Paul L. Caron

Friday, June 21, 2024

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews An Originalist Analysis Of Wealth Taxes Under The Constitution By Schizer & Calabresi

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews David M. Schizer (Columbia) & Steven G. Calabresi (Northwestern), Wealth Taxes Under the Constitution: An Originalist Analysis, 28 Fla. Tax Rev. ___ (2024).


This Article delivers a timely and persuasive originalist examination of the federal wealth tax’s constitutionality, particularly relevant given the recent national and international initiatives to implement such taxes. Schizer and Calabresi lay out a detailed historical and legal examination and offer valuable insights into the Framers’ intent and the practical challenges of the legal concept of apportionment. They begin with the axiom that wealth taxes are “direct taxes” requiring apportionment among the states. This apportionment necessitates that each state’s contribution to the tax must be proportionate to its population, a requirement leading to significant practical challenges and undesirable consequences: states with a smaller share of national wealth would need to impose higher tax rates to meet their apportioned contribution. 

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June 21, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup | Permalink

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

19 State AGs Refute Effort By 21 State AGs To Eliminate ABA's Race-Based Accreditation Standard, 19 State AGs Refute Recent Effort to Remove Race-Based Criteria From Accreditation:

In response to a recent letter from 21 state attorneys general urging the American Bar Association to remove race-based criteria from its accreditation process, 19 other state AGs wrote a letter Thursday refuting what they called “baseless attacks on diversity, equity and inclusion efforts and programs.”

The letter, spearheaded by Illinois Attorney General Kwame Raoul, is not only addressed to the ABA but also to “Fortune 100 CEOs and other organizations unfairly targeted for their commitment to diversity, equity, and inclusion.”

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June 21, 2024 in Legal Ed News, Legal Education | Permalink

Zelenak: Moore Thoughts

TaxProf Blog Op-Ed:  Moore Thoughts, by Lawrence Zelenak (Duke; Google Scholar):

Zelenak (2024)In terms of its bottom line, the Supreme Court's Moore decision is no surprise to anyone who listened to (or read the transcript of) the oral argument last December. It seemed then nearly certain that the Court would uphold the mandatory repatriation tax (MRT) as a constitutionally permissible attribution to the Moores of income indisputably realized by their controlled foreign corporation, and the Court's opinion does exactly that.

There are, nevertheless, a couple of interesting surprises—at least to me—lurking in Justice Kavanaugh's majority opinion.

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June 21, 2024 in New Cases, Tax, Tax Daily, Tax News | Permalink

Transactional Skills For Tomorrow

Adam Eckart (Suffolk), Transactional Skills for Tomorrow

Transactional Skills courses have long covered the ins and outs of contract drafting. But in practice, transactional skills are much more broad and are constantly evolving. While recent developments in Artificial Intelligence have motivated many skills professors, including professors covering transactional skills, to integrate elements of AI into their teaching and curriculum, a fulsome transactional skills curriculum covers so much more: negotiation, narrative and storytelling, regulation, and oral advocacy. This article discusses the future of transactional skills in the classroom, including a updated curriculum used in the spring 2023 semester at Suffolk University Law School. 

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June 21, 2024 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Thursday, June 20, 2024

7-2 Supreme Court Upholds Mandatory Repatriation Tax In Moore

Moore v. United States, No. 22–800 (June 20, 2024):

Supreme Court (Current)The [Mandatory Repatriation Tax] —which attributes the realized and undistributed income of an American-controlled foreign corporation to the entity’s American shareholders, and then taxes the American shareholders on their portions of that income—does not exceed Congress’s constitutional authority. ...

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. JACKSON, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined.

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June 20, 2024 in New Cases, Tax, Tax Daily, Tax News | Permalink

Roger Colinvaux Receives 2024 ABA Outstanding Nonprofit Academic Award

Roger Colinvaux (Catholic University) received the 2024 Outstanding Nonprofit Academic Award from the ABA Business Law Section

Roger colinvauxThe legal nonprofit community has named the 2024 recipients of the annual “Outstanding Nonprofit Lawyer Awards.” The Nonprofit Organizations Committee of the American Bar Association, Business Law Section, recognizes accomplished and civic-minded nonprofit lawyers in the categories of Academic, Attorney, In-House Counsel, and Young Attorney. Additionally, the Committee bestows the Vanguard Award on a leading legal practitioner for his or her lifetime commitment to the nonprofit field. ...

Professor Colinvaux is a Professor of Law at the Columbus School of Law, The Catholic University of America, where he teaches courses in Federal Income Taxation, Nonprofit Organizations, Property, and Legislation. From 2001-2008 he was Legislation Counsel at the nonpartisan Joint Committee on Taxation in the U.S. Congress with responsibility for tax legislation relating to nonprofit organizations, including the charitable giving and reform provisions in the Pension Protection Act of 2006. He currently is a visiting professor at George Washington Law School.

