The Faculty Lounge

Let's Clog Some Bases!

I suppose I should follow Al's lead and post something on a serious topic. However, now that the baseball All-Star break is nearly upon us, I thought I'd first pause to remember the late, much-lamented (by me, anyway) baseball blog firejoemorgan.com. FJM was a combination of sports journalism criticism, statistically-oriented baseball analysis, and pure (if occasionally profane) snark. If you're curious whether it's worth a gander, the following quiz may help you decide:

Question: In the bottom of the 9th inning, holding a one-run lead, I would rather pitch to: (A) Albert Pujols or (B) David Eckstein. 

  My answer: David Eckstein. Is this a serious question?
  I should: Read the bl0g. This link may clarify any confusion about "clogging the bases."

  My answer: Albert Pujols, because David Eckstein is a winner. He has grit.
  I should: Not read the blog.

  My answer: I'm unsure. Who is David Eckstein?
  I should: Consider reading, perhaps starting with the definitions. 

  My answer: I'm unsure. Who is Albert Pujols?
  I should: Probably avoid St. Louis.

Next up, another baseball post, though perhaps one that may lead to somehing about law...

The University and the University Press

The July 4th holiday is over and this is the heart of the scholarship-production season, so perhaps it's time for  a serious post. 

Ok--look--the news is really starting to trouble me.  We've spoken already this spring about University of Michigan Press' shift towards e-publishing and the budget cuts at one of the great history presses--LSU Press.  Here, by the way, is the Virginia Quarterly Review blog's fabulous in-depth treatment of LSU's grand history and the problems with LSU's journal Southern Review, as well.  It's possible this will be the end for LSU Press.

Over at prawfs Kelly Anders is talking about cutbacks at Yale University Press.  Anders links to a Yale Daily News article, "Yale University Press Faces Setbacks," about plans for smaller press runs and more e-publishing.   Oxford University Press laid off 60 people in New York in January--nearly 10% of their staff.   This news comes from this New York Observer story on Nikko Pfund.  (We linked last year to Pfund's very helpful discussion of what OUP editors are looking for in a manuscript.)  

All of this sets up perfectly the shift towards what Lindsey Waters is calling "slow writing"--which includes a shift towards essays.  Of course the crisis in publishing is hitting journals, too--we need to talk about this at some point.

I'm really starting to worry--which is my nature to begin with--about university presses.  The Virginia Quarterly Review essay I linked to above turns around a question: how closely related are university presses to the mission of the university?  I'd say very closely--and (no surprise here) the VQR thinks so, too.  At the Chronicle's job blog, there's a very reasonable question: when will this affect the publish or perish culture of our universities.  I think a lot sooner than we'd like: as teaching loads increase and opportunities for research leaves plumet, schools may  lower publication expectations.  However, this is going to happen in the context of restrictions on tenure.  We're going to see fewer tenured positions and more teaching and less writing.  The magic eight ball's predicting that with certainty.

Want to get even more worried, think about the plight of trade presses.  Over at The Nation Elizabeth Sifton in an article entitled "The Long Goodbye: The Book Business and Its Woes" (this is too serious for me to even crack a smile at the title--though it's a good one) is surveying the carnage in trade presses.

And here's some more sobering news from insidehighereducation.com

The Secondary Market In California IOUs

I suppose it shouldn’t be surprising that a secondary market has already emerged in California IOUs.  A Craigslist search, for example, turns up a number of bidders looking to buy some of the $53m of registered warrants the state issued last week.

For example, this Craigslist post advertises:

WE BUY CALIFORNIA IOU'S!!!!! (SAN DIEGO)

Got shafted by California with an IOU check?

Need cash NOW?

We buy California issued IOUs and give you cash IMMEDIATELY at $0.85 per dollar.

You cannot afford to wait,......CA Congress will continue to spend their candy ass time hopelessly debating how to manage a $24billion deficit...

THAT'S RIGHT...$24BILLION DOLLARS IN DEFICIT...YOU THINK CALIFORNIA IS GOING TO HAVE A BUDGET ANYTIME SOON????? Major banks have announced they will only be cashing in IOUs up to July 11th!!!! You are on your own after July 11th!!!!

While our state might be insolvent, we aren't. If you need CASH now and have a CA issued IOU, please contact us immediately. 

Says another: 

If you are in need of money & you received an IOU from the State of California, I will buy your IOU for a small discount to face value. Please reply to this Ad with your Name, Telephone number, city you live in & $ amount of your IOU. I am only interested in helping people & will pay close to face value.

Even more interesting is that Wall Street appears poised to trade the IOUs in earnest.  According to the Financial Times:

“We have a whole team working on it,” said Barry Silbert, chief executive of Second Market, a company that trades illiquid assets such as bankruptcy claims, private company stock and toxic assets.

Mr Silbert said hedge funds, municipal bond investors and other institutions were interested. Trading volume will depend on how many IOUs the state issues and how long banks accept IOUs for deposit at face value.  

. . . If the budget impasse persists, [California] could issue more than $3bn IOUs by the end of July for payments such as tax refunds, welfare and vendor bills.

The IOUs are due on or before October 2 and pay an annual rate of 3.75 per cent. They are transferable, which means anyone can buy or sell them.

Both Bank of America and Wells Fargo have agreed to accept the IOUs as deposits. From the Well’s Fargo Press Release:

Wells Fargo Will Accept Registered Warrants Issues by State of California for Limited Time

SAN FRANCISCO — July 2, 2009

Wells Fargo & Company (NYSE:WFC) said today it will accept registered warrants issued by the State of California from its retail and business customers for a limited time. It will begin accepting the registered warrants for deposit on July 2, 2009 and stop accepting them no later than July 10, 2009.

“We’re very disappointed, as are many Californians, that California has taken the unfortunate step of issuing IOUs in lieu of its payments to some businesses and individuals,” said Lisa Stevens, head of Community Banking for Wells Fargo in California. “Wells Fargo has a long history of taking extraordinary measures to help our customers and will accept registered warrants from our customers, but only for a limited time, to allow them time to make other arrangements. We are reluctant to take this step, but are doing so to help our customers who are not at fault and with the expectation that the Legislature and Governor will complete the budget within days. We join all Californians in urging our Legislature and our Governor to take the appropriate steps as soon as possible to resolve this budget crisis.”

In the words of Paul Kedrosky, “It is deliriously ironic and surreal that it took California to make screwed-up and irresponsible banks look like mature adults.”

President Taps Law Professor To Be Ambassador

Last week, President Obama nominated Pepperdine law professor Doug Kmiec as ambassador to Malta.  The White House press release is here.  Kmiec (pictured), a well-known constitutional law scholar, is a devout Catholic who angered some members of his faith with his support of the Obama campaign (see, e.g., stories here and here), prompting one member of the clergy to go so far as to deny Kmiec the sacrament of Holy Communion.  Malta is a predominantly Catholic nation.  Hmmmmm.

“Where’s Malta?” you ask.  It’s a three-island country in the Mediterranean, just south of Sicily.  (Perhaps you recall from Sunday School that St. Paul was shipwrecked there.  See chapters 27 and 28 of the book of Acts.)  South Texas has a summer foreign program in Malta that is quite popular with our students (no doubt the popularity reached its zenith in June 2000 when I taught International Banking Law).  The official tourism site is here.  Take it from one who has been there.  If you’re in that area of the world, try to schedule three or four days in Malta (and be sure to visit the island of Gozo).

While President Obama is poring over the Pepperdine faculty roster, perhaps we could encourage him to nominate Ken Starr to fill the next Supreme Court vacancy.  Who’s with me in this campaign?

