Paul L. Caron

Friday, January 28, 2022

Kaestner Fails: The Way Forward

Mitchell M. Gans (Hofstra), Kaestner Fails: The Way Forward, 11 Wm. & Mary Bus. L. Rev. 651 (2020):

This past term, the Supreme Court applied the due process clause to prevent the states from closing down a tax strategy that employs out-of-state trusts. Many had hoped that the case would serve as a vehicle for the Court to overrule taxpayer-friendly precedents that make the strategy possible. But it failed. The question that emerges is whether the decision leaves the states with a path to address the strategy and thereby prevent it from being used to exacerbate issues of inequality.

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January 28, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, January 27, 2022

Field Presents Taxpayer Choices, Itemized Deductions, And The Relationship Between The Federal & State Tax Systems Today At SMU

Heather M. Field (UC-Hastings; Google Scholar) presents Taxpayer Choices, Itemized Deductions, and the Relationship between the Federal & State Tax Systems, 13 Colum. J. Tax L. 1 (2021) (reviewed by Michelle Layser (Illinois; Google Scholarhere) at SMU today as part of its Faculty Forum series: 

Heather-fieldAlmost 30 million taxpayers who itemized their federal deductions for the 2017 tax year switched to the standard deduction for 2018. The provisions of the Tax Cuts & Jobs Act (“TCJA”) that led to this shift were intended to simplify the individual income tax system. This Article’s empirical study of federal and state tax filing data, however, demonstrates that the TCJA’s simplifying effect varied state-to-state depending on whether a state obligated its taxpayers to make the same choice for state tax purposes (i.e., to itemize deductions or take the standard deduction) as the taxpayer made for federal purposes. In states that obligated taxpayers to make the same choice, taxpayers experienced at least some simplification, and tax administration by the IRS and state tax authorities became materially easier, although the IRS’s simplification benefit was dampened to some degree. In states that allowed taxpayers to make state tax choices that differed from their federal choices, the TCJA’s simplifying effect for many taxpayers was largely illusory, state income tax administration actually became more complex, and some tax enforcement costs were, in effect, shifted from the IRS to state tax authorities. Thus, this Article’s study reveals that state-level rules about tax choices undermined the federal policy goal motivating the TCJA’s itemization-related changes.

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January 27, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Morse: Important Developments In Federal Income Taxation (2021)

Edward A. Morse (Creighton), Important Developments in Federal Income Taxation (2021)

This outline covers significant developments in federal income taxation arising during the past year. It offers a selective treatment focusing on items likely to interest practitioners and advisors within a broad range of professional practices. Tax Court decisions (regular and memorandum) and appellate cases receive greater attention on account of their legal significance; Tax Court summary opinions and unreported appellate cases are generally omitted. Other trial decisions in the district court and claims court receive only limited attention due to their comparatively limited impact on tax law development. 

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January 27, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Field: How The Pandemic Flipped My Perspective On Flipping The Tax Law Classroom

Heather M. Field (UC-Hastings; Google Scholar), How the Pandemic Flipped My Perspective on Flipping the Tax Law Classroom, 19 U. Pitt. Tax Rev. __ (2022):

Pittsburgh Tax Review (2021)Flipping the classroom—where the traditional in-class activities (lecture) and pre-class homework activities (problems) are reversed—is a pedagogical technique that has grown more popular in higher education over the past decade. To me, pre-class video lectures always seemed like spoon-feeding material to students, and I was reluctant to do that when teaching tax because I believe grappling with the Code and other primary sources is a critical part of learning tax. However, during the pandemic, I wanted to make my tax courses easier for students given the health, family, and financial challenges many students faced. Thus, I reluctantly created video lecturettes for my tax courses and instructed students to watch them as part of class preparation, and I planned to spend more class time discussing problems. Surprisingly, I quickly became a convert to the flipped classroom approach to teaching tax because of its numerous and unexpected benefits, and I continue to use this technique for portions of my tax classes even after returning to in-person instruction.

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January 27, 2022 in Legal Ed Scholarship, Legal Education, Scholarship, Tax, Tax Scholarship | Permalink

Managing Law Students As Consumers In A COVID World

Debra Moss Vollweiler (Nova), If You Can't Beat 'Em, Join 'Em (Virtually): Institutionally Managing Law Students as Consumers in a COVID World, 41 Pace L. Rev. 57 (2020):

In early 2020, I published an article that examined how law schools—with rising costs, pressure on performance metrics and competitive high-profile rankings—were more than ever before being judged on a consumer satisfaction basis by both students and the public [Law School As A Consumer Product]. While that perception has been growing over the past two decades, it had, at that point, seemingly reached a crisis point in legal education. It was clear that when students have their choice of educational institutions, they often act like consumers, and choose to spend their tuition money based on metrics that satisfy them as buyers.

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January 27, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Student Grade Satisfaction Drives Teaching Evaluations

Vladimir Kogan, Brandon Genetin, Joyce Chen & Alan Kalish (Ohio State), Students' Grade Satisfaction Influences Evaluations of Teaching: Evidence from Individual-level Data and an Experimental Intervention:

Student surveys are widely used to evaluate university teaching and increasingly adopted at the K-12 level, although there remains considerable debate about what they measure. Much disagreement focuses on the well-documented correlation between student grades and their evaluations of instructors. Using individual-level data from 19,000 evaluations of 700 course sections at a flagship public university, we leverage both within-course and within-student variation to rule out popular explanations for this correlation. Specifically, we show that the relationship cannot be explained by instructional quality, workload, grading stringency, or student sorting into courses. Instead, student grade satisfaction — regardless of the underlying cause of the grades — appears to be an important driver of course evaluations.


