ETS Establishes Legal Education Advisory Council To Expand And Create New Pathways In Legal Education

ETS Establishes Legal Education Advisory Council to Expand and Create New Pathways in Legal Education:

As ETS continues to pursue its vision of expanding and creating new pathways to and through legal education that prioritize fairness and equity, the organization has announced today the establishment of the Legal Education Advisory Council (LEAC) to help deliver on this vision.

As the pathway from considering law school attendance to obtaining legal employment continues to encounter demands for innovation, legal education — and thus ETS — bears a heavy responsibility to reevaluate how law school aspirants, students and graduates are recruited, prepared, assessed and licensed. The GRE test has brought an innovative approach to law school admissions that has enriched law school communities and has the potential to improve diversity access for years to come. The members of LEAC will play a critical role in helping shape the future of legal education.

“Meaningful innovation in legal education requires the active engagement of all relevant stakeholders, including those centrally involved in the recruitment and admissions pipeline, student services and career strategy professionals, faculty and senior administrators, and employers,” said Alberto Acereda, Associate Vice President of Global Higher Education at ETS. “I am thrilled to have these 10 esteemed members of the legal community join us as we form this new council to further innovation and access in the law school space.”

The Council is being established with 10 initial members but will continue to expand. Those who have joined LEAC include:

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One-Third Of The Way Through The Fall 2022 Law School Admissions Cycle: Applicants Are Down 4.4% And In All LSAT Bands (Especially 170-180 (-13.6%)), Except 150-159 (+0.3%)

We are now 33% of the way through Fall 2022 law school admissions season. The number of law school applicants reported by LSAC is down 4.4% compared to last year at this time.

122 of the 199 law schools are experiencing an increase in applications. Applications are up 50% or more at 7 law schools, and 30% or more at 25 law schools:

Applicants are up in only one region: South Central; and are down the most in Midwest (-13.4%), Northeast (-10.7%), and Far West (-9.6%) :

Applicants' LSAT scores are down -13.6% in the 170-180 band, -5.9% in the 160-169 band, and -10.8% in the 120-149 band; and up +0.3% in the 150-159 band:

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Lesson From The Tax Court: Who Is An IRS Employee's Immediate Supervisor For §6751 Penalty Approval?

Today’s lesson involves yet more litigation over IRS compliance with the penalty approval process required by the formerly toothless §6751(b)(1).  In Sand Investment Co., LLC, et al. v. Commissioner, 157 T.C. No. 11 (Nov. 23, 2021) (Judge Lauber), the Tax Court continues teaching us the scope and operation §6751(b), a series of lessons it started back in 2017 when its decision in Graev v. Commissioner, 149 T.C. 485 (2017), gave the statute sharp teeth.  Among other requirements, the statute says approval must come from an IRS employee's “immediate supervisor.”  In today’s case, the IRS employee who proposed a bunch of penalties had two supervisors but only one definitely signed timely.  Judge Lauber finds that function trumps form in identifying which of the two supervisors was the right one to approve the proposed penalties.  This is a short lesson, and also one that will may be rendered moot.  Legislation passed by the House and now before the Senate de-fangs §6751(b).  Details below the fold.

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Koppelman On The Yale And UIC Law School Controversies

Following up on my previous posts:

• Chronicle of Higher Education op-ed:  This Is A Witch-Hunt Against A Tenured Law Professor, by Andrew Koppelman (Northwestern)
• Chronicle of Higher Education op-ed: Yale Law School’s Bullying, Coercive Diversity Leaders: How Not To Do Equity Work, by Andrew Koppelman (Northwestern)

Chronicle of Higher Education, The Review: 'Many Administrators Are Cowards':

Faculty susceptibility to administrative sanction is at the center of the highly politicized culture wars playing out across universities in the last five years or so. Law schools are no exception. In the last year, Northwestern Law’s Andrew Koppelman has emerged as a sort of monitor of what he sees as flagrant instances of administrative overreach. “Many administrators,” he told me, “are cowards who are pre-disposed to grovel before student demands. The way to make cowards behave appropriately is to give them fears in the other direction.” I spoke with Koppelman about recent events at the University of Illinois at Chicago’s School of Law and at Yale Law School. Here’s some of that conversation.

You’ve written two pieces for the Review in relatively short order, the first about the Trent Colbert affair at Yale Law, and the second about Jason Kilborn at UIC. Both cases involve members of the law school, students or faculty, getting in trouble for putatively racist speech — speech which elicited great distress among other students. I’m reminded of a somewhat different but not unrelated dilemma, what Jeannie Suk Gersen at The New Yorker has described as new challenges around teaching rape law because of student sensitivity. What’s happening?

There are two different sets of sensitivities. There are the sensitivities of students, and there are the sensitivities of administrators. It’s important to keep them apart. There are always going to be some students who take offense at things. A teacher always needs to keep that in mind. Part of a teacher’s job is not to lose the room. So teaching is an exercise in rhetoric; rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. This is the morally attractive aspect of rhetoric. ...

What I thought happened at Yale was that the administrators were so rigidly attached to a particular narrative that they misunderstood the situation and they made horrible mistakes. The impression I get is of quite possibly well-intentioned people who made really bad judgments.

What you are are seeing at UIC is much worse. It’s positively malevolent — there’s just no excuse for it. ...

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TaxProf Blog Holiday Weekend Roundup

Thanksgiving:

• WKRP In Cincinnati Thanksgiving Turkey Drop
• WSJ Refuses To Cancel Its Annual Thanksgiving Editorials
• Happy Thanksgiving, Pepperdine
• Avi-Yonah Posts Three New International Tax Papers On SSRN

Friday:

• Next Week’s Tax Workshops
• Weekly Legal Education Roundup
• Tax Policy In The Biden Administration
• NY Times Op-Ed: Thanksgiving, Gratitude, And The Shocking Privilege Of Life

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Columbia Settles Class Action COVID-19 Tuition Refund Suit For $12.5 Million
• Cravath Kicks Off Associate Bonus Season With Payouts Up To $115,000
• Break Into Tax: Capital Gains & Losses — An Introduction

Sunday:

• WSJ: Fans Pour Funding—And Faith—Into 'The Chosen': A Hit Drama About Jesus
• Dave Chappelle, Reinhold Niebuhr, And The Gospel
• Morse Tan Named Dean Of Liberty University School of Law
• The Top Five New Tax Papers

WSJ: Fans Pour Funding—And Faith—Into 'The Chosen': A Hit Drama About Jesus

In July, I blogged The Chosen: Christian America’s Must-See TV Show and shared that I love the show so much that my wife and I were going to host weekly watch parties of Season 1 with lunch on Fridays in the fall semester at Pepperdine Caruso Law School. I am thrilled to report that it was such a success that we will be showing Season 2 in the spring semester. The weekend Wall Street Journal has a fascinating report on the show: Fans Pour Funding—and Faith—Into a Hit Drama About Jesus:

Crowdfunding has raised millions for ‘The Chosen,’ an ambitious series exploring characters from the New Testament. Fans have already chipped in enough for three seasons—and are driving ticket sales for a Christmas special coming to movie theaters.

