Paul L. Caron

Saturday, June 19, 2021

This Week's Ten Most Popular TaxProf Blog Posts

Deo: Investigating Pandemic Effects On Legal Academia

The University of Utah S.J. Quinney College of Law hosts a free online program on Pandemic Effects on Legal Academia: A Discussion With Law School Faculty on Wednesday. June 23 at noon - 3:00 P.M. MDT: 

The session will begin with a presentation by Meera E. Deo on her new national empirical study of law faculty, Pandemic Effects on Legal Academia (PELA) followed by a panel of deans responding with their own personal and institutional experiences. Participants will then have the opportunity to break out into working groups organized around specific topics to brainstorm challenges and potential solutions to the obstacles presented by the earlier presentations.

Preliminary analyses of the PELA study reveal troubling patterns of how the effects of COVID-19 exacerbate previously existing raceXgender barriers documented in Southwestern Law School Professor Meera Deo’s book, Unequal Profession: Race and Gender in Legal Academia. Challenges—which are felt most acutely by mothers and other caregivers, junior scholars, untenured faculty, and women of color—include a lack of time and bandwidth to produce scholarship, the blending of home life with work life, an inability to prioritize one’s own well-being, and significant negative mental health effects. This session provides an opportunity for faculty to learn from the data and brainstorm solutions.

Meera E. Deo (Southwestern), Investigating Pandemic Effects on Legal Academia, 89 Fordham L. Rev. 2467 (2021):

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June 19, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Monroe: Improvisation And Forgotten Taxpayers In Partnership Tax

Andrea Monroe (Temple), Making Tax Law Work: Improvisation and Forgotten Taxpayers in Partnership Tax, 54 U. Mich. J.L. Reform  ___ (2021):

The most troublesome provisions of partnership tax are also its most fundamental, namely the allocation rules that regulate how partners share a partnership’s taxable items.

Complexity is a universal problem faced by partnerships at all levels of wealth, status and sophistication, and the vast majority of taxpayers respond with improvisational tax compliance. In remarkably diverse contexts, improvisation has replaced technical compliance as the norm in partnership allocations. Wealthy partnerships make a strategic choice to improvise, using “target allocations,” while poorer partnerships improvise because they have no other choice, routinely following “intuitive” tax law and hoping for the best.

Reframing this complexity problem as a shared experience of all partnerships exposes the technical and cultural fractures of partnership tax in a new and different light.

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June 19, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Gender And Institutional Bias In The Publication Process

Fulya Y. Ersoy (Loyola Marymount) & Jennifer Pate (Loyola Marymount), Invisible Hurdles: Gender and Institutional Bias in the Publication Process in Economics:

Tenure decisions in economics are strongly tied to the quantity and quality of publications in peer-reviewed journals. We examine whether female economists and economists at lower- ranked institutions face discrimination in the publication process. To do so, we conduct an experiment with the editors of top 100 journals in economics. Editors were tasked with evaluating the quality of abstracts for various solo-authored papers. The papers vary along the dimensions of gender and institution rank of the author. The experimental variation is whether editors observe name and/or institution of the author. We find that there is positive institutional bias for economists in the top institutions. However, once the name of the author is visible in addition to the institution information, this positive institutional bias only applies to male authors. Hence, institution serves as a signal for quality of work for men, but not for women.

Inside Higher Ed, Gender, Institutions and Bias:

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June 19, 2021 in Legal Ed News, Legal Education | Permalink

Friday, June 18, 2021

Weekly SSRN Tax Article Review And Roundup: Layser Reviews Woodcock's Antimonopolism As A Symptom Of American Political Dysfunction

This week, Michelle Layser (Illinois; Google Scholar) reviews Ramsi A. Woodcock (Kentucky; Google Scholar), Antimonopolism as a Symptom of American Political Dysfunction.

Layser (2018)

One of the biggest news stories of the year has focused on antitrust cases and bills targeting tech giants Amazon, Apple, Facebook and Google. Outside the academy, liberal progressives increasingly point to monopoly power held by BigTech as a source of growing income and wealth inequality (see here, here, and here).  Newly appointed chair of the Federal Trade Commission and Columbia Law Professor Lina Khan made a splash in 2016 with her Yale student note, which made a legal case for breaking up Amazon, inspiring a “‘hipster antitrust’ movement among young scholars who want to expand existing antitrust law to better target issues like corporate concentration and income inequality” (Vox).

But is antitrust law really a promising tool for redistributing income and wealth? Professor Ramsi A.Woodcock doesn’t think so.

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June 18, 2021 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup | Permalink

Tax Policy In The Biden Administration

Weekly Legal Education Roundup

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June 18, 2021 in Legal Education, Scott Fruehwald, Weekly Legal Ed Roundup | Permalink

Next Week's Virtual Tax Workshops

Monday, June 21: David Hasen (Florida; Google Scholar) will present Forget (Arguing About) Redistribution virtually at Florida as part of its Summer Virtual Workshop Series. If you would like to attend, please contact Charlene Luke.

Friday, June 18: Stefan Hammerl (Graz) & Lily Zechner (Graz) will present Taxing Profit and Consumption in Market Jurisdictions: Equity and Administrability in the Digital Era virtually as part of the Indiana|Leeds Summer Zoom Tax Workshop Series. If you would like to attend, please contact Leandra Lederman or Leopoldo Parada.

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June 18, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Liscow Presents The Psychology Of Taxing Capital Income Today At The Indiana|Leeds Summer Zoom Tax Workshop Series

Zachary Liscow (Yale; Google Scholar) presents The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule) (with Edward Fox (Michigan; Google Scholar)) (reviewed by David Elkins (Netanya) here) virtually today as part of the Indiana|Leeds Summer Zoom Tax Workshop Series hosted by Leandra Lederman (Indiana) and Leopoldo Parada (Leeds):

Indiana LeedsHow to tax capital income is a critical issue today. The realization rule—requiring that property usually must be sold before gains are taxed—is central to taxing capital income, but often decreases the efficiency, equity, and simplicity of the tax system. Estimates suggest that the realization rule costs the government over $2 trillion over 10 years. Given these problems, it is unclear why the rule exists for assets that are easy to value and sell. Scholars have long speculated about the role of the public’s views here, but little is known empirically about them. We conduct the first survey experiment to understand the psychology of the realization rule, which has broad implications for the taxation of capital income. We have three main findings.