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January 27, 2022 in Legal Ed Scholarship, Legal Education, Teaching | Permalink

Drumbl: #Audited — Social Media And Tax Enforcement

Michelle Lyon Drumbl (Interim Dean, Washington & Lee), #Audited: Social Media and Tax Enforcement, 99 Or. L. Rev. 301 (2021):

AuditedWith limited resources and a diminished budget, it is not surprising that the Internal Revenue Service would seek new tools to maximize its enforcement efficiency. Automation and technology provide new opportunities for the IRS, and in turn, present new concerns for taxpayers. In December 2018, the IRS signaled its interest in a tool to access publicly available social media profiles of individuals in order to “expedite IRS case resolution for existing compliance cases.” This has important implications for taxpayer privacy.

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January 27, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Legal Writing Professors, Salary Disparities, And The Impossibility Of 'Improved Status'

Amy Soled (Rutgers), Legal Writing Professors, Salary Disparities, and the Impossibility of 'Improved Status', 24 J. Legal Writing 47 (2020):

There should be a concerted effort to eliminate the wage discrimination experienced by legal writing faculty. A legal writing professor’s status cannot truly improve until the pay gap that exists between those who teach legal writing and those who teach other legal topics is closed. Until law schools address the economic disparity between these two classes of professors, a legal writing professor’s status will remain mired below that of her counterparts who teach other areas of the law.

This essay first highlights the pay disparities that exist among doctrinal faculty and legal writing professors. It then demonstrates the negative effect those disparities have on the employee and the institution. Finally, it suggests ways to achieve pay parity and improve the status of legal writing professors.

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January 27, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Elkins: The Integration And Dis-Integration Of The Corporate Tax Regime

David Elkins (Netanya; Google Scholar), The Integration and Dis-Integration of the Corporate Tax Regime:

An ideal corporate tax regime would impose the same overall tax burden on income earned via a corporation as it did on income earned directly by an individual. Any discrepancy between the two violates the norms of horizontal equity, economic efficiency, and most likely vertical equity as well. Since the turn of the current century, lawmakers have responded to these concerns by gradually transforming the corporate tax regime from a “classical” or double taxation model to one that at least in very broad outline encapsulates the notion of full integration. True, the current state of affairs does not entirely eliminate the discrepancies. While closer to full integration than any corporate tax regime that the United States has until now experienced, it does contain pockets of both partial integration (in which income earned via a corporation is subject to a heavier tax burden than income earned directly by an individual) and, more rarely, of super-integration (in which income earned via a corporation is subject to a lighter tax burden than income earned directly by an individual). The goal of corporate tax reform should be to remove those incongruities and mold a more coherent overall income tax structure.

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January 27, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, January 26, 2022

Devereux Presents Business Location Decisions With A Global Minimum Tax And Pillar 2 Today At Toronto

Michael Devereux (Oxford) presents Business Location Decisions With A Global Minimum Tax (with Francois Bares (Wisconsin) & Irem Guceri (Oxford; Google Scholar)) and Pillar 2: Rule Order, Incentives, and Tax Competition (with John Vella (Oxford) & Heydon Wardell-Burrus (Oxford)) at Toronto today as part of its James Hausman Tax Law and Policy Workshop:

Devereux (2021)

Business Location Decisions With A Global Minimum Tax
In an historic agreement in 2021, 141 countries agreed on imposing a global minimum tax (GMT) on the profits of multinational corporations. Proponents of the GMT argue that the measure will reduce the distortion to businesses location decisions by reducing the dispersion in tax rates internationally. We investigate the impact of the GMT on business location and investment decisions. To do this, we develop a location choice model based on effective average tax rates (EATRs) augmented with incentives for profit-shifting to low-tax jurisdictions. GMT affects the dispersion of EATRs for new investment in different countries, but its impact is nonmonotonic in the threshold rate. For low values of the GMT threshold, the introduction of a minimum tax increases EATRs more in high-tax countries relative to low tax countries, increasing the dispersion of EATRs. As the statutory minimum rate increases, more low-tax countries begin to set their tax rate at the threshold, reducing the dispersion. An increased threshold has heterogeneous cost of capital effects for different countries; we find that a high threshold rate may substantially depress capital accumulation in investment hubs. This analysis provides a novel contribution to the literature on the relationship between taxation and corporate decisions on real activity.

Pillar 2: Rule Order, Incentives, and Tax Competition
Two of the most controversial questions relating to Pillar 2 are the extent to which it will allow countries to engage in tax competition, and which countries will collect the tax revenues it generates. The Model Rules published by the OECD/G20 Inclusive Framework on 20 December 2021 provide somewhat unexpected answers to both questions.