Dallas Jenkins, the filmmaker who created “The Chosen,” says the show’s style is modeled more on “Friday Night Lights” than other Christian TV shows and movies. Mary Magdalene relapses into vice. The apostle Matthew is on the autism spectrum. Jesus’ miracles get back stories.

By fleshing out biblical characters across multiple seasons, the show has inspired fan discussion, debate and squabbling on a level more typical of the Marvel or Star Wars series. Except that for “Chosen” fans, the dynamic is fueled by religious faith. ...

The success of the series is a powerful reminder to Hollywood that faith-focused projects can sometimes become breakthrough hits. But what makes “The Chosen” even more of an outlier is the way it is supercharging the crowdfunding model to sustain production through multiple seasons. Though “The Chosen” is free to watch, viewers have poured $40 million and counting into its production budget, enough to pay for three out of a planned seven seasons. The costs of building the new production facilities, on a 1,200-acre camp owned by the Salvation Army, are being covered by a smaller group of the show’s fans.

Producers say viewership was sluggish when the first season premiered for a fee in 2019. But the audience spiked when they made the series free on a “Chosen” app, now the show’s main distribution hub, and viewers continued to multiply during the pandemic’s lockdown months. The show has been translated into 50 languages, and is licensed to video services from Amazon to Peacock. Producers estimate that its 16 episodes have been viewed 312 million times. Now the “Chosen” audience is set to converge in person in movie theaters.

Starting Dec. 1, about 1,700 theaters will feature screenings of a “Chosen” Christmas special, including musical performances and a new episode in which Mother Mary (a series character played by Vanessa Benavente) flashes back to her son’s birth. Distributor Fathom Events, known for one- or two- day releases of classic movies, live opera and other specialty fare, expanded the “Chosen” event to 10 days. Ticket sales are approaching $6 million so far, putting “Christmas with ‘The Chosen’” on track to be Fathom’s bestseller ever, according to chief executive Ray Nutt.

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Dave Chappelle, Reinhold Niebuhr, And The Gospel

Following up on my previous post, Norm Macdonald’s Comedy Was Quite Christian:  Russell Moore (Christianity Today), What Stand-Up Comedians Can Teach the Church:

Good comedy is strange and surprising. So is the gospel.

Apparently, comedian Dave Chappelle isn’t welcome at his own high school. According to news reports, the Duke Ellington School of the Arts delayed a ceremony to celebrate the renaming of its theater after the famous alum because students threatened to walk out.

Netflix fielded similar threats from its employees after Chappelle’s controversial standup comedy special aired on the streaming service. Many felt it was insulting toward transgender people and others. Chappelle’s special has since prompted a thousand debates about political correctness, cancel culture, and the nature of respect and civility in the public square.

While those debates are important, let’s set them aside for a moment and reflect instead on the question of who was laughing—and why.

As the Chappelle controversy has unfolded, I have found myself in conversations with two specific people on opposite sides of the “love him or hate him” spectrum. Both of these individuals were surprised by their mixed feelings—not about the social commentary or the rhetoric of the comedian but by their own reactions and responses.

One of them is a staunch conservative who’s been concerned about our country entering a “What are your pronouns?” era. He agreed with Chappelle’s arguments on that point but said he never laughed at them. In fact, he cringed several times at the crude language in the routine. “I was with him on the issue,” he said. “It just wasn’t my kind of humor.”

The other person is a committed progressive outraged by what he sees as Chappelle taking cheap shots at a vulnerable population—and yet he had the reverse response. “I hated what he was saying, at least at those parts,” he said, before looking down and wincing. “But I have to admit, he was funny.”

So while the conservative felt obligated to laugh, he felt left out because he didn’t. And although the progressive despised what was said, he felt guilty because he did laugh.

In September, David Sims of The Atlantic profiled another controversial and politically charged comedian, Norm Macdonald, after Macdonald’s death from cancer. As with Chappelle, part of Macdonald’s legacy was that he could prompt people to “laugh and gasp in shock in equal measure.” The key to all of this, Sims argued, was not Macdonald’s place on the political spectrum, which was to the right of most of his cohort. It wasn’t even his comedic material itself, which was often rather coarse. Instead, it was Macdonald’s view of what comedy is meant to do—or, more specifically, of how laughter works.

According to Sims, Macdonald argued that standups should “hunt for laughter, not applause.” The comedian went on to explain, “There’s a difference between a clap and a laugh. A laugh is involuntary, but the crowd is in complete control when they’re clapping. They’re saying, ‘We agree with what you’re saying; proceed!’ … But when they’re laughing, they’re genuinely surprised. And when they’re not laughing, they’re really surprised. And sometimes I think, in my little head, that that’s the best comedy of all.”

This seems to have little to do with the witness of the church. After all, we’re not trying to make people laugh. But that element of surprise—an involuntary reaction that goes beyond our sets of ideologies and expectations—is actually a key part of what we are called to do, and the lack of it partially explains why we so often fail.

In the mid-20th century, theologian Reinhold Niebuhr wrote an essay on the relationship between humor and faith that was utterly humorless but nonetheless insightful. In it, Niebuhr argued that at the core of human existence is a paradox. We see ourselves as insignificant in the broad sweep of space and time, per Psalm 8: “What is mankind that you are mindful of them, human beings that you care for them?” (v. 4). But our very ability to ponder that insignificance seems to place us at the center of the universe: “You have made them a little lower than the angels” (v. 5). ...

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Morse Tan Named Dean Of Liberty University School of Law

Former State Department Ambassador Morse Tan Selected to Head Liberty University School of Law:

Liberty University has announced that Morse Hyun-Myung Tan has been named the new dean of Liberty University School of Law. Tan will assume his duties on Jan. 1, 2022.

Most recently, Tan served as Ambassador at Large for the U.S. State Department’s Office of Global Criminal Justice, where he oversaw the indictment, sanctioning, capture, and/or conviction of war criminals in Sri Lanka, Rwanda, the Balkans, and Lebanon. In his professional law career, Tan has served briefly as an attorney and counselor at law for major law firms. He has worked primarily in legal academia and has published numerous law review articles and delivered presentations on bioethics and international human rights, most notably as an expert on North Korea. Tan has served as a law professor or visiting scholar at University of Texas at Austin School of Law, University of St. Thomas School of Law, Florida Coastal School of Law, Northern Illinois University College of Law, Northwestern University Pritzker School of Law, and Handong International Law School in Pohang, Korea, where he took part in founding the first American J.D. program in Asia. Ambassador Tan authored “North Korea, International Law and the Dual Crises” (Routledge). He has taught courses on North Korean policy, international criminal law, international human rights, bioethics, and constitutional law.

“At Liberty, we look for leaders who not only bring a wealth of experience in their field but are bold about their faith and fully support our Christian mission,” said President Jerry Prevo. “We are excited to welcome Ambassador Tan, who will help train future law professionals with the biblical principles that are so desperately needed in our nation today.”

