Beginning in the late 1980s, when I was in practice, I and other lawyers participated in incubating the market for financial derivatives and securitization transactions. In the beginning, these deals were nowhere near as exciting as the same period’s newly-exciting mergers and acquisitions and finance practices. We would prepare one-off interest rate swap form contracts on a small scale. We would package credit card accounts receivable into pools for sale [...]]]> Causes of the worldwide credit crisis include, perhaps dominantly, the proliferation of innovative financial contracts, purportedly devices that would reduce financial risk but that instead backfired to concentrate and intensify it on a galactic scale. What role did corporate law culture play in this part of the cause? Was it too exciting? Should it be duller?

Beginning in the late 1980s, when I was in practice, I and other lawyers participated in incubating the market for financial derivatives and securitization transactions. In the beginning, these deals were nowhere near as exciting as the same period’s newly-exciting mergers and acquisitions and finance practices. We would prepare one-off interest rate swap form contracts on a small scale. We would package credit card accounts receivable into pools for sale to investors. But this practice area became increasingly exciting through the 1990s and 2000s as derivatives and securitization deals proliferated and came to form whole departments in law firms, rivaling mergers and acquisitions groups in glamour and revenue.

In the early 1990s, when I entered corporate law teaching, there was much exciting academic work being done, the culmination of what Yale corporate law scholar Roberta Romano heralded as a “revolution” in corporate law scholarship which, in the 1960s and 1970s, at least, had been dull. In that earlier period, the focus, in practice and the academy, was merely on positive, doctrinal law, mostly statutes, and on the old-fashioned duties managers owed to shareholders, often meaning practicing lawyers telling creative clients “no” when innovative ideas would violate longstanding duties.

Beginning in the 1980s, the focus in both turned to innovative deals, especially highly-leveraged hostile takeovers and what courts should do about them. Scholarship studied market behavior, looking empirically at deal effects on stock prices, how quickly and accurately information was absorbed into stock prices, how to measure investment risk and value. Important strands of this scholarship, and resulting law, urged facilitating these debt-financed deals.

In practice and scholarship, intensifying through the 1980s and into the 1990s, transactional and financial innovation was the rage. Corporate lawyers turned innovative, cutting edge, exciting, doing deals, developing new contractual devices for financial products—including those I worked on. Corporate law scholars took up finance theory with alacrity, doing exciting research showing how this innovation worked, with many producers and devotees of this work arguing how law should give it maximal space to flourish (though there were dissenters from this dominant view, including me).

As recently as 2005, Professor Romano, a leading scholar in this dominant style, urged doing more of it, more innovative financial engineering in practice and more finance oriented and exciting research in the academy. Professor Romano urged law schools to develop programs in law and finance to assist promoting this excitement, in practice and research, reporting how her school created a degree program in law and finance to seal the exciting links between law and finance and between cutting-edge law practice and legal scholarship.

Earlier this year, on a corporate law panel at the annual meeting of the Association of American Law Schools, though, Professor Romano said the program had attracted little interest among students. As Matt Bodie reports, panel discussion included talk of how the exciting finance models had failed and yet how problematic it is to design corporate law absent reliable empirical information. Professor Bodie wisely wondered whether these facts and lamentations spelled the end of the “revolution” in corporate law—a “post-post-revolution” period.

That makes me wonder, is it an inherent virtue for corporate law practice and scholarship to be exciting, or is being dull okay? Would the world be better off if more participants in corporate life were as dull as corporate lawyers used to be? Is it okay to tell clients “no, you can’t do that,” or, as I recall one stodgy old Cravath lawyer tell a client back in the late 1980s, “you can do that, but be prepared to go to jail”?

Friday Nov. 6, 2009, GW Law, 2000 H Street, NW, DC

Breakfast (8:30 a.m. – 9:15 a.m.)

Welcome (9:15 a.m. – 9:30 a.m.)

Edward Labaton, President, ILEP

Frederick M. Lawrence, Dean, GW Law School

Panel I: The Legislative Agenda (9:30 a.m. – 11:15 a.m.)

Moderator: Jeffrey Manns, Professor, GW Law School

Panelists: Edmund L. Andrews, Economics Correspondent, New York Times

Ricardo R. Delfin, Special Counsel, Securities and Exchange Commission

Dean V. Shahinian, Senior Counsel, Senate [...]]]> As financial regulation reform reaches its apogee, we at GWU are delighted to host a roundtable on Friday Nov. 6 at the Law School (2000 H Street, NW, Washington, DC).   An outline of the Program, co-sponsored by the Institute for Law and Economic Policy, follows, along with how to register.  Note that participation of some panelists is subject to the legislative calendar.

Friday Nov. 6, 2009, GW Law, 2000 H Street, NW, DC

Breakfast (8:30 a.m. – 9:15 a.m.)

Welcome (9:15 a.m. – 9:30 a.m.)

Edward Labaton, President, ILEP

Frederick M. Lawrence, Dean, GW Law School

Panel I: The Legislative Agenda (9:30 a.m. – 11:15 a.m.)

Moderator: Jeffrey Manns, Professor, GW Law School

Panelists: Edmund L. Andrews, Economics Correspondent, New York Times

Ricardo R. Delfin, Special Counsel, Securities and Exchange Commission

Dean V. Shahinian, Senior Counsel, Senate Banking Committee

David A. Smith, Chief Economist, House Financial Services Committee

Dan S. Sokolov, Senior Attorney, Department of the Treasury

Arthur E. Wilmarth, Jr., Professor, GW Law School

Panel II: Federal Enforcement (11:15 a.m. – 12:30 p.m.)

Moderator: Theresa A. Gabaldon, Professor, GW Law School

Panelists: James D. Cox, Professor, Duke University Law School

Rob Cox, New York Bureau Chief, Breakingviews

Lorin Reisner, Deputy Director, Enforcement, Securities and Exchange Commission

James Robertson, Judge, U.S. District Court (D.C.) and/or Stanley Sporkin

Lunch (12:45 p.m. – 2:00 p.m.)

Keynote Speaker:  Louis Aguilar, Commissioner, SEC

Panel III: State & Private Enforcement (2:00 p.m. – 3:30 p.m.)

Moderator: Lawrence A. Cunningham, Professor, GW Law School

Panelists: Lisa M. Fairfax, Professor, GW Law School

Steven D. Irwin, Commissioner, Pennsylvania Securities Commission

Donald C. Langevoort, Professor, Georgetown University Law Center

David Markowitz, Office of the Attorney General, State of New York

Lawrence A. Sucharow, Partner, Labaton Sucharow LLP

TO REGISTER, CONTACT

Laura Stein, Insitute for Law & Economic Policy, laurasteinesq@yahoo.com

Attendance at the luncheon/keynote is limited according to the order in which registration is received.

When Does This Get Pierced?

If you’ve made it through the content of complaints, some data about who gets sued, and descriptive statistics about wins and losses, you basically are pot committed to this veil piercing project. In this post, I’m going to exploit that commitment by describing the results of our statistical analysis of two different kinds of success that plaintiffs may achieve in veil piercing cases: (1) on motions; and (2) at the case level. If you don’t care to follow me beyond the jump, here’s the bottom line (from our abstract):

“Voluntary creditor causes of action promote veil piercing; LLCs are in very limited circumstances better insulated from veil piercing claims than corporations; undercapitalization is strongly associated with success while conclusory grounds like [...]]]>

When Does This Get Pierced?

