Next Week’s Tax Workshops

Monday, January 30: Kimberly Clausing (UCLA; Google Scholar) will present The Future of International Tax Cooperation as part of the annual Richard Crawford Pugh Lecture on Tax Law & Policy at San Diego. If you would like to attend, please RSVP here.

Tuesday, January 31: Jacob Goldin (Chicago; Google Scholar) will present Measurement and Mitigation of Racial Disparities in Tax Audits as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Emily Satterthwaite and Dayanand Manoli.

Tuesday, January 31: Michael Doran (Virginia; Google Scholar) will present Executive Compensation And Corporate Governance (reviewed by Sloan Speck (Colorado; Google Scholar) here) as part of the Columbia Davis Polk & Wardwell Tax Policy Colloquium. If you would like to attend, please contact David Schizer. 

Wednesday, February 1: Susan Morse (Texas; Google Scholar) will present Out of Time: APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period as part of the Northwestern Advanced Topics in Taxation Colloquium. If you would like to attend, please contact Gregg Polsky. 

Wednesday, February 1: Kimberly Clausing (UCLA; Google Scholar) will present Capital Taxation and Market Power as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Benjamin Alarie. 

Thursday, February 2: Juliana Londoño-Vélez (UCLA; Google Scholar) will present Behavioral Responses to Wealth Taxation: Evidence from Colombia (with Javier Avila-Mahecha (DIAN; Google Scholar)) as part of the UCLA Colloquium on Tax Policy and Public Finance. If you would like to attend, please contact Kirk Stark and Jason Oh.

Friday, February 3: Nyamagaga Gondwe (Wisconsin; Google Scholar) will present Emergency Exit: The Life-Saving Potential of Direct Public Financial Assistance to Survivors of Intimate Partner Violence as part of the Indiana Tax Policy Colloquium. If you would like to attend, please contact Leandra Lederman.

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Facing Major Sanctions, Amy Wax Files Grievance Against Penn Law Dean Ted Ruger

• Prof. Amy L. Wax's Grievance Dean Ruger
• Respondent's Memorandum in Reply to Charging Party's Opposition and in Further Support of the Relief Sought in her August 31, 2022 Memorandum

• Daily Pennsylvanian, Amy Wax Files Grievance Against Penn Carey Law Dean in Opposition to Disciplinary Proceedings
• Daily Pennsylvanian, Meet the Eight Faculty Members Deciding Amy Wax's Future at Penn
• Daily Pennsylvanian, Sanctions, Grievances, and Hearings: Why Amy Wax Cannot Be Fired Easily
• Daily Pennsylvanian, Tenureship Is Indulging the Amy Waxes of the World
• Law.com, Amy Wax Files Grievance Against Penn Carey Law Dean Over Push for Sanctions
• Legal Insurrection, Tables Turned: Prof. Amy Wax, Charged With Wrongthink, Files Counter-Grievance Against U Penn Law Dean
• Reuters, Facing Sanctions, Penn Law Prof Amy Wax Files Grievance Against Dean

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Alarie: The Rise Of The Robotic Tax Analyst

Benjamin Alarie (Toronto; Google Scholar; CEO, Blue J Legal), The Rise of the Robotic Tax Analyst, 178 Tax Notes Fed. 57 (Jan. 2, 2023):

As a bold taxwriting experiment, this installment of Blue J Predicts has been generated with the help of an AI assistant, OpenAI’s “Generative Pre-Trained Transformer 3” (GPT-3). GPT-3 is a large language model developed by OpenAI and backed by Microsoft. It is an inexhaustible generator of text and can write with accuracy in English about almost any topic. It has performed its duty, with my human companionship, indefatigably.

This isn’t the first time that a legal academic has invoked a robotic coauthor, and I expect that these kinds of tools will become increasingly commonplace. I expect that eventually they will be about as remarkable as using a spelling or grammar checker. At this moment, however, before the rise of the robotic tax analyst, using GPT-3 to help write this article is likely to raise some eyebrows.

In October 2021 I produced a peer-reviewed law review article with my academic colleague, the late (and great) tax law professor Arthur Cockfield of Queen’s University. The article was notable for being the first peer-reviewed law review article to extensively leverage GPT-3 in its production. In that article — after a short introduction penned by us, Benjamin Alarie and Cockfield — we gave GPT-3 control of the metaphorical keyboard and allowed it to produce its textual analysis uninterrupted and unedited.

The results were mixed and intriguing, and certainly pointed in the direction of future possibility. In our view, GPT-3 had potential. In the article, we speculated on the future of AI in legal scholarship and asked provocatively in the title, “Will Machines Replace Us?” Cockfield and I concluded that “although GPT-3 is not up to the task of replacing law review authors currently, we are far less confident that GPT-5 or GPT-100 might not be up to the task in future.”

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Mason Presents Bibb Balancing Today At The OMG Transatlantic Tax Talks

Ruth Mason (Virginia; Google Scholar) presents Bibb Balancing, 91 Geo. Wash. L. Rev. __ (2023) (with Michael S. Knoll (Penn)) today as part of the OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation and those of other states. We label analysis in mismatch cases “Bibb balancing,” after the famous mudflaps case, and we show that mismatch cases present the Court with a more challenging set of issues than do other types of dormant Commerce Clause cases.

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Seattle Law School Responds To 'Incendiary Allegations' Of Discrimination Against Visiting Professor

Law.com, Seattle U Law Responds to 'Incendiary Allegations' of Discrimination Against Visiting Professor:

Seattle University School of Law Dean Anthony Varona wrote in an email to students and faculty Monday that the school is conducting an internal probe into allegations of racism against a visiting professor that were made public by the university’s student newspaper.

In a Jan. 18 article, The Seattle Spectator, Seattle University’s undergraduate student newspaper, reported that students had alleged “racially discriminatory treatment” by a visiting professor at the law school.

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Brauner Presents Taxation Of Information And The Data Revolution Today At Florida

Yariv Brauner (Florida; Google Scholar) presents Taxation of Information and the Data Revolution at Florida today as part of a celebration of his academic contribution and appointment to the Hugh Culverhouse Eminent Scholar Chair in Taxation hosted by Charlene Luke:

The digital revolution has put enormous demands on the law due to the huge, quick-moving social changes it has created. The reason tax law hasn't advanced as much as other legal fields in responding to these demands is likely because it combines the problem of taxing information with the more general issue of taxing intangibles. This essay makes the case that information is distinct and necessitates a distinctive policy and analysis. It initially argues that information cannot be taxed under the current international tax rules. Therefore, reform is required, and the paper demonstrates why it is vital right now. Finally, the article makes the case that reform is also feasible by outlining three potential reform routes and contrasting their benefits and drawbacks.

