Paul L. Caron
Dean




Sunday, August 7, 2022

NY Times: What's God Got To Do With It? The Rise Of Christian Nationalism In American Politics

New York Times, What's God Got to Do With It? The Rise of Christian Nationalism In American Politics:

Mccaulley stewartEsau Macaulley and Katherine Stewart on how the G.O.P weaponized Christianity — and where we go from here

Christian nationalism has been empowered in American politics since the rise of Donald Trump. From “Stop the Steal” to the storming of the U.S. Capitol and now, the overturn of Roe v. Wade — Christian nationalist rhetoric has undergirded it all. But given that a majority of Americans identify as Christian, faith also isn’t going anywhere in our politics. So what would a better relationship between church and state look like?

To discuss, Jane Coaston brings together two people who are at the heart of the Christian nationalism debate. Katherine Stewart is the author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism and has reported on the Christian right for over a decade. Esau McCaulley is a contributing writer for Times Opinion and theologian-in-residence at Progressive Baptist Church in Chicago.

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August 7, 2022 in Faith, Legal Education | Permalink

The Secret Of Vin Scully's Success: Faith

Los Angeles and baseball fans everywhere are mourning the death of Vin Scully at age 94. Vin was the voice of the Dodgers (and Los Angeles) for 67 years. My dear fried and former colleague Bob Cochran sent me this wonderful interview with Vin for my Sunday faith posts: 

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August 7, 2022 in Faith, Legal Education | Permalink

Christian University Sues Attorney General, Says Investigation Of Anti-LGBTQ+ Hiring Practices Violates Its Religious Freedom

Inside Higher Education, Seattle Pacific Sues Washington AG:

Seattle Pacific 2Facing a state investigation for discriminatory hiring practices against LGBTQ+ individuals, Seattle Pacific University is going on the offensive, suing Washington attorney general Robert Ferguson.

The lawsuit, filed Wednesday, accuses Ferguson of violating the Free Methodist Church–affiliated university’s constitutional right “to decide matters of faith and doctrine, to hire employees who share its religious beliefs, and to select and retain ministers free from government interference.”

At the root of the lawsuit is a policy that has long been a source of friction at Seattle Pacific: a prohibition on the hiring of openly gay faculty and staff members, which the president and Board of Trustees have vigorously defended despite opposition from students, employees and alumni. Students have walked out and sat in to protest the policy; the board refuses to budge out of concerns that doing so would end its 130-year membership in the Free Methodist Church. ...

SPU subscribes to the belief that “sexual experience is intended between a man and a woman,” according to its Statement on Human Sexuality. Its policy holds that “employees are expected to refrain from sexual behavior that is inconsistent with the University’s understanding of Biblical standards, including cohabitation, extramarital sexual activity, and same-sex sexual activity.”

In the lawsuit, lawyers for the Christian university accused Washington’s attorney general of “wielding state power to interfere with the religious beliefs of a religious university, and a church, whose beliefs he disagrees with. He is using the powers of his office (and even powers not granted to his office) to pressure and retaliate against Seattle Pacific University.”

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August 7, 2022 in Faith, Legal Education | Permalink

Forty Democratic Lawmakers Call For IRS Investigation Into Family Research Council's ‘Church’ Status

Following up on my previous post, ProPublica: Family Research Council Is Now A Church In The Eyes Of The IRS:  Washington Post, Democrats Call on IRS to Review Right-Wing Group’s ‘Church’ Status:

FRCCongressional House Democrats are asking the IRS to review the tax-exempt status of a prominent conservative advocacy group recently reclassified as a church, arguing the organization may be exploiting the designation to avoid scrutiny.

Forty Democratic lawmakers, led by U.S. Reps. Suzan DelBene (Wash.) and Jared Huffman (Calif.), outlined their concerns about the Family Research Council in a letter sent to the head of the IRS and the secretary of the Treasury on Monday. According to a recent report from ProPublica, the FRC successfully applied to be reclassified as a “group of churches” in 2020.

Lawmakers say that while the FRC often appeals to faith and advocates for a “biblical worldview,” the status change “strains credulity” because the group operates primarily as “a political advocacy organization.”

“They do not hold religious services, do not have a congregation or affiliated congregations, and do not possess many of the other attributes of churches listed by the IRS,” the letter reads. “FRC is one example of an alarming pattern in the last decade — right-wing advocacy groups self-identifying as ‘churches’ and applying for and receiving church status.” ...

Among the letter’s signatories are U.S. Reps. Jamie Raskin (Md.), Adam B. Schiff (Calif.), Rosa L. DeLauro (Conn.), Rashida Tlaib (Mich.), Jan Schakowsky (Ill.) and Debbie Wasserman Schultz (Fla.).

Washington Times, Democratic Lawmakers Demand IRS Probe of Family Research Council’s Tax Status:

The head of the Family Research Council said Tuesday evening that a call by 40 Congressional Democrats for a Treasury Department/IRS investigation of the group’s “association of churches” tax-exempt status was “factually challenged” and asserted the organization isn’t “trying to hide anything” from the public.

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August 7, 2022 in Faith, Legal Education, Tax | Permalink

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. The #1 paper is #927 among 16,941 tax papers in all-time downloads:

  1. SSRN Logo (2018)[672 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (Catholic University Portugal & IBFD; Google Scholar)
  2. [331 Downloads]  Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I, by Abraham Sutherland (Virginia; Google Scholar)
  3. [324 Downloads]  The Treatment of Tax Incentives under Pillar Two, by Belisa Ferreira Liotti (Google Scholar), Joy Waruguru Ndubai, Ruth Wamuyu, Ivan Lazarov (Google Scholar) & Jeffrey Owens (all of Vienna University of Economics and Business)
  4. [273 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)
  5. [245 Downloads]  Would the Securing a Strong Retirement Act Secure More Retirement Equity?, by Albert Feuer (Law Offices of Albert Feuer, New York; Google Scholar)

August 7, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, August 6, 2022

This Week's Ten Most Popular TaxProf Blog Posts

Former Students Sue Columbia, Say They Were Misled By Misreporting Of Data That Inflated Its U.S. News Ranking

Columbia US News

Following up on my previous posts (links below):  Higher Ed Dive, Columbia University Sued by Students Alleging They Were Misled by Potentially False U.S. News Ranking Data:

Columbia University faces twin lawsuits from two former students alleging the Ivy League institution broke a New York consumer protection law — and its contract with them — by submitting potentially false data to bolster its placement on U.S. News and World Report’s Best Colleges rankings.

