Paul L. Caron

Sunday, October 24, 2021

NY Times Op-Ed: What I Believe About Life After Death

New York Times Op-Ed:  What I Believe About Life After Death, by Tish Harrison Warren (Priest, Anglican Church; Author, Liturgy of the Ordinary: Sacred Practices in Everyday Life (Christianity Today's 2018 Book of the Year)):

My friend Thomas died in August. His death was sudden and tragic. He and his 22-year-old child were killed in a car accident. ...

It feels to me like something went wrong. He can’t die, I think. He’d made plans. He had so much left to do. A journey interrupted. ...

There is something deep within us that rejects the idea that the road just stops. We feel there must be more. We must be made for more: more conversations, more laughter, more breaths to take, more miles to walk along the trail.

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October 24, 2021 in Legal Education | Permalink

WSJ Op-Ed: Are Internet Services As Good As Church?

Following up on my previous post, What We Lose When We Livestream Church:  Wall Street Journal op-ed:  Are Internet Services as Good as Church?, by Paul Glader & John Semakula:

Last year Pastors Henry Fuhrman and Jerry O’Sullivan of Shelter Rock Church in Nassau County, N.Y., began working as TV preachers. For months they livestreamed sermons as Covid-19 ravaged the leafy communities of Long Island, where their church has several campuses. After overcoming the hurdles of digital worship, they now have a new problem: how to wean the congregation off the convenience of online church.

They aren’t alone. Seventy-five percent of evangelical Protestants in the U.S. have attended church online during the pandemic, according to a recent survey by Infinity Concepts and Grey Matter Research. “We found that 45% of those who experienced online church services now believe that worship online is equal or superior to the in-person experience,” said Mark Dreistadt, president and founder of Infinity Concepts. Only 44% want to return exclusively to in-person worship, according to the report, which surveyed more than 1,000 evangelical Protestants.

Although Pew Research found in April 2020 that a quarter of U.S. adults said their faith had become stronger because of the pandemic, some pastors are skeptical about the long-run effects of online worship. “People tend to try to multitask when they are watching online. The result is that they are not focused on God or the worship at times,” says Mr. O’Sullivan, a pastor of the Shelter Rock campus in Syosset, N.Y. “We are trying to keep them engaged.”

The Infinity Concepts report also found that many American evangelicals used the pandemic lockdowns to “digitally visit” new churches—another cause for concern among some pastors. “One has to wonder whether this will ultimately lead to church nomads, who surf the internet for new church experiences rather than putting down roots and becoming part of a church community,” Ron Sellers, president of Grey Matter, says. ...

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October 24, 2021 in Legal Education | Permalink

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:

  1. SSRN Logo (2018) [589 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John Townsend (Houston)
  2. [413 Downloads]  Mega-IRAs, Mega-401(k)s, and Other Mega-Retirement Accounts: Statement for the Record, by Daniel Hemel (Chicago; Google Scholar) & Steven Rosenthal (Tax Policy Center)
  3. [266 Downloads]  Has Cross-Border Arbitrage Met Its Match?, by Ruth Mason (Virginia; Google Scholar) & Pascal Saint-Amans (OECD) (reviewed by Young Ran (Christine) Kim (Utah; Google Scholar) here)
  4. [230 Downloads]  Closing Gaps in the Estate and Gift Tax Base, by Daniel Hemel (Chicago; Google Scholar) & Robert Lord (Americans for Tax Fairness)
  5. [181 Downloads]  The Inequity of Informal Guidance, by Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar) (reviewed by Sloan Speck (Colorado) here)

October 24, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, October 23, 2021

This Week's Ten Most Popular TaxProf Blog Posts

Dayton Provides Two Full-Ride Scholarships, $15,000 Annual Stipends, Guaranteed Associate Positions During Summers And After Graduation At Top Law Firms

Dayton Law School, Flyer Legal Promise Provides Full Law School Tuition, $15,000 Stipend, Job After Graduation:

Dayton LogoDayton law firms Thompson Hine and Taft Law are teaming with the University of Dayton School of Law to recruit underrepresented and underserved students to law school and the legal profession. The Flyer Legal Promise Program will provide two students full law school tuition, a $15,000 stipend for living expenses, mentors, summer clerkships and a job at one of the firms following graduation. 

"Rather than wait for diverse talent to apply to law school and then later to elite law firms, the Flyer Legal Promise Program proactively seeks, recruits and invests in academically talented undergraduates with capacity to excel in the legal profession," said Andrew Strauss, UD School of Law dean.

Reuters, Law Firms Promise Jobs Before Law School in New Diversity Push

Many law firms have summer associate programs for diverse law students and so-called pipeline programs to get underrepresented students interested in law school and help them apply. But Dayton Law Dean Andrew Strauss said he doesn’t know of any other firms offering permanent jobs to would-be law students so early on.

“It’s the Moneyball of legal education,” said Strauss, who is looking to sign up more firms. “We’re going back in and we’re trying to figure out who has that raw talent—before they may even know themselves that they want to apply.”

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October 23, 2021 in Legal Ed News, Legal Education | Permalink

A Worrisome Peek Inside Yale Law’s Diversity Bureaucracy

Following up on my previous posts (links below):  The Atlantic, A Worrisome Peek Inside Yale Law’s Diversity Bureaucracy:

Yale Law Logo (2020)Have you ever wondered what deans of diversity do behind closed doors? Until last week, the public had little visibility into their methods. Then covertly recorded audio emerged of Yaseen Eldik, Yale Law School’s director of diversity, equity, and inclusion, and Ellen Cosgrove, an associate dean, pressuring a student to issue a written apology for emailing out a party invitation that offended some of his classmates.

The Yale Law student in question, Trent Colbert, belongs to two student groups, the Native American Law Students Association, or NALSA, and the conservative Federalist Society. He emailed members of the former group that “we will be christening our very own (soon to be) world-renowned NALSA Trap House … by throwing a Constitution Day Bash in collaboration with FedSoc,” adding that refreshments would include “Popeye’s chicken, basic-bitch-American-themed snacks (like apple pie, etc.),” and various beverages. That is what offended some of Colbert’s peers, including the president of the Black Law Students Association, who reportedly likened Colbert’s references to “Trap House” and Popeyes to blackface.

