Meet The Excel Warriors Saving The World From Spreadsheet Disaster

Wired, Meet the Excel Warriors Saving the World From Spreadsheet Disaster:

David Lyford-Smith is an expert at solving spreadsheet mysteries. Once, in a previous job, he was sent a payroll form to look over for a new starter. It had the number 40,335 in a random box, and payroll wasn’t clear why it was there. “So they assumed it was a joining bonus for the employee and drew up a draft pay slip with a £40,335 bonus,” he says. But, when it comes to spreadsheets, assumptions can be costly.

Lyford-Smith isn’t just a spreadsheet enthusiast. He’s the technical manager for the Institute of Chartered Accountants in England and Wales (ICAEW), running its Excel community group — and as such has always been suspicious of numbers in that range. “That’s how Excel stores dates, as serial numbers,” he says. He was right: that wasn’t a generous signing bonus, but the new hire’s starting date.

Lyford-Smith is part of a community of accountants, auditors and Excel power users who have joined forces in a quiet battle against illogical formulas, copy-and-paste errors, and structural chaos that cause data carnage.

Last week, the government stumbled into its own spreadsheet nightmare when it admitted contact-tracing efforts were stymied by a simple data processing mistake. They’re not the first to fall victim to the curse of Excel – and they won’t be the last either. ...

Research suggests more than 90 per cent of spreadsheets have errors, and half of spreadsheet models used in large businesses have “material defects”. Given some 750 million people use Excel globally, there are plenty of errors needing attention. One prominent researcher calls spreadsheets the dark matter of corporate IT. And that’s why people like Lyford-Smith have become defenders of the spreadsheet, mitigating the risks by fixing everyone else’s mistakes. ...

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Hamilton And The Law

Hamilton and the Law: Reading Today's Most Contentious Legal Issues through the Hit Musical (Lisa Tucker (Drexel) ed., Cornell University Press 2020):

Lawyers and legal scholars, recognizing the way the musical speaks to some of our most complicated constitutional issues, have embraced Alexander Hamilton as the trendiest historical face in American civics. Hamilton and the Law offers a revealing look into the legal community's response to the musical, which continues to resonate in a country still deeply divided about the reach of the law.

A star-powered cast of legal minds―from two former U.S. solicitors general to leading commentators on culture and society―contribute brief and engaging magazine-style articles to this lively book. Intellectual property scholars share their thoughts on Hamilton's inventive use of other sources, while family law scholars explore domestic violence. Critical race experts consider how Hamilton furthers our understanding of law and race, while authorities on the Second Amendment discuss the language of the Constitution's most contested passage. Legal scholars moonlighting as musicians discuss how the musical lifts history and law out of dusty archives and onto the public stage. This collection of minds, inspired by the phenomenon of the musical and the Constitutional Convention of 1787, urges us to heed Lin-Manuel Miranda and the Founding Fathers and to create something new, daring, and different.

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For Minority Law Students, Learning The Law Can Be Intellectually Violent

ABA Journal op-ed:  For Minority Law Students, Learning the Law Can Be Intellectually Violent, by Shaun Ossei-Owusu (Penn):

Apologies to minority law students feel necessary. ... 

I’m a Black criminal law professor who studies inequality in the legal profession. Because of my work, I am in contact with law students across the country. Many are trying to make sense of the disconnect between the law on the books and what they see in the criminal justice system.

I feel compelled to apologize, not because of some personal responsibility, but because the learning of law—particularly for racial minorities—can be intellectually violent. It pales in comparison to the structural and physical violence that people experience outside the ivory tower, but it is also unforgiving, can feel unrelenting and often goes unnamed. ...

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The Economic Impact Of Biden's Tax Policy

Hoover Institution Study:  An Analysis of Vice President Biden’s Economic Agenda: The Long Run Impacts of Its Regulation, Taxes, and Spending, by Timothy Fitzgerald (Texas Tech), Kevin Hassett (Hoover Institution), Cody Kallen (Wisconsin) & Casey Mulligan (Chicago):

We estimate possible effects of Joe Biden’s tax and regulatory agenda. We find that transportation and electricity will require more inputs to produce the same outputs due to ambitious plans to further cut the nation’s carbon emissions, resulting in one or two percent less total factor productivity nationally. Second, we find that proposed changes to regulation as well as to the ACA increase labor wedges. Third, Biden’s agenda increases average marginal tax rates on capital income. Assuming that the supply of capital is elastic in the long run to its after-tax return and that the substitution effect of wages on labor supply is nontrivial, we conclude that, in the long run, Biden’s full agenda reduces fulltime equivalent employment per person by about 3 percent, the capital stock per person by about 15 percent, real GDP per capita by more than 8 percent, and real consumption per household by about 7 percent.

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Dan Markel's Murder Trial: A Video Recap

Katherine Magbanua's Arthur Hearing (Sept. 14, 2020):

15 Things Katherine Magbanua Wants the Judge and Jury to Know (Sept. 16, 2020):

The State vs Katherine Magbanua: The State's Key Evidence (Sept. 17, 2020):

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Trump’s Taxes Were Not A Flaw In The System

New York Times op-ed:  Trump’s Taxes Were Not a Flaw in the System, by Veronique de Rugy (George Mason):

When Americans recently learned how little President Trump has paid in taxes in the past 15 years and how he benefited from financial maneuvers, it reinforced the widespread belief that the rich don’t pay their fair share. Lost in the outrage is the fact that the tax provisions that allowed Mr. Trump to trim his tax bill were probably not illegal or the results of tax schemes concocted by anti-tax legislators.

Those provisions, and many others like them, delivered exactly what their drafters intended: They are engineered to benefit certain kinds of taxpayers — and most Americans are not among them. ...

[I]f your vision is for a more equitable system that can actually be enforced by the I.R.S., what we really need is a simpler and fairer tax code. Some of the current rules are good, but many are political giveaways to special interests. Telling those rules apart is actually harder than it seems, but there are some obvious places to start.

