Dead Dogs and Email Privacy

My postings (original, first follow-up, second follow-up) on dealing with email and other digital content at death included a discussion of password lists. This brought a response from Mark Morin that includes both a sensible suggestion and a humorous suggestion that demonstrates, I suppose, that sometimes we can go too far looking for the perfect solution. Mark Morin wrote:

Since we're talking about a password list, how about encrypting it with some public key-type method and sending the private key to your attorney or executor. Heck, if you wanted to get clever, put the key in your will. If you really didn't trust anyone, encrypt the list with a large key. Encrypt the key and give the encrypted key to your attorney. Give the key to decrypt that key to your executor, then both the attorney and executor must conspire to violate your trust.

And so on, and so forth, depending on your level of paranoia. (I wanted to include a[n encryption] key tattooed on the tongue of a rottweiler who hates everyone somewhere in the chain so the principal would know when the key was compromised. [As the dog would be dead before giving up the secret.] But, I thought that would be going too far.)

My response:

Wow, Mark, my brain was whirring through the chain and then I got to the dog and lost it!! Excellent.

I guess if we left instructions to executors and lawyers as to how public key/private key encryption worked, it would make sense. And perhaps, eventually, people will deal with encryption the way they now deal with telephones, that is, without a second thought. But for the next decade or so, there's a lot of folks "out there" who would need hand holding. On the other hand, imagine the law firm that puts "understands and uses encryption keys" in its brochure or on its web site.

Somehow we could end up with a benchmark telling us what percentage of the population is paranoid. Or at least what percentage has email or other digital content they don't want getting into anyone's hands. Looks like a law and sociology or law and anthropology course beginning to take shape.

To that I add this thought. What happens if the attorney and executor die before the testator dies? Somehow the key must move from them to their successors. Yes, there is a risk of overkill (no pun intended) with this issue, but on the other hand, I love watching the reactions I get when I ask people, "So what do you think happens to your email when you die?" Maybe I just happen to hang out with a lot of paranoid people.

So, how many people will answer "I don't care" when asked that question. Responses such as "my spouse/child/parent will take care of it and make sure no one invades my privacy or usurps my rights in web sites and other digital content" don't count because there's no guarantee they will survive. So we get to add something else to the "to do" list. Namely, "what to do about the email, the web site, the diary, the letters, the novel in progress....."

Education Posting Gets Reactions

My recent posting on Bill Gates' call for education reform brought several comments.

The first was from my sister the teacher:

You omitted one very essential ingredient to the education of students.

Equally important to knowing the content, is the requisite that a teacher knows HOW to teach. Teaching is a craft and a discipline. Consider from Webster:

ped.a.go.gy n.

1. The art or profession of teaching.
2. Preparatory training or instruction.

1: the principles and methods of instruction
2: the profession of a teacher

3: the activities of educating or instructing or teaching; activities that impart knowledge or skill

Not all physicists would be effective teachers. However, an effective teacher of physics should be an effective physicist.

I completely agree. Consider this comment adopted as "Fourth,...." in my previous post.

Another comment, from friend, former student, and colleague Ryan Bornstein, explores the question of what the schools should be teaching, not so much in terms of subjects, but in terms of objective:

I just read your post today (advantage of classes being canceled by snow!). Education is a very big issue for me (obviously with my teaching and my mother having just retired after teaching 30 years for the Philadelphia School District). As you discussed a big part of education is preparing for college and standardized testing. My first question is
should school be about preparing a student for college or for just simply, life after school? One of my major issues with the education system and I think the country in general is the belief that everyone needs a college degree. The world has so many people with college educations that cannot get jobs to pay off their educational loans and general living expenses. It almost seems that you cannot succeed in many cases without a graduate degree (making a college diploma irrelevant or just a stepping stone). I think there is a lot missing in that people are not getting job training. Obviously everyone needs to understand their and they're; its and it's; but I see many people going for college and bypassing learning trades like plumbing, electrician, etc. It is amazing to me how many people graduating high school and cannot talk properly on the phone, cannot balance a checkbook, etc.

Again, I agree. There are teachers, though, who consider their task to be introducing students to intellectual discourse, leaving the "other stuff" or the "trade school stuff" to someone else. Why? Perhaps, turning back to the issue of proficiency, because the person doing the teaching doesn't know how to balance a checkbook or speak well on the phone?

Ryan then turned to the issue of testing:

Now for standardized testing, we have a real problem in balancing: how do we know a child is learning what they need to know in order to live and does a standardized test effectively tell us if the student has learned what they need to know in order to live. We all know people who take standardized tests real well and others who don't even though they may know the material. I also hear of teachers teaching a test and not the subject matters that a child will need to know to live. Now I have no answers to what should be done but I think people (like you did today) really need to start talking about these issues so that we can start fixing the system (because I do not believe throwing money at a system that is not working will all of a sudden make it work).

Testing is a skill. It is much more challenging to design an effective test than it is to take one. On that, I speak from experience. One huge challenge is to shift from teaching and testing knowledge alone to teaching and testing knowledge wrapped in understanding. In other words, it is time to teach people how to learn when they must handle problems without the benefit of a teacher in the front of the room. Otherwise we are creating one-track machines.

Considering the financial crises and challenges confronting educational institutions at all levels (public schools, colleges, large universities, private schools, ....), it is time to determine where the money is going and what it is doing. What really is the reason that, at all levels, out-of-class support staff has grown at rates far exceeding the growth in classroom teachers? Could it be the many layers of triplicate paperwork burden imposed by those who think that generating reports somehow solves the problem? Could it be the attempt to create a separate, special education experience for each child in the same manner Congress seems intent on creating a separate tax law for each taxpayer (or at least for each campaign contributor)?

The nation had best get onto this problem pronto. Students in other countries, living in a different cultural context, and in many respects hungrier and more dedicated, will eventually build business structures that will out-perform those staffed by people who cannot speak well on the phone, think straight, or adapt to change. About the only things that poses a more immediate threat with similar far-reaching consequences, are political instability and its offspring (war, terrorism, poverty, hunger, and disease) and the avian flu pandemic that seems to be lurking under most radars. That topic is for another day, when I'll reflect on how post-modern politics is ill-suited for reality.

Amazing...When It Comes to Education, Bill Gates and I Agree

Yes, it is amazing. Bill Gates said some things about education with which I agree. And unlike yours truly, he has the money and the clout to do something about it. After all, I share my opinions on a blog. He shared his with an audience of the nation's governors.

According to the report, Gates asserted that the nation's high schools offer an education that is "obsolete and morally indefensible" because it fails to prepare many students for college. Gates made special note of the inadequacies of the education offered to poor minorities, but from my vantage point, they're not alone in being shortchanged. Unless a child goes to one of the top high schools or prep schools, the child is behind before the first pitch of the college season. Gates agrees, stating that "only a fraction" of high school students are getting the best education.

Gates claims that "only one-third of our students graduate from high school ready for college, work and citizenship," and I wonder where he gets that one-third figure. I would peg it at 10 percent. No matter, that's not enough of a disagreement to belie the congruence of my view and Gates' view of the American education system. Gates didn't say much about college. I'll simply add that the college education pursued by most students doesn't do much to make up for lost ground, let alone prepare students for graduate school, work, and citizenship. When many of my law students cannot distinguish between "their" and "they're," or between "its" and "it's," or "principal" or "principle," the logical conclusion is that the college graduates not in the top 5 percent of their classes are doing no better, and surely have even more difficulties.

What's to be done? Notice I don't think asking "who's to blame" does much, because it ultimately takes us to the important question. What's to be done?

First, there needs to be agreement on the knowledge, comprehension, and skills that students should master by the time they graduate high school. This is not an invitation to the federal government to step up its existing involvement in education. It's an invitation to associations of citizens, business leaders, parents, teachers, and school administrators to hammer out sensible curricular designs. Here and there, a few states and a few school districts have been trying to tackle the issue. But they are few and far between. What most schools currently do, as Gates points out, reflects choices made 50 years ago in a world very different from the one in which we and the students now live and the one in which the students will live long after we have left the planet. I am no longer surprised, but remain disappointed, at how much the students in my law school classes do not know or understand but should have learned long before they arrived here. It matches my disgust with some of the stuff that has been washed into their brains by school administrators and teachers who put their own agendas ahead of the students' futures. Remember folks, we are the stewards of our children. We do not own them.

Second, there needs to be much better cooperation between parents and teachers. Parents who invest their energy into "protecting" their young, denying any imperfections on the part of their offspring, and arguing for higher grades (even if undeserved) so that their children can be advanced to the next stop on the education journey are not serving their children well in the long run. These parents need a paradigm shift, and the political system entangled in the public school system needs to stop worrying about votes, power, and turf protection, and to start putting the welfare of the students above the bleatings of their parents. Similarly, parents who coordinate their at-home education efforts and provide out-of-class support for their children's homework endeavors need to be encouraged and rewarded, perhaps in the form of increased influence on the operation of the public school system. Parents need to learn that academic endeavors are as important as extracurricular activities, and far more important than television, games, goofing off, and partying. When a parent shows up at a law school to argue about their 22-year-old child's grade, it should be obvious that the erosion of the parent-teacher partnership has gone too far. And, yes, that has happened. Here, and elsewhere.

