The Hollow Men

British financial historian Niall Ferguson recently coined the term “Chimerica” to describe the growing economic interdependence between the United States and China, a relationship that he calls the key to understanding the world economy over the past decade. His vision of Chimerica is drawing increasing attention as the growing financial turmoil in both nations exposes both how deeply intertwined their economies are and how dysfunctional this relationship has become.

Initially, Chimerica—accounting for a quarter of the world’s population and over half of global economic growth over the past eight years—seemed like a “marriage made in heaven.” China exported cheap goods to the United States which were rapidly snapped up by American consumers, fueling strong growth in China and leaving Chinese savers flush with cash. This cash was then invested in the U.S., which kept interest rates in the U.S. low and provided easy credit, fueling spending binges which thereby increased demand for Chinese products. In Ferguson's view, the cycle was both complementary and self-reinforcing:

Put simply, one half did the saving, the other half the spending. Comparing net national savings as a proportion of Gross National Income, American savings declined from above 5 percent in the mid 1990s to virtually zero by 2005, while Chinese savings surged from below 30 percent to nearly 45 percent. This divergence in saving patterns allowed a tremendous explosion of debt in the United States, for one effect of the Asian “savings glut” was to make it much cheaper for households to borrow money than would otherwise have been the case. Meanwhile, low-cost Chinese labor helped hold down inflation.

Both countries appeared to have figured out how to have it both ways; while “China’s leaders could enjoy double-digit growth without political reform,” Americans could enjoy rising wealth and consumption without increasing incomes or taxes.

As we now know, much of these gains, like the mythical chimera, were merely illusory, built upon American excesses and Chinese suppression. China kept its currency at artificially low levels in search of higher growth rates (and kept a lid on political dissent). The U.S. spent and lent recklessly, aided by an era of lax regulation. As described in this New York Times article, both countries made half-hearted attempts to address the unhealthy imbalances but the lure of easy money and growth always won out.

Until, of course, our current crisis punctured this illusion, ushering in a mutual blame game. The U.S. has been accusing China of currency manipulation and wage depression while the Chinese have been taking Americans to task for breeding corruption and failing to appreciate the virtues of financial prudence. The once-symbiotic relationship is now characterized as dangerously addictive; as Sen. Lindsay Graham recently put it, “[t]heir drug was an endless line of customers for made-in-China products. Our drug was the Chinese products and cash.”

To Ferguson, this relationship is not merely wobbling but has reached a critical crisis point: “The big question today,” in his view, “is whether Chimerica stays together or comes apart because of this crisis. If it stays together, you can see a path out of the woods. If it splits up, say goodbye to globalization."

Naturally, whether this cycle of interdependence ever was (or can be) a truly sustainable and mutually beneficial one is hotly debated. The current consensus is that both countries need to spend their way out of the crisis, but fear—and desperation—are riding high. The U.S. needs further infusions of cash from China to finance its stimulus plans as it fears that it may run out of other options, while China needs to push its cautious savers to spend in an atmosphere of extreme uncertainty and avert social unrest. Both countries fear that each will turn to a solution that favors its own citizens at the expense of the other’s, triggering a mutually destructive race to the bottom.

While I don’t have a solution for this crisis, I’d like to propose another, hopefully more optimistic, metaphor for the rise and demise of Chimerica, one that fits with New Year’s themes of destruction, redemption, and reinvention.

To me, the whole scenario evokes The Hollow Men, T.S. Eliot’s poem of modern alienation, depicting “a modern world in which men live only for themselves, failing to choose between good and evil.” Like Eliot’s modern men, we (the U.S. and China) are the hollow men/We are the stuffed men/Leaning together/Headpiece filled with straw…Behaving as the wind behaves.

Like these hollow men stuffed with straw, the U.S. and China built up a bubble of growth that ultimately proved to be founded on not much more than straw. Straw men cannot stand alone but must lean together to stay upright, and lack the strength to withstand the winds of market or other fluctuations. Ultimately, without a solid core to bolster them amidst the storms, hollow men are doomed to collapse upon themselves: This is the way the world ends/Not with a bang but a whimper.

But Eliot’s poem also offers a path for redemption. His hollow men can escape the shadowy emptiness, the realm of paralysis caused by the refusal to face difficult choices, not by avoiding but by directly confronting their guilt and shame. In facing the truth, they become heroic—no longer formless and twisting in the wind but founded on strength and power, thereby joining Those who have crossed/With direct eyes, to death's other Kingdom.

What does this suggest for the U.S. and China? They can choose to focus only on themselves, avoiding rather than confronting the dilemmas they face, and thereby create the disaster they fear. Iceland’s recent experiences suggest one path to a modern-day version of the tariff wars of the Great Depression, if it does turn out that Britain’s seizure of Icelandic bank assets, an attempt to protect its citizens’ deposits in these banks, was the final trigger for its financial collapse. (See this Wall Street Journal article describing Iceland’s claims that Gordon Brown’s seizure of Icelandic bank assets precipitated the collapse of Kaupthing Bank). Thus, each nation could turn inward out of fear, choosing to protect its own citizens at the expense of others.

Or each nation could confront the hollowness, set fire to the straw, and try to rebuild from a more solid footing. China appears reluctant to take the steps many economists suggest would do the most to persuade its savers to spend. It could improve farmer’s rights over their land, and directly address the reasons many are pressed to save so much, for example by providing a social safety net that includes health care and support for the elderly.

The U.S. could also repair its eroding infrastructure, addressing health care and other costs that are eating away at incomes. While many fear that China has the upper hand in its relationship with the U.S. because of its high savings rates, Ferguson himself is more optimistic, pointing to America’s economic and political resilience, stemming partly from its creation of “the world’s most benign environment for technological innovation and entrepreneurship” and its economic depth.

