MauledAgain

For decades, the pattern of determining grades in most law school classes was the administration of a final examination. In seminars, the grade rested primarily on a paper. In Trial Practice, clinics, and similar courses, the grade reflected a subjective evaluation of student performance.

Rarely, if ever, did a student obtain feedback on whether the student was making satisfactory progress through the semester. Often, professorial reaction to classroom participation did not reveal if the student was on track or way off base. As a consequence, students who did not acquire the requisite understanding would enter a final examination without realizing that they were destined to do poorly.

When I started teaching law, one of my former law professors turned colleague warned me, “When you grade the final examination, you will learn how much the students did not learn.” That startled me, because I had always approached teaching -- I had done teaching and tutoring throughout my school years -- with the goal of maximizing what students learned. It became even more troublesome when, after sitting down with students unhappy with their grades, I realized that students often did poorly because the same error in thinking or other bad intellectual habit permeated their examination answers. Too many times a student would say to me, “I wish I had known this before the exam.” It only took several semesters of this experience to decide to do something to change the pattern.

I decided to implement the same sort of testing-and-feedback approach that I had experienced in my elementary and high school education. Daily and weekly tests were the norm, not the exception. Students on the wrong track could be helped to reorient themselves before they wandered too far afield. Perhaps to the surprise of many, to do this I needed to obtain faculty permission. Suffice it to say that it was granted over strong opposition. Some saw my proposal as an attempt to help students prepare for the examination. Others worried that students would devote more time to my course, and less time to their other courses, if they knew that a graded exercise was scheduled, so the approval of my proposal included a requirement that graded exercises be unannounced. Student reaction evolved from initial annoyance at the beginning of the semester to appreciation by the end of the semester. I designed the exercises to give students an opportunity to learn not only substantive law but also to understand how their reading and thinking processes did or did not help them properly analyze and answer a question.

Twenty years after I began what is now formative assessment, law schools began to respond to practitioner complaints about the insufficient readiness of law school graduates for law practice by exploring the idea of adopting formative assessment. I remember being told more than several times as the discussion of formative assessment proposals was underway, “You’ve been doing this for years. Tell us about it.” What I shared did not necessarily delight others. “It’s a lot of work. Questions need to be designed, and then graded. I provide an analysis that I share with the class, in which I share my model answer, and explain what was wrong with each erroneous response offered by students.” Each semester requires the design of new questions. The offset, though it probably is only a partial offset, is reduction of the size and time allotment for the final examination, which reduces the time needed to grade that final examination.

The big question is, “Does it work?” The answer is “Absolutely.” For example, one of my favorite types of assessment question is the “What additional facts do you need to obtain from the client?” Students who encounter this type of question for the first time on a final examination often struggle with it. By giving students one or two questions of this type during the semester, along with feedback, I allow them to learn what they are doing correctly and what they need to refine or reform, so that when they get to the final examination, they are in a better position to do well. So, yes, in some respects I am preparing students for the final examination, but in reality I am preparing them for practice, because the final examination, designed well, prepares students for practice. How? To quote one of my former professors turned colleague, “Examinations are learning experiences.” Indeed they are, and by spreading that experience throughout the semester rather than leaving it all until the end, a teacher increases the chances of students acquiring a better understanding than they otherwise would achieve.

Some courses, by their very nature, necessarily include formative assessment. The courses in Legal Writing require students to turn in assignments throughout the semester, which are graded and returned. In courses like Trial Practice and clinics, students are given feedback almost continuously, though usually without specific grades or scores assigned to each aspect of what a student does. The standards for seminars require at least an outline and a first draft, on which the professor comments in order to provide feedback and guidance. It is not surprising, therefore, to see that the grades in these courses usually are higher than those in other courses. It’s another indication that assessment and feedback throughout the semester indeed works.

Formative assessment, despite being championed by the American Bar Associations and some practitioners and faculty, has not yet become the norm. In some courses, faculty have added a mid-term examination. In others, , faculty have added three or four assignments throughout the semester. I am unaware of any courses where I teach, or elsewhere, in which students are presented with ten exercises throughout the semester, other than the courses I have taught and the one I am teaching.

There is one more advantage to formative assessment and feedback throughout the semester that I ought to point out. Not only does it give students a better degree of confidence in their ability to learn and adjust their studying patterns, it also reduces examination anxiety. Students enter the examination period knowing what they have accomplished, and knowing that not everything about their grade rests on their examination performance. In fact, most students know that no matter what they do on the examination, they are not going to fail the course or earn one of the very low passing grades. Reduction of examination anxiety, a particularly intense cause of poor examination performance, increases the chances of a better examination performance than might otherwise occur.

The American Bar Association requires, as part of its accreditation standards, that law schools adopt, publish, and adhere to sound academic standards, including those for regular class attendance. Law schools have enacted an assortment of attendance rules, some of them so fuzzy that it seems impossible to predict what is required, and others so precise that a particular number of absences causes exclusion from the course. At law schools with attendance rules that necessitate the taking of attendance during each class, the responsibility for doing so almost always rests on the faculty. The days of someone from the administrative offices coming into the room to compare who is in the room with a seating chart, as was the case during my first year of law school, are pretty much long gone.

My views on attendance differ from what the ABA and law schools mandate. Though I question the wisdom of attendance policies, I have complied and continue to comply with those that are in place wherever I have taught.

Why do I object to the requirement of attendance?

First, I question one of its rationales. Presumably, the requirement exists so that law degrees are not awarded to students who did not attend class. If a student, though, can attain adequate grades despite not attending class, ought not the student earn the degree? The answer, I think, is that classes ought to be taught in a manner that makes attendance critical to earning a grade sufficient to contribute to the required grade point average for graduation.

Second, I disagree with another of its rationales. The notion that to let students miss class and perhaps risk not graduating while at the same time collecting tuition from them is somehow wrong makes no sense. Students choose to enroll and pay tuition. If they don’t wish to collect what they’ve purchased, that is a choice for them to make. A person who purchases a ticket to a movie isn’t compelled to attend, and doesn’t otherwise face adverse consequences from the theater. Is it the law school’s responsibility to act as the student’s parent?

Third, compelling a student to attend class doesn’t mean the student will be mentally present. Physical presence alone means little or nothing. Aside from illness and other emergencies, students who fail to attend class do so because they dislike the course, dislike the professor, are uninterested in the material, or have a psychological issue of some kind. Compelling attendance does nothing to get to the root of the problem.

Fourth, what mechanisms are effective in compelling attendance? If a student who has too many absences is excluded from the course, isn’t that result inconsistent with one of the purposes for the rule? If the student is required to do make-up work, doesn’t that put a burden on whomever needs to design the assignment, and supervise its completion? If the student’s grade is reduced, does that not send an erroneous message to those who rely on the student’s transcript to make hiring and other decisions, considering that it understates the student’s course achievement and neglects to reveal the student’s failure to attend a sufficient number of classes?

Yet, though I disagree with the idea of compelling attendance, I do recognize the need to pay attention to situations in which a particular student is absent for more than a few classes in a row. When someone in the classroom, whether the professor or other students, notices that someone has been absent, it is wise to notify the administration so that someone with the proper authority can check on the welfare of the student. This, however, can be done without the distraction of attendance sheets being passed through the room, and the additional burden of administrators maintaining attendance spreadsheets.

For me, once the student response (or clicker) system became available, taking attendance was almost effortless. It simply required that there be at least one question during a class that required student responses through the software. Because the number of questions posed during a class were far more than one, attendance was taken automatically. Out of consideration for students who face adverse consequences for missing class, I always made certain that on at least one question every student responded, by taking a moment to remind them that failure to answer could result in being charged with an absence. Interestingly, attendance patterns in my courses before the attendance rules were strengthened and seriously enforced and after those changes did not vary, other than putting an end to the existence of an occasional “phantom” who failed to attend any classes.

