Author Archive for lawrence-cunningham
Lawyers: Don’t Trade on Inside Information!
posted by Lawrence Cunningham
In my corporations classes, I urge my students planning a career in corporate and securities law to resist the ubiquitous opportunities and occasional temptations to trade on the basis of material non-public information. I offer in terrorum encouragement by emphasizing that all trades are tracked and that enforcement authorities periodically review them for unusual patterns. Those are traced back to professional advisors, including law firms, having been involved in related deals. It is not difficult for authorities to catch these violations.
Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. Lawyers, as fiduciaries, who obtain material information through client representation, violate their fiduciary obligations and hence federal securities laws when they trade on it. See United States v. O’Hagan, 541 U.S. 642 (1997).
Over at the Wall Street Journal blog, Ashby Jones is asking how common insider trading is among lawyers. This is obviously a difficult empirical question. I can add, however, that (a) in the four years that I practiced law at Cravath, Swaine & Moore, one of my fellow-associates engaged in this activity (with his brother) and authorities prosecuted him (in 1995) for it and (b) during the two years before that when I was a paralegal at Skadden, Arps, one of the associates for whom I worked did so (with his sister) and he was likewise caught (in 1990).
In addition, the famous case embracing the so-called misappropriation theory of insider trading, United States v. O’Hagan, 541 U.S. 642 (1997), involved a lawyer—a partner at Dorsey & Whitney, representing Grand Met in its acquisition of Pillsbury, who generated nearly $4 million in unlawful trading gains from the knowledge.
I repeat to my students, past and present, and all lawyers: do not do this!
November 5, 2009 at 3:50 pm
Posted in: Current Events, Law Practice, Legal Ethics, Securities Regulation
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Buffett Bullish on America
posted by Lawrence Cunningham
Economic prognosis positive is the signal to hear today from Warren Buffett and Berkshire Hathaway’s agreement to buy 100% of the stock of the railroad, Burlington Northern Santa Fe, consolidating the company’s 22% ownership stake in a $34 billion acquisition.
As an author of books on Buffett’s investment philosophy, including a compilation of his letters I prepared for a law review symposium at Cardozo Law School in 1997, I’m quoted in tomorrow’s USA Today story covering the deal (written by Adam Shell).
Adam’s story correctly reflects my take on the deal as squarely meeting Buffett’s traditional criteria: a business within Buffett’s “circle of competence” (i.e., that is easy for him to understand), run by people he “likes, trusts and admires,” and at a price reflecting good value for money.
More broadly, the story reflects how this acquisition is a very public statement that Buffett is “bullish on America,” the long-time slogan of erstwhile investment bank Merrill Lynch (now a part of Bank of America).
There’s one way the deal and Berkshire’s disclosure is unusual: Buffett says this acquisition is a big “bet” on Burlington, its management, and the US economy. Buffett does not usually talk about investing using the word “bet” or other gambling terms, eschewing them in favor of emphasizing cool, calculated, rational evaluation of business and its environment.
Another notable feature about this investment, Berkshire’s largest acquisition ever, is how Burlington is particularly strong, among railroads, in transporting goods from West coast ports into America’s heartland. Forecasting high returns doing that suggests a prediction that, as the US economy recovers, the country will remain heavily reliant on imports, certainly of goods and probably of energy, especially from China and East Asia.
Maybe there is a gamble here, on both a US recovery and the post-recovery shape of trade, manufacturing and consumption. And there is always risk in investment. But this one fits enough within traditional Berkshire investments that it suggests being bullish again may be a safe bet. [Disclosure: I own Berkshire Hathaway stock, and have for many years.]
Photo Credit: Norman Goldberg (Buffett teaching my Corporations class at Cardozo Law School, 1998)
November 3, 2009 at 3:45 pm
Posted in: Current Events
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Revolutionary Financial Regulation
posted by Lawrence Cunningham
As previously hinted at here, revolutionary changes are forthcoming in financial regulation. These will be far more significant than any that have been made, including compared to those in 1933 and 1934 after the 1929 stock market crash and ensuing Great Depression.
