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

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

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

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Tax Policy In The Trump Administration

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

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Weekly Legal Education Roundup

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

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

Following up on my previous posts:

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

Extegrity Statement (Sept. 14, 2020):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That did sit well with professors who teach feminist legal theory.

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Why Law Firms Collapse

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

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

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

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Shurtz: Tax, Class, Women, And Elder Care

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

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

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

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

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

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

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

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

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

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

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

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Kristin Hickman Named McKnight Presidential Endowed Professor At University Of Minnesota

Professor Hickman Named a McKnight Presidential Professor:

Professor Kristin Hickman has been named a McKnight Presidential Professor.

The McKnight Presidential Endowed Professorship program at the University “is one of the highest honors for faculty and recognizes highly distinguished, world-class scholars. In recognition of their excellence, the names of all McKnight Presidential Professors are engraved on monuments that line our Scholars Walk.” Recipients are chosen based on their academic and research accomplishments and their contributions to advancing the University among its peers.

Hickman, who joined the Law School in 2004, is a leading authority in the fields of tax administration and administrative law. Her articles on these topics have appeared in the Columbia Law Review, Cornell Law Review, and Duke Law Journal, among other publications.

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Professors Have Given Seven Times As Much To Biden Than To Trump

Inside Higher Ed, Higher Ed Gave Five Times As Much To Biden Than Trump:

Though the nation finds itself deeply divided, it’s clear whom employees at the nation’s higher education institutions are supporting financially in the presidential race.

According to federal elections records, those who listed their employer as a college or university have given Democratic candidate Joe Biden about $4.9 million in contributions, more than five times as much as the $890,000, including donations from for-profit college executives, that they have given President Trump.

The contributions to Biden have come widely, from about 8,800 donors, compared to the 2,800 higher education employees who want to see another four years of a Trump administration.

Even more pronounced are whom those college or university employees, who listed their occupation either as professor, instructor or teacher, are giving to. The educators have given about $2.7 million to Biden, according to Federal Election Commission records in the election cycle beginning in January 2019 -- or seven times as much as the $353,00 they have to Trump. ...

The list of institutions whose employees have given the most to Biden’s campaign is topped by major universities. Employees of the University of California system have given Biden $186,000, followed by the $152,000 donated by employees at Stanford University and the $135,000 donated by Georgetown University workers.

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Brunson: Addressing Hate — Georgia, The IRS, And The KKK

Sam Brunson (Loyola-Chicago), Addressing Hate: Georgia, the IRS, and the Ku Klux Klan:

In 1944, the Ku Klux Klan officially suspended its operations. Two years later, it had entirely ended. In part this was the inevitable result of a decade of declining influence and membership. In part, though, it was the result of actions by the federal government and the state of Georgia.

In 1916 the Ku Klux Klan incorporated as a Georgia fraternal organization, following a model of the Masons and other fraternal organizations. It also claimed to be a tax-exempt fraternal beneficiary society under the new federal income tax. These legal statuses provided the Klan with legal rights and benefits and also shrouded it in a cloak of respectability: it could claim that it was not merely a terroristic white supremacist group, but that it provided fraternal benefits to its members and the surrounding community.

Its incorporation and tax status provided it with benefits, it also imposed obligations on the organization. The Klan ultimately proved incapable of meeting these requirements. It violated the terms of its corporate charter and of tax exemption as a fraternal beneficiary society. The Bureau of Internal Revenue assessed a $685,305 tax on the Klan and, when the Klan did not pay, filed a lien. The state of Georgia in turn revoked its corporate charter. While these moves did not cause the second Klan’s death, they did seal its death.

This Article relates the story of the Klan’s corporate and tax statuses.

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More NALP Salary Data For The Law School Class Of 2019

Following up on my previous post, NALP: Law School Class Of 2019 Attains Highest Employment Rate (90.3%) In 12 Years As Uncertainty Looms For Class Of 2020:  NALP, Jobs & JDs: Employment and Salaries of New Law School Graduates — Class of 2019:

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House Of Cards: Can The American University Be Saved?

The Nation:  House of Cards: Can the American University Be Saved?, by Daniel Bessner University of Washington):

The Covid-19 pandemic has revealed the glaring contradictions in American higher education. State research universities are preparing to decrease services in light of anticipated budget shortfalls as small liberal arts colleges teeter on the brink of financial ruin. Meanwhile, Ivy League and other rich universities have refused to dip into their massive endowments and have instead chosen to pursue austerity while increasing tuition—and increasing debt—for their students.

Across the country, universities are canceling classes and furloughing workers, leaving thousands stranded without income. Though some schools have lengthened the tenure timelines of assistant professors, the majority have refused to extend a similar courtesy to graduate students. Staff members and adjuncts have likewise been abandoned—forced to work fewer hours or unceremoniously let go. The situation is likely to get worse as students refuse to shell out tens of thousands of dollars to take subpar online courses while sitting in their living rooms. Without exaggeration, American higher education may be on the verge of a total breakdown.