A dispute over a party invitation—even an arguably offensive one—may sound more like a matter for a high-school vice principal than one for Ivy League deans. Nevertheless, the diversity administrators spent many hours on this low-stakes drama among high-IQ adults, affording outsiders an unusual peek at their methods and a related series of crucial mistakes, most stemming from an inability or unwillingness to see how the interests of students diverge from the interests and incentives of their office. Irrespective of whether the invitation was racially offensive, the behavior of Yale Law’s diversity bureaucrats was unethical, discreditable, and clearly incompatible with key values that the elite law school purports to uphold.

Similar diversity offices are now operating at institutions around the country, but their inner workings remain mysterious to many faculty members and students. The Yale Law controversy raises the underexamined question of what it actually means for diversity offices to ethically fulfill their mission, and whether choices made behind closed doors would retain support if exposed to sunlight. ...

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October 23, 2021 in Legal Ed News, Legal Education | Permalink

Break Into Tax: Tax Papers Unlocked — Victoria Haneman

Tax Papers Unlocked offers a "micro-workshop," breaking down current tax scholarship. This video, the fifth in this series, features Prof. Victoria Haneman from Creighton Law School. The featured paper is Prepaid Death, 59 Harv. J. on Legis. ___ (2022).

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October 23, 2021 in Legal Education, Tax | Permalink

Friday, October 22, 2021

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Two New Papers By Kleiman And Widiss

This week, Sloan Speck (Colorado; Google Scholar) reviews new works by Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Revolutionizing Redistribution: Tax Credits and the American Rescue Plan, 131 Yale L.J. F. __ (2021) and Deborah A. Widiss (Indiana; Google Scholar), Chosen Family, Care, and the Workplace, 131 Yale L.J. F. __ (2021).

Sloan-speckHistorically, the American legal system has struggled to adequately recognize and accommodate individuals’ lived experiences of family and care relationships. Over the last two decades, however, there has been a veritable revolution in legislative, regulatory, and judicial positions regarding “nontraditional” family structures. In many ways, public and private responses to the COVID-19 pandemic accelerated and intensified this shift. In separate essays, Ariel Kleiman and Deborah Widiss explore and evaluate pandemic-era government actions in taxation and workplace leave (respectively) that implicate families and care, situating these most recent changes within larger narratives of social provisioning and asking how these changes should influence future policy. Both authors are optimistic but cautionary: we collectively face a tremendous opportunity to advance and cement more inclusive understandings of family and care. How this opportunity unfolds may establish the American welfare state’s trajectory for years to come.

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October 22, 2021 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Tax Policy In The Biden Administration

Weekly Legal Education Roundup

Next Week’s Tax Workshops

Monday, October 25: Phyllis Taite (Oklahoma City) will present Inequality by Unnatural Selection: The Impact of Tax Code Bias on the Racial Wealth Gap as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please RSVP here.

Tuesday, October 26: Day Manoli (Georgetown; Google Scholar) will present The Effects of EITC Correspondence Audits on Low-Income Earners (with John Guyton, Kara Leibel, Mark Payne, Brenda Schafer (IRS) & Ankur Patel (US Treasury)) as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle.

Tuesday, October 26: Manoj Viswanathan (UC-Hastings) will present Retheorizing Progressive Taxation as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro.

Thursday October 28: Alice Abreu (Temple) & Richard Greenstein (Temple; Google Scholar) will present Beyond Binary: The Normative Perfect Should Not Be The Enemy Of The Demonstrably Good as part of the Indiana Tax Policy Colloquium. If you would like to attend, please contact Leandra Lederman

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October 22, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Workshops | Permalink

Volokh: Lawyers, Law Students, Law School Administrators, And Language

Update: The Atlantic, A Worrisome Peek Inside Yale Law’s Diversity Bureaucracy (Oct. 23, 2021)

Following up on my previous posts (links below):  Eugene Volokh (UCLA), Lawyers, Law Students, Law School Administrators, and Language:

Yale Law Logo (2020)The associate dean and the "diversity and inclusiveness director" called the author of the e-mail in to discuss the controversy—itself perhaps an overreaction, but perhaps justifiable. But rather than framing it as "here's how we can all learn to avoid unnecessary misunderstandings," they called him with a message labeling this a "deeply concerning and problematic incident." And, to quote the liberal Northwestern professor Andrew Koppelman,

Then came this disastrous blunder: "The email's association with FedSoc was very triggering for students that already feel like FedSoc belongs to political affiliations that are oppressive to certain communities through policies. … That of course obviously includes the LGBTQIA community and black communities and immigrant communities." …

This may have truthfully reported how some students feel. But [the director] should have distanced the law school from those feelings.

When the student declined to apologize, they sent out this e-mail:

Yale Trap House

To quote Koppelman again,

Here mediation has ceased. The law school has taken it upon itself to declare who is right and who is wrong. Colbert was publicly branded as "racist" before his peers.

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October 22, 2021 in Legal Ed News, Legal Education | Permalink

Kentucky Hosts Virtual Symposium Today On The Racial Wealth Gap

The Kentucky Law Journal hosts a symposium today on The Racial Wealth Gap (register here): 

KentuckyThe topic is The Racial Wealth Gap and will focus on the legal and historical factors that have contributed to the current state of wealth disparity in the United States that falls largely along racial lines.

This disparity has been increasingly the focus of academic and policy research, and this Symposium aims to bring together practitioners, policy researchers, and scholars to explore this issue. In particular, the KLJ symposium seeks to address how tax law, property law, and other legal systems that have created and reinforced the conditions that lead to White families having median wealth of approximately $188,000, while Black families have median wealth of only 15% of that amount, or approximately $24,000. In addition to exploring the evolution of the problem, the KLJ symposium will explore possible solutions or proposals that would ameliorate the disparity.

