Choi Presents How Does Chevron Shape Agency Rulemaking? Virtually Today At Oregon

Jonathan Choi (Minnesota) presents How Does Chevron Shape Agency Rulemaking? An Empirical Study, 38 Yale J. on Reg. __ (2021), virtually at Oregon today as part of its Tax Policy Colloquium Series hosted by Roberta Mann:

A huge literature contemplates the theoretical relationship between judicial deference and agency rulemaking. But surprisingly little empirical work has studied the actual effect of deference on how agencies draft regulations. As a result, some of the most important questions surrounding deference—whether it encourages agencies to focus on policy analysis instead of legal analysis, its relationship to procedures like notice and comment—have so far been dominated by conjecture and anecdote.

Because Chevron applied simultaneously across agencies, it has been difficult to separate its specific causal effect from other contemporaneous events, like the rise of cost-benefit analysis and the new textualism. This Article contends with this problem by exploiting a unique event in administrative law: the Supreme Court’s 2011 decision in Mayo, which required that courts apply Chevron deference to interpretative tax regulations. By altering the deference regime applicable to one specific category of regulation, Mayo created a natural experiment with a treatment group (interpretative tax regulations) and a control group (all other regulations).

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The State And Local Tax Deduction And Fiscal Federalism

Alex Zhang (J.D. 2021, Yale), The State and Local Tax Deduction and Fiscal Federalism, 168 Tax Notes Fed. 2175 (Sept. 21, 2020) (Winner, 2020 Christopher E. Bergin Award for Excellence in Tax Writing):

In this article, Zhang argues that the Tax Cuts and Jobs Act’s limit on the state and local tax deduction undermined the deduction’s effectiveness, thus underscoring the inherent defects and obstacles in advancing federalism with a tax measure.

Conclusion
In addition to impairing the SALT deduction’s effectiveness in mitigating the balance of federal payments, the TCJA limit illustrates at least two inherent shortcomings in using the SALT deduction to effectuate federalism.

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How Elite Institutions Can Prove That Black Lives Matter

Gaga Gondwe (NYU), How Elite Institutions Can Prove That Black Lives Matter:

I have been a lone Black face in mostly white spaces for most of my life. I went to college at Harvard, and law school at Yale; I clerked for a federal judge, and worked at a top law firm. I will soon embark on a new adventure, becoming a law professor through the NYU Visiting Assistant Professor in Tax program.

In the past few weeks, I’ve read statements from each of these elite institutions, each one solemnly proclaiming that “Black Lives Matter.” All of them have made similar statements in the past. And in the past, all of their declarations have invariably failed in key areas to improve conditions for their Black stakeholders.

It’s time for those institutions to take a step back and examine what ending anti-Black racism actually requires. It’s time for them to recognize that it’s not enough simply to admit Black students, or to hire Black associates.

I was one of those students. I am one of those associates. And I’ve experienced firsthand what happens when organizations end diversity efforts at the admissions stage: their Black constituents suffer emotionally, educationally, and professionally.

I’ve seen too many institutions fall short in their efforts to combat anti-Black racism when they limit their idea of diversity and inclusion to increasing representation of people in different minority groups. When the problem is framed as “do we have enough of X type of person,” the solution will only require that the organization add at least one of that type of person to their ranks.

But that dramatically underestimates the scope of the problem. It doesn’t create lasting institutional change, and it leaves minorities with the burden of convincing their institutions that more is needed, and urgently. ...

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Virginia Rep. Asks George Mason To Rename Law School The 'Scalia-Ginsburg School Of Law'

Connolly Calls on GMU To Rename Law School the “Scalia-Ginsburg School of Law”:

Congressman Gerry Connolly, Chairman of the House Government Operations subcommittee, released the following statement calling on George Mason University to rename the law school the Scalia-Ginsburg School of Law.

I call on the George Mason University Board of Visitors to rename the Law School the Scalia-Ginsburg School of Law. It honors the bequest but adds the balance in jurisprudence the current name lacks. A statue of Justice Ruth Bader Ginsburg should be erected facing the existing Justice Scalia statue signifying that there are competing views of the law and no one view will dominate George Mason University’s academic studies.

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ABA Tax Section Virtual Meeting

The ABA Tax Section Virtual 2020 Fall Meeting kicks off today. The full program is here. Today's highlight is Beyond CARES: Tax and Economic Policy Responses to the Ongoing COVID Pandemic (Teaching Taxation Committee (10:00 − 11:30 AM ET)):

In March, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security (CARES) Act to ameliorate economic shocks to U.S. households from the COVID pandemic and lockdowns. The CARES Act included temporary: (1) Economic Impact Payments to individuals and families of up to $1,200 per adult (subject to income limitations) and $500 per child under 17 years old; (2) Paycheck Protection Program (PPP) forgivable loans to businesses, including independent contractors, to cover up to eight weeks of payroll costs or to pay interest on mortgages, rent, and utilities; and (3) supplemental Federal Pandemic Unemployment Compensation (FPUC) of $600 per week. Following expiration of CARES Act relief, the question is: what new COVID economic relief package is advisable? Members of Congress and policymakers disagree about the best approaches to counteract the continuing economic shocks to households from the pandemic. Panelists, including experts in tax, economics, and public policy will discuss tax and related policy responses to COVID economic relief going forward. Panel topics include proposals: to expand and increase the Earned Income Tax Credit; to expand and increase the Child Tax Credit; to reduce payroll taxes; to extend FPUC benefits; to increase federal subsidies to states; and to enact a federal VAT or Carbon Tax, which could fund an expanded EITC or Child Tax Credit or a lump sum Basic Income for Americans. Panelists will consider potential gender, racial, and socio-economic disparities in the economic impact of (1) the COVID pandemic and (2) pandemic relief proposals.

