Pepin Presents A Permanently Refundable Child And Dependent Care Credit Today At Georgetown

Gabrielle Pepin (Upjohn Institute; Google Scholar) presents How Would a Permanently Refundable Child and Dependent Care Credit Affect Eligibility, Benefits, and Incentives? virtually at Georgetown today as part of its Tax Law and Public Finance Workshop:

The federal Child and Dependent Care Credit (CDCC) subsidizes child care costs for working families. Before 2021, the CDCC was nonrefundable, so only families with positive tax liability after other deductions benefited. I estimate how CDCC eligibility, benefits, and marginal tax rates would change if the credit were made permanently refundable, relative to 2020 CDCC parameters set to be restored in 2022. Under refundability, some 5 percent of single parents gain eligibility and receive on average over $1,000 annually. Eligibility increases are largest among Black and Hispanic households. Increases in marginal tax rates among moderate-income taxpayers are small.

Conclusion
In this paper, I show that making the CDCC permanently refundable would increase eligibility and benefits among low-income taxpayers, who do not tend to benefit from other child care subsidy programs, such as dependent care FSAs. Furthermore, refundability would lead to particularly large increases in eligibility among Black and Hispanic households, which are relatively unlikely to qualify for the nonrefundable CDCC. Turning to intensive margin labor supply incentives, refundability would decrease marginal tax rates with respect to income among very-low-income taxpayers. Moderate-income taxpayers would experience small increases in marginal tax rates with respect to income but decreases in marginal tax rates with respect to child care expenditures.

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How A Key Biden Tax Idea Got Crushed

Alan Cole (Full Stack Economics), How a Key Biden Tax Idea Got Crushed:

President Joe Biden came into office planning to tax intergenerational wealth more heavily. He had several policy ideas to do this, and the most intellectually defensible of these was to change a capital gains tax provision called “step-up basis.”

Under current law, when you sell an asset, you pay capital gains tax on the amount the asset appreciated. The appreciation is calculated by subtracting the acquisition price—known as the basis—from the sale price. However, there is an exception when you inherit an asset: the basis is the value of the asset at the time you inherited it, not the value at the time it was originally acquired. The capital gains between acquisition and inheritance are lost to the income tax system, as the Treasury Department explained in a recent report supporting Biden’s plan.

Biden had hoped to address this issue in upcoming legislation. But that plan is now in shambles after a public revolt and a decisive push from lobbyists like former senator Heidi Heitkamp. Step-up repeal has been entirely removed from the latest plans released by House Ways and Means Chair Richard Neal.

“Frankly this is a humiliating climbdown from the administration’s posture,” Capital Alpha Partners’ James Lucier told the Financial Times.

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Florida Seeks To Hire An Entry Level Or Pre-Tenure Lateral Tax Prof

University of Florida Levin College of Law seeks to hire multiple professors, across an array of fields, over the next several years as part of the university’s quest to become a top five public research institution. The University of Florida, located in Gainesville, FL, is currently the sixth best public research institution in the nation and the flagship university of the third largest state. ... The Appointments Committee welcomes applications from entry-level and pre-tenure lateral candidates writing in all areas of law. Successful candidates will have publication records, strong scholarly potential, commitment to excellence in teaching, and enthusiasm for creating inclusive environments for all students. Candidates must also have a JD, PhD, or equivalent degree in a related field. In reviewing applications, the Appointments Committee will consider long-term teaching needs in required and large enrollment classes, health law, tax, commercial law, election law, law and technology, and race and the law.

For further information, applicants may contact Professors Peter Molk and Wentong Zheng at appointments@law.ufl.edu.

Law schools looking to hire Tax Profs to start in the 2022-23 academic year:

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July 2021 Florida Bar Exam Results: Florida International Is #1 For 7th Year In A Row

The July 2021 Florida bar passage rates by school are out. The overall pass rate for first-time takers is 71.6%, down 0.1 percentage point from last year. For the seventh year in a row, Florida International is #1. Here are the results for the 11 Florida law schools, along with each school's U.S. News ranking (Florida and overall):

Bar Pass Rank (Rate)	School	US News Rank FL (Overall)
1 (88.8%)	Florida Int'l	4 (88)
2 (82.5%)	Miami	3 (72)
3 (81.3%)	Florida	1 (21)
4 (78.8%)	Stetson	5 (111)
5 (73.9%)	Florida State	2 (48)
6 (67.6%)	Ave Maria	Tier 2
7 (66.7%)	Nova	Tier 2
8 (59.2%)	Barry	Tier 2
9 (56.8%)	Florida A&M	Tier 2
10 (53.3%)	Florida Coastal	Tier 2
11 (50.8%)	St. Thomas	Tier 2

Miami Herald, Want to Attend Law School in Florida? These Have the Highest Bar Passage Rates:

FIU, the largest public university in the South Florida, led the rankings of Florida’s 11 law schools with a whopping 88.8% passing rate. ... “I’m just so very proud and impressed by our Bar takers,” said FIU law dean Anthony Page. “They have shown an enormous amount of resilience and persistence and legal skill given all of the travails of the last year.” ... This marks the seventh consecutive year that FIU has come out on top in the larger fall administration of the exam. ...

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NY Times: Tax Lawyers At Top Accounting Firms Cycle In And Out Of Top Treasury Posts And Reap Huge Reward For Their Clients And Themselves

New York Times, How Accounting Giants Craft Favorable Tax Rules From Inside Government:

For six years, Audrey Ellis and Adam Feuerstein worked together at PwC, the giant accounting firm, helping the world’s biggest companies avoid taxes.

In mid-2018, one of Mr. Feuerstein’s clients, an influential association of real estate companies, was trying to persuade government officials that its members should qualify for a new federal tax break. Mr. Feuerstein knew just the person to turn to for help. Ms. Ellis had recently joined the Treasury Department, and she was drafting the rules for this very deduction.

That summer, Ms. Ellis met with Mr. Feuerstein and his client’s lobbyists. The next week, the Treasury granted their wish—a decision potentially worth billions of dollars to PwC’s clients.

About a year later, Ms. Ellis returned to PwC, where she was immediately promoted to partner. She and Mr. Feuerstein now work together advising large companies on how to exploit wrinkles in the tax regulations that Ms. Ellis helped write.

Ms. Ellis’s case — detailed in public records and by people with direct knowledge of her work at the Treasury and at PwC — is no outlier.