Third, teachers need to be tested for proficiency in the subjects they are teaching. Aside from emergency substitution, a person who is only two pages ahead of the students is not serving the students or the nation well. Some of the problem, of course, is the difficulty in finding people willing to teach certain subjects, usually because private industry outbids the school systems. Another obstacle is the unwillingness of qualified teachers to subject themselves to the dangers of working in environments where discipline is out of control, thanks to the mentality of leniency that infects judges and some school administrators who think that coddling someone is more effective than laying down the law. Backing down from the need to discipline isn't all that different in spirit than yielding to a bully, and when the latter happens enough, the frustration triggers the sort of violent reactions that contribute to the risks posed to teachers and students in the schools where discipline is out of control. This obstacle to getting good teachers into all the nation's classrooms is another reflection of the breakdown in parental support for educational effort.

It is nice that Bill Gates and his wife have directed one billion dollars into educational assistance for improved high schools. But think about this question: by choosing to price Microsoft products a wee bit above what might otherwise be the price, is Gates imposing a sort of tax that he then administers? After all, the money he spends on schools comes from the excess of price over the sum of cost and taxes. There is no democratic process to affect what Gates does with his money. He happens to be doing something that is helpful, reflecting a perspective that I, and others, share. But he could just as easily be investing the money to encourage high schools to teach useless subjects. The people who supply Gates with the money have no say in what he does with it. I will leave the discussion to another time. I just want people to consider who, ultimately, will make the decisions.

On the same day, another report highlighted the growing practice of letting students take tests over, and over, and over, until they get the grade that they want to have. A spokesperson for the National Association of Secondary School Principals predicts that the practice will spread, as a logical consequece of the standards movement in K-12 education.

Retesting has its advocates and critics among educators. That doesn't surprise me. My reaction to "retesting" depends on what it means.

If retesting means taking the same test a second time, then the practice is flawed. Of course, after seeing the test and trying it one time, performance will improve the second time around. Even if the test is a shuffling of the same questions, the distortion is no less misleading. According to the report, at least in some school districts, the second test is not the same as the first. But in other school districts, the rules for retesting are highly subjective and seemingly unpredictable.

On the other hand, if retesting means that students are given the opportunity to get feedback, and to then tackle a different set of questions that focus on the same material, then retesting makes sense as part of the feedback loop that is essential to good teaching. The challenge for the teacher is to design second stage tests that do not mimic the first stage tests. This is easier to do if the tests are designed to identify flaws in a student's approach to analysis rather than mere knowledge. My students are given tests throughout the semester, a practice very uncommon in law schools but demonstrably beneficial to ultimate performance. The scores count toward the final grade but they carry proportionately less weight than does the final exam. Students will not see the same question on the final exam, but they will see questions that give them an opportunity to demonstrate that they have improved their ability to identify necessary facts, to apply law to facts, to explain errors in reasoning, etc. Note, however, that students do not get "do overs" for any semester test or the final examination.

There may be circumstances under which a retest is appropriate. A student who takes a test under duress or other extreme circumstances but who does not seek postponement because of ignorance, shyness, fear, or embarrassment arguably should have an opportunity to retest, especially if the inability to postpone was beyond the student's control. Some might say that it's a tough way to learn a lesson, and in law school, at least, this tough lesson is taught. I learned it when I took an exam while ill with the flu, and then for the first and only time in my law school life was admonished vociferously by the law professor when, in response to his inquiry about the less-than-stellar grade I earned, I explained what I did. The tables were turned, many times, when I listened to a student explain what was going on in the student's life during the examination period. Houses burned down, family members died, students were in car accidents on the way to the exam, and the list continues to grow. For many reasons, students are reluctant to ask for postponement. If the student flunks out, re-admission (along with a repetition of the failed courses) is more likely to be granted if the circumstances are severe and beyond the student's control. This, however, is more than a retest, because it is a costly repetition of the academic year requiring payment of tuition.

On the other hand, when retests are sought because the poor test performance reflects twisted priorities, I have far less sympathy. The report describes one student whose need for the retest was attributed to a week of classes missed on account of flu and four evenings of study missed because of rehearsals for a SCHOOL beauty pageant. We're back, are we not, to the principle that academic endeavors must trump extracurricular activities. Somehow the sick student could get to beauty pageant rehearsals but not to class. Excuse my sarcasm, but I see this sort of thing too often even in a school where students are preparing for legal practice in which, literally, the lives of their clients could be at stake.

Proponents of retesting claim it is necessary because students learn at different rates, because it encourages students not to give up, and because it ensures that they are prepared for the next stage in the subject. These are magnificent goals. They can be accomplished through appropriate feedback, tutoring, practice tests, and other arrangements that do not require that the game be replayed. In other words, more emphasis on preparation is far better than taking a risk-free test for which retesting is available.

Critics claim that retests artificially inflate performance measurements for individual students and for the school. With so much riding on a school's performance, it is easy to understand why retesting is so tempting not only to students but also to school administrators. It is easier to tweak outcome measurement than it is to do a good job in the first place. That's why it was so fascinating to see this report show up on the same day as Bill Gates' criticism of the pre-college education system.

Critics also claim that retesting devalues the efforts of those who properly prepare and do well the first time they take the test. The critics are correct. Post-modern society continues to eliminate the price that must be paid for bad decisions, which contributes to the bad decision maker's inability to learn how to make good decisions. Students who need to learn responsibility are being coddled. This is nothing new. Too many students arrive in law school thinking that everything will shape to their demands rather than asking what it is they should be doing to earn a degree. In some school districts, there is a cap on the grade that can be earned on the retest. But in others, no such limit exists.

Students also divide on the issue. Some see retesting as an opportunity to learn more. Others see retesting as unfair because of inconsistent rules, or as letting a student who slacks and then retests out-grade a student who works diligently. Some see the practice as posing the risk of becoming a "crutch." Others worry that colleges will discount high grades from schools with retesting practices, adversely affecting all high grades even if earned on the first try.

One student noted that after they graduate, the world won't give them many chances. In contrast, a school administrator claimed that in the "real world" most people get a second chance, other than airline pilots and brain surgeons. I disagree. Second chances are unpredictable and far from guaranteed. And airline pilots and brain surgeons, some of whom DO get second chances, are far from alone.

"Email at Death" Issues Get More Attention

Not too long ago I posted some comments concerning the treatment of email after death, to which I quickly added a followup.

Now the topic has been given some attention in an article by Susan Shor, of TechNewsWorld, "Digital Property and the Laws of Inheritance," posted 22 Feb. 2005. Susan points out that "If a password list is part of your estate planning, a number of issues will be alleviated. Create an inventory of URLs, Web content, e-mail passwords and any other property an heir will need access to." Yours truly, more specifically postings on the MauledAgain blog, is quoted. Others, too, were quoted and raised ancillary issues, such as the need for the executor to have access to digital address books so that friends and associates can be notified of the person's death.

Though making usernames, passwords, URLs and other information available to the executor makes sense, there are some things that ought not be done. A person might think that to avoid having the list fall into the wrong hands, it should be put into the safe deposit box. The procedure for opening a safe deposit box after death is at best cumbersome and it doesn't happen instantly. Perhaps putting the list into a home safe, the combination to which is known by the executor, would reduce the chances of compromising the passwords while also reducing the chances that the executor would have a tough time finding the list. Surely an executor is someone who can and should be trusted, and thus giving the executor the combination to the safe, but perhaps not the house keys, should be a workable arrangement. I'm not comfortable having a client leave a password list with an attorney, not because I distrust attorneys, but because there is too much risk in terms of employees of the law firm, among whom there can be high turnover rates, having deliberate or accidental access.

Though there are some wrong ways to proceed, there is no one right way to work out what will be an issue for an ever-increasing number of decedents-to-be. Eventually, it will be an issue arising in every estate planning instance. Trial-and-error (which is not the same as error-in-trial) will be a common experience. I urge lawyers to share with their professional colleagues and with the public their approaches to these issues that have worked. Actually, none of us would mind hearing about the arrangements that tanked, because someone might be on the verge of taking the same steps.

Another Day, Another Tax, Another Fee

It doesn't take long for a new tax or government fee to be proposed. Someday I'll figure out how much time elapses, on average, between the issuance of new tax proposals. Something that would resemble the "every 3 minutes a person catches the flu" warnings that pepper our daily lives.

This time it's a fee on the sale of computer equipment, not to exceed $10 per sale, proposed by Rep. Mike Thompson of California and 21 of his colleagues, as part of the proposed National Computer Recycling Act. Thompson's major concern is the impact on the environment of the many tons of electronics discarded each day. Declan McCullagh has written an informative explanation of the science issues, and I recommend every computer user read his report. After all, we're the ones throwing the stuff out.

I prefer to focus on the fee proposal. There are both positive and negative features to the fee as proposed.