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With Gonzaga, Quinnipiac, Rutgers, And Seattle, 36 Law Schools Are Boycotting The U.S. News Rankings

	U.S. News Rank
Boycott (36)
Yale	1
Stanford	2
Columbia	4
Harvard	4
Penn	6
NYU	7
Virginia	8
UC-Berkeley	9
Michigan	10
Duke	11
Northwestern	13
Georgetown	14
UCLA	15
Fordham	37
UC-Davis	37
UC-Irvine	37
Maryland	47
University of Washington	49
UC-San Francisco	51
Penn State-Dickinson	58
Penn State-Univ. Park	64
St. John's	84
Rutgers	86
New Hampshire	105
Gonzaga	116
Seattle	116
Idaho	142
Cal-Western	147-192
Campbell	147-192
John Marshall (GA)	147-192
Quinnipiac	147-192
Roger Williams	147-192
San Francisco	147-192
South Texas	147-192
Southwestern	147-192
Western Michigan	147-192
No Boycott (53)
Chicago	3
Cornell	12
Washington Univ.	16
Florida	21
Georgia	29
George Mason	30
Arizona	45
Colorado	49
SMU	58
San Diego	64
Kentucky	67
Seton Hall	73
Case Western	78
South Carolina	84
Cincinnati	88
Louisville	94
Indiana (McKinney)	98
Louisiana State*	105
Texas Tech	105
Washburn	105
Drake	111
Mississippi	111
Stetson	111
Missouri-Kansas City*	114
Chapman	118
Hofstra	118
West Virginia	118
Baltimore	122
Mercer	122
Suffolk	122
Cleveland-Marshall	127
Willamette	129
Wyoming	129
Pacific	133
South Dakota	133
Regent	142
Akron	147-192
Arkansas-Little Rock	147-192
Ave Maria	147-192
Elon	147-192
Faulkner	147-192
John Marshall (IL)	147-192
Liberty	147-192
Lincoln Memorial	147-192
Mississippi College	147-192
North Dakota	147-192
Nova	147-192
Ohio Northern*	147-192
Oklahoma City	147-192
Southern Illinois	147-192
St. Mary's	147-192
Toledo	147-192
Western New England	147-192

*Will answer some but not all questions

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Christians & Shay: The Consistency Of Pillar 2 UTPR With U.S. Bilateral Tax Treaties

Allison Christians (McGill; Google Scholar) & Stephen E. Shay (Boston College; Google Scholar), The Consistency of Pillar 2 UTPR With U.S. Bilateral Tax Treaties, 178 Tax Notes Fed. 499 (Jan. 23, 2023):

In this report, Christians and Shay explain why the pillar 2 undertaxed profits rule would be consistent with U.S. bilateral income tax treaties, and they explore some of the reasons underlying claims that the UTPR is incompatible with those treaties.

Conclusion
The UTPR is not a tax on income, nor is it likely to be characterized as in lieu of a tax on income. Instead, it is a cash tax expense that can be collected in any manner and most probably is in the nature of an excise tax. Contrary to the claims of GOP lawmakers and other commentators, the better view is that the UTPR is not covered by existing tax treaties at all, so it cannot be said to conflict with their terms.

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How Diversity Is Lingering Over The LSAT And U.S. News Law School Rankings

How Diversity Is Lingering Over the LSAT and U.S. News & World Report Rankings, Nat'l Jurist, Winter 2023, at 4:

An ABA committee has recommended that standardized tests — most notably the LSAT — be optional for law school admission. Critics say schools place too much emphasis on it, and Black and Hispanic test-takers don’t perform as well on it as their white counterparts. ...

At the same time, a number of the nation’s most prestigious law schools are opting out of the much-hyped U.S. News & World Report rankings, blasting the assessment for a host of wrongs. Some say schools are boosting their positions in the rankings by admitting top students at the expense of those from disadvantaged backgrounds. Love ’em or hate ’em, the ranking affects both school and student behavior. ...

What’s caused such upheaval in such a short time?

Some say law schools are preparing for the U.S. Supreme Court to strike down — or seriously weaken — the ability of schools to use affirmative action practices in their admissions decisions. If that happens, schools will need to pivot and not be as dependent on such concrete metrics as the LSAT. If they continue the current course, it could gut diversity. The high court, which heard arguments last October, is expected to rule in June.

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U.S. Treasury Department: Disparities In The Benefits Of Tax Expenditures By Race And Ethnicity

Lily Batchelder (Assistant Secretary for Tax Policy) & Greg Leiserson (Deputy Assistant Secretary for Tax Analysis), Disparities in the Benefits of Tax Expenditures by Race and Ethnicity:

This analysis, the subject of a new Office of Tax Analysis (OTA) working paper [Tax Expenditures by Race and Hispanic
Ethnicity: An Application of the U.S. Treasury Department's Race and Hispanic Ethnicity Imputation], finds disparities in the benefits of some tax expenditures among White, Black, and Hispanic families. Tax expenditures are provisions of federal law that 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 for certain activities. Examples include the preferential rates for capital gains, the home mortgage interest deduction, and the Earned Income Tax Credit. OTA working papers are works in progress intended to generate discussion and critical comment.

Researchers frequently analyze the distributional effects of tax policies across an array of demographic information, including income, family structure, age, and geography. However, it is challenging to perform such analysis by race and ethnicity because there is no single data source with both tax and race/ethnicity information. Tax liability does not depend on race or ethnicity, and this information is not collected on tax returns.

To overcome this challenge, Treasury researchers have developed a method to impute race and ethnicity in tax data. Under this method, researchers estimate the probability that the primary filer—the person listed first on the tax return—is Asian, Black, Hispanic, Native American, White, or multiple race based on other information available in the tax data. These probabilities are then used as weights to construct estimates for different groups. ...

The new working paper on the distribution of tax expenditures, by Julie-Anne Cronin, Portia DeFilippes, and Robin Fisher of OTA, examines eight of the largest individual income tax expenditures. It estimates the distribution of benefits for certain racial and ethnic groups first on an overall per capita basis, and then within income deciles (tenths of the income distribution).

On an overall per capita basis, the paper finds that the preferential rates for capital gains and dividends, deduction for pass-through income, charitable deduction, home mortgage interest deduction, and deduction for employer-provided health insurance disproportionately benefit White families. In contrast, Black and Hispanic families, who make up a disproportionate share of low-wage workers, disproportionately benefit from the Earned Income Tax Credit, which is designed to help low- to moderate-income workers and their families. Hispanic families, who have comparatively low rates of employer-sponsored health insurance, also disproportionately benefit from the Premium Tax Credit, which provides assistance for the purchase of health insurance through the Marketplaces. Finally, Hispanic families disproportionately benefit from the Child Tax Credit. The current analysis focuses on Black, White, and Hispanic people due to high levels of uncertainty in estimates for other groups.

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The Clash And The U.S. News Law School Rankings: Should I Stay Or Should I Go?

Lolita Buckner Inniss (Dean, Colorado), Should I Stay or Should I Go?, 26 Green Bag 2D 19 (2013):

During the fall and winter of 2022-2023, several United States law schools withdrew from participation in the U.S. News & World Report survey of law schools. For over three decades the survey ranked law schools, and in doing so, has become an increasingly influential arbiter of law school quality. Law schools, however, have argued that the survey fails to assess the nature and quality of schools fully or accurately, and for that reason many have ceased to participate--they are the “goers.” Other schools have chosen to continue participating; these are the “stayers.” While goers seem to have garnered news headlines as heroic, autonomy-embracing figures, it is worth considering whether the choice of going, or staying for that matter, will meaningfully alter how law schools are viewed. The world of law, and law schools, has long been governed by entrenched hierarchies and markers of status that exist well beyond the U.S. News & World Report survey.

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UC-San Francisco Seeks To Hire A Clinical Tax Professor

UC-San Francisco Law Faculty Posting:

University of California, College of the Law, San Francisco (“UC Law SF,” formerly, “UC Hastings Law”), located in San Francisco, California, has one of the top-ranked clinical programs in the country, and currently operates a Low-Income Taxpayer Clinic (LITC) in which students take lead responsibility to directly represent low-income taxpayers with tax controversies with the Internal Revenue Service (IRS) and/or the California Franchise Tax Board (FTB).

UC Law SF is looking to hire a full-time Long-Term Contract Faculty member (“Associate Clinical Professor”) to serve as a member of the Faculty and Clinic Director of the LITC. The faculty position for which UC Law SF is hiring is partly funded by UC Law SF but contingent on continued receipt of additional funds via an IRS grant.