To those who labor in universities, the precarious condition in which academia finds itself is no surprise. For years, the university system has been operating on borrowed time. Beginning in the 1980s, college administrators, often employing high-fee consultants, hollowed out the academic workforce, replacing full-time jobs with contingent positions that were poorly paid and benefited. At the same time, exploding tuition costs obliged students to take out enormous loans that compelled them to view higher education primarily as a precursor to employment—employment that, as the economy worsened, was rarely guaranteed. This house of cards, built on exploitation, anti-intellectualism, and massive debt, was doomed to collapse.

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Shanske & Gamage: How The Federal Reserve Should Help States And Localities

Darien Shanske (UC-Davis) & David Gamage (Indiana), How the Federal Reserve Should Help States and Localities Right Now, 96 Tax Notes State 765 (May 11, 2020):

This essay explains how and why the Federal Reserve could support state and local governments during the COVID-19 emergency to prevent drastic spending cuts.

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Repetti Presents The Appropriate Roles For Equity And Efficiency In A Progressive Income Tax Virtually Today At Oregon

Jim Repetti (Boston College) presents The Appropriate Roles for Equity and Efficiency in a Progressive Income Tax, 24 Fla. Tax Rev. ___ (2020), virtually at Oregon today as part of its Tax Policy Colloquium Series hosted by Roberta Mann:

Increased focus on economic efficiency in formulating tax policy, at the expense of achieving equity, has resulted in decreased rate progressivity in our individual income tax. This decrease has exacerbated inequality.

There are several explanations for the intense focus on efficiency and reduced emphasis on equity. Predictions of efficiency gains from low individual income tax rates appear more certain than equity gains from progressive tax rates. Efficiency gains seem measurable, while equity gains appear intangible and unquantifiable. In addition, distributive justice, which underlies and shapes tax equity, exists in many abstract forms, some of which may not require progressive tax rates. 

This article argues, however, that the emphasis on efficiency is misplaced. Inequality imposes measurable costs on the health, social wellbeing and intergenerational mobility of our citizens, as well as on our democratic process, which are corroborated by significant empirical analysis.

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Ordower Posts Three Tax Papers On SSRN

Henry Ordower (St. Louis), Capital, an Elusive Tax Object and Impediment to Sustainable Taxation, 24 Fla. Tax Rev. ___ (2021):

Sustainable taxation requires stability and predictability. Sustainable taxation is a tax or taxes that collect sufficient revenue to support the governmental goods and services the society needs and wants. The taxes must provide for 1) even-handedness — something akin to horizontal equity, 2) distributional fairness — a concept emerging from notions of vertical equity, 3) transparency in application so that the populace understands and accepts the tax and the need for it and 4) collection mechanisms that do not favor some societal groups, especially those with resources to secure creative tax advisors, over others who lack the resources. Narrow base taxes — fuel, alcohol, tobacco — cannot meet these criteria and the broad base taxes currently applicable — value added, payroll and income — also fail to meet one or more of the criteria. While specialized taxes like environmental taxes and sin taxes (alcohol, tobacco) serve useful regulatory functions and may achieve their behavioral objectives in part, they do so primarily by increasing the cost of engaging in the undesirable behavior and pricing some actors out of the activity. Using a pricing rather than a direct regulatory mechanism, the specialized taxes change the conversation from social rejection of the behavior to acceptance as long as the actor is willing and able to pay the high price. Is it all right to pollute if one pays to do so? Direct regulation might prove less regressive and less likely to be viewed as simply a matter of price and more as a matter of societal mainstream and commitment to addressing a problem.

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Requiring Security Of Position For All Skills Faculty Under ABA Accreditation Standard 405(c) (And Eliminating Standard 405(d))

J. Lyn Entrikin (Arkansas-Little Rock), Lucy Jewel (Tennessee), Susie Salmon (Arizona), Craig T. Smith (North Carolina), Kristen K. Tiscione (Georgetown) & Melissa H. Weresh (Drake), Treating Professionals Professionally: Requiring Security of Position for All Skills-Focused Faculty under ABA Accreditation Standard 405(c) and Eliminating 405(d), 98 Or. L. Rev. 1 (2020):

Standard 405 is imperfect at best. In theory, it began as a way to ensure competent law faculties by affording security of position and academic freedom. But its later permutations, Standards 405(c) and (d), create and perpetuate a hierarchy that favors mostly male, doctrine-focused faculty and discriminates against mostly female, skills-focused faculty, even though both groups teach the same students.

All law faculty should be eligible for tenure and the protections it affords. At this juncture, we recognize that advocating for tenure opportunities for all faculty likely represents too large a leap. Thus, this paper calls on the ABA to both (1) require that all professional skillsfocused faculty—both clinical and legal writing faculty—be afforded protection under Standard 405(c) at minimum, and (2) eliminate Standard 405(d).

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History Is Happening Tonight At 6:00 PM PT On Zoom

At the Pepperdine Caruso Law Christian Legal Society weekly bible study:  "What I Wish I Knew About Justice When I Was a Law Student"

How Well-Targeted Are Payroll Tax Cuts As A Response To COVID-19? Evidence From China

Wei Cui, Jeffrey Hicks & Max B. Norton (British Columbia), How Well-Targeted Are Payroll Tax Cuts as a Response to COVID-19? Evidence from China:

Numerous countries cut payroll taxes in response to economic downturns caused by COVID-19. This includes China, which completely exempted most firms from making social insurance (SI) contributions, resulting in an average tax cut of 21 percentage points on formal labor costs and approximately 20% of total tax remittances made by firms. We use novel data on 900,000 firms in one Chinese province to document new facts about the structure of SI in China and evaluate payroll tax cuts as a COVID-19 relief measure. We calculate that labor informality causes 54% of tax-registered firms---representing 24% of aggregate economic activity---to receive no benefits. Labor formality also increases with firm size, further skewing the benefit of payroll tax cuts towards large firms.

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WSJ: MBA Hiring Is Down 60% This Year

Wall Street Journal, M.B.A.s Are Usually Swimming in Job Offers by Now. Not This Year.:

Business school students are bracing for an uncertain job market this coming school year as many traditional corporate recruiters shelve their usual fall hiring plans.

At a time of year when many business school students are polishing their networking skills and getting their business haircuts, a number of big companies, including consulting giant PricewaterhouseCoopers, say there will be no jobs on offer to second-year M.B.A. candidates, beyond those who interned this summer, looking to lock down a position before they graduate.

The murky job market has both students and schools worried. M.B.A. students can pay $200,000 or more to attend some of the most elite programs, once two years of living costs are factored in, for the promise of an accelerated career and higher salary. Schools market strong job-placement rates to prospective students; those rates ranged between 80% to 90% for many highly ranked programs before the pandemic hit.

PwC said it has no plans to hire up to 100 second-year M.B.A. students as it usually does each fall. ...

Other companies [Bain and EY] say they are taking a wait-and-see approach. ... Kevin Stacia, an M.B.A. career coach and corporate-relations manager at Georgia Tech’s Scheller College of Business, said students and employers are stuck in limbo for now. “Nobody is making commitments yet,” he said. ...

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Amidst 75% Enrollment Decline, Thomas Cooley Abandons Naming Rights To Minor League Baseball Stadium

Karen Sloan (Law.com), Struggling Cooley Law School Relinquishes Minor League Ballpark Naming Rights:

It’s the end of an—admittedly strange—era in law school advertising.

The minor league baseball stadium in Lansing, Michigan, will no longer bear the name of Cooley Law School, the Lansing Lugnuts announced this week. The law school opted not to renew its naming rights for the ballpark, which it acquired in 2010 for $1.5 million over 11 years. That presumably leaves no professional sport venues in the country named for a law school. (The stadium deal was believed to be a first and no law school has followed suit in the subsequent decade.)

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The FTC Is Investigating Intuit Over TurboTax Practices

Following up on my previous post, Here’s How TurboTax Just Tricked You Into Paying To File Your Taxes:  ProPublica, The FTC Is Investigating Intuit Over TurboTax Practices:

The Federal Trade Commission has been investigating Intuit and its marketing of TurboTax products, following ProPublica’s reporting that the Silicon Valley company deceived tax filers into paying when they could have filed for free.

The FTC probe, run out of the commission’s Bureau of Consumer Protection, centers on whether Intuit violated the law against unfair and deceptive practices in commerce. One focus of the investigation is whether TurboTax marketing misdirected customers who were eligible to file their taxes for free into paid products.

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Kern Presents Illusions Of Justice In International Taxation Virtually Today At NYU

Adam Kern (Ph.D. 2021, Princeton) presents Illusions of Justice in International Taxation virtually at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

I criticize a common way of thinking about justice in international taxation, and I propose an alternative. My critical target is a claim I call the Capture Principle. Common ground among many government officials, leading tax scholars, and several of the few philosophers who have thought about international taxation, the Capture Principle asserts that each state should have rights to tax income generated from economic activities within its territory, rights whose value scales in proportion to the income generated from the hosted economic activities.

The Capture Principle appears to embody an ideal of reciprocity. I argue that this appearance is illusory. I examine three arguments that connect those two ideas, and I show that each fails on its own terms. Even if we ought not to free-ride off others, ought to pay compensation for the burdens we place on others’ public sectors, ought to reward people for the surplus value that they create— the Capture Principle does not follow.

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Stetson Competition Generates Tax Solutions To Address Climate Change

New Competition Generates Tax Solutions to Address Climate Change:

Stetson University College of Law launched a new competition to galvanize students to develop innovative tax law policies that could fund solutions for sea level rise.

Though tax policy might not be the first discipline to come to mind in which to seek tools to combat climate change, attorney and author Richard O. “Dick” Jacobs felt confident Stetson students, if given the challenge, could mine it to great effect. Rising sea levels are a pressing issue for Florida’s future, and Jacobs thought funding a competition would jump start a conversation by focusing on tax policy solutions to help address the problem.

And so The Stetson Environmental Tax Policy Writing Competition: Tax Policy Solutions to Address Sea Level Rise was born. Students submitted their ideas in late spring, and a committee of tax and environmental lawyers judged the competition using the following criteria: (1) breadth and depth of analysis and sources, (2) creativity and originality, (3) objectivity and legal accuracy, (4) effectiveness of writing style, (5) practicality for addressing the issue, and (6) compliance with the contest rules.

Submissions could include proposed changes to the Florida Constitution and to Florida tax and regulatory law. The first and second place winners split a $1,000 cash prize. The winners of the inaugural competition were:

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Location In Red Or Blue States Influences Whether Colleges Are Teaching On-Ground (Red) Or Online (Blue) This Fall

Inside Higher Ed, Political Influence on Fall Plans:

Colleges and universities looked at several factors when determining whether to reopen their campuses to students for the fall, including local COVID-19 case numbers, campuses' ability to physically distance students and what students said they wanted in surveys.

But another factor seems to have played a major role in the decision-making process, one that is not being touted in news releases or letters to the community: colleges' decisions appear to be closely tied to whether the state they are in is red or blue.

Data from the College Crisis Initiative at Davidson College was able to predict the likelihood of whether an institution planned to be in-person or predominantly in-person for the fall term based on the political leanings of the state.

"In an ideal world, perhaps it shouldn’t matter whether there’s a D or an R after your governor’s name," said John Barnshaw, vice president of research and data at Ad Astra, which provides scheduling software and consulting services to institutions of higher education. The company also partnered with Davidson College for its data project by sending out surveys to its members. "But it seems to matter, for better or for worse." ...

If the state was carried by President Trump in the 2016 election, colleges in that state are significantly more likely to have planned more in-person instruction in the fall. This is also true for states with Republican governors and Republican control of legislatures. Colleges in states with a trifecta of a governor, state senate and house all under control of the Republican Party are even more likely to be in person.

The inverse also is true — colleges in states with Democratic governors or legislative control are more likely to offer remote instruction. ...

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Today’s College Classroom Is A Therapy Session

Wall Street Journal op-ed:  Today’s College Classroom Is a Therapy Session, by Joseph Epstein (Northwestern):

Reading about ... award-winning teachers makes one wonder if teaching has become the pedagogical equivalent of psychotherapy. Ought teaching to be primarily about building self-esteem in students, “nurturing” and above all making them feel “safe?” And what do you suppose an “inclusive and anti-racist learning space” looks like?

The two biggest lies about teaching are that one learns so much from one’s students and, so gratifying is it, one would do it for nothing. I had a number of bright and winning students, but if I learned anything from them, I seem long ago to have forgotten it. I always felt I was slightly overpaid as a teacher, but I wouldn’t have accepted a penny less. The one certain thing I learned about teaching is that you must never say or even think you are a good teacher. If you believe you are, like believing you are charming, you probably aren’t. ...

Teaching ... is less about making students feel welcome, supported and safe than it is about making them mildly ashamed of their ignorance and slightly fearful of exposing it. Shame and fear (also of failure) may not be central to classroom learning, but are indubitably part of it. They certainly were of my own.

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Ropes & Gray Offers One-Year Deferral Program For Incoming And Current Associates; Will Other Big Law Firms Follow?

American Lawyer, Ropes & Gray Launches Voluntary Associate Deferral Program:

Ropes & Gray has kicked off a voluntary one-year deferral program for its incoming first-years, who are due to start in January, and its current associates.

While many big firms delayed the start of their 2020 first-year associate classes to early 2021, Ropes’ option of a full deferral year may be the first in the Am Law 100 this year  — and it could pave the way for others to offer similar recession-era programs.

Ropes has made clear that this decision was not a result of financial stress, and first-years can still choose to start at the firm in January. Ropes was also among the first firms to make its summer associate program virtual and shortened.

The firm will pay participants an $80,000 stipend to work at a public interest group or nonprofit. They may also take a $38,800 stipend—20% of first-year starting pay—to take a personal sabbatical doing whatever they wish, except for practicing law at a law firm. Above the Law first reported on the new offering Thursday.

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Oei & Ring: When Data Comes Home — Next Steps In International Taxation's Information Revolution

Shu-Yi Oei (Boston College) & Diane M. Ring (Boston College), When Data Comes Home: Next Steps in International Taxation's Information Revolution, 66 McGill L.J. ___ (2020):

Over the last decade, there has been a revolution in cross-border tax information exchange and reporting. While this dramatic shift was the product of multiple forces and events, a fundamental reality is that politics, technology, and law intersected to drive the shift to the point where nation-states will now transmit and receive from each other significant ongoing flows of taxpayer information. States can now expect to accumulate large stashes of data on cross-border income, assets, and activities on a scale and level of comprehensiveness unmatched by previous information exchange regimes.

This article examines the pressing follow-up question of how this data will be used and what issues nation-states will confront when data comes home.

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Arizona State Law Faculty And Staff Have Given $5 Million For Students Over Past Decade

Press Release, ASU Law Faculty, Staff, Community Raise Over $2.5 Million, Provide Employment Opportunities For Students During Pandemic:

In a world that is changing every day, the faculty of Sandra Day O’Connor College of Law at Arizona State University stepped up to support its students in multiple ways while providing the most exceptional legal education possible.