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June 18, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

White Male Prof Sues Denver Law School For Gender Bias

Bloomberg Law, Male Law School Trial Advocacy Director Sues Alleging Bias:

SchottThe director of the Center for Advocacy at the University of Denver’s Sturm College of Law says in a new suit in federal court that, because of his gender, debunked allegations of sex discrimination were wrongly used against him to delay consideration of the renewal of his teaching contract.

David Schott says the sex discrimination ensued after Viva Moffat, the associate dean of Academic Affairs, told him in 2016 that she didn’t “want to see white men teaching anymore in the Center for Advocacy,” a comment he immediately reported to Bruce Smith, the dean of the law school.

Schott, who is White, says “he felt pressure not to hire white men to teach” at the center, even when they were the most qualified applicants.

He was also soon “the target of a steady barrage of adverse actions and false statements that have damaged his reputation and violated the terms of his employment contract” that were “largely orchestrated by Moffat, but with at least the tacit support of Smith,” the suit filed Wednesday in the U.S. District Court for the District of Colorado alleges.

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June 18, 2021 in Legal Ed News, Legal Education | Permalink

What I Learned About Teaching Law By Being An Art Student

Michael Thomas Colatrella Jr. (Pacific), What I Learned about Teaching Law by Being an Art Student:

This article relates lessons that I learned about teaching law from my time as an art student in an atelier system that are supported by science-based pedagogical best practices. 

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June 18, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Getting Down To Brass Tax: Why Courts Should Use Equitable Tolling To Help Taxpayer-Petitioners Impacted By COVID-19

Hannah Fisher (J.D. 2021, Chicago), Getting Down to Brass Tax: Why Courts Should Use Equitable Tolling to Help Taxpayer-Petitioners Impacted by COVID-19, 2021 U. Chi. Legal F. ___:

Chicago Legal ForumThe COVID-19 pandemic caused some of the sharpest rises in American unemployment and poverty seen in a generation. This left people with less money in their pockets, but also less time and access to resources to diligently pursue their legal rights and remedies. Congress responded by providing some financial aid via stimulus packages. But without accompanying procedural relief from various filing deadlines, many will face financial liabilities to the government they otherwise might not, particularly in the tax context. This Comment advocates for greater flexibility when taxpayer-petitioners miss filing deadlines due to COVID-19-related hardships.

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June 18, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, June 17, 2021

Hickman: Nondelegation As Constitutional Symbolism

Kristin E. Hickman (Minnesota; Google Scholar), Nondelegation As Constitutional Symbolism, 88 Geo Wash. L. Rev. ___ (2021):

The divided Supreme Court in Gundy v. United States and subsequent events have given rise to a general expectation that the Court will soon revitalize the nondelegation doctrine by replacing the intelligible principle standard. Some have greeted the prospect of this doctrinal shift with cheers of exaltation, others with cries of impending doom, anticipating the demise of the administrative state. This article contends that these predictions are overblown.

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June 17, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Grewal: Section 265 Disallowance And The PPP Expense Nightmare

Andy Grewal (Iowa), Section 265 Disallowance and the PPP Expense Nightmare, 75 Tax Law. ___ (2021):

ABA Tax Lawyer (2019)Through the CARES Act, Congress established a generous Paycheck Protection Program. Under that program, recipients would get loans which could easily qualify for tax-free forgiveness. As an added bonus, taxpayers would enjoy tax deductions when they spent the amounts they borrowed.

Or so it seemed. After the CARES Act passed, the IRS promptly issued a notice denying deductions for PPP expenses. Secretary Treasury Steven Mnuchin personally reviewed the matter and announced that the IRS’s position followed from “Tax 101.” Congress eventually stepped in and offered a narrow statutory clarification: PPP expenses would be deductible.

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June 17, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Academic Law Libraries And Legal Education: A Primer For Deans And Provosts

Academic Law Libraries Within the Changing Landscape of Legal Education: A Primer for Deans and Provosts (Joan S. Howland (Minnesota), Scott B. Pagel (George Washington) &  Michelle M. Wu (Georgetown) eds., 2020) (2021 Joseph L. Andrews Legal Literature Award):

LibraryIn a world where technology advances appear daily, deans and provosts often have questions about law libraries, their purposes, and whether technological innovations should lead to changes in library spaces, collections, and/or services. This book seeks to answer those questions, which came straight from deans, examining the factors involved in an analysis of what a community needs from their library, and demonstrating why the answer to these questions might vary from library to library.

The commentaries by multiple directors will be useful to highlight different approaches in analysis as well as changing cultures in law libraries. This valuable title will be of help to newer and experienced law library directors, law school deans, and university provosts (where the university has a law school).


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June 17, 2021 in Book Club, Legal Ed Scholarship, Legal Education | Permalink

Affirmative Action And The Leadership Pipeline

Joni Hersch (Vanderbilt), Affirmative Action and the Leadership Pipeline, 96 Tul. L. Rev. ___ (2021):

Race-conscious affirmative action in higher education admissions is currently permitted in order for universities to meet their compelling interest in pursuing the educational benefits of a diverse student body. But the legality of affirmative action, which plays a prominent role in creating a diverse student body at elite educational institutions, is under attack. I develop and provide an empirical basis for an expanded understanding of the educational benefits provided by affirmative action: namely, of fostering a pipeline of future societal leaders and professionals. Using data on nearly 500,000 college graduates, I demonstrate that the likelihood of earning a professional or graduate degree—an outcome that is closely linked to employment in influential positions—drops off dramatically in the universities attended by the majority of college graduates, as compared with elite universities that use affirmative action. Further, race is a relatively unimportant predictor of professional or graduate degree attainment among graduates of similarly elite schools. Curtailing race-conscious affirmative action would thereby exclude many students from underrepresented minority groups who would successfully earn professional and graduate degrees—and later, enter into influential positions that shape society.

