Author Archive for miriam-cherry
Showcasing Faculty Scholarship
posted by Miriam Cherry
So, I just received some more reprints in the mail, and a couple of weeks ago, received a request from the library of the school where I am visiting to remember to turn in the reprints so that they can be nicely arranged into the faculty scholarship display case. My guess is that these display cabinets are pretty standard at law schools all over the country. Inside the cabinet there’s a little name tag, or perhaps even a nice picture, and then a nice little pile or stack of articles or books are placed next to your name.
Now, sometimes it looks like someone’s “padding” because they’ve written the introduction to the book but the whole book goes into the case (busted!). Other times, it looks like faculty members will put in something only because it has a pretty cover. The current display for my work is thoughtfully arranged so that the cover of the front law review article will match with the jacket I’m wearing in the picture (red), even though the article is extremely short. Still, it’s nice to match. And, perhaps most important, this type of display case is low maintenance.
However, aside from matching and maintenance, are these really the most important factors we should take into account? I guess my question is whether this kind of scholarship display case does a good job in communicating the research portion of our job to our students or to other visitors, alums, or community constituencies? The answer in my opinion is, no.
A display case is a passive method of knowledge acquisition. What if, in addition to a display case, users could use a screen to call up copies of a faculty member’s scholarship on SSRN? Or see a video in which a faculty member presents a summary of their recent article or debates their scholarship? This type of interactivity might also be useful for school websites, to give prospective students a sense of a school and the research projects that the faculty are engaged in. Since active learning leads to positive results in the classroom, i.e. more engaged students, better learning outcomes, etc., maybe we need more of an active and engaged sense in describing our scholarly work as well. Of course, as we ease into the weekend perhaps passivity isn’t always a bad thing…
October 29, 2010 at 2:03 pm
Posted in: Articles and Books
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There is a 63% Chance that I am a Male
posted by Miriam Cherry
As part of my research on work in cyberspace, in virtual worlds, and through crowdsourcing websites (a phenomena I term “virtual work”), I’ve been visiting a number of websites that are likely to have a significant impact on the nature of work and business in the future.
Some of these (like Elance or Guru) resemble job boards, an online version of the “hiring halls” of the old days. Others, like Innocentive, are like high-level contests for ideas. But these sites not only match employers with workers, they also tout themselves as performing screening functions for various skills.
Other of these websites are a significant departure – they’re really fun. Tasks that many would find boring and repetitive are turned into “games,” where users compete to solve problems or make art designs that the customer will like. And I’ve been spending some time “playing” some games on a website called “Games With a Purpose.” According to GWAP’s website, “when you play a game, you aren’t just having fun. You’re helping the world become a better place.”
First I did a game that had me typing some words that people were saying (I think that the purpose is to help with developing speech recognition software), and then I played a “gender guesser” game that asked me to choose which photo I liked better. At the end of the ten pictures, I was told that there was a 63% chance that I am male.
I love hiking, the mountains, and the outdoors, and so when presented with a picture of pretty much anything and a mountain to climb, I am going to choose the mountain. I did notice that there seemed to be a lot sports pictures and pictures of babies (again, I kept choosing landscapes), and so I wonder what the result would have been if I were trying to skew the results one way or another?
I’m still not sure what the purpose of the game was, though. It was called a “gender guesser” and at the end the percentage related to gender differences, but I don’t know what the experiment was going to be used for. It would have been good to know. Since I wasn’t being compensated to play the game, and it was a donation of my time, there are probably some things that I wouldn’t wish to participate in (for free anyway). At least I learned an interesting (if untrue) piece of information about myself.
October 28, 2010 at 12:56 pm
Posted in: Uncategorized
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Texting While Driving (and Invading My Privacy While Texting)
posted by Miriam Cherry
About a week ago, I received an automated message from AT&T telling me that I had a large overage charge for text messages. Considering I had signed up for the “unlimited” messaging plan, this seemed like a non-sequitur. Somehow a mistake had been made in switching me over to the iPhone 4 and I was put on a different plan in error. While it wasted some time, the matter was fairly easily resolved, and the charges were reversed. However, we were discussing the matter while I was driving to school over my car speakerphone (my attempt at multi-tasking) and the customer service rep kept texting me bits of information, like confirmation that my message plan had been switched, or the new amount of money that I owed. I turned it into a joke (there’s a low bar for customer service humor), because the rep had begun the conversation by warning me of the dangers of texting while driving. Every time the rep would send me a text message, I would tell her that, based on her warning, I couldn’t look at any or reply to any of the text messages, and she would laugh.
