Archive for November, 2005
Dunbar and Heller on the Future of Securities Class Actions
posted by Dave Hoffman
For those who want background on why Judge Alito’s strong recent re-affirmation the efficient capital markets hypothesis matters, there is a new article on SSRN for you.
Frederick Dunbar and Dana Heller (both of National Economic Research Associates) have posted “Fraud on the Market Meets Behavioral Finance,” forthcoming in the Delaware Journal of Corporate Law. From the abstract:
The efficient market hypothesis, in its current form, dates academically from 1970 and it was first accepted by a Federal Court in a shareholder class action in 1975, providing plaintiffs with a rebuttable presumption of reliance based on the fraud-on-the-market theory. By 1988, the fraud-on-the-market theory was the law in most Circuits and was affirmed by the Supreme Court in Basic v. Levinson. Since then, the efficient market hypothesis has not been rebutted in any case involving actively traded securities, and its impact on securities litigation and regulation extends well beyond class certification to materiality, causation and damages. Somewhat ironically, over the same time period, financial economics was, first, finding anomalies in securities markets that were not consistent with the Supreme Court’s version of the efficient market hypothesis and, second, using concepts borrowed from behavioral economics to develop theories of securities price formation to explain, among other things, the stock price bubble of the late 1990s. In fact, even proponents of the efficient market hypothesis have claimed that securities were mispriced during this episode. If courts were to adopt behavioral finance explanations of securities market behavior, then prior precedent would not be appropriate in a number of areas of securities fraud including reliance, materiality, causation and damages. We explore the implications of how analysis of these issues would be changed by application of behavioral finance.
November 24, 2005 at 12:43 am
Posted in: Economic Analysis of Law
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Goodbye and Thanks!
posted by Joseph Liu
Thanks so much to Dan, Kaimi, Nate and Dave for inviting me to participate on this wonderful blog. I couldn’t have asked for a better introduction to the world of blogging, or a friendlier or more supportive group of (virtual) colleagues. I had hoped to end with a flurry of posts, but my plans were side-tracked by both the aftermath of the appointments conference and a nasty cold (hard to say which was worse). But never fear – I’ll continue to be a regular reader and make my presence felt in the comments. Bye, and thanks again!
November 23, 2005 at 2:58 pm
Posted in: Blogging
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Of Names, Auctions, and Contests
posted by Alfred Brophy
Lemony Snicket auctioned the naming right to a character in a forthomcing novel. (Sold for a lot–something like $6000.) So why shouldn’t Professor Eric Muller solicit help in naming his new book on the administration of the internment of Japanese-Americans during World War II? Looks like a great book, btw, judging by his introductory chapter. And, of course, the contest has the virtue of getting lots of folks reading the introduction and driving traffic to his blog. This may catch on–at least I hope it does, because I enjoy hearing about new scholarship and it’s sort of a fun contest.
Alas, I have no good idea about the name for the book–I’d probably go for something dull like Administering Injustice. But it’ll be an important addition to the literature on the history of administrative state in the twentieth century, which has been drawing attention from really strong scholars, like Reuel Schiller.
One more thing: I was a coerced watcher of Snicket’s Series of Unfortunate Events last January on a flight out to Seatle. And, after the first couple of minutes when I couldn’t quite figure out what the was going on, I enjoyed the movie. Plus, I dig the role of a trust in shaping the plot.
November 23, 2005 at 11:35 am
Posted in: Articles and Books
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Stove Top Stuffing Obit
posted by Dave Hoffman
Ruth M. Siems, lead inventor of stove top stuffing, died last week. Her obit in the Times was, sadly, patronizing and somewhat nasty. Margalit Fox writes that Siems’ invention will make its appearance in homes tomorrow, “welcome or otherwise”, that it is “[c]omforting or campy,” and it is an “enduring emblem of postwar convenience culture.”
Look. I’m not a huge fan of this stuff, but – like other parts of the “postwar convenience culture” – it has made it possible for Americans to spend less time at the stove, and at pursuits that they apparently find more rewarding. Like working. Or spending time with children. And, it seems that snarking at the product misses an interesting life story. The obit gives us a few facts:
Ruth Miriam Siems was born in Evansville, Ind., on Feb. 20, 1931. She earned an undergraduate degree in home economics from Purdue University in 1953, and after graduation took a job at the General Foods plant in Evansville, where she worked on flours and cake mixes. She moved to the company’s technical center in Tarrytown, N.Y., not long afterward. Ms. Siems retired in 1985.