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Wilking Presents Employees v. Independent Contractors: Evidence From U.S. Tax Returns Virtually At Michigan

Eleanor Wilking (Cornell) presented Independent Contractors in Law and in Fact: Evidence from U.S. Tax Returns virtually at Michigan yesterday as part of its Law and Economics Workshop Series hosted by J.J. Prescott & Veronica Santarosa:

Federal tax law divides workers into two categories depending on the degree of control exercised over them by the service purchaser (i.e. the firm): employees, who are subject to direct supervision; and independent contractors, who operate autonomously. Worker classification is consequential, determining how the income tax is administered and what it subsidizes, as well as which non-tax regulations pertain, such as workplace safety and anti-discrimination protections. The Internal Revenue Service and other federal agencies have codified common law agency doctrine into multi-factor balancing tests that are challenging to apply and costly to enforce. Yet almost nothing is known about how firms actually classify workers, and how such classification relates to the control they exercise. To bridge this gap between legal principles and legal practice, this Article introduces a novel empirical analysis using a comprehensive data source—all digitized U.S. income tax filings. This analysis establishes several new empirical facts.

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Dharmapala Presents Do Multinational Firms Use Tax Havens To The Detriment Of Other Countries? Virtually Today At Loyola-L.A.

Dhammika Dharmapala (Chicago) presents Do Multinational Firms Use Tax Havens to the Detriment of Other Countries? virtually today at Loyola-L.A. as part of its Tax Policy Colloquium Series hosted by Katie Pratt and Ted Seto:

The use of tax havens by multinational corporations (MNCs) has attracted increasing attention and scrutiny in recent years. This paper provides an exposition of the academic literature on this topic. It begins with an overview of the basic facts regarding MNCs’ use of havens, which are consistent with the location of holding companies, intellectual property, and financial activities in havens. However, there is also evidence of significant frictions that limit MNCs’ use of havens. These limits can be attributed to non-tax frictions (such as the legal and business environment in different jurisdictions), to tax law provisions limiting profit shifting, and to the costs of tax planning. There is evidence consistent with the relevance of each of these channels. The paper also argues that non-haven countries have available a range of powerful tax law instruments to neutralize the impact of MNCs’ use of havens. To the extent that it is not due to political dysfunction, their failure to deploy these instruments more extensively can be viewed as a deliberate policy choice, attributable either to collective action problems among non-havens or to the possibility that in certain circumstances MNCs’ use of havens increases the welfare of non-haven countries. In either case, MNCs’ use of havens is facilitated in crucial respects by the laws of non-haven countries.

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A Reckoning Over Law Faculty Inequality

Melanie D. Wilson (Former Dean, Tennessee), A Reckoning Over Law Faculty Inequality, 90 Denver U. L. Rev. Online (2020):

In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.

Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body.

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Chronicle Of Higher Education Debate: Is Academe Awash In Liberal Bias?

Chronicle of Higher Education op-ed (Sept. 14, 2020):  Is Academe Awash in Liberal Bias?, by Naomi Oreskes (Harvard) & Charlie Tyson (Harvard):

Is academe dominated by liberals? Most people think so. And why wouldn’t they? It’s what we hear all the time on social media, in newspaper and magazine articles, and even in academe itself. Conservatives routinely call out higher education’s “liberal bias,” and sometimes insist that something should be done to ensure that conservative voices are heard within the ivory tower. ...

The most comprehensive study to date of American faculty politics found a much more centrist professoriate than is alleged in conservative discourse. In that 2006 study, the sociologists Neil Gross and Solon Simmons found that some 44 percent of professors described themselves as “extremely liberal” (9 percent) or “liberal” (35 percent); 46 percent described themselves in centrist terms (18 percent as “slightly liberal,” 17 percent as “middle of the road,” and 11 percent as “slightly conservative”); 8 percent described themselves as “conservative” and 1 percent as “extremely conservative.” In other words, liberals outnumber conservatives, but the largest cohort of faculty — 46 percent — are moderates, spanning the terrain between center-left and center-right.

As academics, it behooves us to be receptive to ideas, open to evidence, and willing to listen. But we should not succumb to stereotype threat and rush to “remedy” a problem of liberal bias that exists primarily in the anxieties of some conservative commentators. And it certainly does not behoove us, as William F. Buckley famously exhorted, to stand astride history — or, for that matter, science — yelling, “Stop!”

Chronicle of Higher Education op-ed (Sept. 24, 2020):  Tenured Radicals Are Real,, by Phillip W. Magness (American Institute for Economic Research):

In their recent essay “Is Academe Awash in Liberal Bias?,” Naomi Oreskes and Charlie Tyson seek to dispute the increasingly common perception of the American university system as a hostile environment for viewpoints that stray from a left-leaning orthodoxy. Though their analysis acknowledges that the professoriate falls somewhat to the left of the general public, they nonetheless argue that academe is still firmly anchored at the middle of the political spectrum. Conservative talking points about “liberal bias” in the university system, it follows, are overblown and reveal their own unacknowledged biases under the guise of a corrective. 

This political culture-wars debate is unlikely to be resolved by editorial analysis, yet one dimension of Oreskes and Tyson’s argument warrants scrutiny: its empirical claims. ... Liberal and far-left faculty numbers swelled from 44.8 percent in 1998 to a clear majority of 59.8 percent in 2016-17, 

Digging deeper into the surveys, we find that one of the primary drivers of the leftward shift is the rapid growth of faculty members who identify on the far left.

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Freshmen Enrollment Is Down 16% This Fall

National Student Clearinghouse Research Center, Fall 2020 Enrollment (Oct. 15, 2020):

Roughly one month into the fall semester, undergraduate enrollment is running 4.0 percent below last year’s level, and the upward trend for graduate enrollment has slipped to 2.7 percent. Overall postsecondary enrollment is down 3.0 percent as of September 24. Most strikingly, first-time students are by far the biggest decline of any student group from last year (-16.1% nationwide and -22.7% at community colleges).