The largest U.S. accounting firms have perfected a remarkably effective behind-the-scenes system to promote their interests in Washington. Their tax lawyers take senior jobs at the Treasury Department, where they write policies that are frequently favorable to their former corporate clients, often with the expectation that they will soon return to their old employers. The firms welcome them back with loftier titles and higher pay, according to public records reviewed by The New York Times and interviews with current and former government and industry officials.

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PAC-12 Law Schools Weekly Zoom Series On Access To Justice

The law schools in the PAC-12 are hosting a free Zoom 10-week lecture series on Tuesdays on Access to Justice (Sept. 21 - Nov. 30 schedule) Jody Armour (USC) kicks off the series today with Negrophobia and Reasonable Racism: Race, Language, Unequal Justice, and the Law:

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NY Times: Why Taxing Stock Buybacks Is The Wrong Fix For Excessive Executive Pay

Following up on my previous posts (links below):  New York Times DealBook:  Why Taxing Stock Buybacks Is the Wrong Fix for Executive Pay:

Corporate share buybacks have been a boogeyman on the left ever since Senator Bernie Sanders attacked them during his presidential run in 2016.

Now the cause has been taken up by Senate Democrats, who want to tax corporations on their stock repurchases. The stated reason is that companies should use their cash to increase wages rather than goose their stock prices and reward their chief executives.

But the truth is that taxing or restricting share buybacks won’t end corporate greed, or excessive compensation.

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Book, Fogg & Olson Present Reducing Administrative Burdens To Protect Taxpayer Rights Today At Loyola-L.A.

Leslie Book (Villanova; Google Scholar), T. Keith Fogg (Harvard), & Nina Olson (Center for Taxpayer Rights) present Reducing Administrative Burdens to Protect Taxpayer Rights virtually today at Loyola-L.A. as part of its Tax Policy Colloquium:

The tax system designed by Congress imposes significant administrative burdens on taxpayers. IRS decisions regarding how it administers tax laws can add to congressionally imposed burdens. The administrative burdens are consequential and hurt some people, especially lower- or moderate-income individual taxpayers, more than others. While the IRS strives to measure and reduce the time and money taxpayers spend to comply with their tax obligations, it does not consider the effect administrative burdens have on taxpayer rights, including the right to be informed, the right to pay no more than the correct amount of tax, and the right to a fair and just tax system.

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WSJ: How A Tech Mogul Pushed Through The Opportunity Zones Tax Break

Wall Street Journal Essay:  How a Tech Mogul Pushed Through a Tax Break, by David Wessel (Brookings Institution; Author, Only the Rich Can Play: How Washington Works in the New Gilded Age (Oct. 2021)):

Sean Parker lobbied to create Opportunity Zones to encourage development in low-income areas, but so far the main beneficiaries are investors wanting lower taxes.

The U.S. tax code is larded with provisions that the wealthy use to reduce their taxes. Some get a lot of attention, while some are inserted into tax bills very quietly—like Opportunity Zones, or OZs.

Six pages tucked into the sprawling 2017 Tax Cuts and Jobs Act led to the creation of 8,764 of these tax havens across the U.S., ostensibly to lure private capital to poor neighborhoods. Anyone can invest capital gains from a previous investment in a building or business in a census tract designated as an OZ by a state’s governor, defer and reduce taxes on that initial gain, and then pay zero capital-gains tax on any profits from that OZ investment, provided that they stick with it for 10 years. Other than holding on to an appreciated asset until you bequeath it to your children, there aren’t many other ways to avoid capital-gains taxes altogether. This one has a huge advantage: “You don’t have to die,” says Brad Cohen, a Los Angeles tax lawyer.

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Five Ways To Make A Real Improvement In Hiring Black Professors

Chronicle of Higher Education op-ed:  5 Ways to Make a Real Improvement in Hiring Black Professors, by J. Luke Wood (Vice President for Student Affairs and Campus Diversity, Chief Diversity Officer, and Distinguished Professor of Education, San Diego State):

At San Diego State University, we had 25 tenured and tenure-track Black faculty members in the fall of 2017. This fall, thanks to significant policy and process changes and cross-divisional partnerships, we have 42 — a 68-percent increase in a span of only four years. Since the summer of 2020, we’ve hired nine Black faculty members in academic departments. An additional three hires have faculty status but are in student-affairs offices (such as counseling and campus cultural centers).

In four short years, we have made important and noticeable improvements in the Black community on our campus. These faculty members are introducing new courses, overseeing student-retention and -success programs, and offering our students crucial and much-needed one-on-one connections. Certainly we have more to do, but we’ve laid the foundation to ensure that the number of Black faculty members at the university will continue to rise over time.

How did we do it? Here are some strategies we used and lessons learned along the way.

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Baylor Seeks To Hire An Entry Level Or Lateral Tax Prof

Baylor Law will be interviewing to fill multiple tenure- track positions to provide coverage in a variety of curricular areas based upon Baylor Law’s curricular needs and applicant’s experience. Possible courses include criminal law (first-year, required Criminal Law and Criminal Procedure), white collar crime, juvenile justice, military justice, real estate finance, debt financing, construction, energy/natural resources, international trade and business transactions, digital/cybersecurity, elder law/special needs, retirement, nonprofit, income taxation, consumer protection, bankruptcy, creditors remedies, negotiable instruments/payment systems, franchising, healthcare, sports law, patent law and litigation, client counseling, municipal government, poverty, family law and family law advocacy and procedure. For more information. please go here.

Law schools looking to hire Tax Profs to start in the 2022-23 academic year:

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Lesson From The Tax Court: Failure To Understand Issue Preclusion May Trigger Sanctions

Some people just cannot take no for an answer.  That is one of the reasons §6673 permits the Tax Court to impose a penalty of up to $25,000 on taxpayers who stubbornly present either frivolous or groundless arguments.

It is sometimes difficult, however, to distinguish a “no” from a “not now.”  Karson C. Kaebel v. Commissioner, T.C. Memo. 2021-109 (Sept. 9, 2021) (Judge Halpern), teaches a good lesson about issue preclusion, which is the important legal doctrine that tells us when “no” means “no.”  The taxpayer there asked the Tax Court to make the IRS take back a certification it had sent to the State Department.  But the reasons the taxpayer offered had already been rejected by both the Tax Court and the Court of Appeals in prior cases brought by the taxpayer about different subjects.  Judge Halpern explains why those no’s were really and truly no’s.  He also considers imposing §6673 penalties for the taxpayer’s intransigence.  So this will be a good lesson to learn, if for no other reason than to avoid penalties!   Details below the fold.