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June 20, 2024 in Legal Ed News, Legal Education, Tax, Tax Daily, Tax News, Tax Profs | Permalink

The Case For A Federal Cybersecurity Investment Tax Credit

Kathryn Kisska-Schulze (Clemson; Google Scholar), Janine Hiller (Virginia Tech) & Scott Shackelford (Indiana; Google Scholar), Cybersecurity Carrots and Sticks, 61 Am. Bus. L.J. 5 (2024):

American Business Law Journal LogoIn an unsustainable trend, each year is touted as the worst on record for data and system breaches. 2020's dubious top distinction was exceeded across numerous metrics in 2021, and 2022's numbers set another unwanted record. The growing epidemic of ransomware, data breaches, and cyber-enabled attacks pushes policymakers and business leaders to consider what can be done to reverse the cyberinsecurity spiral. Amidst the current cybersecurity landscape fraught with regulatory gaps, dependence on self-regulation, and resource constraints of small- and medium-sized businesses, policymakers should seize opportunities to reward reasonable cybersecurity postures and disincentivize underinvestment in cybersecurity best practices. Bold and coordinated actions are needed to dislodge the unsustainable trend of increasingly damaging cyberattacks, and to create a more holistically secure digital future. To move the needle toward a more robust cybersecurity ecosystem, this article proposes an incentive-based strategy that breaks the mandateversus-self-regulation dichotomy, leveraging a carrots and sticks tax approach to spur stronger cybersecurity postures across the ecosystem. Such proposal outlines a framework for a Federal Cybersecurity Investment Tax Credit, tailored and mapped to select entity types, combined with a cyberinsecurity tax, thus promoting the principle that businesses have basic cybersecurity responsibilities and fundamental duties to operate securely in a digital society.

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June 20, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Law Schools Boost Their AI Offerings As Industry Booms

Reuters, Law Schools Boost Their AI Offerings as Industry Booms:

ABA AIA growing number of law schools are adding courses and degree programs in artificial intelligence as a way to meet employer demand and capitalize on the flourishing AI industry.

More than half of law schools now offer classes on AI, according to a recent American Bar Association survey, with the number of those courses accelerating since ChatGPT made its splashy debut in November 2022. At least two law schools are launching special degree programs focused on AI.

Besides the marketing boost that law schools can get by offering trendy AI courses and programs, they are also responding to legal employers that say they want lawyers with AI knowledge.

ABA Task Force on Law and Artificial Intelligence (AI):

In the AI and Legal Education Survey, we gathered insights from law school administrators and faculty regarding the integration of artificial intelligence (AI) into legal education. The survey was completed by 29 law school deans or faculty members between late December 2023 and mid- February 2024. A full list of questions can be found on the third page of this report.

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June 20, 2024 in Legal Ed News, Legal Education | Permalink

Roberts: A Man For His Era And For Ours—Cordell Hull, Father Of The Federal Income Tax

Tracey M. Roberts (Cumberland; Google Scholar), A Man for His Era and for Ours: Cordell Hull, Father of the Federal Income Tax, 53 Cumb. L. Rev. 41 (2022):

Hull 3An 1891 graduate of Cumberland School of Law, Cordell Hull served our country in countless ways. He worked as captain of the Fourth Regiment of the Tennessee Volunteer Infantry in the Spanish-American War, as judge for the fifth judicial circuit of Tennessee, as state representative in the Tennessee House of Representatives, as a member of the United States House of Representatives, as a member of the United States Senate, and as United States Secretary of State. President Franklin D. Roosevelt referred to him as the “Father of the United Nations.” Hull subsequently received the Nobel Peace Prize in 1945 in honor of his work to establish that body. Hull is less well known for his work to establish another important and enduring institution—the federal income tax.

In his 1948 memoir, Hull wrote that he doubted that he would be able to render public service equal to his work to establish the income tax system even if he had two lifetimes. This essay explains why Hull regarded the federal income tax as among his chief contributions. First, it outlines Hull’s personal history, his experiences with his mentor, United States Representative Benton McMillin, and Hull’s efforts to pass the Revenue Act of 1913. Second, it discusses the historical, economic, and political context that motivated Hull to introduce the tax reform that not only sustained the United States through the two world wars that followed but made possible widespread economic prosperity in the twentieth century.

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June 20, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

After Indiana University Implemented DEI In Its Law School Curriculum, Professor Took His Concerns To State Legislature

The Federalist, After Indiana University Implemented DEI Standards in its Law Curriculum, Professor John Lawrence Hill Took His Concerns to the State Legislature:

Indiana Indianapolis LogoWhen Indiana University implemented DEI standards in its law school curriculum, Professor John Lawrence Hill warned the state legislature about attempts by “extreme idealogues to indoctrinate students” that “fly in the face” of America’s legal foundations.

Addressed to Indiana State Sens. Jeff Raatz and John Crane, Hill’s letter challenges the university’s new mandatory “responsible lawyering” course for first-year law students, introduced to comply with the American Bar Association’s (ABA) “cross-cultural competency” requirements. Hill argues that this move politicizes legal education.

“This class is guaranteed to further polarize and politicize the law school environment and represents yet another attempt by the academic Left to provide a platform for extreme idealogues to indoctrinate students who are essentially academic hostages,” Hill wrote in his letter. “DEI is now ‘in’ at the McKinney school….”

In an interview with The Federalist, Hill, a professor at Indiana University Robert H. McKinney School of Law (IU McKinney) says that issues with the ABA’s DEI requirements are long-standing. ...

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June 20, 2024 in Legal Ed News, Legal Education | Permalink

Wednesday, June 19, 2024

Post-Pandemic State Taxation Of Nonresident Telecommuter Wages

Michael T. Fatale (Massachusetts Department of Revenue, Boston College), Post-Pandemic State Taxation of Nonresident Telecommuter Wages, 64 B.C. L. Rev. 1859 (2023):

Boston College Law ReviewIncreased remote work has become a phenomenon in the aftermath of the COVID-19 pandemic. This has raised questions about the constitutional limitations that apply, or the congressional restrictions that should be applied, to state laws imposing an income tax on nonresident employees who telecommute from another state for an in-state employer. The state laws that tax nonresident teleworkers vary, leading to the prospect that some such employees could be double taxed by both the state of their employer and the state in which they are physically working, or taxed by their employer state when the state in which they are physically working does not itself impose a tax. Most outstanding scholarship has argued in favor of intervention by the Supreme Court or Congress to prevent states from imposing tax on employees who are physically working from another state. 

