Rozema: Does The Bar Exam Protect The Public?

Kyle Rozema (Washington University), Does the Bar Exam Protect the Public?:

I study the effects of requiring lawyers to pass the bar exam on whether they are later publicly disciplined for misconduct. In the 1980s, four states began to require graduates from all law schools to pass the bar exam by abolishing what is known as a diploma privilege. My research design exploits these events to estimate the effect of the diploma privilege on the share of lawyers who receive public sanctions by state discipline bodies. Lawyers admitted on diploma privilege receive public sanctions at similar rates to lawyers admitted after passing a bar exam for the first decade of their careers, but small differences begin to emerge after a decade, and larger differences emerge after two decades. The estimates suggest that the diploma privilege increased the share of lawyers who received a public sanction within 25 years after bar admission from 4.5 percent to between 4.6 and 6.5 percent.

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A Dozen Legal Ed Entities Snagged PPP Loans, Including AALS And LSAC

Karen Sloan (Law.com), A Dozen Legal Education Entities Snagged PPP Loans, Including LSAT Maker:

Several major legal education organizations and 10 stand-alone law schools received forgivable emergency loans of $150,000 or more from the Small Business Administration, newly released data show.

The Law School Admission Council received the largest loan among legal education entities, listed between $5 million and $10 million. ... Council president Kellye Testy said Tuesday that it had received a $5.3 million loan. . ... The Association of American Law Schools, of which nearly every American Bar Association-accredited law school is a member, also received a loan of $350,000 to $1 million, according to the data. Association spokesman James Greif said Tuesday that actual loan amount was $400,000.

The bulk of the PPP loans went to stand-alone law schools. ...

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The Effect of U.S. Tax Reform On The Tax Burdens Of U.S. Domestic And Multinational Corporations

Scott Dyreng (Duke), Fabio B. Gaertner (Wisconsin), Jeffrey L. Hoopes (North Carolina) & Mary Vernon (Wisconsin), The Effect of U.S. Tax Reform on the Tax Burdens of U.S. Domestic and Multinational Corporations:

We quantify the net effect of recent U.S. tax reform on the tax rates of public U.S. corporations and find they decreased by 7.5 to 11.4 percentage points on average following tax reform. Further, we separately examine the effect of tax reform on purely domestic firms and multinational firms because some key provisions only affect multinational firms. We find both sets of firms benefited from tax reform, although domestics benefited the most. We also find the entirety of multinational tax savings stemmed from tax savings on their domestic operations, not as a result of more favorable taxation of international income. We also find no changes in the federal tax burden on foreign income for firms most likely to be subject to the new anti-abuse provisions. Overall, our findings suggest that despite the recent overhaul in international taxation, the federal tax burden on the foreign earnings of U.S. corporations appears to have been largely unaffected.

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Video Presentations: 23rd Annual Critical Tax Theory Conference At Florida

You can view the Zoom video presentations at the 23rd Annual Critical Tax Theory Conference hosted by the University of Florida Levin College of Law on April 10-11, 2020:

• Neil H. Buchanan (Florida), Efficiency is an Incoherent Concept
• Jonathan Choi (Minnesota), An Empirical Study of Statutory Interpretation in Tax Law, 95 N.Y.U. L. Rev. 363 (2020) (paper)
• Charlotte Crane (Northwestern), Is There a Federal Common Law of Tax? The Supreme Court’s Decision in Rodriguez v. FDIC
• David Elkins (Netanya), The Right and the Good: The Rhetoric of International Taxation
• Leandra Lederman (Indiana), The Fraud Triangle and Tax Evasion (paper)

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Shaviro: What Are Minimum Taxes, And Why Might One Favor Or Disfavor Them?

Daniel Shaviro (NYU), What Are Minimum Taxes, and Why Might One Favor or Disfavor Them?:

Minimum taxes (including global minimum taxes) have serious drawbacks, and generally make sense, if at all, only if otherwise superior options must be ruled out for reasons of optics or political economy. Yet, given the “compared to what?” question that haunts all real-world tax policy-making, one cannot reasonably say that they should never be used. Still, any such use should generally be contingent, reluctant, and based on understanding their structural deficiencies.

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ABA Clears Way For Syracuse Law School's Expansion Of Its Online JDinteractive Program

Following up on my previous posts (links below):  ABA Clears the Way for Syracuse University College of Law’s Expansion of its Online JDinteractive Program:

The American Bar Association has granted Syracuse University College of Law permission to expand its innovative online law degree program. JDinteractive (JDi) is a fully interactive program that combines live online class sessions with self-paced class sessions, residential courses, and applied learning experiences. ...

In February 2018, the ABA granted a variance to the College of Law to allow JDi enrollment of up to 65 students per academic year. 

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International Students Banned From Online-Only Instruction

Inside Higher Ed, International Students Banned From Online-Only Instruction:

New guidance for the Student and Exchange Visitor Program issued by the U.S. Department of Homeland Security has stoked anger and confusion from students, faculty and immigration advocates.

The new temporary final rule, issued Monday afternoon, prohibits international students from returning to or remaining in the United States this fall if the colleges they attend adopt online-only instruction models amid the pandemic.

A growing number of colleges — including Harvard University — have announced that they will reopen their campuses in the fall but conduct classes online. Even with campuses open, international students will be prohibited from studying in the United States under the rule.

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Pepperdine Caruso Law Receives $1 Million Gift For Dispute Resolution, The Seventh $1 Million+ Gift Over The Past Three Years Totaling Over $75 Million

Pepperdine Caruso School of Law Announces $1 Million Gift From the Honorable Daniel Weinstein (Ret.):

The Honorable Daniel Weinstein (Ret.) has made a generous $1 million gift to the Straus Institute for Dispute Resolution at the Pepperdine University Rick J. Caruso School of Law. The gift will be used to strengthen the academic program and global reputation of the Straus Institute, which has been ranked as the #1 dispute resolution program in the nation by U.S. News & World Report for 13 of the past 16 years.

The gift will endow the managing director position at the Straus Institute, previously held by professor of law Peter Robinson (2005–17) and held since 2017 by associate professor of law and practice Sukhsimranjit Singh. As the inaugural Judge Danny Weinstein Managing Director, Professor Singh will continue his leadership of the Straus Institute in the training of arbitrators, mediators, negotiators, problem solvers, and peacemakers whose skills have never been more needed in our conflict-ridden country and world.