Speakers:

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NY Times: The Picture Of A Broken Tax System

New York Times editorial, The Picture of a Broken Tax System:

Donald Trump’s tax returns illustrate the profound inequities of the tax code and the shambolic state of federal enforcement.

In the years before he became president, Donald Trump lived lavishly while paying little in federal income taxes. The Times reported on Sunday that Mr. Trump paid no taxes in 10 of the 15 years immediately preceding his run for the White House. In each of the following two years, 2016 and 2017, he paid the token sum of $750.

Remove Mr. Trump’s current job from the picture, and what remains is a story that still demands attention. The portrait of a man who earned hundreds of millions of dollars, lived a life of comic excess and yet, in many years, paid nothing in federal income taxes is an indictment of the federal income tax system. It illustrates the profound inequities of the tax code and the shambolic state of enforcement. ...

On Tuesday night, when Mr. Trump and his Democratic opponent, Joe Biden, take the stage for their first presidential debate, both men should be asked what steps they will take to ensure that all Americans pay the full amount they owe.

And Congress should restore every penny of funding stripped from the I.R.S. since 2010 — plus whatever is necessary for the agency to perform its critical work.

Paying taxes is a civic duty, and the government needs the money. Most Americans try to pay what they owe, even if they wish they owed less, and they take comfort in the assumption that most of their neighbors are conducting themselves in the same way.

Americans deserve to know that the president has paid his taxes, too.

Wall Street Journal editorial, Trump’s Unhappy Returns:

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LSSSE: New Research Provides Insight Into Diversity And Inclusion In Law School

LSSSE, New Research Provides Insight into Diversity and Inclusion in Law School:

Newly-released data by the Law School Survey of Student Engagement (LSSSE) provides a compelling look at law student perceptions and experiences along various measures of diversity and inclusion.  Data from this Report, Diversity & Exclusion, draw from a new Diversity and Inclusiveness Module that LSSSE began offering this year.  Of the 68 law schools that participated in the LSSSE survey in 2020, 28 law schools opted to administer the additional Diversity and Inclusiveness Module, which resulted in over 5,200 student participants.

“While many law schools have focused on improving diversity, this report reveals that we must not lose sight of inclusion,” said Meera E. Deo, Director of LSSSE.   “Many of our most vulnerable students—including those who are marginalized based on their race/ethnicity, gender, sexual orientation, debt load, and first-gen status—are telling us that we need to do more to show we value them, to prove they belong, to make them comfortable in legal education and the legal profession.”

Noteworthy findings from the report include:
Institutional Support

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Shay: Turning To The Government (For PPP Money) In Time Of Need

Stephen E. Shay (Boston College), Turning to the Government (for PPP Money) in Time of Need, 168 Tax Notes Fed. 841 (Aug. 3, 2020):

This article examines the financial relationship between Americans for Tax Reform (ATR) and Paycheck Protection Program (PPP) borrower Americans for Tax Reform Foundation (ATRF). ATRF is an apparently insolvent “zombie” foundation heavily indebted to ATR. ATR indirectly benefits from the ATRF PPP loan through the support for ATR employees who simultaneously are ATRF employees, though ATR was itself ineligible for a PPP loan under the CARES Act.

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Lederman Presents Best Practices In Tax Rulings Transparency Virtually Today At NYU

Leandra Lederman (Indiana-Bloom.) presents Of Risks and Remedies: Best Practices in Tax Rulings Transparency virtually at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

The phrase “international scandal” hardly brings to mind tax rulings. It is not just that tax rulings may seem arcane, they are also a legitimate tax administration tool. Advance tax rulings provide certainty to taxpayers and the tax administration on the tax treatment of a planned transaction, lowering costs on both sides. Advance tax rulings are therefore openly used by many countries, including the United States and numerous European countries. Yet, secrecy that is followed by criticism and often by revelations that may embarrass a country’s leaders is a recurring aspect of these rulings. The United States has experienced this, and keeps Advance Pricing Agreements (APAs) confidential, while publishing letter rulings in anonymized form.

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Aprill & Brunson: The University, Ideology, And Tax Exemption

Ellen P. Aprill (Loyola-L.A.) & Samuel D. Brunson (Loyola-Chicago), The University, Ideology, and Tax Exemption, 168 Tax Notes Fed. 1037 (Aug. 10, 2020):

In this article, Brunson and Aprill argue that the tax law and other considerations undermine President Trump’s position that academic institutions can lose their tax-exempt status as a consequence of indoctrinating their students with liberal values.