 

Global Free Speech Update

Ethiopia:  Deputy Secretary of State Jacob Lew expressed concern to Prime Minister Meles during a trip to Ethiopia about a proposed anti-terrorism law that reportedly would define criticism of the government as a "terrorist act."  Good Lord, what kind of government does that?

France:  What to do about illegal downloads?  A proposal that would have punished illegal file-sharers by blocking their access to the internet was rejected recently by the Constitutional Council.  From reports on the decision, it appears that the problem with the law was not the interference with internet access itself, but the authority conferred upon administrative agents, as opposed to a judge, to suspend service.  

Italy:  Careful what you write about.  If a new media law is passed, journalists in Italy could serve 3 years in prison and face hefty fines for writing about an on-going police investigation, publishing a related document or disclosing the contents of a leaked wire-tap.  Could be worse, though.  Publish this stuff in the Czec Republic and you could get 5 years under a law passed last February.  

Kazakhstan:  Activists are criticizing a move to categorize blogs, chat rooms and social networking sites as forms of "mass media" under a new law that would place them under arbitrary government control.  The country already lacks a free and open internet, and bloggers have been prosecuted for anti-government criticism.  President Nursultan Nazarbayev faces pressure from the OSCE to nullify the measure and align the country's laws on freedom of the press with regional standards.  Kazakhstan becomes the organization's chair in six months.

Turkey:  Laws against insulting religion, the military, and the Turkish state continue to be used as a basis for politically motivated prosecutions despite reforms to the penal code undertaken last year. By one estimate more than 70 such cases are pending.  Though imprisonment and convictions are rare, the threat of prosecution itself has a profound chilling effect on speech.  Most recently, author Nedim Gursel was charged with insulting religion in his book, The Daughters of Allah.  Charges were dismissed last week after lawyers uncovered evidence that the complainant probably never read the book.      

-Kathleen Bergin

Disappearing Indian Mound In Alabama

From this morning's Mongtomery Advertiser comes this sad story.   A development in Oxford, Alabama for a new Sam's Club is going to use earth from a Native American mound, constructed perhaps 1500 years ago, for fill.  Dan Whisenhunt's article (longer version is available at the Tuscaloosa News) is well worth a read.  What's not clear to me is whether that entire mound was built by the Natives; if so, that's mighty impressive.  It's got to be one of the larger existing mounds.  

The mounds at Moundville, Alabama are mighty impressive.  And well worth preserving.

The sad concluding line is this quotation from the president of the Oxford City Council: "They're trying to do what's best for the city. I don't see no reason in buying fill dirt from someone when we have that hill available."

More from the Archeology Magazine blog.

American Sex Scandals Are Boring

Unless they involve a law school dean, of course.  But Italian Prime Minister Silvio Berlusconi's diplomacy efforts in anticipation of the G8 summit to be held July 8-10 in the Italian city of L'Aquila have caused me to question whether, much like American financial scandals, most American sex scandals are just not quite as juicy as their European counterparts.  (The Glom’s fine commentary on the Madoff sentencing notwithstanding, see here and here).

From Reuters:

Italian Prime Minister Silvio Berlusconi has denied ever paying a woman for sex, as he faces growing political pressure over lurid allegations that he slept with a female escort who was paid to attend his parties.

"I have never paid a woman," Berlusconi said in an interview with the Chi weekly owned by his Mondadori publishing empire.

"I've never understood what satisfaction there is other than that of conquering (a woman)," he told the magazine, according to excerpts sent to Reuters ahead of publication on Wednesday. (emphasis mine)

The woman in question, Patrizia D'Addario, told an Italian newspaper that a local businessman paid her 1,000 euros ($1,386) to attend a dinner at Berlusconi's home along with other young women and that she later spent the night with him.  However, one of the women who attended the party with D’Addario told reporters that D’Addario had not requested money from Berlusconi in exchange for sex, because she was more interested in obtaining building permit favors. 

“Berlusconi said he doubted a reconciliation with his wife was possible now.”  Gee, ya think?

Apparently, Berlusconi's approval rating dropped two percent after his wife announced that she would divorce him, but still stands at 49%.  Considering that the historical average American presidential job approval rating is only 55% (as compared to President Obama's recent 60+% ratings), that number still seems high for a leader with Berlusconi's PR problems.  

Related Post:  American Financial Scandals Are Boring

(HT: Crooked Timber)

The Landlord Game: Or, Who Owns American Folk Culture? Parker Brothers, Apparently

Well, it's our nation's birthday and that means it's time for some celebration -- and some fun.  Because I'm in the midst of edits on Integrating Spaces, I'm going to have to recycle a July Fourth post from a few years ago at propertyprof.

Every once in a while we in Tuscaloosa play games, like name that professor's school.  Pretty amusing stuff.  (As an aside, we don't do that in Chapel Hill; that's a regionally specific game, apparently.)  

It just so happens, though, that I was talking with some friends recently about the board game Monopoly and the lessons it teaches.  That led me to wonder about its history and--lo and behold, it's based on a an early twentieth century game, "The Landlord's Game," patented by a young Quaker, Lizzie Magie, in 1904 to teach the principles of Henry George.  So the game that now teaches the principles of capitalism had its origins in early twentieth century socialism (or what I think we'd now call socialism).  Wow.  

Thanks to my absolutely awesome colleague at Alabama Alan Durham (author of Patent Law Essentials), who writes on exceedingly interesting and complex topics like the copyright aspects of randomness and authorship and other stuff, too, we have two pages of images (at right and below) from the 1904 patent.

Here're some of the rules of the game from the 1904 patent.  The game really sounds a lot like monopoly--with some quaint early twentieth century phrases.  Try these out:

Absolute necessities: These spaces, which are preferably blue, indicate absolute necessities -- each as bread, coal, shelter, and clothing -- and when a player stops upon any of these he must pay five dollars into the "Public treasury." (This represents indirect taxation.) 
   No trespassing: Spaces marked "No trespassing" represent property held out of use, and when a player stops on one of these spaces he must go to jail and remain there until be throws a double or until he pays into the "Public treasury" a fine of fifty dollars. When he comes cut, he must count from the space immediately in front of the jail. 
   Railroad: "R. R." represents transportation, and when a player stops upon one of these spaces he mast pay five dollars to the "R.R." If a player throws a double, he "Gets a pass" and has the privilege of jumping once from one railroad to another, provided he would in his ordinary moving pass a "R. R." If he stops upon it, however, he must pay five dollars. 
   Luxuries: These spaces, preferably purple, represent the luxuries of life, and if a player stops on a "Luxury" he pays fifty dollars to the "Public treasury," receiving in return a luxury ticket, which counts him sixty dollars at the end of the game. The player may purchase the luxury or not, as he chooses or can afford; bit if he does not purchase it he loses his move. 
   Franchises: These spaces, preferably yellow, indicate light franchise and water franchise and are public necessities. The first player who stops upon one of these franchises puts his charter upon it, and all though the game he has the privilege of taxing all the other players five dollars whenever they chance to stop upon it.  It cost him nothing and counts him nothing at the and of the game. 
   Public park: A player may stop is the "Public park" without paying anything. 
   Legacy: if a player stops on the Legacy," he gets one hundred dollars cash and a legacy-ticket. 
   Mother Earth: Each time a player goes around the board he is supposed to have performed so much labor upon Mother Earth, for which after passing the beginning-point he receives his wages, one hundred dollars, and is checked upon the tally-sheet as having been around once.
   Poorhouse: If at any time a player has no money with which to meet expenses and has no property upon which he can borrow, he must go to the poorhouse and remain there until he makes such throws as will enable him to finish the round. 
   Rent: When a player stops upon a lot owned by any of the players, he must pay the rent to the owner. If he stops upon one of his own lots, of course he pays nothing. If two players stop upon the same lot, the second must pay to the first one-half of the rent, (in case of an odd number giving to the first the benefit of the fraction.) If a third player's throw brings him on the same lot, he cannot occupy it, but must remain upon the space next to it, counting his throw one less. In case of lot 1 the player gets the whole rent. 
   Borrowing: A player may borrow from the “Bank" in amounts of one hundred dollars, and for every one hundred dollars borrowed the " Bank" takes a mortgage on one or more of the borrower's lots, the total value of which must be at least ten dollars more than is borrowed. For every one hundred dollars borrowed from the "Bank" a bank mortgage is placed upon the property on which the loan is made, and the player puts his note in the "Bank," paying upon each note five dollars (interest) every time he receives his wages. One player may borrow from another, giving a mortgage on any property he may own and making the best bargain he can as to interest, terms of payments &c. The player loaning the money places his individual, mortgage on the top of the borrower's deed to show that he has a mortgage on that property, Should a loan be repaid before passing the beginning-point, the borrower saves the interest.

