Brunson: Using A Pigouvian Tax To Reduce Gun Violence

Sam Brunson (Loyola-Chicago), Paying For Gun Violence, 104 Minn. L. Rev. 605 (2019) (reviewed by David Elkins (Netanya) here):

Gun violence is an outsized problem in the United States. Between a culture that allows for relatively unconstrained firearm ownership and a constitutional provision that ensures that ownership will continue to be relatively unchecked, it has proven virtually impossible for politicians to address the problem of gun violence. And yet, gun violence costs the United States tens of billions of dollars or more annually. These tens of billions of dollars are negative externalities—costs that gun owners do not bear themselves, and thus that are imposed on the victims of violence and on taxpayers generally.

What can we do about these costs? One way to reduce them would be to pass meaningful laws, laws that would reduce the likelihood of gun violence. In light of both the culture and the Constitution of the United States, though, such legislation seems improbable. Lawmakers face significant limitations on their ability to regulate firearms directly. If they cannot prevent gun violence, though, they can at least cause gun owners to internalize the costs. Where direct regulation is difficult, they can turn instead to a Pigouvian tax.

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D.C. Is Fifth Jurisdiction To Adopt Diploma Privilege During COVID-19

Karen Sloan (Law.com), District of Columbia Adopts Diploma Privilege in Bar Exam's 11th Hour:

The District of Columbia Court of Appeals on Thursday adopted a diploma privilege program that will allow recent law graduates to be admitted to practice without taking the bar exam, provided they practice under the supervision of a local attorney for three years.

That makes Washington, D.C., the fifth jurisdiction to create a pathway into the profession that bypasses the bar exam amid the COVID-19 pandemic. Utah, Washington, Oregon, and Louisiana have already taken similar measures.

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Seattle Is Eleventh Law School To Offer Hybrid Online J.D.

Seattle University School of Law, Flex JD Program: The Best of Both Worlds:

Seattle U Law’s new part-time hybrid-online JD program, starting fall 2021*, will prepare you to become a practicing attorney
*Pending ABA acquiescence

Why choose Flex JD?

A flexible format that fits your busy life

Complete most coursework online through an innovative hybrid online format, providing maximum schedule flexibility for students with work and family commitments.

Connect with classmates during limited campus visits

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California Supreme Court Rejects Emergency Diploma Privilege For Law School Graduates During COVID-19

In Re Temporary Waiver of the Bar Exam Requirement For Admission to the State Bar of California and Provision of Emergency Diploma Privilege, No S264358 (Cal. Sept. 23, 2020):

The court has considered petitioners' request for an emergency order waiving the California bar examination requirement for admission to the practice of law and granting immediate diploma privilege admission to applicants who have graduated from law school with either a J.D. or an LL.M degree; who are currently registered for the October 2020 California Bar Examination; and who otherwise meet all qualifications for admission to the State Bar of California. The request is denied.

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Zelenak: Examining The Internal Revenue Code For Disparate Racial Impacts

Lawrence Zelenak (Duke), Examining the Internal Revenue Code for Disparate Racial Impacts, 168 Tax Notes Fed. 1807 (Sept. 7, 2020):

In this article, Zelenak considers how a legislature committed to racial justice should respond to a convincing statistical demonstration that a particular provision of the Internal Revenue Code has disparate racial impacts. He says there are several steps between a demonstration that a provision (for example, the charitable deduction) disproportionately benefits white taxpayers in nominal terms, and the conclusion that it should be repealed or reformed to eliminate the disparate impact. He argues it is necessary (1) to establish a normative baseline from which the current provision departs, (2) to determine the race-based distribution of the ultimate benefits and burdens of the provision (as contrasted with the provision’s nominal impacts), and (3) to determine that a focus on the provision (rather than a broader or narrower focus) is at an appropriate level of analytical granularity. He concludes that the most important use of evidence of disparate racial impacts of tax provisions will almost certainly be as an argument for repealing or reforming a provision that constitutes bad tax policy even apart from its racial effects.

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Tax Prof Twitter Census (2020-21 Edition)

According to Bridget Crawford's latest census, there are 1,368 Law Profs on Twitter (55.4% male/44.5% female), including 85 Tax Profs (several with tax in their Twitter handles):

• @AdamThimmesch (Adam Thimmesch, Nebraska)
• @AjayKMehrotra (Ajay Mehrotra, Northwestern)
• @ajurowkleiman (Ariel Jurow Kleiman, San Diego)
• @andygrewal (Andy Grewal, Iowa)
• @AriGlogower (Ari Glogower, Ohio State)
• @ArthurEshiwani (Arthur Eshiwanti, Nairobi)
• @AshritaPrasad (Ashrita Prasad, OP Jindal Global Univ.)
• @at_hayashi (Andrew Hayashi, Virginia)
• @AusTaxProf (Miranda Stewart, Melbourne)
• @bearerfriend (Jeremy Bearer-Friend, George Washington)
• @benmosesleff (Benjamin Leff, American)
• @book_leslie (Leslie Book, Villanova)
• @ChanceyGardener ‏(Allen Madison, South Dakota)
• @ChristineYR_Kim (Christine Kim, Utah)
• @clintwallace (Clint Wallace, South Carolina)
• @cryptolawprof (Del Wright Jr., Missouri-Kansas City)
• @DanielJHemel (Daniel Hemel, Chicago)
• @DanielShaviro (Daniel Shaviro, NYU)
• @david_hasen (David Hasen, Florida)
• @davidckamin (David Kamin, NYU)
• @davidsgamage (David Gamage, Indiana-Maurer)
• @deathntaxesprof (Goldburn Maynard, Indiana University Business School)
• @delaFeriaR (Rita de la Feria, Leeds)
• @DorothyABrown (Dorothy Brown, Emory)

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Madison: Legal Education's Waterloo — Urgency, The Fire Swamp, And The End Game

Following up on my previous post, Legal Education Faces Its Waterloo As Wile E. Coyote:

Mike Madison (Pittsburgh), Legal Education’s Waterloo: Urgency:

Just about every provost in the US, just about every law dean, just about every former law dean, just about every would-be law dean, and a growing number of “regular” law professors know that the financial jig is up. At most law schools, student tuition dollars total nowhere near the amount needed to pay the school’s operating expenses. At a few law schools, endowments and real estate portfolios help a lot. At many, parent universities cover some and even much of the budget. University piggy banks and patience may be running thin. Legal education is far from the only part of the university that struggles to pay its bills. It’s often a smallish part, and in research universities, it rarely brings in many research dollars. ...

Mike Madison (Pittsburgh), Legal Education’s Waterloo: The Fire Swamp:

TL/DR [Too Long/Didn't Read] version: Strap in. Change is going to be messy, maybe ugly, and no one has a game plan for it or for you – practitioners, judges, academics, students and new graduates, entrepreneurs. Least of all me. It’s like the fire swamp, from The Princess Bride. Survive it? You’re only skeptical because no one ever has. ...

The challenge now is that there are at least three stories competing for the future of law. Pick the right story, and you may do better. Pick the wrong story, and you may do worse. Which is which? Welcome to the awkward, messy, and ugly middle space.