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Lesson From The Tax Court: §6662 Penalties Treated As One For Supervisory Approval Requirement

Last week, the Tax Court issued an important opinion on the §6751(b)(1) supervisory review requirements.  In Jesus R. Oropeza v. Commissioner, 155 T.C. No. 9 (Oct. 13, 2020) (Judge Lauber), held that the 20% penalty under §6662(b)(6) is the same as the 40% penalty under §6662(i) and therefore the failure to secure proper approval for assertion of the former in an RAR precludes assertion of the latter in a later NOD.  The latter subsection simply “enhances” the amount of §6662(b)(6) penalty and does not impose a separate penalty.

The path of the law is not linear. Doctrinal development sometimes involves two steps forward, one step backwards, and maybe even a step or two sideways.  In Oropeza the Tax Court took what some may view as a step sideways, and what the government will likely view as a step backwards.  The decision seems in tension with prior Tax Court opinions that treat §6662 as containing multiple penalties for supervisory approval purposes, including an opinion by the same judge about the same taxpayer!  The upshot of today’s opinion is that practitioners need to read NODs very carefully. Details below the fold.

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Judge Denies Pre-Trial Release Of Dan Markel Murder Suspect Katherine Magbanua

WTXL Tallahassee, Judge Denies Katherine Magbanua's Pre-trial Release Motion:

A Leon County judge has denied Katherine Magbanua's second motion for pretrial release.

Magbanua is one of three suspects facing charges for the murder of Florida State law professor, Dan Markel.

Judge Robert Wheeler submitted a three-page order Friday, saying "the proof is evident or the presumption is great as to the defendant's guilt for first-degree murder." Magbanua's lawyers filed the motion, reasoning that since her last case was declared mistrial, and the coronavirus pandemic risks her health, is grounds for a pretrial release.

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• The Best Stimulus: 0% Income Tax
• Pitt Law Adjunct Prof Resigns After Using N-Word In Class On Offensive Speech
• Nonprofit College Crash: Enforcing Board Fiduciaries Through Increased Accountability And Transparency In Form 990

Sunday:

• Black Lawyers Matter
• The Intersection Of Race And Taxes
• Test Takers Slam New York's First Online Bar Exam In New Survey
• The Top Five New Tax Papers

Black Lawyers Matter

Houston Chronicle op-ed:  Black Attorneys Matter. We Must Diversify Texas Law Firms., by Leonard M. Baynes (Dean, Houston) & Jennifer Collins (Dean, SMU):

Prior to 1950, if a Black Texas resident wanted to become a lawyer, they had to leave the state and study at a Northern law school or serve as an apprentice under a willing white Texas lawyer in order to become licensed. They had to do this because, at that time, none of the Texas law schools admitted Black students no matter their qualifications.

This year, we celebrate the 70th anniversary of the landmark Supreme Court opinion Sweatt v. Painter, the case that led to the desegregation of Texas law schools. We feel the best way to honor Heman Marion Sweatt is to continue to expand the number of students of color who are ready to be trained and join the ranks of practicing attorneys in Texas — a state that sorely needs to bolster that racial diversity. Co-hosting the Black Lawyers Matter Conference on Oct. 30, a Zoom-style webinar, will allow us to take stock of this challenge and share best practices to solve them. ...

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The Intersection Of Race And Taxes

The Philadelphia Bar Association Tax Section hosted a webcast on Friday on The Intersection of Race and Taxes:

Amid a renewed focus on racial justice in our society, this CLE program will address the scholarship and client-facing work on issues related to our tax system and its impact on racial inequality. The panelists share their insights and perspectives on how different aspects of international, federal, state and local tax structures effect racial inequities. Join your colleagues in the Tax Section for this fascinating examination of the intersection of racial diversity and federal, state and local tax policy.

• Alice Abreu ( Temple)
• Steven Dean (NYU)

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Test Takers Slam New York's First Online Bar Exam In New Survey

Karen Sloan (Law.com), Test Takers Slam New York's First Online Bar Exam in New Survey:

A survey of those who took New York’s first-ever online bar exam last week suggests that technical problems were more widespread than officials have indicated.

Among the nearly 500 survey respondents, 41% said they experienced Internet or software disruptions during the Oct. 5 and 6 remote exam. That’s in contrast to early data from the New York State Board of Law Examiners that indicated just 20 or fewer examinees experienced technical problems. (More than 30,000 people took online bar exam nationwide on those days, and bar examiners have hailed the test as a success, saying nearly everyone was able to complete it successfully.)

The survey was conducted by New York State Sen. Brad Hoylman and New York Assemblymember Jo Anne Simon, who partnered on an as-yet-unsuccessful bill that would established a diploma privilege for recent law graduates and enable them to become licensed without taking the bar exam after practicing under the supervision of an experienced attorney. The lawmakers asked examinees to share their experiences with the test. The survey respondents represent about 10% of the 5,165 people who took New York’s exam.

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The Top Five New Tax Papers

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

1. [568 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. [270 Downloads]  Good Tax Governance: International Corporate Tax Planning and Corporate Social Responsibility – Does One Exclude the Other?, by Ave-Geidi Jallai (Tilburg)
3. [251 Downloads]  The Rise of Cooperative Surplus Taxation, by Allison Christians (McGill) & Tarcisio Diniz Magalhaes (McGill)
4. [244 Downloads]  Economic Reality in EU VAT, by Ad van Doesum (Maastricht) & Frank Nellen (Maastricht)
5. [131 Downloads]  Why Is So Much Redistribution In-Kind and Not in Cash? Evidence from a Survey Experiment, by Zachary Liscow (Yale) & Abigail Pershing (J.D. 2020, Yale)

This Week's Ten Most Popular TaxProf Blog Posts

1. Video, Dan Markel's Murder: Wendi Adelson's Alibi
2. NBC Chicago, Loyola-Chicago Grad Took Online Illinois Bar Exam While In Labor, Then Gave Birth And Finished Test In The Hospital
3. Bryan Camp (Texas Tech), Lesson From The Tax Court: The Slippery Slope Of Tax Court Review
4. Karen Sloan (Law.com), Despite The Hype, Law School Clinics Stagnate
5. New York Times, Four Books That Explain The U.S. Tax System
6. Roger Alford (Notre Dame), Letter In Support Of Amy Coney Barrett
7. Inside Higher Ed, #Manterrupting In The VP Debate ... And The Academy
8. Paul Caron (Dean, Pepperdine), An Invitation To Alumni To Join Our Important Work On Racial Justice
9. Jacob Goldin (Stanford) & Katherine Michelmore (Michigan), Who Benefits from the Child Tax Credit?
10. Paul Caron (Dean, Pepperdine), Should Law School Deans Have A Chief Of Staff?