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79% Of Faculty Vote To Strip Robert E. Lee's Name From Washington & Lee University

Following up on my earlier posts:

• Should Washington & Lee University Change Its Name? (June 4, 2018)
• W&L Law Students Demand Right To Strip George Washington And Robert E. Lee From Their Diplomas (Nov. 21, 2019)

Richmond Times-Dispatch, Washington and Lee Faculty Vote to Change the University's Name:

Washington and Lee University faculty passed a motion to remove Robert E. Lee from the name of the small liberal arts college in Lexington.

The motion — the first time for W&L faculty to make such a recommendation — will be sent to the board of trustees.

W&L President Will Dudley called a special meeting to discuss the motion at the request of the faculty affairs committee. More than 260 faculty members attended the virtual meeting late Monday afternoon and 79% of them voted for the motion.

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Florida A&M Law School Reverses Plan For Hybrid Fall Semester, Shifts To 100% Online

FloridaPolitics.com, FAMU College of Law Reverses Reopening Plans, Stays Remote For Fall:

Students will attend classes remotely at the Florida A&M University College of Law during the fall, a change Monday from its original plan.

The law school had planned to follow a hybrid model with some classes taught in the classroom and others taught online. But with a recent recommendation made to College of Law Dean Deidré Keller by the College of Law Reopening Task Force, classes will stay remote when students return Aug. 10.

“While we recognize that this is a shift in direction, we have made this decision because we believe it is in the best interest of our students, faculty and staff,” said Keller, who began her tenure as dean and law professor on July 1.

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AALS Call For Papers: New Voices In Taxation

Call For Papers: New Voices in Taxation Panel
AALS Section on Taxation/2021 Annual Meeting

The AALS Section on Taxation is pleased to announce the following Call for Papers. Selected papers will be presented at a works-in-progress session at the 2021 AALS Annual Meeting from January 5 through 9. While AALS has not made a decision about whether the conference will be held in person, selected presenters will have the opportunity to present remotely. This program will provide panelists the opportunity to present their work and receive feedback from senior colleagues in the field.

Eligibility: Scholars teaching at AALS member schools or non-member fee-paid schools with seven or fewer years of full-time teaching experience as of the submission deadline are eligible to submit papers. (Non-tenure track teaching fellowships count for this deadline.). For co-authored papers, all authors must satisfy the eligibility criteria. While we welcome submissions from previous panelists, we will give a preference to scholars whose work has not been selected for a previous new voices panel.

Due date: 5 p.m. PDT, Thursday, August 20, 2020.

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Black Families Pay Significantly Higher Property Taxes Than White Families

Washington Post, Black Families Pay Significantly Higher Property Taxes Than White Families, New Analysis Shows:

State by state, neighborhood by neighborhood, black families pay 13 percent more in property taxes each year than a white family would in the same situation, a massive new data analysis shows.

Black-owned homes are consistently assessed at higher values, relative to their actual sale price, than white homes, according to a new working paper by economists Troup Howard of the University of Utah and Carlos Avenancio-León of Indiana University.

Dorothy Brown, an Emory University law professor who researches systemic racism in tax policy and was not involved in this study, sees the same pervasive effect. “The structure of the property tax system operates to disadvantage black Americans,” she said. “That’s how structural racism is. It’s built into the system. The property tax system itself discriminates against black Americans.”

Troup Howard (Utah) & Carlos Avenancio-León (Indiana), The Assessment Gap: Racial Inequalities in Property Taxation:

We use panel data covering 118 million homes in the United States, merged with geolocation detail for 75,000 taxing entities, to document a nationwide “assessment gap” which leads local governments to place a disproportionate fiscal burden on racial and ethnic minorities. We show that holding jurisdictions and property tax rates fixed, black and Hispanic residents nonetheless face a 10–13% higher tax burden for the same bundle of public services.

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WSJ: Tax Lawyer Ed Kleinbard Reinvented Himself As A Crusading Professor

Following up on my previous posts:

• Death Of Ed Kleinbard (June 29, 2010)
• L.A. Times: Farewell To Ed Kleinbard (July 2, 2020)

Wall Street Journal (James Hagerty), Tax Lawyer Reinvented Himself as a Crusading Professor (July 4, 2020):

Traveling through Europe as a boy in the 1960s, Edward Kleinbard cultivated a precocious interest in medieval history and instructed his parents on which “shabby abbeys” they should appreciate.

The young scholar later aspired to become a history professor. His father, Martin Kleinbard, a partner at the law firm of Paul Weiss, cautioned that academic pay might not allow him to indulge expensive tastes in bicycles and travel. So Edward Kleinbard enrolled in law school at Yale.

Those studies launched him into a 30-year career as a prominent Wall Street tax lawyer at the law firm Cleary Gottlieb. Mr. Kleinbard finally entered academia as a law professor at the University of Southern California in 2009. The delay in launching his academic career was “just long enough for me to have something useful to say,” he wrote. ...

Mr. Kleinbard died June 28 at a hospital in Los Angeles. He was 68 years old and had been under treatment for cancer. Shortly before his death, he completed another book—What’s Luck Got to Do With It?—due to be published [by Oxford University Press] in 2021. ...

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NY Times: Colleges Face Rising Revolt By Professors Over Teaching On Campus In The Fall

New York Times, Colleges Face Rising Revolt by Professors:

College students across the country have been warned that campus life will look drastically different in the fall, with temperature checks at academic buildings, masks in half-empty lecture halls and maybe no football games.

What they might not expect: a lack of professors in the classroom.

Thousands of instructors at American colleges and universities have told administrators in recent days that they are unwilling to resume in-person classes because of the pandemic. ...

Faculty members at institutions including Penn State, the University of Illinois, Notre Dame and the State University of New York have signed petitions complaining that they are not being consulted and are being pushed back into classrooms too fast. ...

Many professors are calling for a sweeping no-questions-asked policy for those who want to teach remotely, saying that anything less is a violation of their privacy and their family’s privacy. But many universities are turning to their human resources departments to make decisions case by case.