ASU Law’s generous donors, including faculty members, have contributed over $2.5 million in financial support during the pandemic. These donations have provided ASU Law students with public interest fellowships, first-generation and diversity scholarships, externship stipends, experiential learning opportunities and support for essential needs.

And over the summer when student employment opportunities were canceled or cut short due to COVID-19, ASU Law Dean Douglas Sylvester called on faculty to create innovative, paid internship and externship opportunities for students. Quickly stepping in, faculty launched a highly successful program, with 81 students participating in these special summer work opportunities while earning more than $220,000 in paid stipends from ASU Law.

ASU Law also awarded nearly $13 million in scholarships to incoming JD students for fall 2020, and the college gave more than $50,000 to students needing extra support due to COVID-19.

This support is part of ASU Law’s continuing spirit of generosity with more than $80 million in donor gifts, close to $5 million coming from faculty and staff, raised in the last decade.

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2020 IFA International Tax Student Writing Competition (Sept. 30 Deadline)

The deadline in the International Fiscal Association's 2020 International Tax Student Writing Competition is September 30:

2020 IFA International Tax Student Writing Competition:
Subject: Any topic relating to U.S. taxation of income from international activities, including taxation under U.S. tax treaties.
Open to: All students during the 2019-20 academic year (including independent study and summer 2020 school courses) pursuing a graduate degree (J.D., L.L.M., S.J.D., M.S.T., MTA, Masters of Taxation, or similar program). Any appropriate papers written in fall 2019 or spring and summer 2020.
Publication: The winning author will be entitled to publish his/her article in the Tax Management International Journal, which is produced by Bloomberg BNA.
Submission Deadline:  September 30, 2020.
Prize:  $2,000 cash, plus expenses-paid invitation to the IFA USA Branch Annual Meeting in Chicago on April 22-23, 2021.

Here are the recent winners:

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Christians and Diniz Magalhães Present The Rise Of Cooperative Surplus Taxation Virtually Today At Loyola-L.A.

Allison Christians (McGill) and Dr. Tarsício Diniz Magalhães (McGill) presents The Rise of Cooperative Surplus Taxation virtually today at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Ellen Aprill and Ted Seto:

The world’s tax policy leaders are currently engaged in debate over who should tax the income streams produced with the help of cross-border regulatory coordination — the cooperative surplus over the gains that, in a counterfactual world, would be available if investments were confined to the domestic economy. To the extent there ever was a coherent relationship between consensus tax policy norms and the distribution of cooperative surplus, that relationship is now hopelessly skewed by real life factors, chief among them the rapid advancement of innovative technology that transcends physical boundaries of all kinds. The growing dissatisfaction of those on the wrong side of the skew had already initiated a rise in innovative ways to tax cooperative surplus when COVID-19 struck, significantly increasing the stakes for taxation and prompting yet more reform proposals. There are now at least fourteen strategies in play, each drawing varying levels of scrutiny, buy-in, and pushback.

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Hemel Presents Clarifying The Role Of Redistribution In Cost-Benefit Analysis Virtually Today In California

Daniel Hemel (Chicago) presents Clarifying the Role of Redistribution in Cost-Benefit Analysis virtually today as part of the San Diego-Davis-Hastings Tax Law Speaker Series:

Cost-benefit analysis is the standard method for policy evaluation across U.S. federal executive-branch agencies. Cost-benefit analysis, as traditionally implemented by federal agencies, does not explicitly account for changes in income redistribution or the resource costs of income redistribution. Rising concern about income inequality—including but not limited to income inequality across racial and ethnic groups—has focused new attention on this feature of cost-benefit analysis and has generated renewed criticism of the redistribution-neutral approach.

This paper seeks to clarify the role of income redistribution in agency cost-benefit analysis and articulate conditions under which regulatory evaluation should account for distributive consequences. In particular, it seeks to provide concrete guidance to a hypothetical incoming presidential administration regarding top-down policies for regulatory evaluation across the executive branch. Part I distinguishes among traditional (redistribution-neutral) cost-benefit analysis, wealth maximization, and social welfare analysis. It explains why traditional redistribution-neutral cost-benefit analysis and social welfare analysis are potentially justifiable methods for policy evaluation but wealth maximization is not. Part II considers three justifications for the traditional redistribution-neutral approach.

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2021 U.S. News College Rankings

U.S. News & World Report has released its 2021 College Rankings. Here are the Top 25 National Universities and Liberal Arts Colleges:

Rank	National Universities
1	Princeton
2	Harvard
3	Columbia
4	MIT
4	Yale
6	Chicago
6	Stanford
8	Penn
9	Cal-Tech
9	Johns Hopkins
9	Northwestern
12	Duke
13	Dartmouth
14	Brown
14	Vanderbilt
16	Rice
16	Washington (St. Louis)
18	Cornell
19	Notre Dame
20	UCLA
21	Emory
22	UC-Berkeley
23	Georgetown
24	Michigan
24	USC

Pepperdine is ranked #49.

