2020-21 Moot Court Rankings

UC Hastings Takes Moot Court Crown, Nat'l Jurist, Fall 2021, at 18:

According to an annual ranking by University of Houston Law Center’s Blakely Advocacy Institute, UC Hastings racked up 127.5 points in moot court competitions during the 2020-21 academic year. (The score takes into account the quality of the competitions, their size and the school’s performance.) By comparison, second-place University of Georgia School of Law earned 97.5 points. That’s pretty far back in the rear view mirror.

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Maynard: Biden’s Gambit: Advancing Racial Equity While Relying On A Race-Neutral Tax Code

Goldburn P. Maynard Jr. (Indiana University, Kelley School of Business; Google Scholar), Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code, 131 Yale L.J. Forum 656 (2022):

The American Rescue Plan Act was both a major infusion of economic aid to low-income and middle-class Americans and an opportunity for the Biden Administration to keep its promise to promote racial equity. This Essay analyzes ARPA’s major provisions to determine their potential impact on racial equity. It argues that the Biden Administration should do more to tackle racial wealth inequality and the structural issues in the tax code that allow those at the top of the income distribution to benefit disproportionately from tax subsidies. It also underscores the larger challenge of achieving racial equity in the face of courts, particularly conservative judges, that treat race-based policies designed to counteract racial inequities as discriminatory.

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Koppelman: What Yale Law School Teaches — Inadvertently — About The Appropriate Role Of Diversity Officials

Following up on my previous posts (links below):  Andrew Koppelman (Northwestern), What Yale Law School Teaches — Inadvertently — About the Appropriate Role of Diversity Officials:

Yale Law School’s disastrous mishandling of a discrimination complaint actually shows that diversity officials can do valuable work — if we consider what they should have done.

As the bitter controversy continues over Yale Law School’s disastrous mishandling of a discrimination complaint, some have wondered whether there ought to be diversity officials at all. The mutual incomprehension among students that led to this situation actually shows that they can do valuable work — if they get it right.

In some ways, opposition to racism is baked into the modern university. Law schools like Yale, where I was a student, or Northwestern, where I teach, admit the best students they can find, regardless of race, sex, social class, or other ascribed statuses. But that egalitarian ethic has not always existed. The old hierarchies leave their mark, and members of previously excluded groups often feel that they don’t belong. If that affects their academic performance, the university’s educational mission is impaired.

Faculty should care about this experience of isolation because teaching is an exercise in rhetoric, and rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. Universities need to know what alienates students.  Otherwise we can’t do our jobs as effectively as we could. The alienation of minority students is a problem that needs to be addressed.

But addressing it can’t involve the embrace of any substantive orthodoxy. As the 1967 Kalven Report noted, a university “cannot insist that all of its members favor a given view of social policy,” because that means “censuring any minority who do not agree with the view adopted.” Rather, what the university can contribute to social policy is clarity, the dispelling of ignorance and confusion. That has implications for the role of diversity officers.

My point will be clearer if we consider the specifics of what happened at Yale. ...

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Strategic Surrogates Or Sad Sinners: U.S. Taxation Of Bartering In Digital Services

Mark J. Cowan (Boise State), Joshua Cutler (Boise State) & Ryan J. Baxter (Boise State; Google Scholar), Strategic Surrogates or Sad Sinners: U.S. Taxation of Bartering in Digital Services,  58 Am. Bus. L.J. ___ (2021):

The COVID-19 pandemic caused both a surge in technology use and a deterioration in government finances. At the same time, big tech companies are under scrutiny by lawmakers for tax avoidance, antitrust issues, and other concerns. These realities call for governments to reassess tax policy towards tech companies and for tech companies to reassess legal strategy towards taxes. State and federal governments’ tax bases are eroding because of the non-cash, barter nature of modern transactions. When a taxpayer uses “free” digital services like email, social media, or search engines, she pays via access to her personal data or attention. From a legal and policy standpoint, these barter transactions should be taxed just as if cash had changed hands, but because it is not practicable to identify, value, and tax the data and time of each user, they have escaped taxation, giving many tech companies an unintended tax advantage. 

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Kofler Presents The Shielding Effect of European Tax Directives Today At The OMG Transatlantic Tax Talks

Georg Kofler (Vienna; Google Scholar) presents The Shielding Effect of European Tax Directives today as part of the OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

Kaye: A Comparative Look At The Low-Income Housing Tax Credit And Opportunity Zones

Tracy A. Kaye (Seton Hall), Ogden Commons Case Study: A Comparative Look at the Low-Income Housing Tax Credit and Opportunity Zone Incentive Tax Programs, 48 Fordham Urb. L.J. 1067 (2021):

The Opportunity Zone (OZ) tax incentive to invest in economically distressed areas across the United States was introduced in the 2017 Tax Cuts and Jobs Act. This Article examines the Ogden Commons project, a mixed-use development in Chicago’s North Lawndale neighborhood, as a case study for OZ investments. Ogden Commons represents an appropriate implementation of the OZ incentive, but its successes also demonstrate the program’s shortfalls. For example, unlike other federal economic development programs such as the Low-Income Housing Tax Credit (LIHTC), OZ investors have few restrictions with regards to the projects they invest in. This much touted great flexibility for the OZ investments comes at the expense of little oversight.

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Modern Diploma Privilege: A Path Rather Than A Gate

Catherine Martin Christopher (Texas Tech), Modern Diploma Privilege: A Path Rather Than a Gate:

This article proposes a modern diploma privilege, a licensure framework that allows state licensure authorities to identify what competencies are expected of first-year attorneys, then partner with law schools to assess those competencies. Freed from the format and timing of a bar exam, schools can assess a broader range of competencies over longer time horizons. This will allow the development of law school curricula aimed at preparing students to assist clients rather than to pass the bar exam. The modern diploma privilege is structured as an ongoing partnership between licensure authorities and schools, which means that changes can be easily made to the list of desired competencies and/or the assessment methods. This in turn allows for a more nimble licensure mechanism that can quickly adapt to changes in the evolving market for legal services.