After the fourth text I didn’t look at while driving, she told me something that I have yet to verify, but which would be an interesting development, if confirmed. The customer service representative said that she had heard that AT&T was cooperating with several insurance companies. In order to reduce the number of accidents related to texting while driving, insurance companies were starting to investigate the cellphone records and texting records surrounding an accident. Your insurance company wants to know whether anyone was texting right before the accident happened. She said that AT&T was working with the insurance companies to deny these claims, and that AT&T was “turning over the records of texting.”
I agree that texting while driving is problematic and that distraction can lead to driver error and an increased accident rate. While unsafe, this behavior is illegal in some jurisdictions but legal in others. I guess what made me uneasy is AT&T’s cooperation to turn over these records, when I think most people tend to think that text messages or phone logs are not subject to being read or viewed unless the user makes them available (or otherwise leaks them). Other questions: what exactly will be revealed to my insurance company? What about the content of messages? Will it make a difference if the driver was texting or just receiving texts (as I was, from the AT&T representative), but not looking at them? My opinion: more transparency is called for.
October 26, 2010 at 5:10 pm
Posted in: Privacy, Privacy (Consumer Privacy)
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The Downside of Virtual Work: How To Get Fired From ChaCha
posted by Miriam Cherry
One of my students, knowing of my interest in the promises and perils of virtual work and virtual businesses, told me about a sticky situation that developed when he was working for ChaCha. For anyone not familiar with ChaCha, users text questions to the website, and they are then paired up with a “Guide” who sends answers back to the users in real time.
My student was working as a ChaCha Guide off and on to make extra money before starting law school. For the most part, he enjoyed looking up the answers to user questions, even existential questions or more silly ones like “should I ask out the person I’ve developed a crush on?”*** The way he described it is that some questions would take two minutes to answer, and others would take a lot more searching and be that much more difficult to find.
My student recounted what happened next. After about two weeks of working fairly steadily for ChaCha (and, he says, making below the hourly minimum wage), ChaCha announced they were cutting compensation from twenty to ten cents per search. “At that point they had private message boards for the “Guides,” which is what they called us. So I went to the message boards and tried to organize . . . all Guides [not to sign in] at the moment that the new rates started. And at that point they sent me an e-mail terminating my employment.”
This is certainly interesting. I’ve seen some documentation of the IBM Italy “virtual strike,” which seemed to indicate that virtual organizing could start to take off. This might be much more difficult in the market for crowdsourced labor, simply because many crowdsourcing sites would not have the bulletin boards or any way for one worker to reach the other workers. So, while I remain sanguine about the efficiency gains associated with working with others in cyberspace, ChaCha serves as a cautionary reminder.
***The answer (at least in my book) is “yes,” since otherwise there is the potential to waste time on an unrequited crush, and it is better to get an answer (regardless of what it is) and be able to move on.
October 25, 2010 at 10:05 pm
Posted in: Uncategorized
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When Life Imitates Legal Scholarship
posted by Miriam Cherry
Last year, my Pacific-McGeorge colleague Jarrod Wong and I wrote an article about corporate law and contract law. A couple months ago, we found out that the selection committee had liked our work enough to give us the faculty scholarship award (named in honor of our colleague John Sprankling’s service as associate dean). It was a great night, and we even received bonus checks to celebrate our win!
But then came the irony. In addition to the bonus checks we were given at the awards ceremony, which we both cashed, and, one of us, ahem, spent immediately, we then received an email informing us that we had each received a second bonus amount via the direct deposit system. We were asked to give the second bonuses back.
The irony is that the article that won us the award was an article about clawback provisions. The first part of the article deals with clawbacks in the context of executive compensation, and most specifically, bonuses. (The second portion of the article deals with investors defrauded in ponzi schemes).