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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. [296 Downloads]  The Tax Gap's Many Shades of Gray, by Daniel Hemel (Chicago; Google Scholar), Janet Holtzblatt (Tax Policy Center) & Steve Rosenthal (Tax Policy Center)
2. [210 Downloads]  The 2021 Compromise, by Ruth Mason (Virginia; Google Scholar) (reviewed by Charlotte Crane (Northwestern; Google Scholar) here)
3. [194 Downloads]  Implementing an International Effective Minimum Tax in the EU, by Joachim Englisch (Münster) & Johannes Becker (Münster; Google Scholar)
4. [188 Downloads]  Colorblind Tax Enforcement, by Jeremy Bearer-Friend (George Washington; Google Scholar)
5. [169 Downloads]  Slicing the Shadow: A Proposal for Updating U.S. International Taxation, by Reuven Avi-Yonah (Michigan; Google Scholar)

This Week's Ten Most Popular TaxProf Blog Posts

1. Chronicle of Higher Education, Law Professor Investigated Presidential Search At His University. It Said He Was Out of Line.
2. Chronicle of Higher Education, Yale Dean Finds 'Something Fishy' In B-School Rankings, Highlights Need For Greater Transparency
3. Washington Post, The Country’s Most Popular Law School Got An Unexpected Jolt
4. New York Post, Tenured Fordham Professor Challenges Termination For Masturbating During Zoom Lecture
5. WCTV, Florida State Law School Associate Dean Dies From COVID-19 At Age 48
6. Bryan Camp (Texas Tech), Lesson From The Tax Court: How To Mess Up Your Checkbook IRA
7. Break Into Tax, Introduction To Deductions
8. Wall Street Journal, WSJ Refuses To Cancel Its Annual Thanksgiving Editorials
9. Paul Caron (Dean, Pepperdine), In Response To Criticism, ABA Releases Revised Proposed Diversity Accreditation Standard For Notice And Comment
10. J. Goosby Smith (Pepperdine), Happy Thanksgiving, Pepperdine

Columbia Settles COVID-19 Class Action Tuition Refund Suit For $12.5 Million

Law360, Columbia U. Settles COVID-19 Tuition Refund Suit For $12.5M:

Columbia University has agreed to pay $12.5 million to resolve a lawsuit seeking tuition and fee reimbursements in the wake of coronavirus-spurred campus closures, according to a settlement proposal filed in New York federal court.

Students brought a putative class action last year, alleging the Ivy League school deprived them of in-person instruction, access to campus facilities, student activities and other benefits for which they had paid tuition and fees. Certain refunds the school had already provided were insufficient, according to the complaint filed Tuesday.

U.S. District Judge Jesse M. Furman trimmed the students' tuition claims, but said they were able to reclaim all the fees paid.

Under the deal announced Tuesday, the university will return more than $8.5 million in fees and pay an additional $4 million so the plaintiffs don't seek to revive the tuition claims, according to a lawyer for the students, Roy T. Willey IV.

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Cravath Kicks Off Associate Bonus Season With Payouts Up To $115,000

Cravath once again has kicked off associate bonus season:

• 1st Year Associate (Class of 2021):  $15,000 (prorated)
• 2nd Year Associate (Class of 2020):  $20,000
• 3rd Year Associate (Class of 2019:  $30,000
• 4th Year Associate (Class of 2018):  $57,500
• 5th Year Associate (Class of 2017):  $75,000
• 6th Year Associate (Class of 2016):  $90,000
• 7th Year Associate (Class of 2015):  $105,000
• 8th Year Associate (Class of 2014): $115,000

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Break Into Tax: Capital Gains & Losses — An Introduction

Learn or review the building blocks of capital gains & losses. This video covers the 3 elements needed for a gain or loss to be "capital" rather than "ordinary," including what constitutes a "capital asset." It also discusses holding period. Professor Lederman & Professor Emily Cauble co-host. Planned future videos will cover the capital gains preference and the limitation on capital losses.

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Next Week’s Tax Workshops

Tuesday, November 30: Steven Dean (Brooklyn) & Dana Brakman Reiser (Brooklyn; Google Scholar) will present For-Profit Philanthropy as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle.

Tuesday, November 30: Alan Auerbach (UC-Berkeley; Google Scholar) will present Tax Policy Design With Low Interest Rates as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro. 

Wednesday, December 1: Victor Fleischer (UC-Irvine; Google Scholar) will present Tax Policy - Legislative Updates on behalf of the UC-Irvine Graduate Tax Program. If you would like to attend, please contact taxpolicy@law.uci.edu. 

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Weekly Legal Education Roundup

• ABA Journal, Some law schools outside T14 still send many grads to the nation's top-grossing firms
• The American Bazaar, Indian American Yale law professor blasts school over ‘trap house’ Incident
• Paul Caron (Dean, Pepperdine), In Response To Criticism, ABA Releases Revised Proposed Diversity Accreditation Standard For Notice And Comment
• Chronicle of Higher Education, The Review: Interview with Andrew Koppelman
• Chronicle of Higher Education, This Professor Investigated a Presidential Search at His University. It Said He Was Out of Line
• Dan Rodriguez (Former Dean, Northwestern), Legal Education as a Key Stakeholder in Legal Services Reform
• J. Goosby Smith (Pepperdine), Happy Thanksgiving, Pepperdine

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Tax Policy In The Biden Administration

• Bloomberg, Biden Bill Has Tax Cut for Mere Millionaires, Hike for Mega Rich
• Bloomberg, Global Tax Negotiators Got a Deal. Now They Have to Sell It 
• Cato Institute, On EV Tax Credits, What’s Proponents’ Real Objective?
• Common Dreams, 'Bad Politics, Bad Policy': Sanders Slams House Democrats for Including Tax Cut for Rich in BBB 
• CounterPunch, Why It’s So Hard to Tax Billionaires
• Forbes, What's In Democrats' $1.8 Trillion Plan? Free Preschool, Child Tax Credit Expansion, $1.5 Trillion In New Taxes (For The Wealthy) And More 

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NY Times Op-Ed: Thanksgiving, Gratitude, And The Shocking Privilege Of Life

New York Times op-ed:  Five Ways to Exercise Your Thankfulness Muscles, by Tish Harrison Warren (Priest, Anglican Church; Author, Liturgy of the Ordinary: Sacred Practices in Everyday Life (Christianity Today's 2018 Book of the Year)):

I’m from a family that doesn’t talk much about feelings. We keep it mostly to jokes, sarcasm and sports. When I was growing up, perhaps the biggest perceived sin was being overly earnest and sincere. So all of us kids were shocked when one Thanksgiving, out of nowhere, my parents announced that we’d begin a new ritual. The 20 to 30 of us gathered for the Thanksgiving meal each had to share something we were grateful for.

Over the years, this practice took on the repetitive qualities all liturgies have. Some people expressed gratitude for their health or friends and family. Every year, my great-uncle gave thanks for being a Democrat, and our friend Art strategically positioned himself directly after him in the circle so he could say that he was grateful “for canceling out his vote,” and everyone laughed. My introverted brother-in-law would tease my parents about the horror of the dreaded “circle of thanks.”