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AI, Law Schools, And Bar Exams

Lance B. Eliot (Codex: The Stanford Center for Legal Informatics), The Reasoned Case For Teaching About AI In Law Schools For Law Students:

A perhaps surprisingly controversial question is whether or not law schools should be offering a formal class on the topic of AI and the law, and if so, additional queries arise about whether such an offering ought to be optional versus required, techie-oriented, or law-focused, etc. Let’s unpack the matter and see.

Lance B. Eliot (Codex: The Stanford Center for Legal Informatics), AI-Enabled Interrogators For Attorney Bar Exam Taking:

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Northwestern Hosts Zoom Panel Today On Validity And Equity Problems In Law School Teaching Evaluations

Northwestern hosts a multidisciplinary Zoom panel on Validity and Equity Problems in Law School Teaching Evaluations today at 1:00 pm ET (registration):

Student evaluations are, as shown by study after study, not valid measures of teaching quality and are biased along the axes of gender, race, accent, age, disability, attractiveness, and other instructor attributes unrelated to teaching ability. Yet, even as many universities and colleges have begun reckoning with these established problems with teaching evaluations, and while many law schools have started tackling other barriers facing women and minorities in academia, attempts to reform evaluations have lagged behind in the legal academy. This panel brings together a multidisciplinary group of scholars to discuss the most recent research on teaching evaluations and how law schools should proceed given what this work shows about the issues with such evaluations.

Speakers:

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Drexel Seeks To Hire A Tax VAP And A Tech/Torts VAP

Drexel University Thomas R. Kline School of Law invites applications for two Visiting Assistant Professor positions:

One position is dedicated to a faculty member who will teach and research in the area of tax. The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts. Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

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Magbanua's Defense Team Seeks To Call Adelson Family As Witnesses In Feb 14 Dan Markel Murder Trial

Tallahassee Democrat, Magbanua's Defense Team Looking to Call Adelson Family as Witnesses in Markel Murder Trial:

Prosecutors are objecting to Katherine Magbanua’s defense attorneys calling alleged co-conspirators in Dan Markel’s murder as witnesses in her upcoming trial because they may have invoked their rights against self-incrimination.

Magbanua’s second trial on charges of first-degree murder, conspiracy to commit murder and solicitation of murder is set to begin next month. Three years ago, her trial ended in a mistrial.

Her Miami defense team last month filed an amended witness list which includes Markel’s former in-laws, who prosecutors have alleged are the financiers behind the murder-for-hire plot that ended the Florida State University law professor’s life in 2014.

Harvey, Donna and Charlie Adelson have all denied any involvement in the murder and have not been charged by prosecutors. They are among 10 defense witnesses listed in the Nov. 30 filing in Leon County Circuit Court.

The list also includes WCTV news anchor and reporter Julie Montanaro and Markel’s ex-wife Wendi Adelson, who testified in 2019 when Magabanua was tried alongside her long-time boyfriend Sigfredo Garcia. ...

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Textualism Without Tax Shelters

Jacob D. Nielsen (J.D. & LL.M. (Tax) 2021, Boston University), Note, Textualism without Tax Shelters: A Proposal for Integrating Judicial Anti-Abuse Doctrines with Textualism, 101 B.U. L. Rev. 1471 (2021):

The line between legitimate tax planning and abusive tax positions, while clear in many instances, produces a significant amount of controversy. Judicial scrutiny of close cases has led to the development of a body of loosely related anti-abuse doctrines designed to separate the wheat from the chaff. However, textualist judges have increasingly rejected or limited the use of anti-abuse doctrines out of a concern that such doctrines undermine taxpayer reliance on the law. Critics contend that by rejecting anti-abuse doctrines, these textualist judges legitimate abusive tax shelters and deprive the judiciary of essential tools for curbing abuse. This Note responds to textualists and their critics alike by arguing that textualism is not incompatible with judicial anti-abuse doctrines. After surveying major landmarks in the historical development of the legal system’s treatment of tax abuse and considering the Sixth Circuit’s approach to the issue, this Note develops an account of judicial anti-abuse doctrines as textually sensitive aids to statutory interpretation.

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Fox Presents The Psychology Of Taxing Capital Income Today At Toronto

Ed Fox (Michigan; Google Scholar) presents The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule (with Zachary Liscow (Yale; Google Scholar)) (reviewed by David Elkins (Netanya) here) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

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

We have three main findings. First, respondents strongly prefer to wait to tax gains on stocks until sale: 75% to 25%. This pattern persists across a variety of other assets and policy framings: indeed, nearly half of those without stock prefer raising everyone’s taxes (including their own) to taxing unsold stock gains. But the flip side is that there is surprisingly strong support for taxing gains on assets at sale or transfer, including at death, in areas where current law never taxes those gains.

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Wage Enslavement: How The Tax System Holds Back Historically Disadvantaged Groups Of Americans

Goldburn Maynard Jr. (Indiana University, Kelley School of Business; Google Scholar) & David Gamage (Indiana University, Maurer School of Law; Google Scholar), Wage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans, 110 Ky. L.J. __ (2022):

Despite the importance placed on equality of opportunity within United States political culture, the existing tax system inhibits historically disadvantaged groups from building wealth or catching up with historically more privileged groups. This effectively then traps many members of historically disadvantaged groups into a continued cycle of dependence on tax-disfavored wage and salary income, a phenomenon that we metaphorically label as “wage enslavement.” This Article explains this phenomenon and then calls for reform.

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Brown: Stereotypes, Sexism And Superhuman Faculty

Teneille R. Brown (Utah; Google Scholar), Stereotypes, Sexism and Superhuman Faculty, 16 Fla. Int'l L. Rev. __ (2021):

This symposium article explores how law professors with caretaking responsibilities struggled so greatly during the first year of the COVID-19 pandemic. Because legal academia prioritizes masculine ideals of competence over warmth, faculty were expected to suppress their emotions and mental health needs in order to maintain the appearance of competence. While students were allowed to be seen as vulnerable individuals needing accommodations, we did not extend this same compassion to our faculty colleagues. 