In addition to supervising students in their legal representation, LITC Clinic Director duties also include managing other tax pro bono projects at UC Law SF, ensuring compliance and renewal of the IRS grant, and active participation in tax-related programming of the UC Law SF Center on Tax Law. ...

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The 50 Most Downloaded U.S. Law Professors Of 2022

Rank	Name	School	Downloads
1	Cass Sunstein	Harvard	43,282
2	Daniel Solove	George Washington	28,479
3	Lucian Bebchuk	Harvard	27,727
4	Mark Lemley	Stanford	21,131
5	Orin Kerr	UC-Berkeley	19,608
6	Roberto Tallarita	Harvard	15,229
7	Brian Frye	Kentucky	14,991
8	Bernard Black	Northwestern	13,599
9	Brandon Hasbrouck	Washington & Lee	13,456
10	Danielle Keats Citron	Virginia	13,417
11	Greer Donley	Pittsburgh	12,490
12	Herbert Hovenkamp	Penn	12,086
13	Rachel Rebouché	Temple	11,833
14	Reuven Avi-Yonah	Michigan	11,679
15	David Cohen	Drexel	11,670
16	Brian Leiter	Chicago	11,411
17	J. Mark Ramseyer	Harvard	10,743
18	Stephen Bainbridge	UCLA	10,708
19	Dan Kahan	Yale	10,527
20	Mitu Gulati	Virginia	10,472
21	Michael Klausner	Stanford	10,252
22	Adrian Vermeule	Harvard	9,420
23	Michael Ohlrogge	NYU	9,375
24	Woodrow Hartzog	Boston University	9,236
25	Wulf Kaal	St. Thomas-MN	9,202
26	Eric Posner	Chicago	8,967
27	Eric Goldman	Santa Clara	8,819
28	Richard Albert	Texas	8,522
29	Kevin Tobia	Georgetown	8,160
30	Richard Leo	San Francisco	8,154
31	David Kopel	Denver	8,023
32	Neil Richards	Washington University	7,890
33	Chris Brummer	Georgetown	7,886
34	Hilary Allen	American	7,588
35	Peter Menell	UC-Berkeley	7,584

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The 50 Most Downloaded U.S. Tax Law Professors Of 2022

Rank	Name	School	Downloads
1	Reuven Avi-Yonah	Michigan	11,679
2	Daniel Hemel	NYU	4,980
3	Bridget Crawford	Pace	4,235
4	Robert Sitkoff	Harvard	3,074
5	Zachary Liscow	Yale	2,780
6	Dhammika Dharmapala	Chicago	2,745
7	Ruth Mason	Virginia	2,693
8	Richard Ainsworth	Boston University	2,674
9	Darien Shanske	UC-Davis	2,617
10	David Gamage	Indiana	2,595
11	Louis Kaplow	Harvard	2,535
12	Kyle Rozema	Washington University	2,498
13	Kimberley Clausing	UCLA	2,270
14	Michael Doran	Virginia	2,154
15	Lily Batchelder	NYU	2,069
16	Brad Borden	Brooklyn	1,991
17	Young Ran (Christine) Kim	Cardozo	1,917
18	Dan Shaviro	NYU	1,849
19	David Kamin	NYU	1,726
20	Victoria Haneman	Creighton	1,687
21	Margaret Ryznar	Indiana-Indianapolis	1,557
22	Edward McCaffery	USC	1,454
23	Chris Sanchirico	Penn	1,432
24	Francine Lipman	UNLV	1,369
25	Michael Simkovic	USC	1,364
26	Paul Caron	Pepperdine	1,312
27	Victor Fleischer	UC-Irvine	1,305
28	Jeremy Bearer-Friend	George Washington	1,304
29	Omri Marian	UC-Irvine	1,296
30	Ari Glogower	Ohio State	1,291
31	Brian Galle	Georgetown	1,230
32	Hugh Ault	Boston College	1,227
33	David Weisbach	Chicago	1,194
34	Kristin Hickman	Minnesota	1,146
35	Nancy McLaughlin	Utah	1,130

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After Katie Magbanua Flips On Charlie Adelson, He Asks Judge To Keep Her Statements To Investigators Under Wraps Until April Trial In Dan Markel's Murder

Following up on my previous post, The Dan Markel Murder Case: Katie Magbanua Flips On Charlie Adelson:  Tallahassee Democrat, Charlie Adelson's Attorneys Want Magbanua's Statements Private Until Trial:

Attorneys for accused Dan Markel murder suspect Charlie Adelson are asking a Leon County judge to keep any statements made to investigators by his one-time girlfriend secret until after she testifies.

The protective order filed Tuesday in Leon County Circuit Court asks that the statements made by Katherine Magbanua — convicted of Markel’s murder last year — to investigators late last year be kept from the public to minimize the level of pretrial publicity.

Adelson is set to go to trial in connection with his ex-brother-in-law’s 2014 murder on charges of first-degree murder and related conspiracy and solicitation charges in late April.

His arrest last year signaled that after two convictions and more than eight years, investigators had gathered enough evidence to arrest the man they say was behind Markel’s murder-for-hire. 

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Parsons Presents The Shifting Economic Allegiance Of Capital Gains Today At Columbia

Amanda Parsons (Colorado; Google Scholar) presents The Shifting Economic Allegiance Of Capital Gains, 26 Fla. Tax Rev. ___ (2023), at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium hosted by Wojciech Kopczuk, Michael Love,  Alex Raskolnikov, and David Schizer:

Technological advances and the digitalization of the global economy have created an economic environment beyond the imagination of the original designers of the international tax system. Much scholarly attention has been paid to the question of how these economic transformations should affect which country is able to tax a multinational company’s income. But which country should be able to tax capital gains income from the sale of that company’s shares is an important and overlooked question.

This Article answers this question. It concludes that taxing authority over capital gains income must be reallocated to the countries in which companies conduct business. In our modern, digitalized economy, this reallocation is necessary to align international sourcing rules with international tax law’s underlying principles.

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Yale Law School Restricts Access To FedSoc Free Speech Panel Today To Avoid Repeat Of Last Year's Controversy

Following up on my previous post:  Kristen Waggoner (General Counsel, Alliance Defending Freedom), 'Keep the Faith': How A Hostile Encounter With Yale Law Students Emboldened Me To Speak The Truth With Kindness:  Aaron Sibarium (Washington Free Beacon), Looking To Tamp Down Controversy, Yale Law School Restricts Access to Free Speech Panel:

In March 2022, hundreds of students at Yale Law School disrupted a panel with Kristen Waggoner, a conservative lawyer who has argued religious liberty cases before the Supreme Court, arguing that her presence was a "slap in the face" to "queer students." Yale's response to the incident left the school with egg on its face: Though the protest clearly violated Yale's free speech policies, which do not allow protesters to disrupt speakers, not a single student was disciplined.

Now Waggoner is returning to Yale Law for another talk. And this time, administrators aren't leaving anything to chance, banning press and anyone without a Yale Law School ID, including undergraduate students, from the event. They are also trying to prohibit covert cell phone recordings, which picked up audio of last year's disruption. It is not clear whether the ban on media includes the Yale Daily News, Yale's flagship student paper, whose editor in chief, Lucy Hodgman, did not respond to a request for comment.

The event, scheduled for noon on Tuesday and hosted by the Federalist Society, will also feature Nadine Strossen, the first female president of the American Civil Liberties Union. Yale's draconian measures aren't sitting well with her. She is calling the school's decision to ban the press "unjustifiable," telling the Washington Free Beacon, "For an event that is discussing important First Amendment issues—and is designed to illustrate Yale Law School's announced recommitment to free speech—it is sadly ironic that elementary freedom of speech principles are being violated."