So how the heck did this move from folk culture, designed to teach Henry George's principles, into the famed Monopoly game?  In the 1930s Parker  Brothers bought the rights to the game from an unemployed repairman, Charles Darrow, who lived around Philadelphia.  When Parker Brothers realized that guy had basically taken the game from others, it then went around and brought the rights from other people, including Magie.  And so the game moved from folk art into the status of private property.  We learned a lot when in the mid-1970s a Parker Brothers executive testified in a lawsuit over whether another board game, designed by economics professor Ralph Anspach, could be sold under the name Anti-Monopoly:

Barton met with Lizzie Magie, he testified, and asked her if she would accept changes in her game. According to Barton's recollection, she replied like this: "No. This is to teach the Henry George theory of single taxation, and I will not have my game changed in any way whatsoever." For John Droeger of San Francisco, the lawyer taking his deposition, Barton explained why in his opinion Lizzie Magie answered that way: "She was a rabid Henry George single tax advocate, a real evangelist; and these people never change."

Here's a detailed chronology of the development of the game and an NPR story from 2002 and a series of pieces on the game.  

One of the many stories I really love about the early history of Monopoly--especially given all the talk of late about tenure (hi Kim!)--is that Scott Nearing, a Wharton prof who was fired for his socialist leanings, used an early version of the game in his classes.

Rogue Broker Causes Oil Price Spike

The Financial Times is reporting that Tuesday’s spike in oil prices to their highest level this year was caused by a rogue broker who placed a large bet in the Brent oil market, triggering almost $10m (€7m) of losses for PVM Oil Associates, the world’s largest over-the-counter oil brokerage. During one hour, prices rose from $71 to $73.5, while futures contracts for more than 16 million barrels were traded (as compared to the average of 500,000 barrels for that time of the day).

According to the FT:  “Oil traders in London and New York said the ‘unauthorised trading’ explained the exceptional spike in business activity and prices in the early hours of Tuesday that some initially thought must have been caused by a geopolitical event. . . .Traders said the broker implicated had allegedly accounted for at least half of the unusual activity, with the rest the result of others chasing the rally.”  PVM began unwinding the trades when they opened for business on Tuesday, limiting their losses.

The losses are small compared to rogue trader losses reported during the past year or so.  Consider, for example, Jerome Kerviel, who lost over $7 billion at Société Générale in January 2008; MF Global ($141.5m); Caisse d’Epargne ( EUR 600m); Crédit Agricole (EUR 250m); Credit Suisse (CHF 2.86bn); Merrill Lynch (USD 18m); and Morgan Stanley (USD 120m).  (See here for a discussion of these and other rogue trading losses).

Nonetheless, the incident is newsworthy for several reasons.  First, the large size of the positions impacted oil prices considerably, as shown in this FT interactive chart:

 

Second, this is the second episode of rogue trading in the oil market in just a few months. In May, an oil trader at Morgan Stanley was banned from the industry for two years for a series of unauthorized oil futures trades made under the influence of alcohol after he returned from a three-and-a-half hour lunch. He then concealed his $10 million loss through further trades using another trader's accounts.

Third, CFTC officials claim they were not informed of the incident for several hours, despite an agreement with the Financial Services Authority, the UK regulator, to spontaneously exchange such information.  

Luckiest Man

Readers may recall this post during my stint in March as a guest blogger, when I discussed Michael Goldsmith (one of my BYU law profs, and pictured), his battle with ALS, and his Newsweek editorial that prompted (at least in part) Major League Baseball to use the upcoming 70th anniversary of Lou Gehrig’s “luckiest man” speech as the focus of a campaign to raise awareness of ALS and funding for its research.

That anniversary is tomorrow, July 4, when Gehrig’s farewell remarks will be read during the seventh inning stretch at all MLB games.  

I contacted Professor Goldsmith a few days ago, and he mentioned that he will be a guest of Major League Baseball at Yankee Stadium for tomorrow’s afternoon game between the New York Yankees and the Toronto Blue Jays.  Professor Goldsmith’s participation is the subject of a recent television news story (video available here).  BYU's law school web site also states:  "NBC Today Show is broadcasting a story on BYU law professor Michael Goldsmith Sat., July 4 at approximately 7:15 a.m.  The NBC Weekend Nightly News is broadcasting another story on Professor Goldmsith that evening between 5:30 and 6:30 p.m."

As I watch these news stories and check the sports tickers tomorrow, I’ll be thinking of Professor Goldsmith and the valuable contribution he made to my legal education.  Perhaps for a few minutes your thoughts, too, might turn in a similar direction to a family member, a friend, a colleague, or an acquaintance who is battling ALS.

For additional information on the MLB campaign – 4◆ALS Awareness – click here.

Update:  my friend and mentor, BYU law prof Jim Gordon, tells me that Professor Goldsmith will throw out the first pitch at the Yankees-Blue Jays game tomorrow!

Update:  MLB press release dated July 1 here.

Update:  NBC Sports video story from July 4 here.

Slavery Apologies in the UK

Fast on the heels of the United States Senate's apology for slavery and Jim Crow comes news that two firms in the United Kingdom (Rothschild, the merchant bank and the Freshfields law firm) have expressed great regret for their connections to slavery.  The full story from the Financial Times is here.

Thanks to Kim Krawiec for pointing this out.

Lawrence Goes To India Perhaps

A New Delhi court ruled that a statute criminalizing gay sex was a violation of fundamental rights under India's constitution.  Section 337 imposed a 10 year jail sentence for "carnal intercourse against the order of nature."  The law's a remnant of colonial rule that's been used by police as a means of harassing the GLBT community.   

The ruling applies only in the capital city, and is not binding on other courts in India.  The law itself can only be repealed by Parliament.

-Kathleen Bergin   

photo: Sanjay Austa, First Gay Pride, New Delhi

"We All Contribute In Our Own Ways" Is Not A Valid Institutional Goal (or, My Tenure’s For Sale: The Final Installment)

In this four part series on law school culture, incentives, and dysfunction, I reviewed some of the arguments in favor of and against the tenure system and maintained that moving away from the tenure system is unlikely to be the fix-all for institutional incompetence that many critics believe.  The majority of law schools are unwilling to use even the more limited mechanisms at their disposal for aligning individual behavior with institutional goals.  It is more realistic, I argue, to urge schools to clearly define institutional goals, then to adopt proper review, assessment, penalty, and reward strategies designed to implement those goals. 