Seven years ago, when Sarbanes-Oxley was enacted, many people declared it “sweeping legislation.” The vast majority of observers and participants said it was the most significant set of reforms since the Great Depression. Proponents thought this an affirmative good and opponents, like Larry Ribstein and Roberta Romano, found it repugnant.
I was among the minority who explained how this notion of “sweeping” was rhetorical over-statement–and how the rhetoric combined with the modest changes could actually work, which they did. Certainly compared to what is coming, Sar-Box will be the yawn I suggested it was, though Congress continues to debate, in the current negotiation, how far parts of it should go, including whether to extend its internal control requirements to smaller enterprises.
Amid the current hurly-burly, also as previously noted, we at GW are hosting a conference, next Friday, to sort through some of this. A program is here, along with details on how to register. One highlight among many: our keynote speaker is SEC Commisioner Luis Aguilar, though spots for his lunch time talk may be scarce.
October 29, 2009 at 4:36 pm
Posted in: Current Events
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House Financial Committee Busy
posted by Lawrence Cunningham
The Staff of the House Financial Services Committee is extremely busy and doing a very good job of keeping its role in the legislative process transparent. A reasonable run down of current activity in financial regulation reform appears here. (You can even sign up to get email alerts.)
These bills are elaborate, complex and defy tidy characterization. All are likely to change, some significantly, as the legislative process grinds along. The Senate Banking Committee is unlikely to produce anything equivalent until well into November.
In general, however, together the House FSC’s work would make for sweeping change. The bills would:
(1) create three new federal agencies: a Federal Oversight Council, a Consumer Financial Protection Agency and an Office of Federal Insurance;
(2) considerably expand powers of the Securities Exchange Commission, including by subjecting rating agencies to considerable regulation and oversight by the SEC plus eliminate an exemption to the Investment Company Act of 1940 for private financial advisors.; and
(3) expand the mandate and powers of the Commodity Futures Trading Commission concerning regulation of derivative securities.
These pending Committee steps, of course, are in addition to bills the House passed earlier this year, including the summer’s Corporate and Financial Institution Compensation Fairness Act of 2009, embracing shareholder say on executive compensation to a certain extent.
At this link, you can access pending bills totaling just about 1,000 pages. Following is an additional breakdown: Read the rest of this post »
October 28, 2009 at 2:22 pm
Posted in: Consumer Protection Law, Corporate Finance, Current Events, Securities, Securities Regulation
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Prediction Correct in NY Damages Case
posted by Lawrence Cunningham
As I predicted last month, the New York Court of Appeals last week reversed an Appellate Division decision denying any damages to buyers of real property from sellers who admitted breach of contract to purchase and sell real property. The Appellate Division had denied sought damages measured by lost profits, the contract-market differential and reliance expenses. The Court of Appeals agreed as to lost profits and contract-market differential but reversed as to reliance expenses.
It did so, however, in an opinion void of any analysis of the lower court opinions. As to the lost profits claim, in particular, the Court of Appeals merely said it agreed with the lower courts that the assertion was “speculative.” It did not explain why and did not confront or correct patently erroneous statements in those opinions that the buyers could not recover because they were pursuing a new business enterprise. More responsibly, though still without analysis, the Court rejected the contract-market claim, by referencing evidence showing that the property value at breach did not exceed the contract price.
Most important, on the reliance branch, the Court of Appeals reversed the lower court rulings that simply failed to see that reliance damages are a standard alternative to expectancy damages (whether lost profits or the contract-market differential), especially when the latter cannot be determined with reasonable certainty. The Court cited Section 349 of the Restatement (Second) of Contracts, and numerous New York Court of Appeals cases, including the classic Freund v. Washington Square Press, all of which allow recovery of reliance losses incurred in preparing to perform a contract, so long as these are foreseeable and ascertainable.
But what of those incorrect lower court statements about lost profits? Should the Court not have addressed them? Affirming by saying it agreed that the lost profits claim was ”speculative” does not exactly reject erroneous statements in the lower court opinion, such as that new businesses face a different burden or hurdle in recovering lost profits. Reversal as to reliance damages does not disturb them. While I concur with the Court on all its results in all three damages holdings, does it promote judicial economy to leave clearly erroneous lower court statements about a recurring issue in contract law uncorrected?