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Sarkar Presents Capital Migration Today At UC-San Francisco

Shayak Sarkar (UC-Davis; Google Scholar) presents Capital Migration at UC-San Francisco today as part of its Center on Tax Law' Tax Policy Colloquium hosted by Heather Field and Manoj Viswanathan:

Money moves, while migrants linger. If humans face borders, capital and corporations are purportedly “borderless.” Yet what precisely renders capital and reliant businesses foreign, the designation underlying migration?

This Article unpacks capital migration and the responses it elicits. It does so by parsing capital and corporate migration’s intersection with human migration as well as identifying conceptual parallels. As a first parallel, the citizenship binary is insufficient to understand both human and capital migration, as international tax law illustrates. Second, on the recurrent question of federalism, states, alongside the federal government, possess tax authority over foreign capital and corporations. As I argue, just as immigration tax federalism permits nonuniformity, so might capital and corporate tax federalism under the Foreign Commerce Clause.

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ChatGPT Gets C+ Grade On Four Minnesota Law School Exams (C- In Tax)

Following up on this morning's post, ChatGPT Gets B|B- Grade On Wharton MBA Exam:  Jonathan Choi (Minnesota; Google Scholar), Kristin Hickman (Minnesota; Google Scholar), Amy Monahan (Minnesota) & Daniel Schwarcz (Minnesota; Google Scholar), ChatGPT Goes to Law School:

How well can AI models write law school exams without human assistance? To find out, we used the widely publicized AI model ChatGPT to generate answers on four real exams at the University of Minnesota Law School. We then blindly graded these exams as part of our regular grading processes for each class. Over 95 multiple choice questions and 12 essay questions, ChatGPT performed on average at the level of a C+ student, achieving a low but passing grade in all four courses. After detailing these results, we discuss their implications for legal education and lawyering. We also provide example prompts and advice on how ChatGPT can assist with legal writing.

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Weisbach Posts Three Tax Papers On SSRN

David A. Weisbach (Chicago; Google Scholar) has posted three tax papers on SSRN:

Against Anti-Tax Exceptionalism:

This paper examines the arguments found in what has become known as the anti-tax exceptionalism literature. That literature seeks to apply the rules of administrative law to tax procedures. The core claim is that the procedures used by the Internal Revenue Service and the Treasury routinely violate the requirements of administrative law. Secondarily, that literature argues that this is normatively bad: the Treasury and Internal Revenue Service should not be treated differently from other administrative agencies because the tax system is not exceptional. Promoting the goals of administrative law, that literature argues, requires that the tax system conform to standard procedures.

This paper addresses both claims. First, it shows that the procedures used by tax administrators substantially comply with administrative law requirements. The central doctrinal claim of the anti-tax exceptionalism literature is incorrect. Second, the paper considers normative concerns of the anti-tax exceptionalism literature, focusing on three: (i) uniformity versus exceptionalism, (ii) information flows, and (iii) accountability. Regarding uniformity, even assuming that current tax procedures do not comply with administrative law requirements, uniformity would not be a desirable goal. Administrative law is, and should remain, flexible, adapting to the needs of widely varying agencies. Moreover, the goal of reforms to tax procedures should be to improve the operation of the system, not conform it to procedures used by agencies that operate in different contexts. The framing of uniformity versus exceptionalism misstates the issue. Regarding information flows and accountability, the remedies suggested by the anti-tax exceptionalism literature, notably greater use of notice and comment procedures and more supervision of tax administration by courts, are not good ways of meeting those goals. The paper offers alternative, better methods of improving information flows and accountability. The paper concludes that we should reject the claims of the anti-tax exceptionalism literature on both positive and normative grounds. 

Constrained Income Redistribution and Inequality: Legal Rules Compared to Taxes and Transfers:

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ChatGPT Gets B|B- Grade On Wharton MBA Exam

Following up on this morning's post, ChatGPT Gets C+ Grade On Four Minnesota Law School Exams:  Christian Terwiesch (Wharton; Google Scholar), Would Chat GPT3 Get a Wharton MBA?:

OpenAI’s Chat GPT3 has shown a remarkable ability to automate some of the skills of highly compensated knowledge workers in general and specifically the knowledge workers in the jobs held by MBA graduates including analysts, managers, and consultants. Chat GPT3 has demonstrated the capability of performing professional tasks such as writing software code and preparing legal documents. The purpose of this paper is to document how Chat GPT3 performed on the final exam of a typical MBA core course, Operations Management. Exam questions were uploaded as used in a final exam setting and then graded.

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Choi Presents Subjective Costs Of Taxation Today At Florida

Jonathan H. Choi (Minnesota; Google Scholar) presents Subjective Costs of Taxation at Florida today as part of its Marshall M. Criser Distinguished Faculty Workshop:

This Article introduces and estimates “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing a tax return. The experiment revealed that taxpayers are more concerned about inadvertent mistakes in their tax filings than by the time spent on compliance. Respondents also only ascribed meaningful value to eliminating all tax compliance work; they ascribed essentially no value to marginal time savings. Additionally, eliminating tax compliance time for high-income taxpayers and taxpayers with complex returns is not worth much more than eliminating tax compliance time for low-income taxpayers with simple returns.

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Legal Ed News Roundup

• ABA Journal, Law Prof Stirs Controversy With Tweet Calling Scalia ‘Basically A Klansman’
• Steven Chung (Tax Attorney, Los Angeles), 5 Ways US News Can Change Its Rankings Methodology
• Connecticut Law Tribune, Live Litigation and Out-of-Court Resolutions: Yale Law Interns Experience Both in Records Dispute With HUD
• Daily Business Review, Univ. of Miami Law Class Action & Complex Litigation Forum Introduces New 2-Day Format
• Des Moines Register, University of Iowa Law Professor Wins Free Speech Case After Criticizing University Doctor in Media
• Epoch Times, The Culture War in American Legal Education Is Expanding
• Law.com, Conservative Group Sends Mobile Billboards to Harass Berkeley Law Students Accused of Antisemitism

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Nam Presents Just Taxation Of Crime: Should The Commission Of Crime Change One's Tax Liability? At Indiana

Jeesoo Nam (USC; Google Scholar) presented Just Taxation of Crime: Should the Commission of Crime Change One's Tax Liability? at Indiana-Maurer last Friday as part of its Tax Policy Colloquium hosted by Leandra Lederman:

The tax law treats criminals differently from non-criminals. Should it? Under the public policy doctrine, for example, various tax deductions are disallowed if they are closely tied to criminal activity. Criminal activity is, in multiple ways, tax disadvantaged compared to non-criminal activity.

This Article considers a variety of possible justifications. (1) The tax disadvantage provides an incentive not to commit crime. (2) The tax disadvantage helps to bring deserved punishment to the criminal. (3) Criminals have given up their right not to be taxed. (4) Criminals have taken an unfair advantage and so must be stripped of that unfair advantage. (5) Criminals deserve to bear the costs that they culpably and wrongfully created.

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U.S. News Law School Rankings Boycott Scorecard (Updated)

ABA Journal, US News Extends Rankings Survey Deadline; Which Law Schools Will File?:

After years of complaints about the U.S. News & World Report’s law school rankings, some deans started announcing in November that they would not respond to the publication’s annual survey. And they were not swayed to opt back in when methodology changes were shared this month.

U.S. News recently extended the survey deadline to Jan. 27. The ABA Journal asked all ABA-accredited law schools whether they planned to submit the survey. Out of the 110 schools that responded, 25 said they would not, and 22 were undecided. A chart with the information can be seen here.

