Tuesday, October 04, 2005

Blogging and the Future of Legal Scholarship 

The October 7, 2005 issue of the Chronicle of Higher Education (apparently taking a cue from magazines that ship their November issue in August) has a magnificent article by Henry Farrell on academic blogging. Giving his essay the catchy and affirmative title of "The Blogosphere as a Carnival of Ideas," Farrell, who is an assistant professor of political science and international affairs at George Washington University, makes a very strong case for the benefits that can accrue to the academy, faculty, and the public when the professoriate puts some energy into blogging academic topics. This is one of those essays that brings the "I wish I had written this" thought to my mind.

Rather than beginning with praise for blogging, Farrell begins with a story that illustrates one reason why blogging hasn't caught fire among academics. He describes the concerns of an untenured professor who had been blogging anonymously but who then let his identity slip. He had been trying to avoid real or imagined "invasions of his personal and professional life." Although tenured faculty have far less to put at risk if they blog, barring total implosions in which they reveal confidential information or write thoroughly inappropriate posts, untenured faculty, and tenured faculty who are seeking to change positions, face multiple disadvantages. First, writing about controversial topics can alienate senior faculty, administrators, and hiring committees. Second, time devoted to blogging probably eats away at time available for "traditional" scholarship.

After describing these impediments to blogging, Farrell concludes that it is an "enormous mistake" to "dismiss blogging as a bad idea altogether." He's right. Academic blogging provides all sorts of advantages. Faculty who blog can "debate ideas, swap views about their disciplines, and connect to a wider public." A few use blogs to air their gripes. Many, perhaps most, wrap the blog into their academic identities. As Farrell puts it so brilliantly, "For these academics, blogging isn't a hobby; it's an integral part of their scholarly identity. They may very well be the wave of the future." Blogging, he points out, are intellectually exciting. At least for now, they provide the academic with a forum for interchange free of the constraints afflicting academic endeavors in general, such as seeking grants, getting tenure, and competing for endowed chair positions. Farrell says:
He focuses on law and philosophy to illustrate the extent to which academic blogging has taken hold. Using Dan Solove's statistics, he reports that 130 law professors have active blogs. That may be a bit understated, but it amounts to about one law professor at each law school. Wow, it is still lonely out here in the law school blogosphere.

Farrell then makes one of those bold statements that I appreciate: "In both of those disciplines, those who don't either blog or read and comment on others' blogs are cutting themselves out of an increasingly important set of discussions." Why is this happening? Farrell points out that although the "depth of thought" in blog posts may not approach that of traditional scholarship, a situation that I don't think blogging necessarily requires, the process of blogging brings to the communication of ideas a timeliness that is almost entirely lost in the traditional venues of peer-reviewed or student-edited journals. If he thinks this is a problem in academic publishing generally, consider the inadequacy of "traditional scholarship" to deal with developments in the world of taxation, where's yesterday's news becomes ancient history very quickly. It takes months, if not years, for another academic to have a response published in the traditional world. With blogging, responses are much more timely, and thus easier to process. Years ago, this sort of impact was predicted for the Internet and its progeny. Having been among those who foretold this change, it is gratifying to watch its emergence.

Farrell also notes that once a person has experienced the pace of blogging, a return to the "traditional" ways of communicating is difficult. Indeed. For me, it would be similar to driving a sports car and then going back to travel on horseback. Farrell then paraphrases John Holbo of the National University of Singapore, "the difference between academic publishing and blogging is reminiscent of 'one of those Star Trek or Twilight Zone episodes where it turns out there is another species sharing the same space with us, but so sped up or slowed down in time, relatively, that contact is almost impossible.'" Wow. This is almost as good as the article I threaten to write on the tax consequences of time travel.

The last of Farrell's points that interest me involve the impact of blogging on the present hierarchy of academia. His proposition that blogging can bring more attention to an adjunct professor or independent scholar who holds an interesting viewpoint than does "ponderous stodge regurgitated by the holder of an endowed chair at an Ivy League university" is magnificent not only in its vocabulary but in its reality. The playing field of rankings and rank are turned "topsy-turvy." Farrell's acknowledgment that blogging can bring academics an opportunity to converse with the "wider public" is perhaps more significant than it initially appears. Blogging may be the machine that brings down the ivy-covered walls that permit too many academics to live in a separate reality than do most people, just as the invention of cannon obsoleted the military advantages of castle walls. As Farrell writes, "This openness can be discomfiting to those who are attached to established rankings and rituals -- but it also means that blogospheric conversations, when they're good, have a vigor and a liveliness that most academic discussion lacks......Blogging democratizes the function of public intellectual."

Farrell's concluding paragraph nicely summarizes his thesis, one to which I subscribe:
Both group blogs and the many hundreds of individual academic blogs that have been created in the last three years are pioneering something new and exciting. They're the seeds of a collective conversation, which draws together different disciplines (sometimes through vigorous argument, sometimes through friendly interaction), which doesn't reproduce traditional academic distinctions of privilege and rank, and which connects academic debates to a broader arena of public discussion. It's not entirely surprising that academic blogs have provoked some fear and hostility; they represent a serious challenge to well-established patterns of behavior in the academy. Some academics view them as an unbecoming occupation for junior (and senior) scholars; in the words of Alex Halavais of the State University of New York at Buffalo, they seem "threatening to those who are established in academia, to financial interests, and to ... well, decorum." Not exactly dignified; a little undisciplined; carnivalesque. Sometimes signal, sometimes noise. But exactly because of this, they provide a kind of space for the exuberant debate of ideas, for connecting scholarship to the outside world, which we haven't had for a long while. We should embrace them wholeheartedly.
We must remember that almost everyone who woke up the day after the printing press was invented carried on with their life thoroughly unaware of how much life had changed.

Having seemingly heaped praise on Henry Farrell, or at least having saluted his essay, I need to express some mild disagreement with several of his propositions. I'm going out on a limb, and surely cannot "prove" my position. So perhaps I'm simply questioning the seemingly absolute articulation Farrell gives to these perceptions.

First, Farrell states that blogging "some depth of thought" and that "it's difficult to state a complex thesis in the average blogpost." There is much to be said for these propositions at the moment, but I'm not ready to concede that it must be this way or must remain this way. A complex theses can be expressed in a blogpost, and if a sufficient number of academics begin doing so, the average academic blogpost will evolve to something more than a several paragraph observation. Readers of my blog know that many of my posts resemble short articles, especially when two or three addressing the same issue are combined. I'd like to think that neither I, nor other academic bloggers, are abandoning any portion of our thinking process when we blog. There are days when I invest several hours into composing a blog, reminding me of how my late colleague Dick Turkington impressed on me the need to invest time in composing an email reply to a student inquiry on a substantive topic because tossing an off-hand response, something known to happen in oral conversation with students, could backfire. After all, if others are reading a serious blog post, they will be quick with the criticism if they find error or sloppiness. The same critical eye that reads a printed journal page surely can read a blog post. Farrell, though, isn't wrong on his assertions. It is, of course, a time of transition, and transition often brings inefficiencies and discontinuities. It's just that I'd like to hold out hope that blogging need not be, or remain, constricted, and can provide a forum for thought no less deep than that found in traditional print journals.

Second, Farrell writes, "Few if any academics would want to describe their blogging as part of their academic publishing record (although they might reasonably count it toward public-service requirements). While blogging has real intellectual payoffs, it is not conventional academic writing and shouldn't be an academic's main focus if he or she wants to get tenure." There are two points here. Farrell is correct, that in today's academic world, blogging is not treated as conventional academic writing, and someone seeking tenure cannot ride a blog to the permanent faculty appointment. Somehow, though, that must change. Tenured faculty, who do not face similar risks, must take the lead and pave the way for the world of the mid-21st century when, at least in law, the idea that a third year law student stands as gate keeper to the academic careers of law faculty will have become a joyously discarded awful tradition. The day when untenured faculty can share their theses through a blog, receive comments from peers and the public, revise their thoughts, and make timely contributions to the on-going debate surrounding a particular topic will be a day when the academy surely could praise itself for having turned its currently inward-focused scholarship into a true public service. As to Farrell's other point, I offer myself as a person who describes my blogging as part of my academic publishing record. Of course, since much of my publishing consists of tax books that the academy insists on calling "monographs" for reasons I've never understood, it is easier for me to see "law scholarship" as something far wider than an article in a student-edited law journal. Not that I haven't done that sort of writing, when it was appropriate for what I had to say, but it isn't the center of my scholarship. Of course, that one of the other two bloggers on the faculty is the Dean helps. As does the fact that if Dan Solove's numbers are in the ballpark, as I think they are, Villanova has three bloggers, thrice the national average. Surely that should earn us a place in the U.S. News and World Report top 25. Just kidding. At least for the moment.

Third, Farrell predicts, " While blogging won't replace academic publishing, it builds a space for serious conversation around and between the more considered articles and monographs that we write." I truly hope he is wrong, and I suspect he wouldn't be all that upset if he were. Academic publishing must become "of the blog" and abandon its current process and form. At least in law, blogging opens the door, perhaps a back door, to the peer review that is so noticeably absent, especially when compared with other disciplines. Ironically, my writing that doesn't qualify as "scholarship" in the eyes of many of my law professor peers undergoes far more peer review, treating attorneys as peers, than does the "traditional scholarship" of my law faculty colleagues. Blogging encourages law reviews to say goodbye to paper products and move to a digital world. Not only will this move save money, a proposition that appeals to every Dean I know, but it will also resurrect for law students the opportunity to see their publishable work, denied publication because of cost constraints, made available to the public. Villanova led the way in this regard when it established the Villanova Tax Law Compendium, which for other reasons is hibernating deeply. As student-edited law journals become extinct, law students can turn their attention to their own serious academic blogging, as a few already do, rather than spend time finishing articles and cranking out footnotes for law faculty who leave too much of their writing to law students.

In addition to these three tweaks of Henry Farrell's essay, I want to add another notion that he doesn't highlight, though he gives it some attention. This is the issue of publicity. As he points out, academics like publicity, and struggle to find it, especially in the world outside of the academy. More importantly perhaps, especially in certain aspects of the operation of educational institutions, administrators delight in publicity of the right sort. Publicity helps with fund-raising. It helps with rankings. It helps with attracting quality students to enroll. No university or college administrator would turn a nose up at good publicity. My blogging, much like my other scholarship that doesn't show up in law school academic journals, reaches a far wider audience than does typical law review writing. I understand that the "quality" of the audience matters to many at least as much, if not more, than the "quantity," but if the quantity is sufficiently high, the quality will follow, if that is important. Without getting into the debate about the need to reach beyond other law faculty and judicial clerks, suffice it to say that a school's reputation, in any discipline, is enhanced when it is strengthened in all venues and not just within the bounds of a select few. In other words, administrators ought to be encouraging academic blogging, while, of course, being wise in their reaction to non-academic blogging by academic personnel.

I close with reaction to a quote from the same journal that published Henry Farrell's wonderful commentary. One of my colleagues passed me an email several weeks, in which he prefaced a quote from page A-46 of the September 2, 2005, edition of the Chronicle with the observation, "you will be startled by this." I was. The quote? "[C]omputer-based entertainment, like...blogging, [is] safer than some recreational activities...like drinking." A bit of research revealed that the quote came from an article on student computer addiction. Written by Elizabeth Farrell, who is not identified and who may or may not be related to Henry Farrell, the article points out that students who immerse themselves in fantasy on-line games struggle to cope with, and return to, reality. This is a genuine and serious problem. However, equating on-line gaming, on-line gambling, instant messaging, and "blogging," will do nothing to assist advocates of academic blogging in getting their message across to the uninformed. Worse, it will hinder that effort. The term "blogging" has become a word that needs an adjective to make it meaningful. There are all sorts of blogging, and the type of blogging that Elizabeth Farrell is trying to describe surely does not include the efforts of a student (or teacher) to publish a serious academic analysis of a topic.

Academic blogging will change academic scholarship, including legal scholarship. The number of faculty who blog is growing. A few deans and a few academics are beginning, sometimes grudgingly, to acknowledge not only the benefits of academic blogging to the institution and to the development of academic discussion, but also the nature of serious academic blogging as a form of scholarship that deserves attention, respect, and deference. I live for the day when a hiring committee, rather than asking, "has this candidate already published three articles in a traditional journal?" instead asks, "does this candidate have a blog, and what's its URL?" Maybe dean hiring committees will also make inquiries about the blogs of the applicants they are considering. "Can't be a dean without a blog" sounds good to me.

Monday, October 03, 2005

When is Free Not Free? 

On Friday, I pointed out that my opposition to cutting the federal gasoline tax as a response to rising gasoline prices had been carried by others to the point of suggesting increases in fuel taxes, as Andy Cassel had pointed out in his Philadelphia Inquirer column that same morning. Shortly thereafter I received an email from former student, Nakul Krishnakumar, a frequent reader of this blog, and an advocate of a no-tax gasoline free market. As he pointed out, we've tossed this issue back and forth several times, though he remains "dismayed and puzzled at [my] insistence on raising the fuel tax." It's not as though I'm insisting on it to the point that I insist we do not lower fuel taxes, it's just that I think it's an idea that makes sense. Where Nakul and I disagree is on the necessity of a user fee (in this instance, wrongly called a "tax") that shifts to the users of fuel the costs that fuel usage imposes on society. At the very least, it ought to be indexed for inflation. Advocates of indexing the income tax rates and fixed dollar amounts in the Internal Revenue Code have made the case for indexing taxes, period. Yet many income tax indexing advocates oppose indexing fuel taxes.

Nakul writes, "Suffice it to say, I would prefer a more free market approach. This means we should discontinue all fuel taxes and let the market dictate when we start substituting newer fuel sources. In my humble opinion, increasing the federal fuel tax isn't going to solve our problems." To the extent a free market permits players in the market to shift costs onto those not in the market, such as what happens when a developer plunks a housing subdivision down in the middle of a rural area miles from other development, the market isn't free. Society, through government, must regulate markets, to some extent, to preclude inappropriate cost shifts.

That's why the attempts to deter price gouging, namely, setting market prices above what they would be if all parties to the transactions had comparable bargaining power, is acceptable to free-market advocates of my persuasion. A market is not free if market participants are disadvantaged by extraneous factors. Free markets do not necessarily operate fairly.

On the other hand, government regulation must be limited. It makes sense for government to represent nonparticipant third parties on whom the "free" market would otherwise impose costs against their will. It also makes sense for government, to the extent the free market fails to do so, to act in the interest of integrity and fairness. It is not, however, acceptable for government to regulate the market to the extent doing so puts the government in a dictatorial position. That is why I was amused and dismayed to read one of the responses to Andy's Friday column, published on Sunday in a "Talking Back: Readers' take on gouging" feature by the Philadelphia Inquirer. There is one letter that dismays me, and so Nakul surely is flabbergasted.

Fred Schaffhausen takes the position that oil companies are charging "excessive prices" and "without question are gouging the public." He argues that oil company mergers during the past 10 years have "created monopolies that eliminate price competition at the pumps." He claims that "All the tripe fed to the driving public by the press, TV reporters, and advertising agencies about a shortage of crude oil and refinery capacity is pure garbage. You can get all the gas you want - just pay their price at the pump." After claiming that the nation "has been built around the use of automobiles and trucks by its citizens at affordable gasoline prices," and that because "[g]asoline has become a necessity in our lifestyle[, i]t has become as essential as water and electricity." He concludes, "Therefore, it should be regulated in its price, distribution and manufacturing."


Let's first deal with the factual issues. Yes, there have been oil company mergers, but until there is one oil company (Microsoft Oil, anyone?), there is no monopoly. Proof that price competition exists can be found in the news stories of gasoline outlets whose lower prices generate long lines at their pumps, such as this one. There are gasoline price differentials, and it takes a little bit of searching to find them, using, for example, web sites such as this statewide gasoline price comparison dataset.

And then there is the claim that reports of crude oil and refinery capacity shortages are garbage. Before the hurricanes struck, global crude oil production barely matched global demand. The two hurricanes damaged or destroyed dozens of drilling rigs, oil platforms, and underwater pipelines in the Gulf of Mexico, taking significant amounts of crude oil production off-line. The two hurricanes put about 20% of refining capacity out of action, so even if the crude supply held constant, there would be no place to take up the product that cannot be refined at damaged refineries. One good source for deep, technical, beyond the emotion analysis, is The Oil Drum, which brings together people with opinions from all over the spectrum and taps them into scientific, engineering, economic, and other specific data about the oil and gas industry that makes it bewildering that such an ignorant statement about supply could be held as a belief, let alone used as the premise for a call for government regulation. The supply of oil, and gasoline, is finite. Refining capacity is limited. Of course, if Mr. Schaffhausen can produce evidence of tankers of oil waiting offshore, or ready-to-run but empty refineries begging for crude to turn into gasoline, perhaps many in the know would be disabused of their alleged ignorance or caught in their alleged lies. In this instance, though, I think the ignorance is on the accuser's side.

I'll leave to others to ponder whether government regulation of gasoline prices should be put in the hands of FEMA. Or perhaps a new agency could be created, and Mr. Brown or some other "friend of a campaign funds donor" could be put in charge. Yikes. There are some scary ideas floating around out there.

Whether the nation has been built around the use of automobiles and trucks is, at best, debatable. Surely during the last half-century the nation has become very automobile-focused and truck-dependent. But the nation was built long before World War II, using horses, trains, and a variety of energy sources such as water power. Oil wasn't discovered and put to use until the late nineteenth century, and the automobile remained the privilege of the wealthy until the 1920s, not becoming an almost universal transportation mode until after World War II. There's nothing about the automobile, or gasoline, in the Declaration of Independence or the Constitution.

Turning to the proposal to regulate gasoline as government regulates water and electricity, there is nothing more striking than the inadequacies of the electricity and water markets. Competition, only recently introduced into some electricity markets, has been repressed, creating the sort of monopolies that Mr. Schaffhausen so strongly dislikes. After all, whether the monopoly is run by what he calls "the fat cats" in industry or by what I will call "the fat cats" in Congress and government agencies, it's still a monopoly, and far more likely to be inefficient when run by those who have no one to whom they must answer. Though I often criticize executives of large corporations for their excessive salaries and questionable decision making, I have a wee bit more faith in them than I do in a roomful of government bureaucrats. At least the former usually have experience in their industry and aren't relying solely on theory learned in some isolated and sterile environment.

Mr. Schaffhausen's argument proves too much. Yes, electricity and water are essential (although one could argue that water is far more essential than electricity). Gasoline is probably as essential as electricity. But so are clothes. So is food. So is most medical care (setting aside, for example, cosmetic surgery). So are most prescription drugs. Toilet tissue is essential, or so I'm told by someone who was caught in the woods without it and unwittingly used poison ivy leaves as a substitute. Toothpaste is essential. The list goes on and on and on. Perhaps coffee is essential, or so say some of my friends. I could be tempted to argue that sugar is essential but I know better. Should all of these items also be regulated? Goodness, once that happens, we might find some retired Soviet bureaucrats to stop by on an exchange program and help write a five-year plan. After all, government control of life's essentials worked so well in the Soviet Union it ought to be imitated here.

When Mr. Schaffhausen complains that Andy Cassel (and, I presume, those who think like he does on this issue) should "take off [the] dark glasses" and "[t]ake off [the] blinders," he suggests that there is some reality beyond what is apparent to anyone who studies the factual data. But, unfortunately, there isn't. The population of the world doubles, but the amount of crude oil does not double. United States citizens increase demand for gasoline by 20%, but refining capacity increases slightly, if at all. The percentage of the world's population dependent on fossil fuels quadruples, and new oil and gas discoveries during the year don't equal what has been used. Debating whether the last economically recoverable barrel of oil is extracted in 2008 or 2015 or 2030 is distracting, because the facts are clear. The world's population is outgrowing resources. When we're finished debating oil, we can turn to clean water, which I continue to think will be the cause of world-wide armed conflict. However difficult it is to cut back on fossil fuel usage, it is triply difficult to cut back on water usage.

The second half of the twentieth century has been dominated by an American culture that respected no boundaries, whether social, economic, political, military, or religious. It is a culture that was weaned on parental and government promises of cornucopia, dashed with politicians' seasoning of entitlement flavor. Reality was tossed to the dogs of postmodern deconstruction, and pretense ruled the day because it makes most people feel good. Out of the deep ocean come two huge storms, precursors of the ones that will churn up in their vanguard. The house on shaky foundations begins to totter, and the emperor gets a chance to look in the mirror at his clothes.

The nation, and the world, are in trouble. Deep, serious trouble. Even if no further natural disasters, terrorist activities, or other catastrophes strike, there's still far more to do than many people seem willing to undertake. Servant-leadership and stewardship, especially in the public arena, are sorely lacking. Institutions seek to protect themselves, as though they and their entrenched managers are more important than the institution's mission and responsibilities.

So I remain unconvinced that the solution is to remove taxes and user fees and let "the market" run free, if that means it runs free of integrity, free of knowing the facts, and free of common sense. The price of gasoline, with or without a change in fuel taxes, is not going to return to $1.50 a gallon. Unless, of course, someone invents a way of making gasoline from sea water. And how will that happen when the sciences attract far fewer students than in the past? Yes, trouble is swirling all about.

Friday, September 30, 2005

Raise, Don't Lower, Fuel Taxes 









Wednesday, September 28, 2005

Legal Education and Legal Practice: Diverging? 

















Monday, September 26, 2005

A Peek into Taxpayer Return Filing Attitudes 


















Friday, September 23, 2005

Tax Those Ones, Tax Those Zeroes! 




The Facts


The parties agreed on the facts:








* the delivery of the software was originally accomplished by disk

* the license renewals did not involve computer disks


The Applicable Law






The Arguments




The Court's Analysis









So What?



Wednesday, September 21, 2005

Tax Relief Quick on the Heels of Katrina 




Transactions Involving Qualified Plans





Charitable Contributions





Personal Exemptions and Credits




Employment Provisions



Other Provisions








Tuesday, September 20, 2005

The Tax Charts Keep Rolling Along 





Monday, September 19, 2005


















Newer Posts Older Posts

This page is powered by Blogger. Isn't yours?