Paul L. Caron
Dean




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

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) [571 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John Townsend (Houston)
  2. [404 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. [308 Downloads]  State Aid Prohibition — The New GAAR in Town, by Joachim Englisch (Muenster)
  4. [260 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)
  5. [220 Downloads]  Closing Gaps in the Estate and Gift Tax Base, by Daniel Hemel (Chicago; Google Scholar) & Robert Lord (Americans for Tax Fairness)

October 17, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, October 16, 2021

This Week's Ten Most Popular TaxProf Blog Posts

1L, Unsure If She's 'Cut Out' For Law School, Starts Twitter Dialogue On Law Student Mental Health

Law.com, 'Play the Game YOUR Way': 1L, Unsure If She's 'Cut Out' for Law School, Starts Twitter Dialogue on Law Student Mental Health:

EatonFirst-year law student Amelia Eaton was unsure whether law school was for her.

Just in the first few weeks, she’s enjoyed what she’s learning and found classes engaging, but she had doubts.

As someone who struggles with an anxiety disorder and attention-deficit/hyper activity disorder, she realized that some of her symptoms were already impacting her studies at Dalhousie University’s Schulich School of Law in Halifax, Nova Scotia.

She’s been having difficulty staying on top of the readings and fully digesting the content has been overwhelming, she told Law.com on Friday. Self-doubt ensued and she wondered if she was meant to go to law school.

She took to #lawtwitter on Thursday afternoon to vent and look for advice.

“I’ve spent a long time challenging stigma, but since starting law school it’s been difficult to stop myself from questioning whether I’m ‘cut out’ for law school,” she tweeted

Tweet 2

She wasn’t expecting her post to start such a conversation.

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October 16, 2021 in Legal Ed News, Legal Education | Permalink

Yale Law School Triggers Me

Following up on yesterday's post, Ruth Marcus (Washington Post), At Yale Law School, A Party Invitation Ignites A Firestorm:  Kathleen Parker (Washington Post), Yale Law School Triggers Me:

Yale University LogoA sign on my desk reads: “I’ll be nicer if you’ll be smarter.”

I’m not feeling nice today — and I’m talking to you, Yale.

No offense intended toward my many friends — and certain family members — who attended the university in Connecticut. But the recent campus skirmish over an alleged triggering event has revealed the absurdity of, oh, just everything — students’ overindulged self-regard; the failure of colleges and universities, generally, to encourage maturity and intellectual rigor in its charges (rather than indulging crippling sensitivity); and our exaggerated notions of triggering as a social and civil guard rail.

Who, anyway, taught the college-bound that they should always be protected, that people should always be “nice,” or that feelings should never be hurt?

What happened at Yale is this: A creative, second-year law student at its venerable law school emailed an invitation to classmates for a “Constitution Day Bash,” to be held at the “NALSA Trap House” and co-hosted by the Federalist Society (of which he’s a member). He promised “American-themed snacks,” such as fried chicken and apple pie.

Before we go further, a few questions, definitions and clarifications: First, who knew Constitution Day was a reason for celebration at graduate schools? Second, NALSA stands for “Native American Law Students Association,” of which the student is also a member. Third, “trap house,” in case you’re unaware, is defined by the Urban Dictionary as, “Originally used to describe a crack house in a shady neighborhood . . .

I don’t think the definition was referring to tree-lined streets, but I also don’t think shady neighborhoods come in only one race, color or ethnicity. But at least nine other law students inferred as much and filed complaints of racism with the Office of Student Affairs. Rather than tell the complainants to get a life, administrators crumpled in a heap of cheap umbrage. Associate dean Ellen Cosgrove and diversity and inclusiveness director Yaseen Eldik called the alleged offender in for a little chat, which he wisely recorded, and told him that not only was his invitation out of line, but also that his membership in the conservative Federalist Society was triggering.

My sides are splitting with laughter, not from any kinship with the FedSoc, as it is nicknamed, but because I don’t have a pillow handy to smother my screams.

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October 16, 2021 in Legal Ed News, Legal Education | Permalink

Break Into Tax: Talking Tax Careers With The Tax Chick

BiT's first-ever crossover episode: Break Into Tax + Amanda Doucette, host of The Tax Chick Podcast! Like us, Amanda likes to make information and resources more accessible and tackle tax topics with humor. The BiT video contains information and extras not in the 30-minute podcast & vice versa! Find the podcast episode at https://thetaxchickpodcast.transistor... (available on all major podcast streaming sites).

Amanda Doucette is a self-proclaimed foodie, spin class and Pilates enthusiast, and a tax lawyer in Canada. She fell into the practice of tax law despite having a life-long hatred of spreadsheets, math, and numbers in general. She hosts both The Tax Chick Podcast and The Tax Chick Blog.

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October 16, 2021 in Legal Education, Tax | Permalink

Friday, October 15, 2021

Weekly SSRN Tax Article Review And Roundup: Layser Reviews The Trouble With Targeting Tax Shelters By Blank & Glogower

This week, Michelle Layser (Illinois; Google Scholar) reviews Joshua D. Blank (UC-Irvine; Google Scholar) and Ari D. Glogower (Ohio State; Google Scholar), The Trouble with Targeting Tax Shelters, 74 Admin. L. Rev. __ (2022).

Layser (2018)

The subject of tax avoidance hit the headlines a couple weeks ago when news organizations began to publish analyses of the Pandora Papers. The leaked documents contain confidential records related to offshore accounts held by “130 Forbes billionaires, as well as celebrities, fraudsters, drug dealers, royal family members and leaders of religious groups around the world” (ICIJ). Among other things, analyses of the Pandora Papers illustrate the challenges governments face when trying to detect and deter abusive tax avoidance strategies used by the ultra-wealthy. Though the problem itself is not new, Professors Joshua Blank and Ari Glogower argue that a recent Supreme Court case, CIC Services, LLC v. Internal Revenue Service, may have made it even harder for the IRS to target tax shelters.

