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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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:

• Tax Now or Tax Never: Political Optionality and the Case for Current-Assessment Tax Reform, 100 N.C. L. Rev. ___ (2021) (with David Gamage (Indiana))
• Why a Wealth Tax Is Definitely Constitutional (with David Gamage (Indiana))
• Redesigning Education Finance: How Student Loans Outgrew the “Debt” Paradigm, 109 Geo. L.J. 5 (2020) (with Adam Levitin (Georgetown))
• Curing the Cost Disease: Legal Education, Legal Services, and the Role of Income-Contingent Loans, 68 J. Legal Educ. 521 (2019)
• Cross-Subsidies: Government's Hidden Pocketbook, 106 Geo. L.J. 1229 (2018) (with Brian Galle (Georgetown) & Brendan Maher (Connecticut))
• The Definitions of Income, 71 Tax L. Rev. 253 (2018)
• The Case for More Debt: Expanding College Affordability by Expanding Income-Driven Repayment, 2018 Utah L. Rev. 847 (reviewed by Ariel Kleiman (Loyola-L.A. here)
• Income-Driven Repayment and the Public Financing of Higher Education, 104 Geo. L.J. 229 (2016)

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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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U.S. News Law School Rankings By Elevation

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

In 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

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

From Leandra Lederman:

This 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 llederma@indiana.edu and L.Parada@leeds.ac.uk, with “Indiana/Leeds Workshop submission” in the subject line of your email:

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

Following up on my recent posts:

• Randall Kennedy (Harvard) & Eugene Volokh (UCLA), The New Taboo: Quoting Epithets in the Classroom and Beyond, 49 Cap. U. L. Rev. 1 (2021)
• New York Times, Debate Erupts at N.J. Law School After White Student Quotes Racial Slur

• Randall Kennedy (Harvard) & Eugene Volokh (UCLA), We Reply to Anonymous Above The Law Columnist's Response to Our "The New Taboo: Quoting Epithets in the Classroom and Beyond"
• Lawprofblawg (Anonymous Professor, Top 100 Law School), In Which I Respond to Professors Kennedy and Volokh (Again)
• Eugene Volokh (UCLA), Recent Developments in Controversies About Quoting Slurs from Court Cases
• Washington Post editorial, The Rutgers Law Student Shouldn’t Have Used the N-word. But We Can Learn From the Controversy.

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:

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

Update:  Hari 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:  

Sent: Friday, May 7, 2021 9:55 AM
To: TENURE-TRACK@LISTSERV.IT.NORTHWESTERN.EDU
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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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):

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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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:

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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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:

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	65%	39%
Out-of-State ABA	58%	26%
California Accredited (not ABA)	44%	17%
Unaccredited: Fixed-Facility	0%	0%
Unaccredited: Correspondence	43%	20%
Unaccredited: Distance-Learning	47%	17%
All Others	47%	23%
All Applicants	53%	27%

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

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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:

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

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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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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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Billable Hours Are Smothering Associates—And Any Attempts To Help Them
• Bridget Crawford Named University Distinguished Professor At Pace
• Tax Prof Baby: Theo Choi

Sunday:

• What We’ve Lost In Rejecting The Sabbath: 'A World Without The Sabbath Is A World Without Soul'
• Video Of Law Students Thanking Professor In Last Zoom Class Of The Year Goes Viral
• Happy Mother's Day From SNL
• The Top Five New Tax Papers

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)):

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

Karen Sloan (Law.com), 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.

WWLTV.com, 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.

Happy Mother's Day From SNL

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. [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)

