Are Discipline Code Proceedings Another Example Of Racial Disparities In Legal Education?

Andrea Anne Curcio (Georgia State) & Alexis Martinez (Georgia Tech), Are Discipline Code Proceedings Another Example of Racial Disparities in Legal Education?, 22 Md. J. Race Religion Gender & Class __ (2022):

Addressing racism within legal education has historically focused on diversifying the faculty and student body, as well as integrating teaching about institutional and structural racism into the law school curriculum. More recently, law school faculty have begun to focus on creating an inclusive campus culture, which requires looking at all systems and procedures that affect our students' sense of belonging and potential success as students and lawyers. One system that merits this attention is law school disciplinary code proceedings. This Article reviews studies from K-12, undergraduate, and lawyer disciplinary proceedings--all of which have found disparities exist. Given those findings, it is unlikely law school disciplinary code proceedings are a disparity-free zone. Because of the effect of disciplinary code proceedings on students' academic and career trajectories, as well as their emotional well-being, if law schools truly seek to address the institutional, structural, and interpersonal racism within our institutions, this area needs to be explored. 

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The Code Section 267 Related Party Rules: When Do They Apply To Section 351 Transactions?

Doron Narotzki (Akron; Google Scholar) & Melanie McCoskey (Akron; Google Scholar), The Code Section 267 Related Party Rules: When Do They Apply to Section 351 Transactions?, 136 J. Tax'n __ (2022):

Code Section 351 states that property transferors do not recognize gain or loss when they have control of the corporation immediately after the exchange. If the control requirements are not met, any realized loss that would be allowed under Code Section 351 may be disallowed under the Code Section 267 related party rules. One question that has not been addressed clearly in any primary source of authority is the proper time for testing to determine whether the related party rules apply. This article attempts to provide a review of the relevant legislation and court cases in order to provide guidance on this issue.

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What Trump Gets Right About Harvard

Politico Magazine: What Trump Gets Right about Harvard, by Evan Mandery (CUNY; Google Scholar; Author, Poison Ivy: How Elite Colleges Divide Us (2022)):

Clad in his trademark red sweater, Hall of Fame college basketball coach Bobby Knight introduced Republican presidential nominee Donald Trump to an enthusiastic audience of supporters in late September 2016. “I’ll tell you one thing for damn sure,” Knight bellowed. “I know how to win and he’s going to be the best winner we’ve had in a long time.”

Trump emerged to the theme from Rocky, praised Knight’s incredible winning record, and then launched into a diatribe about elite colleges and universities. Two months earlier, Hillary Clinton had proposed to make public college free for middle-class families. Trump would have none of that. “Universities get massive tax breaks for massive endowments,” Trump said, to boos and catcalls. “These huge multi-billion-dollar endowments are tax free,” he explained. “But too many of these universities don’t use the money to help with tuition and student debt. Instead, these universities use the money to pay their administrators or put donors’ names on buildings or just store the money, keep it, and invest it.” The chorus of boos loudened. “In fact, many universities spend more on private equity managers than on tuition programs.”

Trump’s persistent attacks on elites were a major component of his electoral strategy and remained a key part of his message during his presidency and subsequent exile. Condemning elites — particularly in higher education — has long been a part of the GOP playbook, but it’s even more key today. Last November, Republican Senate candidate J.D. Vance delivered a half-hour speech at the National Conservatism Conference titled, “The Universities are the Enemy.” Vance accused universities of pursuing “deceit and lies.” To applause, he said, “I think if any of us want to do the things that we want to do for our country and for the people who live in it, we have to honestly and aggressively attack the universities in this country.” Vance’s would-be Senate colleagues Josh Hawley — like Vance, a graduate of Yale Law School — and Ted Cruz — a graduate of Harvard — routinely attack elites and elite institutions.

To some extent, elite colleges are simply collateral damage in the culture war. Indeed, the thrust of Vance’s speech is about the need to break through the indoctrination of the liberal intelligentsia — via what he calls “red pilling,” a reference to The Matrix — where the “fundamental corruption” at the root of the system, as Vance put it, can’t be unseen once seen. “So much of what drives truth and knowledge, as we understand it in this country,” Vance said, “is fundamentally determined by, supported by and reinforced by the universities in this country.”

But that’s not the whole story. Another line of attack is about access. It’s about who gets to be part of the elite, and whether America has gotten a fair return on the massive investment that it has made in elite colleges. For, difficult as this might be for liberals to hear, almost everything Trump said to the crowd Bobby Knight had warmed up was true.

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Adediran: Disclosures For Equity

Atinuke O. Adediran (Fordham; Google Scholar), Disclosures for Equity, 122 Colum. L. Rev. 865 (2022): 

This Article addresses how to increase funding to nonprofit organizations that are led by minorities or serve communities of color and how to hold corporations and private foundations who make public commitments to fund these organizations accountable for those commitments. The Article makes two policy recommendations to address these problems, while engaging with Supreme Court jurisprudence on mandatory disclosures to ensure that the proposals are narrowly tailored to institutional donors and include an opt-out provision so as not to chill the constitutional protection of the freedom of association. The first is for charities to publicly disclose their institutional donors in Schedule B of Internal Revenue Service (IRS) Form 990. The second is to modify IRS Form 990 to include information on the race and ethnicity of top managers, boards of directors, and the communities an organization serves.

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Subversive Legal Education: Reformist Steps Toward Abolitionist Visions

Christina John (New Jersey Appellate Division), Russell G. Pearce (Fordham), Aundray Jermaine Archer (Legal Aid Society of Westchester County), Sarah Medina Camiscoli (Public Counsel, Peer Defense Project, Yale) & Aron Pines (PEN America Writing for Justice), Subversive Legal Education: Reformist Steps Toward Abolitionist Visions, 90 Fordham L. Rev. 2089 (2022):

Exclusivity in legal education divides traditional scholars, students, and impacted communities most disproportionately harmed by the legal education system. While traditional legal scholars tend to embrace traditional legal education, organic jurists—those who are historically excluded from legal education and those who educate themselves and their communities about their legal rights and realities—often reject the inaccessibility of legal education and its power. This Essay joins a team of community legal writers to imagine a set of principles for subversive legal education. Together, we—formerly incarcerated pro se litigants, paralegals for intergenerational movement lawyering initiatives, first-generation law students and lawyers, persons with years of formal legal expertise, and people who have gained expertise outside of law schools—bring together critical insight about the impact of legal education’s exclusivity and the means by which we have worked to expand access necessary for our survival. The Essay explores the frameworks of movement law, Black feminism, and abolition as impacted people look to reclaim experiences and create tools for subversive legal education that teaches that the law belongs to the people and how they themselves can make and change the law. 

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Nurturing The Baby Bond Proposal: How Tax Principles Can Close The Racial Wealth Gap In The United States

James T. Smith (J.D. 2022, Temple), Comment, Nurturing the Baby Bond Proposal: How Tax Principles Can Close the Racial Wealth Gap in the United States, 94 Temp. L. Rev. 147 (2021):

“Every day I’m trying to play catch-up,” said Kourtney McGowan—a Black mother from California who became unemployed after her company refused to accommodate her work schedule during the COVID-19 pandemic. McGowan noted that she could not “have [her] son in [her] office for eight hours every day,” and she had no reliable plan for childcare. She turned her eight-year-old son to therapy to address his anxieties stemming from the pandemic. “Raising Black boys is hard in itself . . . . I’m just trusting God,” said McGowan.