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Arbitrator Sides With University Of Akron In Layoff Of 100 Faculty

Following up on my previous post, Budget 'Bloodbath' As University Of Akron Lays Off 23% Of Full-Time (Including Tenured) Faculty Due To COVID-19:  Cleveland.com, Arbitrator Sides With University of Akron in Layoff of Nearly 100 Union Faculty:

An arbitrator on Friday sided with the University of Akron administration in its decision to eliminate the positions of nearly 100 unionized faculty as part of the university’s cost-saving measures due to the coronavirus pandemic.

The ruling by arbitrator Jack Buettner – which you can read here – came Friday afternoon, and stated that UA was within its rights to lay off the faculty under the “force majeure” clause in its contract with the Akron chapter of the American Association of University Professors. ...

Akron-AAUP President Pam Schulze said the arbitrator’s decision is “terrible news for our institution.” You can read both full statements from Miller and Schulze at the bottom of this post. ...

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Bringing Students Back To College Campuses Has Been A Public Health Disaster

Bloomberg editorial, Colleges Are Making the Coronavirus Crisis Worse: Bringing Students Back Has Been a Public Health Disaster:

Across the U.S., the reopening of college campuses is fast becoming a new public-health crisis. The arrival of students for the start of the fall semester has caused Covid-19 infections to spike in college towns from Chapel Hill, North Carolina, to Chico, California. Of counties where college students are at least 10% of the population, half have seen Covid cases hit their highest-ever levels in the past month.

Given lack of guidance from federal and state officials and the inadequacy of the U.S.’s testing system, mounting infections among college students were all too likely. College administrators failed to anticipate the scale of the outbreaks or develop plans for containing them. To protect students, faculty and residents of surrounding communities, colleges now need to curtail student activities and move classes online.

About half of the country’s colleges, including many of the biggest public universities, have tried to resume some form of in-person instruction. Officials said failing to do so would harm students, cause enrollments to plunge and decimate local businesses. But without adequate capacity to test and trace, schools had to rely on students policing themselves. Unfortunately, too many students have proved unwilling to behave responsibly and resist the lure of bars and parties — a breathtaking lack of awareness that has come with significant costs for schools and the communities that surround them. Even universities that are testing large numbers and isolating the sick have seen hundreds of cases within weeks of resuming classes.

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Pepperdine Caruso Law Announces Guaranteed Half To Full Scholarships For Students From Historically Black Colleges And Universities

Pepperdine Caruso Law Announces Guaranteed Scholarships for Students from Historically Black Colleges and Universities; Students Will Receive Half to Full Tuition in Scholarship Support:

Pepperdine University’s Rick J. Caruso School of Law has begun critical work to broaden access to high quality law school education for exceptional but historically underserved student populations. During a speech on September 19 at the school’s Law School Admissions Conference, co-sponsored by For People of Color, Dean Paul Caron announced that students from underrepresented communities at any of the 106 historically black colleges or universities (HBCU) who are admitted to and attend Caruso Law will be guaranteed a 50 percent tuition scholarship. In addition, up to five of those students will be named Caruso Excellence Scholars, with full tuition scholarships.

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Penn Law Removes Statement On RBG’s Death After Inclusion Of Amy Wax Quote Sparked Outrage

Daily Pennsylvanian, Penn Law Removes Statement on RBG’s Death After Inclusion of Amy Wax Quote Sparked Outrage:

Penn Law deleted its public statement on the death of Ruth Bader Ginsburg after students lambasted it for including a quote from controversial law professor Amy Wax.

Ginsburg, the second woman to sit on the Supreme Court and an advocate for women's rights, died of pancreatic cancer on Sept. 18 at age 87. The statement, posted to the law school’s Facebook page on Sept. 23 at 8:51 a.m., quickly garnered recoil from Penn Law students and graduates for including an excerpt from Wax's book review [Notorious: What Does Ruth Bader Ginsburg Mean For Women?] — published in Claremont Review of Book's Winter 2020 edition — on Jane Sherron De Hart's "Ruth Bader Ginsburg: A Life."

Let us now praise Ruth Bader Ginsburg. There is ample grist available for hagiography: in the year 2018 alone, a slew of glowing retrospectives celebrated Ginsburg’s status as a feminist heroine and champion of women’s rights. There was Ruth Bader Ginsburg, a biography by U.C. Santa Barbara history professor Jane Sherron De Hart. There was a Netflix documentary about Ginsburg’s career, simply entitled RBG. And the list goes on. But these accounts paid a price for their relentlessly laudatory tone. Missing was any serious appraisal of her professional legacy, its place within larger judicial and legislative debates, and its implications for the shifting and often conflicting roles of women in modern society.

Penn Law students noticed the statement had been deleted around 4:40 p.m. later that day.

While Wax applauds Ginsburg's professional legacy in the selected quote featured in Penn Law's statement, the book review itself casts Ginsburg's admirable work ethic as an outlier for women. Wax wrote in the book review "it is rare that women, regardless of their profession, ability, or training, are willing to work long hours routinely and consistently" as Ginsburg had done.

