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? ...

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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. ...

Continue reading

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."

Continue reading

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.

Continue reading

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:

Continue reading

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.

Continue reading

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?

Continue reading

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.”

Continue reading

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.

Continue reading

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?

Continue reading

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

Continue reading

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

Continue reading

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.

Continue reading

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:

Continue reading

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

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

Estate And Gift Tax Valuation Of Cannabis Business Interests

Jonathan G. Blattmachr (Milbank), Bridget J. Crawford (Pace; Google Scholar) & Mitchell M. Gans (Hofstra;), Estate and Gift Tax Valuation of Cannabis Business Interests, 2022 Tr. & Est. 22 (2022):

Approximately half of all American adults have used cannabis at some point in their lives. Whether or not any one estate planning professional falls into this particular demographic, it is crucial for all advisors understand the estate planning uncertainties and complexities facing owners of legal cannabis businesses. Eighteen states have legalized cannabis for adult recreational use; thirty-seven states have legalized the medicinal use of cannabis (often in conjunction with permitting adult recreational uses). Experts estimate that legal recreational sales in the United States were $18.9 billion in 2021 and that, by 2026, sales in the United States alone will reach $41.8 billion or more. As the legal cannabis industry expands, estate planners are more likely to have clients who own interests in legal cannabis businesses. After providing a brief introduction to the important federal banking and income tax limitations on cannabis businesses, this article turns to the more complex—and unpredictable—issue of how interests in legal cannabis businesses should be valued for estate and gift tax purposes.

Continue reading

Delgado: Groundhog Law

Richard Delgado (Alabama; Google Scholar), Groundhog Law, 21 J.L. Society 1 (2021):

Is law an academic discipline like chemistry, history, or English that belongs on a university campus? Rodrigo and the professor discuss an innocent question by a conference attender who wanted to know why legal knowledge never seems to advance. Rodrigo and the professor are struck by how legal scholarship fails to pass law-review muster unless each statement comes accompanied by a footnote reference to a past writer who said exactly the same thing. They ponder the ways this mindset resembles Gabriel Garcia Marquez's novel, One Hundred Years of Solitude, and the movie Groundhog Day.

Continue reading

From Academic Freedom To Cancel Culture: Silencing Black Women In The Legal Academy

Renee Nicole Allen (St. John's), From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy, 68 UCLA L. Rev. 364 (2021):

In 1988, Black women law professors formed the Northeast Corridor Collective of Black Women Law Professors, a network of Black women in the legal academy. They supported one another’s scholarship, shared personal experiences of systemic gendered racism, and helped one another navigate the law school white space. A few years later, their stories were transformed into articles that appeared in a symposium edition of the Berkeley Women’s Law Journal. Since then, Black women and women of color have published articles and books about their experiences with presumed incompetence, outsider status, and silence. The story of Black women in the legal academy has been told. And, in 2021, contemporary voices resemble voices from long ago.

Continue reading

2022 Princeton Review Law School Rankings: Professors (Teaching And Accessibility)

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 will highlight 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

Here are the Top 50 law school professor rankings, giving equal weight (50%) to the Professors: Teaching and Professors: Accessibility rankings:

Continue reading

U.S. Department Of Justice Tax Division Seeks To Hire Trial Attorneys

U.S. Department of Justice, Trial Attorney:

The Tax Division is looking for Trial Attorneys to join the Civil Trial Sections. Our attorneys have a passion for litigation; a deep interest in public service; and the ability to work both collaboratively and independently. Familiarity with tax law and the use of technology in organizing, developing, and presenting a case at trial is helpful, but not required. Attorneys in the Civil Trial Sections represent the United States in litigation in federal and state courts across the country. ...

Trial Attorneys in the Civil Trial Sections are the front-line litigators for the United States for tax disputes in federal district and bankruptcy courts and the Court of Federal Claims. These cases arise all over the United States, and, under normal conditions, significant travel is required of our attorneys for depositions, hearings, and trials. Most Trial Attorneys are responsible for a range of cases, including matters they handle alone and others where they work as a member of a litigation team. In either situation, our attorneys have front-line responsibility for taking and defending depositions, writing and arguing motions, working with fact and expert witnesses, and trying cases.

