Paul L. Caron
Dean



Tuesday, January 19, 2021

Kirsch: Conditioning Citizenship Benefits On Satisfying Citizenship Obligations

Michael S. Kirsch (Notre Dame), Conditioning Citizenship Benefits on Satisfying Citizenship Obligations, 2019 U. Ill. L. Rev. 1701:

Citizenship status is often discussed in terms of both its benefits and its obligations. A recently enacted Federal statute (the FAST Act), which denies U.S. passports to certain citizens who owe significant unpaid taxes, provides an opportunity to examine the linkage between citizenship benefits and obligations. In particular, it raises the question under what circumstances, if any, should the benefits of citizenship be conditioned on compliance with the obligations of citizenship.

This Article identifies a typology for situating unpaid taxes within other circumstances under which passports may be denied to U.S. citizens. It then focuses on the instrumental, constitutional, and expressive impacts of the FAST Act, illustrating that the benefit-obligation linkage can have unintended consequences, not only from an instrumental perspective, but perhaps more importantly from its expressive impact on social norms. The Article then applies these lessons to a broader range of situations where Federal benefits are conditioned on compliance with citizenship obligations, most notably the denial of student loan benefits for those young men who do not register with the Selective Service.

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January 19, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

National Taxpayer Advocate Delivers 2020 Annual Report To Congress

NTA

IR-2021-11 (Jan. 13, 2021), National Taxpayer Advocate Delivers Annual Report to Congress; Focuses on Taxpayer Impact of COVID-19 and IRS Funding Needs:

National Taxpayer Advocate Erin M. Collins today released her 2020 Annual Report to Congress, focusing on the unprecedented challenges taxpayers faced in filing their tax returns and receiving refunds and stimulus payments during a year consumed by the COVID-19 pandemic. The report also finds that a roughly 20% inflation-adjusted reduction in the IRS's budget since fiscal year (FY) 2010 has left the agency with antiquated technology and inadequate staffing levels to meet taxpayers' needs.

As part of the report, Collins released the fourth edition of the National Taxpayer Advocate's "Purple Book," a compilation of 66 legislative recommendations designed to strengthen taxpayer rights and improve tax administration.

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January 19, 2021 in IRS News, Tax, Tax News | Permalink

NAACP Receives $40 Million Gift To Pay Tuition For 50 Law Students Who Agree To Do Civil Rights Work In The South For 8 Years After Graduation

Karen Sloan (Law.com), NAACP Legal Defense Fund Will Spend $40 Million to Put Racial Justice-Minded Attorneys Through Law School:

A new scholarship program from the NAACP Legal Defense and Educational Fund aims to help establish the next generation of civil rights attorneys by covering the entire cost of law school for 50 law students over the next decade.

Under the Marshall-Motley Scholars Program, announced Monday, recipients will have their full law school tuition covered along with funds for room and board and incidentals. They will also complete summer internships with civil rights lawyers and do a two-year fellowship at a regional or national civil rights organization in the South upon graduation. In return, recipients will commit to spending at least eight years practicing civil rights and racial justice law in the South. The Legal Defense Fund will select up to 10 recipients a year for the next five years, at an estimated cost of $40 million. An anonymous donor has committed to funding the program, according to Janai Nelson, associate director-counsel for the LDF.

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January 19, 2021 in Legal Ed News, Legal Education | Permalink

One-Third Of Law Schools Now Accept The GRE For Admissions

2021 Princeton Review Law School Rankings: Overall Ranking

Princeton Review

I previously blogged the lists of the Top 5 law schools in fourteen categories in the 2021 edition of the Princeton Review's Best Law Schools. Last week, I highlighted the Top 50 schools in the five categories for which the Princeton Review provides individual law school data:

Yesterday, I blogged the Top 50 law school professor rankings, equal weight (50%) to the Professors: Teaching and Professors: Accessibility rankings.

Today, in my concluding post, I blog the Princeton Review's overall law school rankings, giving equal weight (20%) to each of the Admissions Selectivity, Academic Experience, Professors: Teaching, Professors: Accessibility, and Career Rating rankings:

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January 19, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

Lesson From The Tax Court: The CDP Silver Linings Playbook

Tax Court (2020)Tax practitioners tend not to know much about bankruptcy.  Today’s lesson is for them.  In Wiley Ramey v. Commissioner, 156 T.C. No. 1 (Jan. 14, 2021), Judge Toro held that a CDP notice properly sent to a taxpayer’s last known address triggers the time period for the taxpayer to request a CDP hearing, even if the CDP notice is actually delivered to a different person who shares that address.  That is the tax lesson most folks will see in this case, and it’s a good one.

I see an additional lesson, a bankruptcy lesson.  While the taxpayer’s failure to timely request a CDP hearing meant no he received no Tax Court review of the administrative hearing, the news is not all bad.  The lesson for today is about silver linings:  the taxpayer’s equivalent hearing still got the delay benefits of CDP, and that delay did not count against Mr. Ramey should he file bankruptcy and seek a discharge of the tax liabilities at issue.  Practitioners would not be crazy to put this lesson in a Playbook, a CDP Silver Linings Playbook.  Yeah, it was a good movie, too.  More below the fold.

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January 19, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink

Tax Analysts Makes Federal Tax Library (Code, Regs, Cases, Rulings, Legislative Materials) Available For Free

Tax Notes Research

Press Release, Deloitte and Tax Analysts Take Great Strides to Increase Tax Policy Transparency:

Today Deloitte Tax LLP ("Deloitte") announced an agreement with Tax Analysts, the publisher of the Tax Notes product portfolio, to make the nonprofit's federal tax law library available to the general public. Placing Tax Notes' entire federal tax law library in front of a paywall is a win for tax policy transparency, as it grants the public easy access to timely information and updates on a platform that is intuitive and reliable.