The Best Stimulus: 0% Income Tax

Wall Street Journal op-ed:  The Best Stimulus: 0% Income Tax, by Stephen Moore:

Instead of spending the money, why not cut out the government middleman and not collect the taxes? In 2020 the personal income tax was expected to raise $1.81 trillion and the corporate income tax $260 billion, for a total of $2.07 trillion. For a little more than $2 trillion, Congress could suspend the personal and corporate income tax for a year.

Instead of spending the money, why not cut out the government middleman and not collect the taxes? In 2020 the personal income tax was expected to raise $1.81 trillion and the corporate income tax $260 billion, for a total of $2.07 trillion. For a little more than $2 trillion, Congress could suspend the personal and corporate income tax for a year.

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Pitt Law Adjunct Prof Resigns After Using N-Word In Class On Offensive Speech

Pittsburgh Post-Gazette, Pitt Law School Adjunct Professor Resigns After Using a Racial Slur in Class:

Another professor on a city campus, this time at the University of Pittsburgh School of Law, is no longer in his position after uttering a racial slur in class, the second such incident in five weeks.

Officials at Pitt did not identify the adjunct professor or the class. But an email from law school administrators, including Law Dean Amy Wildermuth, sent Wednesday said the incident was followed by the professor’s announcement to students that he would resign.

“Early Tuesday morning, we learned that an adjunct professor at the law school used an offensive racial epithet (specifically, the “n word”) in the course of an academic class discussion on a particular case involving offensive language,” the email stated. “The instructor apologized and expressed his deep regret to the class, and informed the class at 1 p.m. today that he was resigning immediately from teaching at Pitt Law.

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Nonprofit College Crash: Enforcing Board Fiduciaries Through Increased Accountability And Transparency In Form 990

Patrick R. Baker (Tennessee), Paula Hearn Moore (Tennessee) & Kaleb Paul Byars (J.D. 2021, Tennessee), Nonprofit College Crash: Enforcing Board Fiduciaries Through Increased Accountability and Transparency in the IRS Form 990 Procedure, 2019 BYU Educ. & L.J. 167:

Private colleges are closing at an increasing rate due to mismanagement by their boards of directors. Because of inadequate standing to sue nonprofits and courts not questioning board decisions due to the business judgement rule, management of nonprofits is minimal after mishaps occur. Prevention measures must be established to ensure these breaches are prevented on the front-end. One solution is to strengthen IRS Form 990 by enforcing faster and more in-depth disclosures. This solution will allow stakeholders of nonprofits, such as Burlington College and Sweet Briar, to complete their due diligence, make informed decisions faster and more efficiently, and increase the likelihood that such educational institutions will survive and thrive.

Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Strategic Nonconformity To The TCJA

This week, Ariel Jurow Kleiman (San Diego) reviews a two-part essay, Strategic Nonconformity to the TCJA, Part I: Personal Income Taxes, 97 Tax Notes State 17 (July 6, 2020), by Adam Thimmesch (Nebraska), Darien Shanske (Davis), and David Gamage (Indiana); and Strategic Nonconformity, State Corporate Income Taxes, And the TCJA: Part II, 97 Tax Notes State 123 (July 13, 2020), by Darien Shanske, Adam Thimmesch, and David Gamage.

No one reading this review will be surprised to hear that states need cash. They need it to fund vital public services and to shore up coffers eviscerated by the economic fallout of the pandemic. While borrowing and federal support are both logical revenue sources, state borrowing limits prevent deficit spending and aid to state and local governments has been a major sticking point in federal stimulus talks. For the foreseeable future, states may be on their own.

Well, not entirely on their own. They do have some very able tax law scholars to help them navigate these rocky fiscal shoals. In this two-part essay, Adam Thimmesch, Darien Shanske, and David Gamage offer several ways that states can raise revenue during the current crisis. Part of a larger effort called Project SAFE (State Action in Fiscal Emergencies), this two-part installment considers how states’ tax laws should or should not conform with changes enacted in the Tax Cuts and Jobs Act (TCJA).

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Tax Policy In The Trump Administration

• Bloomberg, Biden Would Smother the Economy by Raising Taxes
• Bloomberg, Biden’s Tax Plan Would Raise Just $2.4 Trillion
• Bloomberg, Larry Summers and Robert Reich Clash Over a Wealth Tax
• Cato Institute, Income Taxes on the Ballot 
• Cato Institute, King v. Burwell: A Clear Example of Legislating from the Bench 

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Weekly Legal Education Roundup

• ABA Journal, Recent Equal Pay Lawsuits by Female Law Professors Has Shined a Light on Academic Compensation Process
• Judith Areen (Executive Director, AALS), Law Prof Hiring Is Down 25% This Year
• Paul Caron (Dean, Pepperdine), An Invitation To Alumni To Join Our Important Work On Racial Justice
• Paul Caron (Dean, Pepperdine), Should Law School Deans Have A Chief Of Staff?
• Inside Higher Ed, #Manterrupting In The VP Debate ... And The Academy

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Stark Presents South Dakota v. Wayfair: One Small Step for Man Virtually Today At Florida

Kirk Stark (UCLA) presents South Dakota v. Wayfair: One Small Step for Man virtually today at Florida as part of its Tax Colloquium Series:

My objective in this article is to situate the Wayfair decision within the broader historical and institutional context of U.S. fiscal federalism, with a particular emphasis on what Wayfair may portend for U.S. fiscal federalism and future of the retail sales tax. With apologies to Neil Armstrong, the Supreme Court’s repudiation of the Quill physical presence rule surely marks a “small step” in the development of state and local retail sales taxes. Tax policy analysts, myself included, have long bemoaned the adverse effects of the physical presence rule, so its demise is unquestionably welcome news. But does the Wayfair holding represent a “giant leap” toward a more coherent and rational system of taxing household consumption in the United States? 

