MauledAgain

Readers of MauledAgain have emailed me. Reporters have called me. Paul Caron's TaxProf blog alerted me. The news is now a week old. For it was last Friday that the United States Court of Appeals for the District of Columbia Circuit issued an order vacating the judgment in Murphy v. United States, and setting a date and time for briefs and oral arguments in front of the same three-judge panel that rendered the decision in August.

It's not time to repeat my position on the decision. In terms of the analysis, nothing has changed since I shared my thoughts in Why Hold Section 104(a)(2) Unconstitutional When There's No Need to Do So?, It Didn't Take Long: Negative Reaction to My Criticism of the Murphy Decision, The Murphy Opinion and Tax Protesters, and En Banc Hearing in Murphy? Will It Happen? What Will Happen?. The short version is that it is a bad decision. My prediction that the entire D.C. Circuit Court would not permit it to stand seems even more likely to pan out. Of course, I'm far from alone in my opinion or my prediction.

What's interesting is that the case has been set for hearing in front of the same three-judge panel that issued the decision, and not in front of the court en banc. The government had requested an en banc rehearing, and not a panel rehearing. It's unclear how the case ends up as a panel rehearing, though one might guess that the court deemed the request for en banc rehearing to include a request for a panel rehearing. Why not simply grant the motion for an en banc rehearing? My guess is that the full court does not want to embarrass the three-judge panel, and that it is being given an opportunity to change its decision and rewrite its opinion. If the entire court agreed with the three-judge panel, the logical choices would have been to deny the government's motion for an en banc rehearing, or to have granted it and emphasized the full court's agreement with the three-judge panel. The only reason, it seems to me, to put the case in front of the three judges once again is what my children called "do over." I suppose I was wrong when I told them that in real life "do over" isn't an option. It is, this time, for three judges who have a great opportunity to set things to right. I'm also going to guess that most, perhaps all, of the judges on the D.C. Circuit have been reading the commentaries by tax practitioners, tax law faculty, constitutional law experts, and others.

Do I dare predict the outcome? I'm tempted. I think the three-judge panel will revise its opinion. It might, for example, try to remove any suggestion that it supports the position advocated by tax protesters that wages do not constitute gross income. It might, for example, clean up the language that treated section 104 as an inclusion provision. I'm not certain, though, that it will reach a different conclusion.

With oral argument scheduled for near the end of April, it is unlikely there will be anything from the court before June at the earliest. Surely there will be many other tax issues to contemplate while the briefing process and oral argument in Murphy is underway. And we know there will be some more Murphy stories to blog as 2007 moves along.

Speaking of 2007, Happy New Year. Yes, it's a bit early, but I doubt I'll be back with a MauledAgain posting in 2006.

With each passing year, the number of taxpayers subject to the alternative minimum tax (AMT) grows, as does the attention given the issue in mainstream media. It is a popular tax topic for journalists, as evidenced by reports such as this one, particularly because its growing reach does not sit well with those who are brought within it on account of the way the AMT is structured.

Though Congress has tinkered with the AMT to offset some of its growth, the fixes are temporary. When those fixes expire, assuming that they are not extended, as many as 30 million taxpayers may find themselves subject to a tax that was designed to prevent wealthy taxpayers from using tax breaks to reduce their income tax liability.

Some reformers call for repeal of the AMT. Others think that further polishing will solve the problem. For example, one proposal is to make capital gains and dividends that otherwise are taxed at special low rates subject to the AMT. Take a look at Linda Beale's "Congress Fiddles While Middle America Burns: Amending the AMT (and Regular Tax)". Others suggest permanent increases in the threshold amounts below which the AMT does not apply. A few have advocated repealing the regular income tax and letting the AMT be the structure used to compute income tax liability.

I take a very different approach, though I doubt I am the only one to consider it or even to adopt it. To me, the AMT is nothing more than a patch on a very flawed regular income tax. In other words, if the regular income tax were properly designed, there would be no need for a "fix" to deal with the consequences of taxpayers whose regular income tax liabilities are reduced because they take advantage of the deductions available in the tax law. If the regular income tax causes some taxpayers' tax liabilities to be less than what people think they ought to be, and yet those tax liabilities are computed properly, then the problem is in the design of the regular income tax. In other words, the existence of the AMT is proof positive of the flaws of the "regular" tax. Fix the regular tax and there's no need to fix the fix.

The most frequently heard or read disagreement with my approach is a political one. Succinctly, it is easier for a politician to tinker with the AMT than it is to fix the regular income tax mess. It takes far more courage, far more vision, and far more technical savvy to heal the wound than it does to change the color of the band-aid.

Sadly, it probably is true that the Congress, whether controlled by Democrats or Republicans, will not do what needs to be done. Whether it will adjust the AMT remains to be seen, but surely the eternal quest for votes will trigger some sort of relief lest the next electoral results exceed a simple turning out of the incumbents.

The intrusion of politics is unfortunate. Service to country and fellow citizens has taken a back seat to loyalty to party and party bosses. Crafty publicists hawk tax breaks in a superficial manner, leading taxpayers to think they are getting a tax break even though the AMT blocks that tax break from having any real effect. How is this possible? The tax law is so complicated that most taxpayers don't understand that they are being conned. Perhaps it is not a mere oversight that tax law is not taught in the nation's high schools.

What's worse, some people prefer a flawed regular income tax system. They have more to gain by it than from a transparent, honest, efficient, sensible and fair income tax system. The advantage of a flawed tax system is that it permits the folks who think they're entitled to go straight from the left turn lane and to cut in front of everyone who have been waiting patiently to sneak in a special break without anyone noticing, while also tossing in symbolic tax reductions that end up vaporizing under when the AMT is applied.

Nonetheless, I offer this challenge to the newly elected Congress whose members have assumed a mandate of "leading this country in a new direction" to back up their promises with action. Rather than wasting time and intellectual capital arguing over the trivial stuff, take the opportunity to clean up the income tax mess. Jettison the dozens of exclusions, deductions, and credits directed toward special interests, put an end to special low tax rates, remove the working poor from the tax rolls, and restore progressivity so that someone with $30,000,000 of taxable income is taxed at meaningfully higher rates than someone with $1,000,000 or $400,000 of taxable income. Done properly, a genuine reform would permit reduction of tax rates so that there would not be as much incentive for special interest groups to seek special tax breaks and would permit repeal of the AMT. The Pennsylvania individual income tax, with few exclusions, almost no deductions, a handful of credits, a prohibition against using a loss in one category of income to offset income in another category, and a rate of just over 3 percent, simply doesn't attract the sorts of power brokering, back room dealing, hideaway dinner meetings, and disguised lobbyist favors that have infected the federal income tax.

The incoming Congress has a golden opportunity to make a genuine difference. Let's see what it can, and cannot do.

The other day I commented on IRS chocolate and pointed to it as a gift suggestion. Now comes a much longer-lasting gift. It's in the form of news, described in an article with a fun headline: Chocolate Can Do Good Things for your Heart, Skin and Brain.

Indeed. According to the report, chocolate also increases blood flow, reduces clotting, reduces platelet stickiness, decreases bad cholesterol, prevents cell damage, reduces inflammation, reduces blood pressure, assists muscle recovery after exercise, promotes smoother and moister skin, helps memory, lengthens attention span, reduces reaction time, and sharpens problem-solving ability. But there's no proof it functions as an aphrodisiac.

It has to be dark chocolate. White chocolate doesn't provide the benefits because the flavonoids, the source of the good health, have been removed.

Yes, folks, as I've been saying for years, chocolate is medicinal. Just don't overdose. The good news is that we can drive and operate heavy machinery after taking our daily allotment.

Yesterday, on his TaxProf blog Paul Caron directed our attention to a New York Times story that suggests the recent increase in December births is a consequence of tax law changes. Paul was alerted to the story by none other than Villanova's dean, Mark Sargent. It's always good for law school deans to know how pervasive tax law can be, for it lets them understand the value of tax law professors. Ha ha.

In the story, To-Do List: Wrap Gifts. Have Baby, David Leonhardt provides an interesting array of observations:

1. Modern medical technology has made it easier for women to select a day for their child's birth.
2. For four of the seven years from 1997 through 2003, December has pushed September aside as the month with the highest number of births; data for years since 2003 has not been released.
3. Since the early 1990s, the tax code has provided an increasing number of tax benefits based on the existence of, and number, of a taxpayer's children.
4. The tax value of a child being born before the end of the year, in contrast to after the beginning of the next year, is in the thousands of dollars.
5. Among the tax breaks are the dependency exemption deduction, the child tax credit, the earned income tax credit, and the medical expense deduction.

From these observations, Leonhardt concludes that the tax law is encouraging people to have children in December. He acknowledges that this conclusion isn't easy to accept. He quotes one economist who describes the spike in December births as "astounding." Because there are other reasons people might prefer having their children in December, several economists ran some tests and determined that there was a correlation between tax breaks and birth timing. Leonhardt concludes that of the 70,000 children who would otherwise be born during the first week of January, 5,000 have their births "accelerated" into December "partly for tax reasons." One of the economists thinks Leonhardt's estimate is "conservative."

Two salient concerns jump out at me. The first is whether people ought to plan their child's birth dates with deference to the tax laws. The second is whether people ought to take steps to "accelerate" a child's birth in order to obtain tax benefits.

Perhaps I am naive, or perhaps I am a cynic. I don't think people ought to do things that they otherwise would not do because there is a tax advantage for doing so. The tax law ought to be a factor only when it influences the taxpayer to select one of two or more choices any of which would be acceptable to the taxpayer. Thus, the tax law encourages taxpayers to select a particular form of business entity but it ought not cause a person to operate a business in the first place that the taxpayer would not otherwise choose to own. I've always wondered, and half-jokingly ask my tax students, if people sit around and decide to adopt a child because the Congress enacted or increased the adoption credit. Now I'm beginning to worry that perhaps people do think in those terms. Can you imagine a child being told that he or she was adopted because the tax laws induced the parents to do so? Perhaps I am wrong in thinking that the days of having as many children as possible because there were many acres of farmland to till are behind us. Leonhardt thinks that "[u]nless you’re a cynic, or an economist," it might be too much to think that the tax law has intruded on something so personal as the decision to have a child. I share his astonishment.