In other words, through various means, both countries could begin spending from a position of strength, not weakness—replacing dependency with mutual benefit and sustainability. And if that happens, perhaps Eliot’s poem could also provide a fitting farewell to the age of rapacious bankers:

We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw. Alas!
Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats' feet over broken glass
In our dry cellar
Shape without form, shade without colour,
Paralysed force, gesture without motion;
Those who have crossed
With direct eyes, to death's other Kingdom
Remember us - if at all - not as lost
Violent souls, but only
As the hollow men
The stuffed men.

Posted by Shruti_Rana at 06:56 PM | Comments (3) | TrackBack

Law Profs Abroad: Astronauts or Nomads?

The advent of wireless, social networking, and shrinking electronics is, to my delight, moving us ever closer to the day when anyone can be a modern-day “urban nomad.” According to this Economist article, urban nomads, like “their antecedents in the desert, [] are defined not by what they carry but by what they leave behind, knowing that the environment will provide it. Thus, Bedouins do not carry their own water, because they know where the oases are. Modern nomads carry almost no paper because they access their documents on their laptop computers, mobile phones or online.”

But as I began my visiting position in Beijing, my Bedouin hopes were dashed by an unexpected drag – the pile of textbooks I needed for the classes I was wrapping up in Maryland and the ones I was to teach in China. Thus, my need for books and paper rendered me not a nomad but an “astronaut.” Textbook-laden law professors are much like the astronauts who “must bring what they need, including oxygen, because they cannot rely on their environment to provide it,” leaving them “both defined and limited by their gear and supplies.” Books are my oxygen, and to me, symbolize the intellectual freedom of academia. But now, during this trip, they began to limit me as well, adding to the practical, linguistic, social and cultural obstacles between me and my students in both Maryland and China. Ultimately, the heavy book-filled bag I had to check in forced me think about the deeper implications of urban nomadism, and of course, what this could mean to law professors.

The key to urban nomadism is not, as I initially thought, about travel and a zero-drag lifestyle. It is both

different from, and involves much more than, merely making journeys. A modern nomad is as likely to be a teenager in Oslo, Tokyo or suburban America as a jet-setting chief executive. He or she may have never left his or her city, stepped into an aeroplane or changed address. Indeed, how far he moves is completely irrelevant. Even if an urban nomad confines himself to a small perimeter, he nonetheless has a new and surprisingly different relationship to time, to place and to other people.

The nomads now emerging around the world are different from those of the past because of their constant connectivity, not motion, and the implications of this are still unfolding.

So naturally my next thought was: could I, as a law professor, shed the gear that sustains yet limits me? And what would this feel like?

I decided (and was partly compelled by circumstance) to limit my reliance on textbooks and paper in search of challenge, freedom, and a different type of interaction with my students. And, given the exigencies of life in Beijing, I thought it best to do so quickly and cleanly, like a Band-Aid that’s outlived its purpose. Printers, copiers, faxes and other relics from the age of landlines can be difficult to find (and good luck finding ones that actually work at the moment you need them). Luckily, wireless abounds in Beijing (though generally for those who can pay for it). Like many rapidly developing cities I’ve seen, it maintains a dichotomous relationship with technology; only a slice of the population is connected, but whether because of practicalities or adventurousness of spirit, that slice has embraced wireless and other technology far more passionately and thoroughly than its American counterpart.

About halfway through my trip, I largely abandoned textbooks and paper in favor of freely available online sources, and increasingly began communicating with my students in both Beijing and Maryland via email and Blackboard (and even attempted to conduct an extra review session entirely through email). As a true nomad would have predicted, the real revelation of this transition was not enhanced mobility, but rather, enhanced connectivity and the corresponding impact this had on my teaching and experience abroad.

Perhaps none of this is a surprise to my students (or the already tech-savvy), but I found that in many ways I was able to connect with my students more easily and substantively electronically as opposed to in the classroom. Class participation became broader and deeper; nearly all of my Maryland students started (and kept) emailing me, including some who rarely, if ever, came to office hours or spoke up in class. And their questions and comments grew increasingly more detailed and thoughtful; in fact, many of their finely crafted questions and hypotheticals would have made great exam questions. In China, email helped me and my students leap over language and social issues—students who were hesitant to engage in relatively unfamiliar Socratic-style dialogue in class jumped at the chance to do so over email, and many were more comfortable typing out their questions or comments. I also (generally) enjoyed and tried to constructively apply the instant feedback I received. And both sets of students helped enhance my cultural connections by emailing me tips on places to visit or things to try in China, as well as keeping me up-to-date on everything from study-group progress to blow-by-blow bailout news and reactions in the U.S. My only regret is that I didn’t connect my students in Baltimore and Beijing more directly, instead of using myself as a filter and conduit for their questions and comments for each other. Blogging, too, has proved to be a terrific way to connect with fascinating people (some, it turns out, in the same city) whom I’d never have met otherwise.

Despite this fascinating experience, I can’t yet teach an entire course without books or even paper, so as a law professor I’m still largely an astronaut abroad or at home. But now I long for the day, hopefully not too far away, when I can load up all my textbooks onto my ipod and move from intellectual oasis to oasis. Or even better, simply place all the texts I need online where I can include all the links and comments I want, and watch and join into the dialogue developing between my students, and perhaps some of the wider world, too.

Posted by Shruti_Rana at 02:26 PM | Comments (0) | TrackBack

Creative Capital

Many of the Chinese government’s recent attempts to address the financial crisis involve what has now become familiar territory for many countries. For example, the government recently announced that it would implement a four trillion renminbi ($585 billion) stimulus package, and the state has also repeatedly cut interest rates and sought to prop up consumer spending. But with reports suggesting that China’s unemployment rate could soon approach 12%, rumor has it that the Chinese government is beginning to pursue a slightly more unusual stimulus plan: nudging students to stay in school, or pursue advanced degrees, in lieu of entering a rough job market.

