Shaviro Reviews Rebellion, Rascals, And Revenue: Tax Follies And Wisdom Through The Ages

Daniel Shaviro (NYU; Google Scholar), Tell Me a Tax Story (JOTWELL) (reviewing Michael Keen (IMF) & Joel Slemrod (Michigan; Google Scholar), Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages (Princeton University Press 2021)) (reviewed by Reuven Avi-Yonah (Michigan; Google Scholar), Steven Bank (UCLA; Google Scholar), and Frank Colella (Pace)):

As the saying ought to go, those who forget history are doomed to miss out on a lot of great stories. In Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages, Michael Keen and Joel Slemrod do their formidable best to save us from this dire fate. They also amply fulfill their aim of proving the truth of their opening quotation, from H.L. Mencken, to the effect that taxation is not just “eternally lively” but of greater interest than “either smallpox or golf.”

Keen and Slemrod are also so impressively comprehensive in their self-set task of combing thousands of years of history, across multiple continents, for enjoyable or illuminating tax anecdotes that I started to take it as a challenge. I read a lot of history books on the side. So, could I think of stories worth including that they had left out?

This did not go so well. Taxes as the subject of the Rosetta Stone? Check. Window taxes, salt taxes, beard taxes, and taxes on bachelors? Of course. Classic-era British rock lyrics complaining about high taxes? Everyone knows about the Beatles in “Taxman,” but what about the Who in “Success Story”? Or the Kinks in “Sunny Afternoon”? Yes, they have all three. ...

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The ABA Should Be Required To Disclose Law School Accreditation Information

Henry Webb (Palm Beach Atlantic), Patrick Baker (Tennessee; Google Scholar) & Kaleb Byars (J.D. 2021, Tennessee), Accreditation Information Produced by United States Law Schools to the American Bar Association Should be Made Available to the Public From Both Law and Policy Perspectives, 34 Loy. U. Chi. Consumer L. Rev. 79 (2021):

This article argues that, from a legal perspective, the American Bar Association (“ABA”) is the functional equivalent of a government agency and so is subject to the United States Freedom of Information Act. Under Soucie v. David and related cases, the fact that the ABA has the final decision-making authority to decide whether a United States law school is or is not to be accredited renders it the functional equivalent of a government agency, and the ABA’s refusal to make available to the public the voluminous amount of important information produced to the ABA by law schools going through the accreditation and accreditation review processes is illegal and would not likely survive a challenge in court.

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Emory Seeks To Hire 1-2 Entry Level Or Lateral Tax Profs

Emory University Careers, Tax Law Professor (Open Rank):

Emory University School of Law seeks to fill one to two positions in tax law beginning in the 2023-2024 academic year. The positions are open to entry-level and lateral candidates at the rank of assistant or associate professor (with or without tenure).

Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in tax law or related fields, and the ability to teach at least one tax course. Where a candidate has met the law school’s standards for scholarly excellence and demonstrated the ability to teach tax-related courses, a candidate’s interest in teaching in the 1L curriculum will be an additional positive factor.

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What Do Law Professors Believe About Law And The Legal Academy?

Eric Martínez (MIT) & Kevin Tobia (Georgetown; Google Scholar), What Do Law Professors Believe about Law and the Legal Academy? An Empirical Inquiry:

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates.

Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law.

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The Tax Treatment Of The Metaverse Economy And The Potential For A New Offshore Tax Haven

Jeffrey Owens & Nathalia Oliveira Costa (Vienna University of Economics & Business), The Tax Treatment of the Metaverse Economy and the Potential for a New Offshore Tax Haven, 176 Tax Notes Fed. 657 (Aug. 1, 2022):

In this article, Owens and Oliveira Costa consider how the development of the metaverse, cryptocurrencies, and non-fungible tokens could fundamentally change established tax concepts and the way tax compliance functions.

Future Research
The metaverse, with its unimaginable potential, will continue to be the subject of a complex and wide-ranging discussion. Virtual worlds are still part of our physical world and, as such, they must be subject to laws, taxes, and rules. This article merely scratches the surface of some of the metaverse’s tax challenges, and there are more questions than answers.