But even if one accepts the idea that people who might otherwise not have children decide to do so because of the tax law, or choose to have more children than they otherwise would have because of tax advantages, it is even more difficult to accept the notion that medical technology ought to be used to bring a child into the world before nature says it is time to do so. Aside from medical necessity that demands earlier birthing, doing Caesareans or pumping up the pitocin in order to make certain the child arrives before the ball falls on Times Square is dangerous. Leonhardt points out studies that show infant mortality increases when Caesareans are performed. I'm going to guess there is more risk to the mother as well. Compounding this approach is the increased cost of accelerating a birth. Leonhardt asks if the "health care system should be subsidizing parents' desire for a smaller tax bill." Good question. Easy answer. No. According to Leonhardt, some health care systems are now discouraging voluntary birth acceleration.

Leonhardt suggests a solution, and his suggestion makes sense. The tax advantages pegged to a child should be prorated, so that having a child in December would qualify a taxpayer for a small fraction of what's at stake. The significance of "out before the ball drops" would disappear. Of course, the proration also should apply to other instances where the tax law currently puts a premium on making a personal decision by midnight of December 31. Thus, for example, two individuals who marry on December 31 would be entitled to use joint return rates for 1/365 of their income rather than for all of it.

I doubt Congress will take the suggestion seriously. It's too easy to win votes by proclaiming one's self as pro-family and by proving one's status as pro-family by voting for enactment and retention of tax breaks that reward the acceleration of marriage and births. Never mind that the tax breaks are doing damage to children and mothers.

I don't understand why people who are planning to have children don't simply just have them. So what if the child arrives in September or October? What's the point in delaying the child's arrival until December and then resorting to Caesareans or pitocin to avoid a January birth? The cost of raising the child isn't reduced, and probably increases because inflation will make the cost of raising a child born in December of 2006 slightly higher than the cost of raising a child born in September of 2006. Could people be factoring time value of money into the computation and determining that the highest internal rate of return on having a child occurs when the child is born on December 31? Yikes, I cannot imagine how people whose decisions are based on that sort of reasoning determine how much to spend on an engagement ring or when to present it. "Excuse me, dear, but please stop complaining that you didn't get a ring on Valentine's Day. My financial adviser tells me it's best to pop the question next Thursday." OK.

Yesterday, I closed a commentary posted to a tax professor listserve with this observation: "The sad aspect of the story is that people should have children for every reason other than tax savings. What's next? Investing in a partnership that purchases children instead of oil and gas or real estate investments?" A tax colleague on the West Coast replied, "In many cases, leasing provides greater flexibility and superior discounted cash flow." He got me.

Paul Caron, over at the TaxProf Blog has started a series on "Christmas Gifts for that Special Tax Person." His first suggestion, he presents the framed exact reproduction of the original 1913 Form 1040. Oh, well, I already have one of those, a gift from family some years ago. It hangs in my dining room, catercorner to a framed blowup of the BNA Tax Management advertising copy with my portrait on it. Now that is something one won't find in stores. As far as I know, only one other print of that size exists, and the last time the other copy was in front of my eyes was when I walked through the lobby to Tax Management's offices. Considering that a few years have passed, perhaps it has been supplanted and consigned to storage or worse. I hope not. When they decide to toss it, I'd love to have it. Then each of my children can have one when I move on!

It's Paul's second suggestion that has me mesmerized. Did you know there are IRS chocolates? What an unexpected combination. Chocolate and the IRS. Perhaps what makes them good partners is that both operate with bean counters. OUCH, that was really bad. Sorry. Go take a look at Paul's blog, because the photos alone are worth the visit. They come in cases of 50 (though one version comes in cases of 20). Let that not stop anyone who wants to buy me a gift and doesn't know what to get. Don't worry, I'll share. Apparently Linda Galler brought these to Paul's attention. I don't know if Linda sought these out or came upon them by happenstance. Perhaps she, too, has a nose for chocolate. No matter, thanks to Linda for alerting the tax world, and I'm doing my best to spread the news. I know members of my family read this blog. OK, don't complain this year that I never give anyone suggestions. It's true, usually I say, truthfully, that I don't want anything. But this year, aha, these are too good (ouch again) to pass up. The fun question is whether they melt in your hand or in your mouth.

The serious question is whether there is a tax credit for purchasing IRS chocolate. There's a credit for almost everything else. What this country needs is a good chocolate purchase credit. Happy Holidays!

Monday's post, Tax Planning Challenges When Congress Dilly-Dallies brought a most interesting response from Andrew Mitchel, the tax chart guru. He points out that delays in dealing with expiring provisions are not the only snags to productive tax planning. Sometimes a provision that is enacted with an expiration date does not get used because of the uncertainties about its continuation. To quote Andrew, with his permission:

I liked your recent blog about people not acting because certain tax provisions expired and they weren't sure if they would be renewed. In a similar vein, I know that I personally have not made any contributions to 529 plans in the past because the law exempting distributions used for educational purposes was to sunset prior to my children reaching college age. This year the exemption was made permanent. I have now made a contribution to a 529 plan and I know of others that have done the same (for the first time).

Not only do expired tax benefits have distortions on intended behavior, but sunsetting provisions have similar effects.

I wonder if the experts who predict how taxpayer behavior will change in response to legislative enactments take this practical information into account. Perhaps their analyses are limited to the theoretical, a trend that is becoming far too prevalent. The famous question, "If they build it, will they come?" can be rephrased, "If they enact it, will taxpayers use it?"

Yesterday I was at lunch with some members of my family when the conversation turned to teaching, specifically, a tale of a class taught by a soon-to-retire professor whose incompetence caused all but 2 students to withdraw from the course. Essentially, he was not teaching the course as described, but another course. The concern was the removal of the withdrawals that the school put on the transcripts of the students who thought they were in an introductory course. On another day I'll comment about the inability of some higher education administrators to make education what it needs to be, in many instances because of constraints beyond their control.

The discussion about teaching continued with some comments about a teacher's responsibility to stay current with the subject matter. Someone at the table looked at me and commented that at least it would be easier this year in my tax courses because Congress hadn't done anything with the Code. Within a microsecond I explained that Congress indeed had made a slew of changes, as I discussed in last Friday's post, On the Way Out, They Grabbed Tax Breaks by the Hundreds. Trying to think of examples, I turned to the teacher at the table and explained that the preferred (above-the-line) deduction for certain expenses paid by school teachers for classroom supplies, which had expired on December 31 of last year, had been extended. Wasn't that good news?

No, was the response. The teacher explained that she had not made any classroom supply purchases this year because the deduction had expired. Suddenly, I wondered if there was more to the inability of Congress to do things in a timely and sensible fashion than simply my complaints, as exemplified by last Friday's post, about the tardiness, inefficiencies, unfairness, obfuscation, and irresponsibility of the Congress. Could it be that the failure to extend the teacher deduction before the beginning of taxable year 2006 had an adverse impact on the contributions teachers make to the experiences of their students, particularly in impoverished school districts, when they purchase the supplies that students otherwise would not have? So I asked whether the teacher's colleagues had reacted in a similar manner. I was assured that indeed they had. That's too bad. Is this simply the experience of teachers in one school district or is it a nationwide phenomenon? How would I find out? Has anyone surveyed teachers nationally? If you know, drop me an email.

It's bad enough that there are students whose schools cannot provide the required supplies and materials. It's unfortunate, yet a blessing, that teachers will step up to help where society generally fails our children. It's particularly impressive that teachers often make financial sacrifices to do this. In all fairness, though I am critical of the bad teaching that is tolerated in some schools, and even more critical of school administrations that are more political than pedagogical, I also know there are a lot of good teachers in our schools and that some of them are responding beyond the call of duty. And yet the Congress, by hemming and hawing all year playing politics with the so-called extender provisions in an effort to make permanent the estate tax repeal, seems to have done a disservice to education generally.

Yes, it's a small deduction as far as revenue costs go. Understand that it's not a matter of whether there is a deduction, but whether it can be deducted in computing adjusted gross income rather than being washed out by the limitation under section 67 that eliminates these employee business deductions to the extent they do not exceed 2 percent of adjusted gross income. But it's a big issue in terms of impact on our students and their education. Unless, of course, it turns out that the seeming expiration of the deduction did not affect teachers as my conversation suggests.

There is a lesson here. People need to plan. People need to know on January 1 what the tax landscape will be during the year so that they can make informed decisions. December is too late in the year to let people know what the tax rules for the year are going to be. It's not as though the Congress is suddenly presented with a problem. Everyone knew that provisions were expiring in December of 2005 long before the end of 2005. If a person ran a business the way the Congress runs this country, that person would be bankrupt in short order. Oh, wait, the Congress has also managed to rack up huge deficits, but I also will leave that topic to another day.

It's a game that has been played many times. It's late December. The IRS, facing deadlines for a variety of reasons, such as printing and web page re-design, has put together tax forms and instructions for the taxable year 2006. Taxpayers, facing last-minute end-of-year tax planning, make decisions based on the tax law as it exists in early December. Tax practitioners, asked for assistance in this year-end planning, deal with the same situation. Students, preparing for final exams in fall-semester tax courses, assimilate and shape their thinking around provisions in the tax law studied throughout the fall semester.

And then the rug gets pulled out from under these folks. By the Congress, of course. What other institution excels at crisis generation to the degree as does the one whose members inhabit the hallowed halls of the U.S. Capitol?

It's not that the IRS, taxpayers, and tax students did not foresee the possibility. Chatter about pending tax legislation has been underway for months. Yet, for all the predictions and guessing, no one knew with any degree of certainty if the legislation would be enacted, what provisions that were in the introduced bills would survive, what last-minute additions would find their way into the package, and how late in the year the legislation would be signed into law and made official. Topping off this array is the certainty that there are mistakes in the legislation.

If you have several days with nothing to do, take a look at the Tax Relief and Health Care Act of 2006. [Note: if the page does not load, go to the Library of Congress web site and search for Tax Relief and Health Care Act of 2006.] Why a few days? It's hundreds of pages long. Or do what most people do, namely, find a summary that someone else has prepared. The IRS cannot do that. Its personnel must comb through this monstrosity, examining each provision to determine if it requires a change in one or more tax forms or a revision to tax form instructions. The Chief Counsel's office and Treasury must generate a list of regulations projects required by this most recent tax act, and they must identify existing projects needing revision on account of it. Taxpayers must hope that their tax advisors have caught wind of every little provision, especially those stealthily inserted into the legislation at the last moment, items about which there had been little or no precedent chatter. Students might have the easiest time of it, for only the most brutal of tax law professors would expect a student taking an exam on December 16 (as mine are) to take into account changes made during the preceding week. Even I, the advocate of making law school education resemble tax practice rather than a philosophical symposium, don't push my students that close to the cliff of reality. Perhaps I should, but they've got more than enough tax insanity with which to cope.