The table below includes the responses to the ABA Journal as well as public announcements by law schools:

	U.S. News Rank
Boycott (32)
Yale	1
Stanford	2
Columbia	4
Harvard	4
Penn	6
NYU	7
Virginia	8
UC-Berkeley	9
Michigan	10
Duke	11
Northwestern	13
Georgetown	14
UCLA	15
Fordham	37
UC-Davis	37
UC-Irvine	37
Maryland	47
University of Washington	49
UC-San Francisco	51
Penn State-Dickinson	58
Penn State-Univ. Park	64
St. John's	84
New Hampshire	105
Idaho	142
Cal-Western	147-192
Campbell	147-192
John Marshall (GA)	147-192
Roger Williams	147-192
San Francisco	147-192
South Texas	147-192
Southwestern	147-192
Western Michigan	147-192
No Boycott (53)
Chicago	3
Cornell	12
Washington Univ.	16
Florida	21
Georgia	29
George Mason	30
Arizona	45
Colorado	49
SMU	58
San Diego	64
Kentucky	67
Seton Hall	73
Case Western	78
South Carolina	84
Cincinnati	88
Louisville	94
Indiana (McKinney)	98
Louisiana State*	105
Texas Tech	105
Washburn	105
Drake	111
Mississippi	111
Stetson	111
Missouri-Kansas City*	114
Chapman	118
Hofstra	118
West Virginia	118
Baltimore	122
Mercer	122
Suffolk	122
Cleveland-Marshall	127
Willamette	129
Wyoming	129
Pacific	133
South Dakota	133
Regent	142
Akron	147-192
Arkansas-Little Rock	147-192
Ave Maria	147-192
Elon	147-192
Faulkner	147-192
John Marshall (IL)	147-192
Liberty	147-192
Lincoln Memorial	147-192
Mississippi College	147-192
North Dakota	147-192
Nova	147-192
Ohio Northern*	147-192
Oklahoma City	147-192
Southern Illinois	147-192
St. Mary's	147-192
Toledo	147-192
Western New England	147-192

*Will answer some but not all questions

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Lesson From The Tax Court: The Meaning Of 'Business Premises' In §119

It’s a new year.  And what better way to start than with the fundamental lesson I teach my students in our first few classes:  “Everything is income.  Everything including all your non-cash receipts.”  Yeah, I actually sing that to the class, to the tune of Everything is Awesome from the Lego movie.  It scans.  Treas. Reg. 1.61-1(a) emphasizes that point when it tells us that “Gross income includes income realized in any form, whether in money, property, or services.”

So employer-provided housing is income to an employee, just as if the employer paid the employee cash and the employee spends that cash to rent a house.  But we all know that Congress also permits taxpayers to exclude certain types of income from taxation.  Part of the art of tax practice is to try and find applicable exclusions to reduce the gross income that must be reported.  One such exclusion is §119 which sometimes permits an exclusion for the value of housing provided by an employer to an employee.

In Cory H. Smith v. Commissioner, T.C. Memo. 2023-12 (Jan. 12, 2023) (Judge Toro), we learn a useful lesson about the scope of the business premises requirement in §119: housing that is not within the physical boundaries of the employer’s facilities is highly unlikely to qualify for the §119 exclusion.  Mr. Smith’s employer hired him to work in Pine Gap, Australia.  It provided a house for him to live in about 11 miles away from his office, in a small city outside of Pine Gap.  While Mr. Smith initially properly reported the provided housing as income, he later got mixed up with some super aggressive tax advisors who convinced him to amend his returns to exclude the housing.  His tax advisors told him he could do that under §911, even though that reneged a Closing Agreement he had signed.  That bum advice gave us Lesson From The Tax Court: The Finality Of Closing Agreements, TaxProf Blog (Sept. 12, 2022).  Today, Judge Toro examines and rejects Mr. Smith’s alternative loser argument that he could exclude housing allowance payments under §119.  Details below the fold.

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Will The U.S. News Law School Rankings Arms Race Resume In Three Years?

ABA Journal, US News Extends Rankings Survey Deadline; Which Law Schools Will File?:

U.S. News posted a letter Jan. 2 explaining that schools not submitting surveys would still be included in the rankings. Those metrics will focus on public data from the ABA Section of Legal Education and Admissions to the Bar, which is responsible for law school accreditation. Schools that submit surveys will have more detailed profiles, the letter said.

Last week, the publication informed deans about further modifications, including eliminating employment rates, average debt at graduation and spending on instruction from rankings criteria, according to a Jan. 13 letter shared on TaxProf Blog. ...

People may care less about the rankings this year because of the methodological changes, says Mike Spivey, a law school admissions consultant.

“But I’d bet that three years from now, we’re right back to the rankings arms race. As much as people want to say the rankings are horrible and flawed, academics and prospective students are very much interested in what their schools ranked,” he adds.

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Larson: American Inheritance—Liberty And Slavery In The Birth Of A Nation
• Desai: The Crypto Collapse And The End Of The Magical Thinking That Infected Capitalism
• State Department Shifts From Times New Roman To Calibri To Make Paperwork More 'Inclusive'

Sunday:

• How A Person Of Faith Can Overcome Imposter Syndrome In Law School
• David French: How A Great American Victory Altered American Faith
• Seasons of Sorrow: The Pain Of Loss And The Comfort Of God
• The Top Five New Tax Papers

How A Person Of Faith Can Overcome Imposter Syndrome In Law School

David Grenardo (St. Thomas-Minnesota), How A Person of Faith Can Address Imposter Syndrome in Law School, 37 Notre Dame J.L. Ethics & Pub. Pol'y ___ (2023):

Imposter syndrome makes people feel as if they are frauds and others will soon find out that they do not belong. Imposter syndrome typically affects high achievers, which includes law students and lawyers. Law schools can provide resources and tools for law students to address imposter syndrome, but a person of faith can approach imposter syndrome in unique ways. This Article sets forth the various ways a law student of faith can confront and overcome imposter syndrome.

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David French: How A Great American Victory Altered American Faith

David French (The Dispatch), How a Great American Victory Altered American Faith:

Last week I read a tweet that led me to a book I’m now devouring at record speed. The tweet was from my friend Skye Jethani, and it referred to a potential link between the end of the Cold War and the rise of America’s religious nones. I’ve been thinking about the continuing influence of the Cold War on American life for a very long time. Our nation spent generations defined by the struggle against Soviet communism, and that struggle (along with its rather abrupt end) was bound to have profound effects on our national life.

The book is called Nonverts: The Making of Ex-Christian America, by a British sociologist named Stephen Bullivant. It’s not just an important book, it’s the best-written and most readable work of religious sociology that I’ve read in a very long time.

At the risk of over-simplification, Bullivant’s book attempts to explain the ... remarkable rise of religious “nones” in the United States:

Source: Grid, A Mass Exodus From Christianity Is Underway in America. Here’s Why.

... In the chart above, a distinct data point stands out—the sharp rise of young “nones” begins in the early 1990s. Why? That’s when the Cold War ended, and Bullivant argues convincingly that the end of the Cold War marked the beginning of a new era of American religion.

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Seasons of Sorrow: The Pain Of Loss And The Comfort Of God

Tim Challies, Seasons of Sorrow: The Pain of Loss and the Comfort of God (2022):

On November 3, 2020, Tim and Aileen Challies received the shocking news that their son Nick had died. A twenty-year-old student at The Southern Baptist Theological Seminary in Louisville, Kentucky, he had been participating in a school activity with his fiancée, sister, and friends, when he fell unconscious and collapsed to the ground.