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Welcome To The ‘Turbulent Twenties’

Jack A. Goldstone (George Mason) & Peter Turchin (Connecticut), Welcome To The ‘Turbulent Twenties’:

Almost three decades ago, one of us, Jack Goldstone, published a simple model to determine a country’s vulnerability to political crisis. The model was based on how population changes shifted state, elite and popular behavior. Goldstone argued that, according to this Demographic-Structural Theory, in the 21st century, America was likely to get a populist, America-first leader who would sow a whirlwind of conflict.

Then ten years ago, the other of us, Peter Turchin, applied Goldstone’s model to U.S. history, using current data. What emerged was alarming: The U.S. was heading toward the highest level of vulnerability to political crisis seen in this country in over a hundred years. Even before Trump was elected, Turchin published his prediction that the U.S. was headed for the “Turbulent Twenties,” forecasting a period of growing instability in the United States and western Europe.

Given the Black Lives Matter protests and cascading clashes between competing armed factions in cities across the United States, from Portland, Oregon to Kenosha, Wisconsin, we are already well on our way there. But worse likely lies ahead.

Our model is based on the fact that across history, what creates the risk of political instability is the behavior of elites, who all too often react to long-term increases in population by committing three cardinal sins.

First, faced with a surge of labor that dampens growth in wages and productivity, elites seek to take a larger portion of economic gains for themselves, driving up inequality.

Second, facing greater competition for elite wealth and status, they tighten up the path to mobility to favor themselves and their progeny. For example, in an increasingly meritocratic society, elites could keep places at top universities limited and raise the entry requirements and costs in ways that favor the children of those who had already succeeded.

Third, anxious to hold on to their rising fortunes, they do all they can to resist taxation of their wealth and profits, even if that means starving the government of needed revenues, leading to decaying infrastructure, declining public services and fast-rising government debts.

Such selfish elites lead the way to revolutions. They create simmering conditions of greater inequality and declining effectiveness of, and respect for, government. But their actions alone are not sufficient. Urbanization and greater education are needed to create concentrations of aware and organized groups in the populace who can mobilize and act for change. ...

In applying our model to the U.S., we tracked a number of indicators of popular well-being, inequality and political polarization, all the way from 1800 to the present. These included the ratio of median workers’ wages to GDP per capita, life expectancy, the number of new millionaires and their influence on politics, the degree of strict party-line voting in Congress, and the incidence of deadly riots, terrorism and political assassinations. We found that all of these indicators pointed to two broad cycles in U.S. history. ...

Writing in the journal Nature in 2010, we pointed out that such trends were a reliable indicator of looming political instability and that they “look set to peak in the years around 2020.” In Ages of Discord, published early in 2016, we showed that America’s “political stress indicator” had turned up sharply in recent years and was on track to send us into the “Turbulent Twenties.”

The Political Stress Index (PSI) combines the three crisis indicators in the Goldstone-Turchin theory: declining living standards, increasing intra-elite competition/conflict and a weakening state. Growing PSI indicates increased likelihood of political violence. The Well-Being Index indicates greater equality, greater elite consensus and a more legitimate state.

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Bearer-Friend Presents Should The IRS Know Your Race? The Challenge Of Colorblind Tax Data Virtually Today At UC-Irvine

Jeremy Bearer-Friend (George Washington) presents Should the IRS Know Your Race? The Challenge of Colorblind Tax Data, 73 Tax L. Rev. (2019), virtually at UC-Irvine today as part of its Tax Policy Colloquium Series hosted by Joshua Blank, Victor Fleischer, and Omri Marian:

This Article draws from original archival sources to document a century of colorblindness in federal tax data. It traces the omission of race and ethnicity from IRS statistical publications since 1913, Joint Committee on Taxation publications since 1926, and Treasury Office of Tax Analysis publications since 1974. It shows how these omissions are exceptional relative to other areas of public policy where federal data on race and ethnicity are readily available, such as student achievement or healthcare exchange enrollments. It then evaluates the merits of colorblind tax data and argues that tax data should include race and ethnicity in order to meet goals of transparency, democracy, and equality. Colorblind tax data obscure racial inequality and prevent its remedy. Colorblind tax data also undermine the democratic accountability of tax policy. In fairness to the status quo practice of colorblindness by federal tax data institutions, this Article also considers whether the possible justifications for colorblind tax data should override principles of equality and transparency. It argues they should not.

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Buchanan Presents Confessions Of A Recovering Economist Virtually Today At Oregon

Neil Buchanan (Florida) presents Confessions of a Recovering Economist virtually at Oregon today as part of its Tax Policy Colloquium Series hosted by Roberta Mann:

Tax law scholars, and legal scholars in general, have over the past few decades shown increasing deference to what is sometimes called "the economic approach to law." Interdisciplinary approaches to law are to be welcomed, of course, but the economic approach has crowded out other approaches, because far too many legal scholars (and economists) presume that economic analyses are correct, rigorous, and most importantly, objective. Whether or not those analyses are correct can only be determined on a case-by-case basis, while their supposed rigor confuses "doing a lot of math" with being precise in a meaningful way. Most importantly, however, these approaches are not and can never be objective. 

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92% Of Law Schools Weigh Shorter (105 Minutes) Online LSAT The Same As Longer (175 Minutes) On-ground LSAT In Admissions Decisions

Kaplan Survey, Law Schools Say Applicants Who Take At-Home Version of LSAT® Amid COVID-19 Not at Admissions Disadvantage:

There’s good news for law school applicants amid the most unpredictable admissions cycle in recent history. According to a new Kaplan survey of nearly 100 law schools across the United States, taking the shorter, one-hour and 45 minutes, at-home version of the usual LSAT exam—called the LSAT-Flex—will not put aspiring attorneys at an admissions disadvantage compared to those who submit scores from the regular exam*. According to the survey, 92 percent say they will evaluate applicants equally regardless of which LSAT version they take.

Another survey result finds that 60 percent agree that an at-home version of the LSAT “would produce a fair, reliable score for test-takers that I would have confidence in as an admissions officer evaluating applicants”; 13 percent disagree, while the remaining 27 percent didn’t offer a definitive opinion. ...

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Schizer: The Conservative Legacy Of RBG

David M. Schizer (Former Dean, Columbia), The Conservative Legacy of Ruth Bader Ginsburg:

With the passing of Ruth Bader Ginsburg, we have lost one of our nation's greatest legal minds. While she obviously was much beloved on the political left, we should not forget key aspects of her legacy that also resonated powerfully on the other side of the aisle, including her commitment to meritocracy, family, incremental change and the rule of law. I speak from personal experience, as a conservative who served as her law clerk during the October 1994 term—her second year on the Supreme Court—and stayed in close touch with her ever since.

RBG's friendship with Justice Antonin Scalia, one of the court's great conservative thinkers (who passed away in 2016), was perplexing to some commentators but made perfect sense to both justices. In part, their friendship sprang from the admiration each felt for the other's considerable talents, as well as from their shared love of opera. But their friendship was grounded also in common values. ...