This year, unfortunately, the IRS forms and instructions process is so far along that the IRS has told taxpayers that they will be using forms and instructions that do not reflect the changes. Taxpayers, and tax practitioners, will need to figure out independently how to modify the instructions in order to incorporate the changes. How seamless will this be? The IRS may issue supplemental instructions, but if the manner in which my tax students, among the nation's best and brightest, have assimilated mid-stream changes over the past two decades is any dedication, confusion will run rampant. One interesting example of what the IRS must do involves the sales tax tables for the revived sales tax deduction. The IRS plans to do another mailing to taxpayers to distribute the tables. Will the Congress step up to the plate and provide the IRS with funds to pay for this mailing, or will the IRS be expected to make cuts in some other program area? Does Congress want less taxpayer service? Of course not, because Congress harps on that issue every week. Does Congress want fewer audits? Wouldn't that make a great headline? Has Congress thought about the impact of the inefficient manner in which it does business?

So what does this legislation do to the tax world?

First, it takes some provisions that seemingly had expired at the end of 2005, and breathes new life into them. Called "extenders," these provisions change the termination date from December 31, 2005, or something like that, to December 31, 2007 or some other date in the future. Credits and deductions that taxpayers thought were dead have been revived. For some taxpayers, it's too late to turn back the clock and reshape business plans or undo personal decisions to take advantage of these revivals. Other taxpayers, having gambled, can chalk up last minute success, though had the particular provision in question not been revived, they would have been in deep financial trouble. Among the provisions that have been extended are the state and local sales tax deduction, the deduction for college tuition, the preferred status of the deduction for classroom supplies purchased by teachers, the research and development credit, the new markets credit, the Indian employment tax credit, the welfare-to-work credit, the benefits accorded qualified zone academy bonds, expensing for brownfields remediation costs, incentives for investing in the District of Columbia, several depreciation provisions, and an array of other provisions with which few taxpayers are familiar and which affect even fewer.

Second, the new legislation takes some provisions that were scheduled to expire at a future date and extends the expiration date even further into the future. For example, a variety of recently enacted tax breaks for assorted energy-saving activities have been given this treatment. Though this might make planning a bit more predictable for taxpayers considering investments and purchases involving energy equipment, there's no guarantee that the 110th Congress won't remove these provisions or turn back the termination date to what it was before the enactment of the Tax Relief and Health Care Act of 2006.

Third, the health savings account provision of the tax law was amended to increase the limit on the tax-free contributions that can be made to those accounts. According to the Washington Post, the changes were "quietly added" by Republican lawmakers "with little public debate" at the "urging of several major business lobbies eager to reduce their medical-insurance costs." The expansion of HSAs does nothing to help the 600,000 children whose health care is imperiled because a funding patch for the State Children's Health Insurance Program was removed from the list of extenders.

Fourth, the new law tosses in a potpourri of changes. The section 199 deduction is widened to include certain activities in Puerto Rico. The credit for prior year minimum tax liability is made refundable if, after three years, there is insufficient minimum tax liability to be offset. There is a new deduction for advanced mine safety equipment in the year of acquisition. There is a new credit for mine rescue team training. The ill-advised special low tax rate for musical compositions is made permanent. Mortgage insurance premiums are treated as deductible interest, for certain taxpayers, through the end of 2007. So if there's a question on the tax exam asking for a True or False answer to the statement "Mortgage insurance premiums on personal residence mortgages are deductible," should it be tossed out? The simple answer "no" has become a more complicated "sometimes." I have previously commented on the ill-advised nature of the mine safety tax breaks and the outright inappropriateness of the tax break for income earned by writing music in contrast to the higher rates on income earned by performing other services.

Fifth, all sorts of changes are made to tariffs and excise taxes. In the interest of brevity and in acknowledgment of my limited familiarity with the details of tariffs and excise taxes generally, I'll let someone else opine on their significance. What needs to be noted is the report in the Washington Post that 520, yes five hundred and twenty, tax breaks were added to the legislation in the tariff area alone.

Sixth, the legislation contains boatloads of changes to Gulf of Mexico energy policy, a premium array of modifications to Medicare, and a long list of tariff changes. Did you know that there was a tariff on N-Cyclohexylthiophthalimide that has been suspended? Did you know there was something called N-Cyclohexylthiophthalimide? According to this site, "Cyclohexyl thiophthalimide is the primary retarder used to prevent premature vulcanization of rubber compounds during mixing, calandering, and other processing steps." Take a look at the legislation's table of contents beginning with section 1111 and ending with section 1493. Tell me how many of the terms you can define without doing any research.

Seventh, the law makes a variety of technical corrections to earlier enactments. That ritual has become habitual, unfortunately. Is it any wonder that corrections are required when the Congress waits until the last minute and then crams all sorts of things into the bill without giving itself or its staff time to do some careful drafting, let alone giving the public a chance to review the proposals and provide comments?

Eighth, this "Tax Relief and Health Care" bill makes changes to the trade law. Particular attention is given to trade with Vietnam, Haiti, parts of Africa, and areas in the Andes. It's amazing how much stuff that isn't tax gets jammed into tax legislation. In this instance, it was mostly a matter of blackmail, though politicians like to call it "leverage." Sorry, changing the word doesn't mask the inappropriateness or inefficiency of such a process.

Something still isn't quite right with the legislative process. A lame-duck Congress has grabbed for its friends and supporters all sorts of financial and tax breaks as its members leave the chambers. Politically, the losers have put the next Congress into a tough spot, because attempts to undo this pork rolling will meet with cries of "insensitive tax raising" from those who are unhappy that someone else is sitting at the public trough. No matter that uncertainty and confusion clouds year-end tax planning, that aggravation and inconvenience, to say nothing of extra work, will afflict the soon-to-start tax filing season, or that students of tax once more find that some of what they have learned has become obsolete before it leaves the starting line. No, somehow the economic wants of the financially powerful that run the country take precedence over the needs of the people. Of course, this flaw in the system is nothing new, as is evident from the many times it has factored into an analysis of tax legislation. For example, during the past 18 months alone the effects of this flawed system have surfaced too many times: There Are Some Things Tax Break Money Cannot (and Should Not) Buy (May 22, 2006); Call the New Tax Bill TROFTHOWT. Why? Read On (May 15, 2006); I Sing a Song of Taxes, a Pocketful of Cries (Nov. 30, 2005); "They" May Be Reading the Tax Analysis, But Are "They" Listening? (Nov. 18, 2005); How Much Energy Does It Take? (June 20, 2005).

The vice-chair of the House Republican Congress put it best: "A lot of members of Congress are just clueless as to what is going on." No kidding. The Constitution imposes minimum age and citizenship requirements for members of Congress, but unfortunately says nothing about intelligence, education, or common sense. The drafters of the Constitution probably assumed voters would take those factors into account when making their electoral choices. Hah.

What's next? A very easy-to-articulate and difficult-to-answer question: Will the 110th Congress restore sanity to the legislative process and to the tax law? Or will it be more of the same?

Julian Block has a tax book hat trick for 2006. Earlier this year, in Tax and Relationships: A Book to Read and Give, I described his "MARRIAGE AND DIVORCE: Savvy Ways For Persons Marrying, Married Or Divorcing To Trim Their Taxes - And They’re Legal." Several months ago, in A New Book on Taxation of Residence Sales: Don't Leave Home Without It, I reviewed Julian's "THE HOME SELLER’S GUIDE TO TAX SAVINGS: Simple Ways For Any Seller To Lower Taxes To The Legal Minimum." Now he brings us "TAX TIPS FOR SMALL BUSINESSES: Savvy Ways For Writers, Photographers, Artists And Other Freelancers To Trim Taxes To The Legal Minimum."

As I mentioned in the two previous reviews, Julian's titles suggest that he is collecting gimmicks, tricks, and ploys with respect to the tax treatment of the selected subject, but the actuality is quite the opposite. What Julian does is to put the spotlight on tax provisions that easily can be overlooked by someone not expertised in taxation. In addition to reminding taxpayers of deductions and credits of which they should be aware, he also spells out in careful detail the common mistakes that taxpayers often make, and why trying for more than the tax law allows is counterproductive. Thus, in his latest effort, Julian begins with an explanation of how difficult it is to demonstrate that activities such as writing, photography, and art constitute trades, businesses, or for-profit activities rather than hobbies.

In this new book, Julian devotes chapters to small business depreciation, health insurance and vehicle deductions for the self-employed, home office deductions, self-employment taxes, net operating losses, and section 1244 stock. He describes the narrow circumstances under which travel expenses for an entrepreneur's spouse can be deducted. He explores the circumstances under which employed of children in a parent's business can be advantageous, and those in which it is not. Practical tips about making payments at the end of the year, keeping records, sending checks to the IRS, extensions of time to file, and making refund claims are covered in five chapters. Julian warns self-employed individuals who hire employees about the risks of failing to withhold and remit employment taxes, a problem that seems to afflict far more people than one would expect.

As with his earlier works, Julian's most recent effort is more suited for the person not schooled in tax law. The many people who start doing business without getting any tax advice, and who for whatever reason do not seek that advice at the outset, would be well advised to buy this book and become acquainted with the tax law parameters affecting writers, photographers, and artists. Doing so would reduce the likelihood of making decisions that generate adverse tax consequences that could have been avoided.

To order a copy, contact Julian Block at 3 Washington Sq., #1-G, Larchmont, NY 10538 or go his website, julianblocktaxexpert.com. Or, as was the case with the previous books, email Julian at julianblock@yahoo.com.

A question that was posed last week presents an opportunity to explain how a student of taxation needs to learn not only rules but methods of dissecting a transaction to identify what is deemed to occur for tax purposes. The fact situation that my students see early in the semester involves an employer who persuades a valued employee to continue employment by transferring an automobile to the employee's spouse. At first glance, almost all students see a transfer from an employer to someone who is not an employee and begin thinking that the rules applicable to gifts would apply. But careful analysis reveals that the transaction, in substance, is a transfer by the employer of an automobile to the employee followed by a transfer by the employee to the spouse. Thus, the compensation rules apply to the employee, and the marital property transfer rules apply to the spouse. I tell my students that this hypothetical serves as a paradigm for many situations in which what appears to be one transaction ends up being treated as two or more steps.