New York Times Economic View:  College Is Worth It, but Campus Isn’t, by Susan Dynarski (Michigan):

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Cultivating Grit In Law Students

Denitsa Mavrova Heinrich (North Dakota), Cultivating Grit in Law Students: Grit, Deliberate Practice, and the First-Year Law School Curriculum, 47 Cap. U. L. Rev. 341 (2019):

What characteristics reliably predict success? Why is it that some individuals accomplish more than others of equal intelligence? Why do some make the most of their abilities while others barely tap into their potential? In examining these questions, psychologist Angela Duckworth discovered that grit was the one characteristic all highly successful individuals had in common.

Grit, defined as “passion and perseverance for the long-term goal,” has proven to reliably predict success in a variety of domains. In the educational setting, specifically, grit has emerged as a strong predictor for student success at both the secondary and undergraduate levels. Yet, despite the research showing a positive relationship between grit and academic achievement, grit remains virtually unexamined in the context of legal education.

This Article illustrates why grit is a concept worth examining in legal education. In particular, the Article argues that cultivating grit in law students is a pedagogical goal worth pursuing in legal education in order to improve student learning and promote student success.

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Lesson From The Tax Court: Being Too Smart Precludes Innocent Spouse Relief

Growing up, I was taught to value intelligence.  My dad even had a sign in his office like the one to the right: his read “life is hard, especially if you’re stupid.” 

Being smart surely brings many advantages in life, but we learn today why it serves as a disadvantage when seeking spousal relief under §6015.  Getting spousal relief is hard; it's harder if you are smart. 

In John E. Rogers and Frances L. Rogers v. Commissioner, T.C. Memo. 2020-91 (June 18, 2020) (Judge Goeke), the court denied spousal relief to Mrs. Rogers because it found her too smart to qualify.  It is a useful lesson as many of us prepare our own joint returns for 2019. 

Details below the fold.

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Texas Is Third State In A Week To Switch From On-Ground To Online Bar Exam

Following up on last week's posts:

• Deans Of Texas's Ten Law Schools Call On Court And Bar To Rethink In-Person Bar Exam In July And September
• Florida And Massachusetts Switch From On-Ground To Online Bar Exams

Texas Supreme Court Order (July 3, 2020):

The Supreme Court of Texas has issued an order to:

• Cancel the July 2020 in-person Texas Bar Exam.
• Administer an in-person Texas Bar Exam as scheduled for September 9-10, 2020, subject to guidance from public health authorities.
• Administer an on-line Texas Bar Exam on October 5-6, 2020.

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Pepperdine Caruso Law Names Inaugural Assistant Dean Of Student Life, Diversity, And Belonging

Pepperdine Caruso Law Announces Appointment of Chalak Richards (JD '12) as Assistant Dean of Student Life, Diversity, and Belonging:

Pepperdine Caruso Law is proud to announce changes to its leadership team effective today, July 1. 

Chalak Richards, who served as Assistant Dean of Career Development from 2018–2020, has been named as the first Assistant Dean of Student Life, Diversity, and Belonging. Established in early 2020, the office of the assistant dean of student life, diversity, and belonging has three overarching goals: to create a community where all are welcomed and recognize they belong, to care for the well-being of each individual student, and to oversee the full student life experience. In her new role, Richards will develop programs to create a community that values and celebrates diversity and work on strategic initiatives and policies that strengthen diversity at all levels - student, faculty, and staff.

Richards will also lead initiatives to care for each student by coordinating faculty, peer, and alumni mentorship and by providing mental health and spiritual life support. She will also oversee student life events and student clubs to ensure that students have rich and meaningful community experiences.

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TaxProf Blog Holiday Weekend Roundup

Friday:

• Weekly SSRN Tax Article Review And Roundup: Kim Reviews Rethinking Tax For The Digital Economy After COVID-19 By Magalhães & Christians
• Weekly Legal Education Roundup
• Tax Policy In The Trump Administration
• Hamilton At Pepperdine And On Disney+

July 4th:

• This Week's Ten Most Popular TaxProf Blog Posts
• July 4th And Hamilton
• Who Gets To Teach Remotely? Who Decides?
• Trump’s Unsupported Claim About Opportunity Zone Investments

Sunday:

• July 2020 Bar Exam Chaos: 50 States, 14 Different Approaches
• California Law School Deans Report On July 2 Meeting With State Supreme Court And Bar
• Illinois Provides Temporary Practice License For New Law School Graduates
• The Top Five New Tax Papers

July 2020 Bar Exam Chaos: 50 States, 14 Different Approaches

National Conference of Bar Examiners, July 2020 Bar Exam Status by Jurisdiction (as of July 2, 2020):

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California Law School Deans Report On July 2 Meeting With State Supreme Court And Bar

Letter Deans Chemerinsky (UC-Berkeley), Faigman (UC-Hastings), Jennifer Mnookin (UCLA) & Song Richardson (UC Irvine) to the Class of 2020:

We know that many of you are interested in the Zoom meeting that the California law school deans had this morning with members of the California Supreme Court and representatives from the California State Bar. Here is a brief high-level summary of that meeting.  We thought it made sense to share this jointly, as we were the four deans who represented the ABA deans on the call.

Three members of the Court joined the call, Justices Cuellar, Groban and Liu. The Chief Justice’s senior attorney was also in attendance.  An assortment of senior leaders from the State Bar and its consultants also joined the conversation.

The call began with Bar representatives outlining the exam choices they were confronting and their experience with the on-line version of the “Baby Bar,” administered last week. That bar was taken by around 280 candidates and the experience, it appears, was indeterminate.

Much of the early discussion from the State Bar folks focused on the choice between a September and October exam, with the decided recognition that a September in-person exam was almost certainly impossible.  The strong sense of the early part of the meeting was that the State Bar was fairly set on the October date, though latter parts of the meeting seemed to belie that conclusion. Moreover, it was strongly intimated that a no-exam pathway was not being seriously contemplated by the Bar. But, again, this sentiment may not have been shared by the Justices, who later said that they were keeping open minds about the best path forward.

As many of you know, the deans of all of the ABA law schools coordinated our message to the Court and Bar, and four of us acted as spokespersons for the group. 

As a number of you have asked for further detail, the four of us are compiling our remarks in a single document and should be able to send that to you later today.