Prior Years' U.S. News National University Rankings:

• 2020
• 2019
• 2018
• 2017
• 2016
• 2015
• 2014
• 2013
• 2012
• 2011
• 2009

2021 U.S. News Liberal Arts College Rankings:

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California Law School Deans Request Supreme Court To Make Oct. 5-6 Online Bar Exam Open Book With No Proctoring

Letter to Chief Justice and Associate Justices of the California Supreme Court:

We write as deans of the ABA-accredited law schools in California.  We express our appreciation for all of your efforts to deal with the many issues concerning the bar exam at this unprecedented and difficult time.

We write now to urge that California administer the bar exam on October 5-6 without remote proctoring and without limits on what materials the student may consult during the exam.  Indiana and Nevada took this approach in July for their bar exams.

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Lesson From The Tax Court: Rejected e-Filed Return Starts The SOL On Assessment

Perspective is important.  As we regularly see in politics and protests, different groups have different points of view.  In tax law, disputes between taxpayers and the IRS quite often stem from different perspectives on the law.  Courts are called upon to adopt one or the other perspective in resolving the dispute.

In Robin J. Fowler v. Commissioner, 155 T.C. No. 7 (Sept. 9, 2020), Judge Greaves adopts a strongly taxpayer perspective of the law.  He holds that even though the IRS rejected an e-filed return the return still triggered the 3-year limitation period on assessment.  This elevates the taxpayer perspective on the importance of the limitation period over the IRS perspective on the importance of being able to process a return.

The decision may be a consequential one, both for taxpayers and the IRS.  And not just because it's a fully reviewed opinion — a "we really mean it" opinion.  It may be consequential because of its ripple effects.  For example, will taxpayers whose e-filed returns are rejected now escape a late filing penalty if they either fail to resubmit or resubmit much later?  Further, both the IRS and taxpayers will now need to figure out whether the Court’s opinion applies to all e-file rejections or just certain ones and, if so, which ones.  Hello litigation.

If the IRS appeals the decision, a reviewing court may well take the IRS perspective.  After all, the Supreme Court has said, more than once, that “limitations statutes barring the collection of taxes otherwise due and unpaid are strictly construed in favor of the Government.” Bufferd v. Commissioner, 506 U.S. 523, 528 (1993).  That perspective, however, raises its own set of problems.  More on that below the fold.

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Bahadur: Attrition And Bar Performance

TaxProf Blog op-ed:  Attrition and Bar Performance, by Rory Bahadur (Washburn):

Recently I was made aware of an incredibly well researched article by Jeffrey Kinsler [The Best Law Schools for Passing the Bar Exam].  The article predicted bar outcomes based on incoming credentials and listed the 15 schools that overperformed their incoming credentials the most and the fifteen schools that underperformed the most on the bar based on incoming credentials. 

The article identified the 15 top overperforming schools as

Rank	The Top 15 Law Schools for Bar Passage
1	Belmont
2	Florida International
3	Liberty
4	Campbell
5	Texas A&M
6	Duquesne
7	LSU
8	Georgia State
9	Texas Tech
10	New Hampshire
11	Regent
12	South Carolina
13	Seton Hall
14	Cleveland State
15	Oklahoma

And it identified the 15 most underperforming schools as

Rank	The Bottom 15 Law Schools for Bar Passage
173	Touro
174	Minnesota
175	Northwestern
176	John Marshall (Atlanta)
177	New York Law School
178	UC-Hastings
179	Emory
180	Thomas Cooley
181	SUNY-Buffalo
182	American
183	Hofstra
184	Southwestern
185	Golden Gate
186	District of Columbia
187	San Francisco

The article suggests reasons for why these schools fall where they do but I thought it would be interesting based on my current research in this area to compare 1L attrition rates for these schools.  I very quickly used two on-line sources for the comparison.  I used this site to ascertain 1L attrition rates for law schools and this site to ascertain the seven-year average national 1L attrition rates for schools in different LSAT ranges.  The findings are laid out in the following tables that are modified from the article by Kinsler.

For the top 15 schools the data looks like this and it indicates the average 1L attrition rate for these schools is almost twice as high as the national average rate of 1L attrition for schools with similar LSAT entering credentials.

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Copenhagen Business School Hosts Virtual Conference Today On Inequality Within International Taxation

Copenhagen Business School hosts a two-day virtual conference beginning today on Inequality Within International Taxation (program):

How should concerns about inequality influence the choices that countries make in the design of their international tax laws and regulations? What role do international tax rules play in reducing (or exacerbating) inequalities of income and wealth, and how do concerns such as gender and racial inequalities inform and intersect with economic and political concerns? Can tax rules, for example, allow wealthier countries to help pull poorer countries out of poverty? Will political systems be willing to use tax policy to address the effects of continuing discrimination in employment, housing, and other areas of people’s live?