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Trailblazing And Living A Purposeful Life In The Law: A Dakota Woman’s Reflections As A Law Professor

Angelique EagleWoman (Mitchell|Hamline; Google Scholar), Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman’s Reflections as a Law Professor, 51 Sw. U. L. Rev. 227 (2022):

This Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. Unequal Profession: Race and Gender in Legal Academia is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As a Native American woman law professor, my experience and journey in legal academia resonate with many of the topics in this important work.

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 75, No. 4 (Summer 2022):

• Karie Davis-Nozemack (Georgia Tech; Google Scholar) & Sarah Webber (Dayton; Google Scholar), No Appeal for You: Reforming Appeals for Tax Whistleblowers, 75 Tax Law. 637 (2022)
• Bruce McGovern (South Texas), Cassady Brewer (Georgia State) & James Delaney (Wyoming), Recent Developments in Federal income Taxation: The Year 2021, 75 Tax Law. 681 (2022)

A Supreme Dilemma: Admissions v. Representation In Law School And Legal Profession

Ahmuan Williams (J.D. 2023, Oklahoma), A Supreme Dilemma: Admissions v. Representation in Law School and Legal Profession:

Diversity in the legal profession does not have to be a myth, but we have to put in the effort to do it. A Supreme Dilemma: Admissions v. Representation in Law School and Legal Profession gives you an idea of the challenges and history of being a minority in the legal profession created exclusively for white men. This paper examines affirmative action and its need to diversify the legal profession. It starts by examining the controversies in diversity and the legal profession. Then it acknowledges the positive impacts of diversity initiatives in the legal profession. It concludes by recommending that we adopt long-term diversity initiatives through our state constitutions, amendments, and education.

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Cato: IRS Funding Hypocrisy In The Inflation Reduction Act

Chris Edwards (Cato Institute), Senate Bill: IRS Funding Hypocrisy:

The Senate’s Inflation Reduction Act includes an $80 billion increase in the Internal Revenue Service budget over a decade, which would roughly double the agency’s budget by 2031. ...

Senators supporting the bill talk about “tax cheats” and “closing tax loopholes.” But this is a huge hypocrisy. The Senate bill itself creates new loopholes and tax breaks, and complicated breaks drive noncompliance with the tax system. The Senate bill would expand a slew of special‐​interest credits and other breaks within a $370 billion orgy of green subsidies and corporate welfare.

This chart illustrates the relationship between politicians and special‐​interest tax breaks:

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Tax Prof Rankings By H-Index Since 2017 (Google Scholar)

Brian Leiter recently ranked the Top 75 law professors by citations as measured by Google Scholar H-Index All. Only two tax professors ranked in the Top 75:  Alan Auerbach (#8; UC-Berkeley) and James Hines (#24; Michigan). As Brian notes, many law professors do not have Google Scholar pages and citation counts vary by field. For more on the use of Google Scholar to measure law professor scholarly influence, see Gary Lucas (Texas A&M), Measuring Scholarly Impact: A Guide for Law School Administrators and Legal Scholars, 165 U. Pa. L. Rev. Online 165 (2017).

Yesterday I posted Google Scholar H-Index All rankings of the Top 105 tax professors with Google Scholar pages (data collected on August 5). Here are the Google Scholar H-Index Since 2017 rankings of the Top 100 tax professors with Google Scholar pages. If you are a full-time law school tax professor with a Google Scholar page and we missed including you, please contact me.