In short, the four of us, on behalf of all of our ABA colleagues, advocated strongly for an emergency diploma privilege for 2020 candidates for the California Bar. The current unprecedented times demand unprecedented and courageous solutions. COVID-19 has created a climate involving multiple crises, including physical health, mental health, and financial health. Multiplying the anxiety and despair of these crises, the nation is confronting and must find solutions to the systemic racism and deep inequalities endemic in our society. At this unparalleled moment in history, even using the traditional bar exam as a point of departure feels like an affront.

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Illinois Provides Temporary Practice License For New Law School Graduates

Illinois Supreme Court, Supreme Court Temporarily Amends Rule to Allow New Law School Graduates To Work at Private Firms:

Chief Justice Anne M. Burke and the Illinois Supreme Court announced today the amendment of Rule 711(g), which will temporarily expand the class of employers eligible to supervise new law school graduates to include private law firms and other for-profit entities.

The Illinois Supreme Court order temporarily amending Rule 711 to add paragraph (g) can be found here and the Application for Authorization to Perform Legal Services under Illinois Supreme Court Rules 711(g) is available here.

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The Top Five New Tax Papers

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

1. [312 Downloads]  The Legality of Digital Taxes in Europe, by Ruth Mason (Virginia) & Leopoldo Parada (Leeds)
2. [275 Downloads]  COVID-19 and Us Tax Policy: What Needs to Change?, by Reuven Avi-Yonah (Michigan)
3. [168 Downloads]  Coronavirus, Telecommuting, and the 'Employer Convenience' Rule, by Edward Zelinsky (Cardozo) (reviewed by Young Ran (Christine) Kim (Utah) here)
4. [142 Downloads]  Taxation Of The Digital Economy: Adapting A 21st-Century Tax System To A Twenty-First Century Economy, by Assaf Harpaz (S.J.D. 2020, Duke)
5. [125 Downloads]  Are Two Employers Better than One? An Empirical Assessment of Multiple-Employer Retirement Plans, by Natalya Shnitser (Boston College)

July 4th And Hamilton

Following up on yesterday's post, Hamilton At Pepperdine And On Disney+: my wife and I watched the film version of Hamilton last night. Although we have seen the play several times, we found the film absolutely mesmerizing. The intimacy provides a close-up perspective on the actors and the choreography that is unavailable from even the best seats in a theater.

I was also struck by the film's propitious release the day before the July 4th holiday. As COVID-19 and the killing of George Floyd tear at the fabric of our country, Hamilton provides a timely challenge to all of us to think anew about the "American experiment" (Yorktown (The World Turned Upside Down)).

The Los Angeles Times review, From Broadway to Disney+, Hamilton Speaks Brilliantly to a Time of Fear and Protest, wonderfully captures this sentiment:

Disney, which acquired the film earlier this year, had originally planned an October 2021 theatrical release. But when theaters closed due to the COVID-19 pandemic, it decided to make “Hamilton” available for streaming on Disney+ more than a year early — just in time for a July 4 holiday under quarantine and, less expectedly, for our latest convulsive nationwide referendum on systemic racism and authoritarian violence. It’s hard to imagine a more receptive backdrop for a drama that ingeniously recasts the Founding Fathers as people of color, placing America’s oft-repeated “nation of immigrants” rhetoric into the most literal terms imaginable. Nor can I think of a better moment for a musical that reminds us anew that the language of hip-hop is a language of protest.

None of which is meant to suggest that this is “the film we need right now” or to burden “Hamilton” with messianic claims that the show — a celebration of a once-unsung hero and a pointed reminder of the limitations of heroism — would never make for itself. Reviewing the touring production at the Hollywood Pantages Theatre in 2017, my Times colleague Charles McNulty noted that “its embodiment of pluralism and diversity will touch anyone who longs to see America live up to its ideals,” and the same holds true of this filmed version. Miranda’s rap-sodic historical epic may not save the soul of a battered republic, but its consolations are real, its pleasures revivifying, its emotional force galvanic. Arriving at a moment of intensifying darkness, it shines a light that is both warm and persistent.

Members of our Pepperdine Caruso Law community tease me (good-naturedly, I think) about how I mention Hamilton and quote or play a clip in most speeches I give. I do so in part because, like Michelle Obama, I think Hamilton is the single greatest work of art in any form that I have seen in my life. But more than that, I think Hamilton is transcendent, brilliantly challenging us to seriously think about our human endeavor, both as individuals and as citizens.

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This Week's Ten Most Popular TaxProf Blog Posts

1. Joe Bankman (Stanford) & Dan Shaviro (NYU), Death Of Ed Kleinbard (USC)
2. Michael Hiltzik (L.A. Times) & Thornton Matheson (TaxVox), Farewell To Ed Kleinbard (USC)
3. Afsheen John Radsan (Mitchell Hamline), 'Obnoxious, Trump-Voting, Heterosexual, Balding Iranian-American' Law Prof Calls On His White Colleagues To Resign To Make Way For Black Law Profs
4. Gabriel Paquette (Oregon), Bashing Administrators While The University Burns
5. William Widen (Miami), The Only Question For Law School Reopenings: How Do You Ask a Person To Be The Last Person To Die For A Mistake?
6. Richard Vedder (Ohio University), Is a Law School Meltdown Coming?
7. Song Richardson (Dean, UC-Irvine) & Christopher Whytock (Vice Dean, UC-Irvine), UC-Irvine To Be 100% Online For 2Ls/3Ls In Fall 2020; 1Ls May Choose To Be On Ground For 1 Or 2 Classes Each Week
8. Bryan Camp (Texas Tech), Lesson From The Tax Court: Cheshire Cat Jurisdiction Over Passport Revocation Petitions
9. Arlene Kanter (Syracuse), Can Faculty Be Forced Back On Campus?
10. Paul Caron (Dean, Pepperdine), Eric Wilson Named Pastor Of Pepperdine's University Church

Who Gets To Teach Remotely? Who Decides?

Chronicle of Higher Education, Who Gets to Teach Remotely? The Decisions Are Getting Personal:

Faculty input is one thing. Individual exemptions are another.

Early promises made by administrators to listen to faculty input are now making way for actual rulings on faculty requests. And like everything else during the coronavirus pandemic, the process is complicated and the results vary from institution to institution.

Federal agencies have issued some guidance on how employment protections apply during the pandemic, including for people who don’t have high-risk health conditions but are in regular contact with those who do.

