Journal Of Legal Education Publishes New Double Issue

The Journal of Legal Education has published Vol. 70, No. 2 & 3 (Winter and Spring 2021):

From the Editors

• Robert Dinerstein (American), Jeremy R. Paul (Northeastern; Google Scholar), Sonia E. Rolland (Northeastern), & Ezra Rosser (American; Google Scholar), From the Editors, 70 J. Legal Educ. 203 (2021)

Articles

• Cass R. Sunstein (Harvard; Google Scholar), Self-Silencing and Online Learning, 70 J. Legal Educ. 205 (2021)
• Danielle M. Conway (Penn State-Dickinson), Embracing and Making Change in Legal Education: Serving the Law Students of Today and Tomorrow, 70 J. Legal Educ. 215 (2021)
• Nina A. Kohn (Syracuse), Teaching Law Online: A Guide for Faculty, 70 J. Legal Educ. 230 (2021)
• Yvonne M. Dutton (Indiana-McKinney) & Margaret Ryznar (Brooklyn), Law School Pedagogy Post-Pandemic: Harnessing the Benefits of Online Teaching, 70 J. Legal Educ. 252 (2021)
• Audrey Fried (Osgoode Hall), Using a Community of Inquiry Framework to Make the Transition to Teaching Law Online, 70 J. Legal Educ. 274 (2021)
• William S. Blatt (Miami), The Power of Presence in Socratic Teaching: The Effect of Substituting Videoconferencing for In-Person Classes, 70 J. Legal Educ. 284 (2021)
• Andrele Brutus St. Val (Pittsburgh), Survey Says—How to Engage Law Students in the Online Learning Environment, 70 J. Legal Educ. 297 (2021)
• Sarah Fishel (Ithaca), David DeMatteo (Drexel; Google Scholar) & Kellie Wiltsie (J.D./Ph.D. Candidate, Drexel), Certainly Uncertain: Facilitating Law Student Professional Growth and Well-Being Through Supervision in Light of COVID-19, 70 J. Legal Educ. 331 (2021)
• A. Michael Froomkin (Miami; Google Scholar), The Virtual Law School, 2.0, 70 J. Legal Educ. 348 (2021)
• Christian Powell Sundquist (Pittsburgh; Google Scholar), Technology and the (Re)Construction of Law, 70 J. Legal Educ. 402 (2021)
• Richard K. Neumann Jr. (Hofstra), Violations During the Pandemic of Law School Faculties’ Authority to Decide Methods of Instruction, 70 J. Legal Educ. 413 (2021)
• Michael A. Mogill (Penn State-Dickinson), We Are...Community!, 70 J. Legal Educ. 459 (2021)

At the Lectern

• Daniel Keating (Washington University), Finding New Classroom Tricks in a Virtual Teaching World: One ‘Old Dog’s’ Tale, 70 J. Legal Educ. 462 (2021)

Book Reviews

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Wilking Presents Tax Incidence With Heterogeneous Firm Evasion Today At Boston College

Eleanor Wilking (Cornell) presents Tax Incidence with Heterogeneous Firm Evasion: Evidence from Airbnb Remittance Agreements at Boston College today as part of its Tax Policy Workshop hosted by Hugh Ault, Ray Madoff, Beverley Moran, Shuyi Oei, Jim Repetti, Diane Ring, and Steve Shay:

How does the obligation to remit affect consumption tax incidence? In classical tax theory, assigning the responsibility to transfer tax revenue to the government has no effect on which party bears the economic burden of a consumption tax. I explore this prediction in the context of agreements between city governments and a large digital platform firm that shifted the obligation to remit hotel taxes from independent renters to the platform firm itself. Using variation in the location and timing of these agreements, I identify a substantial increase in advertised tax-inclusive rental prices—a violation of remittance invariance—but comparatively modest declines in completed reservations. A contemporaneous increase in hotel tax revenue collections suggests that the policy was an effective tax increase, assessed on previously non-compliant renters. I explore heterogeneity in pass through of this effective tax increase using several proxies for renter price-setting sophistication. Pass-through was lowest among full-space, frequent renters who likely faced smaller optimization frictions relative to more amateur renters. My results indicate that shifting the remittance obligation to the platform increases after-tax prices and raises revenue, suggesting that consumers bear a greater share of the tax burden when the remittance obligation is shifted to a party with fewer evasion opportunities.

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UC-Davis Is 12th Law School (5th In California) To Boycott U.S. News Rankings

Kevin R. Johnson (Dean, U.C. Davis), UC Davis Law Withdraws From U.S. News & World Report Rankings:

Beginning today (Nov. 28), UC Davis School of Law will no longer provide data to U.S. News & World Report for use in compiling its law school rankings. This decision has been made after receiving guidance from the law faculty, campus leadership, students, alumni and others.

Major flaws with the U.S. News rankings are well-documented. Although law schools have in good faith worked with the magazine on improvements, U.S. News has failed to meaningfully change the rankings methodology. The survey techniques, accuracy and fairness of the rankings remain problematic, which produces a misleading ranking of law schools. Even small changes in one variable can lead to a dramatic shake-up of the rankings. The regular “corrections” of the rankings by U.S. News show their volatility and undermine their legitimacy.

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CBO Data: After-Tax, After-Transfer Income Inequality Has Been Flat Since 2000

Timothy T. Taylor (Macalester College), Income Inequality for US Households:

CBO has just published The Distribution of Household Income, 2019 (November 2022). ... A good chunk of the underlying data behind this report is from income tax data. This data has the great advantage that is isn’t from a survey asking people about their incomes, but is from what people actually filed with the Internal Revenue Service, with in turn is cross-checked with data from employers, financial institutions, and other types of income (like royalty payments). ...

The real strength of the report is not that it is up to the minute, but rather that it offers a snapshot in time along with useful sense of trends in income inequality since the late 1970s, when it began to rise. Here are a few of the graphs that caught my eye. ...

Here’s the trend in average federal taxes paid at the top of the income distribution in the last 40 years or so. You will notice that while the subject has been the source of considerable political controversy, the ups and downs have pretty much levelled out over time.

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UC-Davis Dean Kevin Johnson Receives Inaugural AALS Michael Olivas Award

AALS, UC Davis Dean Kevin R. Johnson Awarded Inaugural Olivas Award from Five AALS Sections:

Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at University of California, Davis School of Law, is the inaugural recipient of the Michael A. Olivas Award for Outstanding Leadership in Diversity and Mentoring in the Legal Academy, a joint recognition by five sections of the Association of American Law Schools (AALS).

“I am incredibly honored to receive this award,” Johnson said. “I am especially touched because Michael was a friend, colleague, and an important mentor to me. He was a brilliant, prophetic scholar, and a risk-taking and pathbreaking advocate for underrepresented groups in the legal academy, and the world. I am extremely grateful to be the first recipient of the Michael A. Olivas Award.”