USA Jobs, Trial Attorney, Department of Justice:

Open & closing dates:  01/07/2022 to 02/07/2022
Salary $89,834 - $176,300 per year
Pay scale & grade GS 12 - 15 

More Commentary On The Emory Law Journal/Larry Alexander Controversy

Following up on my previous posts:

• Emory Law Journal Revokes Acceptance Of Larry Alexander's Race-Related Essay In Festschrift Honoring Michael Perry; Other Authors Pull Their Essays (Jan. 4, 2021)
• In Defense Of The Emory Law Journal (Jan. 11, 2022)

Chronicle of Higher Education op-ed:  Scandalous Suppression at a Law Review, by Andrew Koppelman (Northwestern):

It is now notorious that the Emory Law Journal commissioned and then tried to censor, as “hurtful and unnecessarily divisive,” an article that denied the existence of systemic racism. When the author refused to bowdlerize his piece, the journal rejected it. Two other contributors to the same issue of the journal withdrew their articles in protest. This has been portrayed as a familiar left/right fight, except for one detail: One of the authors who withdrew is on the left. Some have been asking, Who is that guy, and what was he thinking?

I’m that guy. I am urgently concerned about systemic racism, which I have written about extensively, but I withdrew to protest the illiberalism that has these student editors in its grip. That illiberalism is bad for the university and bad for racial equality. It reflects an increasingly influential conception of racial equality that is indifferent to the welfare of the people it purports to help. This isn’t a left/right thing. ...

I learned about all of this when Steven Smith, another invited participant, informed me that he was withdrawing his own piece in protest. I then read Alexander’s article. (Disclosure: Larry Alexander and I have been friendly scholarly adversaries for years.) I immediately wrote to the editors: “Your comments make clear that you are refusing to publish it because you disagree with its political views. This is a fundamental betrayal of the mission of a scholarly journal. If you maintain your position, then I will also withdraw my article in protest … I implore you to reconsider.”

They didn’t. So I’m out.

Paul Horwitz (Alabama), Who Ultimately Runs "Student-Run" Law Reviews? Not Law Review Editors.:

Not having read Larry Alexander's article or relevant documents describing the publication offer or agreement or editing process, I am reluctant to say too much about this specific incident. As he does, Paul Caron usefully collects varied commentary here. But it is one of a few such incidents that have come up recently, with others involving the American Indian Law Review, the Washington University Law Review, and--with a slightly different set of facts--the NYU Review of Law & Social Change. (These are the ones that have drawn publicity. There may be others. And it may or may not be that case that there have been many such incidents in the past, but that the controversy-addiction-feeding aspects of social media, and users of social media, have given these incidents more prominence than would previously have been the case.) 

Continue reading

NY Times: The IRS Is Warning Of A Messy Tax Season

New York Times, The I.R.S. Is Warning of a Messy Tax Season:

The federal tax filing season will run from Jan. 24 to April 18 this year, the Internal Revenue Service said on Monday, warning in its announcement that staffing shortages and paperwork backlogs could make for a messy and frustrating experience for taxpayers.

In a briefing on Monday, Treasury Department officials said that the I.R.S. would struggle to promptly answer telephone calls from taxpayers with questions and that a lower level of service should be expected. They blamed Republican legislators, who have blocked efforts to increase funding at the agency, for the lack of resources.

Continue reading

De Cogan Presents The Unaccountability Of Tax Devolution: A Case Study Of Business Rates Today At Toronto

Dominic De Cogan (Cambridge) presents The Unaccountability of Tax Devolution: A Case Study of Business Rates (with Penelope Tuck (University of Birmingham; Google Scholar)) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series hosted by Robert Lines:

This article was published in [2022] Public Law 38. It examines the accountability arguments for business rates devolution and shows them to be weak. They are undermined by the economic incoherence of the tax, the complexity of devolved powers and a lack of transparency around the use of powers. These problems resonate with a widely held belief that business rates ought to be repealed and replaced with a more carefully designed tax, especially in response to the pressures placed on the system by COVID-19. We are not hostile to these ideas but doubt the likelihood of rapid implementation, and therefore focus on the existing system, paying special regard to the COVID reliefs of 2020 and 2021. We suggest incremental improvements that could reinforce the accountability justifications for devolution; these might be useful even in the event that radical reforms are enacted.