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The Supreme Court’s 2019 Term In Tax

Jasper L. Cummings, Jr. (Alston & Bird, Raleigh, NC), The Supreme Court’s 2019 Term in Tax, 168 Tax Notes Fed. 2175 (Sept. 21, 2020):

In this ninth annual review of Supreme Court opinions involving tax matters, Cummings notes that the Court has mostly abandoned standard legal decisions to focus on political themes, which he identifies in several decisions. ...

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Kopczuk & Zwick: Business Incomes At The Top

Wojciech Kopczuk (Columbia) & Eric Zwick (Chicago), Business Incomes at the Top:

Business income constitutes a large and increasing share of income and wealth at the top of the distribution. We discuss how tax policy treats and shapes how businesses are organized and how they distribute economic gains to owners, with the focus on closely-held and pass-through firms. These considerations influence whether and how labor and capital income is observed in economic data and feed into research controversies regarding the measurement of inequality and the progressivity of the tax code. We discuss the importance of these issues in the US, and highlight that limited evidence from other countries suggests that they are likely to be important elsewhere.

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Sarin & Summers: Understanding The Revenue Potential Of Tax Compliance Investment

Natasha Sarin (Pennsylvania) & Lawrence H. Summers (Harvard), Understanding the Revenue Potential of Tax Compliance Investment:

In a July 2020 report, the Congressional Budget Office estimated that modest investments in the IRS would generate somewhere between $60 and $100 billion in additional revenue over a decade. This is qualitatively correct. But quantitatively, the revenue potential is much more significant than the CBO report suggests. We highlight five reasons for the CBO’s underestimation: 1) the scale of the investment in the IRS contemplated is modest and far short of sufficient even to return the IRS budget to 2011 levels; 2) the CBO contemplates a limited range of interventions, excluding entirely progress on information reporting and technological advancements; 3) the estimates assume rapidly diminishing returns to marginal increases in investment; 4) the estimates leave out the effect of increased enforcement on taxpayer decision-making; and 5) the use of the 10-year window means that the long-run benefits of increased enforcement are excluded.

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USC Dean Responds To The Greg Patton / 'Neige' Controversy

Following up on my previous posts (links below):  Eugene Volokh (UCLA), USC Marshall Business School Dean E-Mail on the Greg Patton / "Neige" Controversy:

A number of themes emerged that we will work on together in the months ahead. But one issue that stands in the way is the email I sent to our first-year full-time MBA students announcing that Professor Greg Patton was stepping aside from his GSBA 542 three-week course. I felt compelled to immediately address the genuine and serious concerns expressed by a number of student groups and individual students, including some enrolled in GSBA 542 who said they would stop attending the remaining two weeks of class. I will always respect and support students who come forward with concerns and will take them seriously, as I did in this case.

However, many of you have read that note as suggesting that I had prejudged the case. As I said when asked about this in the department meetings, this was not my intention. Nor was it my intent to cast aspersions on specific Mandarin words or on Mandarin generally. But I can see how reasonable people could draw a different conclusion in both cases from my email [see the original email below -EV]. I can only offer my sincere apologies that I left that impression, as I believed Professor Patton when he said he did not intend to do his students any harm and I have apologized to him as well.

The university's Office for Equity, Equal Opportunity and Title IX (EEO-TIX) looked into this matter and concluded that the concerns expressed by students were sincere, but that Professor Patton's actions did not violate the university's policy. They have also communicated this to the professor and he allowed me to share their conclusion with you. ...

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Fall 2020 Undergraduate Enrollment Down 2.5%, Graduate Enrollment Up 3.9%

National Student Clearinghouse Research Center, Monthly Update on Higher Education Enrollment (press release):

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Lipman: Pro Bono Matters On the Basis of Sex

Francine J. Lipman (UNLV), Pro Bono Matters On the Basis of Sex, 164 Tax Notes Fed. 1037 (Aug. 12, 2019):

The movie On the Basis of Sex begins on the testosterone-dominated stairs of Harvard Law School, to the booming blare of “Ten Thousand Men of Harvard,” the still-popular Harvard fight song. Framed by the equal partnership that is Kiki and Marty Ginsburgs’ true-love story, the movie chronicles now Supreme Court Justice Ruth Bader Ginsburg’s methodical path to overturning laws that discriminated on the basis of sex. Central to the movie is a pro bono tax case. This essay describes the tax case and why pro bono mattered so very much to the taxpayer, Charles E. Moritz, a 63 year-old bachelor living in Denver with his mother, Mrs. B.E. Moritz. Mrs. Moritz was 89 and in poor health, suffering from arthritis, loss of hearing, lapses of memory, and other senior ailments. Mr, Moritz cared for his mother by paying for care in his home. He filed his tax return claiming a tax benefit that was statutorily not allowed for unmarried men. Mr. Moritz went to the U.S. Tax Court and lost. Marty Ginsburg, a renowned tax attorney, read the decision and handed the written transcript over to his wife, Ruth Bader Ginsburg. Ginsburg sought to represent Mr. Moritz on his appeals a pro bono basis. Pro bono tax mattered deeply to Charles and his mother and, in turn, it jump-started a successful litigation strategy that in time lead to the U.S. Supreme Court finding that discrimination on the basis of sex was unconstitutional.