Last week's question was described this way:

Sole owner of an S Corp wants to pay his top employees a bonus of land he owns personally instead of cash.

I assume this would be compensation and would be reported as such on W-2s. Is the amount to report the current FMV or the owner's basis?

One analysis concluded that the owner would be "entitled to a compensation deduction equal to FMV" and would be required to "recognize gain equal to the difference between owner's basis and FMV." This would give the employee an adjusted basis equal to fair market value.

Someone tactfully challenged this analysis by asking where the compensation deduction would be reported on the owner's tax return. Back came a response: "Wages." That, however, though describing the nature of the transaction, does not identify where the deduction would be taken. Schedule C? Schedule E? Schedule A?

Someone else pointed out that what appeared to be a transfer by the S corporation shareholder to the S corporation employee would be a "deemed contribution of the land to the corporation, with a carryover basis and a gain to the corporation when the land is transferred to the corporate employee as compensation for services rendered to the corporation." Bingo. It's a marvelous application of the "automobile transferred to employee's spouse" paradigmatic hypothetical that comes early and often in the basic tax course. Someone was paying attention. So, too, was another respondent, who explained that the deemed contribution of the property to the S corporation would be tax-free under section 351 and give the S corporation an adjusted basis equal to that of the shareholder, and that the deemed transfer to the employee would trigger a compensation deduction and also gain to the corporation because it was using appreciated property to pay an obligation.

At about the same time, I replied, in what turned out to be an incomplete answer. I asked, "Why is this not a deemed contribution of the land to the corporation and a payment by the corporation of compensation?" I overlooked the gain recognition that would fall upon the corporation. I turned too quickly to the "so what?" portion of the question. "Yes, the deduction will flow through to the owner," I noted, so that ultimately the shareholder would get a deduction, but in the form of a reduced amount of income pass-through or a larger loss pass-through from the corporation. So, ultimately, the answer to "where?" is Schedule E, in an oblique sort of way.

But then I pointed out one reason it mattered: "[B]ut (at least theoretically) the determination of whether the compensation is reasonable will be affected by bunching the bonus and regular salary, and the computation of FICA, etc., will differ." Otherwise, the employee's total compensation would be split between two payors, causing a variety of problems in the determination of its deductibility and the computation of taxes and limitations that are affected by total compensation.

This scenario demonstrates that one of the several complexities of tax law is transactional complexity. In this instance, what appears to be a simple transfer turns out to be two transfers, each triggering a variety of tax consequences. Knowing the rules is insufficient, because the first thing that must be accomplished is identification of the facts to which the rules are to apply. Identifying the applicable rules requires an understanding of the facts. This is one reason I reject the "IRAC" (issue, rule, application, conclusion) nonsense hailed by some law professors and bar review instructors as helpful. Sorry, but the first step is to identify the actual facts, because until that is done, there is no way to identify the issue or the applicable rules.

It is important to recognize that these sorts of factual analyses are not something over which tax law has a monopoly. In every area of the law, and in many areas of life, what appears to be a one-step transaction turns out, in substance, to be a two-step even multiple-step arrangement. Yes, the parties could have taken each step. The employer could have transferred the car to the employee and the employee could have transferred it to the spouse. The shareholder could have transferred the property to the corporation and the corporation could have transferred it to the employee. But other considerations must be given their due. Would there be multiple state and local transfer taxes? Would it generate problems with state regulation of the employer or the property? Would there be other transaction costs doubled by the doubling of the actual transfers?

It takes some practice and experience to become facile with the art of "splitting" one transaction into two or more steps for tax or other purposes. That's yet another reason someone who spends a mere three years in law school enters law practice with many unpolished skills and some hurdles to overcome. There is no magic rule or computer program that can parse a transaction. The folks who think tax is a mechanical discipline which provides "answers" to each problem can ponder these sorts of transactions as they try to understand why there are as many situations with no clear answer in tax as there are in other areas of the law.

Slightly more than two years ago, I commented on the tale of Arthur L. Farnsworth, who lost by a huge margin his campaign for Congress, during which he explained that he believed no one is obligated to pay federal income taxes and that he had not paid federal income taxes. Farnsworth's tactics caught my attention, in part, because, as I explained in that earlier post>

Unlike some tax protestor advocates, who encourage people to ignore their tax paying duties while filing their own returns because they don't really believe what they're preaching, this fellow apparently told the truth. At least the IRS and the Department of Justice believed him.

They believed him enough that he was arrested and indicted.

Now comes news that Farnsworth has been convicted of tax evasion. A jury rejected his argument that paying federal income taxes is voluntary and not mandatory. Farnsworth agreed he had gross income and taxable income, but claimed he had a good faith belief that compliance with the tax law is voluntary.

But the jury did not believe him. Taking less than two hours to return the guilty verdict, the jury accepted the prosecution argument that Farnsworth's motives reflected his tax-protester philosophy and not the "intense legal research" Farnsworth claimed he had undertaken to corroborate his position.

Apparently Farnsworth came across as "confident and combative" when he was testifying. Those are two characteristics of many politicians. Farnsworth also racked up a third, namely, extreme difficulty getting people to believe what is being said. It's ironic that the one thing he did say that was believed triggered the investigation, arrest, indictment, and conviction. He was telling the truth when he admitted he had not paid federal income taxes. So, perhaps Farnsworth is different from most politicians, because he had the courage to back up his philosophy with consistent action. Perhaps the judge should sentence him to holding seminars for the nation's politicos. Free of charge, of course, so that Farnsworth isn't confronted with the challenge of deciding whether to pay taxes on the income.

Several months ago, in Adding Up The Telephone Tax Refund, I described how I invested a bit of time adding up the long-distance excise taxes that I had actually paid, and determined that it made more sense to take what I call the "standard refund" offered by the IRS. I am guessing that unless a person spends an unusually high number of hours on long-distance calls, the outcome would be the same for others.

The IRS has now released guidance for organizations computing the telephone excise tax refund. The guidance applies to businesses and to tax-exempt organizations. Everyone has the option of sitting down and adding up the actual excise tax paid during the March 2003 - July 2006 period for which the refund is calculated. Depending on how an organization maintains and retains records, this could be a fairly easy task or a nightmare. The alternative is to use a formula.

Here's how the formula works. Take a telephone bill with a statement date in April 2006, and another bill with a statement date in September 2006. For each bill, divide the total telephone tax that has been paid by the total of the bill. Because the September bill includes only the tax on local service but not long-distance service, the difference between the two percentages generates what I will call the "long distance excise tax percentage." For example, assume that on the April 2006 bill of $200, the telephone tax is $3, and on the September 2006 bill of $100 it is $1. The April percentage is 1.5 and the September percentage is 1.0. Thus, the "long distance excise tax percentage" is 0.5%. Next, add up the telephone bills for the March 2003 - July 2006 period, and multiply it by the "long distance excise tax percentage."

Simple enough?

No!

If the organization has 250 or fewer employees, the "long distance excise tax percentage" is limited to 2.0%, even if the computation generated a higher amount. If the organization has more than 250 employees, the "long distance excise tax percentage" is limited to 1.0%, even if the computation generated a higher amount.

I understand the simplicity of calculating the April and September percentages, computing the difference, and applying that result to the bills for the March 2003 - July 2006 period. I don't understand why there is a limit, nor why the existence of a 251st employee should make the limitation half of what it otherwise would be. Perhaps it's a law of physics or a chemistry formula I failed to learn in college, or learned and have since forgotten. Perhaps it has something to do with time travel or teleportation.

Then it gets even more complicated for sole proprietors. A sole proprietor who reports gross income of $25,000 or less on Schedule C may use the standard refund amount or the long-distance telephone excise tax actually paid. A sole proprietor who reports more than $25,000 of gross income has three options: (1) use the standard refund amount for individuals and the formula for business, (2) use the formula for the business and the actual telephone excise tax paid on the personal bills, or (3) use the actual excise tax paid on both business and personal bills.

There's more. Special rules exist for trusts and estates. Analogous rules apply for farmers. And on and on it goes. Wait, don't hang up!

I wonder how long it will take someone in government to call the refund computation process something that has added 20,000 jobs to the economy, mitigated the downturn in the housing market, strengthened the dollar overseas, or reduced mortgage rates. And if that happens, how many Americans will see the disconnect?

In early October, I explained, in Ready It Was Not: The Demise of California's Government-Prepared Tax Return Experiment, that the California Franchise Tax Board had terminated the Ready Return program, which I had criticized in Hi, I'm from the Government and I'm Here to Help You ..... Do Your Tax Return and in ReadyReturn Not a Ready Answer. Without repeating two justifiably long analyses of the defects of the program, suffice it to say that conflict of interest permeates the arrangement, the track record of government employees in these sorts of situations is too far from ideal, opens the door to fraud, poses logistical problems, tricks millions of taxpayers into thinking that complicated tax laws are not their problem even though they continue to pose a threat to the national well-being, and puts taxpayer privacy at risk. Joined by many other critics, I tried to explain to the advocates of Ready Return why it was the typical "good idea in theory" that falls apart in the real world of tax practice.

In late October, I noted that opponents of Ready Return continued to lobby against it. In As Halloween Looms, Making Sure Dead Tax Ideas Stay Dead, I suggested that perhaps the reason a seemingly dead program was getting negative attention could be found in the many "horror flicks where the monster, the alien, the bad guy, or whomever it is that should be dead appears to be dead but isn't." Opponents of the program were contributing to the campaign of a candidate running for the office of state controller who supposedly did not favor Ready Return.

In my late October post I stated that, "Perhaps most folks think, as I do, that the ReadyReturn experiment is over."

Wow, was I ever wrong.

Along comes news that Ready Return has been resurrected. There is no way to paraphrase the first part of the opening sentence of the story: "State tax authorities defied lawmakers Monday by reviving ReadyReturn..." Yes, "defied." The outgoing state controller, and the incoming state controller, "engineered" the restoration of the theoretically ideal but pragmatically horrific arrangement. The legislature had let funding and authorization for the program expire earlier this year.

The incoming and outgoing controllers, along with the Director of the Finance Department, comprise the Franchise Tax Board, which reinstated the program after being assured by staff that the Board could act on its own despite the actions (or inactions) of the legislature. Yet legislative leaders explained that they would not try to stop the Board from taking this step. Why?