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January 26, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

The Cannabis Conundrum: Constitutional & Policy Concerns In Taxation Of The Marijuana Industry

Beckett Cantley (Northeastern) & Geoffrey Dietrich (Cantley Dietrich), The Cannabis Conundrum: Constitutional & Policy Concerns in Taxation of the Marijuana Industry, 10 Am. U. Legis. & Pol'y Brief 1 (2021):

The cannabis industry has greatly expanded over the last few years, with a majority of states legalizing cannabis in some form. However, despite the growing popularity of the cannabis industry and more companies entering the market, the Internal Revenue Service (“IRS”) has remained steadfast in denying business deductions for cannabis companies. Under Internal Revenue Code (“IRC”) § 280E, the IRS can disallow all ordinary and necessary business expenses by companies trafficking in illegal drugs. The disallowance of ordinary and necessary business expenses greatly hinders cannabis companies, especially for companies legally operating under state law. Several cannabis companies have also attacked the harsh effects of IRC § 280E on constitutional and public policy grounds. Despite a general shift in medical, legal, and public opinion supporting the full legalization of marijuana, legislation still lags far behind. There is currently pending legislation to address the deductions allowed for marijuana companies and reflects a shift in public policy.

One recent attack on IRC § 280E is that the provision violates the Sixteenth Amendment. Under this theory, cannabis companies argue the definition of income under the Sixteenth Amendment requires gain, and thus the disallowance of ordinary and necessary business expenses imposes a tax on more than a company’s income. For example, the Sixteenth Amendment permits a taxpayer to reduce gross receipts by cost of goods sold before a tax may be imposed. The correct method in calculating cost of goods sold also provides another point of contention between the IRS and cannabis companies. Courts continue to classify cannabis companies as “resellers” instead of “producers,” which reduces the amount that cannabis companies can deduct as cost of goods sold.

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January 26, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Law School Ethics Becomes ‘Real,’ Tackles Covid, Social Justice

Bloomberg Law, Law School Ethics Becomes ‘Real,’ Tackles Covid, Social Justice:

Standard legal ethics courses, long considered dry and theoretical by many students, have experienced a renaissance over the past two years due to the pandemic and an increased focus on social justice.

Law school professional responsibility professors say they’ve shifted the focus of their classroom conversations, putting more emphasis on practical topics like what the post-pandemic law office will look like and how to incorporate principles of diversity, equity, and inclusion in future lawyers’ practices. ...

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January 26, 2022 in Legal Ed News, Legal Education | Permalink

Cleveland City Council Unanimously Urges Cleveland State To Remove John Marshall From Law School's Name

Following up on my previous post, Pressure Builds To Remove John Marshall From Cleveland State Law School's Name:,  Cleveland City Council Urges CSU Law School to Remove Name of John Marshall:

Cleveland Law Logo (2021) 3Cleveland City Council Monday unanimously passed a resolution urging Cleveland State University to remove the name of slaveholder U.S. Supreme Court Chief Justice John Marshall from the name of CSU’s Cleveland-Marshall College of Law.

Keeping the name atop a college at Cleveland’s public university amounts to a “black eye,” said Councilman Kevin Conwell, who championed the resolution. He likened keeping the name to flying a Confederate flag.

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January 26, 2022 in Legal Ed News, Legal Education | Permalink

The Great Faculty Disengagement

Chronicle of Higher Education op-ed:  The Great Faculty Disengagement, by Kevin R. McClure (North Carolina) & Alisa Hicklin Fryar (Oklahoma): 

Faculty members aren’t leaving in droves, but they are increasingly pulling away.

As many observers have pointed out, the “Great Resignation” doesn’t perfectly capture what’s happening in the U.S. labor market. Data suggest many people, especially those with jobs in fields like hospitality, aren’t quitting the work force but rather jumping to better opportunities.

In much the same way, the Great Resignation doesn’t perfectly capture what’s happening on college campuses. Faculty members, as unhappy as many of them are, are largely staying put. What has changed is how they approach their jobs. ...

[M]ost faculty members aren’t making big job moves. For them, the Great Resignation looks different. We would describe it as disengagement. They are withdrawing from certain aspects of the job or, on a more emotional level, from the institution itself. Faculty members are not walking away in droves, but they are waving goodbye to norms and systems that prevailed in the past. They are still teaching their courses, supporting students, and trying to keep up with basic tasks. But connections to the institution have been frayed. The work is getting done, but there isn’t much spark to it.

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January 26, 2022 in Legal Ed News, Legal Education | Permalink

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through January 1, 2021) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