[I]f you had asked me who exemplified the value of meritocracy—of letting people compete and show what they can do—RBG ... would have been my pick. As a champion for women's rights, she showed that everyone deserved to be judged on their merits. The Declaration of Independence promised us all the right to "the pursuit of happiness"—to develop our talents and pursue our dreams. RBG urged the nation to honor this commitment to women, as well as to men. Success should be based on ability, not biology.

RBG knew firsthand the frustration of not being judged on merit. Even though she was at the top of her law school class, no one would hire her after graduation in 1959. She would joke that as a woman, a mother and a Jew, she was a triple threat.

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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 September 1, 2020) 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)	193,145	Reuven Avi-Yonah (Michigan)	7,710
2	Dan Shaviro (NYU)	121,322	Lily Batchelder (NYU)	5,852
3	Lily Batchelder (NYU)	117,881	David Kamin (NYU)	5,449
4	David Gamage (Indiana-Bloom.)	117,213	D. Dharmapala (Chicago)	4,390
5	Daniel Hemel (Chicago)	117,026	Ruth Mason (Virginia)	4,029
6	Darien Shanske (UC-Davis)	110,510	Daniel Hemel (Chicago)	3,826
7	David Kamin (NYU)	106,112	Bridget Crawford (Pace)	3,279
8	Cliff Fleming (BYU)	105,156	Diane Ring (Boston College)	3,029
9	Manoj Viswanathan (Hastings)	102,222	Shu-Yi Oei (Boston College)	2,934
10	Rebecca Kysar (Fordham)	101,100	Hugh Ault (Boston College)	2,753
11	Ari Glogower (Ohio State)	99,925	Richard Ainsworth (BU)	2,431
12	Michael Simkovic (USC)	44,685	Dan Shaviro (NYU)	2,380
13	D. Dharmapala (Chicago)	41,770	David Gamage (Indiana-Bloom.)	2,308
14	Paul Caron (Pepperdine)	37,327	Margaret Ryznar (Indiana-Indy)	2,205
15	Louis Kaplow (Harvard)	33,605	Darien Shanske (UC-Davis)	1,877
16	Richard Ainsworth (BU)	30,545	Brad Borden (Brooklyn)	1,833
17	Ed Kleinbard (USC)	27,098	Robert Sitkoff (Harvard)	1,785
18	Vic Fleischer (UC-Irvine)	26,324	Louis Kaplow (Harvard)	1,565
19	Jim Hines (Michigan)	25,261	Manoj Viswanathan (Hastings)	1,545
20	Brad Borden (Brooklyn)	25,016	Paul Caron (Pepperdine)	1,500
21	Bridget Crawford (Pace)	24,785	Cliff Fleming (BYU)	1,438
22	Robert Sitkoff (Harvard)	24,684	Ari Glogower (Ohio State)	1,407
23	Ted Seto (Loyola-L.A.)	24,496	Katie Pratt (Loyola-L.A.)	1,343
24	Gladriel Shobe (BYU)	24,206	Michael Simkovic (USC)	1,315
25	Richard Kaplan (Illinois)	23,805	Rebecca Kysar (Fordham)	1,223

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NY Times: Law Firms Pay Supreme Court Clerks $400,000 Bonuses; New Study Confirms Their Influence With Their Justice

New York Times, Law Firms Pay Supreme Court Clerks $400,000 Bonuses. What Are They Buying?:

Supreme Court justices make $265,600 a year. The chief justice gets $277,700.

Their law clerks do a lot better. After a year of service at the court, they are routinely offered signing bonuses of $400,000 from law firms, on top of healthy salaries of more than $200,000.

What are the firms paying for? In a profession obsessed with shiny credentials, a Supreme Court clerkship glitters. Hiring former clerks burnishes the firms’ prestige, making them more attractive to clients.

Still, the former clerks are typically young lawyers just a couple of years out of law school, and the bonuses have a second and more problematic element, said Stephen Gillers, an expert on legal ethics at New York University. “They’re buying something else: a kind of inside information about how the court is thinking and how individual justices might be thinking,” he said.

The Supreme Court appears to recognize that this is a problem. Its rules impose a two-year ban barring former clerks from working on “any case pending before this court or in any case being considered for filing in this court.” (The rules also impose a permanent ban on working on “any case that was pending in this court during the employee’s tenure.”) ...

A new study in Political Research Quarterly suggests that the ban has not been completely successful [Ryan Black (Michigan State) & Ryan Owens (Wisconsin), The Influence of Personalized Knowledge at the Supreme Court: How (Some) Former Law Clerks Have the Inside Track.].

It examined about 3,600 Supreme Court arguments over two decades, controlling for many factors, and found that former clerks making arguments before the court were no more likely to persuade most justices than other lawyers. Another study last year came to a similar conclusion [Michael Nelson (Penn State) & Lee Epstein (Washington University), Lawyers With More Experience Obtain Better Outcomes].

But the new study identified one striking exception. Former clerks were 16 percentage points more likely to attract the votes of the justice for whom they had worked. The relationship increased their chances of obtaining their former boss’s vote to about 73 percent, from about 57 percent.

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Pittsburgh Tax Review Publishes New Issue

The Pittsburgh Tax Review has published Vol. 17, No. 1 (2020):

• Philip Hackney (Pittsburgh), The 1969 Tax Reform Act and Charities: Fifty Years Later, 17 Pitt. Tax Rev. 235 (2020)
• James J. Fishman (Pace), The Private Foundation Rules at Fifty: How Did We Get Them and Do They Meet Current Needs?, 17 Pitt. Tax Rev. 247 (2020)
• Ellen P. Aprill (Loyola-L.A.), The Private Foundation Excise Tax on Self-Dealing: Contours, Comparisons, and Character, 17 Pitt. Tax Rev. 297 (2020)
• Ray D. Madoff (Boston College), The Five Percent Fig Leaf, 17 Pitt. Tax Rev. 341 (2020)
• Dana Brakman Reiser (Brooklyn), Foundation Regulation in Our Age of Impact, 17 Pitt. Tax Rev. 357 (2020)

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Raskolnikov: Distributional Arguments, In Reverse

Alex Raskolnikov (Columbia), Distributional Arguments, In Reverse, 105 Minn. L. Rev. ___ (2020):

What should the government do about the distribution of resources and outcomes in the society? Two arguments have shaped academic debates about this question for several decades. The first argument states that economic regulation should focus on efficiency alone, leaving distributional considerations for the tax-and-transfer system. The second argument objects to government assistance for people unintentionally harmed by legal reforms. Taken together, the two arguments impose major restrictions on the range of possible distributional policies.

This Article contends that a growing body of research in the economics of trade, immigration, industrial organization, labor, and environmental regulation reveals that the core assumptions underlying the two distributional arguments do not hold. Moreover, once these assumptions are changed to reflect reality, the analytical machinery underlying the arguments goes in reverse: The conclusions become not merely indeterminate but opposite of those originally advanced.