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ABA Tax Section Virtual 2021 Fall Meeting

This week's ABA Tax Section virtual 2021 Fall Meeting (program) kicks off today. The highlight is:

Teaching Taxation: Promoting Diversity, Equity, and Inclusion in Tax: Ideas and Resources for Mentoring Diverse Students and Leading Discussions of DEI in Tax (Wednesday, 12:30 - 2:00 PM ET):

This panel will document the need for greater diversity in the field of tax law − in practice and in Academia – and share ideas to promote this goal, with a focus on law students and recent law school graduates. The panelists will (1) provide information about existing programs to promote DEI in the tax profession, (2) discuss ways to build the tax profession pipeline, to recruit and retain diverse tax attorneys, and to provide strong platforms for professional success, and (3) solicit audience participation and ideas for new initiatives. 

• Alice Abreu (Temple)
• Caroline Ciraolo (Kostelanetz & Fink; Inaugural Vice Chair, Membership, Diversity, and Inclusion, Tax Section Council, ABA)
• Steven Dean (Brooklyn)
• Katie Pratt (Loyola-L.A.) (moderator)
• Juan Vasquez (Judge, U.S. Tax Court)
• Lany Villalobos (Kirkland & Ellis; Assistant Secretary, Tax Section Council, ABA; Immediate Past-Chair, ABA Tax Section Diversity Committee

Other Tax Profs with speaking roles include:

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Katherine Magbanua's Attorneys Seek To Delay October 4 Dan Markel Murder Trial

Tallahassee Democrat, Judge Will Hear Arguments Over Evidence, COVID Safety in Request to Continue Katherine Magbanua Trial:

A judge is set to weigh requests by Katherine Magabunua’s attorneys to disqualify prosecutors and continue her trial on charges she was involved in coordinating Dan Markel’s murder.

Her attorneys in the past week have leveled accusations prosecutors intentionally provided the jury misleading evidence and left out information that was exculpatory during her first trial in 2019.

They also have concerns about health safety after Magbanua, 36, unbeknownst to her attorneys Christopher DeCoste and Tara Kawass, both cancer survivors, was brought into court late last month with COVID-19.

Magbanua is charged with first-degree murder, conspiracy to commit murder and solicitation of murder in Markel's July 2014 shooting at his home on Trescott Drive.

The hearing in front of Circuit Judge Robert Wheeler is set for Monday morning in Tallahassee, with a trial in the high-profile case set for Oct. 4.

WCTV, ‘Unconstitutional, Unfair, Unsafe’: Attorneys for Katherine Magbanua Claim She Was COVID Positive Prior to August Court Hearing:

Katherine Magbanua’s attorneys are asking a judge to delay her October trial, saying they have “zero confidence that the court system can ensure safety during the retrial.” ...

The request to delay the trial comes just days after Magbanua’s defense team asked a judge to disqualify the State Attorney’s Office from prosecuting the case. It accuses prosecutors of “intentionally presenting misleading evidence” and “substantial misconduct.”

Magbanua is scheduled to be retried on Oct. 4 after her first trial ended in a hung jury. She’s accused of conspiracy and murder in the 2014 murder of FSU professor Dan Markel. Two other co-defendants — Sigfredo Garcia and Luis Rivera — are already serving time in prison for the crime. ...

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• Why Are Some Law Teachers Called 'Instructor' Rather Than 'Professor'?
• Early Signs Point To Lower July 2021 Bar Exam Pass Rates
• Lederman Launches Season 2 Of Break Into Tax

Sunday:

• The Evangelical Christian Case For COVID-19 Vaccinations
• Why God Created Dogs
• Natt Gantt (Regent) Named Executive Director, Program On Biblical Law And Christian Legal Studies At Harvard Law School
• The Top Five New Tax Papers

The Evangelical Christian Case For COVID-19 Vaccinations

New York Times op-ed:  I’m a Former Pastor, and I Don’t Believe in ‘Religious Exemptions’ to Vaccine Mandates, by Curtis Chang (co-founder, Christians and the Vaccine):

Religious exemptions to employer mandates are a precious right in our democracy. This is why it is especially important not to offer such exemptions to coronavirus vaccine mandates. They make a mockery of Christianity and religious liberty. ...

My plea to my fellow Christians: If you insist on refusing the vaccine, that is your right. But please do not bring God into it. Doing so is the very definition of violating the Third Commandment, “Thou shalt not take the name of the Lord thy God in vain.” ...

Vaccine hesitancy has never been a core religious belief of evangelical Christians. The vast majority of evangelicals have historically chosen to be immunized against polio, measles, tetanus and other diseases. As a child, I attended evangelical summer camps that required vaccinations, and as an adult, I worked for ministries with similar mandates. Some conservative evangelicals just don’t like the political taste of this particular vaccine on the menu. ...

[R]eligious leaders will need to join with secular institutions in opposing exemptions. Pastors are already being inundated with requests for letters supporting exemptions. As a former pastor of an evangelical church, I know it will be difficult to say “no.” But my colleagues should do the right thing and refuse such requests. Refuse to mislead our secular neighbors. Refuse to abuse our precious religious liberty. Refuse to be complicit in putting our neighbors at risk. ...

The vaccine effort has been plagued by falsehoods of all kinds. The religious exemption from vaccine mandates for Christians is the latest lie. All of us should stand together for the truth.

David French (The French Press), It’s Time to Stop Rationalizing and Enabling Evangelical Vaccine Rejection:

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Why God Created Dogs

Wall Street Journal op-ed:  Why God Created Dogs, by Karl Rove:

Just after 10 a.m. on Saturday, Sept. 4, Little Bit Rove, the world’s greatest dog, passed from this life to the next. She apparently had an arrhythmia from birth and despite the best efforts of Dr. Julie Page of Palisade, Colo., and her Valley Emergency Pet Care colleagues in Basalt, Little Bit’s loving heart gave out. She’d have been three in November.

My wife Karen and I had been without a dog since our border collie Nan died in August 2015. On Christmas 2019, Karen decided it was time. Her gift was a promise: I could pick out a dog from a nearby hunting preserve.

When we arrived at Joshua Creek Ranch, the cages on the hunting trucks were filled with a dozen or more dogs that the guides let out so we could see them all in action. From the scrum of animals, a sleek black English cocker spaniel emerged, running straight for us. She jumped on me, her little white tail wagging eagerly, as if to say “Nice to meet you! We’ll have fun today! If the rumors are true you’re looking for a dog, keep me in mind!” The issue was settled. ,,,

She appeared in videos we shared with friends marking holidays or offering invitations to parties and ranch weekends. She even had her portrait painted by a former president, who captured her regal bearing, penetrating eyes and long ears.

