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Friday, June 15, 2007

Your Name Here: The Commodization of the Physical Public Domain

Prawf How much would you have to spend to have a public law school re-named after yourself or your blog? Do you think that law schools (and other public institutions willing to exchange naming rights for cash) should set a first-come, first-served fixed price, or auction naming rights off to the highest bidder? And what about politicians who seem to purchase naming rights for themselves and their families using taxpayer's money? Don't they illegitimately usurp something of value that belongs to the public?  These are all questions I consider in this article, but my emphasis is one of social justice rather than of market efficiency.  Here is a closing query: How does your law school barter its naming honors for cash, and how do you feel about it? 

Posted by Ann Bartow on June 15, 2007 at 11:15 AM in Life of Law Schools | Permalink

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Hi Nancy,

I understand that selling naming rights may be a necessary evil for public institutions. My main concern is the lack of transparency and fairness sometimes related to such transactions. I could point to endless examples (raise this subject among academics and most everyone has at least one hair raising story to tell) but here are just a couple without identifying details:

1. State Official holds state funds hostage until University agrees to name something major after him.
2. Two donors get identical classrooms named after themselves, but one had to donate twice as much as the other to earn this honor.
3. Wealthy lawyer offers huge gift to law school but the state bar pressures law school to decline it because wealthy lawyer is fairly unpapoular, and well connected alumni do not want to see his name attached to the law school.
4. A state judge threatens to substantially interfere in law school's operation unless something is named for him, sans major donation by him.
5. After one U.S. Senator gets a university building named for himself, he calls a press conference to announce that this was a pure honor, as opposed to a major naming gesture at the same University made for other U.S. Senator from the same state (but opposing political party), who, the claim is made, had to make a major donation to obtain this honor, so it is "less meaningful."

You get the drift. I realize that there isn't a way to approach this issue that will please everyone, but most public institutions could do a better, fairer job than they do, and a little light and air on the subject would be useful in this regard.

Posted by: Ann Bartow | Jun 18, 2007 12:26:51 PM

Ann, I just downloaded your article and I'm looking forward to reading it. The main reason that public institutions name their bldgs, schools, etc. is that there are only a few sources of revenue to keep the doors open: tuition/fees (which have an upper limit to maintain affordability), overhead from research grants (which law faculties, BTW, often don't try to get--too bad, because the $$$ is good for the investigators and for the schools), state funding (increasingly reduced to pay for guns rather than butter), and donations.

If tuition/fees have an upper limit, legislatures are decreasing their subsidies of public higher education, and there's no grant overhead coming in regularly, that leaves....donations.

Posted by: Nancy Rapoport | Jun 18, 2007 10:51:37 AM

Ann - I think that the compelled speech argument is very strong, and very interesting, particularly in the case of school names - students are forced to carry around names on their uniforms, transcripts, and so on. In that sense, they're probably more similar in kind to license plates, which it seems to me get treated variously as compelled private speech or as government speech.


I'm looking forward to giving your article a more thorough read this weekend - it's so nice to see that better minds than mine are at work on the issue already!

JB

Posted by: Joseph Blocher | Jun 15, 2007 3:05:51 PM

Laura -

Those are really interesting questions, and I look forward to hearing Ann's response.

The Enron example is near and dear to my heart, as an Astros fan and former Houstonian. It turns out the team had to buy back the naming rights, to the tune of a few million dollars. And to continue on the Enron theme, the University of Missouri is *still* struggling to figure out what to do with the things it named after Ken Lay.

My guess is that more and more savvy institutions - maybe including schools - are going to take those lessons to heart and give themselves "outs" in the case of Enron-like disgrace. I think this might be one reason why so many naming rights policies specifically limit naming rights to deceased individuals: They're less likely to get themselves in trouble ruin their "good names." Some other policies have clauses that give the named institution an "out" in certain situations, like if the named sponsor is convicted of certain crimes. That might be the easiest solution, though of course there are pretty major branding and "actual" costs associated with a name change.

Posted by: Joseph Blocher | Jun 15, 2007 2:59:07 PM

Joseph - I look forward to reading your article. One of the things I addressed was the fact that you can't opt out of the name of your street (at least not if you want to get your mail, etc.) so street names are a form of compelled speech. My street is named after a Confederate War figure. It isn't as oppressive as having "Live Free or Die" on my license plate, but still, it's annoying.