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June 19, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Pepperdine Legal Aid Clinic Provides Legal Services At Juneteenth Event On Skid Row

Legal Aid Clinic 2

Pepperdine Legal Aid Clinic Provides Legal Services at Los Angeles Mission Juneteenth Event:

Pepperdine Legal Aid Clinic law clerks, Sara Nemiro, Andra Danila, Evan Botos, and Ross Patterson, provided pop-up legal services at the Los Angeles Mission's "Juneteenth Boogie" on June 18. The event also included free haircuts, housing services, job training opportunities, and clothing giveaways to the residents of skid row.

The Pepperdine Caruso Law clerks have spent the summer working at the Pepperdine Legal Aid Clinic's Union Rescue Mission, assisting residents with expungements, family law, credit, and other legal matters.

June 19, 2024 in Legal Ed News, Legal Education, Pepperdine Legal Ed | Permalink

Hamilton vs. Jefferson In Supreme Court Direct Tax Jurisprudence

Joshua Cutler (Boise State; Google Scholar), Hamilton vs. Jefferson in Supreme Court Direct Tax Jurisprudence, 32 S. Cal. Interdisc. L.J. 389 (2023):

USC Interdisciplinary Law JournalIncreasingly frequent calls for some form of a wealth tax highlight the importance of understanding whether such a tax would be considered an unconstitutional “direct tax” if not apportioned according to population. The definition of direct tax was left deliberately vague at the Constitutional Convention, and consequently its meaning has been shaped through battles between the opposing political philosophies of Alexander Hamilton and Thomas Jefferson. Hamilton and his allies prioritized an energetic national government with adequate taxing powers to support its functions and unite the states; had great respect for tradition, precedent, and practical experience; and preferred a broad mode of constitutional interpretation that showed strong deference to Congress. Jefferson and his allies prized individual liberty above all and viewed the national government as the chief threat to that liberty.

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June 19, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

LSAC President Kellye Testy Reflects On Challenges Facing Legal Ed As She Shifts To Lead AALS

ABA Journal, LSAC President Reflects on Challenges Facing Legal Ed as She Shifts to Lead Association of American Law Schools:

Testy (2024)When Kellye Testy joined the Law School Admission Council in 2017 as president and CEO, she came as a dean known for advocating for access and diversity. During her tenure at the LSAC, she oversaw many changes, including the sudden shift to the game-changing online LSAT exams during the COVID-19 pandemic, and she fought for diversity in the profession by attracting a diverse group of LSAT examinees.

As the 2022 ABA Journal Legal Rebel prepares to leave her post June 30 and start the very next day as executive director and CEO of the Association of American Law Schools, she talked with the Journal about the changes and the challenges facing legal education. This interview has been edited for length and clarity. ...

What are your thoughts about law schools using the JD-Next, a new admissions test?
I’m never going to be wedded to any one product, but I am wedded to evidence about what really works for diversity and equity. The LSAT is the one assessment with high correlation with success in law school and enhancing equity. But schools also should look at a broad array of other things, including tools we’re developing to understand the social context of someone’s application. So we find ourselves in the ironic place of saying, “It’s our test,” but we’re like, “Whoa, don’t overuse it.” ...

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June 19, 2024 in Legal Ed News, Legal Education | Permalink

Juneteenth And Tax Policy

Common Dreams, Juneteenth and the Need for a Reimagined, More Progressive Tax Code:

Juneteenth (2024)Policymakers can only make sensible decisions when they understand what the tax system’s shortcomings have done to Black communities.

Juneteenth is a reminder of the hard-fought victories that helped Black Americans secure their delayed freedom, justice, and suffrage. And in the chapters about tax policy, the tales are no less fraught. From America’s prologue to the last paragraph of the Civil War, governments raised more tax revenue from the taxation of Black bodies than any other source.

Though Black Americans are no longer taxed as property, their relationship with the property tax system remains challenging. Today, for instance, Black families pay more property taxes than white Americans who own comparable properties. Black people went from being literally taxed as property to being slighted by the property tax system – perpetuating deep economic inequality for a group of people who have always suffered on the soil of this land.

The good news is that progress has been made. Genuine tax equity is not only possible, but it’s within reach. ...

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June 19, 2024 in Tax, Tax Daily, Tax News | Permalink

Columbia Smuggles Activism Into The Law

City Journal:  Columbia Smuggles Activism Into the Law, by Tal Fortgang (Manhattan Institute):

Columbia (2023)Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.

It’s no small deal, then, when a distinguished law review compromises the procedures that help keep it trustworthy.

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June 19, 2024 in Legal Ed News, Legal Education | Permalink

Tuesday, June 18, 2024

Blank & Osofsky: Democratic Accountability And Tax Enforcement

Joshua Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), Democratic Accountability and Tax Enforcement, 61 Harv. J. on Legis. 251 (2024):

Harvard journal on legislationOne of the most powerful charges that can be leveled against the IRS is that it is targeting taxpayers. Charges of political targeting have dogged the IRS for over a century, including in major controversies such as the alleged Tea Party auditing scandal in 2013. Commentators and scholars have long critiqued the IRS for focusing audit resources on some of the lowest-income Americans. And, most recently, a group of researchers estimated that the IRS audits Black taxpayers at a 2.9 to 4.7 times greater rate, as compared to non-Black taxpayers.

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June 18, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

NYC Bar Association Blasts Federal Judges' Columbia Boycott Letter

National Law Journal, NYC Bar Association Condemns Federal Judges Over Letter to Columbia:

Columbia (2023)The New York City Bar Association on Monday condemned a group of federal judges for what the organization called “improper use of the judicial offices” over the judges’ recent letter stating they would no longer hire law clerks from Columbia University over its handling of the pro-Palestinian protests on campus this year.