Bloomberg Law, Why Big Law Has a Stake in the Harvard Admissions Case:

Economist Joni Hersch ... [argues] that affirmative action is critical to achieving diversity in the professions and society at large. Her thesis is that elite undergraduate schools feed elite professional schools, and that considering race in admission to undergraduate institutions is vital to sustaining a diverse pipeline. ...

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June 17, 2021 in Legal Ed News, Legal Education | Permalink

Assessing Affirmative Action's Diversity Rationale: Student-Run Law Reviews

Adam Chilton (Chicago; Google Scholar), Justin Driver (Yale), Jonathan S. Masur (Chicago; Google Scholar) & Kyle Rozema (Washington University; Google Scholar), Assessing Affirmative Action's Diversity Rationale, 122 Colum. L. Rev. ___ (2021):

Columbia Law ReviewEver since Justice Lewis Powell’s concurring opinion in Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs in 1978, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right have argued that efforts to attain diversity will necessarily lead to lower quality results, as “less meritorious” applicants are selected in place of people with ostensibly stronger qualifications. Critics on the left have charged that diversity is a “subterfuge” and an empty formulation. On the diversity rationale’s legitimacy, then, it would seem that there is precious little diversity of thought. In particular, prominent scholars and jurists have frequently cast doubt on the diversity rationale’s empirical foundations, claiming that it is a mere hypothesis, and an implausible, unsupported one at that. This critique has made its way into the pages of the United States Reports, and it threatens the foundations upon which affirmative action rests.

To assess the diversity rationale, we conduct an empirical study of student-run law reviews.

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June 17, 2021 in Legal Ed Scholarship, Legal Education | Permalink

The Robotic Revolution: A Tax Policy Collision Course

Kathryn Kisska-Schulze (Clemson; Google Scholar) & Rodney P. Mock (California State Polytechnic University, San Luis Obispo), The Robotic Revolution: A Tax Policy Collision Course, 93 Temple L. Rev. 301 (2021):

Media projections depict that robotics, process automation, and artificial intelligence threaten human workforce sustainability. Two oft cited studies forecast that technological innovation could jeopardize more than one third of the U.S. workforce. Significant worker displacement would devastate federal funding that is heavily reliant on individual income tax revenue and payroll taxes. Concerns of mass joblessness have led Bill Gates and others to propose a robot tax, with some suggesting a complete reworking of the Internal Revenue Code to address looming predictions.

While these ideas are critical to the robot immersion dialogue, they are largely premised on fear and the proposition that human labor should be protected. As history supports, automation has always threatened the human workforce, which has demonstrated a great propensity for adaptation. As resisting the tractor for fear of replacing farmers’ grit would have been senseless, it is now imprudent to tax innovation for fear of automation substitution. From its inception, the U.S. Constitution has protected innovation and intellectual property. Similarly, the Internal Revenue Code serves to incentivize research and development. Taxing robots would disrupt our nation’s deeply rooted tax policies.

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June 17, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Why I Stopped Hiring Ivy League Graduates

Wall Street Journal op-ed:  Why I Stopped Hiring Ivy League Graduates, by R.R. Reno (First Things):

I’m not inclined to hire a graduate from one of America’s elite universities. That marks a change. A decade ago I relished the opportunity to employ talented graduates of Princeton, Yale, Harvard and the rest. Today? Not so much.

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June 17, 2021 in Legal Ed News, Legal Education | Permalink

The Tax Lawyer Transitions Editorial Leadership

ABA, The Tax Lawyer Transitions Editorial Leadership:

ABA Tax Lawyer (2019)Longtime member of The Tax Lawyer editorial team William H. Lyons ends his service as Associate Editor-in-Chief with the journal’s summer 2021 issue. As an editor for the journal since 2007, Lyons has reviewed submissions and edited articles accepted for publication other than the articles reviewed and edited by the journal’s State and Local Tax team. Lyons is the Richard H. Larson Professor of Tax Law Emeritus at the University of Nebraska College of Law. ...

The incoming Associate Editor-in-Chief is Gil Rothenberg, who currently serves as Adjunct Professor of Law at American University’s Washington College of Law. Rothenberg was a long-time attorney in the Justice Department Tax Division’s Appellate Section. He served 15 years as Chief of the Appellate Section overseeing a staff of about 50 attorneys and support personnel. Rothenberg began his Tax Lawyer work in May. ...

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June 17, 2021 in ABA Tax Section, Tax, Tax Scholarship | Permalink

Wednesday, June 16, 2021

Bearer-Friend, Glogower, Kleiman & Wallace: Taxation And Law And Political Economy

Jeremy Bearer-Friend (George Washington; Google Scholar), Ari D. Glogower (Ohio State; Google Scholar), Ariel Jurow Kleiman (San Diego; Google Scholar) & Clint Wallace (South Carolina, Google Scholar), Taxation and Law and Political Economy, 83 Ohio St. L.J. ___ (2021):

The Law and Political Economy (LPE) project seeks to reorient legal thought by centering considerations of power, equality, and democracy. This reorientation would supplant approaches to legal thought that prioritize efficiency and neutrality, and that imagine a pre-political market “encased” from legal scrutiny or intervention.

This Article seeks to advance dialogue between LPE and tax scholarship. The Article first describes the areas of intersection between the two literatures and then offers general insights each can learn from the other as a basis for further engagement.