Another transformative development that changed the law teaching atmosphere was the invention of the laptop computer. When a laptop first showed up in a law school classroom, it was a novelty. One or two students with backgrounds in computer science or simply with an interest in electronic equipment would bring in laptops. In one course that focused on the relationship between the practice of law and digital technology, an interesting discussion ensued that focused on whether the PC or the MAC was the better choice.

The novelty quickly became a norm, to the point where a student without a laptop was an anomaly. For me, students bringing laptops offered advantages. Students could take notes more quickly, could view visual materials more easily than squinting at what at that time were small, distant, and otherwise inadequate screens, could then transform their notes into outlines and other study guides, and if beset by certain learning or other disabilities, could use the laptop as a remediation. But it wasn’t long before some law faculty began complaining about laptops. The primary objection was that laptops were distractions. Hundreds of articles and commentaries, dozens of studies, and numerous in-person conversations illustrated the zealousness with which those on each side of the debate held their ground.

I explored this issue more than 13 years ago in To Allow Laptops or Not to Allow Laptops: That is the Question Most of what I wrote continues to be determinative for me. Though faculty have the academic freedom to ban laptops, I do not think doing so is wise. Distractions existed before laptops were brought into the classroom, and the banning of laptops does not eliminate or even reduce distractions. When I was a student, and early in my law teaching career, I encountered or became aware of students who played bingo, passed notes, did crossword puzzles, circulated sports betting pool sheets, and played cards. A student using a laptop for activities not related to the class can distract other students, but a student passing a note or doing a crossword puzzle is no less of a distraction.

What causes the distraction is not the laptop, or the note passing. It’s the inattentive, unprofessional, and immature student who causes the distraction that presents a challenge not solved by banning laptops. Direct intervention, whether it is a reaction to a student doing a crossword puzzles or engaging in online shopping, is necessary when the distraction is disruptive. Faculty have intervened in the past and will need to do so in the future. The few times I intervened, the effect was not only to end the distracting behavior but to reduce future instances of such behavior in that course for the semester. Perhaps lowering the grade of a student who causes too much distraction, however measured, would have a much more powerful impact and generate less adverse reaction from students prohibited from using laptops.

There are ways to prevent student laptop use from causing distractions. The key is to keep the students so busy with the class that they don’t have time to play games or shop online during class. When students know that the next set of student response questions might be projected with a “this is being graded” alert, it becomes risky to get into distracting behavior when the next moment might bring a graded exercise. Some faculty might find calling on students to be effective in holding their attention. Moving through the material at a brisk pace energizes the environment. Using visuals, such as pictures related to a case, keeps students focused.

What causes students to engage in distracting behavior, with or without laptops, isn’t the passed note or the laptop. It’s student inattention. In many instances, faculty contribute to the problem. A student who is in a course because it is required, or because it is on a bar examination, is more likely to let his or her mind wander or to play games unless some more compelling reason exists to pay attention. Selecting several students to be responsible for discussion on a particular day invites other students to tune out. I’m not saying that all student inattention can be attributed to ineffective teaching, but enough of it is so attributable that faculty who encounter substantial numbers of inattentive students ought ask themselves what they can do to change the classroom atmosphere. If it’s just one or two students, then it’s probably not the professor, but then it’s simply a matter of pulling those students aside privately and laying down the law.

One goal of legal education is to teach future lawyers that professionals need to be responsible. Teaching law students to be responsible requires more than denying them the opportunity to be irresponsible. It requires guiding them around the tempting distractions. If law faculty become too controlling, how are the students going to fend for themselves after graduation when the faculty isn’t there to control things for them?

In recent years, one of the law teaching techniques that has been getting a good bit of attention and even some implementation is the so-called flipping of the classroom. Flipping the classroom isn’t something unique to law teaching, and in fact has its origins elsewhere in education but has been brought into legal education.

Flipping the classroom consists of recording lectures to which students can listen before class, so that the time in class can be devoted to discussion. The notion of recorded lectures meshes well with online legal education. But the concept poses some challenges.

First, in some respects students should be able to glean from reading assignments before class what is being spoken to them in a recorded lecture. I wonder if the cultural shift away from reading and in the direction of audio and video communication contributes to the need to hear, rather than read, the words that express whatever it is needs to be communicated as part of the learning process. Reading is, and will continue to be, an essential element of legal analysis, and enabling the drift away from reading is counterproductive. Imagine hearing, rather than reading, an Internal Revenue Code provision.

Second, opening time for discussion in the classroom is beneficial if the students are willing to engage in discussion. As noted in an earlier post in this series, students increasingly are reluctant to speak out, at least in some courses. Anecdotal evidence suggests that at least part of the reluctance is due to how other students react, often in ways that are not conducive to the development of analytical reasoning. Countering this reluctance by compelling students to speak can be inefficient because it wastes time, ineffective because it generates unhelpful responses, and problematic because it can heighten student anxiety.

Third, to the extent students fail to listen to the recorded lectures before the class, what can be accomplished in class is not an improvement over what can be accomplished when students fail to do the assigned reading. Something else is needed to engage students outside of the classroom before class, and I will discuss that later in this series.

There probably are some courses in which recorded lectures available before class can enhance the experience in the classroom. I can imagine that in courses such as Trial Practice, Pre-Trial Civil Practice, clinics, and other endeavors in which the classroom experience involves a much larger “doing” component, getting the preliminaries out of the way before class could be helpful.

Though I have my misgivings about the value of flipping the classroom, and whether it really is that much of an innovation, if any, when I have thought about doing it in my courses, I have realized the futility of limiting myself to audio. My classes involve significant visual elements. So I would need to video record these segments, and that requires a much higher level of support from various administrative offices. It would require some way of coordinating words with the graphics or other visual aids that are necessary to make the words meaningful.

Finally, recording lectures to be heard before class, whether in audio or video format, is a major step in the direction of taking the course online. Will it strengthen the temptation for students to skip class, thinking that they’ve learned from the lecture what they need for the examination and that what their classmates have to say is of much less value? Will it bring pressure from students to put the in-class portion online through some sort of synchronous technology? If so, does the bandwidth exist to support interaction among 90 students in a class? The implications of taking a course partway online need to be carefully examined. Each step needs to be deliberate, and not an uncontrolled slide into a fully online course.

When I began teaching law, one of the questions posed by those interviewing me focused on my intentions with respect to office hours. My reply at the time was simple. Unless I was in the classroom, at a faculty or committee meeting, or at lunch, I would be in my office. That response satisfied those who had asked the question.

As the years passed, I discovered that office hours were an inefficient way of making myself available to answer student questions. There were several problems. First, to start in on a project that required any amount of uninterrupted time was risky because there was no way of knowing if a student would knock on the door. Second, when students came by unannounced and discovered that another student or a group of students were in the office, their frustration at times was evident. If this happened during the days before the final examination, they often would invite themselves in because they “also have the same question,” and then the discussion would need to restart. Third, if a doctor’s appointment or some other variation in schedule was necessary, there was no easy way to tell students so that they would avoid a wasted trip to the office. Fourth, making appointments usually involved two trips by the student, one to make the appointment and another for the appointment,

Of all the areas in which digital technology transformed teaching law, it surely was the invention of email. Now, students could ask a question without coming to the office. They could ask the question from home. They could ask the question at two in the morning, though they might not receive an immediate response. They could ask the question when it was fresh in their minds, rather than trying to read their handwritten marginal note hours or a day or two later while trying to figure out what exactly concerned them. If the question was complicated, they could schedule an appointment with ease.