8:30 AM: Opening Remarks

  • Mary Davis (Dean, Kentucky)
  • Jennifer Bird-Pollan (Kentucky; Google Scholar)

9:00 AM: Real Estate, Housing, and Blockbusting

  • Richard Winchester (Seton Hall; Google Scholar)
  • Daniel Murphy (Kentucky)
  • Dillon Curtis (Kentucky Law Journal Staff Editor) (moderator)

10:00 AM: Implications of Tax Code Bias

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October 22, 2021 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Some Thoughts On The Corona Semester

Shivangi Gangwar (Jindal Global; Google Scholar), Some Thoughts on the Corona Semester, 65 St. Louis U. L.J. ___ (2021):

The COVID-19 pandemic presented educators across the world with a unique set of challenges. In this Article, I reflect on my experience of transitioning to the online medium mid-semester without much preparation. I compare the vastly dissimilar experiences of conducting classes “physically” and remotely, highlighting the difficulties I experienced in translating, to the online realm, the pedagogical methods I usually employed while teaching Contract law to first-year students.

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October 22, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Top Wealth In America: New Estimates And Implications For Taxing The Rich

Matthew Smith (U.S. Treasury Department, Office of Tax Analysis), Owen Zidar (Princeton; Google Scholar) & Eric Zwick (Chicago; Google Scholar), Top Wealth in America: New Estimates and Implications for Taxing the Rich:

This paper uses administrative tax data to estimate top wealth in the United States. We assemble new data that links people to their sources of capital income and develop new methods to estimate the degree of return heterogeneity within asset classes. Disaggregated fixed income data reveal that rich individuals earn much more of their interest income in higher-yielding forms, and have much greater exposure to credit risk. Consequently, in recent years, the interest rate on fixed income at the top is approximately three times higher than the average. Using firm-level characteristics to value firms, we find that twenty percent of total pass-through business wealth accrues to those with losses. We combine this new data on fixed income and pass-through business returns with refined estimates of C-corporation equity, housing, and pension wealth to deliver new capitalized wealth estimates. Our approach—which builds on Saez and Zucman (2016) and Bricker, Henriques, and Hansen (2018)—reduces bias because wealth and rates of return are correlated. From 1989 to 2016, the top 1%, 0.1%, and 0.01% wealth shares increased by 7.6, 5.1, and 3.0 percentage points, respectively, to 31.5%, 15.0%, and 7.0%. While these changes are less dramatic than some prior estimates, wealth is very concentrated: the top 1% holds nearly as much wealth as either the bottom 90% or the "P90-99" class. We discuss implications for income inequality measures, capital tax policy, and savings behavior.

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October 22, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, October 21, 2021

Cauble: Time For A Tax Return Filing Fee

Emily Cauble (DePaul), Time for a Tax Return Filing Fee, 58 Harv. J. on Legis. 103 (2021):

The IRS faces the monumental task of verifying, to the extent possible, the tax consequences reported on the hundreds of millions of tax returns filed each year. It does so with meager and shrinking resources. Some taxpayers burden the filing system more than others. At one extreme, a taxpayer who earns only income that is subject to third-party reporting and withholding and who claims the standard deduction adds very little to the IRS’s burden. At the other end of the extreme, a large business engaged in numerous complex transactions the tax treatment of which are not free from doubt demands significant resources if that taxpayer’s claimed tax outcomes are fully examined. In light of this landscape, this Article makes the novel proposal that Congress require payment of a tax return filing fee by some taxpayers. The amount of the fee would vary based on some of the factors that make each taxpayer more or less difficult to audit, with carve-outs for difficult-to-audit items that are disproportionately claimed by lower-income individuals.

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October 21, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

A Constitutional Moment In Cross-Border Taxation

Steven Dean (Brooklyn), A Constitutional Moment in Cross-Border Taxation, 1 J on Fin. for Dev. ___ (2021):

To show why the taxation of cross-border transactions has remained largely unaltered across a century of upheaval, this article reveals a steady hand in control. To explain how those complex rules have changed—and could change in more profound ways—it does the same. Demonstrating how cross-border taxation has been shaped by the preferences and the intellectual habits of the United States, it highlights an unexpected opportunity for marginalized states to seize control of its future.

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October 21, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Perceiving Discrimination: Race, Gender, And Sexual Orientation In The Legal Workplace

Robert L. Nelson (Northwestern; Google Scholar), Ioana Sendroiu (Toronto, PhD Candidate), Ronit Dinovitzer (Toronto; Google Scholar) & Meghan Dawe (American Bar Foundation; Google Scholar), Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, 44 Law & Soc. Inquiry 1051 (2019):

Using quantitative and qualitative data from a large national sample of lawyers, we examine self-reports of perceived discrimination in the legal workplace. Across three waves of surveys, we find that persons of color, white women, and LGBTQ attorneys are far more likely to perceive they have been a target of discrimination than white men. These differences hold in multivariate models that control for social background, status in the profession and the work organization, and characteristics of the work organization.

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October 21, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Professor, Please Help Me Pass The Bar Exam: #NEXTGENBAR2025/26

Melissa Shultz (Mitchell Hamline), Professor, Please Help Me Pass the Bar Exam: #NEXTGENBAR2025/26, 69 J. Legal Educ. ___ (2022):

For students who begin law school in 2022, the final hurdle that they must clear to use their hard-earned degrees—the bar exam—will be substantively and structurally distinct from all bar exams previously administered. Although (with rousing support from law school graduates) this so-called NextGen bar exam reduces the breadth of legal knowledge examinees must memorize, it is novel in its breadth of skills testing and its requirement that examinees engage in practice-skills not previously tested on the bar exam, including client counseling, negotiation, and legal research. Moreover, the NextGen bar exam will no longer be anchored by 200-multiple-choice questions, but it will require students to grapple with various subjects in multiple ways moving from multiple-choice questions to short answer questions to essay questions to task-based performance exercises.

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October 21, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Deans' Leadership In Legal Education Symposium

Toledo Logo15th Deans' Leadership in Legal Education Symposium, 50 U. Tol. L. Rev. 189-333 (2019):

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October 21, 2021 in Legal Ed Conferences, Legal Ed Scholarship, Legal Education, Scholarship | Permalink

The Effects Of Taxes On Innovation: Theory And Empirical Evidence

Stefanie Stantcheva (Harvard; Google Scholar), The Effects of Taxes on Innovation: Theory and Empirical Evidence:

Income taxes are typically set to raise revenues and redistribute income at the lowest possible efficiency costs, which result from the distortions in individual behaviors that taxes entail. Individuals can respond along many margins, such as labor supply, tax avoidance and evasion, and geographic mobility. But one margin that taxes may affect — innovation — is less frequently considered. Conceptually, taxes reduce the expected net returns to innovation inputs and can reduce innovation. Much like other margins of responses to taxes, this efficiency cost must be taken into account. Innovation is done by a relatively small number of people, but it is nevertheless likely to have widespread benefits. While inventors may have divergent motivations, such as social recognition or the love of discovery, they also face an economic reality. How strongly innovation responds to taxes is an empirical question that has been the subject of a growing body of recent work. In this paper, I study how to account for innovation when setting personal income and capital taxation. 