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October 15, 2021 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup | Permalink

Tax Policy In The Biden Administration

Weekly Legal Education Roundup

Next Week’s Tax Workshops

Monday, October 18: 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)) as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please RSVP here.

Tuesday, October 19: Stephanie Hoffer (Indiana-Indianapolis; Google Scholar) presents Tax Legislation in Crises as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle.

Wednesday, October 20: 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)) as part of the UC-Irvine Tax Policy Colloquium. If you would like to attend, please email taxpolicy@law.uci.edu

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October 15, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Workshops | Permalink

At Yale Law School, A Party Invitation Ignites A Firestorm

Update:  Kathleen Parker (Washington Post), Yale Law School Triggers Me

Ruth Marcus (Washington Post), At Yale Law School, a Party Invitation Ignites a Firestorm:

Yale University LogoMaoist reeducation camps have nothing on Yale Law School. If you think this is an exaggeration, okay, it is, but keep reading.

Last month, a second-year law student sent some classmates an invitation to a party — to celebrate Constitution Day, of all things.

The student, Trent Colbert, who has the unusual profile of belonging to both the Native American Law Students Association (NALSA) and the conservative Federalist Society, emailed: “Sup NALSA, Hope you’re all still feeling social! This Friday at 7:30, 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. Planned attractions include Popeye’s chicken, basic-bitch-American-themed snacks (like apple pie, etc.) . . . Hope to see you all there.”

“Trap House,” according to the Urban Dictionary, was “originally used to describe a crack house in a shady neighborhood,” but “has since been abused by high school students who like to pretend they’re cool by drinking their mom’s beer together.” A popular far-left podcast, by three White men, calls itself Chapo Trap House, without incident.

Not at Yale Law School. Within minutes, as reported by Aaron Sibarium of the Washington Free Beacon, the invitation was posted on the group chat for all 2Ls, or second-year law students, of which several asserted that the invite had racist connotations, and had encouraged students to attend in blackface. ...

But what erupted on the group chat didn’t stay on the group chat. All too typically, the issue was escalated to authorities and reinforced by the administrative architecture of diversity and grievance. And that’s when things went off the rails.

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October 15, 2021 in Legal Education, News | Permalink

Michigan And Rutgers Host Virtual Symposium Today On Treaty Override

Michigan, Rutgers, and the Michigan Journal of International Law host the Treaty Override Virtual Symposium today (zoom link here): 

Michigan-rutgersThis symposium will consider the legitimacy and scope of treaty overrides, i.e., situations in which a country unilaterally changes the outcome of a bilateral treaty through its domestic law. This practice appears to be unlawful under the Vienna Convention on the Law of Treaties (which is generally accepted as customary international law) but is constitutional in certain countries, including the United States. There has been a long, ongoing debate on the advisability of such overrides and the conditions under which they are possible in the United States. These days, the debate centers on whether some parts of the Tax Cuts and Jobs Act of 2017 were an override. The symposium will focus on this debate and compare it to similar debates in other jurisdictions. 

10:30 - 11:00 AM: Welcome and Opening Remarks 

  • Gracy Brody (Editor in Chief, Michigan Journal of International Law) 
  • Monica Hakimi (Associate Dean for Faculty and Research, Michigan; Google Scholar)

11:00 AM - 12:30 PM: Treaty Overrides Abroad

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October 15, 2021 in Conferences, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Call For Tax Papers And Panels: Law & Society Hybrid Annual Meeting

Law & Society

Neil Buchanan (Florida) has issued his annual call for tax papers and panels for next year's hybrid  annual meeting of the Law & Society Association in Lisbon and online (July 13-16, 2022):

The Law & Society Association (LSA) will host its next annual meeting from July 13 - 16, 2022, in Lisbon, Portugal.  For the eighteenth year in a row, I will organize sessions for the "Law, Society, and Taxation" group (Collaborative Research Network 31).  For the sixth year in a row, I am pleased that Professors Jennifer Bird-Pollan and Mirit Eyal-Cohen have committed to working tirelessly to make our conference-within-a-conference a success. ...

As currently planned, the conference will be held in a hybrid format, with some sessions entirely in person and others entirely virtual.

Although there is an official call for papers, please remember that you are not bound by the official theme of the conference ("Rage, Reckoning, & Remedy").  We will give full consideration to proposals in any area of tax law, tax policy, distributive justice, interdisciplinary scholarship, and so on.

The deadline for submissions is 11:59 p.m. ET (USA) on Wednesday, November 10, 2021.

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October 15, 2021 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Hubbard: A Call To Action On Rule Of Law In The United States

TaxProf Blog op-ed:  A Call to Action on Rule of Law in the United States, by William C. Hubbard, Dean, South Carolina; Co-founder and Chair of the Board, The World Justice Project):

HubbardWe are living through a rule of law crisis, with authoritarianism on the rise in many countries around the world. Even those with strong rule of law traditions are under stress, and the events of January 6 were a stark reminder that the United States is no exception. Indeed, new data released today by the World Justice Project (WJP) paint a particularly alarming picture of recent rule of law developments in the United States. Legal educators have a critical role to play in reversing these trends.

Drawing on surveys of 138,000 households and 4200 practitioners about how governance and justice systems work in practice, the WJP Rule of Law Index scores and ranks countries on eight factors of the rule of law. The Index is widely recognized as the leading source of original rule of law data, relied on by a wide range of public and private sector institutions, scholars, and the media.