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Trump’s Unsupported Claim About Opportunity Zone Investments

FactCheck.org, Trump’s Unsupported Claim About Opportunity Zone Investments:

At his rally in Tulsa on June 20, President Donald Trump asserted without evidence that $100 billion had been invested in opportunity zones under a federal program that provides tax incentives to encourage development in low-income neighborhoods.

That number is far higher than other estimates of the total, and Trump, his administration and his campaign have furnished no evidence to back up the claim. ...

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Rethinking Tax For The Digital Economy After COVID-19 By Magalhães & Christians

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Tarcísio Diniz Magalhães (McGill) & Allison Christians (McGill), Rethinking Tax for the Digital Economy After COVID-19 (June 2020).

The coronavirus recession has brought many challenges, including economic and fiscal crisis. Still, there are winners during this difficult time. As the COVID-19 pandemic hit the United States in full scale leading to a nationwide lockdown starting in March, stock prices plummeted sharply for all but a handful of companies. Compare the year-to-date chart of the S&P 500 with that of Zoom, Netflix, and Amazon—companies that are thriving despite the pandemic. The exceptional performance of these companies is seemingly a “windfall” arising from the extreme restrictive measures governments had to impose on other sectors of the economy. As one possible solution for the fiscal crisis, prominent scholars, such as Reuven Avi-Yonah, Emmanuel Saez and Gabriel Zucman, as well as Melani Cammett and Evan Lieberman, have proposed to revive excess profits taxes. In Rethinking Tax for the Digital Economy After COVID-19, co-authors Tarcísio Diniz Magalhães and Allison Christians extend the excess profits tax proposal to the international domain and argue that the world needs to adopt a "Global Excess Profits Tax” (GEP Tax). Magalhães and Christians' paper was presented yesterday at the Indiana/Leeds Summer Tax Workshop Series (the Workshop), hosted by Leandra Lederman (Indiana – Maurer) and Leopoldo Parada (Leeds).

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Weekly Legal Education Roundup

• Austin Stateman, Texas Law Schools Call For Changes to Bar Exam Amid Coronavirus Surge
• Paul Caron (Dean, Pepperdine), Hamilton At Pepperdine And On Disney+
• Daily Tar Heel, UNC School of Law Responds to Letter From Group of Black Students
• David Faigman (Dean, UC-Hastings), Classes Remain Online for Fall 2020
• Dan Filler (Drexel), Concordia Law School Closes Suddenly

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Tax Policy In The Trump Administration

• Bloomberg, Billionaires’ Political Spending Grew 37-Fold in 10 Years
• Bloomberg, Global Tax Reform Process Hangs on U.S. Election
• Bloomberg, Tax Haven-Blocking Rules in Virus Aid Carry Little Force
• Sam Brunson (Loyola-Chicago), How the Espinoza Tax Credits Work
• Forbes, Billionaires Spent 41 Times More On 2016 Election Compared To 2008

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Hamilton At Pepperdine And On Disney+

To celebrate today's release of Hamilton on Disney+, Pepperdine Caruso Law hosted a zoom webinar with Federal District Judge Charles Eskridge ('90) on the historical context of all 46 songs in the musical. Charles previously gave the talk to a full house in 2018 at Pepperdine Caruso Law, and over 75 alums and students joined us online for the reprise on Wednesday.

The movie version of Hamilton looks spectacular:

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Christians Presents Rethinking Tax for the Digital Economy After COVID-19 Today At The Indiana/Leeds Summer Zoom Tax Workshop Series

Allison Christians (McGill) presents Rethinking Tax for the Digital Economy After COVID-19 (with Tarcisio Diniz Magalhaes (McGill)) today as part of the Indiana/Leeds Summer Zoom Tax Workshop Series hosted by Leandra Lederman (Indiana) and Leopoldo Parada (Leeds):

Before COVID-19 arrived, policymakers from around the world were busy working on the makings of a new global tax consensus to reflect structural changes in the world economy as a result of the rise of digitalization. COVID-19 disrupted this process by delivering a shock that resulted in major contractions for most firms even as it created enormous windfalls for others, prompting some to call for excess profits taxes, usually associated with wartime economies, as a corrective. Yet the contemporary context for excess profits taxes is fundamentally global today, in a way that excess profit taxation during the world war period was not. As such, to effectively address the fiscal crisis brought on by COVID-19, the world needs a “global excess profits tax”—a GEP tax. This article argues that the vocabulary, the technical tools, and the political determination that were being built for the digital economy can and should be adapted to formulate a GEP tax.

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Avi-Yonah, Driessen, Fleming, Peroni & Shay: Why R&D Should Be Allocated To Subpart F And GILTI

Stephen E. Shay (Harvard), Reuven S. Avi-Yonah (Michigan), Patrick Driessen, J. Clifton Fleming, Jr. (BYU) & Robert J. Peroni (Texas), Why R&D Should Be Allocated to Subpart F and GILTI, 167 Tax Notes Fed. 2081 (June 22, 2020):

In this article, the authors critically appraise the government’s proposal not to allocate research and development deductions to subpart F inclusions and global intangible low-taxed income for foreign tax credit limitation purposes. They say the proposal is an unprecedented interpretation of the statute unsupported by any relevant legislative history that would radically change an R&D allocation method in place since 1977. They argue that the justifications provided in the proposed regulations’ preamble do not stand up to scrutiny.

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It Is Safer For Cornell And Other Schools To Reopen Than To Go Online

Wall Street Journal op-ed:  Why Cornell Will Reopen in the Fall, by Michael Kotlikoff (Provost, Cornell) & Martha Pollack (President, Cornell):

Colleges and universities in the U.S. face a difficult choice in the coming weeks. Some have decided that closing their campuses and offering online classes is the safest option. For others, the safer and more responsible alternative may be to allow students to return while putting in place a comprehensive virus-screening program that minimizes the risk of transmission. Contingent on New York state’s approval, we will be opening Cornell for residential instruction this fall.

Consider two scenarios. University A decides to reopen. For the health and safety of students, faculty and staff, it institutes a screening program to identify asymptomatic students infected with the novel coronavirus and prevent them from spreading it by repeated testing and isolation. The school also monitors symptoms daily, restricts group sizes, modifies classrooms and dorms, secures extensive quarantine capacity, restricts travel, and imposes requirements for masks and social distancing.

