Concurring Opinions » Christine Hurt http://www.concurringopinions.com The Law, the Universe, and Everything Sat, 21 Nov 2009 02:51:48 +0000 http://wordpress.org/?v=2.8.3 en hourly 1 ExpressO and the “March Window” http://www.concurringopinions.com/archives/2006/02/expresso_and_th.html http://www.concurringopinions.com/archives/2006/02/expresso_and_th.html#comments Mon, 20 Feb 2006 05:20:58 +0000 Christine Hurt http://www.solove.org/archives/2006/02/expresso-and-the-march-window.html Thanks to everyone for letting me hang out here for a couple of weeks. I’ve had a great time, but I have to get back to my normally scheduled duties of teaching and blogging at the Glom. This week, I will join the hordes of others who will send out an article for submission. I still call this time of the year the “March Window,” even though others have told me the emprical studies show that the actual window is between February 15 and February 24. So, just as I still “dial” telephone numbers and “turn” the TV channels, I guess I still send out in the March Window.

I will also be in good company sending out my article using ExpressO. [...]]]> Thanks to everyone for letting me hang out here for a couple of weeks. I’ve had a great time, but I have to get back to my normally scheduled duties of teaching and blogging at the Glom. This week, I will join the hordes of others who will send out an article for submission. I still call this time of the year the “March Window,” even though others have told me the emprical studies show that the actual window is between February 15 and February 24. So, just as I still “dial” telephone numbers and “turn” the TV channels, I guess I still send out in the March Window.

I will also be in good company sending out my article using ExpressO. I experimented with ExpressO in August, like Dan, and submitted to some schools by mail and some electronically. I am a Word Perfect user, and ExpressO’s services are much more limited if you submit a paper in Word Perfect. For this short article, I used Word so that I could keep my transaction costs of send-out lower. This way, I’ll be able to send out exclusively via ExpressO. I’ve said before that I don’t understand why ExpressO is not based on pdf, like SSRN is. Using pdf seems like an intelligent choice for both senders and receivers; the format protects integrity, and any recipient without Adobe reader can downloand it for free. Oh, well. Probably by next January, when I’m sending out in the August window, the system will have changed!

]]> http://www.concurringopinions.com/archives/2006/02/expresso_and_th.html/feed 3 The ABA, Affirmative Blackmail, and Being on Admissions http://www.concurringopinions.com/archives/2006/02/the_aba_affirma.html http://www.concurringopinions.com/archives/2006/02/the_aba_affirma.html#comments Thu, 16 Feb 2006 18:15:03 +0000 Christine Hurt http://www.solove.org/archives/2006/02/the-aba-affirmative-blackmail-and-being-on-admissions.html This week’s events (the promulgation of new rules by the ABA on diversity admissions, publication of David Bernstein’s op-ed, Affirmative Blackmail, and the ensuing blogospheric discussions) have prompted me to post on a topic that I have been ruminating about for some time: admissions. At the Glom last year, I blogged a series of advice posts (here, here, here and here) from information gleaned after my first year on admissions committee. This is my second year on that committee, and I have to admit that the shiny has worn off a bit for me. I wanted to be on the admissions committee because I wanted to find out why we had classes with low percentages of minority students. Surely there [...]]]> This week’s events (the promulgation of new rules by the ABA on diversity admissions, publication of David Bernstein’s op-ed, Affirmative Blackmail, and the ensuing blogospheric discussions) have prompted me to post on a topic that I have been ruminating about for some time: admissions. At the Glom last year, I blogged a series of advice posts (here, here, here and here) from information gleaned after my first year on admissions committee. This is my second year on that committee, and I have to admit that the shiny has worn off a bit for me. I wanted to be on the admissions committee because I wanted to find out why we had classes with low percentages of minority students. Surely there must be some subconscious, yet insidious discrimination creating this result. I was going to ferret out this bias and squash it like a bug. What I found was a problem that I couldn’t fix. The problem is math. Prof. Bernstein and Thom Lambert point out that the ABA’s new rules show that the ABA has a conscious disregard for the rule of law. I would add that the rules also show a conscious disregard for math. For schools like Marquette, in the middle of the rankings, with a small faculty, administration and budget, cold, hard numbers are our problem when it comes to increasing diversity. Putting aside debates as to whether affirmative action is good, bad, constitutional, unconstitutional or whatever, the most affirmative action-minded admissions committee has to make very difficult choices in an environment of scarcity. Scarcity of applicants; scarcity of dollars.