The association’s statement came in response to the May 6 letter signed by 13 U.S. federal judges appointed by Donald Trump to Columbia University President Nemat “Minouche” Shafikand and Gillian Lester, dean of Columbia Law School.

The judges wrote that they won’t hire anyone who enrolls in Columbia as an undergraduate or law student beginning with the entering class of 2024, calling the university “an incubator of bigotry” that “has disqualified itself from educating the future leaders of our country.”

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June 18, 2024 in Legal Ed News, Legal Education | Permalink

AI-Generated Tax Advice Is Not (Yet) Making the Grade

Taxpayer Advocate Service, Is AI Generated Tax Advice Making the Grade?:

AI TaxAI is a rapidly evolving new technology, and may not be able to provide accurate answers to your complex tax questions. ...

Recently, some leading tax preparation companies have taken AI a step further by providing generative AI assistants, often referred to as AI chatbots, to answer a wide variety of tax-related questions. ...

Despite efforts to ensure accuracy, these AI assistants may encounter difficulties interpreting complex tax laws correctly or considering unique circumstances that could impact a taxpayer’s return. As a result, taxpayers should not solely rely on AI-generated tax advice.

A recent informal review by the Washington Post found that two of the leading tax preparation companies’ chatbots provided inaccurate or irrelevant responses up to 50 percent of the time when initially asked 16 complex tax questions. ...

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June 18, 2024 in IRS News, Tax, Tax News | Permalink

Law Professors And AI

Rachelle Holmes Perkins (George Mason; Google Scholar), AI Now, 97 Temp. L. Rev. __ (2024):

Temple law reviewLegal scholars have made important explorations into the opportunities and challenges of generative artificial intelligence within legal education and the practice of law. This Article adds to this literature by directly addressing members of the legal academy. As a collective, law professors, who are responsible for cultivating the knowledge and skills of the next generation of lawyers, are seemingly adopting a laissez faire posture towards the advent of generative artificial intelligence. In stark contrast to law practitioners, law professors generally have displayed a lack of urgency in responding to the repercussions of this emerging technology.

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June 18, 2024 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Harvard Law Review: Moore And § 877A

Note, Moore than Meets the I.R.C.? The Appointment Rule's Originalist Backstop for I.R.C. § 877A, 137 Harv. L. Rev. 1204 (2024): 

Harvard law reviewRenunciation of U.S. citizenship is no trivial act. For most, it requires leaving the country, appearing before a consular or diplomatic officer, signing an oath of renunciation, paying a $2,350 fee, and being named in the Federal Register. Yet expatriates, ranging from singer Tina Turner to Facebook cofounder Eduardo Saverin, have risen dramatically in number since 2010. Some, like tennis player Naomi Osaka, renounce so they can represent another country in the Olympics. Others, like former Israeli politician Dov Lipman, do so to hold office in a foreign government. But for the purported majority of expatriates, ex-U.S. citizen and former U.K. Prime Minister Boris Johnson expressed their motive well: When asked about paying a tax bill from the IRS, he responded, “[I]t’s absolutely outrageous. Why should I?”

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June 18, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

ChatGPT Is Bullshit

Michael Townsen Hicks (University of Glasgow; Google Scholar), James Humphries (University of Glasgow) & Joe Slater (University of Glasgow; Google Scholar), ChatGPT Is Bullshit:, 26 Ethics & Information Technology Art. 38 (2024):

ChatGPT (2023)Recently, there has been considerable interest in large language models: machine learning systems which produce humanlike text and dialogue. Applications of these systems have been plagued by persistent inaccuracies in their output; these are often called “AI hallucinations”. We argue that these falsehoods, and the overall activity of large language models, is better understood as bullshit in the sense explored by Frankfurt (On Bullshit, Princeton, 2005): the models are in an important way indifferent to the truth of their outputs.

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June 18, 2024 in Legal Ed Scholarship, Legal Ed Tech, Legal Education, Scholarship | Permalink

Monday, June 17, 2024

Cauble: Administering Facts-And-Circumstances-Based Tax Tests

Emily Cauble (Wisconsin; Google Scholar), Administering Facts-And-Circumstances-Based Tax Tests, 76 Baylor L. Rev. __ (2024):

Baylor Law Review (2024)Oftentimes, the appropriate tax treatment of a transaction or event depends on a holistic analysis of relevant facts and circumstances. Facts-and-circumstances-based tests are challenging to administer because they are challenging to enforce and because they address challenging topics on which to provide useful administrative guidance. When a taxpayer claims tax treatment that depends on application of such a test, the IRS cannot determine whether the taxpayer's claimed position is correct without knowing the relevant facts and circumstances. Yet, often, taxpayers are not required to disclose the relevant facts and circumstances when filing a tax return, making enforcement difficult. Likewise, providing administrative guidance on facts-and-circumstances-based tests is daunting. If the IRS provides concrete examples of the application of such a test, there is a risk the concrete examples will mislead taxpayers. Taxpayers may come away with the impression that the concrete examples illustrate universal rules, which is not the case given the facts-and-circumstances-based nature of the test. If the IRS steers away from offering concrete examples, however, taxpayers will face uncertainty when attempting to determine their tax treatment.

This Article proposes a new, two-fold approach to administering facts-and-circumstances-based tests.