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Heather Gerken Reappointed Dean Of Yale Law School For Another 5-Year Term

Office of the President, Announcement — Reappointment of Dean Heather Gerken:

Dear Members of the Yale Law School Community,
I am very pleased to announce the reappointment of Heather Gerken, Sol & Lillian Goldman Professor of Law, as dean of Yale Law School for a second term of five years, effective July 1, 2022, pending approval from the Yale board of trustees.

This renewal recognizes Dean Gerken’s tireless efforts to strengthen the school’s tradition of academic excellence, ensure a rigorous intellectual environment by supporting faculty scholarship, and expand experiential learning opportunities for students. Among her many contributions, she launched a transformative program to educate the next generation of scholars and leaders, diversified the faculty and student body, and stewarded robust philanthropic support to enhance the institution’s educational experience and need-based financial aid programs. In addition, over the past two years, Dean Gerken has worked with faculty, staff, students, and alumni to make sure the Law School community can continue to thrive while navigating the pandemic.

During Dean Gerken’s first term, the Law School has admitted the five most diverse classes in its history with some of the highest yields ever, welcoming talented students from around the world with a strong record of academic performance and exceptional accomplishments. She has also helped nearly triple the number of veterans attending Yale Law School by expanding the Yellow Ribbon Program and worked diligently to provide financial, professional, and mentoring support for the many students who are the first in their families to attend college or graduate school. Dean Gerken has been steadfastly committed to increasing faculty diversity and excellence as well, including partnering with other parts of campus to bring in extraordinary scholars.

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Pepperdine Caruso Law Seeks To Hire A Faculty Fellow

For anyone interested in becoming a tenure-track law professor, I hope you will consider our new Pepperdine Caruso Law Fellowship:

The Pepperdine Caruso Law Fellowship is designed to assist attorneys with backgrounds that are historically underrepresented in the legal academy to pursue a full-time legal academic tenure-track career. The fellowship is a two-year appointment that will provide such attorneys with the time and resources to obtain the skills needed to successfully transition to a tenure-track legal academic position.

Fellows will have ample time to pursue scholarly projects. They will be fully integrated into the faculty community and will be invited to attend and actively participate in all faculty presentations and workshops. Fellows will also have the opportunity to present a paper to the faculty and receive feedback in preparation for the entry-level job market. Fellows will also receive financial support for their scholarship including access to research assistants as well as funds to travel to and attend conferences. This is a full-time position, and Fellows will be expected to be in full-time residence at Pepperdine Caruso Law during the academic year.

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University Of Mississippi Seeks To Hire A Tax Visitor

University of Mississippi Seeks Visiting Professor in Taxation:

The University of Mississippi School of Law invites applications and nominations for a visiting professor during the 2022-2023 academic year. Depending on the courses that are being taught, we are flexible as to one semester (fall or spring) or full academic-year visitorships. Appointments will be at the rank of assistant, associate, or full professor depending on experience.

We are looking for a candidate to teach two tax or tax related courses per semester.

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Penn Law Dean Starts Process That Could Lead To Sanctions On Professor Amy Wax

Following up Saturday's post, Debate Intensifies Over Potential Discipline For Penn Law Prof Amy Wax:  Philadelphia Inquirer, Penn Law Dean Starts Process That Could Lead to Sanctions on Professor Amy Wax:

The University of Pennsylvania’s law school dean Tuesday announced he would initiate a process that could lead to sanctions against long-time law professor Amy Wax for her racist comments.

In a noon email to the law school community, Dean Ted Ruger said he would invoke a faculty review, which must occur before any action, major or minor, could be taken. The process spelled out in Penn’s faculty handbook covers the issuing of minor sanctions such as a letter of reprimand, or convening a faculty hearing board to review charges for major sanctions such as suspension or termination of employment.

January 18 Statement About Actions Regarding Amy Wax:

Dear Law School students, faculty, and staff,
Since at least 2017, and most recently again two weeks ago, Professor Amy Wax has repeatedly made derogatory public statements about the characteristics, attitudes, and abilities of a majority of those who study, teach, and work here. In some of those instances, she has exploited her faculty access to confidential information about students in ostensible support of her inaccurate statements.

Her conduct has generated multiple complaints from members of our community citing the impact of pervasive and recurring vitriol and promotion of white supremacy as cumulative and increasing. The complaints assert that it is impossible for students to take classes from her without a reasonable belief that they are being treated with discriminatory animus. These complaints clearly call for a process that can fairly consider claims, for example, that her conduct is having an adverse and discernable impact on her teaching and classroom activities.

Taking her public behavior, prior complaints, and more recent complaints together, I have decided it is my responsibility as Dean to initiate the University procedure governing sanctions taken against a faculty member. As I have already discussed with Faculty Senate leadership, I am aggregating the complaints received to date, together with other information available to me, and will serve as the named complainant for these matters. This process is necessarily thorough and deliberate, but using it allows consideration of the range of minor and major sanctions permissible under the University’s rules.

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Low Income Taxpayer Clinic Support Center

Nina Olson (Center for Taxpayer Rights), It’s (A)Live! LITC Connect Is Up And Running (Sort Of!):

After nine months of gestation, the Center for Taxpayer Rights has a new offspring … the LITC Support Center.  Today, the Support Center’s website is live, including the “dating app” for LITCs and prospective volunteers, LITC Connect.  Yay!  And a huge sigh of relief.

To recap:  since the days when I was the executive director of The Community Tax Law Project, it’s been clear the Low Income Taxpayer Clinic community, including its volunteers, have needed a resource center to provide technical support, litigation strategy, research, and systemic advocacy.  The Center started providing this support throughout the pandemic, hosting weekly Litigation Strategy calls with LITCs, assisting in several of the Economic Impact Payment lawsuits, and submitting amicus briefs on issues affecting low income taxpayers, as discussed here and here and here.

