TaxProf Blog

Time 2020-09-09 02:04:09

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University Of Illinois Terminates Residential MBA In Favor Of Online iMBA ($22k Tuition)More Universities Close Their Full-Time MBAs Programs, Shift To OnlineWall Street Journal, More Schools Offer Online MBAs:Online M.B.A.s are gaining traction during the coronavirus era as more U.S. business schools seek new students and some wonder if their traditional full-time and on-site M.B.A. programs will survive.Many universities said this year that they would roll out online M.B.A. degree programs, including the business schools of Howard University, Wake Forest University and John Carroll University. They join the ranks of some big state schools, including the University of Illinois’s Gies College of Business and Indiana University’s Kelley School of Business, which have launched online M.B.A.s and are reporting significant increases in applications and online enrollment for the fall.“We found there is a huge potential market for folks who want to get a Howard M.B.A.,” said Anthony Wilbon, dean of the business school at Howard, one of the most high-profile of the Historically Black Colleges and Universities. The Washington, D.C., university has had a traditional, two-year, in-person M.B.A. program for decades and had been considering an online version before the pandemic. ...Online M.B.A.s have proliferated over the past decade. Since 2009 the number of online M.B.A.s at accredited business schools in the U.S. more than doubled, according to the Association to Advance Collegiate Schools of Business. Many of the top business schools initially resisted, leaving remote learning to for-profit education outlets. But now more high-profile universities are joining the online-learning ranks. ...Boston University’s Questrom School of Business announced last summer that it would offer a less-expensive, $24,000 all-online M.B.A. starting in the fall of 2020. Interest has exploded since the pandemic began. Questrom was planning to enroll 200 students in its first online M.B.A. class this fall but has doubled that to 400 students, said J.P. Matychak, an associate dean at the school. ... Boston University’s online M.B.A. program is trying to scale up to 2,000 students in the next few years. The Atlantic: Academics Are Really, Really Worried About Their Freedom, by John McWhorter (Columbia):Our national reckoning on race has brought to the fore a loose but committed assemblage of people given to the idea that social justice must be pursued via attempts to banish from the public sphere, as much as possible, all opinions that they interpret as insufficiently opposed to power differentials. Valid intellectual and artistic endeavor must hold the battle against white supremacy front and center, white people are to identify and expunge their complicity in this white supremacy with the assumption that this task can never be completed, and statements questioning this program constitute a form of “violence” that merits shaming and expulsion.Skeptics have labeled this undertaking “cancel culture,” which of late has occasioned a pushback from its representatives. The goal, they suggest, is less to eliminate all signs of a person’s existence—which tends to be impractical anyway— than to supplement critique with punishment of some kind. Thus a group of linguists in July submitted to the Linguistic Society of America a petition not only to criticize the linguist and psychologist Steven Pinker for views they considered racist and sexist, but to have him stripped of his Linguistic Society of America fellow status and removed from the organization’s website listing linguist consultants available to the media. An indication of how deeply this frame of mind has penetrated many of our movers and shakers is that they tend to see this punishment clause as self-evidently just, as opposed to the novel, censorious addendum that it is. ...[T]he Heterodox Academy conducted an internal member survey of 445 academics. “Imagine expressing your views about a controversial issue while at work, at a time when faculty, staff, and/or other colleagues were present. To what extent would you worry about the following consequences?” To the hypothetical “My reputation would be tarnished,” 32.68 percent answered “very concerned” and 27.27 percent answered “extremely concerned.” To the hypothetical “My career would be hurt,” 24.75 percent answered “very concerned” and 28.68 percent answered “extremely concerned.” In other words, more than half the respondents consider expressing views beyond a certain consensus in an academic setting quite dangerous to their career trajectory. Mark L. Jones (Mercer),Cathren Koehlert-Page (Barry),Suzianne D. Painter-Thorne (Mercer) Gary J. Simson (Mercer), It’s Alright, Ma, It’s Life and Life Only: Are Colleges and Universities Legally Obligated during the Coronavirus Pandemic to Exempt High-Risk Faculty from In-Person Teaching Requirements?:After hurriedly transitioning to online learning when the coronavirus pandemic burst onto the scene during spring semester 2020, colleges and universities across the U.S. spent much of the spring and summer deciding how to proceed in the fall. Should all courses continue to be taught entirely online? Should all return to in person? Is the best answer instead some sort of hybrid curriculum? Because the pandemic has defied prediction at every turn, colleges and universities not going entirely online can’t help but know that at any point during the semester they may suddenly be forced to revisit and revise their decision. Furthermore, after a summer in which the virus continued to infect U.S. residents at an alarming rate, colleges and universities are surely on notice that the pandemic should figure front and center in their planning as they think about in-person vs. online instruction for spring semester 2021.We believe that, for the duration of this pandemic, a college or university planning to offer any in-person classes has a moral obligation not to require any faculty members to teach in person who, out of concern for their own physical or emotional well-being or for that of another member of their household, ask to teach online instead. For now, however, we leave it to others to discuss more fully colleges’ and universities’ moral obligations. Our topic is colleges’ and universities’ legal obligations to allow faculty to opt for online, rather than in-person, teaching during this pandemic, and within that topic, we limit our focus to the group of faculty whom we believe colleges and universities have the clearest legal obligation to protect — those who, according to the criteria identified by the Centers for Disease Control and Prevention, appear to be most vulnerable to getting seriously ill or even dying if they contract the coronavirus. In the language of the CDC, our focus is faculty members “at increased risk of severe illness from COVID-19” — a group that we call “CDC high-risk faculty.” According to the CDC, anyone