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June 17, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Legal Ed News Roundup

Todd: While Tax World Waits For Moore, Supreme Court Decides Important Connelly Estate Tax Case

TaxProf Blog op-ed:  While Tax World Waits For Moore, Supreme Court Decides Important Connelly Estate Tax Case, by Timothy M. Todd (Interim Dean, Liberty; Google Scholar):

ToddAlthough the eyes of the tax world have been focused on the pending decision in Moore v. United States—a case that challenges the one-time “mandatory repatriation tax,” and depending on the contours of the decision could upend (or cement, depending on whom you ask) critical tax norms—the Supreme Court issued another tax decision this term that has important and weighty practical implications for countless closely held businesses and those who advise them.

In Connelly v. United States, the Supreme Court was called upon to resolve a circuit split that had arisen concerning the estate tax valuation of a closely held business that used an extremely common planning structure: the use of life-insurance proceeds to redeem the shares of a shareholder upon his or her death. Tax and business lawyers undoubtedly agree with Benjamin Franklin’s sentiment that “in this world, nothing is certain except death and taxes,” and prudent lawyers plan for both these certainties.

The circuit split concerned the interaction between the receipt of the life-insurance proceeds, which increases the value of the business, and the redemption obligation, which some have argued reduces the value of the business.

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June 17, 2024 in New Cases, Scholarship, Tax, Tax Daily, Tax News, Tax Scholarship | Permalink

The NextGen Bar Exam And Contract Drafting

Karen Sneddon (Dean, Mercer) & Susan Chesler (Arizona State; Google Scholar), Raising the Bar: The NextGen Bar Exam and Contract Drafting:

NextGen Bar ExamSet to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (NCBE), this exam is designed to balance the skills and knowledge needed in litigation and transactional legal practice. More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like Contracts, will be tested using these, and other, foundational skills. Bar takers will therefore be required to perform these lawyering skills as a way of proving their knowledge on topics such as contract formation, contract modification, interpretation, breach, and remedies. For the first time, in order to succeed on the bar exam, every law student will need to know how to draft and revise contract provisions.

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June 17, 2024 in Legal Ed Scholarship, Legal Education | Permalink

Baez: The Medical Expense Deduction—Physicians, Medicine Men, And Spirituality

Beau Baez (Ohio Northern; Google Scholar), The Medical Expense Deduction: Physicians, Medicine Men, and Spirituality:

Expenses for buckskins, baskets, and Navajo healing ceremonies were allowed as medical deductions in Tso v. Commissioner of Revenue (“Tso”).  This case led to an expansion of the medical expense tax deduction to other non-traditional treatments, including energy healers that “connect spiritually through the universe.” While there are many alternative medical treatments of questionable efficacy, at least from an empirical perspective, courts after Tso appear more willing to allow the medical expense tax deduction for what might better be classified as spiritual experiences. In the four decades since Tso, every case and administrative ruling citing Tso has done so in a manner approving alternative healing. ...

As people seek new and exotic alternative medical treatments, a decision needs to be made whether to continue funding them through the medical expense income tax deduction.

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June 17, 2024 in Faith, Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

2024 Summer Associates Survey

Law360, The 2024 Summer Associates Survey:

Law360 CoverOn-campus interview week is one of the most stressful experiences law students can undergo, as they bid for and meet the firms that could launch and shape their futures. Law360 Pulse's survey takes the measure of where they are at this moment in time

Firms were exceptionally selective in 2024, with many rolling back their summer associate programs amid a cool down in the market for junior hires. Many were also looking to land the brightest talent at the earliest possible point — in some instances, ahead of OCI.

We found a lot of anxiety among this year's cohort as to whether they'd be offered a job at the end, above and beyond any worries about whether they'd be up to the work itself. But students seemed to want to hit the ground running, with comparatively few showing an interest in fully remote work, and practice area and location remaining top draws.

Law360, These Law Firms Are Where Summers Want To Work:

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June 17, 2024 in Legal Ed News, Legal Education | Permalink

Dr. Jayne Caron: 8 Years Down, 2 Years To Go

My beloved, brilliant, and beautiful daughter Jayne has completed her 4-year OB-GYN  residency at Cedars-Sinai Medical Center in Los Angeles, capped off by a wonderful graduation ceremony on Friday. Next up is a 2-year complex family planning fellowship at Stanford.

Jayne NYU Cedars

Jayne is named after my sister, who died shortly after birth. My late mother, a secretary to the dean of a nursing school, absolutely loved the medical profession. Shortly before my mother died in 1992, my pregnant wife and I told her we were going to name our daughter Jayne. My mother would be bursting with pride and gratitude today, as Jayne's parents and brother are.

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June 17, 2024 in Legal Education | Permalink

TaxProf Blog Weekend Roundup

Sunday, June 16, 2024

An Essay In Defense Of Christianity

Rupert Shortt (Cambridge; Author, The Eclipse of Christianity and Why It Matters (2025)), An Essay in Defence of Christianity:

Eclipse 2Any bid to commend the claims of Christianity in writing should include a critical caveat. This essay defends a way of life, not a scientific theory such as evolution, or an abstract term like liberty. Whatever view you take of my theme, it cannot be divorced from the personal commitment that gives it its meaning. Like some of the ancient philosophical schools, religion is a path of understanding which can say little to those who have not set out on the journey. Disengaged study misses the point: it is like analysing a poem in terms of the chemistry of the ink on the page.

This thought leads to my main coordinates. You don’t think your way into a new way of living, but live your way into a new way of thinking. Being a Christian should not entail assenting to six impossible propositions before breakfast, but doing things that change you. The practical witness of believers may be their most eloquent statement of faith. G. K. Chesterton got right to the point when he described his creed as ‘less of a theory and more of a love affair’. Now consider the contrast between all this and much English-language philosophy, which tends to neglect the big picture. I would rather follow the lights of earlier thinkers including Cicero — especially his belief that the only fulfilling model for life rests on altruistic endeavour — and later figures who Christianised some of the noblest strands in pagan thought by adding the key precepts on love of God and neighbour. 