The situation became even better when internet discussion boards appeared. Though today that space is filled with commercial third-party products, the first discussion board that I used was one put together by one of the “tech guys” back in the 1990s. Though not sophisticated, and lacking many of the bells and whistles found in present-day discussion boards, it worked. It permitted students to engage in discussions with each other as they could in the classroom, thus giving a hint of an element later to be incorporated into online legal education. Even better, it improved what happened in the classroom. An example is the best way to explain what happened. Before the discussion board appeared, if a student came up after class with a question, say, about something discussed 20 minutes into the class, and my conversation suggested to me I needed to share the question and my response in order to correct or clarify something, I needed to wait until the next class, delay continuing with the scheduled order of discussion, ask students to take their minds back to the place 20 minutes into the class that met two or three days earlier, explain the question and my response, and then jump back to where we would have been. It was, in a word, disruptive. With the implementation of the discussion board, the student could ask the question, in person or by email, I could craft my reply, and then share that exchange shortly after it happened, rather than waiting until, and disrupting, the class that would occur a day or two or three later.

Though the use of email and discussion boards have been beneficial, recent years have brought some challenges. In short, many students do not use or want to use email. So far, the answer has been an institutional requirement that they use their university-provided email account, or some other account to which they forward their university email. Many students are solid members of the “texting generation.” I rarely text, for several reasons, especially the inability to write more than a sound bite, and the dexterity challenges of using a tiny “keyboard.” Texting is fine for asking a question that can be answered with a word or two, or a number. It is far from ideal for communications related to a law course. Another challenge is a reluctance by students to post on discussion boards, a reluctance that matches the growth in the number of students unwilling to speak up voluntarily in the classroom. Considering that they will be spending their professional careers speaking at meetings, in courtrooms, at presentation, to the press, and so on, the unwillingness to speak out in the classroom or on a discussion board might make things more difficult in the future than they otherwise would be. Yet all in all, the use of email and discussion board posts as surrogates for office hours is one of the more significant improvements in law teaching that I have observed during my teaching career.

Even before I started teaching law, I knew that one of the milestones in a law teaching career, and in other teaching careers, was the attainment of tenure. In short, tenure is a status that prevents dismissal of a faculty member absent some severe violation of law or University rules, and that is designed to protect academic freedom so that administrators cannot dictate the viewpoint of faculty. That one-sentence description is an oversimplification but is sufficient for purposes of this series.

Generally, tenure is awarded to faculty who have met predetermined standards with respect to teaching, scholarship, and service. As a practical matter, the teaching and service aspects don’t get near the attention that scholarship receives. Unless someone is horrendous in the classroom or neglects their teaching obligations, teaching isn’t the most challenging hurdle. Nor is service, sometimes broken down into service to the law school, to the university, and to the community. Again, it isn’t a steep challenge to be of service, by sitting on committees, making presentations for the entire campus or for outside organizations, or by participating on boards of outside organizations or in other activities beneficial to the community. It is the scholarship requirement that generates anxiety among untenured faculty on the tenure track. How much? How long? Where must it be published? What sort of outside reviews will be written? How much groundbreaking must its conclusions be? The percentage of law faculty awarded tenure is fairly high, and someone being rejected for tenure often creates quite a stir.

To deal with the scholarship anxiety, some law schools release untenured faculty from teaching assignments for one semester or even an academic year so that they can focus on scholarship. At schools not providing this accommodation, claims that the focus on scholarship “distract” from teaching often are made. Certainly the “need to publish” is part of what underlies the press for reduced teaching loads, even after tenure is obtained, because scholarship, and to a lesser extent teaching and service, continue to be important because they are elements of adjustments made to a law faculty’s compensation package.

Scores of articles and commentaries have been written about the balance that should exist among scholarship, teaching, and service. For me, enough of my scholarship meshed with what I was teaching that, rather than conflicting, the two were symbiotic in many instances. Instead, for me the issue was and continued to be the definition of acceptable scholarship. By publishing enough that met the acceptable scholarship standard I avoided letting the issue become a factor in my tenure and compensation decisions, but I never passed up an opportunity to point out that my scholarship was much more than just what most faculty considered to be acceptable scholarship. Two examples should suffice to illustrate the issue, one that is becoming increasingly a concern for law faculty generally.

The first involves placement of one’s writing. My early post-law-school publications, written before I became a member of a law faculty, were published in what are called “practitioner publications.” These are journals that focus on matters of concern to practitioners, and that usually publish articles that offer practical advice or otherwise bring to the attention of practitioners traps, snags, and other problems that await. My writings tended to predict specific issues that were lurking, the most well-known from that era being an examination of the tax issues posed by surrogate motherhood. Law faculty, though, for decades, tended to consider practitioner journals of a lesser quality than law reviews associated with law schools. Some faculty still hold that view. Law reviews are almost always edited by law students. My experience with law reviews edited by law students has not caused me to agree that somehow they are better than practitioner journals. Over time, at least in the tax field, several practitioner journals eventually did acquire outstanding reputations, as they managed to attract increasing numbers of law faculty authors. But perhaps it’s just a matter of what a colleague once told me, “Tax is different.” Perhaps.

The second involves the form of one’s writing. As digital technology developed, and the internet became pervasive, it was not uncommon for people from all sorts of disciplines to write and self-publish commentaries on various online forums. The most notable form of this sort of writing was and is the blog. The question, as I posed it, is simple. Is a writing on a blog necessarily not scholarship? Many said yes. I disagree. I think it depends on the content of the writing. Though most blog posts, even on blogs dedicated to law, are devoid of analytical reasoning, even though many serve excellent purposes as conduits to share professional information about events and individuals, there are blog posts that are at least of the same quality, or better, than one finds in law reviews. Aside from the fact that the usual delay in getting something published in a law review, which can be crucial in areas of law experiencing rapid changes, blog posts open up a door to reader-author communication that is rare in the law review area. Of course, not everything I write on MauledAgain comes close to being scholarship, but there are more than a few topics where the combination of the posts addressing an issue are the equivalent of a law review article.

When I’ve asked why law schools, and some other institutions of higher learning, consider scholarship to be so essential that it can preclude an excellent teacher who is not inclined to write from obtaining tenure, I’ve been told that it brings attention and prestige to the institution. When I reply that writings that appear in practitioner publications and blogs probably reach a wider audience, I’ve been told that the audience that institutions want to reach might not be the same as that reached by publications other than law reviews. As I write this, I remember the visitor from another school who, when asked by me whether she was writing to help judges resolve the issue in question, help students learn about the issue, help legislators deal with it, or help practitioners understand the issue, replied to me, “I write for other scholars.” Hopefully that approach to the role of law schools is fading away or is going to fade away.

My point is not a gripe about how my blog writing and practitioner journal publications were treated, because it did not matter. My concern is for the next generation of law faculty, and the one that follows, because the environment in which they will be sharing their analytical reasoning will have evolved. The question is whether tenure and compensation standards will evolve quickly enough to match that evolution.

When the questions of smaller classes, online legal education, and learning outcomes comes up in discussion, one of the concerns that gets attention is the impact of these adaptations on teaching loads. There aren’t many topics as near and dear to the hearts of law faculty as teaching loads. The tension, of course, is between faculty, who prefer lighter loads, and administrators and trustees, who prefer heavier loads. That tension reflects the challenge of striking a balance between educational quality and cost.