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June 16, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 74, No. 3 (Spring 2021):

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June 16, 2021 in ABA Tax Section, Scholarship, Tax, Tax Scholarship | Permalink

AccessLex & Gallup: Law School In A Pandemic — Student Perspectives On Distance Learning And Lessons For The Future

AccessLex & Gallup, Law School in a Pandemic: Student Perspectives on Distance Learning and Lessons for the Future:

In spring 2020, the COVID-19 pandemic forced law schools across the U.S. to shift their programs completely online. Prior to the pandemic, no American Bar Association-accredited law school offered a fully online degree program, and fewer than ten offered hybrid programs. As a result, even if their universities had the infrastructure to support the migration of their courses to an online platform, faculty may not have had the experience needed to make such a rapid transition. Moreover, few students had any exposure to — let alone a preference for — an online legal education.

To quantify the impact of these challenges on law students' education, AccessLex partnered with Gallup to produce Law School in a Pandemic: Student Perspectives on Distance Learning and Lessons for the Future, a nationally representative study of currently-enrolled U.S. law students during the COVID-19 pandemic. The research finds that while law students report a strong preference for in-person education, there are several indications that this unprecedented period of emergency remote teaching may provide a useful foundation for future distance learning J.D. programs.

Less Than Half of Online J.D. Students Say Program Was Good or Excellent
The format of the courses had a noticeable impact on how students viewed the quality of their program. Just under half (48%) of students who learned mostly or completely online in spring 2021 rated their J.D. program as "good" or "excellent." In contrast, 73% of students who were learning mostly or completely in person said the same.

Access Lex Gallup 1

While students attending primarily in person were more positive than online students about the quality of their program, the data suggest the pre-pandemic experiences of 2L and 3L students may have influenced their perceptions of the overall quality of their program.

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June 16, 2021 in Legal Ed News, Legal Education | Permalink

NY Times: Law Schools Scramble To Get Incoming 1Ls To Defer; Columbia Offers $30k, Duke Offers $5K

New York Times, Law Schools Scramble for Deferrals:

In the most competitive year in recent memory, some schools are offering incentives to ease their over-enrolled classes. ...

Too many law students?
Law schools experienced a surge in applicants over the past year, driven by a mixture of factors, including the coronavirus pandemic, the presidential election and the Black Lives Matter movement.

Perhaps the biggest driver, however, was a spike in LSAT scores: Applicants took a shorter version of the admissions test, which was administered online, and had more time to study during pandemic lockdowns. ...

To ease the load, many schools have promised that scholarships will be in place for students if they choose to defer. A few are offering financial incentives. Duke promised $5,000 to students who accepted a “binding deferral” and promised to go next year.

Columbia University also dangled money in front of some students: $30,000 if they deferred. The school focused on recent graduates and also offered some career placement help, like two sessions with a career counselor and a list of open jobs. ...

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June 16, 2021 in Legal Ed News, Legal Education | Permalink

Stanford Law Review Call For Tax Articles

Stanford Law ReviewDear Tax Law Scholars,
My name is Saraphin Dhanani, and I am the Senior Articles Editor for Volume 74 of the Stanford Law Review.

The Stanford Law Review will begin accepting submissions through Scholastica for the fall term on July 15, 2021. We currently have 6-7 slots to fill this volume, and we are particularly interested in publishing pieces that focus on tax law. We strongly encourage you to submit your manuscript for consideration through our Scholastica portal. You can find more details about our submission process on our website. As in 2020, you must follow the Scholastica links on our website to reach our submission portal.

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June 16, 2021 in Legal Ed News, Legal Education, Scholarship, Tax, Tax Scholarship | Permalink

Law Professor’s Desk Reference: A Handbook For Work And Life In The Legal Academy

Jon M. Garon (Nova), Law Professor’s Desk Reference: A Handbook for Work and Life in the Legal Academy (2021):

Law ProfLaw Professor's Desk Reference serves as a how-to guide for faculty members, addressing the everyday issues that shape legal education as well as the growing external social and economic pressures reconceptualizing the study of law. Law school faculty members are expected to be legal scholars, effective teachers, and engaged institutional partners, but the information essential to develop these fundamentals skills has not been published in one single source, until now.

The book provides a foundation to help faculty develop the best practices for student learning and engagement. It provides an important summary of learning outcomes, formative assessment, summative assessment, course design, and the operational mechanics needed to be an effective classroom and online teacher.

The book offers faculty members a roadmap to develop meaningful scholarship with practical advice on how best to create a sustainable scholarly agenda. It explores the role faculty play in shared governance for their institutions. It addresses academic freedom, hiring procedures, tenure, and status issues. It also covers accreditation and various regulations on accessibility, accommodation requirements, Title IX, employment laws, plagiarism, and much more.

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June 16, 2021 in Book Club, Legal Ed Scholarship, Legal Education | Permalink

New York State Bar Association Calls For State To Withdraw From Uniform Bar Exam

New York State Bar Association Calls for State To Withdraw From the Uniform Bar Exam:

NYSBAThe (NYSBA) Task Force on the New York Bar Exam is recommending that the state withdraw from the Uniform Bar Exam and develop its own bar admissions test so that attorneys have a better understanding of state law before being admitted to practice.

The task force’s recommendations were approved June 12 at a meeting of the association’s governing body, the House of Delegates.

“This would ensure that New York’s legal system would continue to be a national leader,” said NYSBA President T. Andrew Brown. “The task force recommendations outline a smart and achievable strategy for how the bar exam can be transformed to make sure newly admitted lawyers have a comprehensive grounding in New York law.”

NYSBA is calling on the New York Court of Appeals to appoint a working group that would, in conjunction with the Board of Law Examiners, develop a New York Bar Examination that is fair and equitable and encourages the study of New York law.