Marquette’s problem is not that we don’t admit minority candidates. The percentage of minority candidates in our “admit” pool is larger than the percentage of minority candidates in our “applicant” pool. In fact, the percentage of minority applicants who become admits is larger than the percentage of nonminority applicants who become admits. However, the yield on minority candidates in our “admit” pool is quite low. These candidates have a lot of other opportunities. We do what we can: phone calls, scholarships, letters, emails, dinners, etc. I soon found out that to say that we discriminate against minority candidates is to say that we discriminate against candidates with 170 LSATs. We don’t end up with a lot because we don’t start out with a lot. And, no matter how many 170 LSATs we admit, our yield on 170 LSATs is very low, similar to our yield on minority candidates. These people have other opportunities, and our recruiting activities don’t change that much. If we were ranked higher, our yield would be greater. If our yield were greater, we would be ranked higher. See how that works, ABA?

However, the ABA now says that we are required to do more than just work with what we have. We need to commit resources to increase the number of minority applicants in our applicant pool. For instance, we could have a dedicated diversity admissions person, we could recruit in person at historically black colleges, we could hold minority applicant fairs, and we could have more minority scholarships. At present, our admissions office has one assistant dean and one office administrator. To comply, we would need to basically double our admissions budget. And our scholarship pool.

I teach corporate law, so I follow the recent white-collar prosecutions. Bernard Ebbers was criticized, and eventually punished, for blithely telling subordinates to “hit the numbers” without regard to the consequences. The ABA is also blithely telling law schools to do something without regard to the realities of numbers. I understand that in some situations, schools may have money, time and resources that they don’t want to commit to a laudable goal and will not until forced to do so. However, my impression is that many schools like Marquette will be caught in the middle because they actually do not have unlimited money, time and resources.

]]> http://www.concurringopinions.com/archives/2006/02/the_aba_affirma.html/feed 7 Record-Keeping is Burdensome for Pornographers http://www.concurringopinions.com/archives/2006/02/recordkeeping_i.html http://www.concurringopinions.com/archives/2006/02/recordkeeping_i.html#comments Mon, 13 Feb 2006 20:28:30 +0000 Christine Hurt http://www.solove.org/archives/2006/02/record-keeping-is-burdensome-for-pornographers.html I think we’re all fully versed as to the costs of some regulation, such as Sarbanes-Oxley, that requires massive record-keeping and certification. However, many in the pornography industry are complaining that the DOJ has instituted record-keeping requirements so complex that it will surely drive them out of a legal business. The requirement? Keep records verifying the age of every employee that shows up on-camera for ten years. WSJ article here. Jeepers! Regulations passed last year require all online purveyors of sexually explicit videos or photographs to retain each subject’s birthdate, copy of government-issued ID, and list of aliases used in the industry.

According to the article, owners of websites are up in arms, saying that the DOJ wants to drive [...]]]> I think we’re all fully versed as to the costs of some regulation, such as Sarbanes-Oxley, that requires massive record-keeping and certification. However, many in the pornography industry are complaining that the DOJ has instituted record-keeping requirements so complex that it will surely drive them out of a legal business. The requirement? Keep records verifying the age of every employee that shows up on-camera for ten years. WSJ article here. Jeepers! Regulations passed last year require all online purveyors of sexually explicit videos or photographs to retain each subject’s birthdate, copy of government-issued ID, and list of aliases used in the industry.

According to the article, owners of websites are up in arms, saying that the DOJ wants to drive their legal adult entertainment sites out of business under the ruse of fighting illegal child pornography. Apparently, some would be performers don’t want to use their real names. Some owners of websites don’t want to list the address of their home business and announce to the world that they run adult entertainment websites. OK, sorry. But you can’t have it both ways.

Legitimate, legal businesses keep records. Every employer I ever had made a copy of my driver license and my social security card. The DOJ can call any legitimate business in the country and ask for proof of the age of its employees, and those employers can comply. Why? Because we have laws, such as child labor laws and tax laws where this information comes in handy. I guess the adult entertainment industry is uninterested in tax laws. How do they file W-2s if they have no actual name of performers? If you want the adult entertainment industry to be legal, then act like one. Obviously, re-sellers of materials are the ones with the larges burden, but they may be carved out of the regulations. I’ll leave the far-reaching privacy concerns to Dan, but for now, I’m unsympathetic to complaints of keeping records of employees’ identities. Try complying with SOX.