In China, the government can wield a fair amount of power in this area – government ministries can issue, and apparently have been issuing, directives to universities asking them to increase their student populations. Increasing access to higher education, especially for rural students, is also a key part of the government’s development strategy; in fact, according to a recent Vox column, the number of undergraduate and graduate students in China has been increasing by approximately 30% per year since 1999. The column notes that the government’s emphasis on higher education does not appear to be motivated by labor market demand, but rather seems to stem from the government’s desire to increase the sophistication and global competitiveness of China’s products and people.

It will be interesting to see how the financial crisis affects these trends, particularly in legal field. Anecdotally, I can report that my students in China seem just as apprehensive and concerned about their job prospects as my students in the U.S. Many of my Chinese students—both graduate and undergraduate students—are indeed seriously considering pursuing additional degrees or other educational options for at least the next year or two.

In the U.S., the financial crisis seems to be intensifying the debate over whether the opportunity costs of law school outweigh the benefits, especially as loans or other funding sources dry up. The crisis is also fanning the larger debate about the soaring costs of higher education in the U.S.; last week, for example, the National Center for Higher Education and Public Policy released a report stating that college education costs in the U.S. have increased by 439% over the last 25 years, and warned that American global competitiveness could be affected if U.S. education rates continue to fall behind those of other nations.

As Obama considers expanding his stimulus plan, I’d like to see more of an emphasis on investing in educational opportunities and reducing the financial burdens and opportunity costs of higher education. (I’m obviously biased—I loved school so much that I decided to go to grad school twice during the hiring boom of the dot-com era and chose the next significant uptick in the job market to return to academia. And I’ve often thought about where I’d be now if my grandparents and parents had not received extraordinary educational opportunities that led them out of their rural farming villages).

Ultimately, law school is not for everyone, and the U.S. is not a developing country trying to transform a largely rural population into participants in the global marketplace. But we obviously do need to prepare our population for global competition that will likely only intensify in the wake of the current financial crisis, and to look for creative ways to do so.

Posted by Shruti_Rana at 02:54 PM | Comments (5) | TrackBack

Will the Credit Crisis Foster Convergence in Executive Compensation? (And Do We Really Want It To?)

The American public has lately been riveted by the almost daily news stories on the recklessness and irresponsibility of the executives widely seen as contributing to the credit crisis. These reports and the unfolding crisis have shifted the debate over executive compensation from merely reigning in excessive pay to proposals calling for punitive or retributive measures, such as imposing personal liability on the executives at the helm of failing companies. But as we debate throwing executive salaries to the mob, as Nate Oman discussed in his recent thought-provoking post, it’s worth examining the experiences of other countries that have already gone down this punitive path—and are now turning back. It’s also important to consider what this debate reflects about our conflicted attitudes towards credit and debt, in particular the link between tolerance for financial failures and entrepreneurship, and how the credit crisis may be changing these perceptions.

Not long ago, “American pay packages” were portrayed as a symbol of America’s commitment to fostering and rewarding innovation and entrepreneurship. Enormous pay packages were cited as the fruits of a system where any dream could come true, and contrasted with those in other countries where risk-taking and entrepreneurship were more constrained, less lucrative, and even tarred with the stigma of failure and shame. In Japan, for example, during its credit crisis of the early nineties, executives were forced to take pay cuts as a form of apology to an unforgiving public. Executives in some European countries could be held personally liable and even face imprisonment for failing to avert bankruptcy.

As calls for more punitive measures intensify in the U.S., and as our executives begin promising pay cuts in return for bailout funds, we may be heading towards a harsher system just as other countries reverse course.

In Europe, for example, policymakers are attempting to ease the stigma and barriers associated with bankruptcy, hoping that facilitating forgiveness for financial failures instead of punishment will stimulate entrepreneurship and innovation. (See Overcoming the Stigma of Business Failures: For a Second-Chance Policy). Japan has also moved to encourage rehabilitation for failing businesses.

If the fallout from the current credit crisis pushes the U.S. towards greater convergence with countries that penalize or stigmatize financial failures, we should keep in mind the potential impact on our culture of risk-taking, forgiveness, and the opportunity for a “fresh start.” On one level, holding executives increasingly liable for business failures may create a morally satisfying symmetry with the recent changes in our consumer bankruptcy laws, which, in the name of increasing “personal responsibility” made it more difficult for struggling consumers to walk away from debt repayment. (See here for a discussion of how the 2005 bankruptcy reforms, by making it harder for consumers to obtain debt relief, may exacerbate the fallout from the collapse of the housing bubble). It’s also difficult to sympathize with executives who collect millions while ordinary employees struggle; executive pay levels have risen beyond sustainable or justifiable levels and should be cut.

But there’s a significant difference between reducing pay and imposing liability. On a broader level, if we choose to continue down a path which increasingly stigmatizes and penalizes business or financial failures, whether corporate or personal, we may end up with more at stake than just the personal culpability of individual executives or consumers.

Posted by Shruti_Rana at 06:54 AM | Comments (3) | TrackBack

Fact, Voice, Blogs and the Times

Debate within the New York Times over longstanding distinctions between editorial opinion and journalistic reporting prompt reflection upon two parallel issues: (1) do blog readers prefer opinion to reporting and (2) do academic bloggers maintain distinctions like that and distinctions between scholarly presentation and essayistic voice?

Clark Hoyt, Public Editor at the Times, wrote in Sunday’s paper about business journalists/columnists both reporting stories and expressing prescriptive opinions on them. He instanced recent cases, including Joe Nocera and Andrew Ross Sorokin (both covering General Motors and opining strongly on whether bankruptcy versus federal financial support is the better policy) and Gretchen Morgenson (covering Congressional hearings on credit rating agencies and separately opining on the credibility of the agency witnesses).