One student, who remained anonymous in court filings, sued Tuesday, while the other, Ravi Campbell, filed a lawsuit in mid-July. Both argue students paid “a premium for tuition and other fees” but were deprived of the education Columbia claimed to offer when it submitted information for rankings about factors like student-to-faculty ratios and class sizes. They described Columbia’s alleged misreporting as false, immoral and unethical.

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August 6, 2022 in Legal Ed Rankings, Legal Education | Permalink

Penn Wharton: Decomposing The Decline In Estate Tax Liability Since 2000

Penn Wharton Budget Model, Decomposing the Decline in Estate Tax Liability Since 2000:

We estimate that the federal estate tax would have generated 9 times more revenue in 2019 without the tax changes in 2001 and 2017.

Penn Wharton

Key Points

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August 6, 2022 in Tax, Tax Scholarship, Think Tank Reports | Permalink

Penn State Orders Hiring Freeze, 3% Budget Rescission To Close $191 Million Deficit

Pittsburgh Post-Gazette, Penn State Implements Hiring Freeze Through at Least Summer 2023:

Penn State UniversityPennsylvania’s flagship public university has ordered a hiring freeze at least through next summer as it and other higher education institutions confront spiking inflation and public fallout over tuition hikes aimed at easing strain on campus budgets.

Penn State University confirmed the move late Monday, days after leaders announced a planned rescission in the school’s 2022-23 operating budget of 3%, or $46.2 million. The decision, like a tuition hike approved July 22, was aimed at helping the university narrow a growing operating deficit. ...

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August 6, 2022 in Legal Ed News, Legal Education | Permalink

Friday, August 5, 2022

Weekly SSRN Tax Article Review And Roundup: Saito Reviews Kysar’s Interpreting By The Rules

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Rebecca Kysar (Fordham; Google Scholar), Interpreting by the Rules, 99 Tex. L. Rev. 1115 (2021).

Saito-blaine-800x800-1

Famed Senate Parliamentarian Floyd Riddick said that “[t]he rules of the Senate are perfect. And if they changed every one of them, the rules will be perfect.”[1] The statement shows how rules define both the U.S. Senate and House of Representatives. Recently, scholars have turned their attention to the rules and process of the legislation as a form of pushback against strict textualist approaches to statutory interpretation. These process-based approaches are often invoked in interpreting tax and mandatory spending statutes. But as Rebecca Kysar shows in her piece, Interpreting by the Rules, such an approach requires context and caution. As Riddick’s quote notes, the rules are malleable, and furthermore, they are made to be broken.

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August 5, 2022 in Blaine Saito, Scholarship, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

Arizona Summit, Charlotte, And Florida Coastal Law Grads Have Their Student Loans Forgiven As Part Of $6 Billion Class-Action Settlement

The Washington Post reports that a federal court yesterday approved a $6 billion settlement for 200,000 federal student loan borrowers at more than 150 schools in a class-action lawsuit. Florida Times-Union, $6 Billion Loan Settlement Could Spare Grads of Florida Coastal School of Law, Business Schools:

InfiLaw (2017)Former Florida Coastal School of Law students have been hurrying to request forgiveness of sometimes staggering student loan debts ahead of a court order that could cancel $6 billion in obligations haunting people who attended for-profit schools nationwide.

“My time is now or never,” said Natacha Ciezki, who said that including interest she owes about $500,000 for the law degree she earned in Jacksonville in 2014. ...

Florida Coastal, which closed its doors last year, was among the schools where the Education Department agreed to “presumptive relief” for students who had filed borrower defense applications before the settlement was signed June 22.

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August 5, 2022 in Legal Ed News, Legal Education | Permalink

WSJ: The IRS Is About To Go Beast Mode

Wall Street Journal Editorial, The IRS Is About to Go Beast Mode:

IRS Logo 2Progressives want Joe Biden to unleash what they call “beast mode” executive power, and the Schumer-Manchin tax bill supplies the cash to turn the Internal Revenue Service into Wolverine.

The pact between Sen. Joe Manchin and Majority Leader Chuck Schumer includes $80 billion in new funding for the tax man. Democrats claim this “investment” will yield more than $200 billion in revenue. That estimate is highly speculative, but if it’s anywhere close to right IRS auditors will soon be coming after tens of millions of Americans.

The $80 billion is more than six times the current annual IRS budget of $12.6 billion. The money will be ladled out over nine years and comes with few strings attached. The main Democratic command is for the tax agency to bring the hammer down on taxpayers. ...

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August 5, 2022 in IRS News, Tax | Permalink

UCLA Law School Launches Project To Track Attacks On Critical Race Theory

UCLA Newsroom, UCLA Law Launches Project to Track Attacks on Critical Race Theory:

UCLA School of Law’s Critical Race Studies Program has created an innovative project to track and analyze legislative, regulatory and administrative efforts to block or undermine the teaching of a more complete history of the United States in schools across the country.

Critical race theory, or CRT, is the study of systemic racism in law, policy and society. It has come under fire from local school boards, state legislatures and even federal-level inquiry, all of which have discussed or adopted measures that would ban its teaching.

“The project was created to help people understand the breadth of the attacks on the ability to speak truthfully about race and racism through the campaigns against CRT,” said Taifha Natalee Alexander, project director of CRT Forward.

The law school’s CRT Forward Tracking Project is the first in the United States to precisely identify, catalog and contextualize all of these efforts at the local, state and federal levels.

