So What's the Problem with the Problem Method?

For years, a few of us stood alone, teaching our law school classes in a way that resembles what students will do as practitioners: solving problems and preventing problems. Many students chafed. The problem approach requires work to be done throughout the semester. It requires more than looking at an outline from the previous iteration of the course. It requires more than the night-before-exam cramming that feeds into the closed-book memorization and regurgitation approach to measuring ability.

Teaching through the problem method is challenging. New problems must be created each semester, because using old problems presents at least two problems. First, in some areas of law, such as tax, last year's problem may be obsolete, and this year's problem requires adaptation to a new or amended law. Second, students raised on the memorize-and-regurgitate formal that permeates much of K-12 and undergraduate education, exacerbated by the No Child Left Behind campaign, think that if they can find the answer to last year's problem from someone who previously took the course, they can earn high grades by sharing what they have "discovered." Finding information on the Internet or on last year's course outline is not a hallmark of an A student, other than (perhaps) in legal research courses.

Law schools claim to teach students "how to think like lawyers." The irony is that lawyers don't think much differently than do accomplished people in any other field, be it engineering, music, cancer research, or design. Find the facts, determine what additional facts are required, outline the issues, ponder alternatives, do some trial-and-error application, take a position, argue for one's conclusion. Engineers are trying to solve and prevent problems. So, too, are cancer researchers. So, too, are lawyers. That is why law schools, despite what they claim, are in the business of teaching their students to think. That's it. To think.

Problem solving and problem prevention requires people to think. Thinking, in turn, requires independent thought. The problem approach to teaching nurtures these skills.

So it came as no surprise, and yet as somewhat of a surprise, to learn (as reported here) that Harvard is considering injecting the problem approach into its curriculum. And it surely was no surprise to read confirmation of what already was known: A PUSH FOR PROBLEM SOLVING As Harvard Ponders, Others Embrace Change in Law School Approach. After all, back in 1992, an ABA Task Force on Legal Education concluded that law students should have instruction in problem solving. Has that happened? Yes, for students who enroll in the few courses that use problem solving as part of the pedagogy. Some students manage to float through law school on a theoretical and philosophical track that exacerbates the bewilderment and disillusionment greeting them on their first job (a topic unto itself that I plan to address in a subsequent posting).

I share a few quotes from each article. To those who know me, trust me, these quotes are not mine. Yet they paraphrase things I've been saying for years. I've tossed in a few editorial comments. I just couldn't resist.

From A PUSH FOR PROBLEM SOLVING As Harvard Ponders, Others Embrace Change in Law School Approach:

"I have found it to be a wonderful thing," says Peggy Cooper Davis, an ethics professor at New York University School of Law, "because it gets students thinking about their responsibilities as a professional, and it gets them struggling with what it means to represent someone."

.....

"The [Socratic] method is a great way of teaching, but case method alone is a bit one-sided," says Lewis [Oliver Lewis, a 2006 Harvard Law graduate], who clerks for a 9th U.S. Circuit Court of Appeals judge. "One of the big problems is that the exams are done by the problem-solving method, but the teaching is done by case method, so it feels like you’re looking through the other end of the telescope."

.....

Some Harvard graduates say some faculty members would probably be resistant to incorporating real-life aspects of the practice into first-year courses. [Surprise!]
.....

Michael Meltsner, a professor at Boston’s Northeastern University School of Law, [who] was a visiting professor at Harvard Law [and who assembled what was known as the First-Year Lawyering Program [at Harvard] explains why the program did not last: .... Meltsner says faculty complained the program took too much student attention from regular courses. He also says many faculty members were not comfortable with the intense involvement of practice-related training because they see their role as more scholarly. [Translate: can they design and solve practice-related problems? Are they capable but unwilling to invest the time and effort?]

.....

Lawrence Rosenthal, a 1981 Harvard Law graduate, sees faculty members’ lack of law-firm experience as the problem. "So many faculty members at so-called elite law schools don’t have any significant practice experience, so they manage to convince themselves that you don’t need to know much about the practice of law to teach it," Rosenthal says.

From Twas a time for change:

Many law schools, with their century-old teaching methods, do not prepare graduates for the day-to-day realities of law practice. [When I said this at the outset of my teaching career, I was dismissed as an unlearned rookie. When I said this ten years into my teaching career, I was told I lacked humility and tact. When I say it now, I get strong messages of support from some folks and sharp rebukes and retaliation from others.]

.....

''When a human being walks through a lawyer's door, they don't say, 'I have for you a tort problem' 'They say, 'I was walking to the office this morning and a car came by and knocked over this garbage can and it hit me and I fell off the sidewalk and I twisted an ankle and what are you doing to do about it?'" [One of my favorite questions to students, "So what now will you say to (or ask of) the client?" brings not only stares but on one occasion an email that asserted "You are scaring the h** out of us. This is the first time we've heard a reference to clients" —- clearly from students who had not been in the Legal Profession course nor in a clinic (which, if I were a Dean, would be sufficient in number so that every student would be required to enroll in at least one].
.....

"Young lawyers often find that law practice is starkly different from law school, contributing to high attrition at many law firms." [Another one of my oft-rejected observations]

.....

"The cost to firms of associate attrition is substantial: more than $300,000 per departing lawyer in unrecoverable recruiting, training, and replacement costs" [and clients have tired of paying for the education they expect associates to bring with them to the representation].

.....

"'The case method..... falls pretty far short of actually training people to know how to be a lawyer."

.....

''A lot of lawyers do work .... that reading appellate cases doesn't help you get at." [But because many law professors go from law student to clerkship to law faculty, what else can they do? Lawrence Rosenthal, quoted above, nailed this one, didn't he?]

.....

"Law schools ought to be aware that they're training people for practice" [many faculty disagree, and proudly say so].

.....

''If we get them to think of themselves as problem-solvers, that brings them closer to the realities of law practice." [But the students don't realize that so long as the faculty using the problem-solving approach are in the minority.]

.....

"[The problem solving approach helps students] draw connections between classroom theories and actual practice.

It's so nice to have others wander over to the problem-solving side of the legal education street. Yet the bulk of the crowd remains afraid or unwilling to cross over. The battle for what 21st legal education will be has heated up.

A Tax Sweetener That Needs to be Cut Down and Turned to Mulch

Earlier this week, in Tax Sweeteners Leave Sour Taste, I criticized the strategy laid out by Bill Frist and his House counterparts to push through estate tax changes by buying the votes of legislators holding principled objections to the changes. The votes would be purchased with "sweeteners," a euphemistic term for what I described as "a word to describe offering something to somebody to get that person to do something that they would not do because they have principled objections to doing it." I pointed out that this attitude is what generates the low-quality tax legislation that Congress has been spitting out during the past decade and a half.

Obviously, few, if any, in Congress read my post, or if they did, found it persuasive. Yesterday, by a vote of 269-156, the House passed the sweetened estate tax legislation. The sweetener? A reduction in the tax on gains recognized by taxpayers selling timber. Amazing, isn't it, that legislation intended to amend the estate tax provisions is infected with changes having absolutely nothing to do with estate taxes, other then being the "bribe" offered to bring some Democrats on board. Democrats that the Republicans think are willing to sell out their principled objections to reducing the estate tax to a nominal thing in order to get some tax breaks for some of their high-level campaign donors. The typical citizen earning a salary? Hey, that person isn't even in the game. That "special low tax rate for timber folks" provision adds 140, yes 140, lines of text to the Internal Revenue Code, along with one definition, at least four special rules, a complex mechanism to mesh this special low tax rate with the special low tax rate for capital gains, and a variety of other provisions. Anyone want to guess how many pages of regulations will need to be issued? Or how much time will be spent by IRS and Treasury employees writing those regulations and issuing revenue rulings. How many cases will end up in the courts dealing with the sure-to-be-discovered unanswered questions and inconsistencies generated by this thrown-together-at-the-last-minute "sweetener"?