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NY Times: Trump's Tax Returns — Chronic Losses, Years Of Tax Avoidance

New York Times, Long-Concealed Records Show Trump's Chronic Losses and Years of Tax Avoidance:

The Times obtained Donald Trump’s tax information extending over more than two decades, revealing struggling properties, vast write-offs, an audit battle and hundreds of millions in debt coming due.

Donald J. Trump paid $750 in federal income taxes the year he won the presidency. In his first year in the White House, he paid another $750.

He had paid no income taxes at all in 10 of the previous 15 years — largely because he reported losing much more money than he made.

As the president wages a re-election campaign that polls say he is in danger of losing, his finances are under stress, beset by losses and hundreds of millions of dollars in debt coming due that he has personally guaranteed. Also hanging over him is a decade-long audit battle with the Internal Revenue Service over the legitimacy of a $72.9 million tax refund that he claimed, and received, after declaring huge losses. An adverse ruling could cost him more than $100 million.

The tax returns that Mr. Trump has long fought to keep private tell a story fundamentally different from the one he has sold to the American public. His reports to the I.R.S. portray a businessman who takes in hundreds of millions of dollars a year yet racks up chronic losses that he aggressively employs to avoid paying taxes. Now, with his financial challenges mounting, the records show that he depends more and more on making money from businesses that put him in potential and often direct conflict of interest with his job as president.

The New York Times has obtained tax-return data extending over more than two decades for Mr. Trump and the hundreds of companies that make up his business organization, including detailed information from his first two years in office. It does not include his personal returns for 2018 or 2019. This article offers an overview of The Times’s findings; additional articles will be published in the coming weeks.

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Lesson From The Tax Court: State Law Matters

My wife has spent her COVID time organizing efforts to celebrate Earth Day next April in our fair city of Lubbock, Texas.  Her efforts are paying off.  She and her colleagues are now to the point where they need to operate through a tax-exempt entity.  Well-meaning friends tell her “oh, it’s easy, just go fill out some forms and submit them to the IRS.”  Those friends think that forming a nonprofit entity is a one-step process, done at the federal level.  They do not realize that it is a two-step process: one must first form the entity under state law and then ask for tax-exemption from the IRS.  Today we learn that the choice of entity formation will affect the federal tax treatment of that entity.

In Clinton Deckard v. Commissioner, 155 T.C. No. 8 (Sept. 17, 2020) (Judge Thornton), the effect of state law was to preclude the taxpayer from electing S Corporation status.  There Mr. Deckard formed a nonprofit corporation under Kentucky law but soon started operating it for profit.  After a couple of years of losses, he tried to elect S Corporation status for the entity so he could pass through and deduct those losses.  Judge Thornton held he was bound to the corporate form he had created under Kentucky law.  State law matters.  Details below the fold. 

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36 Law Professors Weigh In On Amy Coney Barrett's Nomination

• Jonathan Adler (Case Western; Volokh Conspiracy), What Sort of Justice Should You Want on the Other Side?
• Nick Allard (Former Dean, Brooklyn; Brooklyn Daily Eagle), Goodbye, But Not Farewell, Justice Ruth Bader Ginsburg
• Helen Alvaré (George Mason; Politico), A Role Model For Women
• William Araiza (Brooklyn; Politico), Roberts Will Be Unbound
• Stephen Bainbridge (UCLA; ProfessorBainbridge.com), The Prospect of an Amy Comey Barrett Nomination to the Supreme Court Has Unhinged Both Right-and-Left Wing Anti-Catholic Bigots
• Josh Blackman (South Texas; Politico), We May Be Looking at the Last New Roberts Court
• Tomiko Brown-Nagin (Harvard; Politico), A Serious Scholar With a Clear Conservative Bent
• Lara Bazelon (San Francisco; NY Times), Amy Coney Barrett Is No Ruth Bader Ginsburg
• Erwin Chemerinsky (Dean, UC-Berkeley; LA Times), Democrats Can’t Stop Amy Coney Barrett’s Confirmation. They Can Show How She Would Take Away Our Rights 

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Law Schools In Chicago And Cleveland Consider Removing Chief Justice John Marshall From Their Names
• Bar Exam Update
• Tax Consequences On The Sale Of Encumbered Property: Recourse v. Nonrecourse Debt

Sunday:

• Garvey: Here’s What People Get Wrong About Amy Coney Barrett's Faith
• Baynes: What I Learned From Law Professor Ginsburg
• Can A Christian Be A Corporate Lawyer?
• The Top Five New Tax Papers

Garvey: Here’s What People Get Wrong About Amy Coney Barrett's Faith

Washington Post op-ed:  I Taught and Worked With Amy Coney Barrett. Here’s What People Get Wrong About Her Faith., by John Garvey (President, Catholic University):

I first met Amy Coney Barrett from behind a veil of academic anonymity.