University B decides that this is too risky and chooses to play it safe. The school doesn’t reopen for residential instruction this fall and opts instead to teach all courses online. It takes cautious steps to open for selected professional or graduate programs and research efforts, but doesn’t implement the complex process of screening thousands of undergraduates and modifying the learning environment for social distancing.

Surprisingly, epidemiological modeling done by a group led by Cornell Prof. Peter Frazier [COVID-19 Mathematical Modeling for Cornell’s Fall Semester] suggests that despite playing it safe, sometime during the fall University B may well experience markedly worse health outcomes in its community, while University A will have more effectively safeguarded public health.

For many universities, closing the campus to undergraduates is probably not the safest option—notwithstanding concerns that college students may not adhere to public-health guidelines. That’s because at many colleges, students will gather on and around campuses whether classes are held in person or online. ...

As universities like Cornell make difficult decisions about the fall semester, it’s important to consider the risks of not reopening alongside the risks of opening. Epidemiological modeling suggests, perhaps counterintuitively, that if a university is prepared to put in place a comprehensive virus screening program followed up with supportive quarantine and isolation—in addition to other effective public health measures—reopening may be the more responsible option.

COVID-19 Mathematical Modeling for Cornell’s Fall Semester:

Initial modeling results suggest that a combination of contact tracing, asymptomatic surveillance, and low initial prevalence (supported through testing students prior to, and upon, returning to campus) can achieve meaningful control over outbreaks on Cornell’s Ithaca campus in the fall semester if  symptomatic surveillance is sufficiently frequent and if we have sufficient quarantine capacity. This would dovetail with a complementary effort at Cornell to reduce transmissions through housing policy, class organization, and regulations on social gatherings.

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Rodriguez: On-Ground/Hybrid Approaches Are Doomed To Fail; Law Schools Should Go Entirely Online In Fall 2020

Karen Sloan (Law.com), Online or In Person? Law Schools Diverge in Fall Semester Plans:

At least five law schools have unveiled plans for fully online classes in the fall, even though the majority of schools are hoping to offer a mix of in-person and online coursework amid the COVID-19 pandemic.

Following up on my previous post, How To Teach A Hybrid Law School Class:  Dan Rodriguez (Northwestern), Nonsense and Sensibility: Hybrid Is Not the Answer:

Debbie Merritt is one of our most thoughtful, rigorous legal educators, and someone who always puts students first in her thinking about legal education and its (dis)contents.  Here is what she had to say on Facebook about this predicament from the vantage point of her own law school:

I listened today to a presentation on how our university will hold on-campus classes this fall. The on-campus venture is beginning to sound like the Ptolemaic model of the universe, with eccentricities and epicycles continuously added to address all the problems. First we decide to hold classes in super-sized rooms so that students can sit 6 feet apart. Then we require everyone to wear masks. Then we reduce the number of people in the building each day by having some classes alternate between in-person and online. Then we tell everyone to leave the building asap after class--no socializing in the hallways or other public spaces. I think it's time to realize that on-campus classes will not be the center of our universe this fall. We need to embrace a model in which online classes are at the center, with careful prep by professors over the next two months. Let students use their in-person time to be with friends and family, meet in study groups (1Ls), hold part-time jobs or externships (UL), and carry on their lives. What do they really gain from sitting masked in a classroom, separated from other students, and listening to a professor whose voice is muffled by a mask?

And also this in a follow-up comment:

Students, of course, are asking for tuition discounts given the compromised nature of this on-campus education. Universities, naturally, are rejecting that. Ironically, I think we would be in a better position tuition-wise if we said, "We are moving most of our fall classes online and the dean has directed faculty to spend the rest of the summer preparing first-rate online classes rather than conducting research. You can be confident that all of your tuition money is going towards maintaining a first-class legal education. We are also adding additional resources to externships and career services because we know those experiences and prospects are vital to students.

This is an honest reflection on a difficult issue, and I endorse it entirely. Prof. Merritt speaks simultaneously to the dilemma (and, potentially, the disaster) of reopening live and also the understandable angst of students who wonder "why exactly are we expected to pay 100% tuition for this experience?"

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Florida And Massachusetts Switch From On-Ground To Online Bar Exams

NCBE, Bar Update (July 1, 2020):

Florida
The Florida Board of Bar Examiners, with the approval of the Supreme Court of Florida, announced in a July 1 press release that the in-person July administration of the exam is canceled. The Board will instead administer an online exam on August 18 consisting of 100 multiple-choice questions and three essay questions. For the August exam only, applicants will not be required to take the MBE.

Massachusetts
On July 1, the Massachusetts Supreme Judicial Court and the Massachusetts Board of Bar Examiners announced that a remotely administered exam for admission to the Massachusetts bar will be offered in lieu of the UBE on October 5-6.

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UC-Hastings Law School Goes 100% Online In Fall 2020

David Faigman (Dean, UC-Hastings), Classes Remain Online for Fall 2020:

I hope this message finds you well. As I am sure you are aware, the trajectory of the pandemic is of increasing concern, statewide and nationally. And I know that you, like many across the globe, are feeling the impacts in your personal and professional lives. In light of this, I write to share important news about the coming fall semester.

In order to protect the health and safety of all community members and to allow students, staff, and faculty to plan in the face of uncertainty, I have made two decisions:

1. We will move all classes online in the Fall 2020 (“F20”) term; and
2. We will have an on-campus presence this fall, with socially-distanced in-person engagements including community events, social activities, faculty office hours, and study opportunities, as soon as San Francisco Department of Public Health (“Public Health”) guidelines permit.

Fall 2020 Online Classes
In May, I asked Academic Dean Morris Ratner to work with faculty to create a hybrid curriculum for our incoming 1L students and to schedule a mix of online, in-person, and hybrid options for upper-division, MSL, and LLM students. Our faculty and staff have committed an enormous amount of time and energy since the start of the pandemic to creating hybrid instructional models, and we stand ready to pivot to that modality when we can. My decision not to do so for F20 did not hinge on our readiness or capability to offer hybrid options. Rather, we simply do not have enough information at this time to be confident that we can provide a safe in-person or hybrid course experience when classes resume in August. Furthermore, I believe it is likely that Public Health guidance will require us to be online for all or part of the semester. By making our decision now, before course registration starts, students, staff, and faculty will be better able to plan for the fall. Under this model, all classes will be equally available to students regardless of their ability to come to campus.