So what did we do? We weren’t entitled to two bonuses, so we of course made arrangements to return the overage. Further, it wasn’t particularly difficult to unwind the transaction. Some of the critiques we’ve received of our paper, which focus on the logistical difficulties, now seem even more overblown.
Rather than cowering and hiding from the claw like the stuffed animals in the arcade game (who seem desperately slippery and evasive), we, like the sentient alien toys in the “Toy Story” movie, had nothing to hide from the claw.
October 17, 2010 at 10:03 pm
Posted in: Contract Law & Beyond, Corporate Law, Law Rev (Minnesota)
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Greetings from Panera’s Free Community Café
posted by Miriam Cherry
Thanks to everyone here at Concurring Opinions for hosting me as a guest blogger this October. I’m writing this blog post on my laptop at the Café, here in downtown Clayton, Missouri, a suburb of St. Louis. You may have heard about the rather unusual business model of this Café; it runs on a type of “honor system” where it is left up to the customer to decide what to pay (the menu lists suggested amounts). You decide, however, how much to put into the donation box or tell the cashier how much to put on your credit card.
I paid the (suggested) amount for my lunch, and everything was exactly the same as it would at any other Panera chain, so in my mind, it’s an identical experience. But what are other customers doing? According to a recent story in the St. Louis Post Dispatch, 65% of customers leave the retail price, 10 to 15 percent leave more, and the remaining 10 to 20% leave less. The same story reports that the store is breaking even, with the company’s hope that start making a modest amount of money soon.
According to another news story, some people love the café, leaving a little extra to bring themselves “good karma,” and there are needy people who have made this a regular stop, bringing in money when they can afford it or volunteering an hour or two to help out at the café. But others are skeptical. Some don’t want to put in more money than the suggested amount because there is no means testing and it’s unclear where the money is going. The proprietor of a local (cheap) diner is complaining that with the charitable mission of the restaurant, it’s cutting into her segment of the market. Some people have expressed puzzlement that the café would be located in a well-off business district, instead of a place where there might be more need for free food.
My guess is that in order to sustain itself, the Café needs to replicate the experience at other Paneras as closely as possible; it doesn’t want to change the “feel” of the restaurant. As former CEO Ron Shaich said, “it’s a fascinating psychological question . . . There’s no pressure on anyone to leave anything. But if no one left anything, we wouldn’t be open long.” I guess the question is whether they need to make a profit in order to stay open – as a new friend commented to me the other day, the café is generating a lot of goodwill for Panera.
I’m curious to see how the business model fares and I’ll definitely return to the café. I’ve had many thoughts about corporate social responsibility (CSR) in business recently, due to a paper I’ve been working on, and you’ll see several other posts from me on this theme.
October 16, 2010 at 6:58 pm
Posted in: Corporate Law, Psychology and Behavior
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Australia: A Movie About Contract Law
posted by Miriam Cherry
A few days ago, in a fit of holiday and pre-exam frivolity, I went to see Australia, the latest Baz Luhrmann – Nicole Kidman collaboration. It’s quite different from Moulin Rouge (no singing to speak of), yet it’s still a similar kind of oddball high-kinetic vision, and a lot of fun. The one flaw of the movie (okay, other than the fact that it lacks Ewan McGregor) is that it tries to weave too many strands together – a sense of the beauty of the outback, cattle ranching, business competition, racism, aboriginal rights, WWII, mysticism, a love story. Too much for one movie.
Aside from all these themes, I perceived that Baz Luhrmann wanted … to make a movie about contract law. When Lady Sarah (Kidman) arrives in Australia, the dominating cattle baron, King Carney, offers her a lowball price for her cattle ranch. If she can succeed in driving her cattle to the port of Darwin, she will win the contract for supply of the army, thereby undercutting Carney’s monopoly. The climax of the first part of the movie (the first movie?) involves whether the army officer will sign Carney’s proffered contract before Lady Sarah rides into town with the cattle.
Unfortunately, the army officer does sign the contract before Lady Sarah arrives. But then the officer tells Lady Sarah that the contract is only binding upon delivery of the cattle to the ship. A race then ensues to load the cattle first. Who knew that the UCC could be so much fun?
So, there you have it. The epic of Australia is really a movie about contract law.
