Archive for December, 2007
posted by Nate Oman
Things that I as of yet lack the confidence to do in my classroom. (And as a bonus, there is a longer version.)
Needless to say, however, I think that NPR has demonstrated its utter lack of insight by suggesting that contracts is tedious.
posted by Deven Desai
It’s New Year’s Eve. Time to eat, drink, and be merry. Time to wear the lampshade. Time to let the past go and look to future. And time to capture time in a picture. And that’s the problem. I have heard stories of weddings threatened and sometimes derailed by indiscreet bachelor or bachelorette party pictures. In those cases the old school photograph was developed and then someone saw the pictures and had to tell her girlfriend or buddy about what they saw. Now, however, people post and share their fun online. The number of stories about how a beauty queen was dethroned or a star’s career was halted from indiscreet pictures require little more than a nod here. But as the New York Times notes sometimes perfectly legal and normal behaviors can cause problems when captured in a picture and posted online. So where is the line between professional life and personal life?
In the specific case a woman in a student teacher program had attended a costume party. She posted a picture from the party to her MySpace page in which the woman:
with a pirate’s hat perched atop her head, sips from a large plastic cup whose contents cannot be seen. When posting the photo, she fatefully captioned her self-portrait “drunken pirate,” though whether she was serious can’t be determined by looking at the photo.
The school of course claims that the woman was not meeting her program’s requirements but admitted that the picture was found just before the dismissal. In addition, “The university backed the school authorities’ contentions that her posting was ‘unprofessional’ and might ‘promote under-age drinking.’ It also cited a passage in the teacher’s handbook that said staff members are ‘to be well-groomed and appropriately dressed.’” Right.
With the ability to document almost anything as not meeting some bureaucratic ideal of doing one’s job, employers will always be able to trump up a claim that the firing was based on poor performance. But to claim at the same time that the behavior promotes underage drinking and one must be well groomed at a costume party suggests grasping at straws. If the article is accurate about the arguments, no one should accept the idea that an adult has to hide being an adult from students. This situation is not a teacher telling students “I was so wasted on Saturday.” As for the grooming issue, one has to admire an attorney who can argue to the court that what one wears at a COSTUME PARTY somehow relates to grooming and professional standards.
Of course one should realize that how one behaves in social situations can affect professional life. But allowing employers to micromanage the off hours of employees must stop. As the article notes the problem is that most employment is at-will. As such it would seem that anything is fair game for dismissal. Yet that sort of formalism cannot be correct. At-will must be understood as related to employment situations. Otherwise, those who fear big government will miss the real threat to individual liberty which is big (or small) employer.
Until then, however, stop wearing those comfortable sweats or torn jeans at home. They are poor fashion, reflect poorly on everything which you are associated, and the work standards committee disapproves.
posted by Frank Pasquale
I’ll lead with the law, then go into some other interesting ones below the fold:
6. David Levine, Hearsay Culture: Levine’s done at least 50 podcasts, focusing on (but not limited to) legal scholars writing on tech and IP. Here’s the schedule for the first part of 2008. Levine has a knack for bringing out the best in his guests.
5. Justice Talking: Here’s a list of the shows on this NPR program. Margot Adler is a great interviewer, and the website is excellent; for example, here are the resources available in conjunction with the program on race and the justice system.
4. Law Talk: Okay, call me biased, but I think Nate has done a great job with our podcast series, and Dave’s recent contribution is well worth a listen.
posted by Frank Pasquale
I admit it: despite criticizing rankings here and in articles, I like a good “Top 10″ list as much as the next guy. As Harold Bloom opined in a recent podcast, there are more great books out there than you can possibly read in a lifetime, so you have to make choices. Since I get a lot of my reading from used book stores, not all of these were published in 2007. Without further ado, here are my picks:
10. David Feige, Indefensible: One Lawyer’s Journey Into the Inferno of American Justice. As I noted before, it’s a briskly written, insightful work by someone trying to do the right thing in impossibly difficult situations. Feige whisks you through a single day of his life as a public defender in the South Bronx. Most events in the day bring up some memory of past clients, who take on an almost palpaple presence in the narrative despite being limned in a series of fast-paced sketches. If you like “The Wire” or other crime dramas, you will almost certainly enjoy this book (and you might also like this podcast from Judge Nancy Gertner).
9. Frank Ackerman & Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing. Ackerman & Heinzerling have an enviable knack for combining rigorous analysis with accessible prose. They do a great job exposing misuses of economic analysis.
posted by Jeffrey Lipshaw
My friend and Suffolk colleague Andy Perlman has a neat little question in ethics and morals over at Legal Ethics Forum. I recommend it heartily. (Personally, I think this is an easy application of the Categorical Imperative, but decide for yourself!) But while you are over there, ignore the crass pandering for votes, and if by some chance you do click through to the ballot for best blog in the “Lawyers Behaving Badly” category, think about how much your support would mean to my Legal Profession Blog colleagues, Alan Childress and Mike Frisch.
posted by Kaimipono D. Wenger
A friend of mine who reads the blog asked me a lengthy, somewhat personal question relating to Dan’s post. I’m not an IP expert and I didn’t know the answer. I gave him my own best guess, but I suspect the folks here will have more insight. His question is this:
When I was in college almost ten years ago, I set up a Napster account and I downloaded some music, over a year or two’s time. I probably downloaded a couple of hundred songs total, and burned some of them onto CDs. All of my classmates were doing it too. Eventually, Napster shut down, which stopped me from any more downloading. Some of my friends switched to Gnutella or Kazaa, but I never figured those out, and I already had all the music I needed. For a few years, I continued to use Napster to listen to music, but not to download. Later I switched to media players like Windows Media Player for everyday music listening on the computer.
Years later, I graduated from grad school, got a job, started getting paychecks. And realized that I wasn’t really comfortable with Napster music anyway, and was a little worried about liability. So I switched to legal music. I tried out a few pay services. I hated the new Napster, I couldn’t make it work. Eventually I switched to Itunes which is easy to use. I bought legal copies of most of the songs I had downloaded before. At the moment, I’ve got hundreds of legal downloaded Itunes songs.
I don’t listen to any of the old downloads anymore (except for a few rare, foreign songs that I’ve been unable to find legal copies of on any pay service). The downloaded music stash is not on my computer. I’m not sure whether I even have copies of most of it anymore, though I suspect that some of my old hard drive backups from grad school — CDs in storage — probably have some of it.
Should I be worried about getting one of these letters telling me to pay $10,000? Can “they” find me, either by checking Napster user records (but there were 10 million Napster users!), or by subpoenaing my school, or by bothering my ISP? Is there a statute of limitations on this? Does it matter at all that I’ve now bought legal copies of most everything? Should I contact them and try to settle? How much do I need to be freaking out?
My reply: I believe that the general SOL for copyright is three years, but that’s way outside my area — I’m not an IP guy at all; if it’s outside the SOL like I think it is, then you’re unlikely to be found liable for file sharing done during 1999 or 2000; I do think the CDs could still get you in trouble, but if they’re really gathering dust in storage, it’s extremely unlikely that the RIAA will find out about them; it’s also unlikely that they’ll find you from Napster use in 1999 or 2000, since there were 20 million Napster users and I doubt they’re all getting letters; and, I don’t believe that “I made it right by buying legal copies later” is a valid defense. I would definitely not contact the RIAA; I doubt they’re going to find you, and if they do, I don’t think you’ll get much credit for saying “I voluntarily turned myself in.”
How correct was my response to my friend? Did I miss any important points? How much should he be worried?
posted by Daniel Solove
The Recording Industry Association of America (RIAA) has been on a litigation rampage, attempting to identify people it believes are sharing music online, slapping them with a frightening lawsuit, and extracting steep settlements out of them. Universities are frequently being subpoenaed by the RIAA to provide information about students. Whether this strategy of acting like a lunch money bully is working remains to be seen, but finally a university is fighting back. According to Adam Liptak’s essay in the New York Times:
The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.
The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.
Represented by the state’s attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices. . . .
“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”
“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”
Mr. Myers questioned the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain “private, confidential information unrelated to copyright infringement.” He added that it may have violated an Oregon criminal law requiring investigators to be licensed.
I am pleased that the university is fighting back. Liptak seems skeptical about whether the university will be successful in its challenge to the subpoena, but at least it is defending its students rights rather than quickly giving in. Universities should not be so quick to accede to RIAA subpoenas.
One issue involves students’ First Amendment rights. Although the Supreme Court has held that copyright infringement isn’t protected under the First Amendment, Harper & Row, Publs. Inc. v. Nation Enters., 471 U.S. 539 (1985), protected speech may be involved in some cases. According to the Court, copyright has “built-in First Amendment accommodations” via the fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186 (2003). Copyright protection is thus compatible with the First Amendment because of the existence of fair use. What this means is that it is possible that in any given case, some of the uses of the music may be fair use, and that is protected by the First Amendment. Moreover, a person may have made statements online along with engaging in piracy. So, for example, an anonymous person might maintain a website where he posts music files for trading along with the statement that “the RIAA is a big bad bully.” That statement is protected speech, and identifying an anonymous speaker triggers heightened First Amendment standards for the subpoena.
posted by University of Illinois Law Review
(Please see our website for past issues.)
Amy B. Monahan
James J. Tomkovicz
Book Review Essay
Michael Steven Green
Christopher M. Gaul
Christine M. Kailus
posted by Deven Desai
Ah lists. We all know that the end of the year brings a flood of top 10, 50, 100 lists. And although many of them are vapid forays into what one person thinks matters right now as opposed to being a sign of what will endure, the advantage of the lists is that one can scan, decide whether to look further, and discard based on someone else taking the time to generate his or her view of the best or most important. As Frank might point out some of the searching and ranking can lead to worthy items being missed. Nonetheless, Wired’s list of the top ten scientific breakthroughs is fun and unintentionally highlights a point regarding innovation (more on that later in the post). Here’s the list with some free associations though I recommend going to the site for the details on the true what or why for these.
10. Transistors Get Way Smaller (A dream ever since Steve Martin noted the glory of getting small)
9. Scientists Clone Rhesus Monkey to Produce Stem Cells (Send in the clones!)
8. Planet Discovered That Could Harbor Life (pick your scifi series, now you know it could be real)
7. Engineers Create Transparent Material as Strong as Steel (Star Trek IV for you trekkers playing along)
6. Soft Tissue from T. Rex Leg Bone Analyzed (Yes! Jurassic Park will happen.)
5. Laboratory Mice Cured of Rett Syndrome (If this one works for humans, it is just cool)
4. Enzymes Convert Any Blood Type to O (vampires and others tired of donor problems have less to worry about)
3. Mummified Dinosaur Excavated and Scanned (Jurassic’s sequels move forward but with better dinosaur effects)
2. Chimpanzees Make Spears for Hunting (When Animals Attack! Takes on a new meaning)
1. Researchers Turn Skin Cells to Stem Cells (Sounds great but apparently taunting happy funball in this case may lead to tumors (a problem that limited replicants’ life span and helped cause the death of Dr. Tyrell in Blade Runner), but even the tumor issue may be under control according to the article)
In all honesty, the accomplishments are great. They give a sense of progress and the impression that people can conquer almost anything. Still, one author, David Edgerton, argues in his book, Shock of the Old: Technology and Global History since 1900, that thinking about the technology that is still in use as opposed to the only the innovations and inventors leads to a better understanding of how technology affects people’s lives around the world. Such an approach instructs that older technology has lasting impact, that operation and maintenance play key roles in a technology’s viability, and that national success is not keyed to innovation and invention. He further argues that one should think of things and how they control given that often one does not own the things one uses.
I can’t say that I agree wholeheartedly with Edgerton’s view. In some ways his notion of things reminds me of Mike Madison’s work on the subject. In addition, my recent work on how much one can control or own technologically mediated creations has themes related to Madison’s and Edgerton’s work. Edgerton, however, wants to tie technology to history and highlight social injustices that appear when technology comes into play. His conclusions challenge some some basic ideas about innovation, investment, and change.
posted by Frank Pasquale
Reports from Pakistan suggest that militant extremists were responsible for the tragic death of Benazir Bhutto. Anil Kalhan and Barbara Crossette provide insightful commentaries. I also found a great deal of insight on the situation in a lecture at Yale Law School by Martha Nussbaum. Though it was given three weeks ago, it sheds light on very recent events by describing the psychologically manipulative tactics extremists use to recruit impressionable young people to their cause. (The lecture video is here; it’s also on iTunes University, Yale Law division).
Though Nussbaum focuses on the Hindu far right in India, her nuanced theory may be useful generally. Her lecture brings together themes from her recent book on religious violence in India (Clashes Within) and prior books on education (Cultivating Humanity) and the role of emotions in human life (Hiding from Humanity and Upheavals of Thought). Nussbaum seeks to understand why “right-wing Hindu extremists . . . condone and in some cases actively support violence against minorities, especially the Muslim minority.” Her somewhat surprising answer focuses on the role of “humiliated masculinity” and European fascism in fueling a right-wing movement paradoxically premised both on avenging the wrongs done by invaders and imitating those invaders’ violent impositions.
posted by Deven Desai
The way American work environments function is amazing. Law firms and similar professional services industries often require absurd hours of work per 24 hours, per week, per month, and per year. How well one functions at two in the morning for weeks on end seems to be a low-grade form hazing to prove what I am not sure. Certainly the quality of the work has a chance of declining at those points. Indeed some states have laws preventing doctors from working too many hours without sleep as a way to reduce fatigue-related errors. Now thanks to the folks at DARPA (the technology arm of the Department of Defense) who funded some UCLA scientists all that may be gone. In other words be afraid.
Wired reports that “Darpa-funded scientists might have found a drug that will eliminate sleepiness. A nasal spray containing a naturally occurring brain hormone called orexin A reversed the effects of sleep deprivation in monkeys, allowing them to perform like well-rested monkeys on cognitive tests.” As one person interviewed noted whether someone using the drug would not be susceptible to other problems stemming from sleep deprivation is unknown. Before firms and other employers get excited the drug is at an early stage and FDA approval is likely far away. Still given the way many rely on stimulants to meet job demands, don’t be surprised to hear that Starbucks has begun to poke around the research or approval process.
For one set of numbers regarding the amount of sleep one should have in a night (still eight by the way) check out this report.
posted by Rick Swedloff
Although this is the first time I have ever blogged or blawged, I have been reading blogs since 2001. I came to read blogs in the usual way: as a diversion during the work day. I started with some of the well-written personal blogs. After that, I moved on to some funny blogs or major blogs that provided new and interesting diversions. I found blawgs much later. Because I am neither funny nor have an interest in sharing the boring details of my daily existence, before starting down this academic path I never seriously considered blogging. Now I see it as a way to keep me writing more regularly and give me space to flesh out some unleavened ideas. These are not new ideas and I suspect that these reasons plus some idea about self-promotion are part of why many people blog. But I could be wrong.
If I were into memes or had the time on this blog to run an interview series, I would love to ask some questions from top academic bloggers. But I’m not and I don’t so I’ll post the questions here and hope to get some responses. My hope is that answers to these questions will help new scholars and blawgers think about how to use blawgs.
* Why do you blog?
* How do you structure your day to include time for blogging?
* How many blogs do you read and do you use a feed?
* What is the connection between your scholarship and your blogging? Do you workshop new and quarter-baked ideas on your blog? Or do you keep potential article ideas away from the blog?
From the blogging perspective, I am also interested in the way in which incorporated blogs operate:
* How do folks split ad revenue to the extent that it exists (pro rata, based on number of posts, number of responses, amount of time)?
* When thinking about blog posts, do you consider whether they will generate more page views or comments?
posted by Rick Swedloff
Just before Christmas President Bush signed into law a second extension of the Terrorism Risk Insurance Act of 2002 (TRIA). This Act hasn’t gotten a lot of press, but it provides a pretty substantial subsidy for the insurance industry. In non-technical terms (because the technical terms are so complicated that one needs a slide rule, a pocket protector, and several actuarial tables to understand the terms completely), under this Act the government requires all commercial (not residential) property/casualty insurers to offer insurance for terrorism risks. In exchange, the government agrees to pay 90% of all losses over a certain amount (determined by a complex formula) that result from certified acts of terrorism. In short, the government provides reinsurance for commercial insurers in the case of a terrorist attack. But unlike normal reinsurance agreements, commercial insurers pay nothing up front for the reinsurance. They get to distribute their risk free of charge. Rather, if an act of terrorism occurs, and the insurance industry pays out over their limit, and the government is forced to pony up some cash, then the government has the right to recover its costs from future premiums received by the insurance companies.
Two things puzzle me about this Act: why we need the government to provide this service and why the government is providing this service for free.
The common justification for this act is as follows: Without insurance for terrorism, there would be significant disruptions in certain sectors of the economy and this would have an adverse macroeconomic impact. Insurance companies won’t provide terrorism coverage because terrorist acts are not probabilistic and are thus uninsurable. That is, insurance companies claim that they cannot provide terrorism insurance because they cannot predict how often terrorist attacks are going to occur or how large the impact will be. Thus, the government has to step in to force insurers into the market.
But this doesn’t make sense to me. Certainly we have enough data to make some guess about the costs and frequency of terrorism, and insurance companies can price their products based on that information. Moreover, although it is certainly a possibility that an attack will be so large as to make insurance and reinsurance impossible (e.g., the entire country is leveled in fell swoop), most insurance and reinsurance companies should be able to create a portfolio large enough to eliminate most of the concerns about the size of the attack. Please take a look at this article by Dwight Jaffe and Thomas Russell for a more thorough explanation.
Even if one believes that government should step in to this market, it is unclear why the government is providing this service for free. In any other insurance context, the insured has to pay a premium to receive the security that someone else will step in to pay some of the insured’s losses. Here, the insurance companies are paying nothing up front. The government is taking the entire risk. This is quite a subsidy for insurance companies. I assume that this is being factored into the price of the insurance products being offered, but that just seems like another subsidy for business and industry. Remember, there is no requirement under TRIA for insurance companies to provide residential terrorism insurance.