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June 16, 2024 in Faith, Legal Ed News, Legal Education | Permalink

Discovery Of Oldest Account Of Jesus As A Boy Provides Added Context To New Testament

Washington Post, An Account of Jesus as a Boy is Decoded From an Ancient Papyrus Scrap:

For decades, a clumsily written document sat unnoticed at a university library in Germany, believed to be nothing more than a very old, everyday note, such as a private letter or a shopping list. Now, more than a millennium and a half after it was written, researchers believe the papyrus fragment is no ordinary memo, but the oldest surviving written copy of a gospel detailing Jesus’ childhood.

Lajos Berkes from Humboldt University of Berlin and Gabriel Nocchi Macedo from the University of Liège in Belgium, two papyrologists, date it to the 4th or 5th century, according to a news release.

They deciphered the fragment and identified it as a passage from the Infancy Gospel of Thomas, a work that is apocryphal — or outside the accepted canon of scripture — and is believed to have been originally written in the 2nd century A.D. That makes it the oldest extant copy of that particular gospel.

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June 16, 2024 in Faith, Legal Education | Permalink

Inazu: Encouraging And Equipping Christian Faculty At Non-Christian Universities

John Inazu (Washington University; Google Scholar), Encouraging and Equipping Christian Faculty at Non-Christian Universities:

InazuIn an earlier post, I described the Newbigin Fellows, a partnership between Interfaith America (where I serve as a Senior Fellow) and The Carver Project (an organization I founded five years ago). The Newbigin Fellows convenes cohorts of Christian faculty working at non-Christian colleges and universities. These cohorts meet monthly over Zoom and then gather in person with the goal of cultivating relationships with one another, reflecting on the theory and practice of interfaith engagement, and developing interfaith activities on their respective campuses. I co-lead the group with Interfaith America’s founder and president, Eboo Patel.

Last week, our second Newbigin cohort gathered in St. Louis. ... Our time together included substantive conversations about the state of politics and religion in our country, the recent campus protests, and the challenges and opportunities of being a Christian faculty member on campuses like ours.

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June 16, 2024 in Faith, Legal Education | Permalink

Kirkland & Ellis Litigation Partner And Father Of 11 Mike Williams' Parenting Secret: Boundaries, Not Balance


David Lat, A Top Trial Lawyer And Father Of 11: Michael Williams:

A longtime Kirkland partner and parent to children ages 24 to 7, Mike Williams talks about how he and his wife Julin make it all work.

I’ve been honored to have some of the nation’s leading litigators on this podcast. But I have not had a guest who’s both a renowned courtroom advocate and parent of 11 children—until today.

Meet Michael Williams. After graduating from Georgetown Law, summa cum laude and first in his class, he clerked for then-Chief Judge Douglas H. Ginsburg of the D.C. Circuit and Justice Anthony M. Kennedy of the Supreme Court. Mike then joined the D.C. office of Kirkland & Ellis, where he is a share aka equity partner. He has won numerous honors and accolades over the years, recognized by Chambers and Partners, the Legal 500, and The American Lawyer, among others.

Despite his dazzling legal career, Mike is most proud of being a dad. He had his first child while still in law school, two children during his clerkships, and eight children during his time at K&E. In our conversation, we talked about his contrasting clerkship experiences; what it’s like being a litigator at Kirkland, including how the firm has evolved over the years; why at heart he’s more of a trial rather than an appellate lawyer; and most importantly, how he balances his busy practice with the demands of parenthood (although note that he’s not a fan of the term “work-life balance”). ...

I thought he’d be the perfect guest to join me for an episode scheduled to air shortly before Father’s Day—and he didn’t disappoint. If you’re looking for advice and insight on how to juggle work and family—a ton of work, and a ton of family—this episode is for you. Without further ado, here’s my conversation with Mike Williams. ...

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June 16, 2024 in Legal Ed News, Legal Education | Permalink

The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #1 and #2.

  1. SSRN Logo (2018) [639 Downloads]  Does the Federal Budget Trump Constitutional Rights?, by Laura Snyder (Association of Americans Resident Overseas)
  2. [600 Downloads]  The Invisibility of the American Emigrant, by Laura Snyder (Association of Americans Resident Overseas)
  3. [595 Downloads]  FATCA is Not the Answer, by Karen Alpert (, John Richardson ( & Laura Snyder (Association of Americans Resident Overseas)
  4. [190 Downloads]  The Global Tax Deal And The New International Economic Governance, by Rebecca Kysar (Fordham; Google Scholar)
  5. [169 Downloads]  Fiscal Citizenship and Taxpayer Privacy, by Alex Zhang (Emory; Google Scholar)

June 16, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, June 15, 2024

This Week's Ten Most Popular TaxProf Blog Posts

Top 10 Taxprof Blog Posts - LinkedinLegal Education: 

  1. Wall Street Journal, Three-Part Series On Former George Mason Law Prof Joshua Wright
  2. David Bernstein (George Mason), Paul Horwitz (Alabama) & Steve Lubet (Northwestern), Reflections On The Columbia Law Review Imbroglio
  3. MLex, Court Allows Former George Mason Law Prof Joshua Wright's $108 Million Defamation Suit Against Former Students He Dated To Proceed
  4. New York Times, McKinsey, Other Top Firms Eschew Elite Degrees For Merit In Hiring
  5. Legal Tech News, Updated Stanford Report Finds High Hallucination Rates On Westlaw AI
  6. Tagline Guru, Branding Experts Rank The Top 100 College And University Mottos
  7. Reuters, 57 Law Schools Now Accept JD-Next For Admission In Lieu Of LSAT Or GRE
  8. The Vanderbilt Hustler, Vanderbilt Is Third University With Top 20 Law School To Offer Undergraduate Degree In Law
  9. Ashli Tomisich (Wyoming), Learning the Rural Practice of Law
  10. Toronto Star, Toronto Law Students’ Pro-Palestinian Letter Was ‘Greatly Flawed’ But Didn’t Breach School’s Code Of Conduct