    All-Time     Recent
1 Reuven Avi-Yonah (Michigan)  204,966 1 Reuven Avi-Yonah (Michigan) 8,299
2 Dan Shaviro (NYU) 124,235 2 Daniel Hemel (Chicago) 5,211
3 Daniel Hemel (Chicago) 123,709 3 Lily Batchelder (NYU) 4,417
4 Lily Batchelder (NYU) 123,559 4 Bridget Crawford (Pace) 4,240
5 David Gamage (Indiana-Bloom.) 120,522 5 David Kamin (NYU) 3,999
6 Darien Shanske (UC-Davis) 113,421 6 Kim Clausing (UCLA)     3,821
7 David Kamin (NYU) 111,267 7 Kyle Rozema (Washington Univ.) 3,432
8 Cliff Fleming (BYU)    106,716 8 D. Dharmapala (Chicago) 3,279
9 Manoj Viswanathan (UC-Hastings) 103,522 9 Ruth Mason (Virginia) 3,014
10 Rebecca Kysar (Fordham) 102,617 10 Richard Ainsworth (Boston Univ.) 2,693
11 Ari Glogower (Ohio State) 102,084 11 David Gamage (Indiana-Bloom.) 2,661
12 D. Dharmapala (Chicago) 46,356 12 Zachary Liscow (Yale) 2,525
13 Michael Simkovic (USC) 46,210 13 Margaret Ryznar (Indiana-Indy)   2,469
14 Paul Caron (Pepperdine) 39,029 14 Robert Sitkoff (Harvard) 2,427
15 Louis Kaplow (Harvard) 36,210 15 Darien Shanske (UC-Davis)  2,305
16 Richard Ainsworth (Boston Univ.) 33,970 16 Dan Shaviro (NYU) 2,241
17 Bridget Crawford (Pace) 30,200 17 Louis Kaplow (Harvard) 1,970
18 Ed Kleinbard (USC) 28,306 18 Francine Lipman (UNLV) 1,849
19 Vic Fleischer (UC-Irvine) 28,046 19 Brad Borden (Brooklyn) 1,831
20 Robert Sitkoff (Harvard) 27,782 20 Ari Glogower (Ohio State) 1,804
21 Brad Borden (Brooklyn) 27,355 21 Yariv Brauner (Florida) 1,735
22 Jim Hines (Michigan) 26,295 22 Hugh Ault (Boston College) 1,730
23 Ruth Mason (Virginia) 25,423 22 Gregg Polsky (Georgia) 1,586
24 Ted Seto (Loyola-L.A.) 25,321 24 Vic Fleischer (UC-Irvine) 1,456
25 Katie Pratt (Loyola-L.A.) 25,056 25 Shu-Yi Oei (Boston College)  1,381

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January 26, 2022 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink

U.S. Tax Court's Tax Trailblazers: Judge Mary Ann Cohen

U.S. Tax Court's Diversity & Inclusion Series, Tax Trailblazers: Mentoring the Next Generation:

Please join the United States Tax Court as its Tax Trailblazers series continues with Chief Judge Maurice B. Foley interviewing Judge Mary Ann Cohen, the Tax Court’s first female Chief Judge. Today at 7:00-8:15 PM EST (register here). 

Judge Mary Ann Cohen earned her undergraduate degree from the University of California at Los Angeles and her J.D. from the University of Southern California School of Law. Prior to her time on the Court, she practiced law in Los Angeles as a member of Abbott & Cohen.

Appointed by President Reagan and sworn in for her first 15-year term on September 24, 1982, Judge Cohen was reappointed by President Clinton and sworn in for her second term on November 7, 1997. She served as Chief Judge of the Court from June 1, 1996 to September 23, 1997, and from November 7, 1997 to May 31, 2000. Judge Cohen assumed senior status on October 1, 2012 and continues to perform judicial duties on recall.

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January 26, 2022 in Legal Ed News, Legal Education, Tax, Tax News | Permalink

Taxation Of The Digital Economy: Adapting A 21st-Century Tax System To A Twenty-First Century Economy

Assaf Harpaz (S.J.D. 2022, Duke), Taxation of the Digital Economy: Adapting a Twentieth-Century Tax System to a Twenty-First Century Economy, 46 Yale J. Int'l L. 58 (2021):

Yale J Intl Law (2022)This article analyzes the tax challenges of digitalization and the solutions to address them. The article argues in favor of a multilateral approach and proposes applying a new tax based on a worldwide de minimis amount. As more companies conduct business online, current international tax law and its principles have failed to adapt to global commercial practices. Digital-tech giants such as Facebook, Google and Amazon have been able to exploit the international tax framework by avoiding a physical presence in the jurisdiction of their consumers. As a result, profits of highly digitalized enterprises are often stashed in low tax countries and left untaxed in markets where substantial economic activity occurs.

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January 26, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, January 25, 2022

Mazur Presents Can Blockchain Revolutionize Tax Administration? Today At San Diego

Orly Mazur (SMU; Google Scholar) presents Can Blockchain Revolutionize Tax Administration? (reviewed by Sloan Speck (Colorado; Google Scholar) here) at San Diego today as part of its Tax Law Speaker Series hosted by Miranda Fleischer:

Mazur-OrlyExperts predict that the use of smart contracts and other applications of blockchain technology can potentially revolutionize the manner in which we do business. Blockchain promises the elimination of middlemen, as well as trust, transparency, and improved access to shared information and records. Thus, it is no surprise that companies and entrepreneurs are now developing blockchain solutions for an array of markets, ranging from real estate to health care. But, can this new technology revolutionize tax administration? Our current tax administration system suffers from a large tax gap, high compliance and administrative costs, and many inefficiencies. Blockchain’s core attributes may present a solution to these shortcomings.

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January 25, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

The Robotic Revolution: A Tax Policy Collision Course

Kathryn Kisska-Schulze (Clemson) & Rodney P. Mock (California Polytechnic State University), The Robotic Revolution: A Tax Policy Collision Course, 93 Temp. L. Rev. 301 (2021): 

Media projections depict that robotics, process automation, and artificial intelligence threaten human workforce sustainability. Two oft cited studies forecast that technological innovation could jeopardize more than one third of the U.S. workforce. Significant worker displacement would devastate federal funding that is heavily reliant on individual income tax revenue and payroll taxes. Concerns of mass joblessness have led Bill Gates and others to propose a robot tax, with some suggesting a complete reworking of the Internal Revenue Code to address looming predictions.