But the dreaded circle became part of why Thanksgiving is my favorite holiday. It is a day that spotlights the need for gratitude. ...

The practice of gratitude is central to nearly every religious and spiritual tradition. And all of us have much to be grateful for. We get the shocking privilege of living on this planet that is uniquely made so that humans can be born, breathe, grow, work, harvest and create. We have bodies that know the pleasures of strawberries, guacamole and buttery popcorn. We hear laughter and breathe in the steam of hot coffee.

The practice of gratitude teaches us, as the theologian Christine D. Pohl put it, “the giftedness of our total existence.” This posture of receptiveness — living as the thankful beneficiary of gifts — is the path of joy because it reminds us that we do not have to be the makers and sustainers of our life. Gratitude is how we embrace beauty without clutching it so tightly that we strangle it.

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WKRP In Cincinnati Thanksgiving Turkey Drop

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WSJ Refuses To Cancel Its Annual Thanksgiving Editorials

Wall Street Journal editorial, Censoring the Pilgrims:

No doubt it was only a matter of time. The progressives have come for our annual Thanksgiving editorials. They won’t succeed, but we thought we’d share the tale with readers for an insight into the politicization of everything, even Thanksgiving.

Since 1961 we’ve run a pair of editorials written by our former editor Vermont Royster. The first is a historical account about the Pilgrims in 1620 as related by William Bradford, a governor of Plymouth Colony. The second is a contemporary contrast from the mid-20th century about the progress a prosperous America has made that we can all be thankful for.

The editorials are popular with readers, who tell us they appreciate the sentiments about hardship and gratitude during what should be a unifying national holiday. For decades we’ve run them with nary a discouraging word.

But we live in a new era when the left sees nearly everything through the reductive lens of identity politics. It sees much of American history as a racist project that should be erased. This is the motivation of a petition campaign to censor the Pilgrim editorial.

The effort comes via Change.org, a website that calls itself “the world’s platform for change.” It mobilizes campaigns to promote progressive causes. The petition driver is Randy Kritkausky, an author who writes about Native Americans. His petition has gathered some 50,000 signatures and here’s its argument:

Tell the Wall Street Journal that it’s 2021. It’s time to stop publishing 17th century racism. ...

We don’t mind giving critics a chance to make their case, but we won’t bend to political demands for censorship. We will run the editorials as usual this week.

Wall Street Journal op-ed:  Don’t Let Ideologues Steal Thanksgiving, by Melanie Kirkpatrick (Hudson Institute):

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Happy Thanksgiving, Pepperdine

Avi-Yonah Posts Three New International Tax Papers On SSRN

Reuven Avi-Yonah (Michigan; Google Scholar), Slicing the Shadow: A Proposal for Updating U.S. International Taxation:

This article advances a proposal for market-based formulary apportionment.

Gucci Gulch Redux: The Problems of Wyden Proposal:

This paper addresses the problems of Sen Wyden’s international tax reform proposal.

The New International Tax Regime:

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Rosenbloom & Shaheen: Toulouse — No Treaty-Based Credit?

H. David Rosenbloom (Caplin & Drysdale; NYU) & Fadi Shaheen (Rutgers; Google Scholar), Toulouse: No Treaty-Based Credit?, 104 Tax Notes Int'l 417 (Oct. 25, 2021):

This article maintains that the U.S. Tax Court’s decision in Toulouse [v. Commissioner, 157 T.C. No. 4 (2021)]— that U.S. tax treaties with France and Italy do not provide a treaty-based foreign tax credit against the net investment income tax — is mistaken.

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Kim: Taxing Teleworkers

Young Ran (Christine) Kim (Utah; Google Scholar), Taxing Teleworkers, 55 U.C. Davis L. Rev. __ (2021):

Since COVID-19 has forced many governments to restrict travel and impose quarantine requirements, telework has become a way of life. The shift towards teleworking is raising tax concerns for workers who work for employers located in another state than where they live. Most source states where these employers are located could not have taxed income of out-of-state teleworkers under the pre-pandemic tax rules. However, several source states have unilaterally extended their sourcing rule on these teleworkers, resulting in unwarranted risk of double taxation — once by the residence state and again by the source state. At this time, there is no uniform guideline by state or federal governments.

Recently, New Hampshire, supported by fourteen other states, asked the U.S. Supreme Court to exercise its original jurisdiction challenging Massachusetts’ telecommuting taxes of nonresident teleworkers. Tax commentators believed this case would be one of the most significant tax decisions in recent years, but the Supreme Court declined to hear it. New Jersey also opposes New York’s long-standing telecommuting taxes under the “convenience of the employer” rule. This Article examines the constitutional challenges of maintaining pre-pandemic work arrangements for tax purposes, arguing that a source state’s extraterritorial assertion to tax nonresident teleworkers’ income likely violates the Dormant Commerce and Due Process Clauses. Also, this Article finds the Supreme Court’s decision not to exercise original jurisdiction dissatisfying in light of the substantial increase in remote work.

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Table Of U.S. Law School Mission Statements (2019 & 2021); 58 Schools Lack Explicit Mission Statements

Frances Tung (American Bar Foundation) & Elizabeth Mertz (Wisconsin; Google Scholar), Table of U.S. Law School Mission Statements, 2019 & 2021:

This Table continues a data-sharing effort begun by Irene Scharf and Vanessa Merton in 2016, as part of their research on U.S. law schools’ mission statements. They had been inspired, in part, by Jerome Organ’s earlier work on this topic in 2010. Scharf and Merton made their 2016 data publicly available on the University of Massachusetts website; we are following in their footsteps by sharing the results of our own efforts, undertaken in 2019 and 2021, on SSRN and on the American Bar Foundation webpage. In the spirit of open access and collegial cooperation within our scholarly community, we invite readers to send corrections to us c/o ftung@abfn.org. This is part of a larger project on law school education funded by the American Bar Foundation and directed by Elizabeth Mertz. 

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Yale Dean Finds 'Something Fishy' In B-School Rankings, Highlights Need For Greater Transparency

Chronicle of Higher Education, Is This College Ranking Faulty?:

A dean found something fishy in a magazine’s list of business schools. The editors say he’s off base.

There was a lot that Anjani Jain liked about Bloomberg Businessweek’s ranking of business schools. It was only when the deputy dean at the Yale School of Management dug deeper that it stopped making sense to him.

Like most publications that rate institutions of higher education, this one chose certain categories to evaluate, such as how much money graduates make, and weighted each category based on its importance. But unlike with many other rankings, Businessweek asked students, recent alumni, and recruiters what was important to them, and used their responses to determine how much weight to give to each of the five categories it used to evaluate schools: compensation, learning, networking, entrepreneurship, and diversity. To Jain, this seemed like a good idea.

The dean, who has a background in mathematics, physics, and operations research, began poking around at the numbers, trying to replicate the ranking using the information that was public. He has tinkered with other rankings too; digging into the calculations can be a way for him to procrastinate when he has other work. But when following Businessweek’s published methodology, Jain’s ranking of the business schools did not come out in the same order.