A key justification for tax devolution is that it enhances sub-central accountability.  The meaning of ‘accountability’ in this context is not always clear, but it seems to embody two linked claims. 

Continue reading

Burke: Transfers Of Zero-Basis Intangibles To A Partnership

Karen C. Burke (Florida), Transfers of Zero-Basis Intangibles to a Partnership, 174 Tax Notes Fed. 25 (Jan. 3, 2022):

In this report, Burke examines the problem of contributed zero-basis intangibles in light of the IRS’s inadvertent disclosure of a transaction structured by Bristol-Myers Squibb to shift billions of dollars of built-in gain to a related foreign partner.

Continue reading

Clinical Fellowships, Faculty Hiring, And Community Values

G.S. Hans (Vanderbilt), Clinical Fellowships, Faculty Hiring, and Community Values, 27 Clinical L. Rev. 253 (2021):

This Essay explores clinical hiring practices as an expression of community values. In particular, it discusses how lawyers become clinical faculty to reflect on whether and how prior clinical teaching experience should be assessed for entry-level clinical applicants in order to effectuate equity and inclusion within law schools and the clinical community. Publicly available data suggest that a majority of recent entry-level clinical faculty have prior clinical teaching experience as fellows or staff attorneys. What does this apparent hiring pref- erence for prior teaching experience mean for the composition of the clinical community, especially with respect to equity and inclusion? 

Continue reading

University Of Louisville Threatens To Discipline Faculty Who Don't Teach Classes In Person

Louisville Courier-Journal, University of Louisville Threatens to Discipline Faculty Who Don't Teach Classes in Person:

University of Louisville faculty, staff and students are in an uproar over the administration’s refusal to allow classes to be taught remotely.

As the new semester began Monday, more than 500 professors, staff, students, parents and other community members have signed a petition to allow courses to be offered online. ...

Citing a directive from Interim President Lori Stewart Gonzalez, Professor David Owens, the interim dean of arts and science, told department chairs Sunday that courses designated as in-person may not be moved online and “violations may result in discipline.”

Continue reading

2022 Princeton Review Law School Rankings: Career Rating

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 will highlight 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

Career Rating:  This rating measures the confidence students have in their school's ability to lead them to fruitful employment opportunities, as well as the school's own record of having done so. This rating takes into account both student survey responses and school-reported statistical data. We ask students about how much the law program encourages practical experience; the opportunities for externships, internships, and clerkships; and how prepared to practice law they expect to feel after graduating. We ask law schools for the median starting salaries of graduating students; the percentage employed in a job that requires bar passage (and not employed by the school); and the percentage of these students who pass the bar exam the first time they take it. This rating is on a scale of 60–99.

Continue reading

University Upholds Jewish Law Prof's Right To Have Federal Judge Guest Lecture In His Class During High Holy Days

Following up on my previous posts (links below):  Arkansas Democrat-Gazette, Professor Affirmed:

The myriad travails of late at the University of Arkansas’ Bowen School of Law were justified after a university committee found Professor Rob Steinbuch was correct in having invited guests lead his classes during the Jewish high holidays.

Using guest lecturers was something Steinbuch had legitimately done without question for nearly 20 years.

After he again used a respected Arkansas federal judge last semester to cover his class during the two highest Jewish Holy Days, Bowen Dean Theresa M. Beiner wrote to say he could no longer use such temporary fill-ins, he said.

However, a three-person university committee found Beiner apparently acted against law school rules by restricting Steinbuch’s future absentee scheduling. ...

Steinbuch said his conflict with the Beiner administration actually preceded these events, when last summer he reported that a named professorship at Bowen had been quietly and improperly labeled as the “William J. Clinton Professorship in Constitutional Law,” even though Clinton had previously withdrawn his name for the position. ...