Besides Ms. Porter, of Copley, Ohio, Ms. Siems is survived by another sister, Rosemary Snyder, of Chicago; and a brother, David, of Milford, Mich.
November 23, 2005 at 10:57 am
Posted in: Current Events
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There’s Gold In Them Pixels
posted by Daniel Solove
A picture is worth a thousand words. But pixels might be worth a million bucks. From the Wall St. Journal (free content):
It was just a few months ago that 21-year-old Alex Tew of Great Britain was stumped about how to pay for college. He’d filled a notebook with ideas before jotting down this simple, if rather audacious, query to himself: How Can I Become a Millionaire? . . .
Instead of selling banner ads, text links or splashy videolike ads that fill a screen, Mr. Tew opted to hawk the simplest graphical denominator of a computer screen: the pixel. A pixel is a tiny dot of light and color, and each screen has tens of thousands of them.
Mr. Tew created a home page, www.milliondollarhomepage.com, where he divided the screen into 10,000 small squares of 100 pixels each. His plan: to sell the pixels for $1 a piece, with a minimum order of 100 pixels. In each space, buyers could put a graphical ad of their choosing that links to their own site when clicked on. The end result is a cluttered collage of ads in various shapes and colors all amassed on a single digital billboard. (Mr. Tew doesn’t charge his advertisers anything when a visitor clicks on the ads.)
Here’s what his website, www.milliondollarhomepage.com, looks like:
Tew aimed to keep up his site until he reached a million bucks. You’d think it wouldn’t work. But it has been working:
November 23, 2005 at 12:20 am
Posted in: Weird
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Private Accrediting: If you can’t beat ‘em, join ‘em
posted by Alfred Brophy
US News’ rankings are exerting powerful influences over law school practices, in areas like admissions (and presumably hiring and promotion of faculty, to enhance reputation scores). They’re beginning to look like an accrediting agency that operates parallel to the ABA. US News arguably sets benchmarks for such areas as admissions, faculty-student ratios, and library size.
(Jeffery Stake’s article “The Interplay Between Law School Rankings, Reputations, and Resource Allocation” and posts like this one by Brian Leiter explore how US News is affecting (or might affect) class size and other admissions decisions. My (admittedly impressionistic) sense is that a great many law schools are bending their behavior to US News factors.)
In the spirit of “If you can’t beat them, join them,” maybe what we should be doing is lobbying US News to change the factors that count in their rankings. Perhaps, for example, we should encourage US News to take diversity of student body into account. If US News gave (even small credit) for diversity, perhaps it would cause (major) shifts in law schools’ admissions decisions. I wonder if US News is already poised to do this? In 2005 they began publishing a diversity index, but it doesn’t yet count towards a school’s overall rank.
November 22, 2005 at 7:12 pm
Posted in: Law School
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VisitorVille 3D: Site Meter Heroin
posted by Daniel Solove
I hope, pray, plead to the heavens that I will not use VisitorVille 3D. VisitorVille 3D is a visitor tracking software, akin to Site Meter, but that displays web traffic as a three dimensional city:
What makes VisitorVille unique is immediately clear: VisitorVille does not represent website visitors simply as numbers or graphs, but as real people in a real environment. You can watch your site traffic as if you were people-watching in a big city.
As a blogger, I understand the obsession over visitor stats. But VisitorVille 3D is just taking things too far. It strikes me as too addictive to be legal.
More pictures and information about it can be found at Google Blogoscoped, where Philipp Lenssen writes:
The Google bus arrives whenever a visitor searched Google and found this blog. The search terms will be announced to you by a female voice (like “Search term: Google Base”). In VisitorVille, you can listen to your traffic – every event has its own sound.
Definitely too addictive to be legal.
November 22, 2005 at 2:38 pm
Posted in: Blogging
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FBI Virus
posted by Daniel Solove
I just got a humorous virus email. It’s from admin@fbi.gov with this message:
Dear Sir/Madam,
we have logged your IP-address on more than 30 illegal Websites.