“I noticed that somehow there were numerical anomalies,” he said. The crowdsourced weights that the magazine said it gave to each of its five categories didn’t seem to yield the ranking order the magazine had published.

Perplexed, Jain wrote to Businessweek. An editor wrote back, explaining that the weights had been applied to raw scores, rather than the scores published.

Jain was skeptical. He believed that he had deduced what the weights would have to be in order to recreate the list that Businessweek published. Those weights, he said, were not the same as what the magazine had gotten from its surveys.

The way Jain sees it, one of two things happened. Either the weights were applied to the data before it was normalized — a mathematical process that can be used to ensure that data sets are being compared on the same numerical scale — which would be a statistical error, he said. Or the ranking was calculated accurately, but after the fact some sort of “mysterious manipulation,” as Jain put it, took place.

A Businessweek editor did not respond to The Chronicle’s request for comment. The magazine stands by its ranking. ... The spokesperson said that the magazine’s methodology was vetted by multiple data scientists and that disclosing raw data “would create the possibility that the rankings could be reverse-engineered or gamed by a school for an unfair advantage.” ... 

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International College Enrollments Begin to Recover

Inside Higher Ed, International Enrollments Begin to Recover:

The number of international students enrolled at U.S. colleges and universities has begun to rebound following a precipitous pandemic-related drop in international enrollments last fall, according to new data being released today.

The number of new international students increased by 68 percent this fall over last fall, and the number of total international students grew by 4 percent across more than 860 U.S. higher education institutions that responded to a “snapshot” survey on fall international enrollments conducted by the Institute of International Education (IIE) and nine other higher education associations.

The increases this fall follow a 46 percent drop in new international students, and a 15 percent drop in total international students, in academic year 2020–21 compared to the year before. Those numbers come from the newly released Open Doors census of international enrollments, conducted annually by IIE with funding from the U.S. Department of State.

Chronicle of Higher Education, International Enrollments Tumble Below One Million for the First Time in Years, and Covid Is to Blame:

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Lederman: Best Practices In Tax Rulings Transparency

Leandra Lederman (Indiana; Google Scholar), Best Practices in Tax Rulings Transparency:

Tax rulings reflect agreement by a tax administration to a particular tax treatment of a planned transaction. They provide certainty to taxpayers and the government, lowering costs on both sides. Such rulings are therefore used by many countries. Yet, secrecy that is followed by leaks and criticism is a recurring aspect of these rulings. Perhaps most well known in this regard is the 2014 LuxLeaks scandal. LuxLeaks revealed numerous tax rulings issued by the European country of Luxembourg containing what the press sometimes termed “sweetheart deals” between the Luxembourg tax authority and multinational companies. The United States has also experienced embarrassing revelations in the tax rulings context, such as during the period before it began disclosing anonymized versions of letter rulings.

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Rodriguez: Legal Education As A Key Stakeholder In Legal Services Reform

Dan Rodriguez (Former Dean, Northwestern), Legal Education as a Key Stakeholder in Legal Services Reform:

The fierce and fascinating struggle underway in the American states over legal services reform brings to the table a large collection of interest groups.  These groups include law firms, legal aid organizations, entrepreneurs who might benefit financially from the liberalization of entry rules, and of course the gatekeeper entities, including state bar authorities and the state supreme courts, whose decisions are crucial to the evolution and shape of reform. ...

What remains somewhat opaque in this robust and interconnected battle over the reform of legal services is the voice of legal educators and the law schools.  These are, after all, the places in which future lawyers are educated and professional values are instilled.  It is had to imagine a more fertile and opportune time to discuss the ambitions and philosophies of this next generation of legal professionals. ...

However configured, law schools can certainly be valuable venues for deep and broad discussions about reform and, under the right conditions, places for discernible movements to emerge and flourish.  Yet, as we look over the battlefield in which stakeholder groups take strong positions, there is a still deeper question for legal education worth—that is, whether and to what extent our system of legal education has a significant stake in the outcomes of these battles? And just as important, on what side of these struggles ought law schools to be on? ...

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The Renewed Need For Guidance Addressing Partnership 754 Election Revocations

Dion S. Toledo (J.D. 2020, UC-Irvine), Note, The Renewed Need for Guidance Addressing Partnership 754 Election Revocations, 11 U.C. Irvine L. Rev. 999 (2020):

The section 754 election of the Internal Revenue Code allows partnerships to make basis adjustments to avoid potentials for double taxation that can arise following transfers of partnership interests and distributions of partnership property. Once made, a 754 election applies to all future tax years and is revocable only with the consent of the Internal Revenue Service (Service). One subsection of the Treasury Regulations addresses when the Service might approve or deny a partnership’s request to revoke a 754 election. Despite the process contemplated in this regulation, until recently, partnerships could default out of a 754 election without Service approval through a technical termination. The lack of recorded application of the regulation implies that partnerships have largely not needed to rely on—and the Service has not needed to apply—the 754 election revocation regulation.

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Herzfeld Presents Taxes Are Not Binary: The Unfortunate Consequences Of Splitting Taxes Into Arbitrary Categories Today At NYU

Mindy Herzfeld (Florida) presents Taxes Are Not Binary: The Unfortunate Consequences of Splitting Taxes Into Arbitrary Categories at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

Binary categorization of a “tax” into one of two alternative categories has important substantive implications in a number of disciplines, including constitutional law, tax law, accounting, and trade. Constitutional references to direct tax have been important through American history, factoring into the legality of various new types of taxes and now raising their head again in the context of current debates over the wealth tax. The binary separation of taxes into two categories of direct and indirect taxes also has important consequences in the trade area, as trade agreements generally categorize border adjusted direct taxes as export subsidies but generally bless border adjusted indirect taxes. A separate binary distinction exists between the definition of income and non-income tax. Within the U.S. federal income tax law, the split of a tax into an income or non-income tax has important consequences for creditability of foreign taxes, with large implications for companies’ bottom lines.  In the accounting world, the consequences of treatment of an income tax or non-income tax are relevant for financial statement purposes – the latter is classified in a separate line item in the income statement, while the former is “above the line” and lumped into gross income.

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WSJ: AmEx Pitched Business Customers A Tax Break That Doesn’t Add Up

Wall Street Journal, AmEx Pitched Business Customers a Tax Break That Doesn’t Add Up:

Businesses were told they could deduct transaction fees while earning tax-free cash rewards.

The pitch went out to eye doctors, McDonald’s franchisees and payroll companies: “Reduce your taxable income burden to Uncle Sam.”

In phone calls, emails and in-person meetings with thousands of business owners, American Express salespeople laid out the strategy. Use AmEx to pay your employees and suppliers, they said. You’ll have to pay a fee, but you’ll come out ahead. That’s because you can earn rewards on the transaction that can be converted into untaxed cash, while also deducting the transaction fees for tax purposes.