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June 16, 2021 in Legal Ed News, Legal Education | Permalink

Sharing The Wealth: The Effects Of TCJA Bonuses On Employee Pay Satisfaction

Michelle Hutchens (Illinois; Google Scholar), Dan Lynch (Wisconsin; Google Scholar), & Bridget Stomberg (Indiana, Google Scholar), Sharing the Wealth: The Effects of TCJA Bonuses on Employee Pay Satisfaction:

Approximately 60 public companies announced they would share cash windfalls from the Tax Cuts and Jobs Act (TCJA) with rank-and-file employees through bonuses, higher wages, or increased benefits. We use employee survey data from Culture X to examine how the announcement of these TCJA bonuses affected employee pay satisfaction. Although employees are economically better off upon receiving these bonuses, prior literature suggests employee pay satisfaction could decrease if employees perceive the bonuses to be unfairly small. Using a difference-in-difference design, we find a greater decline in pay satisfaction among employees at firms announcing a TCJA bonus versus those that do not. Consistent with dissatisfaction about unfairly small bonuses, we document a larger decline in pay satisfaction at announcing firms with larger increases in CEO bonuses and larger share repurchases around the TCJA.

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June 16, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, June 15, 2021

16th Annual Junior Tax Scholars Workshop At San Diego

Junior Tax 2021

Ed Fox (Michigan) & Zachary Liscow (Yale) (presenting), A Mark-to-Market Tax on Businesses
Commentators: Daniel Schaffa (Richmond), Hillel Nadler (Program on International Financial Systems)

Hillel Nadler (Program on International Financial Systems), Taxing Zero
Commentators: Ed Fox (Michigan), Eleanor Wilking (Cornell)

Hayes Holderness (Richmond), Noncomparative Interstate Tax Discrimination
Commentators: Shelly Layser (Illinois), Andrew Appleby (Stetson)

Andrew Appleby (Stetson), Now You Can't Leave: State and Local Exit Taxes
Commentators: Christine Kim (Utah), Hayes Holderness (Richmond)

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June 15, 2021 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Why The Apple-Led Stock Buyback Boom May Get Caught In Biden's Tax-Hike Net

Investor's Business Daily, Why The Apple-Led Stock Buyback Boom May Get Caught In Biden's Tax-Hike Net:

IBDHours before President Joe Biden's April 28 primetime pitch for $4.5 trillion in infrastructure and social spending, Apple (AAPL) wowed Wall Street with its own big-spending plan — $90 billion in Apple stock buybacks.

But Apple was hardly the first big company to use fat recent profits to repurchase shares from investors. Just a day before Apple's news, Google parent Alphabet (GOOGL) teed up a $50 billion buyback. Among others, JPMorgan Chase (JPM) set plans to buy back $30 billion in shares. ...

Yet a possible pitfall lies ahead. An under-the-radar proposal to tax stock buybacks as if they were dividends could reel in huge sums from investors, providing needed cash for Biden's government expansion. That might quiet the stock buyback boom and weigh on foreign demand for U.S. equities. The approach to taxation also may stir controversy. It's already taking flack for taxing "phantom income" and micromanaging corporate finances. ...

Corporate cash spent on buybacks buoys earnings per share by reducing share counts, contributing to higher stock prices. Stockholders who sell their shares back to the company may pay capital gains on the proceeds. For those who don't redeem their shares, buybacks will result in a bigger capital-gains tax bill, but only when they sell their stock — if they sell.

That ability to defer taxes is likely the biggest reason that buybacks have become the preferred way of distributing capital to shareholders for many of America's biggest and most successful companies.

Apple spent more than five times as much on Apple stock buybacks ($72.5 billion) in fiscal 2020 as it paid out in dividends ($14.1 billion). ...

Up until the late 1990s, S&P 500 companies spent more on dividends than on buybacks. But in 2019, buybacks totaled $729 billion, 50% more than the $485 billion distributed as dividends. 

Now all that buyback cash is getting attention as a potential avenue to fund Biden's spending plans.

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June 15, 2021 in Scholarship, Tax, Tax News, Tax Scholarship | Permalink

U.S. News: The Ten Most Expensive Law Schools

U.S. News & World Report, 10 Most Expensive Law Schools:

Among the 191 ranked law schools that provided this data, the average tuition and fees for out-of-state students during the 2020-2021 school year was around $47,300. Costs were even higher among the 10 most expensive law schools, with an average cost of about $69,600.

Law School  Tuition & Fees U.S. News Rank
 1. Columbia $74,995 4
 2. NYU $71,304 6
 3. Cornell $70,274 13
 4. Chicago $69,975 4
 5. USC $68,828 19
 6.  Northwestern $68,800 12
 7. Virginia $68,500 8
 8. Pennsylvania $68,130 6
 9. Yale $68,117 1
 10. Michigan $67,198 10

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June 15, 2021 in Legal Ed Rankings, Legal Education | Permalink

The Elephant In The Virtual Law Classroom: Different Perspectives But A Common Loss

Tiffany Perez (Miami), The Elephant in the Virtual Law Classroom: Different Perspectives but a Common Loss:

Due to the COVID-19 pandemic, law schools had to pivot to virtual legal education quickly. In the wake of the pandemic, scholars have eagerly written about the dos and don’ts of the virtual law classroom. Although some articles have represented the law students’ perspective and some have represented the law professor’s perspective, none have done both in an attempt to create empathy and bridge the gap between what students’ desire, and what law professors are currently providing, and what good virtual legal education requires. As such, based on several interviews with law professors and students, this Article begins by describing one online Contracts class first from the professor’s point of view and then from the student’s point of view. The professor and students’ different perceptions of the same class are then analogized to John Godfrey Saxe’s poem The Blind Men and the Elephant. Then, using the Kübler-Ross Grief Cycle as a vehicle build empathy and understanding, this article attempts to demonstrate the similarities that exists between students and professors’ feelings about online virtual education, namely that both professors and students alike are avidly grieving a common loss: in-person, Socratic law school days of old.