First, assuming that dumping obsolete computer equipment in landfills has a negative impact on the environment (and that is something Declan's report discusses), a user fee makes more sense than other alternatives. It is better to make the environmental cost part of the product cost rather than something that is imposed on all citizens regardless of their contribution to the problem. After all, some of us buy electronics the way Imelda Marcos purchased shoes --- ok, not quite, but you get the picture. Some people own very little in the way of electronic gadgetry and there even are people who don't use electronic devices at all. Really. But that's another story. I like the idea that those who make the mess (if there is one) either clean it up or pay someone to clean it up rather than shoving the job off onto other people who have nothing to do with the mess other than to be disadvantaged by it.

Second, the fee would apply to each sale of a "computer, monitor, or other electronic device designated by the Administrator" of the EPA. A computer is defined as any "electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and may include both a central processing unit and a monitor, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device" and a monitor is defined as "a separate visual display component of a computer, whether sold separately or together with a central processing unit, and includes a cathode ray tube or liquid crystal display, its case, interior wires and circuitry, cable to the central processing unit, and power cord." The Administrator can designate additional electronic devices to which the fee applies if those devices "(1) contain a significant amount of material that, when disposed of, would be hazardous waste; and (2) include one or more liquid crystal displays, cathode ray tubes, or circuit boards." Does anyone see cell phone in the list? I do. I'd like to see a list of all the devices that meet the two tests, because I'm sure that if the proposal is enacted these devices would be designated. My question is this: "Considering the extent to which processing units have proliferated and reside in the gadgets we use, what's left that ISN'T a device that would be subject to this fee?" I ask because the revenue could be enormous. Although the bill requires that the proceeds be used to cover the cost of administering collection of the fee and to provide grants to people and entities that resell, recycle, or extract toxic materials from, used computers and other devices, I think that $10 multiplied by hundreds of millions of computers and devices is a lot of money. "Social Security funding perhaps?," he asks cynically. Of course, the EPA can set the fee at less than $10, but bureaucratic restraint isn't guaranteed.

Third, a flat $10 charge is disproportional to the harm. Some devices contain larger amounts of toxic materials than do others. A $10 tax on a $40 device is equivalent to a 25% tax. A $10 fee on a $1,000 monitor or $800 computer is a mere 1% or 1.25% tax. A flat fee is regressive, and thus its impact would fall more heavily on the less affluent members of society. Someone who takes the time to shop carefully and find a cell phone for $59 instead of paying $99 ought not be saddled with the same $10 add-on fee. To all of this add the fact that price alone, of course, does not measure toxicity. The fee should reflect the weight or other equivalent of the toxic materials. Manufacturers have that information, so it ought not be difficult to use that data to set a proportional fee. And it would serve the additional purpose of disclosing exactly what it is that's inside the thing we're buying. It might make better electronic devices shoppers of us.

Fourth, this is something that even I will concede needs to be within the ambit of the federal government. Computer and electronics sales are interstate in nature. According to Declan's report, already five states have banned these things from their landfills. So where are they going to go? Next door. Will we see barges of used computers sailing around the world in search of a dump the way that cargo of waste circled the globe several times (and for all I know is still circling the globe)? Imposition of a scaled fee and use of the proceeds to remediate the toxicity makes sense.

Fifth, considering that California imposes an "advanced recovery" tax on new video displays and TVs, it is not unlikely that other state legislatures, always thirsting for additional sources of revenue, will follow California's lead. That's to be expected, if it's true that "everything, including the weather, starts in California." All of the confusion attendant use tax collection by interstate sellers will cast a large shadow over effective implementation of state-level environmental fees that come in 50 or more flavors.

The big issue, of course, is whether there is an environmental problem. That discussion is underway. If there is to be some sort of fee, however, it ought to be designed more sensibly than the one in the proposed National Computer Recycling Act. Done properly, it could be a good thing.

Pleiotropy: A New Word for The Tax World

A question that was presented to the ABA-TAX listserve, and to which I provided a reply, presents an interesting example of the challenges faced by those who propose changes to a highly interconnected tax law.

The American Jobs Creation Act increased the number of shareholders permitted in an S corporation from 75 to 100, and also added a provision that treats six generations of a family as a single shareholder. Before this provision was enacted, a husband and wife were treated as one shareholder but no other combination of relatives were so treated. As a practical matter, the 100-shareholder limit will be a problem only in rare instances.

What happens, though, if someone in the family is a nonresident alien? Can the person be a shareholder? The answer is no. A corporation is not permitted to be an S corporation if it has one or more nonresident aliens as shareholders.

This puts a planning obligation on the professional advisor, who needs to make certain that stock transfer restrictions are in place to prevent a nonresident alien from becoming a shareholder. Unfortunately, if a member of the extended family treated as one shareholder marries a nonresident alien and subsequently they divorce, a state court equitable distribution order requiring transfer of some of the stock to the nonresident alien creates a serious tax problem for everyone in the picture.

The "treat family as one" rule is an extension of the "treat married couple as one" rule. Yet under the "treat married couple as one" rule, the corporation did not qualify if one of the spouses was a nonresident alien even though the other spouse was a citizen. In these sorts of situations, there exists the option for the nonresident alien to elect to be treated as a resident alien. The price is that the nonresident alien will be taxed on all income, including income from sources outside the U.S. that otherwise would not have been taxed. Whether the election makes sense requires use of a spreadsheet or the "what if" features of tax return software.

However, no such option exists for the grandchild who somehow has become a nonresident alien, unless the grandchild happens to be married to a citizen or resident alien and makes the election to be treated as a resident. Should the drafters of the amendment that extended the "treat married couple as one" rule to a "treat family as one" rule have extended the "permit nonresident alien spouse of resident or citizen to elect to be taxed as resident" election to a "permit nonresident alien member of a six-generation family to elect to be taxed as resident" election?

Perhaps.

As is the case with complex software, fiddling around with one part can cause unanticipated and even unnoticed consequences in some other area not immediately recognized as connected with the part undergoing fine-tuning. There is an area of science that deals with this phenomenon. It has a name, a word I haven't used and ought not put into my everyday vocabulary: PLEIOTROPY, a word that even many scientists and engineers know more by concept than name. Briefly, pleiotropy literally means "at more than one turn." In practice, quoting from the cited URL, it is manifest in this truism: "Change one a single item (a gene, a bit of code in a software program, the placement of a mechanical strut) and other subsystems may be affected in wholly unexpected manners." In politics, the effect is known as "the law of unintended consequences."

So, change one bit of the Internal Revenue Code and .......

Was there a conscious decision NOT to expand the election by nonresident aliens to be treated as residents despite the expansion of the "treat as one" rule for S corporation shareholder identification purposes? Or was the matter not considered? Was it not even noticed?

I leave the matter as a red flag for practitioners. I end this post with a small amount of satisfaction at having found one more bit of evidence demonstrating that tax is, in some ways, like quantum physics. And I go forward trying not to use the word PLEIOTROPY in my everyday conversations.

The Social Security Debate: Cooking in the Kitchen

In his Philadelphia Inquirer column this morning, Andy Cassel posits several interesting observations about social security. His chief point is agreement with Alan Greenspan's observation that the key to making social security work is to design a system that increases savings. I agree.

This issue goes to the heart of what social security is or should be. Andy writes, "Stripped to its bare essential, Social Security is basically just a way of giving retirees and disabled people a formal claim on the stuff that the rest of us working people produce." Is that what it should be? If so, is the current system getting the job done? This is another way of asking the questions I posed the other day when I argued that the debate must begin at the beginning.

Apparently, Andy agrees with my observation that the current rhetoric distracts us. After summarizing (succintly) the Democratic and Republican positions, he concludes, "Neither side is dealing with the real guts of the issue - which is that Social Security's problem isn't fundamentally about money."

Bingo.

Andy asks whether the nation can produce the goods and services that are desired by workers and non-workers. He concludes that if the answer is no, there is a serious problem. He's right.

Sometimes when I try to explain the economy, I use a kitchen metaphor. It probably reflects a deep-seated, long-time memory of family gatherings, where it appeared to me that some people were in the kitchen preparing food and others were in other rooms talking and playing. You can guess who was in the kitchen, but the weird part was that in summertime when the grills come out, the roles changed. Though this seems to be a totally different topic, there's a grain of economics in the picture: although one person can prepare food for several people, there is a limit. One person would struggle to prepare a meal for fifty. I don't think I'm the only one thinking kitchen....Andy begins his list of goods and services with tuna-noodle casseroles.

Anyhow, the problem is what demographic studies tell us will happen. As the "baby boomers" retire, the number of workers per retiree will decrease to 2 or 3. Fifty years ago, it was approximately 12. As more people leave the kitchen and go off to talk or play, food preparation will slow. Perhaps it will grind to a halt when the last remaining person in the kitchen collapses. What Alan Greenspan and Andy Cassel, and others, are saying is that if people show up bringing already-prepared food, or food needing simply some reheating, it's a lot easier on the kitchen workers. I also think they are suggesting that any left-overs (what my mother called "planned extras") ought to be put to good use and not trashed.