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January 19, 2021 | Permalink

TaxProf Blog Holiday Weekend Roundup

Monday, January 18, 2021

2021 Princeton Review Law School Rankings: Professors (Teaching And Accessibility)

Princeton Review

I previously blogged the lists of the Top 5 law schools in fourteen categories in the 2021 edition of the Princeton Review's Best Law Schools. Last week, I highlighted the Top 50 schools in the five categories for which the Princeton Review provides individual law school data:

Here are the Top 50 law school professor rankings, giving equal weight (50%) to the Professors: Teaching and Professors: Accessibility rankings:

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January 18, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

MLK's Legacy: Push Past Tweetable Quotes To True Christlike Love

Christianity Today op-ed:  It’s Not Enough to Preach Racial Justice. We Have to Champion Policy Change., by Esau McCaulley (Wheaton; author, Reading While Black: African American Biblical Interpretation as an Exercise in Hope (2020)):

Reading While Black 3The legacy of Martin Luther King Jr. reminds us to push past tweetable quotes and big talk to true Christlike love.

For a black boy growing up in Alabama trying to make sense of himself in a hostile world, Martin Luther King Jr. was my hero. Alongside a startingly pale Jesus, a picture of Martin hung beside photographs of my family. I knew Martin by sight. I could recognize the tenor of his voice.

The mental architecture of my young black imagination was formed by grainy videos of mass church meetings and marches and by the hymns and spirituals that threatened to shake the United States to its foundations. I knew about Selma, Birmingham, and Montgomery before I could find them on a map of my state. I do not remember not remembering Martin.

By contrast, the King that I see online on Martin Luther King Jr. Day is a stranger to me. This beloved figure is in part the construction of a society that never fully loved him or the cause he represented. King died an unpopular man. In 1968, the year of his death, 75 percent of Americans disapproved of his views and activities. That was up from 50 percent in 1963.

Today, his approval rating nears 90 percent. Some might suggest that with hindsight, Americans have come to appreciate King in a way that was impossible during the racist era in which he lived. But things are not that simple. If social media is any indication, a large portion of America still hasn’t wrestled with the King of 1968. ...

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January 18, 2021 in Legal Ed News, Legal Education | Permalink

NY Times: Biden May Eliminate Step-Up In Basis At Death, Hurting Jeff Bezos, Elon Musk, And Efforts To Close The Black Wealth Gap

New York Times Wealth Matters:  The Estate Tax May Change Under Biden, Affecting Far More People, by Paul Sullivan:

What happens once Mr. Biden can begin enacting changes to tax policy? ... [P]erhaps the best way to consider what to do in 2021 is to think about what you need to do in the short, medium and long term. There’s a lot to think about, so I’m going to break this topic into two columns. This week, I’m going to look at long-term issues; next week, I’ll get into the more immediate tax issues that could bubble up this year.

The biggest potential long-term change involves the estate tax. But in contrast to previous changes, the tax code could be modified in a way that affects everyone who has something of value to leave to heirs.

For decades, assets were valued at the time of the owner’s death, even if the value had risen. This so-called step-up in basis rule works like this: If a stock that was bought for $1 is worth $10 when the owner dies, the gain is $9. But when that asset is passed on to heirs, the embedded gain is wiped out because the base value is now $10 and no capital gains tax is owed.

This treatment applies to any asset, from liquid securities and private investment partnerships to a family home. If the total value of the estate is less than the current $11.7 million exemption level for an individual or $23.4 million for a couple, then no estate tax would need to be paid, either.

A Biden administration may move to change this for logical and revenue reasons. At one point, the step-up in basis made sense. Imagine trying to determine the capital gains from AT&T stock that your grandmother bought in 1943 when record-keeping was done with a pencil and paper. Today, cost-basis information can be retrieved in seconds.

But two different groups of people have raised concerns about losing the step-up loophole: the very wealthy and the moderately wealthy.

If you’re Jeff Bezos or Elon Musk, the two richest people in the world, having your long-term holdings in Amazon and Tesla given a step-up in basis is a huge savings on capital gains tax, because they’re going to be paying estate tax regardless.

But for people of more modest wealth, say someone lucky enough to inherit a home or a stock portfolio, the loss of step-up could be even more significant. ...

For the Black community, the prospect of an heir’s paying capital gains tax on inherited property could contribute to maintaining the racial wealth gap, said Calvin Williams Jr., chief executive and founder of Freeman Capital.

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January 18, 2021 in Tax, Tax News | Permalink

How Not To Lie About Law School Affirmative Action

Sherod Thaxton (UCLA), How Not to Lie About Affirmative Action, 67 UCLA L. Rev. 834 (2020):

As challenges to race-conscious admissions policies are, once again, advancing through the federal courts, research proclaiming to identify the wide ranging effects of affirmative action across a variety of educational settings is influencing this litigation through amici and expert testimony. It is crucial, then, that empirical research used to support claims by parties on either side of the affirmative action debate adhere to the fundamental precepts of causal inference. Yet the literature on causal inference is both vast and dense, and as a result, many judges, lawyers, legislators, and laypersons interested in understanding both the intended and unintended consequences of affirmative action are ill-equipped to understand the debate—especially when quantitative social scientists on both sides of the issue appear to draw conflicting (though not necessarily equally credible) inferences from the same data. The purpose of this Article is to lay bare the core requirements of credible causal inference to the uninitiated, highlighting how inattention to (and sometimes outright disregard for) these rules has muddied the debate over the effect of affirmative action in law schools and in college admissions more generally.

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January 18, 2021 in Legal Ed Scholarship, Legal Education | Permalink

Sunday, January 17, 2021

Donor Who Made $40 Million Naming Gift Loses Court Battle To Force Law School To Include His Name On All Degrees

Following up on my previous post:  CBC News, Major Donor Loses Fight to Have His Name on All UBC Law School Degrees:

Allard (2017)One of the most prominent donors to the University of British Columbia has lost a lengthy legal fight to have his name printed on every degree given to students who graduate from the law school that's named after him.

Peter A. Allard, a successful lawyer who has been fighting his alma mater on the issue for years, lost his B.C. Supreme Court battle against the university on Thursday. ...

The dispute began shortly after Allard made a historic $30-million donation to UBC in 2014 [in addition to an earlier $10 million gift] on a number of conditions. One of those conditions said degree certificates granted by the Faculty of Law would have Allard's name printed somewhere on the parchment.

But not all degrees from the Peter A. Allard School of Law are granted by the Faculty of Law. Higher level graduate degrees come from a different division: the Faculty of Graduate and Postdoctoral Studies. ...

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January 17, 2021 in Legal Ed News | Permalink

The Gospel In A Democracy Under Christian Assault

Russell Moore (President, Ethics & Religious Liberty Commission, Southern Baptist Convention), The Gospel in a Democracy Under Assault:

How can this be our country?

As I watched on television images of angry mobs pouring into the United States Capitol, my hands were trembling with rage. A friend who has served for many years in government texted, “This looks like the fall of Rome to me.”

Indeed, it does—including the reality that, years before anyone scaled the walls of the Eternal City, Rome was captivated with bread and circuses. What can Americans—especially followers of Jesus Christ—do in a time when it seems that our very republic is more fragile than ever before?

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January 17, 2021 in Legal Education, Tax | Permalink

Notre Dame Dean Marcus Cole's Statement On The U.S. Capitol Attack

Marcus Cole (Dean, Notre Dame), Statement on the U.S. Capitol Attack:

Cole (2021)Yesterday, I watched in horror as a mob made a terrorist assault on the United States Capitol. As the images unfolded, my son asked me whether I had ever seen anything like this before. I immediately recalled that twenty years ago, 37 Americans on United flight 93 gave their lives to protect that very building — the United States Capitol — from a terrorist attack. I never imagined that the President of the United States would incite a mob to accomplish what those hijackers could not.

In general, I do not think it appropriate for the Dean of a law school to comment on political events. But what happened yesterday was not political; it was a shameful crime. A mob was incited to attack the very thing to which we in this community have devoted our lives, namely, the rule of law. I have resisted commenting on the President’s posture over the last two months, since I fully trusted in our institutions and the rule of law. In the end, I believed, as I still do, that the will of the American people — expressed at the ballot box last November 3rd — will prevail.

I still believe in our American institutions. I still believe in the rule of law. But more than either, I believe in God, and our need for His divine guidance at this moment. Toward that end, I would like to ask each of us to join in prayer. I would like each of us to call upon God in the words of Saint Francis of Assisi:

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January 17, 2021 in Legal Ed News, Legal Education | Permalink

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. The #1 paper is #474 among 15,661 tax papers in all-time downloads:

  1. SSRN Logo (2018) [898 Downloads]  A Simple Regulatory Fix for Citizenship Taxation, by John Richardson, Laura Snyder & Karen Alpert (Queensland)
  2. [498 Downloads]  Tax Treaty Negotiations: Myth and Reality, by Yariv Brauner (Florida)
  3. [296 Downloads]  Is It Time to Eliminate Federal Corporate Income Taxes?, by Edward Lane (Albany) & Randall Wray (UMKC)
  4. [233 Downloads]  What May We Expect of a Theory of International Tax Justice?, by Dirk Broekhuijsen (Leiden) & Henk Vording (Leiden)
  5. [192 Downloads]  5 Lessons on Profit Shifting From U.S. Country-by-Country Data, by Kimberly Clausing (UCLA)

January 17, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, January 16, 2021

This Week's Ten Most Popular TaxProf Blog Posts

Organizing A Business Law Department Within A Law School

William J. Carney (Emory), Organizing a Business Law Department Within a Law School:

This article argues that legal education needs to get its act together by getting organized. Unlike the rest of the university, law schools are over a century behind in recognizing the need for the greater organization that departments can provide. Specialization, which did not exist many years ago, has become so universal that some members of any faculty either cannot understand or care about, much less govern wisely, what goes on around them. Ignorance is compounded by non-professional agendas driven by ideologies and interdisciplinary interests. One probable result of disorganization in legal education has been a decline in bar passage rates and enrollments. This article provides a road map to a cure.

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January 16, 2021 in Legal Ed Scholarship, Legal Education | Permalink

Controversy At UIC John Marshall Law School Over Use Of 'N_____ And B_____ (Profane Expressions For African Americans And Women)' On Fall Civ Pro Exam

Following up on my previous post, AALS President Darby Dickerson: It's Time To Eliminate Legal Education's Caste System:  Brian Leiter (Chicago), Violation of Academic Freedom at UIC John Marshall Law School:


JMLS 4IMPORTANT UPDATE BELOW: PROFESSOR KILBORN WAS NOT SUSPENDED BECAUSE OF THE EXAM QUESTION

Last month, we noted UIC John Marshall Dean Darby Dickerson's suggestion "that law schools should be 'transformed' into 'anti-racist institutions' [as distinct from being non-racist ones that comply with equal opportunity laws]," observing that it "would portend a massive violation of the academic freedom of all faculty (for example)."   Alas, this proved more prophetic than we realized.

Professor Jason Kilborn gave a civil procedure exam last month involving an employment discrimination hypothetical, in which one worker used racist and sexist epithets.   As the petition denouncing Professor Kilborn reports:

The question at-issue contained a racial pejorative summarized as follows: “‘n____’and ‘b____’ (profane expressions for African Americans and women).” The fact pattern involved an employment discrimination case where the call of the question was whether or not the information found was work product.

Just to be clear:   the exam neither used nor mentioned the actual offending words, just the first letters of those words followed by the underline, as quoted above.  Professor Kilborn has actually used variations on this hypothetical, with the n- and b-words (as above), for a decade without any incident! ...

UPDATE (1/15/21):   Professor Kilborn has written to me a bit before 4:30 pm CST as follows:

I’ve just learned my suspension has been a huge failure of communication from the university to me.  While the battle over the exam language continues, it turns out I was actively misled into believing my suspension was related to that language.

On Thursday, January 7, I voluntarily agreed to talk to one of the Black Law Students Association members who had advanced this petition against me.  Around hour 1 or 1.5 of a 4-hour Zoom call that I endured from 5:00 pm to 9:00 pm with this young man, he asked me to speculate as to why the dean had not sent me BLSA’s attack letter, and I flippantly responded, “I suspect she’s afraid if I saw the horrible things said about me in that letter I would become homicidal.”  Conversation continued without a hitch for 2.5 or 3 more hours, and we concluded amicably with a promise to talk more later.

He apparently turned around and reported that I was a homicidal threat.  Our university’s Behavioral Threat Assessment Team convened, with no evidence of who I am at all, and recommended to my dean that I be placed on administrative leave and barred from campus.

Kathryn Rubino (Above the Law), Law School N-Word Controversy Is More Complicated Than It Appears At First Glance:

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January 16, 2021 in Legal Ed News, Legal Education | Permalink

Cui: China’s Tax Policy Response To The Global Financial Crisis

Wei Cui (British Columbia), China’s Tax Policy Response to the Global Financial Crisis:

VAT reform constituted the most important tax policy action China took during the global financial crisis in 2008-9. If China had had a more typical tax structure, this specific policy instrument (as well as certain others) would not have been available. Conversely, because of the idiosyncrasies of China’s current tax structure, some of the policy measures commonly deployed in other countries also cannot be used. In comparing China and Europe in the tax policies adopted since 2008, therefore, major differences in prior tax structures must be taken into account. There are also two other potential determinants of China’s tax policy.

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January 16, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Friday, January 15, 2021

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Holderness' Tax Relief for Commuters

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Hayes Holderness (Richmond), Changing Lanes: Tax Relief for Commuters, 40 Va. Tax Rev. ___ (2021).

KimCommuting has mixed motives: one must travel to get to work (business motive), but the extent and burden of the travel is the result of the personal choice about where to live (personal motive). However, there is no middle ground under the tax law; an expense is classified as either personal or business. Under current law, it is well established that commuting expenses are personal, and thus, nondeductible expenses under the tax law (e.g., Comm'r v. Flowers, 326 U.S. 465 (1946)). However, in the wake of COVID-19, working from home has become the new normal. Many people who used to commute to work no longer have the same amount of expenditure for commuting, such as gas and metro passes. What are the normative implications of such changed behavior? Hayes Holderness offers his views in his recent essay, Changing Lanes: Tax Relief for Commuters (forthcoming in Va. Tax Rev.).

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January 15, 2021 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Tax Policy In The Trump Administration

Weekly Legal Education Roundup

Biggest Issues Facing College Presidents Due To COVID-19: Student, Staff, And Faculty Mental Health Trumps Enrollment/Financial Concerns

American Council on Education, College and University Presidents Respond to COVID-19: 2020 Fall Term Survey, Part 2 (Part 1 here):

In September 2020, ACE surveyed college and university presidents in order to capture how they are responding to the challenges presented by COVID-19, as well as to better understand both the immediate and long-term effects of the pandemic on higher education more broadly. In this second survey of the fall 2020 term, 268 presidents responded to share their most pressing concerns, how the pandemic has affected their fall enrollment and financial health, plans for the spring 2021 term, efforts to support student, faculty, and staff mental health, and strategies for internationalization. The survey also captures college and university efforts to promote civic engagement and student voting in the last election, as well as presidents’ thoughts on the level of priority the incoming Biden administration should place on some key higher education-related policy topics. What follows is a summary of our key findings.

Presidents


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January 15, 2021 in Legal Ed News, Legal Education | Permalink

2021 Princeton Review Law School Rankings: Career Rating

Princeton Review

I previously blogged the lists of the Top 5 law schools in fourteen categories in the 2021 edition of the Princeton Review's Best Law Schools. In a series of posts this week, I will highlight the Top 50 schools in the five categories for which the Princeton Review provides individual law school data:

Career Rating:  This rating measures the confidence students have in their school's ability to lead them to fruitful employment opportunities, as well as the school's own record of having done so. This rating takes into account both student survey responses and school-reported statistical data. We ask students about how much the law program encourages practical experience; the opportunities for externships, internships, and clerkships; and how prepared to practice law they expect to feel after graduating. We ask law schools for the median starting salaries of graduating students; the percentage employed in a job that requires bar passage (and not employed by the school); and the percentage of these students who pass the bar exam the first time they take it. This rating is on a scale of 60–99.

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January 15, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 74, No. 1 (Fall 2020):

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January 15, 2021 in ABA Tax Section, Scholarship, Tax, Tax Scholarship | Permalink

Death Of Rennard Strickland, Native American Law Pioneer And Dean Of Four Law Schools

University of Virginia School of Law Press Release, In Memoriam: Native American Law Pioneer Rennard Strickland:

StricklandRennard Strickland, a pioneer in the movement for Native rights and a legal historian who received two law degrees from the University of Virginia School of Law, died Jan. 5 at the age of 80.

Born in Muskogee, Oklahoma, Strickland was of Osage and Cherokee heritage. In a career that spanned teaching and leading numerous law schools, he served as dean of four: the University of Tulsa, Southern Illinois University, Oklahoma City University and the University of Oregon. He was most recently senior scholar in residence at the University of Oklahoma Law Center, where he helped introduce Indian Law into the University’s legal curriculum. The author, editor or co-editor of 47 books and 208 essays, book chapters and articles, he was frequently cited by courts and scholars for his work as revision editor-in-chief of “Cohen’s Handbook of Federal Indian Law,” considered the authoritative text on the subject.

Obituary: Rennard Strickland (September 16, 1940 - January 5, 2021)

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January 15, 2021 in Legal Ed News, Legal Education, Obituaries | Permalink

Global Implementation Of Soda Taxes: Is There A Better Solution For Combatting Obesity?

Lauren Cedeno (J.D. 2020, Brooklyn), Global Implementation of Soda Taxes: Is There a Better Solution for Combatting Obesity?, 45 Brook. J. Int'l L. 329 (2019):

As incidences of overweight and obese populations continue to increase around the world, countries are looking for ways to decrease the prevalence of this epidemic. Soda and SSB taxes have increased in prevalence as countries seek to address the health problems associated with consumption of soda and other sugary beverages. This Note explores the implementation of these taxes in Mexico, Europe, and the United States. In analyzing these taxes, this Note seeks to gain a greater understanding of whether these taxes have impacted overweight and obesity rates in the countries and municipalities that have enacted them. This Note argues that soda and SSB taxes are only the first step in addressing this growing health epidemic and that more robust health policies are necessary to achieve a healthier global population.

Conclusion
The international community must begin to acknowledge the dangerous role that SSBs and other sugar-filled products play in the onset of NCDs caused by obesity. NCDs linked to poor consumption habits are currently the leading cause of death in the world today. Taxes on SSBs have been a critical step toward addressing the role sugary products play in the onset of NCDs and obesity. Without new policies to address the threat that obesity poses to population health, however, it is likely that the risk of obesity-related illness will only continue to rise. By imposing stricter regulations on the accessibility of SSBs, the sugar content in those products, and the manners in which they can be advertised, as well as developing more holistic food and beverage health initiatives, countries may very well see a substantial drop in obesity rates. Accordingly, it is important that international health organizations, such as the WHO, continue to raise awareness about the adverse health consequences that flow from diets high in food and drinks lacking proper nutrition. They can do this by encouraging countries to enact and reform legislation to better tackle the obesity epidemic.

January 15, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, January 14, 2021

Lederman: Valuation As A Challenge For Tax Administration

Leandra Lederman (Indiana), Valuation as a Challenge for Tax Administration, 96 Notre Dame L. Rev. ___ (2021):

Valuation issues have long posed challenges for the U.S. federal tax system. This is not just because of questions about what technique will most accurately value particular types of property. A key problem for tax administration is that taxpayers have an incentive to claim erroneous, self-serving valuations. This Essay analyzes tax valuation through this tax compliance lens. In so doing, it highlights the importance that third parties to the taxpayer-government relationship act at arm’s-length from the taxpayer. It also explains why penalties are insufficient to deter erroneous self-reported valuations. The Essay also draws on the tax compliance perspective to make some preliminary observations about valuation methodologies.

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January 14, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Hemel & Polsky: Taxing Buybacks

Daniel J. Hemel (Chicago) & Gregg D. Polsky (Georgia), Taxing Buybacks, 38 Yale J. on Reg. 246 (2021):

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

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

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January 14, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Ten Questions For Unconventional Dean Candidates

Neil Fulton (Dean, South Dakota), Ten Questions for Unconventional Dean Candidates, 46 Ohio N.U. L. Rev. 71 (2020):

Thinking back on my experience as an unconventional decanal candidate, there are questions that I believe candidates must ask before tossing their hat into the decanal search ring. Conveniently, those questions fit into a top ten list.

  1. Are You Sure? ...
  2. Why? ...
  3. Do You Know Who We Are? ...

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January 14, 2021 in Legal Ed Scholarship, Legal Education | Permalink

Big Law Firms Use AI To Combat Bias In Recruiting Lawyers

American Lawyer, Big Law Firms to Test New Recruiting Tool, Using Tech to Combat Bias:

SuitedSuited, an artificial intelligence-powered recruiting platform with the promise of expanding recruiting pools and eliminating unconscious bias in law firm hiring practices, is set to begin a pilot program that includes Cadwalader, Wickersham & Taft; Sheppard, Mullin, Richter & Hampton; Troutman Pepper Hamilton Sanders; Willkie Farr & Gallagher and Wilson Sonsini Goodrich & Rosati.

“We are building a network of top law firms that utilize a single, common assessment tool, providing candidates an efficient way to access this highly competitive industry and show their true potential,” Matt Spencer, Suited co-founder and CEO, said in a statement. “We could not be more proud to partner with such an incredible group of firms and to be part of their continued commitments to diversity hiring and efforts to create a positive candidate experience.” ...

In addition to saving time and increasing the number of schools to recruit from, Suited looks to address another element that has stymied law firms for some time: bias in recruiting.

It’s not that law firms actively seek to deliberately limit the diversity of their workforce. But going back to the same schools each year with the same criteria in mind leads to what most firms deal with now: a homogeneity of mostly white males.

 

January 14, 2021 in Legal Ed News, Legal Education | Permalink

2021 Princeton Review Law School Rankings: Professors (Accessibility)

Princeton Review

I previously blogged the lists of the Top 5 law schools in fourteen categories in the 2021 edition of the Princeton Review's Best Law Schools. In a series of posts this week, I will highlight the Top 50 schools in the five categories for which the Princeton Review provides individual law school data:

Professors: Accessible:  This rating is based on how law students rate the accessibility of law faculty members at their school. The rating is on a scale of 60 to 99. 

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January 14, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

97% Of Students Rated In-Person Fall Semester Classes Good To Excellent, As Did 94% Of Students In Online Classes

Inside Higher Ed, Fall Semester Was Not a Wash For All:

Students who learned entirely online during the fall semester said they received a slightly poorer quality of education than those who had in-person instruction, according to a new poll released Tuesday by Gallup, the polling company, and the Lumina Foundation, a nonprofit organization that advocates for equity in postsecondary education.

The poll found that about three-quarters of students over all rated the quality of their education “excellent” or “very good” amid the disruptions of the coronavirus pandemic this fall, but this largely positive outcome dropped off somewhat when surveyed students were separated by learning modality. Eighty-five percent of students whose curriculum was “completely” in person said their education quality was “excellent” or “very good,” while 71 percent of those learning “completely” online said the same, a report about the findings said.

IHE

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January 14, 2021 in Legal Ed News, Legal Education | Permalink

Law Prof John Eastman Retires From Chapman 'Effective Immediately' Amidst Uproar Over Speaking At Trump Rally Last Wednesday

Los Angeles Times, Chapman Professor Will Retire After Uproar Over His Speaking at Trump Rally:

EastmanCapping days of growing uproar, Chapman University announced Wednesday that a professor who participated in the pro-Trump rally the same day that a violent mob stormed the U.S. Capitol would retire immediately.

John Eastman, an endowed professor and constitutional law scholar at Chapman, spoke alongside Trump’s personal attorney Rudy Giuliani at the “Save America” rally Jan. 6, making the unsubstantiated claim that “secret folders” inside ballot-counting machines skewed both the presidential and Georgia Senate race results in Democrats’ favor.

Chapman President Daniele Struppa said in a statement that the university and Eastman had reached an agreement and Eastman would retire immediately. Both parties agreed not to take any kind of legal action, including over claims of defamation, which Eastman had alleged.

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January 14, 2021 in Legal Ed News, Legal Education | Permalink

Domicile In Multistate Personal Income Tax Residency Matters

Scott R. Thomas (Bentley University), Domicile in Multistate Personal Income Tax Residency Matters: Enter the Swamp at Your Own Peril, 39 Pace L. Rev. 875 (2019):

This Article argues that states should remove the domicile concept from the definition of a resident and rely solely on an objective test or tests. Part I of this Article defines the terms resident and domicile using examples from the laws of Massachusetts, Minnesota, and New York. Part II discusses the problems created for individuals and state taxing authorities in the application of a subjective standard, the burden and standard of proof applied, and the domicile or residency bias of states. Part III describes how Congress defines a resident of the United States and the rationale behind Congress’s movement away from its previous subjective standard.

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January 14, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, January 13, 2021

Mason Presents The Legality Of Digital Taxes In Europe Online Today At Toronto

Ruth Mason (Virginia) presents The Legality of Digital Taxes in Europe (with Leopoldo Parada (Leeds)) online at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

Mason_ruthThis essay argues that EU taxpayers may challenge digital services taxes as violations of EU law. Specifically, because digital services taxes exempt all but the very largest companies, which are disproportionately foreign, such taxes result in nationality discrimination as applied. As part of our analysis of the legality of digital taxes, we consider what role discriminatory intent should play in resolving nationality discrimination cases. We also evaluate potential justifications for digital taxes, and we argue that two recent decisions by the Court of Justice of the European Union suggest that the Court will uphold such taxes against challenges by taxpayers, but we explain how those cases could be distinguished.

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January 13, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Batchelder: Optimal Tax Theory As A Theory Of Distributive Justice

Lily L. Batchelder (NYU), Optimal Tax Theory as a Theory of Distributive Justice:

The literature on taxation and transfers primarily relies on two theories of distributive justice: resource egalitarianism and welfarism, as elaborated through optimal tax theory. In recent years, optimal tax theory has garnered even greater prominence. But non-welfarists argue it fails to address a number of serious philosophical objections.

This article considers the primary critiques of optimal tax theory, especially by resource egalitarians. It argues the gap between these two theories is narrower than most appreciate. Indeed, once one focuses on egalitarian optimal tax theory and reads that literature broadly, the ideal policy design principles implied by each theory largely mimic the other.

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January 13, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Is A Pandemic The Right Time To Make Bold Faculty Hiring Moves — At Yale And Elsewhere?