The question of calculating an appropriate teaching load is one that perplexes teachers and administrators at every educational level, from pre-school through graduate programs. Those unfamiliar with the demands of teaching don’t understand why a teacher can’t be in the classroom for as many hours as an assembly-line worker is in the factory. And even those who do understand the reasons will argue about the proportion of time spent in the classroom and invested in other activities. Compounding the discussion is the inability of many to agree on how to take into account one-on-one or one-on-several communications between faculty and students, whether in the classroom after a class, in the office, or through email and online forums. There also is disagreement over the impact of enrollment numbers. Does a class of 40 students require twice as much out-of-class time as a class of 20 students? Certainly twice as much time is needed to grade or evaluate examinations, papers, exercises, and assessments. But is twice as much time required to prepare a syllabus or course materials? No. Is there a difference between teaching two sections of the same course and teaching two different courses? Certainly. I started my law school teaching career at a school that, at the time, treated the second section of a course as equivalent to half the value of the first section in calculating teaching load class hours. Do I think that was appropriate, accurate, and fair? Maybe. There were twice as many examinations to grade and twice as many students asking questions outside of class, but only one syllabus and set of course materials to put together, one examination to prepare, and one period of pre-class preparation at the beginning of each class day (both sections meeting on the same day, sometimes back-to-back).

During my law teaching career the standard teaching load was expressed in various ways, and I don’t think there ever was a formal definition of the minimum or maximum, though there were some agreed norms and principles that bore on the question. At the beginning of my law teaching career I was in the classroom eight hours a week each semester, with three of those hours being a “duplicate” of the other three. I also had additional courses in the form of directed research papers and a section of legal writing. When I moved to where I spent most of my law teaching career, I was in the classroom five hours a week one semester and seven hours a week during the other, with no duplication, but six of those hours were in the LL.M./M.T. program. Thus, I taught five courses during the academic year, two being three-credit J.D. courses, and three being two-credit graduate courses. I was told that I was carrying a “full” load. There were colleagues in the J.D. program who taught two three-credit J.D. courses each semester, the same number of classroom contact hours but only four courses. None of those figures necessarily correlated with the number of examinations each of us needed to grade. One of my colleagues declined to teach graduate courses because he considered a two-credit graduate course to be the equivalent of a three-credit J.D. course, but the administration disagreed. I agreed with my colleague but because I was hired in part to teach in the graduate program my position on the matter meant nothing.

Yet as time progressed, and my total classroom contact hours for an academic year reached 13, pressure from law faculty across the nation for reduced teaching loads began to mount. Eventually, some law schools relented, and in many instances the yearly teaching load became three courses and 9 or 10 classroom contact hours. Justification for the reduction varied, but one major factor was hiring competition, because a law school offering a candidate a reduced teaching load was more attractive than one requiring 12 or even more yearly classroom contact hours.

Because I enjoy teaching, I didn’t press for a reduction in my teaching load, other than the time when I decided that the “emergency” increase in my teaching load had lasted for almost a decade and thus was no longer an “emergency.” The increase, though, was minor, and my decision was more a matter of trying to influence faculty hiring that to eliminate an hour of classroom time from my schedule, as it had no effect on the number of courses I was teaching.

My disagreement with those who want reduced teaching loads is that law schools are schools, and schools are places where teaching occurs. Of course, a reduced teaching load makes no sense without being compared to a number from which it is being reduced. So there are two issues. One is determining the appropriate teaching load, whether expressed as number of courses, number of classroom contact hours, number of students, or some combination thereof. The other is determining the circumstances under which the teaching load for individual faculty should vary from the appropriate teaching load. Law faculties have invested enormous amounts of time debating these issues. Ultimately, the determination requires taking into account what else a faculty member is doing that benefits the mission of a law school. That requires examining some of the other activities of law faculty.

Overshadowing all of these thoughts about teaching law is the explosion in online education, a phenomenon that has not left legal education untouched. In fact, law schools across the country are offering online courses and online programs. The advantages of online education are well known, bringing opportunities to people otherwise unable to attend courses on campus, presumably reducing costs though that is debatable, and creating flexibility in terms of scheduling. On the other hand, the challenges of online education are daunting. Though it is easy, from a theoretical perspective, to propose “putting a course online,” the practical reality of making that work, from technological requirements to pedagogical concerns, means that the developer of the course must invest much more time in preparation than is required for a traditional in-classroom course.

My foremost reaction to what I have observed as several of my colleagues created online courses is that the process of creating the course requires implementation of mechanisms that had not been considered necessary in on-campus courses. It is one thing to go into a classroom and present problems to be discussed by students, but it is an entirely different proposition to craft the problem ahead of time, word for word, along with whatever response choices are presented. The logistical challenges, from attendance to review, from synchronous communication to effective methods of asynchronous interaction, are complex and interesting, but beyond the scope of this series, because they deserve an entire series of their own (hopefully written by someone much more immersed in the process than I have been).

What flows from my foremost reaction is the notion that many of the techniques adapted to online teaching have great value in the on-campus courses. In many instances, they improve those in-classroom experiences. Of course, some of the techniques adapted to online teaching were developed for on-campus courses before and at about the same time online learning began to get attention. For example, providing students with a means to communicate with faculty other than in the classroom or after a trek to the faculty member’s office has multiple advantages. From something as simple as email to something more refined such as an online discussion board, some years before the idea of putting the entire educational experience of a course online gained traction.

Will online education change teaching law? Yes, it already has and will continue to do so. Will there eventually be, as some have predicted or feared, on person teaching a particular subject to all law students in the country? Hopefully not and probably not. Just the idea of grading tens of thousands of exams, or answering hundreds of thousands of emails is mind-numbing. Certainly there should be no support for the time-worn undergraduate approach of having one person lecture to a thousand or more students while leaving the interaction to graduate students responsible for several dozen students. Having been enrolled in a course of that nature while in college, I would not be among those advocating bringing its features into the world on online legal education.

A few years ago, the American Bar Association mandated the establishment and publication of learning outcomes as a condition of accreditation. It also mandated that law schools measure and improve student learning, and provide feedback.

What are learning outcomes? The ABA definition simply sates that a law school must “establish learning outcomes that shall, at a minimum, include competency in the following: (a) Knowledge and understanding of substantive and procedural law; (b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context; (c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and (d) Other professional skills needed for competent and ethical participation as a member of the legal profession.” In other words, law schools must identify what it is they are trying to teach their students, in conformity with the broad and fuzzy standards provided by the ABA.

Why do I call these standards fuzzy? I do so because I don’t know what is meant, for example, by “knowledge and understanding of substantive and procedural law.” How much knowledge and understanding? How much tax law must a student learn and understand from sitting through a basic federal income tax course? The ABA leaves the decision up to each school, explaining that “The outcomes should identify the desired knowledge, skills and values that a school believes that its students should master.” Yet even with a particular school, when two or more professors are teaching the same course in multiple sections, complete agreement on what should be covered and the depth to which topics should be examined is difficult, if not impossible, to reach. All of the faculty teaching basic federal income tax, for example, agree that gross income needs to be covered, but whether the tax treatment of scholarships, fringe benefits, or housing for members of the military should get any attention, and if so, how much, can be debated for a long time.

Of course, measuring learning outcomes requires the establishment of benchmarks that define what a student needs to learn and understand. How that measurement can be accomplished is an issue I discuss later in this series.

How should law faculty determine the “desired knowledge, skills and values” that it believes the students should master? I don’t know what faculty at different law schools are doing, even the one at which I have taught, because since retiring I have no longer attended faculty meetings nor have had access to the process of making these determinations. If asked, I would recommend surveying lawyers, including those working in law firms, accounting firms, corporate legal departments, and government agencies, as well as judges and law clerks. They are the ones who know what needs to be learned and understood. The degree to which law faculty and legal professional outside law schools interact has increased significantly over the past 50 years, but there is much room for improvement. For example, there are more and more instances of law faculty team teaching with practitioners, which is yet another reason I support the expansion of team-taught courses.