If you’ve made it through the content of complaints, some data about who gets sued, and descriptive statistics about wins and losses, you basically are pot committed to this veil piercing project. In this post, I’m going to exploit that commitment by describing the results of our statistical analysis of two different kinds of success that plaintiffs may achieve in veil piercing cases: (1) on motions; and (2) at the case level. If you don’t care to follow me beyond the jump, here’s the bottom line (from our abstract):

“Voluntary creditor causes of action promote veil piercing; LLCs are in very limited circumstances better insulated from veil piercing claims than corporations; undercapitalization is strongly associated with success while conclusory grounds like “façade” and “sham” are not; and defendants’ legal sophistication is predictive of plaintiff failure. Extra-legal factors play a more striking and counterintuitive role. Plaintiffs suing companies with few employees are much more likely to win veil piercing motions, and obtain relief in cases, than plaintiffs suing companies employing many workers. This results holds even when controlling for legally-relevant variables. Contrary to both theory and previous empirical work, we also find that judicial liberalism is inversely related to the likelihood of plaintiff success.”

Veil Piercing Motions

Let’s start with the motions level. We ran a logistic regression, where the dependant variable is plaintiff succeeding at the motions level – - either advancing the veil piercing case (e.g., getting VP discovery), or actually winning – - and a number of our variables of interest reach statistical significance (at p ≤ 0.05 (two-tailed)), including judge ideology, defendant firm size, voluntary creditor-based causes of action, and the presence of the shell, façade, and undercapitalization grounds for piercing in the complaint.* Generally, and in accord with our theory, we get much better model performance when we look at motions-level success than at case-level success.

What does this mean?  Well, consider the effect of being a veil piercing target with more (or less) employees.  For example, the figure indicates that the probability of successfully asserting a veil piercing motion against companies with less than 300 employees being is around 0.80. For companies with more than 2100 employees, that number drops below 0.20.  These results hold when controlling for variables like “being an LLC, or not”, “being incorporated in Delaware, or not”, asserting “informalities as a ground in the complaint, or not”, etc.

By contrast, we find that as a judge’s ideology moves in a conservative direction, the mean likelihood of having successful interstitial veil piercing activity increases.  Motions in cases with very liberal judges have a mean predicted probability of being successful of under 50%, while that probability is around 75% for moderate district court judges and near 95%  for conservative district court judges.  This is, in a word, surprising!

Discrete factors also correlate with success on veil piercing motions.

The bottom portion of the figure to the left contains the plots for the substantive effect of the three veil piercing grounds (in complaints) that have a statistically significant effect on veil piercing motion success: shell, façade, and failure to adequately capitalize (or undercapitalization).  The addition of façade and shell grounds to a veil piercing complaint each provide strong negative effects on the likelihood of veil piercing motions in that case, with a shell ground decreasing the likelihood of veil piercing motion success by over 39%, on average, and a façade ground doing the same by nearly 53%, on average.  Stated undercapitalization grounds have the opposite, albeit more modest, effect.  The addition of an undercapitalization ground to a veil piercing complaint makes an interstitial veil piercing motion 14% more likely to be successful.  We also find (but do not illustrate) that corporations owned by artificial shareholders are more likely to be subject to successful veil piercing motions than LLCs owned by artificial shareholders.

Here’s what this suggests to me: facade and shell grounds in complaint signal/reflect a case that is pretty thin — the grounds are totally conclusory — such claims fall away in cases at higher-than-usual rates.  By contrast, undercapitalization signals a strong case — one that evidences a certain about of seriousness about the veil piercing claim.   With respect to voluntary creditors (i.e., contract claims) recall that plaintiffs can bring both voluntary and involuntary creditor claims in the same complaint.  Still, the expectation from theory was that voluntary creditors ought to win less often than involuntary ones.  We don’t find that.  We find instead that complaints with voluntary creditor causes of action in them are more likely to be associated with veil piercing claims that survive longer.

The corporation-LLC finding is expected.  LLCs are designed to be more informal.  They ought to be pierced less often.

Case Level Success

As I discussed in an earlier post, figuring out what veil piercing success at the case level means is a little bit complicated. We decided to treat veil piercing at the case level as successful if: (1) the veil has been affirmatively pierced by a court through veil piercing motion activity OR (2) when, after veil piercing has been litigated on the record (through motion activity), the case settles while veil piercing is still “alive” in the case (i.e., having never been dismissed or denied).  In the paper, we provide alternative set of results based on the coding of veil piercing success both more narrowly (excluding all settlements) and more broadly (including all settlements where veil piercing is still “alive,” regardless of the affirmative presence of veil piercing motions in the case).

We again find that employee size has an important relationship to success.  Very small firms have a probability of case level veil piercing of around 20%; that number quickly approaches zero as firm size increase. Similarly, the more conservative a district court judge is, the more likely the case he is presiding over is to have a case-level veil piercing success.  This result, of course, mirrors that in the veil piercing motion context.  While the most liberal judge’s case has around a 15% probability of having ultimate veil piercing success, the most conservative judge’s case has around a 30% probability.

Individual factors also matter.  When companies are incorporated in different states from where they operate (holding their size constant) the presence of such sophistication decreases (by about 10%) the likelihood that the firm’s veil will be pierced.  The inclusion of undercapitalization as a ground increases (by about 10%) the likelihood of there being a successful case-level veil piercing.

The last post in this series will discuss these results.

* * *

FN*  We generally do not find statistical significance at the motions level for our variables regarding entity choice,  shareholder identity, defendant sophistication, judge gender or race, appellate court control, or the increased incidence of success when failure to observe formalities, inadequate capitalization, and domination and control were cited as veil piercing grounds against corporations compared to LLCs

There’s value in this approach, not least because opinions shape reality. But there’s a problem too.  Not only are opinions unrepresentative, but they come late in cases.  The result is an extreme form of selection.  It’s not clear (to me, anyway) what the null hypothesis regarding the effect of independent variables  ought to be for late-stage dispositions.

Dockets offer the promise of a different approach: asking which factors correlate [...]]]> If you look at opinions, winning in a veil piercing case is pretty easy to define: did the court agree to pierce the veil, reaching through an entity to its shareholders. If you were inclined, you could model success at those terminal moments in cases, asking which factors (described in the opinions) correlated with courts agreeing to pierce.

There’s value in this approach, not least because opinions shape reality. But there’s a problem too.  Not only are opinions unrepresentative, but they come late in cases.  The result is an extreme form of selection.  It’s not clear (to me, anyway) what the null hypothesis regarding the effect of independent variables  ought to be for late-stage dispositions.

Dockets offer the promise of a different approach: asking which factors correlate with success or failure early in cases.  Further, assuming that adjudicated motions teach the parties about the strength of their cases, and that they settle strategically, we can even start to learn from the timing and incidence of settlement.

In this post, I’m going to relay some descriptive statistics about the veil piercing successes that plaintiffs achieved in our data. (I’m continuing to pull the data and some text from our paper.)  To those who are getting annoyed by all of these posts, I’m sorry!  I’ve been living with this project for a long time — I’m excited to finally share it publicly.

We coded 550 motions raising veil piercing problems, and 580 non-veil piercing motions, in our 690 cases.  Overall, about half of all veil piercing motions result in plaintiffs advancing their veil piercing claims (but not ending the case), about fifteen percent involve judicial determinations against the veil piercing claim, twenty percent success on the merits (if defaults are included), and the remainder of motions were pending at the time of settlement. (Recall that 2 of 3 cases overall ended in settlement).

Excluding defaults, and dropping pending motions, veil piercing litigation is a story of wild early success: plaintiffs prevailed — in one form or another – on approximately 85% of all veil piercing motions in our dataset.  Many cases had their veil piercing claims still “alive” at the time of settlement.  Indeed, using the most liberal definition, which includes settlement after motion practice as victory, 78% of cases resulted in plaintiffs realizing some value from their veil piercing claims.

But very few cases actually led to veil piercing, on the merits, outside of defaults: only 37 cases, out of 690, contained a judicially-enforced veil piercing on the merits.  That’s around 6%.

Moving parties were less likely to win non-veil piercing discovery motions  than veil piercing discovery (a 67% success rate versus 90% in resolved motions) and plaintiffs were less successful at fighting off motions to dismiss (61% plaintiff prevail rate versus 88%) and summary judgment (62% versus 90%).  One explanation for this effect is that veil piercing motions (i.e., demanding VP discovery, or fighting of a motion to dismiss) are somehow not selected out of cases to the same degree that ordinary motions are: defendants either are too attached to them (think they are going to win when they won’t) or plaintiffs insufficiently so (think they lack settlement leverage when they have it).

The advantage of looking at success and failure at the motion-by-motion level is that it promises a chance to move the problem of selection back in cases to a moment where we wouldn’t reasonably expect for plaintiffs and defendants to have a realistic sense of their chances. We can fairly hypothesize that some independent variables — judicial demographics, plaintiffs and defendant characteristics, legal rules and planning — will affect the parties’ respective successes and failures on (say) the grant rate in motions to dismiss.  As I’ll discuss in penultimate post in this series, that intuition turns out to be basically correct.

Confused?  Read the paper!

The piece, reportedly stimulated by something Justice Sotomayor said about the role of gender in judging, spends the previous 30 pages: (1) reviewing literature about possible differences in attitudes and experience judges may have, [...]]]> On the last page (31) of a new empirical article by law professors concerning the role of gender among judges, the following conclusion appears: “we find that women do just as well as the men [sic] in terms of basic judging measures.”  I am not surprised and wonder: (1) what portion of the population, among laypersons or lawyers and certainly legal academics, would really be surprised by this; (2) whether we need an empirical study before drawing such a conclusion; and (3) whether any empirical study, this one included, can realistically provide evidence for (or against) such a conclusion.

The piece, reportedly stimulated by something Justice Sotomayor said about the role of gender in judging, spends the previous 30 pages: (1) reviewing literature about possible differences in attitudes and experience judges may have, according to gender; (2) summarizing data on state high court judges, 1998-2000 (and adding a smaller bit of data on federal judges), concerning numbers of opinions they write, how often they are cited by other courts, and how often they filed panel opinions disagreeing with panel judges of their own political party; (3) summarizing data about such matters as where judges went to law school and marital status; (4) reporting elaborate regression analyses of these data; and (5) testing various hypotheses, using these factors and resulting relations among the data, to tell us whether men or women are better judges (measured by things like opinions produced and citation frequency).

To be fair, the paper’s four authors acknowledge, in the end, limitations of the empirical methodology they use, emphasizing weaknesses in the inputs, and the meaning of resulting outputs.  In addition, the paper manifests requisite hallmarks of good academic work: a literature review, statistically testable hypotheses, reports of the statistical analysis plus qualifications and modesty about the entire undertaking.   

Furthermore, of course, in principle, the quest is valiant, for confirming hunch and intuition with statistical data is a vital exercise and tradition in academic research. And this paper may provide more support for its assertions than I could offer for claims I may make, like, in contract law: (1) Ellen Ash Peters was a more thorough and convincing judge than Learned Hand; (2) Judith Kaye was at least as persuasive and clear as Oliver Wendell Holmes; and (3) Benjamin Cardozo was superior to all of them on all counts. 

Even so, this paper puzzled and troubled me like few others ever have.    It led me to wonder whether all the work that went into preparing it, and my hour reading it, was worthwhile, and whether we have learned anything from it.

NB: The paper, oddly entitled Judging Women, by Stephen Choi (NYU Law), Mitu Gulati (Duke Law), Mirya Holman (Duke Law/UNC Econ/Pol), Eric Posner (Chicago Law), can be found here.

This season, there are several noteworthy forums, including at Pitt and Seton Hall Law Schools and, just two weeks ago, an Institute for Law and Economic Policy conference in which I participated, featuring Joseph Stiglitz (Columbia), Kenneth Feinberg (US special compensation master), Lucien Bebchuk (Harvard), Charles Elson (Delaware), Jill Fisch (Penn), Harvey Goldschmid (Columba), Frank Partnoy (San Diego), and [...]]]> Policy formulation benefits from academic knowledge, often showcased at timely conferences, and there have been plenty of contributions this year and last concerning financial regulation reform amid the economic crisis. Late last fall, I posted a list of conferences pending then, including GW Law’s Panic of 2008 Conference, which will result in a book to be edited by my GW Law colleagues, Larry Mitchell and Art Wilmarth.

This season, there are several noteworthy forums, including at Pitt and Seton Hall Law Schools and, just two weeks ago, an Institute for Law and Economic Policy conference in which I participated, featuring Joseph Stiglitz (Columbia), Kenneth Feinberg (US special compensation master), Lucien Bebchuk (Harvard), Charles Elson (Delaware), Jill Fisch (Penn), Harvey Goldschmid (Columba), Frank Partnoy (San Diego), and a dozen others.

At GW Law, we will host a follow-up to our Panic of 2008 conference on Friday November 6, co-sponsored by ILEP, featuring academic contributions from Jim Cox (Duke), Don Langevoort (Georgetown) and Art Wilmarth (GW), plus participants from Treasury and the SEC and Senate and House Committees having jurisdiction and from the media (including Ed Andrews, New York Times). Discussion will concentrate on the emerging legislative agenda, along with enforcement (federal, state and private).

A notable interactive on-line interchange will by hosted by Steven Davidoff (University of Connecticut), using his platform as editor of the New York Times on-line deal forum. The description suggests a provocative discussion showing skepticism about standard interpretations of the crisis and pending prescriptions for reform. Notable participants include David Zaring (Penn/Wharton, co-author of an article with me on the subject, forthcoming in GW Law Review), Joseph Grundfest (Stanford), David Skeel (Penn) and Lynn Stout (UCLA).

As the Administration and Congress write legislation, ideas and input from events like these, seeming to be on the sidelines, can be important and useful. Tune in.

How to Publish a Scientific Comment in 1 2 3 Easy Steps

(H/T: Leiter.)