The justification offered by the outgoing controller is the high praise from taxpayers who used the program. But is high praise meaningful when the taxpayers do not know if their returns were properly prepared, if their privacy was protected, if their returns reflected all available tax breaks? Surely a drug dealer's new customers, getting some free "samples" on the corner, have nothing but high praise for their provider. Who gets to audit the returns prepared by the California government on behalf of these taxpayers? Oh, wait, the government will audit itself. Considering the developments of the past many decades, I have little confidence in government getting it right.

Twenty-one other states have taken a different approach. They are cooperating with private sector enterprises, with IRS assistance, in the Free File Alliance, to make available to low-income taxpayers the same software that middle-income and upper-income taxpayers can access directly or through paid preparers. Would citizens prefer food stamps or meals prepared by government employees? It's possible to assist citizens without taking control of their lives, a point too often lost on elected officials, and almost always ignored by appointed bureaucrats. Even so, some members of Congress and others have criticized the Free File Alliance, claiming it exploits taxpayers. I suppose that handing out food stamps exploits hungry citizens, whereas providing government-prepared meals doesn't?

If private enterprises challenge the actions of the Franchise Tax Board, it probably will not be litigation brought by one plaintiff. Not only should we expect Intuit and other software providers to oppose this government intrusion into the private market, other critics, such as the California Taxpayers Association and the California Chamber of Commerce, probably will join, together with other businesses and business groups representing one-person and small firm tax practitioners, to oppose the Franchise Tax Board's unilateral action. Of course, the Franchise Tax Board will not defend such a lawsuit by itself. Stanford University law professor Joe Bankman, who used $30,000 of his personal funds to hire a lobbyist to argue for restoration of ReadyReturn, almost surely will file an amicus brief in support of the program if it gets to that point. Considering reaction I've seen to the news of the program's re-emergence, he almost surely would not be alone.

As I argued in my earlier posts on this subject, would not the state of California, its citizens, and its taxpayers, be better off if the Franchise Tax Board would use its resources to work for simplification of what is one of the two most complicated state income tax systems in the nation? Rather than quieting the complaining voices of millions of taxpayers by doing their returns for them and masking what really is happening to them, the Board ought to confront the problem rather than paper over the symptoms. But because the Board, its members, and the politicians who run California have vested interests in complicated tax systems, they prefer to silence hordes of would-be critics by patting them on the head and telling them, "There, there, Uncle California has everything under control for you."

I cannot imagine why any of the low-income folks supposedly being helped by the government in this program should have any reason to trust the government any more than people do generally. According to this study, "The percentage of Americans who trust the government in Washington plunged from 76 percent in 1964 to 25 percent in 1996." A May 2006 poll indicates that 63% of the people do not trust government, and that 78% think the federal government has too much power. In California itself, according to this recent survey, 29% of those polled "say they trust the government to do what is right just about always or most of the time." I wonder what the other 71% think about the state government doing their tax returns.

There is something much deeper in this entire story than simply the elimination of tax return preparation burdens on low-income individuals. After all, the easiest and cheapest way to attain that goal is to remove low-income individuals from the tax rolls. Ah, but then the control factor isn't there. So what is it, really, that ReadyReturn represents? And though I run the risk of being as wrong as I was when I suggested ReadyReturn had found its appropriate place in the tax idea trash can, it's a foot in the door and a camel's nose in the tent. At what point will all taxpayers simply be told, "we figured out how much of your money we want, thanks for prepaying, see you next year"? Be afraid, be very afraid.

Paul Caron relayed an interesting rhetorical comment about the constitutionality of the Internal Revenue Code on his TaxProf Blog. The observation was triggered by news that Judge Audrey Collins of the Central District of California again struck down a portion of the Patriot Act on the ground that despite amendments to the provisions they remain "too vague" to be understood by "a person of average intelligence" and thus are unconstitutional. The Wall Street Journal Best of the Web commented:

So laws are unconstitutional if "a person of average intelligence" can't understand them? Someone ought to get the Internal Revenue Code before this judge.

Two thoughts occur to me. Neither is reassuring.

The first thought is whether vagueness should be attributed to the Internal Revenue Code. The Code has many faults. It is complicated. It gives multiple definitions to the same word or phrase. It changes so frequently that tax practitioners are compelled to empty portions of their brains and refill them at a faster rate than do many other professionals. It is loaded with special interest provisions that aren't necessarily of benefit to the public generally. It contains provisions reflecting bad policy. But vague? There's nothing vague about the application of the tax rates in section 1 or the rule that a pet cannot be a dependent. Yes, there are questions that the Code does not answer, but the Code itself provides for administrative interpretation.

The second thought takes the form of a question. If everything that could not be understood by a "person of average intelligence" were to be declared unconstitutional and removed from the planet, what would remain? Is there something wrong when a patient cannot understand a medical procedure used by a surgeon? Is there something wrong when a driver does not understand the engineering formulae used in designing the bridge over which the vehicle is crossing? Is there something wrong when someone enjoying a fine meal cannot understand the recipe?

I'm not taking any position on the merits of the case decided by Judge Collins. There is, however, something alarming about reducing everything to a least common denominator of "average" anything. That's not a defense of complexity. Complicated things aren't vague. To the contrary, they generally are very precise and quite the opposite of vague.

But even a constitutional ban on complexity would be no less counterproductive. If everything that was complicated were to be declared unconstitutional and removed from the planet, what would remain? Think about it.

In a Tax Notes Weekly report authored by Helena Klumpp, "Congress Returns, Extenders Wait," 113 Tax Notes 701 (Nov. 20, 2006), former Senator Bill Bradley is quoted as saying, "There's nothing that people care more about than the tax code." Is that really so?

Bradley made his comments in the context of a discussion about the prospects for tax reform now that control of the Congress has shifted to the Democrats. Most commentators don't think the realignment will make any difference.

If Bradley meant to say that there's nothing in life or in the world that people care more about than the tax code, he's wrong. Tax may be everywhere, and affect everything, but it doesn't mean that people care about it, or care about it more than they care about other things. I googled "care about most" and several variations, and was rewarded with all sorts of answers. Good health. Safe schools. Competent medical personnel. The environment. Energy dependence. National security. Friends. Family.

If Bradley meant to say that there's nothing more that people care more about in the legislative context than the tax code, he could be correct, in an odd sort of way. Congress increasingly turns to the tax code to implement its plans. Want changes for retirement plans? Amend the tax law. Want to encourage energy conservation? Amend the tax law. Want to encourage charitable contributions? Amend the tax law. Want to encourage environmental responsibility? Amend the tax law. Want to reduce trafficking in illegal drugs? Amend the tax law. Want to encourage adoption? Amend the tax law. Want to encourage home purchases and sales? Amend the tax law. Want to make education more affordable? Amend the tax law. The list is very long. Anyone who has been paying attention to changes in the tax law will recognize the few examples I've provided of the tax law's status as the workhorse of modern American legislative endeavor and policy determinations. So, in this respect, anyone who wants to do anything will be paying attention to the tax code. Will they be caring about it? Not in the way we care about our friends and family. Will they be caring about it more than anything else? I doubt it.

If Bradley meant to say that there's nothing that lobbyists care more about than the tax code, he's almost certainly correct. Pick the lobbyist's object, and then write a provision creating a deduction or credit to encourage it. That's what has happened to the federal legislative process, and it's not very different in most states. I'm picturing the Roman legions that hailed as Emperor the commander who handed out the largest bonuses. Perhaps some retired Roman Senator, pondering the destiny of the Empire, said, "Populus curat nihil magis quam exactio legionum." Or something like that. In somewhat better Latin. But I doubt most inhabitants of the Roman Empire cared more about that than their friends, their family, their health, and their next meal. Few, I think, could see the larger fabric. Sixteen hundred years later, not much has changed.

Perhaps people should care more than they do about the tax code. It affects the things people seem to care about most: education, health, energy, environment, friends, family. So few people have even seen or read the Internal Revenue Code that it's difficult to envision very many people caring about it. If reading the Internal Revenue Code was obligatory, would people care more or less than they do at present? I don't know. I simply find it difficult to accept former Senator Bradley's observation as a literal or even figurative truth.

Thanks to Paul Caron's TaxProf Blog writeup, I found myself reading Professor Melissa Waters' short essay, Clicker Training for Law Students. Thinking it was something dealing with the use of clickers - the shorthand term for student response pads - I started reading, only to discover that it was reference to a type of dog trainer. Professor Waters analogized the difference between two types of dog training approaches to differences between law school teaching approaches. She concludes that the old guard "Alpha Wolves" are passing away, taking with them their "old-school, Socratic-style" teaching, and that most young law faculty are "clicker trainers," who emphasize positive reinforcement while turning a blind eye to almost all bad behavior.

Prof. Walters is describing something that has been the topic of many discussions between several of my teaching colleagues and myself during the past decade and a half. I put it in starker terms. The generation of law faculty educated in the seventies and eighties, recoiling in horror at what they perceived as abuse from their teachers and their law firm superiors, is replete with individuals who determined to stamp out needless anxiety. Making matters worse was the increasing emphasis on student evaluations, which rewards the easy-going lecturer and punishes those who challenge students beyond what the students are willing to accept. It is another instance of over-reaction, a characteristic that permeates American culture, driving political and economic arenas into two extremes. Paul Caron titled his writeup "Tax Profs: Are You an "Alpha Wolf" or a "Clicker Trainer"?" but I'm proud to claim that I am neither.

Though I share the general distaste for law faculty who thrived on insult, deliberately encouraged fear, gave no guidance or constructive feedback, and left students unsure of which direction was up, I don't think the antidote is to spoonfeed black letter law, to let most of the class off the hook each day by identifying a few "principally responsible students" two or three days before each class, to accept every student comment as a monumental contribution no matter its erroneousness, to cut reading loads back to minimal levels, to water down the material, to attach an "A" grade to every initial written exercise, or to abandon grades below C+ or B. It indeed is possible to be demanding without being ruthless, to hold every student accountable every day without making each instance a make-or-break situation, to give constructive feedback without insulting students, to insist on a professional practice-world approach without being power-crazed, to be honest about a student's performance without destroying confidence, and to turn out successful lawyers without abandoning respect. Unfortunately, in an environment reflecting a consumer mentality where none belongs, and too often poisoned by the congruence of student desire for passive and entertaining experiences and faculty desire to be liked and highly evaluated, the law professor who holds firm is perceived as out-of-line. Yet, years later, as graduate after graduate explains that he or she "hated" the course or "thought [the professor] was [euphemistically, a total jerk]" and yet came to discover that "I learned more than I did in the fun courses and the classes with the easy teachers," the motivation to resist playing to the crowd is strengthened.