The 2021 Index, based on data collected between October 2020 and May 2021, shows rule of law declining in 74% of countries measured, with deterioration most prevalent in factors measuring constraints on government powers, civic space, timeliness of justice, and discrimination. The negative trends held in every region of the world and in rich and poor countries alike.

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October 15, 2021 in Legal Ed News, Legal Education | Permalink

Thursday, October 14, 2021

Hines Presents Evaluating Tax Harmonization Today At Georgetown

James Hines (Michigan; Google Scholar) presents Evaluating Tax Harmonization at Georgetown today as part of the OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

James-HinesTax harmonization can address downward rate pressure due to tax competition, but does so by imposing a common rate that may not suit all governments.  A second-order Taylor approximation yields the simple rule that tax rate harmonization advances collective government objectives only if tax competition reduces average tax rates by more than the standard deviation of observed tax rates.  Consequently, any objective-maximizing harmonized tax rate must exceed the sum of the observed average tax rate and the standard deviation of tax rates.  In 2020 the standard deviation of world corporate tax rates weighted by GDP was 4.5%, and the mean corporate tax rate 25.9%, so if competition sufficiently depresses tax rates then governments may find it attractive to harmonize at a corporate tax rate of 30.4% or higher. The minimum tax rate that most effectively advances collective objectives equals the average effect of tax competition plus the average tax rate in affected countries.  Hence there are dominated regions: in the 2020 data, there is no degree of tax competition for which a world minimum corporate tax rate between 4% and 27% would be consistent with maximizing collective objectives.

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October 14, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Hoffer Presents Tax Legislation In Crises Today At Indiana

Stephanie Hoffer (Indiana-Indianapolis; Google Scholar) presents Tax Legislation in Crises at Indiana-Bloomington today as part of its Tax Policy Colloquium hosted by Leandra Lederman:

Stpehanie-hoffer

Introduction
Congress, during crises, uses tax law as an instrument of mitigation. A legislature convened in crisis, though, faces unusual informational, political, and time constraints. Tax legislation tends toward complexity. Passing complex legislation under unusual constraints likely precludes thorough contemporaneous consideration of the distributional or other policy effects of the legislation on a diverse group of stakeholders. Perhaps as a consequence, tax legislation passed in times of crises typically builds on prior crisis legislation and contains many recurring provisions. 

This essay examines recurring provisions in crisis-motivated tax and presents preliminary observations on a study of tax legislation passed in response to national crises during the years the 2000 – 2020. The study period includes the September 11 terrorist attacks, hurricanes Katrina, Rita, and Wilma, the 2008 housing market collapse, the Great Recession, and the COVID pandemic. The study examines which kinds of provisions recur under which circumstances, for whose benefit, and at what cost.

The broader work of which this essay is a part addresses three hypotheses. First, crisis tax legislation is formulaic, generally including a number of provisions drawn from prior tax crisis bills. Second, subsequent crisis tax legislation tends to expand the scope of provisions repeated from earlier crisis tax legislation. Third, among recurring provisions, privately-directed outlays via tax expenditure will outweigh Congressionally-directed outlays.

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October 14, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Cardozo Seeks To Hire An Entry Level Or Lateral Tax Prof

The Benjamin N. Cardozo School of Law at Yeshiva University invites applications for a faculty position focused on Taxation:

Cardozo (2015)We are open both to lateral and entry-level candidates. Lateral candidates should have a superior publication record. Entry-level candidates should have a demonstrated commitment to scholarship.

Cardozo Law values diversity and aims to build a team with a multiplicity of backgrounds, identities, and lived experiences that inform and strengthen our work. The Benjamin N. Cardozo School of Law is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status.

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October 14, 2021 in Legal Education, Tax, Tax Prof Jobs | Permalink

Jewish Lawyers And The Legal Profession: The End Of The Affair?

Eli Wald (Denver), Jewish Lawyers and the U.S. Legal Profession: The End of the Affair?, 36 Touro L. Rev. 299 (2020):

Scholars of the legal profession have long puzzled over the apparent affinity between Jewish lawyers and the law, in and outside of the United States. This article advances a new explanation to account for the overrepresentation of Jewish lawyers in the U.S. legal profession in the twentieth century: the Confluence of Circumstances theory. The theory shows that a confluence of circumstances including evolving practice realities, changing professional ideologies, increased competition, discrimination, and the cost of legal education coalesced to account for the affinity. Moreover, tracking the same conditions in the twenty-first century the theory predicts the end of the affair explaining why the practice of law no longer represents a particularly attractive proposition for Jews.

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October 14, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Kleiman: Revolutionizing Redistribution — Tax Credits And The American Rescue Plan

Ariel Jurow Kleiman (Loyola-L.A.), Revolutionizing Redistribution: Tax Credits and the American Rescue Plan, 133 Yale L.J.F. ___ (2021):

Yale Law Journal Logo (2018)The American Rescue Plan Act (ARPA) dramatically alters the federal government’s approach to redistribution in 2021. Among its boldest reforms are its temporary expansions of the Child Tax Credit and the Earned Income Tax Credit. For the first time, ARPA authorizes meaningful cash support for nonworking families and childless workers, two groups that have been historically disadvantaged by social safety net programs. This Essay considers ARPA’s effects on low-income American taxpayers, spotlighting in particular how the reforms will protect millions of households from being pushed into poverty or further into poverty as a result of paying taxes—a phenomenon called “fiscal impoverishment.” Policy makers must make ARPA’s reforms permanent in order to ensure that low-income taxpayers remain protected past 2021. As they work to do so, policy makers should be mindful of gaps in the tax credits that will undermine the reforms’ positive effects. The Essay identifies several such gaps and argues that Congress should legislate more dramatic inclusion for households with and without children.

