Wednesday, August 31, 2016
Bard Signing In
Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.
As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.
Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink
Friday, July 31, 2015
The End of Ambition?
I hear that sixty is the new forty. I hope so. It's the end of the month, and I'm thinking about ends. And if the bromide is true, I'm premature. But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.
By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation). Next year will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still. (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)
Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.
My friend, the philosopher Susan Neiman, has a new and neat little book about becoming and being, entitled Why Grow Up? Subversive Thoughts for an Infantile Age (New York Times Book Review by A.O. Scott here). Susan is a fabulous translator of Enlightenment philosophy (particularly Kant) into practical wisdom. I don't necessarily share her outcomes (she's a lot farther to the left than I, a passionate moderate) but given her fundamental message, there's a lot of room for reasonable differences. That's because adulthood is (to quote Scott's pithy summary) "the endless navigation of the gulf between the world as we encounter it and the way we believe it should be." Or as Susan says, it "requires facing squarely the fact that you will never get the world you want, while refusing to talk yourself out of wanting it."
So adulthood is also a mediation between simply being, on one hand, and continuing to become, on the other. Maybe being closer to the end than the beginning means that you have to be more selective about your becomings. The practical translation of that thought is the expression "life is too short," something that takes on more quantitative meaning the older you get, and particularly during faculty and committee meetings.
Even this blog post is a little becoming, because when I'm done with it, I've made the world a little more like it ought to be than it was (at least for me). Each paragraph, each article, each book, each lecture, each student one influences is a little becoming. But is accepting that as the rest of one's career also the end of ambition?
Tuesday, July 28, 2015
The Art of Lawyering and Beyond
Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.
What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.
Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.
Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words. There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.
Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.
And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?
Thursday, July 23, 2015
God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate
This is a reflection about disciplines and theory, in particular, law and economics. I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well. What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer. Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)
I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion. To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."
It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change. The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").
I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I respect beyond question are going to get me to believe in the divinity of Jesus Christ.
I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point. That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)
How this ties back to something as mundane as contract law after the break.
First, I owe it to Bob to plug his forthcoming Marquette Law Review article, Contract Design and the Shading Problem, the abstract of which is as follows:
Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to detect, and I offer an explanation for why this is so. In contrast to courts of equity in pre-industrial England, generalist courts today are tasked with the challenge of interpreting contracts in a heterogeneous global economy. This has left generalist courts incapable of identifying with any degree of accuracy which of the litigants is behaving strategically. I advance the claim that ex ante design by commercial parties is more effective in deterring opportunism in litigation than ex post evaluation of the contractual context by generalist courts. I illustrate this claim by focusing on the critical roles of uncertainty and scale in determining how legally sophisticated parties, both individually and collectively, design their contracts. By deploying sophisticated design strategies tailored to particular environments, parties are able both to reduce the risk of shading and to cabin the role of the decision maker tasked with policing this difficult to verify behavior. I conclude that judges and contract theorists must attend to the unique characteristics of the contracts currently being designed by sophisticated parties because it is the parties, and not the courts, that reduce the risks of opportunistic shading in contract adjudication.What Bob is wrestling with is how to fit the problem of contract language into the law and economics of contracts. "Theory" would predict that contracts are a check on opportunism, and therefore we ought to see a reduction in opportunistic behavior, particularly as between sophisticated parties who write complex agreements. But we see LOTS of opportunistic behavior and so how do we explain it? Well, it must be because somebody is acting opportunistically, and pushing an ex post interpretation of the language that couldn't realistically have been what it meant when the parties agreed to it ex ante.
Wednesday, July 15, 2015
"We Begin with the Assumption that Contracts Matter...."
One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt?
Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5) It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.
I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times. The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."
So.... One of the fundamental puzzles for Gulati and Scott is why sovereigns incur any costs toward lowering the cost of capital by way of contract design, and yet economists seem to think that contract design is irrelevant. The bridge from that to their assessment begins as follows: "In any case, as contracts scholars, we begin with the assumption that contracts matter." (23)
That bothers me. Let's try these variants. "As philosophers, we begin with the assumption that metaphysics matter." "As human anatomy scholars, we begin with the assumption that appendixes matter." "As physicists, we begin with the assumption that phlogiston matters." What's going on is a demonstration of the subtle ways in which descriptive theory has a normative component, even if the normative element is as basic as something like "this activity should be amenable to explanation by way of theory." If you start with neo-classical welfare-maximizing as the default in human decision-making - i.e., ceteris paribus, that's how the world ought to operate - no wonder it's a puzzle when it doesn't turn out to work that way. (I'm not sure if old Ayn ever got to the part of the Critique of Pure Reason that works through this - it's buried in an Appendix to the Transcendental Dialectic, beginning at pages A643/B671.)
If we check our premises, maybe contracts don't matter.
Sunday, July 12, 2015
For all that lawyers and law professors traffic in language, sometimes I think language is to lawyers as water must be to fish. That is, if you live in it, it's kind of hard to step back and realize the universe could be constituted out of some other medium.
Up here, the cable provider is Charter, and it runs a lot of commercials. The actor in the commercial for its business services trumpeted yesterday that one of the benefits of subscribing was "no contracts!" Well, you and I both know that there HAS to be a contract. God knows Charter will be disclaiming SOMETHING - like, for example, the potential for consequential damages to a business if the internet connection goes down.
What we all know is that "no contracts" actually means something other than its literal meaning. "No contracts" means only that the subscriber won't be held to a fixed term, and will be able to cancel its service without much notice to Charter. OMG, the plain meaning is precisely the opposite of the plain meaning!
The particular conceit of the smartest people in our profession - and I mean both practitioners and professors - is that words and sentences are capable, with the right skills, of exactitude that approaches an asymptotic limit. Within a certain school of contract law theorists, this gets expressed as the idea of an "incomplete contract," as though the idea of a complete contract, one that contemplates EVERY possible state contingency, is something any more conceivable than the Kabbalists' notion of God (the Ayn Sof - "there is no end"). I put the term "complete contract" in the same conceptual category as I do non-words like "gruntled," "dain," and "combobulated."
Below the break, I fulminate on this idea - that plain meaning is like Schrödinger's cat, existing and not existing at the same time - in the context of statutes (i.e. King v. Burwell) and contracts. (Full disclosure: I'm the guy who, when any student in my contracts class says the words "mutual intention of the parties," starts making "woo-woo" noises and acting out the Vulcan mind-meld.)
I don't usually wade into the great issues of the day, but I thought I ought to read the King v. Burwell opinions. If you put aside the politics, Chief Justice Roberts's opinion is a pretty well-trod exercise in the interpretation of a text: what does it mean for a health care exchange to be "established by the state"? Does that mean state itself has to put the exchange in place under its law, or does it also mean an exchange that the federal government has established for the state as the default?
For contracts professors, it's not too surprising. If you read Justice Traynor's opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., a seminal case in the law of interpretation, it's the same "literal reading" versus "contextual reading" of an indemnity clause. Indeed, if you look at the language in PG&E, it's the equivalent of Charter's "no contracts," and the court says, "Oh no, it can't possibly mean that!"
Two implications come to mind.
First, whether language ever really maps even an individual purpose or intention, much less the elusive "mutual intention of the parties" in a contract or "congressional intent" is the subject of the piece I posted on SSRN several weeks ago: Lexical Opportunism and the Limits of Contract Theory. My point there is that the elusiveness of language as map undercuts attempts to make broad economic or moral theoretical statements about contract law; I suspect it's the same for statutory interpretation. The text is the text and, in any hard case about its application, we are all opportunists.
Second, it's also almost impossible to state a rule for when you ought to abide by the plain textual meaning or look at the context. Sometimes "no contracts" could really mean "no contracts." There are some documents whose very value is in their formalism - letters of credit, negotiable instruments, promissory notes - and you really do do a disservice by allowing a contextual reading of the language. Hence, Judge Kosinski's criticism of the PG&E rule in the Trident case: it "casts a long shadow of uncertainty over all transactions negotiated and executed under the law."
Personally, I don't know what the hell "established by the State" was supposed to mean, and was relieved to have the ACA once again upheld because I think it's good policy (or better than the non-policy that existed before).
But in terms of the language issue, I can't help hearing the debate as though I'm listening to two fish argue how wet the water is.
Saturday, July 04, 2015
Wine, Soda Pop, and Law Schools - More on "Law Review Lift (Drag)"
Some time this month I will get to a relatively more serious topic, like textual opportunism, but for right now I'm still fiddling around with Al Brophy's ranking system.
So that I don't bury the lead, let me say up front that I have played some simple-minded statistical games with Al's data. What I come up with is that, among academics, "brand," as with soda pop, means a lot, and it is relatively sticky and independent of what is going on with the students.
I also think it's pretty obvious that there is a relationship between the "brand" and student data (i.e. high correlations between any ranking system and LSAT scores, for example). What got me interested, however, as I noted a few days ago, was the differential when Al included or didn't include a different and interesting stat: how often the school's main law review (not its faculty) got cited. My intuition is that what other profs think about placing articles in a school's review (based on my own experience) is a lot like the peer reputation score, except that it does measure a revealed preference (i.e., when you rank "peer reputation" as a participant in USNWR, it doesn't cash out to anything; placing an article does!)
The problem with all of these systems, in which we are "ranking" something with many complex factors (like wine) is that the judgment is qualitative, even if it looks quantitative. Often it's qualitative simply because it's qualitative (e.g., "peer reputation"), but even when it's fully quantitative it's qualitative because of the judgments one makes in weighting the quantitative factors. I was once a partner in a big law firm. Our partnership agreement called for compensation to be determined by a committee, which in turn used a list of factors like "billable hours," "service to the firm," "client responsibility," etc. Every two years the committee turned out a ranking that set your compensation relative to all the other partners. Similarly, if you aren't a hermit during early March of each year, you hear about a double ultra secret committee in Indianapolis deciding which of the "bubble teams" gets into the NCAA basketball tournament. Same thing. Recent results? Body of work? Bad losses? Good wins?
In any event, I played with Al's data and made some scatter plots and regressions in Excel, all of which follow the break.
I should note that I ran my little exercise by one of the toughest critics of empirical work I know, not for an endorsement, but to see if it was okay to "bin" the data into that 10+, 20+, and 30+ differentials between Al's 2 variable and 3 variable results. My interlocutor (who will remain nameless to protect the innocent) said that binning was okay if there was some theory behind it, but his or her very, very fulsome and thoughtful reply to my question reaffirmed my belief that data without judgment is blind (and judgment without data is empty, to be fair, in each case paraphrasing Kant). The big issue is whether just a few outliers are responsible for the outcomes (which you can see by eyeballing the scatter plots). That may be true here. So with that disclaimer, and recognizing this is a blog post, for God's sake, and not a peer reviewed research paper, here's what I came up with.
If you do the same for "lift (drag)" of 20+ and 30+, you come up with even higher correlations, .42 and .55, respectively. (See above left and right.)
What do I conclude? Probably nothing more than common sense would tell me: "brand" makes a difference; it takes a long time to develop one; and once you have it established, it sticks around enough to bias other data.
Thursday, July 02, 2015
Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results
I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.
Yesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations. He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review. That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.
Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank"). His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR. I was interested in "law review lift" versus "law review drag." So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.
After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag). I'll leave it to you to theorize about meaning, if any.Law review stats enhance student stats ten spots or more
Tuesday, February 22, 2011
Is "Intellectually Vacuous" the Right Expression for Veil-Piercing Doctrine?
Over at his blog, Steve Bainbridge endorsed a view, inspired by comments from Steve Bradford (Nebraska) at Business Law Prof Blog to the effect that every time he got to teaching "veil-piercing," he was reminded again how "intellectually vacuous" the doctrine was.
I sympathize. I have the same reaction when I teach veil-piercing. Why? It's the tempest in a teapot problem that affects much of what commercial and business lawyers learn in school, on one hand, and what they practice, on the other. Were you inside the teapot of an idiosyncratic case that ends up as an appellate decision on veil-piercing, it would seem like a Category 5 hurricane. You read five or six cases with outrageous facts and try to reconcile how the doctrine for why corporations legitimately exist (individual use them to shield themselves from liability) is exactly the same as the doctrine under which individuals can be tagged (individuals used them to shield themselves from liability). Blow winds and crack your cheeks, rage, blow! But piercing cases are rare, idiosyncratic, and usually marked by some outrageous conduct that makes the decision, in retrospect, not particularly surprising.
But I disagree that the proper description of the problem is intellectual vacuity. The problem is trying to reduce to propositions something that propositions can't reduce. I've been teaching first year contracts and I've encountered this same "vacuity" problem every time the standard is "justice" (as in promissory estoppel), unconscionability, or mistake. Analogical reasoning doesn't work because it is inductive analogy - the cases are supposed to describe a rule - rails in a Wittgensteinian sense - that point you to the next result, and there are no rails, or there are too many rails, or they aren't parallel (metaphorically speaking). The better way to approach this is to understand that (a) we have a non-propositional conception of the prototypes of corporate legitimacy and corporate legerdemain, (b) the prototypes sit in polar opposition on a continuum, and (c) the rationalizing propositions follow the non-propositional and intuitive metaphoric leap from the specific case before us to a prototype. Another in my series of Venn representations of this kind of polarity is at left - this on unconscionability.
Shameless self-promotion alert: I discuss this cognitive process at length (giving credit where credit is due - I didn't make this stuff up) in three recent papers: Metaphor, Models, and Meaning in Contract Law; The Financial Crisis of 2008-09: Capitalism Didn't Fail But the Metaphors Got a "C" (Minn. L. Rev., forthcoming), and The Venn Diagram of Business Lawyering Judgments (46 Seton Hall L. Rev. 1 (2011), forthcoming).
Monday, February 14, 2011
Metaphors, Models, and Meaning in Contract Law
As I mentioned to Dan Markel offline, I have been less active as a blogger so far this month in part because I've been focused almost entirely, as I have since last September, on two things: (a) prepping for my full-year six credit contracts class, and (b) developing a thesis (embodied in an article) that merges the theory and doctrine of the class prep with what I know about how the real world of "contract practice" works. Like most one-track people, I have been a total bore.
For a number of reasons I've been reticent to post the article until today, but Metaphors, Models, and Meaning in Contract Law is now available on SSRN. I alluded to it in a post on The Faculty Lounge as I was starting the project last September; 23,000 words (it was above 31,000 at one point) and two major "start from scratch" rewrites later, I have decided to let it go public. (I will do a post in the next few days on the five stages of assimilating even favorable and constructive comments: denial, anger, bargaining, depression, and acceptance.)
The gist of it is this: the dominant metaphor for contract in practice and the academy is "contract as model." One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact. Sometimes the metaphor is appropriate, and sometimes it is not. I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction . I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself. The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".
The abstract follows the fold.The abstract:
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.
Friday, February 04, 2011
Interdisciplinary Angst? - A Response to Boyden
I started to write a comment to Bruce's very interesting post, but it started to get long and then I realized I'm a guest blogger.
There are probably a dozen books, not all of them necessarily well known, that have had a fundamental impact on my thinking. One of them was a little piece by a organizational behaviorist by the name of Barry Johnson, entitled Polarity Management. The thesis is that some problems are only manageable, not solveable. The hallmark of such problems is that they demonstrate a conflict between interdependent but mutually exclusive polar values, each of which has an upside and a downside. A good example in a business organization is the polarity of teamwork versus command-and-control. Teamwork's upside includes buy-in, energy, synergy of ideas, innovation. Its downside is its lack of speed, bureaucracy, "camel" creation. At the other end of the polarity, command-and-control is alienating and often bereft of esprit, enthusiasm, but it is decisive and clear. Moreover, organizations show a tendency to move from the downside of one value by adopting the other, taking the benefits of its upside until the ill effects show up and then repeating the process to the other end of the polarity (over and over and over). (I saw this when "Total Quality" showed up in the early 90s to replace hierarchical management - you couldn't change the brand of coffee in the break room without a brainstorming session. So there was the counter-revolution.) The trick is to manage the polarities, not solve them.
When we talk about any professional or academic discipline, we are talking about a construct that is some mix of concept and social organization. There is no reason to think that the disciplines that have spun off from philosophy over the last 150 years cut nature at the joints (as some people are want to say). Or to put it another way, "independent discipline" compared to what? The "problem," if it is one, of disciplinary boundaries involves the interdependent but mutual exclusive values of (a) professional certification and authority (note the irony of my including a bibliography below, by the way giving weighty authority on interdisciplinarity) versus interdisciplinary exploration, and (b) deep and focused study versus creativity and innovation. It seems to me what leaders of academic institutions ought to be doing is managing the polarity rather than seeing it as a problem to be solved. It's obvious that there's huge value in both deep doctrinal competence and cutting edge weirdness (neuroeconomics, as a case in point). Against the downsides, respectively, of stultification and dilettantism. Certainly highlighting the issue (as in Bruce's post) is the first step to managing it, but it's not a problem that has an answer.
At the risk of stepping on Patrick O'Donnell's bibliographic toes, there's been some interesting work assessing disciplinarity both generally within academia (Michele Lamont, How Professors Think: Inside the Curious World of Academic Judgment; Louis Menand, The Marketplace of Ideas: Reform and Resistance in the American University) and law (Peter Goodrich, "Intellection and Indiscipline"). Also on the issue of the rise of social science disciplines generally and history as a discipline specifically, see Thomas Haskell, The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth Century Crisis of Authority, and Objectivity is Not Neutrality: Explanatory Schemes in History. And what would a guest blog post be without some self-promotion: my thesis ("The Venn Diagram of Business Lawyering Judgments", forthcoming, 46 Seton Hall L. Rev. 1 (2011)) that effective business lawyering demands a skill in being interdisciplinary, a discipline I have coined "metadisciplinarity," otherwise known as the deep art of being meaningfully shallow.
Tuesday, February 01, 2011
Lived (and Dated) History
I've been waiting patiently for the rotations to rotate; I should have posted this on January 20, 2011, the fiftieth anniversary of John F. Kennedy's inauguration. For some random reason about a month ago, I pulled Theodore H. White's Pulitzer Prize winning The Making of the President 1960 off the bookshelf and have been leafing through it. The 1960 Presidential campaign is one of my earliest memories of the world beyond the immediate surroundings of a pre-schooler (I was six and would have been watching it all on the black and white Muntz television while sitting on the Naugahyde couch in our living room). (I have been trying to translate this into how it would sound to me if told to me by my parents; the equivalent would have been my father describing to me a memory of that tumultuous election battle between FDR and Alf Landon in 1936.)
Aside from historical datedness like the amazing Democratic coalition of northern liberals and southern racists, or the fact that it was the liberal wing causing headaches for Republican Party regulars, I was struck by tidbits of mundane datedness as I read the first chapter. It is Election Day in 1960. Kennedy has voted in the West End branch of the Boston Public Library, then been driven through the "grimy blight of Scollay Square"--now the Government Center T stop and the plaza in front of City Hall--to an airplane that takes him to Hyannisport, where:
- The Democratic National Committee was insolvent and only had $800 to set up a press center at the Hyannis National Guard Armory; most of the materials to outfit it came from local donations - the local lumber company and Ford dealer. A local carpenter volunteered to build the partitions and platforms.
- There are no women except for wives and girls who operate the mimeograph machines. At 11:30 p.m., Jacqueline, in her ninth month of pregnancy "was sent up to bed."
- "Upstairs Lou Harris worked his slide rule...."
- At midnight, the candidate is wearing "white shirt, tan twill trousers, green necktie, white wool socks" [???!!!]
For a comparative backward-looking view, and one that imports the modern merging of media, entertainment, and politics, see this Vanity Fair retrospective on the Hollywood aspect of the Kennedy inauguruation published last month. Again, I was struck by the mundanities: on January 18, Kennedy had breakfast at the Carlyle in Manhattan, then boarded a commercial flight from LaGuardia to D.C.!
Wednesday, July 28, 2010
Jeff Lipshaw: Things You Ought To Know If You Teach Contracts
I'm going to follow Paul Horwitz's lead and mix resources with opinion. This is simply one person's view; reasonable minds may differ and I invite debate!
- Contract creation (offer and acceptance, reliance, electronic contracting)
- Contract performance and interpretation (parol evidence, implied terms)
- Defenses (statute of frauds, unconscionability, duress, mistake, impossibility and frustration)
I'm not a coverage junkie, but even in a four-credit course, I'd try to make sure I did something in each of those units; depending on how fast you traverse the material, in a six-credit course you could even get to assignment and third party beneficiaries.
2. Consideration or remedies first?
The basic dichotomy in teaching contracts (and hence the approach of the casebooks) is whether you teach "legal enforceability" or "remedies" first. This is right up there with other crucial decisions like "paper or plastic." There's a rationale for each: teaching consideration first appeals to the theorists because it plumbs the question why and under what circumstances the state gets involved in enforcing promises at all. Teaching remedies first highlights the different aims of contract law – reliance interests, expectation interests, and restitution interests. Some of the most popular casebooks (Knapp, Crystal, and Prince, for example) take the former approach; the latter approach is classically Kingsfield because you start with cases like Hawkins v. McGee (what is the value of a good hand?) or Groves v. John Wunder (do you measure damages by the actual harm to the non-breaching party or by the literal terms of the contract?)
3. How much UCC and CISG?
This probably depends in part on whether you have a four-credit or six-credit course, and whether your curriculum (like Tulane's, for example) explicitly calls for teaching the UCC either in the second semester of the first year or as an upper level course. This is a matter of personal preference; there are some contracts professors who eschew much of "classical" contract law in favor of the UCC, even in the regular contracts class. I think there are some pieces of the UCC that you almost have to teach, like the battle of the forms under 2-207 (particularly as it now applies to shrink wrap or electronic contracting).
I'm going to go public and say that teaching the U.N. Convention on the International Sale of Goods (the international equivalent of the UCC) is, in my view, a "nice to do" but not a "gotta do." This is a somewhat politically incorrect view.
4. How much real world?
I'm also willing to go on record (having done it already) to say that nothing highlights the tension between the legal academy and the practicing profession as much as the subject of contract law. You can graduate from law school and actually use the doctrine you learn in torts, civil procedure, criminal law, etc. That is far less true of contracts. First, contract law as taught is really about contract litigation, not contract creation. Moreover, you can go thirty years in practice and never see a case or a transaction that invokes the law of consideration, offer and acceptance, duress, etc. I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world. (See my article Models & Games, for example.) Although there are some admirable casebooks out there that attempt to do so (e.g. Epstein, Markell, & Ponoroff, Making and Doing Deals), my concern is that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons). You don't really teach the business world, and you don't really teach traditional doctrine. No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it. Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.
I do not have a good answer for this. My inclination still is to disabuse students of the idea that what they are learning maps on the real world. It is more helpful to think of contract law as the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction." Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).
Having said that, particularly if you have the luxury of a six-credit course, interjecting classroom exercises that tie to the doctrine seems like a really good idea. There is a burgeoning industry in such exercises; see Resources below.
- Sign onto the list serv of the AALS Section on Contracts. Carol Chomsky at the University of Minnesota is the list serv administrator.
- Make sure that you are on the desk copy mailing list for contract law materials at Thomson West (West and Foundation Press), LexisNexis, and Aspen. You can only use one casebook, but the other books are rich with resources.
- Get the RSS feed for the ContractsProf Blog, edited by Frank Snyder at Texas Wesleyan, and ably assisted by Miriam Cherry (McGeorge), Meredith Miller (Touro), Keith Rowley (UNLV), and Jeremy Telman (Valparaiso).
- Immediately find out who Tina Stark (Emory) is, and why she is one of the most forward-thinking and innovative transactional law teachers in the country. Get yourself access to the Emory Exchange for Transactional Training Materials, which includes tips for integrating real world situations into the first year contracts course.
- The Legal Information Institute of the Cornell Law School maintains an online and cross-linked version of the UCC. (Note: the Cornell license doesn't include the comments so you have to get them elsewhere).
- The Pace Law maintains an online full text version of the United Nations Convention on the International Sale of Goods.
- Order a copy of Contract Stories, edited by my classmate Douglas Baird (Chicago), which contains essays providing the context of many of the chestnut cases.
- Attend the annual Spring Contracts Conference, an event instituted by a group of committed contracts professors, including Frank Snyder and Keith Rowley. I don't have a link for the upcoming conference to be held February18-19, 2011 at Stetson University (perhaps somebody can provide a link in the comments).
- Plan to attend Suffolk University Law School's March 25, 2011 daylong symposium in Boston to mark the thirtieth anniversary of the publication of Charles Fried's iconic "Contract as Promise. After reflections from Professor Fried, some of the academy's foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion. Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, Jody Kraus, Alan Schwartz, and Robert Scott.
- You may or may not want to get familiar with some of the supplements. Brian Blum's Examples and Explanations (Aspen) is very popular. Keith Rowley's Questions and Answers: Contracts (LexisNexis) has lots of multiple-choice questions. I know there are lots of other good ones, and invite recommendations in the comments. (I try to keep an arm's-length relationship with the supplements, mainly because I don't want to have to try to explain what another professor means about a subject in addition to what I and my casebook are saying.) One huge benefit of getting on the desk copy mailing list is that you get these resources as well.
- One of the most helpful things for me was the session at the AALS Workshop for New Law Teachers on pedagogical methods other than Socratic or lecture (e.g., brainstorming or "pair-square-share).
Wednesday, May 05, 2010
Leadership, Judgment, and Reduction at the Harvard Business School
This morning's Wall Street Journal reports that the Harvard Business School has named a current professor, Nitin Nohria as its 10th dean. The article describes Nohria as "a vocal critic of management education and the leaders it produces," and quotes Nohria's recent conference call comment - one that without some unpeeling sounds a little odd: "I believe that management education has been overly-focused on the principles of management." But maybe not. Would it sound so odd to say that legal education has been overly-focused on the principles of law? Not at all. But consider the next quote in the article, this from Jeffrey Sonnenfeld at the Yale School of Management: "Mr. Nohria is someone who's been asking the tough questions. . . . While there is a lot of soul searching going on, he has been taking the steps to give MBAs judgment as well as knowledge."
To paraphrase Mark Twain, everybody talks about judgment but nobody does anything about it. It's hard to be both thorough and brief when giving quotable comments to reporters, so I don't knock Dean Sonnenfeld at all, but, obviously, instilling or teaching or demonstrating judgment is a task far more challenging than the mere "giving" of it.
What's intriguing to me is the implicit polarity of (a) over-focus on principles of management and (b) judgment. Some thoughts on principles (or rules) as reduction, something I've been considering recently, below the break.
I can't recall if I have blogged about this, but I have mentioned it in a couple papers. My next door neighbor and very good friend, David Haig, is a theorist in evolutionary biology at Harvard. He is a very smart guy. His groundbreaking work was in genomic imprinting, and particularly the theory underlying certain outcomes in maternal-fetal conflicts (it's a game theoretic approach that hinges on the selection of the mother's or father's gene, particularly when it's a zero-sum game as to resources as between the mother and the fetus). The theory has practical impact because it helps explain conditions like preeclampsia in pregnancy. Every couple weeks, usually late on a weekend afternoon, I open the gate in the fence between the houses, walk up the steps, and David and I share a bottle of wine and solve all the problems of the world (usually his house because he has small children.) There is one continuing theme: David thinks science will get us most, if not all, of the answers (eventually), and I am what we have come to refer to as a mysterian (Colin McGinn may have coined it, but I am happy to adopt it.)
Much of our conversation, then, is expressly or implicitly about reduction, and more specifically, epistemic reduction. Reduction is of particular interesting to biologists (or philosophers of science interested in biology) because of the seeming loss of explanatory power as one moves from molecular biology to the physics of the atoms and particles that make up the cells. Hence there is a Stanford Encyclopedia of Philosophy entry on Reductionism in Biology and it defines epistemic reductionism as "the idea that the knowledge about one scientific domain (typically about higher level processes) can be reduced to another body of scientific knowledge (typically concerning a lower and more fundamental level)." The Theory of Everything orientation to the world is necessarily reductive, even if not deterministic (hence the hope of somebody like Roger Penrose who hopes that consciousness and free will are ultimately explained by quantum physics, and therefore as reducible or irreducible as our ability to understand particles).
I just saw a paper on BEPress from Hanoch Dagan and Roy Kreitner with a pithy quote about legal doctrine: "Langdellian legal science envisioned law as an autonomous discipline governed by three characteristic intellectual moves: classification, induction, and deduction." This strikes me as classically reductive in the sense of isolating from the data what constitutes in language, the medium of the law, any particular element of any particular legal consequence, whether it be, for example, duty, negligence, mens rea, an investment contract, monopolization, or apparent authority. Focusing on the Kantian idea of judgment as the "faculty of subsuming under rules, i.e., of determining whether something stands under a given rule ... or not,” there's really no difference between scientific judgments in biology and scientific judgments in legal doctrine. The real question is whether in adopting a particular rule or theory or model (the skill in judgment that Kant didn't view as something that could be "given" by way of teaching, but could only be practiced) we've adopted one with optimum power for explanatory or predictive purposes in resolving the question at hand.
Hence, when we acquire knowledge, we are necessarily selecting rules that themselves tag only pieces of all the data available to us, and those rules allow us to predict consequences whenever the relevant conditions present themselves. Right now (but that could change), the selection of particle physics as the model (with its coherent assemblage of rules) is not going to help a biologist explain pollination, notwithstanding all of the explanatory power of particle physics for those operating the Hadron collider. It strikes me that Nohria is right about business people (and I extend it to lawyers in business): if we over-focus on the rules and principles of management or law, we've over-reduced, and will necessarily find our judgments to be problematic.
Saturday, May 01, 2010
Slicing Prosciutto and Other Metaphors
Marc has joined the fray and I don't think he's a wet blanket at all. I started to write a comment and quickly concluded it would turn into a post of its own, suggesting that he's a catalyst. Moreover, wet blankets aren't fun, and I've just spent an hour writing this post, which I wouldn't do if it weren't fun (or if I had a life, but such are the benefits of empty-nester-dom: I can do whatever I damn please on a Saturday afternoon).
I understand Marc to be saying he does not teach the moral "ought" that stands behind values, and I am sure that's true. The metaphor for the method he describes is "slicing the prosciutto," which evokes understanding in finer and finer detail the components of the particular human behavior that constitutes his subject area, and the laws, rules, norms, lore, and customs that have arisen to regulate that behavior. I agree that has little to do with a moral "ought." Nevertheless, the metaphor invokes another kind of "ought", an epistemological "ought," one that suggests a relationship between knowledge and reduction: we ought to know more as we slice the prosciutto more thinly. Thus I want to peel some leaves off the artichoke of the metaphor of the slicing of the prosciutto, first, to address generally what Steven Pinker calls the "metaphor metaphor" and, second, within the prosciutto metaphor itself, to address what happens if you keep slicing.
First, what does the use of a metaphor like slicing prosciutto tell us? The extreme exponents of the metaphor metaphor are George Lakoff and Mark Johnson (Metaphors We Live By) in cognitive science and Steven Winter (A Clearing in the Forest) in law. You cannot read the work of either of them and not be taken with their intellectual horsepower, but it is an extreme position. The main idea is that all thinking is metaphor (hence, the metaphor metaphor for thinking) arising out of our having embodied minds in physical bodies: there are no a priori concepts or universal truths and all concepts arise from basic hardwired physical relationships (e.g. TIME IS MOTION; LOVE IS A JOURNEY). Pinker criticizes the extreme metaphor metaphor (as I have, using a slightly different metaphor), but nevertheless is taken (as am I) by its seeming explanatory power in many cases. Pinker writes in The Stuff of Thought:
Another fallout of the metaphor metaphor is the phenomenon of framing. Many disagreements in human affairs turn not on differences in data or logic but on how a problem is framed. We see this when adversaries "talk past each other" or when understanding something requires a "paradigm shift.". . . Each controversy hinges on a choice between metaphors. . . .
The most recent example of this is the Goldman Sachs inquiry, where the duty and materiality issues depend entirely on whether you use a bookie metaphor or an investment adviser metaphor to frame the controversy (see Larry Cunningham's invitation a few days ago to come up with the best analogy).
There is an implicit "ought" in Marc's inculcatorium (or non-inculcatorium) that asks us to take the metaphor SLICING IS STUDY, and the implicit analogy THINNESS is to PROSCIUTTO as REDUCTION is to KNOWLEDGE. How about this metaphor? Elements of a legal claim are TREES in the legal FOREST and law itself is a TREE in the FOREST of human understanding. Don't lose sight of the FOREST for the TREES. That suggests you want to teach not by slicing prosciutto but by stepping back. What I am suggesting here is that we are indeed inculcating more than we think. It may not be a moral inculcation, but it is an epistemic inculcation.
Second, my use of the artichoke was only slightly in jest. As to the prosciutto metaphor, can you slice it (the prosciutto or the metaphor) too fine? Does it lose its taste if the slice is only a couple molecules thick? I think prosciutto slicing has a highly non-foundational, scientific feel to it. We are reducing to the very atoms or nuclei or quarks of the meat. If you are a foundationalist, perhaps you do want to use artichokes rather than prosciutto because you finally get to the heart, it's all the same green mushy stuff, and there's no point in reducing any further.
I think Langdell wanted to be a prosciutto slicer, and generally law as practice and academic pursuit for the last 100 years reflects that. My impression is the Stanford program and other interdisciplinary or metadisciplinary efforts are attempts not to lose sight of the forest for the trees.
"The Most Significant Curricular Change Since Langdell": Stanford's New Model for Legal Education
Howard's last post about common sense is on to something, though I'd engage with him on whether you can just tell lawyers, after three years of law school inculcation, just to employ common sense.
So was Larry Cunningham's post yesterday at Concurring Opinions, discussing Louis Menand's essay on the anxiety inherent in academic interdisciplinarity.
I've gone on record as suggesting the professional judgment of a business lawyer requires not just interdisciplinary skills, but a "meta" ability to deal with many disciplines, something I call the discipline of metadisciplinarity (or, as I referred to it in a talk at Boston College a few weeks back, the very deep art of knowing how and when to be shallow). Metadisciplinarity asks one to engage, as a practitioner, with the interplay between technical expertise and common sense, or, as an academic, with the tension between specialized knowledge and dilettantism.
So it was that Larry Kramer, dean of Stanford Law School, in Boston last week meeting with small groups of alumni, caught my attention. Usually, I'm in those meetings as a target (cha-ching), but when Larry claimed that Stanford might well be undertaking the most significant change in legal education since Langdell, I was interested more as a legal educator. Stanford's changes are not new news; they began well before the financial crisis and its domino effects on the businesses of law and law schools. It's one thing to say you are going to fiddle with the curriculum; it's another to say one school's change is important enough to, as they say, shift the paradigm across all of legal education (as Langdell's case method did). That hit me where I live now, particularly after digging into the rationale for the change, which has everything to do with lawyers going beyond doctrine, or even pure legal judgments, and engaging in the interdisciplinary judgments that occur any time they interact with clients.
For the micro view, see my paper, The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity (forthcoming, Seton Hall Law Review, 2011, also to be presented at the Law & Society meeting later this month). Below the fold, however,I want to raise some questions on the macro issue: what cascading institutional changes in legal education, if any, this portends.
There is a fair amount of public material on this: the 2006 press release, "Larry Kramer Wants a Revolution in Legal Education" from the Wall Street Journal Law Blog, as well as a much more recent memorandum Larry's assistant sent me the other day, which I've reproduced below the fold. I can, however, summarize this in just a few bullet points:
1. The first year of law school largely works, and that will continue largely unchanged.
2. The second and third years of law school largely don't work.
3. The law school will be a portal to the university in the second and third years, giving students tremendous flexibility in designing course and clinical packages that take advantage of ALL of the university's graduate and professional programs. This isn't just more joint degree programs (but many are available), but the opportunity to make the education underlying even the J.D. as interdisciplinary as the student wants. The educational impetus is that it's no longer true that a lawyer can obtain the skills he or she needs to succeed merely by studying legal doctrine with law professors and other law students.
4. All students will get an opportunity to spend at least one quarter in a full time clinical experience - with no competing classes or projects.
I don't think one can fairly compare Stanford's resources with all law schools, and I don't mean to, but I did start thinking about this vision of legal education, and how schools from the top to the bottom of the surveys and rankings mights be affected. The "beauty" of the Langdell model for years and years was that a law school education didn't look fundamentally different within the four walls of any law school you chose to visit. When a law school paints a very different picture to its incoming students - "we are going to put the full power of the university to work on your education in a meaningful way" - that seems like it begins to separate the field. For example:
- Size matters . . . when you are committing to give every student a full quarter's worth of full time clinical experience. Stanford has 160 students per class; some of the top-ranked schools (e.g., Harvard, Michigan, and Georgetown have three or four times as many). Can the big schools make the same experience available?
- Resources matter . . . while free-standing law schools could certainly work to replicate university-like resources, that isn't going to be easy.
- Location matters . . . when you are offering opportunities, as Stanford's materials mention, "within walking distance" of the law school. How will schools like Northwestern, Georgetown, Fordham, BC, etc., where the schools are physically removed from the main campus, react?
- Students matter . . . when you are worried about things like your bar passage rate and you migrate away from the traditionally required upper level doctrinal subjects, like evidence or business associations.
- Reputations matter . . . Larry told me about a program in which Stanford law students will be working cooperatively with a major corporation in which law students fill a particular need. Will every school be able to make that opportunity available?
Let's assume that the Stanford model indeed is the most significant change to legal education since Langdell, or, at the very least, it's a game-changing marketing plan. Here are some of my questions.
- Is it an elite school phenomenon? (That was the view of one of my colleagues.)
- How does it measure up against other changes to the paradigm, like Northwestern's two-year plan?
- How will the "aspire to be elite schools" react?
- How will the lower "first tiers" react?
- What will the effect on independent schools be?
- What adaptations will result in the third and fourth tiers?
- Will there be consolidation?
Here's the memo from Larry's assistant:
Stanford Law School revised its first-year curriculum decades ago (in the 1980s), and it successfully teaches students how to think like a lawyer through rigorous courses in legal reasoning and case analysis. But law students need more today than the traditional second- and third-year law school curriculum offers them. It is important for 2Ls and 3Ls to learn more legal doctrine, but it is equally important for them to learn how to think like their clients during the upper years.
Our curriculum changes are a response to a changing legal profession. Because business, medicine, government, education, science, and technology have all grown immensely more specialized, legal practice has had to adapt by growing more specialized. At the same time, lawyers have to practice in a globalized context--transnationally. And, while lawyers have historically been looked upon and trained to spot problems, now lawyers are being asked to solve problems. In order to contribute to solutions, lawyers have to be able to work collaboratively as part of cross-disciplinary professional teams. They have to be able to think like their client, which means, in part, they should develop subject matter expertise in their area of practice. (e.g. Environmental law / environmental sciences.)
Stanford Law School is unique in that no other law school can match the breadth of excellence we can offer students who want to study across disciplines. Stanford University ranks in the top 10 in 17 academic categories; in the top five in 16 of 17 categories; and the top three in 14 of 17 categories. In rethinking our curriculum, we saw that our students have a lot to gain by taking courses outside the law school--among the other top ranked programs at Stanford University that afford them subject matter expertise; that teach them to work in problem-solving teams (such as taking a team who can take an engineering product to market); and that teach them to operate in a global context.
Accordingly, we began to revamp our revamp our second- and third-year curriculum starting in 2006:
We revamped our course offering, changed our academic calendar, and broadened the degree. We’re encouraging students to find their direction while in law school, helping them to choose the right courses, and connecting them with alumni who can serve as mentors in their field. (To facilitate mentoring, we built SLS Connect – a proprietary social network tool specifically for Stanford Law School alumni and students.) We’re providing real research opportunities to students through research centers, and directing their research on projects that have real-world impact (such as the Afghanistan Legal Education Project). We made a huge commitment to clinical education and have expanded our program, to enable students to do real work on the ground (including practice in international law).
We are educating students more broadly through courses outside the law school and through joint degree programs. We synchronized our academic calendar with the rest of the university, which is on quarters not semesters, so our students can take advantage of the fact that Stanford University houses top-rated graduate programs and departments all within walking distance of the law school. We now offer 27 formal joint degrees and we continue to allow students to tailor their own joint degree in practically any discipline.
We have developed team-oriented, problem-solving courses that are co-taught by faculty from the law school and Stanford's other top-rated schools. For example, student teams from the law, business, and engineering schools will learn how to bring an invention to market--evaluating the technology, drafting a business plan, protecting intellectual property, and managing the regulatory process.
We are rapidly expanding our clinical education program so that every law student is able to take a clinical course some time during their three years here that will teach him/her how to work with clients and colleagues-- and how to address the ethical dilemmas that arise in practice in the context of real-life client representation scenarios where they can be mentored by seasoned practitioners before they graduate. We are broadening the range of practice areas of our clinics, and introducing a clinical rotation, based on the medical school model--with no competing exams or courses.
On May 28, 2008, the law school faculty voted to adopt a grade reform proposal to change the law school’s grading system to an honors, pass, restricted credit, fail system for all semesters/quarters. The new system includes a shared norm for the proportion of honors to be awarded in both exam and paper courses. The policy became effective beginning fall 2008 starting with the class of 2010.
The curriculum changes have taken place over the last several years--with a formal announcement of them in November 2006 and a "joint degree expansion" announcement in May 2007 (see links below). We switched fully to the quarter system in the fall of 2009. We modified our grading system effective 2008 for the class of 2010.
Friday, April 30, 2010
It's the Most Wonderful Time of the Year - Reprise
Thanks to Dan for inviting me back for the fourth year in a row. I'm soon going to turn my attention to REALLY SERIOUS STUFF and the kind of shameless self-promotion that comes from posting on a mega-elite Top Twelve Blog as opposed to my merely Tier 1 home blog (Legal Profession Blog: A Member of the Law Professor Blogs Network) where I've been pontificating over the last few weeks about God's gift to securities law professors: synthetic CDOs, SEC v. Goldman Sachs, and the metaphor war in the Senate. I am pretty sure I was the first person either in the blogosphere or the MSM to use the "bookie" metaphor and I am really happy to see others coming around.
But first, I want to reprise an old post. I wrote this song about this time last year when I saw a colleague (who will remain nameless) bouncing his way down the hallway with a disgustingly cheerful air, and what we used to refer to as a "[Senator Levin's favorite unfortunately used adjective to describe a synthetic CDO]-eating grin." I asked him why he was so happy, and he said "it's my favorite time of the year." Immediately, a little Andy Williams in a devil costume popped up on my shoulder, and gave me these lyrics without stopping to take a breath. So this goes out to all the students in the 4:00 p.m. edition of Agency, Partnership, and LLC this semester who were wide awake enough to laugh at my jokes:
The 3Ls are cramming
And take-home examming, with 1Ls in fear.
It's the most wonderful time of the year
It's the hap-happiest season of all
With the summer approaching and no class encroaching
At least until fall,
It's the hap- happiest season of all
There'll be stipends for writing
With no deans to be fighting,
And grading will all have been done.
There'll be times of clairvoyance;
We're free from annoyance when
Faculty meetings are none.
It's the most wonderful time to stay here
There'll be much profound thinking
On essays we're inking
When students steer clear
It's the most wonderful time of the year
There'll be federal granting
And no colleagues ranting
In committees to which we belong
We'll be teaching in Florence
And free from abhorrence
Of everything we know is wrong.
It's the most wonderful job you can get.
While the law firms are bleeding
And markets receding
The one thing we never forget
It's the most wonderful job
It's the most wonderful job
It's the most wonderful job you can get.
Saturday, August 01, 2009
One of the charms of being able not to retire and teach is being just a little unstuck in time with respect to my professional peers. While Dan and Wendi get ready for the bris of their little boy, I'm in Ann Arbor helping the boy through whose bris I kept my eyes tightly shut move into a new apartment as he prepares to start medical school on Monday, following his White Coat Ceremony tomorrow. (Note to self: why don't we do something like this for entering law students? But what would we call it?)
I have helped him move each of the last couple of years, and the routine is always the same - rent a truck for a couple of hours, move the 500-pound bookshelf from hell, pack and unpack the boxes, wake up the next morning (as now) wondering why I went seven rounds with a welterweight boxer. This year was slightly different, as we decided to go to IKEA to buy another bookshelf and a dresser (which we assembled late last night, and which may account for the sorry state of my lumbar this morning).
As I fade into blog sunset once again, I want to reflect just a minute on the IKEA experience, which I can only describe as a kind of Swedish Disney "It's a Small World", except that you get to buy the dolls at the end. (The map, right, courtesy of Wikipedia, shows the places in the world you can find an IKEA store.) First, I couldn't understand why the place had to be halfway back to Detroit when every other self-respecting big box store has managed to find a place on the Ann Arbor outskirts. The reason is, I think, that the place is the size of a small state itself. Second, like being at a Disney park, you can't help think about the hours of mental energy that went into designing the layout. You go up an escalator, like that first ascent on a roller coaster, and then go wooshing through a maze of rooms (complete with "short cuts"), looking at the displays, and writing down aisle and bin numbers. Third, you can't escape. It's been a long time since I was at DisneyWorld, but what I remember was how the designers kept you from actually seeing how long the line ahead of you was by snaking you back and forth until you turned a corner and realized there was a whole 'nother room of cordons and lines. All you want to do is get to the "Raiders of the Lost Ark" warehouse with the aisles and bins to put your "some assembly required" bookshelf and dresser on a cart, and you cascade from lighting to plants, to glassware. Fourth, the books in the office and family room displays are real, and in Swedish. There must have been 500 copies of Jonathan Franzen's The Corrections in Swedish. And finally, there's a cafe serving Swedish food, including something in lingonberry sauce.
All I can say is that I really was shaken up, and that was before I started assembling the dresser.
Thanks for the month, and see you again soon (New Orleans in January?)
Wednesday, July 29, 2009
Living Outside the Paradigms
Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines. (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it.) I was explaining this yesterday to my father-in-law, who is visiting us here in Michigan. He's a really bright guy (a lawyer), and loves ideas, but he's not a scholar by any means, and so I'm obliged to use plain English. It went like this. If you are constructing a thesis that borrows from many disciplines, how much of an expert in each discipline do you need to be? Moreover, if it's really original work, who is going to be able to judge whether the work constructively pushes the inquiry along, or is simply bullshit?* In other words, if you are going to write in law and phrenology, do you have to have the equivalent of a professional certification (whatever that is) in both disciplines? And if you do, have you been sufficiently co-opted by both disciplines so as to kill off whatever inclination you may have had to do "out of the box" thinking? That's the dilemma, and I don't think it's any more resolvable by way of a silver bullet than most other long-standing irresolvable debates (like "Tastes Great" or "Less Filling").
At the recommendation of frequent commenter, A.J. Sutter, I recently started a book by Hamline University philosopher of science, Stephen Kellert, entitled Borrowed Knowledge: Chaos Theory and the Challenge of Learning Across Disciplines. At the same time, Brian Leiter linked the other day to my friend Rob Kar's recent review (in the Notre Dame Philosophical Reviews) of Brian's Naturalizing Jurisprudence. The fun in reading something like Brian's work, or Rob's review of it, is the deep dive into a long-standing dialogue; in this case, the jurisprudential debates over the last century or so over the possibility of explaining, philosophically, scientifically, sociologically, or psychologically, how judges go about making law, and more fundamentally, what law is. Nevertheless, if your intuition happens to be that looking at what judges do is like looking backwards through a telescope (i.e., not wrong, but focused on a very particular instance of how humans manage to order their affairs in the whole scheme of life, law, norms, and business), then you keep bouncing out of it with something of a "so what?" The "so what?" is likely the reaction of most normal people to most of what philosophers, historians, literary critics, and other sojourners in the humanities do anyway, but I'm a lawyer-practitioner who somehow plopped into the academy, for God's sake, and like Guy Noir, trying to find answers to life's persistent questions. I thus feel compelled to figure out what might bridge us from the relatively pure jurisprudence of a Leiter or Hart or Raz to what I spent more than a quarter century doing in the real world, which was legal work, but most of the time not involving judges.
More below the fold on the opposite of the deep dive - borrowing from one field to another.
A couple of years ago, I got hung up on Gödel's Theorem, which is one of the groundbreaking instances of pure thought in the last century. For the uninitiated, Bertrand Russell and Alfred North Whitehead purported to reduce all of mathematics to a set of foundational axioms and rules of inference, focusing primarily on sets and numbers (cardinal, ordinal, real). Kurt Gödel, a member of the Vienna Circle, constructed a lengthy proof, the purpose of which was to show that any complete complex system of formal logic, like arithmetic (particularly as encapsuled by Whitehead & North's Principia Mathematica), contained propositions that were formally undecidable within the system (i.e., that they could not be proved either true or false using the axioms and rules of inference). In other words, the system could be either wholly consistent or complete, but not both. The proof method involves a formal version of the Liar's Paradox, in which the following phrase translates into numbers: "[Is not provable] is not provable." In other words, we get to the point where the system loops on itself, and tells us in formal terms, that the proposition "is not provable" we've postulated within the system, and then working only from the system's basic axioms and rules of inference, and thus appearing to be provable, is not provable. That's what makes it a theorem.
This is a mind-bending thing to contemplate, and Douglas Hofstadter's Gödel, Escher, Bach is perhaps the most famous attempt to derive metaphors from it. But is it an effective metaphor for reducibility or limitations on knowledge, or other epistemological or metaphysical insights? Gödel himself, like many mathematicians, was something of a Platonist.
When I was fiddling around with this (and there's a lot of fiddling in this area - do a Lexis or Westlaw search in law reviews on "Gödel"), Larry Solum, ever wise, voiced the cautionary message: the formal logicians are very skeptical of attempts to extend metaphors from formal logic into other areas. But are the logicians entitled to define the extension of the metaphor? That's what Kellert's book is about, but more generally as to all disciplines (including a discussion of the question "what's a good metaphor?"). In particular, he looks at metaphors to chaos theory, something HE knows about, in economics, law, and literature.
Well, I'm just diving into this, so more to come later.
* I may have a special interest in this. I have a book proposal under review with a major university press. The following comment from one of the anonymous reviewers is one that I kind of cherish: "It is clear the author has a special range of interest and expertise, and this book weaves the author’s unique range of interests together with purpose. The problem is that not many people share the author’s range of interests."
Tuesday, July 21, 2009
I have not had much time (really much energy) to post from Budapest - last week it was in the low 90s, and teaching two hours a day in the heat of the afternoon just about did me in. My wife, Alene, was traveling separately in Italy and we met in Vienna over the weekend.
This has nothing to do with law professoring or teaching. It's also more of a downer than I mean to convey generally about Budapest, which, other than the heat, has been just fine. This is, however, the kind of thing one runs into in Europe from time to time.
Walking home from dinner we saw one of the most moving Holocaust memorials I can recall, which somebody described to Alene this morning (the grandmother of the young woman who described the event had survived it). In 1944-45, Hungarian Jews were lined up on the wall of the Danube and pushed or jumped or shot to their death in the river below, but only after being ordered to remove their shoes, which had value to the Nazis. The picture at left is of the memorial created in 2004.
Budapest has one of the largest Jewish communities in Europe to have survived the occupation. While most of the Jews in Hungary outside of Budapest were deported to Auschwitz, the ghetto in Budapest was not exterminated (akin to Cracow or Warsaw) because the Germans simply did not have enough time. This was because the actual time of occupation was relatively short (the year before the end of the war, Hungary having been an Axis country). Hence it was one of the few ghettos to have been liberated by the advancing Red Army.
Along the same lines, when I worked for AlliedSignal, the headquarters of the Bendix business, which had been in France since the 1920s, was in the Paris suburb of Drancy, which is near Le Bourget Airport. Drancy had two claims to fame. First, it was the home of ardent French communists (our facility was on the Rue de Stalingrad). Second, it was the site of the deportation center for French Jews rounded up by the Nazis.
Thursday, July 02, 2009
Complexity, Judgment, and the Subprime Crisis - The Hedgehog's View
At the end of April, Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, organized a fascinating day-long colloquium on issues of complexity arising in the current financial crisis. Among other presentations, Barry Schwartz from Swarthmore gave a talk on "the paradox of choice" (i.e., more choice, or more complex choice, doesn't necessarily make consumers happier), and Joe Grundfest gave a luncheon keynote. One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything? My analogy was this: if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe? I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys? And even if there is, do we want to prescribe it? Maybe we like the booms enough to bear the busts! To keep the analogy going, there's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?
More on the hedgehog below the fold.
One of my most treasured Suffolk colleagues has suggested that I am a hedgehog, in the sense of the Greek saying (appropriated by Isaiah Berlin) that the fox has many clever ideas, but the hedgehog has one big one. My big one (such as it is) is placing the canard "thinking like a lawyer" into the broader category of how people make sense of the world. (This comes, I think, from spending so much of my professional life as a lawyer not surrounded by other lawyers.) Nothing provokes this kind of reflection like great calamities, whether they are oceanic or financial tsunamis. In a nutshell, the question is how we assess what happened against two very different kinds of "oughts": (a) the normative "ought" of our sense of the way a just world should work, and (b) the descriptive "ought" that a scientist imagines when she comes up with a hypothesis of explanation that has yet to be borne out by experiment. My working thesis is that thinking like a lawyer - somewhere between advocacy and truth-seeking - gets this all jumbled up. What lawyers do mostly is look backwards and assess cause-and-effect in a particular way, and make implicit (and not necessary correct) assumptions about predicting the future from what happened in the past. To put it otherwise, my hedgehog concern deals with difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty.
The result (how I spent my summer vacation) is The Epistemology of the Financial Crisis: Complexity, Causation, Law, and Judgment, in which I've argued this is mostly an epistemological crisis - a crisis of faith in science and algorithm as against the ongoing irreducibility of judgment, whether our own or those to whom we delegate it. In short, it's scary when we thought we had it nailed, and it turns out we don't know what we don't know. (I apologize for the use of the word "epistemology" but I like it, despite the warning of a good friend that it's a signal of a high "crap factor.") There's a little something for theorists of all kinds in there, including a critique of Michael Moore's new book Causation and Responsibility (the first extended treatment of causation in the law since Hart and Honore), Adrian Vermeule's Judging Under Uncertainty, and Richard Posner's A Failure of Capitalism.
Wednesday, July 01, 2009
The Vacuous Private Law of Homeowners' Associations (Below the Fold) After Vacuous Reflections About My Vacuous Life
Here we are, back for the fourth summer stint on PrawfsBlawg. It's hard to believe, when Dan first invited me to do this, in July, 2006, I was an outsider to the legal academy looking in (per Bob Uecker, "gosh, they're having fun in there.") Also, Twitter was unknown. Twitter has done a lot to focus my blogging, because, call me an old whatever, but I can't believe anybody gives two hoots about the mundane details of my life, whether by blog entry or tweet, something I wasn't considering back in 2006 while in a New Orleans carwash watching what looked like melted rainbow sherbet ooze all over my car. Steve Bainbridge seems to be able to get away with food and wine, but he seems to know what he's talking about. I try to maintain a connection to something legal (or, if not legal, funny).
If I were inclined to vacuous reflections about life, however, I would extol the pleasures of not of litigating, but of home brewing beer, a subject touched upon in these parts recently. My son, Matthew, and I are on our third batch of the summer, having invested $100 in the basic tools of the trade. Our first 43 bottles were an Irish stout recipe, which we named "Max and Annie's Jewish Stout," after our two dogs. We've since moved on to "Max and Annie's Michigan Porcupine Pale Ale" (a Sierra Nevada Pale Ale recipe), and "Charlevoix Steam Beer," which is presently fermenting in the crawl space where it is cool. Our plan is to lay down a carboy full of mead for a full year in a few weeks. This is a stretch but the legal connection is that I can't post the labels, because I am positive at least the second two violate a whole raft of copyright and trademark rights.
But enough of me. Let's go below the fold where YOU can hear me whine about the governance of homeowner's associations.
We spend the summers in Charlevoix, Michigan, where we bought a lot sixteen years ago, and built a house twelve years ago. In Michigan, there is something called a "site condominium," which is basically another way of imposing regulations in a subdivision of free-standing homes, and that's what we have. There are thirty-six lots, and common elements, which consist of two roads and landscaping, and a beach lot with a removable "Brock Dock" through which residents not on the lakeshore itself have access to the lake. You own your own lot and house in fee simple absolute, but the lot is established pursuant to a master condominium deed, which contains the property rules, and which incorporates a set of recorded bylaws, which establish the five-person Board of Directors (classified board - two and three seat classes, elected for two years) and the architectual review board, empower the collection of assessments for the maintenance of the common elements, and set use restrictions such as no short-term leasing, no open garage doors, and no boats, trailers, RVs, etc. left in the driveways.
If you want to experience the thrills of corporate governance in a microcosm, do as I have done and be a member of the condominium association Board of Directors for going on fifteen years. I would have resigned long ago, except that nobody is as anal about the record-keeping as I am, and so I've been the secretary (and now webmaster) for all these years. The lesson I take from the experience, as a legal theorist, is the tenuous (vacuous?) relationship among (a) the actual private law of the association as reflected in its governing documents, (b) what people think their actual rights are, and (c) how, when it comes to asserting and defending one's interests as between the law and the lore (or custom), a foolish consistency is the hobgoblin of little minds (see Prawfs guest blogger Brian Tamanaha on Law as a Means to an End). Take, for example, a matter of no small interest: the ability to see the lake from your living room if you have a house that is not on the lakeshore. There are local zoning rules that define setbacks, as well as an architectural review board within the condominium association, but it has been almost impossible to restrain the lakeshore residents from building setback to setback (i.e., very large homes on relatively small lots), so that the space between the houses is a mere sixty feet, filled with fast growing (and kind of ugly) white pines that the original developer planted at the lot lines to keep the place from looking like a landing strip. But there is no legal right anywhere in the documentation that says you have a property right in your view of the lake. The only way to control this is through community controls on landscaping (which doesn't help with the stuff that was here before) or an appreciation of the Prisoner's Dilemma we find ourselves living in, and the ensuing need to cooperate. Nevertheless, I find myself educating a neighbor every year on the fact that there is no legal right to a "view corridor" as it has come to be known. If there were, I would have already done something about the forest of scrubby white pines that block my view.
Then there is the question of the separation of ownership and management. We just issued a rule to the effect that there were to be no permanent firepits built on the beach. You can have fires, but you have to use a portable firepit (they exist), which means that you clean up after yourself, and there's no lingering hot embers for a kid to fall into. My publication of this rule prompted the following "Berle and Means" response from a neighbor (otherwise, a very nice person - beware the pitfalls of the inference one draws from e-mail): "Does the board act and make rules based on the good of the people that live here?"
Well, I could go on, but there is shameless self-promotion yet to be written.
Saturday, June 28, 2008
A Theory: Under-Theorization is the Key to the Heretofore Under-Theorized Academia-Practice Divide
Two people whose blog posts and comments I almost always enjoy seemed to disagree about something over at Concurring Opinions. I think it is an interesting point of entry into why academic and practicing lawyers are often ships passing in the night. Academics use the term "under-theorized" all the time; I never heard the term in twenty-six years of practice. This simple point has been heretofore under-theorized. I'm going to step into the breach with the following theory about under-theorization: Academics are reductive (indeed, in some cases, radically reductive) theorists; practicing lawyers are not. Academics seek to theorize - i.e. to provide causal explanation of social events in time and place - in a reductivist way. The social world is too diverse for highly reductivist theory without specialization; practicing lawyers, on the other hand, have theories too, but the causal explanation is at a level academics would call under-theorized.
Here's what triggered this. In his post, Deven Desai extolled the value of summer reading for academics, but added "[o]ne last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument." A thoughtful and frequent commenter from the real world of practice, A.J. Sutter (why doesn't somebody ask him to guest blog?) begged to differ:
Drilling down and reading voraciously about your area of law can actually be counterproductive. If you're doing transactions, a sensitivity to the nuances of drafting is certainly essential, but a highly detailed knowledge about case law may get you focused too much on pathologies, rather than usual practice. Moreover, it isn't so difficult for a client to find someone who knows a lot about a particular area of law.
What a client cares about is finding someone who understands his or her BUSINESS. The client also cares about finding someone with whom he or she can have personal rapport. (Lest you think corporate clients are "it"s, you will always be dealing with flesh-and-blood human beings, and usually with one key decision-maker, such as a GC or other in-house lawyer if the company is big.)
It so happens that something that I'm reading this summer helps theorize about both views and is the basis of my thesis above. More on Thomas Haskell's The Emergence of Professional Social Science, after the jump!
Haskell sets modern professional social science, as a subset of modern professionalism generally, in context by studying the rise and fall of the American Social Science Association, the forerunner of modern disciplinary associations like the American Historical Association and the American Economic Association.
Here is my poor attempt to restate his thesis, in a nutshell. Each of us has a sense (perhaps naive) that we are free and volitional agents, largely able to determine for ourselves the course of our lives; we have, in Haskell's words, "causal potency." Moreover, until the late 1700s and early 1800s, little about the organization of society undercut the soundness of that belief. Individuals lived in dispersed and independent communities (by and large), and the cause of things - in the sense of reasoned explanation that made sense of the world, and to the extent educated people thought about these things - was proximate, either in oneself, in one's local community, or in a personal God that determined otherwise inexplicable events.
Beginning in the 1800s, as the Industrial Revolution and urbanization took effect, educated people (not just academics) came to believe that such explanation required understanding the impact on individuals and local communities of remote causes, in short, cause and effect in an increasingly interdependent world. With increasing interdependence came increasing specialization - the rise of professions. The transitional model was the ASSA, a group largely of New England social inquirers, general social philosophers as it were, who themselves were overwhelmed by the next generation of truly professional social scientists.
What Haskell argues is that there is a connection between the rise of societal interdependence and the contemporaneous ceding to professionals (by educated people generally) of the task of causal attribution between events in the world. My take on Haskell is that he not only makes sense, but that we've not mastered the theory of theorization in more than one hundred years since Charles Peirce, William James, and John Dewey thought about it.
Haskell says social science is a search for the independent variables of explanatory cause somewhere between the "causal potency" of the individual and First Causes like God:
To engage in inquiry is to search for genuine causation, to shear away merely secondary influences and necessary conditions so as to isolate those factors which, within a given frame of reference, can be regarded as self-acting, causal entities - "independent variables" As causes recede and as growing interdependence introduces more and more contingency into each chain of causation, the realm of inquiry must expand and the conditions of satisfying explanation must change. Common sense fails and the claim of expertise gains plausibility. Explanation itself becomes a matter of special significance, because the explainer promises to put his audience back in touch with the most vital elements of a receding and increasingly elusive reality.
And when does the pursuit of this chain of causation end? It's a troubling issue. Haskell relates that Herbert Spencer learned as a child to question every cause and "as an adult took to his bed and wore earmuffs to prevent overstimulation of his senses."
There's a kind of Rule of Recognition problem going on here. In a specialized, professional world, how do you recognize expertise? Haskell's historical account says professional organizations arose in order to achieve a community of expertise. For ordinary lay people, lawyers are a prime example of such a professional guild, but modern philosophers and historians and economists and sociologists have their self-certifying guilds as well. Those particular protocols surfaced, for example, in the form of peer review for publishing and tenure review for advancement.
What strikes me about the current state of legal academia - particularly the debates over interdisciplinary work - is how it resembles the 1890s, in terms of the contrast between the old "gentlemen social inquirers" and the new professional social scientists. Academic lawyers merely skimming the surface of specialties appear to their more specialized brethren as dilettantes, particularly as the specialists dig deeper and deeper into reductivist explanation. I speculate (theorize?) that philosophical (Susan Neiman?) or economic (Steven Levitt or Paul Krugman?) or historical (David McCullough or Doris Kearns Goodwin?) public intellectuals are the closest equivalent to practicing lawyers in trying to operate at a level of explanation above the technical, and as such operate either outside or at the very boundaries of the community of academic professionals in those areas.
Lawyers are different, in the sense that there is a vaster layer of the discipline that interacts on a daily basis with the lay community, and must necessarily "theorize" or explain cause and effect that the more specialized and reductive members of the discipline reject as unsatisfying. The analogy from another Haskell work, Objectivity is Not Neutrality, is apt. Suppose a legal issue involves why some pipes froze in Duluth and caused extensive damage to a building. Expert testimony on the physics of water molecules and how the expansion causes by crystallization would burst the pipes would be impertinent, because it operates at the wrong level of explanation. The pipes burst because the superintendent of the building forgot to turn the heat on!
So now we understand the Deven-A.J. dialogue a little better. Deven is rightly suggesting what a law professor should suggest: drill down, learn the details, find the underlying causes, and then the causes of those causes. A.J. is rightly responding in so many words: that's not the level of explanation - of causal attribution - that operates between practicing lawyers and their clients (nor, would I add, between most practicing litigators and either judges or juries).
The open question is whether the specialized, professional, reductivist explanation is the better one. My answer is: it depends what you are trying to explain. For a critique of an attempt to use economic theory to explain contract interpretation, see my Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists, forthcoming this fall in the Cleveland State Law Review, at pp. 29-43.
Indeed, even old practitioners can get co-opted. My friend Bill Henderson understandably took me to task in good ol' plain English a couple weeks ago for an unduly specialized explanation of classroom deportment in my syllabus: "what the hell are you talking about? All those years of practice, and you obscure a simple issue with Kant and Posner." He (and other commenters) were right, and I dropped it from the syllabus.
Monday, July 30, 2007
The New Formalism Panel
It was a treat merely to be on a roundtable panel with Larry Solum, Randy Barnett, Ekow Yankah, and our moderator, Dennis Patterson, as I've mentioned, to discuss the new formalism.
Larry kicked off with a short summary of what the new formalism was and was not. Randy followed with a discussion why he began as a contextualist, and, like Jack Balkin, had come to view himself as adopting a "new formalism" (though he was careful to state that it was not how he defined himself - I paraphrase roughly "I don't think I've ever though of myself as 'a new formalist'"). I followed with a discussion of the neo-formalism that Schwartz and Scott adopted in the private law of business contract interpretation, and Ekow closed the panelists' short summaries with a critique of formalism as giving undue weight to the written text, particularly in view of segments of society who may have no ability to influence the drafting of the text. We then proceed to about an hour of vigorous discussion in which the not-overwhelming-but-not-too-shabby-for-a-panel-in-the-second -to-last-time-slot-on-the-last-day audience participated, moderated pugnaciously by Dennis Patterson.
This was constitutional high theory at its finest, and nobody asked a question or made a comment about textualism or contextualism in contract law. In fact, about five minutes into the questions, I passed Larry a note saying I would give him $100 if there were a question about my segment, and I never once even came close to worrying about taking out my wallet.
Hmm. If somebody had, was my promise to Larry enforceable?
Anyway, I've decided to post a redacted form of my comments below the fold.
Here are the comments:
My jumping off point about new formalism is a comment Larry Solum made in the earlier session on Brian Tamanaha’s Law as Means to an End.
We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism.
In its broadest jurisprudential articulation, this immanence shows up as “justice” or “the rule of law.” The intellectual history of formalism is well-known – the systematic, self-contained, scientific, axiomatic, purportedly deductive textualism of Langdell and Williston gives rise to realism, and its contrasting contextualism. I think Willistonian formalism in contract law was intended to achieve an immanent norm – that being what my European sociology friends would call juridical justice, or the treatment of like cases alike. And a student of Luhmann would note the systemic paradox. Each opposing parties within the system argues to the adjudicator that its view, and its view alone, serves the interest of justice, here being consistency with prior case law. It is like each side in a football game, or in war, invoking God on its side.
So we would begin by noting the strong explanatory power of realism or contextualism. Private law does NOT pose the antinomy of an immanent normative order with instrumentalism toward our individual purposes, because in the ex post resolution of conflict between private parties, all is instrumental. The issue is merely whether we will be textual or contextual in our instrumentalism.
But there is a new formalism proposed for contract law, and my claim is that it is really a sign of the persistence of teleology, of the imputation of purposiveness in nature and in the analysis of social systems. In their 2003 Yale Law Journal article "Contract Theory and the Limits of Contract Law,” Alan Schwartz and Robert Scott made the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation. The argument builds from the usual normative assumption that society is better off with legal rules that maximize efficiency in economic terms – all other things being equal (and they always are), more surplus is better than less surplus, regardless how the parties divide it up. In the long run, interpretive mistakes even out, using plain meaning is cheaper, so parties would prefer plain meaning interpretation on the assumption that courts get it right most of the time. This move is not surprising, given its grounding in the social science of economics, and the aspiration of social science to uncover and explain causal relationships in social science with rigor analogous to that found in the physical sciences.
But it seems to me we have the old antinomy now in a different expression, and once again it arises from the opposition of subjective interest and objective norms. For in Schwartz and Scott, there are objective norms. The key conflation of the subjective and the objective occurs quickly, implicitly, and effectively because it makes the fundamental assumption that “there is a correct answer” – this being the mutual intention of the parties and it is the court’s obligation to find it. And I suggest “the mutual intention of the parties” is to contract law what “the rule of law” or “justice” is to law generally. Say that to a contract lawyer, we nod our heads “uh huh,” and move on. Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price. Setting the price is just "strategic behavior" and merits no discussion. I have negotiated lots of deals, and I can't remember ever thinking about total surplus at all, much less first. But if I had a choice between a smaller total surplus and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.
It seems to me the world works from the first-person not the third-person perspective. Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.
I propose a different antinomy, not formalism versus instrumentalism, but in some borrowed terms, between aboutness and thingness. I go back to my earlier characterization of “the rules by which our social relationships are regulated or constituted” and offer these comments and questions:
• Instead of focusing merely on rule-following (Fred Schauer’s work), we focus on the distinction between aboutness and thingness of regulative and constitutive rules.
• We ask, on one hand, whether the contract is a reflection or shadow of the transaction, a regulation of the transaction; in short, about the transaction.
• We ask, on the other hand, whether the contract is constitutive of the transaction. Is the contract a thing in itself?
• And now we call upon a distinction in debates over the philosophy of social science – that being causal explanation versus understanding, or the exercise of hermeneutics.
• We can uncover and explain things. This bespeaks:
- Casual explanations
- Algorithmic functions
- Mathematical models
- Laws (of nature, not the sovereign)
Whether you are a Langdellian scientist or a practitioner of the dismal science, it is hardly a leap to attribute thingness in your role as an objective third party observer of the object of study.
And things inhere in the order of nature. It is the teleology that underlies science. But it is not a given that the application of scientific method to ourselves works, any more than the ascription of surplus maximizing in individual cases, simply because overall it is a useful model in the aggregate. We are subjects within a system, considering ourselves. And the alternative view of social science is not that we look for causal laws, but that we understand or make sense of our place in the world. This is “hermeneutics.” I contend this is what the parties are doing when they make the contract – they understand, they make sense – the contract is about their relationship. The purposes are those of the parties, and may or may not align to form an immanent “mutual intention.” The objectivity inherent in ex post litigation yields thingness, formalism, purposiveness in the contract itself. We search for that immanent “correct answer” of mutual intention, even though, as I have written, mutual intention is most often an illusion.
I conclude by noting Tom Grey’s ultimate conclusion about “the new formalism”: it is far more pragmatic than its most strident proponents would let on. I contend that Judge Posner, a theorist who nevertheless must decide cases, foregoes contracts as things in favor of a common sense pragmatism (whether or not it is well-informed) that is ultimately hermeneutic and not scientific. Why? Perhaps because the nature of an antinomy is that it cannot be resolved.
Friday, July 27, 2007
There is a multi-session program on Niklas Luhmann taking place here in Berlin during the Law & Society meeting. Yesterday afternoon I attended a roundtable that was one of the later segments. Glancing around the room, surreptitiously checking out name tags, and listening to accents during the Q&A, it was pretty clear I was one of the few Americans, if not the only one, in the room.
Here's some half-assed speculation on intellectual history. Over the last hundred years, Dewey, Holmes, pragmatism, legal realism, critical legal studies, and law and economics sucked all the air out of the room, so to speak, when it came to reacting to a rationalist or quasi-rationalist foundationalism on our side of the Atlantic. Luhmann is also a reaction to rationalism, but with a distinctly European acceptance of paradox. Which raises the question: if you are an American and somewhat obsessed by paradox in all its forms, are you homeless?
More below the fold.
First, a plug for the presenters, Hans-Georg Moeller, author of Luhmann Explained: From Soul to Systems, and Michael King and Chris Thornhill, co-authors of Niklas Luhmann's Theory of Politics and Law.
Michael's contribution to the roundtable was subtitled "Why Academic Lawyers Shouldn't Read Luhmann," which was understandable after Hans-Georg's discussion of Luhmann's take on the fundamental paradox of justice. Justice is a "contingency formula." What that means is that within a system like law, justice serves as a foundational value, even though justice is incapable of directing a particular legal result in any particular case. From outside the system, an observer would say that justice is in fact highly contingent, but the internal system would collapse if the actors came to believe that it was not. This is in fact another way of looking at the antinomy of formalism and instrumentalism Larry Solum highlighted in an earlier session on Brian Tamanaha's Law as Means to an End. Or, as I suggested in a comment at the end of the Luhmann session, the paradox in real world litigation is that each party invokes justice as argument in service of instrumental goals, as though God could really be on each side in a football game (or a war). Within the autopoietic (or closed or self-referential) system of law, justice appears as consistency among like cases, not necessarily congruence with fundamental human, moral, or religious values.
So, says Michael, Luhmann is anathema to academic lawyers of all stripes. To those focusing purely on doctrine, Luhmann would be saying: "Your search for consistency within the system is ultimately futile. You believe you can operate within the system to improve it, but that is merely an illusion required to allow your system to continue qua system. All you are really doing is restating the foundational principle of justice (or whatever) in another way." To the "morality police" concerned with assuring that legal justice equates with moral justice, the connection (in the traditional of legal positivism) does not exist. What you see are fundamental is a contingency formula by which what you think is fixed is really contingent. And to "law and..." scholars who believe they stand outside the system and assess it objectively, you may not recognize the paradoxical nature of your own position.
To return to Larry's articulation of the formalism-instrumentalism antinomy, were I a Luhmannite (and perhaps I am), I would interpret this last in the following way. We encounter the paradox as an empirical matter. As legal philosophers who have become conscious of the paradox, we have three choices. One, we can engage the paradox even if it is incapable of resolution. (This is what I think Luhmann does. And that appeals to my Kantian proclivities). Two, we can make the conscious decision to ignore the metaphysics of the paradox. That means we are either pragmatists or virtue theorists. Or three, we can try to resolve the paradox by adopting some form of normative or theoretical foundation with which law must accord (and here, ironically, we can place Charles Fried on contract as promise, law and economics generally, and Dworkin). Or we can take some combination of the three (for example, Richard Posner, who combines choices two and three).
But, I wonder, is someone operating in the American intellectual tradition, but who opts for choice one, homeless?
Tuesday, July 24, 2007
On to Berlin
I am sitting in the gate area in Schipol Airport in Amsterdam, waiting for my connection to Berlin for the Law & Society Association Annual Meeting. If one can acquire intellectual gravitas by association with fellow panel members, I am going to have a big day on Saturday, when I sit on a roundtable on "The New Formalism" with Larry Solum, Randy Barnett, Dennis Patterson, and Ekow Yankah.
On the topic of formalism in my little corner of the world, I am re-reading "Contract Theory and the Limits of Contract Law" (113 Yale L.J. 541) by Alan Schwartz and Robert Scott, in which they make the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation. I have written before about the implications of trying to step out of the first person mode of entering into a contract to adjudge its meaning from a third party objective perspective. I know I will have more to say about this, particularly as to law and economics, in terms of the move from explanation of causal relationships in physical science to the far muddier task of social science to the ascription of motives in individual cases.
But for the time being I am pondering what seems to me an unwarranted (and key) assumption in the middle of the article that, it seems to me, falls victim to this first-person versus third-person problem. As is often the case, Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price. Setting the price is just "strategic behavior" and, as far as I can tell merits no discussion in the article. I have negotiated lots of deals, and I can't remember ever thinking about total surplus first. If I have a choice between a smaller total surplus (assuming I ever thought about it in those terms) and grabbing more (in absolute terms) of a smaller surplus, I know where I would go. Think of it this way. I have an asset I would be willing to sell for at least $500. Buyer A values it for as much as $900 (a $400 surplus) and Buyer B values it for as much as $1200 (a $700 surplus). But because of other opportunities that are more valuable, B is only willing to offer me $800, and A is willing to offer me $900. In an economists' world of perfect information, B ought to bid up and take the deal, and I ought to know that, but it seems to me the world works from the first-person not the third-person perspective. Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.
The irony here, and it is appropriate on the eve of Law and Society, is that I agree generally with the Schwartz and Scott outcome, but not for the reasons they articulate. I think the contract is a shadow of the deal (nod to Austin Sarat and Thomas Kearns) with only a tenuous link to any mutual intention of the parties. Given that the outcome is likely to be random and not necessarily rational, less is more.
Well, so much for that. On to Berlin!
Wednesday, July 18, 2007
A Really Good Analogy is Like Finding a Ten Point Match in Fingerprinting
There the question was whether Laurence Tribe's article using curved space was a good analogy for constitutional law issues. And Professor Dorf called into question the power of Judith Jarvis Thomson's well-known analogy to the famous violinist mysteriously attached to one's circulatory system as a way of looking at the morality and legality of abortion. (I read the essay in Tom Grey's jurisprudence class in the spring of 1979 and I remember thinking the analogy was powerful, but that is somewhat beside my point here.)
Professor Dorf says:
The point of an analogy is to take something fairly complicated and compare it to something simpler that the reader/listener already understands.
I am not sure if "complicated-simple" is the point of an analogy. What is critical, it seems to me, is the pre-cognitive (abductive?) recognition of patterns by which we say if A is sufficient similar to B, then if A leads to C, B will lead to something similar to C (call it C prime). To make a point about analogy with an analogy, the power comes from the extent to which A matches B, like a five point or a ten point match in fingerprinting, even though it is still no more than an explanatory theory about the causal relationship between A and C, on one hand, and B and C prime, on the other. ("Complicated-simple" seems to me to have more to do with a model than an analogy, both of which bear some resemblance to a metaphor, but that takes us into "family resemblances" among words, and I don't want to go there because there is a whole class of people who will stop reading anything that includes a reference to W............)
We sense there is something fundamentally different between social structures like the Constitution, or a corporate entity, and physical structures, like space, so it weighs against the analogy, but we see the pattern nevertheless, so the analogy still has some power. I used to sit in board meetings in which non-lawyer board members discussed transactions, and it would drive me nuts when they would get asset sales and stock sales mixed up. So I had this explanatory analogy. Think of the corporation as an egg carton, and the assets as the eggs. The rule is that you can't cut up the egg carton. You can sell interests in the egg carton, or you can take the eggs out and sell them, but you can't cut the carton. Then some smart-ass would say, "okay, how do you explain mergers?" And I would respond "well, if you have two egg cartons, you can magically superimpose one upon the other and now instead of a carton that holds a dozen eggs, you have one that holds two dozen eggs, except that it still looks just like the first egg carton." At which point somebody would say "uh, guys, can you take this off-line and let us get back to discussion of the deal?"
My intuition is that a good analogy is something like finding a ten point match in fingerprinting, but it breaks down because good analogies are not necessarily as quantitative as that analogy implies. If your head is not spinning yet (note that is a metaphor, not an analogy), go get some more coffee and be glad you are not me trying to put this together into an article, which I was supposed to be doing instead of writing this post.
Tuesday, July 17, 2007
Science of Creativity or Creativity of Science?
Alene gave me the article I referred to in the previous post because of the focus on pedagogy; there is also a nugget of substance that happens to coincide with something I'm working on this summer. So blogging comes with a lot less guilt when I can use it to think out loud.
Here is another piece of the interview with Eric Masur:
On a physics exam, the student will see a diagram and they’ll classify it. Then, it’s simply a matter of putting the right numbers in the right slots and, sort of, turning a crank. But this is algebra. It is not physics. When you test the students later on the concept, they can’t explain what they’ve just done.
This saddens me. In my laboratory, we’ve made some important discoveries. Several were accidental — serendipitous. If we’d only functioned on the standard knowledge, we wouldn’t have recognized what was before us.
Q. What were these findings?
A. Here’s the biggest one: Just for the fun of it, we once put a silicon wafer into some gas we had lying around the lab. We then irradiated it with ultra-short laser pulses. What came out was a wafer as black as the blackest velvet. Until that moment, the conventional wisdom was that silicon was never black. So it certainly was possible to think of this thing as a mistake and to have tossed it away. Instead, we put it under an electron microscope where we saw that we had found a new material: 98 percent silicon, 2 percent embedded gas.
And today, we have a patent for this black silicon, which has important applications in communications and sensor technology.
Some thoughts on the relevance of this to my nascent project below the fold.
The thrust of the work, for which I have posted the present introduction as thought-piece, is to explore my sense of the "thingness" of some areas of the law, as opposed to the "aboutness" of others. I have made up a number of words or descriptors in the past seven months to explain this - morphosity or "formness" is one; viscosity or "thickness" is another. This is thinking out loud, so bear with me, and defer on the implications, if any, for now.
It seems to me there is a difference between law that is laid upon independent activity in a regulative way - like contract law upon transactions, for example - and law that creates systems that otherwise would not exist. Hence, the distinction between Articles 2 and 9 of the UCC: one is about transactions that otherwise exist, but Article 9 is a creation in and of itself. Its rules, to use the term bandied about by philosophers, are constitutive. That is not to say there are no regulative rules in Article 9, but they are regulative in the same way that it is regulative to outlaw clipping in football after you have determined what clipping is out of constitutive rules (thanks to Fred Schauer for that example).
So when we start to talk about a system of rules, it's hard to avoid thinking about models and metaphors, and how analogical reasoning fits into all of this. I've just finished reading Max Black's essay on the subject ("Models and Archetypes") in his book Models and Metaphors: Studies in Language and Philosophy. Black proceeds through an analysis of various types of models, from the scale model to the analogue model to the mathematical model to the scientific theoretical model. From there he proceeds to a discussion of the means by which we extend what we know (i.e. the patterns of what is known to us) by analogy to something we do not quite understand. And here is where we return to the relevance of Professor Masur's comments. Black says, comparing scientific theoretical models to metaphor as figure of speech:
Much the same can be said about the role of models in scientific research. If the model were invoked after the work of abstract formulation had already been accomplished, it would be at best a convenience of exposition. But the memorable models of science are "speculative instruments," to borrow I.A. Richards' happy title. They, too, bring about a wedding of disparate subject, by a distinctive operation of transfer of the implications of relatively well-organized cognitive fields. And, as with other weddings, their outcomes are unpredictable. Use of a particular model may amount to nothing more than a strained and artificial description of a domain sufficiently known otherwise. But it may also help us to notice what otherwise would be overlooked, to shift the relative emphasis attached to details - in short, to see new connections.
Black concludes: "If I have so much emphasized the importance of scientific models and archetypes, it is because of a conviction that the imaginative aspects of scientific thought have in the past been too much neglected. For science, like the humanities, like literature, is an affair of the imagination."
If we take Black and Masur together to impart some sense of mystery at the core of physics, how much more is the same implicit in the assessment of social issues, or the solving of social problems, the latter of which is category within which we teach our students a particular discipline. But solving those problems by formal applications of rules may be to understanding human relationships what doing algebra is to understanding physics. I remember vividly "brainstorming" sessions in our business when things were looking dark and we needed new and creative ideas. Everyone would be straining and struggling, and true to my nature, I would crack a joke, only to have the CEO glower at me: "this is serious."
Try this: "be creative or you are fired!" Sorry, it doesn't work. Focus instead on the relationship between humor and innovation. Each involves the unanticipated juxtaposition of ideas.
Professorial Charisma: Sage on the Stage or Guide on the Side?
My wife passed me the Science Times section of the New York Times this morning in which there is a conversation about teaching physics with Harvard professor Eric Mazur. Very interesting, particularly when juxtaposed with the thoughts about teaching law from the recent New Law Professors Workshop. Here's a taste:
Q. When a task force on teaching at Harvard gave its report this past January, its chairwoman, Theda Skocpol, cited you as one of Harvard’s most innovative teachers. Have many of your colleagues since asked to observe your classes?
A. A few. At Harvard, teaching is left to the individual professor. There isn’t a lot of cross-pollination. The upside is that this “every tub on its own bottom” credo has made it possible to experiment with my own classes and not get much interference.
Now, I’ve walked into science classrooms here to see what the others do. Some of it makes me burn. You know, these great, fantastic performances by energetic professors where attendance is miserable and half the students seem asleep. Toward the front of the room, you see a handful of kids furiously taking notes, while others fiddle with their laptops. “Any questions?” the professor asks. There are none.
Q. When you teach Physics 1b, do you give “fantastic performances?”
A. You know, I’ve come to think of professorial charisma as dangerous. I used to get fantastic evaluations because of charisma, not understanding. I’d have students give me high marks, but then say, “physics sucks.” Today, by having the students work out the physics problems with each other, the learning gets done. I’ve moved from being “the sage on the stage” to “the guide on the side.”
This is reminiscent of Lao Tzu's words in the Tao: "When the best leader's work is done the people say, 'We did it ourselves.'"
More on the substance of the physics in another post.
Wednesday, July 11, 2007
Darian Ibrahim's Paper on Angel Investor Contracts
The Conglomerate Junior Scholars Workshop continues, with a neat paper from Darian Ibrahim on angel investors and a series of responses from luminaries like Larry Ribstein, Barbara Black, George Dent, and David Hoffman.
For the uninitiated, angel investors are those brave souls who put the first significant money into a start-up enterprise. They overlap on the more developed end with venture capitalists, and on the less developed end with the holy triad known as "FFF:" friends, family, and fools.
Being the hedgehog I am (wandering, I think, in the instant classic Solum sense - how does he do it?) about the lawyers' impulse toward a certain kind of rationality, and underlying (and autopoietic - look that one up!) presumption that the impulse is correct, I supplied a lengthy comment to Christine Hurt's intro to the discussion.
Wednesday, July 04, 2007
Stepping Off the Cliff and Publicly Following Advice on Scholarship from the AALS New Law Professor Workshop
All of Friday at last week's AALS New Law Professor Workshop was devoted to teaching, and two speakers, Doug Berman (Ohio State), of blogging and criminal sentencing fame (he is quoted on the front page of the New York Times this morning regarding the Libby commutation), and Angela Davis (American), shared the two hours devoted on Saturday morning to scholarship. As to Doug's talk, I'll simply note that the written outline, one and a half pages of well-spaced bullet points, repeats the word "write" fourteen times. Indeed, this is a public apology to Angela, because she spoke on the mechanics of writing and placing articles, but by that time, Doug had gotten me so fired up I didn't want to listen anymore about writing, and went up to my room to write.
One of Doug's major theses was "the importance and value of quantity. . .aka. . .avoiding the false comforts of 'quality over quantity.'" (Readers of my blog posts know that has never been my concern. Indeed, I take it one step further and actively sacrifice quality for quantity.) Point number one under that thesis was "realize 80% of genius is revealed in the first 20% of efforts." On that note, I decided this morning that the introduction (12 pages) to a piece on which I have been reading, writing, and thinking for six months, and the conclusion of which, say 48 pages (or the remaining 80%) in the future, is still murky to me, is certainly not genius, but on the other hand, beyond laughable. So without further ado, and in another exercise of shameless self-promotion, I posted on SSRN a piece entitled Aboutness, Thingness, and Morphosity: A Pragmatic Ontology of Formal Systems in Law, the abstract of which follows:
Others have spoken of a sense that distinguishes areas of the law, for example, the law of property, in terms of “thingness.” I explore the implications of this sense for the phenomenon known as formalism, in which legal forms reflect a belief in a “deep reality.” I contend our tendency to formalism is more than linguistics; it reflects perceptions of forms intangible but nevertheless real, all of which raises an ontological question. I further explore the pragmatic consequences of this otherwise philosophical question, in areas of complex arrays of constitutive and regulative rules, like accounting standards, codes, business acquisition agreements, and corporate structures. Lawyers are not unique among human beings in perceiving intangible deep realities where others do not, but if we see things as real that our clients do not, perhaps we ought to address the implications. This is the introduction to a work-in-progress in which I will attempt to do so.
I have done this a whole bunch of times and it is still like stepping off a cliff.
Tuesday, July 03, 2007
A Critique of Pure Reason?
There's a neat online symposium going on over at Conglomerate. The current entrant in the Conglomerate Junior Scholars Workshop is a paper by Trey Drury (Loyola - New Orleans, left) on Section 102(b)(7) of the Delaware General Corporation Law, and its equivalents in the other jurisdictions, which limit directors' liability for money damages (but not a limit on injunctive relief or the finding of a breach of duty) with respect to the duty of care.
As anyone who has followed my ramblings here (and over at Legal Profession Blog) knows, I am hardly an empiricist. (When I want my dose of philosophical empiricism, I turn to my friend David McGowan at San Diego, who does as good a job channeling Hume as anybody I know!) I have said before that one of the great benefits of being a law professor is the wide brief to be a social philosopher. I think that brief comes with an obligation to be clear about the descriptive, the normative, and the prescriptive, even if it is just to be clear that the descriptive and the normative are difficult to separate. But I do wonder from time to time whether we jump to the prescriptive too quickly (noting that I am sure I have done the same thing).
Professor Drury is far more sympathetic to the "20-20 hindsight" problem in assessing directors' decisions than many commentators. Nevertheless, I wondered whether Professor Drury's very interesting and readable paper was a solution in search of a problem, and commented:
I'd be the last person to excoriate exercises in pure reason, but I'd still like to see some empirical work showing that most of the current bubble of corporate governance work is something other than the availability heuristic at work. There are 9,000 publicly traded companies in the U.S. - is it really the case that 102(b)(7) and its ilk are a problem for them worth the intellectual energy?
The only empirical work cited in the article (I think) is the Bradley and Schipani study, which I have not read. I'm skeptical it supports the claim that directors are "incentivized" to bad behavior, because just on the description, it sounds to be a macro look at share prices (and I'd want to dig through the methodology). Assuming it is methodologically sound, I would think about giving it more airplay at the outset as the basis for thinking there is a problem, rather than merely inferring, as a deductive exercise, that 102(b)(7) causes a problem. The sense otherwise, at least to me, is the hammer in search of a nail problem.
Of course, it's also possible that I am a spineless, passion-less wimp.
*Cross-posted at Legal Profession Blog
Sunday, July 01, 2007
Dispelling New Law Professor Angst
The AALS New Law Professor Workshop, just concluded, had segments that made it worth the price of admission. The session on Friday morning on learning theory was a breath of pedagogical fresh air. As my wife pointed out, a fourth grade teacher spends four years learning how to teach nine year olds, and, as somebody else pointed out, law professors learn teaching primarily by having been students.
I kept flipping, internally, between the viewpoint of participant and observer. What tended to break my willing suspension of disbelief was the occasion reference like "of course, you know what it's like to take the bar; you've just done it" or "we, your teachers, take pride in seeing you out there" or "remember that the senior faculty are baby boomers." All of these spoke to the expectation that most people in the audience were within a certain band of age and experience. My remedy was to pull out my copy of Modern Maturity (the official journal of AARP), and pop another Centrum Silver.
It didn't matter to me. I took this on knowing I was a cohort outlier. And, I suspect, the thing as to which I was most outside the norm was angst about the future, and particularly the prospect of tenure. That subject would have been the unmentioned elephant in the room except it was mentioned so often. Most people I'm sure, if you asked, would say their goal was to become a great scholar or a great teacher. But, to use the jargon, the revealed preference was getting tenure.
With a disclaimer, I want to take an old baby boomer's privilege and offer advice that will probably be worth as much as you have just paid for it. Unlike many, I do not have a young family, with all the attendant concerns about professional, domestic, and financial security. (I do have three children in college, however.) I was once a young associate in a law firm, concerned (but I hope not obsessive) about becoming a partner. Nothing really could force the desired result, other than work on the inputs that really mattered. Everything we learned about succeeding, we learned in grade school - be thoughtful, work hard, care about others, control what you can control. I go back to the wonderful comments of that non-pareil mentor, Larry Solum, at the New Law Professor Section gathering at the AALS Annual Meeting in January: do the work for the intrinsic value, and let the chips fall where they may.
To be sure, that is easier said than done, and there is sensible advice to be had. But almost every aspect of the politicking and instrumentality advice boils down to the kind of good sense every one of us has in our respective hearts. To listen once again to Larry, the aretaic virtues are not a bad model - for example, courage is a mean between rashness and cowardice. Q: "Is it advisable for junior faculty to voice opinions at faculty meetings?" One answer could be: "have a buddy you trust give you the norms of your institution, and if the answer to the question is no, shut up." I think a better one is: "Don't be a wallflower, and don't be a bull in a china shop. Be self-aware. Be respectful of those who have come before you. Have courage." (By the way, that wouldn't be bad advice for a new general counsel about to attend her first board of directors meeting.) I give great credit to Kent Syverud for bringing this out in his concluding remarks.
Saturday, June 30, 2007
If This is July, It Must Be PrawfsBlawg
Let's see. The last time I posted something here it was August 2006, I had just rolled into New Orleans, and everything was contingent. Here it is July 2007, I'm attending the AALS New Law Professor Workshop (see post over at Legal Profession Blog on that) which says something in itself about the reduction of contingency. Since last July we've graduated one son from high school (and he is going to Stanford), saw our daughter get married and accepted to the theater grad program at Columbia, moved our permanent household to Cambridge, Massachusetts, and increased the number of nights I will spend in the same area code with my wife (whether she likes it or not).
But I digress. I want to give substantial credit to Dan Markel, and his courageous decision to let me guest blog a year ago, for the fact that I am now a faculty member at a respected institution. I discuss the power of the internet and the blogosphere, among other things, for the, shall we say, "well-seasoned" academic aspirant in the only thing I've written in the last couple years that my family understood (they didn't like it, but they understood it): Memo to Lawyers: How Not to "Retire and Teach."
Thanks for having me back!
Tuesday, August 22, 2006
Of Willie Nelson, Manic Expression, Au Revoir, and Coming Soon to a Blog Near You
Turn out the lights
The party's over
They say that
All good things must end
Call it tonight
The party's over
And tomorrow starts
The same old thing again
- Willie Nelson (as interpreted by Dandy Don Meredith)
It's three days short of a month since I first posted something as a guest, and having now whined to Dan Markel about everything on my plate between now and early November, I am going to say thank you, thank you to my gracious hosts, this has been too much fun to count as work, and au revoir (not goodbye).
Several things I have learned:
- Never again make a joke about Richard Posner not having ever had an unpublished thought until you yourself have been a manic expressive on line for a month.
- Do not debate in the comments with anonymous posters.
- Don't take it personally.
- There is something called Trackback Spam, and it's not pretty.
- You can challenge yourself intellectually in this medium.
Dan has also been kind enough to let me say (not as though these things compete) that Alan Childress, of Tulane and visiting this year at GW, another co-editor with whom we are currently in top secret free agency negotiations, and I will be launching the Legal Profession Blog as part of the Law Professor Blogs network some time in October. We hope to dig into the issues that touch on an academic view of the profession, including law firm economics, ethics, the profession's view of the academy, and the globalization of the profession. The only question Paul Caron has had is whether we will be able to post enough to keep it active. I don't know. I am completely out of ideas, but that may reflect the fact I taught the first session of Secured Transactions and Business Enterprises today, and am so tired I can barely type. Alan is probably going to have to carry us.