Neither students nor a passing doctor nor paramedics were able to revive him. His parents received the news at their home in Toronto and immediately departed for Louisville to be together as a family. While on the plane, Tim, an author and blogger, began to process his loss through writing. In Seasons of Sorrow, Tim shares real-time reflections from the first year of grief—through the seasons from fall to summer—introducing readers to what he describes as the “ministry of sorrow.”

Seasons of Sorrow will benefit both those that are working through sorrow or those comforting others:

• See how God is sovereign over loss and that he is good in loss
• Discover how you can pass through times of grief while keeping your faith
• Learn how biblical doctrine can work itself out even in life’s most difficult situations
• Understand how it is possible to love God more after loss than you loved him before

Matt McCullough (Christianity Today; Author, Remember Death: The Surprising Path to Living Hope), ‘I Will Grieve but not Grumble, Mourn but not Murmur, Weep but not Whine’: What Tim Challies Resolved in the Wake of His Son’s Sudden Death:

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The Top Five New Tax Papers

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

1. [325 Downloads]  State Strategic Responses to the GloBE Rules, by Heydon Wardell-Burrus (Oxford) (reviewed by David Elkins (Netanya; (Google Scholar) here)
2. [185 Downloads]  Textualism, The Role And Authoritativeness Of Tax Legislative History, And Stanley Surrey, by George Yin (Virginia) (reviewed by Sloan Speck (Colorado; Google Scholar) here)
3. [98 Downloads]  Multistate Business Entities, by Andrew Appleby (Stetson; Google Scholar) & Tomer Stein (Stetson)
4. [84 Downloads]  The (Uncertain) Future of Corporate Tax Shelters, by Joshua Blank (UC-Irvine; Google Scholar) & Ari Glogower (Northwestern; Google Scholar) (reviewed by Michelle Layser (San Diego; Google Scholar) here)
5. [81 Downloads]  Is the U.S. Already Compliant with Pillar 2?, by Reuven Avi-Yonah (Michigan; Google Scholar)

This Week's Ten Most Popular TaxProf Blog Posts

Legal Education:

1. NY Times Op-Ed, What If Diversity Trainings Are Doing More Harm Than Good?
2. Paul Caron (Dean, Pepperdine), Summary Of Changes To The Forthcoming U.S. News Law School Rankings
3. Paul Caron (Dean, Pepperdine), U.S. News Provides Additional Information On Forthcoming Law School Rankings
4. Jerry Organ (St. Thomas),  The Declining 2022 Law School Transfer Market
5. Marcus Cole (Dean, Notre Dame) I Am George Floyd. Except, I Can Breathe. And I Can Do Something.
6. Derek Muller (Iowa), Modeling and Projecting the Forthcoming U.S. News Law School Rankings
7. NY Times, If Affirmative Action Ends, College Admissions May Be Changed Forever
8. Paul Caron (Dean, Pepperdine), With Maryland, USF, And South Texas, 28 Schools Are Now Boycotting The U.S. News Law School Rankings
9. Paul Caron (Dean, Pepperdine), Resources For Authors Submitting Law Review Articles In The Spring 2023 Cycle
10. Bloomberg Law, Bloomberg Law Announces Top 10 Law School Innovators

Tax:

1. Paul Caron (Dean, Pepperdine), Tax Policy in the Biden Administration
2. Paul Caron (Dean, Pepperdine), The 10 Most Downloaded Tax Articles Of 2022
3. Wall Street Journal, Why So Many Accountants Are Quitting
4. Tax Foundation, Americans Moved to Low-Tax States in 2022
5. Call For Papers, Cambridge Tax Policy Conference On Tax, Public Finance And The Rule of Law
6. Daniel Hemel (NYU), The IRS’s Christmas Gift To Airbnb And PayPal Is A Loss For Law-Abiding Taxpayers
7. Susan Morse (Texas), Review of Eleanor Wilking (Cornell), Independent Contractors in Law and in Fact
8. SSRN, The Top Five New Tax Papers
9. Paul Caron (Dean, Pepperdine), 2023 Tax Prof Rankings By H-Index All (Google Scholar)
10. Paul Caron (Dean, Pepperdine), 2023 Tax Prof Rankings By H-Index Since 2018 (Google Scholar)

Faith: 

1. Inside Higher Education, Christian Law School To Start Hiring Jewish Faculty

American Inheritance: Liberty And Slavery In The Birth Of A Nation

New York Times Book Review: Can the Country Come to Terms With Its Original Sin?, by Jon Meacham (Vanderbilt) (reviewing Edward J. Larson (Pepperdine)), American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795 (2023):

In Edward J. Larson’s “American Inheritance,” the Pulitzer-winning historian attempts to insert reason into a passionate public conversation.

Our own age has been hard on both reason and history. Too often the past has been deployed to fight the ideological wars of the moment, a tendency that reduces history to ammunition. And so Edward J. Larson’s “American Inheritance” is a welcome addition to a public conversation, in the wake of The New York Times’s 1619 Project, that has largely produced more heat than light.

“The role of liberty and slavery in the American Revolution is a partisan minefield,” Larson writes. “Drawing on a popular narrative presenting the expansion of liberty as a driving force in American history, some on the right dismiss the role of slavery in the founding of the Republic. Appealing to a progressive narrative of economic self-interest, and racial and gender bias in American history, some on the left see the defense of state-sanctioned slavery as a cause of the Revolution and an effect of the Constitution.” Larson, a prolific historian whose “Summer for the Gods” won a Pulitzer Prize in 1998, writes that this polarity “has opened the way for rigorous historical scholarship” in the tradition of Edmund Morgan and Benjamin Quarles.

“American Inheritance,” then, comes to us as an effort to step into the blood-strewn chaos of the present to calm the madness of a public stage where passion has trumped reason. As Larson argues, liberty, slavery and racism — an essential element of slavery — have always been entwined. “One way or another,” he writes, “the American Revolution resulted in the first great emancipation of enslaved Blacks in the New World.”

Yet to deny that a liberty-seeking people largely denied freedom and equality to the enslaved is to deny a self-evident truth. Mindless celebration of the American past is just that — mindless. But so is reflexive condemnation. The messy, difficult, unavoidable truth of the American story is that it is fundamentally a human one. Imperfect, selfish, greedy, cruel — and sometimes noble. One might wish the nation’s story were simple. But that wish is in vain.

A key lesson from Larson’s narrative is that ages past were not benighted by a lack of knowledge of the immorality of race-based slavery. To me, Larson’s unemotional account of the Republic’s beginnings confirms a tragic truth: that influential white Americans knew — and understood — that slavery was wrong and liberty was precious, but chose not to act according to that knowledge and that understanding. ...

Wall Street Journal Book Review:  ‘American Inheritance’ Review: How Bondage Shadowed Freedom, by Harold Holzer (Hunter College):

Mr. Larson, a Pepperdine University historian who won the Pulitzer Prize for a book on the 1925 Scopes trial, submits enough evidence in his newest work to indict almost all the Southern (and some Northern) Founders for, if nothing else, insensitivity to the human beings they held in chains while rebelling against the British for enslaving the American colonies.

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Desai: The Crypto Collapse And The End Of The Magical Thinking That Infected Capitalism

New York Times Op-Ed:  The Crypto Collapse and the End of the Magical Thinking That Infected Capitalism, by Mihir A. Desai (Harvard Business School & Harvard Law School; Google Scholar):

I have come to view cryptocurrencies not simply as exotic assets but as a manifestation of a magical thinking that had come to infect part of the generation who grew up in the aftermath of the Great Recession — and American capitalism, more broadly.