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Kleven Presents The EITC And The Extensive Margin Virtually Today At NYU

Henrik Kleven (Princeton) presents The EITC and the Extensive Margin: A Reappraisal virtually at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

This paper reconsiders the impact of the Earned Income Tax Credit (EITC) on labor supply at the extensive margin. I investigate every EITC reform at the state and federal level since the inception of the policy in 1975. Based on event studies comparing single women with and without children, or comparing single mothers with different numbers of children, I show that the only EITC reform associated with clear employment increases is the expansion enacted in 1993. The employment increases in the mid-late nineties are very large, but they are influenced by the confounding effects of welfare reform and a booming macroeconomy. Based on different approaches that exploit variation in these confounders across household type, space and time, I show that the employment effects align closely with exposure to welfare reform and the business cycle. Single mothers who were unaffected by welfare reform (but eligible for the EITC) did not respond. Overall and contrary to consensus, the case for sizable extensive margin effects of the EITC is fragile. I highlight the presence of informational frictions, widely documented in the literature, as a natural explanation for the absence of extensive margin responses.

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Polsky Presents Taxing Buybacks Virtually Today At UC-Hastings

Gregg Polsky (Georgia) presents Taxing Buybacks (with Daniel Hemel (Chicago)) virtually at UC-Hastings today as part of its Tax Speakers Series hosted by Heather Field and Manoj Viswanathan:

A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging anti-buyback movement includes presidential candidates as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities law changes to deter repurchases, with only passing mention of potential tax law solutions.

This article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that buybacks reduce corporate investment and inappropriately reward executives turn out to be poorly supported. On the other hand, the article identifies legitimate tax-related concerns about the rising buyback tide. Buybacks exacerbate two of the U.S. tax system’s most severe flaws. The first is the “Mark Zuckerberg problem”: the effective nontaxation of firm founders on what is essentially labor income. The second is what we call the “Panama Papers problem”: the use of U.S. capital markets by investors in offshore tax havens to generate tax-free returns.

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USC Professors Are 'Scared To Death To Teach' After Colleague 'Thrown Under The Bus' By Dean For Using Mandarin Word 'Nèige' In Class

Following up on my previous posts (links below):  Chronicle of Higher Education, ‘Scared to Death to Teach’: Internal Report Cites ‘Chilling Effect’:

An anonymous survey of 105 professors at the University of Southern California’s Marshall School of Business suggests that many of them have lost confidence in the dean, and that they feel “livid,” “betrayed,” and “scared of students” after a fellow faculty member was “thrown under the bus,” as several of them described it, following a controversy over his use of a Chinese word [see 29-page report here].

The faculty member, Greg Patton, a professor of clinical business communication, used the word nèige (那个), which literally means “that” in Mandarin, but is also commonly used as a filler word like “um” or “er.” It was part of an example during a Zoom class last month on how such words can prove distracting during presentations. The word is pronounced “nay-ga,” and some Black students in the class complained in an email to administrators that it sounded like the n-word.

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Yet Another Generous Dean: Laura Rosenbury

Karen Sloan (Law.com), Yet Another Generous Dean:

I’m checking in on this welcome trend of law deans cutting big checks to their schools. The latest entrant is the University of Florida’s Laura Rosenbury. ...

I’ve been keep track of law deans making major donations to their schools during these crazy pandemic times, and I’m happy to add another one to the list. University of Florida law dean Laura Rosenbury has donated a total of $100,000 to various student support and scholarship programs. She joins Penn State Dickinson law dean Danielle Conway, Pepperdine law dean Paul Caron, and Florida International University law dean Antony Page in making six-figure gifts to their law schools in recent weeks.

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Pittsburgh Tax Review Publishes New Issue

The Pittsburgh Tax Review has published Vol. 17, No. 1 (2019):

• Roberta Mann (Oregon), Tax Policies for Clean Manufacturing: Implementing the Green New Deal, 17 Pitt. Tax Rev. 1 (2019)
• Tracey M. Roberts (Samford), Greenbacks for the Green New Deal, 17 Pitt. Tax Rev. 53 (2019)
• Janet E. Milne (Vermont), How Durable is a Lockbox for Carbon Tax Revenue?, 17 Pitt. Tax Rev. 105 (2019)
• Zhigang Hong (Shanghai University of International Business & Economics) & Danshera Wetherington Cords (Albany), How Can Green Tax Laws Spur Green Behavior? An Analysis of the Influence of Chinese Tax Policy on Green Behavior, 17 Pitt. Tax Rev. 165 (2019)

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California Bar Applicants Confront Pandemic, Fires, And Dubious Online Test

San Francisco Chronicle, California State Bar Exam, Delayed Amid Pandemic, Becomes Contentious:

Samuel Humy graduated from Cornell Law School this year and moved to California.

With a job lined up with the Santa Clara County Public Defender Office, he planned to take the California State Bar exam over the summer and start work in early August as a full-fledged lawyer.

Then the coronavirus happened. And the fires.

The State Bar pushed the test normally scheduled in July back to September, then to October as it figured out the software and security issues around a new online format for the hours-long exam, which normally involves test takers crammed into conference rooms.

Humy and his partner, who is also taking the bar, found a place in Santa Cruz to study, but the CZU Lightning Complex fires forced them to evacuate.

“The bar is a stressful test,” without having to worry about a pandemic, fires and an untested online format, Humy said.

Plenty of other would-be lawyers around California are also unsettled. ...

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U.S. Department Of Education Launches Civil Rights Investigation Following President's Admission Of Racism At Princeton

Chronicle of Higher Education, Princeton Acknowledged ‘Embedded’ Racism. The Education Dept. Says That’s Grounds for an Investigation:

The U.S. Education Department is investigating Princeton University for a possible violation of federal civil-rights law after the university’s president made public comments acknowledging systemic and embedded racism at the institution.

Department officials expressed concern in a letter to the university, dated September 16, that Princeton, “based on its admitted racism,” was not compliant with Title VI of the Civil Rights Act, which prohibits institutions that practice racial discrimination from receiving federal funds. Noting that Princeton had received “well over $75 million” in federal support since 2013, the letter stated that the university’s prior nondiscrimination and equal-opportunity assurances “may have been false.”

In this case, the “admitted racism” was an open letter that Princeton’s president, Christopher L. Eisgruber, sent to the Princeton community earlier this month. In the message, Eisgruber outlined steps his administration planned to take “to address systemic racism at Princeton and beyond.”

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NY Times: How Climate Migration Will Reshape America

New York Times Magazine, How Climate Migration Will Reshape America:

In recent years, summer has brought a season of fear to California, with ever-worsening wildfires closing in. But this year felt different. The hopelessness of the pattern was now clear, and the pandemic had already uprooted so many Americans. Relocation no longer seemed like such a distant prospect. Like the subjects of my reporting, climate change had found me, its indiscriminate forces erasing all semblance of normalcy. Suddenly I had to ask myself the very question I’d been asking others: Was it time to move?

I am far from the only American facing such questions. This summer has seen more fires, more heat, more storms — all of it making life increasingly untenable in larger areas of the nation. Already, droughts regularly threaten food crops across the West, while destructive floods inundate towns and fields from the Dakotas to Maryland, collapsing dams in Michigan and raising the shorelines of the Great Lakes. Rising seas and increasingly violent hurricanes are making thousands of miles of American shoreline nearly uninhabitable. As California burned, Hurricane Laura pounded the Louisiana coast with 150-mile-an-hour winds, killing at least 25 people; it was the 12th named storm to form by that point in 2020, another record. Phoenix, meanwhile, endured 53 days of 110-degree heat — 20 more days than the previous record.