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June 15, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Attorneys Of Color Reveal Alarmingly Higher Instances Of Mental Health Struggles, Attorneys of Color Reveal Alarmingly Higher Instances of Mental Health Struggles:

ALM’s 2021 Mental Health and Substance Abuse Survey laid out the caustic damage the pandemic has had on overall attorney well-being as the more than 3,200 respondents revealed clear upticks in depression and anxiety.

But when the data is broken down by race, it is apparent that the last year and a half has not equally affected everyone: Minority attorneys reported higher rates of suicidal thoughts, depression and isolation than their white colleagues, aligning with a previous study by the ABA, which also tied race to mental health outcomes.

Perhaps the most stark data point lies in the response to suicidal tendencies. Roughly 31% of Black respondents said they have contemplated suicide throughout their legal career, the highest among the racial groups.

About 20% of Asian attorneys and 23% of Hispanic and Latino attorneys have also said the same. By comparison, almost 19.4% of white attorneys say they have contemplated suicide.

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June 15, 2021 in Legal Ed News, Legal Education | Permalink

Thuronyi: The Internal Revenue Code Should Be Be Redrafted

Victor Thuronyi (Former Lead Tax Counsel, IMF), Should the IRC Be Redrafted?, 171 Tax Notes Fed. 1429 (May 31, 2021):

Tax Notes Federal (2020)Major tax changes are again being contemplated by Congress. In this context, is it possible to make the IRC easier to read and understand? While the tax code is notoriously complex, is this complexity the result of rules that are too complex or a style that is too impenetrable? As I explain below, the vast bulk of the problem is the complexity of the rules. Simplifying those rules should be a priority. That said, the drafting of the IRC can also be improved.

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June 15, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Over 500 U.S. Colleges Will Require Students And/Or Faculty/Staff To Be Vaccinated For The Fall Semester

Chronicle of Higher Education, Here’s a List of Colleges That Will Require Students or Employees to Be Vaccinated Against Covid-19:

As colleges look toward the fall semester, they’re grappling with whether to require — or just strongly encourage — students to be vaccinated against Covid-19.

Below is a map showing the locations of colleges that are requiring vaccines of at least some students or employees. The states are color-coded based on how each voted in the 2020 presidential election. That’s followed by a graphic showing the pace at which campuses have made their announcements. Below that is a searchable list of those campuses. Institutions that have said their requirement hinges upon full approval of one or more vaccines by the U.S. Food and Drug Administration are included in this list.


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June 15, 2021 in Legal Ed News, Legal Education | Permalink

Death Of Richard Bird (University Of Toronto)

Richard M. Bird, Professor Emeritus of Economic Analysis and Policy at the University of Toronto, died suddenly on Wednesday June 9, 2021, at the age of 82:

BirdHe will be deeply missed by his loving wife Marcia, his family (Paul, Sandra, Marta, Abbey) and his grandchildren (Austin, Spenser, Jack, James, Rose). At his request, a private family service will be held. In lieu of flowers, donations to Doctors without Borders would be greatly appreciated. Sign the Guestbook.

From his Toronto faculty webpage:

Richard Bird is Professor Emeritus at Rotman; Senior Fellow of the Institute for Municipal Governance and Finance, Munk School of Global Affairs; Distinguished Visiting Professor, Andrew Young School of Public Policy in Atlanta; and Adjunct Professor, Australian School of Taxation and Business Law in Sydney. He has lectured and published extensively on tax and public finance issues in many countries. He currently chairs the Advisory Group of the International Centre for Tax and Development at the Institute for Development Studies (UK). 

Current research interests include tax policy, tax administration, local finance and intergovernmental fiscal relations particularly in developing countries.

His Google Scholar numbers are extraordinary:

Bird Citation Stats

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June 15, 2021 in Legal Ed News, Legal Education, Obituaries, Tax, Tax News | Permalink

Monday, June 14, 2021

Brown: What ProPublica Missed About Taxing Rich White Men

Dorothy A. Brown (Emory), What ProPublica Missed about Taxing Rich White Men:

On June 8, 2021 Pro Publica published a piece about the taxes paid — or rather not paid — by the richest men in America. All the people discussed were men — and all of them white, yet no mention of race (or gender) was to be found in the story. Policies supporting wealth building in America have always been designed by rich white men for their benefit. Never is that more true than when it comes to tax policy as I show in my book, The Whiteness of Wealth: How The Tax System Impoverishes Black Americans — And How We Can Fix It. Rich white men fight for tax loopholes that they then benefit from. ...

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June 14, 2021 in Tax, Tax News | Permalink

The ProPublica Tax Report: Return Of The IRS Scandal

Following up my previous post, ProPublica: America's Richest People Pay Little To Nothing In Federal Income Taxes:

Wall Street Journal editorial, Return of the IRS Scandal:

That didn’t take long. Less than half a year into the Biden Presidency, the Internal Revenue Service is already at the center of an abuse-of-power scandal. That news broke Tuesday when ProPublica, a website whose journalism promotes progressive causes, published information from what it said are 15 years of the tax returns of Jeff Bezos, Warren Buffett and other rich Americans.

Leaking such information is a crime, since under federal law tax returns are confidential. ProPublica says it received the files from “an anonymous source” and doesn’t know who provided them, how they were obtained, or what the source’s motives are.

Allow us to fill in that last blank. The story arrives amid the Biden Administration’s effort to pass the largest tax increase as a share of the economy since 1968. The main Democratic argument for a tax hike is that the rich should pay their “fair share.” The ProPublica story is a long argument that somehow the rich don’t pay enough. The timing here is no coincidence, comrade.

Someone at the IRS—or someone who hacked the IRS—leaked the documents to influence the debate in Congress. And right on time, Ron Wyden, the Senate’s chief tax writer, opened a Finance Committee hearing Tuesday by mentioning the ProPublica data dump.

“What this data reveals is that the country’s wealthiest—who profited immensely during the pandemic—have not been paying their fair share,” Mr. Wyden said. “I’ll have a proposal to change that.” You can bet he will.