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The Only Question For Law School Reopenings: How Do You Ask a Person To Be The Last Person To Die For A Mistake?

William H. Widen (Miami), The Only Question for Law School Re-Openings: How Do You Ask a Person To Be the Last Person to Die For a Mistake?:

That is the question American law school deans and their supervisors must consider as the fall term approaches. I pose this question to advocate for law schools to teach fully online in fall 2020 because a law school might take a conservative approach in the short term without serious jeopardy to their academic mission. ...

Administrators should strategically reduce overall campus population density by teaching law online because law adapts well to distance learning. ...

Law school management must prepare to answer this question if they open classes in-person, despite reservations about safety, or the efficacy of social distancing measures. Harvard Law School and UC Berkeley Law School led with decisions to cancel in-person instruction for fall 2020. Other schools have taken notice and are in various stages of deciding the way forward, including hybrid learning approaches that mix in-person and online instruction, also designed to minimize risk, as an alternative to the risk mitigation strategy advocated for here. UC Irvine just announced a hybrid approach—all online for upper-division, with a choice given to incoming 1L students.

For 1L courses, a large classroom with active discussion is common—but not strictly necessary. Conventional wisdom suggests that a failure to hold in-person classes will result in a dramatic decline in first-year law school enrollment and, thus, tuition revenue. Financial ruin follows because law students will only pay for the in-person Socratic experience. Economics drives the decision to take the risk to open with in-person classes. The brunt of the risk is borne not only by students but also by faculty and staff—groups situated below the pay grade of the administrators sending them into harm’s way.

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L.A. Times Farewell To Ed Kleinbard (USC)

Following up on Monday's post, Death Of Ed Kleinbard (USC):  Los Angeles Times (Michael Hiltzik), Farewell to USC’s Ed Kleinbard, 68, a Peerless Champion of the Public Interest: 

A couple of things set Ed Kleinbard apart from the army of tax experts who spend their hours delving into the minutiae of tax law.

For one thing, he was smarter than most of the others. But more important, having developed his store of knowledge at an elite corporate law firm and then as a top congressional advisor, he chose to deploy it in the public interest — as a professor of law at USC, as a widely-read commentator on tax policy and as the author of an indispensable book on how to make fiscal policy function for the betterment of American life.

Kleinbard died Monday at 68, following a long battle with cancer. He had been my guide through the thickets of tax policy since I first profiled him in 2014 and a source for dozens of columns since then. He was always gracious, lucid and amusing when I pestered him for his insights, even during his bouts with illness toward the end. His passing will be profoundly felt by his family, his colleagues, my readers and a world that is immeasurably poorer for the loss.

Let’s learn why.

We can begin with his career trajectory. After graduating from Yale Law School in 1976, he moved into corporate law, rising to a partnership at Cleary Gottlieb Steen & Hamilton. In 2007 he jumped to the public sector as chief of staff to the Congressional Joint Committee on Taxation, then joined USC’s Gould School of Law in 2009.

“Only people who are practicing law at a very high level know exactly how corporations do things like move income around to minimize taxes and the other tax games major corporations play,” says Kleinbard’s friend, cycling companion and USC Law colleague Gregory Keating. “And most of the people who have that kind of knowledge are working with the companies. Ed had that expertise and was committed to coming up with solutions as an academic and a policy person that were public-spirited and public-minded.”

Coupled with that was an engaging persona that his colleagues remembered as “funny, loyal, passionate, and acerbic,” as Daniel N. Shaviro of NYU Law School put it in a valedictory on the TaxProf blog.

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The Irish Money Funnel

Irish Money Funnel:

Irish Money Funnel, produced by Spin Casino Ireland, takes a look at some of the world's biggest companies and shows how Ireland's low corporation tax rate could be the secret behind their success.

Below is a comparison of some of the biggest companies in tech, food and drink based on the percentage of total revenue which is raised in the UK and Ireland. Ireland is often used as a base by multinational companies due to its low corporation tax rate of 12.5%. Comparatively, the UK has a tax rate for companies of 19% and the US even higher at 21%.

NY Times: Philanthropy Rises In Pandemic As Donors Heed The Call For Help

New York Times, Philanthropy Rises in Pandemic as Donors Heed the Call for Help:

When the coronavirus prompted states to order residents to stay at home in March, unemployment surged around the country as huge parts of the economy slowed or stopped. Soon after, there were calls for philanthropists, charitably inclined people and even occasional donors to accelerate any giving they were planning to do.

They stepped up, it turns out, giving more and giving faster then they typically do.

The needs were urgent. Virus-related charities and social service agencies, like food banks, were thrust into an immediate role whose size and scope they were not prepared for. At the same time, arts organizations and other nonprofit groups that depend on sales of tickets to their shows and productions suddenly had no audience.

To encourage donations, the CARES Act expanded the amount of cash contributions that could be taken as a tax deduction. But the focus of the call to action was firmly on foundations and donor-advised funds, which have huge pools of money that can go only to charity.

Now three months after the initial outbreak, two reports show that Americans gave at a rate and a level that eclipsed donations during the 2008 recession and after the Sept. 11, 2001, terrorist attacks.

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Deans Of Texas's Ten Law Schools Call On Court And Bar To Rethink In-Person Bar Exam In July And September

Austin Stateman, Texas Law Schools Call For Changes to Bar Exam Amid Coronavirus Surge:

The deans of 10 Texas law schools are calling on the Texas Supreme Court and the Texas Board of Law Examiners to rethink plans to administer an in-person bar exam in July and September as coronavirus infections continue to rise across the state.

The Texas bar exam is typically administered in July and February and is the final hurdle for law school graduates before receiving their full license to practice law. Earlier this spring, the Supreme Court added another test date in September and ordered the July and September tests be shortened, reducing the normally three-day test to two. Test-takers would also be required to wear masks during the exam.

But some say it’s not enough. In a letter to the court and the board on Monday, 10 law school deans, including those from the University of Texas, Texas A&M University and Baylor University, said “the arc of the pandemic has changed” and current precautions are no longer sufficient. ...