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Natt Gantt (Regent) Named Executive Director, Program On Biblical Law And Christian Legal Studies At Harvard Law School

Harvard Law School Program on Biblical Law and Christian Legal Studies:

We would like to welcome and introduce you to our new full-time Executive Director for the Program on Biblical Law and Christian Legal Studies, Prof. Natt Gantt. Prof. Gantt's duties will also include the role of Lecturer on Law. We are excited for Prof. Gantt to lead our program in this next phase of our development.

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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 #3:

1. [493 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John Townsend (Houston)
2. [356 Downloads]  Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument, by Yariv Brauner (Florida; Google Scholar)
3. [304 Downloads]  Mega-IRAs, Mega-401(k)s, and Other Mega-Retirement Accounts: Statement for the Record, by Daniel Hemel (Chicago; Google Scholar) & Steven Rosenthal (Tax Policy Center)
4. [292 Downloads]  State Aid Prohibition — The New GAAR in Town, by Joachim Englisch (Muenster)
5. [166 Downloads]  New Puzzles In International Tax Agreements, by Wei Cui (British Columbia; Google Scholar)

This Week's Ten Most Popular TaxProf Blog Posts

1. Foundation for Individual Rights in Education, Jason Kilborn, UI-Chicago Law School Settle Controversy Over December 2020 Civ Pro Final Exam Question
2. Amia Srinivasan (Oxford), What’s Wrong With Sex Between Professors And Students?
3. Randall Kennedy (Harvard), Is It Ever OK To Enunciate A Slur In The Classroom?
4. Amna Khalid & Jeffrey Aaron Snyder (Carleton College), The Data Is In: Trigger Warnings Don’t Work
5. Paul Caron (Dean, Pepperdine), Admissions Data At 75% Of The U.S. News Top 50: Higher LSATs, UGPAs, And Enrollment
6. U.S. News & World Report, 2022 College Rankings
7. Brian Frye (Kentucky), Letter to the Yale Law Journal Forum
8. Washington University Law School, Russell Osgood Named Interim Dean
9. Philip Wolf (Belcher, Smolen & Van Loo, San Francisco), Manoj Viswanathan: The Professor Who Inspired Me to Love Tax
10. Bryan Camp (Texas Tech), Lesson From The Tax Court: Retirement Plan Drafting Error Loses Taxpayer $51k Deduction

Why Are Some Law Teachers Called 'Instructor' Rather Than 'Professor'?

ABA Journal, At Some Law Schools, Why Are Those Who Teach Called 'Instructor' Rather Than 'Professor'?:

At Rutgers, everyone who teaches law is called a professor, but that is not true at many other institutions, where faculty who teach topics including legal writing, academic success and clinical work are often given titles including “instructor” or “director.” They are usually paid less than tenure-track professors and sometimes have little if any job security, according to academics interviewed by the ABA Journal.

According to 2019 article by Renee Nicole Allen, Alicia Jackson and DeShun Harris, men traditionally occupying faculty seats at law schools, while women work in skills positions, including libraries, legal writing, clinics, academic success. The article, titled “The ‘Pink Ghetto’ Pipeline: Challenges and Opportunities for Women in Legal Education,” states that women often enter legal education work through nontenured skills-based teaching jobs, which frequently are done on a contract basis and pay poorly, with heavy workloads.

Besides gender disparities, racial disparities exist, too, says says Rachel López, a professor at the Thomas R. Kline School of Law at Drexel University, who also directs its Andy and Gwen Stern Community Lawyering Clinic. “In the legal academy, so many who dispel racism and inequality in scholarship for some reason are blind to it at their own institution,” she adds.

López wrote an article, Unentitled: the Power of Designation in the Legal Academy, which is scheduled for publication in the Rutgers University Law Review. Law school titles can cement disparities for people who teach but are not given the professor title, according to the article.

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Early Signs Point To Lower July 2021 Bar Exam Pass Rates

Karen Sloan (Reuters), Ominous Early Signs Emerge For July 2021 Bar Exam Pass Rates:

Data from the July 2021 bar exam is starting to roll in, and test-takers' performance isn't looking great.

The average score on the Multistate Bar Exam, the 200-question multiple-choice portion of the test, fell to 140.4. That's a decrease of 0.7 from July 2019, which is the last time a national cohort of examinees took the same test, the National Conference of Bar Examiners announced Wednesday.

But more alarmingly for test takers and legal educators, pass rates are down year-over-year in all but one of the nine states that have announced results, some by large margins.

NCBE Releases National Means for July MBE, August MPRE:

The national MBE mean scaled score for July 2021 was 140.4, a decrease of 0.7 points compared to the national mean of 141.1 in July 2019, the most recent previous July administration when a full national group was tested. 45,872 examinees from 53 jurisdictions took the MBE in July 2021, a slight increase over the 45,334 examinees from 54 jurisdictions who took the exam in July 2019. ...

Jurisdictions have begun reporting their July 2021 results; bar examination pass rates as reported by jurisdictions are available on the NCBE website. Many jurisdictions are still in the process of grading the written components of the bar exam; once this process is completed, bar exam scores will be calculated and passing decisions reported by those jurisdictions.

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Christians & Lederman Launch Season 2 Of Break Into Tax

Allison Christians (McGill) and Leandra Lederman (Indiana) introduce Season 2 of their YouTube series, Break Into Tax (BiT):

Professors Leandra Lederman & Allison Christians summarize Season 1 & bring Break Into Tax into Season 2! Prof. Lederman will run Season 2, and it will feature some guest co-hosts. Prof. Christians will make some cameo appearances here and there!

Break Into Tax series is intended for anyone learning about tax, anywhere in the world. For more about our backgrounds, see the Season 1 Intro video. 

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Mason & Knoll Present Unbundling Undue Burdens Today At Florida

Ruth Mason (Virginia; Google Scholar) & Michael Knoll (Pennsylvania) present Unbundling Undue Burdens virtually today at Florida as part of its Tax Policy Colloquium hosted by David Hasen:

Criticizing dormant Commerce Clause doctrine for, among other reasons, involving arbitrary distinctions and inviting judicial legislation, jurists and commentators have advocated for its abandonment or severe curtailment. This Article shows that when dormant Commerce Clause cases are divided by the type of burden they impose on interstate commerce, the need for different approaches to different types of cases emerges. Unbundling the doctrine helps explain the Supreme Court’s various doctrinal approaches in the cases, making it less ad hoc and haphazard and more connected to its justifications, which lie in federalism and the need to preserve a smoothly functioning national market.