While these ideas are critical to the robot immersion dialogue, they are largely premised on fear and the proposition that human labor should be protected. As history supports, automation has always threatened the human workforce, which has demonstrated a great propensity for adaptation. As resisting the tractor for fear of replacing farmers’ grit would have been senseless, it is now imprudent to tax innovation for fear of automation substitution. From its inception, the U.S. Constitution has protected innovation and intellectual property. Similarly, the Internal Revenue Code serves to incentivize research and development. Taxing robots would disrupt our nation’s deeply rooted tax policies.

As a matter of astute policy, this Article advances that Congress should not impose a robot tax.

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January 25, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

As The Pandemic Drags On, Law Professors Are Making Changes

ABA Journal, As the Pandemic Drags On, Law Professors Are Making Changes:

[L]aw professors say the pandemic changed how they interact with students, and many find themselves sharing personal information they may not have previously shared. That’s partially due to the chaos of COVID-19, but it’s also a way for faculty to convince students they are there to help.

And despite the various problems law schools face during the pandemic, students’ overall satisfaction rates have only slightly dropped between 2019 and 2021, according to the results from the most recent Law School Survey of Student Engagement. In 2019, 82% of the law students rated their education experiences as “good,” compared to 78% in 2021.

“I think a large part of that is faculty efforts to really connect with them,” says Meera Deo, a Southwestern Law School professor, who also serves as director of the LSSSE.

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January 25, 2022 in Legal Ed News, Legal Education | Permalink

More Commentary On The Amy Wax Controversy At Penn

St. Louis Symposium: Teaching Law Online

Symposium, Teaching Law Online, 65 St. Louis U. L.J. 455-726 (2021):

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January 25, 2022 in Conferences, Legal Ed Conferences, Legal Ed Scholarship, Legal Education, Teaching | Permalink

Cowan & Cutler: Cross-Fertilizing The Tax Classroom

Mark J. Cowan (Boise State) & Joshua Cutler (Boise State), Cross-Fertilizing the Tax Classroom, 19 U. Pitt. Tax Rev. ___ (2022):

Pittsburgh Tax Review (2021)Taxation, embedded in both the legal and accounting professions, is taught in law schools and business schools. Courses in the former develop the skills of future tax attorneys, who will engage in tax structuring, document drafting, and litigation. Courses in the latter develop the skills of future CPAs, who will engage in tax compliance. But both lawyers and CPAs do tax research, tax planning, and represent clients on audit. The skills both professionals need and the content they are taught in both schools overlap to a great extent. (Indeed, masters of taxation courses in accounting programs often use law school casebooks.) Because of the overlap, there is much that teachers in both schools can learn from one another. In this contribution, we examine ways that tax accounting teaching approaches can be used in the law school classroom and vice versa. 

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January 25, 2022 in Legal Ed Scholarship, Legal Education, Scholarship, Tax, Tax Scholarship, Teaching | Permalink

Microaggressions In The Context Of Academic Communities

Catharine P. Wells (Boston College; Google Scholar), Microaggressions in the Context of Academic Communities, 12 Seattle J. Soc. Just. 319 (2013):

In the late 1990s, I was invited to speak on a panel about the difficulties encountered by women in the legal academy. In this connection, I wrote a paper about microaggressions in which I used some of my own experiences as the basis for analysis. The frequent response to my examples was, “That can’t be true!” or “Why are you so sensitive?” Of course, neither of these reactions came from other women or men of color. But the response was telling. What seemed burdensome to me was invisible or seemingly harmless to the group of white men that dominated most law schools. In this context, the publication of Presumed Incompetent1 is an important milestone. First, it demonstrates that little has changed in the academic landscape. Second, it describes the especially vulnerable position still occupied by women of color. Third, by bundling these stories, the book makes skeptical responses less viable—we are telling the truth and we are not exceptionally sensitive.

Of course, the past few decades have brought some progress. Although the book makes it clear that the academic landscape is still littered with landmines for women of color, it is also true that the pool of tenured faculties has become less overwhelmingly white and male. This creates important opportunities for discussion and change. White women, in particular, can play a constructive role but only if we recognize that our hard won places in the establishment create the risk of blindness. Unless we remain alert, a microaggressive climate may become as invisible to us as it has been to our male colleagues.

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January 25, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Ambivalent Tax Morale Building In China

Huina Xiao (Macau; Google Scholar), Ambivalent Tax Morale Building in China, 20 China: An Int'l J. __ (2022):

This study examines the measures taken in China over the last four decades which aim to encourage taxpayer compliance through building a tax morale—fairness, equity and reciprocity—between the government and citizens. The process is referred to as ‘ambivalent tax morale building’, characterised as the state’s contradictions and conflicting aspirations in tax governance. The ambivalence is driven by the party’s goals of maintaining both party legitimacy and monopoly, as well as a lack of state capacity. 

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January 25, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, January 24, 2022

Dagan Presents Unbundled Tax Sovereignty: Refining The Challenges Today At Brooklyn

Tsilly Dagan (Oxford; Google Scholar) presents Unbundled Tax Sovereignty: Refining the Challenges at Brooklyn today as part of its Colloquium on International Economic Law hosted by Steven Dean and Julian Arato:

Tsilly_ibfdTax sovereignty under globalization is at risk of unraveling. Not only–as is often argued — because international organizations or other states exert external power on sovereign states. Instead, it is the process of fragmentation of state sovereignty that undermines its own foundations. My main claim is that globalization increasingly alters the interaction between states and their constituents. Globalization, and the choices and flexibility it offers (some) taxpayers, threatens to transform taxpayers from members in a political community into consumers of public goods and services. Such transition, I argue, undermines the basis for state's coercive power. Importantly, this transformation does not affect all individuals in the same way. It varies between taxpayers, between different stages of their lives as well as among different aspects of their lives. Hence, in reality, taxpayers' interactions with the state create a mosaic of differing shades and patterns of consumer-member combinations. This diversity has many virtues, but it also entails serious pitfalls, which is why I argue that — in order to ensure social contracts' continued legitimacy — states should re-configure their social contracts with their constituents to accommodate these trade-offs.