There is another complication, though, that Greenspan and Cassel do not address. In all fairness, Greenspan was curtailed by time and Andy faces the challenge that all of us writers dislike, the space limitation. Imagine that as the folks in the kitchen are preparing food, some of them make mistakes. Food gets dropped on the floor. Worse, some of the children zoom through the kitchen and in their rowdiness knock things over, spill hot sauce into the coffee, and take biscuits to feed to the squirrels. Toss in some similarly disproductive behavior by talking adults, or if you don't want to picture that scene, just imagine the talking adults showing up in the kitchen as they try to get a drink of water from the sink or make coffee. And both children and adults are making forays into the kitchen to "sample" the chocolate chip cookies. I've known since childhood, surprise, surprise, do not ever get in the way of someone preparing food in the kitchen. And, of course, my years of preparing meals gives me a wonderful understanding of that rule that wasn't so obvious to me when I was seven years old.

Thus, when we measure the goals and efficiencies of social security by considering the underlying goods and services, we encounter two issues. One is the distribution question, namely, if the goal is for all workers and non-workers to have what they want, how should that be accomplished, if indeed it can be accomplished? Should someone with three automobiles get another? Should someone with a thousand cans of soup be entitled to a few more? Is the system one that compels savings through retirement rewards that are indifferent to the savings accomplished by the retiree outside of the system? Is the system one that should focus on need and thus function like insurance? I examined those questions in my last post.

The second issue, though, is just as important. Aside from encouraging the production of goods and services, ought society not encourage their preservation? Returning to the kitchen example, if half of the food is trashed, fed to squirrels, or doused with hot sauce, that means there's less for everyone. Think of how many resources are lost to preventable waste. It's one thing when a freeze wipes out a chunk of the orange crop, or an earthquake destroys 1,000 cars at dealerships in the stricken area. Natural loss must be built into the system. It's another thing when drunk driving wipes out people, vehicles, and other property, or when crime, corporate theft, and vandalism eat into the resource stockpile. Though these incidents create jobs for the rescuers, restorers, and investigators, the bottom line is that those efforts are not as economically efficient as they would be directed toward natural disaster relief or generation of additional, rather than replacement, product.

Dealing with the second issue raises concerns not unlike those presented by the first issue. If someone else, whether it is the person in the kitchen or the government, will clean up the mess and make sure we get food no matter our contribution or lack thereof, then the economic incentive to produce and protect the resource stockpile is far less than it would be if the consequences fell on the perpetrator. Of course, in some instances the consequences cannot be avoided or perhaps the perpetrator is innocent, unable to produce or protect the resource stockpile.

Underneath Greenspan's question is a tougher challenge. How can people be persuaded to produce and protect the stockpile ("savings")? I leave out economic incentives because they are simply glorified bribes. It is a question of values. The "carpe diem" folks somehow trust that tomorrow will hand them replacements for what they seized today. I disagree. So in addition to the challenge of persuading people to save, there is the disagreement over the need to save. In contrast, almost everyone agrees that smoking is bad, and the challenge is persuading people to stop or to refrain from taking up the habit.

A lot of it, I think, comes from how the nation has raised its children during the past fifty years. Living in abundance, society has forgotten deprivation, and sometimes tends to forget those who don't share in that abundance. The greatest generation vowed that no one would ever again experience the sufferings of the Great Depression, and yet the steps taken to ensure that result seem destined to cause an situation, if not just like it, similar enough to be a problem. Comparing the 1920s with the 1990s is an interesting exercise. How does a nation tell its children-turned-adults that perhaps there won't always be someone there to generate whatever the child-turned-adult's heart desires? How does someone tell the people in the other room that because there wasn't enough help, because hot sauce got dumped in some of the food, and because biscuits were fed to the squirrels, that there's not enough food, at least not unless people decide to pitch in and help out?

The good thing about the social security debate is that it is happening. The bad thing is that so few, aside from Greenspan, Cassel, and others who can see past the soundbites and headlines, understand the significance of the debate and what it really involves. Andy's column should be required reading in schools, colleges, and workplaces. Then it should be read aloud to a joint session of Congress, with members of the executive branch and judiciary in attendance. Oh, I wouldn't mind if they added in this blog posting and the one from the other day. So I'll waive my copyright in this posting and in the one from the other day, and grant permission for people to copy it (digitally or in hard copy) and send it to their Senator and Representative. I'll know it worked when I get summoned to testify in front of the social security reform commission or some other Congressional panel. I'll let you know.

The Social Security Debate: Starting at the Beginning?

Several readers of MauledAgain have shared comments about Social Security reform proposals, including reactions to various plans (or bits of plans) advanced by members of the Administration and of Congress and support for other plans whose proponents don't walk in the corridors of power on Capitol Hill or in the White House. I've been waiting until something more specific than the generic concepts is proposed, but I suppose it's time to make some general preliminary comments.

The difficulty for me is that most, if not all, of the discussion presupposes continuation of the social security system, with changes in the way revenues are gathered to fund it. A few proposals discuss changing benefits, either in amount or by delaying the age at which a retirement payout would begin. There has been almost no discussion that begins at the beginning. What is the social security system designed to do? What SHOULD it be designed to do?

The current social security system is a hodge-podge of benefits. When Medicare was carved out, given its own dedicated portion of the payroll tax, and limited to medical coverage, an excellent first step was taken to untangle the mess that the politicians have made of the Federal INSURANCE Contributions Act. A program of insurance against the economic ravages of pension-less retirement morphed into an entitlement program covering retirement, disability, survivor benefits, and an array of minor miscellaneous benefits. It's easy to figure out how that happened. Members of the Congress knew, and know, that promising something for nothing, or promising more in return than is given, is a sure-fire way to get votes. It did wonders for Claude Pepper. But not for the many children living in poverty while well-to-do retirees gather social security benefits.

No analysis about funding, about trust fund investment and growth, or about benefits eligibility makes any sense until the objectives of "social security" are defined, and then categorized in separate programs, each of which gets funding appropriate to its goals and each of which is managed and invested in ways suitable to its objectives. No private sector insurance or assurance business would set premiums, investment policy, and benefits formulas BEFORE determining the nature of the products it wishes to market. Of course, it is not unusual for a government to do things in reverse order.

The primary and original objective of social security was to provide assistance to retired workers who did not have pensions or whose pensions disappeared when their companies went under during the Great Depression. In those days, funded pensions were not the norm. Instead, companies made unfunded promises to make payments to retirees. If the company went under, so did the pension.

Much has changed since those days. Yes, there are employees whose employers do not offer pensions to them, and who fail to take advantage of the several tax-favored self-funded retirement plans such as IRAs. The failure may be lack of resources or it may be a lack of good planning. A person earning $23,000 and trying to support two children finds it almost impossible to stash several thousand dollars into an IRA. On the other hand, a college graduate pulling down $60,000 or $80,000 ought to think seriously about funding retirement, even if it means cutting back on what otherwise would be a consumer spending spree, but our education system racks up another demerit for ITS failure to teach retirement planning (and budgeting) to its graduates.

With the Pension Benefit Guaranty Corporation (PBGC) standing by to deal with pensions that go under, the role of the Federal INSURANCE Contributions Act can and should be curtailed to focus on retirees whose employers did not offer them pensions or whose self-funded retirement savings are insufficient. To offset the temptation of workers to rely on "Uncle Sam" to pay the retirement bills, funding could be set at a bare bones minimum for those retirees whose earnings and expense history (determinable from tax returns, for example) demonstrate a lifetime of squandering and bad judgment, whereas those who saved as much as possible for retirement (for example, the person earning $23,000 and raising two children who managined to squirrel away $500 a year) would receive "thrift lifestyle" bonuses. The mentality that led to reform of social welfare abuse surely can inspire some methods to deal with retirement abuse, because the "live well and let Uncle Sam support me when I retire" approach is not good for the individual or the nation.

Another goal of social security was to assist survivors of retirees, mostly surviving spouses. Social security was enacted when most surviving spouses had no pensions or retirement savings of their own, because almost all were women and few women held jobs, let alone pension-qualifying jobs, for more than a few years before marriage. Seventy years later, when many surviving spouses have their own pensions or self-funded retirement plans, the idea that a surviving spouse is per se entitled to financial assistance during retirement lacks cultural context. Similarly, penalizing those surviving spouses who DO have their own work history, as does current social security benefits computations, is no less anachronistic.

Social security also provides assistance to survivors of workers who die before reaching retirement age. If, however, the deceased worker's pension benefits are payable to the survivor, or if there are death benefits, life insurance funded by the employer or the family, or other sources of assistance, why is there a need for the social security system to provide a benefit? The response by most defenders of the current system is that the worker paid in money, making the survivors ENTITLED to a return. That, however, is an approach that treats social security as compelled savings rather than as insurance. Is that what the goal should be?

Social security also provides assistance to disabled workers. Should not a government disability program be synchronized with private disability insurance coverage? Some workers have employer-provided disability benefits that in some instances eliminate the need for government assistance. And to the extent the government is operating a fall-back disability plan, ought not that plan be carved out as was Medicare? Are not the funding, investment, and benefits considerations for disability different from those applicable to retirement annuities?

The answers to these questions are required before arguments about funding sources, the level of payroll taxes, the apportionment of the funding burden between employer and employee, retirement age, privatization, and other issues can make any sense. There are sensible arguments to support a compelled savings/entitlement program wrapped around retirement annuities. There also are sensible arguments to restrict the government's role to insurance, similar to its role in providing insurance under other circumstances. And there are sensible arguments that the government ought not be involved in providing insurance unless it uses that role to discourage decisions that have long-term negative effects, much like the arguments that the federal government ought not be insuring homes built by individuals on barrier islands because by doing so it is encouraging a long-term disadvantage.

This is where the debate ought to begin. The Administration, the Congress, and most commentators are not helping us begin the debate at the beginning. Perhaps they don't want to begin at the beginning because they don't like what it would do to the likelihood of success for their particular reform proposal. An informed debate is a useful debate. An uninformed debate generates confusion and bad decisions. I do not need to cite current or past examples. They surround us as does pollen in the spring.

Current technology makes it possible to inform the citizenry and to obtain feedback. Do Americans want to pay higher payroll taxes to fund a compelled savings plan? Would doing so discourage private savings, and if so, what would be the effect on the economy? Do Americans prefer that social security benefits be paid to well-to-do retirees? Should social security be treated as insurance against need, as is homeowners' insurance or automobile insurance? Should disability assistance be provided and, if so, should it be separately programmed as is Medicare? I am sure there are many more questions. My goal is not to generate the ultimate list but to spark some discussion among those responsible for leading the debate (though I doubt members of the Administration or of the Congress are reading this).

So that's the reason I'm not jumping in with arguments for or against this or that reform proposal or for or against the "leave it as it is" position. Nor does it make sense to me to argue about transitional rules. Perhaps if enough people pick up on my approach of first things first, the public debate over "social security" might progress in a useful, sensible way. And it might bring us to some surprising perspectives. And it might, note might, get us to something that works and in which most Americans would have confidence.

Does Remedial Coursework Teach Values?

"If you don't get it right, go back to school and learn it again." That advice, or its variation, "If you don't get it right, figure out what you're doing wrong and then try again," has been transformed into a court order issued by a federal judge in California, who has required all 80 attorneys in a law firm to return to school for a refresher course in ethics. According to this story, the judge acted in response to consistent misrepresentation of facts and law in litigation over a school district's obligation to assist a learning-disabled student.

The firm, which represents several hundred school districts, represented the defendant school district in the case in a lawsuit that dragged on for more than four years. The judge, obviously more than annoyed, found that the firm, its lead attorney, and the firm's client (the school district) produced "repeated misstatements of the record, frivolous objections to plaintiff's statement of facts, and repeated mischaracterizations of the law."

When the dust settled, the plaintiff ended up with $23,000 of vocational counseling and some other assistance. The school district ends up with almost a half million dollars of legal fees. The plaintiff's attorney was awarded a quarter million dollars in fees and costs. The judge imposed a $5,000 sanction on the firm, the lead attorney, and the school district for their "role in obstruction" of the legal process. And as a capstone, the judge sent a notice to the state bar of California. The judge pointed out that the school district should have settled the case at the outset, but failed to do so because the law firm did not advise it that it did not have much of a case.

Three years into the case, the judge warned the firm that sanctions would be imposed if the firm continued in its ways. According to the firm's managing shareholder, they immediately retained a legal ethics expert. The expert was asked to improve the firm's quality control protocols and to advise the firm with respect to training. In reaction to the judge's order, the firm scheduled a retreat so that the attorneys could figure out what went wrong.

Parents of other students with learning disabilities claim that the case is simply another in a long line of confrontations between school districts and parents, in which the law firm allegedly uses "shocking and outrageous methods" arising from "an indisputable culture of deliberate, systematic institutional abuse." If the judge's opinion is properly characterized as scathing, and it is, then these comments about the firm are scorching. The managing shareholder replied that the accusations make no sense, pointing out that he is a parent of a child with a disability. He pointed out that the firm continues to be strongly supported by its clients and has not lost any of them. But the client in the case confirmed it would not give the firm new business.

So will the "back to school" order work? Perhaps, but I have my doubts. The judge ordered each member of the firm must take six hours of ethics classes and the lead attorney must enroll in 20 hours of ethics. How much can be learned in six hours? Is it a matter of the lawyers not knowing what is right and wrong? Did the lawyers take ethics courses when in law school? Is the problem with the courses or with the attorneys? If it's a problem with the courses, sending attorneys back for more doesn't quite get the result that the judge would like to see.

Here's the problem. There are three types of ethics challenges. Each requires or demands a different approach.

One set of challenges arise from the bundle of rules that a person lacking familiarity with law practice probably would not be able to figure out simply from having a good sense of right and wrong. The restrictions with respect to conflict of interest, for example, or lawyer-client confidentiality, are complicated and technical. It is easy to slip up, and it is with respect to these sorts of "law office management" matters that retention of an expert could be helpful. But these aren't the rules that posed the problem in this case.

The second set of challenges involve the dilemmas for which there is no clear-cut answer. Attorneys of excellent character struggle with these. Some blend into the lawyer-client confidentiality rules. All put the attorney into a position of choosing between two rights or two wrongs. Some bar regulators provide mechanisms for attorneys to seek advice on how to handle a particular dilemma. But this isn't what was at issue in the case.

The third set of challenges involve simple matters of right and wrong. One doesn't need a J.D. degree, or a course in ethics, to know that it is wrong to miss deadlines without good cause, to steal a client's money, to lie to a court, or to hide evidence. Law school ethics teachers, however, go through the drill. To what effect? By the time students reach law school, they are past chronological adolescence and their characters have been formed. Absent a road-to-Damascus experience or its equivalent, those who are attached to principles of greed and disregard for the rights of others are not going to reform. Worse, some of those who are attached to worthwhile values may find themselves pulled away by the pressures of practice, where in some parts of the law practice culture, doing what it takes to win means more than doing what is right and the bottom line rules the day. This is what happens when a profession becomes a business in a culture where business is no less tainted by the ethical failures of the culture.

Thus, I wonder whether six hours, or 20 hourse, of ethics classes will change mindsets. The judge meant well, but it would be more effective to require the attorneys to spend a day or two with a special needs student, to see what life is like on the other side and to see the impact of a school district "win" in a case that according to the judge the school district should lose. True, that, too, might not be effective, but at least there is a chance for a road-to-Damascus experience if one is put on the road to Damascus.

Yes, it is true I don't know all the facts of the case. But this is one instance in which the overwhelming reaction of a clearly very angry judge establishes that the issue isn't whether the behavior was unacceptable. Nor does it matter, in this sense, whether the behavior in this one case was an aberration or part of a much wider pattern as has been alleged. That it happened at all, after four years of pointless litigation, after warnings from the judge, is enough.

Reading the story caused me to think about the role that component grading would play in strengthening the ethical contours of law practice. A student's grade in Legal Profession, or Professional Responsibility, reflects a student's knowledge of the ethical rules, and not whether the student considers himself or herself bound by those rules. Although in theory a student's academic record and transcript reflect ethical breaches by a student during his or her period of academic matriculation, as a practical matter most problems (read, red flags) are not detected and most of those that are detected generate little, if any, long-term effect. Those "on the left side" grade school report card marks, come to mind. Can, how, and should a law school serve as a ethical gateway for the profession? Those are questions that deserve discussion, and absent some changes in how law schools and the legal profession deal with these matters, this won't be the last time we read such a story. We may be looking at the beginning of a long line of cases. I surely hope not.

Drowning in Component Grades?

My two postings concerning the the challenges of grades and grading and the possibilities of standards-based component grading brought some perceptive comments from Dave Harmon.

Dave's focus is on the transcript. He expresses concern about the volume of information that would appear, and with the difficulty of comparing students from a school with component-based grading with students from other schools.

On the first point, he explains:

Putting all this data on transcripts is a little iffier, especially if you propose to include the separate components for each class. In these times, pretty much everyone is short of time and attention, including hiring departments. A traditional transcript provides a certain (small) amount of data -- from your description, perhaps a dozen total or few dozen yearly grades. Each letter grade represents about four bits worth of information, small enough to be instantly "seen" rather than interpreted. (Assuming consistent grading standards, but you're already championing those!) The total transcript, or at least its
summary section, probably come out to a short paragraph's worth of data. Some prospective employer can easily compare this small dataset among their applicants, spot common and/or relevant patterns in the data, etc.

If you include multiple component grades for each course, you risk swamping the reader's attention. Said reader will then look for the summary, that is the total grades. If you haven't provided such a summary, they'll improvise or intuit one, by who-knows-what methods.

There is no question that all of us are drowning in information. I guess that's why it's called the information age. Dave is correct, moving from one grade (letter or number) in each of roughly 30 courses, to component grades that could add up to 120, 150, 180 grades would swamp anyone examining the transcript with other things on their "to do" lists. There definitely would need to be some aggregation of the various grades into more general measures. For some components it should not be too difficult. In a component grading system, writing skill would probably appear as a grade for most courses. Even if a student has an aberration in the pattern, it should be possible to take, say, 22 B+ grades and 3 B grades and wrap them into one B+ grade (or better yet, convert them to their GPA equivalent and report the average). So perhaps a summary for each component, aggregated and averaged across all courses, would be the primary piece of information. Under current practice, transcripts are accompanied by an explanation of the grading system (because no two schools are identical), and surely an explanation of the component grading system could and should be attached. The detailed grades (120, 150, 180) could be provided on a second attachment, for those who want to dig into the student's abilities more deeply. After all, when potential employers call me about a student, they're asking those questions, namely, was the student an active participant? Creative? Responsible? Making deadlines? Answers to those questions are probably more helpful than the "this student would be great for your firm" recommendation letters that are in some ways more useful than transcripts and in some ways more difficult to assess and absorb than are transcripts.

One last comment about Dave's first point. Ultimately transcripts will be delivered in digital form. Under those circumstances, the data can be re-arranged with a click (or two) so that it can be presented in a manner that suits the needs of a particular employer (or LL.M. program). A bit of spreadsheet programming (a macro package), generating an application for employer use (and/or for registrar use), would be handy and surely forthcoming.

On Dave's second point, he suggests:

Even if you provide overall grades for the component skills, you still have a lesser problem:

The employer will now have trouble comparing your graduate with others using course grades. Further, when thinking about these grades, the employer will have to keep in mind the descriptions and implications of your new categories, and try to connect them to the business at hand. A law practice or faculty probably will understand the categories; but those aren't the only employers of new lawyers. Consider corporate and NGO legal departments, various public agencies and offices, etc. What are they to make of your categories? Note that this sort of confusion isn't insuperable, but it will be common to most major changes. I see
it as a sort of "systemic inertia" that you'll need to just deal with.

If the components are sensibly labelled, and if an explanation is attached (as is done under the current system), lawyers who are making hiring decisions, and most non-lawyers doing screening for the lawyers, will be able to see the flags, and cull the resumes accordingly. Firms looking for research assistance won't worry about a less than outstanding aggregated average component grade in spoken advocacy skills, whereas an employer looking for a litigator would be less interested in such a student. Low scores in a component such as "making deadlines on time" would tell employers far more than a B+ that reflects an A-level student who suffers from deadline phobia. Ideally, a law faculty adopting component grading would invite practitioners to share what they would like to see on a resume. In other words, the system should not be something understood only by a faculty or something developed in a vacuum. Perhaps the attempt to institute component grading would be a strong bridgework to span the gap between the "academy" and the practice world that has widened so quickly during the past decade as the philosophical side of law has overwhelmed those many law schools strugging (in vain, of course) to find a seat at the elite 30's head table in the rankings dining room.

Dave presents his concept of the transcript:

At the very least, I would suggest a transitional approach, which would make the transcript rather lengthy but let the reader pick out the data they want easily. The transcript would be made up of several sections, preferably on separate pages:

1) explanatory material about the format and categories,

2) the traditional class and overall grades,

3) the overall skill component grades, and possibly...

4) the grand matrix of skill components for each class, as an appendix for dataholics.

This way, you're providing the traditional data for convenience, and also offering your new data for consideration, without forcing it on readers.

His ideas are not that far from mine. I'd put the explanation as an appendix and I'd put the grand matrix as an appendix. The element that gives me pause is the traditional overall class grade. I know that if I shifted to component grading, I'd welcome the release from generating overall grades and I'd find it very difficult to put together 6 or 8 components into one letter grade. For example, how much weight to each? Before someone says, "Well, that's what you're doing now" my response is, "Yes, in some ways I do this, but most law faculty do not necessarily think in these terms when determining the grade that a student has earned." Admittedly, though questions on one of my examinations that measure ability to identify missing but necessary facts might earn 15 points (and thus represent x% of the course grade), they also measure other things, and ultimately I can't put a precise number on the weight given to "identifying facts" as a component. With component grading I'd design questions a bit differently, and focus on the skill that question attempts to measure. I'd also take into account separately other components not measured by examination performance (which is far from the best measuring device available to law faculty).

In any event, it's fun to bat this idea around. Whether or not it goes anywhere (other than around and around), it makes us think about what we are doing in the whole process of evaluating students and determining the grades that they have earned.

Standards-Based Component Grading

My posting last week on the problems with current grading practices, particularly the suggestion that a student's achievements in a course or program be separately graded rather than lumped into one grade, brought a challenging question from Prof. Beau Baez of Liberty University School of Law. He asked me to share my thoughts about breaking grades into components such as doctrinal, analytical, and mission orientation. He pointed out that this would give employers better information about the match between the student's characteristics and the things the employer is seeking in a new hire. He gave as an example a situation in which a student earned a B+ because she missed a major issue on the exam, and that under a component grading system she would have earned an A in analytical skills and a B in doctrine.

I gave Beau's question some thought. Contrary to some people's perceptions, only a few of my MauledAgain posts are spontaneous creations. I work on these with the same intensity I bring to my other writing, with one wonderful exception. Rather than crushing the reader with piles of footnotes, I insert URLs where it makes sense to do so.

Beau's question was framed in the context of a law faculty attempting to create a component grading system. What would it look like? How would it be applied? What would it measure?

I'd begin by compiling a list of areas by thinking about what lawyers do in practice. Here are some, keeping in mind that not every course gives the student the opportunity to demonstrate each of these things. Trial Practice, for example, presents an opportunity set different from the one encountered in a seminar. A practical writing course requires the student to call on a set of skills that differ from those required in a doctrinal course such as Torts or Securities Regulation. So what sorts of things should law faculties evaluate? The things that they should be trying to help students learn to do or understand. Here are some, and I am sure that with time and contributions the list will (and should) grow:

* coherent written expression in essays and memoranda

* coherent written expression in briefs and other litigation documents

* statutory drafting

* oral expression in litigation settings

* oral expression in other settings

* separating relevant facts from irrelevant facts

* knowing doctrine

* applying common law doctrine to facts

* applying statutes and administrative regulations to facts

* recognizing and explaining doctrinal errors in others' arguments

* recognizing and explaining reasoning errors in others' arguments

* identifying additional facts necessary to reach conclusion

* understanding which fact(s) need(s) to be changed to alter outcome

* considering the impact of good judgment when proposing what a lawyer or judge should do in a specific situation

* demonstrating good judgment when making presentations in seminars and other courses in which the student takes on a specific role

* identifying the source of legal authority in hierarchical or other form

* creativity in selecting alternatives or solving problems

* recognizing and responding to the impact of human behavior and human nature on client decisions and client struggles

* answering the question asked or solving the problem presented rather than "fighting the hypothetical"

Is it possible to construct evaluation techniques (exams, exercises, simulations, etc.) that focus on one or two of these skills? Yes. Questions requiring short answers that focus on one or two of these things can be designed and made part of an examination. It is possible, though more difficult, to create essay questions that require a student to deal with many or most of these skills. I think that faculty teaching clinic experiences, Trial Practice and similar courses already take into account a variety of these skills and abilities and then merge them into one grade. It is likely that component grading would be easier, because it would eliminate the challenge of weighing each component into a final grade.

Thus, rather than merging the scores on a question or exam into one number, the transcript would shoe a listing of each tested ability in a course and the degree to which the student showed competence in that area. Letter grades or number grades currently in use by a particular school could continue to be used in each instance.

The tougher question is standards. How much doctrinal knowledge is sufficient for an A? One hundred percent of the topics covered in the course? One hundred percent of what the professor would do on her own exam? Eighty percent? How much to pass? For what it's worth, my benchmark, inherited from a former professor turned colleague, is 20 percent to pass and 80 percent for an A (or 75 percent where the A- grade does not exist, a reflection of the fact I deal with two grading systems because I teach in two academic programs).

Surely, teams of faculty who teach in a particular area, with some effort, could conclude that a student ought to leave a particular course having learned a, b, c, etc. and having the ability to understand 1, 2, 3, etc. Surely the standards obviously reflect some subjectivity, but once selected, they can be applied objectively. In other words, we can debate whether running a mile in 4:30, 4:15, 4:00 or 3:45 deserves "summa cum laude runner" but once it's selected, it is applied across the board. And everyone knows what it is. Students no longer would be caught up trying to "guess" what a faculty member requires for an A or a C or a passing grade.

Ideally, students would be examined not by the faculty member who taught them but by another faculty member, perhaps even someone on the faculty of another law school, who knows the subject area, teaches the course, and is familiar with the syllabus and scope of the course in which the examined students are enrolled. In other words, if time constraints prevented the faculty member teaching the course from reaching topic Q, the examining faculty member would not test on that doctrine. Transitionally, and perhaps more permanently, the concept of team teaching is very suitable to standards-based component grading.

I expect that opposition to standards-based component grading will come from several places:

* students who expect, reasonably or not, that they will not present as attractive a transcript under standards-based component grading

* faculty who don't want "their" students evaluated by others

* faculty who don't want to invest the time and effort to shift to standards-based component grading

* those who are wedded to "tradition" (though as I point out to my students in Decedents' Estates and Trusts, most "traditions" aren't very traditional).

I expect that support for standards-based component grading will come from several places:

* students who expect, reasonably or not, to benefit from transcripts based on standards-based component grading

* faculty who understand that in many respects standards-based component grading is easier than the one-grade system

* employers for whom standards-based component grading would provide much more useful information

* education reformers who already have succeeded in restoring standards-based component grading in some K-12 schools.

I'm not sure where to go from here. Should I make a proposal to the Villanova University School of Law faculty? Maybe I'll write an article for the law school newsletter and see what the students say.

Ad Astra Per Aspera

A report issued today by Achieve, Inc. explains that almost 40% of recent high school graduates think there are gaps between their high school education and what they need to succeed in college or the work place. Wow. Achieve Inc, according to its web site, was [c]reated by the nation's governors and business leaders, [and] ... helps states prepare all young people for postsecondary education, work and citizenship by raising academic standards and achievement in America's schools.

The "wow" is not "I'm surprised." I'm not. I've been saying the same thing for years. The "wow" is "Hey, look, someone else has corroborated the claim and it's getting publicity." The publicity isn't this blog, but the coverage in media ranging from general circulation newspapers to the Chronicle of Higher Education.

Lest one think that recent high school graduates have a self-confidence problem, the survey on which the report is based also polled college instructors and employers. From the report:

Employers estimate that 39% of recent high school graduates with no further education are unprepared for the expectations that they face in entry-level jobs, ..... Employers estimate that an even larger proportion (45%) are not adequately prepared for the skills and abilities they need to advance beyond entry level. The employers ... [estimate] that 46% of high school graduates who apply at their company are inadequately prepared for the work habits they will need on the job, 40% are inadequately prepared in math, and 38% are inadequately prepared for the quality of writing that is expected.

Only 18% of college professors feel that most of their students come to college extremely or very well prepared, with just 3% saying extremely well. Fifty-six percent (56%) describe their students as somewhat well prepared, and 25% say that they are not too well or not well prepared at all.

Before blaming high school educators for the situation, consider some other information from the report:

Knowing what they know now about the expectations of college and the work force, the majority of high school graduates would have applied themselves more in high school and chosen to take more difficult classes.

So who's counselling or permitting students to take the easier road? Teachers? Administrators? Perhaps. Or could it be inattentive parents? Peer pressure? A failure of society to convey the "challenging education is essential" message?

The report's findings suggest that students rise to the level to which they are pushed. Again, from the report, which deserves a full read despite the several snippets I've quoted:

Yet, fewer than one-quarter of high school graduates feel that they were significantly challenged and faced high expectations in order to graduate from high school. Those graduates who did face high expectations are much more likely to feel adequately prepared for college or the work force. High school graduates welcome raised standards of achievement. An overwhelming majority of graduates say that they would have worked harder if their high school demanded more of them and set higher academic standards.

I think the pattern repeats itself at the undergraduate and graduate levels. Like the college instructors who "report that they spend a significant amount of
time teaching material that they feel should have been learned in high school," I can repeat my oft-stated assertion that too much of my effort is remedial, taking students through material and intellectual processes that they should have learned in college (or high school). Perhaps the undergraduate faculties will tell me that the reason I encounter the knowledge-base deficiencies that some students bring to law school is the need of the undergraduate faculties to be remedial with respect to high school educational deficiencies. Yet I know, as do most others, that there are too many ineffective undergraduate faculty who dislike or object to the price one pays for being demanding and pushing students. Others do not know how to instill in their students what needs to be taught.

It would be very helpful to have a similar survey conducted among law employers with respect to the educational status of recent law school graduates, and among recent law school graduates with respect to their perceptions of their law school educations. Anecdote tells me that many law graduates regret skipping the challenging courses while pursuing fun courses, charismatic instructors, and subjects with respect there are few answers and thus fewer wrong answers. It is disturbing, still, when a graduate says, "I should have worked harder." or "I partied too much." The alarm bells go off when a phone call or email begins, "I didn't take tax because it was too hard but...." Yes, I can finish the sentence. ".... I've discovered that every which way I turn tax intrudes on law practice."

It's not a subject matter issue. It's a question of what we require students to do. Spot issues? Write essay answers? Practice appellate arguments? No, it's a question of what we don't require our student to do enough times. "What do you say to the client?" and "How would you change the facts in order to generate a different result?" aren't the most frequently asked questions of law school. "What do you feel?" is number something with a bullet. So, no, I don't think law faculties are somehow absolved.

What's missing, I think, at every level, is an essential message that students need to hear. "By the time you leave this place, and are ready to [practice law, go to college, take a job, whatever] your instructors and your employers will demand that you can [do this, understand that, explain this, solve that] and it is our obligation to give you every opportunity to face similar demands at this stage, though we also have the obligation to assist you in learning how to handle those sorts of demands. It won't be easy but then again, life rarely is." That's the message I received when I was in school. Perhaps I was fortunate, blessed with excellent teachers. Well, yes I was, for as I've studied my teachers over the years, since I was a young child, I have noticed that most of them were accomplished in their field and that many of them knew how to make me better by the time I was done with their classes. I also noticed that the ones who taught me while I was still under the mantle of my parents had my parents' full support. Teachers were allies, not enemies.

And that brings me full circle to another proposition that I've held for many years: the problem is cultural. There is no point in trying to change the education system if we don't change the culture in which it functions, just as it makes no sense to tinker with a locomotive if the railroad tracks remain warped. So long as parents continue to do things for their children rather than guiding their children to doing things for themselves the ability of the education systems to raise the standards will be compromised. Let the children learn how to schedule their own soccer games. Let them do their own homework and write their own papers. Take them to work. Show them what is expected of people in the work place. Surround them with knowledge and explanation. Let them find the challenges that kick their energy expenditure into high gear. Show them that life is far more exciting and fulfilling when it is gathered through effort rather than handed down on a silver platter. And stop trying to smooth over all the ruts in their lives' journeys and pretending that there won't or shouldn't be any.

Though I have not yet totally convinced myself of this point, I am almost ready to proclaim that in the long run that which comes from greater effort through deeper adversity is more satisfying that that which comes easily. Ad astra per aspera.

With a little effort, it can be translated.

Federal Proposals on Telecommunications Taxes Don't Touch the States

When I summarized some of the proposals in the Joint Committee on Taxation's report, "OPTIONS TO IMPROVE TAX COMPLIANCE AND REFORM TAX EXPENDITURES" in a previous posting, I did not mention the tri-partite alternative proposal with respect to telecommunications taxes. Considering the length of the post, I passed the information on to Declan McCullagh and figured he'd put something out on politech, which he did. He also wrote up a story for C-Net.

Declan's reference to my post brought me some questions concerning the scope of the proposals, specifically, whether the proposals would affect what state and local governments did in terms of telecommunications taxes. As best I can tell, the proposals deal with the federal taxes. Whether states and localities choose to follow the federal lead, if there turns out to be one, remains to be seen. Federal law can restrict state and local taxation decisions if the tax violates the Constitution, but otherwise Congress cannot order a state or locality to impose or eliminate a tax. Sometimes Congress can link the state or local government's treatment with respect to some other provision to something like a telecommunications tax, taking an approach that could be called leverage, but that is an iffy proposition.

So the matter of telecommunications taxes, an issue that is going to need and get more attention as advances in technology upend decades of traditional patterns of doing business and taxing communication, will be discussed in 52 legislatures, not merely one. Yes, I'm counting the District of Columbia, but not the possessions.

So stay tuned (ha ha) for more information. It will be a long journey.

Working Late?

According to a law.com article, a recent survey shows that 87 percent of lawyers take work home with them. On average, they spend nine months per month working at home. That's twice a week.

The other thirteen percent claim they never work at home. Of the ones who do, 7.5% work 25 evenings each month. That's almost every night. Another 10.5 percent work at home 20 to 24 evenings each month.

Every law student in the country ought to read the article. It would help offset the growing chorus of "it's too much work" that comes from students who are accustomed to a college life (or major) that simply isn't as demanding as most careers in the practice world, law or otherwise. Students who have worked or who are working while attending school are far less likely to complain about the workload.

I hit on this point in Money for Nothing and Work for Free?, The Gavel Gazette, at 1 (March 5, 2001). Perhaps it needs to be republished, considering that all those who were students at the time have graduated. Among my reasons for thinking the message has faded are comments on evaluations to the effect that I am not a good teacher because I expect students to come to class having worked through things on their own. It's graduate school, isn't it? I'll have more to say about student evaluations in another post, soon.

It isn't unusual for K-12 teachers to take work home every evening, to prepare for the following day's class. There are assignments and reports turned in by students that need to be graded, graced with comments, and returned. Delay is an impediment to good feedback. Ah, there's another topic: grades were released yesterday to second and third year students, for a semester that ended almost seven weeks ago. How likely will they remember the examination experience that they now wish to review in order to learn what they need to adjust so that their learning abilities will improve? Yes, indeed, yet another post waiting for my attention.

There are jobs where the hours are fixed. Sometimes the intensity of the effort during the fixed hours is physically or mentally exhausting. Think of 8 hours collecting refuse, 8 hours working in a prison, or 8 hours on an assembly line doing repetitive motions. The world rotates 24/7, people breathe 24/7, and lawyers are needed 24/7.

Interestingly, some lawyers do try to schedule a years' worth of work into 10 or 11 months so that they can vacation for a month or two. But most lawyers are taking work home for several reasons that are shared by members of almost every profession that cannot abandon their responsibilities when they walk out the office door.

First, client and customer problems do not restrict themselves to the hours of 9 in the morning to 5 in the evening. If in doubt, check with your local plumber, auto mechanic, fire fighter, or physician. There are ways, however, of dealing with this aspect of 24/7 and that is the scheduling of staff to cover all hours. This is easily done in some instances. Check again with the fire fighters and the emergency room physicians, though all would confess to inefficiencies and disadvantages.

Second, some problems take longer to solve than 8 hours, and cannot be put on hold until the following morning. Sometimes a well-crafted team approach permits the enterprise to continue working on the problem while individuals go home, but that's not always easy to do.

Third, some problems present time pressures because other people do not plan well. The partner who tells an associate that an answer is needed in the morning might be passing on a task necessitated by a call from the client that the partner received minutes ago. But it can just as easily be something that the partner didn't bother to look at until a moment ago, despite the matter sitting on the desk or in the email inbox, for several days. Lawyers are notoriously bad time managers, and part of the price that is paid, though not necessarily by the bad time manager but by an underling, is the need to take work home. This, too, is a topic I addressed in Time Can Be on Your Side. Or At Least By It, The Gavel Gazette, at 1 (Feb. 16, 2004). Law schools do not teach time management. That's because law faculty are no better at it, and in some respects worse at it, than are practitioners.

Fourth, the world is beginning to drown in problems. Problems are a natural by-product of life. And of death. But too many problems arise in our post-modern era because people are more concerned with their rights than with their responsibilities, have grown up unable to plan to avoid problems, have become accustomed to having someone, beginning with mommy and daddy, take care of their problems for them, and would rather do something other than contribute to a reduction of problems. Exacerbating the problem (ha ha) is the desire for immediate gratification that has infused itself into post-modern culture. After all, there are problems that can wait until the next day, but so many people want to be as important and at least as special as the next person that the demand for immediate solution is made even if it is unnecessary.

Fifth, law firms, just like most businesses, are understaffed. Some of the understaffing is lack of properly trained and competent individuals to fill jobs. Hiring an incompetent person compounds the number of problems. But surely there is no shortage of properly trained lawyers. Hmmm. Well, seriously, there are plenty of properly educated lawyers, many of whom need mentored training in law practice, but who don't get it, or as much of it, as they once received because the partners don't have, yep, the time for it. But much of the understaffing in American enterprise is the result of budget pressure to cut costs so that the executives who should be solving these problems can continue to earn salaries wholly disproportionate to the amount of time they expend, the quality of decision making or product that they make, or the value of leadership that they provide. Employees trying to do more than one person's job end up making more mistakes because of the time pressure. That, in turn, makes more work, in the long run, for the lawyers.

And what happens when the work is taken home? Everyone else in the worker's life suffers. In some instances, the stress is countered with substance abuse or other problems. Which makes for more work for lawyers and others.

It's a vicious cycle and it needs to be broken. Where can a circle be broken? A circle has no beginning or end, but it can be broken. I suggest it be broken by explaining, gently, when it is appropriate to do so, that a person needs to fix his or her own problem, stop demanding instant gratification, and start planning things in ways that avoid problems. It is time to get government, enterprise, lawyers, and people out of the business of solving every problem that someone else has without regard to the nature of the problem, the consequences of its immediate or delayed solution, and the cost of remediation. When a person learns that only he or she will be the one to solve the problem, the person gets better at avoiding it in the first place. The cultural impact of that change will trigger other changes that should ameliorate the sweatshop mentality that is permeating society in the early twenty-first century. Perhaps the "me generation," having evolved into the post-modern "deconstruct the facts and blame someone else" culture, can morph into a "responsibility first" outlook. Then the few, who are taking work home, because too many others are making too many problems and solving and preventing too few problems, won't have as much work to take home.

Rant's finished. In honor of one of Sunday's coaches, "time's yours."

Alternate MAXIMUM Tax???

Bruce Bartlett has written a thoughtful analysis about a proposal for an alternate maximum tax, under which taxpayers would not pay more than 20% of gross income. The proposal is a modification of an earlier one in which the rate was 25% and there was a credit for payroll taxes paid by employees.

Bruce sensibly concludes that not only would the proposal add complexity, but that it "is simply not a serious idea" and is "tax gimmickry at its worst, the sort of thing that has given us the massive complexity the max-tax alleges to redress."

I agree. I simply (ha ha) want to add that I have a nagging sense that the proposal is a diversionary threat. In other words, if people think that this proposal might actually see the light of legislative day, they might be more accepting of whatever it is that Congress ends up passing under the penumbra of "tax reform."

Or perhaps it is intended as a negotiations opener, something that can be given up without much real pain but with feigned agony. Yes, a negotiation gimmick.

Addendum: Bruce has replied that Steve Moore, the proponent, is serious about the proposal. If that is the case, it's a frightening thought, because it's the sort of thing that simplistic minds might simply accept as a simplification. I shudder again.

Throwing Money at the Problem Might Work.... a Wee Bit

According to a news release from the Treasury Department, the Administration's 2006 budget request will include a proposed $500 million increase for IRS enforcement activities. This is a 7.8% increase in funding. Thanks to Paul Caron's TaxProf Blog for bringing my attention to this news.

The news release states that "[t]he increase will provide additional resources to examine more tax returns, collect past due taxes and investigate cases of tax avoidance." But will it?

Some of the increase is required simply to tread water, by accounting for the increase in the cost of doing the same thing in fiscal year 2006 that was done in fiscal year 2005. Adjusting for inflation, in other words, brings the real rate of increase down to something on the order of 5%.

What does a 5% real increase permit the IRS to do? Increase the number of audits by 5 percent? So instead of 1.1% of taxpayers being audited, 1.155% will be audited? Yes, that's an increase of 0.055% of taxpayers, or roughly 18,000 taxpayers. Sounds like a lot, but unless the IRS selects the "right" 18,000, the revenue impact will be small and the deterrence impact minimal. Yes, I understand that if the increase is dedicated to auditing particular corporations and partnerships the revenue dividends can and should be larger than if the increase is used simply to add 18,000 individual taxpayers to the audit list. More on that in a moment.

Of course, as an advocate of properly funding enforcement, I cannot be unappreciative of any increase, however small, but the temptation to be a griping donee is strong. And I yield. To recover the $500,000,000, the average tax deficiency, plus interest and penalties, for each of 18,000 taxpayers needs to be roughly $28,000. That's unlikely to happen. So the increase needs to be directed to enlargement of audit programs targeting high income individuals, corporations, off-shore deals, tax shelter partnerships, and the like. Let's hope that happens. And let's hope that it's effective. After all, successfully upending 10 corporate tax shelter schemes each keeping $50,000,000 from the Treasury makes the request pretty much a break-even proposition.

To audit these sorts of entities the IRS needs agents and auditors whose education, experience, expertise, and energy equal or exceed that brought to the table by the private sector tax wizards who design, market, and sometimes even defend their particular tax avoidance plan. Yet when the IRS proposed that an increased number of accounting credits be required of new hires, the union objected. So how effective can the IRS be? Note that even when it takes some of these cases to court, the IRS has had its problems, as I discussed here not too long ago.

Then there is the question of whether Congress goes along with the request. I have serious doubts. This is a Congress that dislikes taxation and the IRS at least as much, if not more, than has its predecessors. It is also a Congress that is unlikely to eliminate some of the most significant causes of noncompliance and many of the hurdles to enforcement, namely, the complex and byzantine maze and swamp of special-interest and bad social engineering policies wrapped into the Internal Revenue Code. It's much easier to enforce a bridge toll because people know what's required, it's easy to figure out if someone hasn't paid, and it isn't all that difficult to catch the perpetrator and mete out revenue justice.

There are those who insist that even at present the IRS is lax in its enforcement efforts with respect to certain businesses, restricting its audits to situations in or likely to be in the public spotlight, while it continues to track down low income taxpayers whose claimed earned income tax credit is off by a few hundred dollars. Not that the latter should be ignored, but restricted resources demand the setting of priorities, and I, too, wonder why so much of the underground economy continues to escape examination.

Well, at least $500,000,000, reduced to $350,000,000 to account for inflation, would permit the IRS to hire perhaps 1,000 to 1,500 auditors (along with support staff, office space, supplies, etc.) But where does the IRS find that many people willing and capable of taking on the job? The number of accounting graduates has declined. Law school graduates interested in tax are reluctant to take positions that are not classified as "law" positions. So perhaps a good chunk of the money would be spent to educate people who know nothing about tax. A year or two in an M.T. program would do the trick. Just in time for the funding to run out and the job to disappear.

Yes, folks, the great big tax machine that nourished the workings of federal government for the past 70 years is beginning to shake, rattle, and, no, not roll, but creak, groan, and shudder. As do I when I watch things play out in Washington. And as I suspect as do others when they know where and when to look.