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Kim Presents A New Framework For Digital Taxation Today At Boston College

Christine Kim (Utah; Google Scholar) presents A New Framework for Digital Taxation (with Reuven Avi-Yonah (Michigan; Google Scholar) & Karen Sam)) virtually at Boston College today as part of its Tax Policy Collaborative:

The international tax regime has wide implications for business, trade, and the international political economy. Under current law, multinational enterprises do not pay their fair share of taxes to market countries where profits are generated because market countries are only allowed to tax companies with a physical presence there. Digital companies, like Google and Amazon, can operate entirely online, thereby avoiding market country taxes. Multinationals can also exploit existing tax rules by shifting their profits to low-tax jurisdictions, thereby avoiding taxes in the residence country where their headquarters are located.

Recently, a proposal to tackle these issues was announced, endorsed by more than 130 countries. This “Inclusive Framework” proposal sets forth two Pillars to reform the outdated international tax regimes by addressing digital taxation (Pillar One) and global minimum tax (Pillar Two). However, it is doubtful that the Inclusive Framework will reach a consensus, especially on Pillar One. As the details of Pillar One have become increasingly complex and degraded by political compromises and carve-outs, it risks being a framework without substance. Also, countries are unlikely to repeal an established tax instrument, Digital Services Taxes (DSTs), which is an adamant requirement of the United States in adopting Pillar One.

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Weekly Legal Education Roundup

• ABA Journal,  At some law schools, why are those who teach called 'instructor' rather than 'professor'?
• Swethaa Ballakrishnen (UC-Irvine) & Carole Silver (Northwestern), A New Minority? International JD Students in US Law Schools
• Paul Caron (Dean, Pepperdine), Admissions Data At 75% Of The U.S. News Top 50: Higher LSATs, UGPAs, And Enrollment
• Alexa Chew (North Carolina) & Rachel Gurvich (North Carolina), Saying the Quiet Parts Out Loud: Teaching Students How Law School Works
• Foundation for Individual Rights in Education, FIRE’s New Defense Fund Is Here to Save College Faculty Jobs. And We Just Closed Our First Case
• David Frakt (Independent), InfiLaw - The End of An Era (and good riddance)

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Tax Policy In The Biden Administration

• Barron's, Democrats Are Leaving a Win-Win Tax Reform on the Table
• Bloomberg, House Democrats Set to Propose Corporate Tax Rate of 26.5%
• Bloomberg, More Than $279 Billion Sits In IRAs With At Least $5 Million ach. They Allow the Wealthy to Avoid Taxes and Pass on Their Fortune.
• Bloomberg, SALT Break Would Erase Most of House’s Tax Hikes for Top 1%
• Bloomberg, Top Democrat Says Biden Inheritance-Tax Plan Short of Votes
• Business Insider, Democrats May Leave a Tax Loophole Billionaires Love Untouched. Closing It Would Dent the Fortunes of Jeff Bezos and Elon Musk.

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Next Week's Virtual Tax Workshops

Monday, September 20: Leslie Book (Villanova; Google Scholar), T. Keith Fogg (Harvard), & Nina Olson (Center for Taxpayer Rights) will present Reducing Administrative Burdens to Protect Taxpayer Rights virtually at Loyola as part of its Tax Policy Colloquium. If you would like to attend, please RSVP here. 

Tuesday, September 21: Gabrielle Pepin (Upjohn Institute; Google Scholar) will present How Would a Permanently Refundable Child and Dependent Care Credit Affect Eligibility, Benefits, and Incentives? virtually at Georgetown as part of its Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle. 

Wednesday, September 22: Tessa Davis (South Carolina) will present Tax Narratives: A Critical Tax Perspective on the Biden Tax Plan virtually at Copenhagen as part of its Tax Colloquium Seminars. If you would like to attend, please register here. 

Wednesday, September 22: Ruth Mason (Virginia; Google Scholar) & Michael Knoll (Penn) will present Unbundling Undue Burdens virtually at UC-Irvine as part of its Tax Policy Colloquium. If you would like to attend, please contact gradtax@law.uci.edu. 

Thursday, September 23: Francine Lipman (UNLV; Google Scholar) will present Tax Audits, Economics, and Racism virtually at Indiana as part of its Tax Policy Colloquium. If you would like to attend, please contact Leandra Lederman. 

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Brown: Congress Is Passing Up A Chance To Close A Tax Loophole — And The Racial Wealth Gap

Washington Post op-ed:  Congress Is Passing Up a Chance to Close a Tax Loophole — and the Racial Wealth Gap, by Dorothy Brown (Emory; Visiting at Georgetown):

The ‘step-up in basis’ rule benefits a small, mostly White, group of Americans.

The United States has a huge racial wealth gap: The median wealth of White families is almost eight times that of Black families and five times that of Hispanic families. One of the hidden drivers of this gap is tax policy, which has accelerated wealth-building by White families, while excluding most Black families. Congress recently had an opportunity to reform at least one lever of that inequality — only to reject it.

Earlier this year, as part of the American Families Plan, the Biden administration proposed closing a nearly century-old loophole called “step-up in basis,” saying it is “exacerbating inequality.” While many can take advantage of that rule, those who benefit the most are in the top 1 percent of income earners (earning more than $1 million of income). That group is disproportionately White: While 15 percent of White Americans are millionaires, only 2 percent of Black Americans are millionaires. A complete repeal of the stepped-up basis rule would raise an estimated $505 billion over 10 years. This week, though, the House Ways and Means Committee released its tax package, which drops that proposed reform. ...

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The Data Is In: Trigger Warnings Don’t Work

Chronicle of Higher Education op-ed:  The Data Is In — Trigger Warnings Don’t Work, by Amna Khalid (Carleton College) & Jeffrey Aaron Snyder (Carleton College):

The original proponents of trigger warnings on campus argued that they would empower students suffering from trauma to delve into difficult material. “The point is not to enable — let alone encourage — students to skip readings or our subsequent class discussion,” the philosopher Kate Manne wrote in The New York Times. “It’s about enabling everyone’s rational engagement.”

Now, about a decade after trigger warnings arrived on college campuses, it’s clear that an avoidance rationale is officially competing with the original lean-in logic.

A recent Inside Higher Ed piece by Michael Bugeja, an Iowa State journalism professor, is emblematic of this shift. In light of the tumultuous times (a “mental-health pandemic,” ongoing sexual violence and racism, the anxiety of returning to in-person instruction), Bugeja says that trigger warnings are needed now more than ever. All faculty members should follow his lead, he argues, and include detailed trigger warnings on their syllabi accompanied by the following note: “You don’t have to attend class if the content elicits an uncomfortable emotional response.”