Continue reading

Morse: A Tax Deadline Missed By One Day Leads To A Supreme Court Showdown Over Equity, Jurisdiction – And Grammar

SCOTUSblog:  A Tax Deadline Missed By One Day Leads to a Showdown Over Equity, Jurisdiction – and Grammar, by Susan C. Morse (Texas; Google Scholar):

The argument on Wednesday in Boechler v. Commissioner of Internal Revenue will consider whether “equitable tolling” — which allows courts to excuse missed deadlines in some circumstances — is available for a statutory federal income tax deadline. The issue has split circuits, with the U.S. Courts of Appeals for the 8th and 9th Circuits concluding that tolling is not available, and the U.S. Court of Appeals for the District of Columbia Circuit concluding that tolling is available for a similarly worded tax provision. The court’s consideration of this question will address an issue of particular interest for low-income taxpayers and their advocates. It will also add to the court’s precedent on the interaction between the law of equity and the technicalities of federal statutes. Partly because of the circuit split and partly because of the statute’s lack of clarity, this could be a close case.

The dispute arose after the Internal Revenue Service assessed a $19,250 penalty and issued a notice of intent to levy to a small North Dakota law firm for failing to file employee tax withholding forms. After a hearing, the IRS issued a notice of determination sustaining the proposed levy. Under the Internal Revenue Code, the firm had a 30-day window following the issuance of the notice of determination to file a petition in the U.S. Tax Court to challenge the notice. The deadline was Aug. 28, 2017. The firm mailed its petition on Aug. 29, 2017. The question for the justices is whether the Tax Court may consider equitable tolling for this deadline; or whether the deadline is jurisdictional, which, under applicable precedent, would bar consideration of equitable tolling.

Both sides center their arguments on a test set forth in the 2015 case United States v. Kwai Fun Wong, decided 5-4, which elaborated a framework established in the 1990 case Irwin v. Department of Veterans Affairs. Under the Kwai Fun Wong test, there is a rebuttable presumption of equitable tolling for suits against the government. How can the presumption be rebutted? If the statute shows that Congress “plainly” gave the time limits “jurisdictional consequences.” Time limits are then jurisdictional and not subject to equitable tolling.

In Boechler, the court has the task of categorizing a limitation period that relates to a “collection due process” procedure. ...

Continue reading

Learning Outcomes In A Flipped Law School Classroom

Katharine Traylor Schaffzin (Dean, Memphis; Google Scholar), Learning Outcomes in a Flipped Classroom: A Comparison of Civil Procedure II Test Scores Between Students in a Traditional Class & a Flipped Class, 46 U. Mem. L. Rev. 661 (2016):

By now, many legal educators have heard of a “flipped classroom,” even if they may not be familiar with its meaning. The odds are great that more and more law students have experienced a flipped classroom in high school, college, or even in law school, although they may be unfamiliar with the pedagogical term. After learning about how the flipped classroom is being adapted for the law school course, I became convinced that such an approach to teaching could benefit my students’ learning outcomes.

In January 2014, I decided to adapt my own Civil Procedure II materials to this new format. Unbeknownst to my students, I tracked the performance of this class to compare it to that of my Civil Procedure II class from the preceding year. Assigning the same readings from the same texts in both 2013 and 2014, I changed only the mode in which I delivered the material to my students. Information I had previously presented to my class in 2013 in the form of a lecture interspersed with Socratic dialogue I now provided to the 2014 class online in advance of class and indefinitely thereafter in the form of PowerPoint slides with my lecture interposed as voiceover. 

Continue reading

Appleby: Subnational Digital Services Taxation

Andrew D. Appleby (Stetson; Google Scholar), Subnational Digital Services Taxation, 81 Md. L. Rev. 1 (2021):

Existing tax regimes fail to tax digital services appropriately. Digital services based on extracting and monetizing user data—most notably digital advertising—are particularly problematic because tax regimes do not adequately account for the enormous value derived from user data.

Internationally, taxing jurisdictions have recognized these failures and commenced a controversial push toward new digital services taxes or DSTs. Subnational taxing jurisdictions in the United States face the same issues and are searching for solutions.

This Article begins by examining the motivations and justifications for digital service taxation at both the international and subnational levels. These justifications center on antiquated tax regimes that do not sufficiently capture profit from new business models, particularly business models that rely on valuable data extracted from users in the taxing jurisdiction.

 

Continue reading

Appleby: Designing The Tax Supermajority Requirement

Andrew D. Appleby (Stetson; Google Scholar), Designing the Tax Supermajority Requirement, 71 Syracuse L. Rev. 959 (2021):

States are rekindling the trend of broad constitutional amendments that require supermajority approval to create or increase taxes. This trend may inadvertently harm states’ already precarious fiscal footing, particularly with several new imminent expenditure demands. States can minimize negative economic consequences, however, through proper supermajority requirement design.