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October 21, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Federal Judge Rules That Vermont Law School Can Cover Underground Railroad Murals Despite Artist's Objection

Vermont Mural

Following up on my previous posts (links below):  Bloomberg Law, Vermont Law School Thwarts Claim It Can’t Hide Slavery Murals:

Vermont Law School can permanently cover controversial murals depicting the Underground Railroad without violating an artists rights law, a Vermont federal court said.

Artist Samuel Kerson argued the school’s plans to hide his murals behind bolted-in acoustic sheetrock panels violated the Visual Artists Rights Act, which conditionally restrains parties from destroying or modifying works without artist permission.

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October 21, 2021 in Legal Ed News, Legal Education | Permalink

Enjoined And Incarcerated: Complications With Incarcerated People Seeking Economic Relief Under The CARES Act

Mitchell Caminer (Chicago), Enjoined and Incarcerated: Complications with Incarcerated People Seeking Economic Relief under the CARES Act:

Congress passed the first round of checks as part of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in late March 2020 to infuse more than $2 trillion into the national economy and address the overlapping medical and economic emergencies stemming from the COVID-19 pandemic. But incarcerated individuals were initially excluded from receiving stimulus checks, despite being eligible to receive them. This delay in delivering immediate cash assistance through the CARES Act to incarcerated individuals exposes the inadequacy of the tax administrative doctrine in resolving emergency relief disputes and how exclusionary measures embedded in the tax system and other economic policies inhibit the rehabilitation prospects of incarcerated people. 

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October 21, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, October 20, 2021

Gamage Presents Political Optionality And Current-Assessment Tax Reform Today At UC-Irvine

David Gamage (Indiana; Google Scholar) presents Tax Now or Tax Never: Political Optionality and the Case for Current-Assessment Tax Reform (with John Brooks (Georgetown; Google Scholar)) at UC-Irvine today as part of its Tax Policy Colloquium:

Gamage-davidThe U.S. income tax is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is magnified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful.

The conventional view among tax law experts has assumed that the problems created by the realization doctrine can be fixed on the back end by adjusting the rules that govern taxation at the time of realization. Specifically, most tax scholars have favored reform proposals that would retain the realization doctrine, while aiming to impose taxes in a way that would erase or reduce the financial benefits of deferral. Examples include retrospective capital gains tax reforms, progressive consumption tax reforms, and more incremental reforms such as ending stepped-up basis.

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October 20, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Barbieri: Opportunism Zones

Edward W. De Barbieri (Albany; Google Scholar), Opportunism Zones, 39 Yale L. & Pol'y Rev. 82 (2020):

In 2017, Congress adopted the Opportunity Zone, an unheralded yet powerful place-based economic development tool, as part of tax re-form. Place-based economic development tools and strategies provide incentives to attract jobs and capital to areas where jobs and capital have fled. Investors in state-designated Opportunity Zone districts are able to (1) defer capital gains on qualified investments, and (2) reduce their tax bills when selling qualifying real estate or business property. Proponents of the bipartisan Opportunity Zone argue that tax incentives are an efficient way to direct investment dollars to poor areas. Critics, however, point out that such government interventions in the economy are stricken by corruption, abuse, and waste.

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October 20, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

NY Times Op-Ed: What Does A University Owe Democracy?

New York Times op-ed:  What Does a University Owe Democracy?, by David Brooks:

OweLast November, Dorian Abbot, a geophysicist at the University of Chicago, posted a series of slide presentations on YouTube making a case against the use of group identity as a primary criterion in selection processes. He was immediately targeted for cancellation.

So Robert Zimmer, Chicago’s magnificent president (now chancellor), stepped in with a clear statement of support for academic freedom. The controversy evaporated.

Then, in August, Abbot and a co-writer published an op-ed in Newsweek making the case that diversity, equity and inclusion policies violate “the ethical and legal principle of equal treatment.” It led to another cancellation campaign, this time in protest of his invitation to deliver the prestigious Carlson Lecture at the Massachusetts Institute of Technology, where he was going to speak about “Climate and the Potential for Life on Other Planets.”

This time, the campaign worked. As Abbot has detailed, a department chair called to tell him the school would be canceling the lecture “in order to avoid controversy.”

The two episodes are a stark illustration of the difference between the culture of intellectual courage nurtured by Zimmer and the Coward Culture at work at M.I.T. and other institutions ostensibly invested in the cause of free expression.

It’s also a reminder that our universities are failing at the task of educating students in the habits of a free mind. Instead, they are becoming islands of illiberal ideology and factories of moral certitude, more often at war with the values of liberal democracy than in their service.

I’ve been thinking about all this while reading “What Universities Owe Democracy” by Johns Hopkins University’s president, Ronald Daniels.  ...

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October 20, 2021 in Book Club, Legal Education | Permalink

Faculty Diversity Fell During The Great Recession. Will The Pattern Repeat During The Pandemic?

Kwan Woo Kim (Harvard), Alexandra Kalev (Tel Aviv; Google Scholar), Frank Dobbin (Harvard; Google Scholar) & Gal Deutsch (Tel Aviv; Google Scholar), Crisis and Uncertainty: Did the Great Recession Reduce the Diversity of New Faculty?:

The demographic composition of the U.S. professoriate affects student composition and, thus, the pipeline for professional and managerial jobs. Amid concern about the effects of the COVID-19 crisis on the labor market, much remains unknown about how economic downturns affect faculty hiring and the demographic makeup of hires. We examine the effects of the Great Recession on faculty hiring. That crisis walloped the U.S. academic labor market. Tenure-track hires in four-year colleges and universities declined by 25 percent between 2007 and 2009, recovering slowly through 2015. Hires of black, Hispanic, and Asian American faculty declined disproportionately. Public institutions and research-oriented institutions, which faced the greatest resource challenges and uncertainty about the future, made the biggest cuts in the hiring of people of color. Our findings suggest that financial uncertainty led to a reversal in progress on faculty diversity. Faculty and administrators making hiring decisions in the years following the COVID-19 crisis should be aware of this pattern.