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Deans Of All Five University Of California Law Schools Defend Critical Race Theory Against Trump's Attacks
• Zelinsky Posts Two Tax Papers On SSRN
• September 11th At Pepperdine

Sunday:

• The Use And Abuse Of Critical Race Theory In American Christianity
• Vischer: How Distinctive Should Catholic Law Schools Be?
• Survey Finds Many College Students Lack Knowledge Of Religious Traditions
• The Top Five New Tax Papers

The Use And Abuse Of Critical Race Theory In American Christianity

Following up on yesterday's post, Deans Of All Five University Of California Law Schools Defend Critical Race Theory Against Trump's Attacks:  David French, On the Use and Abuse of Critical Race Theory in American Christianity:

Three months ago I published a Sunday newsletter in the aftermath of the George Floyd killing called “American Racism: We’ve Got So Very Far to Go.” As best I can tell, it went more viral than anything else I’ve ever written, and it spawned a flood of follow-up questions. Among the most common? “David, as a Christian, what do you think of critical race theory and intersectionality?”

My answer is complicated, but the bottom line is relatively clear—it’s more useful and interesting than many of its critics contend, but it ultimately fails as both a totalizing theory of American life and as a philosophy truly compatible with the Christian gospel.

I was first exposed to critical race theory (CRT) almost 30 years ago, during my first year at Harvard Law School. During my entire 1-L year, only one of my professors wasn’t a so-called “crit,” an advocate for CRT. In fact, more than half of all my law school classes were taught from a critical legal theory perspective, and I’ve encountered (and debated) crit-informed legal arguments virtually my entire career. ...

A critical legal theorist will often deconstruct any given story or narrative to look for hidden ways that power, privilege, and assumptions about language color our decisions and our discourse. I’ll get to the problems of this framing later, but let me first show how it can help illuminate important truths. ...

CRT-infused analysis helps me not only understand the reason for persistent disparities, it should also build empathy and motivate action. What can we do to ameliorate the effects of this disparate power and privilege?

So does this mean that critical race theory is entirely good, useful, and worthy of Christian embrace? Not so fast.

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Vischer: How Distinctive Should Catholic Law Schools Be?

Robert K. Vischer (University of St. Thomas), How Distinctive Should Catholic Law Schools Be?, 59 J. Cath. Legal Stud. ___ (2020):

In what ways should a Catholic law school be distinctive? To what extent should Catholic and non-Catholic law schools share similar criteria for judging institutional success? Are there circumstances under which a preoccupation with distinctiveness might distract a Catholic law school from focusing on its mission? While Catholic law schools will approach these questions from a diversity of perspectives, we should be careful neither to ignore the importance of distinctiveness nor to equate worthy manifestations of Catholic identity with only those qualities that are not also exhibited by non-Catholic law schools. This essay was presented as part of a symposium convened to explore the themes of a new book by John Breen and Lee Strang, A Light Unseen: A History of Catholic Legal Education in the United States.

Survey Finds Many College Students Lack Knowledge Of Religious Traditions

Inside Higher Ed, Survey Finds Many College Students Lack Knowledge of Religious Traditions:

Many college students are not gaining the skill sets and knowledge they need to navigate a religiously diverse country, according to a new longitudinal study based on surveys of students across 122 campuses.

Less than a third (32 percent) of college students said they developed better skills to interact with people of diverse beliefs while in college, and nearly three-quarters of fourth-year students earned a grade of C or below on a short, standardized quiz testing their knowledge of eight different religious worldviews, the Interfaith Diversity Experiences and Attitudes Longitudinal Survey (IDEALS) found. The survey was led by researchers at North Carolina State and Ohio State Universities and Interfaith Youth Corps, a nonprofit organization.

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The Top Five New Tax Papers

This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

1. [487 Downloads]  Policy Options for Taxing the Rich, by Lily Batchelder (NYU) & David Kamin (NYU)
2. [469 Downloads]  Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals, by Kimberly Clausing (UCLA), Emmanuel Saez (UC-Berkeley) & Gabriel Zucman (UC-Berkeley),
3. [429 Downloads]  Rethinking Tax for the Digital Economy After COVID-19, by Tarcisio Diniz Magalhaes (McGill) & Allison Christians (McGill) (reviewed by Young Ran (Christine) Kim (Utah) here)
4. [247 Downloads]  The Effect of U.S. Tax Reform on the Tax Burdens of U.S. Domestic and Multinational Corporations, by Scott Dyreng (Duke), Fabio Gaertner (Wisconsin), Jeffrey Hoopes (North Carolina) & Mary Vernon (Wisconsin)
5. [242 Downloads]  What Are Minimum Taxes, and Why Might One Favor or Disfavor Them?, by Daniel Shaviro (NYU)