One of the challenges in shaping the scope and depth of “knowledge, skills and values” that a law school faculty believes it ought to be teaching is the varied career paths that await law school graduates. What a lawyer in a large law firm might consider important doesn’t necessarily match up with what a lawyer in a corporate legal department, a lawyer in a small law firm, or a judge in a rural county think needs the most attention. Like faculty teaching multiple sections of a course, these individuals probably agree on some standards and benchmarks and disagree on others. This is not to say that learning outcomes cannot be established, as many law schools have taken that step, but it is to point out it is not easy to do so, and it is only the first step of increasingly challenging steps in the entire learning outcomes process.

When my relatives and friends who are, or have been, teachers in the K-12 systems react to my mention of law school faculties facing the challenge of developing learning outcomes, they point out that learning about learning outcomes was something they did while being educated to become teachers. When I was first hired to teach law school, a close relative who is a teacher said to me, “But you don’t have a degree in education!” My reply, “No one on the law faculty has a degree in education,” was met with a incredulous expression of disbelief and horror. Unlike many law faculty, I and some others had at least a bit of familiarity with the art of teaching, for reasons independent of, and usually preceding, our law teaching careers. For decades, law faculties generally taught by replicating their own law school experiences, though over time that approach diminished as increasing numbers of law faculty pushed for experimentation and change. Yet the learning outcomes mandate has prompted law schools to retain third-party educational specialists to visit, in order to offer programs and other sessions designed to help law faculty understand the entire learning outcomes world. I wonder whether, at some point, law schools will find it more economical and efficient, when hiring faculty, to favor those who have taken at least some education courses.

For some law faculty, like myself, learning outcomes is nothing new. Some of us have invested time during the first class of a course explaining to students what we intend for them to learn, why we have that expectation, and how we have designed the course to assist them in achieving those goals. Over time, that approach will become the norm. Many law schools are already at that point, or at least close to it in the sense that most of their courses include that sort of introduction.

Aside from questions of transactional courses, team teaching, and the balance between theory and practical reality, one of the factors having a significant impact on the law teaching and law learning experience is class size. I’ve taught classes with as many as 165 students and classes with as few as 7 students. There is a difference.

When asked about class size, many law faculty would think first in terms of the impact of class size on the unenviable task of grading examinations and other assignments. Unquestionably, given the choice between grading 165 examinations and 7 examinations, almost all faculty would select the latter. But the impact of class size on examination grading challenges is just one aspect of the class size concern.

There are certain types of law courses universally considered to require limited enrollment. It is impossible for one professor to take 165 or even 65 or 25 students through a Trial Practice course, a seminar course with a paper requirement, or a clinic experience, to give three examples. It’s not so much that the amount of work expected of each student is that much different from what is expected in other courses. It’s the difference in the type of work, work that requires a significant amount of one-on-one, or one-on-two, interaction. Yet the benefits of one-on-one attention also exist in other courses. When a class size is small, the interaction between student and professor but also among students can be more extensive, focus more closely on what needs he most attention, and more productive.

As formative assessment becomes more prevalent in all law courses, a topic I address later in this series, the experience of small classes will need to migrate into the larger classes. The prospect of offering 90 students (now that 165-student classes are no longer offered where I teach because of 90-seat classroom limitations) the same sort of one-on-one attention provided in small courses is daunting, and discourages many faculty from adopting much, if anything, in the way of formative assessment.

The solution, it seems to me, is to reduce class size across the board. The learning experience in a class of 50, 70, or 90 students suffers when compared to the experience in a class of 15, 30, or 40 students. Most faculty would agree, but would also point out the financial and logistical impediments to such an across-the-board reduction. Yet it is possible, with changes in how law faculty task balance is arrayed, an issue I discuss later in this series. As a preview, lest anyone think that I advocate smaller classes in order to reduce the number of examinations and other assessments to be graded, the smaller class sizes would be accompanied by an increase in the number of classes taught. The simple reality is that reducing class sizes does not reduce the total number of students who present examinations and other assessments needing to be graded.

As much as I consider practical reality to be more determinative of most things in life and law, there still is a place for, and a need for, theoretical perspectives on law. There needs to be a balance between, on the one hand, examinations of what is wrong with law and what law ought to be and, on the other hand, an understanding of theories that give rise to the laws that exist.
When the examination of law begins with theory, it best suits instances where those contemplating and considering the theory and the resulting law are already proficient in that area of law. When theory comes into play in the company of those unfamiliar with the law, it often is better to learn the law and then examine its theoretical underpinnings. That approach makes it easier, I think, to understand the origins for, and justifications of, the law in question.

For example, when in the wills and trusts course I cover intestacy, I first have the students examine the statutes based on per stripes, per capita with representation, and per capita at each generation. After learning and understanding what those statutes require and how they apply in different fact situations, we then embark on an exploration of the theories and rationales underlying each approach. To take the opposite approach would have students playing with concepts without appreciating the significance of each rationale.

There are those who think that deviating from a theoretical approach transforms law schools into “trade schools” and gets students caught up in worries about “how to find the courthouse.” I disagree. There are others, especially students, who think that wandering into the world of theory is a waste of time that distracts from learning what to do. I disagree. And there are still others who claim that theory and practical reality are so inherently intertwined that both must be addressed. I agree.

When law schools first began to offer clinics, opposition was strong from many sectors of the law school professoriate. Those teaching clinics were usually kept off the tenure track, and were considered in some ways different and unfortunately in some cases, “lesser” than those teaching doctrinal courses. Similar treatment was, and often still is, experienced by those teaching Legal Writing. Slowly, the realization that these aspects of learning law are essential has permeated law schools, in part because of observation and re-evaluation of these programs, in part because of pressure from the ABA, and in part because of demands by students for additional opportunities to engage in clinic work. Because at most schools, financial and other limitations prevent clinics from accommodating all students, the development of externships as an alternative pathway to experiencing law in a practical setting has accelerated. Much progress has been made. More awaits. Sometimes I wonder, if someone who taught in American law schools during the 1950s and 1960s were to reappear and visit the twenty-first century American law schools, how they would react to the strong presence of clinics, putting aside their jaw-dropping reaction to the physical and technological evolution that has taken place. I suspect they would be somewhat bewildered but ready to ask question, listen to answers, and perhaps argue.

When the idea of a transactional course is suggested, a common reaction is the concern that very few law faculty can, or want to, teach a course that is cross-disciplinary within the law. I remember being told, “I’m a [fill in subject] person. How can I put [fill in different subject] into the course?” The same concerns have been raised when the idea of teaching professional ethics within a doctrinal course is presented.

Those unfamiliar with law schools might ask, “Why can’t someone teach multiple courses, Teachers in the K-12 system often teach multiple subjects.” My response would be, “Most law faculty can teach multiple subjects, even within one course, especially if those subjects are close to each other on the law subject matrix. But doing so requires the reshaping of a course, and cannot be done unless other law faculty also re-arrange courses so that topics aren’t abandoned or duplicated.” But I also point out that the easier solution is team teaching.

Team teaching, of course, is not new to law schools. There have been team-taught courses for decades, though not very common. Team teaching takes two forms. One is a time split, with one teacher taking responsibility for particular classes, and another taking responsibility for other classes. The split could be as simple as one person teaching the first 10 classes, and another teaching the remaining 16. Or those teaching the course could alternate, or come up with some other sort of split. The other form is what I call shared presence. That is, both (or all) of those teaching the course are in the class at the same time. I have team taught in that manner, and it worked out very well. In some respects it was an improvement over what otherwise would have happened, because each of the two of us brought a different perspective and a different bundle of topics in which we had expertise to the course. The course, I should point out, was a newly constructed offering that was put together on relatively short notice, a task easier for the two of us than it would have been for either one of us alone. I have also team taught other courses, and they have worked out well. I am fully aware of the potential risks, having been a student in a graduate law course that was team taught by two professors who ended up arguing with each other, and after a few weeks one of them disappeared. That, however, is the exception and not the rule when it comes to team teaching. Team teaching is very common in other academic fields and there’s no reason for it to be a rarity in law schools.