This Article makes three contributions. First, it examines broad constitutional tax supermajority requirements’ history, asserted justifications, and effectiveness. This examination concludes that the motivations underlying the first and second supermajority waves differ importantly from those underlying the possible third wave. Recognizing this novel motivation—signaling low-tax competitive advantage—allows this Article to present optimal supermajority provision design principles.

Second, this Article investigates several new sources that can generate immense tax revenue for states, but that will likely be obstructed by tax supermajority provisions if not designed properly. This Article also identifies several expenditure demands that are unlikely to be satisfied without new or increased taxes.

Continue reading

The Best Law Schools For Practical Training

The Best Law Schools For Practical Training, preLaw (Spring 2021):

Schools have managed to do incredible work, even during a pandemic when face-to-face clinical work and externship opportunities were disrupted. ... This year, we’re honoring 65 schools, but every law school invests in practical training.

PRACTICAL TRAINING METHODOLOGY
We graded schools on a number of data points, focusing on key practical training offerings such as clinics, externships, simulation courses, pro bono hours and moot trial participation.

Continue reading

Call For Tax Papers And Panels: SEALS 2022 (Jan. 19 Deadline)

Hello and Happy New Year! Jennifer and I are coordinating tax panels and discussion groups for next year’s SEALS Conference.  The 2022 SEALS Conference will be held at the Sandestin Beach & Golf Resort, Sandestin, Florida on July 27-August 3.  All the info you need to send us is below but the most important bit of info to note might be that we are on a tight timeline.

The conference submission tool is open, and Jennifer and I are eager to coordinate people who are interested in presenting tax work at the SEALS conference into relevant panel groups.  In addition, we have also had very successful Tax Policy Discussion Groups in recent years.  Panels are generally composed of 4 to 5 people speaking for 15 to 20 minutes each.  We will attempt to group papers so that panels include papers on similar topics.  The Discussion Group includes about 10 people, each speaking for 5-8 minutes on a topic related to tax policy, broadly interpreted.  This has often included topics that are not necessarily fully formed paper ideas but are thoughts the presenter has had on something he or she would like to discuss with a group of smart, informed people in an informal setting.  Both types of presentation have been very successful in the past.  Each presenter may participate in one Panel AND one Discussion Group.

So, if you are interested in submitting to SEALS and would like us to include you in a group of other tax profs, please email me with the following information:

Continue reading

In Defense Of The Emory Law Journal

Following up on last week's post, Emory Law Journal Revokes Acceptance Of Larry Alexander's Race-Related Essay In Festschrift Honoring Michael Perry; Other Authors Pull Their Essays:  John K. Wilson (Academe Blog), In Defense of the Emory Law Journal:

This week, there was what Jonathan Turley called a “major controversy brewing over free speech and censorship at Emory Law Journal.” Robert George argued, “It’s hard to think of a stupider, more self-defeating idea than imposing political litmus tests on articles submitted to major law reviews. But that’s what the Emory Law Journal has done, rejecting on ideological grounds an essay by the brilliant legal scholar Lawrence Alexander.”

George is wrong on every count. The Emory Law Journal did not reject Alexander’s essay. They did not declare any ideological grounds and in fact expressly stated that they would happily publish views that most of the editors disagreed with. There is no political litmus test that the Emory Law Journal has ever stated or hinted at. ... [R]evising an article is not destructive to academic values; it is the essence of academic values. This is standard operating procedure for any publication: If you refuse to make any changes, the editors can refuse to publish it. ...

Continue reading

2022 Princeton Review Law School Rankings: Professors (Accessibility)

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 will highlight 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

Professors: Accessible:  This rating is based on how law students rate the accessibility of law faculty members at their school. The rating is on a scale of 60 to 99. 

Continue reading

Tax Policy Center Hosts Virtual Event Today On Taxing Business Income: Evidence From The Survey Of Consumer Finances

The Tax Policy Center hosts a virtual event on Taxing Business Income: Evidence from the Survey of Consumer Finances today at 12:30 PM ET (registration):

Legislated changes in business income taxes over the past 20 years have led to a dramatic reduction in the federal income tax base and revenues. As a result, a significant share of income is never subject to tax. For example, more than half of non-corporate business income in the National Income and Product Accounts does not show up on tax returns.