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August 5, 2022 in Legal Ed News, Legal Education | Permalink

Thursday, August 4, 2022

Georgia: Unborn Children Qualify For $3,000 Income Tax Dependent Exemption After Six Weeks

Update:  New York Times, Georgia Abortion Law Says a Fetus Is Tax Deductible

Georgia Department of Revenue, Guidance Related to House Bill 481, Living Infants and Fairness Equality (LIFE) Act:

Georgia DOR 4In light of the June 24, 2022, U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization and the July 20, 2022, 11th Circuit Court of Appeals ruling in Sistersong v. Kemp, the Department will recognize any unborn child with a detectable human heartbeat, as defined in O.C.G.A. § 1-2-1, as eligible for the Georgia individual income tax dependent exemption. The 11th Circuit’s ruling made HB 481’s amendment to O.C.G.A § 48-7-26(a), adding an unborn child with a detectable heartbeat to the definition of dependent, effective as of the date of the court’s ruling, which was July 20, 2022.

As such, on individual income tax returns filed for Tax Year 2022 where, at any time on or after July 20, 2022, and  through December 31, 2022, a taxpayer has an unborn child (or children) with a detectable human heartbeat (which may occur as early as six weeks’ gestation), the taxpayer may claim a dependent personal exemption as provided for under O.C.G.A § 48-7-26(a) and (b)(3) in the amount of $3,000.00 for each unborn child.  For Tax Year 2022, the deduction for dependent unborn children will be a subtraction on Line 12, “Other Adjustments,” of Form 500 Schedule 1.

Similar to any other deduction claimed on an income tax return, relevant medical records or other supporting documentation shall be provided to support the dependent deduction claimed if requested by the Department.

Additional information, including return instructions to claim the personal exemption for an unborn child with a detectable heartbeat, will be issued later this year along with other tax changes impacting Tax Year 2022 Georgia individual income tax returns. 

Washington Post, Georgia Says ‘Unborn Child’ Counts as Dependent on Taxes After 6 Weeks:

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August 4, 2022 in Tax, Tax News | Permalink

Goldin & Kleiman: Whose Child Is This? Improving Child-Claiming Rules In Safety Net Programs

Jacob Goldin (Chicago; Google Scholar) & Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs, 131 Yale L. J. 1719 (2022):

Yale Law Journal (2022)To address the staggering problem of child poverty in the United States, policymakers distribute a host of safety-net and transfer programs designed to support children and families. All of these programs require rules to determine how benefits are distributed. Among the more important of these are “child-claiming” rules. These rules determine which adults can receive benefits for which children, driving how well a program helps recipients and satisfies societal goals.

This Article critically assesses the design of child-claiming rules for safety-net programs, using as case studies the Child Tax Credit and the Earned Income Tax Credit.

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August 4, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Bloomberg Law Announces Inaugural Law School Innovation Program

Law School Innovation

Bloomberg Law Announces Inaugural Law School Innovation Program:

Bloomberg Law today announced a new program to recognize law schools and their faculty and staff that have implemented and led innovative programs into their curricula that advance new methodologies and approaches to student instruction, legal technology implementation and usage, experiential learning, and other facets of legal education.

"At Bloomberg Law, we are deeply committed to innovation," said Joe Breda, President, Bloomberg Law. "Through this new program, we are excited to encourage and raise awareness of the importance of innovation in legal education by recognizing the law school faculty, staff, and administrators who are pioneering educational innovations that benefit their students, their schools, and the legal field."

Applications will be evaluated on the criteria of innovation, impact on students, ability to advance the legal industry, and replicability. Submissions will be accepted through September 6, 2022.  More information and submission guidelines are available here.

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August 4, 2022 in Legal Ed News, Legal Education | Permalink

Case Western Seeks To Hire An Entry Level Or Lateral Tax Prof

Case Western Reserve University Academic Careers, Open Rank Faculty Positions (tenured/tenure-track) - School of Law:

Case Western Logo (2022)Case Western Reserve University School of Law invites applications for tenured or tenure-track faculty positions, beginning July 2023.

The school is seeking entry-level candidates with demonstrated law teaching and scholarship potential, as well as lateral candidates with strong scholarly track records and substantial law teaching experience. Areas of interest for teaching and scholarship include environmental law, property, copyright, trademark, torts, tax, commercial law, and family law. Appointment will be considered at the Assistant, Associate, or Full Professor level, based upon prior teaching experience and scholarship. Positions may include the opportunity to teach in the Kramer Law Clinic, or administrative responsibilities in the Coleman P. Burke Center for Environmental Law or the Spangenberg Center for Law, Technology, and the Arts.

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August 4, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

WSJ: Colleges (And Law Schools) Scale Back Covid Precautions For Fall Semester — Pandemic Phase Is Over

Wall Street Journal, Colleges Scale Back Covid Precautions for Fall, Saying Pandemic Phase Over:

Colleges this fall are no longer treating Covid-19 as an emergency upending their operations, shifting to eliminate mask requirements and mandatory coronavirus testing and letting students who contract the virus isolate in their dorms with their roommates.

With easy access to vaccinations and low hospitalization rates among college-aged adults—even during the latest surge in BA.5 subvariant cases—administrators said it is time to lift or at least rethink restrictions and redefine the virus as endemic, not a pandemic. That means scaling back mass testing, removing bans on large indoor gatherings and preparing for a fall term that more closely resembles life before Covid.

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August 4, 2022 in Legal Ed News, Legal Education | Permalink

A Response To Penn Dean Ruger’s Letter Calling For A Major Sanction Against Professor Amy Wax

Following up on my previous posts (links below):  Seth Barrett Tillman (Maynooth University School of Law; Google Scholar), A Response to Dean Ruger’s Letter to Professor Gadsden, University of Pennsylvania Faculty Senate Chair, Calling for the Imposition of a Major Sanction Against Professor Wax:

Penn Logo (2022)This is a short statement responding to the misuse of contestable historical materials to achieve ideological ends in the guise of the discipline of an academic colleague. It is a reflection on the dangers of political correctness in today's academic environment.