What's the justification for this timber break? Is it patterned after the excuse for the special low tax rate on capital gains? In other words, are people refusing to cut timber because the tax rate on timber sales is too high? Is there a shortage of cut timber in the country? Is there a national goal of cutting down more and more trees?

What happens when this abomination reaches the Senate, and a head count shows a need for some more "sweeteners"? What will it be? A special low tax rate on the profits of corporations that sell unhealthy fast foods? A special low tax rate on the salaries of people earning more than $5 million a year? A tax credit for campaign contributions made to legislators?

Perhaps someone should bring the Congress to Harrisburg, Pennsylvania, for a visit with the Pennsylvania legislature. I'm sure there are at least a few folks there who have interesting stories to tell about the recent Pennsylvania primary election, in which some incumbents were tossed out because their arrogance and disregard of the citizens they were elected to serve crossed the line.

Is it too much to hope that the Senate does the right thing and spits out this so-called sweetener and the mess to which it is attached? Will Senators understand that something incapable of getting passed without bribing a few legislators does not deserve to pass, and that the American people deserve something better than procured legislation?

The Rich Get Richer: The Tax Law's Role?

A report that is just now making the rounds of various newspapers, such as the St Petersburg Times, the Richmond Times Dispatch, the Philadelphia Inquirer, and the Asbury Park Press discloses that the number of millionaires grew more than 6 percent last year. According to the Tenth Annual World Wealth Report, the number of millionaires has increased from 4.5 million in 1996 to almost 9 million. Wealth is measured without regard to the value of a person's primary residence. The number of individuals worth more than $30 million increased from 77,500 in 2004 to 85,400 people in 2005.

Even though the number of millionaires grew more at a rate of slightly more than 6 percent from 2004 to 2005, the total wealth held by these people increased by 8.5 percent, and not totals more than $33 trillion. This means that millionaires are becoming relatively more wealthy. The "haves" are getting richer. This follows earlier year increases of similar or greater disproportionality, such as the 7.7% increase in net worth of high net worth individuals from 2002 to 2003.

What about the "have nots"? According to the Census Bureau, the world's population grew from 6,376,863,118 in 2004 to 6,451,058,790 in 2005, an increase of 1.15 percent. The wealth of the world is probably on the order of $360 trillion. So roughly 10% of the world's wealth is held by roughly one-tenth of one percent of the world's population.

Though some of this disparity cannot be attributed to a United States tax system, the fact that North America accounts for 2.9 million of the millionaires and $10.2 trillion of millionaire wealth, or one-third of the total, suggests that the American tax system does play a significant role in the widening disparity between haves and have nots. While wage-earners struggle to find discretionary income to invest in wealth-generating enterprises, those already with wealth are taxed at low rates so that their after-tax wealth growth is highly disproportionate. A select few own the world, and everyone else works for them. Think about it.

Ironically, those who argue that the income tax system should not be used to redistribute wealth are the principal beneficiaries of an income tax system that does redistribute wealth. I don't think income tax systems should redistribute wealth per se, in either direction. That is one reason I object to a system that taxes the wealthy at lower marginal rates than it taxes the disappearing middle class. Toss in the attempt to remove estate taxes while preserving the eternal exemption of unrealized gains from income taxation, and it is easy to see that the situation ten or twenty years from now will be even more unbalanced. Why the advocates of tax policies favoring the wealthy cannot see the long-term risks in this trend is a question I cannot answer, aside from a reference to the adage that glittering gold can also dazzle the mind's eye into blindness.

Tax Sweeteners Leave Sour Taste

Though folks are usually told it's best not to tour the sausage factory before a meal, perhaps it's best that a feature of the federal legislative process fall into the spotlight. According to this report from the Wall Street Journal's Washington Wire, Senate Majority Leader Bill Frist has a plan to revive the failed permanent estate tax repeal plan. Frist has mapped out the following strategy. The House passes estate tax legislation with "sweeteners" attached. The bill then goes to the Senate, where the sweeteners persuade some Democratic Senators to change their votes. Quoting Frist, "I will ask the speaker and the House to send a bill to us. I will encourage them to attach appropriate provisions to make it attractive and will hope a vote by July 4th."

There's a word for this, a word to describe offering something to somebody to get that person to do something that they would not do because they have principled objections to doing it. This isn't a case of offering something to somebody to get that person to do something because by doing something they are expending time or resources. Offering someone money to mow one's lawn is a legitimate free market transaction. Offering an honest person an incentive to embezzle from his or her employer isn't legitimate. Nor is offering a "sweetener" to a Senator in order to change his or her vote.

It's this sort of attitude that generates the atrocious tax (and other) legislation that oozes out of legislatures. Of course, the sweeteners would add all sorts of complexity to the tax code. Surely they would be tax breaks extending benefits to the partisans of the co-opted Senator. Far worse, sweeteners induce legislators to toss aside a vote based on conscience and what's right for the country or a state so that they can sell out for what ultimately would be more votes from the partisans who benefit. That vote gathering underlies the maneuver planned by Frist is evident from the Republicans discussion of Senator Maria Cantwell's re-election bid.

Without a doubt, some would claim, "This is the way things are done." It is true that, too often, this is the way things are done. But just because something is done a certain way, it ought not be chiseled into granite if it violates the principles on which the nation was built. Tossing taxpayer dollars around as incentives for votes isn't the stuff of compromise. It's the stuff of selling out. These sweeteners aren't sweet.

New Pennsylvania Tax "Reform" Doesn't Add Up

After dropping the property tax relief ball in December, and then side-stepping the issue in May of this year, the Pennsylvania legislature passed property tax legislation that the governor promises to sign. But does it add up?

Under the legislation, senior citizens currently eligible for property tax relief through income tax credits will qualify for larger credits, in other words, more property tax relief. To their number will be added more senior citizens, because the income cut-off for this relief will be increased from $15,000 to $35,000. There are many retirees earning between $15,000 and $35,000 for whom property taxes are a severe burden. This part of the legislation is a worthwhile, and even noble, objective.

But nothing will happen until 2008, at the earliest. Why? Because implementation of the changes relies heavily on revenues from slot machine gambling, though as I write there are no in-state casinos, no construction underway, and no licenses yet granted. Is there a way to work the phrase "molasses in winter" into the promotional materials? To trigger the property tax changes, at least $400 million of gambling revenue is required. There is no guarantee that this much money will be flowing into the state Treasury by 2008.

Yet it's not so simple as using gambling revenue to reduce the property taxes of senior citizens and to expand the number of senior citizens eligible for relief. Tucked into the bill is a provision that permits localities to reduce property taxes for all property owners by replacing the lost tax revenue with an earned income tax. Here is where the legislation falls flat on its face. By permitting school boards to replace part of the property tax, justifiably criticized on many grounds, with an earned income tax, the legislature is writing a pass for local politicians to move citizens from the fire into the frying pan. Previously, I have described all that is wrong with earned income taxes. Why should wealthy people hauling in huge amounts of dividend and interest income get a free ride? What's project to happen is an increase in overall tax burden for some wage earners, and reductions not only for impoverished retirees but also for the landed gentry with portfolio. The middle, once again, gets squeezed. Take a good look, all ye living elsewhere. What you see here is a rough blueprint for where the Administration and some, though not all, Congressional Republicans want to tax the national tax system.

