Q&A with Professor Steve Johnson

What made you decide to become a law professor after practicing at a law firm in New York City, at the IRS, and at the Department of Justice?

I knew from the time that I was a law student that I wanted to teach. When I chose to specialize in tax, I realized that was postponing my entry into teaching. Different areas of law require different degrees of knowledge and experience in order to teach confidently. Tax is so vast that I knew it would take longer for me to get to the point where I felt ready to teach. I also enjoyed practice a lot. So, I stayed in practice longer (14 years) than would have been necessary just to acquire adequate experience. 

Why did you choose tax as your area of expertise?

What teaches one more about one’s society than studying its tax laws? First, each piece of tax legislation is an act of class warfare or at least competition. So, how much each group and each activity winds up paying in taxes is a scorecard to who is doing best in manipulating the levels of government. 

Second, taxes aren’t just for revenue raising any longer. They also are used to encourage virtually everything the government wants to encourage. The earned income tax credit is one of the federal government’s biggest anti-poverty programs. The IRS has major responsibilities in administering the Affordable Care Act, and major parts of the country’s economic, education, housing, transportation and family policies – to name a few – are set out in the tax code. 

Third, taxes are used to discourage disfavored activities, either by interest in or effect. A study recently published in a medical journal, for example, linked a 25% drop in gonorrhea cases to a 50% increase in one state’s sales tax on alcohol. (The suggested case was that higher taxes reduced consumption of alcohol which reduced risky behavior, including risky sexual behavior.) Given our society’s increasingly causal attitudes towards “facts,” the wise are suspicious of all statistics. Nonetheless, using taxes to combat “sin” has a long pedigree.  

The Supreme Court long ago acknowledged that no other area of law touches more people at more places than the tax laws. Ruskin remarked that one understands a society through the book of its deeds, the book of its words, and the book of its art. Were he writing today, he would have to add “the book of its tax law.”

Can you tell readers about your scholarship?

Tax is a continent so immense that no one can explore, much less colonize, all of it. Specialization is necessary if one is to be nationally recognized as producing important scholarship. 

Most of my research is in tax procedure, which involves the intersection of tax, administrative, constitutional and civil procedure law. This is a propitious time to work in this field. A major dynamic in current tax administration is the long-resisted but now irresistible penetration of general administrative law principles and rules into tax quasi-legislation (such as Treasury’s promulgation of tax regulations) and tax quasi-adjudication (determinations made by the IRS in particular cases). This wave has been intensifying for over a decade, and it has not yet crested. Tsunamis are as thrilling as they are terrible. It is exhilarating to ride this profound and powerful force reshaping tax procedure. It is gratifying that my scholarship has been found to be useful by policy makers, administrators, judges and practicing tax professionals. 

Can you talk about your extensive continuing legal education activities and why being involved is important to you? 

I have spoken at professional and academic conferences over a hundred times and in most states. I am always eager to do so. I deeply respect and admire skilled lawyers and enjoy being in their company. I subscribe to most of the particulars in Harrison Tweed’s famous encomium about lawyers. 

From a purely utilitarian perspective, tax academics and tax lawyers and accountants need one another. Each group has comparative advantages that give them useful perspectives. The well qualified academic usually can set particular issues in a broader, richer context and can pursue research and devote thought to matters unfettered by client demands for instant answers or shoestring budgets. The well-connected practitioner sometimes senses first how enforcement priorities may be evolving and experiences first-hand how rules announced in Washington, D.C. are actually being applied (or ignored or contorted) “on the ground.” One also cannot deny that the competitive juices unleashed by handling real cases sometimes lubricate the machinery of creativity. 

Ultimately, we all are like the blind men in the Sufi parable, each touching only part of the elephant. When academics and practitioners pool their insights, all benefit. 

You often invite practitioners into your classes – can you tell readers why you do that?

My students benefit in many ways. First, when students hear the same messages from me and from well-regarded attorneys, valuable lessons are reinforced. On rare occasions, my guests and I differ on some particulars. That’s good too. It underlines for students the difficulty of the matters with which they will grapple, and the opportunity – indeed necessity – for them to pick their own path through dark and tangled forests. 

Second, lawyers tend to be interesting people. They came to the law through different routes and from different roots. They’ve forged their practices in distinctive ways. They are driven by different things. It’s important for students to know that entering practice does not mean surrendering individuality.

Third, successful lawyers mirror two traits I continually emphasize to my students: judgment and client centeredness. Judgement: part of thinking like a lawyer is spotting all the issues. But another crucial part is being able to prioritize them based on reality. What clever ideas just won’t fly with risk averse or conscious clients? Which arguments will just never be bought by judges and juries. Client centeredness: “It’s not about you. It’s about the client.” Cultivating a genuine spirit of service is the road to enduring success. Within broad limits set by law and ethics, the goal is to help clients achieve their goals (and sometimes to help them define their goals). The poor lawyer says, “no.” The good lawyer says, “that way probably won’t work, but here’s another way that will.” Some of the best visits involve lawyers who bring with them one of their clients. Seeing how the two sides understand their relationship helps students get out of themselves and empathize with those whom they will serve.  

What should readers know about our business law program?

Friends of FSU Law can take pride in our business law program, and prospective students interested in the field would do well to consider FSU Law. We have a first-class faculty in the area, and we’ve dramatically expanded our curriculum in the area – including both doctrinal and skills courses – in recent years. Expanded business externship placements, creation of a transactional business clinic, establishment of a Business Law Certificate for J.D. students and imminent inauguration of a master’s (LL.M.) business law program are among our exciting recent steps.  

This good seed is being planted in fertile soil. Entrepreneurship is an area of emphasis throughout this university. And FSU Law is attracting numerous students, interested in and knowledgeable about business. Talking with my students in class and outside of class, I’ve been struck by the businesses our students already have started or intend to start and by the sophistication many of them already possess. They have entrepreneurial instincts that were rare or non-existent among my classmates when I was a student and among students I’ve taught at other schools. 

In addition to teaching traditional tax courses, you teach a unique Business Planning Course. Can you tell readers about it?

Our Business Planning course exposes students to the panoply of formation, operation, and exit issues encountered by lawyers having medium-sized and small business clients. These include choice-of-entity, capital structure, owner agreement, employment agreement, insurance, anti-trust, securities, liability, asset protection, succession and of course, tax issues.

I also teach an In-House Counsel course. Both Business Planning and In-House Counsel emphasize the close connections between legal and business considerations, and in both courses grades are based principally on students’ performance on assignments simulating documents typically prepared by lawyers in the practice.

Relatively few law schools have a Business Planning course. Even fewer have an In-House Counsel course. FSU Law is one of the handful of law schools having both. 

Enrollment in both courses has been strong, and student reactions to them have been enthusiastic. Among the most frequent comments on student evaluations has been, “I had no idea that the business lawyer had to know about so many areas of law!” 

Is there anything else you would like alums to know?

It is a delight to work with our students, and I know our alums feel the same way. When I collaborate with alums in helping our moot court teams prepare for competitions, have alums speak to my classes, or just chat with alums in formal or informal settings, their fondness for the students radiates like a beacon. This intergenerational connection – love, is not too strong a word – warms one’s heart. Each time I see it, I know I’m at the right place.

As printed in the spring 2016 issue of Florida State Law magazine.