This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: Form Over Substance Gives Taxpayers A Double Tax Benefit
2. Eugene Volokh (UCLA), USC Professor Removed From Class After Using Mandarin Word That Sounds Like English N***** Racial Slur
3. Florida Times-Union, Two Professors Sue Florida Coastal Law School For Breach Of Contract Over Pay Cut
4. American Lawyer, Jobs Report: U.S. Economy Adds 1.4 Million Jobs, Legal Profession Adds ... Nothing
5. Chronicle of Higher Education, Will Covid-19 Revive Faculty Power?
6. William Patton (USC Law & UCLA Medicine), Allowing Law School Graduates To Practice Law Without Taking A Bar Exam Through A Diploma Privilege Does Not Put The Public At Greater Risk Of Attorney Misconduct
7. Anthea Butler (University of Pennsylvania) (@AntheaButler) & Kevin Gannon (Grand View University), #ScholarStrike: Professors Plan Strike For Racial Justice
8. Daniel Halliday (Melbourne) & Miranda Stewart (Melbourne), On 'Dynastic' Inequality
9. Stephen Thomson (City University of Hong Kong), Letterhead Bias and the Demographics of Elite Journal Publications
10. ABA Tax Section, 20th Annual Law Student Tax Challenge Problem

Deans Of All Five University Of California Law Schools Defend Critical Race Theory Against Trump's Attacks

Joint Statement of the Deans of the University of California Law Schools About the Value of Critical Race Theory Joint Statement of the Deans of the University of California Law Schools About the Value of Critical Race Theory:

Dear UC law school community and friends,
As the Deans of the five University of California law schools, we write with one voice to defend Critical Race Theory and to speak against the attacks upon it by the President of the United States and the Office of Management and Budget. The faculties of the UC law schools include many of the leading scholars in Critical Race Theory (CRT) and our law schools engage in a good deal of important scholarship, teaching and policy work about how race and racial oppression shape law and society. We are enormously proud of our CRT colleagues and the important work they do, and we are deeply distressed to see the federal government attack this important intellectual tradition, caricature it in an unjustified and divisive manner, and ban federal employees from learning about it through trainings.

On September 4th, the Director of the Office Management and Budget, at the direction of the President, banned any training within the federal government related to Critical Race Theory, calling it “anti-American propaganda.” The OMB memorandum equates Critical Race Theory to two inaccurate and wildly oversimplified tenets: (1) that the United States is “an inherently racist or evil country” and (2) that white people are “inherently racist or evil.” This characterization reduces a sophisticated, dynamic field, interdisciplinary and global in scope, to two simplistic absurdities.  In fact, a central principle of Critical Race Theory is that there is nothing “inherent” about race.  Rather, CRT invites us to confront with unflinching honesty how race has operated in our history and our present, and to recognize the deep and ongoing operation of “structural racism,” through which racial inequality is reproduced within our economic, political, and educational systems even without individual racist intent.

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Zelinsky Posts Two Tax Papers On SSRN

Edward Zelinky (Cardozo), New York's Ill-Advised Taxation of Nonresidents During COVID-19, 167 Tax Notes Fed. 1001 (May 25, 2020):

For 2020, New York should tax neither the incomes of nonresident telecommuters nor the incomes of the volunteers who came from across the country to help New York confront the COVID-19 emergency.If New York will not act in this sensible fashion, Congress should. In the next round of coronavirus legislation, Congress can prohibit the states from taxing, for the duration of the coronavirus emergency, the incomes of nonresident telecommuters and out-of-state medical volunteers.

Edward Zelinky (Cardozo), CalSavers and ERISA Redux: The District Court’s Second Opinion in Howard Jarvis Taxpayers Association v. The California Secure Choice Retirement Savings Program, NYU Rev. Employee Benefits & Executive Compensation (2020):

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September 11th At Pepperdine

This is a very special day at Pepperdine, as we honored the 2,887 victims of the 9/11 terrorist attacks with our 13th Annual Waves of Flags Display:

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Walker's Tax Complexity And Technology

This week, Hayes Holderness (Richmond) reviews David I. Walker (Boston University), Tax Complexity and Technology:

Tax preparation platforms like TurboTax and TaxAct offer taxpayers a (relatively) easy way to complete and file their tax returns. Tax preparation businesses like H&R Block similarly ease the burden on taxpayers of completing and filing tax returns; those businesses also use technology to provide their services. Cumulatively, over 90% of individual taxpayers do their taxes with the help of these platforms or businesses, as opposed to filling out the returns themselves. Technology appears to be a tax simplification salve for the vast majority of individual taxpayers.

Not quite so fast, argues David Walker, in his draft article, Tax Complexity and Technology. While technology has undeniably simplified the return process for many, it has also helped mask the inner workings of the tax laws. Tax preparation platforms and businesses can operate like “black box” algorithms: just plug in the data and get a nice round number; don’t worry about how the number is reached. These black boxes allow for the complexity of the tax laws to grow.

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Tax Policy In The Trump Administration

• American Enterprise Institute, The Tax Burden on Business Investment Under Joe Biden’s Tax Proposals
• Bloomberg, Biden Offshore Tax Plan Unlikely to Renew Rust Belt Factories
• Bloomberg, Major Companies Have Rejected Trump's Payroll Tax Deferral
• Bloomberg, Trump Tax Cut Was Neither Bane Nor Boon
• Forbes, Record Stimulus And Social Unrest Create Perfect Storm For Wealth Tax

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