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January 24, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

WSJ: The Huge Tax Bills That Came Out Of Nowhere At Vanguard

Wall Street Journal, The Huge Tax Bills That Came Out of Nowhere at Vanguard:

VanguardIt’s easy for a small investor to make big mistakes. It would be even easier for giant investment firms to help prevent them—but, sadly, the asset-management industry seems to have other priorities.

Just look at what happened last month to some investors in Vanguard’s Target Retirement funds. They got whacked with huge capital-gains distributions. Those payouts triggered painful tax bills they could easily have avoided if Vanguard had simply warned them not to hold these funds outside of a tax-advantaged retirement account.

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January 24, 2022 in Tax, Tax News | Permalink

IRS Chief Counsel Seeks To Hire 200 Experienced Attorneys (Salary: $79,363 - $176,300)

IR-2022-17, IRS Chief Counsel Looking For 200 Experienced Attorneys to Focus on Abusive Tax Deals; Job Openings Posted:

IRS Office of Chief Counsel Logo (2015)The Internal Revenue Service's Office of Chief Counsel today announced plans to hire up to 200 additional attorneys to help the agency combat syndicated conservation easements, abusive micro-captive insurance arrangements and other tax schemes.

"Combating abusive tax transactions that threaten to undermine our tax system remains a top priority for our enforcement efforts," said IRS Commissioner Chuck Rettig. "It's critical we work to ensure a fair tax system and adding these new attorneys will help us in on our ongoing efforts in this arena."

These positions will be available around the country, and the IRS encourages qualified candidates to apply. The first announcements for these positions have already been posted on USAJOBS. Interested persons should apply today or as soon as possible via the following announcements:

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January 24, 2022 in IRS News, Legal Education, Tax | Permalink

Ohio State Seeks To Hire A Junior Lateral Tax Prof

The Ohio State University Moritz College of Law seeks to fill at least one tenure-track position:

Ohio State (2023)We are considering hiring a junior to mid-career lateral candidate for a position in the area of Tax Law or in both Business and Tax Law. 

The Ohio State University Moritz College of Law is committed to building and maintaining a diverse and inclusive community to reflect human diversity and improve opportunities for all. Diversity, inclusion, and equity are essential to the excellence of our community, culture, and curriculum, and the pursuit of this excellence is critical to our educational mission.

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January 24, 2022 in Legal Education, Tax, Tax Prof Jobs | Permalink

Leadership Evolution: The Rise Of Lawyers In The C-Suite

Garry Jenkins (Dean, Minnesota; Google Scholar) & Jon J. Lee (Minnesota; moving to Oklahoma), Leadership Evolution: The Rise of Lawyers in the C-Suite, 96 Tul. L. Rev. __ (2022):

Tulane Law ReviewThe traditional thinking about the path to the top corporate executive leadership posts, reaching the so-called C-suite, is that it begins with earning an MBA degree. By contrast, the JD degree is thought of as one that prepares graduates for the practice of law, for government service, or for public interest advocacy. Since lawyers have historically been trained to protect clients from risk, law is not associated with senior business leadership. Yet, an evolving and accelerating trend is emerging: more lawyers are reaching or crossing over to become part of top corporate management teams. We present findings from our empirical study on corporate leadership profiles that documents a rise in the status of and opportunities for corporate lawyer-leaders and tracks major shifts in lawyers holding senior executive posts over time, thereby challenging the conventional wisdom on corporate talent management.

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January 24, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Lesson From The Tax Court: The Qualifying Child Misnomer

Camp (2021)Like last week’s lesson, this week deals with how the Tax Code treats families as economic units and the difficulty in determining the scope of the proper family group.

Section 151 permits taxpayers a deduction for dependents.  Section 152 defines that term.  It divides the general concept of dependent into two buckets: one is labeled “Qualifying Child” (QC) and the other is labeled “Qualifying Relative” (QR).  The QC bucket is then used—more or less—to determine eligibility for the various child-rearing-related tax benefits in the Tax Code, such as the child credit, the earned income tax credit, etc.

Both labels are misnomers, but today’s lesson is about two common issues that arise with determining who is a QC.  In Carol Denise Griffin v. Commissioner, T.C. Sum. Op. 2021-26 (Aug. 16, 2021) (Judge Vasquez), we learn that a taxpayer can claim a deduction for a Qualifying Child who is not, actually, the taxpayer’s literal child.  However, in Nowran Gopi v. Commissioner, T.C. Sum. Op. 2021-41 (Dec. 2, 2021) (Judge Panuthos), we learn that a taxpayer may not do that when the Qualifying Child’s actual parent also files a tax return claiming the same QC.  Details below the fold.