This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: The Multiple Paths For Loss Deductions
2. New York Times, Debate Erupts At Rutgers Law School After White Student Quotes Racial Slur In Full Version Of Case Assigned In Excerpted Form By Professor
3. Colorado Politics, John Eastman To Sue University Of Colorado For $1.9 Million For Stripping Him Of Duties After Jan. 6 Capitol Speech
4. Karen Sloan (Law.com), ABA Mulls Racism, Bias Training Accreditation Requirement For Law Schools
5. Law.com, Human Rights Watch Fires General Counsel After She Used N-word In Columbia Class
6. Gail Baker (Provost, San Diego), San Diego Provost Rejects Student Demand That Tenured Law Professor Be Fired Over Blog Post
7. Chuck Collins (Institute for Policy Studies), The Wealth Hoarders: How Billionaires Pay Millions to Hide Trillions
8. Randall Kennedy (Harvard) & Eugene Volokh (UCLA), The New Taboo: Quoting Epithets in the Classroom and Beyond
9. Indiana Lawyer, Notre Dame Law Dean Embraces Admission Practice Others Call ‘Unnecessary, Callous’
10. Steven Bank (UCLA), Book Review: Michael Keen (IMF) & Joel Slemrod (Michigan), Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages (Princeton University Press 2021)

Billable Hours Are Smothering Associates—And Any Attempts To Help Them

Law.com, 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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Bridget Crawford Named University Distinguished Professor At Pace

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

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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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:

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):

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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Tax Policy In The Biden Administration

• Bloomberg, Biden Says He’s Open to Compromise on Corporate Tax Hike
• Bloomberg, Biden Tax Rule Would Rip Billions From Biggest Fortunes at Death
• Bloomberg, Biden Tax-Hike Exemption for Farms Pushed by Rural Democrats
• Bloomberg: Biden’s Audit-the-Rich Target of $700 Billion Seen as Tall Order
• Cato Institute, Fatal Flaw in Estate and Wealth Taxation
• Cato Institute, Tax Rates by Income Level

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Weekly Legal Education Roundup

• Vikram D. Amar (Dean, Illinois) & Jennifer K. Robbennolt (Illinois; Google Scholar), The Role of Lawyers and Law Schools in Fostering Civil Public Debate
• Gail Baker (Provost, San Diego), San Diego Provost Rejects Student Demand That Tenured Law Professor Be Fired Over Blog Post
• Scott Fruehwald (Legal Skills Prof Blog), Cognitive Biases, Implicit Biases, and Student Feedback
• Scott Fruehwald (Legal Skills Prof Blog), Very Troubling Report on ABA Experiential Requirement
• Brandon L. Garrett (Duke), Glinda Cooper (Yeshiva) & Quinn Beckham (Duke), Forensic Science in Legal Education
• George Mason & Cardozo Law Schools, Free Virtual Conference For Aspiring And New Law School Deans

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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:

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

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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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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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)):

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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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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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):

Comments

• David R. Cleveland, The Dean's Comments, 53 Val. U. L. Rev. 833 (2019).
• Mark A. Heckler, The President's Comments, 53 Val. U. L. Rev. 835 (2019).
• Kyle Joseph Farris, Number 108, 53 Val. U. L. Rev. 837 (2019).

Essays

• Michael L. Swygert, Celebration and Mourning: The Valparaiso University School of Law, 53 Val. U. L. Rev. 843 (2019).
• Rosalie Berger Levinson, Gratitude and Deep Sorrow, 53 Val. U. L. Rev. 869 (2019).
• D.A. Jeremy Telman, Experiencing Valparaiso Law's Golden Age, 53 Val. U. L. Rev. 877 (2019).
• Ivan Bodensteiner, The Significance of Closing VULS, 53 Val. U. L. Rev. 885 (2019).
• Bruce Berner, A Eulogy for VUSL, 53 Val. U. L. Rev. 889 (2019).
• Clare K. Nuechterlein, Memories of Valpo Law School's 125th Anniversary Gala: May 1, 2004, Field Museum, Chicago, 53 Val. U. L. Rev. 895 (2019).
• Susan Stuart, The Future is in Good Hands, 53 Val. U. L. Rev. 897 (2019).
• Edward McGlynn Gaffney, Divergent Paths and Making a Difference: Reflections on a Journey to, in, and from Valparaiso, 53 Val. U. L. Rev. 899 (2019).

Greatest Hits of Valparaiso University Law Review

• Sandra Day O'Connor (Associate Justice, United States Supreme Court), Foreword, 53 Val. U. L. Rev. 947 (2019).
• Ruth Bader Ginsburg (Associate Justice, United States Supreme Court), Women in the Law, 53 Val. U. L. Rev. 951 (2019).
• Rosalie B. Levinson (Valparaiso), Introduction to Dean Chemerinsky's Article, "The Lower Federal Courts and the War on Terrorism", 53 Val. U. L. Rev. 967 (2019).
• Erwin Chemerinsky (Dean, UC-Berkeley), The Lower Federal Courts and the War on Terrorism, 53 Val. U. L. Rev. 969 (2019).