For years, Americans have avoided confronting these changes in their own backyards. The decisions we make about where to live are distorted not just by politics that play down climate risks, but also by expensive subsidies and incentives aimed at defying nature. In much of the developing world, vulnerable people will attempt to flee the emerging perils of global warming, seeking cooler temperatures, more fresh water and safety. But here in the United States, people have largely gravitated toward environmental danger, building along coastlines from New Jersey to Florida and settling across the cloudless deserts of the Southwest.

I wanted to know if this was beginning to change. Might Americans finally be waking up to how climate is about to transform their lives? And if so — if a great domestic relocation might be in the offing — was it possible to project where we might go? To answer these questions, I interviewed more than four dozen experts: economists and demographers, climate scientists and insurance executives, architects and urban planners, and I mapped out the danger zones that will close in on Americans over the next 30 years. The maps for the first time combined exclusive climate data from the Rhodium Group, an independent data-analytics firm; wildfire projections modeled by United States Forest Service researchers and others; and data about America’s shifting climate niches, an evolution of work first published by The Proceedings of the National Academy of Sciences last spring. (See a detailed analysis of the maps.)

What I found was a nation on the cusp of a great transformation

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Gravelle Presents Sharing the Wealth: How To Tax The Rich Virtually Today At Loyola-L.A.

Jane G. Gravelle (Congressional Research Service) presents Sharing the Wealth: How to Tax the Rich virtually today at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Katie Pratt and Ted Seto:

This paper considers methods for taxing income of the affluent. Much of this income is unrealized capital gains that escapes tax. Conventional individual income taxes changes cannot capture this income and corporate taxes cannot target the wealthy. Other options are estate and gift taxes, taxation of gains on an accrual basis, and a wealth tax. Accrual taxation of capital gains most closely captures untaxed income, can be targeted to the wealthy, and appears to be feasible. If wealth and accrual taxation are deemed too difficult, a combination of conventional changes and taxing gains at death are options. ...

Summing Up
At the heart of the problem of taxing the rich is that the individual income tax does not reach much of the income of the extremely affluent. Each of the options for doing so has advantages and limitations. Individual income tax changes tax only income already subject to tax. There are significant problems surrounding a wealth tax and many barriers to be overcome; a wealth tax also increases taxes on assets already subject to tax in many cases.

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Congressional Research Service Seeks To Hire Head Of American Law Division

Assistant Director and Senior Specialist (American Law Division):

Summary:  The Congressional Research Service (CRS) seeks a senior manager to lead its American Law Division (ALD), one of CRS’ five research divisions. CRS provides objective, nonpartisan, and authoritative legislative research, analysis, and consultative support exclusively to the U.S. Congress.

Salary:  $131,239 to $197,300 per year

Responsibilities:  This position serves as head of the American Law Division, a major CRS research division. In this capacity, and reporting directly to the Director of CRS, the Assistant Director leads, plans, directs, and evaluates the work of a team of attorneys in its production of written products and consulting services in support of the U.S. Congress.

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Bar Exam Update

• Vikram Amar (Dean, Illinois), What About the Bar Exam After the 2020 Dust Settles?
• ABA Journal, California Supreme Court Lawyer Shares Supervised Practice Idea For Unsuccessful Bar Applicants
• ABA Journal, Bar Examinee Tests Positive For COVID After Leaving Last Week’s Exam Feeling Ill
• ABA Journal, No Bathroom Break Allowed? Suit Says Rules For Remote Bar Exam Discriminate Against Disabled Grads
• ABA Journal, October Online Bar Is Less Than a Month Away, and Test-takers Report Significant Software Problems
• ABA Journal, Recent Bar Admittees Offer Study Strategies to Stay Focused in Stressful Times—Including the Pandemic

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2019-20 Survey of Applied Legal Education

The Center for the Study of Applied Legal Education (CSALE) has released Robert R. Kuehn (Washington University), Margaret Reuter (UMKC) & David A. Santacroce (Michigan), 2019-20 Survey of Applied Legal Education:

The report summarizes the collective survey responses from 95% of law schools and over 1,300 law clinic and field placement instructors. The 2019-20 survey, CSALE’s fifth tri-annual survey, provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty.

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The Cost Of The University Of Florida's Ascent Up The U.S. News Rankings, From #52 (#17 Among Public Universities) To #30 (#6)

Following up on my previous post, 2021 U.S. News College Rankings:  Chronicle of Higher Education, The Rules of the Game:

How the U.S. News rankings helped reshape one state’s public colleges.

For Bernie Machen, it started before he’d been hired. The University of Florida’s Board of Trustees was looking for a president who would commit to moving the institution up the U.S. News and World Report’s college rankings.

“The thing that would bring us all together was to be able to bring the university, that we all went to and loved, to the top 10,” said Manny Fernandez, a tech-company executive who chaired the 2003 presidential search. At the time, the University of Florida ranked No. 52 over all and No. 17 among public universities. The board wanted to see the Gators among the top 10 public institutions.

Fernandez was tired of the reactions he would get when he divulged his alma mater at parties. Either people wouldn’t have really heard of the University of Florida — “or somebody would say, ‘Wasn’t that voted No. 1 party school by Playboy?’” Fernandez was offended. “I believe I am who I am today because I went to this school,” he said. “We needed to change the external perception of the University of Florida.” U.S. News was one very effective way to do that.

Machen, too, believed in the goal. While many people inside and outside of higher education today argue that a high ranking doesn’t necessarily translate to quality, Machen believed in many of U.S. News’s metrics. “I feel that many of them are relevant and worth shooting for,” he said, “and I think improving on those variables made us a better institution.”

He became the president of the University of Florida in January 2004. He would not see the Gators reach his goal; he retired in 2014, when UF was No. 14 among public universities. But he set the ball for the next administration’s spike. The Gators would break into the top 10 in 2017. On Monday, in U.S. News’ latest rankings, they ranked sixth — on the verge of reaching their latest goal: top five.

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Lesson From The Tax Court: Receipts Are Not Enough

In Anna M. Armstrong v. Commissioner, T.C. Sum. Op. 2020-26 (Sept. 17, 2020), Judge Panuthos teaches that substantiation does not just mean showing the amount of an expense; it means showing entitlement to deduct that expense.  It's an exemplary lesson in substantiation, including a review of the Cohan doctrine, and of the home office deduction.  Along the way, we learn just how tax practitioners can give value to their clients: teach them that receipts are not enough.

At first glance, this case might seem unimportant because it concerns below-the-line miscellaneous itemized deductions for unreimbursed employee expenses.  Section 67(g) totally disallows those types of deductions for tax years 2018-2025.

But I think this opinion is worth your time.