For these purposes, magical thinking is the assumption that favored conditions will continue on forever without regard for history. It is the minimizing of constraints and trade-offs in favor of techno-utopianism and the exclusive emphasis on positive outcomes and novelty. It is the conflation of virtue with commerce. ...

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State Department Shifts From Times New Roman To Calibri To Make Paperwork More 'Inclusive'

New York Times, Citing Accessibility, State Department Ditches Times New Roman for Calibri:

Wading into a debate that has divided designers and accessibility experts for decades, the United States Department of State said this week that it would stop using the Times New Roman typeface, replacing it with the sans-serif typeface Calibri.

The change will go into effect Feb. 6 and apply to all of the department’s formal communications, Gina Abercrombie-Winstanley, the department’s first chief diversity officer, said in an interview on Wednesday. The change will help make the department’s paperwork more “fully inclusive,” she said. ...

Designers choosing a font are focusing more on accessibility in recent decades, and considering whether characteristics of some popular fonts can make them more difficult for people to read and understand. That applies especially to those with visual or learning disabilities. ...

The department has used Times New Roman since 2004, when it switched from another serif font, Courier New.

Washington Post, A Font Feud Brews After State Dept. Picks Calibri Over Times New Roman:

In a cable sent Tuesday and obtained by The Washington Post, Secretary of State Antony Blinken directed the department to use a larger sans-serif font in high-level internal documents, and gave the department’s domestic and overseas offices until Feb. 6 to “adopt Calibri as the standard font for all requested papers.”

The Times (New Roman) are a-Changin,” read the subject line.

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Solving The Valuation Challenge: The ULTRA Method For Taxing Extreme Wealth By Galle, Gamage & Shanske

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Brian D. Galle (Georgetown; Google Scholar), David Gamage (Indiana Maurer; Google Scholar), & Darien Shanske (UC Davis; Google Scholar), Solving the Valuation Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. __ (2023).

It is well known that our income tax system is based on a realization approach which avoids valuation problems but enables the rich to pay little in taxes. Brian Galle (Georgetown), David Gamage (Indiana), and Darien Shanske (UC Davis) address this inequality brilliantly in their article Solving the Valuation Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. __ (forthcoming 2023). To solve the valuation problem, they propose that governments take payments from the rich by receiving notional equity interests, called "ULTRAs." ULTRA stands for unliquidated tax reserve accounts and is similar to a government claim on a portion of the stock of a business. 

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Weekly Legal Education Roundup

• Bloomberg Law, Bloomberg Law Announces Top 10 Law School Innovators
• Paul Caron (Dean, Pepperdine),  Resources For Authors Submitting Law Review Articles In The Spring 2023 Cycle
• Paul Caron (Dean, Pepperdine), Summary Of Changes To The Forthcoming U.S. News Law School Rankings
• Paul Caron (Dean, Pepperdine), With Maryland, USF, And South Texas, 28 Schools Are Now Boycotting The U.S. News Law School Rankings
• Fordham Law News, U.S. News & World Report Participation: A Message from Dean Matthew Diller
• Harvard Medical School, HMS Withdraws From U.S. News & World Report Rankings
• Lolita Buckner Innis (Colorado), Should I Stay or Should I Go?
• Inside Higher Education, Sea Change or Small Step Toward Interreligious Inclusion?

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McCaffery Presents The Paradox Of Taxing The Rich Today At Florida

Edward McCaffery (USC; Google Scholar) presents The Paradox of Taxation the Rich at Florida today as part of its Tax Colloquium Series hosted by Charlene Luke:

In the Summer of 2021, stories broke across the mainstream American media that the wealthiest Americans, such as Jeff Bezos and Elon Musk, were paying no income taxes, perfectly legally, under the simple tax-planning advice to Buy, Borrow, Die. By the Fall, politicians were running out proposals to address the embarrassment, such as Senator Ron Wyden’s “Billionaire’s Tax.” Yet just a year later, in the Summer of 2022, as President Joe Biden and his fellow Democrats were trying to salvage some semblance of Biden’s once-ambitious “Build Back Better” agenda prior to the Congressional midterm elections, came word that little would be done to reverse course on recent and longstanding American tax policy: There would be only modest and largely symbolic tax increases on the rich, and no change at all to any of the planks of Buy, Borrow, Die.

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Next Week’s Tax Workshops

Monday, January 23: Jonathan H. Choi (Minnesota; Google Scholar) will present Subjective Costs of Taxation as part of the Florida Marshall M. Criser Distinguished Faculty Workshop. If you would like to attend, please RSVP here. 

Tuesday, January 24: Shayak Sarkar (UC-Davis; Google Scholar) will present Capital Migration as part of the UC-San Francisco Tax Policy Colloquium. If you would like to attend, please contact Manoj Viswanathan.

Tuesday, January 24: Amanda Parsons (Colorado; Google Scholar) will present The Shifting Economic Allegiance Of Capital Gains as part of the Columbia Davis Polk & Wardwell Tax Policy Colloquium. If you would like to attend, please contact David Schizer.

Wednesday, January 25: Susie Morse (Texas; Google Scholar) will present Out of Time: APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period as part of the Northwestern Advanced Topics in Taxation Colloquium. If you would like to attend, please contact Gregg Polsky. 

Thursday, January 26: Jan Brueckner (UC-Irvine; Google Scholar) will present Taxes and Telework: The Impacts of State Income Taxes in a Work-from-Home Economy (with David R. Agrawal (Kentucky; Google Scholar)) as part of the UCLA Colloquium on Tax Policy and Public Finance. If you would like to attend, please contact Kirk Stark or Jason Oh. 

Thursday, January 26: Ruth Mason (Virginia; Google Scholar) will present Bibb Balancing, 91 Geo. Wash. L. Rev. __ (2023) (with Michael S. Knoll (Penn)) as part of the OMG Transatlantic Tax Talks. No RSVP is required for this event. 

Thursday, January 26: Yariv Brauner (Florida; Google Scholar) will present Taxation of Information and the Data Revolution as part of a celebration of his academic contributions and appointment to Hugh Culverhouse Eminent Scholar Chair in Taxation. If you would like to attend, please contact Charlene Luke.

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Bloomberg Law's Top 10 Law School Innovators

Bloomberg Law, Bloomberg Law Announces Top 10 Law School Innovators:

Bloomberg Law’s inaugural Law School Innovation Program recognizes law schools whose innovative programs are advancing new approaches to student instruction, legal technology, experiential learning, and other facets of legal education. And we are showcasing 10 innovations in particular that are leading the way. ...

Innovators hailing from more than 60 schools in more than 25 states applied to the program. ... Applications were evaluated by a select team of practicing attorneys, legal technology and legal operations professionals, in-house counsel, recent law school graduates, and Bloomberg Law experts who have worked with and alongside law firms, businesses, and academic institutions.

The Top 10

The panel’s evaluations yielded a list of 10 finalists, based on the criteria of innovation, impact on students, ability to advance the legal industry, and replicability. They are:

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Tax Policy In The Biden Administration

• Axios, Wealth Tax Prospects Doubtful — But Tax Reform Isn't Dead
• Bloomberg, Global Tax Reform May Add $250 Billion a Year to Public Coffers
• Bloomberg, Oxfam: Richest 1% of People in UK Now Wealthier Than 70% of Population Combined
• Bloomberg, Supreme Court Rejects Appeal on Use of Covid Aid for Tax Cuts
• Bloomberg, Tax-the-Rich Blue States Want to Leave Wealthy ‘Nowhere to Hide’

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Zhang: Antidiscrimination And Tax Exemption

Alex Zhang (Law Clerk, U.S. States Court of Appeals for the Ninth Circuit; J.D. 2021, Yale), Antidiscrimination and Tax Exemption, 107 Cornell L. Rev. 1381 (2022):

The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy—including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, in particular of marginalized groups. But almost four decades later, the decision has never realized its liberal, antidiscriminatory potential. The IRS has limited implementation to the narrowest facts of the case. The scholarly literature has not formulated a systematic account of how to enforce the Bob Jones regime, in light of the expansion of antidiscrimination protections and the Court’s reasoning that is deeply rooted in common-law charity. At the same time, tax-exempt entities engage in a smattering of discriminatory activities, often with impunity.