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October 14, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

AccessLex Offers $5 Million In Free Bar Review Courses (20 Students At Each Law School)

Leading Nonprofit AccessLex Institute Launches New Bar Review With Donation of $5 Million in Free Courses:

Helix 2Leading legal education nonprofit AccessLex Institute is pleased to announce the launch of Helix Bar Review by AccessLex®, the only national nonprofit bar preparation program. Consistent with its history and mission of working to improve access for the next generation of lawyers and create a more diverse legal profession, AccessLex is offering more than 4000 complimentary Helix course packages with a value of $5 million to nonprofit and state-affiliated ABA-approved law schools during this inaugural year. The Uniform Bar Exam and Multistate Bar Exam course packages will be directed toward law students who can most benefit from a comprehensive, high-quality bar review at no cost to them.

AccessLex is donating 20 complimentary Helix UBE courses (a $24,000 value) to each of its nearly 200 member ABA-accredited law schools.

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October 14, 2021 in Legal Ed News, Legal Education | Permalink

Bearer-Friend: Colorblind Tax Enforcement

Jeremy Bearer-Friend (George Washington; Google Scholar), Colorblind Tax Enforcement, 97 N.Y.U. L. Rev. ___ (2022):

NYU Law ReviewThe United States Internal Revenue Service (“IRS”) has repeatedly taken the position that, because the IRS does not ask taxpayers to identify their race or ethnicity on submitted tax returns, IRS enforcement actions are not affected by taxpayers' race or ethnicity. This claim, which I call “colorblind tax enforcement,” has been made by multiple IRS Commissioners serving in multiple Administrations (both Democratic and Republican). This claim has been made to members of Congress and to members of the press.

In this article, I refute the IRS position that racial bias cannot occur under current IRS practices. I do so by identifying the conditions under which race and ethnicity could determine tax enforcement outcomes under three separate models of racial bias: racial animus, implicit bias, and transmitted bias. I then demonstrate how such conditions can be present across seven distinct tax enforcement settings regardless of whether IRS asks about race or ethnicity. The IRS enforcement settings analyzed include summonses, civil penalty assessments, collection due process hearings, innocent spouse relief, and DOJ referrals.

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October 14, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Profit Shifting During Foreign Tax Holidays

Travis Chow (Hong Kong; Google Scholar), Jeffrey L. Hoopes (North Carolina; Google Scholar) & Edward L. Maydew (North Carolina; Google Scholar), Profit Shifting During Foreign Tax Holidays:

We undertake the first empirical analysis of profit shifting by U.S. firms during foreign tax holidays. We show that foreign tax holidays have become a prevalent and powerful tax planning strategy among U.S. firms. We find that U.S. firms significantly increase their outbound profit shifting while participating in foreign tax holidays. However, we also find that profit shifting associated with tax holidays comes at the cost of increased tax uncertainty. Our results have important implications for policy making and for understanding firm behavior.

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October 14, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, October 13, 2021

The Rise Of Law And The Fall Of Circular 230

Michael Hatfield (Washington), The Rise of Law and the Fall of Circular 230: Tax Lawyer Professional Standards, 1985-2015, 24 Fla. Tax Rev. 828 (2021):

Florida Tax Review (2021) (1)This third article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985-2015 period: return position standards and tax shelter opinions. It opens with consideration of the ABA’s 1965 opinion providing “reasonable basis” as the standard for undisclosed return positions, and then traces the response to that opinion as the response prods the development of the 1985 replacement with its “realistic possibility of success” standard. The Article documents the extensive interaction between Congress, the Treasury Department, and the tax bar over the next 30 years during which penalties are studied and revised and, eventually, § 6694, Circular 230, and the “substantial authority” standard succeed to primary importance. It chronicles the rise of the Treasury Department and Circular 230 and the idea of a single regulator of the full scope of professional tax work until Loving and Ridgely trip-up Treasury in its efforts to become that regulator.

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October 13, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Taxing Interstate Remote Workers After New Hampshire v. Massachusetts: The Current Status Of The Debate

Edward A. Zelinsky (Cardozo), Taxing Interstate Remote Workers After New Hampshire v. Massachusetts: The Current Status of the Debate, 25 Fla. Tax Rev. __ (2022):

Florida Tax Review (2021)Under the dormant Commerce Clause, Massachusetts, New York and other states emulating them violate their constitutional duty to apportion when they tax the income nonresident telecommuters earn remotely working at their out-of-state homes. Also for Commerce Clause purposes, nonresident telecommuters lack substantial presence to their employer’s state when such nonresidents work at their out-of-state homes. New Hampshire thus argued correctly in New Hampshire v. Massachusetts that, for Due Process purposes, Massachusetts taxed extraterritorially and unconstitutionally when Massachusetts taxed income earned by nonresident telecommuters from their homes outside Massachusetts’ borders.

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October 13, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Townsend: Preconditions Of Leadership In Law

Kenneth Townsend (Wake Forest), Preconditions of Leadership in Law, 56 Wake Forest L. Rev. __ (2021):

While lawyers have long been over-represented in various leadership contexts, law schools and legal employers have not always been concerned with teaching and cultivating leadership. This historic reluctance is rooted in many things, including an overconfidence that the study and practice of law somehow automatically prepared one for leadership; a fear that legal education and practice would be compromised by a focus on “soft skills” associated with leadership studies; a belief that leadership capacities are established by the time students arrive at law school; and concerns that a more holistic approach would lead law schools into the fraught business of moral formation.