is high risk who has reached age 65 or who has one of various specific medical conditions, including cancer, chronic kidney disease, pregnancy, hypertension, and more.We outline various arguments that colleges and universities are legally obligated during this pandemic to exempt CDC high-risk faculty from any in-person teaching requirement. Continue reading Today’s lesson is about form and substance. Tax practitioners are often called upon to decide what transactional form best accomplishes a client’s substantive purpose. The power to choose the form of transactions sometimes creates a tension with the underlying economic substance when taxpayers and their advisors use form to disguise substance in the never-ending quest to gain tax benefits. Courts and the IRS regularly police transactions using various doctrines to decide when form must yield to substance (e.g. step transaction doctrine, economic benefit doctrine). When form is too much in tension with substance, substance wins. Congress has attempted to codify this idea in §7701(o).Today s lesson illustrates where tax law permits form to triumph over substance. In Jon Dickinson and Helen Dickinson v. Commissioner, T.C. Memo. 2020-128 (Sept. 3, 2020)(Judge Greaves) the taxpayers were able to obtain the double tax benefit of donating appreciated shares of stock to charity by being very careful with the form of the donation. Congress explicitly permits the form of a transaction to govern the tax result in charitable stock donation. The tricky part of this case was that the taxpayers were donating shares of a closely held corporation. And that implicates the assignment of income doctrine, one of those substance-over-form doctrines that courts use. To see how Judge Greaves resolves the tension in favor of the taxpayer, see below the fold. In re: Petition to Amend the Rules of the Supreme Court Relating to Admissions to the Bar and the Rules Regulating the Florida Bar, No. 20-1236 (Fla. Sept. 3, 2020):On August 20, 2020, Petitioners, who total more than 50 members of The Florida Bar in good standing, petitioned this Court, pursuant to Rule Regulating the Florida Bar 1-12.1(f), to adopt emergency rules to provide for admission to The Florida Bar without examination, followed by a supervised practice requirement to aid registrants for the July 2020 Florida General Bar Examination who have been severely impacted by the delays in administering the examination. ... For the reasons explained below, the Court declines to authorize such a pathway to Bar membership.Bloomberg Law, Law School Grads Can’t Skip Florida Bar Exam, Court SaysThe National Conference of Bar Examiners reports that Florida is the seventeenth state to deny requests for an emergency diploma privilege during COVID-19: Michael Hatfield (University of Washington) presents The Rise of Law and the Fall of Circular 230: Tax Lawyer Professional Standards, 1985-2015 at the 29th Annual Tax Research Network Conference virtually today at Christ’s College, Cambridge:This Article is forthcoming in the Florida Tax Review. It completes the series on the history of professional responsibility standards for US tax lawyers since 1945. The first article in the series was published in 2012: Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties, and Advice, 12 Fla. Tax Rev. 1 (2012); and the second in 2014: Committee Opinions and Treasury Regulation: Tax Lawyer Ethics, 1965-1985, 14 Fla. Tax Rev. 675 (2014). These two articles explored the development of professional responsibility standards for tax lawyers from 1945-1985.This third article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985-2015 period: return position standards and tax shelter opinions. William Patton (USC Law UCLA Medicine), Admitting Law Graduates By Bar Examination Versus By a Diploma Privilege: A Comparison of Consumer Protection:State bar associations for decades have justified increasing the rigorousness of their bar examinations as a necessary measure for assuring consumer protection. However, no state has provided data based empirical evidence that increasing the difficulty of a bar examination has a direct correlation with increasing consumer protection (decreasing attorney discipline based upon incompetency and/or ethical violations). This study of the Wisconsin State Bar disciplinary system demonstrates that there is little difference in the protection of the public between admitting law students to the practice of law by a diploma privilege versus requiring passage of a bar examination. Rebecca Kysar (Fordham), Unravelling the Tax Treaty, 104 Minn. L. Rev. 1755 (2020) (reviewed by David Elkins (Netanya) here):Coordination among nations over the taxation of international transactions rests on a network of some 2,000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances, taxpayer abuse, and shifting political tides. In the academic literature, however, scrutiny of tax treaties is largely confined to the albeit important question of whether tax treaties are beneficial for developing countries. Surprisingly little consideration has been paid to whether developed countries, like the United States, should continue to sign tax treaties with one another, and no formal revenue or economic analyses of the treaties has been undertaken by the United States government. In fact, little evidence or theory exists to support entrance into tax treaties by the United States, and examination of investment flows indicates the treaties may even lose U.S. revenues. Problematically, the treaties also thwart reforms of the antiquated and broken international tax system. The trajectory of the recent U.S. tax legislation illustrates this phenomenon. Los Angeles Times, Controversy Over USC Professor’s Use of Chinese Word That Sounds Like Racial Slur in English:A business professor at USC is no longer teaching his communications course after Black students complained that a Chinese-language example he used during class sounded like a racial slur and harmed their mental health.Marshall School of Business professor Greg Patton was giving a Zoom lesson in his “Communication for Management” class on Aug. 20. The course, a three-week intensive, is part of the core requirements for first-year master’s of business administration students.Patton’s resume describes him as “an expert in communication, interpersonal and leadership effectiveness” who has taught and led programs in the Pacific Rim for more than 20 years.That day’s lesson focused on building confidence and improving presentation skills, according to a class syllabus. When Patton, who is white, began discussing the use of filler words like “um” and “er” in speech, he offered an international example.“Like in China the common word is ‘that’ — ‘that, that, that, that,’” he said, according to video recordings of the class circulated on social media. “So in China it might be ‘nèi ge’ — ‘nèi ge, nèi ge, nèi ge.’ So there’s different words that you’ll hear in different countries, but they’re vocal disfluencies.”Patton was referring to 那个，which in Mandarin is commonly pronounced nèi ge (NAY-guh) or nà ge (NAH-guh). He was using the former pronunciation.To some students, the word sounded like the N-word in English. The next day a group of Black master’s candidates in the class of 2022 wrote a letter to Marshall Dean Geoffrey Garrett. ... The students said their mental health had been affected and they were unable to focus on their studies. ... News4Jax, Professors Sue Florida Coastal School of Law Over ‘Breach of Contract’:Two law professors are suing Florida Coastal School of Law in a complaint that accuses the for-profit school’s owners of putting their own interests ahead of the school’s.The four-count lawsuit was filed July 17 in Duval County by the law firm of Morgan Morgan on behalf of law professors Benjamin Priester and Jennifer Reiber. The professors, who have taught at the school for over a decade each, are seeking more than $30,000 in damages and a jury trial.Among other things, the suit accuses Florida Coastal School of Law and its ownership of breach of contract by unilaterally cutting employees’ agreed upon salaries to offset budget shortfalls. It says the professors, who would not have kept working for the school if their pay wasn’t misrepresented, are owed unpaid wages. Wall Street Journal op-ed: A First Step Toward Loving Our Enemies, by John Danforth (Episcopal priest; former U.S. Senator (R-MO)) Matt Malone (Jesuit priest; Editor in Chief, America Magazine: The Jesuit Review):[A] growing number of Americans regard their political opponents not as fellow citizens with whom they disagree but as enemies; as politically, socially and even morally irredeemable. Millions of Americans consume news in echo chambers, while countless numbers have lost friends or even turned away from family over political disagreements.This tendency to divide the world between us and them has come even to American churches, where righteous advocacy of social justice can come across as self-righteous scolding of individuals. Christians have a religious duty to champion the cause of justice. But as the prophet Micah teaches, they also have the duty to walk humbly with God and with their neighbors, especially when tempted to think of themselves as the swords of divine judgment.Ultimately, everyone bears responsibility for polarization. This might seem like unwelcome news, but it’s the opposite. As long as the cause of the problem is someone else, then nothing can be done. But those who acknowledge how they contribute to the problem also can begin to imagine how they can create a better culture. In this world Americans would see each other as neighbors and treat each other as friends, even and especially when they disagree deeply.We are priests from different Christian churches. We belong to different generations and have worked for different political parties. Yet we share a love of country that transcends those differences. Above all, we share a faith in God, who alone has the power to separate the righteous from the sinners.This may sound fantastical or naively optimistic, but a common element in the traditions of both our churches may provide a practical model for reducing polarization. It is called the exchange of peace, a simple act of reconciliation before beginning the most sacred part of the liturgy. We turn to one another and say: “The peace of the Lord be always with you.” This practice should go beyond our sanctuaries. Imagine if Americans began to exchange the peace with their political opponents. In a secular setting they could simply say, “I am your friend.”This would transform the tone of politics. Treating opponents as friends would be more than a nicety. By showing that we are disposed to listen as well as speak, it would make possible real dialogue. ... Practicing Faith:At Pepperdine, we believe faith is to be practiced. We never arrive at or happen upon a perfected faith, but we practice faith day by day. Spiritual practices serve as a rhythm of life by which we encounter God. You might think of spiritual practices like the mosaic elements on a stained glass window. While we encounter each one separately, as a whole they help us become people with spiritual resilience, equipped to participate in God s work in the world.Practicing your faith is not an assignment. Not a to-do list. Not a reason to feel shame or beat yourself up for not doing it right. In fact, there is no right or best way to practice. Practicing faith is, well, practice. We pray this resource renews your soul and draws you into the active life of God.Welcome, beloved.Sara Barton, University Chaplain This week s list of the Top 5 Recent Tax Paper Downloads is the same as last week s list, with some minor reshuffling of the order within the Top 5:[479 Downloads] Policy Options for Taxing the Rich, by Lily Batchelder (NYU) David Kamin (NYU)[444 Downloads] Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals, by Kimberly Clausing (UCLA), Emmanuel Saez (UC-Berkeley) Gabriel Zucman (UC-Berkeley),[406 Downloads] Rethinking Tax for the Digital Economy After COVID-19, by Tarcisio Diniz Magalhaes (McGill) Allison Christians (McGill) (reviewed by Young Ran (Christine) Kim (Utah) here)[237 Downloads] The Effect of U.S. Tax Reform on the Tax Burdens of U.S. Domestic and Multinational Corporations, by Scott Dyreng (Duke), Fabio Gaertner (Wisconsin), Jeffrey Hoopes (North Carolina) Mary Vernon (Wisconsin)[234 Downloads] What Are Minimum Taxes, and Why Might One Favor or Disfavor Them?, by Daniel Shaviro (NYU) American Lawyer, Jobs Report: US Economy Adds 1.4 Million Jobs, Legal Adds ... Nothing:Zero. Zip. Zilch. Nada. While the U.S. economy overall added 1.4 million jobs in August, buoyed by almost 250,000 temporary census workers that will be laid off at month’s end, the legal vertical added exactly zero jobs, according to the Bureau of Labor Statistics’ monthly jobs report. While not counted in this month’s report, a spat of layoffs in recent days suggests that a flat month of job growth might be the best the industry can expect for some time. The number of jobs in the legal sector, composed of attorneys, paralegals, legal secretaries and others who make their living in the law, sat at 1,107,600, the same number as July and about 45,000 jobs lower than the same point in 2019. Tallahassee Democrat, Attorneys for Magbanua Continue Pursuit of Pretrial Release in Dan Markel Murder Case:The attorneys for Dan Markel murder suspect Katherine Magbanua are again making their case to have their client released from jail on bond.They cite the October mistrial in which a jury did not convict her on charges of first-degree murder, conspiracy to commit murder or solicitation to commit first-degree murder, a lesser burden than the one required to consider whether bond is appropriate.In the 31-page filing earlier this week, Magbanua’s attorneys Chris DeCoste and Tara Kawass ask that she be released from the Leon County Detention Facility while she awaits a trial date, which is not likely until 2021. A