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NY Times Op-Ed: What If Diversity Trainings Are Doing More Harm Than Good?

New York Times Op-Ed:  What if Diversity Trainings Are Doing More Harm Than Good?, by Jesse Singal:

Diversity trainings have been around for decades, long before the country’s latest round of racial reckoning. But after George Floyd’s murder — as companies faced pressure to demonstrate a commitment to racial justice — interest in the diversity, equity and inclusion (D.E.I.) industry exploded. The American market reached an estimated $3.4 billion in 2020.

D.E.I. trainings are designed to help organizations become more welcoming to members of traditionally marginalized groups. Advocates make bold promises: Diversity workshops can foster better intergroup relations, improve the retention of minority employees, close recruitment gaps and so on. The only problem? There’s little evidence that many of these initiatives work. And the specific type of diversity training that is currently in vogue — mandatory trainings that blame dominant groups for D.E.I. problems — may well have a net-negative effect on the outcomes managers claim to care about.

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Dooling & Hickman: Applying The Regulatory Report Card To Tax Regulations

Bridget C.E. Dooling (George Washington; Google Scholar) & Kristin E. Hickman (Minnesota; Google Scholar), Applying the Regulatory Report Card to Tax Regulations:

An invited contribution to an issue of the Journal of Benefit-Cost Analysis honoring the work of the late Dr. Jerry Ellig, this essay recognizes and draws upon the Regulatory Report Card methodology developed by Ellig and Patrick McLaughlin to evaluate the quality of regulatory impact analysis published by federal government agencies in conjunction with notice-and-comment rulemaking. The essay anticipates a forthcoming study of changes to tax regulatory practices as a result of a 2018 Memorandum of Agreement between the Treasury Department and the Office of Information and Regulatory Affairs--a study the authors discussed and hoped to conduct with Ellig before he passed away. 

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Texas Tech Law School Informs U.S. News Of 'Substantial' Misstatement Of Its Student Loan Data The Past Three Years

Texas Tech Law School informed U.S. News today that it submitted incorrect data on the average debt of its graduates for each of the past three years:

The error was originated three years ago by the main campus Office for Student Financial Aid and Scholarships, which collects this data for the Law School. The Law School relies reasonably and in good faith on our campus partners in Financial Aid to collect accurate data for us for our rankings purposes. We were very surprised and disappointed to learn that we received inaccurate data from this office under its prior leadership. ...

As Dean, I take full responsibility for the Law School’s failure to uncover the Office of Student Financial Aid’s reporting errors and ensure a correction before the Law School in turn reported incorrect data to US News. In particular, I should have implemented a more extensive and systematic set of review procedures for this area, which would have uncovered the error, and placed less reliance on the Office of Student Financial Aid’s review process and reports.

The misreport on this metric was substantial. The corrected debt numbers are the following: For 2019, the correct average debt number was $98,695, and the incorrect reported number was $62,583. For 2020, the correct average debt number was $86,023, and the incorrect reported number was $56,898. For 2021, last year, the correct average debt number was $85,956, and the incorrect reported number was $60,088. While these numbers were misreported to US News, they were never directly marketed to applicants by the Law School. We also remain a lower debt law school, and our corrected debt number for 2021 is still well below the national average for debt and a lower number than all but one of the other law schools in this state reporting average debt to US News.

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Raghavan: The Case Against The Debt Tax

Vijay Raghavan (Brooklyn), The Case Against the Debt Tax, 91 Fordham L. Rev. __ (2023):

Americans are increasingly agitating for debt relief. In the last decade, there have been national campaigns to cancel student debt, credit card debt, and mortgage debt. These national campaigns have paralleled local efforts to cancel taxi medallion debt, carceral debt, and lunch debt. But as the public increasingly pursues broad-scale debt relief outside bankruptcy, they face an important institutional obstacle: cancelled debt is generally taxable.

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With Maryland, USF, And South Texas, 28 Schools Are Now Boycotting The U.S. News Law School Rankings

Maryland Carey Law Remains Focused on True Excellence:

After a great deal of thoughtful discussion with a wide variety of stakeholders, Maryland Carey Law has made the decision not to provide U.S. News & World Report (USNWR) with proprietary data about the institution in connection with USNWR’s Best Law Schools rankings, scheduled to be published this spring. As one of the oldest and most innovative law schools in the country, Maryland Carey Law has long provided students with the highest quality legal education -- one that trains them to become talented, ethical lawyers who care about justice. We will continue to do this work in the months and years to come.

We applaud USNWR’s willingness to reevaluate its flawed rankings methodology. In light of the company’s decision to rank all law schools on publicly available data only, Maryland Carey Law does not see the need to voluntarily provide additional institutional data for USNWR to sell. We look forward to working in good faith with USNWR in the years to come to arrive at a rankings methodology that more accurately reflects the wide range of values embraced by individual law schools, including fulfilling the aspirations and needs of the diverse range of students we all attract and educate. In the meantime, Maryland Carey Law will remain focused upon the excellence of its faculty, staff, and students, and upon its valued partnerships with the university, the city, the state, and beyond.

USF Law Will No Longer Provide Data to U.S. News:

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Eyal-Cohen: The (Tax) Policy Entrepreneur

Mirit Eyal-Cohen (Alabama; Google Scholar), The (Tax) Policy Entrepreneur, 86 Law & Contemp. Probs. __ (2023):

The construct of entrepreneurship represents a mindset and strategy for utilizing uncertainties to create change in the marketplace. This essay, however, considers entrepreneurship in the context of government policy apparatus. Termed “policy entrepreneurship,” the phenomenon is not concerned with recruiting lawmakers to pass legislation or develop a political economic strategy, but is practiced by advocating for optimal policy outcomes via the legislative process. It entails crafting rules and shaping public programs while maintaining flexibility and harnessing political, administrative, and legal forces to advance public-benefit agendas.

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Muller Models And Projects Forthcoming U.S. News Law School Rankings

Derek Muller (Iowa; Google Scholar), Modeling and Projecting USNWR Law School Rankings Under New Methodologies:

First, the criteria. USNWR disclosed that it would no longer use privately-collected data and instead rely exclusively on publicly-available data, with the exception of its reputational survey data. (You can see what Dean Paul Caron has aggregated on the topic for more.) It’s not clear whether USNWR will rely on public data other than the ABA data. It’s also not clear whether it will introduce new metrics. It’s given some indications that it will reduce the weight of the reputational survey data, and it will increase the weight of output metrics. ...

One last step was to offer a potential high-low range among the rankings. For each of the five models, I gave each school a rank one step up and one step down, to suggest some degree of uncertainty in how USNWR calculates, for instance, the 10-month employment positions, or diploma privilege admission for bar passage, among other things. That gave me 15 potential rankings—a low, projected, and high among each of the five models. I took the lowest of the low and the highest of the high for a projected range. With high degrees of uncertainty, this range is an important caveat.

Below are my projections.

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