The pitch helped AmEx bring in billions of dollars of transaction volume since at least 2018, according to people familiar with the matter and documents reviewed by The Wall Street Journal. But there was a problem: The strategy relied on a shaky interpretation of how tax law treats rewards points.

In July, a whistleblower filed a report with the Internal Revenue Service alleging that AmEx knowingly persuaded business owners to underreport their income and taxes.

This is “a big company encouraging tax wrongdoing,” said Gregory Lynam, co-founder of Lynam Knott, the law firm that filed the report on the whistleblower’s behalf. It “promotes a tax shelter that doesn’t work.”

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Texas A&M Law School To Be Centerpiece Of New $250+ Million Fort Worth Campus Housing A National Law Firm

Texas A&M Press Release, New Texas A&M System Center Eyed for Downtown Fort Worth:

Hub for collaboration with industry would rise alongside new law school building.

Fort Worth government and business leaders and Texas A&M University System officials are working together on plans to build a new downtown research campus to spur innovation and business development. ... 

“The A&M System is making a Texas-sized commitment to Fort Worth,” Chancellor John Sharp said. “Welcome to Aggieland North.” ...

A new Law School would serve as the front door and academic anchor of the urban campus.

The current law school is housed in the former Southwestern Bell call switching facility that was converted for office use. The school also uses leased space in a nearby building. The plan envisions renovating or rebuilding the law school to accommodate growth and provide a state-of-the art educational environment.

Since the A&M System acquired the law school eight years ago, it has experienced the largest jump to its reputational score of any law school in the United States. It recently passed its Texas counterparts at Baylor University and the University of Houston in the latest U.S. News & World Report rankings.

Law.com, 'A Texas-Sized Commitment to Fort Worth': Texas A&M Law School Plans Massive New Campus:

The specific cost of the project is not yet known since so many of the pieces are still in the conceptual stage, but the numbers are somewhere between $250 million to $350 million total, according to the law school spokesman.

Reuters, Roommate Wanted: Texas A&M in Talks to Host National Law Firm on New Campus:

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Only 57% Of White Students At Harvard Are Admitted On Merit

The Guardian, Turns Out, Harvard Students Aren’t That Smart After All:

A whopping 43% of white students weren’t admitted on merit. One might call it affirmative action for the rich and privileged.

Ever wondered what it takes to get into Harvard? Stellar grades, impressive extracurriculars and based on a recently published study, having deep pockets and a parent who either works or went there. Those last two are pretty important for Harvard’s white students because only about 57% of them were admitted to the school based on merit.

In reality, 43% of Harvard’s white students are either recruited athletes, legacy students, on the dean’s interest list (meaning their parents have donated to the school) or children of faculty and staff (students admitted based on these criteria are referred to as ‘ALDCs’, which stands for ‘athletes’, ‘legacies’, ‘dean’s interest list’ and ‘children’ of Harvard employees). The kicker? Roughly three-quarters of these applicants would have been rejected if it weren’t for having rich or Harvard-connected parents or being an athlete. ...

This kind of systemic favoritism of the white, wealthy and connected is not new when it comes to elite academic institutions. It’s always been a bit of a rigged game, one that overwhelmingly favors rich white people.

Peter Arcidiacono (Duke; Google Scholar), Josh Kinsler (Georgia; Google Scholar) & Tyler Ransom (Oklahoma; Google Scholar), Legacy and Athlete Preferences at Harvard, 40 J. Labor Econ. ___ (2022):

The lawsuit Students For Fair Admissions v. Harvard University provided an unprecedented look at how an elite school makes admissions decisions. Using publicly released reports, we examine the preferences Harvard gives for recruited athletes, legacies, those on the dean’s interest list, and children of faculty and staff (ALDCs). Among white admits, over 43% are ALDC.

Among admits who are African American, Asian American, and Hispanic, the share is less than 16% each. Our model of admissions shows that roughly three quarters of white ALDC admits would have been rejected if they had been treated as white non-ALDCs. Removing preferences for athletes and legacies would significantly alter the racial distribution of admitted students, with the share of white admits falling and all other groups rising or remaining unchanged.

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In Response To Criticism, ABA Releases Revised Proposed Diversity Accreditation Standard For Notice And Comment

Following criticism (here, here, here, and here) of the ABA's proposed new diversity accreditation standard, the Council of the ABA Section of Legal Education and Admissions to the Bar on Friday sent a revised version out for notice and comment:

Standard 206. DIVERSITY, EQUITY, AND INCLUSION
(a) A law school shall ensure the effective educational use of diversity by providing:
(1) Full access to the study of law and admission to the profession to all persons, particularly members of underrepresented groups related to race and ethnicity;
(2) A faculty and staff that includes members of underrepresented groups, particularly those related to race and ethnicity; and
(3) An inclusive and equitable environment for students, faculty, and staff with respect to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status.
(b) A law school shall report in the Annual Questionnaire and publish in accordance with Standard 509(b) data that reflects the law school's performance in satisfying Standard 206(a)(1)-(2).
(c) A law school shall annually assess the extent to which it has created an educational environment that is inclusive and equitable under Standard 206(a)< br />(3). The law school shall provide the results of such annual assessment to the faculty. Upon request of the Council, a law school shall provide the results of such assessment and the concrete actions the school is taking to address any deficiencies in the educational environment as well as the actions taken to maintain an inclusive and equitable educational environment.

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NY Times: Companies Love To Buy Back Their Stock. A Tax Could Deter Them.

New York Times, Companies Love to Buy Back Their Stock. A Tax Could Deter Them.:

Supporters of the Biden buyback tax say it will be good for the economy. Skeptics say it will hurt investment.

Corporate America has been feeding a stock buyback boom for decades, with companies spending trillions of dollars to repurchase their shares without paying any taxes on those transactions.

That could soon change.

In President Biden’s roughly $2 trillion Build Back Better Act, which narrowly passed the House on Friday but faces a tough fight in the Senate, Democrats have proposed a 1 percent tax on stock buybacks. Although it may not seem like much, the tax is a way to raise as much as $124 billion over 10 years, according to government estimates, and could help pay for the social spending and climate package.

Both supporters and critics of the proposed surcharge say it could alter the behavior of companies, but in ways that would have very different consequences for the economy.

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Jenoff: Big Law Dreams

Pam Jenoff (Rutgers), Big Law Dreams, 13 Fla. A & M U. L. Rev. 183 (2018):

Upon graduation, law students continue to seek positions with large law firms in record numbers. Graduates are drawn to Big Law for the purported pluses of high compensation; interesting work; extensive training and resources; mobility and prestige. However, a closer examination of the present-day realities reveals that these beliefs may be outdated, overstated, or simply incorrect. Students who make their career choices based on such premises may find themselves trapped in ill-fitting and unsatisfying positions. Moreover, an unyielding focus on Big Law based on faulty assumptions may have costs and consequences for legal education and the provision of legal services. This essay focuses on the factors contributing to the law student’s unrelenting drive toward Big Law. It examines the underlying assumptions built into that drive and whether they are valid. It explores the cost to graduates, the profession and society if students follow these assumptions and pursue a career in Big Law without careful thought and reflection. 