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August 4, 2022 in Legal Ed News, Legal Education | Permalink

Wednesday, August 3, 2022

Knoll & Mason: Bibb Balancing

Michael S. Knoll (Penn) & Ruth Mason (Virginia; Google Scholar), Bibb Balancing, 91 Geo. Wash. L. Rev. __ (2023):

Gw-law-reviewCourts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation and those of other states. We label analysis in mismatch cases “Bibb balancing,” after the famous mudflaps case, and we show that mismatch cases present the Court with a more challenging set of issues than do other types of dormant Commerce Clause cases. 

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August 3, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

The Top 100 Law Schools, Based On 5-, 10-, And 15-Year Rolling Average U.S. News Rankings

U.S. News Law (2019)Bradley A. Areheart (Tennessee), The Top 100 Law Reviews: A Reference Guide Based on Historical USNWR Data:

The best proxy for how other law professors react and respond to publishing in main, or flagship, law reviews is the US News and World Report (USNWR) rankings. This paper utilizes historical USNWR data to rank the top 100 law reviews. The USNWR rankings are important in shaping many – if not most – law professors’ perceptions about the relative strength of a law school (and derivatively, the home law review). This document contains a chart that is sorted by the 10-year rolling average for each school, but it also contains the 5-year and 15-year rolling averages. This paper also describes my methodology and responds to a series of frequently asked questions. The document was last updated in August 2022.

Here are the Top 75 law schools based on their 5-year rolling average overall U.S. News ranking:

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August 3, 2022 in Law School Rankings, Legal Ed Rankings, Legal Ed Scholarship, Legal Education | Permalink

Gianni: Supervisory Approval Of Penalties—The Opening Of A Graev Pandora's Box

Monica Gianni (CSUN), Supervisory Approval of Penalties: The Opening of a Graev Pandora's Box, 75 Tax Law. __ (2022):

Tax-lawyerSection 6751(b) of the Internal Revenue Code requires supervisory approval in writing prior to assessment of certain penalties. Enacted in 1998 as part of the Internal Revenue Service (“IRS”) Restructuring and Reform Act, the statute’s purpose was to prevent IRS agents from using penalties as bargaining chips. The section remained essentially dormant for over 20 years, with both the IRS and taxpayers accepting the position that approval needed to be obtained only prior to assessment. The trilogy of Graev cases and a decision of the Second Circuit Court of Appeals in Chai v. Commissioner changed the § 6751(b) landscape completely, opening a Pandora’s box of taxpayers using § 6751(b) to avoid penalties on the technicality of no-written-supervisory approval. Hundreds of court cases have followed, resulting in cases inconsistently interpreting § 6751(b) and well-counseled taxpayers avoiding tax penalties.

This article examines the enactment of § 6751(b) and explores in detail the Graev and Chai decisions.

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August 3, 2022 in ABA Tax Section, Scholarship, Tax, Tax Scholarship | Permalink

NY Times Op-Ed: Elite Universities Are Out of Touch. Blame The Campus.

Colorado

New York Times Op-Ed:  Elite Universities Are Out of Touch. Blame the Campus., by Nick Burns:

Looking out the window of a plane flying over Boulder, Colorado, recently, I was reminded how much American universities stick out from their surroundings.

I’d never been to Boulder, or visited the University of Colorado’s flagship campus there, but even from 30,000 feet, I could tell exactly where it started and ended. The red-tile roofs and quadrangles of the campus formed a little self-contained world, totally distinct from the grid of single-family homes that surrounded it.

In urban universities, the dividing line between the campus and the community can be even starker. At the University of Southern California, for example, students must check in with security officers when entering the gates of the university at night. At Yale, castle-like architecture makes the campus feel like a fortified enclave.

The elite American university today is a paradox: Even as concerns about social justice continue to preoccupy students and administrations, these universities often seem to be out of touch with the society they claim to care so much about. Many on the right and in the center believe universities have become ideological echo chambers. Some on the left see them as “sepulchers for radical thought.”

These critiques aren’t new — for generations people have thought of American universities as ivory towers, walled off from reality — but they’ve taken on new urgency as public debate over the state of higher education has intensified in recent years. Ideology and institutional culture get frequent attention, but a key factor is often ignored: geography.

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August 3, 2022 in Legal Ed News, Legal Education | Permalink

Federalist Society: Are IRS Defenses Crumbling?

Federalist Society, Are IRS Defenses Crumbling?:

The continuous stream of regulations and other guidance the Internal Revenue Service (IRS) must publish to inform the public how it is going to implement, administer, and enforce the frequent, numerous, and complicated changes to the tax laws, along with the high dollar stakes involved, create constant opportunities and incentives to challenge the IRS.

Some contend that the IRS’s ability to defend itself against these challenges seems to be vanishing as one after another of their recent court cases have been unsuccessful.

Our speakers discussed this in more detail, along with what they might portend for how the Internal Revenue Service and the Treasury Department issue future guidance. Another direction to watch is at the other end of Pennsylvania Avenue: will Congress begin to do a better job drafting laws and providing instructions and guidance about how they are to be implemented, administered, and enforced?

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August 3, 2022 in IRS News, Tax | Permalink

ABA Gaining Public Support In Proposal To Make Law School Admission Tests Optional

Following up on my previous post, So Far, Public Comments Largely Support ABA Proposal To Make Law School Admission Tests Optional:  Law.com, ABA Gaining Public Support in Proposal to Make Law School Admission Tests Optional:

ABA Legal Ed (2021)So far, support for doing away with the standardized testing requirement for American Bar Association-accredited law schools is outweighing those who want to see the Law School Admission Test (LSAT) remain as a requirement. ...

Since mid-June—when Law.com reported that eight comments that had been posted—that number has nearly doubled with less than a month left in the 90-day comment-and-notice period.

The proposed changes include making admission tests for law school, such as the LSAT, optional instead of mandatory. ...