First, COVID.  Congress might actually re-authorize the deduction of unreimbursed employee expenses for tax year 2020 as part of the next COVID relief bill.  I do not have any inside knowledge on this, but some in Congress might view reviving unreimbursed employee expense deductions as a benefit to taxpayers forced to work from home during COVID shutdowns.  Others might believe that Congress gave enough relief in the Economic Impact Payments.  And this tax benefit is one that invites conflict and, hence, litigation.  Regardless of what Congress does, those taxpayers who are independent contractors continue to qualify for a home office deduction and this opinion teaches how to substantiate that use.  I give a couple of COVID thoughts at the end of the post.

Second, Judge Panuthos gives a wonderfully compact, lucid explanation of what taxpayers and their representatives need to know about substantiation.  I repeatedly tell my students that when you want to understand the law, find a good trial court opinion that explains it.  This is one of those opinions.  It’s a great teaching case.

Finally, some readers might find current utility from these lessons because 2017 and possibly 2016 are still open years.  Besides, taxpayers frequently stumble over the substantiation rules, especially for establishing a home office, whether or not they are taking deductions above or below the line.  For all those reasons I invite you to continue reading....

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Did USC Professor Get What He Deserved For Using Mandarin Word 'Nèige' In Class?

Following up on my previous post, USC Professor Removed From Class After Using Mandarin Word That Sounds Like English N***** Racial Slur:  Chronicle of Higher Education, How One Word Led to an Uproar:

Greg Patton was accused of using a racial slur in class. Did the business professor get what he deserved — or is he a convenient scapegoat?

Greg Patton said the word near the end of class. He was explaining how, when you make a presentation, it’s helpful to pause sometimes to let your audience absorb the information. Nervous speakers tend to fill the gaps with ums and ers when silence is preferable. It’s the kind of nuts-and-bolts advice that Patton, a professor of clinical business communication, has dispensed to M.B.A. students at the University of Southern California for a couple of decades now. He thought nothing of it at the time.

Many of his students aren’t from the United States. A typical M.B.A. class at Southern Cal’s Marshall School of Business is about one-third international, though that proportion is lower this year — around 12 percent — because of the pandemic. Patton tells students who aren’t native English speakers that he’s not a stickler on word choice or pronunciation; he cares more about their ideas. He also tries to mix in culturally diverse examples. When he talks about the importance of pausing, for instance, he notes that other languages have equivalent filler words. Because he taught in the university’s Shanghai program for years, his go-to example is taken from Mandarin: nèige (那个). It literally means “that,” but it’s also widely used in the same way as um.

And it sounds a bit like the n-word. The resemblance isn’t exact: The first vowel is a long “a” rather than a short “i,” and there’s no “r” sound at the end. It’s more like “nay-ga.” But it’s similar enough that, when it’s said rapidly and repeatedly, and heard out of context, an English speaker could mistake it for the racist slur. That is how several of Patton’s students apparently heard it in a class on August 20, and they complained to the administration. The complaint led to Patton’s removal from the course.

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Protecting Privacy And Security In Online Instruction: A Guide For Students And Faculty
• Taxation As A Barrier To Blockchain Innovation
• California Public Universities To Be Online In Spring 2021

Sunday:

• State Auditor Tries To Fire Tenured Professor Who Participated In #ScholarStrike
• Reynolds: A Simple 3-Camera TV Studio Classroom For Lively Online Teaching
• Call For Papers: Yale Law Journal
• The Top Five New Tax Papers

State Auditor Tries To Fire Tenured Professor Who Participated In #ScholarStrike

Following up on my previous post, #ScholarStrike: Professors Plan Strike For Racial Justice:  Clarion Ledger, State Auditor Investigating Ole Miss Professor Who Participated in Strike:

State Auditor Shad White is pushing Ole Miss to fire one of its professors, James Thomas (@Insurgent_Prof), saying Thomas illegally participated in a two-day strike last week.

White sent a letter to Ole Miss Chancellor Glenn Boyce on Monday describing a "work stoppage" the sociology professor participated in on Sept. 8 and 9. The nationwide event was called "Scholar Strike," and involved professors and others in academia halting their classes and other duties to protest racism, police brutality and other racial injustice issues.

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Reynolds: A Simple 3-Camera TV Studio Classroom For Lively Online Teaching

Glenn Reynolds (Tennessee), Tired of Looking Gray and Boring Online? A Simple 3-Camera TV Studio Classroom For Lively Online Teaching:

Tired of the dreary webcam-look in my online classroom, I created a fairly simple and reasonably inexpensive three-camera studio using real video cameras for online teaching. This paper outlines how it was done, and provides suggestions for simpler, cheaper alternatives that are still far superior to traditional webcam approaches.

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Call For Papers: Yale Law Journal

The Yale Law Journal asked me to post the following:

Submissions for Vol. 130 will close on Sept. 23rd. We encourage authors with Articles and Essays to submit their pieces well before the close of submissions. We are no longer accepting submissions of Features, Book Reviews, and Forum.

Yale Law Journal, Submissions:

To submit, please use our online submissions system. 

SUBMISSION GUIDELINES

• Authors submitting Articles, Essays, Features, and Book Reviews should refer to our General Submission Guidelines. ...

The Journal’s Style Guide is available here.

The Journal’s Empirical Work Policy is available here.

ARTICLES AND ESSAYS

The division between these two forms of professional scholarship serves not merely to separate longer pieces from shorter ones, but also to encourage two distinct and complementary approaches to legal analysis.

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The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with two new papers debuting on the list at #4 and #5:

1. [495 Downloads]  Policy Options for Taxing the Rich, by Lily Batchelder (NYU) & David Kamin (NYU)
2. [493 Downloads]  Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals, by Kimberly Clausing (UCLA), Emmanuel Saez (UC-Berkeley) & Gabriel Zucman (UC-Berkeley),
3. [477 Downloads]  Rethinking Tax for the Digital Economy After COVID-19, by Tarcisio Diniz Magalhaes (McGill) & Allison Christians (McGill) (reviewed by Young Ran (Christine) Kim (Utah) here)
4. [219 Downloads]  Economic Reality in EU VAT, by Ad van Doesum (Maastricht) & Frank Nellen (Maastricht)
5. [137 Downloads]  Who Benefits from Place-Based Policies? Job Growth from Opportunity Zones, by Alina Arefeva (Wisconsin), Morris Davis (Rutgers), Andra Ghent (North Carolina) & Minseon Park (Wisconsin)