Bugeja’s article prompted us to review the latest research on the efficacy of trigger warnings. We found no evidence that trigger warnings improve students’ mental health. What’s more, we are now convinced that they push students and faculty members alike to turn away from the study of vitally important topics that are seen as too “distressing.” ...

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Mark-To-Market (Or Wealth) Taxation In The U.S.: Evidence From Options

Paul Mason (Baylor) & Steven Utke (Connecticut; Google Scholar), Mark-to-Market (or Wealth) Taxation in the U.S.: Evidence from Options:

Recent U.S. tax proposals under various names (e.g., wealth taxes, estate tax reform, etc.) center on mark-to-market (MTM) taxation, which eliminates investors’ ability to defer or avoid capital gains taxes. To provide insight on potential effects of these tax proposals, we exploit a unique U.S. setting where “index” options on the S&P 500 Index (SPX) face MTM taxation whereas nearly identical “non-index” options on the exchange traded fund (ETF) tracking the S&P 500 Index (SPY) do not.

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Avi-Yonah: The International Tax Regime At 100 — Reflections On The OECD's BEPS Project

Reuven Avi-Yonah (Michigan; Google Scholar), The International Tax Regime at 100: Reflections on the OECD's BEPS Project:

This essay will consider the outcome of Pillars One and Two in light of the history of international taxation since the foundation of the international tax regime in 1923. Specifically, it will consider how Pillar One fits with efforts to redefine the source of active income in light of the digital revolution, and the ways in which Pillar Two implements the single tax principle, which can be traced back to the first model treaty from 1927. Both of those ideas were already articulated and developed in my own early writing on international taxation from the 1990s, when the Internet was in its infancy.

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How Does Removing The Tax Benefits Of Debt Affect Firms? Evidence From The 2017 U.S. Tax Reform

Ali Sanati (American; Google Scholar), How Does Removing the Tax Benefits of Debt Affect Firms? Evidence from the 2017 US Tax Reform:

Despite extensive efforts, the relation between tax incentives and corporate capital structure is an open question. The 2017 US tax reform creates an opportunity to directly estimate this relation. The reform limits the tax advantage of debt for all firms except for small businesses with average sales below $25 million. I use the exception threshold in a regression discontinuity design and show that corporate debt declines nearly dollar for dollar as the present value of the tax benefits of debt shrinks. Treated firms do not raise equity to replace debt, and they decrease investments and hiring, consistent with a rise in the cost of external financing. Confirming the tax channel, treatment effects are stronger in firms with more profits and smaller non-debt tax shields. Comparing the size of the debt tax shield across the firm size distribution suggests that the estimates likely provide a lower bound for the effects in large corporations.

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Saying the Quiet Parts Out Loud: Teaching Students How Law School Works

Alexa Chew (North Carolina; Google Scholar) & Rachel Gurvich (North Carolina), Saying the Quiet Parts Out Loud: Teaching Students How Law School Works:

Like the law we teach our students, legal education itself isn’t neutral. It is the product of both structural forces and individual decisions. Hierarchy and structural inequality permeate our society, so of course they permeate the institutions within our society, including law schools. But law schools are not only passive recipients of these permeating atoms of injustice. They have some agency in determining which inequities to nurture (or not) in the learning environment. As it stands, though, the environment that students learn the law in can be an incubator of inequality.

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Take Note: Teaching Law Students To Be Responsible Stewards Of Technology

Kristen E. Murray (Temple; Google Scholar), Take Note: Teaching Law Students to Be Responsible Stewards of Technology, 70 Cath. U. L. Rev. 201 (2021):

The modern lawyer cannot practice without some deployment of technology; practical and ethical obligations have made technological proficiency part of what it means to be practice-ready. These obligations complicate the question of what constitutes best practices in law school. Today’s law schools are filled with students who are digital natives but who do not necessarily leverage technology in maximally efficient ways, and faculty who span multiple generations, with varying amounts of skepticism about modern technology. Students are expected to use technology to read, prepare for class, take notes, and study for and take final exams. Professors might use technology to teach or assess student work, but students are often asked to leave technology out of the classroom because of professor expectations about distraction and notetaking. All of this is happening as we attempt to prepare students to enter a profession that is infused with both technological capabilities and obligations, including the rules of professional conduct. These capabilities and obligations will continue to evolve, grow, and change alongside companion changes in technologies.

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Tax Prof Donald Tobin To Step Down After Seven Years As Maryland Dean

For the second time in a month, a Tax Prof is stepping down after a successful 7-year deanship:

Donald B. Tobin, who has served as dean of the University of Maryland Francis King Carey School of Law since 2014, announced his decision to step down at the end of the 2021-2022 academic year and return to full-time teaching as a member of the Maryland Carey Law faculty.

“Serving as dean of Maryland Carey Law has been the greatest honor of my life,” says Tobin. “I will be forever grateful to this wonderful community of students, faculty, staff, and alumni who entrusted me with leading this fantastic law school over the past seven years.”

Beginning his tenure as dean in the wake of the Great Recession, Tobin is credited with uniting the law school community to achieve a full financial recovery while simultaneously expanding student opportunities and community engagement.

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Frye: Letter To The Yale Law Journal Forum

Brian Frye (Kentucky; Google Scholar), Letter to the Yale Law Journal Forum:

This essay is a legal scholarship in the form of a letter to the Yale Law Journal Forum, reflecting on the nature of the market for legal scholarships. ...

I want to tell you about my scholarship. Every year I write another article about the same thing, just like everyone else. It’s a drag, but the summer bonus makes it worth the effort, and at this point, the articles almost write themselves. Recycling the literature review sure helps!

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A New Minority? International J.D. Students In U.S. Law Schools

Swethaa Ballakrishnen (UC-Irvine; Google Scholar) & Carole Silver (Northwestern; Google Scholar), A New Minority? International JD Students in US Law Schools, 44 Law & Soc.  Inquiry 647 (2019):

This Article reveals the significance of a new and growing minority group within US law schools - international students in the Juris Doctor (JD) program. While international students have received some attention in legal education scholarship, it mostly has been focused on their participation in the context of programs specially designed for this demographic (e.g. post-graduate programs like the LLM and SJD). Drawing from interview data with fifty-eight international JD students across seventeen graduating US law schools, our research reveals the rising importance of international students as actors within a more mainstream institutional context. Particularly, in examining the ways these students navigate their law school environments, we find that although international status often impacts identity and participation, not all students encounter its impact similarly. While some students use the identity to their advantage, others cannot escape negative implications, even with effort. This is consistent with other scholarship on minority students, and adds to a growing literature that uses their socialization experiences to better understand professional stratification.