The United States of America is the wealthiest country in the world, but, paradoxically, it has the largest wealth gap in the world. The wealth gap in the United States is starkest between races—Black wealth per family has declined by approximately 50% since 1983, while White wealth per family has increased by 33%. Families, like the McGowans, are finding themselves in difficult positions where they are “going to have quite a bit less to leave to their children.” Black children are more likely to live in poverty than their White peers, which impacts not only their physical and mental health but also their ability to achieve economic mobility.

Congress has relied primarily on fiscal policy mechanisms to provide substantial economic stimulus to the public and private sectors of the U.S. economy through the Tax Cuts and Jobs Act (TCJA) and—in the face of a raging pandemic—through the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). However, these policies have fallen short of erasing racial economic disparities; in some cases, the policies have increased these disparities.

In order to address the racial economic gap, scholars and researchers across the United States have promulgated the idea of a “baby bond.” Upon the birth of an American child, that child would be provided a trust fund, which would become accessible when the child becomes a young adult. Each child would receive varying amounts of funds that would correlate inversely with the net worth of the child’s household at the time of birth. U.S. Senator Cory Booker (D-NJ) and others have adopted this idea but rely on gross familial income to calculate the amount of each disbursement, as opposed to actual wealth. The baby bond solution is gaining traction within academia and policy spheres.

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Early Decision Programs Pose Risks To Applicants And Law Schools Alike

Following up on my previous posts (links):  Law.com, Early Decision Programs Pose Risks to Applicants and Law Schools Alike:

A number of law schools offer Early Decision application programs, giving prospective students the benefit of an expedited application review process in exchange for a commitment to attend that institution. But history has shown there are a number of potential downsides for applicants, as well as for the schools offering these programs.

Overall, less than 40% of American Bar Association-accredited law schools in the U.S. offer Early Decision applications. However, among the top 52 law schools (top 50, including ties), that number jumps to approximately 67%, according to various sources, including PowerScore Test Preparation’s LSAT and Law School Admissions blog and Spivey Consulting’s blog.

Eleven of the T14s have Early Decision—Yale, Stanford and Harvard do not. ...

Early Decision acceptance almost always has a “binding” requirement, meaning that prospective students must sign on the dotted line that they will be attending that school and withdraw any applications to other schools, according to Powerscore’s blog.

Just within the past month, two law schools changed their policies—one adding Early Decision and another eliminating it.

Last week, Boston College Law School launched a new Early Decision admissions program to provide an expedited review. ...

But some schools have found Early Decision programs to be detrimental to the admissions process overall. On Aug. 31, the Office of Admissions at Notre Dame Law School announced the elimination of the Early Decision application program in an effort to promote a more inclusive admissions process, according to the school’s announcement.

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Dickerson Reviews Brown's The Whiteness Of Wealth

A. Mechele Dickerson (Texas), Shining a Bright Light on the Color of Wealth, 120 Mich. L. Rev. 1085 (2022) (reviewing Dorothy A. Brown (Georgetown; Google Scholar), The Whiteness of Wealth: How the Tax System Impoverishes Black Americans — And How We Can Fix It (2021)):

Professor Dorothy A. Brown boldly asserts in The Whiteness of Wealth: How the Tax System Impoverishes Black Americans — And How We Can Fix It  that “whiteness has consistently and continually played a serious role in wealth building” (p. 20). Using stories from her life and the lives of other Black taxpayers, Brown methodically exposes how the same tax laws and policies that help whites build intergenerational wealth impoverish Blacks. Although readers who lack a business or legal background may not grasp the intricate technicalities of the Internal Revenue Code sections that Brown dissects, that does not matter. The clarity of Brown’s writing, her storytelling, and vivid examples involving her parents (Miss Dottie and James) and other ordinary Black taxpayers convey complex points—think tax policy preferences for horizontal equity or the lock-in effect—with ease.

This Review examines Brown’s powerful assertion that tax policies build and protect intergenerational white wealth and exacerbate the racial wealth gap by subsidizing activities and personal choices that disproportionately benefit white taxpayers. Those stunned by the enormity of this racial wealth gap will be horrified to learn that tax policies were designed to create white wealth.

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Arkansas Law Professor Files State Claim Over Denial Of Named Professorship With $10,250 Stipend

Arkansas Democrat Gazette, UALR Law Professor Files Claim With State Claims Commission over Named Professorship:

A University of Arkansas at Little Rock law professor has filed a claim with the Arkansas State Claims Commission saying he was improperly denied a named professorship despite being the best-qualified faculty member for the position.

Robert Steinbuch said that his failure to receive the Arkansas Bar Foundation Professorship — which comes with a $10,250 stipend annually for four years — was "at least an abuse of discretion" by Dean Theresa Beiner of the W.H. Bowen School of Law at the University of Arkansas at Little Rock, and he seeks an award of $10,250.

Beiner "did not employ the required donor selection criteria for the position, and improperly adopted a series of her own created substantive criteria, including arbitrarily limiting the time period of accomplishments considered to five years, which obviously benefits candidates without a long history of accomplishments," according to the claim. "Named Professorships are designed to reflect a career of accomplishments, which inevitably includes recent years, but are not designed to only consider recent accomplishments at the expense of also considering" the full records of candidates.

"Beiner filled the one Named Professorship she advertised with an applicant," Lindsey Gustafson — who has been a member of the faculty since 1998 and was appointed Associate Dean for Academic Affairs in 2020 — "who at minimum demonstrably and significantly didn't fulfill the requirements of the Arkansas Bar Foundation Professorship as well as Steinbuch did, if she (did) at all, which does not appear the case," according to the claim. "Had the rules been properly applied, Steinbuch would have received the Named Professorship and the accompanying $10,250, which he seeks in damages."

Arkansas Democrat Gazette, Conflict Continues:

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Taub Presents No Income Taxation Until Basic Accommodations: Toward Tax Justice In America Today At NYU

Jennifer Taub (Western New England; Google Scholar) presents No Income Taxation Until Basic Accommodations: Toward Tax Justice in America at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

Tax reform proposals recently promoted by progressive policymakers and candidates for elected office have focused on increasing federal taxes assessed on and paid by large business enterprises and wealthy individuals. These types of recommendations are designed to achieve redistributive justice based policy goals and also wisely follow the changing direction of public sentiment. From a policy perspective, economic research suggests that this sort of tax-receipts driven redistribution is essential in order to stem –– and ideally reverse –– growing wealth and income inequality trends. As for popular sentiment, the timing is good as the American public was already stirred up in response to the 2017 Republican-championed tax cuts for corporations and the super wealthy. Now, post-pandemic, the American people are even more receptive than they were before to taxing perceived coronavirus profiteering by billionaires and transnational corporations. We can also see evidence of strong support for targeting tax increases on big business and well-off individuals in polling as well as recent responses to the Inflation Reduction Act, the August 2022 legislation that moves modestly in that direction including with a financial-statement based fifteen percent alternative minimum tax on corporations that have on average $1 billion or more in annual earnings. 

