Archive for August, 2008
posted by Dave Hoffman
Relaxing at the beach in New Jersey this weekend, I watched dozens of plane towing banners fly by. I suspect that I wasn’t alone this particular weekend in wondering about the messages the planes were dragging. Unlike the ordinary banners, which advertise casino events, or rarely marriage proposals, all of this weekend’s banners seemed to be critical of someone in City government in Longport, NJ, though its not clear quite who or for what.
“Longport – Is Mayor Russo The Premier Puppet?” ”
“Ken you and Barbie look great together. Does Barbie know about peter?”
“Longport – Just Say No More to Russo’s ‘Gang Of Four.’ Stay Tuned.”
“Twinthugs plumbing. No permits needed. Premier condos and houses only.”
“Ken and Joe nabbed in FBI sting. Did Ken sing?
Obscure enough to be interesting, vague enough to avoid libel, and (with nothing else to do but watch the surf come in) the topic of literally thousands of conversations over sandy ice cream.
Anyway, I looked it up. Turns out, the planes relate to a bitter zoning battle, that has turned into an even nastier first-amendment fight, as the local government here tries to prohibit a landowner from videotaping interactions with city officials. Not the kind of high drama that ends up in casebooks, but still kind of a huge, festering, mess! Law: you can’t escape it, even on vacation.
If anyone else saw these banners, and recalls some of the other messages, feel free to comment.
posted by Dave Hoffman
Larry Ribstein has passed this along:
The Section on Agency, Partnerships and Limited Liability Companies is calling for papers for the 2009 AALS Annual Meeting in San Diego. We are interested in presentations on the application of modern theories and empirical methods of business associations to agency and unincorporated firms. The program has two goals: First, to show how these theories can be enriched by taking them outside the “box” of corporate law; and second, to show the relevance of agency and unincorporated firms to the mainstream of corporate theory and empirics. A non-exhaustive list of possible topics includes the nature and function of fiduciary duties, agency theory, the role and enforcement of contracts, jurisdictional competition and choice of form, the relationship of federal and state law, jurisprudence, international and institutional comparisons, and legal and economic history.
Please email either a draft paper if available, or if not an abstract and outline, to Larry E. Ribstein, University of Illinois College of Law, firstname.lastname@example.org by no later than September 1, 2008.
Good topic! If other AALS section chairs want to post their respective call-for-papers, feel free to use this thread as an open forum.
posted by Daniel Solove
Washington Lawyer magazine has an interesting article about the future of legal journalism in this month’s issue. From the article:
Try looking for legal journalism today, and you’ll definitely find it. Many local, regional, and national newspapers are providing distinguished court coverage, exposing injustices, following corruption trials, and covering constitutional cases as they proceed through the appellate system. It is not that those commendable works have disappeared, especially in national newspapers such as The Washington Post and The New York Times, but rather these journalism institutions are not the norm anymore as papers burdened with layoffs and a shrinking news hole have pared their staffs and coverage of everything, not just the legal system.
It is worth noting that even as the mainstream media falters, the legal press is thriving. Designed to serve the needs of lawyers, law firms, law libraries, and academia, publishers and information gateways such as Thomson Reuters’ FindLaw, Reed Elsevier Inc.’s LexisNexis, or American Lawyer Media, Inc.’s Law.com provide volumes of legal coverage every day, including more access to tailored information than ever before. It is unclear whether this reflects society’s overall move toward specialization, although it may be a major contributing factor, some say. Respected and well read, these products provide an astonishingly broad array of legal information aimed at the experts in the field.
Still, there are increasingly fewer media outlets providing the public with legal news and information. Instead, general legal news is limited to celebrity arrests, occasional political scandals in Washington or statehouses, and explicit details of nasty homicides. The emphasis is on the crime, not as much on what happens after the criminal has been arrested.
The closest thing to regular coverage is the “legal” news on cable networks, from trial coverage on Court TV (now known as truTV, and the name alone shows where the trend is heading) to cable news shows that blast the sensational “legal” news of the day with the staccato delivery of a machine gun. . . .
For all its Nielsen ratings points, Law & Order hasn’t translated into more mainstream news coverage of the law, according to The State of the News Media 2008 report. The least-covered domestic issues, determined by the percentage of space dedicated to them in mainline newspapers, were education (1.0 percent), transportation (0.8 percent), religion (0.7 percent), court/legal system (0.4 percent), and development or sprawl (0.2 percent).
There’s a lot more in the rather lengthy article.
posted by Daniel Solove
Today, I received copies of the Korean translation of my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. The book begins with an incident in Korea — the dog poop girl — so I hope that the book becomes popular there. I have no idea what all the stuff written on the cover says, so if anybody can read Korean, please let me know (click on the image to see a larger version).
posted by Dave Hoffman
We’re considering switching our blogging platform from MT to WP. We’d like to solicit your input to the extent that you’ve used both platforms, or are currently a WP user, as to the advantages and disadvantages we ought to be considering. Please comment here or send an email to email@example.com. Thanks!
posted by Nate Oman
Palin is McCain’s VP pick, but the inTrade markets seem to have been caught flat footed. Here is the graph of her contract’s performance over the life of the speculation:
Notice that she never seems to have traded at above 20 and immediately before the announcement she was trading in the single digits. I’ve had an on-going discussion with some friends about the value of inTrade numbers, and the anti-inTrade voices have been crowing this afternoon that Palin’s pick shows the bankruptcy of prediction markets. “I argue against putting too much weight on prediction markets,” one friend said, “which I think are interesting but not of tremendous political value or somehow more predictive that good polling data.”
So does this show that the inTrade is bunk and we ought to rely on expertise?
posted by Thomas Crocker
Democracy exercised in the presence of riot police. Free speech adjacent armored vehicles. Perhaps this is an overly dramatic way of describing otherwise unremarkable events of little consequence in the city of Denver during the Democratic Party convention. After all, relatively small protests in Denver will not amount to much practically speaking. Feared public disorder failed to manifest itself, and the poorly named “recreate 68” group failed to generate large crowds of protesters. If this failure means that the mayhem of 1968 has been avoided, then this failure is good for democracy. We want public political places to be occupied by persons exercising mutual respect, not engaging in violent confrontation. We also want public places to foster the presence of democratic participation. And that’s the problem with the reported large numbers of riot police in Denver. Public order is one thing, but public order with a heavy police presence is another. To state my concern simply: free speech requires a place in which one can speak, free from the dominating presence of the state; where fears of disorder allow government agents to dominate public places, then we suppress speech by suppressing the place of speech. Where we speak can sometimes be as important as what we say.
These pictures from the NY Times tell the story: a “free speech” cage constructed for “free speech,” a convention location completely fenced for security, riot-gear police controlling public space. These kinds of “free speech” tactics have become a staple at President Bush’s venues, rendering dissent invisible, and were used at convention sites in 2004, surviving judicial challenges. Timothy Zick has written about this problem here at CoOp in posts like this one, and I have written about this issue here. There is something discordant in the idea of free speech located in a guarded cage. There is also something discordant about a public sphere ringed by riot police. Yet, there is also something that has become increasingly ineffectual about politics in public – at least spontaneous public politics.
posted by Deven Desai
Apparently major news outlets have a practice of writing obituaries of famous people a little before they are dead. When one leaks, and it is about someone who has had some health problems in the past, the draft can cause a stir. That just happened when Bloomberg inadvertently posted its obit for Steve Jobs, Apple’s CEO. According to CNET, folks have even speculated that Jobs is ill again and gone so far as to demand that shareholders receive some sort of disclosure about his health. I have read that Berkshire Hathaway has begun a gentle move to prepare folks for a hand-off from Warren Buffett. Maybe Apple should take a similar approach. Nonetheless, are CEOs really evaluated based on whether they will keel over while in office? Some companies that seem to have super-strong and seemingly great CEOs who can handle ups and downs of a business may be great examples of the idea behind management matters. Others, however, have CEOs come and go (relatively speaking) and the free-agent styled system has to know that a CEO may jump for a host of reasons. This blip seems to highlight that some companies have long-haul management and some do not. One can imagine some pros and cons for having a strong almost cult-like leader and for having a professional manager who may have risen from within a large company or come from the outside.
A simpler matter is, as CNET notes, the effect rumors can have on a stock. Blogs and newspapers can and do publish at an extremely fast pace. My guess is that we will not change that and we may want that rush of information. The difficult part will be learning not to go on impulse and as one person argues that is what distinguishes humans from other creatures on the planet:
Counterintuitively, much of what makes us human is not an ability to do more things, … but an ability to inhibit automatic responses in favor of reasoned ones; consequently, we may be the only species that engages in delayed gratification and impulse control (thank you, prefrontal cortex).
posted by Frank Pasquale
In the space between the two political conventions, it’s a good time to think about partisanship. Political philosopher Nancy L. Rosenblum has just published On the Side of the Angels: An Appreciation of Parties and Partisanship. It’s a helpful corrective to the relativistic nonpartisanship that suffuses US media coverage of politics.
Consider, for instance, these lines from Bill Clinton’s speech two days ago:
Look at the example the Republicans have set: American workers have given us consistently rising productivity. They’ve worked harder and produced more. What did they get in return? Declining wages, less than ¼ as many new jobs as in the previous eight years, smaller health care and pension benefits, rising poverty and the biggest increase in income inequality since the 1920s. American families by the millions are struggling with soaring health care costs and declining coverage. I will never forget the parents of children with autism and other severe conditions who told me on the campaign trail that they couldn’t afford health care and couldn’t qualify their kids for Medicaid unless they quit work or got a divorce.
Are these the family values the Republicans are so proud of? What about the military families pushed to the breaking point by unprecedented multiple deployments? What about the assault on science and the defense of torture? What about the war on unions and the unlimited favors for the well connected? What about Katrina and cronyism?
Now, from a nonpartisan, “objective media” perspective, that’s an unfair screed. It focuses on the negative to the exclusion of anything positive. It can’t possibly be the “truth,” because the truth only emerges from full and fair debate between the “two sides” that exist on any issue.
But to the partisan, it’s a fair account of the history of the past eight years or so. So who’s right?
posted by Nate Oman
Eric Posner has an interesting post up at VC on the optimal size of countries. His comments remind me of Douglas North’s discussion of the topic in Structure and Change in Economic History (a very cool book if you haven’t read it). One possibility suggested by North is that the optimal size of the state is determined by the extant military technology. States that win wars survive and states that lose wars don’t. Accordingly, states whose size is correctly calibrated to the best military tactics and technology — e.g. the ability to raise and finance armies using the best weaponry, etc. — win. As military technology shifts we would then expect to see shifts in the optimal size of a state.
Another possibility is the transaction costs imposed on economic activity by national borders. For example, I think that there is a pretty good case to be made that Africa has too many countries. It makes sense that most trade is generally with your immediate neighbors — e.g. Canada and the U.S. — but in Africa this trade is frequently hobbled by inter-African protectionism. Hence, many African economies are effectively excluded from their most natural markets. Of course, if one thinks of protectionism as a form of rent seeking — and I believe that it almost always is — then this argument about optimal country size is really just a reformulation of Madison’s argument in Federalist No. 10: big countries are better because they are harder for “factions” to capture.
The trade story about optimal country size, however, can get complicated. One can dramatically reduce the transaction costs imposed by national borders through diplomacy and domestic policy, a la NAFTA or the EU. Likewise, there is no necessary reason that having a market within a single country necessarily implies the absence of implicit or explicit tariffs. Hence, for example, P.S. Atiyah argues in The Rise and Fall of Freedom of Contract that the union of Scotland and England at the opening of the 18th century created the largest free trade zone in the world. Although he doesn’t discuss it, it is worth pointing out that France, for example, had a larger population than the United Kingdom. On the other hand, France was not an internal free trade zone. Rather, one of the French crown’s chief sources of revenue was the taxation of trade not when it crossed France’s international frontier but rather when it crossed regional boundaries within the country.
posted by Nate Oman
Here is a bit of good news. According to the WashPo, investors unimpressed by sluggish growth in the United States and Europe are looking for other places to put their money and are turning to Africa.
Foreign investment is pouring into the continent at unprecedented rates, doubling in recent years to around $39 billion, according to U.N. figures. In recent months, some investors have even appeared convinced that Africa might be a safer spot to sink their money than the shakier U.S. and European markets.
“People are looking for diversification,” said Hurley Doddy, chief operating officer of Emerging Capital Partners, a private equity group based in Washington whose investments in Africa have jumped from $400 million in 2000 to $1.5 billion this year. “A lot of the problems the U.S. economy is having, you simply do not have that in Africa.”
Of course, one might just as easily say that the United States economy does not have the same problems as the African economy, and ultimately $39 billion is not a big chunk of the international capital market. The other issue that the article does not explore is the extent to which this direct investment is going into extractive industries, especially oil. Turning petro-dollars into wide-spread prosperity is a tricky matter, and too often the availability of huge amounts of easy wealth simply makes political corruption/kleptocracy easier. Indeed, it is no accident that in the U.S. three of the states that have traditionally had some of the most corrupt and dysfunctional political cultures — Louisiana, Texas, and Alaska — are also (or at least in the case of Texas, used to be) essentially petro-states.
Still, foreign investment in Africa is good. It would be better if the story were in the business section rather than the international section.
posted by Lawrence Cunningham
Is anyone aware of the existence of a simple list of differences between the requirements of traditional US accounting (GAAP) and international financial reporting standards (IFRS)? A simple listing of the top 25 or so differences between these two systems could be a handy tool for many purposes, including for reference, research, and instruction. But I and colleagues interested in finding such a list have not been able to locate one.
This is somewhat surprising to us. After all, pending debate over moving the US from GAAP to IFRS involves a fundamental question: how convergent or divergent are the two systems? There is no question that the two differ on numerous topics in important ways. Examples include inventory, research & development costs, and leases. Extensive research explores the effects of such differences on resulting reports of net income and shareholders’ equity. But there does not appear to be a simple list of the major differences by topic.
If anyone is aware of one, I’d be grateful to know about it. Alternatively, I may create one and share it on the SSRN as a “working paper.” I would invite others to comment on it to improve its accuracy and also update it as the two sets of standards continue to change.
posted by Nate Oman
I am facinated by Barak Obama. In part this is because I figure he is likely to be the next president, and in part because the combination of meteoric success and a limited public record has a tendency to make him into a kind of ink-blot test of people’s hopes and fears. The resulting discussions are often very revealing, even if they are not revealing about Obama himself. Also, unlike most national politicians, he seems to be a genuinely thoughtful and even curious person. Too often democracy seems to reward shallow narcicissits.
Still, my suspicion is that — stripped of the rhetoric — Obama is a rather conventional left of center pol, and not being a big fan of left of center pols, I’m inclined to enjoy his eloquence and put my political hopes elsewhere. (Or simply jettison political hope.)
Cass Sunstein, however, seems to be out to persuade people like me to support Obama. He has done a nice podcast on why conservatives should support Obama, and now he’s got an article in the New Republic explaining Obama’s pragmatism. Sunstein writes of him:
When he offers visionary approaches, he does so as a visionary minimalist–that is, as someone who attempts to accommodate, rather than to repudiate, the defining beliefs of most Americans. His reluctance to challenge people’s deepest commitments might turn out to be what makes ambitious plans possible–notwithstanding the hopes of the far left and the cartoons of the far right.
He goes on to insist, “Above all, Obama’s form of pragmatism is heavily empirical; he wants to know what will work.”
So it turns out that Obama is a minimalist empiricist who believes in market-based approaches for pursuing progressive ends. In short, Obama is…Cass Sunstein.
It’s a good brief, but I am still left feeling like Herod Agrippa. (Cf. Acts 26:28)
posted by Frank Pasquale
Admin law mavens will likely appreciate Christopher Moraff’s review of the Bush Administration’s approach to government agencies over the past eight years. Some key quotes:
Rick Melberth, director of regulatory policy at the nonpartisan watchdog group OMB Watch. . . [says] “Politics is injected and elevated into decisions where science and rational judgment should prevail. . . .Politics supersedes scientific and technical information that is critical to protecting our environment and health and safety at home and in the workplace.”
What’s more, research by political science professor David E. Lewis of Vanderbilt University shows that politicization results in lower agency competence and that political appointee-run programs earn systematically lower grades in most management areas. Says Lewis: “Many of the politicization scandals in this administration came from cases where unqualified or inexperienced people got into key jobs … often with the power to hire others or control information flows.”
posted by Dave Hoffman
At least, not for Larry Tribe:
Both allies and critics sometimes concluded that Mr. Obama was too gifted, or in too much of a hurry, for the tasks that consumed others.
“I thought of him much more as a colleague” than a student, said Laurence Tribe, a law professor at Harvard for whom Mr. Obama worked. “I didn’t think of him as someone to send out on mechanical tasks of digging out all the cases.” Other students could do that, Professor Tribe added.
I love Larry Tribe. He is a gifted teacher, and amazing scholar, and, so far as I can tell, a genuinely decent person. (He brought a huge basket of granny smith apples to every conlaw class. When I was at HLS, this made him the most student-friendly professor at the place.) But this is a bad quote. Bad for Obama. Bad for the other RAs Tribe hired that year. And bad for those of us who think that digging out the cases is an act invested with a dignity and meaning all its own. Without the cases, after all, we’d be nothing more than history or philosophy professors! What did Larry and Barack do? Chat about the how to define “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”?
posted by Lawrence Cunningham
The SEC made two important announcements this week concerning its current interest in promoting global capitalism. Both were somewhat surprising. One, concerning accounting standards, is surprising for its cautiousness; the other, concerning mutual recognition of foreign regulatory systems, is surprising for a potential lack of caution.
The surprising cautiousness appeared in the SEC’s announcement yesterday concerning its interest in switching the US from traditional US accounting standards to new international standards. Earlier Commissioner speeches and Commission releases suggested strong interest in a rapid short-term switch to the new standards. But the SEC now says it will soon release a discussion document contemplating the possibility of such a switch in 2014. Formal SEC consideration would occur in 2011, assuming designated milestones are reached by then.
The costs, uncertainties, and complexities associated with the imagined switch from US to international standards justify this long lead time. Stakeholders will eagerly await the SEC’s discussion document. One hopes for a thoughtful, analytical framework to evaluate such a revolutionary move, analysis that the SEC has to date not supplied.
The surprising potential lack of cautiousness appeared in the SEC’s announcement on Monday of a mutual recognition agreement with its Australian counterparts. Short term, this agreement contemplates allowing brokers regulated in one country to offer services to investors in the other without the broker being subject to the other’s laws, supervision or enforcement mechanisms.
posted by Paul Ohm
In honor of the start of the fall semester, I wanted to share a classroom participation technique I started using last semester with encouraging results. I cold call in my classes, but I give every student the opportunity to pass three times during the semester when they don’t feel prepared. (Because of where I teach, I notice a suspicious uptick in passes on Mondays following fresh snowfall in the mountains!) As long as I’m notified of a student’s desire to pass before class begins, I won’t call on him or her.
Last semester I started giving students the option of using the reverse of a pass, which I punnily dubbed a “catch.” When a student feels especially prepared for a given class–perhaps she has had a lot of time to read the night before or maybe she has already read the case before for another class–she can put herself on call by sending me a “catch” before class begins. In return, I promise students who catch that I will not call on them for at least three subsequent classes.
Very few students caught (catched?) last semester, but on those occasions when they did, it led to some of the most productive Q&A I’ve had with students in five-plus years (including two years as an adjunct) of law teaching. The students who caught no doubt benefited by regaining some control over their fate; their classmates benefited from hearing good discussions of the days’ topics; and I gained the benefits of an on-call system without having the rest of the class skip the reading.
If you cold call already, try out this tweak this semester, and let me know how it goes.
posted by Frank Pasquale
My colleague David Feige has turned his book Indefensible into a new TV series on TNT called Raising the Bar. If you want TV drama about a public defender, this is a show for you. I really enjoyed a screening of the first episode. Here’s the lowdown from the YouTube page:
[RTB is] new legal drama from Emmy® winning producer Steven Bochco. The gripping series stars Mark-Paul Gosselaar (NYPD Blue), Gloria Reuben (ER) and Jane Kaczmarek (Malcolm in the Middle) and follows the lives of young lawyers who work on opposite sides — the public defender’s office and the district attorney’s office — as well as those who sit in judgment on their cases. The series, which was created by Bochco and lawyer/writer David Feige, is set to premiere Monday, Sept. 1, at 10/9c
Here’s an interview with Bochco. The show even allows viewers to “brush up on their legal lingo” via its website. One reviewer says that “if the potential displayed in the trailers is fulfilled . . . .Raising the Bar . . . may become this century’s equivalent of The Defenders,” a classic 60s show the reviewer calls “[n]etwork television’s first (and greatest) legal drama.” Here’s a bit on The Defenders:
Reginald Rose’s The Defenders co-starred E.G. Marshall and Robert Reed as a father-and-son legal team, the Prestons. . . .[They] specialized in impossible cases, and their clients were usually people society deemed dispensable (at best) or utterly worthless. The show aired on CBS from 1961-1965, and tackled such topics as abortion, civil rights, capital punishment, black listing, political corruption, union busting and assisted suicide. The Defenders was far ahead of its time. The father/son duo frequently lost cases, even those where they actually presented the superior legal argument. Secondly, there was never any attempt to portray life as rosy or upbeat.
That noir sensibility pervades Feige’s Indefensible. I’m looking forward to the show.
posted by Frank Pasquale
At a hearing last month on the proposed Google-Yahoo joint venture, House Judiciary Committee Chairman John Conyers complained that neither he nor other committee members were allowed to inspect the terms of the deal in a practicable manner. Members of the Committee were only permitted to inspect the deal if they viewed its terms “at a law firm, with no notes allowed.” By contrast, the Committee was given “more ready access to documents surrounding the President’s terrorist surveillance program.” Here’s the full clip:
There are sometimes good reasons to suspect government secrecy more than corporate privacy. But few could likely envision a day when a private company’s proposed business arrangements were treated as more sacrosanct than data critical to national security.
posted by Frank Pasquale
Mary Dudziak provides some much-needed historical perspective on the Democratic nomination of Barack Obama. She notes that less than fifty years ago, Fannie Lou Hamer was brutally attacked for her civil rights work. Though she failed to get the Mississippi Freedom Democratic Party seated at the 1964 Democratic Convention, Hamer laid the groundwork for a more inclusive party. To many, Obama’s nomination is the culmination of her and the MFDP’s struggle.
[W]hile some of us are listening to the soothing tones of National Public Radio, a much larger audience—and larger by millions—is listening to Rush Limbaugh singing those subterranean fears of “Barack, the magic Negro,” or to radio shock jocks cackling about “jigaboos,” or to Pat Buchanan fretting that Obama is a radical, unpatriotic, extremist “elitist” to whom the liberal media hands a pass as a “special-ed,” “affirmative-action” candidate. Not that any of them mean it in a racist way. Hey, lighten up. Don’t you have a sense of humor?
I have even heard reports of these sentiments from my mother, who, while in the waiting room for her podiatrist last week, overheard another woman declare she was voting for McCain because “the blacks are taking over.” And this was in New Jersey, a long way from the South that terrorized Hamer.
These are the types of frightening and depressing sentiments that the US has to try to confront this election season. . . even as immense challenges mount elsewhere. All I can say is that it is heartening to see the pride at the Obama nomination here in Newark–a largely African-American city devastated by the slow-motion Katrinas of bad (or nonexistent) health and education policy for urban areas. When I think of the incredible challenges that the US faces, the courage and persistence evidenced by Hamer’s and Obama’s organizing work seems not merely helpful, but necessary.