I am not on Twitter, I am not on Myspace, and I do not dabble in fiction or poetry or haiku or similar literary efforts.

I am telling you this because there is more than one Elizabeth Nowicki in the world, and I was recently confused with another Elizabeth Nowicki. Indeed, at least one of the other women named Elizabeth Nowicki has the exact same middle initial (“A.”), and another one is [...]]]> My name is Elizabeth Nowicki, and I am currently a visiting faculty member at Boston University School of Law. I teach law school for a living, I am a lawyer (admitted to practice in New York), I opine on matters related to law and business, and I write lawyerly articles and blog posts.

I am not on Twitter, I am not on Myspace, and I do not dabble in fiction or poetry or haiku or similar literary efforts.

I am telling you this because there is more than one Elizabeth Nowicki in the world, and I was recently confused with another Elizabeth Nowicki. Indeed, at least one of the other women named Elizabeth Nowicki has the exact same middle initial (“A.”), and another one is a faculty member elsewhere (education professor). Go figure.

To avoid a situation like Frank Pasquale’s, or, worse, like Tim Wood’s, I thought I would post this disclaimer: If you get a Twitter message from Elizabeth Nowicki, it is not from me. If you find an “Elizabeth Nowicki” Myspace page, it is not mine. If you read a poem or short story penned by Elizabeth Nowicki, I am not the author. Instead, you can find me on SSRN, Linkedin, and various other law-related sites. (Please feel free to add me to your Linkedin contacts.)

And, so, with that cleared up, I am done here at Concurring Opinions, as this is the final day of my stint. I am grateful to Dan Solove and his colleagues at Concurring Opinions for allowing me the honor of blogging here. This blog has a huge readership, and it is known for good blogging. Many thanks to the gracious readers for humoring me. Special thanks to A.J. Sutter.

As happened last time I blogged here, I did not blog about every topic I had intended to discuss, so I will return to my normal blog home, at truthonthemarket.com, and hopefully finish my blogging “to do” list there.

Again, many thanks to Dan Solove and the Concurring Opinions team.

Ahoy hoy,
Elizabeth Nowicki
P.S. I appreciate the fact that Ahoy hoy is normally used as a greeting.

I have not really used a teacher’s manual over the years, in part because it was not an option when I started teaching years ago as I started teaching with a casebook that did not have a teacher’s manual. Later, when I began using books that did have teacher’s manuals, I did not always agree with the manual or the suggestions made therein, so I never really consulted the manuals.

That said, I will be working with a colleague on his teacher’s manual, so I am curious about what [...]]]> Textbooks and casebooks often have accompanying teacher’s manuals. These manuals range from limited, rambling copies of the textbook author’s classroom notes to detailed discussions of the book’s materials and related course structuring issues and classroom questions.

I have not really used a teacher’s manual over the years, in part because it was not an option when I started teaching years ago as I started teaching with a casebook that did not have a teacher’s manual. Later, when I began using books that did have teacher’s manuals, I did not always agree with the manual or the suggestions made therein, so I never really consulted the manuals.

That said, I will be working with a colleague on his teacher’s manual, so I am curious about what other professors find useful in a teacher’s manual. My impression is that a teacher’s manual should be geared toward:
(a) the new teacher who has never taught anything before,
(b) the teacher who is picking up a certain class to fill a curricular need, outside her/his area of primary expertise, or
(c) the teacher who needs help with the basics of a certain limited aspect of his course (such as tax in a mergers & acquisitions class).

Am I correct on the sort of faculty who tend to extensively use a teacher’s manual or are their teachers out there who do not fit the above parameters who find teaching manuals useful?

Perhaps it is best to ask professors who are reading this post: What would the ideal teacher’s manual include, and would an outstanding teacher’s manual sway you in favor of adopting a particular book for your class?

(Does this blog have a “poll” function, and should I know how to use it?)

This baffles me. Surely everyone who blogs using Google or who blogs through an internet [...]]]> The recent “Skanks in New York” court case, which resulted in a New York state court ordering Google to provide identifying information about a blogger who posted offensive attacks on a model, has led to various privacy wonks, including our own Dan Solove, raising concerns about forcing Google to reveal the identity of an anonymous blogger. It appears that some people worry that there is a First Amendment issue raised when asking Google to reveal the identity of an anonymous blogger or some people worry that it is a violation of privacy for Google or internet service providers to reveal the identity of people who are anonymously blogging through there service.

This baffles me. Surely everyone who blogs using Google or who blogs through an internet service provider is or should be well aware that the provider of either the blog service or the internet service can figure out – and share – their identity. I cannot fathom the notion that anyone who anonymously blogs or uses the internet believes that their anonymity is guaranteed. Moreover, even if an anonymous poster does not realize that his/her identity is not guaranteed, how can there be a First Amendment issue or a privacy isuse if Google – a company, not a government entity, who has never promised to keep your identity a secret – reveals your identity?

If someone wants to say something with more anonymity than can be assured through the internet, write a letter and mail it in an unmarked envelope!

The upshot of Stein’s column seems to be that cheating in various circumstances should be acknowledged as acceptable. Stein starts his “Cheating Rocks” column by discussing the (misplaced, in his view) public outrage against steroid use by athletes, and Stein seems to suggest that steroids and other “cheating” tactics in sports should not be scorned, since they enhance performance which makes sports more interesting. While I do not agree with that position, I imagine Stein might have been offering it partially tongue-in-cheek.

What was not tongue-in-cheek, however, was Stein’s later [...]]]> I was troubled to read Joel Stein’s column, captioned “Cheating Rocks,” in the August 17 issue of Time. (The online version of the article has the heading “Cheating: It’s All-American — And It’s Great!”)

The upshot of Stein’s column seems to be that cheating in various circumstances should be acknowledged as acceptable. Stein starts his “Cheating Rocks” column by discussing the (misplaced, in his view) public outrage against steroid use by athletes, and Stein seems to suggest that steroids and other “cheating” tactics in sports should not be scorned, since they enhance performance which makes sports more interesting. While I do not agree with that position, I imagine Stein might have been offering it partially tongue-in-cheek.