These efforts to raise revenue and reduce inequality through taxation are commendable. However, there’s something mostly missing from this agenda that proposes (and recently achieved) adding additional taxes for corporations and the wealthy. Absent, so far, is a serious discussion of direct tax relief for the rest of us.

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Table Of Links To U.S. Law School Statements On Antiracism/Diversity

Elizabeth Mertz (Wisconsin; Google Scholar) & Frances Tung (American Bar Foundation), Table of Links to U.S. Law School Statements on Antiracism/Diversity:

This Table continues a data-sharing effort begun by Scharf & Merton, and continued by Tung & Mertz in a 2021 SSRN posting as part of a larger project on law school education funded by the American Bar Foundation and directed by Elizabeth Mertz. For this Table, we collected links and information posted on law schools' websites regarding diversity and antiracism. We searched using law schools' websites, Google, and the Law Deans Antiracist Clearinghouse Project (https://www.aals.org/antiracist-clearinghouse/). 

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Mann Presents Energy Tax Policy And Support For Zero-Emission Cars In Fleets Today At UC-Hastings

Roberta Mann (Oregon) presents Taxation Support for Zero-Emission Cars in Fleets: Cases from the US and Australia at UC-Hastings (with Diane Kraal (Monash; Google Scholar)) today as part of its Tax Speaker Series hosted by Heather Field:

Two qualitative case studies of fleet vehicles in the US and Australia are presented that consider the effect of energy tax policy to increase light car zero-emission electric vehicles (ZEV) adoption in each jurisdiction. The article reflects on tax policies of selected European countries with EV uptakes that surpass the US and Australia. This research makes a substantial contribution to energy policy in the US and Australia by determining energy policies that can enhance the uptake of light car ZEVs, thereby linking to the United Nation’s target of reducing CO2 emissions in the transport sector. Recommendations are supported by analysis of case study transport emissions and government data. This article is significant because it presents strategies for more effectively using tax for energy policy in the US and Australia to increase the number of light car ZEVs. Taxation is seen as necessary to complement EV technology. The US case study finds tax changes are needed to support the current US energy policy of increased uptake of electric vehicles in government fleets.

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If Legal Education Embraced Pay Transparency, Would Law Professors Emulate Hockey Players And Focus More On Scholarship And Less On Students?

Wall Street Journal, Success at Work Is Warped by Your Co-Workers’ Salaries:

Like most people with regular jobs that don’t require wearing skates to work, professional hockey players had no idea how much money their colleagues made—until one morning in 1990 when a newspaper published the salary of everyone in the National Hockey League.

It was an extreme case of a topic that captivates economists: pay transparency.

So not long ago, intrigued by the consequences of that overnight shock, a researcher decided to exploit this natural experiment hiding in plain sight. It led to insights that have never been so relevant about how one industry’s wage disclosure affected the performance of those employees and their entire teams.

Now a version of what happened in hockey is on the verge of happening across the U.S.

The country is nearing a crossroads in the battle over salary transparency that would bring major changes to some of the nation’s most powerful companies from Wall Street to Silicon Valley.

A small number of states already have wage-disclosure laws that require most workplaces to list pay ranges on their job postings. These policies meant to narrow gender pay gaps could become more common, as New York City is set to enact sweeping legislation in November and California sent a bill to the governor’s desk for a decision by the end of September.

Talking about money in the office used to be taboo. But younger workers are more comfortable discussing how much they make, a phenomenon their older colleagues find as befuddling as TikTok. As it turns out, there are hidden effects of pay transparency that warp the way people view success, and that’s why hockey’s unplanned experiment is worth another look today: We could all learn a thing or two from a few hundred people a few decades ago.

That moment of mass disclosure in the NHL is the focus of a new paper by James Flynn, an economics Ph.D. candidate at the University of Colorado [Salary disclosure and individual effort: Evidence from the National Hockey League]. Plenty of studies have shown that salary transparency affects employee satisfaction. This one measures their production.

The employees who discovered they were paid less than their peers didn’t suddenly put in less effort at work. They just exerted a different kind of effort.

In a likely response to what they perceived as unfair pay, these NHL players sacrificed defense and shifted their attention to offense, since players who were better at offense commanded higher salaries in contract negotiations. They had seen the skills their labor market rewarded—and they were following the money. But this was counterproductive. The performance of their teams suffered when they altered their individual play. ...

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Evaluating The Tax Veto In A Digital Age: Legislative Efficiency And National Sovereignty In The European Union

Charlotte A. McFaddin (J.D. 2021, Virginia; Associate, Weil, Gotshal & Manges, Washington, D.C.), Note, Evaluating the Tax Veto in a Digital Age: Legislative Efficiency and National Sovereignty in the European Union, 62 Va. J. Int'l L. 429 (2022):

The total market capitalization of the six largest U.S.-headquartered tech companies now tops $4.5 trillion; yet much of their revenues legally escape taxation every year. Recognizing the challenges of taxing the digital economy, the international community joined forces to reform the outdated global tax framework. In 2018, however, the United States hesitated to commit to reform and international negotiations stalled. The European Commission (Commission) subsequently proposed an interim Digital Service Tax for the European Union (EU), in part, to incentivize stronger U.S. involvement in negotiations. Because the European Council requires unanimity when voting on tax proposals, however, the proposal failed when three Member States exercised their tax veto. Defeated by veto, EU leaders could have pursued Enhanced Cooperation to revive the legislation. Instead, the Commission proposed permanent elimination of tax unanimity through the obscure and never used Passerelle Clauses that allow legislators to utilize majority voting without amending any treaties. In doing so, the Commission signaled its desire for the European Union to emerge as a global tax leader, unencumbered by the need to obtain unanimity. However, the Commission’s proposal also raises serious EU state sovereignty concerns. 

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Ruth Markel Publishes Book On Her Son Dan's Murder, Sees Her Grandchildren For The First Time In Six Years

Ruth Markel, The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life (Sept. 20, 2022):

Ruth Markel is the mother of the late Dan Markel, a noted law professor who was murdered in Tallahassee, Florida in 2014.

In The Unveiling, she describes her experiences since the day of Dan’s death from several distinct perspectives:

• As a devastated mother with the unique human perspective of becoming a homicide survivor and victim.
• As a woman whose attempts to achieve normalcy and live a healthy life are continually interrupted by painful reminders, a rollercoaster of hearings, frequently changing trial dates, verdicts, and appeals.
• As an engaged citizen using what she has learned to help other victims of homicide and violent crimes recover from trauma and begin an optimistic outlook on life.
• As an insider who shows how our collective network of family, friends, and experts—including a murder coach—have helped her family remain involved, motivated, and hopeful.
• As a grandmother who had not been allowed to see her grandchildren in many years, she used advocacy to inspire the Florida State Legislature to pass a grandparent visitation bill.
• And as an experienced author of nine books using the written word to effectively address the shift from grief to promise.