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Layser: Financing Affordable Housing Through Opportunity Funds

Michelle D. Layser (Illinois; Google Scholar), Financing Affordable Housing Through Opportunity Funds, 19 Pitt. Tax Rev. __ (2022):

This Essay considers how the Opportunity Zones law could be amended to promote affordable housing development, and it evaluates whether policymakers should adopt such amendments. This Essay identifies several legal and practical barriers to the use of Opportunity Funds to finance affordable housing development, including through twinning with the LIHTC. These barriers include: substantial improvement rules that present barriers to affordable housing rehabilitation; basis rules that present barriers to new construction deals with low debt-to-equity ratios; strict timing rules that may not align with the realities of affordable housing construction; limits on nonqualified financial property holdings that may foreclose common affordable housing development structures; and differences in the identity and motivations of the investors who typically participate in Opportunity Zones deals versus LIHTC deals.

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Woolhandler: Public Rights And Taxation

Following up on my previous post on Nicholas R. Parrillo (Yale), A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021):  Ann Woolhandler (Virginia; Google Scholar), Public Rights and Taxation: A Brief Response to Professor Parrillo:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared [Nondelegation at the Founding], particularly arguing that Congress itself addressed the important issues as to the 1798 tax. 

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Pressure Builds To Remove John Marshall From Cleveland State Law School's Name

Following up on my previous post, Cleveland State Law School Seeks Comments On Removing Chief Justice John Marshall From Its Name:

Cleveland.com, Pressure Building to Change Name of CSU’s Cleveland-Marshall College of Law Because Namesake Owned Slaves:

Pressure is mounting to change the name of Cleveland State University’s Cleveland-Marshall College of Law because of its namesake’s association with slavery. ...

[A] group of Cleveland-Marshall law students is pressing the Board of Trustees into action, as they become increasingly frustrated by what they see as the university dragging its feet on an obvious decision. At the same time, City Councilman Kevin Conwell on Monday introduced legislation urging for the name change. ...

A year and a half ago, the college and Dean Lee Fisher assembled a committee to weigh the pros and cons of a name change. The committee has since held six forums and issued a 46-page “framing document.” A survey seeking students’ opinions is underway. ...

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Legal Ed News

• ABA Journal, As Law Schools Admit More Students, Will There Be Enough Jobs?
• ABA Journal, Institute For Well-Being in Law Will Host First Virtual Conference Later This Month
• ABA Journal, The 2021 Class of Summer Associates Was 'Most Diverse Ever Measured in Every Way,' New NALP Report Says
• ABA Journal, While NCBE Sticks With In-Person February Bar Exam, One State Supreme Court Greenlights Planning for Future Alternatives
• Above the Law, The Legal Mentor Network Launches With The Goal Of Helping Both Mentors And Mentees Grow Professionally
• Above the Law, Salty Law School Dean Surprised Religious Discrimination Not Given The Ok
• Above the Law, School Daze
• Above the Law, State Takes Huge Step Toward Eliminating Bar Exam Requirement
• Law.com, 'The Biggest Mistake Is Being Under-Inclusive': Perception Affects How Part-Time Law Students Are Treated
• Derek Muller (Iowa), Non-LSAT Standardized Test Scores in Admissions Remain Concentrated at a Handful of Schools
• Derek Muller (Iowa), Which Law Schools Have Grown and Shrunk the Most Since 2015?

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Students May Have Legal Claims Against Universities (And Law Schools) That Shift Online Due To Omicron

Wall Street Journal Op-Ed:  Students Have Legal Recourse Against Unreasonable Covid Restrictions, by Max Schanzenbach (Northwestern; Google Scholar) & Nadav Shoked (Northwestern):

Many colleges and universities are starting the new semester online and imposing draconian restrictions on campus. At Yale, students are under a campuswide quarantine and told not to eat at restaurants, even outdoors. At Princeton, officials have banned undergraduates from traveling outside the area for “personal reasons”—thus conveniently permitting travel for athletic teams. In contrast, the personal lives of faculty, staff and administrators continue uninterrupted. Apparently Covid is a threat only to the young who can easily be bullied into submission.

The move to online learning and other intrusive policies goes beyond what any state or federal health agency is recommending, let alone requiring. The Biden administration opposes school shutdowns. Yet universities still are cautioning that online learning may be extended.

But students may have legal recourse. The university-student legal relationship is grounded in contract. Under contract-law principles, universities probably have the power to impose some health restrictions as circumstances arise. But any imposition must be done in good faith and based on evidence, not on the desire of a panicky provost’s office to “do something.” What harms are caused by students socializing, given the minuscule risk Covid presents to vaccinated 20-somethings? And why not apply these rules to higher-risk faculty and staff? ...

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Lesson From The Tax Court: The Tacit Consent Rule

Every marriage requires trust.  In my own marriage my DW trusts me to handle our finances.  I’m sort of the CFO of our marriage.  As part of my duties I prepare our taxes.  I try to explain them to my DW before I file, but more often than not she just waves me away with a smile, saying “I trust you.”  Back in the day when we filed paper returns I at least was able to ensure she signed the returns.  But now that we file electronically, I just make a few clicks and, boom!, it’s filed.

I have sometimes questioned whether we are really filing a joint return when it’s only me doing all the clicking for the electronic submission.  When one files electronically there is nothing analogous to an actual signature to show that both spouses have even seen, much less approved, of what is submitted.  You just need to create two 5-digit numbers, one for each spouse. Tax return preparers at least get to secure a wet signature on Form 8879 to show both spouses consented to the return preparer submitting the electronic return.  I got nothing like that.  Just a smile and a “I trust you.”

