry to an entire dimension of existence: namely, time, whose passage reminds us that everything is contingent, everything passes away—everything, that is, except God. The Sabbath, Heschel thought, is the guarantor of our “inner liberty,” while restless, Sabbath-less societies could easily descend into tyranny and barbarism. ...

The goal of a philosophy of religion, Heschel argued, shouldn’t be to understand “God” as an ancient idea or symbol, still less a disturbance in the ancient mind, but to understand human beings as the living God’s project and as partakers in the divine “pathos.”

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May 9, 2021 in Legal Ed News, Legal Education | Permalink

Video Of Law Students Thanking Professor In Last Zoom Class Of The Year Goes Viral

Karen Sloan (, Saying Thanks:

To say that the 2020/21 academic year was a tough one for students and faculty feels like an understatement. Many classes were moved online. Zoom fatigue set in. The in-person opportunities to socialize and take the edge of the stress of law school were vastly diminished. So it’s nice to see that through all those challenges, standout law professors still found a way to connect with their students in a meaningful way. I was reminded of that when I saw this local news story about students in Loyola University New Orleans School of Law professor Rob Verchick’s class showing their gratitude for his patience and dedication during the year.

When Verchick logged in to the final Zoom class of the semester on April 29, he was surprised to see that all his students had turned their cameras off. He didn’t think too much of it until one student asked all her classmates to flip their videos on. Each one was holding a handmade sign thanking Verchick., Video Goes Viral of Loyola Students Thanking Teacher:

A law class at Loyola University has gone viral on Tik Tok. Almost five million people have seen the video, which delivers a special message to their professor.

The moment meant the world to Verchick. "I just want to thank them and encourage any student who is touched by a teacher to let them know," he said. "These are the moments we live for." It also taught the class a lesson that day, that the smallest 'thank you,' even virtually, can go a long way.

May 9, 2021 in Legal Education | Permalink

Happy Mother's Day From SNL

May 9, 2021 in Legal Education | Permalink

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, a paper returning to the list at #4, and a new paper debuting on the list at #5:

  1. SSRN Logo (2018)[434 Downloads]  Ten Truths About Tax Havens — Inclusion And The ‘Liberia’ Problem, by Steven Dean (Brooklyn) & Attiya Waris (Nairobi)
  2. [367 Downloads]  Tax Treaty Entitlement and Fiscally Transparent Entities: Improvements or Unnecessary Complications?, by Leopoldo Parada (University of Leeds; Google Scholar)
  3. [366 Downloads]  Insider Giving, by Sureyya Burcu Avci (Sabanci University; Google Scholar), Cindy A. Schipani (Michigan; Google Scholar), H. Nejat Seyhun (Michigan; Google Scholar) & Andrew Verstein (UCLA; Google Scholar),
  4. [195 Downloads]  The Case for a Sustainable Excess Profits Tax, by Allison Christians (McGill; Google Scholar) & Tarcisio Diniz Magalhaes (Antwerp))
  5. [191 Downloads]  Religious Legitimacy, by Phil Lord (McGill; Google Scholar)

May 9, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, May 8, 2021

This Week's Ten Most Popular TaxProf Blog Posts

Billable Hours Are Smothering Associates—And Any Attempts To Help Them, Billable Hours Are Smothering Associates—and Any Attempts to Help Them:

Associate mental health and wellbeing are deteriorating at an alarming rate, thanks in large part to billable hour requirements compounding the many additional stressors that have been brought about by the pandemic over the past year-plus.

Are alternative fee arrangements and additional time off the cure? It comes down to execution and expectations. But getting those right is easier said than done. ... 

The billable hour model is often held up as a monument to inefficiency, and with good reason. ... During the pandemic, the ever-present pressure on associates to hit their annual billable targets has not been relieved at many firms, exacerbating the mental toll of working remotely, quarantining and worrying about the health impact of COVID-19.

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May 8, 2021 in Legal Ed News, Legal Education | Permalink

Bridget Crawford Named University Distinguished Professor At Pace

Pace University Appoints Bridget J. Crawford as University Distinguished Professor:

Crawford (2021)Bridget J. Crawford, a member of the Elisabeth Haub School of Law faculty, has been named as a Distinguished Professor. The title of Distinguished Professor is the highest honor the University can bestow upon a faculty member.