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Death Of Jack McNulty (UC-Berkeley)

SFGATE obituary, John McNulty:

John 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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ABA Mulls Racism, Bias Training Accreditation Requirement For Law Schools

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

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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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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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:

John 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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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:

Michael 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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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)):

In 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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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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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.

• 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.

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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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San Diego Provost Rejects Student Demand That Tenured Law Professor Be Fired Over Blog Post

Following up on my previous post, San Diego Law School Launches Investigation Of Tenured Professor's Blog Post; Student Petition Calls For Professor's Termination:

Gail F. Baker (Vice President and Provost, University of San Diego):

Dear USD Community:
We recently received complaints relating to a post by USD Law Professor Tom Smith on his personal blog concerning the causes of COVID-19. The complaints alleged violations of various university and School of Law policies.

As a threshold matter, we sought to determine whether the blog post at issue was protected by our policy on academic freedom. After a thorough legal review, it was determined that the expression was protected by that policy.

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Low-Income Taxpayers And The Affordable Care Act

Christine Speidel (Villanova), Low-Income Taxpayers and the Affordable Care Act (in Effectively Representing Your Client Before the IRS:

What is the connection between taxes and health insurance? Why do advocates for low-income taxpayers need to know about the Affordable Care Act? The Patient Protection and Affordable Care Act (ACA) contains dozens of tax provisions. The ACA introduced a major new tax credit and a major new tax penalty for 2014. It also imported tax concepts into Medicaid. All told, the ACA will have a major impact on low-income taxpayers. Health care advocates are already in the thick of helping people get and maintain health insurance coverage. Tax advocates at Low-Income Taxpayer Clinics (LITCs) may not see ACA-related examinations and collection controversies until 2015, but now is the time many of our clients are making decisions that will seriously impact their lives and shape future tax controversies. Education, issue-spotting, and early guidance could make a positive difference. All advocates working with low-income taxpayers should educate their clients, particularly those in English as-a-second-language (ESL) communities, about their new rights and responsibilities. This article serves as an introduction and reference on the ACA for legal advocates and policymakers, with a focus on tax provisions affecting lower-income individuals. The article summarizes the major health care reform developments affecting low-income taxpayers from October 2013 through mid-2015, and introduces key ACA concepts. It then focuses in detail on the two ACA tax provisions that most concern low-income individuals: the Premium Tax Credit and the individual shared responsibility payment.

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There Are Now 27 Black Women Law School Deans

From Catherine Smith (Denver):

There are now 27 Black Women Law Deans:

1. Dean Michèle Alexandre (Stetson)
2. Dean Patricia Bennett (Mississippi College)
3. Dean Karen Bravo (Indiana University-McKinney)
4. Dean Lolita Buckner Innis (incoming, University of Colorado)
5. Dean Joan Bullock (Texas Southern)
6. Dean Marcilynn Burke (Oregon)
7. Dean Danielle Conway (Penn State-Dickinson)
8. Dean Camille Davidson (Southern Illinois)
9. Dean Felicia Epps (UNT-Dallas)
10. Dean Linda Greene (Michigan State)
11. Dean Cassandra Hill (Northern Illinois)
12. Dean Renee Hutchins (University of the District of Columbia)
13. Dean Danielle Holley-Walker (Howard)
14. Dean Jelani Jefferson Exum (incoming, Detroit Mercy)
15. Dean Diedre Keller (Florida A & M)
16. Dean Tamara Lawson (St. Thomas)
17. Dean Dayna Bowen Matthew (George Washington)
18. Dean Browne Lewis (North Carolina Central)
19. Dean Kim Mutcherson (Rutgers-Camden)
20. Dean Camille Nelson (Hawaii)
21. Dean Eboni Nelson (Connecticut)
22. Dean Angela Onwuachi-Willig (Boston University)
23. Dean Carla Pratt (Washburn)
24. Dean LaVonda Reed (incoming, Georgia State University)
25. Dean Song Richardson (outgoing, UC-Irvine. incoming President of Colorado College)
26. Dean Sean Scott (California Western)
27. Dean Verna Williams (Cincinnati)

