Joondeph: State Taxes And 'Pike Balancing'

Bradley W. Joondeph (Santa Clara; Google Scholar), State Taxes and 'Pike Balancing,' 99 Ind. L.J. 893 (2024):

For many decades, the Supreme Court has applied different doctrinal frameworks in evaluating whether state laws violate the dormant Commerce Clause depending on whether the law at issue was a regulation or a tax. For state regulations, the Court’s test has included asking whether the regulation imposes costs on interstate commerce that are “clearly excessive” relative to its local benefits. But the Court has never applied this so-called “Pike balancing test” to state taxes. In its most recent state tax decision, however—South Dakota v. Wayfair, Inc.—the Court indicated Pike offers a basis for challenging state tax schemes under the Commerce Clause. Wayfair has thus created a puzzle: How should undue burden analysis apply to state taxes?

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Legal Ed News Roundup

• ABA Journal, California Plan To Move Bar Exam To Kaplan Sent Back To State Supreme Court
• Nicholas Allard (Jacksonville), Setting Jacksonville University College of Law Apart From Its Peers
• Baylor Lariat, Baylor Law School Launches Family Law Clinic
• CBC News, Make a Deal Today or We Cancel Semester for Law Students, McGill Tells Law Professors' Union
• CBS News, University Of Pennsylvania Law School Suspends Professor Over Comments On Race
• Cornell Chronicle, Cornell Law School Announces Partnership with Service to School VetLink Program
• Daily Report, Georgia July Bar Exam Results: Highest Overall Passing Rate in 10 Years
• Daily Report, 'Market-Responsive Curriculum' Called a Priority for Next Georgia State Law Dean

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WaPo: Meet The Black-Belt, Tattooed IRS Official Who Saved 23 Children From Their Abusers

Washington Post, Meet the Black-Belt, Tattooed IRS Official Who Saved 23 Children From Their Abusers:

At an early-morning Brazilian jujitsu class in Hamburg, N.Y., sweat flies as men pair off and pounce on each other, grappling and grunting on the mats. The fighters are so entangled that it’s hard to tell which hand or foot belongs to which body. Jarod Koopman, the black-belt instructor, pins a student named Mike to the floor and with a shift of his hip renders him immobile. Mike weighs 280 pounds; Jarod, 180. Brazilian jujitsu was created to do this: enable a smaller person to bring down a much bigger one.

Koopman teaches this class about three times a week, then changes out of his heavy cotton gi into the business shirt and pressed slacks of a professional accountant. When he sits down at his computer, what he will do at work is much the same as what he does at the dojo. This work has, among other things, led to the rescue of 23 children from rape and assault, the seizure of a quarter-million child abuse videos and the arrest of 370 alleged pedophiles. It has resulted in the largest-ever seizure of cryptocurrency headed to Hamas, al-Qaeda and the Islamic State. When Changpeng Zhao, chief of the world’s biggest cryptocurrency exchange, Binance, reported to prison in June, it was because Koopman’s small cybercrime team had uncovered evidence of the firm’s money laundering for terrorists and sanctions-busting for Iran, Syria and Russia. In the past 10 years, this work has returned more than $12 billion to victims of crime and to the U.S. Treasury.

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NY Times Op-Ed: Amy Wax Is Outrageous, Demeaning, Dangerous. She Shouldn’t Be Punished.

New York Times Op-Ed:  She Is Outrageous, Demeaning, Dangerous. She Shouldn’t Be Punished., by  John McWhorter (Columbia; Google Scholar):

For years now, Amy Wax, a University of Pennsylvania law professor, has attracted attention for her statements about race and gender. ...

For me, watching Wax go farther and farther down this path has become almost a spectator sport, though a glum one.

In response to complaints from students and faculty members, in 2018 the University of Pennsylvania said she would no longer teach required first-year classes. Last week it increased the penalty, suspending her for a year, removing her from her endowed position and ending her summer pay permanently.

Wax’s contributions to public discourse have been stunningly numb to compassion, courtesy and sometimes even to coherence, often recalling those of a certain former president. But though her statements (some of which she has attempted to distance herself from) are egregious and then some, so is her punishment. ...

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Lesson From The Tax Court: To Get Deductions For Criminal Activity, Make It Your Business

I was going to blog today on a great case involving application of the Cohan rule to help a taxpayer establish their basis in property when they had lost their records.  Pak v. Commissioner, T.C. Memo. 2024-86.  I decided not to because Les Book did such a nice job blogging about it here on Procedurally Taxing that I did not feel I would add much value.  However, one result of reducing these Lessons to once-a-month is that I easily found another case to teach a good Lesson.

Today’s lesson is about deductions for criminal activities.  It’s also a lesson about what I call the rule of ‘62’s.  Section 162 allows a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.”  In contrast, §262 expressly disallows the deduction of “personal, living, or family expenses.”

The key idea behind these two statutes is to distinguish personal from business expenses.  Congress seeks to tax only net income of money made in a trade or business.  Since it takes money to make money, §162 generally permits taxpayers to deduct the money it takes from the money they make.  In contrast, expenses that are not connected to a trade or business activity (or other profit-seeking activity under §212) are not deductible; Congress seeks in such cases to tax the gross receipts of the taxpayer.

But what if the taxpayer’s trade or business is illegal?  Is their income still gross income?  Are their expenses still deductible?  There is a long and rich history regarding these questions, much of it arising from the activities of Chicago mobsters in the 1920’s, who were not always punctilious about their taxes.  The bottom line is that yes, illegal income is gross income and, yes, expenses to produce that income are likewise deductible under §162(a).  In contrast, expenses that are themselves illegal are not deductible, again regardless of the legality of the taxpayer’s trade or business.  §162(c).

Thus income earned by criminals is treated similarly to income earned by law-abiding taxpayers.  That means criminals still have to deal with the rule of ‘62’s.  That is, they must connect their expenses with some activity that amounts to a trade or business.  §162. The expenses cannot be just personal.  §262.  That is the lesson we learn in Jonathan Chang and Wei-Lin Chang v. Commissioner, T.C. Summ. Op. 2024-18 (Sept. 16, 2024) (Judge Panuthos), where the taxpayer sought to deduct the legal expenses he incurred in a criminal trial for wire fraud and money laundering.  The IRS said his criminal activity was not connected to any business, but was merely personal enrichment.  The Tax Court disagreed and allowed a deduction of over $360,000.

\Details below the fold.

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Summer Associate Satisfaction Surveys

ABA Journal, Which Law Firms Scored Highest in Summer Associate Surveys? And Which Had Memorable Events?:

The law firm with a No. 1 ranking by summer associates is either Dentons or Paul Hastings, according to surveys by Law.com and Law360 Pulse.

There was just one overlap in the top 10 rankings: Morgan, Lewis & Bockius was ranked third in both surveys. In fairness, however, the two rankings measured different criteria.

Law.com, Wine, Dine and Grind (Through the Weekend): Summer Associates Thirst For Experience in 'Real Matters':

In a recent American Lawyer survey of 3,077 summer associates at 71 law firms, ... summers indicated that they were less concerned about getting job offers and less worried about job security altogether. Indeed, more summers said they planned to be at the same firm in five years compared to last year's class.

Law 360, The 2024 Summer Associates Survey: Part 2:

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Bar Exam Pass Rates Are Up In 70% Of States
• Narotzki Posts Two Tax Papers On SSRN

Sunday:

• Some Of Christianity’s Biggest Intellectual Skeptics Are Becoming Vocal Converts
• NY Times: The Impact Of A Masculine Religious Revival On The Church And Society
• The Bible: A Global History
• Pepperdine Caruso Law School Hosts Discussion On Abortion And Religious Freedom
• The Top Five New Tax Papers

Some Of Christianity’s Biggest Intellectual Skeptics Are Becoming Vocal Converts

Christianity Today:  Some of Christianity’s Biggest Skeptics Are Becoming Vocal Converts, by Nathan Guy (Harding):

[A] new religious movement seems to be underway, perhaps just as offbeat as the Jesus People of the 1970s. I am talking about the growing number of “intellectual Christians”—people whose turn to faith is tethered far more to cognitive knowledge than to subjective experience. The general cultural trend on the ground is still shifting away from Christianity—most easily recognized by the exponential rise of the “nones.” But a curious trend is taking place among the elite, as a growing number of high-profile thought leaders and public figures are repudiating their antireligious paradigms in favor of the Christian framework.

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NY Times: The Impact Of A Masculine Religious Revival On The Church And Society

Following up on last week's post, New York Times, In A First Among Christians, Young Men Are More Religious Than Young Women:  New York Times Op-Ed:  The Possible Meanings of a Masculine Religious Revival, by Ross Douthat:

For some time now, going back to the immediate aftermath of the pandemic, if not earlier, I’ve been hearing anecdotes about young men showing up at churches in unexpected numbers. Unexpected because a gender gap in religion, where women are more likely to identify with and practice Christianity, has been a consistent feature of the American religious landscape going back generations.

But maybe not any longer, or at least not for America’s younger generations. My newsroom colleague Ruth Graham has a report this week that cites data from the American Enterprise Institute showing that more Gen Z women than Gen Z men describe themselves as religiously unaffiliated — a reversal of the pattern for every older age group. And she gives life to that data point with vignettes from the religious culture of Waco, Texas, where both church and campus life (at the Baptist-founded Baylor University) offer examples of greater male investment paired with female disaffection.

Since this is a newish trend, it’s amenable to all manner of speculative interpretations, but two competing ones stand out. A masculinization of American Christianity could be seen as yet another force driving the polarization of the sexes — the diverging ideological and educational paths of men and women that are probably linked to the declining rate at which they’re pairing off. Or it could be seen as a potential answer to that polarization, a positive sign for male-female relations in the long run. ...

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The Bible: A Global History

Wall Street Journal:  ‘The Bible’: A Book on a Mission, by Barton Swaim (reviewing Bruce Gordon (Yale Divinity School), The Bible: A Global History (2024)):

“One hundred years from my day,” Voltaire is supposed to have remarked, “there will not be a Bible on earth except one that is looked upon by an antiquarian curiosity-seeker.” Things haven’t worked out that way. The Bible is the foundational Scripture of a religion claiming a third of the planet’s population. Millions of copies are printed and sold every year, in hundreds of languages. Millions more are downloaded as apps and audiobooks. The Bible is printed and read illegally in some places, mocked and vilified in others, argued over everywhere. Its texts are studied, memorized, preached, interpreted and reinterpreted in churches, seminaries, small groups and prisons in every part of the world.

In “The Bible: A Global History,” Bruce Gordon chronicles the Christian Bible’s progression from a collection of ancient Hebrew and Greek texts—our word “Bible” is derived from the Greek biblia, “books”—to its present status as, in the author’s appropriately ambiguous phrase, “the most influential book in the world.”

Mr. Gordon, a professor of ecclesiastical history at Yale, is an accomplished historian of the Protestant Reformation; his 2009 biography of John Calvin is the finest modern life of the reformer. “The Bible,” in many ways a history of Christianity itself, is a marvelous work of scholarship and storytelling. Mr. Gordon chronicles the Christian canon’s beginnings and the early efforts to collect manuscripts into codices. He describes the Bible’s profound influence on the largely illiterate population of medieval Europe and its transformation into a source of individual spirituality in the Reformation and after. He relates the cultures of Bible-reading that sprang up in Europe and the New World and finally the Bible’s spread to India, Africa, South America and East Asia by the work of numberless translators, zealots, preachers and missionaries. ...

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Pepperdine Caruso Law School Hosts Discussion On Abortion And Religious Freedom

Pepperdine Graphic, Law School Hosts Discussion on Abortion and Religious Freedom:

The Nootbaar and Ken Starr Institutes organized and held a lively discussion on abortion restrictions and reproductive rights, particularly on how several ongoing cases across the country relate to constitutional law and religious freedom at the Pepperdine Caruso School of Law with around 50 attendees. ...

Jessie Hill, ... professor of law and associate dean for Research and Faculty Development at Case Western Reserve University, discusses abortion rights and religious freedom. Pepperdine professor Michael Helfand, ..., the Brenden Mann Foundation Chair in Law and Religion, moderated the discussion at the Caruso School of Law. ...

“We generally associate abortion with the liberal left and religion with the conservative right. Now we have a marriage of political ideas,” Hill said, while pointing to partisan policy and politics as a core reason. ...

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The Top Five New Tax Papers

This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list, with some reshuffling of the order within the Top 5.

1. [904 Downloads]  Federal Tax Procedure (2024 Practitioner Ed.), by John Townsend (Houston; Google Scholar)
2. [738 Downloads]  What is Tax Fairness?, by Rita de la Feria (Leeds; Google Scholar)
3. [438 Downloads]  Reforming the Taxation of Life Insurance, by Ari Glogower (Northwestern; Google Scholar) & Andrew Granato (Yale; Google Scholar)
4. [433 Downloads]  Tax Regulations After Loper Bright, by Andy Grewal (Iowa; Google Scholar)
5. [413 Downloads]  Non-(Fully) Harmonised Excise Taxes and Irrebuttable Presumptions, by Rita de la Feria (Leeds; Google Scholar)

Editor's Note:  If you would like to receive a daily email with links to tax posts on TaxProf Blog, email me here.

This Week's Ten Most Popular TaxProf Blog Posts

Legal Education: 

1. Jewish News of Northern California, Protesters Force UC-Berkeley FedSoc Event On Judicial Reform in Israel To Shift Online; Dean Chemerinsky To Pursue Disciplinary Action Against Disruptive Students
2. ABA, Guidance Memo On Standard 208: Academic Freedom And Freedom Of Expression
3. Law360, King & Spalding Fights Bias Suit By Straight, White Female Over Summer Associate Diversity Fellowship Program
4. Daily Business Review, 2025 Hourly Billing Rates For Elite Law Firms: $3,000 For Senior Partners, $1,000 For First Year Associates
5. Derek Muller (Notre Dame) & Mike Spivey, Projected 2025-26 U.S. News Law School Rankings: 1-11
6. Chronicle of Higher Education Op-Ed (Alan Levinovitz), Are Colleges (And Law Schools) Getting Disability Accommodations All Wrong?
7. Paul Caron (Dean, Pepperdine), The Great Unfinished Pepperdine Caruso Law Symphony
8. Reuters, Critics Say Cutting 'Race And Ethnicity' From ABA Law School Diversity Accreditation Standard Goes Too Far
9. Sam Williams (Idaho), Dissecting The Frog: How A Meme Explains The Westlaw/Lexis And Generational Divide
10. David Lat (Original Jurisdiction), Ambitious Law Students Must Choose To Be On ‘Team Blue’ Or ‘Team Red’

Tax:

1. SSRN, The Top Five New Tax Papers
2. University Of Florida Tax Incubator, Complexities, Discontinuities, And Unintended Consequences Of U.S. International Tax Rules
3. Brian Leiter (Chicago), The 10 Most-Cited Tax Faculty
4. Wall Street Journal Tax Report, A Tax-Shelter Crackdown Uncovers A Dentist’s ‘Smile High Trust’
5. Tax Prof Jobs
   • LSU
   • Queen's
6. Daniel Schaffa (Richmond), Reimagining The Deduction For Employee Compensation
7. Jack Wroldsen (Cal Poly), Section 1031 Offramps: Incentives For Small Investors To Sell Single-Family Rental Homes
8. Blaine Saito (Ohio State), Review Of Winning By Losing: The Strategy Of Adverse Letter Ruling By Noah Marks (Duke)
9. Kristelia García (Georgetown), Taxing Collusion
10. SSRN, Tax Professor Rankings

Faith

1. Paul Caron (Dean, Pepperdine), The Great Unfinished Pepperdine Caruso Law Symphony
2. Fox News Op-Ed (Mike Kerrigan), What Bluegrass-Loving Friars Taught Me About A Life Of Faith: Put First Things First
3. Madeleine Kearns (The Free Press), The Young Catholic Women Bringing Back Veils
4. Christianity Today, Taste And See If The Show Is Good: How A Christian Can Revel In Breaking Bad And Better Call Saul
5. New York Times, In A First Among Christians, Young Men Are More Religious Than Young Women

Bar Exam Pass Rates Are Up In 70% Of States

Reuters, Bar Exam Pass Rates Are Up In Most States as More Scores Roll In:

The July 2024 bar exam is shaping up to be a strong one for test takers, with pass rates largely trending up — signaling good news for both law graduates and legal employers.

More than half of U.S. states had reported exam results as of Friday morning and 18 of the 26 posted higher overall pass rates than in July 2023. Ten states saw improvements of five percentage points or more. Two states had the same pass rate as last year, while 6 were down — mostly by small margins.

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Narotzki Posts Two Tax Papers On SSRN

Doron Narotzki (Akron; Google Scholar), Chevron Unraveled, Tax Law Unleashed, 86 Ohio St. L.J. Online ___ (2025):

The article explores the profound implications of the repeal of Chevron deference on tax law. The Chevron doctrine, which historically allowed courts to defer to federal agencies' interpretations of ambiguous statutes, has been a cornerstone of administrative law. The article examines how the recent shift away from Chevron deference, highlighted by the Supreme Court's decision in Loper Bright Enterprises v. Raimondo, may affects various industries, including cannabis, cryptocurrency, renewable energy, and telecommunications, and potentially may lead to significant changes in tax policy and enforcement across these sectors. The article delves into specific examples of how this legal transformation might reshape tax practices, offering insights into the evolving balance of power between the judiciary and federal agencies in the post-Chevron landscape.

Doron Narotzki (Akron; Google Scholar), When Debt Gets a Makeover, Taxes Follow, 21 U.C. L. Bus. J. __(2024): 

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Osofsky's Wellness And The Tax Law

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Leigh Osofsky (North Carolina; Google Scholar), Wellness and The Tax Law, 59 Ga. L. Rev. __ (2025).

There is little doubt that the U.S. tax system’s patchwork treatment of medical care yields significant inequities, many of which reproduce broader problems with non-tax public health policy in the United States. In Wellness and the Tax Law, Leigh Osofsky explores these inequities as they arise in the context of individuals’ spending on wellness practices that foster physical and mental well-being. Medical research shows that these wellness practices are significantly correlated with preventing, mitigating, and treating identifiable health problems, with potential savings at both the individual and societal levels. Concomitantly, tax law has deployed the concept of “medical care” in more contexts, and with less consistency. Within this dynamic context, Osofsky revisits the structure and justifications for tax benefits for health-oriented spending.

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Weekly Legal Education Roundup

• AALS, Statements Of Good Practices For Faculty Recruitment, Hiring, Retention, And Resignation
• Chronicle of Higher Education Op-Ed (Alan Levinovitz), Are Colleges Getting Disability Accommodations All Wrong?
• Paul Caron (Dean, Pepperdine), The Great Unfinished Pepperdine Caruso Law Symphony
• Daily Business Review, Senior Partners Approach $3,000 an Hour, As More Billing Rate Hikes Expected in 2025
• Florida Bar, July 2024 Florida Bar Exam Results: For The First Time In Ten Years, Florida International Is Not #1
• Jewish News of Northern California, Architect of Israeli Judicial Coup Hounded Off Stage by Unusual Mix of Protesters at Berkeley
• David Lat (Original Jurisdiction), Asked And Answered: Should I Join FedSoc?

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Tax Policy In The Biden Administration

• Bloomberg, The Big Tax Hike Coming in Just Over a Year
• Bloomberg, Corporate Alternative Minimum Tax Rules Multiply Compliance Tasks
• Bloomberg, Countries Raise Corporate Tax Rates After Years of Decline
• Business Insider, How Rich Americans Use Life Insurance to Save on Taxes and Protect Their Kids' Inheritance With This Neat Trick
• Common Dreams, Dems Name and Shame Companies Paying Executives More Than They Pay in Federal Taxes

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Tobin Presents Have Your Cake And Eat It Too, An Apportioned Wealth Tax Today At Boston College

Donald Tobin (Maryland; Google Scholar) presents Have your Cake and Eat it Too, An Apportioned Wealth Tax at Boston College today as part of its Tax Policy Collaborative hosted by Diane Ring:

As economic inequality in the United States becomes more extreme, there are increased calls for raising taxes on the wealthiest Americans. Some proposals seek to tax the wealthy by taxing the increase in the value of capital assets or by taxing wealth. While Congress’s taxing power is extremely broad, opponents of these tax proposals argue that these proposals are unconstitutional and are not within Congress’ taxing power. These arguments rest on the notion that Congress’ taxing power is constrained by provisions in the Constitution requiring the apportionment of direct taxes. Opponents argue that a tax on the increase in the value of capital assets or on wealth is a direct tax and that classification of a tax as a direct tax either dooms its constitutionality (if it is not apportioned) or practicality (if it is).

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Speck: Zoom As An In-Person Learning Platform

Sloan Speck (Colorado; Google Scholar), Zoom as an In-Person Learning Platform, 99 N.D. L. Rev. 627 (2024):

During the COVID-19 pandemic, an unprecedented shift to remote learning spurred many legal educators to reassess their pedagogical norms and practices. These reassessments were enabled, in part, by the widespread adoption and acceptance of videoconferencing software, most notably Zoom, that accelerated from March of 2020. Zoom's catalytic effect on pedagogy belies the fact that no single aspect of Zoom, by itself, is particularly pathbreaking. What is revolutionary, however, is how Zoom bundles diverse functionalities into a coherent package.

By recasting Zoom as a bundle of classroom functionalities—as an in-person learning platform—this Article presents a novel use case for Zoom in legal education, distinct from the software's role in remote synchronous instruction.

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Next Week’s Tax Workshops

Tuesday, October 8: Diane M. Ring (Boston College; Google Scholar) will present The Conflictual Core of Global Tax Corporation (with Shu-Yi Oei (Duke; Google Scholar)) as part of the UC-Irvine Current Issues in Tax Law & Policy Colloquium Speaker Series. If you would like to attend, please RSVP here. 

Tuesday, October 8: Manasi Deshpande (Chicago) will present The (Lack of) Anticipatory Effects of the Social Safety Net on Human Capital Investment (with Rebecca Dizon-Ross (Chicago; Google Scholar)) as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro. 

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Schaffa: Reimagining The Deduction For Employee Compensation

Daniel Schaffa (Richmond; Google Scholar), Reimagining the Deduction for Employee Compensation, 57 U. Mich. J.L. Reform 417 (2024): 

U.S. businesses pay trillions of dollars in employee compensation, a substantial fraction of which is deductible for tax purposes. This deduction reduces the taxable income of businesses, ultimately lowering business tax burdens by hundreds of billions of dollars. With a few exceptions, the tax code confers the same deduction to a business for every dollar of employee compensation, regardless of whether that compensation goes to an employee earning millions or an employee earning minimum wage. This is consistent with a pure Haig-Simons income tax, under which any business expense incurred ought to be deductible dollar-for-dollar. But many, if not most, tax policy objectives are inconsistent with a pure income tax, and the U.S. tax code is accordingly replete with substantial deviations from a pure income tax.

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2025 Hourly Billing Rates For Elite Law Firms: $3,000 For Senior Partners, $1,000 For First Year Associates

Daily Business Review, Senior Partners Approach $3,000 an Hour, As More Billing Rate Hikes Expected in 2025:

Some Am Law 50 firms will increase billing rates substantially in 2025, with expectations that some senior partners will approach $3,000 an hour and more associates will bill over $1,000 an hour. ...

According to data from Valeo Partners, which analyzes public disclosure documents to discern upcoming rate changes, senior partners at "a few firms" will have standard rates approaching $3,000, and a few might exceed that marker. ...

For associates, rate increases will be more notable among third-years. Currently, 16 of the Am Law 50 firms have third-year associates with rates over $1,000, but Valeo projects around half of the Am Law 50 to have rates of over $1,000 amongst this group by 2025.

Billing rates for first-year associates are approaching $1,000 at a handful of firms, with Paul, Weiss, Rifkind, Wharton & Garrison charging a minimum of $895 for associates in 2024, bankruptcy records show. Sullivan & Cromwell charges nearly as much—$850 hourly—for first-years.

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Section 1031 Offramps: Incentives For Small Investors To Sell Single-Family Rental Homes

Jack Wroldsen (Cal Poly), 1031 Offramps: Incentives for Small Investors to Sell Single-Family Rental Homes, 27 N.Y.U. J. Legis. & Pub. Pol'y ___ (2025): 

It has never been so expensive to purchase a single-family home. Multiple interrelated causes headline the affordability crisis, such as historically low interest rates that suddenly spiked higher, ongoing population growth, a decade of historic underbuilding of starter homes after the Great Recession, and Wall Street's unprecedented new business model of purchasing single-family rental homes (SFRs) in concentrated areas across the country.

Yet, while those contributing causes fluctuate over time, a more structural and long-lasting factor has remained unexamined in the current crisis: the lock-in effect that arises from Section 1031 of the Internal Revenue Code. The 1031 lock-in powerfully impacts the single-family home market because, on the one hand, Section 1031 incentivizes investors to buy SFRs, and, on the other hand, it strongly disincentivizes investors from selling SFRs before death.

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Critics Say Cutting 'Race And Ethnicity' From ABA Law School Diversity Accreditation Standard Goes Too Far

Reuters, Cutting 'Race and Ethnicity' From ABA's Law School Diversity Rules Goes Too Far, Critics Say:

Eliminating the terms “race and ethnicity” from the American Bar Association’s law school accreditation rules will hobble longstanding efforts to bring in diverse students and faculty, critics warned in public comments on the proposal.

Among the groups opposing a proposed revision of what is currently called the ABA's “diversity and inclusion” standard are legal education heavyweights including the Law School Admission Council; the Society of American Law Teachers; the NAACP Legal Defense and Educational Fund; and a coalition of 44 law school deans.

The ABA, which sets accreditation standards for 197 law schools in the U.S., currently requires law schools to provide “full opportunities” for “racial and ethnic minorities” and have a diverse student body “with respect to gender, race, and ethnicity.”

The proposed new standard—renamed the “access to legal education and the profession” standard—eliminates references to race, ethnicity and gender and instead requires law schools to provide access to “persons including those with identities that historically have been disadvantaged or excluded from the legal profession.” ...

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Chodorow: Saban, Pope, And The Benefits Theory Of Taxation

Adam Chodorow (Arizona State; Google Scholar), Saban, Pope, and the Benefits Theory of Taxation: 

As a condition for receiving federal highway funding, Congress requires states to spend the revenues they raise from road users on the roads. Congress justified this condition, in part, because wanted federal money to supplement—not replace—state money and, in part, on fairness grounds, essentially endorsing the benefits theory of taxation, under which taxes can be justified based on the benefits taxpayers receive. To safeguard these federal funds and prevent legislatures from using road use revenues for other purposes, most states added anti-diversion provisions to their constitutions. A majority specifically identified the taxes their anti-diversion provisions would cover. However, a few—including Ohio and Arizona—adopted broad language providing that revenues from “fees, excises, or license taxes relating to registration, operation, or use of vehicles on the public highways or streets” be spent on the roads.

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BYU Law School Dean Contributed To Project 2025 — And Then Later Had His Name Removed

Salt Lake City Tribune, BYU Law School Dean Contributed to Project 2025 — and Then Later Had His Name Removed:

The dean of Brigham Young University’s law school, David Moore, was listed as a contributor on Project 2025 until earlier this summer, when Moore asked to have his name removed from the controversial blueprint created in the event former President Donald Trump is elected to a second term.

Lynnett Rands, dean of communications at BYU’s J. Reuben Clark Law School, said Moore was asked in 2022 to share his insights with The Heritage Foundation, which created Project 2025, because of his experience working for the U.S. Agency for International Development. Moore was the acting deputy administrator and general counsel at USAID from 2017 to 2019.

“He did not do so on behalf of Brigham Young University,” Rands said of the dean. “As such, Moore, after becoming dean of the law school, asked that his name not be included, in accordance with BYU’s political neutrality policy.”

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García: Taxing Collusion

Kristelia García (Georgetown; Google Scholar), Taxing Collusion (JOTWELL) (reviewing Rachel Landy (Cardozo), Downstreaming, 65 B.C. L. Rev. __ (2024)): 

Commentators have long raised the alarm about over-consolidation in the entertainment industries and the resulting barriers to entry seen in the downstream market. One line of scholarship identifies copyright law as a lever that policymakers might use to promote new entry into the copyright industries. Another looks to antitrust law to alternately break up, or prevent, over-consolidation. Some scholars have suggested utilizing both copyright and antitrust. Still others, myself among them, have expressed skepticism in the ability of either copyright or antitrust to effectively remedy the problem, and instead hope to borrow regulatory ideas from other contexts.

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Law Firm Reactions To Campus Protests May Chill DEI Efforts

Law360, Law Firm Reactions To Campus Protests May Chill DEI Efforts:

Nearly a year has passed since university campus protests began over a devastating humanitarian crisis in Gaza, and the reaction of law firms may be unintentionally creating a chilling effect on diversity in the legal field.

Last fall, several of the nation's most prestigious law firms sent a letter to law school deans expressing concerns over campuswide protests and sentiments related to the ongoing conflict, and some firms rescinded job offers from Ivy League students who expressed critical views of Israel following the events of Oct. 7, 2023.

In July of this year, Joseph C. Shenker, senior chair of Sullivan & Cromwell LLP, seemed to suggest in an interview with The New York Times that involvement in protests related to Palestine or Gaza, whether on campus or off, might be considered a factor in evaluating candidates.

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Haneman: Taxing Dirty Luxuries

Victoria J. Haneman (Creighton; Google Scholar), Taxing Dirty Luxuries, 56 Case W. Res. J. Int’l L. 197 (2024):

Dirty luxuries are items that are pleasant or nice to have, not necessities, that absolutely bludgeon the environment. From the merely affluent to the ultra-rich, consumers enjoying dirty luxuries, such as luxury clothing, private jets, superyachts, SUVs, and vacation cruises, drive one of the most polluting types of consumption on the planet. This Article explores the climate costs of dirty luxuries, considers the current and proposed international efforts to address the climate impact of these luxuries, and proposes structures by which these luxuries may be taxed to either reduce consumption or compensate for negative externalities.

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AALS Statements Of Good Practices For Faculty Recruitment, Hiring, Retention, And Resignation

The AALS has adopted these Statements of Good Practices for AALS membership, law faculty and other law school practices:

• Recruitment and Hiring of Entry-Level Faculty Members [Amended May 11, 2023]
• Recruitment and Retention of Minority Law Faculty Members [Amended May 11, 2023]
• Recruitment of and Resignation by Full-time Faculty Members [Amended February 25, 2019]
• Law Professors in the Discharge of Their Ethical and Professional Responsibilities [Amended May 24, 2024]

Brian Leiter (Chicago), The New Timetable of the Law School Hiring Market:

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LSU Seeks To Hire A Clinical Tax Prof

LSU Law, Faculty Posting: 

The LSU Paul M. Hebert Law Center seeks to hire a faculty member to develop, implement, teach, and serve as director for our new Low Income Taxpayer Clinic (“LITC”). The position will be a twelve-month appointment with the possibility of renewal. The LITC will be a new offering in our robust clinical program. The LITC Clinic will serve low income taxpayers in a variety of disputes with the Internal Revenue Service. 

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California Bar Examiners Endorse Switch To Kaplan Exam; Ball Is Back In Supreme Court's Court

The Recorder, California Bar Examiners Endorse Switch to Kaplan Exam:

A state bar committee on Monday endorsed plans to use a Kaplan-written multiple choice test on the February 2025 bar exam, paving the way for the California Supreme Court to give the proposal a fresh review.

The 10-0 vote by the Committee of Bar Examiners authorizes state bar staff to resubmit a petition, with its members' imprimatur, that the high court rejected on Sept. 18. In a two-sentence docket entry, the justices said any request to switch test-writing vendors and to rely heavily on remote testing during future exams had to be "considered and approved" by the committee that oversees bar admissions and not just the bar's board of trustees.

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Lawsky Presents Limiting Languages For Tax Law Today At UC-San Francisco

Sarah Lawsky (Northwestern; Google Scholar) presents Limiting Languages for Tax Law at UC-San Francisco today as part of its 2024 Tax Speaker Series hosted by Heather Field:

Inconsistencies and contradictions play drastically different roles in law and in logic, respectively, and programming languages designed to code law should therefore, to the extent possible, be designed to prevent the encoding of inconsistencies. Programming languages should be limited not because such inconsistencies do not exist in the statute, but rather exactly because they do. Inconsistencies in the law should, as they are now, be addressed by Congress, the courts, and administrative agencies, and any computer code implementing the law should represent the law as detangled by the relevant branch of government. The article provides an example of a tax statute that mandates inconsistent outcomes for the same set of facts and shows how that inconsistency has been addressed by Treasury and the IRS. The article establishes the inconsistency in part by using an automated theorem prover. 

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Lat: Ambitious Law Students Must Choose To Be On ‘Team Blue’ Or ‘Team Red’

David Lat (Original Jurisdiction), Asked And Answered: Should I Join FedSoc?:

In this day and age, ambitious law students and young lawyers need to pick a ‘team’—which might be unfortunate, but is the reality.

Welcome to the latest installment of my advice column here at Original Jurisdiction, Asked and Answered. If you have a question for a future edition of A&A, please email me at davidlat at substack dot com, subject line “Asked and Answered: [your topic].”

With the new school year ramping up, today’s request for advice is timely:

Dear A&A,

I’m a 1L at a T14 law school, and I’m writing to ask for your thoughts on whether I, an originalism- and textualism-attracted individual, should join the Federalist Society, given (1) its already-existing reputation among the political left, (2) its seemingly evolving reputation among segments of the right, and (3) the general increase in political polarization and tensions on campuses. I want to join the Federalist Society, but I worry that joining may (1) alienate me from some classmates and (2) harm future job or clerkship prospects.

So what say you: Is FedSoc still the place to go for law students interested in originalism and textualism? Or have increased campus tensions and negative media stories on the Supreme Court and FedSoc sufficiently raised the downsides of joining that you would advise against it? I suspect similar questions may be on many 1L students’ minds right now. 

Sincerely yours,
Faint-hearted FedSoc-er ...

I believe that he should join FedSoc (emphasis mine)—unless there’s a good reason not to join, to which I now turn.

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Tax Expenditures And Horizontal Equity: A Present-Day Reassessment

Nir Fishbien (Michigan; Google Scholar), Tax Expenditures and Horizontal Equity: A Present-Day Reassessment, 28 Chap. L. Rev. ___ (2025):

Tax expenditures are “revenue losses attributable to provisions of the Federal tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability.” The concept of tax expenditures was coined by the first Assistant Secretary for Tax Policy, Stanley S. Surrey, in the late 1960s, and was codified by the Congressional Budget Act of 1974, which requires that a list of tax expenditures be included in the U.S. budget. The concept relies on the Haig-Simons definition of income (with certain adjustments) as the baseline, a deviation from which is considered a tax expenditure.

There are two basic problems with attempts to define tax expenditures against a Haig-Simons baseline. First, it is not clear why the Haig-Simons, and not other definitions of income, should be used as a baseline. Second, it is not clear why such deviations are normatively problematic. Put bluntly, who cares whether a specific tax provision is a deviation from some theoretical definition of income?

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Projected 2025-26 U.S. News Law School Rankings: 1-11

In May, I blogged Derek Muller's Projected 2025-26 U.S. News Law School Rankings for the Top 100 law schools. Last week, Mike Spivey published projected rankings for the Top 11 law schools. The table below shows the differences between the two models for the Top 11 schools:

Law School	2024-25 Rank	Muller Projected 2025-26 Rank	Spivey Projected 2025-26 Rank
Stanford	1	1	1
Yale	1	3	2
Chicago	3	2	3
Duke	4	7	7
Harvard	4	5	4
Penn	4	5	4
Virginia	4	3	4
Columbia	8	9	8
Michigan	9	7	8
Northwestern	9	9	8
NYU	9	9	8

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Queen's University Seeks To Hire An Entry Level Or Lateral Tax Prof

Queen's University Law, Tax Law Faculty Position: 

The Faculty of Law at Queen’s University invites applications for a tenure-track faculty position at the rank of Assistant Professor, or tenured faculty position at the rank of Associate Professor, with a specialization in Tax Law. The successful applicant will be the inaugural Faculty of Law Scholar in Tax Law.  

The Faculty of Law seeks scholars who are or have the potential to become nationally and internationally recognized for their work. Except in exceptional circumstances, the successful candidate will have a JD or equivalent and a graduate degree in law or within a cognate discipline. The main criteria for selection are academic and teaching excellence. The successful candidate will provide evidence of high-quality scholarly output that demonstrates a history of, and potential for independent research with a track record of peer assessed publications in top journals and the securing of external research funding, as well as strong potential for outstanding teaching contributions at both the JD/LLB and graduate levels, and an ongoing commitment to academic and pedagogical excellence in support of the Faculty of Law’s programs. Candidates must provide evidence of an ability to work collaboratively in an interdisciplinary and student-centred environment. The successful candidate will also be expected to make contributions through service to the Faculty, the University, and/or the broader community. Salary will be commensurate with qualifications and experience.

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Are Colleges (And Law Schools) Getting Disability Accommodations All Wrong?

Chronicle of Higher Education Op-Ed:  Are Colleges Getting Disability Accommodations All Wrong?, by Alan Levinovitz (James Madison; Google Scholar):

Disability accommodations in American higher education are skyrocketing. In the past decade, the proportion of colleges with more than 10 percent of students registered as disabled has quintupled, and accommodation requests have followed the same pattern. Despite increased staff and resources, disability-service providers are overwhelmed, and it’s common for a single staff member to be tasked with serving 500 students. Faculty are also reporting increased workloads as they find themselves continually adjusting teaching and assessment practices.

Providing an accessible education to everyone is a crucial civil-rights issue, one that went unaddressed in this country for far too long. Discrimination against people with disabilities was standard practice until the introduction of legal protections like Section 504 of the Rehabilitation Act in 1973 and the Americans With Disabilities Act (ADA) in 1990. Without these protections, blind students would have no recourse if their community college failed to provide accessible versions of textbooks and library materials, and deaf students participating in online classes would not be entitled to closed-captioning. Even with robust laws in place, disabilities are frequently missed or dismissed, a problem compounded by racial and socioeconomic disparities.

Concern about the validity of surging accommodation requests may therefore seem misplaced. To a certain extent, the trend is a positive development: the product of increased awareness, better screening practices, and less institutional discrimination. We should worry about students’ rising rates of mental-health disorders, many disability advocates say, not the willingness of colleges to accommodate them.

However, a suite of acute, well-documented problems with disability accommodations demand attention. The data is clear, for instance, that a significant minority of diagnoses are fraudulent or mistaken. In many cases, there is no empirical basis for granting common accommodation requests like extended time or distraction-free testing. And there is further evidence that the current state of disability accommodation compounds inequities in student achievement, rather than alleviating them.

Students and instructors are rightfully concerned about fairness and compromised rigor. Resources are being misallocated to unproven interventions and students who don’t need them. Worst of all, the interventions may be harming some of the students they are intended to help, exacerbating their mental-health problems and setting them up for a lifetime of struggle.

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The 10 Most-Cited Tax Faculty

Following up on last month's post, The Most-Cited Tax Faculty At The 64 Most-Cited Law Schools:  Brian Leiter (Chicago) has updated his ranking of the Ten Most-Cited Tax Faculty to now cover the 2019-2023 period (see prior most-cited tax faculty rankings: 2000-2007, 2005-2010, 2009-2013, 2010-2014, 2013-2017, 2016-2020):

Rank	Name	School	Citations	Age
1	Reuven Avi-Yonah	Michigan	400	67
2	David Weisbach	Chicago	250	61
	Daniel Shaviro	NYU	250	67
4	Dorothy Brown	Georgetown	240	65
	Lawrence Zelenak	Duke	240	66
6	David Gamage	Missouri-Columbia	230	46
7	Darien Shanske	UC-Davis	220	50
8	Anne Alstott	Yale	200	61
9	Lily Batchelder	NYU	190	51
	Victor Fleischer	UC-Irvine	190	53

Leiter also lists five highly-cited scholars who work partly in tax:

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Legal Ed News Roundup

• ABA Journal, Assisting Native American and Indigenous Law Students Requires Confronting the Challenges They Face
• ABA Journal, Penn Law Prof Gets Half-Pay Suspension For ‘Discriminatory And Disparaging Statements’
• ABC News, University Imposes a One-Year Suspension on Law Professor Over Comments on Race
• Above the Law, Student Accepted To Top Law School With Full Ride Sentenced In January 6th Case
• Bloomberg Law, Monster Bid to Block Trademark Survives as Law School Rebuffed
• Daily Business Review, Ex-St. Thomas Univ. Law Professor Sues School Over Firing, Alleging Defamation
• Daily Caller, The Amy Wax Inflection Point For ‘Elite’ Higher Education
• Daily Report, Dean of Atlanta's John Marshall Law School Stepping Down After Four Years

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Bearer-Friend: Paying For Reparations—How To Capitalize A Multi-Trillion Reparations Fund

Jeremy Bearer-Friend (George Washington; Google Scholar), Paying for Reparations: How to Capitalize a Multi-Trillion Reparations Fund, 67 How. L.J. 1 (2024):

This Article proposes a novel approach to capitalizing a reparations fund worth trillions of dollars. Under the proposal, publicly-traded firms on U.S. exchanges would be required to remit shares of corporate equity to a reparations trust fund in lieu of cash tax payments. Under the terms of this proposal, our federal government could successfully capitalize a multi-trillion reparations fund in less than a year.

The primary contribution of this Article is to offer a unique financing structure for reparations—a national effort expected by all estimates to require trillions of dollars. The Article describes the features of the in-kind tax proposal, the myriad design choices that would be necessary to ensure effective implementation, and its analogs in the private sector for capitalizing a fund. The Article also evaluates the limitations of an in-kind tax proposal, ultimately concluding that in-kind remittance remains preferable to other tax policy options.

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Protesters Force UC-Berkeley FedSoc Event On Judicial Reform in Israel To Shift Online; Dean Chemerinsky To Pursue Disciplinary Action Against Disruptive Students

Update:  David Lat, Protesters Disrupt An Event At A Top Law School

Jewish News of Northern California, Architect of Israeli Judicial Coup Hounded Off Stage by Unusual Mix of Protesters at Berkeley:

Simcha Rothman, a member of Knesset and a key architect of the Israeli judicial coup, flew all the way to Northern California to drum up support for his contentious plan only to be driven off the stage within minutes by an unusual mix of Israeli and pro-Palestinian protesters.

Chairman of the Knesset Constitution, Law and Justice Committee, Rothman had been invited to present the plan at an event hosted Tuesday by the Federalist Society, a conservative legal organization, at Berkeley Law School. ...

The talk was titled “Restoring Democracy: The Debate Over Judicial Reform in Israel.” Rothman is a member of the far-right Religious Zionism party. ,,,

A representative of the law school opened the event by reciting a “civility statement” and emphasizing the importance of “respectful speech.” ...

Rothman was joined on the stage for a conversation with Joshua Kleinfeld, a professor of law at George Mason University and a member of the Federalist Society. ...

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WSJ: A Tax-Shelter Crackdown Uncovers A Dentist’s ‘Smile High Trust’

Wall Street Journal Tax Report, A Tax-Shelter Crackdown Uncovers a Dentist’s ‘Smile High Trust’:

Ryan Ulibarri, a family dentist in Fort Collins, Colo., is in tax trouble that could take a big bite of his time and money [Department of Justice Press Release].

In late August, a Denver grand jury indicted him on six criminal counts for using an “abusive-trust tax shelter” to hide more than $3.5 million of taxable income he earned from 2017 to 2022. He allegedly underpaid more than $1 million of tax over that period.

Now Ulibarri could go to prison for tax evasion, and he could also owe the Internal Revenue Service unpaid taxes plus interest and penalties. Ulibarri, who earlier this month pleaded not guilty to the government’s charges, declined to comment through his lawyer, Joshua Lowther of Lowther Walker. 

While most Americans aren’t in the market for tax shelters, the allegations in this case are a reminder of what can happen when taxpayers ignore professional advice and common sense on taxes. They also show how easy it can be for people who want to slash their taxes to delude themselves.

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July 2024 Florida Bar Exam Results: For The First Time In Ten Years, Florida International Is Not #1

The July 2024 Florida bar passage rates by school are out. For the first time in ten years, Florida International not is #1—they are #2 by 0.1 percentage point. Here are the results for the 12 Florida law schools, along with each school's U.S. News ranking (Florida and overall):

Bar Pass Rank (Rate)	School	US News Rank FL (Overall)
1 (90.6%)	Florida	1 (28)
2 (90.5%)	Florida Int'l	3 (68)
3 (87.4%)	Florida State	2 (48)
4 (85.1%)	Miami	4 (82)
5 (83.0%)	St. Thomas	7 (172)
6 (77.9%)	Stetson	5 (98)
7 (75.3%)	Barry	Tier 2
8 (71.6%)	Nova	Tier 2
9 (71.4%)	Ave Maria	6 (161)
10 (67.2%)	Florida A&M	Tier 2
11 (51.6%)	Thomas Cooley	Tier 2
12 (0.0%)	Florida Coastal	N/R

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TaxProf Blog Weekend Roundup

Saturday:

• Tax Whistleblowers Receive $74m Of $263m Recovery; IRS Plans 170% Increase In Whistleblower Office Staff
• King & Spalding Fights Bias Suit By Straight, White Female Over Summer Associate Diversity Fellowship Program
• This Week's Ten Most Popular TaxProf Blog Posts

Sunday:

• The Top Five New Tax Papers
• NY Times Op-Ed: A Princeton Professor’s Advice To Young Conservatives
• Trump Says He's Thinking More About God After Recent Assassination Attempts
• NY Times: In A First Among Christians, Young Men Are More Religious Than Young Women
• The Great Unfinished Pepperdine Caruso Law Symphony

The Great Unfinished Pepperdine Caruso Law Symphony

I had the honor of speaking at our annual Pepperdine Caruso Law School Dinner last Saturday night at the Fairmont Century Plaza in Los Angeles:

I previously blogged about the daily challenge I face Deaning While Stuttering. I am deeply grateful that my university and law school community continue to embrace me and overlook my shortcomings.

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NY Times: In A First Among Christians, Young Men Are More Religious Than Young Women

New York Times, In a First Among Christians, Young Men Are More Religious Than Young Women, by Ruth Graham:

At Grace Church in Waco, Texas, the Generation Z gender divide can be seen in the pews. It has the potential to reshape both politics and family life.

On a beautiful Sunday morning in early September, dozens of young men in Waco, Texas, started their day at Grace Church.

Men greeted visitors at the door, manned the information table and handed out bulletins. Four of the five musicians onstage were men. So was the pastor who delivered the sermon and most of the college students packing the first few rows.

“I’m so grateful for this church,” Ryan Amodei, 28, told the congregation before a second pastor, Buck Rogers, baptized him in a tank of water in the sanctuary.

Grace Church, a Southern Baptist congregation, has not made a conscious effort to attract young men. It is an unremarkable size, and is in many ways an ordinary evangelical church. Yet its leaders have noticed for several years now that young men outnumber young women in their pews. When the church opened a small outpost in the nearby town of Robinson last year, 12 of the 16 young people regularly attending were men.

“We’ve been talking about it from the beginning,” said Phil Barnes, a pastor at that congregation, Hope Church. “What’s the Lord doing? Why is he sending us all of these young men?”

The dynamics at Grace are a dramatic example of an emerging truth: For the first time in modern American history, young men are now more religious than their female peers. They attend services more often and are more likely to identify as religious.

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