I’ve got to say, I find the prospect of a fall with no duties other than those I set for myself more than a little terrifying. Putting aside the absence [...]]]> This semester, I get to take my first sabbatical. As Larry observed, law firm sabbaticals are a thing of the past, and so lawyers might see this opportunity as yet more evidence that academics are insulated, head-in-the-clouds, wastrels. Perhaps, though it might help to see the sabbatical, like tenure, as simply a form of alternative compensation for professors, rather than a serious spur to productivity. And, like tenure, the sabbatical is a relic: while many years ago, a regular sabbatical policy was commonplace, now it’s my sense that it’s somewhat more rare.

I’ve got to say, I find the prospect of a fall with no duties other than those I set for myself more than a little terrifying. Putting aside the absence of structure, and colleagues to talk to, there’s the problem of figuring out which kinds of projects are the right size. If I pick something too big, I’m not going to finish (and thus feel pretty bad about having nothing to show for the immense privilege that the Law School and its stakeholders have extended me). If I pick something too small, well, you get the idea. So I’m looking for the sabbatical goldilocks. As I’ve learned, painfully, promising goldilocks projects in the empirical world are often (forgive me) wolves in sheep’s clothing. You start collecting data, and before you know it it’s two years later and you realize you never fully specified your research question. Yikes!

Some folks use their sabbaticals to do something entirely different, e.g., hiking the Appalachian trail (no, seriously); writing fiction; constructing toasters from scratch. I fear I’m more conformist than that. Apart from some personal business, I’ll probably be spending the fall writing more articles, coding more data, thinking about how to be a better corporations teacher, and blogging a little bit more often than I did over the summer.

I do have two larger intellectual projects that I’m going go try to fold in. The first is to read (again) the works of the Situationalist project. I’ve read several of the project’s papers – in one case, multiple times – but I still don’t think I really understand many of the claims, and, more importantly, the project’s motivation. Since there are tons of brilliant folks affiliated with the group, this obviously is a situation that I’ve got to remedy.  Second, I want to read at least a large sample of the articles that Herb Kritzer identifies here as fruits of pre-1940 empirical legal studies work. One of the few abiding disadvantages to not having a PhD is is a missing sense of the intellectual history of your field. That problem is particularly acute in ELS, where (to read the dates on citations in most recent papers) nothing useful was written before 1995.

I suppose that’s it. I’m not training to climb Everest. I’m not going to reorient my scholarly path. I’m not taking on a court case (though the amici in Jones appear to be having tons of fun). I can’t imagine that I’ll pick up a new hobby. Nevertheless, I’m pretty sure I’ll be spending more hours working than I do when I’ve got classes to teach!

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is [...]]]> Sandy Levinson has a thoughtful new essay lamenting the dwindling number of book reviews of books about the law — The Vanishing Book Review in Student Edited Law Reviews and Potential Responses, 87 Tex. L. Rev. 1205 (2009).  He discusses how the Michigan Law Review used to run 30 to 40 book reviews in its book review issue but now is running only about 10 to 15. He notes that among the top 20 law reviews, in 1987-88, they published about 125 reviews; in 2007-08, they published only 42 reviews.

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is why we’re starting a new project at Concurring Opinions — we’ll serve as a forum for book reviews.

We will accept submissions from our readers — law professors, lawyers, law students, and academics in other fields are welcome to submit reviews.

The reviews we envision would be approximately the length of a New York Times book review — somewhere between 500 to 2000 words.

We will try to accept as many reviews as we can, but we will exercise editorial discretion if we think a review isn’t appropriate for our blog.  We’re aiming for serious reviews.

If you’re interested in writing a book review for us, we recommend that you first email us with a brief description of what book you’d like to review and your background, as we don’t want you to go through the work of writing a review only for us to think it doesn’t fit with our blog.  Emailing us in advance won’t guarantee acceptance, but we would hope to give you a good indication of whether we’d be interested in your review.

We believe that there’s a need for serious yet short book reviews, ones that aren’t as long as those published in law reviews.  That’s why we’re starting this project.  We expect it to be ongoing, so if you’ve read a law-related book recently and want a forum to publish your views about it, please think about doing a review for us.

If you publish a book review here, you keep copyright in your work, so you can use it, publish it, and disseminate it later in whatever way you desire.

So please email us if you’re interested.

There is considerable Web commentary on many aspects of the law journal submission process, which Dan Solove helpfully collects here.  Few address cover letters directly, and those are humorous, sarcastic, or questions without comments.There is a  sample cover letter on page 288 of Eugene Volokh, Academic Legal Writing, but I could not find a single one on the Web.

When discussed, there are conflicting impressions and advice. Co-op guest blogger Elizabeth Nowicki urges writing “a [...]]]> Following this post are four sample law review submission cover letters I have used in recent seasons.   I provide them after detecting an absence of any samples existing on the Internet and reviewing various posts and comment threads addressing the subject that leave readers conflicted about what a cover letter might accomplish. 

There is considerable Web commentary on many aspects of the law journal submission process, which Dan Solove helpfully collects here.  Few address cover letters directly, and those are humorous, sarcastic, or questions without comments.There is a  sample cover letter on page 288 of Eugene Volokh, Academic Legal Writing, but I could not find a single one on the Web.

When discussed, there are conflicting impressions and advice. Co-op guest blogger Elizabeth Nowicki urges writing “a crisp one-page cover letter” though Trevor Morrison and my GW colleague Orin Kerr, disagreed, opining they are useless.   Scott Dodson opined that, if a famous professor read and admired a piece, to say so in the cover letter, but an articles editor said that will not be believed unless the famous professor communicates that directly.   (Some other conflicting views appear in this thread addressing more general issues.)

What should a cover letter say? All the wrangling aside, some consensus appears as follows:

Basics. Obviously, submissions must indicate author’s name and contact information (mailing address, phone, email) and article title. Unless submitted in an electronic format that transmits this information, the cover letter is the place.

Word Count. Many journals request stating the piece’s word count, including footnotes. In addition, many journals since 2005 have express word count limits or preferences, and request cover letter explanations for approaching or exceeding the guidance.

Brevity. Keep it short, usually a single page of three paragraphs, never more than two, and then only if justified by background research and context otherwise not evident from the piece.

Main Point. State the piece’s thesis, explain its uniqueness and importance.

Prior Work. Reference your prior works, when relevant, not necessarily journal prestige, although not holding this back when relevant. (Those without prior publications may need to explain a bit more why they are pursuing scholarship, perhaps even referencing relevant credentials.)

You. Mention brief biographical data only if relevant to the piece, such as your role in the relevant discourse (or the foregoing caveat for new scholars).

Style. The cover letter should be thoughtful and sober.  You can try to entertain, but beware that attempted humor can backfire. Above all, avoid gimmicks, including strong sales pitches, exaggerated statements of importance or things unrelated to the piece.

Sample One: June 1, 2004, published in UCLA Law Review

June 1, 2004

ARTICLE SUBMISSION

CHOOSING GATEKEEPERS:
THE FINANCIAL STATEMENT INSURANCE
ALTERNATIVE TO AUDITOR LIABILTY

The enclosed Article will be the first to examine fully from a legal perspective a proposal to develop financial statement insurance as an alternative to the traditional approach to financial statement auditing. The concept was pioneered by an accounting professor, who wrote a few pages about it in a law journal, which has been cited in passing about a dozen times in other law review articles but never fully evaluated.