The annual award serves as a memorial to Michael A. Olivas, who died in April 2022 after an illustrious career in law, most recently as William B. Bates Distinguished Chair in Law Emeritus at the University of Houston Law Center and the Director of the University of Houston’s Institute for Higher Education Law & Governance. In 2018, Olivas was awarded the AALS Triennial Award for Lifetime Service to Legal Education and the Law, the association’s highest honor.

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Vella Presents Pillar 2’s Impact On Tax Competition Today At UC-Irvine

John Vella (Oxford) presents Pillar 2’s Impact on Tax Competition (with Michael P. Devereux (Oxford; Google Scholar) & Heydon Wardell-Burrus (Oxford)) at UC-Irvine today as part of its Tax Policy Colloquium: 

The Two-Pillar Solution agreed by 137 countries on 8 October 2021 has been hailed as “historic” and a “a once-in-a-generation accomplishment for economic diplomacy.” To a significant extent, this is due to the expected impact of Pillar 2 (essentially a global minimum tax) on tax competition among states. This paper examines Pillar 2’s impact on tax competition. It builds on a short policy brief released by the authors in January 2022 in which the main incentives created by Pillar 2 that are relevant to tax competition were first identified.

The paper is divided into 7 sections. Section 1 introduces the paper. Section 2 discusses Pillar 2’s objectives: addressing profit shifting and tax competition. Section 3 discusses the Top-Up Tax calculation under Pillar 2, with a particular focus on the “Substance Based Income Inclusion” and the “Qualified Domestic Minimum Top-up Tax” (QDMTT) variables. Section 4 sets out three main conclusions on Pillar 2’s impact on tax competition. 

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Legal Ed News Roundup

• ABA Journal, More Top Law Schools Boycott US News Rankings, but Some Lower-Ranked Institutions Are Reluctant to Withdraw
• Cornell Daily Sun. Dean Jens Ohlin Says Cornell Law Will Not Withdraw from U.S. News Rankings
• James Forman Jr. (Yale), 3 Reasons Yale Law Was Right to Quit the U.S. News Rankings
• Dale Kwarciany (J.D. 1976, Cleveland State Law School), John Marshall’s Name Should Not Have Been Removed, but ‘CSU Law School’ Is Best Alternative
• Law.com, Cornell Law Will Continue to Participate in US News Rankings
• Law.com, Fourth California Law School Withdraws From US News Rankings
• Law.com, Northwestern Law Becomes 8th T14 to Bail on US News Rankings
• Law.com, The US News Law School Rankings Fallout

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Call For Papers: 2023 Tax Notes Student Writing Competition

Tax Notes Student Writing Competition:

The 2023 submission period for the Tax Notes Student Writing Competition is now open! Each year we recognize superior student writing on unsettled questions in tax law or policy. Learn more about the competition guidelines:

• Eligibility: The competition is open to any student enrolled in a law, business, or public policy program during the 2022-2023 academic year. Each student may submit only one paper. Coauthored papers will be accepted. 
• Format: Entries should be a minimum of 2,500 words and a maximum of 12,000 words, including footnotes. Citations should be formatted as footnotes in accordance with the latest edition of The Bluebook: A Uniform System of Citation. Bibliographies and reference lists are prohibited. Articles should be submitted as Microsoft Word documents.

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Yale Law School’s Revolt Of The Elites

The New Republic, Yale Law School’s Revolt of the Elites:

Yale University has the most elite law school in America, an institution so central to the production of future Supreme Court clerks and legal bigwigs that, in the space of a few months last year, The New York Times, The Atlantic, and The New Yorker all published lengthy features about whether one of its professors served drinks to students at a dinner party. So it made the news last week when Yale Law School Dean Heather K. Gerken issued a public statement declaring that the school would no longer willingly participate in the influential U.S. News & World Report law school rankings, setting off a mini-cascade of righteous quitting as Harvard, University of California, Berkeley, Stanford, Georgetown, and Columbia quickly followed suit.

But there was something strange about the spectacle of Dean Gerken denouncing as “profoundly flawed” a rankings system that identifies Yale itself as the #1 law school in the country—an evaluation with which, one would assume, she wholeheartedly agrees. The other quitters share rarefied air as well: All are in the U.S. News top 14 [except for UCLA and UC-Irvine].

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Satterthwaite: Understanding Self-Employment Trends In Tax Data

Emily Satterthwaite (Georgetown; Google Scholar), What's Going on With Self-Employment? (JOTWELL) (reviewing Andrew Garin (Illinois; Google Scholar), Emilie Jackson (Michigan State; Google Scholar) & Dmitri Koustas (Chicago; Google Scholar), New Gig Work or Changes in Reporting? Understanding Self-Employment Trends in Tax Data):

Are there more self-employed people, or not? IRS data shows a significant increase in the portion of the workforce reporting positive net income from self-employment on their tax returns. It rose by about 20 percent after 2000, peaking in 2014 at just under 12 percent. However, annual labor force surveys suggest that the self-employment rate has been flat since 2000. How can these two results be reconciled? This question motivates a terrific new paper by Andrew Garin, Emilie Jackson, and Dmitri Koustas entitled, New Gig Work or Changes in Reporting? Understanding Self-Employment Trends in Tax Data. ...

The correlation between reporting more self-employment income and eligibility for larger refundable tax credits could mean either a real labor supply response (individuals actually working more in a self-employed capacity) or a pure reporting response, whether related to fake or real self-employment income.

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Here’s Why Top Law Schools May Be Pulling Out Of The U.S. News Rankings

Following up on Saturday's post, Law School Admissions Without LSATs, Race, And Rankings:  The Daily Caller, ‘Writing On The Wall’: Here’s Why Top US Universities May Be Pulling Out Of High-Profile Ranking System:

Top law school[s] ... may be dropping out of the rankings ahead of the U.S. Supreme Court’s ruling on affirmative action because they plan to deemphasize standardized tests in the admissions process and preserve diversity, but do not want to fall in the rankings process, experts told the Daily Caller News Foundation.

“If affirmative action falls, we can expect to see a lot of educational institutions drop objective standards from their admissions practices,” John Sailer, fellow at the National Association of Scholars, told the DCNF. “This allows them to continue race-conscious admissions by other means. Already, we see schools embracing this workaround. These top law schools probably have that in mind as they back out of the U.S. News & World Report rankings. Ranking requires clear, objective standards, and if law schools hope to go test-optional, the ranking system presents an obvious problem.” ...