Thank you also to new cyber-friends Vladeck, Secunda, Gowder, Horwitz, the ubiquitous Anon, FMLTX whoever you are, and everybody else. The views reflected here are not necessarily those of PrawfsBlawg, or sometimes even the author, ten minutes after he posted them. Take it away, the pride of the Demon Deacons, the urbane and dashing Bobby Chesney.
Unintended Law Firm Merger Synergies?
The WSJ also reports this morning the merger of "Cooley Godward LLP, a 445-lawyer law firm known for its representation of West Coast technology companies" with "Kronish Lieb Weiner & Hellman LLP, a 110-lawyer New York firm specializing in commercial litigation, bankruptcy and white-collar crime." I'm sure the idea of one-stop shop, from start-up to IPO to backdated option scandal defense, to bankruptcy never occurred to them, although it would make for an interesting study in branding (now there's a law firm unlike any other).
More on law firm mergers later, perhaps.
Posner and Steele in Today's Journal
I let my Wall Street Journal go a while back (I confess when the company-paid subscription ran out), but I just resubscribed, and it was sitting politely on the front stoop when I left the house this morning. WSJ readers all have their favorite sections; the places I always look are the front page middle column and the right side of the first op-ed page. (The "official" editorials are too Neanderthal even for me, but you almost always get a well-written if usually a smidgen right of center provocative viewpoint on the rest of the page.)
Sure enough, the op-ed page did not disappoint this morning. At the top, we have Richard Posner on the institutional and constitutional infirmities (not the decision itself) by which the Hon. Anna Diggs-Taylor in the Eastern District of Michigan struck down the NSA surveillance program. And at the bottom, we have one of my favorite op-ed writers, Shelby Steele, on anti-Semitism and white guilt as applied to reactions to Islamic extremism.
H/t for pass-thru link: HJB.
Sunday, August 20, 2006
Solum on "It Takes a Theory"
Larry Solum's weekend "Legal Theory Lexicon" takes on the "it takes a theory to beat a theory" adage, with an unusual (for him) but delightful touch of the snarky.
In particular, I like the Daniel Farber quote on the problem of "physics envy" in the social sciences. It took Einstein's theory of general relativity to beat Newton's gravitation theory, and it did so by predicting curvature of light, testable during an eclipse, that Newton's theory could not explain. As Farber points out, rational choice theorists roll out "it takes a theory to beat a theory" against the behavioral economists, with both sides assuming implicitly that (a) the goal of social science is to state a unified predictive theory of human behavior, and (b) that it is possible to state a unified predictive theory of human behavior.
I'll add two brief comments, if I think about it long enough, the inspiration for which I must lay at the feet of Professor Solum and his great blog. First, a thoroughly enjoyable screed, if you are into this kind of epistemological debate, is The Flight from Reality in the Human Sciences by Ian Shapiro (Yale, Political Science), who argues, primarily in connection with the rational choicers, that maintaining the integrity of expansive social science theory has become the tail that wags the dog of social science research. Second, to my mind, the real problem with the application of "it takes a theory to beat a theory" in connection with divining (note my deliberate word choice) a unified predictive theory of human behavior is Hume's dictum in A Treatise on Human Nature about conflating the descriptive with the normative:
[T]he author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.
Thoughts From a Touchless Car Wash About the Joys of Being a Law Professor
The Prius was screaming for a bath this morning, and that ubiquitous woman in the GPS ("in half of a mile, right turn onto L-A thirteen fifty-two") directed me over to a touchless car wash on Louisiana Street. As this thing that resembled a miniature of the Grande Arche de la Defense moved back and forth over head, at one point coating us with something that looked like melted rainbow sherbet, I thought about my dinner out with new colleagues last evening, Gordon Smith's post and the associated comments over on Conglomerate about interview questions, and Article 9 of the UCC. I didn't think it was blogworthy until I got back here, and was chuckling to myself (a strange thing when you are sitting alone in your office on a Sunday morning) over Kate Litvak's last comment to Michael O'Hear's post on teaching criminal law: namely learning the criminal statutes (then, I presume, getting the hell out) and getting on to the fun stuff like Article 9. Perhaps it is the liberating and creative effect of humor (the unexpected juxtaposition of heretofore wholly unrelated events or concepts, like Robin Williams' impression of Elmer Fudd singing Bruce Springsteen - "I'm dwivin' in my cah, tuhn on da wadio...") that just snapped it all together. (Thank you, Kate!)
Call this paean to the academic life ridiculously sentimental; call me a fool; but ask me the interview question "why do you want to be a law professor?"
Because, despite all the faults, the incomprehensibility of the hiring system, the thrashing over student-edited publications, the struggle to determine the legal academy's place between research university scholarship and the trade school training of professional lawyers, the impact of internet access in the classroom, the butterflies in my stomach (and shpilkes) the thirty minutes before EVERY class, my worry that I have tapped myself out on ideas for new articles (or to a far lesser degree, blog posts), I love it.
How on earth does that possibly tie back to dinner last night and Article 9? That was what I was considering as the shower of red, blue and yellow glop spread over the windshield. A long-time faculty member (who teaches criminal law, among other things, and was a prosecutor at one time) and his wife invited another visiting faculty member, his spouse, and me over to their lovely home for a glass of wine, and then we all went out to dinner. The occasions in my previous life for having a conversation in which the other parties have tremendous experience and expertise in things like criminal law and international law were relatively few. This conversation started in on current events (Iraq, fighting the Taliban as a response to 9/11, the Israeli-Hezbollah war), turned to theories of the law of war where recognized nation-states are belligerent with non-state entities in failed states, and finally, as I was taking a break to gather my thoughts and catch my breath (I compared it to being the dummy in bridge), the critical theorist view of the whole idea of international law as being something created by the European colonial powers, thereby incorporating within it presumptions about colonialism, legitimate defense, the rules of war, and terrorism.
And just a few hours before, I had jotted some notes to myself from the Warren and Walt book on Secured Transactions to raise with the students on Tuesday: the debate between Jackson and Kronman, on one hand, taking an efficiency view why there should be secured credit (while it might seem unfair to let a debtor prefer some creditors over others, the subordinated or unsecured creditors will reflect their greater risk in a premium for lending or in turning to other borrowers), and Lynn LoPucki's response why this fails to take account of involuntary unsecured creditors like tort victims (hence we should prefer such creditors even over the secured creditors in bankruptcy). I had posed the question, at least to consider: does Article 9 favor the entrenched, the powerful, the banks, the corporations, the diligent, the smart? And is that the right policy?
Do I buy critical theory either in the area of international law, or the far more mundane world of project finance? Not really, although the Frankfurt School critiques of modern media and institutions are powerful and thought-provoking. Do I worry about the segue from critical theory to post-modern despair or nihilism? Yes. But the point is the intellectual struggle in civil discourse, the journey, not the destination. That's the common thread between discussion of the law of war and the law of purchase money security interests. And that's why I love it.
Friday, August 18, 2006
Apropos of the earlier discussion on law firm branding, the National Law Journal reports that the firm now known as DLA Piper Rudnick Gray Cary "is expected to announce in September that it is taking a new, shorter name to strengthen its international brand. . . ."
One of the managing partners is a good friend, and I am willing to pass suggestions on to him. I'm thinking maybe something made up and techno, like Altria (old Philip Morris) or AXA. Right now, I'm leaning to Intimidex over UniLex. Wait, wait, how about IntimiLex?
Thursday, August 17, 2006
"How Are You?" and Other Questions to Which Short Answers Are Best
The 1Ls are here. In the spirit of Edward Levi's An Introduction to Legal Reasoning (which I read in the summer of 1976 and did not understand), we need now to reason our way from the base case of what do students and professors call each other verbally to other forms of communication and signaling.
The 1Ls are all wearing name tags, and they are moving from orientation session to orientation session. (I remember only one assembly in which the then president of the Stanford student body introduced us to the school by saying "you're probably only here because you didn't get into Harvard.") The faculty, as far as I can tell, are not wearing name tags. But I am going to a new student mixer sponsored by the SBA at a bar tonight, and I will probably wear a name tag. Unlike many of my colleagues, there is no danger that I will be mistaken for a typical student, but older people do go back to law school now and then. So I think the name tag will say: "Prof. Jeff Lipshaw." It is possible, however, that two non-verbal signals would give me away. One, I am wearing the uniform: tape-striped Polo long-sleeve oxford cloth button-down and khaki chinos WITH tie (albeit the ugly pink flower garden one that my children hate*) . Two, my name tag will be on my right lapel, not my left, indicating subtly that I am either a member of a power elite or a professional glad-hander (when you wear it this way and extend your right hand to shake hands, the name tag is more easily visible to the other person).
Students are also e-mailing. How do you "sign" the e-mail? I am presently opting for the deliberately ambiguous: "Best, JML." (Belle Lettre wrote something about this from the student standpoint, but I cannot find it quickly enough.)
The other issue is how to answer the question "so, where are you visiting from?" (Ten extra points to anyone who was to ask "Whence are you visiting?" but twenty points taken off for "From whence are you visiting?") I have concluded that while "Indiana" is a half-truth in at least four or five ways** (but not one regulated by the SEC, or, as far as I know, the AALS), and despite my earlier moralizing to the contrary, it's the best one, socially speaking, unless you really want to know the whole long boring self-indulgent story. And despite my own self-regard or ability as a raconteur, nobody does.
*Including my daughter Arielle who is a paralegal at a major New York law firm - and this is completely irrelevant to the point, but she called me last night after a gin and tonic (hers, not mine), and I think, if I understood her correctly, wanted me to mention her in the blog - done.
** State or university? If university, Indianapolis or Bloomington? If Indianapolis, adjunct or regular faculty?
Wednesday, August 16, 2006
The Continuum from Ethical to Criminal: The Option Backdating Controversy
There's been a flurry of commentary this morning provoked by a Wall Street Journal op-ed piece that is something of an apologetic for the option backdating controversy of recent weeks. Larry Ribstein weighs in, if I have his argument right, not to say that the backdating, if it occurred, was right, but remedying it should not be a matter for the criminal law (versus SEC civil enforcement, assuming there is a cause of action for backdating). Dale Oesterle over at Business Prof Blog (part of the Law Professor Blog Network) makes the deontic argument about respecting rules qua rules.
I have not read the op-ed piece (I'm relying on Larry summary) because finding a copy of today's WSJ quickly demonstrated another aspect of what here in New Orleans is referred to as "the post-Katrina world." But the gist of it is this. Let's assume that I am granted 100 stock options in a public company today at a $10 strike price, reflecting yesterday's closing price of $10 per share. If the stock price rises to $20 in two years, I "exercise" by buying the stock at my option price, and either hold it, or more commonly, immediately sell it, and get proceeds of the difference between the market price ($20) and the strike price ($10) times 100 shares: in this case, $1,000. For tax purposes, that $1,000 is ordinary income to the recipient, but for a number of years there has been an underlying controversy how this income to the recipient should be reflected in the financial reporting of the company. Historically, under generally accepted accounting principles (GAAP), option compensation as just described never shows up as an expense of the corporation. Its cost is reflected, if at all, in the effect of dilution on all the existing shareholders when the new shares are issued, upon exercise, at less than the market value. The exception to this was if you issued an option having a strike price BELOW the market price as of the day it was issued (or the closing price the night before). In that case, the option cost had to be expensed on the company's income statement. This reduced the current earnings of the company, something managers and Wall Street stock analysts do not like to see. (I should note that while I am not an economist, I am sympathetic to an economist's reaction that in a transparent world of perfect information, none of this accounting treatment should make any difference to value.)
Despite my sometimes insufferable Kantianism, I am also sympathetic to the idea of letting economic markets determine economic outcomes, like how much executives or baseball players or Jessica Simpson or Paris Hilton get paid. But I worry when, during the course of normative argument, the implicit utilitarianism that is the philosophical basis of most economics is not made explicit. Again, I do not think Larry Ribstein is saying that backdating options is okay; I think he is making the point that it is not a matter for the criminal law. But, below the fold are some moderately inchoate thoughts on this.
The WSJ article appears to construct the following apologetic: (1) Companies wanted to recruit good new people by giving signing bonuses that were money or some form of recognized compensation equivalent. (2) Giving money would be reflected as a hit to earnings, but there existed a system by which you could give real value without it being so reflected: stock options. (3) The accounting rules would let you give a "strike price at market" option but that wouldn't give the company the benefit of having provided real value to the employee, particularly when you wanted to give the value now as a signing bonus. (4) If you gave a "strike price below the market" option that would accomplish the purpose of giving real value to the employee, but you would take an earnings hit, which is exactly what you didn't want in steps 1 and 2. (5) The accounting rule was silly, but it was clear. (6) If the stock had been trading at $5 six months earlier, and you just made the agreement, as they say, "nunc pro tunc" (now for then), by putting a six month old date on the agreement, you accomplished both objectives. (7) Backdating was not clearly impermissible (though I wonder how often it spanned a tax or fiscal year). (8) Using a questionable but not clearly impermissible technique to avoid a clear and undesirable implication of the alternative is not such a big deal.
I think a lot of what passes for moral outrage or deontic analysis on this issue is really normative political argument about wealth distribution, and consistent with good old American populism, going after rich people is pretty easy. I have no issue with the straight-up argument "I was freely offered what seems to be an outrageous amount of money for what I did, but it was all disclosed and above-board, I earned it, and I'm going to enjoy the benefits of it." (What I think of the person will probably depend on the definition of "enjoy the benefits of it" - did he/she endow a fund for diabetes research or buy a 150 foot yacht? or, even better, both.)
But this technique (speaking as a former GC and as an academic ethicist) bothers the hell out of me. The former GC can come up with all sorts of consequentialist reasons for not doing this. (One of my epigrams has been: "whenever I thought I was doing something extremely clever, it generally came around to kick me in the a__.") [NB: when I speak as a former GC, it is spiced with mild profanity.]
The academic ethicist wonders again about the conflation of practical reason as between determining correct ends, and using what is also called "practical reason" to get the result I want (See Richard A. Posner, Economic Analysis of Law, 6th ed., at 3-28). Larry Solum recently highlighted a paper on this subject by Pamela Hieronymi at UCLA. Just yesterday, we had a discussion about whether one might just pay the parking tickets over the course of a year rather than pay the greater cost of a parking permit. It seems to be there IS something more than rational calculation, and even if, to Larry Ribstein's point, it is not a matter of criminal law, the absence of that something is reflected in legal and business minds that would let the practice go forward.
Tuesday, August 15, 2006
Branding and Law Firms
Over at Conglomerate, Gordon Smith has posted a comment on Vic Fleischer's case study on the branding effect in the MasterCard IPO and similar thesis on the Google IPO. Gordon asked why farmers organize into coops and suggests that it has as much to do with branding (say, as "organic" farms) as with governance.
It's a fascinating subject, and the following comment has all the hallmarks of a blog post - quick, anecdotal, and wholly ignorant of most real scholarship on the topic. But I want to offer two not-so-hypothetical hypotheticals about law firm branding.
1. My first appearance in court was three or four days after the swearing in ceremony in November, 1979. A partner asked me to cover THE NEXT DAY a hearing in the Ann Arbor District Court (the court for matters less than $10,000) on a motion to dismiss a complaint in which the pathetic plaintiff had sued the wrong one of our scumbag client's multiple corporate entities. And the sorry thing was that suing the right one wasn't going to help because the statute of limitations had run (assume no fraud here, just slickness competing against incompetence). The brief had been filed; I spent four or five hours prepping, and I slept maybe three hours (complete with all the classic stress dreams, like taking a final in a math class I had forgotten to attend), worrying about the hearing. I have mentioned before that when I was twenty-five I looked like I was about eighteen, but when I walked into the courtroom, and said "May it please the court (I don't think lawyers usually used that form of address in the Ann Arbor District Court), Jeff Lipshaw of Dykema, Gossett, Spencer, Goodnow & Trigg appearing for defendant Global Scumbags, Inc." there was , to my mind, a palpable reaction from judge and opposing lawyer that could not have been attributable to my person. DGSG&T (now known merely as Dykema "A Law Firm Unlike Any Other") was the 800-pound gorilla in Michigan, and the brand had to put a patina over anything I was saying.
2. Many years later, when I was buying services, firms like Dykema and its equivalents in other non-financial center cities (other examples of the type would be firms like Reed Smith in Pittsburgh or Bryan Cave in St. Louis or Dorsey & Whitney in Minneapolis or Baker & Daniels in Indianapolis or Preston Gates in Seattle - not firms necessarily that bid for our work - but of equivalent size and reputation) would market for deals that inevitably ended up in Wall Street firms (and, by the way, not in any New York City firm, but in a select group of NYC firms). If you merely looked at the bona fides of the individual lawyers put forward - schools, academic records, deal experience - there was no real basis for explaining to them why it was that we were willing to spend double the amount per hour to hire, say, Skadden or Weil or Wachtell, to do the deal. You could make actual value related arguments, but I don't think they were ever really supportable. To my mind it had to be the brand.
Indeed, both as a law firm partner and as a buyer of services, I made the argument to those fine firms that there were areas in which the brand was perfectly fine. For example, there is no branding reason why you could not establish a national center for ERISA or partnership tax in St. Louis. But for bet-the-company M&A work, the firms were wasting their precious marketing dollars competing against the goliaths of the industry.
Sunday, August 13, 2006
A Quinquagenarian* Wonders...
The "The Way We Live Now" essay by Christopher Caldwell in this morning's New York Times Sunday Magazine raises an issue of discrimination that morphs together snippets of constitutionality, statutory and moral analysis, and I'm not sure to a sound conclusion.
The subject is "age qualified" communities, not the kind in which I think my wife and I would want to live, even as empty-nesters (liking the diversity of organically developed neighborhoods), but to many of my superannuated peers, ones that might be to their liking. The issue is the exception in the Fair Housing Act of 1988 (as amended): the statutory prohibition on discriminating against families with children has an exception for developments in which 80 percent of the households have a person 55 or older, and the development must be billed as a "senior community" or "retirement community."
The author argues:
"I just want to be with people like me" is the argument made in favor of every kind of segregation. It was not an unreasonable-sounding argument even when it was made by Alabamans and Boy Scouts and club men. But it wasn't a winning argument either. What explains our sudden readiness to make moral exceptions when children are the ones excluded?
Seems to me three different standards are conflated here. To the constitutional scholars out there, has age ever been a suspect classification? Clearly Congress has the power to pass legislation that bars discrimination that does not rise to a constitutional level. And I'm not sure why the exclusion of children from a privately operated community that does not seek to take on the hallmarks of government deserves moral opprobrium. I love my nieces and nephews of younger siblings, but "been there, done that" already, and I'm always happy that they go home with their parents.
Am I missing something? I promise not to discriminate against vicenarians and tricenarians.
Saturday, August 12, 2006
Talmudic Simplicity and the Law
The last post about the surface simplicity and underlying complexity of Article 9 reminded me of one of my last forays as a litigator before my first mid-life crisis in which I came to terms with how much I despised litigation and bolted into the corporate group. Some say it was because I somehow managed to lose two cases it was seemingly impossible to lose (the latter was one in which I somehow managed to lose a stipulated motion, but that's a story for another time).
In 1989, my partner Don Young and I tried a tremendously interesting case in the federal district court in Detroit. We represented an outfit known as the Michigan Property & Casualty Guaranty Association. This was a creature of state insurance regulation, and existed to deal with the effects of insurer insolvency (akin to but not exactly like what the FDIC would do if a bank went belly up). In short, if there were an insurance company insolvency, the staff of this little association would estimate the claims that needed to be paid, and the solvent insurance companies would be assessed pro-rata by how much insurance premium they wrote in Michigan.
One of the neat twists of the statute was something called the "net worth" exception. If you were an insured with a worthless policy, but your net worth exceeded an amount determined by a statutory formula, you had to bear the loss yourself, and were not entitled to reimbursement from the association. The Association denied coverage for a large supermarket chain in the Detroit area (known as Farmer Jack's), and got sued in federal court on the grounds that the net worth provision violated the equal protection clause of the 14th Amendment.
To find out what happened, continue below the fold.
As any first year constitutional law student knows, this is a case that never should have gone to trial, and that is the point of Talmudic simplicity. In socio-economic legislation, not invoking a discrete and insular class under footnote 14 of the Carolene Products case (yes, Bill Cohen, I still remember it!), the test is whether the legislature had any conceivable rational basis, whether or not articulated, for the disparate treatment under the statute. Nevertheless, the court denied our motion for summary judgment (which as I recall made the point that the Michigan legislature could have concluded (a) that wealthy insureds could bear the loss, or (b) that wealthy insureds would have known to assess carefully the credit rating and financial wherewithal of their insurers). We proceeded to a six day trial in which the plaintiffs put on experts to say the statute was irrational because net worth didn't have anything to do with anything, and we rebutted with our own experts, figuring that, given the standard, all we had to do to win was not try the case in Esperanto.
I may have been the first lawyer ever to begin a closing argument with the Talmudic story of those great rival rabbis of the early Common Era, Hillel and Shammai, and the skeptic. As the story goes, the skeptic first went to the irascible Shammai, and asked "can you teach me the Law while I stand on one foot?" Shammai, consistent with his personality, applied one foot to the skeptic's tuchas, and booted him out the door. So the skeptic went to the wise and gentle Hillel, and asked the same question. Hillel responded, "Of course. All of the law is simply this: what is hateful to you, do not do unto another. All the rest is commentary. Now go and study."
The point was to say to the judge: it's very simple; it's all in the standard of review, and I need not say anything more about the evidence for the statute to be upheld (I did say more, but it would have been a gutsy thing to sit down right then).
To come back to the theme from the beginning, you cannot lose a rational basis case like this. But I did. I wondered later if I lost her in the story of Hillel and Shammai, but, no, she just didn't understand the standard of review. To find out how it all came out in the end, see Borman's, Inc. v. Mich. Prop. & Cas. Guar. Ass'n, 925 F.2d 160 (6th Cir. 1991).
Here's to Article 9 (Tastes Great! More Filing!)
I did not plan five minutes ago on starting this post this way, but if you can't be random and spontaneous on a blog post, where can you be? But as I intend before I'm done to reflect on teaching Article 9, perhaps some random spontaneity will entertain those readers for whom the mere mention of the UCC has the same effect as hypoglycemia. What prompted this was the observation that when you click on "Create a Post" for PrawfsBlawg in TypePad, the motto "Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005" appears just before the window in which you compose (as I am now doing). As most of the substantive discussion on this blog swirls around mighty and controversial issues of constitutional and criminal law, that seems to me to a prudent, if not intended, benefit of TypePad. It reminds the author to be civil even when consumed by passion.
This post, however, started as an ode to Article 9 (the revised version, please), particularly when compared to Article 2. The thought flashed through my mind whether my siding with Article 9 over Article 2 would constitute partisanship. And while I have not consumed any alcoholic beverages since downing a Sierra Pale Ale in Indianapolis almost a week ago, I had an image of one of those Miller Beer commercials with Dick Butkus and Bubba Smith, in which a bunch of law professors are sitting in a bar (Karl Llewellyn? Richard Craswell? Charles Fried?) passionately screaming at each other: " Works Great! Less Efficient!" But that's just me.
The intellectually honest part of this has to do with the fact that prepping for Secured Transactions has caused me to dig into Article 9 for the first time. I taught Sales last year, and had been fairly steeped over the years in Article 2 (for example, I have a 2-207 flow chart that would make you plotz). Article 9, it turns out, is conceptually easy in the big, big picture (attachment, perfection, priority, enforcement, bankruptcy) but full of knotty little problems in the execution. More importantly, Article 2 was a creation of the legal realists, who wanted the law to track the way transactions really worked with the idea perhaps that would be more efficient. In my humble opinion, it manages to be neither realistic nor efficient. All those "reasonables" and "seasonables" and "trade usages" and "courses of dealing." Article 9, on the other hand, makes no bones about its arbitrariness. You pays your money and you takes your chances. And because it is newly created system laid on top of existing practices (versus Article 2 which attempts to incorporate existing practices, see Lisa Bernstein on this topic), it has, for the most part, like it or not, an internal logic.
Larry Ponoroff, a old pro at this, tells me it was better in the halcyon days before the most recent revision. I don't know, but if you wanted to trade me Article 2 for Article 9, you'd have to throw in Ronald Coase, Guido Calabresi, and a legal positivist to be named later.
Friday, August 11, 2006
Participation and Exam Policy
One of the things I did not do well last year (see here) was to have the appearance of structure in (or is it command of?) the teaching process. I am sympathetic to the students' feeling of being lost if the method is foreign, the conclusions are unclear, the professor is somewhat random, and the subject matter is the application of law to something about which they have little experience (contracts, business, negotiations, etc.) It seems to me there is a better chance of engagement in the micro if there is at least some sense (a) of the macro structure, and (b) that the professor has a clue what the macro structure is. The appearance of structure, it seems to me, includes the substantive as well as the procedural. I had already posted on TWEN a full semester syllabus, but today I posted the "on call" list - divided each class into five groups of about eight to ten students, and gave the dates on which they would be on call.
As to exam policy, I am considering saying that anything in the readings or in class discussion is fair game for the exam (mainly to encourage rather than demand attendance), but it occurred to me what I might get is verbatim note-taking (either by hand or on laptop) than participation. I'd be interested in reactions to that. (The blind grade system here accommodates a factor for attendance based on a pre-announced policy that is applied on a blind basis, but it means you have to take roll or use a sign-in sheet, and I still don't like that idea.)
N.B.: Both of my classes are upper level this semester, so I worry more about it. 1Ls are too scared not to attend, and they seem to want to participate.
So Much to Do, So Little Time
It's interesting to read the other posts about allocation of time as between teaching and scholarship. From the cocoon of my home office over the summer, it was hard to see how you couldn't have time to do everything. It's only taken a day back in the saddle to recall that it's not an issue of teaching versus scholarship; it's teaching and scholarship versus everything else.
Got in early this morning; opened up Warren and Walt on Secured Transactions. Warren and Walt on Secured Transaction is still sitting unread in the same spot seven hours later. In the meantime we've had the good (meeting new colleagues and law school staff; tremendously helpful staff), the bureacratic (Westlaw somehow discontinued my password in the last two days), and the Up the Down Staircase (we have iPrint, and I printed to an HP4100 printer in the library but it turns out there are about a half dozen HP4100 printers in the library, so we were all scurrying around looking for the documents). So it's 3:30 p.m. now, and as everybody knows, I am a morning person and go braindead in the late afternoon. At which point writing a blog entry or organizing my bookshelves or renewing my bar association membership is more up my intellectual alley.
Every person here is sympathetic to a wanderer because everybody was a wanderer just a year ago. The stories on the local news this morning were about schools reopening. There's an organization called the Louisiana Recovery Authority that is helping people find new homes. People are tremendously upbeat and enthusiastic. Last night, I shopped at the Whole Foods Market on Magazine Street, which was jammed, but it had just rained so every time I stepped outside my glasses steamed up. You never know when you are going to learn something new, though. I mentioned that to Dean Ponoroff and he showed me the trick to keep it from happening.
Thursday, August 10, 2006
Visiting Professor Arrives
Somewhere on I-59 south of Hattiesburg, you notice a couple of things, like freeway signs that are missing pieces or, in one case over on the northbound side, the sign is bent over at a funny angle. My wife asked me on the cell phone if the trees were blown over, and maybe they were, but I couldn't tell. The thing that struck me when I crossed the state line into Louisiana was that the grass in the median was freshly mown.
I-59 becomes I-10 West and it sneaks up on you, but all the sudden you are on a causeway crossing Lake Pontchartrain. I'm from Michigan, so I'm used to being on and around lakes, but on boats. This is the sensation of being on a boat out in, say Grand Traverse Bay, seeing the Leelanau shoreline several miles on one side of you and the Lower Peninsula mainland several miles on the other, but you are driving your car.
When Alene and I came down to visit in April, we arrived late at night and took a cab directly to the hotel in the Garden District. For two delightful days (70 degrees and no humidity in NOLA) we walked the length and breadth of Uptown, the Garden District, the CBD, and the French Quarter. Depending on where we were, the signs of Katrina were lesser or greater. Tulane runs north and south in a narrow wedge of the crescent; at the time, the areas toward the north end of the campus, like the baseball stadium, were still wrecked. Calhoun Street borders Tulane to the east, and north of Freret Street, almost all the houses were being repaired. But, by and large, it didn't seem all that bad. Joggers were out running on the street car tracks on St. Charles (the street car wasn't running); there was a big girls' soccer field day on the levee in Audubon Park; people were sitting in coffee shops and going to restaurants. There was a lot of construction going on (blue tarps on the roofs) in the Uptown areas that did not flood, but it looked a lot like our old neighborhood outside Detroit (Birmingham, Michigan) where there seemed to be no limit to high and tight you could build in a fifty foot frontage on a quaint street. When we left, the cab took us through some neighborhoods north of Claiborne Avenue, and the driver pointed out the water marks four or five feet up the doorways.
All of this is to say that you have to come into New Orleans from the east on I-10 to appreciate what happened. But anything I say about it would be trite.
I am sitting comfortably in my office, books unpacked and shelved, pictures hung in the couple spots where the former tenant left the hooks, tschotchkes arranged (my great philosopher finger puppets, the dancing rabbi, Fearless Leader from Rocky and Bullwinkle, Kung Fu Chipmunk, and the Wake Forest dartboard set on which I inscribed "Lipshaw's Handy Grading System"). Patrick from IT has been down and we seem to be all set. I have my faculty handbook to read, and lists of the forty souls in Secured Transactions and fifty-three in Business Enterprises who have, by what fate, been entrusted to my teaching. At Tulane, the faculty is spread into office suites throughout the building, interspersed with the classrooms. I have just paced it off, and it is about twelve paces from my desk to the room where I will teach Secured Transactions. For some reason, that seems cozy.
Perhaps the sensation is the result of having driven a long way in two days, or the discombobulation of a person who likes his routines (give me a Starbucks, a gym, and access to broadband, and I'm a happy camper), but New Orleans was an exotic place before Katrina, and is more so now. There is an additional sensation, and the best comparison I have is to the close proximity of war and normality that you experience in Israel. A friend's son is starting medical school in Tel Aviv and, while he was evacuted from his Ulpan (intense language study) in Haifa, he reports life pretty much goes on as normal to the south. I visited Israel during the Intifada, and was driven back from Jerusalem to Tel Aviv on the freeway that cuts just south of Ramallah. Life went on in Jerusalem and Tel Aviv, but at an intersection along the freeway, you could see Ramallah several miles away. Life seems normal here, but it's only a couple miles to the still wrecked and still deserted upscale mall, the streets and streets of boarded and abandoned houses, and the neighborhoods with the white FEMA trailers in the front yards.
Wednesday, August 09, 2006
The Train Pulls Out of Kankakee...
Less than twenty-four hours but more than six hundred miles since I told Dan Markel that I would just as soon not do blog posts that are purely personal rumination, I feel obliged to say something about the longest solo drive I have ever made in my life. I am now safely down for the night in a Holiday Inn Express somewhere in Mississippi, having left Indianapolis at 7:00 a.m. today. In no particular order of importance:
1. If tonight I'm staying in a Holiday Inn Express, then tomorrow when I arrive I should wait until Dean Ponoroff is out of the office and then slip into his chair. When somebody walks in and asks, "are you the dean?" I can reply, "no but I stayed in a. . . ."
2. My son and I went to see Talladega Nights: The Legend of Ricky Bobby a couple days ago. When I arrived here, I could not bring myself to eat dinner at the Applebee's.
3. This is the first time I have ever stepped foot in Alabama or Mississippi. The model of the Saturn 1-B at the Alabama welcome center near Huntsville is cool. I wasn't so sure about the three sided pillar just across from it that says: "Alabama: we dare to defend our rights." (For the record, I have Hawaii, Alaska, Washington, Oregon, Idaho, North Dakota and South Dakota to go.)
4. Pilot truck stops have the best coffee. The one outside of Louisville also had fresh bananas.