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15th Annual Junior Tax Scholars Workshop Continues Virtually Today At Utah

Andrew Appleby (Stetson), Subnational Digital Services Taxes
Commentators: Christine Kim (Utah), Shelly Layser (Illinois)

Ed Fox (Michigan, presenting) & Zach Liscow (Yale), When the Taxman Pays Taxpayers: Understanding the Psychology of Negative Tax Liability
Commentators: Jeremy Bearer-Friend (George Washington), Clint Wallace (South Carolina)

Jacob Goldin (Stanford, presenting) & Ariel Jurow Kleiman (San Diego), Whose Child Is This?
Commentators: Jeremy Bearer-Friend (George Washington), Daniel Schaffa (Richmond)

Christine Kim (Utah), Taxing Teleworks in the Wake of COVID-19
Commentators: Goldburn Maynard (Indiana Business School), Ariel Jurow Kleiman (San Diego)

Shelley Layser (Illinois), Magnet Zones
Commentators: Zach Liscow (Yale), Tracey Roberts (Cumberland)

Daniel Schaffa (Richmond), Payroll Subsidies as a Policy Tool
Commentators: Tracey Roberts (Cumberland), Eleanor Wilking (Cornell) 

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Dagan Presents Re-Imagining Tax Justice In A Globalized World Virtually Today At Boston College

Tsilly Dagan (Oxford) presents Re-Imagining Tax Justice in a Globalized World virtually at Boston College today as part of its Tax Policy Workshop Series hosted by Shu-Yi Oei, Jim Repetti, and Diane Ring:

In this paper I explain why designing a country’s tax policy with the elasticity of taxpayers’ choices of residency in mind, although a rational welfare-maximizing move by the state as a whole, and possibly even for its immobile as well as mobile constituents, is a policy that may not be justified under a liberal-egalitarian social contract.

I discuss two polar views of the social contract: one endorsing the state with the coercive power to promote the joint interests of its constituents. The other views the coercive power of the state as a way to fulfill the collective will of its constituents as a society of equals in order to promote who they are as people.

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The LSAT Will Be Online Through April

From LSAC:

Important announcement: All January, February, and April 2021 LSAT administrations will be moving to the online, remotely proctored LSAT-Flex format. More info here. ...

As you know, the LSAT-Flex gives candidates the opportunity to earn an LSAT score and continue their law school journeys despite COVID-19 restrictions on travel or public gatherings. Over the past six months, we have taken an incremental approach to canceling the in-person LSATs one by one and replacing them with LSAT-Flex administrations, based on public health guidance. Given the ongoing disruption and uncertainty over how the COVID-19 situation will evolve, and feedback from candidates, we want to provide clarity for the next six months, so that everyone can plan accordingly.

The January, February, and April 2021 LSAT-Flex administrations will begin on the same date as the previously announced in-person tests, with scores released less than three weeks later.

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Amy Coney Barrett And Law School Exams

So no final exams this year, right? pic.twitter.com/m0aoAmccny

— Melissa Stewart (@LissaJoStewart) October 14, 2020

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Goldin & Michelmore: Who Benefits From The Child Tax Credit?

Jacob Goldin (Stanford) & Katherine Michelmore (Michigan), Who Benefits from the Child Tax Credit?:

The Child Tax Credit (CTC) provides a cash transfer of up to $2,000 per child under age 17 to millions of families in the United States. Using the Current Population Survey, we examine the aggregate effects and distributional implications of the rules governing children’s eligibility for the credit. While approximately 90% of all children qualify for at least a partial CTC, we document striking disparities in eligibility by income and race. The vast majority of children living in households in the bottom decile of the national AGI distribution are completely ineligible for the CTC and the majority of filers in the bottom thirty percent are eligible only for a partial credit. In contrast, virtually all children living in households in the top half of the income distribution qualify for the full credit amount. Approximately three-quarters of white and Asian children are eligible for the full CTC, compared to only about half of Black and Hispanic children. We use our results to estimate the distributional effects of a range of reforms to the CTC eligibility rules. Our results suggest that reforming the credit to include a larger share of children would more evenly distribute the credit’s benefits across children of different races and incomes.

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Cockfield: How To End The Conflict Over Taxing Global Digital Commerce

Arthur J. Cockfield (Queen's University), Tax Wars: How to End the Conflict over Taxing Global Digital Commerce, 17 Berkeley Bus. L.J. 353 (2020):

In the last two years, dozens of governments have proposed or implemented unilateral tax measures to tax foreign-based technology companies. The new tax innovations include special withholding taxes, diverted profit taxes, minimum taxes, and digital services taxes. The rise of these unilateral measures threatens an international tax “war” among governments that could stifle new business models or even the spread of the global digital economy. This Article reviews the failure of international reform efforts to constrain aggressive international tax planning within the digital economy, and how the global digital tax conflict masks a growing dissatisfaction with how to tax value associated with global transactions.

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Gender Pay Disparities In The Legal Academy

Following up on Monday's post, Multiple Equal Pay Lawsuits By Female Law Professors Shine Light On Faculty Compensation:

CJ Ryan (Roger Williams) & Meghan Dawe (American Bar Foundation), Mind the Gap: Gender Pay Disparities in the Legal Academy, 34 Geo. J. Legal Ethics ___ (2021):

Differences in pay between women and men in the same jobs have captured the public’s attention in recent years. However, public interest in and press coverage of salary differences on the basis of gender—or any other ascriptive class—in the learned professions are wanting. Moreover, few studies have spoken directly on the gender pay disparities in the legal academy, despite emerging evidence of it at multiple law schools. In this Article, we use a unique dataset, drawn from the only nationally representative survey to date of tenured law professors in the United States, to track how gender and race are tied to salary outcomes. But we look beyond the raw differences in salary, probing the mechanisms that undergird gendered pay inequities.