[Cross Posted at ContractsProf]
December 7, 2008 at 9:35 pm
Posted in: Contract Law & Beyond
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The Law of Thanksgiving
posted by Miriam Cherry
Was thinking about the Macy’s Thanksgiving Day Parade a little earlier, and made me realize that there has yet to be a treatise on the law of parades. One of my colleagues once wrote her torts exam about large balloons escaping and causing property damage. Or, perhaps more widespread, there is that oft-cited and always chilling “Parade of Horribles.” (makes me shudder just to think about it).
Further, my co-blogger at ContractsProf, Meredith Miller, has a great post up about the law of the turkey. In fact, she facetiously claims she will be writing an entire book on the topic:
The chapter on Turkeys and Criminal Law and Process will include People v. Chafford, 2007 WL 2751878 Cal.App. 1 Dist., Sept. 1, 2007) (no longer good for at least one point of law), which raises issues of prosecutorial misconduct based on the following statements made by a prosecutor during closing arguments:
“Now, reasonable doubt, I want to touch on that. Reasonable doubt was presented to you by Mr. Keller as some type of insurmountable burden. It’s not. It’s not only the same burden that’s used in this case, it’s the same burden or standard of proof that’s used in every criminal court in California and in the country. People are convicted beyond a reasonable doubt every day, so it is not this great insurmountable burden.
“It’s built into the system that we have … and as such, it’s always used as a defense. Crime wasn’t proven to you beyond a reasonable doubt. That’s always a defense to any criminal case. It’s kind of like you make the analogy: you can’t have Thanksgiving without turkey. Well, you can’t have a criminal trial without the defense being reasonable doubt. That’s just the way it is. It’s built right into the system. [emphasis added] * * *
“Ladies and gentlemen, reasonable doubt is there for a reason. It’s there to protect the innocent; it is not meant to be used as a legal loophole for the guilty. Remember that when you’re discussing reasonable doubt.”
Happy T-Day everyone. Cheers!
November 27, 2008 at 3:53 pm
Posted in: Weird
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I Can’t Believe I Sent it to the Whole Listserve
posted by Miriam Cherry
A recurring theme on the ever-fabulous AALS contracts list-serve involves pressing “reply to all” accidentally. The list is a fabulous resource, yet over the years it has seen its share of embarrassments (because it automatically replies to all when you hit reply, leading many to conclude that maybe that default rule should be changed, yet somehow it remains reply to all, despite the fact that everyone on the list is teaching contracts law and thus understands default rules and should realize that this is a penalty default, with too much information seemingly forced from us and onto the entire listserve, nonetheless we all have to live the consequences of this particularly onerous penalty default, including this horrible run-on sentence).
We all have experiences with the accidental reply, and I can speak about this personally. That law firm associate who accidentally hit “reply all” when responding to the inquiry about workload? That would be me, informing everyone at the law firm that I indeed was satisfied with my current work assignments (hey, it could have been worse). But sometimes it seems that people “reply all” strategically. They *want* everyone to know something good that they did. So someone sends an email out to an entire list, making public their donation to the homeless shelter. Other times, someone wants to embarrass the person who sent an email by picking apart some mistake in the original email. It’s framed as a private reply, of course, but it goes to everyone. Of course the author, if asked, will try to play it off as a mistake. “Ooops, sorry, didn’t mean for that to go the whole list.” Sure, sure, we believe you…
What’s the best / worst example of “reply y’alling” that ya’ll can think of?
[cross-posted at ContractsProf]
November 25, 2008 at 4:08 pm
Posted in: Contract Law & Beyond
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Oft-Overlooked Legal Writing Genres III
posted by Miriam Cherry
After considering statutory poetry, the law review cover letter, and the nastygram, consider two more muted, oft-overlooked genres of academic legal writing:
Course Descriptions. Earlier this semester I was discussing the “standard form” for course descriptions. Part of this is clarity: how many hours is the class, what subjects does it cover, and what graduation or certificate requirements does it fulfill? The standard, I think, is to err on the side of “timeless” writing, since who-all knows when course catalogue descriptions will be revisited. Of course, the conflicting impulse here is to make the course description really “whiz bang,” especially if the course has been approved on a provisional basis and you really want to attract students. Not to mention that the space limitations and the need to be inclusive and representative of what you may do in the class (often before you’ve ever taught it) make this a difficult blurb to write.