Many years ago, the ABA mandated that law schools require students to take a course in legal ethics, a requirement that evolved into a requirement that students enroll in a Professional Responsibility course. That requirement, in turn, has been expanded to require attention to what is called professional development. The ABA made this requirement part of the standards that law schools must meet in order to be accredited, a status that is necessary for its graduates to sit for the bar examination in most states.

Not long after the ABA added the ethics requirement, it went further and highly recommended incorporating ethical issues into doctrinal courses. The theory made sense, because ethics questions are easier to understand and resolve in the context of a substantive legal issue. In reality, though, very few law faculty brought those questions into doctrinal courses. In contrast, there are those, including myself, who have done so. For example, the question of how to represent a married couple fits well when discussing a married couple who seek will and trust drafting assistance. But would that not be a duplication when the same questions are considered in the family law context? Is that not a duplication inconsistent with one of my motivations for advocating transactional courses? The answer is the difference between how the conflict of interest analysis applies in a will drafting situation and how it applies in a divorce situation. The answer also rests in the notion that a transactional course that could be called So They Want to Get Married or Live Together would include not only representation with respect to ante-nuptial agreements but also with respect to their will drafting decisions. Those two problem prevention opportunities are better addressed as they are in practice, as part of one transactional situation, than when they are split, as they are in most law school curricula, between two courses. And, yes, there would be the companion So Their Marriage or Relationship Didn’t Work Out course.

It seems to me that the topics addressed in Professional Responsibility courses can be divided and placed into substantive transactional courses and in the evolving Professional Development course. Putting rules and application of rules in context makes them easier to learn, easier to appreciate, and easier to apply.

Law school pedagogy has evolved since the days of Paper Chase. The practice of zeroing in on one student and grilling that student about an appellate case has diminished, though some law professors still use that approach. Students were, or are, asked to identify the appellant and appellee, to explain the procedural posture of the case, to describe the issue, to state the holding, and to explain the rationale of the court. Preparation for this experience required, or requires, students to “brief the case,” which is a short-hand reference to reading the case, usually multiple times, and writing out the responses to each of the tasks, in expectation of being the student questioned when the case comes up for consideration in the classroom. By the time students finish the first year of study, they ought to be able to dissect a case in this manner. For that reason, this approach faded somewhat in some upper-year courses even earlier than it began to fade in some first-year courses. Compounding the shift is the existence in the upper-year curriculum of courses that are based entirely or mostly on statutory law and not case law.

Though I usually enjoyed being the target of professorial questioning when I was in law school, I also considered it not as helpful to becoming a lawyer as it professed to be. That conclusion was reinforced by my practice experiences when I graduated and went “out into the practice world.” It became very clear to me, quickly, that lawyers were not briefing cases but were almost always confronting another aspect of law.

That is why I tell my students, lawyers try to help clients prevent problems and to help clients solve problems. Whether the client is someone coming into a law office, or a judge for whom the attorney is serving as clerk, or a corporation for whom the attorney is working in-house, or a public official on whose staff the attorney serves, attorneys are constantly trying to prevent or solve problems. When approached through the lens of a transaction, the skills that are valuable in dealing with problems in this manner are much easier to describe, explore, critique, and develop.

Teaching from the problem method approach, that is, examining fact situations to ascertain how a problem could have been avoided, and how the problem, if not avoided, can be solved, dovetails nicely with a transactional approach to teaching law. It makes no sense to restrict the legal analysis to a narrowly defined area of law when trying to resolve a landlord-tenant dispute or a computer hacking.

The conclusion that a combination of the problem method in the context of a transactional approach isn’t to propose that all doctrinal courses that examine one area of law are of little or no value or should be eliminated wholesale. Nor is it to suggest that case analysis needs to be abandoned. But it is to suggest that when the pieces of traditional doctrinal courses that fit well into a transactional course are removed, the traditional doctrinal courses will be smaller in terms of time and credits, and perhaps more likely to be moved from the first year to an upper year or vice versa. And it is to suggest that the case method is a useful tool that should be part of a collection of similar tools used in a transactional course rather than as the sole approach to a course focused entirely on doctrine. Case analysis, standing alone, is much less powerful than when coupled with a problem method approach focused on the transactions planned or encountered by clients.

For several decades, I have been an advocate for shifting the core law curriculum from a bundle of doctrinal courses to a larger group of smaller transactional experiences. For more than a century, law students are exposed to the law in packages that focus on a specific area of law. For example, the typical first-year law curriculum includes courses in torts, property, contracts, criminal law, civil procedure, and perhaps one or two other courses. Upper-year law students, though given the opportunity to enroll in clinics, trial practice, seminars, and similar courses, also select from courses in taxation, wills and trusts, business organizations, evidence, family law, constitutional law, and a long list of other courses. All sorts of combinations can be found in American law schools. Even more permutations can be identified when looking at the package of courses in which each individual law student enrolls.

The difficulty with approaching law in this manner is two-fold. First, in every instance in which an issue in one course dovetails with an issue in another course, full examination of that issue usually is curtailed. A transaction that involves an issue is examined only from the perspective of the doctrine being examined in that course. Second, where there are transactions that require analysis of issues spanning the coverage of multiple courses, duplication might occur or, more frequently, students are left to put the pieces together on their own, which few, if any, do unless they encounter the transaction in an advanced course such as a clinic, or until and unless they encounter the transaction in practice.

Several examples illustrate the problem. Some years ago, when teaching the wills and trusts course, I started to focus on a case that the authors of the textbook had included because it was relevant to the issue in question. A student raised her hand and said, and I paraphrase, “We have already discussed this case in Constitutional Law and in Family Law so can we please not go through it yet again? Can we look instead at something that’s only in this course?” I acceded, and became a bit more aware of the duplication issue. Recently, again while teaching the wills and trusts course, I realized that when considering the identification of spouses and children for purposes of inheritance and will language, we were going over the same ground as is covered in the family law course. The issue of whether someone is someone else’s spouse is not confined to one course.

One of the complaints from law faculty is that the law continues to grow and yet the time frame available to deal with the law not only has held constant, but also has shrunk. The shrinking is a result of shorter semesters, and student enrollments shifting from some of the core doctrinal courses into externships and specialty courses. Certainly, under those circumstances, dealing with particular issues in multiple courses when other issues are cut out of courses and not treated anywhere in the curriculum, is not the best approach when dealing with curtailed course time.

What would transactional courses look like? They would be constructed around a transaction or a bundle of related transactions. They could be designed to be semester-long courses, or as partial-semester courses. Yes, there would need to be some coordination so that students could maintain a fairly even credit load throughout a semester. Some of the courses that come to mind include, Renting an Apartment and Buying a House (as one or two courses), The Legal Implications of Intimate Relationships, Selling Property at Garage Sales and Online, The Legal Consequences of Buying and Selling a Vehicle, and The Client Who Is Writing a Song or a Book, to name a few.

Consider a course in Renting an Apartment. The issues arising when a person rents an apartment currently can arise in traditional doctrinal courses such as Property, Torts, Criminal Law, Taxation, Debtor-Creditor Law, Bankruptcy, and Family Law. Whether a rental situation is discussed in any particular one or more of these courses at a particular school depends on what the person teaching the course decides to include. There’s no right or wrong in that, per se. It’s simply a matter of what a practicing lawyer considers when counseling or otherwise helping a client deal with a landlord-tenant situation. Clients don’t walk in and say, “I have a torts problem.” Nor do lawyers usually react by thinking, or saying, “I learned about this in the Contracts course,” because the issues that the attorney brings into the analysis were considered in multiple courses.

There are several other advantages to approaching law teaching in this manner. These are benefits from the perspective of the students.