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Pepperdine Caruso Law Makes Financial Commitment To Black Students

Following up on my previously posts:

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

National Jurist, Pepperdine Makes Financial Commitment to Black Students:

Pepperdine Caruso School of Law says it’s committed to creating more access for Blacks to gain top-notched legal educations.

It’s doing more than talking about it.

The Malibu, Calif., school recently announced a new scholarship program that aims to do just that. All students who graduate from at any of the nation’s 106 Historically Black Colleges or Universities who are admitted to and attend the law school will be guaranteed a 50% tuition scholarship.

In addition, up to five of those students will be named Caruso Excellence Scholars and receive full tuition scholarships.

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California's Bar Exam Cut Score: Minimum Competency, Public Protection, Disparate Impact, And National Standards

Following up on last week's post, Lowering Bar Exam Cut Scores Will Increase Diversity Without Harming Public:  Mitchel Winick (Dean, Monterey), Victor D. Quintanilla (Indiana), Sam Erman (USC), Christina Chong-Nakatsuchi (Monterey) & Michael Frisby (Michigan), Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards:

The selection of a minimum bar exam passing score (“cut score”) shapes the representation of racial and ethnic minorities in the legal profession and the quality of access to justice in the state. This study provides an empirical analysis that shows how higher cut scores create disparities within the attorney licensing system and affects the diversity of new licensees. Analysis of disciplinary statistics from 48 jurisdictions also shows that establishing a high cut score does not result in greater public protection when measured by disciplinary statistics.

The study’s first data set included 85,727 examinees who sat for 21 administrations of the CBX from 2009-18 and the race and ethnicity of each examinee. Both historical actual and simulated cut scores were analyzed. The study’s second data set used the ABA discipline data from up to 48 U.S. jurisdictions from 2013-18 and the cut scores in each jurisdiction to examine the relationship between minimum cut scores and rates of attorney discipline.

A simulation analysis using actual examinee scores confirmed that selecting a lower cut score would have significantly narrowed the achievement gap between Whites and racial and ethnic minorities and would have increased the number of newly admitted minority attorneys in California.

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Tax Papers At Today's Law & Macroeconomics Conference

• Jeremy Bearer-Friend (George Washington), In-Kind Tax Paying: Lessons and Risks
• Wei Cui (British Columbia), How Well-Targeted Are Payroll Tax Cuts as a Response to COVID-19? Evidence from China
• Brian Galle (Georgetown), The Federal Reserve and the Fiscal System
• Ariel Jurow Kleiman (San Diego), Impoverishment by Taxation

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Beware the Instant Global-Campus Movement: Universities Should Stop Trying To Buy Their Way To Online Dominance

Chronicle of Higher Education, Beware the Instant Global-Campus Movement: Universities Should Stop Trying to Buy Their Way to Online Dominance:

The University of Arizona took a big step into the online-education market this summer when it announced plans to buy Ashford University, a for-profit institution with more than 30,000 students, to create a new Global Campus. Recast as a nonprofit, the online university will still operate as a separate entity, but now it will carry the University of Arizona name. Arizona is following in the high-profile footsteps of Purdue University, which in 2017 announced plans to purchase the similarly large for-profit Kaplan University.

Both Arizona and Purdue, with one move, have outwardly leapfrogged their competition and became major players in the online world with a much more diverse set of learners — working adults from underserved demographic groups. So it’s not hard to see why other universities are looking to follow their leads. When Purdue University Global was being approved by accreditors in 2018, there were already a dozen other nonprofit colleges exploring potential acquisitions of existing for-profit online universities. This appears to be an emerging, problematic trend. Call it the Instant Global Campus movement. ...

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Christians & Tazeem: Facebook’s Libra Is The Next Tax Challenge For The Digital Economy

Allison Christians (McGill) & Mahwish Tazeem (McGill), Facebook’s Libra: The Next Tax Challenge for the Digital Economy, 3 Stan. J. Blockchain Law & Pol'y 228 (2020):

In 2019 Facebook announced its plan to launch a cryptocurrency within the coming year, with the express goal of extending past its existing user base to those who lack access to traditional banking services. The prospect of Facebook enabling millions of global transactions outside of the (highly regulated) conventional banking system prompted scrutiny, most immediately in the area of financial services regulation. But it should also heighten the sense of urgency to reconstruct prevailing global tax rules to ensure that highly digitalized businesses pay an appropriate amount of taxes wherever they carry out business activities and create value. This paper lays out Facebook Libra’s original design concept, the problems it sought to solve, and the potential implications its successful launch would have on the redesign of the global tax system that is already in progress.

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Kim Presents Blockchain Initiatives For Tax Administration Virtually Today At Oregon

Young Ran (Christine) Kim (Utah) presents Blockchain Initiatives for Tax Administration virtually at Oregon today as part of its Tax Policy Colloquium Series hosted by Roberta Mann:

Blockchain has become an attractive topic not only among techies, but also entrepreneurs, policymakers, and even laymen. A thriving body of literature discusses various legal issues related to blockchain, but it often mixes the discussion of blockchain with Bitcoin and other cryptocurrencies. However, cryptocurrencies and blockchain are not synonymous. Blockchain is a decentralized, immutable, peer-to-leer ledger technology, whereas cryptocurrencies are built on a blockchain. In other words, blockchain is the original, underlying technology of cryptocurrencies. Recently, not only the private sector—e.g., financial services, smart contracts, medical records, property records, supply chain—but also the public sector—e.g., defense, budget allocation, government approval chain, voting—have gone beyond the cryptocurrencies and have begun to utilize blockchain technology itself as a newly emerged data management system, appreciating its resilient and immutable features. Considering that more data is processed remotely and thus digitally in post COVID-19 era, the data management system built upon blockchain will gain stronger momentum.