October 27, 2009 at 5:40 pm
Posted in: Contract Law & Beyond
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GW Fin Reg Conference Nov. 6
posted by Lawrence Cunningham
As financial regulation reform reaches its apogee, we at GWU are delighted to host a roundtable on Friday Nov. 6 at the Law School (2000 H Street, NW, Washington, DC). An outline of the Program, co-sponsored by the Institute for Law and Economic Policy, follows, along with how to register. Note that participation of some panelists is subject to the legislative calendar. Read the rest of this post »
October 26, 2009 at 11:22 am
Posted in: Current Events, Law School (Scholarship), Securities Regulation
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Law Journal Marketing
posted by Lawrence Cunningham
How are academic works promoted by publishers, trade or university presses, academic book publishers and law journals? In general, trade presses do a broad funded pitch, university presses do some but more narrowly, academic book publishers make a strong push to a targeted audience and law journals do . . . pretty much nothing.
Should law journals do more? Are any doing so? Aside from promotions such as we at Concurring Opinions offer to a necessarily limited number of journals on this blog, listing recent issues, and some symposia pitches, law reviews don’t market themselves. Florida Law Review is poised to change this, and I support the leadership. Read the rest of this post »
October 14, 2009 at 7:01 pm
Posted in: Law School (Law Reviews)
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This Just In: Women and Men Equally Good at Judging
posted by Lawrence Cunningham
On the last page (31) of a new empirical article by law professors concerning the role of gender among judges, the following conclusion appears: “we find that women do just as well as the men [sic] in terms of basic judging measures.” I am not surprised and wonder: (1) what portion of the population, among laypersons or lawyers and certainly legal academics, would really be surprised by this; (2) whether we need an empirical study before drawing such a conclusion; and (3) whether any empirical study, this one included, can realistically provide evidence for (or against) such a conclusion.
The piece, reportedly stimulated by something Justice Sotomayor said about the role of gender in judging, spends the previous 30 pages: (1) reviewing literature about possible differences in attitudes and experience judges may have, according to gender; (2) summarizing data on state high court judges, 1998-2000 (and adding a smaller bit of data on federal judges), concerning numbers of opinions they write, how often they are cited by other courts, and how often they filed panel opinions disagreeing with panel judges of their own political party; (3) summarizing data about such matters as where judges went to law school and marital status; (4) reporting elaborate regression analyses of these data; and (5) testing various hypotheses, using these factors and resulting relations among the data, to tell us whether men or women are better judges (measured by things like opinions produced and citation frequency).
To be fair, the paper’s four authors acknowledge, in the end, limitations of the empirical methodology they use, emphasizing weaknesses in the inputs, and the meaning of resulting outputs. In addition, the paper manifests requisite hallmarks of good academic work: a literature review, statistically testable hypotheses, reports of the statistical analysis plus qualifications and modesty about the entire undertaking.
Furthermore, of course, in principle, the quest is valiant, for confirming hunch and intuition with statistical data is a vital exercise and tradition in academic research. And this paper may provide more support for its assertions than I could offer for claims I may make, like, in contract law: (1) Ellen Ash Peters was a more thorough and convincing judge than Learned Hand; (2) Judith Kaye was at least as persuasive and clear as Oliver Wendell Holmes; and (3) Benjamin Cardozo was superior to all of them on all counts.
Even so, this paper puzzled and troubled me like few others ever have. It led me to wonder whether all the work that went into preparing it, and my hour reading it, was worthwhile, and whether we have learned anything from it.
NB: The paper, oddly entitled Judging Women, by Stephen Choi (NYU Law), Mitu Gulati (Duke Law), Mirya Holman (Duke Law/UNC Econ/Pol), Eric Posner (Chicago Law), can be found here.
October 5, 2009 at 8:42 pm
Posted in: Law School (Scholarship)
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“Wages of Spin” (Some Contract Law Issues)
posted by Lawrence Cunningham
Suppose the host of a show like American Idol insisted that, in exchange for putting participants on air and gaining publicity, participants had to sign agreements transferring copyright and all future royalties from songs they perform on the show to the host. Suppose further that these participants signed such contracts, and ensuing royalty streams generated millions of dollars for the host, nothing to the performer. Would these agreements be enforceable? Under what legal theories could they be challenged?