What was not tongue-in-cheek, however, was Stein’s later admission in the column that he assisted his father years ago with what is likely unlawful tax fraud of some ilk, and Stein indicates that he continues to think deceit and cheating is acceptable.. Specifically, Stein says in his column:
I have long been an advocate of cheating. It started when my dad fooled an IRS auditor by comparing different vintages of phone book, finding and out-of-business furrier and getting me to use my Apple IIe to create a fake receipt to prove a false fur-coat donation.

Stein admits to helping to deceive the IRS, and Stein offers no regrets about it. Stein then writes – seemingly with approval – about high school cheating. This all gives me pause.

To be clear, my concern is not about Stein himself or Stein’s ethics. I am sure Stein is a lovely person, and I personally have no stake in how he views cheating or dishonesty. Rather, I have concerns about the fact that no senior person at Time Magazine put the kibosh on Stein’s “Cheating Rocks” column. Does Time Magazine really want its writers to publicly admit to being comfortable with being dishonest? Surely that undermines reader confidence in the material being published.

I am not suggesting that Stein himself fabricates things in his writing. My impression is quite the opposite – Stein seems to be a well-respected and well-published writer who does stellar work. What I am suggesting instead is that I am perplexed by the fact that the higher-ups at Time did not raise an eyebrow at a column in which a Time writer appears to admit comfort with dishonesty and lying.

Maybe I am a bit sensitive about issues of dishonesty and cheating, given that I research and write on corporate and attorney ethics. Maybe I am jaded, having consulted on too many cases where comfort with fudging and a bit of cheating turned into full-blown options backdating.

Whatever the reason, the column did not sit well with me. Even if we all agree that the column was partially in jest, it still would have given me pause, were I a Time executive.

As a final note, I found it ironic that, two pages before the “Cheating Rocks” column, there was an article about Bernie Madoff (the article is actually about books written about Madoff). The article notes that “Madoff screwed his investors.” The word “screwed” is so overly judgmental, given that cheating seems not to be a big deal to folks at Time….

I have also contemplated banning laptops in the classroom, for two main reasons. First, my experience leads me to believe that students who are [...]]]> In the December 2007 Journal of Legal Education, Kevin Yamamoto published his aptly-titled piece (”Banning Laptops in the Classroom: Is It Worth The Hassles?,” describing his experiment with banning laptops in his upper-level classes. I suggest that all faculty members who have ever wondered whether laptops do more harm than good for the classroom experience read this article. I found it eye-opening. Ultimately, after careful analysis, Professor Yamamoto concluded that banning laptops in his tax class was a positive and beneficial exercise that a majority of his students supported, such that he planned to continue banning laptops.

I have also contemplated banning laptops in the classroom, for two main reasons. First, my experience leads me to believe that students who are transcribing classroom discussions are less engaged than students who are listening to the discussion and jotting down notes by hand. As a practical matter, it is very difficult to type everything a professor says while simultaneously processing what the professor is saying. Second, I am concerned that students who are surfing the ‘net or using their computers for purposes unrelated to the class are distracting those around them. When I have been asked to evaluate the teaching of my junior colleagues, I sit in the back of the classroom, and I find students who are overtly surfing the ‘net to be horribly distracting, with the flashing pages and such.

In addition, it is not a bad idea for students to maintain some proficiency with taking notes by hand. The reality is that lawyers in practice tend not to use laptops when taking notes at meetings with clients or deal conferences or depositions. My own recent experience as an expert witness confirms this. If we are brainstorming or preparing for testimony or some such, we all work with yellow pads. When I meet with clients, I sit face to face with them and take notes on paper, as opposed to opening my laptop, putting it between us, and tapping away with minimal eye contact.

That said, I have not yet gone so far as to ban laptops in class because I am concerned that there might be legitimate overriding reasons for using computers of which I am not aware. (Professor Yamamoto’s article works through some of the objections to banning laptops, which makes his article particularly good, but I imagine there might be more than he presents.)

It is ironic that we have come so far in this age of technology, yet sometimes the technology itself has downsides that outweigh the upsides. Perhaps other faculty members who have successfully banned laptops in the classroom will post their comments on this thread.

Professor Overby was a nationally-recognized expert on commercial law, with a particular expertise in banking, and she was a leading voice on the recent mortgage meltdown. She was an outstanding scholar, she was a much loved and respected teacher, and she was a sage on issues of faculty governance. She was the consummate academic, and her love for her job was reflected in the quality of her work.

In addition, she was just a fabulous person. Indeed, while Brooke had a stellar professional resume, she also had an awesome personal resume. For example, Brooke was fearless traveler who regularly crossed the globe. [...]]]> Tulane Law School Professor Brooke Overby passed away unexpectedly Wednesday night, August 5, 2009. It is a tragic loss.

Professor Overby was a nationally-recognized expert on commercial law, with a particular expertise in banking, and she was a leading voice on the recent mortgage meltdown. She was an outstanding scholar, she was a much loved and respected teacher, and she was a sage on issues of faculty governance. She was the consummate academic, and her love for her job was reflected in the quality of her work.

In addition, she was just a fabulous person. Indeed, while Brooke had a stellar professional resume, she also had an awesome personal resume. For example, Brooke was fearless traveler who regularly crossed the globe. She often sent me e-mails from locations I could not immediately place on the map. Average travelers go to Paris; Brooke went to Tunisia. Average travelers stay in hotels; Brooke camped in the middle of the wilds. And Brooke was not afraid to squeeze fun into narrow windows. She had no qualms about taking a five day trip of which three days were spent flying to her destination and back. Brooke embraced the “carpe diem” theory of world travel.

Brooke and I became good friends in part due to our bonding while serving together as Tulane Law School representatives to the University Faculty Senate. I never thought I would say “I am grateful for the time I had on University Faculty Senate,” but now I am saying exactly that.