Today’s lesson answers my question.  In Om P. Soni and Anjali Soni v. Commissioner, T.C. Memo. 2021-137 (Dec. 1, 2021) (Judge Copeland), we learn that a spouse can tacitly consent to a joint return even when the spouse does not actually sign the return and even when someone else forges the spouse’s signature!  Whether there is tacit consent depends on the facts and circumstances of the filing.  And perhaps the most important factor is a history of one spouse’s trust in the other.  Details below the fold.

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Death Of Art Cockfield (Queen's)

Mark Walters (Dean, Queen’s University Faculty of Law), In Memoriam - Arthur Cockfield:

I am writing with some extremely difficult news. Our colleague and our friend Art Cockfield passed away suddenly on Sunday, January 9, arising from an unsuspected heart condition.

This is very hard and shocking news for all of us.  Our thoughts turn to his family. We will all wish to convey our deepest condolences and sympathies to them during this difficult time.

For the many, many graduates of our law school who had the great fortune to learn law from Professor Cockfield, and for Art’s former classmates, this news will be very difficult to understand and process.

Art was a mainstay of our law school. Art studied business at Western University, obtained his law degree from Queen’s in 1993, and completed doctoral studies in law at Stanford University. He returned to Queen’s as a faculty member in 2001. He was a Full Professor and the Associate Dean of Academic Policy. Art was one of the world’s leading tax law scholars. His work on comparative and international tax law was truly innovative and extremely influential. He was a loyal and dedicated teacher who cared deeply for his students. Art was cherished as a mentor and a friend to so many of us.

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TaxProf Blog Holiday Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Deaning And Tsunamis
• Debate Intensifies Over Potential Discipline For Penn Law Prof Amy Wax
• IRS Targets Your Side Hustle In Crackdown On Transactions Over $600
• Death Of Chris Frost (Kentucky)

Sunday:

• Penn Prof: Firing Amy Wax Could Open Door To Censorship Of Faculty Teaching Critical Race Theory
• 2021 Religious Law School Rankings
• Bob Jones, Critical Race Theory, And Democracy
• The Top Five New Tax Papers

Martin Luther King Jr. Day:

• Celebrating Progress With A 'Long, Long Way to Go'
• Martin Luther King Jr.'s Tax Perjury Trial
• MLK's Legacy: Push Past Tweetable Quotes To True Christlike Love
• National Taxpayer Advocate Delivers 2021 Annual Report To Congress

Celebrating Progress With A 'Long, Long Way to Go'

TaxProf Blog op-ed:  Celebrating Progress with a “Long, Long Way to Go,” by Chalak Richards (Pepperdine):

This Martin Luther King, Jr. Day, I find myself turning to a speech he made in 1957. In A Realistic Look at the Question of Progress in the Area of Race Relations, Dr. King challenged attendees of the St. Louis Freedom Rally to take a realistic look at progress. Words from this speech inspired the Diversity and Belonging theme for this year — a community of peacemakers — and those words are where I turn now.

I believe that this MLK Day finds Pepperdine Caruso Law in a similar position to the group in St. Louis. We, too, have come “a long, long way” on progress for diversity, inclusion, and belonging. We have taken great strides to create a place where all members of our community know that they belong. Much of this progress has come from students, faculty, staff, and alumni who worked for years to “walk in dignity.” You have chosen to lead open conversations, provide pro bono and low bono legal services, donate significant funds for scholarship support, bring speakers to the school, and love and pray for each other.

Because we are a community that cares, the temptation for us at Caruso Law is to become “victims of an optimism which makes for deadening complacency and stagnant passivity.” It would be very easy for us to look at all of the progress we have made and determine that we are good enough. While we can and must celebrate our accomplishments, we must also continue to recognize and address the needs of our marginalized and historically underserved communities.

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Martin Luther King Jr.'s Tax Perjury Trial

Tax Chats: Martin Luther King Jr.'s Tax Perjury Trial: A Conversation With Edgar Dyer:

Martin Luther King Jr. is the only person to have ever been tried for perjury with regards to state income taxes in Alabama. Jeff and Scott interview Edgar Dyer about the tax perjury trial of Martin Luther King Jr. in 1960. Eddie wrote an article entitled A Triumph of Justice in Alabama: The 1960 Perjury Trial of Martin Luther King, Jr., 88. J. Afr. Am. Hist. 245 (2003).

Fred Grey, Martin Luther King's attorney, said of the trial, "No one would have predicted that an all-white jury in Montgomery, Alabama, the Cradle of the Confederacy, in May 1960, in the middle of all the sit-ins and all of the racial tension that was going on, would exonerate Martin Luther King, Jr. But it really happened." Correta Scott King said of the trial, "A southern jury of twelve white men had acquitted Martin. It was a triumph of justice, a miracle that restored your faith in human good." Dr. King said it was a "turning point" in his life. Tune in to hear about this triumphal tax trial, which was a turning point for Martin Luther King.

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MLK's Legacy: Push Past Tweetable Quotes To True Christlike Love

Christianity Today op-ed:  It’s Not Enough to Preach Racial Justice. We Have to Champion Policy Change., by Esau McCaulley (Wheaton; author, Reading While Black: African American Biblical Interpretation as an Exercise in Hope (2020)):

The legacy of Martin Luther King Jr. reminds us to push past tweetable quotes and big talk to true Christlike love.

For a black boy growing up in Alabama trying to make sense of himself in a hostile world, Martin Luther King Jr. was my hero. Alongside a startingly pale Jesus, a picture of Martin hung beside photographs of my family. I knew Martin by sight. I could recognize the tenor of his voice.

The mental architecture of my young black imagination was formed by grainy videos of mass church meetings and marches and by the hymns and spirituals that threatened to shake the United States to its foundations. I knew about Selma, Birmingham, and Montgomery before I could find them on a map of my state. I do not remember not remembering Martin.

By contrast, the King that I see online on Martin Luther King Jr. Day is a stranger to me. This beloved figure is in part the construction of a society that never fully loved him or the cause he represented. King died an unpopular man. In 1968, the year of his death, 75 percent of Americans disapproved of his views and activities. That was up from 50 percent in 1963.