The External Review Letter. I received over twenty of them related to the promotion to full professor (now, after the faculty vote, happily exhaling… 
. Ostensibly, the goal of these letters is to evaluate the candidate’s work fairly and to comment on its contribution to the field, creativity, and analytical ability. Most letters begin with a summary of the article – what does it cover, what is the argument – set out the positives, add a few small “quibbles” here and there, and then return to the positives. At least, (luckily), that was my overall experience.
Of course, there is always that wild card that you hear about but hopefully do not have to experience personally, that is the reviewer who decides that the process is not really about the candidate, or even a negative yet constructive evaluation, but rather is to show that s/he is smarter than everyone (not just the tenure candidate, or the candidate’s committee) but, literally, everyone. In the world. (Our young, mmm-mmm, they are so tasty…).
November 23, 2008 at 4:08 pm
Posted in: Law School
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Wearing One’s Heart on One’s “Sleeve”
posted by Miriam Cherry
Recently I read this quick little “work manners” piece about tattoos in the workplace. I’ve read a few other things that seem to indicate that a number of employers are asking workers to cover up their tattoos – obviously a difficult or impossible task if the tattoos are on the worker’s face or hands. Seems inevitable that some of this will result in dismissals, and then the following litigation.
I suppose this fits into the literature developing about employers and evolving standards of dress and grooming in the workplace. Courts have tended to defer to employers on these standards, (even though some of the rationale of those cases is difficult to justify). Given that, and the at will rule, I have a feeling that many claims may end up being couched as discrimination in order to show a congnizable claim. In other words, someone will try to argue that this is discrimination against skin color – if it’s wrong to discriminate against someone who has a particular color of skin overall, isn’t it also wrong to discriminate against someone who has many different colors of skin, based on his/her tattoo?
November 19, 2008 at 3:28 pm
Posted in: Employment Law
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Asking the “Right” Questions
posted by Miriam Cherry
Over the weekend, I attended a thought-provoking conference put on by the Discrimination Research Group, graciously hosted by Deborah Rhode at Stanford. There were a number of disciplines represented, including economists, psychologists, sociologists, and business school faculty. The conference was interesting because it put the explanations of “why” to the side for the moment, and instead focused on providing the “how” of empirically documenting some of the outcomes in employment discrimination cases. From the lawprof side, I especially enjoyed the insights of Tanya Hernandez (GW) on diverse workplaces and Susan Bisom-Rapp (Thomas Jefferson), who commented on the international aspects.
For me, though, and I’m still putting this together for myself, one of the “bigger picture” insights coming out of the conference was about values, change, and paradigm shifts. It started with the subject of the conference, employment discrimination, and asking whether diversity improves the bottom line. In other words, on purely an economic basis, can a “business case” be made for diversity in the workplace? The example used at the conference – an intriguing one, I think, especially because I teach business associations as well as employment law – is the shift to “green businesses” to create further economic gains. But is a shift to “green business” for the sake of further economic growth a mask for any kind of change? If the point of having green businesses is just to increase consumption of other sorts, then perhaps the paradigm itself is flawed. Do we only save the environment when it’s good for business, or do we do this at other times when it requires sacrifice because there are other values that matter? The same set of questions, I think, can be asked in relation to diversity at work.
November 13, 2008 at 1:49 am
Posted in: Conferences
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Gaming in the Law School Classroom
posted by Miriam Cherry
Lately I’ve been thinking, not just about game theory (one passion of mine), but also about using games in the law school classroom. (And, no, not the usual “mindgames” 
. My research on work and labor & employment law in cyberspace is increasingly looking at the blurring line between work and leisure. As described by psychologist Mihaly Csikszentmihalyi, we do better work when we enter “flow” states, in which we are totally absorbed by what we are doing, and improve our concentration in the process. If work is meaningless, or unfocused, it can become drudgery. Turn it into a contest, and those same tasks that were earlier a drag can become downright fun. We all inherently know this; we’ve had situations in which the right frame of mind came make even the most boring task enjoyable.
Helping a class review for an exam or paper is no different. Jennifer Martin (Louisville) has set up a wonderful jeopardy template in powerpoint, which she demonstrated at the contracts conference two years ago to great effect. The game is fun and I’ve adapted it for successful use in my contracts class, too. The students enjoy getting into teams and competing for the right answer, meanwhile getting a great end of the semester review. Paul Caron (UC) and Rafael Gely (Mizzou) have written an article about the “clicker technology,” which enables you to poll the class on different multiple choice questions. I was at first hesitant to try this (I wouldn’t have liked a pop quiz every day when I was a student), but when my-then colleague at Cumberland, Ed Martin, convinced me that the students actually liked having concrete and instantaneous feedback, I decided to give it a try. What’s great about the clickers is that it forces the students to engage; they must become active participants in the learning process. My legal writing colleague, Ed Telfeyan, started a “grammar bee” to correct some of those little writing hobgoblins that 1Ls (heck, all of us!) could do better with. I have some other learning games up my sleeve, too, and am curious to see which ones you use (if at all) to spice up your classroom experience.
November 11, 2008 at 4:25 am
Posted in: Law School (Teaching)
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Paging the Bogeyman
posted by Miriam Cherry
It’s Halloween, and I wanted to write a related post to celebrate the day. I thought about resuscitating the “sale of a haunted house case,” Stambovsky v. Ackely, 572 N.Y.S.2d 672 (NY App. Div. 1991), fast becoming a casebook darling among property and contracts professors (great post on it here). Maybe some gruesome details from a crim law or torts case? But then I realized I needed a *really* scary topic. And, no, not the credit crunch, frightening as that may be.
As far as scary, I started thinking about my favorite Halloween movie, The Nightmare Before Christmas. So, how about… the Bogeyman? Now, I previously wrote a post, asking about the “elephant” lurking in your law school. By “elephant,” I meant a problem that is immense and yet “so common that no one talks about or discusses it.”
The Bogeyman, on the other hand, is different than the lumbering elephant. The Bogeyman is a symbol or a rhetorical strategy that is an exaggeration of a perceived threat or possible risk, usually raised in response to proposed change. For an example, take curriculum reform. If change is proposed, one rhetorical strategy to scotch it is to exaggerate the threat of a potential drop in the bar passage rate. Sometimes the Bogeyman quietly hides in corners, dormant, seemingly disappeared. Other times he jumps out, becoming more vocal, rattling his chains to great effect.
I wonder if some of this propensity to be-risk averse is part of profession – as lawyers we perhaps overcompensate for certain types of risk. Despite all the talk this election cycle about how much we either love “change” or “mavericks,” (depending on your ideological views), it’s safe to say that many (most?) law schools are, as institutions, fairly conservative (as far as changing things, anyway).
So perhaps change and an exaggerated tendency to be risk averse is in itself the Bogeyman. Its enemy? Logic. Empiricism. Bogeymen, I think, hate statistics, because it is in their nature to be irrational and play upon one’s fears.
What/Who is the Bogeyman in your law school? (or Bogeyperson, more politically correct).
November 1, 2008 at 2:14 pm
Posted in: Law School
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Teaching the Financial Crisis in Business Associations
posted by Miriam Cherry
The legal blogosphere (with good reason) has been so abuzz (ablog?) with the financial crisis that I felt adding my two cents might be overkill (I’d add links to all the good blog posts, but figure it’s just easier for you to scroll down and read them).
I will say, though, that teaching Business Associations this fall has been fascinating yet challenging because I’ve really (really, really!) wanted to spend time talking about that lumbering elephant swinging its trunk and trying to get into my classroom. At the same time, of course, we have to go through the basic doctrines – choice of entity, piercing the veil, shareholder primacy, etc., etc.
I have been striking a balance by having a few limited discussions of the root causes of the crisis, and to use it as a way to discuss matters already raised, including conflicts of interest, excessive risk, and principal-agent problems. I am also using this as a vehicle to explain “short sales,” and giving an introduction to some of the broad outlines of securities regulation that I examine later in the course. My students also analyzed the initial text of the Bailout Bail (the rather alarming short version), and they write short “response papers” to stories in the W$J.
