Would I Join a Club That Would Have Me as a Member?

With apologies to Groucho Marx and Woody Allen, I'm both grateful and bewildered by Dan Markel's kind invitation to have me blog as part of this group for a month.  Until I received the invitation, I was awed by the background and accomplishments of everyone who posts here.  I am a moderately unusual entrant to the legal academy, having become eligible to join AARP and written my first law review article in the same year.  Like the little angel and little devil (recall Animal House), my natural chutzpah is sitting on one shoulder urging me on, and my inferiority complex is sitting on the other, wondering what is wrong with this group that they should give me a pulpit.

Career path dependency in many ways explains my present positions, employment-wise and intellectually.  I was a law firm associate and partner for almost fifteen years, an in-house divisional general counsel for a huge multi-national company for five, and the senior vice president and general counsel of a Fortune 850 or so, NYSE-traded company for another six.  (The story how I got to be here for another time perhaps.)  So I'm certainly "raw" as a prof, but slightly moldy around the edges as a human being.  And I'm unquestionably a lawyer (antitrust, securities and commercial litigation for the first ten years, and then corporate and M&A thereafter), but after many years in the corporate world as in-house and out-house counsel, I have come to wonder about the extent to which the law really orders our lives and influences our decisions about what to do. 

To put it another way, most of the work we see nowadays in the business/commercial/contracts area is informed by economic analysis of one form or another (rational actor, behavioral, institutional).  My work so far has been a matter of trying to reconcile, or at least come to terms with, my own admittedly personal and casual empiricism versus what I often take to be counter-intuitive normative assumptions underlying doctrinal law or economics.  If you see the world as modeled by a lawyer-scientist (see Langdell) or by an economist-scientist  (see Posner) and don't question the model, you take on faith (whether or not you admit it)  that your subsequent ordering of the data based on that model is right.  I like to think that by breaking the usual career path dependencies, combining a life-experience of practice with a bemused but philosophical (the jury is still out on scholarly) bent, I can add something to the discussion of law, business, and life.

I will try to keep to that over the next few weeks.  I had one experience in baseless opinion-mongering that I'd rather not repeat.

Back in the late 1980's, when I was a young partner at the Dykema Gossett firm in Detroit, the Supreme Court came down with, as I recall, an opinion holding that Dial-a-Porn providers were protected by the First Amendment.  (This predated L.A. Law, Erin Brockovich, Boston Legal, and The Practice, so stories combining sex and the law were still at a premium.)  A local TV station regularly called one of the older partners for "legal reaction," but he had a meeting, so he volunteered me, his young prodigy.  I did the "sitting at the desk in front of the West reporters" thing, offering views on something as to which I had absolutely no substantive clue.  But, if you happened to be in the Detroit-Ann Arbor area at the time, and were watching the 6:00 p.m. TV2 news, you will recall that I looked mahvelous.