I was teaching a First Amendment class at Notre Dame Law School. She was a student, just a face in the crowd. On the final exam, someone — the bluebooks were anonymous — had written an answer so impressive that I rushed to share it with one of my colleagues. This student, I said, gave a response to my own question much better than the one I had come up with myself. That student was Amy Coney.

I hired the future judge as my research assistant. ... After she graduated from law school, I wrote a one-line letter of recommendation for her to Justice Antonin Scalia: “Amy Coney is the best student I ever had.” He was wise to hire her as a clerk. ...

I would be astonished if anyone were to oppose her nomination on the basis of character or intellect. Anxiety about her confirmation instead seems driven by the fear that her religious belief is somehow incompatible with the impartiality demanded of a judge. Some have tried to attach a sinister significance to her association with the People of Praise, an ecumenical Christian organization started by Notre Dame students in the 1970s. ...

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Baynes: What I Learned From Law Professor Ginsburg

Houston Chronicle op-ed:  What I Learned From Law Professor Ginsburg, by Leonard Baynes (Dean, Houston):

I was a student of Supreme Court Associate Justice Ruth Bader Ginsburg’s at Columbia Law School. She taught me and 150 other first-year students a two-credit civil procedure course. Little known to us, it was her last semester of teaching before being elevated to the D.C. Circuit of Appeals and then later to the U.S. Supreme Court.

At Columbia, at that time, there was little diversity among the law faculty. Ginsburg was the first tenured woman, and Kellis E. Parker was the first tenured African American. For many students, both professors Ginsburg and Parker were godsends. They were approachable, dedicated to students and excellent classroom teachers. They were distinct from the other professors by not conforming to the then-popular Socratic method of instruction exemplified by the stereotypical law professor Charles Kingsfield, as presented in the book and movie “The Paper Chase.” In the classroom, Ginsburg didn’t hide the ball. She was clear and concise. She served as arole model for those who aspired to be law teachers. More importantly, I also learned a lot of substantive legal concepts about the rights to juries, appeals and final judgments. ...

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Can A Christian Be A Corporate Lawyer?

R. Garrett Rice (Ross Aronstam & Moritz, Wilmington, DE), Can a Christian Be a Corporate Lawyer? Tracing Corporate Law's Religious Roots and Identifying How We Can Integrate Our Faith and Work, 43 J. Legal Prof. 143 (2019):

The ways in which members of certain professions (ministers, for example) can serve Christ in the workplace are self-evident. For the Christian corporate lawyer, integrating faith and work may require more conscious effort, but is no less possible. This article begins to explore the ways in which a Christian can serve Christ in the corporate law arena.

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The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper and two new papers debuting on the list at #3 and #4:

1. [493 Downloads]  Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals, by Kimberly Clausing (UCLA), Emmanuel Saez (UC-Berkeley) & Gabriel Zucman (UC-Berkeley),
2. [230 Downloads]  Economic Reality in EU VAT, by Ad van Doesum (Maastricht) & Frank Nellen (Maastricht)
3. [216 Downloads]  The Rise of Cooperative Surplus Taxation, by Allison Christians (McGill) & Tarcisio Diniz Magalhaes (McGill)
4. [183 Downloads]  Good Tax Governance: International Corporate Tax Planning and Corporate Social Responsibility – Does One Exclude the Other?, by Ave-Geidi Jallai (Tilburg)
5. [145 Downloads]  Who Benefits from Place-Based Policies? Job Growth from Opportunity Zones, by Alina Arefeva (Wisconsin), Morris Davis (Rutgers), Andra Ghent (North Carolina) & Minseon Park (Wisconsin)

This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: Receipts Are Not Enough
2. Jack Goldstone (George Mason) & Peter Turchin (Connecticut), Welcome To The ‘Turbulent Twenties’
3. Clarion Ledger, State Auditor Tries To Fire Tenured Professor Who Participated In #ScholarStrike
4. Mike Madison (Pittsburgh), Legal Education's Waterloo: Urgency, The Fire Swamp, And The End Game
5. New York Times, Law Firms Pay Supreme Court Clerks $400,000 Bonuses; New Study Confirms Their Influence With Their Justice
6. Chronicle of Higher Education, The Cost Of The University Of Florida's Ascent Up The U.S. News Rankings, From #52 (#17 Among Public Universities) To #30 (#6)
7. Chronicle of Higher Education, USC Professors Are 'Scared To Death To Teach' After Colleague 'Thrown Under The Bus' By Dean For Using Mandarin Word 'Nèige' In Class
8. Chronicle of Higher Education, Did USC Professor Get What He Deserved For Using Mandarin Word 'Nèige' In Class?
9. Sam Brunson (Loyola-Chicago), Using A Pigouvian Tax To Reduce Gun Violence
10. Bryan Camp (Texas Tech), Tax Profs On Both Sides In Case Pending in Supreme Court: CIC Services v. IRS

Law Schools In Chicago And Cleveland Consider Removing Chief Justice John Marshall From Their Names

Cleveland 19 News, Cleveland State Considering Renaming Cleveland Marshall College of Law Due To Its Racist Roots:

Hanna Kassis has spent months fighting for the names of two prominent law schools to be changed. ...