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August 3, 2022 in Legal Ed News, Legal Education | Permalink

Tuesday, August 2, 2022

Florida Tax Review Publishes New Issue

The Florida Tax Review has published Vol. 25, No. 1 (Fall 2021):

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August 2, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Stephen Carter, Deborah Merritt, And The Bar Exam

Deborah J. Merritt (Ohio State; Google Scholar), Stephen Carter on the Bar Exam:

Eminent Yale Professor Stephen Carter has penned has penned a thoughtful critique of the bar exam [RIP to the LSAT? Let’s Kill the Bar Exam, Too]. Professor Carter notes the exam’s similarities to the LSAT, which some law schools have abandoned as an admissions requirement. In addition to their shared affection for multiple choice questions, the LSAT and bar exam both constrain the diversity of our profession. Despite the bar exam’s disproportionate racial impact, Professor Carter notes, the exam has never been properly validated. Here, he cites a column I wrote in 2017 for the AALS Newsletter.

As I wrote then, state bar examiners and NCBE designed the bar exam around a definition of minimum competence that they “felt in their bones.” NCBE did not conduct a practice analysis of the knowledge and skills that new lawyers need until 2012. That analysis supported some of the doctrinal subjects that NCBE was testing, but not the depth of memorization required by the exam. The analysis also confirmed that skills like researching the law, fact gathering, negotiating, and interviewing were essential for law practice–all skills conspicuously absent from the bar exam.

NCBE conducted another practice analysis in 2019, which once again exposed numerous flaws in the exam. My own research conducted with Logan Cornett and IAALS (the Institute for the Advancement of the American Legal System) [Building A Better Bar Exam: The Twelve Building Blocks Of Minimum Competence], reached a similar conclusion: the written bar exam tests both too much and too little. It restricts admission to the profession (especially of people of color) without adequately protecting the public. ...

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August 2, 2022 in Legal Ed News, Legal Ed Scholarship, Legal Education | Permalink

DePaul Seeks To Hire An Entry Level Tax Prof

DePaul Faculty Jobs, Assistant Professor (Tenure Track) - Law (23-24):

DePaul Logo (2018)DePaul University College of Law invites applications from entry-level candidates for a tenure-track position expected to begin July 1, 2023. We have particular interest in the areas of Business Law, Contracts, Tax, Commercial Law, and Antitrust. 

DePaul Law is committed to improving society by educating purpose-driven lawyers who will serve their clients, the legal profession, and the broader community in ways that enhance access to justice and promote equitable policies and processes. We enthusiastically encourage applicants who would enrich the diversity of our community to apply. ...

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August 2, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

Listening To Our Students: Fostering Resilience And Engagement To Promote Culture Change In Legal Education

Ann Sinsheimer (Pittsburgh) & Omid Fotuhi (Pittsburgh), Listening to Our Students: Fostering Resilience and Engagement to Promote Culture Change in Legal Education, 26 Legal Writing: The J. Legal Writing Inst. 81 (2022):

In this Article, we describe a dynamic program of research at the University of Pittsburgh School of Law that uses mindset to promote resilience and engagement in law students. For the last three years, we have used tailored, well-timed, psychological interventions to help students bring adaptive mindsets to the challenges they face in law school. The act of listening to our students has been the first step in designing interventions to improve their experience, and it has become a kind of intervention in itself. Through this work, we have learned that simply asking our law students about their experiences and listening carefully to their answers helps create an environment that supports academic and professional growth.

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August 2, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Henderson: The End Of The 'End Of History' Era — Extreme Wealth Concentration

Bill Henderson (Indiana), The End of the “End of History” Era:

Henderson

Apolitical technicians working in an ahistorical profession. What are the odds of a happy ending?

The graphic above summarizes the U.S. top marginal income tax rate from 1913 (the year the 16th Amendment was ratified by the states) to 2021. One clear takeaway is that for the vast bulk of the 20th century, the wealthy paid much higher taxes.

As the graphic suggests, however, that changed with the election of Ronald Reagan, whose inaugural address launched an ideological revolution with a simple and memorable message: “government is not the solution to our problem, government is the problem.” Reagan Inaugural Address (Jan 21, 1981). Thus, with the public’s consent, top marginal tax rates were slashed throughout the 1980s. At the 1988 Republican Convention, George H.W. Bush (Reagan’s VP) spoke the words, “read my lips: no new tax,” which helped him defeat Michael Dukakis in the general election. See Lily Rothman, “The Story Behind George H.W. Bush’s Famous ‘Read My Lips, No New Taxes’ Promise,” Time, Dec 1, 2018. Yet, the political mood of the late 1980s was also strongly anti-deficit. In 1990, when Congress enacted pay-as-you-go rules for federal budgeting, Bush, who was saddled with a massive Saving & Loan bailout, agreed to increase the top marginal rate from 28% to 31% — an act that arguably ended his political career. See Howard Gleckman, “Reading President Bush’s Lips,” Tax Policy Center, Dec 5, 2018.

Since the early 1990s, much of the electorate has enjoyed the political stability and relative economic prosperity of the “End of History” era, which is a reference to Francis Fukuyama’s famous 1989 essay and 1992 book. Surveying the geopolitical landscape, including the market-based reforms being implemented in China and the former Soviet Union, Fukuyama concluded that there were no longer any “viable systematic alternatives to Western liberalism.” Fukuyama, “The End of History?,” The National Interest (Summer 1989) at 3. Full global realization and consciousness may not occur for a few more decades, as small-scale governments based on nationalism or religion would likely linger. But, Fukuyama argued, the outcome of history was no longer in doubt.

I would argue that over the last three decades, a large portion of the legal profession (myself included) slipped into a comfortable “End of History” cocoon. As we built our careers, sent our kids to highly ranked universities, and monitored the size and status of our retirement accounts, we took political stability as a given. Thus, we became oblivious to growing fissures and cracks that might threaten the rule of law. Can an ahistorical profession be learned? ...

Today’s post is a bridge between Part I, which focused on the original Gilded Age lawyers (Post 312), and next Sunday’s Part II, which will carefully consider three empirically based theories of national decline.