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TaxProf Blog Holiday Weekend Roundup

Thanksgiving:

• Chicago And Cornell Are First Elite Law Schools To Refuse To Join U.S. News Rankings Boycott
• UC-Irvine Is First Non-Elite Law School To Join U.S. News Rankings Boycott
• NY Times Op-Ed: Even Your Political Enemies Deserve A Slice Of Thanksgiving Pie
• Pepperdine Caruso Law Is Thankful For Greg Ogden
• NY Times: Tax Prof Cruciverbalist
• A Wall Street Journal Thanksgiving

Friday:

• Weekly Legal Education Roundup
• Tax Policy In The Biden Administration
• Next Week’s Tax Workshops
• Is This The Beginning Of The End Of The U.S. News Rankings Dominance?
• The New And Decidedly Improved IRS 'Fact Sheet' Frequently Asked Questions
• NYU Seeks To Hire A Tax Law And Policy Fellow ($75,000-$88,000)

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Law School Admissions Without LSATs, Race, And Rankings
• Treasury Department Seeks To Hire Deputy Assistant Secretary ($135,468 - $203,700)
• Penn Evaluates Whether To Join Boycott Of U.S. News Rankings By Ten Of Top 15 Law Schools

Sunday:

• David French: An Open Letter To Those Who Think I’ve Lost My Christian Faith Because I Support The Respect For Marriage Act
• Bono: 'Too Christian For The Mainstream, Too Mainstream For Christians?
• Auditing Scientology: Reexamining The Church's 501(c)(3) Tax Exemption Eligibility
• The Top Five New Tax Papers

David French: An Open Letter To Those Who Think I’ve Lost My Christian Faith Because I Support The Respect For Marriage Act

Following up on last Sunday's post, Christian Colleges And Universities Support Senate-Passed Bipartisan Respect For Marriage Act With Protections For Both LGBTQ Rights And Religious Freedom:  David French (The Dispatch), An Open Letter to Those Who Think I’ve Lost My Christian Faith:

It’s been an interesting few days. Ever since I wrote (first in The Atlantic and then on Sunday here in The Dispatch) in support of the Senate version of the Respect for Marriage Act, I’ve been subject to an absolute torrent of online criticism, mainly from fellow Christians. The culmination of the critiques came from Al Mohler, president of the Southern Baptist Theological Seminary, who took to the pages of World Magazine to pen a piece called “The Parable of David French.” 

“This is how conservatism dies,” he wrote. “This is how marriage is surrendered.”

That’s dramatic! But it’s not as extreme as other critiques, including those who questioned whether I am truly a Christian, who told me I should face church discipline, and who compared my support for the Respect for Marriage Act to support for slavery. I kid you not.

Whew. That’s a lot. It’s always a struggle to know when to keep addressing an argument and when to just move on, but given the continued attacks—now running into their sixth day—I think it’s important to go one more round. And this time I’m going to take a bit of a different approach. I’m going to address directly, from the ground up, why the debate is so confused and why the distinctions between Christian marriage (what I’ll call “covenant marriage”) and civil marriage matter so very much.

I’m particularly interested in the various allegations of apostasy, especially given my agreement with the orthodox creeds and confessions of the church, including doctrines relating to sex, sexuality, and sexual morality. In fact, in 2019, I signed the controversial Nashville Statement, in large part because I thought it was important for Christians to offer a clear statement of orthodox Christian theology on matters of sexual controversy.

The intent of the Nashville Statement, as I understood it, was not to write a model law for a secular state, but rather to clear up confusion in Christian churches about the basics of Christian doctrine. Despite its explicitly religious purpose, it is still very helpful to the debate because it clarifies where I think discussions over marriage often go so very wrong. 

Here’s the definition of marriage taken directly from the statement itself: Marriage is the “covenantal, sexual, procreative, lifelong union of one man and one woman, as husband and wife, and is meant to signify the covenant love between Christ and his bride the church.” Other faiths might have other definitions of marriage, but this is among the best Christian definitions I’ve read.

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Bono: 'Too Christian For The Mainstream, Too Mainstream For Christians?'

Christianity Today, Bono’s Punk-Rock

Grief and God have been part of U2’s story from the start.

We got this invitation once,” Bono tells me. He speaks the next sentence with a tone of reverence: “The Reverend Billy Graham would love to meet the band and offer a blessing.”

We’re on a video call, and the frontman for U2 is sitting on the floor in front of a green couch, his computer on the coffee table in front of him. It’s golden hour in Dublin, and the just-setting sun makes the room glow. It’s almost theatrical. There’s a twinkle in his eye, too. He knows he has a good story.

“He’s the founder of Christianity Today,” he reminds me, grinning. “I didn’t know that then, but I still wanted the blessing. And I was trying to convince the band into coming with me, but for various reasons they couldn’t. It was difficult with the schedule, but I just found a way.”

This was in March 2002, just a few weeks after U2 played their legendary Super Bowl halftime show and days after their single “Walk On” won the Grammy for Record of the Year.

“His son Franklin picked me up at the airport,” Bono says, “and Franklin was doing very effective work with Samaritan’s Purse. But he wasn’t sure about his cargo.” He laughs. “On the way to meet his father, he kept asking me questions.”

Bono reenacts the conversation for me:

“You … you really love the Lord?”
“Yep.”
“Okay, you do. Are you saved?”
“Yep, and saving.”
He doesn’t laugh. No laugh.
“Have you given your life? Do you know Jesus Christ as your personal Savior?”
“Oh, I know Jesus Christ, and I try not to use him just as my personal Savior. But, you know, yes.”
“Why aren’t your songs, um, Christian songs?”
“They are!”
“Oh, well, some of them are.”
“What do you mean?”
“Well, why don’t they … Why don’t we know they’re Christian songs?”
I said, “They’re all coming from a place, Franklin. Look around you. Look at the creation, look at the trees, look at the sky, look at these kinds of verdant hills. They don’t have a sign up that says, ‘Praise the Lord’ or ‘I belong to Jesus.’ They just give glory to Jesus.”

For four decades, Bono has found himself in conversations like this one, responding to Christians who aren’t quite sure what to make of him or U2. ...

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Auditing Scientology: Reexamining The Church's 501(c)(3) Tax Exemption Eligibility

Taylor C. Holley (J.D. 2022, Texas Tech), Comment, Auditing Scientology: Reexamining the Church's 501(c)(3) Tax Exemption Eligibility, 54 Tex. Tech L. Rev. 345 (2022): 

The Church of Scientology is one of the most discussed religions of the modern era, and its beliefs and practices have been shrouded in controversy since its emergence in the 1950’s. Shortly thereafter, the Internal Revenue Service recognized Scientology as a valid religious organization, thus granting certain governmental protections and benefits afforded to religious organizations in this country, including tax exemption. After a decades-long battle between the Church and the IRS, the IRS eventually granted a blanket tax exemption to all Scientology organizations under Section 501(c)(3) of the Internal Revenue Code.