Brooke was young, both in age and spirit, and I am stunned that she is gone. Her passing is a loss for the Law School, for the University, for the academic community, for her family, and for those of us who were lucky enough to consider her a friend. A colleague accurately characterized those of us who knew Brooke well as “bereft.” Bereft.

If you knew Brooke, personally or professionally, and you would like to post in the comments or via e-mail to me your reflections about her, I will pass them on to her family.

Requiescat in pace, Brooke.

I no longer watch Judge Judy, but I have to say that I am not sure I would have gone public about even my former fondness for Judge Judy had Duke Law School Professor Kim Krawiec not first pulled the trigger and ‘fessed up here. (Professor Krawiec’s shocking admission [...]]]> For years, I harbored a secret: I watched Judge Judy on television. I would tape Judge Judy (4 p.m.-5 p.m., Monday through Friday), and I would watch the tapes while I cooked dinner. The t.v. show was an amusing diversion with just enough intellectual demand to engage my brain while still leaving free the vast majority of my firepower to grapple with whether I could substitute powdered garlic for fresh without sacrificing taste.

I no longer watch Judge Judy, but I have to say that I am not sure I would have gone public about even my former fondness for Judge Judy had Duke Law School Professor Kim Krawiec not first pulled the trigger and ‘fessed up here. (Professor Krawiec’s shocking admission is in the first comment listed on the web page.)

The reality is that I, a former clerk for two very well regarded federal judges, always felt a bit embarassed about watching a t.v. show where the judge would regularly yell at the litigants “Speaking. I am speaking” when litigants interrupted her. Yet the show was so funny that I could not help myself. Seriously, does everyone in the world except me purchase cars sight unseen with “As Is” purchase contracts without first having the cars checked out by a mechanic?

So now I am wondering – does Professor Steve Bainbridge watch Judge Judy? How ‘bout Blog Emperor Paul Caron? Professor Gates? Perhaps now is the time for cathartic admissions by everyone. The truth shall set us free! (For the record, Professor Kate Litvak does not watch Judge Judy. I know this for certain because I recall Kate telling me once that she does not watch television. You heard it here first.)

Since we are on the topic of shameful television, perhaps I should ask the more important question: Who among us is intending to watch Jon & Kate Plus 8 on television tonight when the new season resumes? (While I am unfortunately familiar with the show as I watched re-runs while packing for my visiting stint at Boston University, I can say for sure that I have no plans to watch the show ever again.)

For those of you who have been living under a rock, Jon & Kate Plus 8 is a hugely (inexplicably, in my view) popular reality t.v. show, chronicling the lives of two thirty-ish parents (Jon and Kate), their twins, and their adorable sextuplets. While the show was initially an innocent, family friendly program, the Jon & Kate show took a turn several months ago, as Jon and Kate battled rumors of drunken scandals, a sham marriage, college-aged paramours, outrageous filming schedules, etc.

For much of May and June, even the mainstream media was regularly covering breaking Jon & Kate news, and, in late June (I think), the sad truth that Jon and Kate were filing for divorce finally surfaced. While I would not normally pay attention to anyone’s divorce, the lead-up and public speculation surrounding this reality t.v. debacle was such that I have to admit reading the articles recently detailing how the situation resolved. (Kate filed for divorce; Jon is dating the daughter of Kate’s plastic surgeon.)

I rue the portion of my short term memory that I wasted on Jon & Kate Plus 8 while packing for Boston, but I cannot help ask: Kim Krawiec, do you have a view on Jon & Kate Plus 8? Do you have a view on the child labor issues raised when children film reality t.v. for many, many hours per week? If it seems that a reality show is tearing apart the marriage of the parents being filmed, should the television network halt production, even if they have a contract binding the parents to continue filming?

Tech experts like Grimmelman can correct me if I am wrong, but I am pretty sure you cannot un-ring the bell of releasing a video of a semi-nude Erin Andrews on the internet. Once a video like that is released, presumably other perverts will download it and save it locally, such that, even if the video is ultimately removed from the internet, it will likely still exist somewhere. Poor Ms. Andrews.

One of my first thoughts as an academic after reading about the situation was whether [...]]]> I read with horror the story about how some deranged pervert videotaped ESPN’s Erin Andrews through a peephole in her hotel room. The video, which included shots of a naked Andrews, was then widely released on the internet.

Tech experts like Grimmelman can correct me if I am wrong, but I am pretty sure you cannot un-ring the bell of releasing a video of a semi-nude Erin Andrews on the internet. Once a video like that is released, presumably other perverts will download it and save it locally, such that, even if the video is ultimately removed from the internet, it will likely still exist somewhere. Poor Ms. Andrews.

One of my first thoughts as an academic after reading about the situation was whether the hotel itself could face liability for allowing this to happen. If it was an employer who did the filming, does the hotel face liability? If a hotel employee “tipped” someone else about the fact that Andrews was in the hotel and gave Andrews’s hotel room number to someone else, who then booked the room adjoining that of Ms. Andrews’s in order to film her, would the hotel face liability? If the hotel does not have rules for employees regarding guest privacy, does that change that change the analysis?

These questions are regularly raised in the media, and I am often asked whether I buy into the “gloom and doom” stories told by others.  I do not.

The reality is that a depressed economy and a tight capital market do not automatically bode ill for the long term deal market.  A depressed market can often present significant buying opportunities for hungry acquirors.  Buyers who are looking for targets to acquire [...]]]> Big deals – mergers, acquisitions, takeovers – are not being announced at a significant rate of late.  This has prompted some people to ask whether the deal market is dead or dying.  Others ask what the future holds for private equity.  Still others wonder whether we have seen the end of M&A as we knew it.

These questions are regularly raised in the media, and I am often asked whether I buy into the “gloom and doom” stories told by others.  I do not.