First-year students almost always feel intimidated or overwhelmed when their courses begin. Even upper-year students can feel that way though perhaps not as frequently or as intensely. The volume of material is substantial, the approach of the professor can be confusing, the language is complex, and the material can seem abstract. Approaching law from a transactional perspective chops things into what I call “digestible pieces” that are easier to assimilate. The material is less abstract and more practical.

Law students also tend to consider the package of materials encountered in a course to be somewhat detached from their own experiences. Starting one’s substantive law education with a course covering transactions in which the students have engaged, or which they can easily envision themselves experiencing, are more likely to grab their attention, fuel their interest, and engage their intellect. The excitement of entering law school that so often is unfortunately dampened within a few weeks is more likely to persist when the relevance of the course comes close to home.

Another advantage of the transactional course approach is that it meshes well with the problem method of teaching and learning, which I will discuss in the next installment in this series.

Though I’ve never taught, or even proposed, a transactional course of this nature, because the opportunity did not exist nor the concept acceptable to enough people, I do bring some elements of this approach into the courses that I teach. Putting the focus on the client not only helps in this effort but pretty much requires it. Focusing on an issue in the context of the client’s concern makes it difficult to shove aside any aspect not within the tight confines of the course syllabus. Admittedly, there are times when, because of credit hour restraints, I tell the students, “We must leave the details to the [whichever] course.” I’d rather not do that. Whether I ever get the chance to teach a transactional course in this manner is questionable, but as the years have raced by, the odds have decreased quickly. It will be for those in the next generation of law teachers, and the generation succeeding that one, to shepherd these changes, which I hope will become commonplace.

I have been teaching law for 39 years. During that time, I have had many opportunities to think about teaching law, to discuss teaching law with deans, other faculty, and students, to change how I teach law, and to adopt various approaches in an effort to improve the teaching of law by myself and by others. Though from time to time I have shared on this blog some of my pedagogical ideas, I decided it is a good time to collect my thoughts in one place

Of course, these are not all of my thoughts. My thoughts about teaching law continuously change, as I re-evaluate what I have done and am doing as I teach law.

Nor are these thoughts collectively a complete blueprint for structuring the teaching approach at a law school. It is more a matter of putting these experiences, ideas, experiments, and goals on the table, so that others can consider them as they think about their own teaching, the teaching they encountered as students, and the teaching that they might experience as they contemplate entering or continuing a law school education.

Though it might be tempting to view this series as a criticism of current law teaching generally, that is not what is nor what it is intended to be. In fact, some of the ideas that I share are not unique to me, but have been adopted by others over the years. Granted, there is some implied criticism to the extent that some of the thoughts I share reflect an attempt to adapt law teaching to the changes that have overtaken the practice of law.

When people wonder why the federal tax law is such a mess, I advise them to take a close look at how tax legislation moves through the Congress. Few people bother to do so, and most of those who do give up several paragraphs into any description of federal legislative processes. It certainly does not line up with what people have learned in civics courses in high school.

About a month ago, in More Bad Tax Law: The Price For Not Listening to The Citizenry, I wrote about the 2017 tax law change that ended up causing a provision intended to apply to trusts to adversely affect the taxation of benefits received by surviving spouses and children on account of the death of the other spouse and parent while on active military service. I noted that “Congress is now ‘scrambling’ to fix the mess.

The use of the word “scrambling” probably was read as meaning “rushing” but, as described in this story, it apparently means “messing up” in the ways eggs are stirred together. What happened?

Instead of proposing a bill to fix the problem and having it move through both houses of Congress, which it surely would have passed unanimously or near unanimously, the legislators managing the fix attached it to a bill that would revise some of the Internal Revenue Code provisions dealing with the tax treatment of retirement plans. When the retirement plan legislation was proceeding through the House, it also had legislation attached to it that would have changed the rules for section 529 education plans. After objections, that portion was removed, and the retirement plan legislation, with the fix for the military benefits taxation problem, sailed through the House by a 417-3 vote.

And then the combined bill went to the Senate, where, since the 2018 mid-terms, almost all House legislation goes to die because the Senate Majority Leader, acting single-handedly, refuses to bring the legislation to the Senate floor. This time, though, the holdup is attributed to as many as six Republican Senators. This now requires the chair of the Senate Finance Committee to try to find out why these Senators are holding up the legislation. The retirement portion of the legislation is very similar to one that the Committee’s chair and ranking member have been working on, in a bipartisan manner, for the past six years.

The holdup might be connected to what happened in the House. When the section 529 education plan changes were removed because of objections by Democrats, the military benefits fix was added to the bill to “sweeten” it for House Republicans. But there might also be other reasons for the holdup. This mess leaves me with three questions.

First, why aren’t Senators required to state publicly why they are holding up legislation? Aside from national security details, the Congress should operate transparently. Members of the Congress are representatives, and not rulers.

Second, why does the Congress insist on stitching provisions together when doing so causes members of Congress to vote for provisions they don’t support or to fail to vote for provisions that they do vote? I understand that the reason for combining provisions is a political tool, but representation of this nation’s citizens requires something of a higher quality than the detritus of politics.

Third, what would happen if each of the three proposals – one for the retirement plans, one for the section 529 plans, and one for the military benefits fix – were moved through the Congress separately? I suppose this question consists of three questions, namely, would each of these provisions pass? I don’t know what would happen to the first two, but I am confident that the military benefits fix would sail through both the House and the Senate. That provision deserves to be enacted, quickly and unencumbered by the politics or other issues afflicting the other two provisions.

Until politicians put the nation and its citizens above party loyalty and payback for lobbyists and campaign fund contributors, the legislative process will suffer, and so, too, will Americans. The only people who can change this mess are Americans. Will they?

Usually, when I write about the Philadelphia real property tax, it’s a matter of dealing with assessment complaints, procedural snags, and collection issues. I have described these concerns in posts such as An Unconstitutional Tax Assessment System, Property Tax Assessments: Really That Difficult?, Real Property Tax Assessment System: Broken and Begging for Repair, Philadelphia Real Property Taxes: Pay Up or Lose It, How to Fix a Broken Tax System: Speed It Up? , Revising the Board of Revision of Taxes, How Can Asking Questions Improve Tax and Spending Policies?, This Just Taxes My Brain, Tax Bureaucrats Lose Work, Keep Pay, Testing Tax Bureaucrats Just Part of the Solution, A Citizen Vote on Taxes, Freezing Real Property Tax Reassessments: A Nice Idea, The Tax Price of a Flawed Tax System, Can Bad Tax Administration Doom the Tax?, Taxes and Priorities, R.I.P., BRT, A Tax Agency Rises from the Dead, and Tax Law as Subterfuge: Best Use Valuation v. Current Market Valuation, How to Kill a Bad Tax System That Will Not Die?, The Bad Tax System That Will Not Die Might Get Another Lease on Life , Robbing Peter to Pay Paul, Tax Style, Don’t Rob Peter to Pay Paul: Collect Unpaid Taxes, The Philadelphia Real Property Tax: Eternal Circles , A Tax Problem, A Solution, So Why No Repair?, Can the Philadelphia Real Property Tax System Be Saved?, and Pay Tax Now? Pay Tax Later?.

This time, however, I am writing about an issue that involves not only the Philadelphia real estate tax but taxes generally. A recent Philadelphia Inquirer article describes the unhappiness of Philadelphia property owners who are facing increases in their real estate taxes, not because of a rate increase but because the assessed values of their properties have increased. Unlike some Pennsylvania jurisdictions, Philadelphia is not required to lower the tax rate when the tax base, that is, the combined assessed values of properties subject to the real estate tax, increases. Some city officials have proposed that the rate be lowered. Others point out that because the city itself, as well as the school district that also relies on the tax, face higher expenses, lowering the rate would require raising other taxes, cutting services, or some combination of both. At least one politician wants “revenue-neutral assessments” but that approach, though arithmetically possible, would require assessing properties at less than fair market value, which would violate state law.