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Kysar Presents Interpreting By The Rules Virtually Today At UC-Irvine

Rebecca Kysar (Fordham) presents Interpreting by the Rules, 99 Tex. L. Rev. ___ (2020), virtually at UC-Irvine today as part of its Tax Policy Colloquium Series hosted by Joshua Blank, Victor Fleischer, and Omri Marian:

A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress’s procedural frameworks and rules as reliable heuristics to that end. This Article starts from that premise but will add wrinkles to it. The complications stem from the fact that each rule is adopted for distinct reasons and is applied differently across contexts. As investigation into these particularities proceeds, it becomes apparent that the complications are also rooted in something deeper—that Congress’s procedures are often hollow, even fraudulent. Congress, it turns out, breaks its own rules with impunity.

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Saito Presents Tax Coordination Virtually Today At Northeastern

Blaine Saito (Northeastern) presents Tax Coordination virtually at Northeastern today as part of its Faculty Colloquia Series:

The United States implements a great deal of its social policy through the income tax laws. The Code is rife with tax expenditures for education, housing, community economic development, retirement savings, and health care to name a few. Many tax scholars have questioned consistently the use of the Code to implement these policies, calling instead for the elimination of these tax expenditures. Furthermore, as an agency the IRS and Treasury lack the expertise to manage these social policy tax expenditures effectively. Yet, given American politics and the institutional structure of the federal government, that is unlikely to happen.

This piece suggests that agency coordination between the IRS and other federal agencies, called tax coordination, would improve administration, management, and potential outcomes of these social policy tax expenditures. Drawing on the well-established literature in administrative law and public administration regarding agency coordination, it shows the benefit of tax coordination. 

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The Free Market Can Deliver Free College (And Free Law School)

Wall Street Journal op-ed:  Free Market Can Deliver Free College, by Daniel Pianko (University Ventures):

Students and parents can’t be faulted for suspecting that an online education should cost next to nothing.

At some institutions, it already does. Primarily online Southern New Hampshire University recently announced a free first year for incoming students in light of the pandemic. ...

Can the pandemic finally bring the traditional college pricing model to its knees? Or will these examples remain outliers?

Insight into the future of higher education may come from an unlikely source: the brokerage industry. Like higher ed, stock trading is a highly regulated field with massive barriers to change. ... For years, the traditional brokerage industry was considered too difficult to replicate with technology. How could the internet replace a white-shoe adviser who not only took trade orders but also answered the phone, offered personal advice and took part in estate planning and other higher-order wealth-management tasks?

The mighty were felled quicker than expected. Over 30 years, technology reduced the cost of trading a stock from hundreds of dollars to virtually zero. ... Today, almost no large brokerage firm is charging for stock trades. Firms make money from new revenue sources, like selling order flow to market makers. It’s not unlike the way Gmail is free for users, whose data then helps Google sell targeted advertising. ...

Higher ed is where the brokerage business was in the late 1990s: poised for transformation.

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Should Law School Deans Have A Chief Of Staff?

Harvard Business Review, The Case for a Chief of Staff:

Most new CEOs pay little attention to a key factor that will help determine their effectiveness: the administrative system that guides day-to-day operations in their offices. This system ensures that leaders make the most of their limited time, that information arrives at the right point in their decision-making process, and that follow-up happens without their having to check. Many new CEOs default to the system they’ve inherited, even if it is poorly suited to their style or to the operational changes they must make. Often there’s a better way to handle the information flow necessary for a CEO to succeed—and very often a chief of staff (CoS) can play an essential role. ...

Although each leader should tailor the position to his or her own  needs, the CoS should handle several principal duties, all focused on making time, information, and decision processes more effective. Patrick Aylward, a vice president and CoS at Horizon Blue Cross Blue Shield of New Jersey, breaks the job down into five roles: serving as an air traffic controller for the leader and the senior team; as an integrator connecting work streams that would otherwise remain siloed; as a communicator linking the leadership team and the broader organization; as an honest broker and truth teller when the leader needs a wide-ranging view without turf considerations; and as a confidant without an organizational agenda. Aylward points out that “while a CEO’s other direct reports typically emphasize their own areas, a good CoS can consider the needs of the whole enterprise.”

The most sophisticated chiefs of staff also assist CEOs in thinking through and setting policies—and making sure they are implemented. They anticipate problems and are especially sensitive to issues that require diplomacy. They function as extra eyes and ears by pointing out political potholes their bosses may not recognize (especially if the bosses are new to the company). Importantly, a CoS acts with the implicit imprimatur of the CEO—something that calls for humility, maturity, and situational sensitivity.

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NY Times: Four Books That Explain The U.S. Tax System

New York Times, Four Books that Explain the U.S. Tax System:

David Foster Wallace, The Pale King (2012), reviewed by Darien Shanske (UC-Davis) and Larry Zelenak (Duke):

In this posthumous novel, set at an I.R.S. office in Illinois, the agency is a microcosm of human nature: “greed, politics, power, goodness, charity.

The agents at the IRS Regional Examination Center in Peoria, Illinois, appear ordinary enough to newly arrived trainee David Foster Wallace. But as he immerses himself in a routine so tedious and repetitive that new employees receive boredom-survival training, he learns of the extraordinary variety of personalities drawn to this strange calling. And he has arrived at a moment when forces within the IRS are plotting to eliminate even what little humanity and dignity the work still has.

The Pale King remained unfinished at the time of David Foster Wallace's death, but it is a deeply compelling and satisfying novel, hilarious and fearless and as original as anything Wallace ever undertook. It grapples directly with ultimate questions -- questions of life's meaning and of the value of work and society -- through characters imagined with the interior force and generosity that were Wallace's unique gifts. Along the way it suggests a new idea of heroism and commands infinite respect for one of the most daring writers of our time.