Today, his approval rating nears 90 percent. Some might suggest that with hindsight, Americans have come to appreciate King in a way that was impossible during the racist era in which he lived. But things are not that simple. If social media is any indication, a large portion of America still hasn’t wrestled with the King of 1968. ...

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National Taxpayer Advocate Delivers 2021 Annual Report To Congress

IR-2022-11 (Jan. 12, 2022), National Taxpayer Advocate Delivers Annual Report to Congress; Focuses on Taxpayer Impact of Processing and Refund Delays:

National Taxpayer Advocate Erin M. Collins today released her 2021 Annual Report to Congress, calling calendar year 2021 "the most challenging year taxpayers and tax professionals have ever experienced." The report says tens of millions of taxpayers experienced delays in the processing of their returns, and with 77 percent of individual taxpayers receiving refunds, "processing delays translated directly into refund delays."

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Penn Prof: Firing Amy Wax Could Open Door To Censorship Of Faculty Teaching Critical Race Theory

Following up on yesterday's post, Debate Intensifies Over Potential Discipline For Penn Law Prof Amy Wax:  Philadelphia Inquirer, Penn Law Professor Amy Wax Enraged People With Her Comments About Asians. Now, She May Face Sanction.:

But some academics who ardently despise Wax’s comments say they would rather she retains the right to say them than allow her to be fired. ...

University of Pennsylvania law professor Amy Wax over the last five years has repeatedly enraged students with her racist comments, first calling into question the academic ability of Black students and most recently saying the country would be better off with fewer Asians and less Asian immigration.

While Penn has condemned her speech and in 2018 removed her from teaching mandatory courses, she has kept her job and the prestige of working for an Ivy League university.

But that may be about to change.

Ted Ruger, dean of Penn’s law school, said Friday he is “actively considering” invoking a faculty senate review process that could lead to sanctions against the 68-year-old tenured professor, who has worked at Penn for two decades. ...

[S]ome academics who ardently despise Wax’s comments say they would rather she retains the right to say them than allow her to be fired. Removing her could open the door to censorship for professors who espouse views opposed by conservatives, such as critical race theory.

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2021 Religious Law School Rankings

The Most Devout Law Schools, preLaw (Winter 2021):

Every two years, preLaw magazine spotlights the country’s Most Devout Law Schools [2019 ranking here]. ... Forty-six law schools in the U.S. have ties to faith. ... 28 law schools ... are associated with the Catholic religion. Many others are rooted to other Christian faiths, and two are Jewish institutions — Benjamin N. Cardozo School of Law at Yeshiva University in New York City and Touro College Jacob D. Fuchsberg Law Center in Central Islip, N.Y.

METHODOLOGY
preLaw magazine bases its Most Devout honor roll on information gathered from law schools and other sources, including: percentage and activity of students and faculty who belong to the faith; number of religion-focused courses and other ways the school incorporates faith into its curriculum; religion-related journals, centers and clinics; religious services and clergy at the law school; and mission of the law school.

Most Devout Catholic Law Schools:

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Bob Jones, Critical Race Theory, And Democracy

Lynn Lu (CUNY; Google Scholar), Who’s Afraid of Bob Jones?: “Fundamental National Public Policy” and Critical Race Theory in a Delicate Democracy, 25 CUNY L. Rev. ___ (2022):

In Summer of 2021, Republican legislators across the United States introduced a host of bills to prohibit government funding for schools or agencies that teach critical race theory (“CRT”), described by the American Association of Law Schools not as a single doctrine but a set of “frameworks” to “explain and illustrate how structural racism produces racial inequity within our social, economic, political, legal, and educational systems[,] even absent individual racist intent.” Characterizing such an explicitly race-conscious analysis of legal and social institutions as “divisive,” opponents of CRT, such as former Vice President Mike Pence, labeled it “nothing short of state-sponsored and state-sanctioned racism.”

The political campaign to “Stop CRT,” as articulated by strategist Christopher Rufo, seeks to redirect the time-honored civil-rights strategy of defunding racially discriminatory social institutions for use against race-conscious efforts to remedy the ongoing disparate racial, economic, and other social effects perpetuated by the same institutions. The movement to Stop CRT thus seeks to freeze civil rights progress where it stood decades ago, as when the Supreme Court acknowledged a “fundamental national public policy” against racial segregation in its 1983 decision in the notorious case of Bob Jones University v. United States, while leaving unresolved vital questions about whether and how to allocate public resources affirmatively to foster diversity, equity, inclusion, and accessibility in democratic society.

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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 joining the list at #5 and some reshuffling of the order within the Top 5:

1. [299 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
2. [194 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
3. [193 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
4. [187 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)
5. [123 Downloads]  2020 Developments in Connecticut Estate and Probate Law, by Jeffrey Cooper (Quinnipiac; Google Scholar), John Ivimey (Reid & Riege, Hartford) & Katherine Mulry (Reid & Riege, Hartford)

This Week's Ten Most Popular TaxProf Blog Posts

1. Paul Caron (Dean, Pepperdine), The 50 Most Downloaded U.S. Law Professors Of 2021
2. John Wilson (Academe Blog), In Defense Of The Emory Law Journal
3. Paul Horwitz (Alabama) & Andrew Koppelman (Northwestern), More Commentary On The Emory Law Journal/Larry Alexander Controversy
4. Paul Caron (Dean, Pepperdine), Halfway Through The Fall 2022 Law School Admissions Season: Applicants Are Down 5.4% And In All LSAT Bands (Especially 170-180 (-14.8%) And 160-169 (-9.2%))
5. Paul Caron (Dean, Pepperdine), 2022 Princeton Review Law School Rankings: Overall Ranking
6. Paul Caron (Dean, Pepperdine), 2022 Princeton Review Law School Rankings: Professors (Teaching)
7. Paul Caron (Dean, Pepperdine), 2022 Princeton Review Law School Rankings: Professors (Accessibility)
8. Robert Kuehn (Washington University), Shifting Law School Faculty Demographics
9. David Bernstein (George Mason), The ABA's Problematic Proposed 'Diversity, Equity, And Inclusion' Rules For Law Schools
10. Paul Caron (Dean, Pepperdine), The 50 Most Downloaded U.S. Tax Law Professors Of 2021