case management conference has been set for December. ... The state’s case here rested ‘almost entirely’ on the statement of Mr. Rivera, Magbanua s attorneys wrote. It was the only piece of evidence directly implicating Ms. Magbanua… (and was) also substantially contradictory to other evidence presented at trial. Their client was offered immunity in exchange for testimony against the Adelson family, which she did not give, even just days before the trial when she met with Assistant State Attorney Georgia Cappleman and State Attorney’s Office Investigator Jason Newlin. In television interviews, Cappleman alluded to the role Magbanua could play in her own release from jail. Daniel Halliday (Melbourne) Miranda Stewart (Melbourne), On Dynastic Inequality, in The Oxford Handbook of Intergenerational Ethics (Stephen Gardiner (Washington) ed., Oxford University Press 2020):This chapter investigates whether the replication of inequality is, other things being equal, morally objectionable in ways not applicable to inequality that remains confined to a single generation or ‘birth cohort’. The focus is both theoretical and practical. The chapter considers the philosophical foundations that might lie behind an objection to dynastic inequality, negotiating the diversity of egalitarian views supporting this position, and the complexity around the causal mechanisms at work in cases where inequality has a dynastic tendency. It then discusses the policy reforms that might target inequalities that replicate old distributive trends while leaving newly produced trends more intact, with a focus on tax policy. Current tax rules in most developed economies do not make a distinction between new and old influences on the material distribution. Accordingly, it is likely that the tax reforms implied could be quite extensive. ... This week, Michelle Layser (Illinois) reviews Darien Shanske (UC Davis), How the States Can Tax Shifted Corporate Profits: An Application of Strategic Conformity, 93 S. Cal. L. Rev. ___ (2020).A dangerous consequence of the economic disruptions caused by the COVID-19 pandemic has been steep declines in state and local tax revenue. As is often the case during crisis periods, these revenue shortfalls have arrived at precisely the time when many residents are in dire need of a social safety net (see here and here). Under the circumstances, Professor Darien Shanske observes that “it would be reasonable for states to contemplate inefficient—and even regressive—revenue-raising measures.” In a new Article, Shanske cautions against such an approach and offers what he says is a more efficient, more equitable alternative that is also relatively easy to administer. Chronicle of Higher Education, Will Covid-19 Revive Faculty Power?:Across the country, faculty members are campaigning to be meaningfully heard by the powers that be at their institutions — big and small, elite and open access. They’re laying the bricks of new structures of faculty and staff governance after decades of erosion. In some ways, the pandemic has become this “great leveler,” says Jennifer Fredette, an associate professor of political science at Ohio University. Tenured professors are feeling the insecurity that contingent faculty members have long experienced. A raw deal has reached their doorstep, she says, and they’re now saying, “Nobody deserves this.”Fredette finds this renewed interest in faculty organizing — especially that it’s happening across the country — energizing. But, she’s quick to add, it’s difficult work.The pandemic, with the financial pummeling that accompanies it, is a mighty force, perhaps impossible to combat. By the beginning of July, more than 51,000 higher-education employees had already been furloughed, laid off, or had their contracts not renewed, according to Chronicle reporting. Some boards and presidents have acted unilaterally, with little incentive not to. Decades of adjunctification have already thinned the ranks of full-time college instructors and weakened the collective power of the teaching staff — perhaps past a point of no return. Ari D. Glogower (Ohio State) David Kamin (NYU), The Progressivity Ratchet, 104 Minn. L. Rev. 1499 (2020) (reviewed by Sloan Speck (Colorado) here):This Article evaluates the consequences of the 2017 tax legislation for the future of progressive tax reform. The 2017 tax legislation introduced significant preferences for business income, including a cut in the corporate rate and the new Section 199A deduction for “pass-through” income. Many commentators criticized the design of the pass-through deduction and the legislation’s generally regressive effects but tacitly accepted or applauded the corporate rate cut as a desirable response to international pressures. These changes also prompted renewed calls for progressive tax reforms, to increase the share of tax revenues raised from the wealthy. For one example, in early 2019, recently elected Representative Alexandria Ocasio-Cortez proposed a 70% top individual rate on taxpayers with the highest incomes. Robert Steinbuch (Arkansas-Little Rock) Richard J. Peltz-Steele (UMass), Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26 Tex. Hisp. J.L. Pol y 57 (2020):The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic that we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education. The College Fix, Black Law Students Demand Classroom Diversity Monitors to Report ‘Questionable Conduct’:The Black Law Students Association at the University of San Diego School of Law is calling for campus administrators to train and post diversity officers in classrooms to observe and report bias and other “disparaging” actions against students of color.According to an open letter from the USD Black Law Students Association, these diversity officers would be charged with watching classrooms and reporting incidents or conduct they consider questionable or discriminatory.“As Black law students we are privileged with the opportunity to pursue a legal education and seek membership to the legal profession, however, we are not immune to the oppression that is inextricably linked to our Blackness,” the group states in their six-page letter to USD law faculty and students. Maren N. Eisenmesser (J.D. 2020, Brooklyn), Note, Discounts for Fractional Ownership of Real Property Are Accepted, So Why Haven t the IRS and Courts Accepted Discounts for Fractional Ownership of Artwork?, 14 Brook. J. Corp. Fin. Com. L. 75 (2019):In 2014, the Fifth Circuit held that Mr. Elkins’s estate was entitled to apply a fractional ownership discount to determine the taxable value of the undivided interest in artwork. The estate received a $14 million refund plus interest. The Internal Revenue Code directs taxpayers to value the items in a gross estate at their fair market value. Fractional ownership adds another problem in the valuation of an estate’s interest property. In general, courts have accepted fractional ownership discounts for real property. In contrast, courts have been reluctant to apply