Those writers, along with the paper’s editors, say they are evaluating applicable policies concerning the division between reporting and opinion. But, in general, all seem to suggest that there is little or nothing wrong with reporters also expressing opinions. They do recognize the importance of clearly distinguishing when one is reporting versus opining. An example of a policy they would support is that writers could not publish a news story and an opinion column on the same subject the same day.

Mr. Hoyt, essentially the public’s watchdog at the paper, expresses more serious reservations. He sees a profound problem of blurring the lines between news and opinion at the paper. The current business section’s activities are a continuing manifestation of a practice that puts the paper’s credibility at risk, he worries.

Mr. Hoyt says he prefers drawing and maintaining the distinction sharply. He would eliminate first-person opinion by reporters entirely. He laments that this result is unlikely, for two reasons. First, economic pressure on newspapers may require having employees capable of providing both reporting and opinion. Second, Mr. Hoyt cites: “the Internet, which puts a premium on opinion and voice.”

The Internet, by which one may infer a reference generally to blogging, does seem to do that. Should it? Should writers clearly distinguish between fact and opinion? Does it matter whether the topic is business news and policy compared to other subjects?

Do readers, especially concerning business issues, prefer opinion and voice to objective reporting that includes probing alternative ways to evaluate complex issues? Do bloggers, in general or at all, seek to maintain such a distinction, blur it, or obliterate it?

Analogously, how do professorial bloggers separate traditional notions of academic inquiry and scholarly objectivity from opinion, views, and other prescriptions not based on traditional styles of inquiry, exposition, and assessment?

In my opinion, as a blog writer, maintaining such distinctions are important. In fact, it may be difficult to do.
As a blog reader, I’d love to hear other opinions—along with fact-based assessments of them.

Posted by Lawrence_Cunningham at 05:58 PM | Comments (19) | TrackBack

Columbia Law Review, Volume 108 Issue 7 (November 2008)

Columbia Law Review, Volume 108 Issue 7 (November 2008)

Articles
Progressivity and Potential Income: Measuring the Effect of Changing Work Patterns on Income Tax Progressivity
Chris William Sanchirico

Market Damages, Efficient Contracting, and the Economic Waste Fallacy
Alan Schwartz & Robert E. Scott

Notes
Walking the Federalist Tightrope: A National Policy of State Experimentation for Health Information Technology
Benjamin J. Beaton

An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act
Karen Lin

Essay
Human Welfare, Not Human Rights
Eric A. Posner

Posted by LR_Columbia at 03:00 PM | Comments (0) | TrackBack

The Blawgosphere Turns a Page (Finally!)

I've been consuming lots of analysis of Tuesday's happenings. Thousands (tens of thousands) of words on implications of the election for the parties, the economy, corporate law; some amazing journalism (reminding you of the value of professional reporters) peeking behind the scenes of the campaign; and a bit about the Emanuel brothers. (Imagine the strength of the mother that handled that trio.)

The brilliance of the political blogosphere throws a harsh and unflattering light on the law professor blogosphere. I don't mean to harp, but it is striking to me that almost all political commentary you've seen on law professor blogs this last 6 or 12 or 18 months has been ill-informed, or vapid, contentless, and much, much too meta. (Yes, I get the irony. Indulge me.)

I originally wrote a long post trying to make sense of why law professors, who aren't stupid, have time on their hands, and are selected professionally for their ability to write, have done such a bad job adding value as political commentators. But then I recalled that silence is often the best thing to say.* Still, I've spent too much time not to boil down my conclusions, with the personal stuff left out: [1] innumeracy leading to fetishizing statistical significance; [2] a failure to adopt Web 2.0 technologies; [3] silo-ing expertise;** [4] not enough conservative law professors bloggers to argue with and learn from;*** and, most importantly, [5] bloggers drawing the wrong lesson from their students' willingness to write down every word they say.

I'll expand a bit on [5]. Not everything a professor says is interesting. When 40, 60, 100, or more students laugh at your jokes, I guess it becomes easy to forget. Generally, people add value by writing and talking about things they know something about. Thus, I agree with Leiter that Bill Henderson is one of the country's best law professor bloggers. Most law professors have no personal experience with the innards of a modern political campaign (serving as an consultant on a committee about a substantive legal issue isn't the same at all). We aren't well positioned to know what commercial will appeal to lower-middle-class voters, or what song will inspire youth turnout. But we've blogged about it anyway.

In any event, as I've made clear in the past, I been pretty disappointed by the blawgosphere's last six months. I hope that it's behind us, and smell change is in the air. (The scent mixes the gravity of pounded sand and a freshness of a mountain glade.)

So . . . what's next?

* Geek alert.

*** An example: Rick Hasen is tremendous, and it is great he's on HuffPo, but it isolates him a bit from conservative law professors who believe that the right F/V ratio is <1. Those professors, in my view, are operating under a normatively undesirable assumption that lower, "better-informed" turnout is superior to higher turnout. They've mistakenly discounted the social utility of perceived legitimacy in ill-served subpopulations.

*** Notable exceptions include Kerr, Bainbridge, Volokh, and Garnett. I want to single out Orin for a second here in particular because Greenwald has libeled him. Orin has ably defended himself on the merits. And maybe Greenwald hasn't really been reading Orin all that carefully, because I don't see how you could conclude that OK is anything other than lucid, open-minded, and very pragmatic. Greenwald, by contrast, seems to be interested in maximizing his audience by slashing at people who disagree with him on the merits of a hard policy question. I guess it's a living.

Posted by hoffman at 10:00 PM | Comments (10) | TrackBack

Columbia Law Review, Volume 108 Issue 6 (October 2008)

Columbia Law Review, Volume 108 Issue 6 (October 2008)

Articles
Reforming Securities Litigation Reform: Restructuring the Relationship Between Public and Private Enforcement of Rule 10B-5
Amanda M. Rose

Detention As Targeting: Standards of Certainty and Detention of Suspected Terrorists
Matthew C. Waxman

Notes
Following the Leader: Twombly, Pleading Standards, and Procedural Uniformity
Z.W. Julius Chen

An Antitrust Analysis of Product Hopping in the Pharmaceutical Industry
Jessie Cheng

Essay
Hedonic Adaptation and the Settlement of Civil Lawsuits
John Bronsteen
Christopher Buccafusco
Jonathan S. Masur

Posted by LR_Columbia at 02:06 PM | Comments (0) | TrackBack

How do LAWYERS use blogs? (BLEG)

Sometimes, the law professor blogosphere resembles an echo chamber. We write posts that are commented on and linked to by other bloggers; occasionally, a post gets cited in a law review article or even a judicial opinion.

Last week, Professor Volokh asked his readers to help him figure out "which kind of lawyers read which kinds of blogs." He was particularly interested in in-hous counsel at major business firms, and readers were kind enough to provide lists of blogs checked daily or subscribed to in RSS feeds. Next month, I'll be giving a presentation in Columbus, OH to a group of securities regulators on the topic of "how securities lawyers use blogs." I'd greatly appreciate comments on how lawyers in general (or business lawyers in particular) use blogs, and what blogs or kinds of blogs are most useful. Feel free to post comments here or e-mail me. Anyone willing to be quoted (with or without attribution) in a public presentation should feel free to let me know. This is a blog post in which I'm begging, or a "bleg," for those less familiar with the vernacular of the bloggentsia.

Lawyers seem to use blogs in a number of ways. As consumers of blogs, lawyers may follow the latest developments in their areas of practice, or in related areas they may not have time to cover in the course of their ordinary practice. Lawyers also consume blogs for the same reasons they buy copies of American Lawyer magazine: for gossip, salary and revenue data, and the like. As producers of blogs, lawyers seem to use blogs as a form of financially inexpensive (but certainly time consuming) advertising. By providing regular updates to readers, lawyers attract hits and links and attention from across the country that may lead to far greater professional recognition than the traditional "1-555-Sue-4You" billboards and TV ads.

Posted by Geoffrey_Rapp at 04:54 PM | Comments (1) | TrackBack

Someone is reading the blogs

In August at Prawfs, I criticized the Ninth Circuit decision in In re DRAM Litigation, which dismissed a claim under the Foreign Trade Antitrust Improvements Act (FTAIA) for lack of subject matter jurisdiction, rather than for failure to state a claim, which I believe was the more appropriate ground.

Well, today, I received an e-mail from the author of the opinion, Ninth Circuit Judge Raymond Fisher, and a copy of the revised opinion, which included the following footnote:

The district court granted defendants’ motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from
the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to prove proximate cause as an element of the claim. Compare Empagran S.A. v.
F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50 (2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme Court’s decision in Empagran I provides little guidance because, although the district court had dismissed under Rule 12(b)(1), the Court did not explicitly address whether the issue was properly viewed as one of federal question subject matter jurisdiction or of a failure to state a claim under federal law. We decline to resolve the question, because it was not argued by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1).

Judge Fisher also graciously said that they welcome constructive feedback from academics. No citation for Prawfs or for my articles on the issue, unfortunately. But kind of nice to see that we can have some practical effect.

Posted by Howard_Wasserman at 07:41 PM | Comments (3) | TrackBack

A Taxonomy of Legal Blog Postings

They say that blogging is like bicycling, you never forget how it’s done. Actually, they don’t say that about blogging; I just made that up, and I have no idea who “they” are, (although “they” seem very influential on the subject of clichés). In any event, I want to thank Dan, Dave, et al for having me back as a guest for the month of October. So, being a regular reader/contributor both here on ConOp and over at Prawfs, didya ever notice that you can characterize the most common types of blog posts into major categories?:

* Heller Bailout Palin. (Actually sounds like a name that Palin would bestow upon a child).
*How about the use of those laptops in class? No? Don’t want to start that one up again? C’mon.
*Scholarship v. Teaching? (Yes, that old saw).
*Rigor? Anyone? Rigor Mortis?
*I need to hype my article/book.
*I need to hype someone else’s article/book.
*I need to hype a conference.
*I need to hype myself.
*I am full of hype.
*I am going to hyperventilate.

*Do you wear a suit to class? (apologies to my fellow guest blogger Susan Scafidi).
*Found this really interesting news story/book/movie clip that is only tangentially related to law, but will probably make you laugh. (Mea culpa)
* Allusions to partner/Cuteness of children or pet (Subtext: make the partners/children/animal feel better about the fact that they are blog widows/widowers/orphans/are no longer walked adequately, have proper squeaky toys, but are still not allowed on the couch).
*Isn’t the city/obscure town where I live odd/provincial/hopelessly boring/has no one to date? (Subtext: Anyone looking for laterals or visitors?)
*Rant about poor customer service (Subtext: really annoyed!)
*Theoretical posting that only Patrick S. O’Donnell has read enough to understand.
*Actual post about legal issues (yes, some of those too : )

I’m sure ya’ll can help me by adding more categories to the list. To quote the band Barenaked Ladies, or perhaps T.S. Eliot in the Wasteland, or the founders of postmodernism, “it’s all been done before…” Sorry if this dredges up topics that you thought had shuffled off to a relaxing retirement in Hawaii.

Posted by Miriam_Cherry at 12:27 AM | Comments (1) | TrackBack

My Work Here Is Done

Now that Verizon and AT&T have pledged not to track customer web behavior without explict consent, I feel like my work here is done. ;) (Too bad DOJ still has yet to indict anybody for the Palin e-mail breach.)

Thanks again to Dan and the other Concurrers (?) for allowing me to visit again. There is much more I wanted to say, but I'll save it for next time.

In the meantime, I have signed on to blog permanently over at Ed Felten's Freedom to Tinker, so if you're interested in tech policy, please add us to your RSS feed reader. (Although Ed introduced me over a week ago, I've been too busy to introduce myself to the ftt readers yet.)

I'd be interested to hear from anybody who has thoughts about the relative pros and cons of blogging on a website read mostly by non-lawyers. Although I'll miss the deep comments section conversations about ECPA, I welcome the opportunity to speak directly to (and learn from) the computer science community reading Ed's blog. Besides, I hope I can come back here from time to time to scratch my ECPA itch.

Posted by Paul_Ohm at 04:49 PM | Comments (0) | TrackBack

Inside the High-Minded Pro-Obama Echo Chamber

TweedleDem: "Wow, that John McCain is sure saying some nasty things about Obama!"

TweedleDum: "Yeah, nobody really thinks he was calling Sarah Palin a pig. And what's up with that crazy kindergarten ad? And we haven't even scratched the surface of emails calling Obama a terrorist sympathizer."

T'dem: "I'm just glad OUR candidate hasn't sunk to that level."

T'dum: "Oh, yes. We'd never bring up the Keating Five scandal--that's the kind of thing only Karl Rove would do. The Donald Diamond deal would just be a distraction, too. And his family is off-limits."

T'dem: "Thank goodness those crafty old Democratic consultants like James Carville are gone. And people like Lee Atwater, Rove, and Steve Schmidt aren't welcome in our noble campaign."

T'dum: "Indeed. If we keep this pure, Obama may well be up for a Nobel Peace Prize in 2016."

T'dee: "We know that the media will eventually get the truth to the American people. And look at the backlash against sarcastic and dismissive attacks on Obama!"

T'dum: "You can always refute a lie by patiently explaining why it is untrue--despite social psychologists' findings that 'denials inherently require repeating the bad information, which may be one reason they can paradoxically reinforce it.'"

T'dee: "Ah, yes--what do they know about our great democracy? In the end, elections are always won on the issues."

Posted by Frank_Pasquale at 02:58 PM | Comments (2) | TrackBack

Site Meter Jumped the Shark

Site Meter has just rolled out a new "upgrade," and it has managed to take something that was generally quite good and totally ruin it. Site Meter used to be a way to see one's site visitor stats simply and easily. Now, it is bloated with all sorts of hard-to-read charts that work much more slowly, take many more clicks to use, and don't display the information in a very readable or useful format. I've been playing around with it all morning, and I can't find much to like. It has made checking one's stats incredibly cumbersome, so much so that it is virtually unusable. There doesn't appear to be any way to change the settings to make it display the information in a simpler format.

It appears that Site Meter forgot the important motto: If it ain't broke, don't fix it.

A search of Google blogs reveals that I'm not the only one who finds the new Site Meter to be very disappointing. It is surprising that Site Meter seemed to roll out a radical new design and format without first finding out from its users what they wanted. This strikes me as a very unwise move -- it even makes Microsoft's Vista look great by comparison.

To fellow bloggers out there, some questions: (1) What do you think of the new Site Meter? (2) Am I missing some hidden virtue in the new Site Meter? (3) Does anybody know if there's a way to revert back to the old Site Meter? (4) Can anybody recommend an alternative stat counter service that works better?

Posted by Daniel Solove at 01:57 PM | Comments (8) | TrackBack

Five Favorite Nonlegal Blogs

Thanks to Ann Bartow for this prompt; here are my picks:

1. Bookforum: David Brooks recently announced that "Maximum status goes to the Gladwellian heroes who occupy the convergence points of the Internet infosystem — Web sites like Pitchfork for music, Gizmodo for gadgets, Bookforum for ideas, etc." It's the one blog I never miss.

2. Glenn Greenwald: If the Democrats lose the presidency for the third time in a row, it will be because they failed to listen to Greenwald. He's also the best media critic we have, since he eschews the mealymouthed "on-the-one-hand, on-the-other" neutrality that is the hallmark of today's laziest reporting.

3. Ezra Klein: Anyone who gets their talking points on health care from Tyler Cowen, Megan McArdle, Richard Epstein, or other "market=magic" commentators ought to be forced to write Klein's posts on the topic on a blackboard. Three times. Here's one to start with.

4.Threat Level (Wired): Great collection of timely and meaty posts on tech issues.

5. Crooked Timber: Good collection of philosophers and social scientists discussing current events. Here's a sample post.

I recently gave a talk at the Annenberg School of Communications, and after reflecting on some great scholarship coming out of there, I want to try to do more to read blogs in the fields of communications studies, philosophy, humanities, sociology, and anthropology. Any suggestions?

Posted by Frank_Pasquale at 10:21 PM | Comments (2) | TrackBack

The Surreal Life, Campaign Edition

I think the last 10 days has been my longest time off blogging since 2006, and I'm trying to figure out why I've had nothing to say for so long. It's no coinicidence that my dry spell began with the selection of Sarah Palin as the Republican nominee for vice president. I was expecting another "Harriet Miers moment" for the conservative blogosphere--some effort by Republican intellectuals to insist that, no, the vice presidency (like a Supreme Court slot) was too important an office to hold hostage to contingent political considerations. Instead all I got was ever more sophistic efforts to justify the selection--and even assertions that Gov. Palin would be a better president than McCain, Obama, or Biden. (Credit where credit is due: Ponnuru, Koch, Frum, and Krauthammer have all raised doubts.)

We've been through a vertiginous week or so, with a kaleidoscope of commentators opining that Palin would sink, save, inspire, or incriminate Steve Schmidt and the merry band of Rove-epigones now running the McCain campaign. But today is an inflection point. The media-crafted uproar over Obama's "lipstick on a pig" comment--brilliantly dissected by Glenn Greenwald here--will either generate a "backlash to the backlash" that returns us to seriousness, or will spur ever more frivolous navel-gazing by the press corps and its solipsistic pundit class. We'll either confront the lies permeating our political public sphere, the endless parade of distractions or diversions, or succumb to them.

A few days ago, Thomas Friedman argued that a response of "drill, baby, drill" to the current energy crisis is about as struthious as arguing "typewriters, baby, typewriters" at the dawn of the PC. As income inequality skyrockets, one candidate wants the wealthiest to pay a fair share, while the other wants to give those making over $2.87 million per year an additional $269,364 annually. We'll either face these facts head on, or we'll make a nation ever less capable of collective action, ever less competitive on the international scene, ever more susceptible of being distracted and perhaps destroyed by the panem et circenses now substituting for democracy.

Photo Credit: droolcup.

Posted by Frank_Pasquale at 10:42 PM | Comments (7) | TrackBack

I have to write this, or else Nate will get to define me

A fascinating article in the NYT discusses some of the social aspects of online communities (particularly Facebook). One quote captures the unique sort of self-imposed captivity that online communities can create:

Yet Ahan knows that she cannot simply walk away from her online life, because the people she knows online won’t stop talking about her, or posting unflattering photos. She needs to stay on Facebook just to monitor what’s being said about her. This is a common complaint I heard, particularly from people in their 20s who were in college when Facebook appeared and have never lived as adults without online awareness. For them, participation isn’t optional. If you don’t dive in, other people will define who you are. So you constantly stream your pictures, your thoughts, your relationship status and what you’re doing — right now! — if only to ensure the virtual version of you is accurate, or at least the one you want to present to the world.

It's a great description of one of the addictive aspects of online discussion.

The article also gives a good explanation of who exactly your Facebook friends are -- and why they (might) matter:

But where their sociality had truly exploded was in their “weak ties” — loose acquaintances, people they knew less well. It might be someone they met at a conference, or someone from high school who recently “friended” them on Facebook, or somebody from last year’s holiday party. In their pre-Internet lives, these sorts of acquaintances would have quickly faded from their attention. But when one of these far-flung people suddenly posts a personal note to your feed, it is essentially a reminder that they exist. I have noticed this effect myself. In the last few months, dozens of old work colleagues I knew from 10 years ago in Toronto have friended me on Facebook, such that I’m now suddenly reading their stray comments and updates and falling into oblique, funny conversations with them. My overall Dunbar number is thus 301: Facebook (254) + Twitter (47), double what it would be without technology. Yet only 20 are family or people I’d consider close friends. The rest are weak ties — maintained via technology.

This rapid growth of weak ties can be a very good thing. Sociologists have long found that “weak ties” greatly expand your ability to solve problems. For example, if you’re looking for a job and ask your friends, they won’t be much help; they’re too similar to you, and thus probably won’t have any leads that you don’t already have yourself. Remote acquaintances will be much more useful, because they’re farther afield, yet still socially intimate enough to want to help you out.

Like the last quote, this seems quite accurate -- a good characterization of exactly what Facebook (or for that matter, blogging) often does. Yet, in a way, these two observations are in tension. On the one hand, the first snippet notes that today, a person must be online constantly to make sure that the online persona is accurate. This seems accurate enough. Online personas are creations of pixel and byte, and they require maintenance. And more importantly, online personas are not created solely by the person; they are also affected by discussion among others -- gossip. And maintaining an accurate persona can be a lot of work.

Yet, as the article also notes, the audience for online personas is limited in important ways. Those who communicate via online persona (as compared to in person) tend to be the weak ties. They're not wife or best friend; they're the old college classmates. Is it really worth it to keep constantly updated, just so your old college roommate doesn't get a wrong impression?

Really, if I just left my Facebook profile alone for a week, or a month -- would anyone even give a damn? I'm really not sure. My close friends, I'll see anyway. And as for my old college classmates -- I'm not sure they'd even notice. We've already gone for years without contact in the pre-Facebook era -- I'm not sure another month with no updates will matter much.

Should I experiment with this? No, the thought is much too frightening to bear.

Besides, then I'd just be letting Nate (and every other co-blogger or online interlocutor) define me, and I could never do that.

Posted by Kaimipono at 03:53 AM | Comments (0) | TrackBack

Wordpress v. Movable Type: Call for Comments

We're considering switching our blogging platform from MT to WP. We'd like to solicit your input to the extent that you've used both platforms, or are currently a WP user, as to the advantages and disadvantages we ought to be considering. Please comment here or send an email to concurringopinions@gmail.com. Thanks!

Posted by hoffman at 03:12 PM | Comments (6) | TrackBack

Untanned, Rested, and Ready

Hello, all. It's a pleasure to be back after what turned out to be an extended post-Heller hiatus. I spent the summer writing articles on the Second Amendment after Heller. (I'll post drafts soon.) I also spent a couple of weeks just lolling around dazed, hiding from the amazing wave of relentless 103+ F heat we had in Oklahoma; drinking cider, listening to pre-Hagar VH and trying to metabolize as coolly as possible.

I feel out of sorts without SCOTUS to blog on -- to kick around anymore, as it were. While we await the first Monday in October, I reserve the right to talk about stuff that happened last Term, such as Justice Souter's big punitive damages opinion in Exxon v. Baker, which is a fascinating rhetorical performance -- an example of how to write an aggressive, innovative opinion at an even, low emotional temperature that almost makes it seem mundane. Useful trick, that.

Posted by Mike_O'Shea at 06:34 PM | Comments (0) | TrackBack

Columbia Law Review, Volume 108 Issue 5 (June 2008)

Columbia Law Review, Volume 108 Issue 5 (June 2008)

Articles
Process and Substance in the “War on Terror”
Jenny S. Martinez

Perceptual Segregation
Russell K. Robinson

Notes
Denying Access to Justice: The Cost of Applying Chronic Nuisance Laws to Domestic Violence
Cari Fais

Punting on the Values of Federalism in Immigration Arena? Evaluating Operation Linebacker, a State and Local Law Enforcement Program Along the U.S.-Mexico Border
Adrian J. Rodriguez

Essay
False Consensus Bias in Contract Interpretation
Larry Solan, Terri Rosenblatt & Dan Osheron

Posted by LR_Columbia at 03:46 PM | Comments (0) | TrackBack

Columbia Law Review, Volume 108 Issue 4 (May 2008)

Columbia Law Review, Volume 108 Issue 4 (May 2008)

Article
Agency Costs, Charitable Trusts, and Corporate Control: Evidence from Hershey’s Kiss-Off
Jonathan Klick & Robert H. Sitkoff

Notes
“Trickle Down” Constitutional Interpretation: Should Federal Limits on Legislative Conferral of Standing Be Imported into State Constitutional Law?
James W. Doggett

Will the Ride-Through Ride Again?
Christopher Hogan

Essays
Reputational Sanctions in China’s Securities Market
Benjamin L. Liebman & Curtis J. Milhaupt

Just One Click: The Reality of Internet Retail Contracting
Ronald J. Mann & Travis Siebeneicher

Posted by LR_Columbia at 03:33 PM | Comments (0) | TrackBack

Columbia Law Review, Volume 108 Issue 3 (April 2008)

Columbia Law Review, Volume 108 Issue 3 (April 2008)

Articles
The Federal Marriage Amendment and the False Promise of Originalism
Thomas B. Colby

Dead Hand Arguments and Constitutional Interpretation
Adam M. Samaha

Notes
Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to the Judicial Method
Jordan Wilder Connors

Free Exercise Claims in Custody Battles: Is Heightened Scrutiny Required Post-Smith?
Ariana Cooper

Posted by LR_Columbia at 03:14 PM | Comments (0) | TrackBack

Bullying

Read the comment thread to this post, and then come back and comment here on whether mentioning one of the thread's contributors by name would make me a "bully."

(Seriously: the thought hadn't occurred to me, and if I've a wrong view of netiquette, I'd like to know.)

Posted by hoffman at 08:07 PM | Comments (22) | TrackBack

Trolls, cyberbullying, Dan

This week's New York Times magazine has a fascinating article about online trolls and cyberbullying, which includes a quote from Dan. The article itself is well worth reading. An excerpt:

That the Internet is now capacious enough to host an entire subculture of users who enjoy undermining its founding values is yet another symptom of its phenomenal success. It may not be a bad thing that the least-mature users have built remote ghettos of anonymity where the malice is usually intramural. But how do we deal with cases like An Hero, epilepsy hacks and the possibility of real harm being inflicted on strangers?

Several state legislators have recently proposed cyberbullying measures. At the federal level, Representative Linda Sánchez, a Democrat from California, has introduced the Megan Meier Cyberbullying Prevention Act, which would make it a federal crime to send any communications with intent to cause “substantial emotional distress.” In June, Lori Drew pleaded not guilty to charges that she violated federal fraud laws by creating a false identity “to torment, harass, humiliate and embarrass” another user, and by violating MySpace’s terms of service. But hardly anyone bothers to read terms of service, and millions create false identities. “While Drew’s conduct is immoral, it is a very big stretch to call it illegal,” wrote the online-privacy expert Prof. Daniel J. Solove on the blog Concurring Opinions.

To steal a line from Glenn Reynolds -- go read the whole thing.

Posted by Kaimipono at 01:20 AM | Comments (8) | TrackBack

Welcome to the Blogosphere. . .

Nan Hunter's Hunter of Justice, and Michael Heller's Gridlock Economy. It's great to see scholars at the top of their fields continue to join the conversation.

Posted by Frank_Pasquale at 08:49 PM | Comments (0) | TrackBack

Above the Law's Competition for a New Writer

Over at Above the Law, David Lat is selecting a new writer for the blog in a very interesting way:

Six lawyers, currently or formerly at large law firms, hoping to make the jump to the writing life (read: working in pajamas). One leading legal tabloid, in need of its next lead editor. A mass of angry anonymous commenters, looking for someone new with whom to have a love-hate relationship.

"THIS.... is ATL Idol."

It's a reality-show-style competition, in which site readers will pick the new editor in chief of AboveTheLaw.com -- the recipient of some 3 million page views a month, described by the Washington Post as "a must-read legal blog." We believe it to be the first time that a full-time blogging gig -- one with a salary you can live on, health insurance, and even a 401(k) -- has been awarded through a "reality blogging" contest.

Readers vote, but a panel of judges will help by commenting on the bloggers. Judges include Professor Ann Althouse (Wisconsin Law School, Althouse), Tom Goldstein (Akin Gump, SCOTUSblog), and Dahlia Lithwick (Slate). This should be quite fun and interesting.

Posted by Daniel Solove at 06:24 PM | Comments (0) | TrackBack

A Model Blog Operating Agreement?

A while back, I posted about the process of drafting an operating agreement for CoOp. (Larry criticized us, in part, for offering our members rights that they wouldn't necessarily have had by default.) Ever since, I've gotten regular inquiries from bloggers seeking a copy of our operating agreement to use as a template. I've turned those