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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 #1 paper and a new paper debuting on the list at #4:

1. [455 Downloads]  Federal Tax Procedure (2022 Practitioner Ed.), by John Townsend (Houston)
2. [407 Downloads]  Pillar Two and Developing Countries: The STTR and GloBE Implementation, by Heydon Wardell-Burrus (Oxford)
3. [289 Downloads]  A Wrench in the GLOBE's Diabolical Machinery, by Ruth Mason (Virginia; Google Scholar)
4. [247 Downloads]  Legal Structuring of Web Based Trading and Tax Complexities in Pakistan A Comparative Study, by Shan Ali (Bahria University Islamabad), Asadullah Muhmand (Bahria University Islamabad; Google Scholar) & Faheem Raza Khuhro (Boston University)
5. [196 Downloads]  VAT Goes Virtual: Security Tokens, by Joachim Englisch (Münster)

This Week's Ten Most Popular TaxProf Blog Posts

Legal Education:

1. Law Schools Boycotting U.S. News Rankings:
• Yale
• Stanford
• Harvard
• Columbia
• UC-Berkeley
• Michigan
• Duke
• Northwestern
• Georgetown
• UCLA
• UC-Irvine
2. Law Schools Not Boycotting U.S. News Rankings:
• Chicago
• Cornell (Maybe)
3. Daniel Crane (Michigan), Antitrust Implications Of The U.S. News Law School Rankings Boycott
4. Paul Caron (Dean, Pepperdine),  One-Third Of The Way Through The Fall 2023 Law School Admissions Season: Applicants Are Down -7.5%, With Biggest Decline (-21%) In The 165-169 LSAT Band
5. Press Release, ABA Legal Ed Council Votes 15-1 To Make LSAT Optional Beginning With Fall 2026 1L Class
6. Paul Caron (Dean, Pepperdine), The U.S. News Law School Rankings Are Like The Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave
7. Bill Henderson (Indiana), The Dollars And Math Behind Yale Law School's Withdrawal From U.S. News — 'Are Limits on Federal Student Loans The Best Way To End The Rankings Madness?'
8. Paul Caron (Dean, Pepperdine), U.S. News Law School Rankings, ABA Optional LSAT, And Harvard Affirmative Action Supreme Court Case
9. Dan Solove (George Washington), Slaying The U.S. News Law School Rankings Dragon
10. Paul Caron (Dean, Pepperdine), Pepperdine Caruso Law Is Thankful For Greg Ogden

Tax:

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: The Employer/Employee Gift Rule
2. Bryan Camp (Texas Tech), Lesson From The Tax Court: An Object Lesson For Tax Professionals
3. Michael Lukacs (EY, New York), Oren Margulies (EY, Washington, D.C.) & Lakshmi Jayanthi (EY Boston), Taxation Of NFT Transactions
4. Paul Caron (Dean, Pepperdine), Tax Policy In The Biden Administration
5. SSRN, The Top Five New Tax Papers
6. David Elkins (Netanya), Review 0f Victoria Plekhanova (Massey), Taxes Through the Reciprocity Lens
7. Reuven Avi-Yonah (Michigan), The Dangers Of Tax Textualism
8. Jeremy Bearer-Friend (George Washington), Ari Glogower (Northwestern), Ariel Jurow Kleiman (Loyola-L.A.), & Clinton Wallace (South Carolina), Taxation and Law and Political Economy
9. Charles Delmotte (NYU), The Promises and Pitfalls of a Blockchain Driven Tax System
10. Bryan Camp (Texas Tech), Lesson From The Tax Court: The Unforeseen Circumstances Rule For §121 Home Sale Exclusions

Law School Admissions Without LSATs, Race, And Rankings

Wall Street Journal Editorial, Law Schools Without LSATs:

The American Bar Association’s move to discard objective tests won’t enhance diversity.

The flight from merit continues across America, and it’s spreading fast in the legal profession. An arm of the American Bar Association (ABA), which accredits law schools, voted on Nov. 18 to end the requirement that prospective law students take the Law School Admission Test. ...

The vote is pending approval from the ABA House of Delegates in February. If adopted, it would make standardized testing optional in preparation for a career that demands a lot of standardized knowledge.

The LSAT has long been a target of diversity advocates who argue that the use of the test has limited minority enrollment in law schools because the test questions are allegedly biased in favor of white test takers. Detractors also object to the LSAT because affluent students often pay thousands of dollars to prepare for the test that is supposed to predict their first-year law school performance.

The ABA decision is best understood as an attempt to get ahead of a possible Supreme Court decision against the use of racial preferences in school admissions. By making the LSAT optional, schools will be able to admit the students they want without lowering the average LSAT score that is one measure of elite status. But the schools need the ABA to move first.

The irony is that giving up the LSAT is likely to harm students from less privileged backgrounds. In September, 60 law school deans—including Berkeley Dean Erwin Chemerinsky, Loyola University Chicago Dean Michèle Alexandre and Boston University’s Angela Onwuachi-Willig—wrote the ABA to oppose making the admissions test optional on grounds that it would damage diversity. ...

Without an LSAT, untested law students will arrive at law school less prepared for the material, as well as less experienced with a rigorous testing format when they have to pass the bar exam in a few years. That is, if critics don’t next target the bar exam for elimination.

Bloomberg Law Op-Ed:  Ending Standardized Law School Tests Could Diminish Diversity, by Erwin Chemerinsky (Dean, UC-Berkeley) & Daniel Tokaji (Dean, Wisconsin):

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Treasury Department Seeks To Hire Deputy Assistant Secretary ($135,468 - $203,700)

The U.S. Department of the Treasury is looking to hire a Deputy Assistant Secretary for Tax, Trade and Tariff Policy (application due November 30, 2022): 

Summary
The Deputy Assistant Secretary reports to the Assistant Secretary for Tax Policy and is responsible for providing oversight, coordination and policy direction for the Tax and Trade Bureau (TTB).

Duties
As the Deputy Assistant Secretary Tax Trade and Tariff Policy, you will:

• Supervise the TTB Administrator.
• Provide policy direction to TTB based on input from Treasury leadership, US Government leaders, TTB leaders, federal advisory committees, and external groups.
• Work with Department of Homeland Security (DHS) and Customs and Border Protection (CBP) leadership to develop customs policies; provide policy guidance to DHS on issues related to revenue and regulation of trade for economic purposes.

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Penn Evaluates Whether To Join Boycott Of U.S. News Rankings By Ten Of Top 15 Law Schools

Daily Pennsylvanian, Penn Carey Law Evaluating Participation in U.S. News & World Report Rankings After Harvard, Yale Pull Out:

Spokesperson Meredith Rovine wrote in a statement to The Daily Pennsylvanian that Penn Carey Law “applauds Yale Law and Harvard Law for their leadership in raising key questions for all law schools,” and agrees that the rankings are not holistic. ...

“Penn Carey Law has substantially increased financial aid and support for students seeking public interest careers to meet these important needs. We are evaluating this issue and assessing a process for our own decision-making,” Penn Carey Law's statement said.

“The U.S. News algorithm severely undercounts money spent on financial aid for students, while fully rewarding schools for every dollar spent on faculty and administrator salaries,” Penn Carey Law’s statement read.