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June 14, 2021 in Tax, Tax News | Permalink

LSAT Takers And Khan Academy Preparation

Gregory Camilli (LSAC), Kimberly Dustman (LSAC), & Ann Gallagher (LSAC), LSAT Takers and Khan Academy Preparation:

Khan Academy LSAT (2021Free online Law School Admission Test (LSAT) preparation resources from the Law School Admission Council and Khan Academy have been widely utilized by LSAT and LSAT-Flex test takers. In September 2020, nearly 70,000 individuals engaged with Khan Academy’s Official LSAT® Prep platform. The purpose of this study was to examine the potential effects of engagement on actual LSAT performance. Our analyses showed that a higher level of engagement (measured in terms of practice time and number of practice exams taken) was associated with higher performance on the LSAT. These results held not only for the overall population but also across multiple demographic subgroups. The results also showed that the performance of test takers with lower initial practice exam scores was associated with slightly higher LSAT score gains per practice minute, indicating that these students benefitted at least as much as students who scored higher initially.

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June 14, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Washington & Lee University Board Votes 22-6 To Keep Lee’s Name (Faculty Had Voted 188-51 To Remove It)

Following up on my previous posts (links below):  New York Times, Board of Washington and Lee University Votes to Keep Lee’s Name:

W&L University LogoWashington and Lee University, the private liberal arts school in Virginia, will not change its name after a monthslong review over whether to remove its reference to the Confederate general Robert E. Lee, the school announced on Friday.

The school’s board of trustees voted 22-6 on Friday in favor of keeping its current name, which developed as an acknowledgment of a donation given by George Washington in the 18th century and Lee’s tenure as school president after the Civil War. The vote came after a nearly yearlong review of the school’s name and the symbols connected to its history and campus surroundings in Lexington, Va.

Press Release, The Future of Washington and Lee University

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June 14, 2021 in Legal Ed News, Legal Education | Permalink

Lesson From The Tax Court: Accounting For Attorney Malpractice Settlements

Camp (2017)Sometimes, losing plaintiffs think their attorney messed up.  Sometimes, they are so sure that they sue their attorney for legal malpractice.  I think of those as lawsuits-within-lawsuits, kind of like the story-within-a-story literary device, perhaps most famously used by Shakespeare in Hamlet.  In a malpractice action, the original lawsuit becomes a lawsuit-within-a-lawsuit because the court decides the malpractice action in part by making a counterfactual inquiry on what could have been the outcome in the original lawsuit.

Sometimes, plaintiffs actually win the malpractice action.  More often they settle, accepting some amount of money from the attorney (or, more often, the attorney’s insurer) in exchange for promising to go away and never come back.

The extent to which an attorney malpractice settlement constitutes gross income is the ostensible lesson in two recent cases.  In Carol E. Holliday v. Commissioner, T.C. Memo. 2021-69 (June 7, 2021) (Judge Pugh), and in Debra Jean Blum v. Commissioner, T.C. Memo. 2021-18 (Feb. 18, 2021) (Judge Urda), the Tax Court rejected both taxpayers’ attempt to exclude settlements of their attorney malpractice claims from gross income, even though both taxpayers may well have been able to exclude settlements of the original action.  Using an “in lieu of” test, the Tax Court said that the settlement of the malpractice claim was different than settlement of the original claim.  The original claim had become merely a lawsuit-within-a-lawsuit, a play-within-a-play, and thus had an insufficient nexus with the actual payment to support exclusion.

The less obvious lesson in these cases is how the ostensible lesson creates a bargaining chip for malpractice attorneys sitting at the poker table of settlement negotiations.  Taxpayers might account for the tax treatment of malpractice settlements either by structuring the settlement to make the payments eligible for exclusion, or by grossing up the settlement to reflect taxes imposed that would not have been imposed on settlement of the original action.  Details below the fold.

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June 14, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Miami Searches For Interim Dean After Controversial Firing Of Tony Varona, Who Sought To Reduce Overhead Tax Law School Pays To University

Ediberto Roman (Florida International), More on Miami Law's Dean Firing Fiasco...:

[A] faculty committee at Miami is hurriedly soliciting internal and external candidates from faculty contacts for a one or two year interim dean position. One of the candidates approached told me that would be akin to crossing a picket line and academia is no more sacred a place than a field of grapes--either way it didn't feel right to that candidate.

Miami Herald, The Firing of UM’s Popular Law Dean Baffled the Legal Community. There Could Be Backlash:

The controversial firing of popular University of Miami School of Law Dean Anthony Varona could backfire on UM President Julio Frenk in his efforts to attract a top-notch dean and meet ambitious fundraising goals, say outraged alumni and faculty. ...

“This was such an out-of-order action, so odd and so sad that many qualified people will not apply for that job,” said Marc-Tizoc González, University of New Mexico law professor and chair of the Association for American Law Schools’ Section on Minority Groups, which wrote a scathing letter calling for an investigation of Varona’s termination.

“The applicant pool could be very small, which makes you wonder if there’s already someone lined up,’’ he added. “How will a new dean interact with professors and students when you’ve had an awkward removal of a stellar, well-liked dean, and the faculty members who would typically drive such a decision were not even consulted? How can a new dean successfully fund-raise given the time that will be lost and the anger of potential donors?” ...

The UM School of Law Academic Review Committee warned in a June 1 letter to Frenk that a new dean would be doomed in achieving Frenk’s own goal “to make Miami Law as strong and successful as it can be.” The independent panel of deans from three U.S. law schools — University of Houston, American University and Boston University — was selected by Provost Jeffrey Duerk to monitor the performance of Varona.

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June 14, 2021 in Legal Ed News, Legal Education | Permalink

NY Times: Private Inequity — How A Powerful Industry Conquered The Tax System

New York Times, Private Inequity: How a Powerful Industry Conquered the Tax System:

There were two weeks left in the Trump administration when the Treasury Department handed down a set of rules governing an obscure corner of the tax code.