  1. Law & Society Association Annual Meeting, Law, Society, And Taxation Panels 
  2. U.S. Supreme Court, Connelly v. United States: Unanimous Decision Affirms IRS's Position On Life Insurance Proceeds Used To Fund A Stock Redemption
  3. J. Clifton Fleming (BYU), Robert Peroni (Texas) & Stephen Shay (Boston College), What's The Problem That Prompted Pillar 2 And Is There A Better Solution?
  4. SSRN, The Top Five New Tax Papers
  5. Jonathan Choi (USC), Review Of The Original Meaning Of The Sixteenth Amendment By Brooks & Gamage
  6. Donald Tobin (Maryland) & Ellen Aprill (Loyola-L.A.), Historical Insights On The Meaning Of “Income” May Preserve The Income Tax
  7. Virginia Tax Review, New Issue
  8. Hans Gribnau (Tilburg) & Jane Frecknall Hughes (Nottingham), Tax After The American War Of Independence
  9. Sloan Speck (Colorado), Review Of The TCJA: Sweeping Changes And An Uncertain Legacy By Gale, Hoopes & Pomerleau
  10. David Elkins (Netanya), Review Of Reis's The Gift Tax Treatment Of Loan Guarantees


  1. Washington Post Op-Ed (Anne Lamott), The Dressing Room Encounter That Made Me Get Real About Aging
  2. Christianity Today Book Review (Darrin W. Snyder Belousek), The Bible And Same-Sex Marriage
  3. Liberty University, Morse Tan Steps Down As Liberty Law School Dean After 2 1/2 Years; Tax Prof Tim Todd Named Interim Dean
  4. Washington Post Op-Ed (Anne Lamott), Invisible And Exposed — But Adaptable, As Only The Old Can Be
  5. Paul Caron (Dean, Pepperdine), One Year Later . . .

June 15, 2024 in About This Blog, Legal Education, Tax, Tax Daily, Weekly Top 10 TaxProf Blog Posts | Permalink

How Legal Gen AI Is Better Preparing Law Students For Practice

Legal Tech News, How Legal Gen AI Is Better Preparing Law Students for the Real World:

ChatGPT (2023)Law firm summer associate programs are crucial for law school students looking for a promise of a permanent job offer. And with fewer offers on the table, a shot at a full-time position hinges on their ability to thrive under pressure and demonstrate legal knowledge, research abilities, writing skills and more—often with limited practical experience. Fortunately, the proliferation of AI technology is bolstering students’ preparedness for the real world like never before, enabling them to have a chance at a coveted position.

While legal technology tools that use AI have been around for years—contract drafting, legal research, case management systems, e-discovery, document automation, and legal analytics—law students now have another tool at their disposal—generative AI—that is offering them the opportunity to be even more prepared than previous generations of their peers. And why shouldn’t they? In a recent study, 70% of Gen Z—which include today’s current law school students—report using the technology.

And especially with many law schools in the U.S. providing students free access to legal Gen AI tools, and law firms offering AI training courses, law students are better equipped with skills that make them more efficient, confident, and practice-ready on day one of their summer associateship. ...

6 Ways Legal Gen AI Tools Are Revolutionizing Law Student Preparedness ...

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June 15, 2024 in Legal Ed News, Legal Ed Tech, Legal Education | Permalink

Escajeda: Songwriters, Poets, And Tax Policy

Hilary G. Escajeda (Mississippi College School of Law; Google Scholar), Bad Tax Policy Breeds Bad Blood Between Songwriters and Poets, 183 Tax Notes Fed. 1625 (May 27, 2024):

Tax Notes Federal (2022)Taylor Swift’s songs inspire generations of fans to sing and dance about love and to shake off heartbreak. Swift’s hard-earned reputation for being a savvy music mogul inspires other creative spirits to be fearless in their artistic endeavors. However, unless these artists are songwriters or musicians, they should keep their eyes open when selling their works, as they may see red when they discover their tax rates.

For music listeners who are not English undergraduate majors turned tax law professors, there is no reason to know — or even care — that financially living one’s wildest dreams may depend on the taxpayer’s artistic medium. Provoked by Swift’s February proclamation, “All’s fair in love and poetry,” and the recent release of her album, The Tortured Poets Department, it has become my nerdy tax mission to highlight and amplify a curious dysfunction in U.S. tax law that distinguishes between songwriters and poets. 

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June 15, 2024 in Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship | Permalink

Friday, June 14, 2024

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Reis's The Gift Tax Treatment Of Loan Guarantees

This week, David Elkins (Netanya, Google Scholar) reviews Eric Reis (North Texas), Guaranteed Wealth? A New Way of Thinking About the Gift Tax Treatment of Loan Guarantees, 27 Fla. Tax Rev. _ (2024):

Elkins (2018)

In this week’s feature article, Professor Eric Reis examines the gift tax consequences of gratuitous loan guarantees. A prototypical example is one in which a parent provides a guarantee for a loan to a child, where the child does not have enough assets or income to qualify for a loan on her own. As the author describes it, wealth is effectively transferred from the parent to the child because the child will benefit from the upside (if the asset appreciates more than the interest on the loan, the child will pocket the difference) but will have little to no exposure to the downside (if the asset depreciates in value, the parent will likely cover the difference). The author goes on to describe a number of similar structures involving children who are shareholders in corporations or beneficiaries of trusts and a parental guarantee of loans to the corporation or the trust.