Toronto Sun, Mom's Quest to Solve University Professor's Murder:

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Raskolnikov Presents Should Only The Richest Pay More Taxes? Today At UC-Irvine

Alex Raskolnikov (Columbia) presents Should Only the Richest Pay More? at UC-Irvine today as part of its Tax Policy Colloquium:

This paper challenges the leading academic, political, and cultural narrative supporting greater redistribution. The narrative holds that redistribution should come at the expense of a very restricted group of the highest earners: the one percent, the super-rich, the billionaire class. I argue that many reasons offered in support of this view also call for redistribution from a much broader group that includes the affluent—those with incomes in the ninetieth to ninety ninth percentiles of the distribution. Whether one looks at the recent trends in income concentration, wealth concentration, social mobility, economic growth, political polarization, or the rise of populism, the affluent are as great—and sometimes greater—contributors to these problems as those in the top one percent. Remarkably, contemporary legal and economic scholarship has ignored the affluent almost completely, greatly limiting the magnitude of possible economic transfers as well the forms that these transfers may take.

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Legal Ed News Roundup

• ABA Journal, Honduran Attorneys Bring Law-Themed Latin Coffee Shop To Minnesota
• ABA Journal, Overcoming ‘Arbitrary Application Of Licensing Rules,’ Lawyer Wins Bar Admission In Tennessee
• Above the Law, Amy Wax Moves To Dismiss Disciplinary Action, Still Raising Legal Defense Funds That She Claims Are Tax-Deductible
• Above the Law, State Supreme Court Orders Bar Examiners To Knock Off The Nonsense
• Daily Business Review, FAMU Students File Lawsuit Alleging Funding Discrimination
• Diverse Issues in Higher Education, Case Western Reserve University Law School Launches DEI Education Program
• Law.com, AccessLex Institute Launches LexScholars Pathway to Law School for Diverse Students

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Neves & Semmler Present A Proposal For A Carbon Wealth Tax Today At Loyola-L.A.

Jose Pedro Bastos Neves (The New School) & Willi Semmler (The New School) presents A Proposal for a Carbon Wealth Tax: Modelling, Empirics, and Policy at Loyola-L.A. today as part of its Tax Policy Colloquium hosted by Theodore Seto:

Although economists widely advocate carbon pricing as an effective solution to reduce carbon emissions, this mechanism has had so far limited effects. This paper proposes a new type of tax to help finance (and accelerate) the green transition. The “carbon assets” tax would be levied on carbon-intensive (brown) wealth rather than carbon-intensive goods. We consider tax implementation issues such as tax base, incidence, and efficiency. Moreover, we analyze the impacts of such a tax scheme by setting up a model of asset pricing and dynamic portfolio decisions. Green and carbon-intensive returns used in the model are calibrated with low-frequency returns on stock prices between 2010 and 2021.

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Richmond And UC-Hastings Law Schools Remove Names With Racist Pasts

ABC 8 News, University of Richmond Renames Law School:

The name of a businessman who owned slaves will no longer be on the University of Richmond Law School, according to an announcement.

The name T.C. Williams will be removed from the University of Richmond Law School, adhering to the university’s naming principals which prohibit the school from naming buildings, programs, professorships or other entities for a person who directly engaged in trafficking and/or enslavement of others of openly advocated for the enslavement of people.

University of Richmond president Kevin Hallock and the Board of Trustees announced the name change to members of the UR community via email just after 5 p.m. on Friday, Sept. 23. ...

The email explained the university’s board voted unanimously to change the official name of the law school from the T.C. Williams School of Law, which it has held since 1920, to the University of Richmond School of Law.

The nine-paragraph message detailed T.C. Williams’ connection to the university as a student at Richmond College from 1846 to 1849, a trustee from 1881 until his death in 1889 and a donor who helped establish the School of Law. William’s descendants also served on the board.

The email included research garnered from legal documents that showed Williams, who owned a tobacco businesses in the area, enslaved dozens of people to work for the business and serve him in his personal life.

Chancellor & Dean David Faigman, Statement on Governor Signing AB 1936:

I write to you today with further updates on our name change journey since my last message on July 27th. In August, Assembly Bill 1936 successfully passed in both the California Senate and Assembly with resounding support. In fact, there were zero “no” votes in either house. This bill allows us to legally change the name of the College and reaffirm our commitment to restorative justice initiatives with the California tribes most impacted by the acts of our founder and first dean, Serranus Hastings.

Today, Governor Newsom signed the bill, with an effective date of January 1, 2023. ...

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Lesson From The Tax Court: Honor The Corporate Fiction

A corporation has no soul to be damned and no body to be kicked.  So supposedly said Baron Thurlow long, long ago.  It is but a  legal fiction.  It’s not the Borg (which is science fiction, not legal fiction).

The fictional nature of corporations creates all kinds of gnarly problems in criminal law, in constitutional law and, as we learn today, in tax law.  When I was in practice my clients often confused their personal selves with the closely held corporate doppelganger I created for them.  They repeatedly ignored the corporate fiction.  They were the kings of their empires and, like Louis XIV, they felt they were the corporation and the corporation was them.  I am sure many readers can relate to that!

In John E. Vorreyer and Melissa D. Vorreyer, et al. v. Commissioner, T.C. Memo. 2022-97 (Sept. 21, 2022) (Judge Greaves) two of the “et al” taxpayers ignored the corporate fiction to their detriment: they paid debts of their S Corporation from their personal funds and attempted to deduct those payments on their personal income tax returns as a §162 deduction. While the payments were in fact ordinary and necessary expenses for the carrying on a farm business, the corporate fiction prevented the taxpayers from taking the deduction on their individual returns.  It was not their farm business.  It was their corporation's.  Details below the fold. 

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University Of Toronto Hosts Premiere Of The A.I. Taxman Documentary

University of Toronto Faculty of Law News, The AI Taxman: U of T Law Prof is the Subject of an Educational Documentary:

As an expert in taxation law, University of Toronto Professor Benjamin Alarie, the Osler Chair in Business Law at U of T’s Faculty of Law, set on a path several years ago to change how legal research is done.

In 2015, he co-founded a legal tech startup with U of T Law professors Anthony Niblett and Albert Yoon. Blue J’s software draws upon artificial intelligence to provide instant and comprehensive answers in complex areas of tax, labour, and employment law.

“Artificial intelligence is not going to take your job – professionals who use artificial intelligence will replace professionals who don't use artificial intelligence,” says Alarie in the trailer to the Canadian documentary, The A.I. Taxman.

The film will have its big screen premiere at the Isabel Bader Theatre on September 29 [free registration here]. The event is co-hosted by Blue J, the filmmakers, UDocs, and the University of Toronto’s Future of Law Lab at the Faculty of Law. ...

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Death Of John Donaldson (William & Mary)
• Chodorow: Why Trump’s Alleged Real-Estate Shenanigans Went Too Far
• Celebrating 50 Years Of Pepperdine's Malibu Campus

Sunday:

• NY Times Op-Ed: Parents, Dementia, Memory, And God
• Inazu: The Life We're Looking For
• Cardozo Law School Fights Fallout From Yeshiva University LGBT Club Case
• The Top Five New Tax Papers

NY Times Op-Ed: Parents, Dementia, Memory, And God

New York Times Op-Ed:  Our Memory Is Flawed. Luckily, God’s Isn’t., by Tish Harrison Warren (Priest, Anglican Church; Author, Prayer in the Night: For Those Who Work or Watch or Weep (2021) (Christianity Today's 2022 Book of the Year)):

Mom is in the middle stages of Alzheimer’s disease. She knows who we are and remembers everyone’s names. She can tell you who her third-grade teacher was, but not what happened a week ago or a month ago or 10 minutes ago. ... I wonder in the months and years to come what she will continue to remember about her life, about who she used to be.