I like to tell a story about how law teaching has changed since I've been a student. One of the benefits of having earned one of my law degrees from the law school where I teach is that I can compare my student perspective of my teachers with my collegial perspective of them. Only two of my first-year teachers remains on the faculty, and one of them was the person whose classes were most anticipated because he wasn't quite as "socratic" as the others. He tells me that over the years he has mellowed, and has become far less demanding, has reduced reading loads, has taken more steps to ease the anxiety, and has tried to acclimate to changing student expectations. For at least the past seven years, students tell me he is their most demanding professor, is tough, and is nowhere as easy as their other faculty. Wow. He's easing up, and he's perceived as far more challenging. I know him well enough to know that he indeed has softened. The students have changed. Why? Because the same thing is happening in undergraduate schools and in many K-12 school systems. But is all of this for the better? I think not.

There are few so-called old guard "Alpha Wolves" remaining on law school faculty. "Clicker trainers," most of whom unfortunately do not use or do not use effectively the clicker device, predominate. But Paul's question, suggesting that faculty fall into one or the other category, is misleading. There are those who never settled at either end of the spectrum. And it appears, anecdotally at least, that the generation of law faculty educated in the nineties, isn't lining up in the "clicker trainer" category. Perhaps these new teachers, having had few if any "Alpha Wolf" faculty as teachers, have far less compulsion to make deliberate choices to be the opposite type of teacher in their approach. Perhaps they've experienced one or two "Alpha Wolf" teachers, along with some "clicker trainers," and have tried to meld the best of both.

The two extremes are counterproductive in the long run. Alpha Wolves generate resentment, rebellion, and abandonment of the solid intellectual and practice traits hidden behind the smog of insult, deliberate confusion, and absence of constructive feedback. Clicker trainers generate deceptive self-confidence, misplaced expectations, and shallowness of accomplishment fed by a deep insecurity and inability to hold firm. Finding the middle isn't easy. For students educated in the late eighties and nineties, there were far fewer balanced role models than there were inhabitants of the extreme edges.

Professor Waters asks:

What is the right learning environment for today's law students? Do they respond better to alpha rolls, or to clickers and treats? The popular wisdom on this generation is that they're fragile, that they respond best to positive reinforcement. On the other hand, lawyers live in an Alpha Wolf world, and the sooner we prepare our students for that reality, the better. More importantly, isn't the hard-core Socratic method an essential component of learning to "think like a lawyer"?

My response to her first question is found in the halls of the education schools, through which few law professors have walked. My answer to her second question is "neither." My answer to her third, and perhaps rhetorical question, is "No, one can learn to think like a lawyer without being dragged through hard-core socratic game-playing or the far more common quasi-socratic technique used by most law professors who claim to be users of the socratic method. Sit through one of my courses, and you'll see what I mean."

In her short essay, Professor Waters notes that her school's "quintessential Alpha Wolf," one Roger Groot, recently died. She notes that students used the phrase "I got Grooted" to describe their encounters with the fellow. But such clever turns on professorial surnames isn't limited to the old-guard or the socratic method devotees, as demonstrated by the fact that the title of this blog has its origins in a very similar phrase used by students at both law schools where I have taught. Professor Waters proceeds to note that when Groot's passing was announced, the "outpouring of love and respect -- and sheer gratitude -- from his former students was a real lesson for me." She often heard students make comments to the effect of "The day I got Grooted was the day that I started down the path to becoming a real lawyer." I've heard similar comments, which demonstrates that Alpha Wolves don't have a monopoly on such post-graduate opinion reversals, and I hope that Roger Groot also had the good fortune to hear these comments while he was still among us.

Professor Waters closes by wondering "if we clicker trainers, for all our cheerleading, will one day inspire similar outpourings from our students." I suggest she talk with law graduates who were educated primarily by clicker trainers. Their responses might suggest why her statement, "On the other hand, lawyers live in an Alpha Wolf world, and the sooner we prepare our students for that reality, the better" is difficult for me to reconcile with her disclosure that she is "an unapologetic clicker trainer." It's too bad we live in such a bipolar world that the marvelous opportunities in the middle are so often overlooked, or, if noticed, attacked or criticized from both ends. Fear not, Professor Waters, those of us in the center invite you and welcome you to the best of both places. And what will they say of you? "Demanding but fair" has echoed through the years. I take it as a compliment.

A recent story about a graduate of an unaccredited on-line law school suing the Connecticut Bar Examining Committee because it denies him the opportunity to take the examination caught my attention. I understand the applicable rule, because it or something very much like it requires bar applicants to have a law degree from a law school accredited by the American Bar Association or by the state in a separate approval process.

My question is why? If the point of a well-designed examination is to determine whether a person has the requisite skills, does it matter whether the person acquired those skills by attending an unaccredited institution, an on-line program, or a traditional law school?

Put another way, what do bar examiners fear? That someone who would be a catastrophe as an attorney would pass? If the bar examination is properly designed, applicants lacking the necessary skills won't pass.

The applicant in question, Mel Thompson, took the route he took, not because he did not qualify for admission to an accredited law school, but because he faced financial obstacles. Should his past financial struggles relegate him to a lifetime of being an over-educated paralegal? Considering how much the legal academy pats itself on the back for making opportunities for disadvantaged students, one might expect that it would step up and support the efforts of a person dedicated to becoming an attorney. But the legal academy has a vested interest in the present system of legal education, one that funnels would-be attorneys into institutions that must be accredited and that cannot obtain accreditation unless they play the scholarship game.

Thompson's lawsuit rests on several grounds. He alleges due process and equal protection violations. He also claims that law schools, the accrediting agencies, and bar examiners are "engaged in a conspiracy to restrict and monopolize trade and or commerce through unfair trade practices." He amended his initial complaint to drop the American Bar Association and local law schools as defendants.

The Connecticut Bar Examining Committee is defending the litigation on procedural grounds. It claims that Thompson failed to petition the Committee for a separate evaluation of his legal education. Connecticut has a process that permits a law school not accredited by the American Bar Association to obtain a separate approval. Two schools have done so. The institution which awarded Thompson his degree has not done so, even though other unaccredited schools apparently expressed interest in doing so but did not follow up. Yet, according to Thompson, none of this matters, because the Connecticut Bar Examining Committee web site states that "correspondence and internet law school work will NOT be approved."

Several states do permit individuals to sit for the bar exam even though they have not graduated from accredited law schools. Connecticut permits lawyers so admitted in another state to waive into the Connecticut bar after ten years of practice. Thus, argues Thompson, the Connecticut policy of restricting the bar examination to graduates of accredited schools is "capricious."

I've yet to hear a convincing explanation of why the bar examination isn't open to anyone who clears a character and background investigation. Unlike some professions, where education plus a simple license application authorizes a person to engage in a particular trade or business, the legal profession denies entry to those who cannot pass its entrance examination, no matter where they obtained their legal education. Considering the likelihood that most applicants who earn a law degree from an unaccredited institution will not pass the examination, what's the harm in letting a few more applicants sit for the exam? The examining boards would not lose money on such an approach, because the fees should cover whatever marginal out-of-pocket costs are incurred by the boards.

Another thing to consider is that accreditation is no guarantee that a law student's education is superior. Accrediting committees might identify horrific teachers, but for the most part they worry more about abstract factors such as student-faculty ration, the number of seats in the library, the size of the library collection, and other factors not directly correlated with educational quality. Little, if any, attention is paid to whether law teachers are making the most of technology, are available for student questions in their office or through email, are well organized, design exams that properly measure achievement, understand grading, or have take courses of any sort at education schools. The best test, of course, to determine whether a person has been adequately educated to enter the legal profession is a properly designed bar examination. That being the case, why shut the door? Why not give someone a chance?

About a month ago, I commented on indictment of actor Wesley Snipes on tax fraud charges. Stories at the time reported that Snipes could not be found, but as noted a week later, it turned out Snipes was in Namibia filming a new movie called Gallowwalker. I'd be nervous if while filming something called Gallowwalker the IRS and Department of Justice came calling. The Snipes story has since taken more than a few weird twists and turns.

With thanks to Paul Caron's TaxProf Blog, which has kept track of each new development, as currently summarized here, I've watched in amazement as the story has taken on the trappings of a screenplay. About a week after the reports circulated about Snipes presence in Namibia, a story in Variety, which was picked up by news services and reported in stories such as this one, that he had reached a settlement with the IRS. The settlement would permit Snipes to avoid prison and provided for installment payments of the allegedly overstated tax refunds. When I saw this story, my first thought was, "Well, that's the end of that, there's not much more, if anything, to ponder." Without knowing the full allegations or the terms of the settlement, there's no way to evaluate the matter.

Within a day, though, another story appears, reporting that the U.S. Attorney denied the existence of a settlement in the case. The author of the Variety story, though, maintains he had good sources. I try to emphasize to my students that good lawyering requires compilation of the facts, and that the temptation to jump to analysis and conclusions before the facts are known is a human frailty that lawyers must consciously seek to overcome if they are to do justice well. Ideally, everyone, including journalists, back yard gossips, and busybodies ought to do the same thing. But that's not the way life seems to work, so it's no surprise to me when all sorts of reports begin circulating, though none come directly from Snipes, and only one comes from a person officially involved in the case. That person, an Assistant U.S. Attorney in charge of the case, denied the settlement rumors. So I leave this "he said, they said, who said what said" circus to the side, and focus on other issues.

But it wasn't long before Snipes then spoke up, and it surely doesn't clarify anything. In an e-mail to columnist Scott Maxwell recounted inhis Orlando Sentinel column, Snipes wrote:

* * * * * Wow this is so crazy . . . Scott this was almost (10) ten years ago. Why are they coming with this issue now? Were the statutes of limitation running out or what? We thought all issues had been resolved. Guess not, huh? Like the situation in New York, and Florida, I know this has more to do with a few individuals with access to power, making moves (trying to move up!) and less with some alleged crime against the whole population of the United States of America. This reminds me of Rape cases where the "victim" is flipped, turned or converted into the role of victimizer, the "architect conspirator." It appears I'm to be the scapegoat, because there's more public interest in "celebrities gone bad" than "rich people being taken advantage of."