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Choi: Democrats Should Finally Close The Carried Interest Loophole For The Wealthy

Washington Post op-ed:  Democrats Should Finally Close the Carried Interest Loophole for the Wealthy, by Jonathan H. Choi (Minnesota; Google Scholar):

House Democrats on Sunday began circulating a preliminary proposal for tax reforms that could bring in as much as $2.9 trillion by raising taxes on the nation’s wealthiest individuals and corporations. The measures, intended to help pay for Democrats’ proposed $3.5 trillion budget package, include increasing the corporate tax rate and adding a tax on individuals making more than $5 million.

Lamentably, the proposal wouldn’t get rid of the carried interest loophole, which allows fund managers to receive a share of investment profits at the lower tax rate reserved for long-term capital gains. While the Democrats’ proposal includes minor tweaks to the holding period for carried interest, it mostly leaves the benefit intact.

As Democrats firm up the tax plan in the coming days, they should seriously look at a proposal introduced on Aug. 5 by Senate Finance Committee Chairman Ron Wyden (D-Ore.) and Sen. Sheldon Whitehouse (D-R.I.) to get rid of the carried interest preference altogether.

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Christians Presents Tax Cooperation In An Unjust World Today At UC-Irvine

Allison Christians (McGill; Google Scholar) presents Tax Cooperation in an Unjust World virtually today at UC-Irvine as part of its Tax Policy Colloquium:

In this book [Tax Cooperation in an Unjust World (Oxford University Press Nov. 2021)], Professor Christians sets out to demonstrate the key role that the international tax system plays in achieving justice. To do so, we first establish that the international tax system currently allows states with great wealth to claim more than they are justifiably entitled to from the global economy. We then demonstrate that this status quo both facilitates and feeds off continued human suffering, and therefore violates even minimal conceptions of international distributive justice. Finally, we explain how this situation of ongoing injustice can be addressed through existing institutions and processes and show that a fairer international tax system could be achieved with incremental yet effective adaptation, that is, without requiring radical reform or a new world tax order.

In making these claims, the book connects theories about tax policy largely from the legal and economics literature to theories of international justice from philosophical literature. As with any interdisciplinary effort, doing so risks alienating both camps. We hope we have muted this risk by showing that foundational commitments of widely accepted conceptions of international justice are reflected in existing tax policy, even if norms and processes do not fully reflect those underlying principles.

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Hemel & Lord: Revitalizing The Generation-Skipping Transfer Tax

Daniel Hemel (Chicago; Google Scholar) & Robert Lord (Americans for Tax Fairness), Revitalizing the Generation-Skipping Transfer Tax:

Congress first enacted the generation-skipping transfer (GST) tax in 1976 to protect the estate and gift tax base and to ensure that extraordinary fortunes would bear their fair share of the transfer tax burden. Nearly a half-century into the life of the GST tax, those goals remain unrealized. In recent decades, high-net-worth individuals have succeeded in shifting hundreds of billions of dollars to “dynasty trusts” that—under current law—are poised to escape federal wealth transfer taxation indefinitely. The rise of dynasty trusts reduces the revenue-raising potential of the estate and gift taxes and allows a privileged class to exert vast economic and political power based solely on an accident of birth.

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Submission Of Law Student Articles For Publication

Nancy Levit (Google Scholar), Lawrence MacLachlan, Allen Rostron, Drew Greaves & Staci Pratt (UMKC), Submission of Law Student Articles for Publication:

Each year law students collectively write a large number of papers that could become law review articles but that are never published. Most law schools require students at some point during their time in law school to research and write an academic paper of publishable quality or seminar paper. Some of these are law review notes and comments that are not selected for publication. Others of these are papers written for specific substantive classes or to fulfill research and writing requirements.

Most of these student papers — even very worthy ones — will never be published or posted online. The publishing route for law students who want to publish in a venue other than their home law journal is not clearly marked. And many law reviews simply will not accept submissions from students outside their own school. Often, the publishing opportunities for non-law review members in their home school’s law review are also not well known.

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Will Law Schools Follow Amazon And Use Tech To Measure Faculty Work Rate?

Wall Street Journal, The Way Amazon Uses Tech to Squeeze Performance Out of Workers Deserves Its Own Name: Bezosism:

More than a century ago, Frederick Winslow Taylor and Henry Ford pioneered systems for speeding up work that we take for granted today. ... Amazon’s 21st-century, algorithm-driven successor to Taylorism and Fordism ... [is] a mix of surveillance, measurement, psychological tricks, targets, incentives, sloganeering, Jeff Bezos ’ trademark hard-charging attitude toward work, and an ever-growing array of clever and often proprietary technologies. Taken as a whole, this system is novel enough in the history of work that it deserves its own name: Bezosism.

At this very moment, Bezosism is diffusing through the world of work, rewriting the source code of the global industrial machine. If it proves as popular and durable as the systems of organization on which it builds—from Fordism to the Toyota Production System—it could be, along with the e-commerce and space companies he built, Mr. Bezos’ most important legacy.

Depending on how the company practicing Bezosism wields its power, this system of technologically supercharged management can be benevolent, or sinister, or both.

Take, for example, Amazon’s well-known metric for evaluating worker performance. ... In Amazon’s fulfillment centers, human productivity is measured by an overall pick or stow rate calculated for each worker at a robot-fed pick-and-stow station.

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Admissions Data At 75% Of The U.S. News Top 50: Higher LSATs, UGPAs, And Enrollment

Following up on my previous posts (links below):  with Spivey Consulting reporting the admissions statistics for 75% of the U.S. News Top 50 law schools, LSAT (+1.4) and UGPA (+0.4) medians are up, as well as enrollment (+29.0). (Yellow shading indicates law schools added since my August 30 post): 

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Hemel: Should An Excise Tax On Stock Buybacks Also Apply To Cash M&A Deals?

Daniel Hemel (Chicago; Google Scholar), Should an Excise Tax on Stock Buybacks Also Apply to Cash M&A Deals?:

Senators Sherrod Brown (D-Ohio) and Ron Wyden (D-Oregon) introduced legislation this morning to impose a 2 percent excise tax on stock buybacks—a proposal that could serve as a significant “payfor” in the budget reconciliation bill moving through Congress now. An important decision in designing the excise tax is whether the tax should apply to transactions in which one corporation purchases another corporation’s stock (rather than repurchasing its own stock). The late William Andrews, a Harvard Law School professor and leading corporate tax scholar, considered this question in the early 1980s and concluded that the answer is “yes”—at least when the acquiring corporation ends up with majority control of the target. The current text of the legislation would not apply the tax to those transactions, though hopefully Andrews’s argument will persuade lawmakers to make a change.

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Manoj Viswanathan: The Professor Who Inspired Me To Love Tax

Philip Wolf (J.D. 2019, UC-Hastings; Tax Associate, Belcher, Smolen & Van Loo, San Francisco), Manoj Viswanathan: The Professor Who Inspired Me to Love Tax, 172 Tax Notes Fed. 1615 (Sept. 6, 2021):

Out of the thousands of different professions, how does one end up choosing tax? I can tell you exactly how it happened with me. During my second semester of law school, I was permitted to take one elective class. I selected basic income taxation. Although I knew nothing about the subject, I sensed it might somehow be helpful to my goal of starting a business one day. Little could I have imagined where the class would lead me!

In our first session, in walked the ebullient yet sincere professor, Manoj Viswanathan, or as he asked us students to call him, “Professor V.” Every lecture, Professor V. emphasized how everything we’d learn in his class would be practical and relevant in the real world. Time seemed to melt away in each Tuesday and Friday lecture, and I caught myself pondering what he’d said many hours after each class. It was Professor V.’s introductory tax class that would make me decide to change my career plans and become a tax lawyer.

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St. Mary's To Launch Nation's First Fully Online ABA-Accredited JD Degree In Fall 2022 With 25 Students

Following up on my previous post:  St. Mary’s Law Launches the Nation’s First Fully Online J.D. Program Approved by the ABA:

The online J.D. program will begin recruiting for Fall 2022 with accreditation by the American Bar Association.

St. Mary’s University and its School of Law today announced that it is the first law school in the nation to approve offering a fully online J.D. program that is accredited by the American Bar Association (ABA).

Following the ABA’s approval of the School of Law’s online program request in May, St. Mary’s University leaders this week announced their intention to move ahead with the innovative program and recruit a cohort of students who will begin their studies online in Fall 2022.

“As the only law school serving San Antonio and the southernmost school serving South Texas, St. Mary’s Law has a tradition of excellence in legal education stretching back to its founding in 1927,” said Patricia Roberts, J.D., St. Mary’s Law Dean and Charles E. Cantú Distinguished Professor of Law. “This new fully online J.D. program — the one and only of its kind — exemplifies how St. Mary’s Law continues to lead with tradition and innovation.”

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Brooks & Gamage Present The Indirect Tax Canon, Apportionment, And Drafting A Constitutional Wealth Tax Today At NYU

John Brooks (Georgetown; Google Scholar) & David Gamage (Indiana; Google Scholar) present The Indirect Tax Canon, Apportionment, and Drafting a Constitutional Wealth Tax virtually today at NYU as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

The Constitution requires that “direct taxes” be “apportioned”—that is, that the revenues collected from each State be in proportion to population. Based on this obscure provision, prior scholarship has debated whether unapportioned wealth tax or related accrual-income tax reforms should generally be held constitutional, unconstitutional, or whether specific proposals should be held constitutional and others unconstitutional.

This Article takes a different approach. Recognizing the real uncertainty about how the Supreme Court might ultimately decide, this Article explains how Congress can draft a reform to navigate through that uncertainty. Specifically, this Article explains how Congress can draft a wealth tax or accrual-income tax reform that should survive constitutional scrutiny regardless of how the Supreme Court might ultimately rule on the disputed constitutional questions.

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Aslam & Shah Present Tec(h)tonic Shifts: Taxing The Digital Economy Today At Georgetown

Aqib Aslam (IMF) & Alpa Shah (IMF) present Tec(h)tonic Shifts: Taxing the 'Digital Economy' virtually today at Georgetown as part of its Tax Law and Public Finance Workshop Series hosted by Brian Galle:

The ever-increasing digitalization of businesses has accelerated the need to address the many shortcomings and unresolved issues within the international corporate income tax system. In particular, the customer or “user”—through their online activities—is now considered by many as being a critical driving force behind the value of digital services. Furthermore, the rapid growth of digital service providers over the last decade has made them an increasingly popular target for special taxes—similar to wealth and solidarity taxes—which can also help mobilize much-needed revenues in the wake of a crisis. This paper argues that a plausible conceptual case can be made to tax the value generated by users under the corporate income tax. 

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What’s Wrong With Sex Between Professors And Students?

New York Times op-ed:  What’s Wrong With Sex Between Professors and Students? It’s Not What You Think., by Amia Srinivasan (Oxford; Author, The Right To Sex: Feminism in the Twenty-First Century (2021)):

Netflix’s new hit comedy “The Chair” revels in certain clichés of university life — mock-Gothic buildings, wood paneling, crusty old-timers who don’t know how to use a photocopier, and, of course, an ambiguous relationship between a professor and a student: Bill is a charismatic English professor who is in a tailspin after the death of his wife, and Dafna is a literature-loving undergrad who is desperate to get into Bill’s class. She gives him a ride; they quote T.S. Eliot to each other; he signs a copy of his book for her; she makes him a pie. We think we know where this is going, because we’ve seen it so many times before: in “Election” (1999), “The Squid and the Whale” (2005) and “Elegy” (2008), based on Philip Roth’s novel “The Dying Animal” — to take just a few recent examples. “The Chair” ultimately upends our expectations in a way that is both comic and poignant. Don’t have sex with me, Dafna in effect says to Bill: Teach me.

The cultural fascination with professor-student affairs seems to have grown in step with policies restricting them. (“Be careful,” the dean warns Bill in “The Chair.” “This department is hanging on by a thread.”) Policies prohibiting professor-student sex — “consensual relationship policies” as they are usually known — are now common in the United States. A 2014 study found that 84 percent of the American universities surveyed had some prohibitions on professor-student relationships. ...

Despite the bans’ origins in feminist activism, some feminists at the time denounced these prohibitions as a betrayal of their principles. To deny that women students could consent to sex with their professors, they argued, was infantilizing and moralizing. Were women university students not adults? Were they not entitled to have sex with whom they pleased? Did such policies not play into the hands of the religious right, which was all too keen to control women’s sex lives? ...

In many ways, the contemporary focus on consent is a victory. Historically, sexual assault was defined not by the absence of consent but by the presence of force, which meant that the countless women who froze with fear or chose to submit rather than face the alternative were not, legally speaking, raped. But in recent years our interest in consent has become single-minded. The habit of viewing all kinds of exploitative, creepy or troubling sex solely through the lens of consent has left us unable to speak, in many situations, about what is really going wrong.

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