Rank	Name	School	Google Scholar H-index (Since 2017)
1	Alan Auerbach	UC-Berkeley	43
2	James Hines	Michigan	36
3	Reuven Avi-Yonah	Michigan	25
3	Dhammika Dharmapala	Chicago	25
5	Kimberly Clausing	UCLA	20
5	David Weisbach	Chicago	20
7	Jacob Goldin	Chicago	19
7	Edward McCaffery	USC	19
9	Dan Shaviro	NYU	18
9	Robert Sitkoff	Harvard	18
11	Brian Galle	Georgetown	17
11	Kristin Hickman	Minnesota	17
13	Daniel Hemel	NYU	16
13	Eric Zolt	UCLA	16
15	Leandra Lederman	Indiana (Maurer)	15
15	Kyle Logue	Michigan	15
17	Yariv Brauner	Florida	14
17	Chris Sanchirico	Penn	14
19	Bridget Crawford	Pace	13
19	Nancy Knauer	Temple	13
19	Diane Ring	Boston College	13
22	David Gamage	Indiana (Maurer)	12
22	Zachary Liscow	Yale	12
22	Ruth Mason	Virginia	12
22	Michael Simkovic	USC	12
26	Hugh Ault	Boston College	11
26	Clifton Fleming	BYU	11
26	Rebecca Kysar	Fordham	11
26	Sarah Lawsky	Northwestern	11
26	Ajay Mehrotra	Northwestern	11
26	Shu-Yi Oei	Boston College	11
26	Darien Shanske	UC-Davis	11
33	Steven Bank	UCLA	10
33	Joshua Blank	UC-Irvine	10
33	Victor Fleischer	UC-Irvine	10
33	Anthony Infanti	Pittsburgh	10
33	Omri Marian	UC-Irvine	10
33	Lloyd Hitoshi Mayer	Notre Dame	10
33	Nancy McLaughlin	Utah	10
33	Susan Morse	Texas	10
33	James Repetti	Boston College	10
33	Kyle Rozema	Washington Univ.	10
33	Stephen Shay	Boston College	10
44	Ellen Aprill	Loyola-L.A.	9
44	Leslie Book	Villanova	9
44	John Brooks	Fordham	9
44	John Coverdale	Seton Hall	9
44	Kathleen Delaney Thomas	North Carolina	9
44	Andrew Hayashi	Virginia	9
44	Linda Jellum	Idaho	9
44	Leigh Osofsky	North Carolina	9
44	Jay Soled	Rutgers	9
44	Linda Sugin	Fordham	9
44	David Walker	Boston Univ.	9
55	Samuel Brunson	Loyola-Chicago	8
55	Paul Caron	Pepperdine	8
55	Heather Field	UC-Hastings	8
55	Francine Lipman	UNLV	8
55	Henry Ordower	St. Louis	8
55	Gregg Polsky	Georgia	8

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Avi-Yonah & Gamage: Billionaire Mark-To-Market Reforms

Reuven Avi-Yonah (Michigan; Google Scholar) & David Gamage (Indiana; Google Scholar), Billionaire Mark-to-Market Reforms: Response to Susswein and Brown, 176 Tax Notes Fed. 555 (July 25, 2022):

In their essay, Is It Time to Tax Disney’s Unrealized Capital Gains From 1965?, [176 Tax Notes Fed. 1717 (June 13, 2022),] Donald B. Susswein and Kyle Brown argue that a mark-to-market reform like the recent proposals for billionaire income tax reforms would amount to double taxation. We explain here why their arguments are incorrect. Instead, the primary impact of enacting a billionaire income tax reform would be to close the loopholes and combat the harmful political-optionality dynamics that enable many billionaire and megamillionaire taxpayers to fully and permanently escape income taxation on the majority of their true investment gains.

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College Endowments Post 10.2% Loss, Biggest Decline Since 2009's 17.6% Loss

Bloomberg, College Endowments Post Biggest Losses Since Financial Crisis:

Investments in US college endowments declined the most since the global financial crisis, owing in part to double-digit losses in US equity markets.

Endowments lost a median 10.2% before fees for the 12 months through June, according to data to be published Tuesday by Wilshire Trust Universe Comparison Service.

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Tax Prof Rankings By H-Index All (Google Scholar)

Brian Leiter recently ranked the Top 75 law professors by citations as measured by Google Scholar H-Index All. Only two tax professors ranked in the Top 75:  Alan Auerbach (#8; UC-Berkeley) and James Hines (#24; Michigan). As Brian notes, many law professors do not have Google Scholar pages and citation counts vary by field. For more on the use of Google Scholar to measure law professor scholarly influence, see Gary Lucas (Texas A&M), Measuring Scholarly Impact: A Guide for Law School Administrators and Legal Scholars, 165 U. Pa. L. Rev. Online 165 (2017).

Here are the Google Scholar H-Index All rankings of the Top 105 U.S. tax professors with Google Scholar pages (data collected on August 5). If you are a full-time law school tax professor with a Google Scholar page and we missed including you, please contact me. 