Being, a black male who asks questions doesn't help the situation either. But this is a serious issue, NO, a very serious issue that I am not taking lightly one bit. I will abide by the law, seek the protections the law affords me and as always seek the advice of competent council in effort to resolve this issue. I'm not running, I'm not a fugitive, despite the misrepresentations in the press . . .

. . . I have yet to tell my side of the story, but that time will come shortly. By the Will of the Most High. And boy what a story. I recall mentioning to you once before, when they were trying to steal the Florida house, it's a lot deeper than that! This is the second attempt, after the failure in New York with that paternity lie, they've come after me. . . . I've injured no one, I've violated no one's rights and (as far as I know) I owe no one. If I have violated someone, then I'm prepared to seek forgiveness and make amends. One is a artist and scholar seeking truth though diligent study and spiritual practice. Perhaps people like that have now become the enemy of the State. And trading with the enemy is dangerous business no matter who you are. In peace and in Light I only ask for your prayers Until then, stay well.

I can follow until the end of the first word. Yes, "wow" pretty much describes my reaction. So what is Snipes saying?

It seems to me Snipes is arguing:

(1) If the tax fraud is old, it ought be ignored. Note that, perhaps as a surprise to Snipes and many others, the statute of limitations for civil tax fraud is indefinite, and for criminal tax fraud generally is six years. I recall a situation involving a dentist where the IRS reached back almost forty years to reconstruct the taxpayer's tax liability. [Thanks to Bill Conroy for pointing out the error in my original posting.]

(2) The situation had been the subject of discussions with the IRS and/or Justice Department and had been settled. Apparently not.

(3) The indictment has nothing to do with tax liability but is the result of a few powerful people trying to benefit from the indictment. Powerful people don't need to hang a Snipes indictment on their wall. Perhaps he means to say that people who want to be perceived as powerful brought the indictment in order to make a name for themselves. That can happen. But if they're wrong, and it backfires, the risk would turn out to be too great. It's easier for folks in the U.S. Attorney's office to progress by going after the sure-shot convictions. They don't like to lose. That's why I doubt that the Snipes indictment is based on whimsical daydreams.

(4) He's a victim. Yes, he may be a victim of tax-fraud-package marketers, but why was he buying their stuff? He has as much admitted that he bought into the scheme. He wants sympathy for rich people of whom manipulators have taken advantage. Excuse me, but are rich people incapable of hiring some good tax advisors to analyze the deals being offered to rich people? According to the indictment, Snipes did have a tax advisor who refused to go along with the "arrangement." So why was that person's advice ignored?

(5) He would not have been indicted had he not been a celebrity. Guess what? Most criminal tax fraud convictions are entered against people who are not celebrities.

(6) He's a double victim. Someone hit him with a paternity suit in New York, but lost. Is he claiming that the people involved in that litigation are responsible for the indictment?

(7) He's a triple victim. Several years ago, his Isleworth home was seized in a mortgage foreclosure. Snipes claims that someone put a mortgage on the house without his knowledge. How?

(8) He's been indicted because he's "a black make who asks questions." This allegation has triggered some outrageous commentary, such as those here. There are people who think that white celebrities escape the long arm of the IRS. There also are people who point out the absurdity of such claims. As I noted, it helps to get one's facts in order before tossing inflammatory accusations. So much for the rational mind of "sapiens sapiens."

According to Maxwell, Snipes then sent another email, noting the existence of a web site that congratulated him for refusing to pay income taxes in reliance on the "only foreign income is taxable" nonsense that has been circulating for more than a decade. I'm sure I can find some people who can prove that people whose surnames begin with the letters "MA" and end in a vowel are not required to pay income taxes. But fortunately I have enough common sense to laugh rather than sign on to their ludicrousness.

Snipes is a celebrity. People pay attention to him. Therefore, he has an obligation to set a good example. Although some celebrities do not want to be role models, the very fact that they are celebrities makes them so. I have advice for those who do not want to be role models: avoid the limelight, make a career in something obscure, and lay low. Yes, that course of action will cut your income by 90 percent or more. Such is the price that must be paid.

At this point, it appears as though Snipes intends to contest the charges. If he persists, the tabloids and blogs will have plenty of material. The only good thing that can come out of this is that the nation's taxpayers will understand how much fraudulent garbage is being peddled. By that point, only those who truly wish to evade taxes will be signing up with the fraud merchants, as there would be even less reason to believe the "I didn't know" excuse. Incidentally, doesn't this situation make for an even stronger case that basic tax should be taught in America's high schools? What high school student can make a plausible case that remaining in ignorance of basic tax law is a good thing?

Tomorrow is Thanksgiving, as almost every person in this nation knows. I won't be posting tomorrow. So, as I have done the past two years (2005, 2004), I am sharing in advance a few of the things and people for which I am thankful.

Thanks for Arabic numerals, because I can't imagine doing tax returns using Roman ones. And I'm thankful for the scholars who have explained that Arabic numerals are a transformation of Hindu, Indian, and perhaps even Chinese numerals.

Thanks for the English language, because I wouldn't want to parse out tax laws written in proto-Indo-European. And I'm thankful I do not have the task of identifying the proto-Indo-European word for tax, because I cannot find it.

Thanks for the Internet, because it lets me share my thoughts in a blog, find tax law while sitting at my desk, discuss tax issues through listserves, communicate with students in virtual time using email and discussion boards, make class materials available with little effort, and have students register their student response pads. I'm thankful I can leave behind the world of snail mail, trips to the library, the lugging of Code and Regulations volumes, the photocopying of tax class handouts, and the administration of semester exercises on paper.

Thanks for all the folks who have made teaching tax a fulfilling adventure. I'm thankful that students can leave knowing and understanding more than they did when they arrived, particularly the discovery that tax is not boring, and has never been so.

Thanks for all the tax practitioners and tax faculty who give me credit for having influenced their professional careers in a positive way. I'm thankful I managed to minimize whatever damage I did to their brains.

Have a Happy Thanksgiving. Set aside the hustle and bustle of life. Meet up with people who matter to you. Share your stories. Enjoy a good meal. Tell jokes. Sing. Laugh. Watch a parade or a football game, or both, or many. Pitch in. Carve the turkey. Wash some dishes. Help a little kid cut a piece of pie. Go outside and take a deep breath. Stare at the sky for a minute. Listen for the birds. Count the stars. Then go back inside and have seconds or thirds. Record the day in memory, so that you can retrieve it in several months when you need some strength.

This is long, but it's an issue that deserves more than a soundbite.

The MoneyLaw Essay

Thanks to a tip from a posting on Paul Caron's TaxProf Blog, I took a look at Jeff Harrison's Moneylaw essay on Counter-Preferential Choice, Shirking, and Moneylaw. Jeff questions whether law faculty are holding up their end of the bargain, perhaps implicit bargain, with what he calls stakeholders: students, donors, and, in taxpayer-financed schools, the public. Jeff takes the position that law schools have an obligation to educate students "that prepares them for the bar exam and, as much as possible, prepares them to provide competent legal services," and gives them the ability to help generate legal reform. Taxpayers, he points out, are entitled to "expect a law school to produce competent attorneys who will be accessible and play a role in improving the overall welfare of the community."

What brought Jeff's essay to the Tax Prof blog was his suggestion that among law school characteristics failing to help law schools meet their obligations are taxpayer-subsidized LL.M. tax programs. He asks if "there is any chance" that LL.M. (Taxation) graduates will do public service work. He asks why is a law school hesitant to charge graduate tax students a tuition reflecting the full cost of their education?

Reaction

Reaction was swift. Several tax faculty pointed out that graduate tax students often end up in public service positions. The salaries earned while working for Chief Counsel to the IRS, the Department of Justice Tax Division, or a tax court judge do not match, by far, what can be earned in the private sector. Although I agree with the gist of Jeff Harrison's analysis, I part company with him when he assumes that LL.M. (Taxation) graduates give little or nothing back to society. Yet, despite that disagreement with Jeff, I don't think it negates the idea that public subsidy of graduate education ought not be across the board, but tailored to the needs of individual students.

Another criticism of Jeff Harrison's essay was the implicit assumption that the same charge could not be levied against LL.M. programs in other areas of the law. Are lawyers with LL.M. degrees in trial litigation or securities regulation more likely to devote more time to public service efforts? I doubt it. That is why I think taxpayers ought not be subsidizing graduate programs generally as though every student entering such a program deserves or needs tax-subsidized tuition.

Of Course I Have an Opinion

My interest in the discussion was energized by an assertion that the "primary public function of a law school (including tax LL.M. programs) is its research, not its education of students." This opinion was tempered with a disclaimer to the effect that educating students is important and a central goal of law school. Nonetheless, it was pointed out that law school are "expense to run in significant part because professors typically teach only 6 hours a week or less, with half of their time or more set aside for research," thus causing students to "overpay" for their education. Why do students acquiesce to this arrangement? The notion is that students are willing to pay for a degree from a prestigious law school because those degrees have higher value based on the reputation of the law school, in turn allegedly dependent "in large part" on faculty research. The point was then made that law research is a "type of good that has to be subsidized or it will be under-produced by the market." Thus, the argument concludes, law schools receiving tax subsidies are using them more to finance faculty research than to fund law student education.

Something is terribly amiss. Here's an anecdote with a lesson. Years ago, when I was teaching Digital Legal Practice Skills, a course designed to teach law students both the "hows" of technology and its use in law practice, I gave them as an opening problem the design of a spreadsheet to be used for determining if choosing law school rather than a post-college paying career made economic sense. Most of these students had little, if any, business background. It was a classic Jim Maule remedial catch-up course. We no longer teach it because in part I'm teaching other things, no one else wants to teach it, and the need for the course diminished as more entering students understood how to use computers (though not the underlying business and finance principles). Certainly, the students learned about making economic assumptions. Were they forsaking a career opportunity for a degree in history or a degree in computer engineering? What salary opportunities faced them when they graduated law school? What value did they put on a pro bono career?

The interesting outcome was that law school is a poor economic choice (setting aside valuation of satisfaction, prestige, pro bono accomplishments, etc.) unless the student earns a significantly higher salary than the student could earn coming out of college. The degree of difference depended in part on the student's undergraduate major (and in part on the student's other opportunities, such as athletic careers, coaching careers, etc.) There are three years of lost wages to make up, plus the cost of the law school education. One experiment was to jigger the law school tuition amount (using other amounts rather than the then-applicable Villanova tuition). To the extent students are funding legal research by faculty, they are being short-changed. They don't analyze their economic prospects by putting value on law school faculty research. Various studies show that judges and practitioners don't rely as much on law review articles as they do on the commercial advance sheets (perhaps with tax as being a significant exception, ironically).