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October 13, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

True Confessions Of A Legal Writing Professor: I Will Never Surrender To The Sinful Comma Splice

Diana Simon (Arizona; Google Scholar), More True Confessions of a Legal Writing Professor: I Will Never Surrender to the Sinful Comma Splice, __ Ariz. Att'y __ (2021):

This, at times, irreverent and tongue-in-cheek article analyzes the increase in the use of comma splices from a legal writing professor’s perspective and suggests ways to fix the problem. First, it traces the increase of comma splices to the Harry Potter series because, as English professors have suggested, that best-selling series is full of comma splices. Second, it explains exactly what a comma splice is and how historically, the use of comma splices was acceptable. Third, it provides examples of sentences with comma splices and suggests different methods of fixing the sentence to correct the problem. Finally, it addresses exceptions to the ban on comma splices.

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October 13, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Fordham Symposium: Mental Health And The Legal Profession

FordhamFordham Symposium, Mental Health and the Legal Profession, 89 Fordham L. Rev. 2415-2595 (2021):

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October 13, 2021 in Conferences, Legal Ed Conferences, Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Accounting Firms Are Beating Law Firms In The Tax Services Battle

Danielle Higgins Green (Fordham), & Stanley Veliotis (Fordham; Google Scholar), Law vs. Accounting Firms: Competing Over Three Decades of Change, 173 Tax Notes Fed. 13 (Oct. 4, 2021):

In this report, Green and Veliotis investigate how major regulatory and legislative changes over the past three decades have affected the competitive market for tax services between large U.S. law firms and accounting firms — particularly the supply side of the market for tax services provided to corporations.

Tax Notes 1

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October 13, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

New Legal Ed Podcast: EdUp Legal

Patty Roberts, Dean of St. Mary’s University School of Law, has launched EdUp Legal as part of EdUp Experience, the leading higher education podcast:

EdUpLegal education is experiencing explosive applications; a call for innovation and adaptation; demand for increased diversification of the profession; and cries for social justice impact and protection of the Rule of Law.

Host Patty Roberts, Dean of St. Mary’s University School of Law, will explore the opinions of legal education leaders regarding the future of legal training, and consider the value proposition of law school.

Conversations with thought leaders and law deans will provide insight to those considering, attending, or graduating from law school, and current members of the profession interested in its evolution. 

The first ten podcasts:

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October 13, 2021 in Legal Education | Permalink

New Tax Podcast: Taxes For The Masses

Taxes For The Masses

Taxes For The Masses (TFTM):

Lisa De Simone (Associate Professor of Accounting, McCombs School of Business, University of Texas at Austin) and Bridget Stomberg (Associate Professor of Accounting, Kelley School of Business, Indiana University) (friends, professors, tax nerds) discuss tax topics in simple terms.

What is TFTM?
We started this podcast because we love talking tax with each other and want to share our passion with the world. We aim to discuss hot tax topics in a way that informs non-tax and/or non-accounting experts about the issues making headlines. Our goal is to explain each issue in a way anyone can understand - even people who are not tax nerds like us! To do so, we'll provide examples and color commentary that help our audience understand each side of the issue in an objective way. Our own personal biases will inevitably poke out, but we do our best to indicate when we are stating our own opinions versus objectively explaining an issue.

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October 13, 2021 in Tax | Permalink

Tuesday, October 12, 2021

Blouin Presents Does Tax Planning Affect Organizational Complexity: Evidence From Check-the-Box Today At NYU

Jennifer Blouin (Penn) presents Does Tax Planning Affect Organizational Complexity: Evidence from Check-the-Box (with Linda Krull (Oregon; Google Scholar)) at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Dan Shaviro:

Blouin (2021)This study investigates the effect of the 1997 check-the-box regulations on the current effective income tax rates of U.S. multinational firms. Following the empirical methodology developed in Dyreng and Lindsey (2009), we measure the effect that the change in tax law has on the average worldwide, U.S., and foreign taxes paid on worldwide, federal and foreign pretax book income for a large sample of U.S. multinational firms. We find that on average U.S. multinational firms’ worldwide tax rates declined by 7.5% in the post-1996 period. Further, we find that the effect of the regulations was greater on U.S. multinational firms’ average foreign tax rates as compared to their average U.S. foreign tax rates. Our results also suggest that the effect is concentrated in the U.S. multinational firms that had a greater change in their ownership structures and a greater change in the balance of their intercompany payments in the post-1996 period.  

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October 12, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Maag Presents Imagining The Next Stage Of The Child Tax Credit Today At Georgetown

Elaine Maag (Tax Policy Center) presents Imagining the Next Stage of the Child Tax Credit (with Samuel Hammond (Niskanen Center)) at Georgetown today as part of its Tax Law and Public Finance Workshop hosted by Brian Galle:

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 12, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Listokin Presents Monetary Finance Today At Boston College

Yair Listokin (Yale; Google Scholar) presents Monetary Finance (with Brian Galle (Georgetown; Google Scholar)) (reviewed by David Elkins (Netanya) here) at Boston College today as part of its Tax Policy Collaborative hosted by Jim Repetti, Diane Ring, and Shu Yi Oei:

Listokin_yair_yjl6Conventional economic wisdom holds that governments cannot pay their bills by printing money. Running the printing press—or, at modern central banks, tapping a few keys to create electronic funds—causes inflation, and inflation can destroy economies. Yet as it turns out, since 2008 developed countries throughout the world have in effect printed trillions of dollars’ worth of new money without any real hint of inflation. In the United States, for example, this “monetary finance” has amounted to ⅓ of all deficit spending over the last decade.

The power of central banks to finance government at this scale should transform how we think about the fiscal state, our system of taxing and spending. Yet because this phenomenon is new, runs contrary to decades of theory, and is not yet fully understood, little scholarship yet grapples with how governments should use monetary finance. Most nations’ basic architectures for revenue and spending decisions assume that taxes and government borrowing are the primary sources of government finance. What should happen to fundamental legal rules, such as balanced-budget requirements, debt ceilings, or the tax legislative process, when central banks are also key players in financing national expenditures? And how should the structure of central banks change to reflect this new power, which could turn into a dangerous temptation?