Rank	Name	School	Google Scholar H-index (All)
1	Alan Auerbach	UC-Berkeley	91
2	James Hines	Michigan	63
3	David Weisbach	Chicago	35
4	Reuven Avi-Yonah	Michigan	34
4	Dan Shaviro	NYU	34
6	Dhammika Dharmapala	Chicago	31
7	Edward McCaffery	USC	30
8	Kimberly Clausing	UCLA	26
8	Brian Galle	Georgetown	26
8	Kyle Logue	Michigan	26
8	Chris Sanchirico	Penn	26
8	Eric Zolt	UCLA	26
13	Robert Sitkoff	Harvard	24
14	Nancy Knauer	Temple	23
15	Kristin Hickman	Minnesota	22
15	Steven Bank	UCLA	22
17	Leandra Lederman	Indiana (Maurer)	21
18	Jacob Goldin	Chicago	20
19	Daniel Hemel	NYU	19
19	Richard Kaplan	Illinois	19
19	Diane Ring	Boston College	19
22	Ellen Aprill	Loyola-L.A.	17
22	Yariv Brauner	Florida	17
22	Ruth Mason	Virginia	17
22	Nancy McLaughlin	Utah	17
22	Jay Soled	Rutgers	17
27	Hugh Ault	Boston College	16
27	Paul Caron	Pepperdine	16
27	John Coverdale	Seton Hall	16
27	Bridget Crawford	Pace	16
27	Victor Fleischer	UC-Irvine	16
27	Clifton Fleming	BYU	16
33	Anthony Infanti	Pittsburgh	15
33	Lloyd Hitoshi Mayer	Notre Dame	15
33	Ajay Mehrotra	Northwestern	15
33	Gregg Polsky	Georgia	15
33	Richard Pomp	Connecticut	15
33	Linda Sugin	Fordham	15
39	David Gamage	Indiana (Maurer)	14
39	Shu-Yi Oei	Boston College	14
39	James Repetti	Boston College	14
39	Darien Shanske	UC-Davis	14
39	Stephen Shay	Boston College	14
39	David Walker	Boston Univ.	14
45	Bradley Borden	Brooklyn	13
45	Sarah Lawsky	Northwestern	13
45	Michael Simkovic	USC	13
48	Samuel Brunson	Loyola-Chicago	12
48	Terrence Chorvat	George Mason	12
48	Linda Jellum	Idaho	12
48	Rebecca Kysar	Fordham	12
48	Francine Lipman	UNLV	12
48	Zachary Liscow	Yale	12
48	Omri Marian	UC-Irvine	12
48	Theodore Seto	Loyola-L.A.	12
48	Peter Wiedenbeck	Washington Univ.	12
57	Joshua Blank	UC-Irvine	11
57	Neil Buchanan	Florida	11
57	Stephanie Hoffer	Ohio State	11
57	John Miller	Idaho	11
57	Susan Morse	Texas	11
57	Henry Ordower	St. Louis	11

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Socialism, Progressive Taxation, And The Fiscal State

Sol Picciotto (Lancaster, London; Google Scholar), Socialism, Progressive Taxation, and the Fiscal State:

This paper traces the philosophical, political, sociological and economic underpinning for the advocacy by socialists of progressive taxation, from the Communist Manifesto to recent supporters of tax justice campaigns. Socialists’ attitudes to taxation have been tied to their primary aim of socialisation of the ownership of the means of production, reflecting the view that inequality and exploitation are inherent in capitalism, which rests on private property enforced by state power. Communism, as developed particularly by Marx and Engels, aimed to transcend capitalism and end the separation of the state from civil society, by the socialisation of property, including through progressive taxation. Marx’s view in Capital volume 3 that the emergence of large scale enterprises already entailed the ‘abolition of capital as private property within the framework of capitalist production itself’, when it was published in 1894 became central to the debates among German socialists (Liebknecht, Kautsky, Bernstein and Luxemburg), and the Austro-Marxists (Renner, Hilferding), but socialists split when graduated direct taxes were introduced to help fund the welfare-warfare state. Goldscheid’s outline for a social science of the state centred on fiscality underpinned his radical and influential wartime proposals to finance the socialisation of large corporations through taxes on capital.

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WSJ: Recent Court Ruling In Covid-19 Tuition Refund Case Could Send Shock Waves To Universities Throughout The Country

Wall Street Journal, Colleges, Parents Fight in Court Over Tuition Charged During Pandemic Closures:

Colleges and universities faced a barrage of lawsuits in the peak pandemic days of 2020 after schools shut down their campuses and moved classes online while charging students their usual tuition rates.