Facts like these appear at the heart of longstanding, though little known, allegations against Dick Clark, host of the wildly popular arbiter of successful commercial music decades ago, American Bandstand. Though Clark faced Congressional hearings over such allegations back in the 1960s, they never went anywhere and legal claims do not appear to have been pursued. This quiescent state of affairs may reignite amid the new documentary on the subject, Wages of Spin, which suggests that artist and producer reticence to pursue legal claims is due to lack of knowledge or capacity or to how the power Clark wields in the industry has made many potential witnesses and other adversaries reluctant to challenge him.
The film, made by Shawn Swords (who, in the interest of full disclosure, is a friend of mine and high school classmate), is not so much an expose of Clark’s moral compass as an exploration of the tactics he used to run the show. As a documentary, it adopts an objective tone and viewpoint, though undoubtedly does not provide the adversarial forum to explore or test all assertions and counter-assertions that adjudication of disputes provides.
Accordingly limited, the skeletal facts may permit considering, in broad outlines, issues from the common law of contracts concerning the enforceability of such agreements. I mention four below: lack of consideration, unconscionability, illegal bargain and duress. Comments are open to add to this list—or subtract from or qualify it. (Of course, any inquiry like this skirts potentially applicable statutes of limitations, which raise additional issues concerning tolling, discovery, diligence and others that would require considerably more facts to evaluate.)
October 5, 2009 at 9:29 am
Posted in: Contract Law & Beyond
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Fin Reg Events
posted by Lawrence Cunningham
Policy formulation benefits from academic knowledge, often showcased at timely conferences, and there have been plenty of contributions this year and last concerning financial regulation reform amid the economic crisis. Late last fall, I posted a list of conferences pending then, including GW Law’s Panic of 2008 Conference, which will result in a book to be edited by my GW Law colleagues, Larry Mitchell and Art Wilmarth.
This season, there are several noteworthy forums, including at Pitt and Seton Hall Law Schools and, just two weeks ago, an Institute for Law and Economic Policy conference in which I participated, featuring Joseph Stiglitz (Columbia), Kenneth Feinberg (US special compensation master), Lucien Bebchuk (Harvard), Charles Elson (Delaware), Jill Fisch (Penn), Harvey Goldschmid (Columba), Frank Partnoy (San Diego), and a dozen others.
At GW Law, we will host a follow-up to our Panic of 2008 conference on Friday November 6, co-sponsored by ILEP, featuring academic contributions from Jim Cox (Duke), Don Langevoort (Georgetown) and Art Wilmarth (GW), plus participants from Treasury and the SEC and Senate and House Committees having jurisdiction and from the media (including Ed Andrews, New York Times). Discussion will concentrate on the emerging legislative agenda, along with enforcement (federal, state and private).
A notable interactive on-line interchange will by hosted by Steven Davidoff (University of Connecticut), using his platform as editor of the New York Times on-line deal forum. The description suggests a provocative discussion showing skepticism about standard interpretations of the crisis and pending prescriptions for reform. Notable participants include David Zaring (Penn/Wharton, co-author of an article with me on the subject, forthcoming in GW Law Review), Joseph Grundfest (Stanford), David Skeel (Penn) and Lynn Stout (UCLA).
As the Administration and Congress write legislation, ideas and input from events like these, seeming to be on the sidelines, can be important and useful. Tune in.
October 5, 2009 at 7:05 am
Posted in: Law School (Scholarship), Uncategorized
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Are Cell Service Early Termination Fees Too High or Too Low?
posted by Lawrence Cunningham
What happened to debate about cell phone subscriber contracts containing early termination fees? Companies and subscribers sign multi-year term contracts, exchanging service for monthly and other fees. Contracts provide that customers terminating early breach and owe damages, usually a flat fee of between $150-225. Companies claim these fees partly compensate them for costs like subsidizing handsets to customers, but customers assert these fees coerce them to continue in an unwanted relationship.
Debate manifested in numerous class action lawsuits, state attorney general investigations under state consumer protection laws, federal legislators circulating bills to curtail the fees, and July 2008 Federal Communications Commission hearings and suggestions for compromise. Much of this energy has dissipated, perhaps partly because some companies have modified some of their contracts, including by adjusting the fee according to when in the term a customer terminates. But not all companies have adjusted and not all contracts have been changed.