Compare medical school research. Medical school faculty generate income, both from patient services (some of which are publicly funded) and from outside grants (some of which are publicly funded). Law faculty rarely generate income, and when and if they do, rarely does the school see it.

This is why I think something is amiss. The primary public function of a law school *should* be to educate students so that they can serve the public, whether as public service sector attorneys or as private sector attorneys. The same can be said of any school. The notion that legal research must be subsidized tells us much about the value placed by the market place on it. Indeed, in certain areas the market *does* subsidize research (tax being one), though many law faculty shy away from what is legitimate research because it isn't edited by folks with one or two years of legal education. What has happened is that a good that belongs, if it belongs anywhere, in think tanks, has been put onto the backs of unsuspecting law students, because the cost of educating law students is far less, per capita, than the cost of educating medical students, dental students, engineering students, etc.

If higher education is doing the great job it claims to be doing, there ought be no good reason not to subsidize education through loans with repayment tied to a graduate's economic success, with public funds being used to "reward" graduates who do public service. This is done to some extent, though weakly, through certain tax breaks and loan cancellation programs. Such an approach might help narrow the gap between the high private sector salaries and the low public service sector salaries.

The allegation that the public sector is not getting its money's worth when it funds law (or some other) higher education program is far from new. It's been around for decades, though in recent years its advocates are getting louder and speaking more frequently. The internet creates a wider audience and a deeper communications channel. Institutions of higher education, already summoned, for example, by state legislatures to account for how they operate, surely need to re-define their perceived missions and their operating plans if they intend to survive in a form responsive to the needs of the public.

In other words, public (and private) institutions of higher learning had best figure out how to justify public subsidies on the basis of a return of a public good that the public accepts as a desired public good, rather than on the basis of legal research. Though I agree, to some extent, that legal research has value, I don't think the taxpaying public is or will be convinced by its status as the primary public function of a law school. That may be unfortunate, it may reflect a deep divide between the public and the academy, but it's a very real concern that some current university officials are pondering with deep concern.

Reputation Based on Scholarship: What is It Worth?

Perhaps in response to these views, or perhaps in response to an array of opinions, came an observation, noting two essays written by Russell Korobkin of UCLA, who in Harnessing the Positive Power of Rankings: A Response to Posner and Sunstein, 81 Ind. L.J. 35 (2006), and In Praise of Law School Rankings: Solutions to Coordination and Collective Action Problems, 77 Tex. L. Rev. 403 (1998), argues that scholarship is a public good that is produced because schools can enhance their reputation by producing it and because only law schools can produce it. The essay uses this argument to defend the proposition that law schools should be ranked primarily or exclusively by the school's scholarship.

To Korobkin and those who agree with him, I offer the following. There have been more than enough successful lawyers (in terms of income, public interest cases won, beneficial influence on society) who have graduated from law schools lacking high levels of "scholarship reputation" and more than enough disgraceful attorneys (in terms of corruption, disbarment, malpractice, and political scurvy) with degrees from the "scholarship elite" schools to explain why law students (and even some applicants) are beginning to understand that ultimate success as a lawyer has more to do with (a) attending a school where one can learn to think about law in a practice context, (b) having or acquiring good values, and (c) working diligently than it has to do with the reputation or volume of scholarship by a law faculty. Why pay an extra $10,000 a year for a chance to finish in the bottom half of a class at a "scholarship happy" school when there's no guarantee of a successful career, and even a risk that the lack of a practical orientation will make the career far from ideal and possibly even curtailed?

I understand that the reputational thing gives some graduates an "edge" when first entering the marketplace, but the lack of adequate preparation, good values, diligent work habits, and adeptness at dealing with clients in a practical manner soon is unmasked. Likewise, the student from the school whose faculty writings are held in disdain as "too practical" by law school faculties living in abstract worlds may struggle to find the first job but can soon excel once they find a position. It's not all that different from the disappointing play of first-round picks and the successes from the sleepers taken in the latter rounds, or, better yet, the fall-on-their-face performances from graduates of acknowledged football or other factories and the out-of-nowhere accomplishments of people coming out of "never heard of it" schools.

That's not to say scholarship is irrelevant. Worthwhile scholarship, that is, publications that add quality to the practice of law such that judges and lawyers seek it out, generally correlates with the production of graduates who can provide quality to the public sector. The problem is that there is too much abstract stuff that simply has no value outside of the small, closed circle of scholars, or, to quote someone writing a piece that had no connection to reality, "I'm not writing for judges or practitioners. I'm writing for other scholars." I doubt that much value, if any, is being added to the education for which the students are paying in those sorts of circumstances. Truly excellent scholarship should dovetail with truly exceptional, practice-relevant teaching. There's no reason that good teaching should preclude good scholarship. Measuring the value of scholarship by the number of times other scholars cite it is like measuring an athletic team's success by how many times its fans tell each other it's really a good team that got raked by bad calls from the officials. Measuring the value of scholarship by the number of times practitioners find something in it useful to their attempts to assist clients in the public or private sector find justice is far more meaningful.

The sort of scholarship produced by law faculty surely can be produced elsewhere. Imagine a think tank with 10 or 15 scholar types, freed from the distraction of teaching (as some have called it). Why do these places not exist? The market doesn't see a need for it. The fact that scholars with more interest in (and in some instances, having more talent for) writing than teaching, aided by the silliness of rankings that let law school faculties tell each other how wonderful they are, are increasingly taking over law faculties does not mean it is right, and, more importantly, does not mean that the quality of legal education is therefore enhanced. Most importantly, it does not mean that the quality of service and justice rendered to lawyers' clients is getting better.

As more and more law firms find it economically unfeasible to pay high salaries to trainees who know little and understand less (and of which practitioners and their clients are complaining every more vociferously), and as the shock impact of the chasm between practice and academia encountered by graduates increases with its concomitant disillusion, practicing lawyers will move to disconnect bar admission from the monopoly held by accredited law schools. Already, employers are beginning to look at transcripts as they attempt to figure out why some newly hired associates struggle while others do well. So far, all that exists is a small set of anecdotes, but slowly the data will increase to a point that correlations can be identified. It is going to be a battle royal, but it's on the way. Practitioners with specific practice-focused needs will look more closely at transcripts, and favor students with useful education over students with degrees from elite institutions, for they have learned that high LSAT scores alone mean nothing when the client needs immediate assistance. Even the presumption that the brightest and most talented graduates are those coming out of the schools with the higher position in the rankings is eroding, and eroding quickly.

Perhaps if the "what faculties think of each other" component was removed from the rankings, and if components were added that measured malpractice and disbarment among a law school's graduates, that added number of graduates fired, asked to leave, or pressured to depart from firms, and that reflected job performance rankings of graduates, we'd see an entirely different array. But, that won't happen because too many of the influential ranking designers have vested connections. Talking about failure isn't very popular.

But perhaps I am wrong. Perhaps we should measure the quality of medical schools by how many times other medical faculty cite the medical faculty's scholarship, and ignore the infection rate and malpractice experience of that faculty's students. Perhaps we should measure the quality of engineering schools by how many times its faculty's writings are cited, and ignore how many leaking Big Dig tunnels are designed by its graduates. Surely the value of a public good measured by dead patients and crushed vehicles in tunnels is less important that how many times people congratulate each other on a job supposedly well done. Misdirected intelligence isn't a public good.

Maybe There Is Undervalued "Good" Research?

These thoughts brought a response from another national tax colleague. It was noted that my point that the market does not value much of what passes as legal research doesn't predispose the outcome, because it is from that very point that advocates of taxpayer subsidization of law faculty scholarship begin their arguments. Just as important, legal research of value to practitioners does not require taxpayer subsidy because practitioners who benefit from it will find ways to pay for it. It's the valuable research for which there is no market that subsidization must finance. An example provided to me is the discovery of "a good way to tax income from offshore tax havens," an outcome that would be "an enormous contribution to a just society."

My question is why that sort of research is not being undertaken by the government agencies that are subsidized by taxpayers to enforce the tax laws. Why should tuition-paying law students bear the cost of law faculty research into ways that the IRS or any other federal agency in any other area of the law can do the jobs their employees are being paid to do? Perhaps it's because those agencies are not paying sufficient salaries to attract the bright minds, many of which are busy trying to find ways to hide even more income in offshore hideaways?

Market Disclosure: What Would It Do?

The bottom line is that I do not think faculty research needs to be subsidized. I do not think that education needs to be subsidized, except to the extent the body politic deems it to be a necessity that the market for some reason cannot address. Thus, I favor public funding of education for all children under 18, regardless of their families' economic position and despite the fact that absent a public subsidy many of those children would otherwise be driven by the market away from school and into some other enterprise.

As for higher education, if the market speaks and creates a need, then students will drift to those programs that promise a reward greater than the investment. The market can up the reward (increase salaries) if the market needs to increase the supply of students educated in a program. There is a place for public co-investment to assist those students unable to make the investment. The public subsidy and higher education ought to show confidence in its product by requiring a small (3%?) stake in the graduate's future earnings. If the market wants to subsidize outright grants, it has ways of doing so.

The same can be said for research. The market will fund the research that it needs, either internally (e.g., corporate research), or externally (e.g., university research). The public sector should subsidize such research only if the body politic deems the need to be more than the market determines (e.g., perhaps orphan drugs). What happens to "legal scholarship"? It depends. Some of it has value, and there should be a market for it. In fact, there is a market for some legal scholarship. It's limited and tends to be concentrated in areas of technical specialization (e.g., tax, bankruptcy, environmental). The market does not appear to value other legal research, perhaps because the market perceives it as opinion, politics, and abstract theory. My point is that those producing legal scholarship for which there is no demand other than the producer and the producer's circle ought not leverage their way into having law students pay for it, when law students are ostensibly paying for a legal education.

Perhaps the answer is "Truth in Tuition" legislation? Schools should disclose the portion of tuition that pays for research and scholarship that is not otherwise funded. The computation probably would reflect the number of faculty positions that are filled so that faculty can engage in unmarketable research and scholarship. I wonder what that sort of disclosure would to rankings, after students adjusted their admission decisions?