The Philadelphia Inquirer gives this example:

For example, a homeowner in Haverford Township, Delaware County, with a household income of $100,000 would pay $124 in additional taxes, assuming that anticipated slots machine revenue reached $750 million. That's because the estimated property-tax discount of $876 would be wiped out by the projected $1,000 that the homeowner would have to pay in additional earned-income taxes, should voters approve it.

Can someone in the Pennsylvania legislature explain how this is a good outcome?

The minute I heard the news, I figured this recent turn-about was a response to the even worse plan advanced by gubernatorial candidate Lynn Swann. The Philadelphia Inquirer writer offers a similar analysis: "Passage of the bill was seen as a ready-made campaign issue for Rendell, expected to defuse Republican gubernatorial candidate Lynn Swann's criticism that the governor had failed to deliver on a key promise." Yes, it's all about politics, isn't it?

One politician expressed it best: "But what is really being done here is an illusion of property-tax reform. It's not real." This from Rep. Daryl Metcalfe, a Republican from Butler County. He spoke truth. I wonder if he will be re-elected. After all, speaking truth is dangerous. Balancing the criticism, Rep. Gary Haluska, a Democrat from Cambria County noted, "I really have a problem with us pretending we're doing tax reform... . Let's call this what it is: This... is just an enhancement of the rebate program."

Here is what will end up happening: (1) Localities will impose earned income taxes on wage earners, (2) Property taxes will be reduced, with those owning more expensive properties getting the largest reductions, (3) senior citizens at the low end of the income scale will receive larger property tax rebates, (4) this will shift taxes from the wealthy and the poor to the middle class, (5) gambling revenues will be delayed and under projection, (6) the Pennsylvania tax system will be even more of a mess than it is, and (7) the legislature will not feel compelled to do anything more because it will view its 2006 action as a momentous reform justifying another four decades of inaction.

What would be so wrong with (a) take whatever gambling revenue there is, if there ever is any, and use it to rebate property taxes for low-income homeowners whether or not of "senior" age, and (b) enact local INCOME taxes to replace part of the property tax? I suppose that doesn't fit in with the "squeeze out the middle" effort. As I wrote a few weeks ago:

There's an undercurrent to the taxation debate that transcends taxation. It goes to the heart of whether this country will continue to have a middle-class, one of the significant indicia of genuine freedom and democracy, or whether it will atrophy into another of the "many ruled by a few" arrangements that have dominated human history. This question is even more provocative when one considers the ways in which the few have made their way into the elite. Though it is important that discussion of these issues be done in a manner that permits the entire citizenry to understand what is at stake, I have serious doubts that it will. The rhetoric accompanying the small estate tax repeal slice of the much larger question about what sort of nation we are, want to be, and will be, reinforces my doubts.

This is not a new theme of mine, as this analysis demonstrates. If it doesn't begin resonating with the populace, it will be a theme turned lament and nothing more.

Tax Stupidity? No, Tax Stupid Acts and Stupid Decisions

After reading the news about Ben Roethlisberger's motorcycle accident, I particularly noticed the fact he was not wearing a helmet. Though some might claim that the issue is whether he exercised good judgment, I consider it a matter of intelligence versus stupidity. Judgment is a talent that is called into play when there is insufficient information to make a decision. Riding a motorcycle that can reach speeds of 200 miles per hour, without a helmet, is stupid. Period. Excuses such as "It feels good" or "I feel free" are simply that. Excuses.

It's too bad a Super-Bowl winning quarterback is hurt. The good news is that he will recover. An important question is whether he will have learned a lesson. An even more important question is whether others will learn a lesson without paying the price he has paid. Considering that he did not learn a lesson from the recent motorcycle accidents that injured several other professional athletes, perhaps ending their careers, it's not all that likely that others will learn from Roethlisberger's unfortunate experience. It doesn't matter that he had the right-of-way, as some news reports are explaining. When a careless, inattentive, or even stupid driver turns in front of you at the last minute, do you want to be on a motorcycle without a helmet, on a motorcycle with a helmet, in a car, in an SUV, or in a tractor-trailer?

The annoying aspect of this incident is that resources must be injected into the health care system to repair damage that ought not to have happened, and that could have been minimized or prevented by the wearing of a helmet. I don't know the details of Roethlisberger's health care coverage. Is he self-insured? Is he covered by a group policy? If he's self-insured, his helmet avoidance is costing him not only the physical injuries but financial setbacks, though perhaps he would have a right to collect from the driver who cut in front of him. My guess is that he is insured under a group policy. Health insurance premiums increase because health care costs increase. Roethlisberger's decision to wear no helmet has increased health care costs. Aggregated with injuries suffered by other helmetless riders, and by people doing stupid things, the costs of these folks' stupid decisions are shifted to others covered by group health insurance policies. This point can be made about other health-impairing behaviors, such as smoking, steroid use, and taking in 70% of one's daily calories in the form of saturated fats. Defenders of the "right" to engage in unhealthy behavior parade out all sorts of defenses, including the famous "if I don't get cancer from smoking, I'm sure to need health care for some other disease" argument. My point today is simply that costs should be affixed to the decision making that generates those costs. And I'm not talking about health insurance premium surcharges for smokers and helmetless motorcycle riding. I'm talking taxes.

Taxes are imposed on cigarettes. The theory is two-fold. First, discourage the behavior by making it more expensive. Second, generate revenue which, theoretically, should and could be used to defray the societal costs of smoking. Why those revenues end up elsewhere is a different issue. There are similar taxes on alcohol, and other activities. What about taxing motorcyclists who refuse to wear a helmet? The difference is that taxes on cigarettes, gambling, alcohol, and the like are easily lumped together as "sin taxes" because they deal with activities characterized by some theologies as morally wrong. Putting a tax on helmetless motorcycle riding into the category of "sin tax" appears awkward to many people, because most people consider riding a motorcycle without a helmet to be stupid, but not a sin. I'll go with that perspective, even though as a child I was taught that such behavior was, in fact, a sin. I'm sure that just about everything people do can find a "sin" home in some theology. But it makes sense to leave religion out of it.

Instead, let's stop taxing "sin" and activities classified as "sin" under certain dominant theologies. Instead, let's tax stupidity, or, more precisely, stupid behavior. I'm confident that the taxes on cigarettes would remain, because, with apologies to the people I know who smoke, smoking is stupid. As for alcohol and gambling, perhaps some mechanism to separate sensible from stupid drinking and recreational from addictive gambling could be crafted, but I've not yet thought of one. Taxes could be imposed on activity that poses unacceptable risks to a person's health that generate costs to society that society ought not be asked to bear. I suppose one could exempt from the tax those who elect to self-insure, but we know that the problems would arise when the "untaxed" helmetless motorcycle rider is delivered by ambulance to the emergency room. Being the merciful society that we are, we should expect more than a few stupid helmetless motorcyclists to expect, sorry, a free ride when it comes to healing the injuries caused by, or exacerbated by, their stupidity.