Two years later, the Covid-19 tuition wars are building toward a decisive phase.

A number of courts have issued rulings that provided a boost to students and parents seeking refunds, including last week in a case against a small private university in California. That decision followed a recent federal appeals court ruling that allowed claims to proceed against Loyola University Chicago. But those rulings stand in tension with other decisions for schools that said students don’t have valid claims. Pending cases from higher-level courts could bring more clarity.

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Shu-Yi Oei Leaves Boston College For Duke

Shu-Yi Oei (Boston College; Google Scholar) has accepted a lateral offer from Duke beginning January 2023. Her recent publications include:

• World Tax Policy in the World Tax Polity? An Event History Analysis of OECD/BEPS Inclusive Framework Membership, 47 Yale J. Int'l L. ___ (2022)
• Slack in the Data Age, 73 Ala. L. Rev. 47 (2021) (with Diane Ring)
• Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis (with Hiba Hafiz, Diane Ring & Natalya Shnitser) 
• When Data Comes Home: Next Steps in International Taxation’s Information Revolution, 64 McGill L.J. 707 (2020) (with Diane Ring)
• Tax Law’s Workplace Shift, 100 B.U. L. Rev. 651 (2020) (with Diane Ring)
• Legislation and Comment: The Making of the § 199A Regulations, 69 Emory L.J. 209 (2019) (with Leigh Osofsky)
• Constituencies and Control in Statutory Drafting: Interviews with Government Tax Counsels, 104 Iowa L. Rev. 1291 (2019) (with Leigh Osofsky)
• Leak-Driven Law, 65 UCLA L. Rev. 532 (2018) (with Diane Ring)
• The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655 (2018)

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The Effect Of Tax Reform And COVID-19 On Tax Flight Among U.S. Millionaires

Cristobal Young (Cornell; Google Scholar) & Ithai Lurie (U.S. Treasury Department; Google Scholar), Taxing the Rich: The Effect of Tax Reform and the COVID-19 Pandemic on Tax Flight Among U.S. Millionaires:

Taxing the rich is one of the central policy debates in this time of rising inequality. Elite taxation can change the distribution of income in society, support equitable growth, and finance public goods and services that improve the quality of life for everyone. None of these goals are well served, however, if taxes lead to high levels of tax flight among U.S. millionaires. Progressive taxation, especially at the state level, ultimately depends on the embeddedness of the tax base. In other words, are the rich “mobile millionaires,” readily drawn to places with lower tax rates? Or are they “embedded elites,” who are reluctant to migrate away from places where they have been highly successful?

Supply-side economics has long argued that taxes on the rich cause avoidance behavior and reduce the incentive to work, invest, and innovate. Amid the growing red state/blue state rivalry in the United States, tax incentives for migration have become a new focus of debate. Why would rich people continue to live in New York, New Jersey, or California when they could save large sums in taxes by moving to places such as Florida, Texas, or Nevada? Of course, taxes also fund public goods that the rich consume—not even the richest city dweller can get to work without public infrastructure—but top earners have greater ability to opt out of many public services such as schools and social services. From this view, the rich seem motivated and mobile—sensitive to taxation and readily capable of exit.

Yet there are myriad social dimensions that rich households face when migrating to avoid taxes. Top earners are often the “working rich,” with many roots in the places where they built their careers. Others are business owners with complex ties between customers, suppliers, and workers that are not easily relocated. Top earners are often married, have school-aged children, and have lived in their state for many years—social factors that tie people to places. These ties represent place-specific social capital, a form of embeddedness that makes migration costly.

Our new working paper, Taxing the Rich: How Incentives and Embeddedness Shape Millionaire Tax Flight, examines the joint effect of incentives and embeddedness on the mobility of the rich in the United States. Drawing on administrative tax data from IRS tax returns of top income earners, we study two large-scale “natural experiments,” which are contrasting real-life situations that social scientists investigate to determine cause-and-effect relationships. The first is the federal Tax Cuts and Jobs Act of 2017, which changed tax incentives to favor low-tax states. The second is the COVID-19 pandemic, which began in early 2020 in the United States and which deeply disrupted people’s socioeconomic attachments to places. ...