David Cay Johnston, Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich--and Cheat Everybody Else (2003), reviewed by Joel Newman (Wake Forest):

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An Invitation To Pepperdine Alumni To Join Our Important Work On Racial Justice

Following up on my previous posts:

• A Message On The Death Of George Floyd From Dean Paul Caron (June 3, 2020)
• Your Voices Matter At Pepperdine Caruso Law (June 14, 2020)
• A Message From Pepperdine Caruso Dean Paul Caron: Our New Academic Year (Aug. 23, 2020)

Invitation to Alumni to Join Our Important Work on Racial Justice:

Dear Valued Pepperdine Caruso Law Alumni:
As social justice and questions on race and equality continue to evolve, we want to update you on recent actions taken at Pepperdine Caruso Law and invite you to become involved in these actions as we move forward as a law school and as a community.

As Dean Caron has shared, the school has taken many steps to reflect the core values that lie at the heart of our institution. We believe that because each member of Pepperdine Caruso Law community is created equal and made in the image of God, it is our imperative to "do justice" through not only our words, but our actions.

We have focused on pipelines for historically underrepresented groups through the California LAW Pathway Program and our partnerships with Historically Black Colleges and Universities. We have been developing law school curriculum and related educational programming. The appointment of Chalak Richards (JD '12) as our first assistant dean of Student Life, Diversity and Belonging has placed an even sharper focus on our goal that all of our students, faculty, and staff are well equipped to fairly and equally advocate for justice at this moment in history.

As alumni, you can support our efforts in the area of your choice. Donations of your time, attention, prayers, and advice are invaluable to our current and future students. You can volunteer your time in the following ways:

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U.S. Still Balks At OECD Plan To Tax Tech Giants

New York Times, Global Talks on Taxing Tech Firms Will Slip Into 2021:

International negotiators said on Monday that they would not reach agreement this year on how and where to tax technology giants like Google and Facebook, as talks remain hindered by the pandemic and an ongoing dispute between the United States and other wealthy nations.

Wall Street Journal, U.S.-Europe Relations Tested as Talks on Taxing Multinationals Fall Short:

World governments have failed to agree to new rules on taxing the profits of multinational companies, a long-running point of tension between the U.S. and Europe over levies paid by the likes of Apple Inc. and Google and one that has raised the threat of trans-Atlantic tariffs. ... [T]he Organization for Economic Cooperation and Development, the forum for the talks, said on Monday that governments have failed so far to agree on new rules.

Financial Times, OECD Drafts Principles For $100bn Global Corporate Tax Revolution:

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Zucman Presents The Rise Of Income And Wealth Inequality Of America Virtually Today At NYU

Gabriel Zucman (UC-Berkeley) presents The Rise of Income and Wealth Inequality of America: Evidence from Distributional Macroeconomic Accounts (with Emmanuel Saez (UC-Berkeley)) virtually at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

This paper studies inequality in America through the lens of distributional macroeconomic accounts—comprehensive distributions of the aggregate amount of income and wealth recorded in the official macroeconomic accounts of the United States. We use these distributional macroeconomic accounts to quantify the rise of income and wealth concentration since the late 1970s, the change in tax progressivity, and the direct redistributive effects of government intervention in the economy. Between 1978 and 2018, the share of pre-tax income earned by the top 1% rose from 10% to 19% and the share of wealth owned by the top 0.1% rose from 7% to 19%. In 2018, the tax system was regressive at the top-end; the top 400 wealthiest Americans paid a lower average tax rate than the macroeconomic tax rate of 28%. We confront our methods and findings with those of other studies, pinpoint the areas where additional data and more research is needed, and describe how additional data collection could improve inequality measurement.

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Holderness: Tax Relief For Commuters After COVID-19

Hayes Holderness (Richmond), Changing Lanes: Tax Relief for Commuters:

Tax law reaches all parts of life, and societal views about life activities often affect how the law is applied. As those societal views change, then, application of the law should be expected to change in turn. This Essay highlights changing societal views about commuting, particularly as a result of the COVID-19 pandemic, to demonstrate how even long-standing positions under the tax law can be quickly uprooted.

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Law Schools Are Dropping The Ball On Diversity

Following up on my previous post, LSSSE: New Research Provides Insight Into Diversity And Inclusion In Law School:  Karen Sloan (Law.com), Law Schools Are Dropping the Ball on Diversity and Inclusion:

I’m not going to sugarcoat this one: Law schools aren’t making the grade when it comes to ensuring that their minority, first-generation, and other non-traditional students feel included, valued, and supported on campus. Sure, white students think their schools are doing pretty good when it comes to teaching diversity skills and ensuring everyone is welcome and included. But ask the non-white students, and it’s a different story.

That’s the thrust of the latest data from the Law School Survey of Student Engagement, which annually surveys students across a wide swath of schools about their experience on campus. The 2020 iteration included a special section of questions on diversity and inclusion that was completed by students at 28 schools, and results are eye opening. The survey shows us that while students are attending the same school and the same classes, their perceptions of inclusiveness and diversity efforts differ greatly depending on their own backgrounds. ...

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A Blueprint For Using Assessments To Achieve Learning Outcomes And Improve Law Students’ Learning

Rogelio A. Lasso (UIC-John Marshall), A Blueprint for Using Assessments to Achieve Learning Outcomes and Improve Students’ Learning, 12 Elon L. Rev. 1 (2020):

For over a decade, there has been agreement among legal educators that assessments are a critical tool to improve students’ learning. We are beginning to understand that the types of assessments we use have the greatest influence on how and what students learn. As a result of recent ABA accreditation requirements, there is now a scramble in law schools to adopt assessments that improve students’ learning and bar passage rates as to satisfy these new requirements. Nevertheless, there remains no clear methodology to assist doctrinal faculty in creating an effective assessment program. After twenty-seven years of developing assessment programs that have improved students’ learning and bar passage rates, this article is an attempt to provide faculty and administrators a blueprint for incorporating an effective assessment program.

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