Who was John Marshall? Research by historians has revealed Marshall owned hundreds of slaves. Some suggest the Supreme Court justice made decisions in favor of slave owners because of his ties to the slave trade. ...

Kasssis, who lives in Cleveland, wants Cleveland Marshall College of Law at Cleveland State to be renamed as well as his alma matter, UIC John Marshall Law School in Chicago, and the other elementary and high schools named after Marshall across the country.

“It’s proof of systemic racism and the whole argument that we’re erasing history is kind of bogus because the act of renaming itself becomes history, and there’s a right side to that history and there’s a wrong side to that history," Kassis said.

Kassis started a petition in June. He also started a website; renamejohnmarshall.com and multiple social media accounts and his efforts have worked. Kassis is on a committee to rename John Marshall Law School in Chicago.

19 News reached out to Cleveland State about this. They denied our request for an on-camera interview but they did send us a statement:

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Bar Exam Update

• ABA Journal, Bar Exam in Hotel Rooms Offered Test-Takers Social Distancing and Private Bathrooms
• Above the Law, Illinois Bar Examiners Use Website To Show Their Utter Contempt For Applicants, Former Law School Dean
• Bloomberg Law, The Bar Exam Is ‘Monster of a Test,’ But Worth Keeping
• Business Insider, New York's Top Judge Is Sticking With an Online Bar Exam Even as Complaints of Tech Issues Mount and Other States Let Law Grads Skip the Test and Still Practice Law
• California Bar, Updated October 2020 Bar Exam FAQs
• Orlando Sentinel, Law School Graduates Wait, Worry Amid Delays in Florida Bar Exam
• Karen Sloan (law.com), Cheating. Frozen Computers. Typing Lags. Bar Examinees Raise Red Flags Over Looming Online Test

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Tax Consequences On The Sale Of Encumbered Property: Recourse v. Nonrecourse Debt

Kenneth Weil, Recourse and Nonrecourse Debt: What Are the Federal Income Tax Consequences When the Character of Debt Changes, 74 Tax Law. ___ (2020):

When encumbered property is sold, the taxation of that sale is different if the sale involves recourse debt as opposed to non-recourse debt. This difference raises an intriguing question: when debt changes from recourse debt to non-recourse debt or vice versa, which rules will control? Examples of when debt changes from recourse to non-recourse or vice versa include bankruptcy discharges, foreclosures in a state with anti-deficiency statutes, some short sales in deficiency states, and the operation of Bankruptcy Code section 1111(b).

The Cottage Savings regulations, Regulation section 1.1001-3, have specific provisions designed to answer the question what happens when debt changes from recourse to non-recourse or vice versa.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Duff's General Anti-Avoidance Rules Revisited

This week, David Elkins (Netanya) reviews a recently posted work by David G. Duff (British Columbia), General Anti-Avoidance Rules Revisited, 68 Can. Tax. J. 579 (2020):

It is no secret that tax legislation is extraordinary complex. Part of the reason is the subject matter itself. Economic reality and legal doctrines do not necessarily coincide, and when they do not then taxpayers frequently can exploit the mismatch to achieve beneficial tax results. One of the swords that administrators wield to combat this phenomenon is the general anti-avoidance rule (GAAR). The question of the limits to which taxpayers may go to lower their tax liability was originally – at least in common law countries – a product of judicial doctrine. Today many countries have codified the rule or at least certain key elements of it (the closest the United States has to a statutory GAAR is IRC §7701(o), which clarifies the judicial economic substance doctrine). However, whether codified or not, GAARs by their nature are problematic. They call upon the courts to ignore the express words of the statute to prevent tax avoidance. However, one would have to be extraordinarily naïve to believe that taxpayers do not routinely structure their affairs in response to tax rules. Thus the question of when it is legitimate to invoke a GAAR is not a simple one.

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Tax Policy In The Trump Administration

• Bloomberg, Hedge Funds Head for Florida With Taxes on Rich Rising Elsewhere
• Bloomberg, Millionaires Got One-Third of Trump’s Small Business Tax Break
• Center on Budget and Policy Priorities, States Should Tax Wealth to Respond to COVID-19
• Fact Check, Biden’s Claim That Trump’s Tax Bill Gave Companies ‘a Reward For Offshoring Jobs’
• Forbes, Economist Challenges Assumptions Of Wealth Tax Advocates

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Weekly Legal Education Roundup

• ABA Journal, California law school gets donation that's said to be 'one of the biggest in history' from tribe to university
• Paul Caron (Dean, Pepperdine), Seattle Is Eleventh Law School To Offer Hybrid Online J.D.
• Paul Caron (Dean, Pepperdine), Suffolk Is Twelfth Law School To Offer Hybrid Online J.D.
• Paul Caron (Dean, Pepperdine), Tax Prof Twitter Census (2020-21 Edition)
• In Re Temporary Waiver of the Bar Exam Requirement For Admission to the State Bar of California and Provision of Emergency Diploma Privilege

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The Vitruvian Lawyer: How To Thrive In An Era Of AI And Quantum Technologies

Hilary G. Escajeda (Denver), The Vitruvian Lawyer: How to Thrive in an Era of AI and Quantum Technologies, 29 Kan. J.L. & Pub. Pol'y 421 (2020):

We live in an exciting and tumultuous time as artificial intelligence (AI), and quantum technologies unleash more transformations than the agrarian, industrial, and computer revolutions combined. This new age, popularly called “The Fourth Industrial Revolution,” describes the convergence of increasingly powerful and capable digital and robotic technologies.