This honor comes in recognition of a sustained record of extensive, extraordinary research and scholarship, outstanding teaching, and exemplary service to the University, community, and the faculty member’s professional field. Professor Crawford’s pathbreaking interdisciplinary scholarship explores how seemingly neutral legal rules and systems can reflect, exacerbate and sustain inequality. Her work draws on jurisprudence, statutory analysis, behavioral economics, critical tax theory and feminist legal theory to demonstrate how an equitable legal system can better serve human needs by taking gender, race and other identity factors into account.

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May 8, 2021 in Legal Education, Tax | Permalink

Tax Prof Baby: Theo Choi

Jonathan Choi (Minnesota) and Lilai Guo (PwC) welcomed Theo Choi (6 pounds, 10 ounces) into their family on March 18:

TaxProBaby - Theo Choi

May 8, 2021 in Legal Education, Tax | Permalink

Friday, May 7, 2021

Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Monroe's Improvisation And Forgotten Taxpayers In Partnership Tax

This week, Hayes Holderness (Richmond) reviews Andrea Monroe (Temple), Making Tax Law Work: Improvisation and Forgotten Taxpayers in Partnership Tax, 55 Mich. J. L. Reform ___ (2021):

Holderness (2017)When I teach Partnership Taxation, I like to introduce the subject by telling my students that there are really only two principles behind Subchapter K: 1) do what you want, and 2) don’t screw the government. I explain that the course will be an exercise in reconciling those two principles, and it will probably be the most difficult exercise in tax law that they encounter in law school. Until reading Andy Monroe’s forthcoming article, I was certain that the difficulty of Partnership Taxation was merely the unfortunate side effect of a tax regime designed to respect taxpayer choices. Now I’m not so sure, and worse, I’ve certainly been complicit in promoting this narrative.

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May 7, 2021 in Hayes Holderness, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Tax Policy In The Biden Administration

Weekly Legal Education Roundup

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May 7, 2021 in Legal Education, Scott Fruehwald, Weekly Legal Ed Roundup | Permalink

AALS Cancels In-Person Faculty Hiring Conference For Second Year In A Row Due To COVID-19

For the second year in a row, AALS has cancelled the in-person faculty recruitment conference due to COVID-19. Brian Leiter (Chicago) predicts a robust faculty hiring market, with perhaps 100 faculty openings this cycle:

AALS (2018)2021-22 promises to be an excellent year for law school enrollments, and early indicators suggest that the 2022-23 year will be at least as strong. Since enrollments drive hiring at 80-85% of the law schools in the country, this bodes very well for academic job seekers. I expect many more law schools to be in the market for new teachers this coming year, compared to this past year. ...

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May 7, 2021 in Legal Ed News, Legal Education | Permalink

The Pandemic’s Sexist Consequences: Academe’s Stark Gender Disparities Are Exacerbated By Covid-19

Chronicle of Higher Education op-ed:  The Pandemic’s Sexist Consequences: Academe’s Stark Gender Disparities Are Exacerbated By Covid-19, by Rose Casey (West Virginia):

Covid-19 has precipitated a caregiving crisis with profoundly gendered effects. The well-documented decrease in women’s journal submissions is an early example of the pandemic’s impact. In coming years, we’ll probably see additional consequences, including widening gender divisions in attaining tenure and an increase in the gender pay gap. These effects will be particularly stark for racially minoritized women.

Covid’s collapsing of work into home life has made clear that what Tithi Bhattarcharya calls “life-giving reproductive labor” frequently falls on female shoulders. With schools closed, child-care provisions reduced, and care for other family members increased, pandemic time has heightened academe’s existing gendered inequalities.

Research across many disciplines — economics, public health, sociology, biology, medicine, gender studies, and more — has documented Covid-19’s detrimental impact on women. Multiple papers have shown that women’s unpaid care work, including child care, home-school supervision, emotional support of household members, and all manner of domestic tasks, has increased more than men’s during the pandemic. ...