Deaning And Tsunamis

It has been quite a ride as dean: bones broken by a student, getting tossed out of the U.S. News rankings for self-reporting a data entry error, mass shooting, cataclysmic fire, detached retinas in both eyes, global pandemic, and, this morning, my first tsunami warning:

1.14.2022: (correction on date) Large volcanic eruption near Tonga (Hunga Tonga-Hunga Ha'apai volcano) today as seen from outer space. Shown on visible imagery using the Himawari satellite. #hiwx #tsunami #earthquake pic.twitter.com/Y18W7wvXl9

— NWSHonolulu (@NWSHonolulu) January 15, 2022

Debate Intensifies Over Potential Discipline For Penn Law Prof Amy Wax

Update:  Penn Prof: Firing Amy Wax Could Open Door To Censorship Of Faculty Teaching Critical Race Theory

Following up on my previous post, Penn Law Dean Ruger Responds To Comments Made By Professor Wax:  Law.com, Debate Intensifies Over Potential Discipline for Penn Law Professor Amy Wax

• ABA Journal, Law Prof's Remarks About 'Asian Elite' Put Her Back at Center of Controversy
• Daily Pennsylvanian, Penn Law Professor Amy Wax’s Anti-Asian Comments Spark National Scrutiny
• Foundation for Individual Rights in Education, By Pressuring Penn, Philadelphia City Council Threatens Faculty Speech Rights
• Law.com, Law Schools Often Have Little Recourse When Tenured Faculty Become PR Headaches:
• Brian Leiter (Chicago), Political Pressure Is Mounting on Penn to Fire Amy Wax
• Philadelphia Inquirer, Lawmakers Call For Penn to Revoke Professor’s Tenure After Racist Comments: ‘We Do Not Stand For Hate Speech’
• Philadelphia Inquirer, Penn Law Professor Amy Wax Enraged People With Her Comments About Asians. Now, She May Face Sanction.
• Mike Spivey, What Should Penn Law Do About Professor Amy Wax?

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IRS Targets Your Side Hustle In Crackdown On Transactions Over $600

Bloomberg, IRS Targets Your Side Hustle In Crackdown on Transactions Over $600:

It just got harder to hide from the IRS.

Starting this month, users selling goods and services through such popular sites as Venmo, Etsy and Airbnb will begin receiving tax forms if they take a payment of more than $600. One by one in recent months, tech giants have been warning users of the coming changes and asking them to provide tax information.

“Until this year, the threshold was much higher ($20,000 and 200 transactions) so it didn’t affect nearly as many people,” Venmo told users in its messages about the change. “This requirement only pertains to payments received for sales of goods and services and does not apply to friends and family payments.”

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Death Of Chris Frost (Kentucky)

Jennifer Bird-Pollan (Tax Prof & Associate Dean, Kentucky; Google Scholar) & Christopher Bradley (Bankruptcy Prof, Kentucky; Google Scholar), Law Faculty Remember Professor Chris Frost:

Institutions come to be defined by the individuals who represent them at their very best. Our friend and colleague Christopher Wayne Frost was a defining part of the University of Kentucky Rosenberg College of Law.  As a graduate of the school (first in his class) and as a member of the faculty for the past twenty-four years, Professor Frost was one of the legends of the law school--part of the soul of the place.

A few remarkably talented teachers can strike fear in the hearts of their students, demanding the very best and accepting nothing less, while remaining beloved.  Chris’s reputation preceded him, and students trembled in anticipation of being “Frosted”-- called on to explain a case or a concept in class.  But his high expectations generated a loyal following of students who’d enroll in whatever class he offered, and many UK Law graduates credit Chris’s teaching with their career trajectories and their ultimate success.  Alums of the law school knew they could always rely on him, and former students regularly connected to share their successes and their failures and to seek the advice of their beloved mentor.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Infanti's Tax And Time: On The Use And Misuse Of Legal Imagination

This week David Elkins (Netanya, visiting NYU 2021-2022; Google Scholar) reviews a new paper by Anthony C. Infanti (Pittsburgh; Google Scholar), Tax and Time: On the Use and Misuse of Legal Imagination (NYU Press 2022). 

Time is one of the more perplexing phenomena of the universe. Astrophysicists distinguish between what they call “real time” (time as we experience it, as a series of continuous moments moving from the past to the future) and “imaginary time” (time as viewed from outside the time-space continuum, as a unitary whole with past, present, and future existing simultaneously). However, lest we misinterpret the terms, real time is not more real than imaginary time, and imaginary time is not more imaginary than real time. The terms “real” and “imaginary” simply refer to the real and imaginary axes in Cartesian complex number coordinates. In fact, in ordinary language, it is probably more accurate to describe imaginary time as “real” (an objective portrayal of the universe) and real time as “imaginary” (our psychological perception of the flow of time). One example of the complexities that arise in this field is the conundrum of the arrow of time: Why do we remember the past, but not the future? Why do we experience time as always flowing in one direction? The arrow of time has intrigued philosophers also. Why is the knowledge that I am to experience future pleasure preferable to the knowledge that I experienced past pleasure? Why is knowledge that I am to experience future pain more disconcerting than the knowledge than I experienced pain in the past?