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January 24, 2022 in Bryan Camp, New Cases, Scholarship, Tax | Permalink | Comments (1)

Call For Presentations: UC-Irvine Tax Symposium

Call For Presentations: UC-Irvine Tax Sympsium:

UCI Law (2022)The Graduate Tax Program at the University of California, Irvine School of Law will host its 4th Annual UCI/Lavar Taylor Tax Symposium on March 21, 2022. Due to the ongoing COVID situation, we will host the symposium virtually. The theme this year is The Global Tax Deal and the Changing International Tax Order.

The purpose of this full-day symposium is to launch an in-depth discussion on the “global tax deal” adopting the OECD two-pillar framework, signed by 136 countries last October. We are interested in submissions for proposed presentations on the ramifications of the global deal from any point of view, including, but not limited to: economic, political, legal, social, racial, as well as any critical perceptive.

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January 24, 2022 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

TaxProf Blog Weekend Roundup

Sunday, January 23, 2022

What Standup Comedy And Deaning Have In Common

New York Times op-ed:  The Sublime Beauty of My Friend Bob Saget’s Filthy Comedy, by Penn Jillette:

Bob Sagat 3My children are teenagers, ages 15 and 16, and they know the comic Bob Saget was my friend. They know he died earlier this week, and that I’m grieving. They want to comfort me. But when they saw clips of Bob on the internet, making hard-core jokes about pedophilia and incest, they were offended. They thought my friend must have been a bad person, and it was hard for them to understand how I could have loved him.

I don’t know if I can blame them. How could they understand that doing transgressive comedy was, in Bob’s hands, not about hate and pain but, rather, a daredevil act of mutual trust? ...

He had a big smile and joy for the world in Full House and on America’s Funniest Home Videos. Everyone loved and trusted Bob in those roles. You wanted to hug him. ... 

Some people are saying now that the real Bob was very different from that good-guy image, but I disagree. Offstage he was loving, kind, open, funny, a great friend and a great father. He also told filthy, disgusting, offensive jokes.

What Bob Saget practiced was emotional stage diving. He would fall face-first into the audience’s arms. If the audience didn’t trust him enough to catch him with their laughs, it would be worse than smashing onto a concrete floor.

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January 23, 2022 in Faith, Legal Education | Permalink

The Politics Of Religion And Taxation: Keeping Church And State Separate

Mary Ann Hofmann (Appalachian State; Google Scholar), The Politics of Religion and Taxation: Keeping Church and State Separate, 22 J. Mgmt. Pol'y & Prac. __ (2021):

This paper discusses tax laws and federal court decisions relating to the taxation or exemption of religious non-profit organizations. In a democracy characterized by separation of church and state, what role does the federal government play in regulating the activities and financial transactions of churches and other religious non-profit organizations? What are the federal statutory requirements regarding tax exemption for churches, tax deductibility of donations to churches, and political activity by churches, and are these requirements justified? Does this regulation interfere with the free exercise of religion, or does the federal government violate the establishment clause of the First Amendment by providing inappropriate tax benefits to churches and clergy?

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January 23, 2022 in Faith, Scholarship, Tax, Tax Scholarship | Permalink

WSJ Op-Ed: Yeshiva University, The Jewish College Basketball Powerhouse

Wall Street Journal Op-Ed:  Yeshiva University, the Jewish College Basketball Powerhouse, by Ari Berman (President, Yeshiva University):

Yeshiva MaccabeesThe Jewish people can take pride in collective accomplishments across a range of human endeavors. I never imagined that basketball would be one of them, but it’s not the only thing that’s taken me by surprise since I became president of Yeshiva University four years ago.

As 2021 came to an end, so did our Division III basketball team’s remarkable 50-game winning streak. ... When I took this job, I anticipated celebrating student success in rabbinics, law, the humanities, business, tech and science. I never expected the energy and excitement of presiding over a sports powerhouse. For the past few years, I have watched game after game in which young men with great Jewish pride score basket after basket. It is beautiful and breathtaking to see their graceful play and teamwork in action.

Many have asked me if I think these wins are an act of divine intervention. This is the wrong question. As a rabbi—as a Jew, for that matter—I believe that everything in life involves divine intervention coupled with human agency. Even losing. The right question is: How could a small research university produce such a team? ...

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January 23, 2022 in Faith, 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 a new paper joining the list at #1 and some reshuffling of the order within the Top 5:

  1. SSRN Logo (2018)[564 Downloads]  On the Evolving VAT Concept of Fixed Establishment, by Rita de la Feria (Leeds; Google Scholar)
  2. [308 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
  3. [223 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
  4. [205 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
  5. [190 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)

January 23, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, January 22, 2022

This Week's Ten Most Popular TaxProf Blog Posts

7th Circuit Vacates Reprimand After University Of Illinois Law Grad Cites Financial Hardship Caused By $543,000 Student Loan Debt

ABA Journal, Lawyer With Over $543K in Student Debt Gets Reprimand Vacated After Telling Court of Financial Hardship:

JafriA federal appeals court has vacated its reprimand of a lawyer who skipped oral arguments in a late-settled case, citing information provided in her request for reconsideration.

In a Jan. 14 order, the 7th U.S. Circuit Court of Appeals at Chicago vacated its Dec. 3 reprimand of Farva Jafri of Armonk, New York. ...

Jafri told the court in a footnote that she currently has federal student loan debt of $543,200. She is a graduate of the University of Illinois College of Law and is licensed to practice in Illinois and New York, according to lawyer information published by those states. ...