The reality is that a depressed economy and a tight capital market do not automatically bode ill for the long term deal market.  A depressed market can often present significant buying opportunities for hungry acquirors.  Buyers who are looking for targets to acquire can find bargains, with some targets teetering on the verge of bankruptcy, for example, and boards of the targets wanting to avoid dooming their shareholders to such a fate.  (As we know, shareholders of a company that goes bankrupt usually lose the totality of their investment.  Contrariwise, if an almost bankrupt company is acquired at a bargain price prior to bankruptcy, the target shareholders usually get at least something in the buyout.)

The caveat is that buyers tend to abhor an uncertain market.  If it is unclear whether we are close to the bottom of the market, or if the market is materially volatile, buyers tend to wait things out, to avoid overpaying or to avoid using stock in the acquisition in an unfavorable manner or to avoid taking on needlessly expensive debt to fund the acquisition.

Naysayers might then ask how deals can possibly get funded in this tight credit market.  Even assuming there are buyers who are gutsy enough to make bids for targets in this tumultuous economy, some question whether struggling banks will really fund deals in this “credit crisis.”

There are two responses to this funding issue:
First, some deals are not funded with borrowed cash.  In strategic deals, for example, where Widget Producing Company (“WPC”) acquires Widget Development Company (“WDC”), the deal is often funded with the stock of the acquiror.  WPC pays for its acquisition of WDC with WPC stock.  Instead of WPC writing a check to WDC to acquire WDC, WPC compiles a big pile of WPC stock to turn over to WDC and its shareholders.
Second, the fact that the credit market is tight and some banks are struggling does not mean that banks are not lending.  Quite the contrary – banks make money by lending.  When banks are struggling, banks will want to lend money for conservative, qualified deals in order to MAKE money from interest and fees.  That is not to say that the turbulent market and rough banking situation has not impacted the deal market – it has.  Banks are far less willing now to fund every possible deal than they were a few years ago.  Banks are more stringently judging the quality and risk-exposure of the deals that are presented for funding.  Five years ago, lenders asked fewer questions and asked for much less in terms of guarantees before lending money to finance acquisitions.  Now, however, bankers (and their lawyers) want to know more about the deals and are demanding more in terms of guarantees before agreeing to lend.

Indeed, the issue of guarantees is a thorny one in the private equity market.  Big private equity firms are usually founded by a few wealthy players or their affiliated entities, who then raise capital from other investors.  When these private equity firms make an acquisition of another company, the PE firm usually first creates a “shell” acquisition company to make the actual acquisition.  So if Nowicki Private Equity Firm (”NPEF”) wants to acquire Wal-Mart, NPEF would first create a shell company that is wholly owned by NPEF, and the shell company would then be the company to borrow money and itself acquire Wal-Mart.  By creating a shell company to actually acquire Wal-Mart, NPEF insulates itself to a degree from liability for borrowing money and engaging in the acquisition.  If the shell backs out of the acquisition or fails to honor the loan, recourse to NPEF would be limited (historically).  I say “historically” because this is one aspect of the deal market that has changed a bit in the recent credit crunch.  These days, if a private equity firm wants a bank or third party to fund the private equity firm’s shell to conduct an acquisition, lenders are asking for more demanding guarantees from the private equity firm itself.  Lenders are realizing that they need an entity with money/assets – as opposed to a shell – to be fully on the hook for the deal.

So, back to my point about lending:  Money is there, banks and others are lending, but they are being more conservative in evaluating the deals that they will fund, and they are being more demanding in terms of the guarantees that they require.  This means that fewer deals are getting funded, and this means, therefore, that fewer deals are getting done.

I do not see this as a negative, however, nor do I see this as presenting a gloom and doom scenario indicating that the deal markets are dead if not mortally wounded.  Rather, there were deals done in 2005 or 2006, for example, that never should have been done.  Lenders offered funding that they never should have offered, and they agreed to terms that were not particularly compelling.  A contraction in the deal market is perfectly appropriate, and the fact that a tight credit market is allowing (if not forcing) banks and other lenders to think harder about how they lend money and to whom is a very good thing, in my view.

While it is curious to have so few big deals announced each week in the WSJ or on Bloomberg, the reality is that this slow-down and the resultant reexamination of how deals are funded makes sense.  I imagine the past 15 months and the next 9 months will be significant in terms of molding the new parameters for the deal market.

To that end, I am co-teaching a Deals class at Boston University this spring, and it will be interesting to see how, if at all, the course changes in response to the changing deals market.  (The class involves a good number of guest teachers who are practitioners at various Boston firms, so the course will necessarily morph a bit in response to the current market for deals.)

When the bill was initially proposed, I spoke about what the bill might mean [...]]]> Several weeks ago, New York Senator Chuck Schumer introduced the Shareholder Bill of Rights Act of 2009.  The bill is just another shot across the bow in the battle to force corporate leadership to consistently act in a way befitting the economic and fiduciary responsibility they bear.  The bill also fuels the debate raging over federal preemption of state corporate law and reopens state/federal wounds that have been poorly healing since the Sarbanes-Oxley Act was adopted in 2002.  (The Shareholder Bill of Rights Act of 2009 was nicely summarized here by Professor Larry Cunningham, and Professor Larry Mitchell, also of George Washington Law School, published a recent opinion piece criticizing the bill.)

When the bill was initially proposed, I spoke about what the bill might mean in the context of the larger federalism discussion as it pertains to securities law and corporate governance.  In my view, the state versus federal power issue raised by the bill is the really thorny issue, as opposed to any one provision of the bill. 

To wit, corporate law and corporate governance regulation have historically been the province of the individual states.  The questions of what boards must do and what corporations can do, for example, have historically been answered by resort to state law (common and statutory) as opposed to federal law.  This allocation of authority has served various states well.  Specifically, if a state is viewed as being a favorable place for corporations in terms of law or jurists, the state will attract many corporations, who will pay to the state incorporation fees and annual taxes. (Delaware, for example, has been well served by cultivating for itself a reputation as a state with prowess in corporate matters, both in terms of legislation and litigation.  Delaware has drawn huge amounts of money in incorporation fees and franchise taxes from corporations.)

The notion, then, that Schumer’s bill could usurp some state authority over meaningful corporate law and corporate regulation issues does not sit well with all state legislators, jurists, and lawyers.  These parties recognize that the bill could set a bad precedent for allocating power over corporate regulation and corporate law, which, in turn, could reduce the role or at least the perception of the role individual states play in corporate regulation.  This, in turn, could reduce the prominence of any given state in the market for corporate incorporation.

At the same time, Sonia Sotomayor factors into this discussion because it is entirely possible that issues of federal jurisdiction (including the SEC’s jurisdiction) will be hot topics for the Supreme Court in the next ten years.  Sotomayor has proven herself to be an able and thoughtful jurist on issues of business law, which are issues that often stymie the current Court.  If jurisdictional questions and questions about the allocation of power come before the Supreme Court and Sotomayor is on the bench, my sense is that her reasoned judgment – having been honed in jurisdictions (SDNY and 2d Cir.) that deal regularly with big-ticket business issues – will hold weight with her colleagues.

So, while we could have a discussion about the individual provisions of the Shareholder Bill of Rights Act of 2009, I think it is even more important to be discussing the future of the state v.s. federal divide in corporate/securities law, and the role, if any, Sotomayor might have in shaping that future.  There is big money at stake for all dogs in this fight, and it will be interesting to see how this unfolds.

Therefore, when Bridget Crawford, another of the main posters on feministlawprofessors.com, asked if I wanted to be named on their list of “self-identified feminist law professors,” I was thrilled to be asked. The question was raised, however: What does the label “feminist law professor” mean? If I was going to self-identify as a “feminist law professor,” I wanted to be sure I fit within the definition.

The reality is that those who know me [...]]]> I have long been a fan of the blog “Feministlawprofessors.com.” The blog does a stellar job of raising and discussing various issues, the content of the blog is sound and reasoned, and Ann Bartow, the founder of the website, has graciously cross-posted some of my posts on prostitution over the past couple years.

Therefore, when Bridget Crawford, another of the main posters on feministlawprofessors.com, asked if I wanted to be named on their list of “self-identified feminist law professors,” I was thrilled to be asked. The question was raised, however: What does the label “feminist law professor” mean? If I was going to self-identify as a “feminist law professor,” I wanted to be sure I fit within the definition.

The reality is that those who know me well might not immediately fit me within the category of “feminist law professor,” if we consider only the older stereotypes about what a feminist “looks like.” To wit, I have never taught “feminist legal theory” (though I could and would, happily), I am Catholic, I am fairly conservative, I have never been a member of NOW, I have been a member of the Federalist Society, I am not offended by some things that are clearly “gendered” (such as men opening doors for women), and I have never burned a bra.

That said, I support equality for all, and I engage in activities intended to support this goal. Indeed, one of the many things that troubles me about the legal profession is the fact that women make up roughly 50% of all law students but only about 19% of all law firm partners and less than 20% of all Supreme Court justices.

But does supporting equality for all make me a feminist law professor? If so, wouldn’t – in theory – most law professors be “feminist law professors?”

I realize that this blog post should be many paragraphs longer, to address the issues raised by my questions above. But even with a blog post five times the length of this one, I doubt I could do the questions justice. So I will end simply by observing that, while I am happy to be labeled a “feminist law professor,” it is interesting to me that the phrase is not easily defined.

Particularly when commenting on a blog in the legal academy, where presumably people are acting in good faith, it is curious not to sign one’s real name to a negative or critical post. If one has the courage to make a negative comment, surely one should have the courage to sign one’s own name to it.

Some blogs have a policy whereby comments not signed will [...]]]> Insulting or vitriolic comments made in response to a provocative blog post in the legal academy are often made anonymously. Why is that? These comments are not whistleblowing comments or comments of the sort that should require anonymity. It seems to me that the only reason to avoid signing one’s name to an insulting comment is cowardice.

Particularly when commenting on a blog in the legal academy, where presumably people are acting in good faith, it is curious not to sign one’s real name to a negative or critical post. If one has the courage to make a negative comment, surely one should have the courage to sign one’s own name to it.

Some blogs have a policy whereby comments not signed will be deleted. I have never used that policy on Truthonthemarket.com. But I will admit that I am always perplexed when faced with an insulting comment that is not signed by someone with a verifiable name. Why make the comment without actually owning it?

When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a [...]]]> Law students sometimes use the internet to widely disseminate racist or gendered comments about women and minority faculty members. For example, I have heard about law students using teaching evaluation forms or Facebook or Myspace to make comments to the effect that that a female faculty member is a bitch with PMS or that an African-American faculty member is a [insert racial slur]. Indeed, the Auto-Admit debacle from a couple years back revealed that law students or potential law students seem to at least sometimes use the internet to convey vicious gendered and/or racist comments.

When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a female faculty member negatively on a gendered basis or who is characterizing minority faculty members by way of stereotyping and ugly slurs is raising questions about his/her character and fitness to practice law. In the same way that a lawyer who embezzles is not fit to practice, one might argue that a law student who dismisses individuals with ugly characterizations based only on race or gender might also be of questionable character for purposes of practicing law. Yet not everyone agrees with this assessment, and, with respect to law students using the internet for such attacks, there has not been a lot of discussion about the character and fitness issues raised.

Therefore, the AALS Section on Women in Legal Education will be presenting a panel at the AALS Annual Meeting in New Orleans examining the issues raised – including the character and fitness issues – when law students, lawyers, judges, or potential law students use the internet to make gendered or racist comments. If a student posts on her Myspace page that Professor John Doe, who teaches Gender and Race and the Law, is an “ugly [insert racial slur] who only has a job due to affirmative action,” does that pose a character and fitness concern? Should we care?

There is a call for papers for this panel presentation, and anyone interested in submitting a paper or paper proposal is welcome to e-mail me for the details.

My hope is to blog about at least the following topics while I am here: 1. Prostitution 2. Other People Who Have My Exact Name (Elizabeth A. Nowicki) 3. Corporate Governance, Shareholder Activism, and Boards of Directors 4. Delaware Jurists 5. New Orleans 6. Women in Legal Education

Note, however, that you should not expect me to blog with the speed and volume of someone like Blog Emperor Paul Caron, because my long-harbored reservations about the potential impact of blogging make me a [...]]]> Many thanks to Dan and all the folks here at Concurring Opinions for again inviting me to guest blog. I cut my teeth guest blogging here and at TruthontheMarket.com (where I am still a regular guest blogger) three years ago, and it is nice to be asked back. Thank you.

My hope is to blog about at least the following topics while I am here:
1. Prostitution
2. Other People Who Have My Exact Name (Elizabeth A. Nowicki)
3. Corporate Governance, Shareholder Activism, and Boards of Directors
4. Delaware Jurists
5. New Orleans
6. Women in Legal Education

Note, however, that you should not expect me to blog with the speed and volume of someone like Blog Emperor Paul Caron, because my long-harbored reservations about the potential impact of blogging make me a bit of a slow poster. Since my first blogging days, I have worried about whether I could accurately convey in a blog post things like tenor, nuance, and jest, and my concern about this and other blogging issues (such as typos, grammar mistakes, being impolitic, failing to link to others, etc.) tends to slow me down. Given that the readership of this blog is huge, I am cautious about posting something that I have not vetted, edited, and re-written.

Similarly, I remember when another academic blogger posted on his blog about not securing a particular consulting project due to a position he had articulated on his blog. I do a bit of consulting, expert witness, and media work, so I try to be mindful about not committing on a blog to positions I might want to reconsider if I were asked to be an expert witness or to comment for the media. The notion that I might articulate a view on this blog that I might want to disavow 15 years from now makes me squeamish.

Moreover, as a general matter, I try to avoid even the potential for offending large constituencies in the legal or academic communities with something I have posted on a legal blog. For example, for several days, I have stewed over what, if anything, to post about the former Villanova Law School Dean and the prostitution situation. I caught the “news” about the prostitution situation right when it broke, so I could have beaten Caron for the title of “First Mainstream Legal Academic Blogger To Post On The Topic.” But my worry about posting something that might offend my friends at Villanova or members of the AALS Section on Women in Legal Education, of which I am currently the Chair, or colleagues in my religious community kept me standing down, gnashing my teeth, while Caron blogged the news. To be sure, I have blogged before about prostitution, multiple times, so it would be natural for me to chime in, but the notion that I could, with a single post, offend a huge range of people gives me pause. The internet should be used with care.

That said, the fastest post I ever drafted and posted was my post on the Supreme Court’s opinion in Stoneridge Investment Partners v. Scientific-Atlanta. I read the Supreme Court’s opinion and drafted my post in the two-hour window I had between classes on the day the opinion was issued, and I did not have time to re-read my post and labor over editing because I had to rush off to teach my second class. Yet the post has been one of my most well-received posts, and people seem to think it is at least decent. So I suppose I need to revisit whether my reservations about blogging, which prevent me from becoming a prolific poster, are actually based in fact. (Then again, the fact that Heidi Hurd’s sarcastic e-mails have led to likely unappreciated press solidifies my belief that releasing words across the internet is dangerous business indeed.)

Regardless, I look forward to posting here.

Allow me to leave with a few observations:

1. This blogging business is not easy (for me). Kudos to the bloggers here and all over the ‘net for churning out some valuable reading. Blogging is incredibly time-consuming, in order to do well (so I am told).

2. To that end, I apologize to those of you who replied [...]]]> Today ends my guest blogging stint here on concurringops., and I thank my hosts for having me. (I also thank Bill Sjostrom and his truthonthemarket posse for allowing me to cut my teeth guest-posting there. And, to that end, I thank Gordon Smith, Christine, and Vic for being the first to allow me to dip my toes in the blogging pool with Disney blogging.)

Allow me to leave with a few observations:

1. This blogging business is not easy (for me). Kudos to the bloggers here and all over the ‘net for churning out some valuable reading. Blogging is incredibly time-consuming, in order to do well (so I am told).

2. To that end, I apologize to those of you who replied to some of my threads but never received a personal response. I am very sorry – I appreciated all of the comments, and my inability to respond to everything has nothing to do with the substance or quality of the comments.

3. To *that* end, blogging strikes me as a lot like waitressing – waitressing was by far the hardest job I have ever had in my life. The average waitress is, at any given time, juggling about 18 different tasks, all of which are time pressured. Moreover, people *care* about what their waitress is doing, such that mistakes are noticed. You can’t just spill a tiramisu accidentally on a guest and walk away. (Ask me how I know.) One of the worst aspects of the waitressing job is going home at night and *dreaming* about waitressing and all of the things you did wrong that evening. “Oh, I forgot to refill that fellow’s Coke” and “Ohmygosh – that redheaded lady on Table 24 never got her extra dish of ranch dressing with her fries” and “I dropped the *whole* carafe of red wine – I can’t *believe* that I did that.”

It is for this reason that I knew I was in trouble when I started dreaming about blogging. Indeed, last weekend, I had a dream about a blogging conference, at which I met Orin Kerr. Mind you, I don’t know Orin Kerr, I have never spoken with him, I have never spoken about him, I have never e-mailed him, I would not know him if I crashed into him on the street, and he was never even on my radar screen until I started blogging. But now I have dreams about blogging conferences and prolific bloggers, and those sorts of odd-ball dreams just solidify my belief that I do not have the mental stamina to be a Bainbridge-esque blogger.

4. That said, if I can finish in the next couple of hours the paper I am currently grinding to finish, I might whip out one last concurringops post on “sex for money.” I have been sitting on this “sex for money” post for quite some time, because I am not quite sure what sort of a reception a “sex for money” post would get.

5. Speaking of which, I would like to thank God for giving me the strength to stay away from this train wreck. A younger Nowicki would have jumped into the fracas. This old and tired Nowicki finally knows enough to stay away from things like that and instead spend her time trying to analyze perhaps meaningless data.

6. For those of you who are still reading, you will be delighted to know that my next iteration of the “Nowicki Not-in-Good-Faith” manifesto will (a) have graphics (thanks to my good friend Benjamin Nelson) and (b) have a deconstructionist and Sartre discussion. To that end, I know very little about either Sartre or the deconstructionists, so, if you ever run out of things to think about, think about both of those things, and e-mail to me your thoughts (enowicki- at – richmond – dot- edu).

I will be there, and I hope to meet as many readers and bloggers as possible. To that end, Prawfs/Glom are organizing a happy hour for bloggers/readers.

I am lucky enough to be presenting a Director Liability paper on a Corp./Secs. panel on Thursday, at 8:15 a.m., and Jayne Barnard and Erica Beecher-Monas will also be presenting papers at that panel session (I have seen Jayne’s paper, and it is incredibly interesting – a bit of a profile on the secs. fraudster). Usha Rodrigues (such a superstar!) will be the discussant, Barbara Black will be the panel chair, and Joan Heminway is the organizer. [...]]]> I hope many of you are planning on attending the Law and Society Ass’n. Annual Meeting in Baltimore next week.

I will be there, and I hope to meet as many readers and bloggers as possible. To that end, Prawfs/Glom are organizing a happy hour for bloggers/readers.

I am lucky enough to be presenting a Director Liability paper on a Corp./Secs. panel on Thursday, at 8:15 a.m., and Jayne Barnard and Erica Beecher-Monas will also be presenting papers at that panel session (I have seen Jayne’s paper, and it is incredibly interesting – a bit of a profile on the secs. fraudster). Usha Rodrigues (such a superstar!) will be the discussant, Barbara Black will be the panel chair, and Joan Heminway is the organizer. I am anticipating a great session.

Though I am busily finishing my paper and preparing my presentation, a bigger, more pressing issue looms. To wit, should I run in the 5K Fred Dubow Memorial Fun Run on Sunday? I don’t suppose any readers/bloggers are planning to run?. . . . You see, it is one thing for me to be willing to put my academic thoughts out there and risk people saying “Nowicki has no idea what she is talking about.” It is entirely another thing to be willing to risk having people walk away from the conference saying “Not only are Nowicki’s ideas moronic, she is a painfully slow runner. So slow it hurts to watch.” To that end, who are the runners among us, and what sorts of times do you anticipate? . . .

I have calculated the annual percentage change in pay for the CEOs of ten large, publicly traded corporations. I am then comparing those annual percentage changes to the annual percentage changes in profits for those ten corporations, to see [...]]]> I have hit a . . . data analysis sticking point with some empirical work that I am doing, and I thought I’d toss the problem out there to see if any of you see something that I do not see. I am a bit embarrassed, however, to admit that I am having a problem analyzing my data, so please refrain from starting any of your comments with “Did you skip 12th grade calc., Nowicki?” or “when, if ever, have you taken a stats class?”

I have calculated the annual percentage change in pay for the CEOs of ten large, publicly traded corporations. I am then comparing those annual percentage changes to the annual percentage changes in profits for those ten corporations, to see if there is a relationship between percentage changes in pay and percentage changes in corporate profits (such as a 10% increase in annual profit being accompanied with a 10% increase in CEO pay).

My ratios of percentage change in pay as compared to percentage change in profit are not producing what I expected to get, however. I have taken my annual percentage changes in pay and divided them by my annual percentage change in profit (for each CEO, for each year).

I expected to be able to then say “A result of 1 or a number greater than 1 is a bad thing” (because it means that the percentage change in pay is GREATER than any percentage change in profit). But things get confusing when I have percentage decreases – I frequently end up with negative numbers that are sometimes indicative of a “good” relationship (a negative percentage change in CEO pay accompanied by a percentage increase in profit, for example) and sometimes indicative of a BAD relationship (a positive percentage pay change accompanied by a NEGATIVE percentage profit change).

Given that I have negative numbers that are sometimes indicating a “good” pay/profit relationship and sometimes indicating a “bad” pay/profit relationship, I am stymied. What am I not seeing? Why am I not able to say “a number greater than 1 is a BAD thing for shareholders in terms of the CEO pay/profit relationship and a number less than one is a good thing”?

As most of you might know, Judge Weinstein is famous for (among other things) facilitating the resolution of many major mass torts disputes, including those related to DES, Agent Orange, silicone breast implants, tobacco, and asbestos. Judge Weinstein is a wizard at managing the litigation of these sorts of cases, but he is equally masterful at assisting in the settlement process. When talking about some [...]]]> Every time I see in the WSJ a mention of the Vioxx litigation or the Bausch & Lomb eye solution situation or any similar recent potential mass tort situation, I think back to my clerkship with Judge Jack B. Weinstein, EDNY, and I call to mind his opining about the value of apologies in the mass torts context.

As most of you might know, Judge Weinstein is famous for (among other things) facilitating the resolution of many major mass torts disputes, including those related to DES, Agent Orange, silicone breast implants, tobacco, and asbestos. Judge Weinstein is a wizard at managing the litigation of these sorts of cases, but he is equally masterful at assisting in the settlement process. When talking about some of these cases and about mass torts generally, in speeches, law review articles, and opinions, the Judge has often alluded to value corporate-level apologies might have in the context of resolving mass tort litigation. Indeed, the Judge often references (seemingly favorably) the role corporate-level apologies have had in the Japanese legal realm. While I do not purport to speak for the Judge, my impression is that he thinks that apologizing – by corporate officials to persons injured by the use of the corporation’s product – is something that is perhaps considered too infrequently (either in the absolute sense or in facilitating settlements and/or less costly resolution of mass torts disputes).