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October 12, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Law & Society Association Statement On Rejection Of 'Scholarly Impact' Ranking Of Law Faculty

Following up on my previous post, U.S. News Abandons Plan To Issue Citations Ranking Of Law Faculty:  Law & Society Association, Statement on Recent Rejection of “Scholarly Impact” Metric:

Hein US NewsThe U.S. News and World Report Decided to Reject a Proposed Law School Rankings Metric that Would Have Impacted LSA Scholars

The Law and Society Association is pleased to report that the U.S. News and World Report has decided not to proceed with its proposal to add a measure of “scholarly impact” to its law school rankings. This report summarizes the Association’s concerns and actions taken while the metric was under consideration.

The proposed metric for measuring scholarly impact was to be drawn from citations in the Hein database which is comprised primarily of law review articles. The Law & Society Association was concerned with the implications for our members, many of whom write books, book chapters and peer-reviewed articles that appear in and are frequently cited in publications other than law reviews. For that reason, the scholarly impact of our members’ scholarship would not have been accurately represented in the proposed metric. In addition, non-doctrinal and data-driven socio-legal scholarship ordinarily does not amass as many citations as constitutional or purely doctrinal articles do. Moreover, if law schools attempted to game the system to improve their rankings, as has happened with other U.S. News metrics, the intellectual, interdisciplinary, and racial diversity of law school faculties and the range of topics they choose to write on might have been negatively affected.

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October 12, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

New Video Series: My Favorite Law Review Article

American University Law Review, My Favorite Law Review Article Video Series:

In collaboration with Washington College of Law faculty and American University Law Review staff, we are proud to present a limited video series entitled “My Favorite Law Review Article.” Although oftentimes difficult to pinpoint, one’s “favorite” scholarly commentary or publication might be the one that made them aware of, or even become interested in, a certain field or subfield of law that convinced them that they are not alone in taking a certain position; that supported more clearly or forcefully a position towards which they were already inclined; that made them change their mind; that did not change their mind but made them take into account new and different arguments; that struck them as wonderfully written; that gave them an insight into one of their role models; or maybe some combination of the above.

Walter Effross (American), Favorite Law Review Article: Elizabeth Warren, The Untenable Case for Repeal of Chapter 11, 102 Yale L.J. 437 (1992):

Guidelines for submission:

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October 12, 2021 in Legal Ed News, Legal Education | Permalink

Faulhaber: Lost In Translation — Excess Returns And The Search For Substantial Activities

Lilian V. Faulhaber (Georgetown; Google Scholar), Lost in Translation: Excess Returns and the Search for Substantial Activities:

Since 2010, international tax policymakers have proposed a variety of minimum taxes on excess returns, but every proposal has defined excess returns differently. This Article asks what excess returns are supposed to represent – and concludes that the answer is very different from what policymakers have suggested.

The trend of targeting so-called excess returns started in 2010 with a one-page idea in the Obama Treasury’s proposed budget. Over the next decade, this idea became the basis for one of the major international tax reform provisions in the 2017 U.S. tax reform and is now being considered as part of Pillar Two of the OECD’s current digital tax project. The idea in question is a minimum tax on foreign excess returns. Yet even though the general idea of a minimum tax on foreign excess returns has stayed the same across administrations and jurisdictions, the specifics of this idea have changed with every iteration, and the proponents of this idea have justified each version differently and defined its various elements differently.

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October 12, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

UC-Irvine Suspends Medical School Professor After Federal Judge Rules He Must Comply With Vaccination Mandate Despite Natural Immunity From Prior Case Of COVID-19

Reuters, U.S. Judge Upholds COVID-19 Vaccine Requirement For Those With 'Natural Immunity':

U.S. District Court Judge James Selna in Santa Ana, California, said the university system acted rationally to protect public health by mandating the vaccine and not exempting individuals with some level of immunity from an infection. ...

Selna's ruling denied a motion for a preliminary injunction by Aaron Kheriaty. And while Selna said the professor at the University of California, Irvine School of Medicine did not show a likelihood of success, Kheriaty said he plans to continue the litigation.

Aaron Kheriaty (UC-Irvine School of Medicine), Legal Update 10/5/21: UC Has Put Me on Leave for Challenging Their Vaccine Mandate:

Here is the latest move by the University of California in response to my lawsuit in Federal court challenging their vaccine mandate on behalf of Covid-recovered individuals with natural immunity. Last Thursday Sept 30th at 5:03 PM I received this letter from the University informing me that, as of the following morning, I was being placed on “Investigatory Leave” for my failure to comply with the vaccine mandate. I was given no opportunity to contact my patients, students, residents, or colleagues and let them know I would disappear for a month. Rather than waiting for the court to make a ruling on my case, the University has taken preemptive action. ...

I have no intention at this time of resigning, withdrawing my lawsuit, or having an unnecessary medical intervention forced on me ...

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October 12, 2021 in Legal Ed News, Legal Education | Permalink

Blank & Glogower: The Trouble With Targeting Tax Shelters

Joshua D. Blank (UC-Irvine; Google Scholar) & Ari D. Glogower (Ohio State; Google Scholar), The Trouble with Targeting Tax Shelters, 74 Admin. L. Rev. ___ (2022):

Abusive tax shelters—complex transactions that produce tax benefits that Congress never intended, but that may resemble legitimate business deals—frequently escape IRS detection. For the past 20 years, the federal government has attempted to bolster the IRS’s ability to detect these transactions by requiring taxpayers and their advisors to disclose “reportable transactions” to the IRS Office of Tax Shelter Analysis. While mandatory disclosure rules can serve valuable tax enforcement functions, including deterrence of abusive tax planning, they are also subject to significant limitations, especially when applied against high-income and wealthy taxpayers who have access to sophisticated legal counsel. In July 2021, the U.S. Supreme Court introduced an additional potential obstacle as a result of its decision in CIC Services, LLC v. Internal Revenue Service—the reportable transaction rules may now be subject to preemptive administrative law challenges without being barred by the Anti-Injunction Act.