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June 14, 2024 in David Elkins, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup | Permalink

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

57 Law Schools Now Accept JD-Next For Admission In Lieu Of LSAT Or GRE

Reuters, LSAT Alternative Gains Popularity as More Law Schools Sign On:

JD-Next (2025)The American Bar Association has granted five law schools permission to use the alternative admissions program JD-Next, pushing the number of campuses that allow applicants to bypass the Law School Admission Test or GRE to 57.

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June 14, 2024 in Legal Ed News, Legal Education | Permalink

A Progressive Case For A Federal SALT Deduction

Patrick Driessen, A Progressive Case for a Federal SALT Deduction, 183 Tax Notes Fed. 1591 (May 27, 2024):

Tax Notes Federal (2022)Much of the debate about the Tax Cuts and Jobs Act’s cap on federal deductibility of state and local taxes has been reduced to income distribution tables that show cap repeal as very regressive. These federal-tax-centered tables are narrowly framed: State and local taxes and most outlays themselves aren’t distributed, and states are assumed not to respond to federal tax changes.

This article relaxes these distributional assumptions in a stylized example that controls for pretax income distribution as well as state and local outlays.

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June 14, 2024 in Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship | Permalink

Learning The Rural Practice of Law

Ashli Tomisich (Wyoming; Google Scholar), Learning the Rural Practice of Law, 24 Wyo. L. Rev. __ (2024):

Wyoming law reviewThis Article explores how law schools can better educate students about the possibilities and opportunities presented by rural practice and prepare them with the skills to succeed. An aging population and dwindling availability of jobs increases the need for practitioners in rural areas. While new graduates may be willing to pursue rural law practice, employers and graduates frequently note graduates are not prepared for the skill-based practice of law. Many students reflect that law school remains too theoretical to be pragmatically helpful in their first jobs, particularly given the unique nuances and challenges of rural law practice. Recent graduates report practical skills training had the strongest positive impact in preparing them for the practice of law. 

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June 14, 2024 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Thursday, June 13, 2024

The Common Ownership Tax Strategy

Danielle A. Chaim (Bar-Ilan University; Google Scholar), The Common Ownership Tax Strategy, 101 Wash. U. L. Rev. 501 (2023):

Washington university law reviewThe recent mass shift by American retail investors into index funds has given rise to a modern form of common ownership. Significant stakes in most public companies are now held by a core group of large, diversified institutional investors. In parallel, this rise in common ownership has been accompanied by unprecedented levels of corporate tax avoidance. Recent evidence suggests that under the domination of these powerful shareholders, public companies can reduce their tax liability more aggressively, shirking U.S. tax obligations worth billions of dollars.

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June 13, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Preparing Law Students For Real-World Practice

John Lande (Missouri-Columbia; Google Scholar), Preparing Law Students for Real-World Practice:

This article summarizes a program entitled Pracademically Speaking: Incorporating Real-World Legal Practice Into the Curriculum at the annual conference of the ABA Section of Dispute Resolution. It describes problems with legal curricula, pressures to improve because of the NextGen bar exam and some states’ plans to use alternative mechanisms for licensing, and successful techniques for improving the realism in law school courses. It includes links to numerous resources to help faculty make their instruction more realistic.

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June 13, 2024 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Mann: United States EV Tax Policy

Roberta F. Mann (Oregon), Driving Transformation: Tax Strategies for Electrifying Light Duty Transportation, 53 Env’t L. Rep. 10298 (2023):

Environmental law reporterThis article focuses on the evolving U.S. tax policy for EVs. Taxation is a necessary component of strategies to increase adoption of EV technology. In the U.S., taxation has supported the US energy policy of increased uptake of electric vehicles. Recent tax changes will continue that support, but the switch to EVs still faces challenges. The article will first set out why light-duty transportation in the U.S. must be transformed to accomplish climate goals.

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June 13, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

An Old-Fashioned Bluebook Burning

Paul A. Gowder (Northwestern; Google Scholar), An Old-Fashioned Bluebook Burning, 1 Nw. L.J. des Refusés __ (2024):

Bluebook 2020

As the faculty advisor for the newly-minted Journal des Refusés, the duty has fallen to me to identify the most eminently refusal-worthy aspect of the enterprise of legal publishing. I speak, of course, of The Bluebook: bane of generations of authors and journal editors, the source of painfully detailed rules about every aspect of legal citation, complete with signals, thousands of abbreviations, cross-references that send readers merrily scurrying across hundreds of pages of law review articles to find a source, and typography rules seen in no other citation style.  ...

This essay argues for an end to law's infamously Byzantine and bloated citation manual. ... The very features that make the Bluebook distinctive when compared to citation systems in other academic fields are also those that inflict vast amounts of unnecessary if not downright harmful labor on its users.

The root of the problem is its obsolescence: the Bluebook was designed for a system in which legal scholarship was primarily consumed in print and for material where the doctrinal epistemology of authority predominated.

Today, legal scholarship is primarily consumed electronically, and it largely shares an epistemology of credence with other scholarly disciplines. (Nor are its hundreds of pages of rules particularly useful for practicing lawyers and judges, who sensibly disregard most of it anyway.)

At a minimum, the signals, typographical rules, abbreviations, and cross-references need to be put out of their misery; when those are gone what is left would be practically indistinguishable from the sensible citation systems of other fields, as it should be. Also, we should automate as much as possible---and that turns out to be quite a lot.

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June 13, 2024 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink