Category: General Law


Fantasy’s Apocalyptic Turn


[To our regular readers. This post falls largely in "the Universe, and Everything” aspect of Concurring Opinions' topic mix. It is going on summer, and I thought that you might enjoy a review of some fiction in case you get to the beach. Plus, I’m tired of packing]

Hi, my name is Dave, and I read epic fantasy books. In my defense, other other corporate law professors do it too. But it is still sort of hard to be a public fan of a genre that produces badly written tripe on a regular basis, serialized over multiple volumes in an apparent attempt to squeeze every last cent out of the fan base, recycling old themes over the course of many new “worlds”, which is sometimes just plain embarrassing to buy in a store. It’s no help that the “literary” writers in the genre are pretentious and extremely difficult to read. If I wanted dialog without attribution, I’d read A Frolic of His Own. At least it is about law.

Still, I consume a fair bit of this stuff over the course of the year. And I’ve noticed that authors in recent years have taken a real turn for the darker shades of grey. On the whole, this is a good thing. Adult themes mean better writing, which legitimizes my reading. George R. R. Martin’s Song of Ice and Fire series is the best and most popular example of the trend. Martin’s method is to drive the story forward through the eyes of multiple protagonists. The novelty (for fantasy, that is) is that he regularly kills off these starring characters. There is pretty graphic sex and violence. He also refuses to make any character totally good or totally evil; almost every member of the cast is tarnished. The magic in the series is mostly an afterthought to character development and politics.

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Bye All!

I just wanted to echo Kim and Alice and thank everyone here for letting me guest-blog this month! It was a fun experience, even though I didn’t end up getting the chance to post as much as I’d have liked to. And it was a rewarding experience, reminding me how far we’ve come since the early days of plopping everything into html; the level and vigor of the discussions extended well beyond that of the posts, into the comments and discussions themselves, which were thorough and thought-provoking. So thanks, and keep up the great work!


Thanks to All

Folks, my visit here is up, so I am taking a moment to thank Dan and the others for giving me the opportunity to enjoy this forum. Thanks also to the blog’s readers for their thoughtful comments on my posts.


The court comes to school: lessons on prosecutorial discretion

Last Wednesday, my criminal law students had to go only a few feet to hear a session of oral arguments before the Utah Supreme Court. Both the Utah Supreme Court and the Tenth Circuit Court of Appeals hold arguments at the S.J. Quinney College of Law every so often. It’s always a great learning opportunity, and Wednesday’s arguments were no exception. A felony drug possession case raised important questions about efforts to limit prosecutorial discretion in charging decisions.

A police officer found a plastic baggie with methamphetamine residue in the defendant’s pocket. Under Utah law, this evidence could have been used to charge possession of drug paraphernalia (a misdemeanor), or possession of a controlled substance (a felony). The state charged the felony offense. At a preliminary hearing, the defendant successfully invoked State v. Shondel, 453 P.2d 343 (1969), a Utah case that provides that “where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser.” Wednesday’s arguments focused on how courts should decide whether there is uncertainty as to the applicable punishment: should courts look only at the statutory language to decide whether two statutes impose different punishments on identical conduct, or should the courts consider how the statutes are applied given the facts and evidence of the particular case? On paper, Utah’s felony drug possession and misdemeanor paraphernalia statutes look different—there are ways to possess drugs that don’t violate the paraphernalia statute, and ways to possess paraphernalia that don’t violate the drug possession statute. But in this case, the only evidence to support either charge was the presence of the baggie with meth residue in the defendant’s pocket. No doubt there will be disagreement about whether prosecutors faced with these choices should charge the offense with the greatest penalty (as John Ashcroft directed federal prosecutors in 2003—see discussion here) or the offense with the least severe penalty, as Shondel seems to require in at least some cases. But as Doug Berman has often noted, in a world in which concerns about sentencing disparities tend to focus on judicial discretion, more efforts to regulate prosecutorial charging decisions might be overdue.


Getting Smacked Down When Trying to Propose a More Efficient Contract

You might think a real estate brokerage would being offered a more generous commission, but you’d be wrong. I’m working on selling my house, and I met with Very Big Brokerage, whose standard form explains their commission: 6%. I made a counteroffer, which I knew was unorthodox but thought they’d like. They thought my house was worth $320K, so I proposed that they get 9% of the amount of the sale price above $90K. So if they sell it for $320K they envision, they get not the $19.2K they proposed (6%), but $20.7K (9% of price-$90K). { Note: 320 and 90 aren’t the actual numbers, but I kept the proportions the same from the actual numbers. }

I wanted a higher marginal rate (9%, not 6%) so they’d have more incentive to maximize sale price: each additional $10K would net them $900, not $600. I made the starting point low, $90K rather than $106.6K (1/3 of anticipated sale price, the “revenue neutral” threshold for increasing the commission percent by half), just as a kicker to them, to make them more likely to agree to my plan.

I thought this would be Don Corleone’s proverbial “offer they can’t refuse,” but apparently the appropriate cultural reference wasn’t Marlon Brando’s Godfather, but Mike Myers’s Lothar of the Hill People: “It is a good idea, but it is a new idea. So we fear it and we must reject it.” (Incidentally, does anyone have a link to this quote? I can’t find anything, which shows the obscurity of this early 90s second-rate Mike Myers character I like.) My broker said she liked it but her boss didn’t; the two specific problems she mentioned are (1) payroll would have a hard time processing this, and (2) they often have to split commissions with other brokers, which would be hard with an unusual rate. (I won’t waste blog ink rebutting these rationales.) The mischief-maker in me wanted to say, “it’s my deal or no deal,” and I bet they’d’ve budged. But I liked my broker, and she would’ve hated me starting a pissing contest, which might’ve jeopardized the whole point of my plan — to optimize her incentive to work on my behalf.

But there’s a serious point here: a win-win deal was rejected on inane bureaucratic grounds by a major, successful capitalist enterprise that should understand commissions and valuations far better than I. Two of my fields are economics and employment discrimination; a lurking question at the intersection of both fields is: why would a business discriminate, an inefficient decision to turn away good talent? There are several answers (unless you’re Richard Epstein, in which case the simple answer is, “firms don’t discriminate, or they do and it’s efficient, and in either case we don’t need discrimination laws”), but the one illustrated by my broker story is: just as good people do bad things, good companies do dumb things due to a combination of managerial laziness, risk-aversion, status quo bias, etc. Some of the most successful employers subvert themselves by rejecting talented workers, and some of the most successful realtors subvert themselves by rejecting a great deal that almost certainly would net them more money and maximize their brokers’ incentives to maximize sale price.


Fresh, Fun Law! Get Your Entertaining Law Here!

For some time, I’ve been interested in the use of primary legal sources- the bones of law – as products for sale by media outlets. Examples range from judicial opinions to special prosecutors reports, and from autopsy reports, to trial transcripts. In each category, media outlets and bloggers have taken information that (for lawyers) serves instrumental purposes and commodified it. The process inevitably, I think, changes how the public reacts to legal authority, and how legal authorities write and think about law.

Youtube has accelerated the trend. There are dozens of deposition videos on youtube now, ranging from the famous Jamail deposition, to more classic (and small-scale) fights like the one after the jump in this post. The bottom line is: does dissemination of material like this serve any socially useful purpose? I am skeptical that it shames lawyers, or clients, into better behavior (indeed, it might encourage them). I think it unlikely that it teaches the public important facts about the legal process. It’s pure spectacle.

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Fun with Public Goods Theory

I just wanted to recommend a Swiftian piece by Slate’s Tim Noah, entitled “Would You Privatize National Defense?” Here’s a taste:

Suppose the national defense of the United States were relegated to the private sector. Instead of the publicly funded Army, Navy, Air Force, and Marines, the country would be defended by private militias funded mainly by insurance companies. In the event of foreign attack on U.S. soil, the militias would defend those citizens in the affected areas who’d paid defense insurance premiums through their places of work (or, if self-employed, as individuals). The best-armed troops would defend the wealthiest and most hawkish segments of the population, who would have paid the highest premiums.

Noah spins the idea out along some very fun lines; one advantage of the plan would be that “[e]very citizen would receive an individualized amount of military protection, based on the value each of us placed on defending the homeland.” And of course, to the extent there were problems, “market purists would blame [them on the] inherently inflationary nature of third-party insurance payments and would argue for increasing the portion of national defense paid out of pocket in order to discipline buyers and pressure the private militias to get their expenses in line.”

Well worth the read (or podcast–Slate’s have been consistently good for some time).


Speaking Ill of the Dead with Style

The declining influence of hard-core French post-modernism has led to the unfortunate decline of a wonderful genre: the punchy, anti-post-modernist screed, an art perfected by Alan D. Sokal and his acolytes. The death of French philosopher Jean Baudrillard, however, has given Carlin Romano a vehicle for the outraged academic masses to once more express their contempt for Gallic jargon and obscurantism. His anti-eulogy in today’s Chronicle of Higher Education is worth a read by anyone who enjoys the odd dose of finely delivered invective. For example:

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The (really weird) commodification of the female breast continues

This via Boing Boing:

The ultimate Bay Area Craigslist post: free Berkeley room for nursing mom who’ll share her breast-milk with seven people who’ve read a paper about the nutritional benefits thereof. They are all vegans. And they don’t want to take breast milk away from an actual baby.

We are offering a free room for a woman who is willing to provide breast milk for consumption to the household. We are an otherwise vegan house but have recently read A.O. Wilson’s study of the benefits of human breast milk to all human beings of any age. This is not sexual.

Um, yeah. I’m all for empowering nursing mothers (i.e., removing outdated laws or regulations that impair nursing in public). But this room-with-a-boob ad (which seems to have been later removed from Craigslist) certainly gives off weird vibes. I guess that as a society, we prefer that our commodified breasts either a little more discreet, or a whole lot more sexualized.