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Call For Articles: The Tax Lawyer

The Tax Lawyer is currently accepting submissions for its 2022 Spring and Summer issues. Submit your work by early December to be considered for the Spring issue.

Why publish in The Tax Lawyer?

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Hemel & Weisbach: The Behavioral Elasticity Of Tax Revenue

Daniel Hemel (Chicago; Google Scholar) & David Weisbach (Chicago; Google Scholar), The Behavioral Elasticity of Tax Revenue, 13 J. Legal Analysis 381 (2021):

This article presents a measure of the efficiency consequences of changes to tax policies that inform a wide range of tax law debates. Building upon recent extensions to the “elasticity of taxable income” concept, we clarify the relationship among revenue effects, administrative costs, and compliance costs. The resulting measure—the behavioral elasticity of tax revenue (BETR)—captures the change in total resources resulting from marginal changes in tax rates, the tax base, or tax enforcement. We illustrate the BETR’s utility through a series of case studies.

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Hemel: Make The Expanded Child Tax Credit Permanent With This One Easy Trick

Daniel Hemel (Chicago; Google Scholar), Make the Expanded Child Tax Credit Permanent With This One Easy Trick:

Here's how Democrats can significantly reduce child poverty over the long term.

The Build Back Better Act—which passed the House by a 220-213 vote on Friday—makes important changes to the child tax credit. It extends the $3000-per-child credit ($3600 for children under age 6) through 2022. And it makes the credit fully refundable on a permanent basis. By one estimate, these changes will reduce child poverty by more than 40 percent within a single year.

Unfortunately, the $3000 credit (or $3600 for young children) won’t last long. In 2023, the credit amount will fall back to $2000 per child. And starting in 2026, due to a sunset provision in the Trump Tax Cuts and Jobs Act, the credit will fall to $1000 per child. Ideally, congressional Democrats would have agreed to make the entire child tax credit expansion permanent. They could have offset the cost by taxing unrealized gains at death, eliminating the passthrough-deduction giveaway, and raising the corporate income tax rate to somewhere in the mid- to high-20s. Alas, some Democrats decided that they would rather let millions of children languish in poverty than enact common-sense revenue-raising tax reforms.

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Ohio State Plans To Make Degree Debt-Free For Its 50,000 Undergraduates; The First Cohort Is 125 Students In Fall 2022

Scarlet & Gray Advantage:

The Ohio State University is creating the Scarlet & Gray Advantage program with a bold goal: to offer undergraduate students the opportunity to earn their bachelor’s degree, debt-free. This program, which will be brought to scale over the next decade, will empower Buckeyes to control their own financial futures and prepare for success after graduation. To achieve this ambitious and meaningful goal for our Buckeyes, we welcome support from generous donors and friends who will help turn students’ dreams into realities and inspire others to do the same.

A matching program like no other
Ohio State will raise at least $800 million over the next decade to expand undergraduate scholarships.

To kick off this effort, the university and lead donors have created a matching program that will double up to $50 million in private donations (of $100,000 or more) that establish new endowments or support existing ones for scholarships. The university will also provide grant assistance.

Chronicle of Higher Education, Ohio State U. Unveils a Plan for All Students to Graduate Debt-Free:

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Tenured Fordham Professor Challenges Termination For Masturbating During Zoom Lecture

New York Post, Ex-professor Fired For Allegedly Masturbating During Zoom Lecture Sues Fordham:

A professor fired from Fordham University after he was accused of masturbating during a Zoom lecture is suing the Bronx school, claiming his erectile dysfunction made the allegation “virtually impossible.”

The student who filmed the video is also suing Fordham, claiming she faced retaliation after she turned over the awkward 2020 video.

Howard Robinson, 68, was a tenured professor at the university’s Graduate School of Social Service when graduate student Andrea Morin filmed a video of the teacher appearing to masturbate during a Sept. 10, 2020 class, the lawsuits state.

But Robinson said in a Sept. 16 petition in Bronx Superior Court that his erectile dysfunction and low testosterone levels make it “virtually impossible for him to get an erection or masturbate,” which he had told school officials in the subsequent inquiry.

Morin alleged in her lawsuit she saw Morin “from above his waist, and observed him for a period of 1.5 minutes, during which time he was shaking, breathing hard, and saying ..oh f*** yeah.” This happened as students had broken out into separate “breakout rooms,” and she had her camera turned off due to illness, court records allege.

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Law Professor Investigated Presidential Search At His University. It Said He Was Out of Line.

Chronicle of Higher Education, This Professor Investigated a Presidential Search at His University. It Said He Was Out of Line.:

Steve Sanders knows a lot of people. He’s been around Indiana University at Bloomington for decades, first as a student, then as an assistant to a series of senior administrators, finally as a law professor. He is involved in faculty governance and is active in the alumni network. As he has put it, “I am not exactly on the fringes of the university.”

When you’re in the mix, people tell you things. Immediately after IU announced Pamela Whitten last spring as its next president, rumors “started flying” that the search process had contained some “oddities,” Sanders told The Chronicle in an interview. He was interested. So he dug deeper.

Eventually he published an article on Medium about what he’d learned [‘You have no idea how strange this process has been’: The long, difficult search for IU’s 19th president]. He described a “tortuous” search that demonstrated “the problems of secrecy, and a Board of Trustees unaccustomed to working in a shared-governance process.” He pointed to documents showing the board had agreed to new compensation for the departing president behind closed doors.

He acknowledged that he was friends with an internal candidate [Provost and former Law Dean Lauren Robel], who had not been chosen, but made the case that his investigation had a legitimate public interest: “Critically examining the workings of an important public institution, so that the members of its community can then discuss and draw lessons, is valuable in its own right.”

Publicly, IU said little. In correspondence, its general counsel expressed irritation at Sanders’s conduct, saying that the professor had violated university policy by publishing what he did, and wasn’t “the crusader for public transparency that he hails himself to be.” And someone filed a public-records request to see Sanders’s emails, presumably to figure out how he knew what he knew [I’ve been looking into IU’s presidential search. Now a law firm is demanding to snoop through my email.].

The case reveals a wide gap between a faculty member’s notion of what he can probe and publicize, and the university’s much narrower idea. Administrators may want criticisms and unflattering information to be kept in house. But that’s miles away from how professors conceive their rights, and their purpose, under the principles of academic freedom.

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Lesson From The Tax Court: How To Mess Up Your Checkbook IRA

The idea that freedom means control over your own destiny s arguably the most defining characteristic of American culture.  It is most certainly the basis on which various companies promote “checkbook IRAs.”  If you Google that term you will find a gaggle of companies urging people to take full control of their retirement funds, to free themselves from restrictive IRA custodians. The companies promote structures that purport to allow taxpayers maximum freedom over their investment decisions.  Freedom equals control. 