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Tax Policy In The Biden Administration

• Forbes, President Biden’s Tax & Antitrust Philosophy Is At War With His National Security Strategy
• The Guardian, As Things Fall Apart, the Super Rich Spend $2m on Whisky. We Need a Wealth Tax
• The Hill, SALT Change on Ice in the Senate
• Institute on Taxation and Economic Policy, Investing in a Joint Future: Harnessing State Tax Codes
• Institute on Taxation and Economic Policy, School’s In: Tackling College Affordability Through State Tax Codes
• Institute on Taxation and Economic Policy, Short-Sighted Tax Cuts for the Rich Will Not Grow State Economies

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Weekly Legal Education Roundup

• Renee Nicole Allen (St. John's), From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy
• Arkansas Democrat-Gazette, Professor Affirmed
• David Bernstein (George Mason), The ABA's Problematic Proposed 'Diversity, Equity, And Inclusion' Rules For Law Schools
• Paul Caron (Dean, Pepperdine), The 50 Most Downloaded U.S. Law Professors Of 2021
• Paul Caron (Dean, Pepperdine), The 50 Most Downloaded U.S. Tax Law Professors Of 2021
• Paul Caron (Dean, Pepperdine), Halfway Through The Fall 2022 Law School Admissions Season: Applicants Are Down 5.4% And In All LSAT Bands (Especially 170-180 (-14.8%) And 160-169 (-9.2%))
• Paul Caron (Dean, Pepperdine), 2022 Princeton Review Law School Rankings:    
• Academic Experience
• Admissions Selectivity
• Career Rating,
• Professors: Accessibility
• Professors: Teaching
• Professors: Accessibility and Teaching
• Overall

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Next Week’s Tax Workshops

Wednesday, January 19: Ed Fox (Michigan; Google Scholar) will present The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule (with Zachary Liscow (Yale; Google Scholar)) as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Robert Lines. 

Thursday, January 20: Georg Kofler (Vienna; Google Scholar) will present The Shielding Effect of EU Secondary Law as part of the OMG Transatlantic Tax Talks. This event does not require registration.

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2022 Princeton Review Law School Rankings: Overall Ranking

I previously blogged the lists of the Top 5 law schools in fourteen categories in the 2022 edition of the Princeton Review's Best Law Schools. In a series of posts, I highlighted the Top 50 schools in the five categories for which the Princeton Review provides individual law school data:

• Admissions Selectivity
• Academic Experience
• Professors: Teaching
• Professors: Accessibility
• Career Rating

Yesterday, I blogged the Top 50 law school professor rankings, giving equal weight (50%) to the Professors: Teaching and Professors: Accessibility rankings.

Today, in my concluding post, I blog the Princeton Review's overall law school rankings, giving equal weight (20%) to each of the Admissions Selectivity, Academic Experience, Professors: Teaching, Professors: Accessibility, and Career Rating rankings:

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Americans For Tax Fairness Seeks To Hire A Tax Research & Policy Associate

Americans For Tax Fairness is seeking to hire a Tax Research & Policy Associate:

POSITION SUMMARY
Americans for Tax Fairness, a coalition of national and state endorsing organizations active on high-profile federal tax reform issues, is seeking a Research & Policy Associate to provide support for research, policy and communications work and perform administrative duties. This is a full-time non-exempt position that provides a competitive salary and benefits. The Research & Policy Associate reports to the Executive Director. The salary range is $45,000 to $60,000 depending on experience. A competitive benefits package includes employer-paid health, dental, and vision insurance, 3% employer match on 401k contributions, pre-tax transportation benefits, and paid holidays, vacation, sick, and volunteer time off. ATF operates as a virtual office, but there is a possibility that this may change in a year, at which time the position might be located in Washington, D.C.

ESSENTIAL DUTIES AND RESPONSIBILITIES

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Bernstein: The ABA's Problematic Proposed 'Diversity, Equity, And Inclusion' Rules For Law Schools

Following up on my previous post, ABA Proposes Changes To Diversity And Inclusion Accreditation Standard:  David Bernstein (George Mason; Google Scholar),  The American Bar Association's Problematic Proposed "Diversity, Equity, and Inclusion" Rules for Law Schools:

The American Bar Association has proposed new "Diversity, Equity, and Inclusion" rules for law schools. ... I see some serious problems with this proposed rule.

First, there is the question of how a law school is to determine that a group is "underrepresented." ... [H]ow is a law school supposed to determine whether a group identified by "religion, national origin, gender, gender identity or expression, sexual orientation, age, [or] disability" is underrepresented in the legal profession? No one gathers or keeps the statistics that would be needed. Are Armenians underrepresented? Gay men? No one knows.

Also troubling: on the religion front, while no one keeps official statistics, we do know that Jews are substantially "overrepresented" among law school faculty.

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Realization's Vexations: Taxing Cryptocurrency Hard Forks

Arvind Sabu (Capital), Realization's Vexations: Taxing Cryptocurrency Hard Forks, 61 Jurimetrics J. 379 (2021):

A cryptocurrency hard fork seems to increase a holder’s fortunes—those who held Bitcoin, for example, nominally received an equivalent amount of Bitcoin Cash as a result of a famous hard fork. But this Article argues they should not be taxed based on the time of the fork, nor would they then be taxed under existing authorities.

Cryptocurrency hard forks represent innovative experimentation with changes to a cryptocurrency’s protocol in the rich modality of commons-based peer production—the modality responsible for Wikipedia and Linux. The tax system should not stifle this ex¬perimentation and the growth of the cryptocurrency commons by taxing hard forks based on when they occur. Relatedly, the indeterminate value of newly forked cryptocurrencies weighs against taxing hard forks based on when they occur.

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Sarkar: Tax Law's Migration

Shayak Sarkar (UC-Davis), Tax Law's Migration, 62 BC L. Rev. 2209 (2021):

Tax law has long left poor foreigners in precarity. Despite the Supreme Court striking down nineteenth-century state laws taxing migrants upon entry, the tax system has nonetheless determined who deserved a place, and what sort of place, within our borders. That tradition continues when the tax system’s emergency relief deprives otherwise needy noncitizens, giving migrants a lesser place.

This Article sheds light on this phenomenon—“tax law’s migration”—engaging two underappreciated connections between immigration and tax law.

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