Diversity 2

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October 20, 2021 in Legal Ed Scholarship, Legal Education | Permalink

Racism, Conservatism And Free Speech At Yale Law School


Following up on my previous posts (links below):  Yale Daily News, Email From Yale Law Student Sparks National Discussion on Racism and Free Speech:

Yale Law Logo (2020)A month after a student sent an email that some saw as racially insensitive, a wide discussion has started about racism, conservatism and free speech at Yale Law School.

Trent Colbert LAW ’23, a member of the Native American Law Students Association and the Federalist Society, sent the email on Sept. 15 to the NALSA listserv to announce a social event between the two groups. Moments later, the email was shared with a GroupMe chat for Law School students in the class of 2023, resulting in extensive discourse in the chat over student concerns about the email and explanations of how its rhetoric could be understood as racially and misogynistically charged. After receiving multiple complaints about the email, two Law School administrators met with Colbert, urging him to send a class-wide apology to his peers and explaining that his reputation could be negatively affected by the situation, according to a public recording of the meeting.

The email has since gained national attention from multiple news outlets. On Monday, Dean of Yale Law School Heather Gerken sent a community-wide email addressing the situation and saying that she will “take any steps necessary” to ensure that the Law School lives up to its values of free speech while still creating an inclusive environment for all students.

“The vigorous exchange of ideas is the lifeblood of this Law School,” Gerken wrote in the email. “Protecting free speech is a core value of any academic institution; so too is cultivating an environment of respect and inclusion. These two values are mutually reinforcing and sit at the heart of an intellectual community like ours.”

Gerken wrote that she has tapped Deputy Dean Ian Ayres to assess the situation. With information beyond the “partial facts reported out in a charged media environment,” she would decide how to ensure the institution “lives up to its values,” Gerken wrote. Ayres did not respond to a request for comment. ...

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October 20, 2021 in Legal Ed News, Legal Education | Permalink

Tax Prof Twitter Census (2021-22 Edition)

TwitterAccording to Bridget Crawford's latest census, there are 1,477 Law Profs on Twitter, including 90 Tax Profs (several with tax in their Twitter handles):

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October 20, 2021 in Legal Ed News, Legal Education, Tax, Tax News | Permalink

University Of Houston Law School Launches Aspiring Lawyer Magazine

UH Law Center Launches Aspiring Lawyer Magazine:

Aspiring LawyerThe University of Houston Law Center today debuted a new online publication dedicated to undergraduate students nationwide interested in attending law school. Aspiring Lawyer [pdf] magazine features insights, tips, success stories, and guidance for pre-law students, especially those from underrepresented backgrounds.

“I am delighted that we have established the Aspiring Lawyer magazine which will provide helpful hints and advice for students who plan to be lawyers,” said University of Houston Law Center Dean Leonard M. Baynes. “UH Law Center has always provided a pathway to the profession for law school students of all backgrounds. It’s only rational for us to produce this magazine so that as many people as possible know that a legal education is within their reach and to help them achieve their dreams,” he added.

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October 20, 2021 in Legal Ed News, Legal Education | Permalink

How A $2 Million Condo In Brooklyn Ends Up With A $157 Real Estate Tax Bill

Bloomberg, How a $2 Million Condo in Brooklyn Ends Up With a $157 Tax Bill:

Opaque methods, hypothetical numbers and ‘bonkers’ adjustments shift the property-tax burden toward middle- and working-class New Yorkers.

For years, when confronted with complaints of uneven property taxes, the New York City Department of Finance has blamed a state law that requires it to ignore the sale prices of condos and co-ops when determining their taxable value. Instead, the law requires city assessors to engage in a kind of thought experiment: Pretend co-ops and condos produce income for their owners—even though they don’t—and set their taxable values based on a hypothetical amount of income they’d generate if they did.

That law, designed to protect condos and co-ops from higher taxes, lays the groundwork for warped results. But now, for the first time, a Bloomberg News investigation reveals that city officials have made a bad situation worse. They’ve invented data points that bear no resemblance to market reality and used them in opaque calculations that tend to favor wealthy property owners. These flawed valuations shift hundreds of millions of dollars in tax burden from higher- to lower-priced properties and to rental apartment buildings every year.

City ordinances have created special exemptions that reduce taxable values for qualifying properties and abatements that shrink eligible tax bills—special breaks that have significant effects. But flawed valuations present a problem at a deeper level, one that’s far less apparent to most taxpayers.

A Bloomberg analysis of millions of city records related to condo sales and taxes shows that, in effect, two steps in New York’s assessment process combine to help perpetuate unfairness. First, city officials reduce the taxable values of condos across the board by adjusting an important data point—the so-called capitalization rate—in their calculations. Capitalization rates help investors gauge the value of income-producing properties; the higher the rate, the lower the property value. The rate that assessors apply is more than double the actual rates reflected in New York real estate markets.


October 20, 2021 in Tax, Tax News | Permalink

Tuesday, October 19, 2021

NY Times Op-Ed: Be Careful With IRS Reform

New York Times op-ed:  I’m the President of the National Taxpayers Union. Be Careful With I.R.S. Reform., by Pete Sepp (President, National Taxpayers Union):

Democratic lawmakers plan to boost the Internal Revenue Service’s enforcement authority to help pay for the spending package working through Congress. But while the I.R.S. needs more funding to fulfill its mission, the current version of the reform legislation would run roughshod over decades of taxpayer protections that were enshrined by huge bipartisan majorities. ...

Beyond the rollback of taxpayer rights, the retroactivity of these provisions could face legal trouble. Retroactive taxation is still widely practiced, and used to pressure taxpayers to settle with the I.R.S. While the Supreme Court has never definitively ruled on the practice, when it last considered the issue in 1994’s United States v. Carlton, it came close to deciding that anything beyond one year of retroactivity violates due process. Given a retroactive tax case again, the court may rein in the practice for good.