Important:
Please answer our questions!
The list of questions are attached.
Yours faithfully,
Steven Allison
Federal Bureau of Investigation -FBI-
935 Pennsylvania Avenue, NW, Room 3220
Washington, DC 20535
phone: (202) 324-3000
Of course, the list of questions attached is a file containing a virus. I’m dying to see the questions, but alas . . . my email program stripped out the virus-laden file.
November 22, 2005 at 1:01 pm
Posted in: Humor, Technology
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More on Pseudonymous Litigation
posted by Daniel Solove
Howard Bashman offers these further thoughts about the issue of pseudonymous litigation and the sex tape case I blogged about earlier today:
In terms of assessing blame, however, in my view it is the attorney for the pseudonymous party who bears the responsibility to ensure that the appellate briefs posted online — and surely the Seventh Circuit’s practice of posting briefs online comes as a surprise to no one — does not reveal the actual identity of the lawyer’s pseudonymous client. . . .
There is no way that an appellate court’s clerk’s office can review filings for the purpose of making appropriate redactions; that is the job of counsel for the parties.
While I don’t believe that the court should be held blameless, I definitely agree with Bashman that the lawyers are also to blame in this case.
Lawyers often are not devoting adequate attention to the issue of client privacy interests in the course of litigation. One reason why many privacy cases involve the real names of plaintiffs is because many lawyers don’t even think of raising the issue of the plaintiff proceeding pseudonymously. Courts often will deny plaintiffs the right to proceed under a pseudonym, but this doesn’t mean it isn’t worth trying. You rarely get anything without at least asking.
November 22, 2005 at 11:45 am
Posted in: Privacy
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Of Sex Tapes, Pseudonymous Litigation, and Judicial Bungling
posted by Daniel Solove
Lior Strahilevitz (law, Chicago) has a wonderful post over at the Chicago Law Faculty Blog about a very problematic Seventh Circuit opinion — and blunder. The case, Doe v. Smith, involves a teenage girl whose boyfriend secretly videotaped them having sex and then emailed the video to his friends. The issue is whether the plaintiff could proceed on federal Wiretap Act claims. The court said yes. But then the court stated:
On remand, the district judge must revisit the question whether the plaintiff should be allowed to proceed anonymously. The judge granted her application to do so without discussing this circuit’s decisions, which disfavor anonymous litigation. The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret. Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity – yet it is Smith, and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegation’s are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.
Lior Strahilevitz persuasively attacks the court’s reasoning:
November 22, 2005 at 10:30 am
Posted in: Privacy
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Swiftly Shrinking? Toward the Lilliputian Law Review Article
posted by Daniel Solove
This law review article submission season, a bunch of law reviews banded together to create a page limit for law review article submissions. According to the policy as announced by the Harvard Law Review and followed at several other law reviews:
In an effort to address the growing length of law review articles, the Harvard Law Review has adopted a new policy limiting the length of articles we will accept or publish.
The Review will give preference to articles under 25,000 words in length — the equivalent of 50 law review pages — including text and footnotes. The Review will not publish articles exceeding 35,000 words — the equivalent of 70-75 law review pages — except in extraordinary circumstances.
Eugene Volokh of the VC has some data on the effectiveness of the policy:
Here’s an early data point: Jean-Gabriel Bankier of Berkeley Electronic Press’s ExpressO submission service . . . reports that, based on “more than 1,000 unique submissions in both 2004 and 2005,” the averages were:
2003-69.1 pages
2004-73.3 pages
2005-64.0 pages
So that’s about 9 pages shorter on average. Thus, in total, this season saw over 9000 fewer pages of law review article text. Where did those 9000 pages go? That’s roughly 2.7 million words . . . vanished. They are lost forever, gone, never to be read and enjoyed. Oh, the verbosity!
November 22, 2005 at 1:58 am
Posted in: Law School, Law School (Law Reviews)
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On Blawg Comments
posted by Dave Hoffman
Now that this blawg is a little over two months old, we’re starting to get spammed with some frequency in the comments. I take this to be sort of like a toddler learning to crawl. It is chaotic, messy, and time-consuming in the short-term, but signals long-term progress.
However, it got me to thinking about a comment policy. Although we, unlike some, allow comments, we don’t exactly have an easy to find comment (removal) policy. Nor do we have a “diary” system which would permit our visitors to create their own content. With respect to the former non-policy, we’re like ACSBlog, Althouse, Opinio Juris, among others. No blawgs to my knowledge have a diary system.
Before discussing why, it is worth canvassing the field.
November 21, 2005 at 10:22 pm
Posted in: Blogging
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Henderson on Lawyers in the Rust Belt
posted by Dave Hoffman
Immediately before retiring from the Conglomerate, Bill Henderson put up a nice post on the economics of law firm practice in the industrial midwest. The data is especially useful for students looking for a new perspective on where to go to law school. Go check it out.
November 21, 2005 at 8:05 pm
Posted in: Law Practice
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Faculty Recruitment Practices
posted by Dave Hoffman
Brian Leiter has this interesting recent post on some high-pressure AALS faculty recruitment practices. Coincidentally, I just received an email from the “AALS Special Committee on Faculty Recruitment Practices,” which states, in relevant part:
The special committee’s specific charge was to determine whether, in light of [certain] complaints, something like a statement of good practices in faculty recruitment was appropriate. Of course, a prerequisite first step in fulfilling that charge is determining what practices are occurring and whether or not they are sufficiently problematic in frequency and type that a statement of good practices is necessary or appropriate. To that end, a survey of current practices seemed appropriate. Hence, this email message, which is being sent to faculty members who participated in the faculty recruitment conference within the past two years and are now full-time faculty members at an ABA approved law school/AALS member law school. We know that you are very busy individuals.
Busy, yes. But not too busy to blog.
My guess, based on anecdotes from the law clerk hiring process and discussions about international norms with colleagues, is to doubt that AALS will succeed at stamping out abuse in the absence of a real enforcement hammer. But you’ve got to give them credit for trying, because the current market is set-up to produce some unhappy marriages between candidates and schools.
November 21, 2005 at 7:40 pm
Posted in: Law School, Law School (Hiring & Laterals)
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Hilarious URLs
posted by Daniel Solove
Over at the VC, Eugene Volokh provides some links to hilarious URLs that spell out things that probably weren’t intended or imagined by those naming the websites.
November 21, 2005 at 4:14 pm
Posted in: Humor
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Searching the Internet: It’s the Hip Thing to Do
posted by Daniel Solove
It’s news to make Google even happier as it proceeds in its plans to conquer the world. According to a PEW study, more and more people are searching the Internet with a search engine each day:
The most recent findings from Pew Internet & American Life tracking surveys and consumer behavior trends from the comScore Media Metrix consumer panel show that about 60 million American adults are using search engines on a typical day.
These results from September 2005 represent a sharp increase from mid-2004. Pew Internet Project data from June 2004 show that use of search engines on a typical day has risen from 30% of the internet population to 41%. This means that the number of those using search engines on an average day jumped from roughly 38 million in June 2004 to about 59 million in September 2005 – an increase of about 55%.
comScore data show that from September 2004 to September 2005 the average daily use of search engines jumped from 49.3 million users to 60.7 million users – an increase of 23%.
This means that the use of search engines is edging up on email as a primary internet activity on any given day. The Pew Internet Project data show that on a typical day, email use is still the top internet activity. On any given day, about 52% of American internet users are sending and receiving email.
Related Posts:
1. Solove, When Google Is King
Hat tip: beSpacific
November 21, 2005 at 12:09 am
Posted in: Google & Search Engines, Technology
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Going Commercial
posted by Daniel Solove
We are considering going commercial here at Concurring Opinions. In other words, we’re thinking about having advertisements.
Here are some of the issues we’re facing:
1. When we start using ads, we become a commercial blog. This might give rise to greater risks of defamation and copyright lawsuits. Will we become a larger target? While defamation is not a big concern considering what we post about, copyright could be. Indeed, bloggers often quote liberally and use images from around the Internet. As guest blogger Joe Liu aptly noted: “Fair use is notoriously fuzzy.” The norms of the blogosphere thus far seem to be informal — if people have a problem with a blogger quoting too liberally or with the use of an image, they email the blogger to take it down. When a blog goes commercial, however, will this lead to the use of lawsuits instead?
2. Right now, we’re just a bunch of folks blogging together without much of a formal agreement. If we go commercial, should we form a more formal arrangement? We might form a partnership, LLC, or some other type of corporation. If we do create a more formal arrangement, what’s the best type?
3. Are there other prudential considerations that we need to think about? Starting a blog is so easy and informal, but when it becomes a for-profit enterprise, things could potentially change. Or maybe not. We just don’t know.
These are some of the considerations we’re thinking about. If you have any thoughts on the issue, we’d appreciate your opinion.
UPDATE: Mike at Crime and Federalism has some interesting thoughts about the issue here and here.
November 21, 2005 at 12:02 am
Posted in: Administrative Announcements, Blogging
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Shifting Around on the Supreme Court
posted by Daniel Solove
In an interesting article in the Washington Post, Lee Epstein (law and political science, Washington University) and Jeffrey Segal (political science, Stony Brook) write that a judge’s past judicial record is not necessarily a good indication of how they’ll decide cases as a Supreme Court justice. They observe:
In the case of Souter, initial judgments about how he might vote were downright wrong. The clear expectation, based largely on his lower court record, was that Souter would be a rather consistent conservative voter — even more to the right than Reagan appointees Kennedy and O’Connor, at the time of their nominations. Souter, of course, is a rather consistent voter — on the court’s liberal wing.
In retrospect, we probably should not be surprised by this turn of events. Lower court records can actually provide disinformation about a nominee’s true preferences. Judges on lower courts, after all, are bound by Supreme Court precedent, and that constraint may explain why Souter — thought to be moderately conservative as a state and federal appellate court judge — emerged as liberal once on the high court. . . . While Supreme Court nominees “respect” precedent, as they unfailingly tell the Senate Judiciary Committee, once elevated they are not compelled to follow it. Freed from that constraint, the “real” Souter came into view.
I previously blogged here about how a judge might change when no longer strictly bound by Supreme Court precedent.
Epstein and Segal also explain that focusing on a nominee’s views on the burning issues of the day may not help us in understanding where the nominee will come out on the issues of tomorrow:
November 21, 2005 at 12:01 am
Posted in: Constitutional Law
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A whole lot has changed in the last fifty-six years
posted by Alfred Brophy
I recently had the pleasure of introducing Paul Jones to speak to the Black Law Student Association at the University of Alabama. Dr. Jones is one of our nation’s leading collectors of African American art. He was born in the 1920s in Bessemer (a town near Birmingham) and grew up there. He shared a dream of generations of boys in this state–to play for the University of Alabama’s Crimson Tide. But he could not realize that dream. Instead, he played for Alabama State. Then, in 1949, as a student at Howard University, he applied to the University of Alabama’s law school. Again, he was a generation too early. He was told that while the administrators here were aware that the United States Supreme Court might mandate that the University admit students like him, he should not pursue a lawsuit:
While this may be gratuitous, I am adding that we at the University of Alabama are convinced that relationships between the races, in this section of the country at least, are not likely to be improved by pressure on behalf of members of the colored race in an effort to gain admission to institutions maintained by the State for members of the white race. On the contrary, we feel that inter-racial relationships would suffer if there is insistence that the issue be joined at this time. The better elements of both races deplore anything that tends to retard or jeopardize the development of better relationships between the races. For these reasons, therefore, we hope that you can persuade yourself not to press further your application for admission here.
November 20, 2005 at 4:49 pm
Posted in: Law School
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Wex
posted by Dave Hoffman
Cornell Law School’s Legal Information Institute recently launched WEX, “a collaboratively built, freely available legal dictionary and encyclopedia.” Sounds peachy. What is it?
According to an email which has been circulating from the Tom Bruce, Director of the LII [who kindly gave me permission to quote]:
At the risk of sounding a little more diffident than perhaps I should, I’ll say that we’ve just put something sorta new and very interesting on the LII site. It’s called WEX, and we are hoping that it will grow into a very ambitious and interesting project indeed — interesting and ambitious enough that we should be trumpeting it from the housetops, I suppose, but for the moment we’re confining ourselves to low-key conversations with our friends and supporters. Hence this note.
WEX . . . will be the first collaboratively edited legal encyclopedia and dictionary on the web, aimed specifically at law novices.
November 18, 2005 at 8:55 pm
Posted in: Technology, Wiki
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