In a typical year, a small number of millionaires circulate between states: Roughly 2.7 percent of the millionaire population moves across state lines, exchanging one state for another. How much did the 2017 tax reform influence this migration? In our working paper, we examined migration rates for every income group, starting from those with the lowest incomes to those making $5 million a year or more. We also examined migration rates for those living in low-tax states, who were incentivized to stay, and high-tax states, who were incentivized to move. Migration patterns before and after the tax reform law passed were essentially identical. (See Figure 1.)

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ABA Loosens Distance Learning Accreditation Standard; Council Withdraws Diversity Proposal After Public Criticism

Resolution 301: Amendments to Definitions (7) and (8) and Standards 306 and 311 of the ABA Standards and Rules of Procedure for Approval of Law Schools.  Approved.

• Definition (7): Distance Education Course
• Definition (8): Distance Education J.D. Program
• Standard 306: Distance Education
• Standard 311: Academic Program and Academic Calendar
• Resolution With Report
• Final Resolution

Summary of the Resolution:

Definitions (7) and (8) and Standards 306 and 311 provide clarification on the Council’s current distance education limits, incorporate new information from the U.S. Department of Education (USDE), provide guidance on remote participation by students as an ADA accommodation or in exceptional circumstances, and clarify credits included in the 20 percent limitation.

Law.com, ABA House of Delegates Votes to Loosen Restrictions on Distance Education for Law Students:

”Distance Education J.D. Program” means a program in which a law school grants a student more than one-third of the credit hours required for the J.D. degree for distance education courses or more than 10 credit hours during the first one-third of a student’s program of legal education.

The following language was added to Standard 306:  “Distance Education law school courses for which credit is given towards the J.D. degree must provide regular and substantive interaction between the students and faculty teaching the course. Distance education credits may not be counted towards the J.D. degree if they exceed the credit hour limitations in Standard 311(e).” ...

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Haneman & Weber: The Abandonment Of International College Athletes By NIL Policy

Victoria J. Haneman (Creighton; Google Scholar) & David P. Weber (Creighton; Google Scholar), The Abandonment of International College Athletes by NIL Policy:

A new era in college sports dawned on July 1, 2021. College sports generate billions of dollars in revenue, and the National Collegiate Athletic Association announced that college athletes were (subject to various limitations and restrictions) entitled to earn money based upon name, image, and likeness (NIL) without losing eligibility to compete. It is estimated that more than $917 million in NIL deals have been generated in the first twelve months alone. The more than 450,000 college athletes across the United States are now able to leverage NIL to make paid appearances, endorse products or services on social media, receive compensation for autograph signings, and promote local and national businesses. Excluded from most NIL opportunities, however, are the 12% of athletes recruited from outside of the United States. Most international athletes enter the United States on student (F) visas, which are subject to very specific rules for when employment is permissible in the United States. The creators of the F visa had no reason in 1952 to include an NIL exception to the work prohibition, which consequently results in serious inequity for these athletes today. 

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Legal Ed News Roundup

• Above the Law, Law School Applications Are Way Down And It's Bad News For The Profession
• Above the Law, The LSAT's Potentially Numbered Days
• Daily Report Online, John Marshall, Volunteer Lawyers Group Joining Forces to Take on Atlanta’s Housing Crisis
• Noah Feldman (Harvard), There’s a Lot of Harvard and Yale on the Supreme Court. And That’s OK.
• Law.com, Ahead of the Curve: Is COVID-19 Still an Excuse to Sit Out the Bar Exam?
• Law.com, New York Not Keeping Pace With ABA Distance Education Rules
• Law.com, UVA Law's 'Roadmap Scholars' Program Drives Toward Equity in the Legal Profession
• National Jurist, 82% of Young Attorneys Happy With Career
• National Jurist, Mercer Law School Launches Corporate Counsel Externship Program

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The Tax Consequences Of Name, Image, And Likeness Rules For College Athletes

Following the Supreme Court’s decision in National Collegiate Athletic Association v. Alston, 594 U.S. ___ (2021), the NCAA started allowing college athletes to accept payments for use of their name, image and likeness, effective July 1, 2021. That change in policy has created a host of various compliance issues, such as trademark licensing issues. It also has created tax issues for the student-athletes. Frank Messina (Alabama) and Marena M. Messina (Alabama) address the basics in their article “A Primer on the Income Tax Consequences of the NCAA’s Name, Image, and Likeness (NIL) Earnings for College Athletes,” 4 Journal of Athletic Development and Experience 189 (2022).  From the article's abstract: "Athletes must learn to understand the tax rules associated with the income from the NIL.”  Click the "continue reading" button for the full abstract .