Overseen by a senior Treasury official whose previous job involved helping the wealthy avoid taxes, the new regulations represented a major victory for private equity firms. They ensured that executives in the $4.5 trillion industry, whose leaders often measure their yearly pay in eight or nine figures, could avoid paying hundreds of millions in taxes.

The rules were approved on Jan. 5, the day before the riot at the U.S. Capitol. Hardly anyone noticed.

The Trump administration’s farewell gift to the buyout industry was part of a pattern that has spanned Republican and Democratic presidencies and Congresses: Private equity has conquered the American tax system. ...

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June 14, 2021 in Tax, Tax News | Permalink

TaxProf Blog Weekend Roundup

Sunday, June 13, 2021

It's Okay: God Is On The Bathroom Floor

Check out this award-winning performance Tuesday night on NBC's America's Got Talent of It's Okay by Jane Marczewski (stage name: Nightbirde), who is battling a very aggressive cancer with a 2% survival rate:

Nightbirde, God Is On The Bathroom Floor:

After the doctor told me I was dying, and after the man I married said he didn’t love me anymore, I chased a miracle in California ...  On nights that I could not sleep, I laid in the tub like an insect, staring at my reflection in the shower knob. I vomited until I was hollow. I rolled up under my robe on the tile. The bathroom floor became my place to hide, where I could scream and be ugly; where I could sob and spit and eventually doze off, happy to be asleep, even with my head on the toilet.

I have had cancer three times now, and I have barely passed thirty. There are times when I wonder what I must have done to deserve such a story. I fear sometimes that when I die and meet with God, that He will say I disappointed Him, or offended Him, or failed Him. Maybe He’ll say I just never learned the lesson, or that I wasn’t grateful enough. But one thing I know for sure is this: He can never say that He did not know me.

I am God’s downstairs neighbor, banging on the ceiling with a broomstick. I show up at His door every day. Sometimes with songs, sometimes with curses. Sometimes apologies, gifts, questions, demands. Sometimes I use my key under the mat to let myself in. Other times, I sulk outside until He opens the door to me Himself.

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June 13, 2021 in Legal Education | Permalink

Rising 2L Sues Law School, Says Required COVID-19 Vaccination Violates His Full Ride 'Unconditional' Scholarship

Universal Hub, Law Student Who Doesn't Want to Get a Covid-19 Shot Sues His School, Which Says He Has To:

New England Law Logo (2013)A student at New England Law says the school's policy that his attendance this fall is conditional on his showing proof of Covid-19 vaccination violates the "unconditional" scholarship he says he was awarded, so he's suing.

In his suit against the school and its president, Scott Brown, George Artem says Covid-19 shots are "experimental" and dangerous and he's just not going to put up with it. The school also requires proof of vaccination against tetanus, diphtheria, measles, mumps, rubella and hepatitis-B; Artem did not raise those in his complaint, which he filed himself yesterday in US District Court in Boston.

In the complaint, Artem asks a judge to either force the school to stop the alleged nonsense or, in the alternative, pay him the full value of the scholarship he won, the costs of his moving cross country to attend a school in Boston and the lost income he otherwise make with a JD from New England Law.

Artem v. New England Law | Boston, Scott Brown in his official capacity as President and Dean (June 11, 2021):

On or about January 15, 2020, New England Law | Boston Chief Enrollment Officer offered Mr. Artem the Sandra Day O'Connor Scholarship, covering full tuition worth more than $152,000 with a "no strings attached" policy. ...

In significant reliance on the offer and acceptance of the unconditional Sandra Day O'Connor scholarship, Mr. Artem moved across the country from Seattle, WA to Boston, MA in the Summer of 2020 to attend New England Law | Boston. ...

[O]n May 14, 2021, Mr. Artem requested ethical, philosophical, or religious exemptions to any Sars-CoV- 2, COVID-19 requirements that may be part of the defendant's return to campus policy. ...

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June 13, 2021 in Legal Ed News, Legal Education | Permalink

Kim Kardashian Fails California Baby Bar Exam For A Second Time; Her Score Dropped From 474 To 463 (560 Is Passing)

Following up on my previous post, Kim Kardashian Failed California Baby Bar Exam; Her 474 Score Was 'Extremely Close' To 560 Passing Score:  New York Post Page Six, Kim Kardashian Failed the ‘Baby Bar’ For Second Time:

Will the third time be the charm?

Kim Kardashian revealed that she has again failed the “baby bar” exam, during Thursday night’s “Keeping Up With the Kardashians” finale.

“I failed! F–k! I failed,” the 40-year-old, who is going to law school online, told her lawyers on the phone about her second attempt at the test. “This is really annoying.”

The mom of four said her score was “pretty much the same thing … [but] a little bit worse” than the first time she took it and failed.

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June 13, 2021 in Legal Ed News, Legal Education | Permalink

Dorothy Brown On The ProPublica Tax Report, Racial Justice, And The Gig Economy

The Top Five New Tax Papers

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

  1. SSRN Logo (2018)[558 Downloads]  Ten Truths About Tax Havens — Inclusion And The ‘Liberia’ Problem, by Steven Dean (Brooklyn) & Attiya Waris (Nairobi)
  2. [475 Downloads]  International Effective Minimum Taxation — Analysis of GloBE (Pillar Two), by Joachim Englisch (University of Muenster)
  3. [276 Downloads]  The Allocation of Taxing Rights under Pillar One of the OECD Proposal, by Aitor Navarro (Universidad Carlos III de Madrid; Google Scholar)
  4. [269 Downloads]  International Tax Law and its Influence on National Tax Systems, by Craig Elliffe (University of Auckland; Google Scholar)
  5. [249 Downloads]  Can Blockchain Revolutionize Tax Administration?, by Orly Mazur (SMU; Google Scholar) (reviewed by Sloan Speck (Colorado; Google Scholar) here)

June 13, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, June 12, 2021

This Week's Ten Most Popular TaxProf Blog Posts