One option includes converting the July and September tests to optional or mandatory remote delivery. Another includes adopting an apprenticeship system that would permit licensure upon the completion of a certain number of hours of supervised practice. Finally, all 10 law schools said they would support a one-time diploma privilege option for graduates of their law schools — an option that many law graduates favor. As of Monday night, nearly 2,000 had signed a petition to grant the privilege to all Texas graduates. ...

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Statement Of The Deans Of The Ten Texas Law Schools Condemning Racism And Remembering George Floyd

Statement Of The Deans Of The Ten Texas Law Schools Condemning Racism And Remembering George Floyd:

Each of us is the dean of one of the ten Texas law schools. At first glance, our ten schools might be considered a collective study in contrasts: Private and public. Large and small. Faith-based and secular. Urban and rural. Old and new.

[Recent] events ..., however, have caused us to transcend those differences and to consider those issues that draw us together, including our steadfast, unwavering commitment to the values of equality, nondiscrimination, and diversity.

Each of us released statements to our communities in the wake of the killing of George Floyd, an unarmed African American, while he was handcuffed in police custody; those statements are hyperlinked below. They contain common themes condemning racism, as well as a commitment to stand in solidarity with those in our society who all too frequently have been on the margins of our democracy, and all too horrifically have been subjected to violence.

Our nation seemingly is poised to have important and significant conversations about race and racism, particularly in our systems of justice. We recognize that our law schools have a special responsibility not only to add our voices to the conversation, but also to consider those actions each of our schools can take.

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Oregon Is Third State To Offer Diploma Privilege To 2020 Law Graduates (All In-State Law Schools, Out-Of-State Law Schools With 86%+ Bar Pass Rate)

Following up on my previous post, Oregon Law School Deans Request Emergency Diploma Privilege For All Students Registered For July Bar Exam: NCBE, Oregon Bar Update (June 30, 2020):

The Oregon Supreme Court announced on June 29 that it would grant a one-time diploma privilege to candidates who timely submitted complete applications for the July 2020 Oregon bar exam and who either 1) graduated in 2020 from one of the three Oregon law schools or 2) graduated in 2020 from any other ABA-accredited law school that had a minimum of 86% of graduates pass a 2019 bar exam on their first attempt. For those candidates who do not qualify for the diploma privilege option, the Court has announced 1) a one-time reduction in the passing score for the July exam from 274 to 266; and 2) the option to instead take a remotely administered exam in October, with scores on that exam not qualifying as UBE scores.

Derek Muller (Iowa), Three Curiosities of Oregon's Diploma Privilege Rule for the 2020 Bar Exam

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UNC Responds To Letter From Black Law Students

The Daily Tar Heel, UNC School of Law Responds to Letter From Group of Black Students:

Early in the month of June, the UNC School of Law received a letter titled Why UNC Law is Not a Place for Black Students. The letter, signed by "A Group of Black UNC Law Students," condemned the school's lack of support and its culture of antipathy towards Black students, as well as Dean Martin Brinkley for a failure to retain and promote Black students and faculty, among other concerns.

The letter cites numerous events that have made Black students feel unwelcome at the school, including the UNC System Board of Governors stripping the Center for Civil Rights of its ability to litigate in 2017, administrative efforts to prevent the formation of a Civil Rights Review at UNC and the overall lack of Black faculty and administration in the law school.

"I think, from my point of view, the most important thing was that there were students who felt this way," said UNC law professor Erika Wilson. "Some of the very technical points in the letter about things may not have been exactly perfect. But I think the bigger issue is that you have students who feel this way, and this is how they perceive the law school environment." 

Wilson was referenced in the letter as the school's lone Black female professor, and upon whose shoulders Brinkley "allows the burden of handling all things Black at UNC Law to rest on." 

She said that, while uncomfortable for her to read, the letter was a wakeup call to herself and the school about the feelings of Black law students.

After the original letter was sent from a group of anonymous students, the Black Law Students Association sent the law school a packet including a list of five demands, which called for the creation of a UNC Law Office of Diversity and Inclusion, expanded recruitment efforts for Black professors, the introduction of a mandated "Critical Race Theory" class, establishment of a diversity scholarship for Black students and installment of a mental health counselor of color for students.

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Vermont Law School Goes 100% Online In Fall 2020

Seven Days, Vermont Law School to Hold Classes Online This Fall:

The Vermont Law School will hold all classes online this fall in response to the coronavirus pandemic, the college said Monday.

The decision comes as higher education institutions across the nation are grappling with how best to balance learning experience with safety amid the virus' continued spread.

"The most demanding challenge posed by the pandemic is uncertainty," said Thomas McHenry, president and dean of Vermont Law School, in a press release. "We want to provide as much notice to our students, faculty, and staff, in order to plan appropriately and deliver the high-quality course content and access to faculty that VLS is known for." ...

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Latest Data Shows That The Tax Cuts And Jobs Act Did Not Dampen Charitable Giving

Tax Foundation, Latest Data Shows That the Tax Cuts and Jobs Act Did Not Dampen Charitable Giving:

Americans are very generous people, and they give despite the reduced tax benefits of giving. That’s the takeaway from Giving USA’s latest annual report on the charitable contributions of individuals, corporations, and foundations. Altogether, Americans contributed nearly $450 billion to charitable causes in 2019. This is a record level of giving in nominal terms; adjusting for inflation, it is the second-highest amount ever after 2017.

Of the various donor types, individual donors were the most generous. They contributed about $310 billion to charitable causes in 2019, also a record amount in nominal terms. This was not supposed to happen according to many in the charitable community who predicted that the Tax Cuts and Jobs Act (TCJA) would lead to less charitable giving.

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Blacklists, Caribbean Autonomy And The New Tax Colonialism

Jakub Bartoszewski (Texas A&M) & Andrew P. Morriss (Texas A&M), An Archipelago of Contrasts: Blacklists, Caribbean Autonomy and the New Tax Colonialism:

Blacklists generally, and European blacklists in particular, are effectively discouraging the only successful development strategy in the Caribbean. We label this effort to forcibly impose European policies the ‘New Tax Colonialism’. Many of the same European powers who once colonised the Caribbean and forced its societies into sugar plantation economies now seek to fiscally recolonise it, crippling the most effective way to achieve economic prosperity in the region. ...

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