a fractional ownership discount for artwork. New York Times op-ed: You Want Progressive Policies? You Need Progressive Taxes, by Kitty Richards (Roosevelt Institute) Joseph E. Stiglitz (Columbia):As the coronavirus pandemic — and Congress’s undersize response — wreaks havoc throughout the economy, tax receipts are cratering. This means that state and local governments are facing enormous revenue shortfalls at the exact time they are dealing with large additional demands. So far, states and localities have responded by slashing spending and jobs, with1.5 million public-sector workers laid offby the end of June.The federal government, which unlike most states does not have to balance its budget every year, could solve the problem tomorrow by providing fiscal relief to states and localities, like the $1 trillion provided by the HEROES Act that passed the House in May.But regardless of whether Congress acts,states and localities can bolster their local economies and support their residents by raising taxes on those who have not been hard hit by the recession. This is not only the right thing to do from a humanitarian standpoint, it is sound economics. ... New York Times, Trump Wins Another Delay in Turning Over Tax Returns:President Trump on Tuesday won another delay in the long-running legal battle over whether he must turn over eight years of tax returns to the Manhattan district attorney’s office, which subpoenaed them a year ago in a criminal investigation focused on Mr. Trump, his business and his associates.In a brief order, a federal appeals court in New York said it would temporarily block a grand jury subpoena issued by the district attorney, Cyrus R. Vance Jr., a Democrat, while it considers Mr. Trump’s arguments that the request was “wildly overbroad” and politically motivated.The ruling is the latest development in the president’s aggressive effort to keep his tax returns and other financial records out of the hands of prosecutors, Congress and others — a dispute that has reached the United States Supreme Court once and is likely to end up there again.With the election looming, the ruling means that as a practical matter the prosecutors, even if they are ultimately successful, will not receive Mr. Trump’s records for at least another month, and perhaps longer if he seeks a review in the Supreme Court. Inside Higher Ed, University of Iowa Students and Faculty Stage Sickout Protesting Campus Reopening Plan:Faculty, staff and students at the University of Iowa staged a “sickout” Wednesday, the latest in a series of escalating calls to end face-to-face instruction during the pandemic. ...Megan Knight, associate professor of instruction in rhetoric, participated in the sickout, including via this email autoreply:I am away from my desk in recognition of today s “sick-out” event. This event is intended to communicate to the UI administration the urgent need for all classes to be moved to an online format immediately, to avoid furthering the public health crisis currently unfolding in Iowa City.Knight said in an interview that there is “really a lack of leadership here and real confusion on my part as to, ‘OK, who’s in charge here? Who’s going to make decisions based on science and what we know about public health?’ It really feels like we’re at sea.”The university publishes only self-reported positive COVID-19 tests from faculty, staff and students three times per week. On Monday, the most recent day for which numbers were available, there were 220 new student cases, for a total of 1,142 since the beginning of the semester on Aug. 18. There were three new employee cases, bringing the total to 16 this term.As of Wednesday, Iowa City -- where the university is located -- was the fourth-worst U.S. metro hot spot for new coronavirus cases, relative to population, over the last two weeks, according to this New York Times database. (Ames, Iowa, home to Iowa State University, was the second hottest spot.)Unlike many states, Iowa did not issue a stay-at-home order during the pandemic and has not issued a mask mandate. Iowa Gazette, University of Iowa leadership Condemns Faculty Planned Sickout: NCBE, July 2020 MBE Mean Score Increases:The national Multistate Bar Examination (MBE) mean scaled score for July 2020 was 146.1, an increase of about 5 points from the July 2019 mean of 141.1. In July 2020 5,678 examinees in 23 jurisdictions sat for the MBE. The small number of examinees and jurisdictions in July 2020 (compared to the 45,334 examinees in 54 jurisdictions who tested in July 2019) was a result of the use of alternative test dates in many jurisdictions in response to the COVID-19 pandemic. Heather M. Field (UC-Hastings), Tax MACs: A Study of M A Termination Rights Triggered by Material Adverse Changes in Tax Law, 73 Tax Law. 823 (2020):A “Tax MAC” provision—one that triggers termination or other rights upon a material adverse change in tax law—can be crucial to a business deal if a change in tax law would change a party’s interest in consummating the deal, particularly at the specified price and on the articulated terms. Tax MAC provisions may be particularly important when taxpayers make business decisions in a political climate like today’s, when tax laws could change again, perhaps dramatically, if control of Congress and the White House changes. Yet little has been written about Tax MAC provisions. In response, I studied Tax MAC provisions included in publicly filed M A agreements from the past five years, focusing on provisions that could trigger termination of the deal if tax laws change adversely. This Article details the findings of that study. Chronicle of Higher Education op-ed: How Racist Are Universities, Really?, by Randall Kennedy (Harvard):It is no surprise that universities have become targets of the activism erupting in the wake of the killing of George Floyd. University police forces have been implicated in racist malfeasance. Universities oversee labor forces which reflect the class and racial divisions partitioning society at large. Universities are the site of cultural battles over iconography (Calhoun College at Yale, the Woodrow Wilson School at Princeton, Washington and Lee), and the propriety of taking race into account in admissions. At a time when racial reckonings have visited the NFL and Nascar, The New York Times and Vogue, Minneapolis and Mississippi, it was inevitable that they would visit campuses, too. ...These and similar protests are part of an international eruption of outrage against racism and an insistence that positive change — real change — be pursued immediately. That dissent is splendid in many respects, displaying creativity, persistence, and bravery in demanding the redress of long-neglected racial wrongs. After all, according to virtually every indicator of well-being imaginable — life expectancy, wealth, income, access to education and health care, risk of victimization by violent criminality, likelihood of being arrested or incarcerated — a distinct, adverse gap separates Blacks