Ironically, the I.R.S.’s budget increase is unlikely to raise the revenue Congress anticipates.

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October 19, 2021 in Tax, Tax News | Permalink

WSJ Op-Ed: The Democrats’ Tax-The-Rich Ruse

Wall Street Journal op-ed:  The Democrats’ Tax-the-Rich Ruse, by Phil Gramm & Mike Solon:

President Biden’s effort to pass the largest tax increase in U.S. history is based on the verifiably false claim that Americans with high incomes don’t pay their “fair share.” In no other country do the rich bear a greater share of the income-tax burden than they do in the U.S.

Organization for Economic Cooperation and Development data show that the top 10% of American households earn about 33.5% of all earned income but pay 45.1% of all income taxes, including Social Security and Medicare payroll taxes. That progressivity ratio of 1.35 is far higher than in any other country. The ratio in France is 1.10. In Germany it’s 1.07, and in Sweden an even 1. In the last OECD study, in 2015, the top 10% of earners in the U.S. paid 45% of all income taxes. In France, the top 10% only paid 28%. In Germany they paid 31% and in Sweden 27%. Conversely, the bottom 90% of earners in the U.S. paid 55%. The bottom 90% of earners in France paid 72%. In Germany it was 69% and in Sweden 73%.


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October 19, 2021 in Tax, Tax News | Permalink

Wallace & Lutkenhaus: Measuring Scholarly Impact In Law

Karen L. Wallace (Drake) & Rebecca Lutkenhaus (Drake; Google Scholar), Measuring Scholarly Impact in Law, 28 Widener L. Rev. ___ (2022):

In February 2019, U.S. News & World Report announced a proposal to use HeinOnline data to publish a scholarly impact ranking of law schools. As a result, interest in using scholarly metrics to quantitatively assess legal scholarship soared. Legal scholars debated several issues, including: the concept of evaluating scholarly impact through citation metrics; the ramifications of publishing this information alongside the highly criticized, but undeniably influential, U.S. News law school rankings; the optimal procedures for creating such a ranking; the rationale underlying the decisions involved in establishing a methodology; and HeinOnline’s available content and metrics. The concerns raised ultimately led U.S. News to abandon its planned ranking in summer 2021, two and a half years after its initial announcement. 

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October 19, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

U.S. News Crime Spree: Florida Students Steal 40 Of 75 Banners Celebrating Top 5 Public University Ranking

The Independent Florida Alligator, Forty UF Top-Five Banners Stolen From Campus:

UF Top 5Seventy-five banners that read “Top 5” hung at UF. Now, only 35 remain.

Forty banners celebrating the school’s new national ranking have been stolen across the UF campus.

Since the week of Sept. 13, the missing banners amount to a loss of almost $3,000, UF spokesperson Steve Orlando said. The double-sided, vinyl hangings are 24 inches wide and 72 inches tall. They cost about $73 each. ...

In less than one month, the banners have disappeared just as quickly as they were put up. Within six days of the U.S. News and World Report ranking announcement, banners were hung around campus including the Reitz Lawn, Plaza of the Americas and along Union Road. ...

Orlando attributes these thefts to excitement about the university’s new ranking. “We were glad that people are excited about the number five ranking,” he said. “We would prefer it if they would find another way to express their excitement.” ...

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October 19, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

Koppelman: Yale Law School’s Bullying, Coercive Diversity Leaders


Following up on my previous posts (links below):  Chronicle of Higher Education op-ed:  Yale Law’s Bullying, Coercive Diversity Leaders: How Not To Do Equity Work, by Andrew Koppelman (Northwestern):

Yale Law Logo (2020)The movement for diversity and inclusion has improved people’s lives in many tangible ways. A few days ago at Northwestern’s Pritzker School of Law, where I’m a professor, I went into the men’s restroom and saw that the school had provided tampons and sanitary pads on a shelf there. It made me happy. There are people here who menstruate and identify as male. Their needs matter, and the school now recognizes that.

But in other respects, the diversity and inclusion movement is becoming the enemy of diversity and inclusion, imposing a cookie-cutter orthodoxy and trying to turn thinking human beings into marionettes. An already-notorious recent episode at Yale Law School (disclosure: I’m an alumnus) highlights the problem. It offers lessons in how to, and how not to, manage issues of inclusion.

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October 19, 2021 in Legal Ed News, Legal Education | Permalink

Beller: S Corporations As Shareholders, LLC Members, And Partners

Herbert N. Beller (Professor of Practice, Northwestern; Of Counsel, Eversheds-Sutherland), S Corporations as Shareholders, LLC Members, and Partners, Part 1, 172 Tax Notes Fed. 1713 (Sept. 13, 2021); S Corporations as Shareholders, LLC Members, and Partners, Part 2, 172 Tax Notes Fed. 1915 (Sept. 20, 2021):

Tax Notes Federal (2020)This two-part article focuses on numerous transactional scenarios involving S corporations that have sole or partial ownership interests in other entities, including C corporations, qualified S corporation subsidiaries, single- and multiple-member limited liability companiess and partnerships. Part 1 outlines the fundamentals of how subchapter S operates and examines the tax treatment of transactions through which the S corporation comes into existence, other entities become affiliated with the S corporation group, and cash or other property is transferred from an affiliate to the S corporation or to another affiliate. Part 2 examines the tax consequences of transactions in which a complete or partial interest in an affiliate is sold or otherwise disposed of by the S corporation, including through a taxable stock or assets acquisition, a tax-free reorganization under section 368 or a tax-free corporate separation under section 355.

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October 19, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Is Big Law's Addiction To Elite Law Schools Hobbling Diversity Efforts?

Reuters, Is Big Law's Addiction to Elite Schools Hobbling Diversity Efforts?:

Black Lawyers MatterIf they really want to expand their ranks of Black associates, law firms should recruit from more schools, consider candidates outside the very top of their class and not wait for on-campus interviews to build relationships with diverse law students.

That was the advice from Big Law partners and law school officials during a discussion Friday on the recruitment and retention of Black lawyers—part of a day-long "Black Lawyers Matter" conference co-hosted by University of Houston Law Center, Southern Methodist University Dedman School of Law, and the Law School Admission Council.