The idea of "taxing stupidity" isn't new. Pop the phrase into Google's Search Engine, and several hundred hits show up. Sometimes cast as "a stupidity tax," the concept usually arises when people are discussing gambling, making jokes about gambling, efforts to deter stupid digital forum postings, methods of making political careers too expensive for those lacking sufficient intelligence, or even looking for ways to reduce stupidity or to insult someone.

I'm not proposing a tax on stupidity per se. However one wants to measure intelligence or the lack thereof, the issue isn't the existence of stupidity. It's the next step. Stupidity acting out. Many people without so-called high levels of intelligence are brimming with common sense and wouldn't jump on a motorcycle without a helmet. Many people with high IQs do some really stupid things. Paraphrasing a well-known theological adage, tax the act, not the person.

Lottery Winnings as Capital Gain? Don't Bet on It

Gamblers are persistent. Those who lose continue to play thinking that they're overdue for a win. Those who win think they've got a system that works, and so they stick with it. Very few gamblers have the discipline to cut losses, or to fold when it's time to surrender. So it's not surprising that lottery winners who sell the rights to their future winnings continue to litigate a settled issue.

The latest decision comes in the appeal of Roger Leslie Wolman and Caroline R. Wolman to the Tenth Circuit from a decision of the Tax Court holding that the amounts received from selling the rights to future years' payments from the lottery do not qualify for the special low tax rates applicable to capital gains. In its decision, the Tenth Circuit affirmed the Tax Court, and simply cited its decision in an earlier case, Watkins v. Comr., in which it also affirmed the Tax Court's conclusion that the sale of rights to lottery winnings are ordinary income and not capital gains taxed at special low rates.

In its Watkins decision, the Tenth Circuit relied on a half-century old Supreme Court decision, Comr. v. P.G. Lake Inc., 356 U.S. 260 (1958), in which the Court held that capital gains treatment does not apply to the receipt of a payment in exchange "for what would otherwise be received at a future time as ordinary income." Courts, relying on the P.G. Lake decision, have applied this principle to taxpayers who received lump-sum payments for relinquishing rights to interest payments, rental payments, commissions, movie receipts, and mineral leasehold payments. As lotteries proliferated during the past several decades and winners began to sell their rights to future payments, the Tax Court held at least a half-dozen times that amounts received in exchange for future years' lottery payments are ordinary income and not capital gains taxed at special low rates. Before the Tenth Circuit tackled the issue, the Third and Ninth Circuits had considered appeals from Tax Court decisions and affirmed the Tax Court's conclusion.

Taxpayers, facing the inevitable, have dragged out preposterous arguments in an attempt to get a low tax rate on their gambling winnings. Several have claimed that the amount paid to enter the lottery is a capital investment and that the amounts they won were returns on investment. That argument has been rejected by every court to which it has been presented, because the gambler is paying for the privilege of playing and not for ownership of an investment. One court stated, “[t]he purchase of a lottery ticket is no more an underlying investment of capital than is a dollar bet on the spin of a roulette wheel.”

So why do taxpayers who win lotteries and sell the rights to future payments insist on reporting the income as capital gains taxed at special low rates when they know, or should know, and their return preparers know or should know, that doing so violates the tax law? The answer is simple. They think they'll get lucky. They're gamblers. They're taking a chance that some Court of Appeals will tilt the machine and hold in their favor, creating a circuit split that would take the issue to the Supreme Court. Yet anyone who understands tax law knows that with the Ninth Circuit having rejected the taxpayers' arguments, there isn't a federal appeals court in the country that will reach a different conclusion. And even if that happened, the Supreme Court, which decided P.G. Lake, surely would affirm the conclusion that lottery winnings and the proceeds of selling the rights to future lottery payments are ordinary income.

At some point, a court is going to slap a taxpayer with a frivolous lawsuit penalty for bringing a case that is nothing but a loser. And at some point, an appellate court is going to stick a taxpayer with a frivolous appeal penalty. The risks are going to shift even more unfavorably for the taxpayer. Yet they persist.

Why?

It's the lure of the special low tax rates for capital gains. There's a big difference between a tax rate of ten or fifteen percent and a tax rate in the thirty percent range (depending on the amount of the lottery winnings and the taxpayer's other income). This is yet another reason that special low tax rates for capital gains is unwise tax policy. It diverts resources into the "let's make ordinary income look like capital gain" industry, and encourages taxpayers to gamble with the characterization of what clearly is ordinary income, in a last-ditch, high-stakes reach for a tax break to which they think they are entitled. After all, their neighbors plunk money into the stock market, take the gamble, win, and are taxed at low rates on their winnings. They go for the lottery ticket, hit, and get taxed at higher rates on their winnings. They see the state's take on running a lottery being used to benefit a variety of useful social programs, whereas the stock market gains aren't so directed. It's no wonder that they are being stubborn, though foolish.

Here's my advice to these folks. Stop trying to find relief in the courts. It won't happen. The courts are bound by the House rules, namely, the tax code. Bring the action to the Congress. Lobby for a tax break for lottery winnings. Of course, doing so will bring into the public spotlight the foolishness of the special low tax rates, and the outcome might even be a reform that taxes all income at rates between the special low tax rates for capital gains and the much higher rates applicable to other income. Yes, there is a real risk of such an outcome. But what do the lottery winners have to lose at this point by switching from sure-loss, penalty-looming court battles to a legislative debate?

Well, their time and effort, that's what they'll lose. I guarantee that if such lobbying begins, I'll be on it. Happily, for it will illustrate that the negative reaction to tax breaks for lottery winners will easily become a "be consistent" challenge to the favoritism shown to day traders and other stock market and financial markets gamblers. Perhaps the stubbornness, or, better yet, persistence, of the gambler will be the spark that triggers reform of the tax law.

Perhaps I ought to start several pools. One on how many more taxpayers bring their "lottery winnings are capital gains" losing argument to litigation. Another on whether the issue reaches the Supreme Court. Another on whether Congress does anything. A few more of these and I can open a tax-themed casino in Las Vegas, where the house always wins. And yes, my casino will include The 1040 Lounge, the subchapter K pool, and the flow-through lounge. Room numbers would be matched to Code sections. The tax audit thrill ride and the generation-skipping nightclub will have a place. And with the tax law changing as often as it does, the property will never go stale.

Would it work? Perhaps. After all, there are people, they say, who will bet on anything. Even on the Jim Maule Taxes-Are-A-Sure-Bet Casino.

A Child's Milestone

My pattern of posting regularly on Monday, Wednesday, and Friday mornings, and irregularly on other days, has become so predictable that when I miss a Monday, Wednesday, or Friday morning, people, or at least a few people, begin to worry. Don't. Don't worry unless several weeks go by without my having said anything. When academic year ends, my posting schedule becomes less predictable. My schedule changes, there are no classes to teach, and sometimes I travel and don't have the time to post, or access to the Internet.

What happened this morning? I was in my car, driving from Cambridge, Massachusetts, back home. I don't try to do the "cell phone and drive with one hand" thing, so there's no way I'm going to try to post to my blog while driving.

I was in Cambridge to attend my son's graduation from Harvard. He did well. Very well. Very, very well. But this is not the place to start trumpeting his accomplishments. I'll let him start his own blog. No, MiniMauledAgain won't work. He's a half-inch taller, though he claims it's an inch. I'm confident he'll figure out a name when he's ready. Needless to say, I'm thrilled for him. He worked hard, as I wish all students would. What's nice is he doesn't need to be encouraged to work hard. It comes naturally.