On January 11, the Urban-Brookings Tax Policy Center will host an event on this divergence between economic and taxable income and its implications for tax policy. Results from new research using the Survey of Consumer Finances will be presented with an eye towards understanding which forms of income do not show up on tax forms, where in the income distribution that divergence is occurring, and the revenue implications of broadening the business income tax base.

William G. Gale, Swati Joshi, Christopher Pulliam & John Sabelhaus, Estimating Income Tax Liabilities With Data From the Survey of Consumer Finances:

Continue reading

Organ: A Data-Based Counternarrative To 'The Big Lie'

Prologue
Twelve months ago, on December 29, 2020, I posted a blog analyzing voting patterns in Congressional Districts in five of the six swing states that former President Trump lost.  The analysis demonstrated that Trump lost largely because significant numbers of voters who voted for Republican Congressional candidates in those five states did not vote for Trump.

I published that blog hoping to provide a data-based argument to put to rest some of the unfounded assertions about election fraud that have become known as “the big lie.”  Little did I think at the time, that “the big lie” would continue to be believed by a not insignificant percentage of our electorate a year later.  But several days after my blog posting, on January 6, 2021, then-President Trump, trumpeting “the big lie,” instigated some of his followers to storm the Capitol in an unsuccessful effort to stop Congressional validation of the Electoral College tally affirming President Biden as the lawfully elected President of the United States.

The former President has spent the better part of the last year refusing to recognize the validity of the November 2020 presidential election and continuing to assert “the big lie” — that the only way he could have lost the election was if there was ballot-rigging or some type of election fraud in all six of the swing states that he lost to President Biden — Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.  (But only ballot-rigging or election fraud with respect to the Presidential election.  No claims have ever been made that ballot-rigging or election fraud tarnished any of the other elections in the six swing states Trump lost on November 3, 2020.)

As indicated in my blog posting of December 29, 2020, an alternative explanation for Trump’s loss, an explanation that the former President does not or perhaps literally cannot acknowledge, is that large numbers of voters who voted for Republican Congressional candidates made a decision not to vote for him and instead to vote for President Biden or some other Presidential candidate.  Perhaps these Republican voters had finally found Trump's boorish behavior to be too much, or perhaps they were sufficiently concerned about his disregard for the rule of law, or perhaps they had concluded that he had grossly mismanaged the Covid-19 pandemic, or perhaps they had grown weary of his continuous efforts to polarize our society rather than work to bring people together, or perhaps some combination of these factors.

While I recognize that my effort to provide another data-based argument to put to rest “the big lie” is unlikely to be acknowledged by those who continue to believe “the big lie,” I feel compelled, as we recognize the first anniversary of the January 6 insurrection, to present once again a data-based counternarrative.

Continue reading

Dooling & Hickman: A Study To Evaluate OIRA Review Of Tax Regulations

Bridget C.E. Dooling (George Washington Regulatory Studies Center; Google Scholar) & Kristin E. Hickman (Minnesota; Google Scholar), A Study To Evaluate OIRA Review of Treasury Regulations:

For most federal agencies, centralized review by Office of Information and Regulatory Affairs (OIRA) and regulatory impact analysis have been a routine part of the regulatory process for more than 40 years. Not so in the tax context. When OIRA was in its infancy, OIRA Administrator Christopher DeMuth and Treasury Department General Counsel Peter Wallison signed a memorandum of agreement that exempted most Treasury and IRS tax regulations from OIRA review. More than a decade later, that memorandum of agreement was ratified by OIRA Administrator Sally Katzen and Treasury Department General Counsel Jean Hanson. Katzen has indicated since then that her understanding was that the exempted rules were minor and technical rather than sweeping and substantive. As a result of these agreements, however, very few Treasury regulations were ever submitted for OIRA review.

That changed in April 2018, when OIRA Administrator Neomi Rao and Treasury Department General Counsel Brent McIntosh signed a new memorandum of agreement (MOA) that would pull more Treasury and IRS tax regulations in for OIRA review. ...

Now that the MOA is almost four years old, ... [we] investigate how OIRA review has influenced the content of Treasury regulations implementing and interpreting the tax laws. ...

Continue reading