Law schools consistently fall short in helping Black students on the job market, said panelist Jim Leipold, executive director of the National Association for Law Placement.

Over the past six years, the gap between white and Black law graduates landing jobs that require passing the bar exam averaged 18 percentage points, he said. Black law graduates consistently have the lowest rate of private sector employment, NALP data show.

“It’s impossible for me not to conclude that law schools have long had systems in place that preference and prioritize the employment outcomes of white graduates over Black graduates,” Leipold said.

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October 19, 2021 in Legal Ed News, Legal Education | Permalink

Tax Profs Oppose Proposed Charitable Conservation Easement Curing Provision

Letter To Senate Finance Committee On H.R. 5376:

We are teachers, scholars, and practitioners in the fields of tax law, property law, natural resource management, and land use law. We write today to express our deep concern about a provision recently added to the Charitable Conservation Easement Program Integrity Act, that is now part of H.R. 5376, the “Build Back Better Act” (the reconciliation bill). This provision, if enacted into law, would open the door to widespread abuse of the charitable deduction for conservation easements and lead to a massive waste of taxpayer dollars. We urge you to omit the same or comparable language from a Senate bill and to work to ensure that it is not included in the final legislation.

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October 19, 2021 in Congressional News, Tax, Tax News | Permalink

Monday, October 18, 2021

Maag Presents The Next Stage Of The Child Tax Credit Today At Loyola-L.A.

Elaine Maag (Tax Policy Center) presents Issues In Child Benefit Administration In The United States: Imagining the Next Stage of the Child Tax Credit (with Samuel Hammond (Niskanen Center)) at Loyola-L.A. today as part of its Tax Policy Colloquium:

Maag-elaineThe American Rescue Plan Act of 2021 (ARP) expanded the Child Tax Credit (CTC) for one year and delivered it as a monthly benefit to the vast majority of recipients. Whether the credit will retain its current form, revert to its previous form, or take on a new form altogether is unclear. Even if the credit is extended, it is unlikely to be extended permanently and there remains the possibility that if will continue to evolve as discussions around providing a robust child benefit continue. A robust child benefit could provide a minimum source of support to all or most families with children which would mean that fewer children would grow up in poverty and would be harmed by temporary income drops. We compare how a tax credit such as the Child Tax Credit (CTC) administered by the Internal Revenue Service (IRS) or a universal child allowance administered by the Social Security Administration (SSA) could be structured to best meet the needs of families with children. Tax credits, in general, have been the more popular tool of choice for both Democrats and Republicans to redistribute income in recent years (Faricy 2015)–including the temporary expansion of the Child Tax Credit (CTC).

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October 18, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Federal Tax Revenues Soar 18%, Most In 44 Years, Primarily From Individual (+28%) And Corporate (+75%) Taxes

Congressional Budget Office, Monthly Budget Review: September 2021:

Total Receipts: Up by 18 Percent in Fiscal Year 2021 ...


Chris Edwards (Cato Institute), Federal Tax Revenues Soar:

New data from the Congressional Budget Office show that federal tax revenues are soaring. Despite the Republican tax cuts of 2017 and the ongoing pandemic, taxes are pouring into the U.S. Treasury. ...

The chart below shows the major sources of federal revenues from fiscal 2000 to fiscal 2021, which ended September 30. The GOP tax cuts were effective January 2018, which was part way through fiscal 2018. ...


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October 18, 2021 in Congressional News, Tax, Tax News | Permalink

The Unsung Heroes Of The Desegregation Of American Law Schools

Gail S. Stephenson (Southern; Google Scholar), The Unsung Heroes of the Desegregation of American Law Schools, 51 J. of L. & Educ. ___ (2022):

In 1940 seventeen American states prohibited interracial education by force of law. In 1945 the south offered white students sixteen law schools, but African-American students were limited to one segregated law school. Thurgood Marshall and the NAACP developed a strategy to desegregate American education by first attacking the inequities in graduate and professional education in the courts. Law schools were the first targets as Marshall hoped to develop a cadre of civil rights advocates who could carry on his work.

These lawsuits required courageous individuals to step forward to serve as test plaintiffs. These individuals were vilified, intimidated, and threatened. Ultimately only two actually graduated from the schools they sued to attend and practiced law, although some graduated from other law schools and went on to highly successful careers.

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October 18, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Florida Gov. Ron DeSantis Says Three Years Of Law School Is A ‘Waste’

Florida Politics, Ron DeSantis Says Three Years of Law School Is a ‘Waste’:

DeSantisGov. Ron DeSantis continued his recent tradition of unsolicited critiques of higher education, saying Friday that current three-year law school tracks are a “waste.”

“You don’t need three years for law school,” DeSantis, a Harvard Law product, said in Naples Friday, where he was rolling out a job growth grant award to expand vocational offerings.

“Some of these degrees you see. You know, I went to law school; you don’t need three years for law school,” DeSantis divulged. “I mean, seriously, you don’t. You could do it probably in one. Definitely in two. You don’t need three.”

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October 18, 2021 in Legal Ed News, Legal Education | Permalink

Yale Law Student Who Sent 'Trap House' Email Faces Removal As 2L Representative


Following up on my previous posts:


David Lat, The Yale Law School Email Controversy: An Interview With Trent Colbert:

[David Lat]: As you know, there has been a lot of support for you outside of YLS. Do you think this could be the start of an improvement in the climate at the law school?

[Trent Colbert]: We’ll see. I’m cautiously optimistic.

[Trent's Friend: This story goes beyond Trent. The administration mishandled his situation badly. Students shouldn’t be treated the way that he was treated. But more broadly, what we’ve heard in these recordings should give people in the legal profession—and beyond—reason to be concerned.

We heard administrators say that membership in FedSoc is an aggravating factor when you’re accused of offensive conduct. It’s ideological discrimination, in an environment that’s already challenging for conservatives, a school where we have no conservative public-law scholars on the faculty.

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October 18, 2021 in Legal Ed News, Legal Education | Permalink

Lesson From The Tax Court #200: The Great Divide

Camp (2021)Today's Lesson is an appropriate one for my 200th post.  While the line separating my 199th from my 201st post is not big—not a great divide—the line does make visible a degree of effort and consistency that might otherwise be obscure.  So, yeah, I'm kinda proud about crossing this line.