The article will open new avenues in a longstanding debate concerning how best to promote reliable financial reporting using third-party auditors. The financial statement insurance alternative takes a radically different approach to achieving the goal. This article is a policy piece, which will be of substantial utility and interest to all scholars of securities regulation, and many scholars in corporate law and insurance, as well as all those concerned about the financial reporting process.

An abstract accompanying this submission, and following the paper’s Table of Contents, provides more summary information. I hope you will accept the piece for publication.

Lawrence A. Cunningham

Sample Two: February 21, 2005, published in Michigan Law Review

February 21, 2005

ARTICLE SUBMISSION

PRIVATE STANDARDS IN PUBLIC LAW:
COPYRIGHT, LAWMAKING AND THE CASE OF ACCOUNTING

The accompanying Article provides the first comprehensive analysis of the consequences for copyright protection when privately-promulgated standards are embodied in public law. This problem is assuming increasing significance under a national policy Congress established in the late 1990s, being implemented by administrative agencies, of leveraging government’s regulatory function by incorporating privately-promulgated standards into law. The issue’s significance is best illustrated by the case of accounting standards, in which government’s leveraging strategy dates back several generations, but for which recent Congressional restructuring of the standard setters poses novel questions.

The Article drives new analytical avenues in three legal areas: copyright law, administrative law and securities regulation. Its inquiries concern the broad public policy context in which government exercises its regulatory powers and the consequences of its leveraging strategy for fundamental conceptions of fairness promoted by assuring free public access to binding laws. In brief, the Article contributes a framework for resolving critical but hidden public policy challenges and nominates a governmental official to implement it, while also providing necessary guidance for the federal judiciary.

Additional summary information appears in an abstract included with this submission. I hope you will accept the piece for publication.

Lawrence A. Cunningham

Sample Three: August 8, 2006, published in Vanderbilt Law Review

 August 8, 2006

A PRESCRIPTION TO RETIRE THE RHETORIC OF
“PRINCIPLES-BASED SYSTEMS” IN
CORPORATE LAW, SECURITIES REGULATION AND ACCOUNTING

The accompanying Article was inspired last fall when a Canadian task force on securities regulation sought my advice about whether Canada should adopt a “principles-based” or “rules-based” approach to that law. I said that the notions of principles- versus rules-based systems are unrealistic. Such rhetoric has spread worldwide since 2002 when many attributed corporate frauds epitomized by Enron Corp. to suspicion that the US accounting system is “rules-based” and Congress instructed the SEC to study whether it should be “principles-based.”

Similar rhetoric appears in discourse concerning corporate governance, with fans of Delaware law increasingly calling it “principles-based,” chiefly as a way to contrast it with US federal securities regulation, lambasted as “rules-based.” Since Enron, numerous countries are boasting that their corporate law, securities regulation or accounting systems are principles-based, including Ireland, New Zealand, and South Africa. The Canadian inquiry and this stirring rhetoric led me to research and write this Article-which confirms and adds depth to what I told the Canadian task force.

Research for this Article first engaged jurisprudential literature addressing rules versus standards. This is a fascinating body of knowledge that also contains considerable discord about what rules, standards and principles are; how they interact; what they should be called; and which are better. My analysis of the discord leads one to appreciate how these categories are not discrete but involve a continuum and how the concepts are not isolated but iterative. Armed with this learning, I then deepened my research into how these concepts are used in my major fields of expertise: corporate law, securities regulation and accounting.

In these fields, I discovered much rhetoric about rules and principles, including descriptions of the fields as rules-based or principles-based. But I found no systematic analysis of whether these labels are true or even meaningful-and my systematic analysis provides no basis to support the common rhetoric. I also researched and analyzed several proposals or studies about how one might design these fields as rules-based or principles-based, including a proposal connected to the Canadian task force’s inquiry and the study that Congress directed the SEC to prepare. I discovered that even when one tries consciously to fashion any of these systems as rules-based or principles-based, the quest fails.

I then tried to understand why the rhetoric promoting principles-based systems has taken hold and especially why it is spreading in the post-Enron world. Several explanations emerged from my research and reflection. The rhetoric could reflect a struggle against an excess of rules that might indeed have explained some of the shenanigans at Enron and other companies. Or it could show desire to promote principles of business ethics, also blamed for the Enron-type debacles.

While both of these explanations prove credible, my involvement with the Canadian task force exposed me to a third possibility. There is an intense political struggle in Canada among its provinces for leadership in crafting new national securities regulation. This began to explain the task force’s inquiry of me: British Columbia is pushing a principles-based approach while Ontario is resisting it. The two provinces have essentially opposed political (and economic) interests in the outcome of their struggle, and these stakes seem more important than any particular features of the actual design of the system.

This insight led me to reflect on how this struggle parallels those concerning federalism in US corporate governance and leadership in establishing global accounting (between the US and the International Accounting Standards Board, IASB). I position this part of my analysis in the context of the regulatory competition literature. Analysis suggests that these efforts seek product differentiation, with British Columbia, Delaware and IASB promoting their products as principles-based in contrast to their opponents’ rules-based products. But since my inquiry suggests that such products are unrealistic, the efforts also are a form of consumer deception that should be arrested. Perhaps the various jurisdictions should compete rather than harmonize, but the competitors’ efforts at product differentiation must not advertise falsely.

The article reflects all of this and remains at around 26,000 words. In short, it questions increasingly common global rhetoric that denominates legal or accounting systems as “rules-based” or “principles-based.” In doing so, the piece contributes significantly to corporate law and securities regulation (and accounting) by systematically investigating their bases in rules and principles, offers important insight concerning regulatory competition, and makes worthy if more modest contributions to jurisprudence on the rules-standards question. I hope you will offer to publish the piece.

Lawrence A. Cunningham

Sample Four: March 4, 2008, published in North Carolina Law Review

March 4, 2008
ARTICLE SUBMISSION

THE SEC’S GLOBAL ACCOUNTING VISION:
A REALISTIC APPRAISAL OF A QUIXOTIC QUEST

The accompanying Article provides the first comprehensive analysis of the revolutionary proposals the Securities and Exchange Commission is making to jettison traditional US accounting requirements in favor of international standards. This subject is a matter of intense discussion worldwide in many settings. This Article offers numerous perspectives on the pending debate and examines challenges that must be met in the near and medium term. It synthesizes recognized issues in the discussion and extends them in several important directions that continue to be overlooked. It is intended to be a useful immediate contribution to the academic and policy discussion and furnish an assessment that will remain useful over the longer term.

My background makes me nearly uniquely qualified to provide this contribution. My scholarship is widely-cited and well-known as providing a leading, informed and reflective analysis that often contrasts with commonly- but mistakenly-held conceptions in pending debates. Recent examples of this style of my work appear in some of the best law reviews in the country, including Minnesota (2007), Vanderbilt (2007), Columbia (2006), Michigan (2005) and UCLA (2004), among numerous others. This work occupies what can be called “law and accounting,” which usually means encounters with numerous legal subjects including, in the case of the current Article, administrative law, comparative law, corporations, international law and securities regulation.

I have prepared this Article to be the most thorough and realistic appraisal of the SEC’s policy vision and to illuminate this debate for a wide audience of scholars, practitioners and policy makers within the US and abroad.