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Welcome, Pepperdine Caruso Law School Class Of 2025

Welcome to the members of the Pepperdine Caruso Law School Class of 2025 who begin their legal education today in a week-long introduction to law school and professional formation, as well as the over 400 students pursuing joint, LL.M., and masters degrees and certificates, including our LL.M. and certificate programs in Entertainment, Media, and Sports and our online masters in Legal Studies and Dispute Resolution and our online LL.M. in Dispute Resolution.

We are thrilled that, despite the 12% nationwide decline in the number of law school applicants (and the 14% nationwide decline among applicants in the highest LSAT bands), we exceeded our enrollment target of 180 and enrolled a class with the highest credentials in the 54-year history of our law school (3.85 median UGPA and 164 median LSAT). 

This is my sixth year as Dean, and I am thrilled that you have decided to join our very special law school community. You will learn and study on our spectacularly beautiful campus in Malibu with easy access to Los Angeles, one of the world's most vibrant cities for young professionals. Beginning today you will experience the faculty and staff's faith-fueled commitment to you and to your success that manifests itself in various ways, large and small, in daily life at Pepperdine Caruso Law. My fervent wish is that you will love your time here as I have since joining the faculty in 2013, and that you will leave here with a deep sense of your professional and personal calling in law and in life.

Lesson From The Tax Court: Non-Receipt of 1099 Does Not Get You Out of Penalties

When we think of penalties we naturally think of punishment.  I mean, to channel Steven Wright, if a penalty is not punishment when why does the word start with “penal”?  Both this week and next week’s lesson teach us how penalties serve other purposes as well.  Today, in Lionel E. Larochelle and Molly B. Larochelle v. Commissioner, T.C. Summ. Op. 2022-12 (July 12) (Judge Leyden), we learn why non-receipt of a Form 1099 does not constitute reasonable cause to escape the §6662(a) penalty for making a substantial understatement of tax.  Next week we will look at whether a court-ordered disgorgement of illegal gains is a penalty for purposes of a §162(f) prohibition on  deductions for governmental fines or penalties.  Today’s short lesson awaits below the fold. 

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Katherine Magbanua Transported To Florida State Prison, Begins Serving Life Sentence In Dan Markel’s Murder

WCTV, Magbanua Transported to State Prison, Begins Serving Life Sentence in Dan Markel’s Murder:

Florida Department of Corrections records show that Katherine Magbanua has now been booked into state prison to begin serving a life sentence in the murder of FSU professor Dan Markel.

Magbanua was picked up from the Leon County Jail at 3:03 a.m. Thursday, Leon County court records show, and has since arrived at the Florida Women’s Reception Center in Ocala.

Magbanua is the third person convicted and sent to prison in the murder for hire plot. She was arrested in October 2016 and accused of being the link between Markel’s ex-brother-in-law Charlie Adelson and the men who traveled to Tallahassee to kill Markel in the summer of 2014. Prosecutors contend the plot was fueled by a bitter custody battle between Markel and his ex-wife, Wendi Adelson, who is Charlie’s sister.

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Former Students Sue Columbia, Say They Were Misled By Misreporting Of Data That Inflated Its U.S. News Ranking
• Penn Wharton: Decomposing The Decline In Estate Tax Liability Since 2000
• Penn State Orders Hiring Freeze, 3% Budget Rescission To Close $191 Million Deficit

Sunday:

• NY Times: What's God Got to Do With It? The Rise of Christian Nationalism In American Politics
• The Secret Of Vin Scully's Success: Faith
• Christian University Sues Attorney General, Says Investigation Of Anti-LGBTQ+ Hiring Practices Violates Its Religious Freedom
• Forty Democratic Lawmakers Call For IRS Investigation Into Family Research Council's ‘Church’ Status
• The Top Five New Tax Papers

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

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

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

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

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

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The Secret Of Vin Scully's Success: Faith