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May 7, 2021 in Legal Ed News, Legal Education | Permalink

Recognizing Another Black Barrier: The LSAT Contributes To The Diversity Gap In The Legal Profession

Lynee McDuffie, Recognizing Another Black Barrier: The LSAT Contributes to the Diversity Gap in the Legal Profession:

Imagine working your entire life with the purpose of building the house of your dreams. The ability to pursue this “calling” has been granted through your tremendous hard-work and dedication to your craft. In fact, building this dream home has been the final culmination of all that you have worked towards over the past several years. Now imagine, you have successfully built the foundation of the house, and began to lay the pipeline for the plumbing. Just as the plumbing was coming together, there was one exact piece that was missing, a coupling, which would be required to connect the pipes. Since pipelines are the heartbeat of all functionality within a house, without the coupling, the incomplete plumbing may diminish the potential of all that your dream house was meant to become. Thus, hindering the dream.

Similarly to a person that has a dream of becoming a lawyer. The ability to pursue this calling would be directed through the education pipeline. After obtaining an Undergraduate degree through tremendous amount of hard-work and dedication, the Law School Admission Test (LSAT), a coupling to the next education pipeline, is required for applicants to take when applying to law school. But, what if the LSAT is a faulty coupling that presents a major leak in the education pipeline? This standardize test has revealed years of racial bias from the disturbing score gaps between white and minority applicants. The LSAT has shown to have test biases within the questions that appear in the form of language interpretation, which contains culturally stereotypic language, situations, and structural components. As a result of these biases, there has been a disproportionate amount of lower scores by minorities, which hinders the chances of being accepted into law school. Thus, presenting a leak in the education pipeline that disconnects minorities from achieving their dreams of practicing law.

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May 7, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

George Mason-Scalia And Cardozo Host Free Virtual Conference For Aspiring And New Law School Deans

Deans Leadership Academy

George Mason-Scalia and Cardozo law schools are co-sponsoring a free virtual conference for aspiring and new law deans on June 3-4: the Deans Leadership Academy:

Taking charge of a law school requires specific skills and conquering a series of natural milestones in order to “get it right.” The early months are critical to establishing the tone and substance of your Deanship. The interview process for new deans rarely provides you with real insight about how to lead and what’s expected. The critical to-do list and the timetables for accomplishing them are not necessarily obvious. And retaining consultants for expert guidance may not be economically feasible.

This program offers critical lessons that current deans say they wish they had learned before starting. It is designed to take away some of the mystery of the do-it-yourself approach, while highlighting some of the dangers that come with the territory. Sessions will be led by leading experts in their respective fields, from both in and outside academia.

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May 7, 2021 in Conferences, Legal Ed Conferences, Legal Education | Permalink

Lipman: We The People Must Pull America Back From The Abyss Of Economic Injustice

Francine J. Lipman (UNLV; Google Scholar), We the People Must Pull America Back from the Abyss of Economic Injustice:

Americans have long suffered decades of increasing income and wealth disparity resulting from failed economic policies and systemic racial discrimination. The COVID-19 pandemic has further exposed and exacerbated the depth and breadth of these gaps. The juxtaposition of 67 million Americans losing their jobs, 27 million adults and their kids suffering food insecurity, and 14 million households behind on their rent with 651 billionaires adding $1 trillion in net worth to their already bloated balance sheets is immoral. The percentage of food-insecure families with children is approaching 20 percent of the U.S. population, and these numbers are almost double for families of color. Because of institutional racism, Black Americans have been hospitalized and died from COVID-19 at five times the rate of white Americans. Indigenous and Latinx individuals also suffer disproportionately from COVID-19 hospitalizations and deaths. 

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May 7, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, May 6, 2021

Thomas Reviews Are Individuals More Willing To Lie To A Computer Or A Human About Their Taxes?

Kathleen DeLaney Thomas (North Carolina; Google Scholar), Your Tax Software Doesn't Know You're Lying (JOTWELL) (reviewing Ethan LaMothe (Central Florida; Google Scholar) & Donna Bobek (South Carolina; Google Scholar), Are Individuals More Willing to Lie to a Computer or a Human? Evidence from a Tax Compliance Setting, 167 J. Bus. Ethics 157 (2020)):

JOTWELL (2020)Imagine your accountant asks you if you earned any income that wasn’t reported on a 1099 or W-2 this year, and you know that you have an extra $5000 of such income. Do you tell her? Probably. For starters, you might be worried that she is going to be suspicious if you lie to her. Something in your voice might give it away, or perhaps your income this year is lower than last year and she wants to know why. Further, you might have developed a rapport with your accountant, and lying to her might cause psychological discomfort.

Now imagine that you are debating whether to report the same income without an accountant’s help, using tax return preparation software. The software isn’t suspicious of your omission and doesn’t harbor any ill feelings about whether you are telling it the truth. In that case, you might be more likely to lie and not report the income. A fascinating new study by Ethan LaMothe and Donna Bobek confirms this intuition. In a survey of 211 participants, LaMothe and Bobek find that individuals may be more willing to lie to tax preparation software than they are to a human tax return preparer. ...

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May 6, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Sabu: Reframing Bitcoin And Tax Compliance

Arvind Sabu (Chicago-Kent), Reframing Bitcoin and Tax Compliance, 64 St. Louis U. L.J. 181 (2020):

This Article argues that, contrary to the common belief that Bitcoin enables tax evasion, the Internal Revenue Service (“IRS”) can increasingly police transactions in Bitcoin. First, commercial and technical intermediaries have emerged as part of Bitcoin’s ecosystem. This diverse set of intermediaries can facilitate tax enforcement, as the litigation over the IRS’s summons on Coinbase—the largest domestic digital asset exchange—and subsequent IRS efforts show. These intermediaries could report transactions to the IRS or even, one day, withhold and remit tax payments. Second, the publicly visible, trustworthy nature of Bitcoin’s blockchain—its unique role as a shared truth—allows tax authorities to observe transaction flows. This renders Bitcoin unusually regulable for tax purposes, as recent efforts by the IRS to rely on Bitcoin’s blockchain to police tax evasion demonstrate.

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May 6, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tribute To Valparaiso University Law School (1879-2019)

Symposium, Tribute to Valparaiso University Law School (1879-2019), 53 Val. U. L. Rev. 833-1173 (2019):

Valpo (2018)Comments


Greatest Hits of Valparaiso University Law Review

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May 6, 2021 in Conferences, Legal Ed Scholarship, Legal Education | Permalink

Death Of Jack McNulty (UC-Berkeley)

SFGATE obituary, John McNulty:

Mcnulty_john_210x270-210x270John Kent McNulty, professor emeritus at Berkeley Law and a man of letters, music, and the arts, died Saturday, Sept. 26, at his home in Berkeley of an apparent heart attack. He was 85.

Jack, as he was known by many since childhood, was an accomplished legal scholar who specialized in federal income taxation and international tax. He joined the faculty at Berkeley Law (then Boalt Hall School of Law) in 1964 and taught full-time until his retirement in 2002. The law was his true north, and his community of scholars sustained him; he continued to visit his campus office every weekday until the COVID-19 pandemic precluded it.

An invitation to join the Berkeley Law faculty prompted Jack, his wife Linda, and their three young children, Martha, Jennifer, and John Jr., to pack up and head west, arriving just in time for the Free Speech Movement and all the social, political, and personal change that would ensue. Jack and Linda, both born and raised in Buffalo, N.Y., welcomed the waves of change, eager for their children to grow up in a more just and democratic society.

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May 6, 2021 in Legal Ed News, Legal Education, Obituaries, Tax, Tax News | Permalink

ABA Mulls Racism, Bias Training Accreditation Requirement For Law Schools

Karen Sloan (, ABA Mulls Racism, Bias Training Accreditation Requirement for Law Schools:

ABA Section On Legal Education (2016)Law schools would be required to train students in bias, racism, and cross-cultural competency under a proposal being considered by the American Bar Association arm that oversees legal education.

That proposed change to the ABA’s law school accreditation standards is part of a larger push to incorporate professional identity formation into the curriculum requirements—that is, mandating that schools devote more time and attention to helping students understand what it means to be a lawyer, not just how to think like one.

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May 6, 2021 in Legal Ed News, Legal Education | Permalink

Five Former IRS Commissioners (3 GOP, 2 Dem) Back Biden's Tax Plan

Washington Post, Five Former IRS Commissioners: Biden’s Proposal Would Create a Fairer Tax System:

The writers are former commissioners of the Internal Revenue Service: Lawrence B. Gibbs, 1986 to 1989; Fred T. Goldberg, 1989 to 1992; Margaret M. Richardson, 1993 to 1997; Charles O. Rossotti, 1997 to 2002; John Koskinen, 2013 to 2017.

President Biden’s proposal would restore our tax administration system to make it far fairer and more effective. This would benefit everyone who pays their taxes. It would produce a great deal of revenue by reducing the enormous gap between taxes legally owed and taxes actually paid — much of it through increased voluntary compliance. And it would improve taxpayers’ interactions with the IRS.

Achieving these goals will take time, persistence and sound management, but the investment is likely to pay for itself many times over, for decades to come.

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May 6, 2021 in Tax, Tax News | Permalink

John Eastman To Sue University Of Colorado For $1.9 Million For Stripping Him Of Duties After Jan. 6 Capitol Speech

Following up on my previous posts (links below):  Colorado Politics, John Eastman Seeks to Sue CU For $1.9M For Stripping Him of Duties After Capitol Rally Speech:

EastmanJohn Eastman, a University of Colorado Boulder visiting professor, is looking to sue CU for nearly $1.9 million after he was stripped of most of his job duties following his speech at President Donald Trump’s Washington, D.C., rally on Jan. 6 prior to the Capitol insurrection.

Eastman filed a legal claim Thursday alleging breach of contract and defamation, saying CU Boulder and its leaders have “discriminated against Dr. Eastman on the basis of his political affiliation and political philosophy,” in violation of the university's anti-discrimination policies.

The claim said Eastman will seek $1.85 million for 10 years of future salary he claims he can’t earn due to "reputational harm" and $19,835 leftover in his CU research account. The legal claim is a statutory prerequisite before Eastman can file a lawsuit.

University of Colorado, Statement on Visiting Professor Eastman:

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May 6, 2021 in Legal Ed News, Legal Education | Permalink

Michael Jackson's Estate Beats The IRS: Tax Court Sets FMV Of His Name And Likeness At $4 Million, Not $161 Million

Wall Street Journal, Michael Jackson Estate to Face Smaller Tax Bill After Court Ruling:

JacksonMichael Jackson’s estate prevailed over the Internal Revenue Service on several key issues in a closely watched court case, an outcome that will push the estate’s tax burden below the government’s initial assessment.

In a ruling issued Monday, U.S. Tax Court Judge Mark Holmes found that the singer’s name and likeness were worth $4 million when he died in 2009 at the age of 50, not the $161 million the government had claimed. The IRS won on some other points about the value of other Jackson assets, but will get far less than the hundreds of millions of dollars in taxes and penalties it had sought from the estate.

The government and the estate settled some issues, and the case came down to the question of how to value three main assets: Mr. Jackson’s name and likeness and two entities tied to the music business.

The estate initially started with some lower values, but by Monday’s decision, it had said those three assets were worth $5.3 million combined. The government had started with higher values and an estate tax bill topping $500 million, but eventually concluded those three assets were worth $481.9 million combined. Judge Holmes, in his ruling, said they were worth $111.5 million. The estate’s actual tax bill will be determined later. ...

A central question in the case was this: Was it foreseeable that the estate would—as it since has done—build a successful business around Mr. Jackson’s image? Or was that such a long shot that the estate could plausibly claim, as it initially did, that Mr. Jackson’s name and likeness was worth $2,105? As Judge Holmes put it, the estate was “valuing the image and likeness of one of the best known celebrities in the world—the King of Pop—at the price of a heavily used 20-year-old Honda Civic.” ...

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May 6, 2021 in Celebrity Tax Lore, New Cases, Tax | Permalink

Wednesday, May 5, 2021

Bank Reviews Rebellion, Rascals, And Revenue: Tax Follies And Wisdom Through The Ages

Steven A. Bank (UCLA), Taxation’s Summer Blockbuster (reviewing Michael Keen (IMF) & Joel Slemrod (Michigan; Google Scholar), Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages (Princeton University Press 2021)):

RascalsIn Rebellion, Rascals, and Revenue, Michael Keen and Joel Slemrod have written a fantastic book that collects and loosely organizes a treasure trove of anecdotes about tax systems, trivia, and events around the world and throughout history. In many respects the book, which endeavors to include stories about any type of tax, in any type of tax system, in any period in history, is overly ambitious. Nevertheless, Keen and Mick identify several common themes that persist over time. More contextualization might have revealed an omitted theme – the effect of societal changes on the development and adaptation of tax systems – but the book’s main contribution is in taking readers on a raucous ride through tax history that will leave them convinced that taxation is not only important, but exciting as well. In Rebellion, Rascals, and Revenue, Michael Keen and Joel Slemrod, two public finance economists from the International Monetary Fund and the University of Michigan, respectively, have written a fantastic book that collects and loosely organizes a treasure trove of anecdotes about tax systems, trivia, and events around the world and throughout history.

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May 5, 2021 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

Regional Variation In Tax Compliance And The Role Of Culture

Alice Guerra (Bologna, Google Scholar) & Brooke Harrington (Dartmouth, Google Scholar), Regional Variation in Tax Compliance and the Role of Culture:

To address a debate in the literature concerning the impact of culture on tax compliance, we examine a case where extreme disparities in the two variables coincide, and test for a causal relationship. Our research design isolates the role of culture by focusing on regional differences within a single country: Italy. Southern Italy has long been a focus of research interest, not only for its extremely high rates of tax evasion, but for a host of other social and political ills, all usually attributed to regional culture.

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May 5, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Trends In Law School Enrollment Since The Great Recession

Goodwin Liu (Associate Justice, California Supreme Court), Miranda Li (J.D. 2019, Yale) & Phillip Yao (J.D. 2019, Yale), Who's Going to Law School? Trends in Law School Enrollment Since the Great Recession, 54 U.C. Davis L. Rev. 613 (2020):

This study provides a comprehensive analysis of recent U.S. law school enrollment trends. With two sets of JD enrollment data from 1999 to 2019, we discuss how the demographic composition of law students has changed since the Great Recession. We examine enrollment data by gender, race, ethnicity, and nationality, with particular attention to Asian Americans, who too often remain an invisible minority in contemporary discourse on diversity. We also undertake a novel analysis of enrollment demographics by law school ranking. Our findings include the following:

  • Total enrollment has declined almost 25% since the recession and, despite a recent increase, seems unlikely to rebound to pre-recession levels.
  • Women have outnumbered men in law school since 2016; the recent uptick in total enrollment is entirely attributable to more women pursuing law.
  • Since the recession, Asian Americans and Whites have comprised a smaller share of enrollment; African Americans and Hispanics have comprised a larger share.

Liu 1

  • Women, African American students, and Hispanic students are disproportionately enrolled in lower-ranked schools with lower rates of bar passage and post-graduation employment. It is thus unclear to what extent the changing diversity of law students will translate into greater diversity in the legal profession.

Liu 2

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May 5, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

The Role Of Lawyers And Law Schools In Fostering Civil Public Debate

Vikram D. Amar (Dean, Illinois) & Jennifer K. Robbennolt (Illinois; Google Scholar), The Role of Lawyers and Law Schools in Fostering Civil Public Debate, 52 Conn. L. Rev. 1093 (2021):

Partisanship can make policy discussion and civil debate difficult. Partisan differences in how facts and policies are understood contribute to the escalation of conflict and a lack of cooperation. Lawyers are not immune from these human tendencies. But good lawyers have, and good law schools teach, values, knowledge, and skills that can aid in fostering and modeling more productive debate and resolution of conflict.

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May 5, 2021 in Legal Ed Scholarship, Legal Education | Permalink