This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: Rejected e-Filed Return Starts The SOL On Assessment
2. Rory Bahadur (Washburn), Attrition And Bar Performance
3. Erwin Chemerinsky (Dean, UC-Berkeley), David Faigman (Dean, UC-Hastings), Kevin Johnson (Dean, UC-Davis), Jennifer Mnookin (Dean, UCLA) & Song Richardson (Dean, UC-Irvine), Joint Statement About the Value of Critical Race Theory
4. David French, The Use And Abuse Of Critical Race Theory In American Christianity
5. NALP, More Salary Data For The Law School Class Of 2019
6. Paul Caron (Dean, Pepperdine), September 11th At Pepperdine
7. Bryan Camp (Texas Tech), Tax Profs On Both Sides In Case Pending in Supreme Court: CIC Services v. IRS
8. Paul Caron (Dean, Pepperdine), History Is Happening Tonight At 6:00 PM PT On Zoom
9. U.S. News, 2021 College Rankings
10. Paul Caron (Dean, Pepperdine), Erwin Chemerinsky (Dean, UC-Berkeley), Margaret Dalton (Dean, San Diego), Allen Easley (Dean, Western State), David Faigman (Dean, UC-Hastings),  Susan Freiwald (Dean, San Francisco), Andrew Guzman (Dean, USC), Anna Han (Dean, Santa Clara), Jenny Martinez (Dean, Stanford), Jennifer Mnookin (Dean, UCLA), Matt Parlow (Dean, Chapman), Song Richardson (Dean, UC-Irvine), Michael Schwartz (Dean, McGeorge), Sean Scott (Dean, California Western) & Michael Waterstone (Dean, Loyola-L.A.), Letter Request Supreme Court To Make Oct. 5-6 Online Bar Exam Open Book With No Proctoring

Protecting Privacy And Security In Online Instruction: A Guide For Students And Faculty

Mary Anne Franks (Miami), Protecting Privacy and Security in Online Instruction: A Guide for Students and Faculty:

COVID-19 forced educational institutions all over the globe to shift abruptly to online instruction. Online instruction presents many challenges to both faculty and students accustomed to in-person learning. Among those challenges are serious equity concerns, including wide variation among students and faculty in terms of technological literacy, access to reliable Internet service and related “digital divide” issues, time zones, caretaking responsibilities, and personal situations that may make remote learning difficult or impossible (e.g. unsafe home conditions). Another serious category of concern are privacy and security issues, which are the subject of this memo.

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Taxation As A Barrier To Blockchain Innovation

Michael Chatham (Radford University) & Thomas K. Duncan (Radford University), Taxation as a Barrier to Blockchain Innovation:

Though it is not the only cryptocurrency in circulation, Bitcoin has been one of the dominant and more highly valued digital currencies in the blockchain family. The IRS recently decided to treat Bitcoin and all other cryptocurrencies as property, thus causing ownership interests in these cryptocurrencies to generate a taxable transaction any time they are sold or traded for another good or service. We argue that taxation of cryptocurrencies and the recordkeeping necessities that come with it serve to inhibit the innovation in and growth of what could be an extremely valuable new commodity, the blockchain itself. We offer alternative strategies to mitigate the potential effects of these types of regulatory tax policies.

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California Public Universities To Be Online In Spring 2021

Los Angeles Times, Cal State Universities Will Stay Online All Year Amid COVID-19 Pandemic:

The nation’s largest public university system will continue with primarily online instruction for the remainder of the academic year amid the state’s ongoing coronavirus crisis, California State University Chancellor Timothy P. White announced Thursday in a letter to students, faculty and staff.

White said he had consulted extensively with campus presidents and considered the state of the pandemic in California as well as university operations.

“The disease continues to spread,” he said. “While the current mitigation factors do make a difference, in the absence of a vaccine and of sufficient, cost-effective, timely testing and contact-tracing infrastructure, we are not able to return to a normal, principally in-person schedule in January 2021.”

There will be some limited exceptions for classes that cannot be delivered remotely. On-campus housing will also be reduced. ...

Across the Cal State system, less than 7% of classes will be offered in person this term, with significant variability by campus. White said that he expects similar variations in the spring and that in some cases it may be possible to increase the amount of in-person instruction, whereas in others it may be necessary to pull back.

Los Angeles Times, UC Should Prepare For Online Classes, Limited Dorms Beyond Fall, UC Health Chief Says:

The University of California’s top health executive has told UC officials to prepare to continue online learning and limited access to campus beyond the fall as the COVID-19 pandemic will probably cause at least another year of disruption to university operations.

“This is not something that will go away quickly,” Dr. Carrie L. Byington, who heads UC Health, told regents during their two-day online meeting this week. The university’s $13-billion health enterprise includes 19 health professional schools and six health systems, five of them academic medical centers.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Brunson's Georgia, The IRS, And The KKK

This week, Sloan Speck (Colorado) reviews a new work by Samuel D. Brunson (Loyola Chicago), Addressing Hate: Georgia, the IRS, and the Ku Klux Klan.

The Ku Klux Klan’s second iteration began at a time of transformation for the American fiscal state. As economists and politicians reoriented the federal tax system towards progressive income taxation, white ethnonationalists consolidated and organized around false and pernicious understandings of the historic hate group. In 1915, a new Klan emerged, claiming as many as four million members at its peak in 1924. As Sam Brunson argues in his important new article, Addressing Hate: Georgia, the IRS, and the Ku Klux Klan, the Bureau of Internal Revenue and the State of Georgia each played crucial roles in both facilitating the rise of the second Klan and hastening its formal demise in the mid-1940s. Brunson’s valuable work resonates in our current political climate, as contemporary supremacist groups claim privileges under state corporate law and the Internal Revenue Code. How we address these groups today should be informed by the important history that Brunson uncovers.

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Tax Policy In The Trump Administration

• Bloomberg, Brookings Says $17,000 Tax Credits Would Aid Firms More Than PPP
• Bloomberg, Major Companies Reject Trump’s Payroll Tax Deferral
• Bloomberg, Millionaires Would Pay Up Under Biden Tax Plans, Study Shows
• Bloomberg, NYC’s Wealthy Should Be Prepared for Higher Taxes
• The Hill, Democrats Back Away From Quick Reversal of Trump Tax Cuts

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Weekly Legal Education Roundup

• Paul Caron (Dean, Pepperdine), September 11th At Pepperdine
• Center for the Study of Applied Legal Education, 2019-2020 Survey of Applied Legal Education
• J. Lyn Entrikin (Arkansas-Little Rock), Lucy Jewel (Tennessee), Susie Salmon (Arizona), Craig T. Smith (North Carolina), Kristen K. Tiscione (Georgetown) & Melissa H. Weresh (Drake), Treating Professionals Professionally: Requiring Security of Position for All Skills-Focused Faculty under ABA Accreditation Standard 405(c) and Eliminating 405(d)
• Joint Statement of the Deans of the University of California Law Schools About the Value of Critical Race Theory
• Letter to Chief Justice and Associate Justices of the California Supreme Court

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Tech Vendor Backs California Law School Deans: Online Bar Exam Proctoring Is A Chimera

Following up on my previous posts:

• One Of Three Vendors Pulls Out Of Online Bar Exams, Fears Tech Failure
• California Law School Deans Request Supreme Court To Make Oct. 5-6 Online Bar Exam Open Book With No Proctoring:

Extegrity Statement (Sept. 14, 2020):

Re California law school deans letter (14 September 2020) advocating an unproctored remote exam in October.

Extegrity is relieved to see so many California law school deans reach the same conclusion we did back in July. While it is too late to spare applicants the dramatic uncertainty of the past six weeks, it is not too late to reconsider the undue risk of remote proctored exams.