Having been away for almost three days, I have some things on which I need to get caught up. I plan to be back with some tax and other fun on Monday.

The Carnival of Taxes Has Arrived!

Having had the fun experience of hosting a blog carnival back in April, Blawg Review #53, that focused on taxes, I am delighted to report that the Carnival of Taxes has arrived. Organized and lauched by Kay Bell, a journalist who considers herself a tax geek, it promises to be as successful as her Don't Mess with Taxes blog, which has won some awards. I expect the Carnival of Taxes will do the same.

The first edition of Carnival of Taxes spotlights no fewer than 16 tax and tax-related blogs. Yes, MauledAgain was tagged, and I do intend to nominate future posts for inclusion. If you're one of my "have my own tax blog but like to read yours" readers, get in touch with Kay and send her material. Carnivals are supposed to be fun, so let's help her make this one live up to that goal.

Short But Not Sweet

Short is not a word one finds being used in connection with taxation, other than in phrases such as "short tempered" tossed about in mid-April each year or "comes up short" used to describe the comparison of actual tax legislation to what needs to be done. A running joke about a "short tax form" is the two-line parody, "1. What did you earn? 2. Send it in." As for tax legislation, the phrase "short tax legislation" seems oxymoronic. Until now.

After receiving an e-mail imploring me to lobby in favor of a specific estate tax reform bill, I decided to look first at the legislation that has reinvigorated the debate about the federal estate tax. Introduced early in the 109th Congress, and thus one of only 9 bills to have a one-digit number, H.R. 8 was passed by the House on April 13 of last year. It was then sent to the Senate and place on its calendar. Subsequently, a variety of other bills have been introduced, each a variation on retention of the estate tax with higher thresholds than applied before the 2001 legislation was enacted to trigger the gradual phase-out of the tax scheduled to be complete in 2010.

The text of H.R. 8 is as short as a tax bill can get:

109th CONGRESS

1st Session

H. R. 8

AN ACT
To make the repeal of the estate tax permanent.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Death Tax Repeal Permanency Act of 2005'.

SEC. 2. ESTATE TAX REPEAL MADE PERMANENT.

Section 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001 shall not apply to title V of such Act.

Of course, it makes no sense unless one examines section 901 of the referenced 2001 tax legislation and identifies title V of that act. It's easy. Section 901 is the "sunset" provision that terminates most of the 2001 changes and restores the tax law to what it was before the 2001 legislation took effect. Title V of the act is the provision that phases out the estate tax. H.R. 8, therefore, removes the estate tax repeal from the sunset provision that would restore the estate tax. In other words, it does what the Act title says. It makes the estate tax repeal permanent.

There are two major issues afflicting the estate tax conundrum. One is the question of whether it should be retained as it was in 2001, repealed, reduced in application, or otherwise modified. The other is the identification of some way to resolve the first issue without leaving taxpayers in suspense while they try to plan disposition of their property at death.

These issues have been discussed intensely by tax commentators during the past several decades. They have been reported, although usually in summary fashion, by the mainstream media. They are tackled by bloggers throughout the nation. Arguments in favor of one approach or another have been advanced, criticized, dissected, and rebutted. The debate is afflicted with misleading facts, appeals to emotion, predictions of dire consequences, and generous use of the words "fair," "selfish," "corrupt," "family," and other attention-getting buzz words.

Because the legislation, amendments to it, and substitutes have resurfaced in Congress and are scheduled for votes this week, it is time to revisit what I think is a very sensible way to resolve the divide between the advocates of total repeal and those who advocate retention of some sort of estate tax, however limited. In other words, it's time to consider, yet again, the repeal of the estate tax in exchange for the income taxation of unrealized appreciation in the decedent's property. Summarizing a my previous explanation of the proposal, the plan has these key elements:

1. Repeal the estate tax, for some of the reasons advocated by the advocates of repeal. The tax is complicated, it nurtures an industry dedicated to assisting wealthy taxpayers dance around the tax, it consequently is nowhere as efficient or effective as theory indicates, it encourages a variety of otherwise nonsensical transactions designed to reduce the impact of the tax, it imposes an additional layer of tax to the extent it is levied on property representing accumulation of after-tax income, and it requires the maintenance by the IRS of a cadre of professionals whose skills and efforts are consumed in countering the dance steps of those helping taxpayers do bizarre things with their property in efforts to avoid or reduce the tax.

2. In turn, include the unrealized appreciation in the decedent's property in gross income for the decedent's final taxable year. Death should not be a tool used to avoid income tax. The escape from income taxation offered by death contributes to the "lock-in" effect advanced by those who successfully advocated the special low tax rates applicable to capital gains and certain dividends, but not to wages, other gains, interest, and other income.

3. Permit taxpayers to index basis for the same reason other amounts in the tax law are indexed for inflation. The argument that inflationary gains ought not be subject to income tax because they do not represent genuine economic growth carries sufficient weight to support this component of the proposal. A person whose property increases in value by 1 percent when inflation is 1 percent is not a wealthier person and ought not be taxed on that increase.

4. Repeal the gift tax. It is, after all, nothing more than the flip side of the estate tax.

5. Include the unrealized gain in property gifted during lifetime by the decedent in the decedent's unrealized appreciation at death, unless the decedent elects to include that gain in gross income at the time of the gift. See, there still will be work for the estate planners. Actually, there still would be work without this election, and the election is not being proposed as a fop to the estate planning industry. Another option is giving the donee the option to include the value of the gift in gross income and removing the gains from the donor's tax base.

6. Provide a "capital gains deduction" for the decedent's final income tax return. The exact amount, whether two million dollars or five million dollars or some other amount, requires the crunching of numbers using the revenue estimating software that no one in government seems willing to share. It ought not be difficult, though, to calculate an amount that raises the revenue that the estate and gift tax system had been generating.

When I floated this plan last fall, it did not go without criticism. I addressed the questions and concerns in that earlier post, which I will not repeat. It is important, though, to restate several key points.

Determining deemed amount realized as of death is no more of an issue than is determining fair market value as of death. The proposal does not add any additional burden or administrative problem.

Determining indexed adjusted basis as of death is no more difficult that determining it a week before death if the decedent, not anticipating death, had chosen to sell the asset at that time. Even if it is easier for the decedent to determine basis than it is for the decedent's executor or heirs to do so, as I explained in this post, it's really a matter of who digs through the paper or digital files that the tax law requires the taxpayer to maintain. The basis determination objection to the taxation of unrealized appreciation is a feeble distraction.

To the extent liquidity is an issue, the estate tax payment deferral arrangements in current law can be adapted to income taxes arising from the decedent's final return. Here, too, a piece of existing law is maintained.

The debate over the estate tax, and the various proposals, including mine, plays out against a backdrop that is very disconcerting, and if it isn't, it ought to be. Most advocates of estate tax repeal refuse to accept the idea of taxing unrealized appreciation at death. They want a system that taxes investment income at low or zero income tax rates and to the extent accumulated, escapes estate taxation. Likewise, they want growth in investment assets to escape taxation. Whatever wonderful arguments can be paraded out in favor of exempting investment income from taxation, the upshot is that the burden of paying for government shifts to wage earners. That shift has already started. Considering the decline in real wages, the payment of low wages to undocumented workers, and the difficulty for wage earners to accumulate sufficient post-taxation discretionary income to move into the investor class, the ability of the nation to sustain itself by seeking all necessary revenue from wage earners is at risk. Many who reply that the solution is to cut government spending are among the first to object when a specific government expenditure is nominated for termination.

There's an undercurrent to the taxation debate that transcends taxation. It goes to the heart of whether this country will continue to have a middle-class, one of the significant indicia of genuine freedom and democracy, or whether it will atrophy into another of the "many ruled by a few" arrangements that have dominated human history. This question is even more provocative when one considers the ways in which the few have made their way into the elite. Though it is important that discussion of these issues be done in a manner that permits the entire citizenry to understand what is at stake, I have serious doubts that it will. The rhetoric accompanying the small estate tax repeal slice of the much larger question about what sort of nation we are, want to be, and will be, reinforces my doubts.

Does the Internal Revenue Code Use an Appropriate Inflation Measure?

In his Philadelphia Inquirer column this morning, Andy Cassel draws our attention to some significant flaws in the way the nation measures inflation. He explains how the Consumer Price Index (CPI) tracks the cost of an "imaginary basket" of consumer goods purchased by a hypothetical family. He describes a significant criticism, the inclusion of highly volatile items such as food and energy in the CPI basket, a criticism that leads to computation of a "core" CPI that does not include the volatile items. But leaving out energy, for example, is itself misleading. Andy also discusses the use of rent increases to interpolate the housing cost component of the CPI, even though renters constitute only 30 percent of occupied residential housing.

Although this pretty much was not news to me, what was news is Andy's reference to a change made five years ago by the Federal Reserve when it comes to estimating inflation. Instead of using the CPI, the Fed is using something called the Personal Consumption Expenditure Index (PCEI). Similar to the CPI, it includes different data, is computed differently, and is published by a different federal agency. Is it any wonder that measuring inflation isn't as easy as measuring the height of a basketball net?

In his column, Andy mentions what most of us know, that the CPI is used to adjust a variety of economic measures. For example, cost-of-living increases in wages reflect CPI. Many contracts have CPI adjustments drafted into their language, to protect contractors, suppliers, dealers, and brokers, to name a few, from surges in the cost of materials and services.

One major use of the CPI that Andy did not mention, but which immediately popped into my head, is the annual change in a long list of federal income tax amounts. A short list of examples demonstrates the pervasiveness of CPI adjustments in the tax law: the tax brackets in the tax rate schedules, the standard deduction, the personal and dependency deduction amounts, the additional standard deductions, the increase in the earned income cap for computation of a dependent's standard deduction, the threshold at which personal exemptions and itemized deductions begin to phase out, several components of the earned income tax credit, and a variety of other thresholds and limitations. It's not just the income tax that is affected. The wage limit for computation of the OASDI portion of social security also reflects a CPI adjustment. In the gift tax arena, the annual exclusion is adjusted to reflect CPI changes.

When Andy asks, near the end of his column, if "that small difference [between the CPI and the PCEI] matters," he is asking a question that goes far beyond the impact of inflation forecasting on what the Fed does with the funds rate (which in turn affects a variety of interest rates). Suppose someone could demonstrate that using CPI rather than PCEI to adjust tax amounts distorts revenue. Perhaps an economist with access to the appropriate modeling software could run some numbers showing what tax revenue would have been had PCEI been used. Because use of the CPI is dictated by the Internal Revenue Code, any change would need to be made by Congress and not the IRS. As this difference between CPI and PCEI which Andy spotlighted this morning gets more attention, it will be interesting to watch the Congress as it struggles with a need for more revenue and a desire to cut taxes. My prediction is that the current Congress will not change from the CPI even if it is demonstrated beyond reasonable doubt that CPI is less accurate and generates more revenue distortion.

Team Teaching as a Component of Law School Curricular Change

My musings a few weeks ago on "The Law School Curriculum: Ready for a Change?" brought a comment from a CPA practicing in Southern California. A self-described regular reader of MauledAgain, she asked a very sensible question about accomplishing the goal of plugging law students into the realities of transactionally-focused law practice. She asked whether law professors could collaborate and team teach courses with practitioners.

Although team teaching is far from prevalent in law schools, it has happened. Sometimes it works well, sometimes it's adequate, and occasionally it's a disaster.

The advantages of team teaching are numerous, particularly if a practitioner matches up with a full-time academic. The latter brings a sense of pacing, coverage, pedagogy, and an understanding of the context in which the students must arrange their study schedules. The practitioner brings knowledge of current problems in practice, the stuff of which next decade's appellate cases will be made. The practitioner understands the realities of client needs, client reactions, client demands, and client noncompliance. If the personalities and styles of the two teachers blend, the course can be significantly superior to what it otherwise would be. The Villanova Graduate Tax Program has used, and continues to use, team teaching, and it works well. It works well because it's done well, reflecting the careful thought that goes into the selection of the faculty for the Program.

The disadvantages of team teaching are far fewer. The institution needs to come up with additional adjunct faculty stipends, but considering the pittance that is offered by most law schools, adding several practitioners as team teachers will not break the bank. The teachers need to invest time co-ordinating the syllabus, divvying up primary responsibility for the many tasks that must be tackled for the course to be well-prepared, and to discuss in advance how they will hand the ball back and forth. Team teaching does not work quite as well if one person teaches half the classes alone and the other teaches the remaining classes alone. The dynamic of their interaction is a principal source of the additional value added by team teaching.

I've not done a thorough study of law school team teaching. Perhaps someone else has, but I'm not aware of it. What I have are a collection of anecdotal tales about team teaching, along with my own experiences.

My team teaching experiences come from two perspectives. I have been a student in a team-taught course and I have attended team-taught CLE programs. I have team-taught law school and Graduate Tax courses. I have team-taught CLE courses.

From the teaching side of the podium, the experience has been almost uniformly excellent. Having a savvy practitioner or a full-time academic expert in another area of the law contributing to the discussion is not only valuable for the students, but a marvelous enhancement of my own understanding of the subject matter and its application to client realities.

From the student side of the podium, my experience has been mixed. I've attended CLE programs where the concept of "team teaching" simply meant the first instructor did something and then the second instructor did something, creating something almost identical to a sequence of separate topics. I've also attended CLE programs where the panel interacted dynamically, enriching the participants' understanding and making the learning fun in some respects. My one experience as a student in a team-taught academic course was terrible. Each of the two instructors seemed intent on proving that he was more knowledgeable than the other, and by the second class they were arguing with each other in a manner that distracted from the learning goals. By the fourth class, one had left and the other finished the course. I suspect that there was little planning, that the selection of the faculty did not take into account personality and style, and that there was some baggage from some earlier encounters.

Though I can't speak for other law schools, the use of team teaching at Villanova has increased a bit during the last decade. It certainly isn't discouraged by the Administration. The onus is on the faculty to develop team-taught courses, which has happened. Faculty have the option of proposing to invite another member of the faculty or a practitioner to join them in teaching a course, though it is clear to all of us that the full-time academic remains responsible for the course under those circumstances. There have been a few instances in which the Administration has asked a full-time member of the faculty to collaborate with an adjunct teaching in a highly specialized area, creating a technically team-taught course but seeking to have the academic mentor the practitioner for a year or two before the practitioner then flies solo with the course.

The point of this discussion isn't just a brief analysis of team teaching. It's also to emphasize the need for creative thinking about how law schools "deliver their product" to their students. Anything that increases the students' chances of successfully caring for his or her clients deserves at least a try. Law practice is changing, life is changing, and law schools are beginning to realize that they, too, must change. Even Harvard, which is what prompted the posting to which this is a followup.

A Memorial Day Essay on War and Taxation

Thinking about Memorial Day has me thinking about war, helped along by a steady dose of war movies on some of the cable channels this weekend. More specifically, after seeing a few scenes in which decision makers debate the allocation of scarce resources (e.g., aircraft carriers or battleships?), and knowing the bits and pieces I know about the impact of war on taxation, I began to think about the relationship between war and taxation.

Wars consume resources. Wars divert resources. In other words, wars cost money. Wars destroy lives. A life lost is immeasurable, yet economists, lawyers, and juries put price tags on lives, however lost. It is not good for an economy, or for taxation, for lives to end prematurely.

Wars often are fought about resources. Oh, supposedly the Greeks and Trojans had at it because of a woman's beauty, but I suppose in their culture a woman's beauty (or perhaps a woman) was a resource. Here and there wars are fought because of pride. But most wars are about resources. England and Spain, in the sixteenth and seventeenth century, fought over gold and other valuables from the Western Hemisphere. Wars have been fought over fishing rights, water, and trade routes. In the 1930s, Germany wanted "living space," Japan wanted oil and rubber, and the world ended up with war. The Revolutionary War was fought over control of resources and trafficking in resources, some of it manifesting itself in complaints about taxation. The many wars fought over religion almost always disguise a battle for resources, especially when the souls of people are considered a resource, something that a few folks think they can own and control.

The irony, and stupidity, of war is that it often destroys the very resource over which it is being fought. How many barrels of oil, pounds of rubber, or piles of gold have ended up burned, ruined, or at the bottom of the ocean because of war? How many tax revenue dollars end up in materiel that is destroyed, deliberately exploded, or consigned to the scrap heap?

War, though stupid, tragic, and an indictment of a species that dares call itself "sapiens sapiens," unfortunately is necessary when there is no other recourse and the cost of no war, particularly in lives, is greater. War is the consequence of decisions, decisions that require the utmost care and consideration. One of the most important questions, aside from "should it be done?" and "can it be done?" is "how will it be done?" All three questions are tangled together, for if it cannot or ought not be done, there's no point in asking how, yet seeking the answer to "how will it be done?" might answer the question of "can it be done?" and "should it be done?"

War is such a collective expression of the ultimate essence of life and death that it ought not be undertaken half-heartedly, experimentally, impetuously, or foolishly. War requires commitment, and without it there ought not be war. War requires resources, and without a commitment to expend those resources, it ought not be undertaken.

The last half-century has brought a concept of "limited war," a buzz phrase that I think is more about the commitment side than the implementation side. True, in a world with nuclear weapons, a war fought without their use is in some way "limited," but I doubt that the victims of every other sort of weapon, including those that cause entire cities to burn, find much comfort in the notion of "limited" war. The concept of "limited war" is like the concept of "limited pregnancy," whatever that means.

The resource commitment problem with "limited war" is significant. The notion that a country can fight a war without general sacrifice of resources is mind-boggling. Our nation is at war. War has been declared on our nation, not by some relatively harmless but disturbed individual, but by an organization and movement that presents a genuine threat while changing the rules of war. Yet too many of us continue to think that war is something going on somewhere else, fought by others, and beamed into our homes by all sorts of spontaneous communications technology. But for that technology, the funerals of fallen heroes, and the fact today is a day we are reminded to stop and meditate on these matters, one might not know that a war, a global war, is underway. Televisions can be turned off, few visit the maimed veterans undergoing treatment at military hospitals here and abroad, and life pretty much goes on as it otherwise would.

I wasn't around during the last full-fledged, unlimited global conflict. Yet I've listened to as many tales as were shared with me by those alive at the time as I could find, and I've read and watched a lot. So I've heard and read about rationing, double shifts, postponed plans, substituted products, and sacrifice. Every tax practitioner, and every citizen, should understand that during World War Two income tax rates skyrocketed, wage withholding was introduced, and the entire revenue-expenditure structure was altered. War hung as a cloud over every life, and over every dollar. Is that good? I think so. Why? Because war is so serious and so terminal a course of action that it should not be permitted to recede to the background.

Yet the current global war has not been managed in the same manner. Politicians have chosen to fight without increasing revenue, imposing rationing, or deferring projects and activities. In their defense, they argue that none of these things are necessary, that a nation can have its guns without giving up its butter. I disagree, and I happen to think that politicians are reluctant to do what needs to be done because they are more concerned about maintaining their position in office than in making the tough decisions that war requires. So our national leaders have chosen to put the cost of the current war on our children and grandchildren. Those who decry the huge deficits, triggered in part by war and in part by the almost insane concept of decreasing tax revenues (mostly for the wealthy) during wartime, pretty much focus on the economic impact. They ask if, or suggest that, our grandchildren will be facing income tax rates of 80 percent in order to reduce an unmanageable deficit. I think it will be worse. I think our children and their children and grandchildren will become subservient to our nation's creditors. The sovereignty of the United States of America is far from guaranteed, and is at risk. Were these considerations discussed when those in power decided that war can be done on the cheap?

War cannot be done on the cheap. War is not free. War ought not be purchased on a credit card. War is a national commitment. Hiding the true cost of war in order to influence a nation's willingness to engage in war is wrong. Ultimately, the price to be paid will be dangerously high.

Let us not forget those who have paid the price, with their lives. Some have died. Others have been maimed and their lives will not be what they once were or what they would have been. Many have been psychologically scarred. Some are disillusioned. Bitterness, anger, and resentment percolate among those who fight and those who continue with their lives as though there were no war. It is tragic that some of the deaths and injuries have occurred because of insufficient resources for the appropriate armor and equipment. War should not be managed by the corporate cost-cutter types.

To all those who have served, and who serve, I and every other citizen owe thanks. Here it is. Thank you. Now let us go and do what needs to be done to put meaning into those words. Let us make a collective investment in our appreciation, and provide the full revenue support that is required for whatever it is the nation decides to do.

FTC Report on "Shocking" Gasoline Prices Not a Shock

Round and round we go. It spins and spins. Why?

Back in May of 2004, in a Memorial Day post that focused on the relationship between gasoline and war, I noted that "The reason oil prices are rising is primarily the increased demand from China. Back we go to Economics 101. Demand rises, and prices follow." Later, in August of 2005, I returned to the issue and repeated what I had written in an earlier May 2004 post titled "Gasoline Prices":

Supply and demand is easy. If demand goes up, or supply goes down, or both, prices go up. That's Economics 101, which ought to be taught in high school, and perhaps it is, here and there. Demand is going up at a phenomenal rate, on a global basis, particularly because China is growing and its need for energy is skyrocketing. Total miles driven by Americans has increased at rates far beyond the rate of increase in the population. Supply has been decreased, but will be tweaked up a bit in the near future, for a complex array of economic and political reasons.

I have previously discussed the rather sorry condition of Americans' understanding of economics.

So when gasoline prices skyrocketed after Katrina took numerous refineries off-line, many Americans reacted to those prices not with a calmly reasoned exploration of the laws of supply and demand and the alternatives to solving an increasingly serious energy problem, but with emotional cries of price gouging and market manipulation. Politicians, never failing to grab an opportunity to find the spotlight and rustle up some votes, decided that the price gouging allegations deserved a full-fledged investigation. Congress ordered the Federal Trade Commission (FTC) to examine the evidence.

Nine months after the catastrophe in the Gulf States, the FTC issued its report. The conclusions?