I’m always surprised at the level of hostility such proposals seem to arouse.  Usually, this antagonism takes the form of objections to the subjective nature of legal academic work or to the difficulty of formulating appropriate metrics by which to judge performance.  But this focuses on the wrong half of the equation. In my opinion, we perceive "the metrics" as the hurdle to this type of evaluation only because we fail to first develop a coherent institutional mission (which requires making uncomfortable choices and value-judgments about what type of activity will be encouraged and rewarded). Once those choices are made, the range of appropriate evaluative mechanisms becomes more apparent, although there may still be disagreements at the margins. 

A law school seeking to distinguish itself as a top interdisciplinary scholarly institution, for example, simply would not adopt the same performance metrics as a law school wishing to package itself as America’s top teaching school.  Whereas the first might adopt publications and citations within top interdisciplinary journals, academic press books, external grants, and invitations to present work at conferences dedicated to interdisciplinary work as their highest-status measures of success, the second is likely to invoke quality measures directly related to its goal of student service.  Again, there’s room for some disagreement at the borders – how does a lower-tiered peer publication stack up against a top student-edited law review at the first school?  How do teaching evaluations fare against other measures of teaching skill and success at the second?  But surely the position of the statutory supplement and bar journal publication are pre-ordained at School A, given its agenda, and School B, with its goal of student service, has no reason to incentivize poor-quality teachers who sit in their offices behind locked doors writing grant applications. 

Admittedly, most schools are somewhere between the two stylized extremes of Schools A and B.  And in an ideal world quality assessment would be guided by the collective judgment of an informed faculty body regarding who is working, on what, and at what level of excellence.  But those evaluations cannot be wholly divorced from more concrete indicia of productivity, lest they become meaningless opportunities to exercise our own unsubstantiated biases.  In the end, no school can escape the difficult and unpleasant task of defining what it aspires to be as an institution without incurring long-term costs.  The disagreement is bound to emerge somewhere over time: in hiring or tenure decisions, in curriculum-oriented debates, or in the seemingly-out-of-nowhere heated argument about replacing the faculty lounge coffee maker. As I noted in response to a comment on my prior post on this topic, it’s always been my belief that the refusal to engage foundational issues about institutional identity is part of the reason that a faculty will spend three hours arguing over whether to eliminate minus grades and then hire someone for lifetime employment with no discussion at all.

What’s especially puzzling to those of us with a scholarly interest in the ways that organizations operate (and fail) is the frequent assumption by law profs that these problems are unique to the academic enterprise.  Of course, academic departments are different from business organizations, even those in industries where quality is subjective and difficult to measure.  And, as already noted, law schools may face special challenges on this front as compared to other academic units.  But entire consulting industries are dedicated to crafting compensation policies that mirror or transform institutional culture and reduce incentives for conduct that thwarts defined organizational objectives, and large bodies of scholarly work across disciplines are devoted to the analysis of how and under what conditions stated organizational objectives become something more meaningful than rhetorical flourish. 

Your dean, associate dean, or whoever is entrusted with such decisions at your school is already evaluating and compensating you based on something.  It’s not unreasonable to want some sense of what that something is.  So, if you ask your dean, “why do we even employ, much less pay more than others, that guy down the hall who has two students registered in his class?” and the answer is, “because he’s an excellent scholar,” don’t you want to know how she arrived at that conclusion?  I do.  And the same goes for the supposedly valuable teacher with no visible publication record.  Because, “we all contribute in our own ways” is not a valid institutional goal.  It’s an excuse for poor management.

This wraps up my thoughts on law schools, incentive structures, and institutional goals, at least for now.  Thanks for listening – and to read the prior posts in this installment see:

I.               My Tenure’s For Sale. How About Yours?

II.             Incentives And Institutions: Why Stop With The Banks?

III.     When It Comes To Law Faculty, We’re All Post-Modernists.  

From Tax Professor to State House? Hamill Announces Bid for Legislature

This morning's Tusacloosa News brings news that my former colleague and friend  Susan Pace Hamill, a law professor at the University of Alabama, is running for the Alabama state legislature. 

Hamill's scholarship is on tax equity.  She received national attention -- including a front page story in the Wall Street Journal and very favorable coverage in the New York Times Magazine -- for her work on the equities (or not) of Alabama's tax system.  Her book The Least of These: Fair Taxes and the Moral Duties of Christians played a major role in debate over the attempted reform of the Alabama tax system in 2003.

From the Tuscaloosa News' story:

Hamill, a Democrat, on Wednesday listed the core principles that she said compelled her to seek public office.
“I believe government must serve the weak equally as well as it serves the strong,” she told friends and supporters in front of Trinity Methodist Church. “I believe tax policy should be written not by those with the most lobbyists, but those with the greatest commitment to equity and fairness.
“I believe the quality of public education we provide our children should not be determined by their address, their race or the circumstances of their family. I believe the process through which government makes all policy should be premised on central moral and ethical standards.”

Here's an interview from Southern Spaces.  And more from an Examiner story.  It'll be an exciting campaign for sure.

A Picture is Worth a Thousand Contract Terms

Thanks to Dan, Al, and the folks at The Faculty Lounge for letting me spend some time with them. I’m looking forward to hanging out here for a bit. One of the areas I teach and write in is contracts, and in this first post I thought I’d share my (perhaps idiosyncratic) reaction to Al’s post on Confederate money and its imagery. In particular, Al’s post reminded me that the most salient feature of contracts – the language – can be the least interesting.

Let me explain: The imagery on Confederate money brought to mind imagery I've seen on some late-19th and early-20th century bonds. Especially when the issuer was a sovereign state, bonds like these were effectively unenforceable through formal legal (as opposed to reputational) mechanisms. But they sure were ornately decorated. Check out this bond, for example, or this one, issued to finance railroad construction in Ethiopia and Ecuador, respectively.

There is a fairly sizable literature, with which I have only passing familiarity, on the symbolic and communicative function of financial iconography. Much of the literature emphasizes more quotidian functions, such as anti-counterfeiting. But it also highlights that contracts are complex social phenomena - artifacts, in Mark Suchman's terms - that sometimes derive value more from what they communicate than from what they say. Here, I presume the imagery was intended to resonate with investors in a way that would both legitimize these bonds and distinguish them from other speculative investments. But whatever the purpose, it's hard to deny that one can't fully understand the meaning of the bonds simply by reading their terms.

Religious Universities In the News

BYU:  revises university's internet network block of Youtube website.  Story here.

Liberty University:  issues new policy to regulate on-campus political clubs.  Story here.

"Don't you know that it's different for girls...?"

I just started reading The Long Tail by Chris Anderson, and was struck by the second paragraph of the acknowledgments.  Anderson expresses tremendous appreciation for the support of his family during the writing process (see below).  I wondered while reading it if a woman with a family might ever hope to be able to write a similar acknowledgment, or is the writing/family balance simply "different for girls"?

Here's the extract from Anderson's acknowledgment:

"First, the person other than me who worked the hardest, my wife, Anne.  No project like this could be done without a strong partner.  Anne was all that and more.  Her constant support and understanding made this possible, and the price was significant, from all the Sundays taking care of the kids while I worked at Starbucks to the lost evenings, absent vacations, nights out not taken, and other costs of an all-consuming project.  But more than that, she was my sounding board, my first reader, my counsel, confidante, and an endless source of encouragement and advice.  (Our young children ... also spent a year without seeing much of their father, and I thank them for rising to the occasion with sterling behavior and, one hopes, no permanent scars.)

The Nine

I'm way behind on my pleasure reading, so it’s only been in recent weeks that I have read Jeffrey Toobin’s book, “The Nine: Inside the Secret World of the Supreme Court.”  The book is written in a manner that will appeal to lawyers and non-lawyers alike.  Toobin deftly handles the challenge of introducing and discussing some of the most significant constitutional cases in recent years without getting bogged down in legal mumbo-jumbo.  And the book is replete with  many entertaining anecdotes about various personalities.  (Very little about the UCC, though.  But I'm over my disappointment.)

As I read through the book, I kept notes of some of the more memorable lines, six of which I’ll quote:

There were two kinds of cases before the Supreme Court.  There were abortion cases — and there were all the others.  (page 36)

At an appearance at a New York synagogue in 2005, Scalia was asked to compare his own judicial philosophy with that of [Clarence] Thomas.  “I am an originalist,” Scalia said, “but I am not a nut.” (103)

It was clear by this point that Scalia didn’t need better arguments to win over his colleagues; what he needed was different colleagues. (124)

Kennedy’s vanity was generally harmless, almost charming — sort of like the carpet in his office. (147)

Ashcroft, the former Missouri senator whom Bush named his first attorney general, embodied everything that O’Connor disdained about the modern Republican Party.  He was extreme, polarizing, and moralistic — unattractive. (205)

At first it was the legacy of Bush v. Gore that turned O’Connor and Kennedy toward their more liberal colleagues.  Later, it was the Bush administration itself. (227)

           

I had one more passage I intended to quote, but I noticed it got dropped somewhere along the line (appearing in the galleys, which I read, but not appearing in the final publication).  The passage was (in my opinion) somewhat scathing, so I’ll always wonder if the remarks were dropped at the suggestion or insistence of the publisher and/or further reflection of the author. 

For substantive remarks on the book, readers may wish to read Georgia State law professor Eric Segall's review at 58 Journal of Legal Education 463-71 (2008).

University of Miami Law School To Defer 1L Admittees

The weak economy seems to be yielding exceptionally positive admission results for one law school.  According to ATL, The University of Miami School of Law has sent a letter to its newly admitted 1L students inviting them to defer the start of law school for a year.  It seems that the school's yield on offers was higher than expected.  This is consistent with the idea that applicants are highly motivated to attend law school, and leave (or entirely avoid) the work force.  It could also indicate that, when Patricia White took the Miami deanship, the school  promised to bolster student LSAT and GPA numbers by amping up student aid.

Whatever the reasons for this challenge - one that looks like "a nice problem to have",  but from an administrators point of view really isn't - the law school is spending a few bucks to try to shrink the Class of 2012.   It may be a tough problem to solve, however.  If people don't have other great options for the next year, it might take a fair amount of money to buy a deferral. 

According to a letter from Dean White, the school is offering those who defer the following bennies:

The White Firefighters Case -- How Accurate Is the Test?

I know much has been written about the Ricci v. DeStafano case, both pro and con. In this post, though, I want to focus on the test. Full disclosure: I'm a test skeptic. I think test results are overvalued for most jobs, I think most tests probably are inherently biased toward certain privileged members of society, and I think the overvaluation of tests has a discriminatory impact on marginalized groups.  But, those (big) questions aside, has anyone raised the question of whether New Haven's test for firefighter captain really accurately predicts who will be a good captain? I confess I don't really know the details of either the test or the qualifications of the job. But I have some serious skepticism that a written test can really evaluate whether you will be a good leader of an emergency response team. 

In my readings on how people make decisions (yes, I know, I haven't shut up yet), I learned that the NFL requires every quarterback in the draft to take an intelligence test (called the Wonderlic). This is the NFL's way of trying to gauge how good someone will be at making the kind of decisions quarterbacks have to make.  The problem is that the test is wildly inaccurate for that purpose. Some of the most successful quarterbacks (Brett Favre, Terry Bradshaw, Dan Marino) had woeful Wonderlic scores, well below average. And some of the most forgettable quarterbacks (you've probably never heard of them), scored quite high.  As it turns out, filling in bubbles in a written test has almost nothing to do with making decisions "in the pocket."  It potentially weeds out great players, and elevates mediocre ones.  The best way to tell whether someone will be good at something is testing their performance during a simulation of the actual job. Not a surprise, I'm sure, but in that case, how can written tests continue to be justified for jobs that do not involve that kind of decision-making?

I recognize that this question has broader implications -- including for legal education.  Do law school exams really predict how lawyers will perform "in the pocket"?  I am a skills teacher, so maybe I'm a little biased. But now, as law firms consider "apprenticeships" and other new models for legal hiring, I wonder whether it is time to rethink the centrality of the test.

The Thick Skins of Bloggers . . . And Academics

From Felix Salmon:

The Cajun Boy hits the nail on the head when he describes one of the biggest upsides to opening oneself up to the crazies of the internet by blogging:

After a while, writing on the internet thickens your skin to the point where you’re easily able to easily differentiate between valid criticism and hateful venom-spewing. At some point, the hateful venom-spewing fails to even faze you any longer, while the valid criticisms are accepted and processed rationally and learned from.

This has certainly been my experience, and I’ve seen it in others, too. Bloggers in general are pretty sanguine when it comes to being flamed on the internet or in their comments sections, while non-bloggers tend to get much more exercised when people criticize them online. I’ve lost count of the number of journalists who have put up a blog entry or two and been shocked and excited at some of the comments they got in response; eventually, of course, you just tune that kind of stuff out altogether.

 

My single week as a blogger has been insufficient for me to judge whether bloggers develop thick skins, much less whether that thickening leads to positive results.  Have more experienced bloggers noticed such a change in themselves? 

I’ve often wondered, however, whether academics are thicker-skinned than those in “normal” jobs.  Certainly when I describe a very active faculty workshop to some of my nonacademic friends they’re shocked.   That anyone (much less a room of thirty people) might raise their voices, openly criticize a paper on which I’ve worked very hard, or – worst of all – suggest that my ideas are either implausible, obvious, irrelevant, or offensive is horrifying to them.  The fact that I actually enjoy such an exchange (admittedly, it's more enjoyable when at least some of the feedback is positive) is even more mystifying.  It’s not that other jobs are confrontation-free, and certainly legal practice is not.  But somehow the confrontation on the job as a lawyer – on behalf of a paying client – never felt as personal.   Although I should add that I was not a litigator – perhaps that lends a different perspective?

The Power of Nickelodian Abroad

Posted by D. Daniel Sokol

This month, we are going to Chile, where I will be teaching at the Catholic University of Chile (mostly in Spanish) and giving working paper presentations.  Given the hot and muggy summer weather of Gainesville, a trip to the southern hemisphere during their winter is a welcome relief.  In talking with one of my professor friends in Chile about the upcoming trip, we had an interesting exchange that I will try to get right (though it was by skype):

Me: We will bring your girls gifts.  By "will", this means we are getting something for them no matter what. We would like your input on what kinds of things they like. Otherwise, when they get their presents and do not like them, we will blame you when they cry.

Him: For my older daughter (age 10), Hannah Montana, Jonas Brothers, Selena Gómez and High School Musical in that order.  The same for my younger daughter (age 8).

Chile now mandates English for all school children but I had hoped that by going abroad, we might escape the Nickelodian and Nick Jr. cultural juggernaut that we experience here in the US on a daily basis.  For those of you law profs who have young children, you know exactly what I mean.  I can recite the theme songs to Dora the Explorer and Wonder Pets better than I can code sections of the UCC or Delaware Corporate Law.

Weidemaier Blogging With Us

It's my great pleasure to welcome my colleague Mark Weidemaier into the faculty lounge.  Mark's going to be sitting with us for a spell.  Mark writes on a bunch of things, including sovereign debt and arbitration.  He usually uses numbers and impressive statistical programs.  Cribbing now from the UNC website, Mark

teaches courses in commercial arbitration, contracts, and complex civil litigation. His research focuses on how litigants, lawyers, and other private actors create (and fill gaps in) disputing systems. For example, current projects explore the impact of standardization on the dispute resolution provisions in sovereign bonds and the process by which arbitrators generate and apply legal norms. Representative publications are available for download on the Social Science Research Network and the Berkeley Electronic Press.

After receiving his J.D. from the University of Minnesota, Weidemaier clerked for the Honorable Dolores K. Sloviter on the United States Court of Appeals for the Third Circuit. He then practiced law in the complex commercial litigation group at Dechert LLP in Philadelphia and worked at the School of Government at the University of North Carolina at Chapel Hill. He is a graduate of Carleton College in Northfield, MN.

Just yesterday, Mark pointed out to me that there's a lot known about the images on Confederate currency, so I hope he'll talk some about that--or at least about the iconography of sovereign bonds.  I know he'll have a lot of other cool things to talk about, too.

Signing off as a guest blogger (and reprise of U of Edinburgh's conference)

I've really enjoyed posting this past month (thanks again, Dan et al.!), and as I sign off, I wanted to spend just a bit of time talking about my impressions of the Beyond Text conference (to which I've already referred here and here). 

When I went to the first half of the conference back in December 2008 (the experiential half, where we actually looked at art, made some art ourselves, did some movement/dance work, and generally reminded ourselves that there are more ways of looking at the world than just reading text), I remember feeling a reconnection to "play"--to a part of myself that I hadn't experienced in years.  Our group seemed to get over the embarrassment, early on, of differing abilities and talents in these non-textual areas, and we put aside the traditional "what will people think of me" reticence in order to try new ways of viewing the world. 

The paper presentations that I heard two weeks ago moved me, albeit differently.  There were concrete ideas about ways to enrich the law school experience, not just in the US but in the UK as well.  I found myself being captivated by the ways in which our pedagogy, tweaked only a little bit, might bring home to students the "peopleness" of the law.  That's a frustration I've had recently--that the cases are so far removed from the people in them that students forget that cases are about particular people and their problems.

Anyway, I'm looking forward to seeing how this process evolves.  And, although I can honestly say that haggis is an acquired taste that I have not yet acquired, the ability to brainstorm with colleagues from across the Atlantic has inspired me to do more international conferences.  On to Marmite!

(Posted by Nancy Rapoport)

Illinois Law Deans, Past And Present, Speak Out On Admissions Corruption

The University of Illinois admissions scandal, documented everwhere from Leiter's Law School Reports, to TaxProf, from ATL  to WSJ Law Blog continues to reverberate.  Now the past and present dean are speaking out, each with their own goal.  Former Dean Heid Hurd wrote a letter to the editor to the News-Gazette attempting to clarify what seemed (to me, at least) obviously sarcastic comments. 

Contrary to recent headlines, the College of Law did not seek or receive any jobs from anyone in exchange for the admission of students. It did not enter into a “jobs-for-entry scheme” or engage in quid-pro-quo exchanges of admissions favors for employment favors. Indeed, it takes very little to make clear that the employment challenges of students who are not academically successful could never be overcome by anyone’s promises to furnish the College with job opportunities, as the recently published exchanges should have made clear. While my sarcasm was clearly lost on the tin ears of some reporters, my email exchanges in response to queries about this were on their face facetious.

In reply to a question about what jobs would count to meet the employment needs of students with poor academic predictors but powerful personal connections, I wrote: “Only very high paying jobs in law firms that are absolutely indifferent to whether the five have passed their law school classes or the Bar.” There are, of course, no law firms of this sort. Only students who pass law school classes can receive law degrees; only those with law degrees can take the Bar; and only those who pass the Bar are eligible to practice law. And when asked whether such students might find employment in government positions, I was being equally sarcastic when I replied: “I’m betting the Governorship will be open. One of them can have that job. Other jobs in Government are fine, since kids who don’t pass the Bar and can’t think are close enough for government work.” Inasmuch as I was a public servant at the time that I made these comments and have long been a scholar and teacher of political theory, my dismissive response was designed to convey the view that government, no less than private practice, requires the best and brightest.

I would never have thought that anyone could take these statements as straight-faced and derive from them the claim that the University of Illinois College of Law actually exchanged admissions for “patronage jobs”.  

Meanwhile, attempting to limit the damage of these news reports, current Dean Bruce Smith wrote a letter to alumni and friends stating:

In recent weeks, certain press reports have suggested that the University of Illinois College of Law has been subjected to undue external influence with respect to the admission of students. Such reports understandably capture the public’s attention, but they fail to capture the true character and excellence of the College of Law....Let me be clear: I would not welcome — nor would any dean welcome — undue external influence in the admissions process.

Image: Heidi Hurd.

Villanova Law Dean Mark Sargent Resigns

Yesterday, Villanova Law School Dean Mark Sargent resigned his position.  According to the information we've received, he stated that he stepped down for personal and medical reasons.  Professor Doris Brogan, who has been the Associate Dean for Academic Affairs at Villanova since 1992, has been named Interim Dean starting immediately. 

Lots of decanal transitions at Catholic law schools.  Duquesne.  DePaul.  Now Villanova. 

Beautiful . . .

 

More laughs herre.

More Live Sperm, Dead Donor

Last week, I blogged about the Ninth Circuit decision in Vernoff v. Astrue, which upheld the Social Security Administration’s (SSA) denial of child survivor benefits to Brandalynn Vernoff, a 10-year-old Los Angeles girl conceived from the frozen sperm of a dead man.   Now, it appears that another case involving the rights of posthumously-created offspring to claim SSI benefits is making its way through the court system.  According to the Des Moines Register, Patti Beeler has lost an appeals process through the SSA, which denied survivor benefits to her six-year-old daughter.  Beeler has now filed suit in federal court challenging the decision.  In contrast to the Vernoff case, in which the sperm was extracted posthumously and without any indication of consent by the father to the procedure, Bruce Beeler banked sperm prior to the start of chemotherapy treatments, which often cause sterility, so that the couple could have children after he recovered.  However, Beeler did not recover, and after his death Patti Beeler used IVF to conceive using Bruce's previously-banked sperm.

In looking through the secondary literature, it seems as if there’s been some amount of writing on the legal issues surrounding these cases, but I haven’t come across a whole lot yet on the broader policy issues surrounding them.  In other words, what are the policy consequences of allowing, or not, posthumously-created offspring to claim SSI survivor benefits?  Should it matter  (again as a matter of public policy) whether the sperm was extracted posthumously or not?  So, gentle readers, please post your thoughts, reactions, sources, and reading recommendations in the comments . . . so that I can steal your ideas and turn them into a law review article.

(HT: Egg Donor and Surrogacy Blog) 

Demotivational Messages for These Troubled Economic Times

My brother just alerted me to a series of "demotivational posters" available online from Despair, Inc.  While my technological prowess is failing me, and I'm having trouble downloading the images, I'll  set out some of my favorite taglines below and hyperlink to the posters:

LEADERS:  Leaders are like eagles.  We don't have either of them here.

MEETINGS:  None of us is as dumb as all of us.

and who could ignore....

BLOGGING:  Never before have so many people with so little to say said so much to so few.

I hope the links don't infringe any copyrights because Despair Inc's FAQ on copyright ownership certainly gives me pause:

"I want to put your images on my homepage without crediting you or acknowledging you in any way, so that I can do my small part to violate the copyrights of your photographers and whoever else might have a commercial interest in your intellectual property. How cool is that?
It is okay with us provided you promise to throw an online tantrum when we ask you politely to stop. "

They also have an interesting attitude to online trademarks here.

Two Stats From The Most Recent Season of Manuscript Submissions

I submitted two articles to numerous journals earlier this year in March/April using the Expresso service.

Two statistics:

Percentage of journals that took action triggering the “confirmation of receipt” response at my Expresso account:  39%.

Percentage of journals that have informed me of a publication decision:  24%.

The first stat is probably meaningless (perhaps because the information itself is rather meaningless).  But if Expresso is receptive to a suggestion, I’ll suggest that it modify its software in a manner that generates an automated “confirmation of receipt” response at the moment when the journal opens its mailbox to which the manuscript was sent (rather than relying on an affirmative declaration from a student editor that the manuscript has indeed been received).  Hey, if Expresso can't confirm receipt, why should I (or my law school) pay for the service?

The second stat is disappointing.   Not disappointing because I didn’t receive offers from the other 76% of journals, but because I never received any response from 76% of journals.   Should I conclude that:

student editors are simply overwhelmed with a flood of manuscripts and don’t have the time to contact all authors?

student editors have adopted the mantra, “no news is bad news”?

student editors are insensitive to our fragile egos, or perhaps enjoy a bit of payback for our Socratic grillings?

law schools should require students to take a course in “document organization, time management, communication skills, and manners”?

                                           

Thoughts?

Legal Skills In Doctrinal Classrooms

They're talking about the value of practice skills to the law school curriculum over at the Conglomerate.  Here's my take on it:

Though I'm a doctrinal prof fond of critical theory, I side with those who think that US law schools must do more to develop and reward those who teach effective writing, process and skills programs.  Let's face it, most of our students won't become Law Profs, or legal philosophers, or theorists of any kind.  They'll become lawyers, and they want to be good ones.

So besides substantive knowledge, what can a doctrinal prof bring to the table? 

Plenty.  My colleague Rocky Rhodes and I just completed a final manuscript for the First Amendment volume of the new Skills & Values series by Lexis (shameless plug acknowledged).  The book includes 14 problems and associated tasks that make students think like actual lawyers.  They're asked to draft pleadings, interrogatories, requests for production, and other litigation documents.  They also navigate tactical dilemmas.  As a prosecutor, when should they bring charges in the course of an on-going factual investigation?  As a defense attorney, is it best to address the charges on the merits or move to dismiss?  Other problems place students in the role of a judicial law clerk, a lawyer in private practice, or an advocate who submits written testimony to a legislative committee.    

We strived to make each problem as realistic as possible given the format.  Lawyers aren't handed a narrative hypothetical in practice, so we don't give them to students.  We give just enough background information to make the problems workable, but otherwise rely on client correspondence, charging documents, subpoenas, and the like - the kinds of things attorneys in the real world build a case out of.

I've experimented with some of these problems in class last semester, and the result was overwhelmingly positive.  Most notable was the collective glaze that swept over the class on the weeks we went back to the socratic method.  It was painful all around. 

I'm hoping projects like these will lead to more integration between doctrine and skills without discounting the need to support existing practice-oriented courses.

-Kathleen Bergin

Like New Confederate Cash Found in Alabama Courthouse

Now who says that no one cares about nineteenth-century southern legal history? According to the AP, $493 in confederate currency

was found in a Morgan County [Alabama] court file containing documents about the estate of slave owner Riley S. Davis, who died without a will in 1860, the year before the Civil War began. The bills, in near mint condition, turned up earlier this year after being discovered a decade ago and then forgotten. ....

A document filed in chancery court almost a month after the Civil War ended in 1865 gave an itemized list of people hiring slaves who had belonged to Davis, along with the amount of money that was due to his estate.

The tally showed the file was $493 short, [Morgan County archivist John] Allison said. He speculated that the clerk made up the difference with Confederate cash that was worthless because the war was either over or near its end.

Now there's a reason to get back into the archives this summer! 

And, as long as I'm talking about Confederate money, I suppose I ought to comment on the icons on the money.  I think it was John Majewski's important new book, Modernizing a Slave Economy, that led me to realize that there are some revealing images on the Confederate currency--like a railroad.  But there also seem to be black people--laboring, of course--and white men, sometimes on horses.  Wow--how revealing of the ideas behind the founding of the Confederacy.   That two dollar bill has John C. Calhoun over on the lower right; the Virginia state house was on another bill; the $100 bill that is above right has a railroad and a woman carrying a basket on her head (I suppose she's a slave, but I'm not sure).

Much like John Hope's Vermont Marble Quarry, I wish I'd included something about Confederate currency in "Property and Progress: Antebellum Landscape Art and Property Law."   Well, I'm sure there will be another opportunity to work on that topic and include some more images.

Update: My colleague Mark Weidemaier (who'll be guesting with us shortly) mentioned that some of the sovereign bonds he's worked with have similar images.  Then he pointed me to this terrific website.  Check out the images on the Alabama notes in particular.

Justices Rule for Firefighters in New Haven Bias Case

The NYT reports that the Supreme Court has decided in favor (5-4) of the white firefighters in the New Haven bias case, where the city threw out the results of a promotion exam to avoid a lawsuit. The exam resulted in no promotions for African-Americans and only two Latinos.

This is the controversial case for nominee Sonia Sotomayor, where she sided with the city of New Haven. It will be interesting to see what will come of this in the confirmation hearings.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research

In a sharp divergence from the guidelines of some scientific organizations and the laws of other states, such as California, which forbid such payments, New York last week became the first state to allow taxpayer-funded researchers to pay women for eggs usable in stem cell research.   The decision is controversial, both because of the underlying debate surrounding stem cell research, and because of a lingering conviction in some quarters that women should not receive payment in exchange for reproductive material. 

Payment has long been provided for eggs to be used in fertility treatments -- data suggest that in 2006 alone nearly 55,000 children in the United States were born through assisted reproduction, more than 7500 of whom were created through the use of “donated” eggs.  (See here for the source of this and all other facts and figures in this post).  Nonetheless, controversy continues to surround the issue of payments to egg donors, as exemplified by the caps on payment adopted in New York: the Empire State Stem Cell Board ruling requires researchers to follow the American Society for Reproductive Medicine (ASRM) compensation guidelines, which state that “sums of $5000 or more require justification and sums above $10,000 go beyond what is appropriate.”

The New York payment limits are sufficiently high that they are unlikely to have any practical affect on the ability to pay and recruit egg donors for stem cell research.  Egg donor compensation in the United States varies widely, with prices as low as $1,500 and as high as $150,000 reported, but surveys of fertility clinics and donor agencies listed with the Society for Assisted Reproductive Technology report average compensation rates per donation cycle of $4217 and $5200, respectively, although there are reasons to believe that these figures may understate the true national average. 

Nonetheless, I was disappointed to see New York follow the trend of attempting to limit compensation to women for the provision of a valuable, time-consuming, and uncomfortable service that poses some health risks.   As I argue here, the ASRM oocyte-donor compensation guidelines amount to horizontal price-fixing of the type long considered per se illegal in other industries.  Moreover, the continued insistence (in the face of substantial evidence to the contrary) that egg donors are—and should be—motivated primarily by altruism and the desire to help others, rather than by the desire for monetary compensation, is problematic on a variety of levels.   

The contrast is particularly stark in comparison with the presumed motivations of sperm donors, who are recruited through materials that ask, “Why not get paid for it?” and advertise, “your sperm can earn!” In fact, the insistence that sperm donors are motivated primarily by a desire for monetary compensation is so strong that potential donors expressing altruistic motivations are frequently viewed with suspicion and presumed to harbor an egomaniacal desire to propagate.

Finally, maximum wage restrictions are an odd – one might argue, backwards -- response to concerns over the financial coercion of poor women.  The ability of any sum to coerce action is a direct function of that person’s financial need.  Egg donor compensation caps, without reference to the potential donor’s financial status, do nothing to address financial coercion objections.  Ironically, the most likely effect of the ASRM price cap is to drive from the market for eggs used in fertility treatments the most highly desired egg donors, who tend to be better-educated and of a higher socioeconomic status.  These donors should be in a better position to evaluate the risks of egg donation against the monetary benefits and should be less susceptible to the “coercive” effects of monetary compensation, because they are more likely to have other income opportunities to choose from.

Absent a significant shift in the societal conception of motherhood, it may be the case that appeals to altruistic impulses will always play a vital role in the manner by which our society understands egg donation and even in the way that egg donors understand themselves.  But the fertility and stem cell industries are big business in this and other countries, and the persistent dialogue of gift-giving and altruistic donation that surrounds egg “donation” may help to obscure its highly commercial nature and the potential industry benefits of controlling egg prices.

Brown on Racial Aspects of Subprime Lending

My colleauge Carol Brown has a new paper, Intent and Empirics: Race to the Subprime, up on ssrn, which turns to Home Mortgage Disclosure Act filings to dissect the racial disparities in subprime lending.  She links that empirical evidence with qualitative evidence of what accounts for at least some of those disparities.  Her abstract is as follows:

The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products.

This Article explores how disparate lending practices coupled with banking deregulation undermined the Congressional push for increased minority homeownership and widened the already burgeoning wealth divide. Millions of borrowers who accepted subprime loans between 1998 and 2006 already have or will lose their homes to foreclosure, resulting in a net loss in homeownership for nearly one million families. Blacks are disproportionately represented among the subprime victims, especially black women. The lending and financial services structure that caused this crisis is complicated by evidence of redlining and of steering blacks into subprime loans, all of which contributed to the present foreclosure crisis. This subprime dilemma merely adds new terminology to a long history of racial discrimination in housing in America. In the end, this Article argues that the search for an understanding of the cumulative events that facilitated the exploitation of blacks by subprime lenders illuminates the institutional and national impediments to reversing the present and future harm of the subprime crisis and to ensuring blacks equal access to one of the benefits of full citizenship – property.

First, in Part II, I contend that the disparities in subprime lending experienced by black borrowers and especially by black women result from intentional reverse-redlining and steering by lending institutions, their loan officers, and brokers. Next, in Part III, I consider why blacks and black women are disproportionately victims of subprime mortgages and of predatory lending. Finally, Part IV concludes by discussing the after-effects of subprime and predatory lending and offers possible solutions for rethinking how blacks are to overcome this deeply profound experience with housing discrimination which I suggest made blacks prime subprime victims. It focuses on the property dilemma or rather the dilemma of the landless.

I think a lot of people are going to be talking about this article.

How to Make Americans Save More? Get Rid of the Women.

Much has been made during the recent economic crisis of the vast difference in household savings rates between the United States and China.  The difference has led to the somewhat incongruous outcome of massive lending from an emerging economy to industrialized ones, particularly the United States.  Although explanations ranging from economic uncertainty and changes in the pension system in China have been offered, a new NBER working paper by Shang-Jin Wei and Xiaobo Zhang suggests a far more blog-worthy explanation:  marriage market competition fueled by gender imbalances arising from sex selection practices in China.

From the New York Times, which quotes from the paper:

“Families with sons compete with each other to raise their savings rate in response to ever-rising pressure in the marriage market. Competitive saving by these families spills over to greater savings by other families, possibly through raising the prices of nontradable goods such as housing.”                                                                                                     

“Across Chinese provinces, there is clear evidence that local savings rates tend to be higher in regions with more unbalanced sex ratios.”                                                                                                                                                                                                                                                     

In other words, parents want their sons to marry, and they figure that girls are more likely to want to marry rich boys.                                                                                                                         

The authors note that while they looked only at China, “other economies known to have a strong sex ratio imbalance include Korea, Taiwan, Hong Kong, Singapore and India. These countries also happen to have high savings rates.”

(HT: Tyler Cowen)

The UCC Goes To Prison

Tim's dry wit makes the UCC seem far more appealing than I remember if from law school, and now a recent federal appeals decision makes me realize that I've got to start integrating more of the code into my First Amendment course.

In Jones v. Caruso, the Sixth Circuit declined to lift an injunction against a regulation that prohibited prisoners from receiving "UCC materials" in the mail.  What sort of penologicial interest could have prompted such a draconian measure?  Well, it appears that prisoners have been using the UCC as a way to harass law enforcement officers.  A prisoner in one case obtained a copyright of his name and then filed fraudulent liens against government officials who used his name without permission or compensation.  (it's not right, I  know, but it is clever) . . . 

Anyway, Tim, even if the court had dissolved the injunction, your work would have been protected under a worthwhile exception for "legal materials which set forth the statute or provide a scholarly legal analysis of the UCC."

-Kathleen A. Bergin

Michael Jackson's Will

In case you didn't know, or are pretending not to, Michael Jackson, who was a singer of popular music, died yesterday.  Fans worldwide have mourned the death of the musical superstar, and news of the death clogged the internet yesterday.  Twitter, the social networking site, shut down yesterday, as did AIM, the instant messaging service. Sales of his songs increased 721 times on Amazon, with similar increases on ITunes, reports the NY Times.

Clearly, the world is keenly interested in the death of Michael Jackson, and so should academia. The unraveling of his complicated estate will be of acute interest to law professors.  Before his death, Jackson was saddled with $500 million in debt, and his upcoming concert tour in London, starting July 13, was intended to offset it.  He also held the rights to The Beatles and Elvis Presley's songs, buy purchasing the catalogs and owning half of Sony/ATV Music Publishing.  His attorneys say that his three children will not be responsible for his debt, but remain speculative as to who will be appointed their guardian.

Can this be only the beginning of the legend of Michael Jackson? What else can we predict as an issue in the outcome of his death?

More on the Beyond Text conference at the University of Edinburgh

Here's the conference schedule from last weekend:

Saturday 20 June – Theoretical Perspectives
Opening Panel
• Zenon Bankowski, The Space to See
• Maksymilian Del Mar, Breaking the Spell: The Education of Attention and Encounter in Law Schools and Law Firms
• Commentators: Tony Bradney and Julian Webb

1st Paper Presentation
• Randy Gordon, Truth in Context: Sketching a (New) Historicist Legal Pedagogy

2nd Paper Presentation
• Alan Lerner, When Parallel Lines Meet: Emotion and Cognition in Law and Legal Education

3rd Paper Presentation
• Paul Maharg, The Permeable Web: Community, Value and Ethics in Legal Education

4th Paper Presentation
• Nancy Rapoport, Changing the Modal Law School:  Rethinking U.S. Legal Education in (Most) Schools

5th Paper Presentation and Performance
• Jim Moser, Tor Clark and Anthony Psaila (both from STEPS), Beyond the Text - Exploring Conflict Through Interactive Drama

Sunday 21 June – Policy Directions
Opening Panel
• Panellists: Zoë Fothergill, Alicja Rogalska, Keren Ben-Dor

6th Paper Presentation
• Gillian Calder, Embodied Law: Theatre of the Oppressed in the Law School Classroom

7th Paper Presentation
• Tom Mayo, Twyla Tharp Goes to Law School: Incorporating Dance (and Painting and Sculpture) in a Course on Professionalism

8th Paper Presentation
• Elaine Webster, Threshold Concepts in Legal Education: Moving Beyond Text to Perceive Law as Narrative?

 9th Paper Presentation
• Valerie Fitch, Is 'Beyond Text' Simply Beyond Them? Making the Case for Infusing the Arts into Law Firm Professional Development

10th Paper Presentation
• Anne Pirrie, And Finally, Beyond Text...

Each of these presentations moved me in some way, and I left the conference feeling enthused about ways that we could reconnect law students with other ways of thinking and learning about the law.  More soon.

(Posted by Nancy Rapoport)