from whites. The dissidents and their allies have refused to allow business to proceed as usual. They have pushed racial inequity to the front of popular consciousness. They have crammed into a couple of months more public education about matters of race than has taken place in years. They have been the heroes of the George Floyd moment.But being on the side of anti-racism is no inoculation against error. An allegation of systemic racism leveled against a university is a serious charge. If the allegation is substantiated, it ought to occasion protest and rectification commensurate with the wrong. If an allegation is flimsy or baseless, however, it ought to be recognized as such. Engaging in the urgent work of anti-racist activism should entail avoidance of mistaken charges that cause wrongful injury, exacerbate confusion, and sow distrust that ultimately weakens the struggle.One might wonder about the need to voice such an obvious observation. The fact is that this moment of laudable protest has been shadowed by a rise in complacency and opportunism. Some charges of racism are simply untenable. Some complainants are careless about fact-finding and analysis. And some propose coercive policies that would disastrously inhibit academic freedom. ...The evasiveness, if not mendacity, of administrators is a large part of the problem. They often pander to protestors, issuing faux mea culpas that any but the most gullible observers recognize as mere public relations ruses aimed at pacification. ... Heather Field (UC-Hastings) presents Allocating Tax Transition Risk online at UC-Irvine today as part of its Tax Policy Colloquium Series hosted by Joshua Blank, Victor Fleischer, and Omri Marian:The enactment of sweeping tax changes in late 2017 by Republicans without any bipartisan support and the calls by Democrats to reverse those changes (and make more) when they regain political power create an unstable tax landscape that is challenging for taxpayers who are trying to make economic decisions that are affected by tax law. One strategy for grappling with this instability and uncertainty is for taxpayers to use contracts to allocate the economic benefits and burdens of a possible future tax law change among themselves. The literature says almost nothing about this contract-based strategy for managing tax transition risk. This gap is surprising because (a) the leading view on tax transition policy argues that taxpayers should account for the risk of tax law changes the same way they take other market risks into account when making decisions, and (b) private contracting is a well-accepted method for addressing market risks. To fill this gap, this Article uses four case studies—involving derivatives, credit agreements, municipal bonds, and merger agreements—to demonstrate that taxpayers are using tax transition risk-shifting contracts and to illustrate how this risk-management strategy varies. Hayes Holderness (Richmond), Insidious Regulatory Taxes:Courts have long held the utmost respect for tax laws, reflecting a recognition that the revenue-raising function of taxes allows legislators to distribute the burden of funding the government as they see fit. Unelected judges, the sentiment goes, should thus be hesitant to trifle with tax laws. However, taxes are also used to regulate individual behavior, but in such cases, rather than protect individuals’ rights as they would in the case of direct regulations, courts continue to defer to the institutional interests in taxation. The problems with this approach are highlighted by state-level controlled substance taxes, which impose taxes on individuals engaging in the criminal possession and sale of illegal drugs without providing those individuals the protections of the criminal law. Following up on my previous post, COVID-19 Is Disproportionately Impacting Research By Women Faculty: Inside Higher Ed, Women s Journal Submissions Continue to Fall During COVID-19:Female academics’ research productivity dropped off at the beginning of the COVID-19 outbreak, which many experts have attributed to women’s outsize role in caregiving even before the pandemic. Some also blame women’s disproportionate service roles and take-up of emotional labor.Months later, journal submission rates for women have improved in some cases. But the general outlook for women remains poor, with K-12 schools still closed in many communities, childcare options and other services still greatly reduced, and a bumpy teaching semester ahead.“We are seeing some recent improvements, though I worry that those will drop precipitously as the semester begins,” Cassidy Sugimoto, professor of informatics at Indiana University at Bloomington and a co-author of an ongoing study of article submissions to preprint databases, said as her own two daughters did their remote schoolwork in the next room. “Issues such as disproportionate teaching and service obligations, coupled with the move to online schooling for children, are likely to take a toll on women in the upcoming year.”Sugimoto and her co-authors published their initial COVID-19-era preprint analysis in Nature Index in May. Poets Quants, Should MBA Programs Make The GMAT GRE Optional?:The overreliance on standardized test scores in MBA admission decisions– partly a result of their use in U.S. News rankings–not only puts at a disadvantage students from lower-income backgrounds, first-generation college applicants, and some international applicants who have learned English as a second language; is it blatantly unfair. At many schools, moreover, admission officials are literally buying high GMAT candidates, offering them the lion’s share of scholarship funds to bump up a class average for ranking purposes. So more financial support is going to people who may have less a need for it, merely because they have 700-plus scores. ...[T]his coming admissions cycle, the University of Virginia’s Darden School of Business is making the GMAT and the GRE test-optional. Darden made the announcement in early June. In less than a month, well before the first application deadline of Sept. 2, some 72 candidates submitted applications with requests to waive the tests. “The evidence is so compelling that we can waive the standardized test,” says Darden admissions chief Dawna Clarke, who admitted more than 50 MBA applicants last year without a GMAT or GRE when the school, among several other elite MBA programs, added more flexibility to its admissions procedures when test centers closed due to the pandemic. Following up on my previous posts (links below): UF Law Students Receive Nearly $1 Million in Financial Support During Pandemic:More than 280 University of Florida Levin College of Law students received financial support from the law school this summer, totaling nearly $1 million. ...UF Law applied for funding from AccessLex, which generously provided a $25,000 grant to the law school for emergency student support. UF Law Dean Laura Rosenbury immediately contributed an additional $25,000 from her personal funds, and UF Law Tax Professor Neil Buchanan followed Dean Rosenbury’s contribution with a gift of $25,001. Several alumni also contributed to the emergency fund to help reach the $100,000 goal.