This Article argues that in the wake of CIC Services, policymakers should look beyond simply reforming the IRS’s process of issuing tax shelter notices to avoid potential administrative law challenges. Instead, they should reconsider more generally the government’s primary reliance on “activity-based rules” to combat abusive tax planning. This Article brings new perspective to the challenges of targeting tax shelters and explains how they result from the government’s activity-based approach.

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October 12, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, October 11, 2021

Devereux Presents Taxing Profit In The Market Country Today At Loyola-L.A.

Michael Devereux (Oxford; Google Scholar) presents Taxing Profit in a Global Economy and Comparing Proposals to Tax Some Profit in the Market Country (with Richard Collier (Oxford) & John Vella (Oxford)) at Loyola-L.A. today as part of its Tax Policy Colloquium:

Michael-devereuxTaxing Profit in a Global Economy
This book undertakes a fundamental review of the existing international system of taxing business profit. It steps back from the current political debates on how to combat profit shifting and how taxing rights over the profits of the digitalized economy should be allocated. Instead, it starts from first principles to ask how we should evaluate a tax on business profit—and whether there is any good rationale for such a tax in the first place. It then goes on to evaluate the existing system and a number of alternatives that have been proposed. It argues that the existing system is fundamentally flawed, and that there is a need for radical reform. The key conclusion from the analysis is that there would be significant gains from a reform that moved the system towards taxing profit in the country in which a business made its sales to third parties. That conclusion informs two proposals that are put forward in detail and evaluated: the Residual Profit Allocation by Income (RPAI) and the Destination-based Cash Flow Tax (DBCFT). 

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October 11, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Manhattan Institute Charts: Spending, Taxes, And Deficits

Brian Riedl (Manhattan Institute), 2021 Chart Book Examines Spending, Taxes, and Deficits:

The Manhattan Institute’s Brian Riedl has released the 2021 edition of his book of charts examining the federal budget, spending, taxes, and deficits. The 118-page chart book begins by broadly examining the rising budget deficits and national debt – well beyond the temporary recession deficits – and then gradually dives deeper to show the policies driving the $112 trillion in new deficits projected over the next three decades. Next, it tallies the cost of common spending increase and tax relief proposals, and determines whether those costs can be offset by the proposed tax increases and defense cuts – including a full accounting of the long-term cost of President Biden’s proposals. Finally, the report examines trends in tax revenues and tax progressivity, common budget myths, and offers a full accounting of the fiscal records of Presidents Bush and Obama.

These charts — most of which rely on publicly-available data from the Congressional Budget Office, Office of Management and Budget, Census Bureau, and U.S. Treasury — nevertheless defy conventional wisdom about spending, taxes, and deficits.

MI 3

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October 11, 2021 in Tax, Think Tank Reports | Permalink

Friends Of Dan Markel Hold Toy Drive On October 9, What Would Have Been His 49th Birthday

WTXL, Friends of Dan Markel hold toy drive for Toys for Tots:

MarkelOn what would have been Dan Markel's 49th birthday, friends of Markel, Jeremy Cohen and Karen Cyphers held a special community give back in his name.

Toys collected at Markel's favorite park, Winthrop park, Saturday will be given to Toys for Tots in Leon County. ...

While his friends give back to the community, just like how Markel used to, they still wait for justice to be served.

"We're happy that two of the people found responsible have been brought to justice," said Cohen. ...

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October 11, 2021 in Legal Ed News, Legal Education | Permalink

Northwestern Seeks To Fill Two Non-Tenure-Track Tax Faculty Positions

In addition to seeking to hire a tenured or tenure-track tax professor, Northwestern is seeking to hire two non-tenure-eligible tax positions in its graduate tax program:

Northwestern (2018)Associate Director:

Northwestern Pritzker School of Law invites applications for a full-time faculty position to serve as Associate Director of its Tax Program. Candidates will be considered for appointment at the rank of lecturer, senior lecturer, or professor of practice (non-tenure-eligible).

The duties of the position include teaching tax courses during each academic year, serving as Faculty Editor of The Tax Lawyer, assisting the Director of the Tax program with administration and strategic planning, and advising students. Northwestern seeks applicants with a record of or potential for excellence in teaching, the ability to successfully mentor students on career goals and advancement, strong organizational skills, and the ability to work collaboratively and constructively with others. ...

Preferred qualifications include an LL.M. in Tax and teaching experience at the J.D. or LL.M. level. Candidates should submit a C.V. and a cover letter explaining their interest in the position through Northwestern’s online application system. Candidates are highly encouraged to apply by November 5, 2021.

Lecturer:

Northwestern Pritzker School of Law invites applications for a full-time faculty position in its Tax Program. Candidates will be considered for appointment at the rank of lecturer, senior lecturer, or professor of practice (non-tenure-eligible).

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October 11, 2021 in Legal Education, Tax, Tax Prof Jobs | Permalink

WSJ: Burned Out? Maybe You Should Care Less About Your Job

Following up on my previous post, Thoughts on Law Prof Work-Life Imbalance From Those Left Behind (by Patricia Sun, the widow of American University Washington College of Law Professor Andy Taslitz, who died at the age of 57):

Wall Street Journal, Burned Out? Maybe You Should Care Less About Your Job:

Boundaries gone, meetings multiplying, many say work has taken over their lives during the pandemic. Here’s how to gain perspective and take back control.

When Jonathan Frostick realized he was having a heart attack in April—sitting at his desk on a Sunday, prepping for the workweek—he thought about his wife and his will.