Philadelphia Inquirer, Penn Will Evaluate U.S. News Rankings in Light of Harvard and Yale’s Decision to Withdraw:

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Weekly Legal Education Roundup

• ABA Journal, More top law schools boycott US News rankings, but some lower-ranked institutions are reluctant to withdraw
• ABA Press Release, ABA Panel Takes First Step to Revise the Requirement for Law School Admission Tests
• Paul Caron (Dean, Pepperdine),  One-Third Of The Way Through The Fall 2023 Law School Admissions Season: Applicants Are Down -7.5%, With Biggest Decline (-21%) In The 165-169 LSAT Band
• Paul Caron (Dean, Pepperdine), Pepperdine Caruso Law Is Thankful For Greg Ogden
• Paul Caron (Dean, Pepperdine), U.S. News Law School Rankings, ABA Optional LSAT, And Harvard Affirmative Action Supreme Court Case
• Chronicle of Higher Education, Is This The Beginning Of The End Of The U.S. News Rankings Dominance?

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Tax Policy In The Biden Administration

• Bloomberg, Child Tax Credit Expansion Would Shrink the Racial Wealth Gap
• Bloomberg, How Fidelity Investments Built America’s Biggest Charity
• Bloomberg, IRS Crypto Tax Criminal Cases Bolstered by John Doe Summonses
• Bloomberg, When Taxes Collide: Can Book Tax, Global Minimum Tax Play Nice?
• Boston Globe Editorial, Republicans Should Leave the IRS Budget Alone

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Next Week’s Tax Workshops

Monday, November 28: John Vella (Oxford) will present Pillar 2’s Impact on Tax Competition (with Michael P. Devereux (Oxford; Google Scholar) & Heydon Wardell-Burrus (Oxford)) as part of the UC-Irvine Tax Policy Colloquium. If you would like to attend, please contact Natascha Ryan Fastabend.

Tuesday, November 29: Eleanor Wilking (Cornell) will present Tax Incidence with Heterogeneous Firm Evasion: Evidence from Airbnb Remittance Agreements as part of the Boston College Tax Policy Workshop. If you would like to attend, please contact Jim Repetti.

Tuesday, November 29: Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar) will these two papers as part of the NYU Tax Policy and Public Finance Colloquium:

• Impoverishment by Taxation, 170 U. Pa. L. Rev. ___ (2022)
• Asking Too Much: How American Governments Impoverish Their Own

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Is This The Beginning Of The End Of The U.S. News Rankings Dominance?

Chronicle of Higher Education, Is This the Beginning of the End of the 'U.S. News' Rankings Dominance:

Less than one week after the dean of Yale Law School announced she would no longer cooperate with U.S. News & World Report on its annual rankings, several of her peers have followed suit. As of Tuesday, deans at 10 of the 15 top-ranked law schools had said they would stop sending their data to U.S. News.

The collective revolt came quickly — and with barbs. In their announcements, the deans criticized the algorithm that U.S. News analysts use to produce the rankings. “The rankings rely on flawed survey techniques and opaque and arbitrary formulas, lacking the transparency needed to help applicants make truly informed decisions,” wrote Kerry Abrams, dean of Duke Law. The methodology creates “perverse incentives,” wrote Jenny Martinez, Stanford Law School’s dean. ...

If the law deans’ criticism sounds familiar, it’s because it echoes the complaints that have been leveled for decades against an even bigger project: the magazine’s ranking of undergraduate colleges and universities. There, too, critics have said the magazine’s metrics are flawed, opaque, and harm equity efforts.

But seldom have institutions acted on their concerns, as Yale and its peers have recently. And if elite colleges are willing to withdraw their support from one U.S. News ranking in the name of equity, why not another? In other words, is the undergraduate ranking the next venue for this kind of protest?

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The New And Decidedly Improved IRS 'Fact Sheet' Frequently Asked Questions

Frank G. Colella (Pace), The New and Decidedly Improved IRS 'Fact Sheet' Frequently Asked Questions, 100 Taxes — The Tax Magazine 49 (Apr. 2022):

On October 15, 2021, the IRS issued a News Release that updated its process for the issuance of frequently asked questions (FAQs) on “new tax legislation” and addressed concerns that taxpayers and practitioners had expressed about whether FAQs could be relied upon in the context of penalty relief requests. Had this News Release been issued as recently as two years ago, it may have raises some eyebrows because the number of IRS FAQs was relatively small and most practitioners were generally aware that they could not be cited as “authority” for a given tax position. But, in the post-Coronavirus world of tax practice and procedure, this News Release was a significant event given the sheer number of FAQs issued by the IRS in response to the tax legislation enacted as a result of the pandemic.

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NYU Seeks To Hire A Tax Law And Policy Fellow ($75,000-$88,000)

New York University School of Law is seeking a full-time Tax Law and Policy Fellow:

Description
The Tax Law Center at the New York University School of Law is seeking one full-time Tax Law and Policy Fellow to assist the Executive Director and other senior staff with research, writing, and project management. The fellow will work across subject matter areas in tax, which will include climate tax issues. The fellow will be able to work with senior staff to focus in on any area(s) of specialty in their second year if there is specific subject matter interest and as work needs allow.  

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Chicago And (Maybe) Cornell Are First Elite Law Schools To Refuse To Join U.S. News Rankings Boycott

Thomas J. Miles (Dean, Chicago), Rankings:

Many of you are aware that in the past week some law schools have announced that they will no longer participate in the U.S. News rankings. After conferring with University leaders and with some members of our faculty, our administrative team, and our alumni community, I have decided that we will continue to furnish information to U.S. News. 

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NY Times Op-Ed: Even Your Political Enemies Deserve A Slice Of Thanksgiving Pie

New York Times Op-Ed:  Even Your Political Enemies Deserve a Slice of Pie, 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)):

Just as some friends have inside jokes, my best friend, Woody, and I have an imaginary holiday. We call it Interdependence Day, an intentional play on Independence Day. The point is to recognize how we are all in this together. We mention it from time to time — things we hope to celebrate on Interdependence Day, people we want to honor on Interdependence Day, how we should get together for Interdependence Day. ...

I think that Thanksgiving, at its best, is something like Interdependence Day. The practice of gratitude asks us to acknowledge how our very existence depends on others. This yearly reminder of that reality is needed now more than ever.

Americans often cling to a myth of utter self-sufficiency. The hero is the self-made man. But if we are truly self-made, gratitude becomes impossible. In the 19th century, while visiting the United States, the French philosopher Alexis de Tocqueville observed a tendency for Americans to forget their larger community and past. In the now-classic “Democracy in America,” he wrote that the American citizen he saw was “thrown back forever upon himself alone” and confined “entirely within the solitude of his own heart.”

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UC-Irvine Is First Non-Elite Law School To Join U.S. News Rankings Boycott

Austen Parrish (Dean, UC-Irvine), University of California, Irvine School of Law Withdraws From Participating in U.S. News Annual Law School Rankings:

I write to share our decision to withdraw from participating in the U.S. News & World Report annual law school rankings — a decision that we have not reached lightly. Over the last several days, faculty have met to discuss as a group, and I have had conversations and meetings with staff, student leaders, alumni, and others. With thoughtful feedback and strong encouragement within our community, we will not be submitting proprietary data this year to U.S. News for use in its law school rankings.

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Pepperdine Caruso Law Is Thankful For Greg Ogden

After 44 years on the Pepperdine Caruso Law faculty, Greg Ogden taught his last class on Monday. We honored him with a clap-out:

On Monday evening, the faculty celebrated Greg with a dinner|roast at one of Pepperdine's beach houses:

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NY Times: Tax Prof Cruciverbalist

New York Times Crosswords, Collision Courses:

Samuel A. Donaldson is a law professor at Georgia State University, where he teaches courses on property, federal taxation and estate planning. He has been making crossword puzzles for The Times since 2008. His grids are typically filled with lively vocabulary, and this one is no different. “Solvers might not realize the theme until after they’re done,” Mr. Donaldson said of this puzzle, “so I wanted the process of getting to the finish line to be as enjoyable as possible.”

Law.com, GSU Law Prof Goes Across and Down to Create NY Times Crosswords:

Getting a crossword puzzle published in The New York Times is "one of the few meritocracies left," says Georgia State law professor Samuel Donaldson.

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A Wall Street Journal Thanksgiving

Wall Street Journal editorial, The Desolate Wilderness:

Here beginneth the chronicle of those memorable circumstances of the year 1620, as recorded by Nathaniel Morton, keeper of the records of Plymouth Colony, based on the account of William Bradford, sometime governor thereof:

So they left that goodly and pleasant city of Leyden, which had been their resting-place for above eleven years, but they knew that they were pilgrims and strangers here below, and looked not much on these things, but lifted up their eyes to Heaven, their dearest country, where God hath prepared for them a city (Heb. XI, 16), and therein quieted their spirits.

When they came to Delfs-Haven they found the ship and all things ready, and such of their friends as could not come with them followed after them, and sundry came from Amsterdam to see them shipt, and to take their leaves of them. One night was spent with little sleep with the most, but with friendly entertainment and Christian discourse, and other real expressions of true Christian love. ...

This editorial has appeared annually since 1961.

Wall Street Journal editorial, And the Fair Land:

Any one whose labors take him into the far reaches of the country, as ours lately have done, is bound to mark how the years have made the land grow fruitful.

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Taxation Of NFT Transactions

Michael Lukacs (EY, New York), Oren Margulies (EY, Washington, D.C.) & Lakshmi Jayanthi (EY Boston), ABCs of NFTs: Key Tax Considerations, 177 Tax Notes Fed. 819 (Nov. 7, 2022):

In this article, the authors explain what nonfungible tokens (NFTs) are, how various parties engage in NFT transactions, and how NFTs are exploited commercially, and they answer common questions about the taxation of NFT transactions — a subject on which there is no direct guidance.

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Will Katherine Magbanua Get 'Unusual' Reduction In Life Sentence For Flipping On Charlie Adelson In Dan Markel Murder Case?

Following up on last week's post, The Dan Markel Murder Case: Katie Magbanua Flips On Charlie Adelson:  Tallahassee Democrat, Could Katherine Magbanua Get an 'Unusual' Deal in Dan Markel Murder Case? Attorneys Weigh In.:

Katherine Magbanua’s agreement to talk to prosecutors as a state witness after being convicted of Dan Markel’s murder has Tallahassee-area attorneys scratching their heads as to what bearing her cooperation could have on her life sentence.

Magbanua was ordered Wednesday to return to Tallahassee in late November to give a proffer statement during a closed-door meeting with prosecutors at the courthouse. She was found guilty of first-degree murder and other charges during her May trial and sentenced over the summer.

The move comes in the run-up to the murder trial early next year of Charlie Adelson, Markel's ex brother-in-law, Magbanua's one-time boyfriend and the alleged mastermind behind the murder-for-hire plot.

Exactly what she could divulge and whether she will testify against Adelson are just as unclear as whether her life sentence could be reduced for her cooperation.

“This is out there,” said appellate attorney and former 1st District Court of Appeal judge Philip Padovano. “I’m not saying it’s impossible, but it is unusual to say the least. I’ve never seen it.” ...

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Delmotte: The Promises And Pitfalls Of A Blockchain Driven Tax System

Charles Delmotte (NYU; Google Scholar), The Promises and Pitfalls of a Blockchain Driven Tax System:

Policymakers and international organizations such as the OECD defend new tax measures to increase tax compliance and decrease tax competition and tax evasion. The proposed new policies often change the nature or distribution of tax liabilities, for instance by changing the rate structure, introducing new taxable events, or redistributing taxing rights. In a divided political landscape, this article suggests another approach to simplify taxes and raise compliance. This article doesn’t intend to touch upon what we owe the government, but only regards how we execute the existing set of tax rules. Moreover, I will explore enhancing tax efficiency by altering the technological design that undergirds the tax system – by relying on blockchain technology.

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Bill Henderson: The Dollars And Math Behind Yale Law School's Withdrawal From U.S. News — 'Are Limits on Federal Student Loans The Best Way To End The Rankings Madness?'

Bill Henderson (Indiana), The Dollars and Math Behind Yale Law’s Withdrawn From USN Rankings:

Yale Law School’s $1.2 billion share of the Yale University endowment provides approximately $63 million in operating funds, which translates into $106,000 per student. ... To be clear, these are the funds available before Yale Law collects its first dollar of tuition. Nonetheless, as the top-ranked law school in the US News rankings for more than 30 years, Yale has a superabundance of highly credentialed students who would be willing to pay or borrow the current cost of attendance. For the 2021-22 admission cycle, Yale admitted only 5.6% of applicants; of those admitted, 81% enrolled, making Yale the most selective and elite law school in the nation.

Among elite law schools, Yale clearly has the strongest balance sheet. Its closest competitors are Stanford Law ($76,000 in endowment funding per student) and Harvard ($56,000), which typically rank #2 or #3 in any given year. Among the rest of the T-14, endowment funding generates approximately $20,000 per student, with a high of $33,000 and a low of $4,000, albeit these figures, similar to Yale, may go up due to improved endowment performances, as pandemic-related fiscal and monetary policies tended to make the rich richer.

The big news, of course, is that Yale recently announced its withdrawal from the US News rankings, at least as an active participant. This decision, and its likely second-order effects for other law schools, are nearly impossible to accurately grasp without also understanding (1) the technical intricacies of how the US News rankings work, as this creates the underlying incentive structure; and (2) the significant risk that Yale was running by continuing to play the US News game, making it a poor data point for generalizing to other law schools. ...

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SSRN Tax Professor Rankings

SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through November 1, 2022) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

		All-Time			Recent
1	Reuven Avi-Yonah (Michigan)	214,451	1	Reuven Avi-Yonah (Michigan)	11,049
2	Daniel Hemel (NYU)	127,477	2	Daniel Hemel (NYU)	5,104
3	Dan Shaviro (NYU)	125,641	3	Bridget Crawford (Pace)	4,272
4	Lily Batchelder (NYU)	125,185	4	Robert Sitkoff (Harvard)	2,920
5	David Gamage (Indiana-Bloom.)	122,450	5	Zachary Liscow (Yale)	2,761
6	Darien Shanske (UC-Davis)	115,439	6	Ruth Mason (Virginia)	2,676
7	David Kamin (NYU)	112,636	7	D. Dharmapala (Chicago)	2,618
8	Cliff Fleming (BYU)	107,287	8	Kyle Rozema (Washington University)	2,434
9	Manoj Viswanathan (UC-Hastings)	104,121	9	Richard Ainsworth (Boston Univ.)	2,411
10	Rebecca Kysar (Fordham)	103,236	10	Darien Shanske (UC-Davis)	2,405
11	Ari Glogower (Northwestern)	103,058	11	David Gamage (Indiana-Bloom.)	2,365
12	D. Dharmapala (Chicago)	48,388	12	Kim Clausing (UCLA)	2,333
13	Michael Simkovic (USC)	46,746	13	Jordan Barry (USC)	2,183
14	Paul Caron (Pepperdine)	40,043	14	Lily Batchelder (NYU)	2,112
15	Louis Kaplow (Harvard)	37,849	15	Louis Kaplow (Harvard)	2,031
16	Richard Ainsworth (Boston Univ.)	35,948	16	Michael Doran (Virginia)	1,900
17	Bridget Crawford (Pace)	33,632	17	Young Ran (Christine) Kim (Cardozo)	1,894
18	Robert Sitkoff (Harvard)	30,198	18	Dan Shaviro (NYU)	1,843
19	Vic Fleischer (UC-Irvine)	29,111	19	David Kamin (NYU)	1,812
20	Ed Kleinbard (USC)	28,834	20	Brad Borden (Brooklyn)	1,757
21	Brad Borden (Brooklyn)	28,791	21	Margaret Ryznar (Indiana-Indy)	1,703
22	Ruth Mason (Virginia)	27,572	22	Francine Lipman (UNLV)	1,624
23	Jim Hines (Michigan)	26,948	23	Edward McCaffery (USC)	1,366
24	Ted Seto (Loyola-L.A.)	25,788	24	Jeremy Bearer-Friend (George Wash.)	1,358
25	Katie Pratt (Loyola-L.A.)	25,746	25	Omri Marian (UC-Irvine)	1,347

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Dan Solove: Slaying The U.S. News Law School Rankings Dragon

Daniel Solove (George Washington; Google Scholar), Slaying the US News Law School Rankings Dragon:

The battle against the US News Law School Rankings has finally begun. After decades of groaning and grumbling about how bad the rankings are, many top law schools have said they are withdrawing from the rankings, including 7 out of the top 10. I applaud this move, but I fear that law schools might break out the champagne too early. The battle might be won, but the war might ultimately be lost unless law schools do more than just withdraw.

Law schools aren’t really dropping out of the rankings; they are just pledging to refuse to submit certain data that US News wants. US News issued a statement declaring that it will continue ranking whether law schools cooperate or not. The dragon hasn’t been slain; it’s just not going to get some of the food it wants. ...

Reductive as rankings are, people crave rankings, and there is money in ranking for US News. Thus, don’t expect US News to fold.  Rankers gonna rank.  US News will just use whatever data it can get their hands on. ...

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Taxation And Law And Political Economy

Jeremy Bearer-Friend (George Washington; Google Scholar), Ari Glogower (Northwestern; Google Scholar), Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), & Clinton Wallace (South Carolina; Google Scholar), Taxation and Law and Political Economy, 83 Ohio St. L.J. 471 (2022) (reviewed by Hayes Holderness (Richmond) here and Neil Buchanan (George Washington) here): 

The Law and Political Economy (LPE) project seeks to reorient legal thought by centering considerations of power, equality, and democracy. This reorientation would supplant approaches to legal thought that prioritize efficiency and neutrality, and that imagine a pre-political market “encased” from legal scrutiny or intervention.

This Article seeks to advance dialogue between LPE and tax scholarship. The Article first describes the areas of intersection between the two literatures and then offers general insights each can learn from the other as a basis for further engagement.

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UCLA Is Tenth Top 15 Law School To Refuse To Participate In U.S. News Rankings

Russell Korobkin (Interim Dean, UCLA), UCLA Law Will Not Participate in U.S. News & World Report Rankings:

As many of you know, a number of our peer schools have announced that they will not submit proprietary data this year to U.S. News and World Report for use in its annual law school rankings. After substantial and deliberate consultation with a variety of stakeholders, I write to tell you that, in the absence of significant and meaningful changes to the methodology employed in these rankings, we will also decline to participate this year.

Faced with the choice of where to attend law school, one of the most significant decisions of their lives, students reasonably search for some method of comparing the overall quality of law schools. Third-party rankings can provide a useful service in this regard if their methodology is transparent, if they value features of the schools’ programs that are reasonable proxies for educational quality, and if they provide incentives for schools to compete in ways that improve educational quality and ultimately benefit the legal profession.

Although no rankings can provide a perfect measure of quality, the U.S. News rankings are particularly problematic for a number of reasons:

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Colin Diver: Are The U.S. News Rankings Finally Going To Die?

New York Times Op-Ed:  Are the U.S. News College Rankings Finally Going to Die?, by Colin Diver (Former Dean, University of Pennsylvania Law School; Former President, Reed College; Author, Breaking Ranks: How the Rankings Industry Rules Higher Education and What to Do About It (Johns Hopkins University Press 2022) (more here):

Yale’s law school made the stunning announcement last week that it would no longer participate in the influential rankings published annually by U.S. News & World Report. Given the outsize importance attributed to the rankings by prospective applicants and alumni, Yale’s decision sent shock waves through the legal profession, and indeed all of higher education. Yet the law schools at Harvard, Berkeley, Georgetown, Columbia, Stanford and Michigan [and Duke and Northwestern] quickly followed suit. Will the universities of which they are a part join the boycott? Will other colleges and professional schools do the same? Could this be the beginning of the end for college rankings?

I sure hope so.

Since their emergence in 1983, the U.S. News college rankings have grown into a huge juggernaut. They have withstood decades of withering criticism — from journalists, university presidents and the U.S. secretary of education — that the methodology ignores the distinctive character of individual schools and drives institutions to abandon priorities and principles in favor of whatever tweaks will bump them up a notch or two.

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With Duke And Northwestern, Nine Of T14 Refuse To Participate In U.S. News Law School Rankings

Kerry Abrams (Dean, Duke), Withdrawal From U.S. News Rankings:

For more than 30 years, Duke Law School has participated in the annual ranking of law schools published by U.S. News. Although Duke Law has been among the top cohort of institutions in every edition, we have long had serious concerns that the design and influence of these rankings create incentives that are not aligned with our mission and our values. At a time of critical focus on access to legal education and the legal profession, we think it’s important to recognize this unfortunate impact and push for change. Therefore, Duke Law will no longer participate in the U.S. News rankings.

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One-Third Of The Way Through The Fall 2023 Law School Admissions Season: Applicants Are Down -7.5%, With Biggest Decline (-21%) In The 165-169 LSAT Band

We are now 33% of the way through Fall 2023 law school admissions season. The number of law school applicants reported by LSAC is down -7.5% compared to last year at this time:

129 of the 198 law schools are experiencing a decrease in applications. Applications are down -20% or more at 26 law schools:

Applicants are down the most in the Northwest (-17.0%), Midsouth (-14.9%), and Northeast (-13.2%); and are up in Other (+22.2%):

Applicants' LSAT scores are down -8.5% in the 170-180 band, -13.8% in the 160-169 band, -8.8% in the 150-159 band, and -1.3% in the 120-149 band:

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Cleveland State Removes John Marshall's Name, Rebrands As CSU College Of Law

Following up on my previous posts (links below): Lee Fisher (Dean, Cleveland State), Law School Name Change: Cleveland State University (CSU) College of Law:

Below is a message from Cleveland State University President Laura Bloomberg announcing that earlier today, the Cleveland State University Board of Trustees voted to remove the name “Cleveland-Marshall” from the College of Law. Our college will now be known as the CSU College of Law.

As President Bloomberg notes, the Board reached its decision following an extensive and comprehensive process that included review by a special University ad hoc committee of the Law School Name Committee Report that I submitted to the University earlier this year. The University ad hoc committee unanimously recommended the removal of the name “Marshall,” and in September President Bloomberg submitted that recommendation to the Board with her endorsement. I also voiced my support of the recommendation.

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Morse Presents APA Challenges To Old Tax Guidance And The Six-Year Default Limitations Period Today At UC-Irvine

Susan Morse (Texas; Google Scholar) presents Out of Time? APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period at UC-Irvine today as part of its Tax Policy Colloquium:

 The government has begun to raise the six-year limitations period under 28 U.S.C. § 2401(a) to defend against administrative procedure challenges to old tax regulations. This defense should work. The tradeoff between accuracy and repose in these cases is solved by the six-year limitations period of 28 U.S.C. § 2401(a), which begins to run when guidance issues for such administrative procedure claims. One complication in tax is that most opportunities to raise administrative procedure claims arise in deficiency or refund cases, where the pre-litigation tax procedure can be lengthy and outside the control of the plaintiff. The solution is to make appropriate equitable, administrative and perhaps legislative adjustments to ensure that the limitations period works appropriately in the tax context.

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Legal Ed News Roundup

• Connecticut Law Tribune, U.S. is 'Expensivest' for Law School; See How We Compare
• David Lat, The Dan Markel Case: An Interview With Ruth Markel
• Law.com, Ahead of the Curve: My Year on the Legal Education Beat
• Law.com, Minnesota Law Adds Racial Equity and Justice Milestone Program
• Law.com, ‘Sadness, Anger and Sorrow’: UVA School of Law Students Return to Class Following Shooting
• Law.com, Stacy Leeds to Become First Native American Dean of Arizona State University Law
• National Jurist, How To Build A Network In Law School
• National Jurist, Texas Southern And Its Former Dean Fight It Out Over Her Firing

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Antitrust Implications Of The U.S. News Law School Rankings Boycott

Daniel A. Crane (Michigan), Antitrust Concerns on Firing U.S. News & World Report:

My view on the merits is that the USNWR rankings scheme is bad for legal education, for many of the reasons articulated by Deans Gerken, Manning, and Chemerinksy. It’s not that rankings are necessarily bad—giving students, employers, and others information on law schools is important. The problem is that USNWR places weight on arbitrary and manipulable factors, which in turn pressure schools to allocate resources in ways that are detrimental to legal education, equity, and ultimately society at large. So sign me up for the project of breaking USNWR’s spell.

Ever since yesterday’s announcements, folks have been asking me whether there is a potential antitrust problem with any of this. ...

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Michigan Is Seventh T14 Law School To Refuse To Participate In The U.S. News Rankings

Mark D. West (Dean, Michigan), Michigan Law Will Not Participate in U.S. News Rankings:

After talking with students, faculty, alumni, and staff, I have decided that it no longer makes sense for Michigan Law to participate in the U.S. News & World Report law school rankings process. As a public institution, serving the public interest has always been central to our mission. Over time, I increasingly have come to believe that the U.S. News law school rankings no longer serve the public interest. Although we have had sustained discussion for years within the Quad about parting ways with the rankings, it would have been difficult for us to take this step alone. I applaud Yale Law School (and Dean Heather Gerken, Michigan Law, ’94) for being first mover and share the concerns expressed by Yale and other schools that have withdrawn.

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Why Law Schools Outside The T14 (Like UCLA, Wash U, George Mason, Boston University, Pepperdine) May Refuse To Join The U.S. News Rankings Boycott

David Lat (Original Jurisdiction), Yale And Harvard Law To U.S. News: Drop Dead:

In the world beyond YLS and HLS, some have criticized the schools’ withdrawal as threatening the rankings system, which these critics argue has utility for schools beyond the super-elite. The top-14, top-6, and top-3 schools barely change, so one could argue that the U.S. News rankings offered little informational value as to those schools. The entire so-called “T14” could secede, and not much would change; the old advice of “if you get into a T14 school, go” would still apply.

But beyond the T14, some schools have made dramatic jumps over the years, as reflected in their U.S. News rank—e.g., George Mason/Scalia Law or Pepperdine Law, former fourth-tier schools that are now #30 and #52, respectively. If YLS and HLS end up killing the law-school rankings, with U.S. News either leaving the space or making the ranks much more imprecise, how can these other schools demonstrate their progress? And how can law-school applicants make informed decisions when choosing between non-T14 schools?

New York Times, As More Top Law Schools Boycott Rankings, Others Say They Can’t Afford to Leave:

Some law schools — especially those just below the Top 14 — said that despite their qualms about the rankings and the tests, it could be hard to abandon them.

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Lesson From The Tax Court: The Employer/Employee Gift Rule

Relationships can be messy.  That is true whether they are work relationships or romantic relationships.  But it is especially true for romantic relationships with co-workers.  Throw in a power disparity (in either direction) and the relationship becomes even trickier.  That is why I suspect most readers subscribe to the standard advice to avoid romantic relationships with co-workers—even if they honor that advice in the breach.  After all, the standard advice is often easier said than done. Humans are not little neat boxes where you can separate relationships into “work” and “personal.”  It’s messy.

That messiness invades tax law.  The Supreme Court has said as much in how it tells us to apply the §102(a) exclusion from income for gifts.  Congress has tried to lessen the §102(a) mess with a bright line rule in §102(c) that prohibits the exclusion when a gift is from employer to employee.  Call that the employer/employee gift rule.  In Jennifer Joy Fields and Walter T. Fields v. Commissioner, T.C. Sum. Op. 2022-22 (Nov. 10, 2022) (Judge Panuthos), we see the employer/employee gift rule applied to a CEO’s decision to help an employee buy a home with company money.  Despite their personal relationship, the employer/employee relationship meant there was no exclusion.

Today’s lesson seems especially timely in light of the approaching holiday season with all its messy relationship and gift-giving complexities.  Details below the fold. 

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