The concept of Adjusted Gross Income (AGI) also creates a line, one that confuses my students enormously.  They have trouble understanding that the ability to take a deduction is affected not simply by the statute that authorizes the deduction but also by the statutes that tell you where to take the deduction in the process of calculating taxable income.  And not only does the concept of AGI create a line—dividing deductions taken above the line from those taken below the line—it sometimes creates a great divide.

In Carl L. Gregory and Leila Gregory v. Commissioner, T.C. Memo. 2021-115 (Sept. 29, 2021)(Judge Jones), the taxpayer’s lawyers had the same trouble my students have.  The case teaches a graphic lesson on the great divide that can exist between treatment of deductions taken above the line and those taken below, not to mention the great divide between the really rich and the rest of us.  There, the taxpayers were unable to deduct a penny their yacht hobby expenses.  While §183 allowed over $340,000 of deductions, this amount did not exceed 2% of the Gregorys' AGI.  Wow.  That fact at least explains why they may have thought it a good idea to pay attorneys to argue that the expenses went above the line.  It does not explain why the attorneys did not advise that such an argument was groundless, bordering on frivolous.  Details below the fold.    

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October 18, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

U.S. News Releases Elementary School (!) Rankings

U.S. News & World Report, New Elementary and Middle Schools Rankings Launched:

U.S. News Elementary School RankingsToday, for the first time, U.S. News published rankings of public elementary and middle schools [methodology here]. Like our annual Best High Schools rankings, we hope these statistical assessments are a useful resource for parents in conjunction with the accompanying data we publish on school characteristics.

All public schools were ranked for which source data and history allowed. In other words, whether a school was ranked or unranked was independent of academic quality. About 81% of public schools with elementary and middle school grades received a ranking.

Including ranked and unranked schools, U.S. News now lists 118,332 public and private grade schools in its directory; among which U.S. News ranked 79,941 unique public grade schools in 2021. These include 47,325 schools newly ranked as elementary schools and 23,255 as middle schools — some of which are in both rankings.

Unlike the high school rankings, there are no national rankings of elementary and middle schools. There are overall state rankings and state rankings broken out by school district. We also published statewide rankings specific to charter schools and magnet schools.

Drexel Dean Dan Filler's 2008 tongue in cheek announcement of a U.S. News Preschool Rankings has nearly come true:  U.S. News lists, but does not rank, over 1,500 preschools.

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October 18, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

TaxProf Blog Weekend Roundup

Sunday, October 17, 2021

The Secret To A Happy And Meaningful Life: Choose Suffering

Wall Street Journal Saturday Essay:  Why We Choose to Suffer: The Struggle for a Meaningful Life, by Paul Bloom (University of Toronto; Author, The Sweet Spot: The Pleasures of Suffering and the Search for Meaning):

Sweet SpotIn the search for a meaningful life, simply seeking pleasure isn’t enough. We need struggle and sacrifice.

The simplest theory of human nature is that we work as hard as we can to avoid ... [painful] experiences. We pursue pleasure and comfort; we hope to make it through life unscathed. Suffering and pain are, by their very nature, to be avoided. ... .

But this theory is incomplete. Under the right circumstances and in the right doses, physical pain and emotional pain, difficulty and failure and loss, are exactly what we are looking for. ...

Consider ... chosen suffering. People, typically young men, sometimes choose to go to war, and while they don’t wish to be maimed or killed, they are hoping to experience challenge, fear and struggle—to be baptized by fire, to use the clichéd phrase. Some of us choose to have children, and usually we have some sense of how hard it will be. Maybe we even know of all the research showing that, moment by moment, the years with young children can be more stressful than any other time of life. (And those who don’t know this ahead of time will quickly find out.) And yet we rarely regret such choices. More generally, the projects that are most central to our lives involve suffering and sacrifice.

The importance of suffering is old news. It is part of many religious traditions, including the story in Genesis of how original sin condemned us to a life of struggle. It is central to Buddhist thought—the focus of the Four Noble Truths.

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October 17, 2021 in Book Club, Legal Education | Permalink

Symposium: Is This A Christian Nation?

Symposium, Is This a Christian Nation?, 26 Roger Williams U. L. Rev. 237-665 (2021):

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October 17, 2021 in Conferences, Legal Ed Scholarship, Scholarship | Permalink

Garnett: Revisiting The 'Separation Of Church And State' In Our Time Of Deep Division

Richard Garnett (Notre Dame), Revisiting the "Separation of Church and State" in Our Time of Deep Division:

Religious freedom, I believe, is a fundamental human right. Religious freedom does not matter because the Constitution protects it; instead, the Constitution (like modern human-rights law) protects it because religious freedom matters. It is not a gift from the government; it is a limit on the government. Every person, because he or she is a person, has the right to religious liberty—to embrace, or to reject, religious faith, traditions, practices, and communities. This freedom is enjoyed by, and is important to, religious believers and nonbelievers alike. Religious freedom, protected through law, helps both individuals and communities to flourish. It protects the “private” conscience and also promotes the “public,” common good. Religious or not, devout or not, we all have a stake in the religious-liberty project, and in the success of what Thomas Jefferson called our First Amendment’s “fair” and “novel” experiment.

Now, it is true that religious freedom is sometimes inconvenient for overreaching governments. Sometimes, it comes at a cost. Sometimes, it benefits people we think are just weird. Sometimes, it is abused. The same is true, of course, of other constitutional rights, like the right to be free from unreasonable searches, or the right to remain silent, or the right to protest and dissent. Legal and constitutional protections for fundamental human rights are sometimes inefficient; they sometimes get in the way. That our fellow citizens have constitutional and other legal rights means, sometimes, that we have to tolerate a lot of speech and action that we don’t like, that we disagree with, that irritates us, and that offends us. Religious freedom and free speech mean, necessarily, that there will be dissent, and dissenters. After all, if everyone agrees, these freedoms are unnecessary. A premise of our Constitution, though, is that—all things considered—they are worth it. ...

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October 17, 2021 in Legal Education | Permalink