He also thought: “I needed to meet with my manager tomorrow, this isn’t convenient,” prefacing the comment with an expletive.

The 45-year-old financial-services worker survived, and changed his life. The non-negotiables on his calendar now are thrice-weekly swims and dropping his youngest son off at nursery school. In his (fewer) hours on the job, he says he’s calm, decisive, above the fray. When he has too much on his plate, he leaves the work for another day. He insists on 30-minute meetings that stay on point.

“I’ve been stressed once since the heart attack,” he says. “It’s like this switch now. It doesn’t matter.”

But back then?

“I was my work,” he says.

We put in too many hours; we don’t take vacation; we can’t say no to that 6 a.m. conference call. Underneath it all is something bigger: an emotional attachment to our jobs that exhausts us and squeezes out the other parts of our identities. For years, we were told to find meaning and purpose at work, while other parts of modern life, like church, receded. Then came the pandemic.

Can we learn to care less? (Ideally, without having a brush with death?) What happens if we let go, just a little? ...

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October 11, 2021 in Legal Ed News, Legal Education | Permalink

Classic Lesson From The Tax Court: Sex And Deductions

Camp (2021)I was going to title this week’s blog “The Concept of Inherently Personal.”  But I could not resist trying to put some clickbait in the title.  Today I want to discuss two classic cases from Tax Court.  They explore the never-ending balancing act needed to decide when an expense is deductible when it has both a personal and business aspect.  Between them, the two cases teach us a lesson about life in all its fullness.  That they both involve sex makes the lesson perhaps more memorable, but no less appropriate to any type of mixed business/personal deduction.  And while both cases involve sex, they do so from interestingly different perspectives.

In Vitale v. Commissioner, T.C. Memo. 1999-131 (Judge Fay), the Court denied deduction of certain expenses (payments to prostitutes), finding that the concededly business purpose of the expense was overcome by its inherently personal nature.  Yet in Hess v. Commissioner, T.C. Summary Opinion 1994-79 (Judge Joan Seitz Pate), the Court permitted a depreciation deduction for certain expenses (breast implants), finding that the inherently personal nature of the expense was overcome by its obvious business purpose.

You will find the surprisingly non-salacious details below the fold. 

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October 11, 2021 in Bryan Camp, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (2)

Break Into Tax: Friday The 15th

Tax day is coming soon. ... For tax professionals, every day is a KILLER! Friday the 15th. ... A 2-week nightmare of taxes. You don't even have until Monday!

 Break Into Tax thanks Nickolas Cole for help with the thumbnail image.

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October 11, 2021 in Legal Ed News, Legal Education, Tax, Tax News | Permalink

TaxProf Blog Weekend Roundup

Sunday, October 10, 2021

6th Circuit: University Cannot Deny Christian Student Athletes Religious Exemptions From COVID-19 Vaccination Requirement

Dahl v. Board of Trustees of Western Michigan University, No. 21-2945 (6th Cir. Oct. 7, 2021):

Western Michigan University, a public university, requires student athletes to be vaccinated against COVID-19, but it considers individual requests for medical and religious exemptions on a discretionary basis. Sixteen student-athletes applied for religious exemptions. The University ignored or denied their requests and barred them from participating in any team activities. The student-athletes then sued, alleging, among other things, that University officials violated their free exercise rights. The district court preliminarily enjoined the officials from enforcing the vaccine mandate against plaintiffs. Now, the officials ask us to stay the injunction and proceedings in the district court pending appeal. Although it is a close call, because the free exercise challenge will likely succeed on appeal, the factors considered in granting a stay favor the student-athletes. Accordingly, we decline to issue a stay. ...

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October 10, 2021 in Legal Education | Permalink

The New Yorker: What American Christians Hear At Church

The New Yorker, What American Christians Hear at Church:

"Now that I have preached about a dozen sermons I find I am repeating myself,” a young minister wrote despairingly in his diary in 1915. He was barely out of school and only a few months into his first call, at Bethel Evangelical Church in Detroit. “The few ideas that I had worked into sermons at the seminary have all been used, and now what?” It would be fourteen years before anyone else read those words, published under the title “Leaves from the Notebook of a Tamed Cynic.” It would take even longer for their author, Reinhold Niebuhr, to become one of the best-known theologians in the country, famous for works such as "The Irony of American History" and "The Nature and Destiny of Man."

Niebuhr was twenty-three when he was assigned to Bethel, and so timid that he often walked past the houses of parishioners a few times before he worked up enough courage to knock. “There is something ludicrous about a callow young fool like myself standing up to preach a sermon to these good folks,” he wrote in his diary. “I talk wisely about life and know little about life’s problems. I tell them of the need of sacrifice, although most of them could tell me something about what that really means.” But Niebuhr knew preaching was the core of worship, and that the task fell entirely to the minister, no matter her age or experience: “Without an adequate sermon no clue is given to the moral purpose at the heart of the mystery,” he wrote, “and reverence remains without ethical content.”

A century later, sermons remain the core of worship. They also represent a curious literary genre. Like short stories, sermons have certain formal characteristics; unlike sonnets, they have no set form. They can focus on a single verse or several passages, take on a specific theological concept or doctrine, be timely and topical or conspicuously old-fashioned. Christians continue to preach today because Jesus preached during his ministry; the Gospels document the sermons he gave in the years preceding his crucifixion. Following Christ’s example, the disciples also went out to preach; we know this from accounts preserved in the Book of Acts and in the letters of the apostle Paul. Some of the oldest records of the early church attest to the central role of preaching in Christianity. ... Yet not even the earliest apologists agreed about what preaching should be or how anyone should do it. ...

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October 10, 2021 in Legal Education | Permalink