The revenue neutrality debate caused me to think about another tax that increases as values increase. Consider the sales tax. With a fixed rate, the amount of the tax increases if the price of the item increases. Trying to implement a reduced sales tax rate to keep sales tax revenues level when overall prices increase would be somewhat of a nightmare for merchants and state revenue departments, even with the assistance of digital technology. It would not surprise me if, when someone advocated making the sales tax revenue neutral, opponents of the idea would point out that the overall price increases causing sales tax revenues to increase would also cause the costs faced by state and local governments to increase.

Then the word “tariff” popped into my mind. Prices of many items in this country are beginning to increase substantially thanks to tariffs imposed in a futile effort to inflict financial pain on other countries. Tariffs, of course, are not paid by other countries but are paid by domestic merchants and residents of this country. Take, for example, automobiles. Almost all jurisdictions, perhaps all jurisdictions, that impose a sales tax subject automobile purchases to that tax. If tariffs cause the price of automobiles to increase, as surely they will, a $3,000 increase in the price would generate, in Pennsylvania with its 6 percent tax, an additional $180 of sales tax revenue. Multiply that by the number of automobiles sold in the state, add in boats, trailers, airplanes, and everything else subject to the tax, and the tariff is generating not only an inflationary increase in the price of goods, but an increase in state and local taxes. True, the higher prices might compel those who are not wealthy or sitting on piles of corporate cash to cut back on their purchases, but at least a majority of Americans are already limiting their purchases to bare necessities because of the nation’s income and wealth imbalance, and don’t have the luxury of bargaining in the marketplace and they certainly don’t control the marketplace. They’re stuck. I wonder if the tariff advocates let their thinking process go this far in analyzing the consequences, assuming that a thinking process and not a limbic system reaction inspired the tariff decisions.

Readers of MauledAgain know that I have been a critic of the 2017 tax legislation, because it is terrible for most Americans, is mostly a giveaway to the oligarchs, is sloppily drafted, and has caused all sorts of unintended but adverse consequences for taxpayers least able to handle those consequences. I have criticized this tax “reform” mess since the legislation first started making its way through a Congress insensitive to the plight of most Americans. I have written about the flaws of that legislation in posts such as Taxmas?, Those Tax-Cut Inspired Bonus Payments? Just Another Ruse, That Bonus Payment Ruse Gets Bigger, Getting Tax Cut Benefits to Those Who Need Economic Relief: A Drop in the Bucket But Never a Flood, Oh, Those Bonus Payments! Much Ado About Almost Nothing,
You’re Doing What With Those Tax Cuts?, Much More Ado About Almost Nothing, More Proof Supply-Side Economic Theory is Bad Tax Policy, Arguing About Tax Crumbs, Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans, Yet Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans , Is Holding On To Tax Cut Failures Admirable Perseverance or Foolish Stubbornness?, What’s Not Good Tax-Wise for Most Americans Is Just as Not Good for Small Businesses, Don’t Want a Crumb? Here’s Dessert But Give Back Your Appetizer and Beverage, How Tax Cuts for Large Corporations and Wealthy Individuals Impact Jobs, and Broken Tax Promises: When Tax Cut Crumbs Are Brushed Away.

Now comes a Congressional Research Service report, as described in various stories, including this one from Forbes, that concludes the 2017 legislation “had little measurable effect on the overall US economy in 2018.” The report concludes that “the tax cuts didn’t come remotely close to paying for themselves by turbocharging the economy as President Trump repeatedly promised.” The Forbes story notes that the report’s conclusions surprised almost no one, because “most independent analysts predicted more than a year ago that the law would have little economic impact.” It’s nice to know I was not alone.

In response to the report, acolytes of the failed supply-side, trickle-down nonsense now claim that the legislation’s supporters “never really promised a big short-term burst of economic growth/” Really? It’s so sad that so many people have such short memories.

So what did the 2017 legislation do, aside from making a mess of things for taxpayers of modest or little means? It “substantially lower[ed] effective corporate tax rates and generate[d] a flood of stock buybacks and dividends for shareholders.”

What did the 2017 legislation not do? It didn’t pay for itself, causing a dangerous surge in the national debt, which will end up being a burden for taxpayers of modest and little means, unless, of course, the unwise 2017 enactment and its consequences are reversed by a future Congress and Administration that represents all Americans and not just oligarchs, large corporations, and their apologists. Similarly, the 2017 legislation did not bring the typical worker the promised $5,000 annual salary increase. Adjusted for inflation, wages “grew more slowly than overall economic output, and at a pace relatively consistent with wage growth prior to passage of the TCJA.” If salary increases for the oligarch class are removed from the wage computation, the salary situation for the rest of working America is even worse. Attempts to obscure the failed promises attached to the legislation that focused on bonus payments must be evaluated in light of the fact that “reported bonuses were equivalent to about $28 per US worker.”

The 2017 tax legislation is a failure. It was sold to the public as something other than what it is. Unfortunately, it has become too easy in this day and age to con people. The con artists are alive and well, and they’re not just making robocalls.

In the past, I have written about major league soccer franchise owners demanding public financing of their private enterprises. For example, it has happened in St. Louis, as I described in If You Want a Professional Sports Team, Pay For It Yourselves; Don’t Grab Tax Dollars, and Nashville, as I described in Tax Breaks for the Wealthy Leave the Wealthy Begging for Handouts from Taxpayers. Of course, soccer franchises are not alone in seeking public financing for private sports businesses, as I have discussed in posts such as Tax Revenues and D.C. Baseball, Putting Tax Money Where the Tax Mouth Is, Taking Tax Money Without Giving Back: Another Reality, Public Financing of Private Sports Enterprises: Good for the Private, Bad for the Public, Taking and Giving Back, If You Want a Professional Sports Team, Pay For It Yourselves; Don’t Grab Tax Dollars, More Tax Breaks for Those Who Don’t Need Them, and A Tax Break That Pays For Itself?.

Now the situation has arisen in Cincinnati, and it has become a mess. A year and a half ago, as reported in this story, officials in Cincinnati and Hamilton County, Ohio, agreed to divert $51 million in tax revenues to finance a portion of the cost of bringing a major soccer league franchise to the city.

Now comes news that Cincinnati’s ability to fork over the funds it promised might have been impaired. The city had approved diverting a portion of its local hotel tax to the private enterprise project. But in order to do that, it needs the approval of the independent Convention Facilities Authority, which has oversight of the tax. The Authority is concerned that if its revenues are diverted to a soccer project, it will lack the funds needed to maintain the convention center and to make payments on the debt incurred to build the convention center. It wants the city to promise to replace the diverted funds. That, of course, means that the city either must raise taxes or divert spending from yet another public project. Either way, taxpayers, even those who are not soccer fans, will pay. The city, in turn, claims that it is Hamilton County preventing the city from channeling the hotel tax revenues into the soccer franchise. The dispute threatens to delay the construction of the franchise’s stadium.

There is a lesson to be learned from this mess. Though in theory it appears easy to shift public funds into private hands, the practical reality of the logistics can present a variety of obstacles. None of this would happen if the wealthy individuals and profitable corporations desiring to own professional sports franchises used their own money. They are willing to ask people who are not fans of their particular sport to bear the financial burden of that sport, even though they are among the strongest opponents of imposing taxes for any purpose they don’t support. Like other private enterprise owners, they should turn to their potential customers and patrons, and ask them to contribute to their dream. If they don’t want to do that, and don’t have enough money to finance their dream of owning a professional sports franchise, they are welcome to join the ranks of the 99.8 percent of Americans who also lack the money to acquire a professional sports franchise.