In Part I, I acknowledged that for nearly four decades, virtually all my life decisions were premised on the unstated assumption of ongoing (perhaps unending?) political stability and relative economic prosperity (the unstated assumption). However, after living through the national and global turmoil of the last several years, including past and potential future coup attempts against the U.S. government, my unstated assumption has been revealed to be foolish and decadent wishcasting. ...

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August 2, 2022 in Legal Education, Tax | Permalink

Eliminating Tuition For Yale Law Students In Need Will Help Diversify The Legal Profession

Following up on my previous posts (links below):  ABC News, Why Yale Law’s Dean Says Eliminating Tuition for Students in Need Benefits the Legal Profession:

Yale Law Logo (2020)As students prepare to return to school in the fall, one Ivy League law school has a new scholarship aimed at broadening access to legal education by eliminating tuition for students with financial needs.

Yale Law School's Hurst Horizon Scholarships will erase tuition and pay for college fees and health care costs for law students with the greatest financial need. It's a first-of-its-kind scholarship that is creating new conversations about what law schools can do to diversify the legal profession.

Yale Law School dean Heather Gerken, the first woman to serve in the role, tells ABC News the scholarship was needed. "We have so many people from low-income backgrounds, who are not going to law school to pursue change because of the debt that waits on the other end for them," she said.

The scholarship will be given to any Juris Doctor student whose family income is below the federal poverty guidelines and whose assets are below $150,000. The law school tells ABC News that more than 45 students this fall will qualify to be awarded more than $70,000 per year to cover tuition, fees and health insurance. ...

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August 2, 2022 in Legal Ed News, Legal Education | Permalink

Monday, August 1, 2022

Amarante: States As Laboratories For Charitable Compliance—An Empirical Study

Eric Franklin Amarante (Tennessee; Google Scholar), States as Laboratories for Charitable Compliance: An Empirical Study, 90 Geo. Wash. L. Rev. 445 (2022):

Gw-law-reviewEach year, the Internal Revenue Service (“IRS”) awards 501(c)(3), tax exempt status to thousands of organizations that do not meet the statutory requirements for charities. This is because the IRS, facing increasingly severe budget cuts, adopted a woefully inadequate application process that fails to identify even the most obvious of unworthy applicants. To illustrate this problem, this Article reviews the formation documents of 500 charities that received 501(c)(3) status in 2018 using this new application process. The results of this study are dramatic as they are upsetting: In Florida, only 41.11% of the charities in the study met the statutory requirements necessary for 501(c)(3) status. In Ohio, that number is 33.33%, meaning that two-thirds of the organizations using the new application process were incorrectly awarded 501(c)(3) status. The worst performing state in the study, Idaho, boasted only 22.08% of organizations meeting the statutory test.

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August 1, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Legal Ed News Roundup

Virtual Roundtable Tomorrow On Starving The Beast: Ronald Reagan And The Tax Cut Revolution

Starving the Beast 2On behalf of the Ronald Reagan Institute, the Washington, D.C. Office of the Ronald Reagan Presidential Foundation and Library, we invite you to attend the next iteration of the Reagan Scholars Virtual Roundtable Series from 1:00 pm to 3:00 pm Eastern Time on Tuesday, August 2, 2022. Ronald Reagan Institute will host a virtual roundtable on August 2 from 1:00 p.m. - 2:00 p.m. ET. If you would like to attend, please contact Anthony Eames

For this session, we welcome Professor Monica Prasad of Northwestern University. She is the author of Starving the Beast: Ronald Reagan and the Tax Cut Revolution - winner of the best book award in economic sociology. Dr. Brian Domitrovic, Richard S. Strong Scholar at the Laffer Center for Supply-Side Economics, will offer his own comments in response. He is a leading authority on the history of on supply-side economics. See his recent book The Emergence of Arthur Laffer: The Foundations of Supply-Side Economics in Chicago and Washington, 1966-1976 

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August 1, 2022 in Conferences, Scholarship, Tax, Tax Scholarship | Permalink

The Fall 2022 Law School Admissions Season: Applicants Are Down 12%, The Most Among Whites (-14%) And The Highest LSAT Bands (-14%)

We are now 100% of the way through Fall 2022 law school admissions season. The number of law school applicants reported by LSAC is down 11.6% compared to last year at this time.

LSAC 1

43 of the 199 law schools are experiencing an increase in applications. Applications are up 20 % or more at 4 law schools and 10% or more at 12 law schools:

LSAC 2

Applicants are up in only one region: Other (+5.3%); and are down the most in Northwest (-19.2%), Northeast (-18.1%), and Midwest (-15.3%):

LSAC 3

Applicants' LSAT scores are down -14.2% in the 170-180 band, -13.8% in the 160-169 band, -10.2% in the 150-159 band, and -10.6% in the 120-149 band:

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August 1, 2022 in Legal Ed News, Legal Education | Permalink

Lesson From The Tax Court: Excise Tax On Messed Up IRA Rollover Different From Income Tax

Camp (2021)The tax laws are conflicted.  They encourage retirement savings by permitting taxpayers to deduct contributions to their Individual Retirement Accounts (IRA’s).  But that encouragement is hedged by various restrictions and caps as well as a special excise tax imposed on contributions that exceed the applicable caps.  And Congress crosses its fingers if taxpayers take early distributions.  Those can result in penalties as well as inclusion in gross income.  However, Congress uncrosses those fingers if the early distributions are properly rolled into another IRA.

Given these various statutory hedges and crossed-fingers, it’s no wonder that navigating the tax rules for retirement accounts is tricky!  Particularly tricky are managing rollovers from one type of retirement plan to another.  Mistakes there can have both income tax consequences and excise tax consequences.  Thus, we must always keep straight the difference between different types of taxes, just like we saw in last week’s lesson.