Inside Higher Education, Carpe Diem on Faculty Hiring?:

Yale University LogoYale University says it is doing more hiring this academic year than it planned during the pandemic. But that falls short of the hiring activity that faculty members want to see: in a months-long campaign, they’ve argued that hiring freezes during COVID-19 are not just damaging to Yale but also unnecessary.

Indeed, Yale’s budget has fared relatively well since the university announced a yearlong hiring freeze at the pandemic’s onset. In a financial update this fall, Scott Strobel, provost, and Jack Callahan, a senior vice president, said that results for the fiscal year that ended in June were “better than expected, thanks to the work of faculty and staff across campus who restrained spending” and other factors.

How much better than expected? The pandemic cost Yale more than $250 million in lost revenue and other expenses. Yet the university still ended the fiscal year with an operating budget surplus of $125 million. Yale’s endowment, which contributes to the annual budget, also saw a 6.8 percent investment return.

Universities continue to be loath to tap into their endowments for extra pandemic relief. But a $125 million budget surplus is significant.

Strobel and Callahan said that 89 percent of the surplus is tied up in reserve balances in individual campus accounts, and anything remaining is a “buffer” for the rest of this year. Still, they announced that Yale was “partially lifting” the freeze on faculty recruitment, to the tune of at least 60 new and continuing faculty searches across the professional schools and the Faculty of Arts and Sciences.

This was good news to many faculty members who vocally opposed any freeze on hiring. Even so, it wasn’t enough: Yale’s Faculty of Arts and Sciences Senate wants the university to be bold, not so cautious.

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January 13, 2021 in Legal Ed News, Legal Education | Permalink

Polarizing Election Work, Discrimination Suits May Dent Jones Day's Appeal To Young Lawyers

American Lawyer, Polarizing Election Work, Discrimination Suits May Dent Jones Day's Appeal to Young Lawyers:

Jones DayJones Day’s links to Donald Trump’s presidency had been clear well before the firm was enlisted in the weeks prior to the November election in a fight over the fate of mail-in ballots that arrived after Election Day.

After a backlash emerged over willingness to take the litigation, the firm was quick to clarify that its engagement was not with the Trump campaign nor the Republican National Committee, but rather the Pennsylvania Republican Party. It also argued that its work was not an effort to contest the results of the general election, and contended that its legal efforts did not touch on the question of voter fraud. ...

Jones Day’s controversial election work has bubbled up after several years during which the firm’s personnel policies have been the subject of attention thanks to three high-profile lawsuits alleging multiple instances of gender bias at the firm. Jones Day has largely succeeded in the courts—the first accuser dropped her case after the firm returned her capital contributions, and the second set of plaintiffs just abandoned ambitious class action claims Monday—but the reputational impact of the salacious details revealed in litigation documents could be lingering.

Th effect of the election work and lawsuits against the firm may be particularly pronounced with younger lawyers, as they make choices about where to build their careers. Partners may be a different story. ...

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January 13, 2021 in Legal Ed News, Legal Education | Permalink

2021 Princeton Review Law School Rankings: Professors (Teaching)

Princeton Review

I previously blogged the lists of the Top 5 law schools in fourteen categories in the 2021 edition of the Princeton Review's Best Law Schools. In a series of posts this week, I will highlight the Top 50 schools in the five categories for which the Princeton Review provides individual law school data:

Professors: Interesting:  This rating is based on how students rate the quality of teaching at their law school. This rating is on a scale of 60-99.

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January 13, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

Graetz: A Major Simplification Of The OECD’s Pillar 1 Proposal

Michael J. Graetz (Columbia), A Major Simplification of the OECD’s Pillar 1 Proposal, 170 Tax Notes Fed. 213 (Jan. 11, 2021):

Tax Notes Federal (2020)In this report, Graetz suggests major modifications to the OECD’s pillar 1 blueprint proposal to create a new taxing right for multinational digital income and some product sales that would greatly simplify the proposal. The modifications rely on readily available existing financial information and would achieve certainty in the application of pillar 1, while adhering to its fundamental structure and policies.

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January 13, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

John Marshall (Atlanta) Law School Converts To 501(c)(3) Status

Following up on my previous post, ABA Takes John Marshall (Atlanta) Off Probation After 70% Enrollment Reduction Increases LSAT Scores Of 1L Class; School To Convert From For-Profit To Non-Profit Status:  Press Release, Atlanta’s John Marshall Law School Enters 2021 as a 501(c)(3) Tax-Exempt Law School:

John Marshall (Atlanta) (2016)Atlanta’s John Marshall Law School (AJMLS) is delighted to start the New Year as a qualified 501(c)(3) tax-exempt Law School following its conversion effective January 1, 2021.

The Law School was founded as a nonprofit in 1933, and its recent conversion is a welcome new beginning and homecoming to its original roots. The change in status will not impact its students and will be a seamless transition for its employees. “The process of converting to 501(c)(3) status has been a long time in the making and we see nothing but positive outcomes as a result of our new status. I am extremely excited for the future of the Law School and the enormous potential benefits to our students under the new status change,” said AJMLS’s Dean Jace C. Gatewood.

The Law School will now be operated by Atlanta Law Center, Inc., a Georgia nonprofit corporation doing business as Atlanta’s John Marshall Law School.

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January 13, 2021 in Legal Ed News, Legal Education | Permalink

The 1920s, The Digital Economy, And The Great Covid Lockdown

Craig Elliffe (Auckland), Assessing the Flaws in the 1920s Compromise in the Times of the Burgeoning Digital Economy and the Great Lockdown:

The COVID-19 pandemic has been described by the International Monetary Fund as the worst recession since the Great Depression. The combination of tax shortfalls, increased government spending, and the irrefutable growth in the digital economy has created a situation which means that the world arrives at the crossroads of international tax reform with a great sense of urgency. If there is political consensus, reform will be in the format proposed, or similar to, the OECD/Inclusive Framework’s proposal (described as the 2020s compromise). In the absence of political consensus, then the world will travel down the other branch of the crossroads and we will see the introduction of a plethora of interim and unilateral domestic taxes.

The existing international tax rules are widely regarded as being “not fit for purpose”. After a brief introduction of the history of the international tax framework (referred to by some as the 1920s compromise), this paper traces the development of the current OECD/Inclusive Framework proposals as international tax policymakers grapple with the vexing problem of how to tax multinationals who do business across borders, particularly those that operate using a highly digitalised business model.

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January 13, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, January 12, 2021

This Economist Has A Radical Plan To Solve Wealth Inequality

Wired, This Economist Has a Radical Plan to Solve Wealth Inequality:

CapitalPiketty’s 753-page book Capital in the Twenty-First Century, published in 2013, sold 2.5 million copies worldwide and helped put inequality on the global agenda. But his latest, the even thicker Capital and Ideology, may prove still more influential. The book is nothing less than a global history of inequality and the stories that societies tell to justify it, from pre-modern India to Donald Trump’s US. It arrives just as anger about inequality (some of it generated by Piketty’s work) approaches boiling point, and was channelled by a contender for the White House, Bernie Sanders.

Capital and Ideology builds on Piketty’s long-standing argument that inequality has soared across the world since 1980. It proposes strong remedies. Piketty wants to slap wealth taxes of 90 per cent on any assets over $1 billion, and waxes nostalgic about the postwar decades when British and American top marginal income-tax rates were over 80 per cent. ...

In an era when technology platforms are arguably concentrating wealth in the hands of a diminishing number of people in the Valley, Piketty’s advocacy of much higher taxes has attracted the attention of both progressives and radicals around the world. ...

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January 12, 2021 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

Hatfield: Professionally Responsible Artificial Intelligence

Michael Hatfield (University of Washington), Professionally Responsible Artificial Intelligence, 51 Ariz. St. L.J. 1057 (2019):

As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals to use AI when it can reliably improve expertise but discourages substitution that undermines expertise. 

This Article proposes a solution, using tax professionals as a case study. There are several reasons tax professionals provide a good case study, including that tax practice has a long history of computerization and that AI is already being developed for tax professionals. Tax professionals, including not only lawyers but certified public accountants, are directly regulated by the Internal Revenue Service (IRS), in addition to their regulation by professional bodies.

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January 12, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Anonymous Professor Makes Largest Gift In Rutgers Law School History: $3.5 Million For Public Interest Scholars Named For Former Dean

Press Release, Faculty Member's Gift Will Help High-Achieving Students Attend Law School:

Rutgers (2021)A $3.5 million gift — the largest ever received by Rutgers University–Camden — is launching a new program to attract students to Rutgers Law School in Camden who have distinguished themselves academically and demonstrated a commitment to public service.

The donor of this significant gift is a Rutgers–Camden faculty member who otherwise wishes to remain anonymous. At the donor’s request, the gift creates the Rayman L. Solomon Scholars program at the Camden location of Rutgers Law School in honor of the school’s former dean.

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January 12, 2021 in Legal Ed News, Legal Education | Permalink

157 Law Deans Publish Rare Joint Statement On The 2020 Election And Events At The Capitol

I was proud to join 156 of my fellow deans in a rare joint statement. From the press release:

Today, 157 Law School Deans from schools across the country published a statement addressing the 2020 election and the events that took place in the United States Capitol last week. The statement marks a rare occasion. It is unusual for such a diverse group of law deans to come together to speak as one on an issue that falls outside the ambit of legal education.

“The violent attack on the Capitol was an assault on our democracy and the rule of law,” reads the statement. “The effort to disrupt the certification of a free and fair election was a betrayal of the core values that undergird our Constitution. Lives were lost, the seat of our democracy was desecrated, and our country was shamed.”

The joint statement goes on to reflect upon the roles that lawyers played in recent events and affirm the deans’ commitment to working together to repair the damage to democratic institutions and rebuild faith in the rule of law.

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January 12, 2021 in Legal Ed News, Legal Education | Permalink

2021 Princeton Review Law School Rankings: Academic Experience

Princeton Review

I previously blogged the lists of the Top 5 law schools in fourteen categories in the 2021 edition of the Princeton Review's Best Law Schools. In a series of posts this week, I will highlight the Top 50 schools in the five categories for which the Princeton Review provides individual law school data:

Academic Experience:  This rating measures the quality of the school's learning environment on a scale of 60 to 99. Factors taken into consideration include the Admissions Selectivity Rating, as well as how students rate each of the following: the quality of teaching and the accessibility of their professors, the research resources at their school, the range of available courses, the balance of curricular emphasis on legal theory and practical lawyering, the tolerance for diverse opinions in the classroom, and the degree of intellectual challenge that the coursework presents.

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January 12, 2021 in Law School Rankings, Legal Ed Rankings, Legal Education | Permalink

Fifteen Law Schools Are Looking To Hire Tax Profs

Law schools looking to hire tenure-track/tenured Tax Profs to start in the 2021-22 academic year:

January 12, 2021 in Legal Education, Tax, Tax Prof Jobs | Permalink