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

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

Inside Higher Education, Seattle Pacific Sues Washington AG:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Top Five New Tax Papers

There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #5. The #1 paper is #927 among 16,941 tax papers in all-time downloads:

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

This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: Excise Tax On Messed Up IRA Rollover Different From Income Tax
2. Bradley Areheart (Tennessee),  Top 100 Law Schools, Based On 5-, 10-, And 15-Year Rolling Average U.S. News Rankings
3. Paul Caron (Dean, Pepperdine), The Fall 2022 Law School Admissions Season: Applicants Are Down 12%, The Most Among Whites (-14%) And The Highest LSAT Bands (-14%)
4. Stephen Carter (Yale), Last Week's Bar Exam: Send In The Clowns
5. Press Release, Bloomberg Law Announces Inaugural Law School Innovation Program
6. Seth Barrett Tillman (Maynooth University School of Law), A Response To Penn Dean Ruger’s Letter Calling For A Major Sanction Against Professor Amy Wax
7. New York Times Op-Ed, Elite Universities Are Out of Touch. Blame the Campus.
8. Florida Tax Review, Vol. 25, No. 1 (Fall 2021)
9. Wall Street Journal Editorial, The IRS Is About To Go Beast Mode
10. Deborah Merritt (Ohio State), Stephen Carter on the Bar Exam

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

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

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

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

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

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

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

Key Points

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

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

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

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

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

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

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

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Weekly Legal Education Roundup

• ABC News, Why Yale Law’s Dean Says Eliminating Tuition for Students in Need Benefits the Legal Profession:
• Bradley Areheart (Tennessee), The Top 100 Law Reviews: A Reference Guide Based on Historical USNWR Data
• Nick Burns (New York Times Op-Ed), Elite Universities Are Out of Touch. Blame the Campus
• Paul Caron (Dean, Pepperdine), The Fall 2022 Law School Admissions Season: Applicants Are Down 12%, The Most Among Whites (-14%) And The Highest LSAT Bands (-14%)
• Stephen Carter (Yale; Bloomberg Op-Ed), Oh, You've Got Tech Woes? Try Taking the Bar
• Florida Times Union, $6 Billion Loan Settlement Could Spare Grads of Florida Coastal School of Law, Business Schools
• Scott Fruehwald (Legal Skills Prof Blog), The Advantages of Being A Critical Thinker

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Tax Policy In The Biden Administration

• American Prospect, Is the Tax Reform in the Schumer-Manchin Deal for Real?
• Bloomberg, Democrats Blast Companies Paying 1.1% Rate in Pushing New Tax
• Bloomberg, Democrats Drop Carried Interest as Sinema Paves Way for Tax Vote
• Bloomberg, Yellen Says Manchin Bill Won’t Raise Taxes for Families Earning Less Than $400,000 a Year
• Lynnley Browning (Financial Planning), Yoga Pose or Killer Tax Strategy? The Discreet Charms of a Reverse Rollover

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

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

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

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

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

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WSJ: The IRS Is About To Go Beast Mode

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

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

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

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

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

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

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

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

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

The law school’s CRT Forward Tracking Project is the first in the United States to precisely identify, catalog and contextualize all of these efforts at the local, state and federal levels. The project not only identifies and tracks anti-critical race theory activity, but also analyzes the substance of the activity in its database to identify:

• the type of conduct that is restricted or required;
• the institution targeted for regulation;
• the specific features of the conduct being targeted;
• enforcement mechanisms used to regulate the conduct.

The CRT Forward Tracking Project is the only database that compiles anti-critical race theory activity at local, state and federal levels in a single location. Finally, the project is an interactive database that allows users to filter for content based on factors that are important for their purposes.

Many of these efforts to influence K-12 curriculum development have used the term “critical race theory” incorrectly, and have affected plans to include ethnic studies more broadly for students before they get to college.

• ABA Journal, New UCLA School of Law Project Studies Movement to Undermine Critical Race Theory Teaching
• Reuters, UCLA Law Project Catalogs Hundreds of Anti-Critical Race Theory Measures

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

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

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

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

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

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

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

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

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

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

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

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

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Bloomberg Law Announces Inaugural Law School Innovation Program

Bloomberg Law Announces Inaugural Law School Innovation Program:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Knoll & Mason: Bibb Balancing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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