As we all know, however, the notion of apologizing publicly for a mass tort situation raises the hair on the back of most corporate litigators’s necks. The job of a litigator, some might say, is to *clear* the corporate name, not impugn the corporation by suggesting that corporate officials take responsibility by apologizing. Indeed, back in my younger days, when everything was black and white, I might have taken exception to the Judge’s comment, when speaking about the ethical dilemmas lawyers face in mass tort litigation when counseling their corporate (tortfeasor) clients:

I do not pretend to have the answers, but I ask you to consider the possibility that the old rules promoting the ideal of the zealous, adversarial lawyer may be stretched beyond their limitations in the mass tort case. If that is so, some new ways must be found to light our way through this dark, uncharted territory.

Now that I am older and wiser, I am beginning to take the Judge’s words more to heart. Every time I read a WSJ article about the Vioxx litigation (for example), I think to myself “if I were a Merck director, what would I do? Would I seriously suggest to my colleagues that we consider apologizing and settling these cases? Would I advocate for continued litigation, even if I suspected that maybe we did drop the ball by not making heart complication disclosures as needed? What am I required to do, to do right by the shareholders while still being a moral person? Would I resign if I did not have the option to apologize on behalf of the corporation?” In hindsight, I see now that Judge Weinstein had been raising a compelling, complex, and critical question all of these years: When *should* corporate counsel suggest that a corporate client essentially roll over and apologize for something such as not recalling a product earlier (Bausch & Lomb), not making forthright medical risks disclosure (Vioxx), overtly concealing critical medical information (Dalkon Shield), or treating the risk of serious bodily harm as a purely economic matter (Ford Pinto)?

Back when I was young and overzealous, when my vision as a lawyer was crystal clear and everything was black or white, I would have taken the position that lawyers for Merck in the current Vioxx litigation should not retreat. The notion that the Merck lawyers might want to consider discussing with the Merck directors an apology to be issued to the users of Vioxx would have made me recoil a decade ago.

I seem to have stepped back from my line in the sand over the past several years, however. No longer is it so clear to me that issuing a corporate apology is always contraindicated. No longer am I clear that it is absolutely indefensible for directors to make that sort of corporate liability . . . concession (for lack of a better word). No longer am I clear that the best interests of the shareholders mandate resolutely denying any notion of liability or responsibility. I am now wondering if there is something to be consistently said – from a shareholder wealth maximization standpoint and from a director fiduciary duty standpoint and from a “good faith” standpoint – for corporate apologies.

- Kiran Krishnamurthy, City Braces for Storms, Rich. Times Disp., June 27, 2006

It is raining up and down the east coast, and, not only have I never seen rain like this, I have never heard of weather being described as “juicy.”

Please allow me to back up:

I thought I was used to precipitation and random weather, it all its glorious forms. In upstate New York, where I grew up, it basically snows for a minimum of five months per year. Snow, sleet, freezing rain – wet stuff and lots [...]]]>

The torrential rains rode into Virginia on tropical winds that were “very juicy” with moisture and were blocked from blowing out over the Atlantic Ocean, said meteorologist Dave Lawrence of the weather service’s Blacksburg [Virginia] office.

- Kiran Krishnamurthy, City Braces for Storms, Rich. Times Disp., June 27, 2006

It is raining up and down the east coast, and, not only have I never seen rain like this, I have never heard of weather being described as “juicy.”

Please allow me to back up:

I thought I was used to precipitation and random weather, it all its glorious forms. In upstate New York, where I grew up, it basically snows for a minimum of five months per year. Snow, sleet, freezing rain – wet stuff and lots of it. In Brattleboro, Vermont, where I clerked, it snows for closer to eight months, and I now know how to stop my car without ever touching the brakes (one “coasts” to a stop on perpetually frozen terrain). In California, where I practiced law for a few years, I got used to body-wrenching winds that did not let up for five weeks straight (these winds are lovingly called “the Santa Anas”) and the drenching rains that followed. And, upon moving to Richmond, VA, four years ago, I became comfortable with nine months of unrelenting humidity and a lengthy hurricane/tornado season (always have a case of water on hand; sleep in the hallway).

So, up until recently, I really did fancy myself a bit of a “Renaissance Woman,” in terms of culture, weather, atmospheric sciences, and environmental adaptation. I owned a generator big enough to run my entire home (in the event of a power outage due to rain, sleet, snow, or wind), I had outer-wear appropriate for any and every weather condition, I knew tips for driving safely (as needed) in any sort of weather calamity, and I could have a weather discussion in the local parlance of venues across the nation:

In California, as we peer through the February dust storms, watching the palm trees sway violently to and fro, knowing that soon the daily downpour would clear the dust, we chuckle and say “Well, the weather is perfect the other 330 days of the year!”

In Richmond, when the humidity is stifling and our clothes are glued to our skin, we smile pleasantly and say to each other “It is feeling a bit ‘close’ out there today, isn’t it?”

In upstate New York, when it is snowing for the 18th straight day, and the meteorologists are predicting 11 inches of snow in the next four hours, we say . . . nothing. We pretend we do not even notice the snow. To complain about the piles and piles of snow in upstate New York is to expose your weak underbelly.

In New York City, when we stand body to body on the stifling, smelly, summer subway, we sway sweatily (is that a word?) and ask “Where is your [weekend beach home]share this summer?”

And in Brattleboro, Vermont, when we watch the snow pile up outside our office windows, we ask “Are you cutting out early [to go ski, for the dirt cheap rates that all of the big mountains nearby offer Vt. residents on weekdays]?”

The weather we have recently been having up and down the east coast, however, has me baffled. I am not sure how to casually discuss weather like this. What do I say to:

1. My parents, who are being deluged in New York

or

2. My beltway buddies, who are being flooded off the roads

or

3. My fellow Richmonders, who are feeling a bit . . . *ahem*. . . damp

What sort of casual comment does one make when discussing absurd weather like this? Am I *really* supposed to say “It’s good and juicy out there, isn’t it?”