This week, we learn how excise tax consequences are different than income tax consequences of a messed up IRA rollover.  In Clair R. Couturier, Jr. v. Commissioner, T.C. Memo. 2022-69 (July 6, 2022) (Judge Lauber), the taxpayer escaped a huge income tax liability for messing up some of the rollover rules because the limitation period for assessment had run, but got snagged for a $8.5 million excise tax for excess IRA contributions.  Yeah, we’re talking a lot of money here, putting enough at risk for the taxpayer to hire one of the best tax lawyers in the country to represent him.  Alas, even Lavar Taylor could not pull him out of the $8.5 million hole.  He tried to argue that the IRS was bound by the income tax characterization of the transaction.  The Court rejected that argument because...an excise tax is not an income tax.  Details below the fold. 

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August 1, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

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August 1, 2022 in About This Blog, Legal Education, Tax | Permalink

Last Week's Bar Exam: Send In The Clowns

Bloomberg Op-Ed:  Oh, You've Got Tech Woes? Try Taking the Bar, by Stephen Carter (Yale):

Bloomberg OpinionBudding lawyers have run into technical issues with the big test’s software for the third year in a row. Can someone please send in the clowns?

[Last] week, tens of thousands of budding lawyers [sat] for the bar examination. For the second year in a row, the big news is about technology. Last July, Examplify — the software used for remote testing — crashed repeatedly. Just weeks before this year’s exam, test-takers who’d bought new Windows laptops were informed that their devices were incompatible with the test.

They were advised to find another to borrow.

I'm no fan of the bar exam, which I consider both pointless and exclusionary. But if it’s going to exist, those in charge shouldn’t be strewing unnecessary technological obstacles in the path of test-takers. Lately, if unintentionally, that’s exactly what’s happened. ...

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August 1, 2022 in Legal Ed News, Legal Education | Permalink

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August 1, 2022 in About This Blog, Legal Education, Tax | Permalink

TaxProf Blog Weekend Roundup

Sunday, July 31, 2022

Battle Over 'Wokeness' At Christian Colleges Isn't Just About Politics, It's About Dollars

Detroit Free Press, Battle Over 'Wokeness' at Christian Colleges Isn't Just About Politics, It's About Dollars:

Grove City HillsdaleThe latest battle in Christian higher education isn't centered on theological issues, but rather on politics.

For decades, Hillsdale College and Grove City College mirrored each other.

Fiercely independent, neither takes any federal dollars, including government-backed student loans, in order to be exempt from most federal rules.

Located in bucolic settings — Hillsdale in agricultural southern mid-Michigan and Grove City in the hills of western Pennsylvania — one feels smarter simply by stepping on the carefully groomed campuses with spectacular academic buildings, chapels and residence halls. Both have reputations as bastions of conservatism.

But the last two years have started to push the two apart, at least in the minds of their core markets.

Hillsdale, to the delight of conservatives and the consternation of liberals, has continued to burnish its conservative credentials. It has worked closely on education matters with Florida Gov. Ron DeSantis  and Tennessee Gov. Bill Lee.

"The college's belief in genuine classical education and its deep admiration for the principles of the American Founding, as espoused in the Declaration of Independence and the U.S. Constitution, has made it a target for those who oppose such challenges to the status quo of what is now taught in most American institutions of higher education," Hillsdale spokeswoman Emily Davis told the Free Press, adding that Hillsdale wants all students, not just those in Michigan, to have a quality education. "Hillsdale College has been dedicated to pursuing truth and defending liberty since 1844 and has no plans of retreating from that noble effort."

And while Hillsdale alumni, students and faculty have been supportive of the college, alumni, students and faculty at Grove City have been engaged in all-out-war  over whether it is woke.

The two schools represent the newest battle in Christian higher education, one that isn't centered on theological issues such as creationism or who is God, but rather on whether Donald Trump won the last election or whether Black people are still targeted by systematic racism in America. It's about politics brought to campus, witnessed by students who arrive as self-styled culture warriors, armed with smartphones and social media.

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July 31, 2022 in Faith, Legal Ed News, Legal Education | Permalink

WSJ Op-Ed: Religion Is Dying? Don’t Believe It

Wall Street Journal Op-Ed:  Religion Is Dying? Don’t Believe It, by Byron R. Johnson (Baylor; Pepperdine; Google Scholar) & Jeff Levin (Baylor):

Baylor ISRReports of religion’s decline in America have been exaggerated. You’ve heard the story: Churchgoers are dwindling in number while “Nones”—those who tell pollsters they have no religious affiliation—are multiplying as people abandon their faith and join the ranks of atheists and agnostics. Headlines declare that the U.S. is secularizing along the lines of Europe. From Britain’s Daily Mail in 2013: “Religion could disappear by 2041 because people will have replaced God with possessions, claims leading psychologist.”

These conclusions are based on analyses that are so flawed as to be close to worthless. In a new study with our colleagues Matt Bradshaw and Rodney Stark, we seek to set the record straight [Are Religious “Nones” Really Not Religious?: Revisiting Glenn, Three Decades Later, Interdisciplinary Journal of Research on Religion, Vol. 18, Art. 7 (2022)].

Data from five recent U.S. population surveys point to the vibrancy, ubiquity and growth of religion in the U.S. Americans are becoming more religious, and religious institutions are thriving. Consistent with some previous studies but contrary to widely held assumptions, many people who report no religious affiliation—and even many self-identified atheists and agnostics—exhibit substantial levels of religious practice and belief. ...

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July 31, 2022 in Faith, Legal Education | Permalink

LA Times: Jews, Muslims And Others Say Roe vs. Wade Reversal Threatens Their Religious Freedom

Following up on my previous post, Does Religious Freedom Protect A Right To An Abortion?:  Los Angeles Times, Jews, Muslims and Others Say Roe vs. Wade Reversal Threatens Their Religious Freedom:

L.A. TimesFor 25 years Rabbi Barry Silver has served as the spiritual leader of L’Dor Va-Dor, a progressive synagogue in Boynton Beach, Fla. Like most congregational rabbis, he offers a Jewish perspective on major life events, giving weekly sermons, performing weddings, funerals and baby namings, and occasionally counseling congregants wrestling with whether to have an abortion.

Silver tells his congregation that contrary to Roman Catholic and evangelical teachings, which state that life begins at conception, traditional Jewish law, known as Halakha, says life begins at birth: when the baby draws its first breath. Before then, the mother’s physical and emotional well-being is paramount.