Memory, for all of us, speaks to our inherent limitations. Forgetting is part of what it is to be human. That becomes more evident when facing Alzheimer’s. But even for those of us who do not have dementia, almost all of our days have faded from view.

What was I doing three years ago today? Or five? Or ten? What conversations did I have? Who was I with? Did I find joy or discouragement that day? I have no idea. I can only tell you the broad outline: where I lived, where I worked, how old I was. The details — those invaluable and ordinary conversations, coincidences and choices that make up each day of our lives — are lost to time. There are, of course, beautiful memories that we hold onto, moments that glow amber in our minds. And dark moments that we may rather erase. But even our most precious days may eventually be forgotten. ...

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Inazu: The Life We're Looking For

John Inazu (Washington University; Google Scholar), The Life We're Looking For:

Last week, I participated in a public dialogue organized by The Carver Project with my friends Andy Crouch, Tish Harrison Warren, and Michael Wear. We focused on Andy’s new book, The Life We’re Looking For: Reclaiming Relationship in a Technological World. Following Andy's framing comments, the rest of us applied the book to the three areas of The Carver Project’s mission: university (me), church (Tish), and society (Michael). We had all read Andy’s book, but none of us had much of an idea of what the others were going to say. Yet it all seemed to work. And I think it worked because we trusted each other. ...

These themes of friendship and trust called to mind Tish’s recent New York Times piece on marriage [I Married The Wrong Person, And I’m So Glad I Did]. Tish shares vulnerable reflections on her own marriage including fights with her husband and lots of counseling, noting that at times they stayed married “sheerly as a matter of religious obedience and for the sake of our children.” ... [S]he offers an alternative to the cultural trend:  "I don’t give a lot of marriage advice. But I want to simply offer that choosing to stay in a marriage for all kinds of unromantic reasons is a good and even a brave choice."

The New York Times Twitter crowd was not pleased with Tish’s suggestion. ...

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Cardozo Law School Fights Fallout From Yeshiva University LGBT Club Case

Following up on last Sunday's post, Supreme Court (5-4) Denies Yeshiva University Request To Block State Ruling On Recognition Of LGBTQ Club; Yeshiva Responds By Canceling All Student Groups:  Reuters, Cardozo Law Fights Fallout From Yeshiva University LGBT Club Case:

The Benjamin N. Cardozo School of Law is taking steps to distance itself from the policies of its parent institution Yeshiva University, after Yeshiva's legal efforts to block an undergraduate LGBT student group reached the U.S. Supreme Court.

More than 50 Cardozo law faculty have signed a letter opposing the university's ban, and the law school is launching a six-week course devoted to the LGBT civil rights movement, which it announced to students as the Supreme Court was weighing the case.

"Cardozo Law School will continue to support our LGBTQ+ students, faculty, administrators and alumni fully and without reservation," Cardozo spokesperson John DeNatale said on Monday. He declined to comment on the Yeshiva litigation.

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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 #2:

1. [308 Downloads]  The Passthrough Entity Tax Scandal, by Daniel Hemel (NYU; Google Scholar) (reviewed by David Elkins (Netanya; visiting NYU 2021-23; Google Scholar) here)
2. [178 Downloads]  Computation of the Effective Tax Rate and the 'Top-up Tax', by Valentin Bendlinger (Vienna University of Economics & Business) & Georg Kofler (Vienna University of Economics & Business; Google Scholar)
3. [174 Downloads]  Standing On the Shoulders of LLCs: The Tax Entity Status and Decentralized Autonomous Organizations, by Samuel D. Brunson (Loyola-Chicago; Google Scholar)
4. [165 Downloads]  The Abandonment of International College Athletes by NIL Policy, by Victoria Haneman (Creighton; Google Scholar) & David Weber (Creighton; Google Scholar)
5. [138 Downloads]  International Tax Reform: Challenges to Multilateral Cooperation, by Assaf Harpaz (Drexel; Google Scholar)

This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: Checks ... Still Matter
2. Paul Caron (Dean, Pepperdine), Fellowships For Aspiring Law Professors (2022-23 Edition)
3. Daily Pennsylvanian, Amy Wax Submits 59-Page Memo Seeking Postponement Of Penn Disciplinary Proceedings, Citing Cancer Treatment
4. Paul Caron (Dean, Pepperdine), Tax Prof Moves, 2020-23
5. Bryce Clayton Newell (Oregon), 2022 Meta-Ranking Of Flagship U.S. Law Reviews
6. Daily Pennsylvanian, Amy Wax Submits 59-Page Memo Seeking Postponement Of Penn Disciplinary Proceedings, Citing Cancer Treatment
7. Houston Chronicle, Former Texas Southern Dean Sues Law School Over Loss Of Tenure
8. Vikram Amar (Dean, Illinois) & Jason Mazzone (Illinois), Where Have All The (Aspiring) Law Profs Gone?
9. Cleveland State University, Committee Votes Unanimously To Remove John Marshall From Law School Name
10. Triangle Business Journal, Doug Shackelford Abruptly Retires As UNC Kenan-Flagler Business School Dean: ‘I’m Very Tired’

Death Of John Donaldson (William & Mary)

Virginia Gazette, Former W&M Law Professor Remembered as a ‘Great and Good Man’:

Former William & Mary law professor John Edward Donaldson, recognized nationally and throughout Virginia for his knowledge of tax law, died Tuesday after a short illness. He was 84.

Donaldson retired after a 35-year teaching career at the college in 2001 as the Ball Professor of Law. Additionally, he worked for years in various leadership capacities with the Virginia Bar Association and served two four-year terms on the James City County Board of Supervisors.

“John Donaldson was a great and good man,” said former William & Mary president and law school dean Timothy J. Sullivan, who joined the law school faculty when Donaldson was already “a respected colleague.” ...

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Chodorow: Why Trump’s Alleged Real-Estate Shenanigans Went Too Far

Slate:  Why Trump’s Alleged Real-Estate Shenanigans Went Too Far, by Adam Chodorow (Arizona State; Google Scholar):

There’s an old saying that pigs get fat and hogs get slaughtered—that is, while there’s room for some playing around in the pen, the consequences could be quite severe if you go too far. Former President Donald Trump, his organization, and his three oldest children have just been accused some of some very hog-like behavior: allegedly inflating the value of his properties and overall net worth to potential lenders and insurers to get preferential interest rates. This is a civil, not criminal, suit, but New York State Attorney General Letitia James has referred the case to those responsible for enforcing federal criminal laws. Until now—with a few exceptions, like Trump University—Trump has avoided consequences for a variety of supposed wrongs. But the sheer scope of his allegedly false claims, and the documentary proof contained in James’ complaint, may finally have crossed that line. It should serve as an object lesson for all who are tempted to cheat the system.

Property values are difficult to assess absent a sale. Appraisers are notorious for valuing properties in ways that benefit their clients. Practically speaking, there’s some wiggle room. But at some point, valuations can be so high or low that no reasonable person could believe them to be accurate. ...

As I like to tell my law students, there is always a tax angle, and this case is no exception. As detailed in the complaint, some of the strongest evidence that Trump intentionally inflated the value of his properties—and hence his net worth—are found in claims he contemporaneously made for state property tax purposes. Not surprisingly, he gave low valuations to tax authorities, while giving much higher ones to his possible lenders. As the attorney general sees it, either he committed tax fraud by using unreasonably low valuations when dealing with tax authorities, or he committed fraud on his lenders and insurers by using valuations significantly higher than those he reported to the state and federal governments. ...

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Deflect, Delay, Deny: A Case Study Of Segregation By Law School Faculty

Briana Rosenbaum (Tennessee), Deflect, Delay, Deny: A Case Study of Segregation by Law School Faculty, 90 Tenn. L. Rev. __ (2022):

Many histories of school desegregation litigation center on the natural protagonists, such as the lawyers and plaintiffs who fought the status quo. Little attention is paid to the role that individual faculty members played in the perpetuation of segregated legal education. When the antagonists in the historiographies do appear, it is usually as anonymous individuals and groups. Thus, “the Board of Regents” refused to change its policy and “the University” denied a person’s application.

But recently discovered and rarely accessed historic documents provide proof of the direct role that some law school faculty members played in the perpetuation of segregation. For example, records at the University of Tennessee College of Law (“UT Law”) reveal that several UT Law faculty members helped to design and implement UT’s segregation strategy, including by acting as legal and policy advisers to state and university officials and by organizing and executing a concerted obfuscation plan to deny black applicants based not on their race, but on “neutral” technicalities. These faculty members are honored and memorialized still today, including through a named professorship and in portraits hanging on campus walls.

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Celebrating 50 Years Of Pepperdine's Malibu Campus

Weekly SSRN Tax Article Review And Roundup: Layser Reviews Reimagining The Tax System Through The Work Of Dorothy Day By Crawford & Afield

This week, Michelle Layser (San Diego; Google Scholar) reviews Bridget J. Crawford (Pace; Google Scholar) & W. Edward Afield (Georgia State; Google Scholar), Yesterday’s Protestor May be Tomorrow’s Saint: Reimagining the Tax System Through the Work of Dorothy Day, 76 Tax L. Rev. __(2023).

Political protests have become more frequent in recent years, but tax protests are nothing new. The Tax Revolt of the 1970s may be fresh in memory, but people have been protesting taxation since the earliest days of the Christian church. In fact, first century tax protests against the Roman Empire were so frequent that Jesus himself is said to have weighed in on the issue, telling the Pharisees they should “render unto Caesar what belongs to Caesar and to God what belongs to God.” A simplistic reading of this passage might suggest a Christian moral imperative to pay taxes. But as Professors Bridget Crawford and W. Edward Afield remind us, at least one prominent Catholic figure disagreed. Dorothy Day, the founder of the Catholic Worker movement, made conscientious tax protest a central part of her religious practice, setting her on a path toward sainthood.

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Weekly Legal Education Roundup

• ABA Journal, 2 of Puerto Rico's 3 Law Schools Will Get More Time to Meet Bar Pass Standard
• Vikram Amar (Dean, Illinois) & Jason Mazzone (Illinois), Where Have All the (Aspiring) Law Profs Gone?
• Kwame Anthony Appiah (NYU), The Ethicist: Is It OK to Take a Law-Firm Job Defending Climate Villains?
• BC Law Magazine, Early Decision Added to Admission Options
• Beth Brennan (Montana), Explicit Instruction in Legal Education: Boon or Spoon?
• Paul Caron (Dean, Pepperdine), July 2022 Florida Bar Exam Results: Florida International Is #1 For 8th Year In A Row
• Paul Caron (Dean, Pepperdine), Tax Prof Moves, 2020-23
• Cleveland State University, Committee Votes Unanimously To Remove John Marshall From Law School Name
• Daily Pennsylvanian, Amy Wax Submits Memorandum For Dismissal of Disciplinary Proceedings, Citing Cancer Treatment

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Tax Policy In The Biden Administration

• Bloomberg, Cash Cushions Make States Slow to Grab Corporate Tax Opportunity
• Bloomberg, Conservation Easement Tax Break Emerges in Trump Fraud Case Brought by NY AG
• Bloomberg, IRS Wins Order for SFOX Customer Data in Crypto Tax Push
• Bloomberg, SALT Workarounds Carry Consequences for Tax Affected Earnings
• Cato Institute, Tax Differences Between Cities
• Forbes, GOP Calls Warnock’s Parsonage Benefit A Tax Dodge. It Used To Defend It.

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Next Week’s Tax Workshops

Monday, September 26: Alex Raskolnikov (Columbia) will present Should Only the Richest Pay More? as part of the UC-Irvine Tax Policy Colloquium. If you would like to attend, please RSVP here. 

Monday, September 26: Jose Pedro Bastos Neves (The New School) & Willi Semmler (The New School) will present A Proposal for a Carbon Wealth Tax: Modelling, Empirics, and Policy as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please contact Thedore Seto. 

Tuesday, September 27: Jennifer Taub (Western New England; Google Scholar) will present No Income Taxation Until Basic Accommodations: Toward Tax Justice in America as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro.

Tuesday, September 27: Roberta Mann (Oregon) will present Taxation Support for Zero-Emission Cars in Fleets: Cases from the US and Australia (with Diane Kraal (Monash; Google Scholar)) as part of the UC-Hastings Tax Speaker Series. If you would like to attend, please contact Heather Field.

Thursday, September 29: Alex Raskolnikov (Columbia) will present Should Only the Richest Pay More? as part of the Columbia Faculty Workshop.

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Repetti Presents International Tax Policy, Manufacturing, And U.S. National Interests Today At Florida

James R. Repetti (Boston College; Google Scholar) presents International Tax Policy, Manufacturing, and U.S. National Interests at Florida today as part of its Tax Policy Colloquium hosted by Charlene Luke:

Two tax regulations that permit U.S. multinational enterprises (MNEs) to use foreign contract manufacturers and to disregard their wholly owned foreign subsidiaries have created significant tax incentives for MNEs to move manufacturing outside the U.S. These tax incentives have contributed to the loss of 5 million manufacturing jobs, the closure of more than 91,000 plants, and a decline in domestic production since 1997. These declines have increased inequality and political instability, and have decreased U.S. national security and research and development efforts to improve production techniques. Given these harms, it makes little sense to allow these incentives to remain in our tax system.

This article proposes two amendments to the regulations to reduce or eliminate the tax incentives for offshoring.

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BC Law School Launches Binding Early Decision Admissions Program After Notre Dame Ditched Theirs Due To Equity And Diversity Concerns

Following up on my previous post, Notre Dame Ditches Binding Early Admissions. Will Other Top 30 Law Schools Follow?:  BC Law Magazine, Early Decision Added to Admission Options:

Boston College Law School has launched a new Early Decision admissions program to provide an expedited review, with special consideration that BC Law is the applicant’s first choice. ...

Early Decision is different from Early Action. The latter is a means for prospective students to apply for and receive a determination of admission in advance of a school’s regular response date, according to the National Association for College Admission Counseling. No strings are attached.

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Eldar & Garber: Opportunity Zones—A Program In Search Of A Purpose

Ofer Eldar (Duke; Google Scholar) & Chelsea Garber (J.D. Candidate 2023, Duke), Opportunity Zones: A Program In Search Of A Purpose, 102 B.U. L. Rev. 1397 (2022):

In 2017, Congress created the Opportunity Zone (“OZ”) program to stimulate economic growth in low-income communities. The program was characterized by its unprecedented scale relative to previous place-based development efforts and was described as “perhaps the most ambitious economic development tool to come out of Congress in a generation.” However, the program was quickly criticized on numerous grounds, and its design flaws are so severe that several legislators have called for its reform or repeal. 

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Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good

Scott Johns (Denver), Putting the Bar Exam on Constitutional Notice: Cut Scores, Race & Ethnicity, and the Public Good, 45 Seattle U. L. Rev. __ (2022):

Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.

But rather than challenging our assumptions, state bar associations and bar examiners keep going as business as usual. We might even say that it’s just the cost of doing business. Yes, some bar applicants will pay the price, they admit, by not passing bar exams, but protecting the public good demands that we be demanding, that we not yield to temptation to soften our approach. We can never be too cautious when it comes to protecting the public. After all, the public good is at risk. Or is it?

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Countering Complexity's Corporate Bias: Tax Simplification As A Strategy To Reduce Profit Shifting In The African Extractive Sector

Tim Hirschel-Burns (J.D. 2022, Yale), Note, Countering Complexity's Corporate Bias: Tax Simplification as a Strategy to Reduce Profit Shifting in the African Extractive Sector, 47 Yale J. Int'l L. 165 (2022):

Despite their immense natural resource wealth and their intense need for revenue, African governments collect little revenue from the extractive sector. One significant reason for this revenue shortfall is that multinational corporations operating in the extractive sector use profit shifting strategies to artificially reduce their tax bills. These companies can typically afford large numbers of highly skilled lawyers and accountants. In contrast, African tax authorities are often highly under-resourced and undertrained. This Note argues that legal reforms that simplify tax administration would put African tax authorities and multinational corporations on a more level playing field.

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Doug Shackelford Abruptly Retires As UNC Kenan-Flagler Business School Dean: ‘I’m Very Tired’

Triangle Business Journal, UNC Kenan-Flagler Business School Searching For New Leader After Shackelford Abruptly Retires:

After nearly a decade in the role, Doug Shackelford has suddenly stepped down as the dean of the UNC Kenan-Flagler Business School.

Shackelford's abrupt retirement is effective today following the university announcing the move on Friday afternoon. A specific reason for the timing of the decision was not given. ...

Shackelford's retirement comes a few weeks after a former UNC-Chapel Hill student, Angelica Rose Brown, filed a lawsuit against three Kenan-Flagler professors and the UNC Board of Governors alleging race discrimination and retaliation. Shackelford is not mentioned in the lawsuit, which was filed Aug. 30 in the U.S. District Court for North Carolina’s Middle District.

The Daily Tar Heel reports that in a letter sent to faculty and staff Friday morning, Shackelford said, "I have run as hard as I could for as long as I could. I can’t continue at the pace this School deserves. I regret that I didn’t anticipate things better. I could tell that I was not recovering from long weeks as quickly as I had in the past and I was unduly frustrated at times, but I failed to foresee this timing." ...

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NY Times Op-Ed: Can Republicans Tax the Rich?

New York Times Op-Ed:  Can Republicans Tax the Rich?, by Ross Douthat:

The movement known as national conservatism, which just wrapped up its latest conference in Florida, is the third major attempt to solve the Republican Party’s central 21st-century policy dilemma: How does a party that historically represented the rich and big business adapt to a world where conservatism’s constituencies are not just middle class but blue-collar, downscale and disappointed with the modern American economy?

The first attempted adaptation belonged to George W. Bush. His slogans were “compassionate conservatism” and the “ownership society,” and his policies offered new spending on education and health care, support for faith-based anti-poverty programs and easy credit for new homeowners — all theoretically designed to foster self-sufficiency rather than dependence, building a conservative alternative to the liberal welfare state.

After Bushism came to grief in the housing bubble and the financial crisis, the second adaptation had its hour: so-called reform conservatism, which imagined itself (I was one of the imaginers) as harder-headed than Bushism, offering a suite of technocratic fixes to increase economic mobility and improve middle-class life — and especially middle-class family life — without blowing out the federal budget.

This budget-conscious wonkery seemed poised to influence a Jeb Bush or Marco Rubio administration — before it was simultaneously outbid, absorbed and shattered by Donald Trump. ...

National conservatism represents the fullest version of this effort. It’s more philosophically ambitious than its compassionate-conservative and reformocon predecessors; its impresario, Yoram Hazony, claims to have rediscovered a consistent non-liberal and non-authoritarian Anglo-American conservatism, rooted in our elite’s long-discarded conservative-Protestant heritage, an argument he advances fascinatingly, if not entirely persuasively, in his recent book, “Conservatism: A Rediscovery.”

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Former Texas Southern Dean Sues Law School Over Loss Of Tenure

Following up on my previous posts (links below):  Houston Chronicle, Former Texas Southern University Law School Dean Sues School Over Loss of Tenure:

Texas Southern University’s former law school dean sued her ex-employer in federal court Wednesday, alleging that she was stripped of her position and tenure without cause.

Joan R. M. Bullock has also accused the university of breaching her contract and retaliating for bringing to the president and provost “matters of public concern” — including ones that she said could potentially affect the school’s ability to remain accredited.

“This affects me in a dramatic way,” Bullock said. “I believe in (Texas Southern’s) mission and its goals, and now it is putting me in an awkward position in looking for other employment. I think it is highly unfair what they have done.” ...

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Guttentag: Law, Taxes, Inequality, And Surplus

Michael Guttentag (Loyola-L.A.; Google Scholar), Law, Taxes, Inequality, and Surplus, 102 B.U. L. Rev. 1329 (2022):

I n this contribution to the Boston University Law Review Symposium on Law, Markets, and Distribution, I introduce an important new exception to the presumption that the tax system is superior to the legal system as a tool to redistribute wealth. When legal rules are used to divvy up a surplus, there is no a priori reason to prefer the tax-and-transfer system over the legal system to address inequality. This is the “surplus-sharing exception.”

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Explicit Instruction In Legal Education: Boon Or Spoon?

Beth A. Brennan (Montana), Explicit Instruction in Legal Education: Boon or Spoon?, 52 U. Mem. L. Rev. 1 (2021): 

While legal education unquestionably hones students’ critical thinking skills, it also privileges students who are faster readers and have prior background knowledge or larger working memories. According to the prevailing mythology of law school pedagogy, students learn by struggling to find their way out of chaos. Only then is their learning deep enough to permit them to engage in critical thinking and legal reasoning.

Learning theory and research suggest this type of “inquiry” learning is not an effective way to introduce novice learners to a subject. Lacking basic substantive and procedural knowledge, students’ struggles are often unproductive and dispiriting.

Initial explicit instruction early in a student’s learning more predictably creates stable, accurate knowledge. Because higher-order thinking depends on having some knowledge, ensuring students have a strong foundation of substantive and procedural knowledge increases the likelihood that they will develop critical thinking skills.

However, legal education uniformly dismisses anything that looks like “spoon-feeding.” If the academy is going to incorporate learning theory into its pedagogy, it must understand and articulate the differences between spoon-feeding and explicit instruction.

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ESG, Crypto, And What Does The IRS Got To Do With It?

Nizan Geslevich Packin (CUNY; Google Scholar) & Sean Stein Smith (CUNY; Google Scholar), ESG, Crypto, and What Does the IRS Got to Do With It?, 6 Stan. J. Blockchain L. & Pol'y ___ (2023):

Regulation almost always lags behind innovation, and this is also the situation with many FinTech-based products and services, and particularly those offered by crypto industry players. The crypto sector is a new and innovative one, which has proven to be not only based on highly technical concepts, but also by high levels of volatility and financial risk. In attempting to understand how to address many of the issues it raises in legal fields ranging from to financial regulation such as tax requirements to environmental law, and specifically matters that relate to climate change and energy wasting, regulators often find themselves trying to implement existing legal frameworks rather than creating new, clear rules. Much has been written about the SEC’s regime of regulation by enforcement of the crypto industry, and the impact of this type of rulemaking on society, businesses and persons. However, other financial regulators adopting a similar style of rulemaking—such as the IRS—have gotten much less attention for the impact of their regulatory actions. One such notable example, which is relevant in the Environmental, Social and Governance (ESG) awareness era, relates to the unintended consequences of the IRS’ regulation by enforcement, given the impact that such new rules have on the transition to greener energy. 

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Tax Prof Moves, 2020-23

Here is a list of (1) visiting assistant professor hires; (2) entry-level hires; (3) lateral moves; (4) promotions, tenures, chairs, and professorships; (5) administrative appointments: (6) visits; and (7) retirements involving tax professors in 2016-2020. (Email me any omissions.) 

VAP Hires

• Jon Endean to NYU (2022)
• Luís C. Calderón Gómez to NYU (2021)
• Assaf Harpaz to Drexel (2022) 
• Jeesoo Nam to NYU (2019-2021)
• Rita Julien to NYU (2022)
• Deanna Newton to Pepperdine (2022)

Entry Level Hires

• Luís C. Calderón Gómez (VAP, NYU) to Cardozo (2022)
• Nyamagaga "Gaga" Gondwe (VAP, NYU) to Wisconsin (2022)
• Jeesoo Nam (VAP, NYU) to USC (2021)
• Amanda Parsons  (VAP, Columbia) to Colorado (2022)
• Emily Yaun to Washington & Lee (2022) (Clinical Assistant Professor)

Lateral Moves

• Jordan Barry (San Diego) to USC (2021)
• Jake Brooks (Georgetown) to Fordham (2022)
• Dorothy Brown (Emory) to Georgetown (2022)
• Emily Cauble (DePaul) to Wisconsin (2022) 
• Kim Clausing (U.S. Treasury) to UCLA (2022) 
• Ariel Jurow Kleiman (San Diego) to Loyola-L.A. (2021)
• Diane Lourdes Dick (Seattle) to Iowa (2022)
• Ari Glogower (Ohio State) to Northwestern (2022) 
• Jacob Goldin (Stanford) to Chicago (2022)
• Daniel Hemel (Chicago) to NYU (2022)
• Linda D. Jellum (Mercer) to Idaho (Fall 2022)
  
• Shu-Yi Oei (Boston College) to Duke (January 2023) 
• Emily Satterthwaite (Toronto) to Georgetown (2021)
• Phyllis Taite (Florida A&M) to Oklahoma City (2021)

Promotions, Tenures, Chairs, and Professorships

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Johnson: Congressional Primacy, Equitable Tolling, And Tax Court Deficiency Litigation

Steve R. Johnson (Florida State), Congressional Primacy, Equitable Tolling, and Tax Court Deficiency Litigation, 77 Tax Law. __ (2023):

In April 2022, in the Boechler case, the Supreme Court considered the nature of the statutory deadline for filing petitions to obtain Tax Court review in collection due process (“CDP”) cases. The Court held that the statutorily prescribed 30-day filing period is not jurisdictional and is subject to nonstatutory equitable tolling in “appropriate cases.”

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Where Have All The (Aspiring) Law Profs Gone?

Following up on my previous post, Law School Entry-Level Faculty Hiring Is Down 22% (59% From 2008):  The Verdict Op-Ed:  Where Have All the (Aspiring) Law Profs Gone?, by Vikram Amar (Dean, Illinois) & Jason Mazzone (Illinois):

It’s law professor hiring season again, the time of year when (most of) the nation’s 200 or so ABA-accredited law schools begin the search to add to their full-time tenured/tenure-track ranks. ... Even though the in-person recruitment conference has been scrapped since the pandemic began, candidates still fill out [Faculty Appointments Register (FAR)] forms, and hiring committees still comb through the entries in order to set up screening interviews (often virtual) to help schools decide which candidates to invite (and candidates to decide which invitations to accept) for full-blown multi-day on-campus visits that include “job talks” (formal presentations of academic works in front of the whole faculty), small-group faculty interviews, meetings with deans and perhaps other administrators, campus tours, and social events. ...

One trend is striking: the relatively small (and decreasing) number of FAR entries the last few years. Whereas a decade or so ago it was not uncommon to see between 1,000 and 2,000 FAR entries, this year the number will likely be (the tally isn’t yet final since there are a few separate installments over the August-October timeframe) between 300 and 400. ...

[I]t behooves all of us to think (and even speculate) a bit about what accounts for the decline. Here are a handful of possibilities:

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Bearer-Friend Presents Poll Taxes, Revisited Today At UC-Hastings

Jeremy Bearer-Friend (George Washington; Google Scholar) presents Poll Taxes, Revisited at UC-Hastings today as part of its Tax Speaker Series hosted by Heather Field and Manoj Viswanathan:

This Article revisits four poll taxes imposed by Anglophone governments in the 20th century. Two of the poll taxes in the study are explicit in their statutory language of targeting based on race, ethnicity, or ancestry, while two make no mention of their intended targets in the statutory text. As this Article demonstrates, racialized targeting persists even when poll taxes make no mention of race, ethnicity or ancestry. And because poll taxes nominally include everyone—all people with heads—their ability to target specific groups of taxpayers is even more striking. In some ways, these facially neutral poll taxes are even more effective at targeting than the poll taxes that specify their political targets explicitly.

The primary audience for this Article is other tax law scholars who may only have a stylized or cursory understanding of poll taxes. A secondary audience is those outside of tax who seek to understand poll taxes from a tax scholar's point of view.  The Article draws from the statutory text of the poll taxes, the administrative guidance issued by the enforcers of the poll taxes, and the protest materials of those liable for the poll taxes. The article deploys a comparative study of four poll taxes to then arrive at broader conclusions about poll taxes specifically and tax policy more generally.

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