Yet this bill has created a bit of a topsy turvy world in D.C.: The Dems are on the side of the insurance industry and big business and the Republicans are against. What am I missing here?
posted by Dave Hoffman
‘Tis the season for discussions of happiness. Steve Bainbridge has joined the fray with Are Law Professors Unhappy? And, if so, Why? Check it out. He answers his titular question as follows: (1) no; and (2) “In sum, there may be miserable law professors, but I suspect it’s more likely because they’re miserable people than that they have a miserable job.”
Fun thought. When you put discussions of law professor happiness together with Jeremy’s recent post here, I think you could come up with a chart of some sort, where there is an optimal level of happiness resulting in maximized scholarly output. Really miserable professors, like me, right now, grading exam #120 out of #150, don’t write. Really happy professors also don’t write, but they feel good about it. What lateral hiring committees should be looking for is a baseline level of happiness mixed with tinge of anxiety and status-based competition.
posted by Jeffrey Lipshaw
I’m sitting at home, recovering from minor surgery this morning (Q: What is minor surgery? A: Surgery on somebody else) and reflecting on Dave Hoffman’s eminently sensible post about the executive jet. Like most things, the use of corporate aircraft is far more nuanced than people with agendas make it out to be; nevertheless, access to the company plane, even for company business, probably got its status as Target Number One for populist demagoguery the old fashioned way: it earned it.
You may want to pull out your air violin on this, but first, there are private jets and there are private jets. If you are flying in a Gulfstream V or a Falcon 900, you are pretty comfortable. If you are flying in a Citation V with all the seats occupied, you are not, particularly if you need to use a bathroom. Add to that the far greater effect of weather and turbulence on a small airplane plus the fact that in crowded airspace big airliners are given first priority for the smooth air, and you can have a pretty wild time. My worst flying memory was all of that packed into a landing in Teterboro, New Jersey where we circled and circled through head-jarring turbulence, all the time listening to the TCAS up front squawking “traffic, traffic, traffic.” A three Xanax flight.
Second, many companies use private aircraft because it is far more efficient than commercial. Our headquarters was in Indianapolis and our largest facility was in El Dorado, Arkansas. With the Citation V, anybody (not just the CEO) could get there and back in two hours; flying commercial meant you committed three days (change planes in Memphis or St. Louis to Little Rock, then drive 2-3 hours).
What makes the company plane an attractive populist target, even if you can compensate the executive in lieu of the jet and the compensation is fully disclosed, is that ordinary people simply cannot get this kind of compensation. Flying privately is a perk that almost defines the executive class – it is largely unavailable to most people and it IS easier, less time consuming, and spares one almost all of the indignities of modern air travel. Even when the company plane is generally available for all legitimate business purposes in the company (and most are), the CEO usually has first call on it. (I can’t remember where I saw it, but I didn’t make this up – you also have the GE style Thomas a Becket problem. The joke was that if Jack Welch asked for a cup of coffee, somebody at GE ended up buying Brazil. That is to say, even if the CEO wanted to give up the plane for a more efficient use, it wouldn’t be uncommon for his or her minions – personal assistant, traffic coordinator, whatever – to insulate the CEO from the competing request because that’s what the minion thought the CEO wanted the minion to do.) I spent eleven years at a senior level in two big companies, both of which had dedicated Citations, and I don’t remember the CEOs of either (one divisional and one of the corporation) ever flying commercial within the lower 48 states. So while we “C levels” got to use the company plane a lot, we still had the occasional commercial flight to experience how the other half lived.
And that’s apart from the provision in the CEO’s employment contract – never anybody else’s – that says you get X hours of personal use of the aircraft, with the hourly cost added to your taxable income, and that compensation grossed up.
In short, the political bang is not in the cost, but the exclusivity.
posted by Jeremy Blumenthal
Increasingly, the study of “happiness” is making its way into legal academic writing. In some analyses it is framed as an alternative to money as a measure of welfare; in others as a focus on addressing the recurring problem of law firm associates’ pessimism. It is applied to tax policy, the calculation of pain-and-suffering damages, democratic institutions, and more. And happiness is making its way into law schools—well, in a sense anyway—with seminars being offered at Yale and Temple Law Schools on, for instance, “Law, Happiness, and Subjective Well-Being.” The study of happiness, and the related research program in positive psychology, are becoming increasingly prominent in law and policy.
The connection to the also-burgeoning literature on paternalism is clear; to the extent different interventions might be able to increase people’s happiness and welfare, is government justified in promulgating such interventions (or even obligated to do so)? That’s a can-of-worms type of question that I won’t get into in this post, but it connects with an interesting new article that indirectly raises the question whether such intervention—even if justified—might in fact backfire. That article, “The Optimum Level of Well-Being: Can People Be Too Happy?,” suggests that even though higher happiness seems to correlate with higher success in other areas, simply continuing to increase happiness might not increase that success consistently. The abstract follows:
Psychologists, self-help gurus, and parents all work to make their clients, friends, and children happier. Recent research indicates that happiness is functional and generally leads to success. However, most people are already above neutral in happiness, which raises the question of whether higher levels of happiness facilitate more effective functioning than do lower levels. Our analyses of large survey data and longitudinal data show that people who experience the highest levels of happiness are the most successful in terms of close relationships and volunteer work, but that those who experience slightly lower levels of happiness are the most successful in terms of income, education, and political participation. Once people are moderately happy, the most effective level of happiness appears to depend on the specific outcomes used to define success, as well as the resources that are available.
We know that “money doesn’t buy happiness”—that simply increasing financial success doesn’t directly correlate with happiness above a certain (surprisingly low) point; here’s an interesting suggestion that above a certain point, happiness doesn’t “buy” success.
December 28, 2007 at 2:13 pm Posted in: Articles and Books, Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Law and Psychology, Law Practice, Law School (Scholarship) Print This Post 2 Comments
posted by Dave Hoffman
Michelle Leder, of Footnoted, was on NPR’s Marketplace yesterday. The story: the worst examples of agency-costs in footnotes in SEC filings in 2007. (She doesn’t sell it that way, but that’s what it is.)
Bloggers have highlighted a few of Michelle’s “best” finds, including Edward Mueller’s agreement, as CEO of Quest, to permit his family members to use the company plane to travel back and forth to California (where his family was based) to Denver (where Qwest is headquartered.) Although the story was hyped as permitting Mueller’s daughter to commute daily to school — something of a modern-day Leonard v. Pepsico, there is no evidence that the family plans to fly back and forth in this way.
But who cares anyway? Increasing numbers of high-level executives work far away from home, commuting to headquarters for parts of the week. (The consultants’ four day week, but permanently.) Encouraging them to do so maximizes shareholder wealth because it (presumably) allows recruitment of talent that wants to live elsewhere. Now the problem with these schemes is that it is taxing for the executive and her/his home life to be separated from the family. As Professor Joan Heminway explains here, personal turmoil in a CEO’s life can have materially adverse consequences for shareholder value, and well-run companies probably ought to do everything they can to make executives personally happy.
So why not pay for a family to commute back to California, to enable a family member to finish her last year of high school surrounded by friends, while coming “home” to Denver when possible? If that makes Mueller happy, and reduces the chance that he would live in California and commute to Denver, Qwest’s shareholders win. If the argument is simply that the CEO should pay for this travel out of his own pocket, the flight costs will be imputed as income to him under the agreement, so the economics are basically the same. Given disclosure, these kinds of perks should be seen simply as salary-substitutes, at worst, and as ways to reduce the chance of disruption by increasing the CEO’s chance of having a normal family life.
Dailykos (which originally brought the story to my attention) had this to say:
And as this president likes to remind us, this is the ownership society, so don’t be surprised to learn that some of your retirement funds are going to fuel up that jet so an execu-kid can zip off to the prom.
But this is plainly silly. Would we prefer that Qwest simply paid Mueller more money? Or not disclosed the behavior?
posted by Jeffrey Lipshaw
I neglected to mention, in my original commentary on the Cerberus opinion, that I am indebted to Frank Pasquale (the real one!) for directing me to Paradoxes and Inconsistencies in the Law, edited by Oren Perez and Gunther Teubner. I’m now doubly indebted to Frank because he pointed out another blog post that makes for an interesting counterpoint about practical reason – how we decide (particularly as lawyers) what to do.
In his introductory essay to Paradoxes, Oren Perez (Bar-Ilan) makes a point about rational calculation, in the context of the Learned Hand formula for negligence, that had never occurred to me, and which seems to make sense. (I invite anyone to explain why it is wrong!) This has broad application because it gets at the heart of the core relationship between the ex post outcome of cases (like Cerberus’ “lessons” on eliminating ambiguities in drafting) and the ex ante calculation in respect of that outcome that lawyers (those most rational of actors) are supposed to make.
Perez’s argument goes like this. The potential tortfeasor, informed by the case holdings, knows that she will be liable for the injury she causes if the cost of precaution is less than the probability of an accident times the magnitude of the accident. For the model to work, it has to assume that potential tortfeasors and judges are perfect welfare maximizers with perfect information. But information and deliberation are not costless. So maximizing actors need to make a decision about whether to invest costs in obtaining the necessary information and spending the time deliberating about the choice. That decision is itself not costless; one needs to gather information about whether gathering information and deliberating is a fruitful way to spend one’s maximizing time. And so on to the infinite regress.
This appeals to my intuition in the same way as, and seems to be related to, at least analogically, the idea that rules cannot determine their own correct application. (If there were a rule for the application of a rule, then what would the rule be for the application of the rule for the application of a rule, and so on to the infinite regress.)
Perez’s conclusion is that this is why we have rules of thumb for deciding what to do – they sit somewhere between unsatisfying calculation and pure intuition.
But wait. Maybe we don’t calculate or intuit. Maybe we just frame, conform, and comply. That’s a thesis proposed by Sung Hui Kim (Southwestern) over at The Situationist, a law and psychology blog affiliated with the Project on Law and Mind Sciences at Harvard Law School. In Part II of a series speculating on why lawyers acquiesce in the frauds of their clients, Professor Kim says:
Inside counsel, as employees of the firm, are inclined to take orders and accept the “definition of the situation” (a phrase coined by Milgram) from their superiors. These superiors happen to be a cohort of non-lawyer senior managers vested with the authority to speak on behalf of the organization and entrusted to give direction to inside counsel. They create the reality for inside counsel: they define objectives, identify specific responsibilities for inside lawyers and, ultimately, determine whether an inside lawyer’s performance is acceptable.
And accepting management’s “definition of the situation” means accepting management’s framing of the inside lawyer’s role and responsibilities. This framing provides that compliance responsibilities be segmented. Although inside counsel’s duties include a prominent role in corporate compliance, it is business management that jealously guards the right to decide whether to comply with the law, which is seen as the ultimate risk management decision. For inside counsel to challenge management’s decisions or management’s authority to make decisions would then amount to clear insubordination.
Obedience in the corporate context will be substantial, so we should not be surprised by the banal tendency to listen to superiors.
Full disclosure. I spent eleven years of my career as an in-house lawyer, so it’s entirely possible that I resemble that remark. (Professor Kim can also call on real-world experience as outside and inside lawyer, and in fairness, her very thoughtful and interesting Fordham Law Review article on the subject, which I recommend heartily, is more nuanced than the blog post.) But I’d be a lot more comfortable accepting this sweeping conclusion were it made on broad empirical evidence of actual in-house lawyer conduct rather than on what appears to be a combination of inference from the Milgram conformity lab tests and well-known examples of lawyers behaving badly. I knew a lot of in-house lawyers, and while I can’t say how they would have performed in the electric shock tests, and can’t deny the impact of framing on decision-making, I sure saw a lot of thoughtful and courageous pushback to management on lots of legal and moral issues. Indeed, my casual observations were that individual moral choice and leadership in context, while certainly more elusive in its measurement, showed up more than just from time to time. I can’t determine whether that was the exception or the rule. Indeed, I applaud the coda to Professor Kim’s bio: “I tell my students that there are two questions that every lawyer should ask when counseling a client about a proposed course of action. The first is: ‘Is it legal?’ The second is: ‘Is it right?’”
But how do you make that call? I struggle with the line between psychological “truths” and moral free agency. I am willing to accept the conclusion that we are hardwired to seek and justify physical and material well-being, and hence, a natural inclination for people, not just lawyers, is to comply and avoid conflict. I don’t like, however, blanket statements about in-house lawyers doing this and that, and having this and that tendency. If I may engage in another exercise of shameless self-promotion, the point of my piece, Law as Rationalization: Getting Beyond Reason to Business Ethics, was to explore the difference between lawyers using reason to justify a desired material world outcome, and lawyers using reason as autonomous moral agents trying to discern ethical obligation.
The implication is that I don’t think you can change things by incentives (more cheese for the rats). My answer is there has to be personal engagement in a continuing struggle to ask questions with the hope of getting answers along the way. To borrow from Robert Louis Stephenson, sometimes it is better to travel hopefully than to arrive.
(Cross-posted at Legal Profession Blog.)
posted by Daniel Solove
AALS is going to be in New York City this year, and I can’t wait. I used to live in New York City when I taught at Seton Hall Law School. For the fellow foodies among us, I thought I’d recommend a few of my favorite restaurants and food destinations:
9 West 53rd Street (between Fifth and Sixth Avenues)
Located next door to the Museum of Modern Art, The Modern is an amazing visual and culinary experience. It has a beautiful bar and a wonderful view of the museum’s gardens. The food is creative and consistently wonderful. I typically get the tasting menu, and every course is a winner. The service is attentive without being intrusive. This place is as close to perfection as you can get.
65 E. 55th St. (near Madison Ave.)
Aquavit‘s Scandinavian fare is spectacular. I never knew herring could be so good until I tried the amazing herring dish, in which herring comes in several varieties and preparations. It comes with a small glass of beer and an aquavit (a flavored liquor drink). All of the seafood is wonderful.
204 East 43rd Street (between 2nd and 3rd Avenues)
Sushi Yasuda is my favorite sushi restaurant in NYC. For sushi, it is better than the famed Nobu (which although famous for sushi, stands out more for its tapas-style small seafood dishes). And unlike Nobu, the reservationist at Yasuda actually picks up the phone! Chef Yasuda is a sushi purist (no dragon rolls or spider rolls here), but his sushi is all remarkably fresh and creamy. He doesn’t just offer tuna or salmon or eel, but has scores of different kinds of each type of fish, caught from all over the world. The best thing to do is get a seat at the sushi bar with Chef Yasuda himself, who will tell you the life story of every fish and take you on a sushi-tasting adventure like no other. Beware, though, that the sushi slides down your throat more easily than a scoop of pudding, and you’ll quickly lose track about how much you’ve eaten, to the chagrin of your dean.
2165 Broadway (between 76th and 77th Street)
New York, NY 10024
The best gelato I’ve tasted outside of Europe. Imagine if you could condense all the creaminess and yumminess of ice cream into a concentrated dose half the size, and then you can begin to imagine what this tastes like.
Zabar’s + H&H Bagels
80th & Broadway
The best bagel and lox combination is a hot H&H bagel with fresh Nova from Zabar’s. Don’t get the prepackaged lox — be sure to order it from the counter. And then go across the street to H&H to get your hot bagel.
Other recommendations: Babbo, Eleven Madison Park, Union Pacific, Bolo, Le Bernadin, Fresh, Craft, Nobu, Tabla, Tomoe Sushi
posted by Dave Hoffman
It’s a grim season for Americans who own homes (or, shopping malls). Luckily, casual blogging for mediocre stakes is quickly filling the gap as the ultimate backstop for the American economy. Well, sort of:
[W]ith the right mix of compelling content and exposure, a blog can draw a dedicated following, making advertising a low-hanging fruit.
“This is really a continuation of how the Web in general has enabled smaller businesses and individuals to compete if not at a level playing field, at least a more equitable level,” said David Hallerman, a senior analyst with the research group eMarketer.
AdSense is an automated program that places targeted advertising on sites big and small. Other programs such as PayPerPost are just as user friendly; bloggers sign up and advertisers cherry pick where they want to place ads based on categories and the number of impressions a site captures.
Getting paid might even help validate what may otherwise seem like a silly or obscure obsession.
For Samuel Chi, BCSGuru.com started as a way to demystify the convoluted universe of college football rankings.
Chi, a former sports journalist with training in statistics, posts his calculations every Saturday night during the season before official results are released Sunday. From Saturday night to Monday, about 4,000 sports fans log on daily to check out the “guru’s” forecast.
This season, Chi made about $8,000 from the blog; ticket brokers contacted him directly after word about his site got out. AdSense brought in another couple hundred dollars for Chi, the owner of a bed-and-breakfast in Amelia Island, Fla.
A few things. First, it is very hard to imagine that $8,000 is going to validate what is, let’s be frank, a silly and obscure obsession with college football rankings. But putting that aside, it strikes me as odd that the article paid so little attention to the potentially pernicious consequences of running targeted ads on a niche website. With evidence growing that online advertising works, even when it isn’t clicked on, there are, I think, two sets of issues to think about.
Second, total persuasion. As I argued here and more extensively here, we should be troubled by a world in which it is impossible to walk, or surf, “without feeling like a targeted consumer.” In a world where ads are generalized, like T.V., you can a) feel confident in your ordinary defenses to advertising – skepticism, caution, disbelief – will work; and therefore b) you will feel the freedom of being unpersuaded, and in making consumer choices that maximize your well-being, broadly defined. This is not true with targeted advertising. Thus, although it is nice that small blogs like ours can monetize themselves – indeed, I pushed and continue to support the decision to take on advertising – we should acknowledge the cost paid by our readers. Targeted advertising on a blog means that readers become consumers, subject to the most persuasive speech money can buy. Ultimately, I imagine that almost every blog with non-negligible traffic streams will take on advertising, if only to defray hosting fees. And folks can be persuaded from cradle to grave. Even during lunch!
(Image Source: Wikicommons.)