Additional summary information appears in an abstract included with this submission. I hope you will accept the piece for publication.
Lawrence A. Cunningham

Hat Tip: Jake Barney

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded [...]]]>

Richard Posner. Founder. Latter-Day Apostate?

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded professors behave differently than those taught by professors disposed toward humanism or critical-legal studies?

The bottom line: students taught by economically-minded professors were both more selfish and more likely to see fairness as a form of kaldor-hicks efficiency.  By contrast, students taught by humanists were more generous and also  likely to see fairness as a matter of equity.

These are important results for those interested in legal education.

• First, and most obviously, it suggests that our preferences for altruism and the content of fairness are highly manipulable — one semester of teaching by a professor – at Yale, no less – can affect them.  I admit to being a bit surprised by the size of the effect, given the mixed results from earlier work on the relationship between economics and altruism.  It’s also surprising that Yalies are so impressionable!  I wonder whether the effect persists past a semester, and whether better coding of actual classroom discussion would have changed the results.
• Second, it suggests yet more reasons for researchers to think hard about the effect that law school teaching has on the content of legal doctrine.  As I’ve argued, it’s quite likely that some law school professors who never published a lick have had more effect on substantive legal doctrine than those who’ve written reams, simply by influencing how their students (who went on to be lawyers and judges) thought about the content of rules and the byways of arguments.  We should do more work like this!
• Third, and most personally, this makes me nervous.  I’m a highly socratic teacher who places lots (and lots) of emphasis in the first-year on efficiency-arguments and on the need to look beyond questions about distributional equality in the present case.  I thought that by doing so I was helping students to think critically about the dynamic nature of contract law – the relationship between contract rules and market price; the usefulness of an intelligent system of defaults; the importance of getting beyond gut intuitions.  But maybe I’m also indoctrinating the students to grab more of the pie for themselves.  Nuts.

*The method they used to code economic preferences was, to be frank, a little mystifying.  They gave points for PhD’s in economics, but had to make exceptions for Alan Schwartz, PhDless but L&E to the bone, Guido, for obvious reasons, and both Robert Gordon and Carol Rose, who are similarly off-set.  Why not simply ask the professors themselves how much they emphasized economic rhetoric in class?  Or the students?

I’m convinced that these interests are distinct, though they overlap. Here’s a possible example of the gap in action: At your law school, do faculty members regularly attend and participate in workshops presented by speakers who specialize in fields other than their own? Do they make, in other words, what might be characterized as “karmic” contributions to the intellectual life of the school? Are they [...]]]> My post on the challenges facing the law school Research Dean contained an implicit and unexamined assumption regarding a gap between the interest of the individual faculty member in producing and distributing research and scholarship, on the one hand, and the interest of that faculty member’s law school in the research and scholarly activities of its faculty, on the other hand.

I’m convinced that these interests are distinct, though they overlap. Here’s a possible example of the gap in action: At your law school, do faculty members regularly attend and participate in workshops presented by speakers who specialize in fields other than their own? Do they make, in other words, what might be characterized as “karmic” contributions to the intellectual life of the school? Are they good scholarly citizens?

Not everyone is always available to show up, and having too many people show up could undermine the value of the workshop. Yet there are folks who don’t show up because they don’t care, or can’t be bothered, or don’t see the value in taking time to kick around the ideas of someone who can’t help them with their own work. I believe that the interest of the individual (absent) faculty member may be served by that judgment, at least in a sense, but the interest of the school is not. A lively workshop culture means an intellectually engaged faculty, which can have tangible benefits for those local faculty; which can generate reputational benefits among other law schools; and which can have payoffs in the classroom for students.

In short, I’m aware of a kernel of Chandler’s Visible Hand at work in my Research Dean-ing. Other things being equal, I’d like to get more colleagues to attend more workshops.

Am I overstating the case? Have my metaphors run roughshod over important distinctions?  I admit that I like going to workshops, even workshops in fields far removed from mine, and not just because it’s part of my role as Research Dean. It’s entirely possible that my view of the matter is colored by my own idealized vision of an academic community. I also recognize that by putting “karmic” participation in the life of an institution onto the table, I complicate the sizable expectations that already confront would-be and new professors. Institutional interests have distributional consequences.

Thoughts?

I’ve talked to a lot of folks at a lot of schools with different philosophies on law school centers.  Even folks within the same school often have widely divergent views about what law school centers can and should be doing for the overall law school enterprise.  And of course, it must be acknolwedged that centers can serve a variety of different functions within a law school – and different individual centers can have different individual roles.

So my question is whether there is any way to get to the heart [...]]]> So here’s a question for people thinking about the nature of law schools and the nature of scholarship (and with thanks to Mike Madison for picking up on my invitation to blog more about his research deanship).

I’ve talked to a lot of folks at a lot of schools with different philosophies on law school centers.  Even folks within the same school often have widely divergent views about what law school centers can and should be doing for the overall law school enterprise.  And of course, it must be acknolwedged that centers can serve a variety of different functions within a law school – and different individual centers can have different individual roles.

So my question is whether there is any way to get to the heart of the center question.  Are there one or more key ideals that all centers in law schools should be able to live up to, or to contribute to the school?  And, if so, is it something other than:  “It’s a marketing device to attract faculty/students.”  (Not that there’s anything wrong with that – I’m asking the question out of legitimate interest.)

We’ve been talking about this recently at my school and the question is of particular interest here because we have a number of different centers that were set up under vastly different conditions for vastly different purposes.  Some are research focused and obtain grant funding.  At least one has a private endowment.  Some take advantage of collections of faculty who specialize in particular subject areas.  Presumably none of them are cost-neutral for the school, although none of them drain big bucks out of the budget either.

There are always political questions within faculty about centers and the role of faculty who happen to operate as center directors (I plead guilty to the charge of being a center director).  “Why does s/he get [a lighter teaching load/a director's stipend/a dedicated administrative support person/_______]?”  Pick one or fill in the blank.

But politics aside, what do centers ideally contribute/potentially detract from a school?

Some possibilities…

- increased research synergies?

- impact on student admissions (ie strong students in specialist areas who might not be attracted to a particular school otherwise)?

- impact on faculty recruitment (but this could be positive or negative as it may attract faculty who write and teach in the area(s) of the center(s), but dissuade those who can’t see that they would fit in to a center; also hiring decisions internally could be impacted by a perceived need to “staff the centers”)

- impact on law school identity (again, pros and cons to this one – do you want to be known as a specialist school or a generalist school, and why)?

- ability for a school to attain a high ranking in a U.S. news specialty even if the school overall isn’t particularly highly ranked?

- focus for pulling together research grant or other funding (either by themselves or in concert with other institutions or other departments of the university)

- can be instrumental in pulling together specialty curriculums (again, this can be done without centers and this may add or detract from a school depending on its overall philosophy of the curriculum)

Anything else?  Are centers good or bad overall or is it institution-specific?  Are they mainly for marketing purposes or do the roots run deeper?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of [...]]]> What’s the connection between law professors and stand-up comics?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of social norms them by inferring their existence from regular behavior and from anecdotal reports. That interplay between observable, objective, and “external” dimensions of an innovation environment and subjective, “internal” dimensions of that environment is central to understanding its mechanics.

In fact, that interplay is probably central to understanding the mechanics of any cultural context. It’s a central theme in the work that I’ve begun on “cultural commons” with Brett Frischmann and Kathy Strandburg. And it connects stand-up comedy and law faculties. More below the fold.

In a comment on my last post, Jacqui Lipton asked about the greatest challenge that I’ve faced as Research Dean at Pitt. The short answer is that it is relatively easy to design, implement, and manage objective, observable dimensions of the faculty’s research and scholarship environment. It is very difficult to change the subjective, “internal” dimensions of that environment. Much of the job reminds me of my years teaching six- and seven-year-olds to play soccer: I could teach the rules of the game. I could teach basic skills and some rudimentary strategy. These were the objective, observable pieces. I could not teach instinct or passion, and I could not teach the idea that individual investment and collective success are inextricably linked. These were the subjective, “internal” pieces. Some girls would collect the ball at their end of the field and tear toward the other goal. Some of these were more skilled than others. Many of them intuited the proposition that individual effort and team success were linked. I’d call these players the naturals, “natural” in the sense that skills would come in time but they had a nose for getting to the right place, at the right pace. Some of them were skilled but selfish, human highlight reels, at least in their own minds, but in roughly equal portions both detrimental and helpful to the team. And there were the dandelion pickers, who would stab at the ball if it happened to roll in their direction.

Much of this maps on to the Research Dean question. (I am not the inaugural Research Dean at Pitt; one colleague held the position before I did. When I was appointed three-plus years ago, however, our (then new) Dean charged me with scaling things up.) On the objective, observable side, we have added a number of things, few of them really unique or innovative but most of them useful in one way or another: We instituted a program of regular faculty workshops, including faculty exchanges with some other law schools. We established an SSRN Research Paper Series and a program of stocking it with faculty scholarship. I built a Faculty Blog (which consists of my posting about my colleagues’ research and scholarship). I produce an annual internal report of faculty research and scholarship, including future research directions, that is independent of the information collected annually by the Dean and that is circulated to the whole faculty. I’ll save for another time, perhaps, the additional two or three paragraphs that would describe the programming and activities that I undertake or support.

All of that, however, is the relatively easy part. The challenging part is persuading the faculty dandelion pickers, as it were, to collect the ball in their own end and tear toward the other goal. The metaphor is a little overwrought, of course; I’m not misdescribing our faculty when I claim that we have no real dandelion pickers. Our faculty does, however, house a group of individuals with a broad range of subjective beliefs and expectations regarding their own research and scholarship and an equally broad range of beliefs and expectations regarding the relationship between their work and the institutional interests of the school. Changing either set of beliefs and expectations, if that is something that I’d like to do (and sometimes, it is) is very, very difficult. I can’t take for granted that every faculty member is motivated by the same goals, or that any of them necessarily subscribes to my goals, or to the Dean’s goals. Every faculty has its own range of beliefs and expectations, and its own history. There can be no assurance, as the saying goes, that lots of objective, observable programs that support research and scholarship will, in fact, produce more or better research and scholarship, or that it will produce more engaged scholars, or that the research and scholarship that a faculty produces will have greater impact in the world.

There are two obvious exceptions.  One is appointments; if a faculty (or a Dean) really wants to turn the ship, then hiring people who bring the desired set of beliefs and expectations with them is a direct way to do so. But there can be no assurance that the views of the Research Dean will have a strong bearing on the conduct of the Appointments Committee. There are always other important interests and goals at work.  Two is the scholarship of the Research Dean.  It’s important, I think, for the Research Dean to model what is expected from the rest of the faculty, and it certainly helps if the objective, observable features of the environment enrich the Research Dean’s beliefs and motivations.  For me, they certainly do.

It’s implicit in what I’ve summarized that some of the pieces of my Research Dean role are in tension with each other. It’s also implicit that if one of the things that I’m trying to do is to nurture the role of a law faculty as a kind of cultural commons (knowledge goes in to a community, gets stirred and shared, and new knowledge comes out), then measuring success – if there is such a thing in this context – requires a long-term perspective.  And it’s implicit that the Research Dean isn’t simply an appointment that any person can fill with equal success; the person who serves as Research Dean is a kind of focal or anchoring personality, a cheerleader as well as a teacher and an organizer.  A law faculty commons, like any commons (11 players, or 22, on a soccer field?), doesn’t simply happen; it’s created and managed, sometimes with greater success and sometimes with less.

In short, my biggest challenge as Research Dean — and probably an insurmountable challenge — is getting my colleagues to behave the way that I described in this older post:

I played competitive soccer until I finished high school. I played on horrible teams and magnificent teams; for coaches I had tactical masters, experienced former professionals, veterans of soccer on several continents. The best pure leader of the bunch, however, was Mark Speckman, who was my coach during my junior year of high school.

Mark was only about five years older than we were, and he was just starting his coaching career. He knew next to nothing about soccer. He had been a football player in college, earning national recognition as a linebacker at Azusa Pacific in the old NAIA. He was hanging around our school helping with the football team, when he was asked to take the reins of the soccer program for a year.

I should mention at this point that Mark Speckman was born without hands.

So picture a non-soccer playing linebacker, without hands, coaching a bunch of kids whose job it was to put a ball in the back of a net — without using their hands. He didn’t teach strategy, or tactics, or skills; he couldn’t. He was smart and a quick study, and he put 11 men on the field in mostly the right places. We did the rest. But at every practice and at every game, he was on fire. En fuego. With his energy and enthusiasm for us and for the cause, and partly simply by his own history and presence, Mark Speckman was a one-man force of nature.   One-to-one, in the group, whatever it took, Mark Speckman goaded us, cheered us, and validated us loudly and publicly whenever we made great plays and sometimes when we were merely OK but he and we all knew that better was there for the taking, with more effort. His was always the loudest, most positive, and most relentless voice on the sideline. No hands for him; no hands for us.

I honestly don’t remember our record, though we did pretty well. We were competing against schools that were five and ten times our size. Occasionally there was a college coach lurking here or there, but to my knowledge none of us went on to college careers (and a number of our opponents did). What I do remember, however, is that just about to a person, we would run through walls for Mark, and for each other.

The other blogs?  In addition to madisonian.net, which is familiar to many law professors who work in IP (and which is the part-time home of Co-Op first teamers Frank Pasquale and Deven Desai), I [...]]]> Thanks to Deven for the generous introduction and to Dan and the Co-Op team for inviting me to spend some time here this month.  The introduction intentionally saves space by not including a couple of things that I’ll talk about during my stay:  My other blogs, and my appointment as Research Dean at Pitt.  Both have something to do with my current work on commons institutions.  Over the course of this guest stint I hope to explain some of the connections and to generate suggestions and feedback that might help me see others.

The other blogs?  In addition to madisonian.net, which is familiar to many law professors who work in IP (and which is the part-time home of Co-Op first teamers Frank Pasquale and Deven Desai), I write for and administer Pittsblog (on the futures of Pittsburgh, PA, with a special focus on economic development) and for Blog-Lebo (a community blog that challenges the traditional suburban orthodoxy of Mt. Lebanon, PA, where I live).  As Research Dean at Pitt, I write the Pitt Law Faculty Blog, which chronicles the scholarly activities of our faculty.  And because the IP field is bursting with conference activity, I use a blog platform to maintain a conference and workshop calendar for IP and IT law events for scholars in the US and, occasionally, elsewhere.