In some extreme cases — such as when the mother’s life is at stake — an abortion is not just permitted by Jewish law, but required.

“Right in the beginning of the Torah, Genesis states that God formed the human, Adam, from the dust of the Earth, like you create a work of pottery. Then he breathed the breath of life in him and he lived,” Silver said. “We equate breathing with living.”

For decades, antiabortion Catholic and evangelical Christian perspectives have dominated the religious conversation around abortion. But people of faith hold a variety of views on the issue, rooted in their own traditions, teachings and laws.

Muslim teachings hold that the soul is breathed into a fetus 120 days after conception, and other religious groups — Unitarians, the Oklevueha Native American Church, and the Satanic Temple (a global organization that is headquartered in Salem, Mass., and that, despite its name, doesn’t actually worship the Prince of Darkness) — considerreproductive choice and bodily autonomy to be sacred.  ...

Silver, a progressive activist who also works as a civil rights attorney, made headlines this month after he filed a religious liberty lawsuit challenging a Florida law that bans abortions after 15 weeks of pregnancy. He said the ban makes abortion unlawful even in situations in which it’s mandated by Jewish law. Silver is the first religious leader to file such a suit; legal experts say that after the U.S. Supreme Court’s June 24 decision overturning Roe vs. Wade, he won’t be the last. ...

Jews in particular are waking up to what abortion restrictions at the state level could mean for their religious freedom. ...

Michael Helfand, a professor at Pepperdine University’s Caruso School of Law, says Jews are well positioned to argue that abortion restrictions violate an individual’s religious liberties, especially in states where so-called religious freedom restoration laws provide heightened protections for religious exercise. ...

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July 31, 2022 in Faith, Legal Education | Permalink

The Top Five New Tax Papers

This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list. The #1 paper is #1,019 among 16,932 tax papers in all-time downloads:

  1. SSRN Logo (2018)[636 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (Catholic University Portugal & IBFD; Google Scholar)
  2. [463 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
  3. [327 Downloads]  Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I, by Abraham Sutherland (Virginia; Google Scholar)
  4. [312 Downloads]  The Treatment of Tax Incentives under Pillar Two, by Belisa Ferreira Liotti (Google Scholar), Joy Waruguru Ndubai, Ruth Wamuyu, Ivan Lazarov (Google Scholar) & Jeffrey Owens (all of Vienna University of Economics and Business)
  5. [268 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)

July 31, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, July 30, 2022

This Week's Ten Most Popular TaxProf Blog Posts

Katherine Magbanua Sentenced To Life In Prison, Plus Two 30-Year Sentences, In Dan Markel's Murder; Charlie Adelson Trial In Early 2023

Tallahassee Democrat, Magbanua Sentenced to Life, Plus Two 30-Year Sentences in Dan Markel Murder; Adelson Trial Possible For Early 2023:

Magbanua AdelsonCircuit Judge Robert Wheeler sentenced Katherine Magbanua to life in prison plus two additional 30-year sentences to run consecutively for her role in the murder of Florida State law professor Dan Markel. ...

Last week marked eight years since Markel was gunned down in his Betton Hills garage. 

Tara Kawass, Magabanua's attorney:  "One thing that I can say that Ms. Magbanua hopes and prays for is that justice is ongoing and has not been reached in this case and she wants each and every person who had a hand in this and knows something about this to be brought to justice." ...

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July 30, 2022 in Legal Ed News, Legal Education | Permalink

ABA Tax Section|Tax Analysts Public Service Tax Fellowship Application Deadline Extended

ABA Tax Section has extended the application deadline to August 15 for the Tax Analysts Public Service Fellowship:

ABA Tax Analysts 2The ABA Tax Section and Tax Analysts (the publisher of Tax Notes) have partnered to launch a new public interest fellowship to start this September. Tax Analysts Public Service Fellows will be funded by Tax Analysts to work for two years practicing public interest tax law. The fellowship is geared toward either those with an LLM in tax or experienced attorneys including those seeking to move into the public interest sector. The inaugural fellow will work at La Posada Tax Clinic in Twin Falls, Idaho. You can learn more about Bob Wunderle, who runs La Posada, and his important work providing a range of tax services to vulnerable populations including farm workers throughout the state of Idaho in this podcast from Tax Notes. Applications are due August 15 – the application and more information are available here.

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July 30, 2022 in Legal Education, Tax, Tax Analysts | Permalink

Listen!: Amplifying The Experiences Of Black Law School Graduates In 2020

Sarah J. Schendel (Suffolk; Google Scholar), Listen!: Amplifying the Experiences of Black Law School Graduates in 2020, 100 Neb. L. Rev. 73 (2021):

Law students graduating in 2020 faced a number of unusual challenges. However, perhaps no students faced more emotional, psychological, logistical, and financial challenges than Black law school graduates in 2020. In addition to changes in the administration of the bar exam (including the use of technology that struggled to recognize Black faces) and delays in the administration of the exam that led to anxiety and increased financial instability, Black communities were concurrently being disproportionately impacted by the COVID-19 pandemic. The pandemic led to increased care-taking responsibilities for many, concerns over the health of family members, and a lack of quiet and reliable space to study. Black law school graduates already struggling to juggle these challenges were also confronted with a rise in anti-Black police brutality, and the racist words and actions of politicians. As a result of this unprecedented series of stressors, many Black law gradates struggled to focus on studying for the bar, with some choosing to delay or abandon sitting for the bar altogether. Many expressed anger, disappointment, and betrayal at the profession they have worked so hard to enter. This Article summarizes the survey responses of over 120 Black law students who graduated in 2020 and were asked how the COVID pandemic and increased anti-Black violence impacted their health, education, and career aspirations. It seems likely that the impact of 2020 on the presence and wellbeing of Black lawyers in the legal profession will be felt for years to come. As professors, deans, lawyers, and policymakers reexamine the function of the bar exam and confront inequalities in legal education, we need to listen to these graduates’ experiences.

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July 30, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink