Prosecutors have enormous discretion in the American criminal justice system, aided greatly by catchall provisions in statutes.
Congress often adopts broadly worded laws to catch a wide range of conduct, especially for white-collar crimes, and regularly tacks on a section to catch actions that might otherwise slip through the cracks.
Over the past few years, the Supreme Court has shown a conspicuous concern when the Justice Department seemed to push the envelope of what constitutes a crime in a way that could reach ostensibly innocent acts, or at least conduct that does not deserve the severe punishment meted out under federal law.
Last week, the justices agreed to review the conviction of Carlo J. Marinello II for obstructing the administration of the tax laws, presenting another opportunity to cut back on the scope of white-collar prosecutions under a catchall section.
Following up on Paul's follow up on Whittier Law School, my summer project has to do with the limits of artificial intelligence in the process of lawyering, and its impact on how and what we teach in law school. (The Savannah Law Review is holding a provocative symposium on September 15, 2017 entitled The Rise of the Automatons. The call for papers provoked me — see below.)
I want to connect three things here: (a) the role of "machine lawyering" referred to in the discussion about Whittier, (b) the essay by Jay Finkelstein on "skills training" particularly in transactional law to which I provided a link a couple days ago (plus the comments to the post), and (c) what I think about law schools of the future. The punch line is that I hope to reveal just how radical I am as a futurist on the last point, even if, as I descend into my own dotage, I probably don't have the energy to carry off the revolution.
Here's a teaser to get you past the break. Law school curricula, by and large, are the educational versions of the Winchester Mystery House. Sarah Winchester was the widow of the inventor of the Winchester repeating rifle. It's been disputed, but some say she believed that unless she kept building rooms onto her house in San Jose, California, she would not appease the ghosts that were haunting her. The result was a bizarre mansion, built haphazardly with no planning at all, containing doors and stairs that go nowhere, windows opening into other rooms, and stairs with irregular risers. That is an apt metaphor for standard legal education, at least beyond the first year. So if we were to redesign it from the ground up, in light of the possibility of robot lawyers, the cry for skills training, and the dilemma of law schools like Whittier, what would we do?
Paul L. Caron (Dean, Pepperdine) & Kellye Y. Testy (President & CEO, LSAC; Former Dean, University of Washington), Corrected Data: The Quantity and Quality of Law School Applicants:
We spent some time together at the recent ABA Deans Workshop in Washington, D.C. and discussed recent blog posts Paul had written about the declining quantity and quality of law school applicants. These posts have attracted quite a bit of attention in the blogosphere and mainstream media. Unfortunately, Paul relied on incomplete data on the Internet and conflated some of the reporting categories rather than using official LSAC data and categorization. We want to set the record straight in this blog post and also announce a new initiative to ensure that accurate legal education data is more easily accessible by the law school community and the public.
The trend Paul reported — the decline in the number of law school applicants and the disproportionately greater decline in the higher LSAT score band — is correct. But the rate of decline in the higher LSAT score band is less than Paul reported. The highest scoring band has moved by 3%, from 29% to 26%, between 2010-11 and 2016-17. The larger change, as we have all understood for some time, is in the overall number of applicants to law schools. Here are the official LSAC data:
The University of North Carolina Kenan-Flagler School of Business has issued a call for papers for its Twenty-First Annual Tax Symposium to be held April 21-22, 2018. The symposium "is designed to bring together leading tax scholars from economics, accounting, finance, law, political science, and related fields." The deadline for the call for papers is December 15, 2017:
Howard University has found a professor of law guilty of sexual harassment in relation to a 2015 test question involving Brazilian waxing. At first blush, it’s the kind of case that might anger even modest professors concerned about the rising tide of what’s been called campus illiberalism, or student calls for censorship of emotionally discomfiting speech.
But Reginald Robinson’s full question about a client who fell asleep during a wax and later alleged improper touching is rather graphic, with references to a “landing strip,” hairlessness from “belly button to buttocks" and more. Still, some free speech and academic freedom advocates are calling Howard’s response excessive: mandatory sensitivity training for Robinson, prior administrative review of his future test questions, classroom observation and a warning that any further violations of the university’s sexual harassment policies may result in termination.
Many televangelists in the United States preach the “prosperity gospel,” a doctrine which teaches that a religiously faithful person who continually donates money to church ministries can expect God to grant material improvements to their finances, health, and relationships. Americans who participate in prosperity gospel churches often donate thousands of dollars to these churches, despite their difficulty financing such large donations and the lack of the promised material improvement to their lives. Televangelists who preach the prosperity gospel secretly use these donations to finance their extravagant lifestyles, instead of using the funds to support the faithful masses who continue to donate. The U.S. Constitution’s Free Exercise Clause makes it difficult to regulate this religiously-based scheme.
A former law professor at Campbell University accused the school of racial discrimination on Facebook Live on Friday, saying African Americans don’t get tenure at Campbell.
Amos Jones made the assertions on Facebook and on a San Diego-based Christian radio broadcast. In a phone interview with The News & Observer on Friday, he said he was passed over for tenure and that his contract was not renewed. He left the school in May.
“They haven’t tenured a black in 11 years,” Jones said. “They cannot suddenly change that. Their record speaks for itself. ... They have a problem with hiring blacks and that will change, whether it’s me or not. They cannot continue to do that. The ABA expects more in their accreditation standards.”
Early on in my federal income tax class, I usually spend a bit of time with my students on the idea of the marginal tax rate. The point I stress to them is that even as you earn more money and your tax rate goes up, you still take home more money working an additional hour than not working that hour. I sometimes get the sense many of my students hadn’t understood that prior to my class.
Of course, there’s a caveat to this simple marginal tax story: the high marginal rates that result from cliff effects, particularly those in tax and spending programs aimed at addressing low-income Americans. While I usually talk about these cliff effects when discussing the Earned Income Tax Credit, Manjoj Viswanathan’s recent work reminds me that these income-based cliff effects are pervasive in the Code.
With the looming deadline on both the debt ceiling and the tax reconciliation bill (not to be confused with the ACHA reconciliation instructions), taxes and, hopefully, tax reform are moving to the top of the legislative agenda. The rhetoric of tax reform is heating up. Yesterday Paul Ryan tweeted:
Speaker Ryan is not the only member of GOP leadership discussing tax reform. News last week broke that Steve Bannon wants to raise the top bracket rate to a number that has ”a 4 in front of it”. So, the GOP continues to a least float the idea of substantive tax reform measures.
I don't want to get too carried away about tax reform. Despite my optimism for "reform season," others does not seem to have the same zeal. First there is no "plan" to discuss. Second, the House Appropriations Bill (which I wrote about at Surly) does not seem to be too keen on the chances of real reform measures. For example, the Appropriations Bill addresses estate tax regulations and ACA penalties. If the estate tax and the ACA are on the chopping block, then why worry about the measures in the Appropriations Bill?
Hamilton changed my life. I am not exaggerating when I say Lin Manuel-Miranda will be remembered as the William Shakespeare of our time.
Dean Caron first saw Hamilton last August. His daughter was beginning medical school, so he wanted to mark the moment by doing something special. Before seeing the play, his daughter had the soundtrack on repeat at home and in the car, so Caron was familiar with the lyrics. Not only does Caron believe that the play is “genius,” but he feels it’s a compelling musical metaphor for his tenure as dean. ...
Since 2004, when Internal Revenue Code (IRC) § 6306 was enacted as part of the American Jobs Creation Act, the IRS has had the statutory authority to outsource the collection of tax debt. The IRS exercised this authority in its prior private debt collection program from about 2006 to 2009, but the program was ended due to concerns about its return on investment. Congress amended the statute in 2015, and the IRS is now required to outsource collection of “inactive tax receivables.” Even with this Congressional mandate, as I explained in my 2016 Annual Report to Congress, and my recently released Fiscal Year 2018 Objectives Report to Congress, I believe the IRS has overstepped its statutory authority in implementing its current Private Debt Collection (PDC) initiative.
Whittier Law School in California is closing its doors for good next spring, and students and faculty are stunned. It is, after all, a shocking milestone — to be the first ever accredited law school to shut down. ...
Future lawyers, heed this. Whittier's demise could be a sign of things to come.
As several trends hit the law profession — fewer graduates, fewer jobs and the specter of growing automation in legal services — experts say more law schools could take a hit.
This paper explores the possibility that asset prices, especially those traded in large volume on public exchanges, might comply with specific physical laws of motion and probability. The paper first examines the basic dynamics of price displacements in financial markets and finds one can model this dynamic as a harmonic oscillator at local “slices” of elapsed time via a homogeneous coordinate system. Based on this finding, the paper theorizes that price displacements are constrained, meaning they have extreme values beyond which they cannot go for defined periods.
Pepperdine University School of Law seeks a Legal Research and Writing Visiting Professor for one year to teach for the 2017-2018 academic year. Applicants must have a J.D. from an ABA-accredited law school, have excellent academic credentials, be committed to teaching Legal Research and Writing, and support the goals and mission of the University. Applicants should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing. The position comes with a market-competitive salary, employment benefits, and the title of Assistant Visiting Professor of Legal Research and Writing.
For the second time in less than a year, the government of Prime Minister Narendra Modi is putting India through a revolution in the way the country does business.
In the fall, the government imposed one of the most radical monetary experiments ever, abruptly banning most of the country’s currency notes in an effort to stem corruption.
Now, it is instituting the country’s biggest tax overhaul since independence. On Saturday, a nationwide sales tax replaces the current hodgepodge of business taxes that vary from state to state and are seen as an impediment to growth. It is expected to unify in a single market 1.3 billion people spread over 29 states and seven union territories in India’s $2 trillion economy.
Federal investigators believe Caterpillar failed to submit numerous required export filings with the government in recent years, adding to questions facing the manufacturing giant, people familiar with the matter said.
The findings are preliminary, these people said, but offer an avenue for investigators to examine whether missing export submissions were part of a possible effort by the Peoria, Ill.-based maker of yellow bulldozers, mining trucks and other heavy equipment to avoid paying taxes.
What is the optimum mix (if there is to be a mix at all) in legal education as among theory, doctrine, and "skills"? And as to the "skills," who is going to teach them? And as to transactional skills, historically the least amenable to either simulation or clinic pedagogy, add "how" to the question of "who." Oh, and by the way, what do law professors have against getting practitioners actively involved in both the "who" and the "how"?
Congress is moving to prevent the Internal Revenue Service from enforcing one of the more unpopular provisions of the Affordable Care Act, which requires most Americans to have health insurance or pay a tax penalty.
The plan is separate from Republican efforts to repeal the health care law, and appears more likely to be adopted because it would be written into the annual spending bill for the Treasury and the IRS.
The front page of the New York Times this morning features a full-frontal assault on the low-income housing tax credit, the largest federal subsidy for the development of affordable housing. The charge against the credit is that the housing units it subsidizes are “disproportionately built in majority nonwhite communities,” which “means . . . that the federal government is essentially helping to maintain entrenched racial divides.” The first part of that claim is indisputably true: developments receiving low-income housing tax credits are, indeed, disproportionately located in communities with large nonwhite populations. But it does not therefore follow that the federal government, through the credit, is perpetuating residential segregation. ...
Like tuition and fees for undergraduate students, prices for graduate and professional study have risen rapidly over time. But average published prices tell us little about how much students actually pay. Despite high sticker prices, many students enrolled in research doctoral degree programs pay no tuition and fees because institutional grant aid, fellowships and tuition waivers cover these charges.
Master’s degree students and those in professional practice degree programs are much less likely to receive this assistance. In 2011–12, one-third of full-time graduate and professional degree students received grant aid from their institutions. This included 71 percent of research doctoral students, compared with 38 percent of master’s and 42 percent of professional degree students.
After an overview of how graduate school prices have changed over time, this brief provides detailed information on published and net prices for students continuing their education beyond a bachelor’s degree.
At this time of year I am frequently asked by our eager and bright eyed, newly admitted students, what to do over the summer to prepare for beginning the rigors of law school. This summer I am telling them to go see the hit movie Wonder Woman. After all, we already know they have what it takes to be fine lawyers and they are already well prepared. So they might as well have a little fun and watch a terrific flick about the triumph of good over evil.
It is actually the same advice I am giving our recent law school graduates as they prepare for the bar exam, the antiquated drawbridge controlling their entry to profession. Each year I advise them to treat their ritual bar review preparation like a job. That means "show up" every day between now and the test in late July, work hard for a good eight hours or maybe a little more, then every day take a break, take care of yourself, and make time to remind yourself you have a life. I recommend that they eat healthy, get plenty of sleep, exercise, take in the many wonders of Brooklyn and the rest of the Big Apple, enjoy their families and friends, maybe fall in love, and perhaps reflect on why they are working so hard to make a difference as lawyers.
The Internal Revenue Service is the agency of the federal government that most people love to hate. As a result, it has been used as a political punching bag on and off for almost as long as it has been in existence. The most recent trend in politicians demonstrating their contempt for the national tax collector — other than trying to get its commissioner impeached — is to starve the agency of funding.
However, despite major budget reductions — or perhaps partly because of them — the agency had been doing more with less over the past several years. One of the metrics the IRS uses to measure its performance is by comparing the amount of money the agency receives from Congress to the amount it collects in taxes due, expressing the result in the cost to collect $100.
In 2015 and 2016, that figure stood at $0.35 per $100, down from $0.53 as recently as 2010. It’s also the lowest cost per $100 collected that the agency has recorded since at least 1981, according to the IRS 2016 Data Book.
This is a bittersweet 4th of July holiday, as my father died ten years ago, and I find myself thinking of him more and more with each passing year. I often wonder what he would think of the man I have become over the past ten years. My eulogy at his funeral did not fully capture the towering presence he was in my life, and he remains so in death. My pastor Al Sturgeon passed along this wonderful song from Chet Atkins that beautifully captures my feelings:
Harvard Law School announced that it has established the Antonin Scalia Professorship of Law in recognition of the historic tenure of the late U.S. Supreme Court Justice Antonin Scalia ’60. The professorship is endowed by the Considine Family Foundation.
Forget what you may have learned about the Enlightenment: Modern Western democracy is nothing more than a byproduct of a series of tax disputes.
While the Greeks and Romans had democratic institutions, most trace the beginnings of modern Western democracy to the 1215 signing of the Magna Carta at Runnymede. King John, the third of England’s Angevin monarchs, claimed lands in France to which the French also laid claim. John attempted to win them back to no avail. Wars are expensive, and John sought to pay for them by taxing England’s nobles, who did not take kindly to his attentions. They revolted and eventually forced him to sign the Magna Carta—which, among other things, required the king to obtain consent before imposing certain taxes. In other words, the nobles extracted a say in government in return for the king’s right to tax them, conditioning that right upon the consent of the governed. Over time the English built upon these agreements, eventually leading to the democratic parliamentary system that exists today.
TaxProf Blog op-ed: Castigliola, Hardy, and Tax Planning for Self-Employment Taxes, by Walter Schwidetzky (Baltimore):
Recently, the Tax Court stuck to its Renkemeyer guns in the unpronounceable, but fairly important, case of Castigliola. (Admittedly, I am ill-positioned to complain about names that are difficult to pronounce). Contemporaneously, the Tax Court arguably held in Hardy, to my knowledge for the first time, that the interest of an owner in an entity other than a state-law limited partnership should be treated as a limited partnership interest. Some context:
In the remarks he prepared for his parting address to the University of Notre Dame class of 2017, Rev. John I. Jenkins urged the graduating seniors to turn and applaud their families.
Father Jenkins, the Notre Dame president, did not end up delivering those words, though. Earlier on, the featured commencement speaker, Vice President Mike Pence, stole his thunder by issuing a similar order. And Mr. Pence did Father Jenkins one better by explicitly noting how many checks most of their loved ones had written to the university.
Anyone contemplating the full cost of attendance at what is arguably the nation’s most prominent Catholic undergraduate institution probably wonders just how big those checks are for four years here. Families with teenagers starting this fall can expect to pay close to $300,000 over four years, assuming costs increase 3 percent or so each year. Even families with incomes over $100,000 who qualify for financial aid will still probably pay a whole lot more than they would at their flagship state university — easily $50,000, $100,000 or $150,000 more.
All of which invites an obvious question: In what holy book is it written that we owe anything like this kind of expenditure to each of our children? ...
Subsidized government loans for graduate students became a casualty of the 2011 debt ceiling crisis, but law school proponents are pushing to resurrect them with the help of sympathetic lawmakers.
Bringing back subsidized Stafford loans would knock about $4,000 off the initial federal loan bills that typical law student graduates with and save them even more over the life of those loans, according to Chris Chapman, president of AccessLex Institute.
The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of "thinking like a lawyer: or "pure lawyering" aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors.
This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.
One of my favorite teaching exercises in my Introductory Income Taxation class is to go through the New York Times wedding announcements from late December and early January, and to have students identify couples that got married on the “wrong” side of the New Year divide. Some single-earner couples that presumably receive a marriage bonus—e.g., an engineer marrying a grad student—nonetheless wed in early January, though they likely would have been better off accelerating their nuptials to December. Other couples that probably face a marriage penalty—e.g., two associates at the same law firm—wed in late December, though they likely would have been better off waiting a few more weeks. I ask my students, “What were these couples thinking?” The answer that I get is: “They were probably thinking about love and not about tax.”
For those of us who love thinking about tax, this is all somewhat of a puzzle. Do people really make such momentous life decisions without considering the tax implications? Ed Fox seeks to answer that question in a creative new paper. His main finding is that, at least historically, tax incentives have had a quantitatively and statistically significant effect on marriage patterns. While anecdotes from the Times might lead us to believe that couples make marriage choices without considering the tax consequences, Fox’s study suggests that tax incentives do indeed affect the decisions of some couples to say “I do.”
Bernie Sanders and others have scolded the company for (legally) paying no taxes. Here’s how the Boston newcomer could emerge a hero.
Don’t worry. This isn’t yet another screed calling you out as the king of all corporate tax dodgers. By now, most people probably have a general understanding that you’ve been both aggressive and effective in reducing what you owe Uncle Sam over the years, though I suspect few appreciate just how effective. If there is more art than science at play at the highest echelons of the tax world, then you, General Electric, are our nation’s corporate Picasso. Just last month, the Institute on Taxation and Economic Policy, or ITEP, reported that, averaged out over the last eight years, you paid no US corporate income taxes, in large part because you received a total federal tax subsidy of $15.4 billion, despite raking in $40 billion in profits during that period. Imagination at work, baby.
I know you dispute those figures, and we’ll get into that later. For now, though, let’s just agree that the members of your best-in-the-business tax team more than earned whatever you’ve paid them in bonuses. ...
In an ode to ABC's Wide World of Sports, 100 TV stars from 14 different network and cable companies will take their athleticism to a new level as they compete — to feel "the thrill of victory and the agony of defeat" — in the revival of Battle of the Network Stars, based on the '70s and '80s television pop-culture classic, remiering on THURSDAY, JUNE 29 (9:00-10:00 p.m. EDT) on ABC. The new Battle of the Network Stars will be a nostalgic throwback to the original series, where TV celebrities blended athleticism with hilarious antics while featuring an array of fan favorites from numerous TV series like Modern Family, Pretty Little Liars, Scandal, Melrose Place, Beverly Hills, 90210, The Goldbergs, How to Get Away with Murder, Buffy the Vampire Slayer, The Incredible Hulk, The West Wing, Dallas, CHiPs, Law & Order and many more.
The original series from ABC Sports began in 1976 and continued for 13 years. The 10-episode summer event will pit teams of current and classic TV stars from multiple eras and different genres against one another in a variety of athletic games. Viewers can look forward to seeing a fresh take at some of the classic show's sporting events like Tug of War, Archery, Kayak Relay, Obstacle Course and Dunk Tank — all from the site of the original series, the beautiful campus of Pepperdine University in Malibu, California.