On the price gouging assertions, the FTC analyzed financial data for 77 establishments (30 refiners, 23 wholesalers, and 24 single-location retailers) and determined that 15 (7 refiners, 2 wholesalers and 6 retailers) "had higher average gasoline prices in September 2005 compared to August," that "these higher prices were not substantially attributable to either higher costs or to national or international market trends," but that "additional analyses showed that other factors, such as regional or local market trends, appeared to explain the pricing of these firms in nearly all cases."

On the market manipulation assertions, the FTC found

* No evidence to suggest that refiners manipulated prices through any means, including running their refineries below full productive capacity to restrict supply, altering their refinery output to produce less gasoline, or diverting gasoline from markets in the United States to less lucrative foreign markets. The evidence indicated that these firms produced as much gasoline as they economically could, using computer models to determine their most profitable slate of products.

* No evidence to suggest that refinery expansion decisions over the past 20 years resulted from either unilateral or coordinated attempts to manipulate prices. Rather, the pace of capacity growth resulted from competitive market forces.

* No evidence to suggest that petroleum pipeline companies made rate or expansion decisions in order to manipulate gasoline prices.

* No evidence to suggest that oil companies reduced inventory to increase or manipulate prices or exacerbate the effects of price spikes generally, or due to hurricane-related supply disruptions in particular. Inventory levels have declined, but the decline represents a decades-long trend to lower costs that is consistent with other manufacturing industries. In setting inventory levels, companies try to plan for unexpected supply disruptions by examining supply needs from past disruptions.

* No situations that might allow one firm – or a small collusive group – to manipulate gasoline futures prices by using storage assets to restrict gasoline movements into New York Harbor, the key delivery point for gasoline futures contracts.

The FTC determined that the impact of Katrina on refinery output and pipeline capacity and the continued demand for gasoline in spite of higher prices generated "post-hurricane gasoline price increases at the national and regional levels [that] were approximately what would be predicted by the standard supply-and-demand model of a market performing competitively.

There doesn't seem to be any available information on the cost, in dollars or diverted FTC staff hours, of researching these issues and preparing the report. The FTC has a long list of tasks, most of which are more important than once again disproving the allegations of price gouging and market manipulation that are tossed about the moment people discover that they cannot get what they want for free or for an artificially deflated price. I wonder if Congress will direct a federal agency to divert funds and staff time into a special investigation the next time someone complains that a conspiracy is trying to discredit the flatness of the earth.

Yet, according to this report, despite the FTC's findings, the attorney general of Connecticut claimed, "Our evidence and common sense suggest a vastly different picture of unconscionable profiteering by Big Oil." What evidence? Was it presented to the FTC? Was there anything different from what happens if news reaches retailers that a fire has destroyed a Bobble-Head factory? Prices of Bobble-Heads go up. There is no reason to require people to sell products for pennies more than they paid for the product. If circumstances cause the value of an item to increase, the owner has every right to sell it for its value. Some of the same people who scream about price gouging were more than happy to up the asking prices for their homes, as were all the other people marketing their properties, during the housing boom of the past few years. Would they be happy to find themselves the object of a price gouging investigation triggered by complaints from people who had been priced out of the housing market? Hardly.

What's at work here is the all too common approach of demanding and excusing high prices for what one owns and sells while insisting on low prices for what one wishes to buy. That's the market. People are free to buy and sell and negotiate price. What's also at work, that is objectionable, is the whining to the politicians to "do something" when the market plays out as it ought to play out. If Congress wants to do something useful, it could required that Economics 101 and Household Budgeting 101 be taught in the nation's school systems. There's a risk, of course, that having taken such courses, Americans would then turn their newly-acquired economic analysis skills to what Congress does with the nation's economy and budget.

Taxation Swann Song Should Be Tackled for Loss

So what does a gubernatorial candidate do in Pennsylvania to respond to the public pressure for tax reform, something the state's politicians have been unable to deliver for decades? Why, toss out a plan. Better yet, toss out a plan that has something good for everyone and something bad for those not yet in the game.

According to a story in this morning's Philadelphia Inquirer, Lynn Swann, the Republican candidate for governor, has proposed tax reform the principal feature of which is "tax reductions for everyone." It also includes a uniform property tax rate for each county in lieu of the current system under which the county, the township (or borough), and the school district each impose property tax at a rate each jurisdiction determines. Swann's plan would limit annual property tax increases by localities and school districts to 3 percent, but tied to a complex formula that tracks school employee salaries. The property tax would be imposed, not on the value of real estate, but on the value it had when it was last sold. Thus, when a house is purchased, the new owners' taxes could be anywhere from 2 to 10 times what the sellers were paying. Asked to explain how the revenue shortfall would be made up, Swann pointed to the state's general fund surplus, savings from consolidating school district employee health plans, and, the old chestnut, slot machine revenues.

The only thing that is right about Swann's plan is the value to a politician of promising everything to everybody. Many tax-unwise voters will give a good reception to Swann's siren song. Swann, a former Pittsburgh Steeler wide receiver, is accustomed to playing to the crowds. Back then, he was getting good coaching. This time around, he's not.

The general fund surplus is an unpredictable phenomenon. Just because there is one this year doesn't mean there will be one next year or the following year. Then what does Swann do under his plan? Cut spending? Increase taxes? Unlike the federal government, the state can't print money and it can't adjust interest rates.

I don't know if there are savings in consolidating school health plans. If there are, they surely are insignificant. Consolidating those plans does not change the number of people who are getting sick or in need of medical care, nor does it change the cost of medical equipment, prescription drugs, or medical care generally. At best, it's a gadget play. Or should I say, gadget ploy.

So that leaves slot machine revenues. Everyone's tax reform plan in Pennsylvania counts on slot machine revenues. Perhaps these will exist someday, if the legislature ever gets around to granting licenses. But they aren't doing that because they're fighting over who gets the revenue.

The idea of locking assessments in at the sale price of real property is silly. It shifts the tax burden to home buyers. The market being what it is, home buyers will look for homes, and jobs, in Delaware, New Jersey, and other nearby states. Employers will follow. It's a recipe for economic downturn. After years of litigation to compel tax authorities to comply with the requirement that property taxes be levied based on market value, along comes Swann's retro policy. Back to the past. A similar approach in California has been anything but successful. Did Swann not notice that the Pittsburgh Steelers did not achieve glory by imitating failure?

Limiting tax increases to 3 percent per year means limiting school expenditures to annual increases of 3 percent. If the number of students in a district increases from 1,000 to 1,040, are the last 10 turned away? If the number of special education students increases by a handful, does the district stop purchasing books? Stop buying fuel for school busses? Terminate other programs? Hmmm. Maybe they'd need to shut down their football operations. During the past few years, school district costs have been increasing at almost 6 percent per year, in part because of state-mandated expenditures. Swann's cap pretty much would end all school construction, rehabilitation and expansion.

One observer called Swann's plan "thinking outside the box." That over-used phrase covers too many mistakes. Has the child who adds 3 plus 4 and answers 8 to be earned an A because she is "thinking outside the box." Some boxes ought not be vacated.

After reading this nonsense, I wondered if Swann had been tackled a few too times too many. Aside from the fact he brings nothing to the table other than having been a great NFL player, a sportscaster, and a motivational speaker, there's nothing in his biography to suggest he has even an inkling about taxation, public finance, or the other realities of governing a state. He knows how to give a good speech. Talk, however, is cheap. So, too, is Swann's tax plan.