Posted by: Ann Bartow | Jun 15, 2007 2:51:03 PM

Hi Laura,
(Warning: self promo ahead) My linked article addresses some of your questions. When naming rights are purchased by corporations, there is likely to be a contract, which probably states the conditions under which a facility will be "de-named." In the case of Enron, the company didn't pay all the money it was supposed to for the naming rights to "Enron Park," so removal of the Enron name (it was framed as a "buy back" of he naming rights) was not legally contested, beyond the bankruptcy issues.

When a facility is named for a person, everyone involved often pretends that there is no "quid pro quo" so a contract that addresses this issue is less likely. In one recent case, Dennis Kozlowski's name was removed from a building at Seton Hall after his criminal conviction. Seton Hall claims this was done at Kozlowski's request. I suspect most naming disputes are kept private, because everyone involved can easily come out looking vain or greedy or worse.

Posted by: Ann Bartow | Jun 15, 2007 2:42:33 PM

This is fascinating stuff, both from a social justice angle and as a matter of First Amendment doctrine!

In a forthcoming Georgetown Law Journal piece, School Naming Rights and the First Amendment's Perfect Storm, I try to tackle a small slice of the horribly messy doctrine: the First Amendment implications of selling naming rights to public K-12 schools. The social justice arguments, I think, apply with special force in the context of public schools - especially K-12 schools - but my argument focuses mostly on what a nasty mess the doctrine surrounding naming rights has become, and how much worse it might get. The short version is that I think school naming rights arrangements demonstrate the problematic overlap between government speech, commercial speech, and schoolhouse speech - three First Amendment categories which, like ill-behaved children, are difficult enough on their own but nightmarish when grouped together. Naming rights arrangements, unfortunately, make it all but impossible to separate them. A recent draft is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970964.

Although I'm not aware of any First Amendment-centered litigation on school naming rights, here's how I see the issue arising: A public school announces that it's selling naming rights to a stadium or library or whatever for some set amount. (Schools in Texas are asking $10m for football stadiums, just to throw a figure out there.) Almost immediately, the school gets a call from some group or individual with a check already made out. Unfortunately, this would-be sponsor is, for some reason, undesirable from the school's perspective. Maybe the sponsor is a religious group, or a cabaret, or just an unsavory character (Ken Lay endowed a chair in business ethics at his alma mater, after all!).

Can the school simply say no? As I argue in the Article, that's a harder question than most schools seem to recognize. And from the social justice standpoint, it's scary, because it means that sponsors may be able to *force* their names onto unprepared public schools!

Anyway, thanks again for bringing up the issue, and for posting your article. I hope that schools and other public entities are giving the issue a lot more thought than their policies seem to suggest.

JB

Posted by: Joseph Blocher | Jun 15, 2007 2:41:17 PM

Ann, this is a great topic! Did you know that Willamette was almost named the Bob Packwood School of Law at Willamette University?! It didn't happen, obviously, but that would have been a little mortifying. So here's a question for you: what happens when your law school, or parts of your law school, are named for disgraced people? Do you do an Enron field and get rid of the name? Can you get rid of the name? When you name bits of schools after politicians, it's really a dicey game.

Posted by: Laura I Appleman | Jun 15, 2007 2:24:42 PM

I don't have a simple answer for you, alkali. Even in the present, some naming gestures may be simply ways to honor people, no strings attached. But, even when facilities or "chairs" are named after professors or Deans, rather than outside benefactors, there may be cash involved one way or another. I recently contributed some money toward "purchasing" a naming honor for a professor I liked a lot. That institution is using his name and the prospect of naming something after him if enough money is raised, to reap donations, which I found sort of cynical and off-putting. On the other hand, I'm happy to see him honored in a way that usually only happens to wealthy men.

Posted by: Ann Bartow | Jun 15, 2007 1:04:00 PM

1) Mmm... pancakes.

2) I'm curious on how the economics used to work such that buildings used to be named after professors, deans, etc. and less often after benefactors.

Posted by: alkali | Jun 15, 2007 12:43:20 PM

I know this is off topic, but that sign is sweet. Law, blogging . . . and pancakes! Dan, can we get to work on this?

Posted by: Matt Bodie | Jun 15, 2007 12:03:44 PM

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