Lawsuits continue to wind their way through courts, involving issues ranging from subscriber assertions of unjust enrichment to violation of consumer protection laws. A particularly interesting issue concerns whether the clauses are enforceable under the general common law of contracts. One of the few cases to have resulted in a judicial opinion on the merits grappled extensively with this issue, which turns out to be more complex than one may suppose. Ayyad v. Sprint Spectrum (Cal. Super., Alameda County 2008.)
The court, in a class action, found the clauses unenforceable, though not because they charged subscribers too much, but mainly because the company’s losses from breach by early termination were greater (plus, more generally, the fees did not reflect a compensatory impulse, shown further by how they did not vary with the time of subscriber breach).
This result may be surprising for two reasons. First, as a matter of traditional contract law, concern focuses more on stipulated damages that overcompensate and thus penalize breach rather than those that under-compensate. Second, as a matter of fact, is it likely that company losses from subscriber breach exceed $150-225 per subscriber, on average or on particular contracts?
October 3, 2009 at 2:00 pm
Posted in: Contract Law & Beyond
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Hot Contract Damages in New York
posted by Lawrence Cunningham
Suppose a partnership of two individual real estate developers agrees to buy raw land from a local government authority to develop a retail factory outlet in a special trading zone of upstate New York across the St. Lawrence River from Canada. A trial court found that the Seller breached this contract “in bad faith.”
To what damages is the Buyer entitled? According to an intermediate appellate court in New York, which affirmed that Seller breached in bad faith, Buyer is entitled to neither expectancy damages (lost profits) nor reliance damages (as a matter of summary judgment).
Is this likely to be upheld by the New York Court of Appeals, which heard oral argument in the case last week? For the following reasons, I doubt it, but either way look forward to the Court’s opinion.
September 22, 2009 at 4:05 pm
Posted in: Contract Law & Beyond
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Hidden Culprit in Financial Crisis
posted by Lawrence Cunningham
The Financial Crisis Inquiry Commission, created by the Fraud Enforcement and Recovery Act (May 20, 2009), held its first public meeting today, launching its mandate to examine causes of the financial crisis. The statute enumerates 22 possible culprits, all now usual suspects, like executive compensation, bad regulatory oversight, financial derivatives, complex securitization schemes and the like. Also on the list is the general notion of bad lending practices at banks, which two Commissioners today likewise noted in general terms.
Not on the list, and not mentioned today, or much discussed in the cacophonous litany, are the credit scoring systems lenders use to make first and sometimes final cuts on loan decisions. The credit scores lenders used before the crisis are still used today. But they do not measure credit-worthiness, or probability of loan repayment, as much as they measure whether applicants are good customers of banks, compared to those less reliant on banks. They value debt, and over-leverage is a recurring culprit in all financial crises.
To illustrate, take a pop quiz. Suppose the following two people apply for a mortgage loan on a home in suburban Maryland (say for $500,000). (1) Which is more credit worthy? (2) Which is more likely to be approved? (3) Would the answers differ if the decision were made today, after the financial crisis, or two years ago, before that?
Applicant A is a tenured Professor of Medicine at Johns Hopkins University, with a mid-6 figure base salary, doubled by significant practice income, revenue on patents she shares with the University, and rental income from resort properties she inherited from an aunt years ago that are owned free and clear of any liens or loans. The Doctor has no outstanding debt, a net worth in the low seven figures and has bought and sold two previous homes, paying off related mortgages before their maturity date.
Applicant B is a local real estate developer, with a low-6 figure income, ¼ of which is in contingent bonus compensation, and no other source of income. His net worth consists mainly of a modest retirement account, stock options and grants from his employer, and some cash in the bank, about enough to make the down-payment contemplated by the mortgage loan application. He has several lines of credit outstanding, all with meaningful balances, that he has increased regularly for years, though always paying monthly minimum balances when due. Read the rest of this post »
September 17, 2009 at 4:58 pm
Posted in: Culture, Current Events
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President Talks to Capital, Labor
posted by Lawrence Cunningham
President Obama spoke somberly to capital yesterday and exuberantly to labor today, in speeches that hardly could have differed more. One was a policy leader’s thought piece, the other a campaign stump speech whipping up a fawning constituency.
A progressive Democrat may be more likely to ham it up with steelworkers in Pennsylvania and keep it cooler with investment bankers in New York. Yet the differences in these speeches were even more striking than expected and I suspect that is not a good thing.
Yesterday’s speech, in Federal Hall in lower Manhattan, was a stern, level-headed admonishment about lessons of the financial crisis, requiring better regulation and supervision, emphasizing the value of free and fair markets. The President’s tone was even, serious and sober; the content was substantive, laying out specific lessons and responses. His audience applauded during the speech just once, at his proposed consumer financial protection agency. A professorial tutorial to a studious audience, it was a persuasive speech.
Today’s, at the AFL-CIO Convention in Pittsburgh, was an exuberant, ideological clarion cry to build a “stronger labor movement,” improve “organized labor,” and promote collective bargaining. It was repeatedly interrupted by applause, chanting support for immediate changes in law (“We Can’t Wait”) and ended with the President’s rising voice demanding to know of the audience, “Are you fired up? Are you ready to go? Are you fired up? Are you ready to go.”? A rousing oration, but it was not persuasive.
September 15, 2009 at 6:44 pm
Posted in: Current Events
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Remedies for Breach of Season Ticket Contracts
posted by Lawrence Cunningham
Nationally, and lately here in Washington, DC, sports fans are learning hard lessons in contract law. When franchises, like the Washington Redskins football team, built expensive new stadiums during the economic boom of the mid-2000s, they supported funding with multi-year ticket sales. Partly to get long-term construction loans, teams sold season tickets for up to 10 years, promising designated season tickets in exchange for fan promises to make stated annual payments during the term.
Amid today’s economic recession, many fans, unable to afford the luxury they promised to pay for in flusher times, breached those promises, not paying for tickets. In response, teams have taken self-help measures and sued fans, for breach of contract, seeking damages.
Self-help includes reselling this season’s tickets to other fans, usually at lower prices or, when tickets cannot be sold, using seats for other purposes, like promotional or charitable events. Teams also resold future seasons’ seats, again usually at lower prices, or hold them, hoping for future increases in market price. Measured today, what are a team’s damages?
September 12, 2009 at 12:36 pm
Posted in: Contract Law & Beyond
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Dealing with Law Review Rejections
posted by Lawrence Cunningham
As this fall’s law review submission season draws to a close, it is likely that many worthy pieces will go unselected for publication or be selected by less prestigious journals or with longer time lags than sought. Affected authors face some choices.
Fortunately, the practice allowing for concurrent submissions to student editors in recognized seasons makes the process less difficult compared to fields reliant on peer-reviewed journals, requiring exclusive submissions without identifiable seasons.
For instance, in mathematics, a new journal, Rejecta Mathematica, dedicates itself to publishing only articles previously rejected by a peer-review journal. This suggests considerable frustration with that system (along with other features Dave Hoffman recently blogged about here).
For legal scholarship, such a Rejecta Lex Rev. does not seem necessary or feasible. True, some pieces are accepted for publication without receiving a single rejection, but the vast majority attract at least one rejection, and many are rejected by dozens or scores of journals. Still, legal scholars striking out or low any season face some issues.
September 10, 2009 at 2:54 pm
Posted in: Law School (Law Reviews)
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So . . .
posted by Lawrence Cunningham
Last week, Dave Hoffman posted about omitting needless words in exposition. In comments, I satirized his point, leading off with “So, . . .” and included dozens of other habitually-used words or phrases likewise lacking meaning.
My nudge reacted against an idiomatic fashion to begin sentences with “So,” in speech and writing, especially on blogs (including by esteemed contributors to this one). Aside from proponents of expressive clarity considering so a useless word when beginning a sentence, it may be improper English.
Exceptions recognize utility in narrow contexts, such as for poetry (“So lovely was the lavender lilac”), impression (“So these colonies stood strong”) or in rousing speeches (“So I say to my family and friends”) and in the familiar “So what?”
Current usage expands well beyond the exceptions. The word begins sentences like: “So, I read yesterday;” “So an interesting thread appears over at . . .;” and “So, the Supreme Court has decided . . . .” (No convention seems to have formed about whether a comma follows the word when it starts a sentence.)
Shall law professors or other academics encourage students to begin sentences with “So” in class discussion and research papers? Do lawyers or judges appreciate that lead off? Is it appealing to readers of the English language in general? I doubt it.
I am convinced it is not good for professors to follow the idiomatic fashion. A few years ago, my law school interviewed an entry-level candidate who began sentences with “So” often. Many colleagues cited the annoyance as a negative. They tried to suppress the habit’s significance when evaluating the overall record, recognizing the idiomatic fashion, but it hurt the candidate. We did not extend an offer.
I cannot recall ever writing a sentence beginning with the word So in this usage, and hope I never do. I confess to using it in conversation on too many occasions, capitulating to fashion, yet wish I had not and hope to cut back. It would help if everyone else cut it out too.
September 10, 2009 at 3:54 am
Posted in: Culture
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Law Review Rejection Letters and Withdraws
posted by Lawrence Cunningham
Following on my post about law review submission cover letters, this one is about law review rejection letters—and withdraws. Authors prefer receiving offers of publication to rejections. But most pieces attract at least some rejections and submissions to multiple publishers often get a high ratio of rejections to offers. Absent an offer, authors also prefer getting rejections to hearing nothing, to facilitate closure when making final publication decisions.
Unfortunately, in legal academic publishing, it is common for authors never to hear from publishers, as the thread at The Faculty Lounge suggests (and my own experience over 15 years attests). Yet while I appreciate receiving rejection letters, I think the common silence entirely understandable, given the law review publication process. In my opinion, authors seeking requisite closure should simply formally withdraw their piece from consideration once a deadline has passed.
As an example, this season, on August 8, I submitted an article to 45 journals (following standard practice in legal academics allowing for such concurrent submission). I received 3 offers (on August 18, 19 and 26), 17 rejections (trickling in from August 11 to September 2, when I accepted an offer), and did not hear from 25 journals. Read the rest of this post »
September 2, 2009 at 4:22 pm
Posted in: Law School (Law Reviews)
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The Burden of Influencing Thought
posted by Lawrence Cunningham
How should those who enjoy thought leadership operate? As Dave Hoffman notes below, Richard Posner criticizes economics professors for taking political positions on momentous questions of current debate, often at odds with academic positions they have taken. In reply, those and other professors dubiously challenge Posner’s credentials and knowledge on the subject.
In the exchange, there is more about style and ethics than about substance. It raises fair questions about the responsibility borne by those in positions to influence public thought on policy questions.
In a similar vein, Susan Antilla at Bloomberg notices two influential authors of op-ed pieces this week adopting contrasting styles. In The New York Times, Warren Buffett, cautions readers about the hidden costs of the massive federal budget deficit rising in the wake of the otherwise prudent government responses to the financial crisis. Buffett’s style and effort are characteristically politically neutral, sober, thoughtful and public-minded.
In contrast, Charles Schwab, in The Wall Street Journal, effectively litigates parochial matters arising from pending investigations by the New York Attorney General into practices at his investment firm. The piece is a stirring defense of his firm. True, there is a dose of a publicly-minded case against excessive litigation and regulation. But the style and import are primarily an advertisement and apology for the Schwab firm. Read the rest of this post »
August 21, 2009 at 5:08 am
Posted in: Current Events, Uncategorized
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BestBuy’s $9.99 HDTV Contracts
posted by Lawrence Cunningham
On Wednesday morning, BestBuy.com, the consumer products seller, advertised 52-inch Samsung HDTVs, usually sold for thousands of dollars, for sale at $9.99. Many buyers ordered at that price, with the seller processing the orders and charging respective credit cards.
Later that day, the seller called the ad a mistake, withdrew it, cancelled associated orders and reversed the credit card charges. It credibly denies any binding agreements were formed.
But is that stance air tight? Basic principles of contract law generally support the seller’s bottom line, though not exactly its reasoning, providing some basis for a buyers’ contract claim.
August 14, 2009 at 8:26 am
Posted in: Contract Law & Beyond
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