While you don’t want to ignore that rather large creature with wrinkly gray skin, I also don’t want to do much more. I remember spending 99% of my legal ethics class (w/A. Dershowitz) discussing the ethics of the then-pending Clinton impeachment. It was a stretch, and only manageable because of who the professor was. How do you incorporate current events into the classroom?
October 31, 2008 at 3:36 am
Posted in: Corporate Law
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The State of Email Bankruptcies
posted by Miriam Cherry
It’s been roughly four years since Larry Lessig called attention to the problem of so-called “email bankruptcy,” described in this article in Wired Magazine. Essentially it’s a type of sheer volume overload, where it becomes so overwhelming that the recipient “gives up” even trying to respond to the messages. In this case, the recipient sent out an automated message notifying the senders that they should not even attempt a reply.
Part of this is that Professor Lessig is a visionary and very popular, and the same could be said of any well-known “public intellectual” figure (our very own set of celebrities!). But I think this question is still lurking four years later: how do you deal with the creeping numbers of emails? I’m not talking about spam, but more just large volume from people you do know or should know or have some responsibility to.
I have a mixed relationship with email. I wonder if this is partially an age/lifestyle question. I went through high school without having an email account, only to go to a college where the phone sat unused and dates were made by sending a flirtatious email (far easier than getting up the nerve and getting past the awkwardness to ask out/be asked out in person!) All through law school, email was “fun.” I used to joke about my email addiction; partially I think the addiction is that it is a gamble – you never know what might turn up in your inbox. That long-lost friend gets in touch, someone starts a “flame” war, you get news of a breaking case.
Somewhere in there, working for the firms, actually, email (and keeping it up with it) turned into something to be “managed.” Step away from the computer to talk to someone and you might miss an entire conversation. Further, as easy as it is to insult someone on email (forget about tone), it’s equally as easy to insult someone by not replying at all, or in some cases replying late (if s/he really cared, my message would be opened rapidly and with glee).
I wonder though, if some of us don’t go through varying phases or cycles of email bankruptcy (perhaps selectively so). How many of us keep email open all day? Check emails from the phone? Read email only on weekdays? Read emails only during certain hours in the day? Print all their email out and mark it up (someone down the hall from me actually does this)? Check emails while on vacation? Go through a month where you answer only minimal emails only then to become very chatty the next month?
It is probably not the most efficient to keep email open all the time, but I always have had an email addiction, so I do that three or four days of the week when I’m working. I do try to prioritize student emails to make sure that they are getting answers fairly quickly, although that gets difficult when you have a Business Associations class approaching 100 students.
Are norms and best practices and efficiencies coming into place for this? Do any law schools have guidelines or suggestions for those who are getting overwhelmed? I ran into some short self-help articles and I’m sure if I went to the business section of the library or local bookstore I could probably find many general materials on effective use of email. But what about the law firm and specifically law school environments. Are there any special characteristics that might lend themselves to best practices there?
October 30, 2008 at 5:26 am
Posted in: Bankruptcy
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Gilbert’s & Sullivan
posted by Miriam Cherry
Recently, I had the good fortune to attend a performance of “Trial by Jury” put on by a combination of groups to benefit a local counseling center. The cast included a number of my colleagues: Jarrod Wong and Brian Landsberg were jurymen, while Jay Leach tackled the role of Edwin, cad/defendant.
For those of you unfamiliar with the musical, it is a comedy about a lawsuit for breach of promise to marry. Amidst all of it may be masquerading a serious point (besides lampooning the lecherous judge and the sanctimonious jury members). At one point, the plaintiff professes her profound love for the defendant (so that the damages will be higher), while the defendant testifies that he’d make a terrible husband and thus is eligible for an abatement:
I smoke like a furnace -
I’m always in liquor,
A ruffian – a bully – a sot;
I’m sure I should thrash her,
Perhaps I should kick her,
I am such a very bad lot!
I’m not prepossessing,
As you may be guessing;
She couldn’t endure me a day.
Recall my professing,
When you are assessing
The damages Edwin must pay!
To his credit, my colleague Jay refused to sing these lyrics (full text & karaoke here), instead choosing to substitute “I will not kiss her / I’d rather diss her,” which, while somewhat sounding more like a “rap” version certainly got the point across without those troublesome domestic violence references.
While these colleagues can really sing (McGeorge’s got talent!) maybe Gilbert and Sullivan today would be bloggers – diverting and entertaining, sometimes throwing in a clever turn of phrase, lampooning those who most need it, and making a serious point from time to time.
October 27, 2008 at 4:11 am
Posted in: Feminism and Gender
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Oft-Overlooked Legal Writing Genres
posted by Miriam Cherry
After considering statutory poetry, consider these other muted, oft-overlooked legal writing genres:
The Law Review Cover Letter. Goal of the author: Sell your article to the law review. This article is novel, fun, it will change the world, revolutionize the genre, become more popular than all the rest of the articles in the pile, no, more popular than any law review article ever. It will garner the journal ooodles of citations, thus leapfrogging the journal over everyone else on the W&L law review rankings website. Oh, and simultaneously, the author needs to say all of that modestly, without sounding like a pompous egotistical windbag, because the goal isn’t to have the law review editors burst out into riotous laughter. (Good luck!)
The NastyGram. More the stock in trade of practicing attorneys, rather than lawprofs, the goal here is to make the person reading it have a really, really, really bad morning/afternoon/evening. My favorite nastygram, actually, wasn’t written by an attorney, but rather by Frank McCourt as a child in Angela’s Ashes. He pens a dunning letter for a local seamstress. In the course of the letter, he employs the words “inasmuch,” threatens that the debtor will “languish in the dungeons of Limerick jail,” and ends with the signature line, “Yours, in litigious anticipation,” the perfect closing line for a nastygram.
I’ll have more on other overlooked genres in another forthcoming post.
October 22, 2008 at 2:38 pm
Posted in: Sociology of Law
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A Sarbanes-Oxley of Law Review Rankings, Part II
posted by Miriam Cherry
Some years ago, I proposed (here) the idea of a random audit to reduce the chances of sketchy reporting to US News & World Report. It would seem based on commentary last week, (especially the retake of the SAT!), that these practices are alive and well.
Note, these are not (directly) reporting fraud. Rather, they would seem to be artful interpretations of the rules. Perhaps next year the magazine will fix various loopholes. Or, perhaps, there are other negative consequences to engaging in these types of legerdemain. One would think that if a law school did ask students to retake the LSAT, that would become publicized and then everyone would know that the law school’s scores were inflated. The end result might be that a school engaging in such practices might end up taking a hit on their reputation score. It’s one thing to raise your U.S. News ranking by raising the bar passage rate, decreasing student-faculty ratio, increasing scholarly reputation, etc. because these criteria are consistent with a law school’s mission of providing a quality legal education. These measures benefit students. It’s quite another when these are artificial dodges.
But until we see an overhaul (unlikely), I see the opportunity for someone to make a good deal of money. Someone, (let’s call this consultant Andy Fastow, just for kicks), could build a niche practice in this area. Andy would travel around the country and give law schools specific advice on how to inflate their numbers for U.S. News without improving educational quality or technically violating the rules. Some of Andy’s initiatives would have clever names too, say, “Chewbacca,” “Jedi,” or “Death Star.” Andy would pick up on the idea of auctioning off U.S. News reputation ballots on Ebay, in fact, he’d have a detailed pricing model monetizing your vote. (He’d also let you trade derivatives off of it). If interested in this description of Andy’s job, send me a resume. It’s nice over here on the dark side, Luke.
October 19, 2008 at 2:54 pm
Posted in: Uncategorized
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Law Firms for Law Professors
posted by Miriam Cherry
Are there biglaw firms that have a reputation as more “academic,” or having a high percentage of “alumni” going into law teaching? Based on this factor, and wanting to stay in Boston, I took an opportunity here (poor Eliot was sacrificed to the branding campaign gods, although Hoag seemed the more natural candidate…). Bright lights of that era were Angela Onwuachi-Willig, Rashmi Dyal-Chand, Jessica Silbey, Joel Ngugi, Bill McGeveran, fellow guest-blogger Tim Zick, who I was scratching my head trying to figure out how I knew, thus he served as inspiration for this post, and, oh, yeah, Doug Kysar. (Dina Wreede always did do excellent work). What is the current word on which law firms send the most “alums” into academia?
October 18, 2008 at 4:45 pm
Posted in: Law Practice
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