As human-machine teaming becomes the norm, new and mid-career lawyers should actively cultivate the uniquely human personal and professional skills that machines cannot supplant. A short list of these skills includes curiosity, cognitive range (depth and breadth), creativity, and emotional intelligence. In their work as knowledge entrepreneurs and inventive problem solvers, modern lawyers must also continuously augment and leverage their education, training, and insights to spot, imagine, generate, and deliver client value.

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Symposium On Ruth Mason's The Transformation Of International Tax

Symposium, Ruth Mason's The Transformation Of International Tax, 114 Am. J. Int'l L. 353 (2020):

• Alan O. Sykes (Stanford), Introduction to the Symposium on Ruth Mason, The Transformation of International Tax, 114 Am. J. Int'l L. 252 (2020)
• Reuven S. Avi-Yonah (Michigan), Select A Positive Dialectic: BEPS and The United States, 114 Am. J. Int'l L. 255 (2020)
• Wei Cui (British Columbia), What Is Unilateralism in International Taxation?, 114 Am. J. Int'l L. 260 (2020)
• Lilian V. Faulhaber (Georgetown), Diverse Interests and International Legitimation: Public Choice Theory and the Politics of International Tax, 114 Am. J. Int'l L. 265 (2020)

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Suffolk Is Twelfth Law School To Offer Hybrid Online J.D.

Suffolk Law Launches Innovative Hybrid JD Program:

A new approach
Suffolk University Law School has launched a pioneering new Hybrid JD Program (HJD). The program is the first to offer full- and part-time students a traditional in-person first-year classroom experience, followed by the option of taking all remaining classes online. By enrolling in the same first-year courses as all other students, HJD students will have an opportunity to develop close connections with classmates and faculty, while gaining a new level of flexibility to live and work where they want during the remainder of law school. Applications are available now to enroll beginning fall 2021.

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Faculty Struggle With Burnout During COVID-19

Inside Higher Ed, Faculty Struggle With Burnout:

"Faculty burnout -- exacerbated by pandemic-related stressors, absent childcare and school, and unrelenting or even accelerating work expectations from colleagues -- poses real and serious risk for mental health challenges of unprecedented scope," said June Gruber, associate professor of psychology and neuroscience at the University of Colorado at Boulder.

Gruber co-wrote a column for Science last month saying that academe needs a "reality check" regarding expectations for faculty this semester. ...

Lisa Jaremka, assistant professor of social-health psychology at the University of Delaware, and co-author of a recent paper on "common academic experiences no one talks about" -- including burnout -- also said that the main consequences of burnout include mental health issues. Disillusionment with work is another danger.

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How Philanthropy Benefits The Super-Rich

The Guardian, How Philanthropy Benefits the Super-Rich:

Philanthropy, it is popularly supposed, transfers money from the rich to the poor. This is not the case. In the US, which statistics show to be the most philanthropic of nations, barely a fifth of the money donated by big givers goes to the poor. A lot goes to the arts, sports teams and other cultural pursuits, and half goes to education and healthcare. At first glance that seems to fit the popular profile of “giving to good causes”. But dig down a little. 

The biggest donations in education in 2019 went to the elite universities and schools that the rich themselves had attended. In the UK, in the 10-year period to 2017, more than two-thirds of all millionaire donations — £4.79bn — went to higher education, and half of these went to just two universities: Oxford and Cambridge. When the rich and the middle classes give to schools, they give more to those attended by their own children than to those of the poor. British millionaires in that same decade gave £1.04bn to the arts, and just £222m to alleviating poverty.

The common assumption that philanthropy automatically results in a redistribution of money is wrong. A lot of elite philanthropy is about elite causes. Rather than making the world a better place, it largely reinforces the world as it is. Philanthropy very often favours the rich — and no one holds philanthropists to account for it.

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Brunson: Using A Pigouvian Tax To Reduce Gun Violence

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

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

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

In this Article, I propose a Pigouvian tax on firearms.

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

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

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

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

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

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

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

Why choose Flex JD?

A flexible format that fits your busy life

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

Connect with classmates during limited campus visits

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

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

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

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Zelenak: Examining The Internal Revenue Code For Disparate Racial Impacts

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

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

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Tax Prof Twitter Census (2020-21 Edition)

According to Bridget Crawford's latest census, there are 1,368 Law Profs on Twitter (55.4% male/44.5% female), including 87 Tax Profs (several with tax in their Twitter handles):

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

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

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

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

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

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

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

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

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Welcome To The ‘Turbulent Twenties’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Buchanan Presents Confessions Of A Recovering Economist Virtually Today At Oregon

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

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

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