“Jafri’s financial status is not something of which she is proud,” Jafri’s motion said. “But her law practice primarily serves the poor. She does not have clients that pay high hourly fees.”

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January 22, 2022 in Legal Ed News, Legal Education | Permalink

The Top 50 Law Schools: Admissions

Following up on my previous posts:

24/7 Wall Street, 50 Hardest Law Schools to Get Into:

To determine the 50 hardest law schools to get into, 24/7 Wall St. created an index based on three measures of selectivity from the American Bar Association: acceptance rate, or the number of offer letters a school sent in fall 2021 as a share of the number of applications; median LSAT score of newly enrolled students in fall 2021; and median undergraduate GPA of newly enrolled students. (We also reviewed the share of students in the class of 2018 who took the bar exam within two years of graduation and passed.)

  1. Yale
  2. Harvard
  3. Stanford
  4. Virginia
  5. Chicago
  6. Penn
  7. Columbia
  8. Michigan
  9. Washington University
  10. NYU
  11. Georgetown
  12. Northwestern
  13. Cornell
  14. Vanderbilt
  15. Duke
  16. UC-Berkeley
  17. UCLA
  18. USC
  19. Texas
  20. Florida
  21. Boston University
  22. Notre Dame
  23. Arizona State
  24. Georgia
  25. George Washington
  26. Texas A&M
  27. Alabama
  28. UC-Irvine
  29. North Carolina
  30. Fordham
  31. Emory
  32. Florida State
  33. Minnesota
  34. Pepperdine
  35. Utah
  36. George Mason
  37. Villanova
  38. Boston College
  39. BYU
  40. William & Mary

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January 22, 2022 in Legal Education | Permalink

Videos: How To Do Legal Research And Tax Research

How To Do Legal Research
Learn or review how to do effective legal research. Indiana University law librarian Ashley Ahlbrand walks through the steps involved in the legal research process.

How To Do Tax Research
This video covers both legal research generally & variations specific to tax. Indiana University law librarian Ashley Ahlbrand walks through the steps involved in doing effective tax law research. The video also covers primary vs. secondary sources and tax-specific sources.

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January 22, 2022 in Legal Education, Tax | Permalink

Friday, January 21, 2022

Federalizing Tax Justice

Reuven Avi-Yonah (Michigan), Orli Avi-Yonah, Nir Fishbien (S.J.D. 2019, Michigan), New York) & Haiyan Xu (University of International Business and Economics Law School), Federalizing Tax Justice, 53 Ind. L. Rev. 461 (2020):

Most large federal countries have explicit ways to reduce the economic disparities between more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign and the federal government does not distribute revenues to equalize their spending capacity. While the overall impact of the federal tax and transfer system may be to shift revenues from richer to poorer states, this is not acknowledged and to the extent it is discussed in the literature it is generally condemned as unfair to the states that send more revenues to Washington than they get back in federal transfer payments. Nor is it politically likely that the US will adopt a formal fiscal equalization mechanism.

This paper proceeds from the normative position that the increasing gap between the richer and poorer areas of the US is a problem that requires federal intervention and that the federal tax system can play a role in that intervention.

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January 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Tax Policy In The Biden Administration

Weekly Legal Education Roundup

Next Week’s Tax Workshops

Next Week's Tax Workshops - twitter

Monday, January 24: Tsilly Dagan (Oxford; Google Scholar) will present Unbundled Tax Sovereignty: Refining the Challenges as part of the Brooklyn Colloquium on International Economic Law. If you would like to attend, please email Steven Dean.

Tuesday, January 25: Orly Mazur (SMU; Google Scholar) will present Can Blockchain Revolutionize Tax Administration? (reviewed by Sloan Speck (Colorado; Google Scholar)) here) as part of the San Diego Tax Law Speaker Series. If you would like to attend, please register here.

Wednesday, January 26: Michael Devereux (Oxford) will present Pillar 2: Rule Order, Incentives, and Tax Competition (with John Vella (Oxford) & Heydon Wardell-Burrus (Oxford)) and Business Location Decisions With A Global Minimum Tax (with Francois Bares (Wisconsin) & Irem Guceri (Oxford; Google Scholar) as part of the Toronto James Hausman Tax Law and Policy Workshop. If you would like to attend, please contact Robert Lines.

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January 21, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

2020-21 Moot Court Rankings

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

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

Moot Court

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January 21, 2022 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal Education | Permalink

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

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

Yale Law Journal (2020)The American Rescue Plan Act was both a major infusion of economic aid to low-income and middle-class Americans and an opportunity for the Biden Administration to keep its promise to promote racial equity. This Essay analyzes ARPA’s major provisions to determine their potential impact on racial equity. It argues that the Biden Administration should do more to tackle racial wealth inequality and the structural issues in the tax code that allow those at the top of the income distribution to benefit disproportionately from tax subsidies. It also underscores the larger challenge of achieving racial equity in the face of courts, particularly conservative judges, that treat race-based policies designed to counteract racial inequities as discriminatory.

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January 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

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

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

Yale Law Logo (2020)Yale Law School’s disastrous mishandling of a discrimination complaint actually shows that diversity officials can do valuable work — if we consider what they should have done.

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

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

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

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

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

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January 21, 2022 in Legal Ed News, Legal Education | Permalink

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

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

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

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January 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, January 20, 2022

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

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


January 20, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink