July 03, 2008
So what about literary theory and business? The big problem with the theoretical side of law and literature for my purposes is that most of it focuses on public law, where you’ve got that big enchilada, the Constitution. On the transactional side there is no corresponding fundamental text to interpret. I take a few different approaches.
The most promising angle seems to me to be narrative theory. As an introduction, we’re reading Sanford Levinson, Owen Fiss, and Robert Cover’s Nomos and Narrative (am I crazy to be assigning this?). Next, in the quest for a text to interpret, there are some folks reading Delaware corporate opinions as literature, or at least, as rhetoric: Ed Rock, David Skeel, Sean Griffith & Myron Steele. Oh, and we’re reading Barbarians at the Gate. I know, I know, it’s nonfiction. But, as we’ve discussed, it’s hard to find good dramatic depictions of deals, and if we’re talking narrative strategies, then BATG is relevant, for sure. I’ve recommended it for years with the promise that it “reads like a novel.” From there, I hope we'll talk about the stories corporate lawyers tell: to the other side, to a company's shareholders, to target shareholders, to the SEC.
Then I turn to law and lit approaches with a transactional or economic bent. Fish’s The Law Wishes to Have a Formal Existence discusses the parol evidence rule, contractual ambiguity, contracts implied in law, and Judge Kozinski’s efforts in Trident Center to stabilize the plain meaning of words against the threat of ambiguity posed by the California Supreme Court’s opinion in Pacific Gas & Electric Co. Robin West, in Authorial Autonomy and Choice, contrasts Richard Posner’s depiction of the parties to a contract as consensual wealth maximizers with the representation of the individual in the work of Franz Kafka. Posner roars against the outrage of being read as literature, firing back first with an article, and then a book titled Law and Literature: a Relation Reargued. Finally, the grandfather of Law and Literature, James Boyd White, reviews Posner’s book in What Can a Lawyer Learn from Literature?, taking issue with Posner’s fundamental conception of what literature is. I know the students may be less than thrilled to see so many law review articles on the syllabus. I’m crossing my fingers that this series of scholarly scuffles translates into some interesting classroom discussions.
When I proposed the course, I confess I was worried about finding material, but I have over 13 sessions’ worth already. I’d still welcome any further suggestions, though...
Here at the Glom, we love to post about Supreme Court cases that affect the world of business and securities law. When the Supreme Court hands down landmark opinions on such constitutional law jewels as the right to bear arms (Heller) and the death penalty (Kennedy), we generally let the blogospheric experts have the limelight for awhile. However, we have blogged on the death penalty for rape before and I devoted an episode of Illinois Law (Illinois College of Law's biweekly television show) to the death penalty this past spring. Therefore, I thought I had enough to cred to jump into the fray on this one sidepoint: If you are a progressive, liberal voter who is looking for a progressive, liberal candidate who will appoint liberal, progressive judges, do you hope the candidate is happy or unhappy about Kennedy v. Louisiana (death penalty is unconstitutional punishment for rape of child)?
In other words, should Obama applaud the opinion or bemoan it? Obama has shown disappointment at the decision, which has left him open to criticism from both sides. Ann Althouse asked why, if Obama really wants a justice who goes with her "heart," then shouldn't he think Kennedy went with his heart here? But of course, couldn't going with your heart make you give the person who raped a child the highest penalty possible? Which is the heart thing to do?
I find this an interesting question because several years ago, I was on a jury panel for a criminal case in Milwaukee in which the defendant was on trial for sexual assault of his own 4 year-old daughter. The defendant was poor and African-American. The claims were made by the mother, a year after the date of incident, during custody proceedings. I was very interested to see what the prosecutor and defense attorney would do with me. I had a 4 year-old daughter at the time. The questions they asked about my legal background revealed that I had worked on death penalty defense cases. I was a law professor with Birkenstocks on. I was obviously a progressive liberal. Would I be easy or hard on the defendant? The case settled before the second round of voir dire began, so we'll never know.
The Kennedy case creates some strange tensions: most legal reformers who want enhanced penalties for rape and more protection of victims probably aren't pro-death penalty. The Venn diagram intersect of those who want the death penalty expanded and those who work to decrease sexual assault, even for children, is probably fairly small. In addition, If you read the briefs in Kennedy v. Louisiana, you'll see it's not an easy case. One can imagine a case in which the perpetrator is a repeat rapist and murderer who abducts a child, brutalizes and beats the child, then leaves the child for dead. There, the fact that the perpetrator wouldn't be subject to the death penalty because the child didn't die seems fairly arbitrary. However, in this case, the facts aren't open and shut, and there is a lot of ambiguity there.
Patrick Kennedy has an IQ of 70. The victim, his eight-year-old step-daughter, initially said that she was raped by someone matching the description of a boy in her neighborhood. Twenty months later, she said that she was raped by her stepfather, who had been arrested two weeks after the rape. In the intervening time, authorities had threatened to take the child away from her mother if the mother did not believe the state's theory of the case. On the other hand, the defendant tried to schedule an emergency carpet cleaning the morning of the rape to get blood out of the carpet, which he claimed was the result of the victim's "becoming a young lady." He was also found trying to clean the carpet himself when the police arrived. What is undisputed is that the victim was savagely raped, requiring surgery.(Neither supreme court brief mentions any scientific evidence, such as DNA, or any information from a sibling, who seems to have been at home.) Although the Supreme Court was not weighing the facts of this case to determine whether the evidence supported the verdict or the sentence, surely the facts of the case affect decisionmaking somehow.
So, does the progressive, liberal heart go out to the young girl or to the future defendants who will face the death penalty? Hard to say. I think Obama would have liked to say that he was relieved that the use of the death penalty, which he has criticized, would not be expanded. That he was glad that the revival of the death penalty for rape, which has its roots in a racist Southern history, was not successful. But then, wouldn't his critics get to pounce on him for not caring about little girls? About children?
On Saturday one of my favorite summer rituals commences. Le Tour de France is laboring under the weight of recent drug scandals -- Floyd Landis' long challenge may finally be over and Michael Rasmussen just won compensation of $1 million, even as he was being banned for two years -- but the Tour remains a great spectacle. And I love rising in the morning to the sound of Phil Liggett and Paul Sherwen calling the race. Here's a classic moment that caused me to jump out of my chair when I saw it live ...
I have been in Europe for the race, but unless you are actually at the stage, it's just not as fun as watching at home. For one thing, the race happens during the afternoon over there, but I have come to prefer the Tour over breakfast.
I've got a post up at Opinio Juris responding to Susan Franck's essay on the promise of empirical research in international economic law. Susan keeps track of the outcomes of investment arbitration disputes, a real service to anyone interested in the field, and a ton of work, given that the awards, panels, etc in those disputes are a. nominally kept secret, and b. not organized in a useful fashion anywhere else. Anyway, she thinks empirical research is the way to go. I hem and haw in response here.
Permalink | Globalization & Trade | Comments (0) | TrackBack (0)
Former Glom guest blogger Larry Cunningham is now guest blogging at Co-op, and he has an interesting post about how law professors (might) spend their time. The list of teaching burdens is useful, but the more useful number, as Larry observes, is "contact hours": the product of credits and student enrollment. Larry notes, "It may not be uncommon, for example, for a school to have 1/4 of its faculty members bearing, respectively, 100, 250, 500 and 700 contact hours."
I have never seen the contracts hours of any faculty, but that would be interesting data. I had exactly 500 contract hours last year, which seems pretty typical for me. Thinking back over the years, I am usually in the 400-600 range, depending on whether I have a seminar or the large or small Contracts sections. I cannot even imagine how much writing I could do with 100 contract hours per year, but I think I would miss having a large number of students ... except at grading time.
Finally, I will turn to Larry for the understatement of the year: "For some such teachers, annual contact hours can exceed 1200. That makes it more difficult for them to discharge their other duties in scholarship and service." All of a sudden, multiple choice exams look very attractive.
Permalink | Law Schools & Lawyering | Comments (0) | TrackBack (0)
I just read Tyler Cowen's post on the Long Tail ("The Long Tail hypothesis is basically true, just don't sell to the Long Tail alone"), when I stumbled across this site ...
According to the Salt Lake Tribune:
Launched initially to provide Texas authorities with clothing for FLDS children in custody, the online store now is aimed at helping their mothers earn a living.
The venture, which has already drawn queries from throughout the U.S., is banking on interest in modest clothes, curiosity and charity to be a success.
They have a growth strategy:
And more enterprising efforts are in the works: The group plans to launch a site offering FLDS-made crafts in coming weeks. It will feature CDs of members like Jessop singing songs for children, children's books written and illustrated by FLDS members and cookie and recipe books.
Cute kids. But don't expect an IPO.
Permalink | Businesses of Note | Comments (1) | TrackBack (0)
Thus begins America's Freedom Festival in Provo ...
July 02, 2008
Kieran responding to Fabio's post, "why i blog."
My primary reason for blogging is not on Fabio's list. I blog because writing for an audience forces me to think more critically about the information that I consume. Pre-blogging, I was a huge consumer of information, but an intermittent analyzer. Analysis takes time and energy, and I was so busy consuming, after all ...
So when I tell people that blogging has changed my life, I mean it in a very fundamental way. A few days ago, I ramped up my blogging because I decided while I was away at various conferences and speaking engagements -- reflecting on my habits and routines -- that I needed to incorporate blogging more fully into my life as a scholar and teacher. I was thinking exactly along the lines expressed by Ann (here and here) earlier today, in a somewhat surprising take on Rush Limbaugh:
I think he knows that doing things day-by-day keeps the show alive and makes it work. It's what works in blogging too. If you have a whole planned agenda and you just crank out the propaganda, people will get sick of you. It's when you are talking/writing to figure out what you think, to find out what you want to say, that you are interesting. (They didn't do that on Air America.)
By the way, most of you know that Ann is a former colleague. Her office was directly across the hall from mine at the University of Wisconsin Law School, and we started blogging at roughly the same time. I never told her this while I was there, but perhaps it's deserves saying publicly that I have learned and continue to learn more about blogging from Ann than from any other source. We each have our own styles, but I believe that we both love blogging for the same core reason: because of what she calls concisely "thinking by writing."
Why do you blog, if you do? If you don't, why don't you blog?
A couple of car-related items:
First, about hybrid cars . . . .
Christine and Gordon's recent hybrid car postings (Highlander for Christine; Prius for Gordon) got me thinking. You see, my family lives in a Prius-rich environment. Literally about a third of our friends have at least one Prius in the family, and one family has two--and they are Prius proselytizers as well. We, on other hand, drive a couple of relatively old, relatively guzzly cars. The efficient one is a 12-year-old Volvo, which gets about 15 mpg in city driving. The other is a 10-year-old Lexus SUV (the big one), which gets about 10 mpg (with a tailwind). When I get self-conscious about our old guzzlers, my defense mechanisms cause me to speculate about whether buying a new hybrid is as green as generally believed. Specifically, the manufacture of a new car--even a really fuel-efficient one--must leave a pretty big carbon footprint, right? All that steel and shipping! Is it possible we'd be better off just keeping our old cars forever and repairing them as needed, as they do in Cuba?
Turns out, building a new Prius requires 113 million BTUs of energy. So compared to an existing car, in carbon footprint terms, a new Prius has already consumed 1,000 gallons of gasoline before it rolls off the showroom floor! Instead of a new Prius, buy:
i. a 1998 Toyota Tercel, which gets about 35 mpg. You'd have to drive the Prius 100,000 miles before you broke even with the old Tercel.
or
ii. a 1994 Geo Metro XFi, which gets the same 46 mpg as the new Prius, but without the carbon overhead. In terms of carbon footprint, the Prius will never catch up.
Of course, odds are that you won't be getting that new-car smell. As one analyst concludes, "You might feel better driving a hybrid, but you won't necessarily be greener."
Second, about road rage. . . .
Did you hear that bumper stickers cause road rage? This study's been out for a few weeks now, and actually that's not what it said. Apparently, bumper stickers signal the driver's territoriality. Bumper stickers personalize the car, marking the driver's territory. These drivers are quicker to perceive a threat to their territory by the actions of other drivers, and they are correspondingly more lively at defending against these perceived incursions. And this is independent of any substantive message on the bumper sticker:
It does not seem to matter whether the messages on the stickers are about peace and love -- "Visualize World Peace," "My Kid Is an Honor Student" -- or angry and in your face -- "Don't Mess With Texas," "My Kid Beat Up Your Honor Student."
So watch out for those bumper stickers!
Permalink | Environment, Miscellany | Comments (5) | TrackBack (0)
The very smart Bernadette Meyler (who does public law and law and humanities at Cornell) has started blogging at the interesting findandreplace. Good stuff on Vermuele on Carl Schmidt and Boumediene already, so give it a look, why don't you?
I cannot possibly be the only person who hates Randy Cohen's "The Ethicist" column in the NYT Sunday Magazine. Readers (real or imaginary) present sticky social and professional situations, and Cohen tells the reader the "ethical" path the reader must follow. Exactly what code of ethics is being followed is unclear; Cohen is obviously drawing on some sort of moral compass, but we are never told where this moral compass comes from, what moral philosophy it draws from, etc. Just a big jumble of what is right and wrong according to Cohen. And of course, Cohen never takes into account what is legal, which should be at least part of the answer if we believe either that one has a duty to follow (at least just) laws or that laws reflect some sort of balancing of duties, rights and consequences.
Anyway, this Sunday Cohen is asked by Patrick Hebron of Brooklyn whether it is "ethical" for him to give a young artist friend $9,000 in return for a 1% share of his "lifetime earnings" no matter what time of work the artist does. Cohen claims that this is not unethical but might be a bad deal for the investor. Cohen likens this arrangement to three things, which should raise red flags. First, Cohen likens the arrangement to "investing in a corporation." Bingo! And we call that buying a security, which are required to be registered with the SEC unless covered by an exemption. So, Mr. Hebron, Cohen has just given you the go ahead to possibly break the law. Cohen, who seems to focus on whether this creates an indentured servitude aspect, says the arrangement are like the Bowie bonds. But of course, the arrangement is nothing like the Bowie Bonds, which are the mere securitization of royalties from songs already written and recorded. The moral hazard of the artist that Mr. Hebron is worried about is not present in the Bowie Bonds. Cohen also likens the arrangement to "French Open tennis champion Ana Ivanovic, who received the backing of a Swiss businessman when she was 14 in exchange for repayment if she hit it big one day." The businessman actually became her business manager and covered her expenses with an interest-free loan, hiring a coach for her and setting her up in Switzerland after she had to flee from Serbia. That's called a loan.
Of course, if the Ethicist read the Glom, he would know that this arrangement was considered by a minor league baseball player and abandoned after both the SEC and the MLB became interested.
Permalink | Securities Trading & Regulation | Comments (4) | TrackBack (0)
As a Skadden alum, I often receive promotional literature from the firm, as well as invitations to alumni events. Yesterday, I received a copy of "Facets," which is described on the cover as "Skadden's Diversity Publication."
First, I was very impressed with the openness of Skadden to all people when I joined the firm in 1997. I remember people laughing at all the media attention on firms announcing benefits for same-sex partners because Skadden had been providing the same benefits for years. Unlike other fancy firms, Skadden didn't seem to care a whit about where you were firm or what school you went to -- the basic question was how smart you were and could you perform to a standard that really approaches perfection. The Facets publication seems to capture the essence of the Skadden meritocracy -- not only with standard photos of women and people of color, but also with stories that reflect a broader (and more expensive) commitment to diversity. If a firm is really interested in diversity in the legal profession and any kind of (lower case) affirmative action, then a few hires a year isn't going to cut it. However, public interest intiatives that focus on giving equal opportunities may, such as Skadden Fellowships and Skadden's new partnership with the City College of New York. The publication also showcases pro bono representation Skadden provided in litigation involving both affirmative action and same-sex marriage. I think that if I were looking for a firm that embraced the values of diversity, this publication would go a long way to making me think that Skadden was the firm for me.
Skadden has a long history of really cool publications. When I was recruited, the recruiting magazines featured attorneys chosen because they had the same last names of famous (but unrelated) people. I believe our friend Joan Heminway was in that publication!
Permalink | Law Schools & Lawyering | Comments (0) | TrackBack (0)
Yesterday, the Delaware Supreme Court agreed to accept questions certified to it by the SEC, marking the Court's first use of the law enacted last year enabling the Delaware Supreme Court to accept such certified questions. Thus far, the process itself has been interesting. Indeed, the SEC certified its questions on Friday, emphasizing the need for timeliness since the issues relate to proxy materials being sent on July 17. And the Delaware Supreme Court responded, not only quickly accepting the certified questions, but also setting a very fast timeline. Thus, briefs are due July 7 and oral arguments are scheduled July 9.
Of course, the substance of the certification is even more interesting, as they revolve around unsettled questions of Delaware law. Thus, the AFSCME Employees Pension Plan submitted a shareholder proposal for inclusion in Ca, Inc's proxy statement seeking to amend CA's by-laws and require that the company reimburse the reasonable expenses of a stockholder or group stockholders who run a short slate of director candidates so long as one of their nominees is elected to the board. CA sought a no-action letter seeking to exclude the proposal based in part on the grounds that the proposal was not a proper subject under Delaware law, and if adopted would cause the company to violate Delaware law. Confronted with conflicting opinions on Delaware law in this area from two Delaware law firms, the SEC's Division of Corporate Finance indicated that it did not resolve issues surrounding disputed questions of law, and hence requested the SEC to make the certification.
The certified questions: (1) Is the AFSCME Proposal a proper subject for shareholders as a matter of Delaware Law?; (2) Would the AFSCME Proposal, if adopted, cause CA to violate any Delaware Law to which it is subject?
Certainly the responses to those questions should have an important impact on Delaware Law and shareholder activism. Luckily, we do not have long to wait for their resolution.
Permalink | Corporate Governance | Comments (1) | TrackBack (0)
Dear Rupert,
I read an article in the Wall Street Journal about 2 months ago about the changes you’ve been making to the paper. It left me feeling frustrated, and I’d like to end our relationship. Unfortunately, because I had a baby girl about 9 months ago, I am frequently unable to compose letters to owners of major newspapers in a timely fashion. That May morning I got as far as crafting little snippets of an incisive, pointed critique of your new editorial policies, and then gave it up to finish breakfast, restore the kitchen to a semblance of order, and return to grading exams. What stuck with me is that you’ve urged more “newsy,” shorter articles, that end on page one. Editors have scornfully poo-poohed articles with the gestation period of a llama (almost a year, for those not up on llama reproductive cycles).
First, the obligatory introductions, bona fides, and disclaimers. I have been a loyal reader for 8 years. I’ve seen the move to color print, the welcome additions of the Personal Journal, Weekend section, and the Saturday/Sunday edition. I suggest the WSJ to all my students, and require it for my seminar. And I’m just a simple corporate law professor. You make more money in a week than I do all year. That said, for what it’s worth, here’s my take:
Steve Davidoff and Matt Bodie are blogging about a nasty issue of statutory interpretation emanating from the takeover dispute between InBev and Anheuser-Busch. Matt describes the problem:
In most cases, the determination of whether shareholders can remove directors is straightforward: if the board is classified, they need cause; if not classified, there is no need for cause. The A-B board, however, is in a period of transition. In 2007, the Board and shareholders amended the A-B charter to declassify the board. Thus, beginning with the 2007 shareholders meeting, directors would be changed over from classified three-year terms to annual elections.
As of now, eight of the thirteen directors have been changed over from classified to annually elected. The remaining five will be elected to one-year terms at the 2009 shareholders meeting. However, as of now they are serving out their last classified term of three years. So -- are they still classified or not?
Obviously, this situation is unlikely to arise often, and both Steve and Matt contend that the Delaware statute does not address this situation expressly. Let's think about this ...
Consider first Section 141(k): "Any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except ... in the case of a corporation whose board is classified as provided in subsection (d) of this section."
Note that the board is classified, not the directors.
But then look at Section 141(d):
The directors of any corporation organized under this chapter may, by the certificate of incorporation or by an initial bylaw, or by a bylaw adopted by a vote of the stockholders, be divided into 1, 2 or 3 classes; the term of office of those of the first class to expire at the first annual meeting held after such classification becomes effective; of the second class 1 year thereafter; of the third class 2 years thereafter; and at each annual election held after such classification becomes effective, directors shall be chosen for a full term, as the case may be, to succeed those whose terms expire.
Hmm. Can we reconcile these provisions? Beyond the problem of whether the board or the directors are classified, by a literal reading, these sections are nonsensical: if the board of directors is "divided" into "1 class," as allowed by Section 141(d), then the directors on that board would not be removeable, except for cause pursuant to Section 141(k). Of course, most boards of directors have only one class, and every board must have "1, 2 or 3 classes," so did the drafters of this statute intend to prohibit removal except for cause in all circumstances? Nonsense!
The only reasonable reading of the statute would hold that a "classified board" is one with at least two and no more than three classes. Using this as a starting point, A-B could argue that it's current board has two classes: directors to be elected in 2008 and directors to be elected in 2009. That's a pretty straightforward argument that all of the directors are subject to removal only for cause. But would it work? I think there is a strong argument that it would not. Two points ...
First, both Steve and Matt, apparently taking their cues from A-B, imagine an argument in which five of the A-B directors are "classified" while the remaining eight directors "have been changed over from classified to annually elected." I do not see how this is possible under the terms of the Delaware statute. Whether you are talking about a "classified board" or "classified directors," it seems clear that all of the directors have to be involved in the classification scheme. In other words, a company cannot have a mix of classified and unclassified directors.
Second, as suggested above, in this case, A-B could argue for two classes that would become one at the end of 2009. This would take care of the problem in the foregoing paragraph, but it seems to me that Section 141(d) would foreclose such an argument because the argument rests on the premise that one set of directors could be elected for multi-year terms while another set would be elected annually. Section 141(d) plainly contemplates terms of equal length for each class of directors. Thus, the A-B transition scheme seems to violate the terms of the statute.
Simple.
UPDATE: The implication of my analysis is that a declassification of the board of directors would permit the immediate removal of all directors with or without cause prior to the expiration of the full terms to which directors were elected. This is why John Coates wrote in 2001: "To be
effective, a staggered board must be specified in the charter, or, if
in the bylaws, the shareholders must not be able to amend by the bylaws
without a supermajority vote." John C. Coates IV, Explaining Variation in Takeover Defenses: Blame the Lawyers, 89 Cal. L. Rev. 1301, 1411 (2001).
Permalink | Corporate Law, Delaware | Comments (7) | TrackBack (0)
And the incentives (or not) for credit reporting companies to get things right, by Elizabeth Warren:
Why should consumers be saddled with the responsibility to monitor the errors of credit reporting agencies? It is MY information about ME. Someone else is collecting it, creating errors, and passing those errors along to other people. Those errors can cost me a job, denial of homeowners' insurance, a higher premium on my car loan, a higher price to buy a car even for cash, and, of course, a higher price for a mortgage, a credit card, a car loan, or any other loan. And the system says, in effect, it is my problem to monitor the information. It isn't enough that I don't impair my own credit. It is also my problem to find errors that the company has put in, to document the correct those errors, to fight with the company if they won't believe me, to check to make sure the errors were removed and to make sure those errors never reappear. I can even pay for insurance to help me if a credit reporting company makes a mistake.
Since I already have a full-time job and a life outside that job, I resent this capture of my time. I also believe that a law that puts the burden on consumers to correct errors and puts no penalty on the credit reporting companies for passing along bad information is designed to encourage a high error rate. There are simply not enough incentives for the credit issuers to spend their money to reduce errors in the credit reporting system or to make correction cheap and quick....
A lot of people end up paying for bad credit reports. Many never know it because they don't know that the price quoted for insurance or a car was based on their credit score. They will just be poorer than they would have been if the credit reporting companies had more incentive to get it right.
All of that sounds right. I have never obtained a loan without needing to clear up something on my credit report. Mistaken transactions are the inevitable fate of a person named Smith, at least under the present system.
If you don't find some new interesting blogs on this list, you are more plugged in than I am. Or you don't find law blogs interesting. Whatever the case, one blog on this list is this one.
When I started law school, I was completely focused on litigation. After the better part of two summers of litigation exposure, I was thinking about switching careers. That's when I almost accidentally fell into a transactional assignment at the end of my second summer. Loved it. Never looked back.
If you are law student thinking about this choice, I recommend reading Jeff Lipshaw's post over at Legal Profession Blog. Solid advice from an experienced hand.
Permalink | Law Schools & Lawyering | Comments (0) | TrackBack (0)
July 01, 2008
We pointed you to the hiring scandal at DOJ; now here come the "viewpoint discrimination" lawsuits. The first doesn't look that strong to me, but remember that records statutes like the Privacy Act can often be the hook keeping litigation from being adjudged frivolous. I don't remember reading the plaintiff's name in conjunction with any of this stuff. But if it was disclosed to someone, he might have a case - regardless of whether he would have got the job or not (and proving that viewpoint discrimination as opposed to GPA, other deserving candidates, actually was the cause of the plaintiff not being hired by DOJ in these sorts of suits is going to be extremely difficult - I wouldn't hold my breath for an Equal Protection clause victory for that among many, many other reasons).
Mike McBride, guest blogging at orgtheory.net, uses the "cocktail party standard" to judge the value of social scientific work: "While reading the research, I envision myself at a party and visualize whether or not the crowd around me grows or shrinks as I attempt to mix wit and charm in describing the empirical patterns and theoretical explanations. If the crowd grows, then the topic meets the cocktail party standard."
He asks, "How much of your own research meets the standard?"
Of my present projects, the obvious candidate for meeting this standard is my cheesemaker study. In fact, my wife and I are hosting a cheese party tonight with the cache of cheese that I collected during my most recent trip to Wisconsin. We invited five couples, and all of them are coming, including several who were forced to change theater tickets or other plans.
Yeah, I would say that meets the cocktail party standard.
Permalink | Law Reviews/Legal Scholarship | Comments (2) | TrackBack (0)
My
august employer self-insures, so all employees must take a driver’s education
test if they plan to use vehicles on the company dime. It was an accordingly nostalgic morning for
me last week. Accident fatality statistics,
ghoulish videos of car wrecks, state Department of Transportation documents
(sample advice: “NEVER take your anger out on someone else on the road”), and
the sort of recommendations from insurance companies that make you wonder how
entrepreneurs like Hank Greenberg and Warren Buffett ever made their
acquisition-oriented buccaneering ways to the top of the industry. Do you, for example, turn off the radio and
crack the window when traffic gets heavy, so you can hear all and avoid
distractions? Do you stay four seconds
behind other drivers at all times (up from two seconds when I first got my
license)?
It wasn't easy for me to learn how far I am from that level of ultra-responsibilty. But who I really felt bad for were the purchasers of bond insurance. It's important to drive safely. But when you're talking about hundreds of millions of dollars packaged in pretty esoteric ways? Consider of all the slide
shows, re-enactments, and paeans to the power of the certificate of deposit
that they must all go through!
Somehow I learned to love Grape Nuts when I was a child, and I still eat them from time to time with yogurt. I did that this morning, and I can't get through a bowl without thinking of Euell Gibbons.
Cattails are edible? We used to smash cattails on the road so the seeds would fly through the air. It never occurred to me to eat one. Though I still like the taste of alfalfa.
Thanks to the Glom for inviting me back! As Gordon indicated, I’ve got quite a bit going on this summer, and I’m hoping it will prove fruitful blogging fodder.
First off, yes, I’m teaching Law, Literature, and Business. The backstory: my generous associate dean, Paul Kurtz, okayed a course with this title even though he knew that I knew that I had no idea what I was going to teach in it. Every third year, we at Georgia teach a 2-credit “floater course” on a subject that flows from our research. This topic has been on my mind for a while. I hope the course will work as kind of pre-reading, to get me up to speed to be able to write an article next summer.
As I started reading (ok, skimming) my way through law and lit articles and books, I realized that the subject could be broken into at least 2 strands, one focusing on content—trials and lawyers in literature (i.e., To Kill a Mockingbird)—and one on applications of literary theory. I’ll focus on the content side in this post.
The content approach is problematic for the transactionally-minded. I just haven’t found many deal lawyers or transactions depicted in literature. The dazzling exception that proves the rule? Herman Melville’s Bartleby, the Scrivener. Subtitled A Tale of Wall Street, it is close to ideal: short, beautifully written, wry, and weird. The narrator is a transactional lawyer, and although the tasks of scriveners are obsolete, I suspect that for many a corporate associate the drudgery of Bartleby’s life, and the narrator’s choice never to “address a jury or in any way draw down public applause”, but instead “do a snug business among rich men’s bonds, and mortgages, and title deeds,” may resonate.
At the suggestion of colleague Paul Heald, I read Richard Power’s novel Gain, which traces the history of a soap making empire from family business through public company conglomerate, interspersed with a very personal narrative of a woman’s struggle with cancer that may have been caused by chemicals from the self-same soap company. It’s not as anti-corporate America as that juxtaposition suggests, and it nicely captures the drama and desperation of business-building. It's on the list.
But novels tend to be long, and I want to cover several depictions of business in literature. So I decided to assign at least 2 movies. One seems to have to be Oliver Stone’s Wall Street. The other? I’m currently thinking about the Insider (which I haven’t seen yet), or Glengarry Glen Ross.
Am I wrong about the dearth of transactions and business lawyers in novels? Are there movies I’m missing? Please tell me.
Unless, of course, you’d prefer not to.
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Kara Swisher has the scoop twice over: Microsoft is sweetening the search deal ("The centerpiece of the offer ... would be a deal to buy about one-third of Yahoo from existing shareholders at a premium to where it is trading now"), and Yahoo's management is weighing options, including an AOL deal or a new CEO to replace Jerry Yang and a new President to replace Sue Decker.
The bottom line, according to Swisher: "Massive change is coming to Yahoo in the next 30 days, one way or another."
We have a category called "Wal-Mart," but it appears that we need to revise that to read "Walmart." Walmart is getting a spanking new look for its brand. Behold the new logo:
Hmm. Walmart is like a sunny day ...
Look at the evolution of Walmart's logo, and you can see an echo of the first logo (1962-64).
Former Glom guest blogger, Troy Paredes, was confirmed by the Senate as an SEC Commissioner on Friday. Sorry that I am so late in posting this. I had an advanced Google news search scouring the internet for this story ever since Troy's nomination, but I just kept forgetting to blog it. Our delay should not be taken as a reflection of our excitement. Congrats, Troy!
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June 30, 2008
Lots of bloggers are talking about Apture. I hope that Apture page loads for you, because you really should see it, if you haven't already. But all of the attention the service is receiving today may have overloaded the circuits. I can't get to the site, and I can't get it to load on Conglomerate.
It was working earlier today, and I did a little test in this post. But my test link is gone now. I am not sure where it went.
If it worked, this would be a very cool service. Simple. And it allows any website owner to enhance content with multimedia. Take the tour ... if you can.
UPDATE: Ok, Apture is working again. I like the pop-up multi-media, and I hope the company survives and improves on this product.
Ann asks a piercing question about the McCain camp's deliberations regarding the possibility of selecting Mitt Romney as his Vice-Presidential candidate. Romney's list of particulars, which prompted Ann's question:
One of the chief reasons the Massachusetts governor is looking so attractive is his ability to raise huge amounts of money quickly through his former business partners and from fellow members of The Church of Jesus Christ of Latter-Day Saints, the Mormons.
McCain sources tell Politico that they believe Romney could raise $50 million in 60 days. One close Romney adviser said it could even be $60 million.
Romney’s other advantages, according to people involved in McCain’s screening process:
— He is queaky-clean and fully vetted by the national media.
— He has presidential looks and bearing and immediately would be a strong campaigner who could be trusted to stay on message.
— His family’s Michigan roots would help in a swing state that went Democratic in 2004.
But there’s one big problem: Despite the buddy-picture choreography of a McCain-Romney campaign swing, McCain remains less than enamored with Romney.And it’s not just the candidate. Some of McCain’s closest confidants evince little enthusiasm for Romney, feelings that are owed in part to lingering bad blood from the GOP primary, a genuine skepticism that such a conventional pick could bolster the ticket in a grim year for the GOP and concerns about whether his Mormon faith could imperil McCain in Southern states that Obama hopes to put into play.
I won't pretend to speak for other Mormons, but my initial reaction to seeing Romney's name floated by the McCain campaign was this.
Many of us initially hoped that a Romney campaign might lead to less anti-Mormon bigotry, but our hopes were dashed. My impression is that mainstream reporting about Mormonism improved considerably over the course of Romney's campaign, as many reporters worked diligently to get the facts straight, but the volume of anti-Mormon venom that surfaced among the "Christian Right" was disgusting and surprising, even to those of us who have lived and worked closely with so-called "Christians."
While my initial reaction to the prospect of a McCain-Romney ticket was negative, I am starting to warm to the idea. If the bigots want to flee the Republican Party, let them go.
Danny Sokol asks what determines whether a city's law firms have a critical mass of antitrust practitioners. I've been thinking about this in connection with my work on regulatory engineering. I have to say I'm stumped as to why any markets outside of the largest US legal markets (NY, Chi, LA, SF, DC) would have critical mass. Perhaps it's driven by certain clients/industries? Post your comments on Danny's blog.
We are very pleased to welcome Usha Rodrigues back to Conglomerate for another stint of guest blogging. Lots has happened in Usha's life since she last visited, including most importantly the birth of her daughter, Cara. Usha is developing a course in Law, Literature, and Business and she is writing about non-profit governance, so I hope we hear more about both of those topics over the next two weeks. Welcome back, Usha!
Saturday night, we took 9 children to see Wall-E as part of the "tweener" birthday sleepover at our house. All nine really enjoyed it, and the two adults liked it as well. (In fact, two of our guests had seen it the day before, but wanted to see it again.) The movie is a mixture of 1984, 2001: A Space Odyssey, and Noah's Ark. If I got all the clues correctly, at some point in the next century, Earth becomes fairly unlivable. The movie doesn't quite explain why or how, but it has something to do with very large amounts of trash everywhere. Perhaps because of the trash and possible other errors of environmental degradation, the Earth has become toxic. What seems to be a Wal-Mart on steriods, "B-n-L" (Big -N-Large), hosts five-year space cruises so that Earthlings can go cruise around the galaxy while the company cleans up Earth, supposedly using robots like Wall-E to do the job. For reasons that aren't clear, clean-up was abandoned, and the cruise ship has been stationary in outer space for 700 years, and our hero, Wall-E, has been alone, cleaning up Earth for the same time.
So, yeah, there's a lot of message here. And lest you think it was all about the environment and our disposal society that buys more plastic crap than it knows what to do with, the Earthlings on the cruise ship are so fat now that they glide around the ship in a reclining position on their hover chairs, having forgotten how to walk. We are told that this may be because of bone loss due to being 20 or so generations in space, but there's also clues that it's because of constant calorie intake through big SuperGulp cups and no physical activity.
The actual plot is much simpler: Wall-E and his newfound friend Eve (no message there), a probe from the cruise ship, must convince the Captain that Earth can sustain life now and that the ship should return. There are some plot disconnects, but let's suspend our disbelief: Where are the rest of the earthlings, surely 7 billion people couldn't fit on one cruise ship? How are there babies on the cruise ship when the passengers literally cannot get up or turn over when they fall off their hover chairs? Where does the cruise ship's "regenerating food buffet" get its food without photosynthesis? How has Wall-E retained power for himself and his makeshift home for 700 years -- super batteries?
So, the big question is whether kids can relate to this environmental horror film? I think the answer is yes. For those of you without elementary school kids, "Reduce, Reuse, Recycle" has replaced the "Just Say No" slogan of the 1990s. (I guess the mantra of my elementary generation was "Free to Be. . . You and Me.") Kids are fairly well indoctrinated with the concept of recycling, if not clearly the reasons behind it. I asked my six-year-old what he thought caused Earth to become unlivable in the movie, and his first reaction was "Litter." Then he said, "Reduce, Reuse, Recycle."
That's Paul Kedrosky talking about this news from the National Venture Capital Association: "In the second quarter of this year not a single company backed by venture capitalists has gone public. It is the first time that has happened since 1978."
Fred Wilson takes a different view:
VCs themselves, at least this VC, have learned that a sure payday via a M&A transaction is often a better way to generate returns than the hope of a big public market payday....
Sarbanes-Oxley and other post bubble, post Enron regulations have certainly made it harder to be a public company here in the US. I know every time I sign a 10K or 10Q, my hand shakes a little. Honestly, it takes a very big opportunity to make me want to be a significant shareholder or a director of a public company. The risks and hassles are just so big....
We've had three exits to date in our first USV fund and none have been IPOs. I think we can generate the returns we need to produce to satisfy our investors without a single public offering in our fund.
Despite this sentiment, Fred notes that venture capital would be different without IPOs: "It would be smaller, with fewer funds, and smaller fund sizes. And it would struggle with big bets like biotech and cleantech, and the kind of hardware oriented IT investments that generated such great returns in the 90s." So he concludes with a called for reduced regulation: "We need to let markets work and not worry so much that some people will lose money on their investments."
Justice Scalia on the complexity of the American legal system. I am writing a paper right now on the (unnecessary) complexity of Delaware fiduciary law, so this argument caught my eye. On the other hand, I don't buy it. I have heard the argument before, and I suggest two quick responses:
(1) Perhaps the most obvious response is that most people who choose law are not deciding between law and curing cancer. They are choosing between law and graduate work in political science or English. It's not clear to me that society is worse off when law seems like an attractive option.
(2) The world is complex, and with all due respect to Richard Epstein, this complexity requires good lawyers. Even in a world with simple rules and lots of individual freedom, good transactional lawyers add value to relationships and increase the exchange and goods and ideas. This is a noble thing, in my view.
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Brayden went car shopping. I am reminded that I made a poor purchase decision in 2005. Crud.
So, here's the letter -- you guess the identity (or position) of the writer:
After a career in public service, I regretfully say, I would not do it again. Philosophy and point of view led me to doing good instead of doing well, so I never expected to become rich. But now that I'm in my 10th year of a frozen judicial salary -- less than summer students are being paid at law firms -- I have concluded that whatever I may have accomplished for the public, I have wasted 25 years of my life by serving on the bench.
The writer is Emily Jane Goodman, a New York Supreme Court Justice. (For those of you who don't watch Law & Order or practice in NY, she's a trial court judge.) Not being up on the New York judicial pay litigation, I looked around on the internet, and Judge Goodman, who had an illustrous career as a public interest attorney before running for judicial office in 1980, has been outspoken on this issue in other fora as well. I know we have debated judicial pay outrage in the blogosphere before, and I have always supported judicial pay raises, but the letter reminded me of this Law and Order dialogue between Jack McCoy and Judge Ruth Alexander, just as she is being arrested for accepting bribes and murdering a litigant to cover up the scheme. (Note, this episode is under litigation for a different reason, which I blogged about before). I can't find the dialogue on the internet, but a paraphrase would be:
Judge: Do you know how much I make?
McCoy: More than me.
Yes, judges should make more, but it is hard to get public support when they make more than 90-something percent of the country, including other law school graduates who have made similar career choices to make less than a first-year BigLaw associate: district attorneys, U.S. attorneys, public defenders, legal aid lawyers, and yes, many law professors. But it is disheartening to read such regrets in the NYT editorial page.
The W$J has an interesting story today about the Allied Security Trust. A response to the recent explosion in patent litigation, the AST will "buy up key intellectual property before it falls into the hands of parties that could use it against them." More detail:
The new Allied Security Trust aims to buy patents that others might use to bring infringement claims against its members. Companies will pay roughly $250,000 to join the group and will each put about $5 million into escrow with the organization, to go toward future patent purchases....
TMC.net points out the irony of Verizon as a founding member of the AST, when Verizon sued Vonage (and others, it turns out) for patent infringement. Verizon won that lawsuit, by the way, and Vonage ultimately agree to pay Verizon $120 million. Obviously, Verizon would argue that the AST is designed to prevent unmeritorious litigation, and that seems fair. Still ...
UPDATE: In an unrelated story, GigaOM spots more irony, this time from AT&T.
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June 27, 2008
The SEC's latest "We're Internationalizing!" proposal was released today, concerning foreign broker-dealers. Here's the overview:
To reflect increasing internationalization in securities markets and advancements in technology and communication services, the proposed amendments would update and expand the scope of certain exemptions for foreign entities, consistent with the Commission’s mission to protect investors, maintain fair, orderly and efficient markets and facilitate capital formation.
And here's the goal:
the amendments we propose today would generally expand the category of U.S. investors that foreign broker-dealers may contact for the purpose of providing research reports and soliciting securities transactions. The proposed amendments would also reduce the role U.S. registered broker-dealers must play in intermediating transactions effected by foreign broker-dealers on behalf of certain U.S. investors.
HT: Securities Mosaic
Via Tax Prof Blog, the U.S. News & World Report is "seriously studying" two suggested improvements to next year's law school rankings. The first is to only include ABA-accredited school graduates who are first-time test takers in calculating the bar passage rate of a jurisdiction. Fine. The second, however, is a little more controversial: use the median LSAT and UGPA for both full-time and part-time students for each ranked school. Hmmm. (Disclaimer: Illinois has no part-time program, so our ranking would not be affected unless other schools' rankings went down because of the change.)
The reasoning seems to be that some schools are gaming the system by putting low-LSAT/UGPA applicants into the part-time program, where they either get the same education (by being part-time "day") or perhaps transfer into the full-time class after a year. The thinking is that these programs aren't really "separate." I actually do not know if this is true. I have taught at two different schools with part-time programs (Houston and Marquette), and was on admissions at both schools. At both schools, admission to each program was completely separated and on different time-tables. Would the medians have been different? Yes. That is not to say that the part-time programs at each did not have standout students who could have gotten into the full-time program at many law schools. However, part-time programs are very attractive for a variety of candidates. I vaguely remember discussions of one or two individuals who may have been rejected for full-time admission but called and made a very strong case for themselves and offered to go to the part-time program. My sense was that these cases were situations in which the admissions committee was not sure that the candidate was up to the challenge of law school, and the candidate basically offered to go through a probationary period of part-time instruction.
If there is intentional gaming, then I'm not sure how widespread it is. The comments on the USNWR web page seem to accuse schools like Georgetown and GW of gaming the system, but haven't their programs been large since before the USNWR rankings became the ends and not the means?
However, I'm sure that schools are aware that the medians of part-time students are not involved in the calculation. This allows schools to accept more part-time students than they otherwise would. This benefits the school financially and allows non-traditional students an opportunity to go to good law school on their own schedule. When applicants have been out of school for years, if not decades, assessing them by their UGPA and their performance on an unfamiliar standardized test seems fairly ridiculous anyway. If the rankings are to change, the schools will ultimately have to make hard choices about their part-time programs, which may not benefit the school or the public at large.
Of course, I can't decide if the better analogy for adjusting the rankings calculations at the margins is the Bluebook's once-every-five-year ritual of a new edition of the phrase "tinkering with the machinery of death."
On Sunday the Washington Post ran a story on the greening of higher education. The story pointed out various ways in which "environmental fervor" has swept college campuses. Moreover, the story indicated that such fervor had moved beyond pushes for recycling bins toward a real transformation of the academic environment, including impacting curriculum and research endeavors. The article suggests that interests in the environment and sustainability issues may no longer be just a passing fad, but instead may have become "fully entrenched in academic life." If this is true, what accounts for the more permanence of such interests?
First, the growing fears of climate change coupled with a growing consensus on the validity of evidence regarding climate change. Second, consumer demand--in this case, in the form of students. According to the Washington Post, a Princeton Review poll not only shows that students have a commitment to environmental issues, but that such a commitment may impact their decision regarding which college to attend. Once students get to college, this commitment translates into a push for a more environmentally-friendly atmosphere, prompting colleges to make small changes like those focusing on changing light bulbs and implementing recycling efforts as well as larger changes like re-evaluating their heating systems. Moreover, students not only have pushed to ensure an increase in classes aimed at environmental issues (including ensuring that traditional classes incorporate an environmental perspective), but also have pushed for more experiential learning activities aimed at changing the neighborhoods around them. Then too, students have tried to maintain their commitment post-college. Hence, many students have signed pledges to continue to push for environmental awareness in their jobs.
Of course the question is, what is the likelihood of that they will be able to do so? To be sure, it seems easier to change academia, than the business world. And yet there are signs that even this may be possible. Indeed, even a casual observer can see that companies apparently have increased their commitment to going green. And while some it may just be rhetoric, some of it does seem to be a real increase in policies aimed at sustainability. Moreover, proxy data and other research related to corporate social responsibility indicates that sustainability and environmental issues have been the CSR issues gaining the most traction with corporations within the last few years. In other words, they seem to be the kinds of issues about which corporations are most willing to engage and the most likely to devote resources.
In this regard, the research appears to confirm the notion that interests in this area may be more than just a passing fad, while also suggesting that students' environmental fervor can reach beyond the classroom and graduation. In fact, perhaps the research reflects that it already has done so.
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