Former IRS Chief Counsel Michael Desmond Joins Gibson Dunn

Former IRS Chief Counsel Michael Desmond Joins Gibson Dunn’s Los Angeles and D.C. Offices:

Gibson, Dunn & Crutcher LLP is pleased to announce that Michael J. Desmond has joined the firm as a partner in the Los Angeles and Washington, D.C. offices.  Desmond, who recently served as the Chief Counsel of the U.S. Internal Revenue Service and Assistant General Counsel in the U.S. Department of the Treasury, will focus on tax controversy matters.

“We are delighted that Michael has joined the firm,” said Barbara Becker, Chair and Managing Partner of Gibson Dunn.  “As a nationally prominent, deeply experienced tax litigator, he adds significant capability to our elite tax and litigation practices.  Our clients will benefit from the invaluable insight that he gained during his tenure at the IRS, where he was involved in the agency’s most important guidance and enforcement actions.”

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Shobe: Subsidizing Economic Segregation Through The State And Local Tax Deduction

Gladriel Shobe (BYU; Google Scholar), Subsidizing Economic Segregation Through the State and Local Tax Deduction, 11 UC Irvine L. Rev. 539 (2020) (reviewed by Ariel Jurow Kleiman (San Diego; moving to Loyola-L.A.; Google Scholar) here): 

Economic segregation has increased over the past half-century. The trend of rich localities getting richer while poor localities get poorer is particularly concerning because it limits upward mobility and perpetuates intergenerational income inequality. This Article makes the novel argument that the state and local tax deduction subsidizes economic segregation. It arrives at that conclusion by showing that the “local tax deduction” provides a greater subsidy, per capita, for wealthy, economically segregated localities because only those localities have a critical mass of wealthy taxpayers who claim the deduction. This allows wealthy localities, but not poor localities, to provide services at a cost less than face value to their residents. This Article argues that the deduction’s subsidy for wealthy localities rewards and likely contributes to economic segregation because it provides an incentive for the wealthy to segregate into wealthy, subsidized localities over less segregated and less subsidized localities.

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Soled: The Need To Reduce The Federal Estate Tax Exemption

Jay A. Soled (Rutgers; Google Scholar), The Federal Estate Tax Exemption and the Need for Its Reduction, 47 Fla. L. Rev. 649 (2020):

One of the central components of the nation’s transfer tax system is the federal estate tax exemption. This is the amount that taxpayers can pass free of transfer tax imposition. While over the last 100 years the size of this exemption has fluctuated, Congress most recently increased it exponentially, jeopardizing the vitality of the entire transfer tax regime and potentially sapping it of its strength. To enhance the nation’s fiscal solvency and to reduce wealth inequality, this analysis contends that Congress must reduce the estate tax exemption (and, along with it, the gift and generation-skipping transfer tax exemptions). Furthermore, it proposes ways for Congress to efficiently and equitably accomplish this goal.

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Why I No Longer Grade Class Participation

Chronicle of Higher Education op-ed:  Should We Stop Grading Class Participation?, by James M. Lang (Assumption University):

I no longer grade class participation. I seem to be in the minority on that, based on my conversations with other faculty members. But I have come to believe that grading student participation is a poor pedagogical choice, and that a better alternative exists. Here I’ll explain why — and how I cultivate participation in my courses, even without hanging a grade-based incentive over my students’ heads.

What drove me away from grading student participation was an uneasy feeling — and it grew each year — that grades were not something that should be fudged based on my hunches and instincts, or influenced in any way by my informal observations and memories. In retrospect, it seems ridiculous to believe that I could accurately measure how much every student participated in all my courses during a 15-week semester.

Such a “system” is subject to every kind of bias imaginable. In addition to whatever unconscious biases I might be carrying toward students based on their identities, I might find myself looking more favorably on a student whose comments or demeanor remind me a little of myself — or unfavorably on a student who reminds me of someone I dislike.

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