Each of these started in a distinct way and for distinct reasons, but over time I’ve come to see them as part of a pattern, as a set of informal institutions that serves different communities or groups in related ways.  Exploring that pattern and teasing out those relationships is the theme of my current scholarship, too, so while it might appear to some that I push myself in lots of disparate directions, I usually feel that I’m working on one big thing that has lots of specific payoffs.

For an illustration and lead-in to my next post, here’s a link to my most recent writing, which is a comment in the Virginia Law Review’s online “In Brief” that responds to Dotan Oliar’s and Chris Sprigman’s very interesting article in the Virginia Law Review, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy. (My piece is called Of Coase and Comics, or the Comedy of Copyright.) I suggest that social norms alone can’t explain the apparent absence of formal copyright claims among modern stand-up comics. Comics’ “no plagiarism” norms emerged roughly around the same time that comedy LPs became million-sellers, in the early 1960s.   Is there a connection?  I suspect that there is, and I suspect that connections among record albums and comics’ norms are related in some way to connections among blogs and communities.

More shortly.  In the meantime, a bit of trivia:  Historians of comedy usually think of Mort Sahl and Lenny Bruce as pacesetting stand-up comics.  In researching Of Coase and Comics, I was pleasantly surprised to learn that the first comedian to have a gold record was accountant-turned-comedian Bob Newhart, the same Bob Newhart who later acquired iconic status for communities of college students via the phrase “Hi, Bob” and who eventually uttered the immortal TV sitcom line, “You really should wear more sweaters.”

Orwell makes the case for simplicity and directness in nonfiction writing, for the avoidance of tired and misleading metaphor, and the rejection of words chosen to confuse the reader or create [...]]]> I recently rediscovered George Orwell’s wonderful essay “Politics and the English Language,” which I read years ago in college but had essentially forgotten. Rereading it years later, I was struck by how much it had to say about the business of writing legal scholarship. In the essay, written in 1946, Orwell makes the case that over-complex and vague language in nonfiction writing leads to laziness of thought and poverty of discourse. (A copy of the essay is here, but Orwell is better read, I think, on paper than on a computer screen.)

Orwell makes the case for simplicity and directness in nonfiction writing, for the avoidance of tired and misleading metaphor, and the rejection of words chosen to confuse the reader or create deliberate ambiguity. Reading the essay made me think immediately of law scholarship, especially scholarship written by beginning legal scholars (including some of mine). Law professors often adopt tired or jargony metaphors (”slam dunk,” “atmospherics”) or use needlessly complicated words (many uses of “deontological”). Part of this trend, I think, is the feeling among untenured scholars to appear smart and able to use fancy words – to sound like a scholar. This can be a reinforcing trend – when your colleagues use needlessly complicated words, there’s often a feeling that you need to as well, in order to seem as scholarly as everyone else. Another overuse of complicated words can occur to hide meaning, or to avoid engaging in serious analysis. Lots of euphemisms (”transaction costs”) would seem to fall into this category.

Orwell concludes his essay with a summary of his rules for good nonfiction writing:

(i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

(ii) Never use a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

(vi) Break any of these rules sooner than say anything outright barbarous.

My point is not to pick on legal scholarship, as much as to suggest that a simpler and more direct style in legal scholarship (and legal discussion generally) should be the way to go, and that there’s a lot for all of us to learn in Orwell. As he puts it, language should be “an instrument for expressing and not for concealing or preventing thought.” When we make our arguments simply and directly, and we don’t hide behind euphemism or wordiness, readers can undersand what we say and agree (or disagree) more readily. There’s a lot to like in such an approach, and it reminds me of some scholars whose work I admire whose work really embodies this approach to writing. Orin Kerr (GW) and Eugene Volokh (UCLA) come to mind. I often disagree with the arguments in their work, but their plain style makes disagreement more obvious, and allows for a more direct, lively, and constructive disagreement.

(1) The atmosphere should be genuinely conversational. That means that most of the time–and not just a few minutes at the end of a 90-minute panel–should be filled by discussion/Q&A that is open to everyone in [...]]]> Like most academics, I attend conferences fairly often, and enjoy some of them more than others. I wanted to share a few thoughts on format features that tend to make conferences a better experience from my perspective, and to invite commenters to share their views. I have enjoyed conferences that follow a variety of different formats, and I think format diversity is good, for reasons discussed below. Still, there are a few features that I tend to prefer and would like to see more often:

(1) The atmosphere should be genuinely conversational. That means that most of the time–and not just a few minutes at the end of a 90-minute panel–should be filled by discussion/Q&A that is open to everyone in the room. (I admit to hypocrisy here–when participating on panels, I often push whatever time limit I’m given. A note to moderators of any future panel that I’m on: Feel free to tell me to shut up sooner!)

(2) Assuming the conference centers on presentation of papers, there should ideally be an expectation, or at least a strong recommendation, that everyone in the room have read those papers. This facilitates goal (1), because the speakers can then talk for much less time or even cut out the intro talk entirely. It also increases the quality of the conversation, and means that speakers are more likely to get useful feedback.

(3) Participants should be given a reasonable chance to get to know one another, which generally means the conference should be pretty small in size and there should be social meals that don’t center on a presentation by a speaker. This makes conferences (a) more fun and (b) more valuable in terms of getting to know colleagues with whom you might collaborate in the future.

These goals are interrelated and generally favor similar kinds of conferences. In particular, I really like small conferences that consist of a series of workshops each focusing on a single paper, rather than panels. With panels, more time will necessarily be occupied by intro talks rather than discussion, and it is less realistic to expect everyone to have read the papers if they’re going to four panels each day with three speakers each. I am especially averse to panels that are held in front of enormous audiences in hotel ballrooms–when the room is smaller, it’s more likely that a real conversation will ensue. Another interesting format that I’ve enjoyed is the one used by the Constitutional Law Schmooze at Maryland: in each session, several people speak for no more than a few minutes each, serving basically as a conversation-starter, and thereafter each person who offers a comment is responsible for calling on the next person. The conversation thus proceeds in pleasantly disorderly fashion around the room, rather than always going back to the speaker/panelists after each question or comment as a normal Q&A would.

Of course, some of what makes a conference enjoyable is its subject matter and what speakers are invited–if the substance is interesting enough and the speakers dynamic and provocative, even panel presentations in crowded ballrooms can be worth attending. Also, I can see reasons that particular conferences might prefer to depart from some or all of the suggestions, and reasons that it’s good not all academic conferences look alike. If a conference is smaller, obviously that means that fewer people can enjoy and learn from it, and speakers gain something from sharing their ideas with more people. Some attendees might like panels, rather than workshops, because they enable them to basically browse a wider range of new ideas without committing as much time to each of them. Some conferences should be open to students, practitioners, and/or members of the public who might not have time to commit to reading a bunch of papers ahead of time. And there might be something to be said for having more or less everyone in a given field gather somewhere once a year–it could be a way of getting big, field-shaking conversations started. (If people aren’t dozing off in the back of the ballroom, that is!)

So I’m not arguing for uniformity–but I do wonder if there’s demand out there for more conferences of the smaller, more workshoppy sort. Commenters, what do you think? And has anyone attended a conference with a particularly innovative format that’s worth copying?