“The pandemic created additional financial stress for many of our students, as they traveled to care for sick loved ones, lost part-time jobs, or assisted family members who had lost their jobs,” Dean Rosenbury said. “I am glad we were able to provide some relief for students incurring these unexpected expenses.”Dean Rosenbury has also contributed an additional $75,000 to support student scholarships at UF Law. Her most recent gift of $25,000 supported the HBCU Pathway to Law Endowed Scholarship Fund, which provides full-tuition scholarships to graduates of HBCUs seeking to enroll at UF Law. St. Thomas University School of Law invites applications for an entry-level tenure-track position beginning in Fall 2021. St. Thomas University School of Law is located in Florida’s beautiful, cosmopolitan Miami area and is ranked as one of the most diverse, student-oriented law schools in the nation. STU LAW has earned a national reputation for its mission of inclusion and opportunity for students from historically underrepresented groups and for its programs in immigration law, tax law, business law, trial advocacy, human trafficking, and intercultural human rights. We encourage potential applicants to visit our website at www.stu.edu/law to learn more about our law school, our community, and our programs.We welcome applications from candidates interested in the areas of Tax, Health Law, and the traditional first-year courses, although we will consider other doctrinal areas depending on our institutional needs. STU LAW encourages applications from women and minority candidates and from all other persons who would add to the diversity of our academic community. Candidates must have a Juris Doctorate from an ABA-accredited law school, or equivalent academic doctorate(s), degrees, and fellowships, and a demonstrated commitment to outstanding teaching, scholarship, and service. Applicants should send a cover letter indicating teaching and scholarly interests, a curriculum vitae, and a list of at least three professional references to the Faculty Recruitment Committee Chair, Professor Jay Silver, by email at jsilver@stu.edu. Samir Nurmohamed (University of Pennsylvania, Wharton School), The Underdog Effect: When Low Expectations Increase Performance:Existing theory and research has documented the benefits of facing high expectations and the perils of encountering low expectations. This paper examines the performance effects of underdog expectations, defined as individuals’ perceptions that others view them as unlikely to succeed. Integrating theory and research on self-enhancement with psychological reactance, I predict that underdog expectations have the potential to boost performance through the desire to prove others wrong when others’ credibility is in question.Studies 1 and 2 provide support for the positive relationship between underdog expectations and performance. Study 3 reveals support for the positive effect of underdog expectations on performance through the desire to prove others wrong. Study 4 demonstrates that these effects depend on the perceived credibility of observers: when observers’ expectations are seen as more credible, underdog expectations undermine performance (consistent with the Golem effect and self-fulfilling prophecy), but when observers’ expectations are viewed as less credible, underdog expectations boost performance (demonstrating the underdog effect). Clinton Wallace (South Carolina) presents Democratic Justice in Tax Policymaking virtually at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:The Tax Cuts and Jobs Act was the most significant tax law in more than three decades, but the strategy for getting it enacted included a variety of maneuvers to avoid public scrutiny. As a result, many taxpayers did not know how they would be affected until they filed their own tax returns more than a year later. This Article identifies this lack of transparency as part of a persistent pathology in tax policy making of avoiding and constraining democratic forces. To this end, various scholars and policy makers have sought to channel tax policy making away from democratic input and towards prescribed outcomes. This Article argues that these moves are grounded in strands of public choice theory that are expressly critical of democratic decision making.This Article proposes four reforms to tax lawmaking in Congress to make resulting tax laws more democratically legitimate. One proposal, for example, is to require Congress to consider (and publicize) precisely how a proposed change in tax law is expected to affect different example taxpayers, including taxpayers from each Congressional District. This would allow actual taxpayers observing the policy making process to anticipate their treatment under a proposed law, and in turn demand greater responsiveness to their real interests from their representatives. Other proposals build on this approach, calling for drastically more transparency and a radical—but entirely achievable—reworking of the types of analysis produced and publicized in the federal tax legislative process. Darien Shanske (UC-Davis), How the States Can Tax Shifted Corporate Profits: An Application of Strategic Conformity, 93 S. Cal. L. Rev. ___ (2020):The combination of pandemic, recession and federal dysfunction has put severe fiscal strain on the states. Given the scale of the crisis and the essential nature of the services now being cut, it would be reasonable for states to contemplate inefficient — and even regressive — revenue-raising measures. Yet surely they should not start with such measures. They should start with making the efficient and progressive improvements to their revenue systems that they should have made anyway.Improving the taxation of the profits of multinational corporations — the topic of this Article — represents a reform that would be efficient, progressive and relatively straightforward to administer. Not only would such a reform thus represent good tax policy, but it would raise significant revenue. And, if substantial revenue, efficiency, progressivity and administrability are not sufficiently motivating, then I will also add that it would be particularly appropriate to make these changes during the pandemic so as to raise revenue from those best able to pay during the current crisis. Jurist op-ed: Act Now, Avert More Bar Exam Chaos Later, by Nicolas W. Allard (Former Dean, Brooklyn):Now is the time for many state authorities to act decisively to avert more pandemic driven bar exam chaos. Without prompt action more testing failures, disruption, and delays are almost certain.The evidence is in. The case is open and shut. Conventional in-person bar exams cannot and need not be held, at least so long as the COVID-19 pandemic makes them impractical and unsafe. Many states canceled scheduled in-person exams. Then at its August annual meeting, the American Bar Association passed a resolution that going forward this was the responsible thing to do given the scope and persistence of the global health emergency. Now what?Overwhelming and mounting evidence indicates that simply expecting all candidates to take a remote online test is not yet technically feasible. It is also clear that postponements of licensing and requiring candidates to take the exam at home impose unfair burdens on many aspiring new lawyers, especially those with student debt and no jobs. Hardest hit are the underprivileged and disabled whose communities are underrepresented despite years of effort to make the profession more diverse. Anticipating these problems some states like New York acknowledged that the numerous challenges posed by remote exams administered by the National Conference of Bar Examiners must be addressed. ...Michigan State, North Carolina, Notre Dame Bail On In-Person Classes (Aug. 19, 2020)North Carolina, Notre Dame Are Just The Beginning: COVID-19 Decimates Fall On-Campus Plans As South Bend Student Newspaper Pleads, Don t Make Us Write Obituaries (Aug. 24, 2020)Roger P. Alford (Law), Susan D. Collins (Political Science), Kirk Doran (Economics), Francesca Murphy (Theology) Jeffrey A. Pojanowski (Law), Recalculating the Risks:As professors at Notre Dame, we have closely watched the debates over whether the University should send students home for the semester. A new danger stalks the world, and it is not clear when we will have it under control. Nevertheless, we think the right decision is to have students learn and live together in person. We recognize there are some risks, especially to faculty and staff, but we do not think they are high enough to deprive students of the opportunities we were fortunate enough to enjoy at their age. Our society has already made young people sacrifice so much during the pandemic. Based on our understanding of the risks and present situation, we think shuttering the campus indefinitely and banishing students to isolated online learning would be unjust. ...Assessing the proper response to this new pandemic is not easy, but we think our society’s approach has unfairly discounted the costs we are imposing on the young and those who do not have the luxury of working from home. In that respect, Notre Dame’s decision to reopen with sensible precautions was admirable, courageous and reflects a reasonable balancing of the risks. As of now, we have no reason to believe that decision was wrong and until we do, we encourage the University administration to honor its commitment to the students. As long as we can, we will be there — in person — because we love being here and we believe we owe it to our students and the University community.Press Release, Notre Dame to Begin Gradual Resumption Of In-Person Classes Sept. 2: Wayne State University Law School is seeking to fill up to three tenure-track or tenured faculty positions. We encourage applications from candidates who will enhance the diversity of our faculty and whose scholarship engages with questions of social justice.Although we welcome applications from candidates in all fields, we have particular interest in the following areas: (i) race and the law and/or critical race theory, (ii) tax or a combination of tax and business, and (iii) criminal law and criminal procedure.One of the three positions we seek to fill is the Coleman A. Young Foundation Endowed Chair of Urban Affairs. This Chair will be held jointly in the Department of Urban Studies and Planning in the College of Liberal Arts and Sciences and the Law School. The position provides a unique opportunity to promote high-impact activities and research on matters central to modern urban affairs. The holder of the chair will occupy a highly visible and influential position in the university, the metropolitan Detroit area and the broader community by playing a leadership role on issues of urban affairs in academia. The minimum qualifications for the Young Chair are: (a) an earned doctorate and/or a JD; (b) a substantial record of published work based either on research or reflections on practice; or (c) career experience in related government or foundation management, urban policy, health policy, social justice policy, or a related field; and (d) a record of direct involvement in public service achievement. Following up on my previous post, La Verne Law School Seeks To Terminate Gadfly Tenured Prof For Threatening To Assassinate A Colleague: Fire, Diane Klein Sentenced to ‘Academic Death Penalty’ at University of La Verne Despite Unanimous Faculty Recommendation to Reinstate Her. Klein Vows Lawsuit.:The Board of Trustees at University of La Verne told law professor Diane Klein this week that its decision to strip her of tenure is final. In doing so, ULV ignores both the unanimous vote of the university’s Promotion and Tenure Committee to reinstate her and the school’s own policies, which guarantee Klein a meaningful appeal.“All the substantive matters being alleged against me are flimsy and pretextual,” Klein tells FIRE. “At worst, minor infractions of a sort committed routinely throughout the university without significant consequences.”“The real reason for all of this is my involvement in faculty governance and, ironically, the protection of tenure, especially at the College of Law.”Now, Klein says, she will sue to protect her rights. 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Emory Law Journal: Call for Submissions:Dear Scholars:We write to you in troubling times, yet we are hopeful for a brighter future ahead. First, we hope that you are taking care of yourselves and your loved ones. Second, we want to announce that the Emory Law Journal is calling for essay submissions for our forthcoming Special Issue: Systemic Racism in the Law Anti-Racist Solutions. The Issue will be published in May 2021, with an accompanying remote symposium in March 2021.In the wake of numerous police shootings of unarmed Black men and women, the murder of protesters, and the lack of justice for many of the perpetrators, a statement from ELJ will no longer suffice; to be an anti-racist Journal, we must act. Therefore, this spring, we will use our platform to elevate scholarship that seeks to facilitate racial justice and dismantle white supremacy by publishing a Special Issue and holding a remote symposium.ELJ is looking for essays from 7,500 to 15,000 words that expose systemic racism in the law or propose anti-racist solutions to make the law more just. Emory’s Asa Griggs Candler Professor of Law Dorothy A. Brown will be writing the introduction to the Special Issue. We will accept abstracts as submissions, and if your essay is selected, you are not required to participate in the Symposium, but you will have a standing invitation to do so. We will accept essay submissions on a rolling basis. The deadlines for submission and publication are below:

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