In Andrew McNulty and Donna McNulty v. Commissioner, 157 T.C. No. 10 (Nov. 18, 2021)(Judge Goeke) we learn that too much control messes up a checkbook IRA.  There, Mr. and Ms. McNulty created a checkbook IRA, funded it with transfers from their other retirement accounts, and then used the money to buy gold coins which they stored in their home.  The Tax Court said that last bit—storing the physical coins in their home—was too much control and thus the receipt of the coins was a taxable distribution to them.  While the taxpayers crossed the line in this case, it may not be altogether clear where that line is.  How far can a taxpayer go before they mess up their checkbook IRA?  Let’s see what we can learn.  Details below the fold.

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U.S. Tax Court's Tax Trailblazers: Justice Shawna Baker

U.S. Tax Court's Diversity & Inclusion Series, Tax Trailblazers: Mentoring the Next Generation:

Please join the United States Tax Court for the next in its Tax Trailblazers series. November’s webinar will honor Native American Heritage Month and focus on Justice Shawna S. Baker of the Cherokee Nation Supreme Court. Today at 7:00-8:15 PM EST (register here).

Shawna S. Baker is a Cherokee Nation Supreme Court Justice and managing attorney of Family Legacy and Wealth Counsel, PLLC. She is the first member of the LGBT community and only the third woman ever confirmed to the Cherokee Nation Supreme Court.

Before being appointed, Justice Baker served as a litigation associate, an attorney and a managing partner at various law firms, a trustee of a charitable organization, and an assistant professor at the Florida Coastal School of Law.

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Florida State Law School Associate Dean Dies From COVID-19 At Age 48
• WaPo: The Country’s Most Popular Law School Got An Unexpected Jolt
• Break Into Tax: Introduction To Deductions

Sunday:

• When The Church Does Right, And The State Goes Wrong: A Condemned Man's Right To Prayer And ‘Human Contact’ Before His Execution
• Church Taxes And The Original Understanding Of The Establishment Clause
• 38% Of U.S. Pastors (46% Of Those Under Age 45) Have Thought About Quitting In The Past Year
• The Top Five New Tax Papers

When The Church Does Right, And The State Goes Wrong: A Condemned Man's Right To Prayer And ‘Human Contact’ Before His Execution

David French (The Dispatch), When the Church Does Right, and the State Goes Wrong:

A condemned man’s last request puts our nation’s constitutional commitments to the test.

There is absolutely no question that John Henry Ramirez did a truly evil, horrible thing. In 2004, he attacked and stabbed to death a man named Pablo Castro. Ramirez beat him and stabbed him 29 times, leaving him dead in the street—all for the $1.25 in his pocket. Castro had nine children.

I wanted to start this piece by remembering Ramirez’s crime and Castro’s death because death penalty debates all too often lose sight of the victim of the crime. In focusing on the state’s procedural flaws or its unfair systems, we can neglect the terrible thing that happened and the shattered families who live with the pain of horrific loss.

There is also no question that not even murderers are beyond the reach of the grace of God. After all, Christians worship a savior who forgave his own executioners as they unjustly put him to death and cast lots for his garments. “Father forgive them,” He said, “for they know not what they do.”

According to ancient church traditions, the criminal on the cross who asked Jesus, “Remember me when you come into your kingdom” was no mere “thief” as we understand that term today. Instead he was likely a man with blood on his hands, crying out to God in his very last moments.

And what was Jesus’s response? “Truly, I say to you, today you will be with me in paradise.”

The story of John Henry Ramirez begins with depravity and evil but then changes into a story that illustrates what the church does right, and the state does wrong. It’s the story of a pastor and a church who reached out to a condemned man and welcomed him into their ranks. But it’s also the story of a state that is deliberately withholding meaningful spiritual comfort from him at the moment of his death—for no compelling reason at all.

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Church Taxes And The Original Understanding Of The Establishment Clause

Mark Storslee (Penn State; Google Scholar), Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Pa. L. Rev. 111 (2021):

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from ‘aiding’ or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe.

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38% Of U.S. Pastors (46% Of Those Under Age 45) Have Thought About Quitting In The Past Year

Barna, 38% of U.S. Pastors Have Thought About Quitting Full-Time Ministry in the Past Year:

Recent data collected from Barna’s pastor poll indicate that U.S. pastors are currently in crisis and at risk of burnout. Notably, in 2021 alone, there has been a dramatic increase in the number of pastors who are thinking about quitting ministry entirely.

Nearly Two in Five Pastors Have Considered Quitting Full-Time Ministry
With pastors’ well-being on the line, and many on the brink of burnout, 38 percent indicate they have considered quitting full-time ministry within the past year. This percentage is up 9 full points (from 29%) since Barna asked church leaders this same question at the beginning of 2021.

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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. [284 Downloads]  The Tax Gap's Many Shades of Gray, by Daniel Hemel (Chicago; Google Scholar), Janet Holtzblatt (Tax Policy Center) & Steve Rosenthal (Tax Policy Center)
2. [209 Downloads]  The 2021 Compromise, by Ruth Mason (Virginia; Google Scholar) (reviewed by Charlotte Crane (Northwestern; Google Scholar) here)
3. [188 Downloads]  Implementing an International Effective Minimum Tax in the EU, by Joachim Englisch (Münster) & Johannes Becker (Münster; Google Scholar)
4. [177 Downloads]  Colorblind Tax Enforcement, by Jeremy Bearer-Friend (George Washington; Google Scholar)
5. [165 Downloads]  Prepaid Death, by Victoria Haneman (Creighton; Google Scholar)

This Week's Ten Most Popular TaxProf Blog Posts

1. Josh Blackman (South Texas) & Washington Free Beacon, Yale Law School Dean Heather Gerken Admits Error, Stops Short Of Apologizing To Targeted Students; Law Prof Calls For Conservative Yale 1Ls To Transfer 
2. Washington Free Beacon, Yale's Akhil Amar Calls Law School Administration's Handling Of 'Trap House' Email Controversy 'Dishonest, Duplicitous, And Downright Deplorable' 
3. Andrew Koppelman (Northwestern), This Is A Witch-Hunt Against A Tenured Law Professor
4. Paul Caron (Dean, Pepperdine), 25% Of The Way Through The Fall 2022 Law School Admissions Cycle: Applicants Are Up 2.3%, But Down In All LSAT Bands (Especially 170-180 (-11.2%)), Except 150-159 (+11.4%)
5. David Lat & Eugene Volokh (UCLA), More On The Two Yale Law School Controversies 
6. Simon Lazarus, Where YLS Has Gone Off The Rails, And What Is Needed To Get Back On Track
7. Arkansas Democrat-Gazette, Association Of Jewish Lawyers And Jurists Backs Jewish Law Prof's Discrimination Claim Over Religious Accommodation In Teaching During Jewish Holy Days
8. Bryan Camp (Texas Tech), Lesson From The Tax Court: Not Every Decision Comes With An Opinion
9. Mary Eberstadt (Wall Street Journal op-ed), Millennials, Put Away Childish Political Things
10. California Bar, Bar Exam Pass Rate Falls As Bar Adjusts Scores Of 31% Of Examinees Impacted By ExamSoft Tech Issues