Remote proctoring was not envisioned — nor has it been proven ready — for large-scale, high-stakes, simultaneous-start "event" exams like the bar exam. But we are not saying all remote exams carry undue risk. The obvious low risk example is what the deans are suggesting: “takehome” exams, exactly as we have helped law schools nationwide administer by the many-tens-of-thousands, semester after semester, for two decades.

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Tax Profs On Both Sides In Case Pending in Supreme Court: CIC Services v. IRS

Currently before the Supreme Court is a case called CIC Services v. IRS. It involves the question of whether §7421 — Commonly called the Anti-Injunction Act (“AIA”) — prevents CIC from suing the IRS over the propriety of Notice 2016-66. That Notice declares certain micro-captive insurance arrangements as “transactions of interest.” It triggers certain reporting requirements for both CIC (as a material advisor) and CIC clients who have engaged in the arrangements described in the Notice. CIC asserts the Notice was illegally issued.

CIC (and another entity who has since dropped out) sued in federal district court, asking the court to (1) declare Notice 2016-66 invalid and (2) permanently enjoin the Service from enforcing the Notice. The district court dismissed the suit as barred by both the AIA and the Declaratory Judgment Act (DJA), 28 U.S.C. §2201(a). The AIA says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” The DJA permits suits for declaratory judgements except for suits “with respect to Federal taxes....”

A split Sixth Circuit panel affirmed. A closely divided Sixth Circuit then denied CIC’s petition for rehearing en banc. How closely divided? Six judges thought the rehearing petition should be denied. Six dissenting judges thought it should be granted. One judge said he thought the dissenters had the better of the argument but he was going to vote to deny because of circuit precedent. He expressed the hope that the Supreme Court would take the case. And, guess what? The Supreme Court took the case.

A summary of the Parties' argument and the Tax Prof briefs comes below the fold

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The Changing Law School Curriculum: More Courses, Less Rigor?

National Jurist, More Course Offerings, But Less Rigor?:

William Carney, a retired University of Emory School of Law professor who spent nearly 40 years in legal education, wanted to know just how law school curriculum has evolved over the decades. ...

The result was a recently published paper aptly called, “Curriculum Change in Legal Education,” which tracks changes from 1973 to 2018. Through his research, he noticed a shift from a number of bedrock law offerings to less traditional ones. ...

Why is this a big deal? Students are still taught core subjects, such as torts and Constitutional law, right? Why can’t they have a little spice?

Well, Carney argues that the changes he discovered may indeed be affecting student success. In 1973, the national average bar passage rate for first-time takers was 82%. By 2017 the passage rate had fallen to 72%. ... Many of these new courses are not covered on the bar exam, so students could jeopardize their chances if they are too reliant on them, he said. ...

He found some new courses that left him confounded. He wrote that they “defy my attempts to rationalize their existence, either because of my ignorance of their content or suspicions about their usefulness in the practice of the profession. In some cases, they appear to represent approaches that are more political and polemic than legal.”

Such courses include animal law and feminist legal theory, he wrote.

That did not sit well with professors who teach feminist legal theory.

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Why Law Firms Collapse

John Morley (Yale), Why Law Firms Collapse, 75 Bus. Law. 1399 (2020):

Law firms don’t just go bankrupt—they collapse. Like Dewey & LeBoeuf, Heller Ehrman, and Bingham McCutchen, law firms often go from apparent health to liquidation in a matter of months or even days. Almost no large law firm has ever managed to reorganize its debts in bankruptcy and survive. This pattern is puzzling because it has no parallel among ordinary businesses. Many businesses go through long periods of financial distress and many even file for bankruptcy. But almost none collapse with the extraordinary force and finality of law firms. Why?

I argue that law firms are fragile in part because they are owned by their partners rather than by investors.

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Shurtz: Tax, Class, Women, And Elder Care

Nancy E. Shurtz (Oregon), Tax, Class, Women, and Elder Care, 43 Seattle U. L. Rev. 225 (2019):

Elder care is a large and growing sector in the comprehensive health care system in the United States. It is an issue of particular importance to women because women live longer than men, have higher incidences of degenerative ailments, and are more likely to be institutionalized. Women also face greater financial challenges in funding their health care maintenance. Whereas wealthy individuals enjoy a multitude of elder care choices and can even self-insure to avoid the steep expense and risk of long-term care insurance, most women do not possess the resources to exercise such a wide degree of choice. Middle-income women increasingly feel the squeeze of concurrent rises in medical and housing costs and must often engage in contingency Medicaid planning. Low-income women, particularly those who are single, living in rural areas, or members of an ethnic minority, have few viable health care options and are the most likely to be herded into institutional care facilities. Nursing homes carry high costs and often do not offer high-level or personalized care. Current tax policy, however, is structured to favor institutional care. Conspicuously lacking are adequate subsidies to facilitate home-based options and meaningful support for caregiving labors, both key factors that contribute to the dearth of care options for our poorest citizens. The tax system is in dire need of modification to address this exploding elder care crisis, requiring explicit acknowledgment of the need to generate revenues dedicated to fulfilling our public commitment to the basic welfare of this rapidly growing cohort of the American population.

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Questions Raised About Purdue Global University's Tax-Exempt Status

Inside Higher Ed, Questions Raised About Purdue Global's Tax-Exempt Status:

A review conducted by the Century Foundation raised questions about the documents Purdue University Global presented to the Internal Revenue Service when it applied for tax-exempt status in August 2019.

Purdue University acquired for-profit Kaplan University from Graham Holdings in 2017, then used the acquisition to create a new online institution called Purdue University Global. Purdue Global relies on a Graham subsidiary, the educational services company Kaplan, to provide numerous support activities like financial aid administration, marketing, international student recruiting, business office functions and first-year student advising. Purdue Global acquired tax-exempt status from the IRS in December 2019.

Bob Shireman, director of higher education excellence and senior fellow at the Century Foundation, believes that the IRS was provided with misleading information about the nature of the deal between Purdue Kaplan. After reviewing documents provided by Purdue, Shireman said that Purdue Global excluded Kaplan from its list of contractors and failed to disclose Kaplan as an organization with which the university has a "close connection." ...

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Bi-Annual Taxes: A Simple Solution to Rising Tax Non-Compliance, Shrinking IRS Budgets, And Increasing Taxpayer Burden

Jeffrey A. Dubin (MIT) & Emma Cockerell (USC), Bi-Annual Taxes – A Simple Solution to Rising Tax Non-Compliance, Shrinking IRS Budgets, and Increasing Taxpayer Burden:

Each year, individual tax non-compliance results in billions of dollars of lost tax revenue. While the Internal Revenue Service (IRS) conducts examinations of select returns, the audit rate has fallen precipitously in past decades.

Meanwhile, the number of individual returns has grown and return complexity has risen. Individuals face a dauntingly complex tax code that requires the assistance of paid preparers. More than ever, the IRS experiences greater demands for assistance from taxpayers but fewer resources to fulfill these demands. Instead of the oft-proposed IRS budget increase, we propose a simple and pragmatic, but transformative, solution: the bi-annual filing and collection of taxes, which would minimize taxpayer and paperwork burdens, free up IRS funding, and result in a de facto doubling of the audit rate.

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