]]> http://www.concurringopinions.com/archives/2006/02/recordkeeping_i.html/feed 9 The Crime That Shouldn’t Bother “Us” http://www.concurringopinions.com/archives/2006/02/the_crime_that.html http://www.concurringopinions.com/archives/2006/02/the_crime_that.html#comments Mon, 13 Feb 2006 04:15:22 +0000 Christine Hurt http://www.solove.org/archives/2006/02/the-crime-that-shouldnt-bother-us.html Milwaukee made the NYT today, but not in a good way. While the nation’s largest cities are seeing a drop in crime, other mid-sized cities are experiencing an increase in homicides. Milwaukee is one such city; 2005 saw 122 homicides compared with 88 in 2004. The increase in homicides is not due to gang-related violence or drug-related violence, however; the increase is almost all due to homicides that occurred during arguments over much smaller things, such as dirty looks or acts of “disrespect.” These homicides are limited to certain neighborhoods and usually involve individuals with criminal records.

The article doesn’t have a lot of answers as to reasons why this increase is happening. Milwaukee is a very segregated city, with a [...]]]> Milwaukee made the NYT today, but not in a good way. While the nation’s largest cities are seeing a drop in crime, other mid-sized cities are experiencing an increase in homicides. Milwaukee is one such city; 2005 saw 122 homicides compared with 88 in 2004. The increase in homicides is not due to gang-related violence or drug-related violence, however; the increase is almost all due to homicides that occurred during arguments over much smaller things, such as dirty looks or acts of “disrespect.” These homicides are limited to certain neighborhoods and usually involve individuals with criminal records.

The article doesn’t have a lot of answers as to reasons why this increase is happening. Milwaukee is a very segregated city, with a very high teenage pregnancy rate, a low high school graduation rate for African-American males, and a large racial education gap. With manufacturing leaving Milwaukee, the article suggests that lack of work opportunities in some neighborhoods have eliminated hope and possibly added to this “rage.”

What bothered me about the article was the whitewashing of the problem by city officials. (Yes, I guess all puns intended.) For example, the police chief in Charlotte, NC is quoted as saying: “It’s hard for people to look at it in depth and understand that they’re not likely to be a victim if they get along with their family members and neighbors and don’t live a high-risk lifestyle.” I’m not sure what the “high-risk lifestyle” is here. Being poor? Living in a high-risk neighborhood? LIving next door to people with crimnial records? Not everyone gets to move into more expensive, crime-free neighborhoods just by wishing. I’m sure this quote is taken out of context, but it smacks of “they’re just killing each other, so why should we care?”

]]> http://www.concurringopinions.com/archives/2006/02/the_crime_that.html/feed 5 What’s in a Language? http://www.concurringopinions.com/archives/2006/02/whats_in_a_lang.html http://www.concurringopinions.com/archives/2006/02/whats_in_a_lang.html#comments Thu, 09 Feb 2006 19:00:30 +0000 Christine Hurt http://www.solove.org/archives/2006/02/whats-in-a-language.html Over at the Glom, I posted on the possible acquisition of Univision Communications, which owns Univision, the Spanish-language channel. This topic got me thinking about the relative utility of learning various foreign languages. Being from Houston, I would have to say that the single most important language in the U.S. is Spanish. (For example, in the market for childcare, non-Spanish speaking buyers are at a definite disadvantage. I’m not saying this to be silly or rude. I’m saying it because it’s true.) I never understood why Texas public schools do not require the teaching of Spanish from first grade forward. I know, people in the U.S. tend to think that English is the only necessary language, unlike natives [...]]]> spanish.jpgOver at the Glom, I posted on the possible acquisition of Univision Communications, which owns Univision, the Spanish-language channel. This topic got me thinking about the relative utility of learning various foreign languages. Being from Houston, I would have to say that the single most important language in the U.S. is Spanish. (For example, in the market for childcare, non-Spanish speaking buyers are at a definite disadvantage. I’m not saying this to be silly or rude. I’m saying it because it’s true.) I never understood why Texas public schools do not require the teaching of Spanish from first grade forward. I know, people in the U.S. tend to think that English is the only necessary language, unlike natives of other countries who learn multiple languages. However, even when Americans believe in learning languages, we tend not to be very practical.

Our public elementary school in Whitefish Bay teaches a foreign language beginning in first grade. I think this is wonderful. However, the language is French. I know, I know, a lot of people have learned French in school. But, other than maybe conversing with someone on your one trip to Paris and learning to speak in “this outrageous accent” a la Monty Python, what good is it doing you now? If we were staying here, we would be making a very big push to change this to Spanish or something else useful. We are now looking at two elementary schools in Champaign. They both teach Spanish and Chinese. These choices seem very smart to me. I took Latin in school, and even though I’ve never been able to use it in conversation, I think it was helpful as a building block language. The whole SAT thing and all. But I can’t vote for French. Hebrew, Sanskrit, any of these are fine. But not French.

So, what language do Co-op readers think should be taught in elementary schools (if any)?

]]> http://www.concurringopinions.com/archives/2006/02/whats_in_a_lang.html/feed 9 In Defense of the Megachurch http://www.concurringopinions.com/archives/2006/02/in_defense_of_t.html http://www.concurringopinions.com/archives/2006/02/in_defense_of_t.html#comments Wed, 08 Feb 2006 02:20:07 +0000 Christine Hurt http://www.solove.org/archives/2006/02/in-defense-of-the-megachurch.html I’ve noticed lately that there are some who use “megachurch” as a derogatory term. I noticed this when I blogged that Ken Lay will be calling as character witnesses two pastors of Houston megachurches. I also noticed that Bernard-Henri Levy, who fancies himself the next Tocqueville, used the term quite condescendingly when talking about how he researched his book on American culture. Coretta Scott King’s memorial service was held at a megachurch in suburban Atlanta, much to the annoyance of some onlookers. Why do some people distrust megachurches? I don’t. I believe that megachurches serve a very important purpose in modern life, and what follows is a defense of the trend from someone quite outside mainstream Protestantism.

I grew up [...]]]> I’ve noticed lately that there are some who use “megachurch” as a derogatory term. I noticed this when I blogged that Ken Lay will be calling as character witnesses two pastors of Houston megachurches. I also noticed that Bernard-Henri Levy, who fancies himself the next Tocqueville, used the term quite condescendingly when talking about how he researched his book on American culture. Coretta Scott King’s memorial service was held at a megachurch in suburban Atlanta, much to the annoyance of some onlookers. Why do some people distrust megachurches? I don’t. I believe that megachurches serve a very important purpose in modern life, and what follows is a defense of the trend from someone quite outside mainstream Protestantism.


I grew up in the RLDS church (now Community of Christ), which meant that I went to church and grew up with about 50 other people. I knew who my people were. I went to camp with them, played Pictionary with them, and I went to college with them. We could spot each other in any town, anywhere. (I believe this phenomenon is much more widespread with members of the LDS church, but existed also within the RLDS church.) Then, I married a Protestant and we started our 10-year tour of non-RLDS churches. Away from family and church tribe in a big city, I sort of felt untethered. I had no people. Then we started attending one of the smaller megachurches in Houston, and I realized that there was a way to recreate your village, your tribe, in a megachurch.

In a megachurch, you don’t just go to services and then go home. But, everyone has a very busy life and schedule, so the urge to commute in and out is practical. But what if your busy life took place at the church campus? Maybe your kids go to school there (some churches have preschools through high school). So, you drop off your kids and you’re at the church. Maybe your church has a great work-out facility. And a basketball league. And a book group, coffee shop, prayer group, Bible study, 12-step program, yoga class, etc. If you didn’t have a job, you could stay all day. You can do double duty: drop kids off at swimming lessons and go to book group. If you are a stay-at-home mom, you may find that you’d like a part-time job at the preschool, parenting center, health club, or bookstore. Pretty soon, you have created a village within your 4-million resident city.

We had just started to get involved in our church in Houston when we moved to Milwaukee. Milwaukee is a little light on the megachurch trend, being heavily Catholic and Lutheran. However, we have recreated this village in an unlikely place (for us), but in a place intended for that purpose: Jewish Community Centers. JCCs around the country have been doing the same things as megachurches for a really long time. Here, under one roof, let’s put all the activities of life so that people can come and stay and be with their village. Our youngest goes to preschool at the JCC, I work out there, the kids swim there and take art classes, I go to Mom’s Night Out, and the list is endless. After some remodeling is done, there will be a Starbuck’s and a manicurist. If we weren’t moving, I might quit my job and just hang out at the JCC all day. That’s the point.

Colleges have been trying to create a “home away from home” since their creation. In today’s mobile society, adults and their families are in the same position as college freshmen. They want to find a place to hang out and be with people who accept them for who they are and who understand them. Medium-sized, stand-alone churches are constantly striving to “create community” in a world where everyone is busy and disconnected from others in the pew. I think the megachurches (and JCCs before them) are on to something.

]]> http://www.concurringopinions.com/archives/2006/02/in_defense_of_t.html/feed 5 Apple, iPods, Network Effects & Interoperability http://www.concurringopinions.com/archives/2006/02/apple_ipods_net.html http://www.concurringopinions.com/archives/2006/02/apple_ipods_net.html#comments Tue, 07 Feb 2006 00:09:30 +0000 Christine Hurt http://www.solove.org/archives/2006/02/apple-ipods-network-effects-interoperability.html I’ve enjoyed reading Dave Hoffman’s post on the iPod phenomenon and Josh Wright’s rejoinder. I wasn’t too tempted to jump in until Frank (in the comments) blamed the iPod’s success on network effects. Interestingly, Apple has long been the victim of network effects in the personal computer sector. Although I had a Mac computer in 1988, I soon had to switch to IBM clones in order to be able to communicate with co-workers, clients, and courts. By making a product with hardware and software that was not interoperable, even though its product was arguably superior, Apple lost market share to the makers of cheaper computers that all used interoperable operating systems and software. Now, Microsoft Word tries with each new [...]]]> I’ve enjoyed reading Dave Hoffman’s post on the iPod phenomenon and Josh Wright’s rejoinder. I wasn’t too tempted to jump in until Frank (in the comments) blamed the iPod’s success on network effects. Interestingly, Apple has long been the victim of network effects in the personal computer sector. Although I had a Mac computer in 1988, I soon had to switch to IBM clones in order to be able to communicate with co-workers, clients, and courts. By making a product with hardware and software that was not interoperable, even though its product was arguably superior, Apple lost market share to the makers of cheaper computers that all used interoperable operating systems and software. Now, Microsoft Word tries with each new version to come closer to what MacWrite achieved in the 80s and Apple tries to rebound in a world where many people have two computers and technology has allowed some material to go between the two systems.

So, I am interested in the madness behind duplicating this strategy in the mp3 industry of creating a product that stands out but stands alone. One can go to any electronics store and buy a cheaper mp3 player that will use MusicMatch, or one can buy the much more expensive iPod that requires the use of iTunes (unless you have access to someone with a computer science degree). First, why would Apple go down this road again? Second, why is this scenario working better this time? The only difference I can see is the point that Dave makes — mp3 players, while pricey, are almost disposable. Perhaps network effects are not going to favor the interoperable here over the superior first-mover because the initial outlay is not as substantial. If I’m buying an expensive computer, I want to be able to use it for awhile, communicate with others and possibly resell it on the open market, but if I’m just buying something that lasts a year, I’ll buy the cool one. Any other explanations? (Yes, I have an iPod, but our other $150 mp3 player broke twice in one year also.)

]]> http://www.concurringopinions.com/archives/2006/02/apple_ipods_net.html/feed 4 Good Morning! http://www.concurringopinions.com/archives/2006/02/good_morning.html http://www.concurringopinions.com/archives/2006/02/good_morning.html#comments Mon, 06 Feb 2006 16:33:41 +0000 Christine Hurt http://www.solove.org/archives/2006/02/good-morning.html First of all, thanks to Dan, Dave & Kaimi for inviting me to visit for a short while. I gave Dan a picture that featured my whole family (I’m the female in the green shirt) because Kate Litvak once told me that I should rent out my adorable children to political candidates. The mid-term elections are coming up, so would-be Senators or Govs (no Reps, please) can feel free to explore the possibilities. Have seersucker short pants, will travel.

My blog home is Conglomerate, and I post over there on things corporate and things not-so corporate with Gordon Smith and Vic Fleischer. This week, we have Lisa Fairfax taking our blog for a spin, so go over and check it out. [...]]]> First of all, thanks to Dan, Dave & Kaimi for inviting me to visit for a short while. I gave Dan a picture that featured my whole family (I’m the female in the green shirt) because Kate Litvak once told me that I should rent out my adorable children to political candidates. The mid-term elections are coming up, so would-be Senators or Govs (no Reps, please) can feel free to explore the possibilities. Have seersucker short pants, will travel.

My blog home is Conglomerate, and I post over there on things corporate and things not-so corporate with Gordon Smith and Vic Fleischer. This week, we have Lisa Fairfax taking our blog for a spin, so go over and check it out. The main corporate topic that has my attention this month is the Enron trial in Houston, which is just starting Week #2 this morning. I will keep all of my Enron thoughts over at the Glom, but as you can see from last week (here, here and here), my thoughts runneth over. That being said, I’m looking forward to stretching my legs over here and blogging a little off-topic for a change. I teach a couple of classes today at my day job at Marquette, but I’ll be back to chat a little later.

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