Tuesday, August 21, 2012

Postcards from the Front

I've been reading Paul Fussell's The Great War and Modern Memory.  (Fussell died earlier this year.  The Great War is the book that made his academic reputation.  Here's Slate on it and Fussell).

It's one of the most amazingly original academic books I've read--a terrific blend of literary criticism, cultural history, and military history that traces how World War I transformed the way we think, evidenced through the evolution of language and letters from 1914 to the 1920s.

It also has some darkly telling vignettes, like this one, from a section on the World War I-era growth of impersonal "form rhetoric":

If a man was too tired to transcribe the cliches of the conventional phlegmatic letter, he could always turn to the famous Field Service Post Card. 

The Card read:

NOTHING is to be written on this side except the date and signature of the sender.  Sentences not required may be erased.  If anything else is added the post card will be destroyed.


I am quite well

I have been admitted into hospital

    {sick / wounded} and {am going on well / and hope to be discharged soon}

I am being sent down to the base

. . .

I have received no letter from you {lately / for a long time}


The Field Service Post Card was most commonly . . . sent--with everything crossed out except "I am quite well"--immediately after a battle which relatives might suspect their soldiers had been in.  . . . 

The implicit optimisim of the post card is worth noting--the way it offers no provision for transmitting news like "I have lost my leg" or "I have been admitted into hospital wounded and do not expect to recover" . . . .  One paid for the convenience of using the post card by adopting its cheerful view of things, by pretending to be in a world where belated mail and a rapidly healing wound are the worst that can happen, and where there is only one thinkable direction one can go--to the rear.


Posted by Mark Moller on August 21, 2012 at 11:21 PM in Books | Permalink | Comments (0) | TrackBack

Wednesday, July 18, 2012

Legal Education in the Digital Age

Legal Education in the Digital Age

With the latest news of U-Va. joining a consortium of schools  promoting online education, it seems only a matter of time before law schools will have to confront the possibility of much larger chunks of the educational experience moving into the virtual world.  Along with Law 2.0 by David I.C. Thomson, there is now Legal Education in the Digital Age, edited by Ed Rubin at Vanderbilt.  The book is primarily about the development of digital course materials for law school classes, with chapters by Ed Rubin, John Palfrey, Peggy Cooper Davis, and Larry Cunningham, among others.  The book comes out of a conference hosted by Ron Collins and David Skover at Seattle U.  My contribution follows up on my thoughts about the open source production of course materials, which I have previously written about here and here.  You can get the book from Cambridge UP here, or at Amazon in hardcover or on Kindle.

One question from the conference was: innovation is coming, but where will it come from?  Some possibilities:

  • Law professors
  • Law schools and universities
  • Legal publishers
  • Outside publishers
  • Tech companies such as Amazon or Apple
  • SSRN and BePress
  • Some combination(s) of these

I think we all agree that significant change is coming down the pike.  But what it ultimately will look like is still very much up in the air.  What role will law professors play?

Posted by Matt Bodie on July 18, 2012 at 05:24 PM in Books, Information and Technology, Life of Law Schools, Web/Tech | Permalink | Comments (8) | TrackBack

Monday, July 16, 2012

Two Resources on Corporate Law

Elgar book
In advertising, repetition is often critical to success.*  That's why I'll repeat what Stephen Bainbridge and Gordon Smith have already told you -- check out the new Research Handbook on the Law and Economics of Corporate Law, edited by Claire Hill and Brett McDonnell.  You can find an introduction from the editors here.  Interestingly, the Amazon price is $10 more than the publisher's price, so this is one instance where buying directly from the publisher pays off.

If you're looking for some nice free downloads, consider Seattle University Law Review's symposium issue for the Berle III conference.  (The image above is from the first Berle conference, which can be found here; Berle II is here.  Berle IV was held in London last month.)  Chuck O'Kelley has organized the ongoing set of Berle conferences, and Berle III centered around the theory of the firm in the corporate law context.  There are sixteen papers to choose from, and I very much enjoyed hearing from the terrific group of folks that Chuck had on hand.

* Note: apparently, repetition is useful in the "wearin" phase, but actually becomes harmful to the message when the "wearout" phase is reached.  See Campbell & Keller (2003), Brand Familiarity and Advertising Repetition Effects.  I'm hopeful that we're still in the "wearin" phase.

Posted by Matt Bodie on July 16, 2012 at 11:18 AM in Books, Corporate | Permalink | Comments (0) | TrackBack

Thursday, June 07, 2012

The Virtual Honesty Box

As a fan of comic book art, I'm often thrilled to encounter areas where copyright or trademark law and comic books intersect. As is the case in other media, the current business models of comic book publishers and creators has been threatened by the ability of consumers to access their work online without paying for it. Many comic publishers are worried about easy migration of content from paying digital consumers to non-paying digital consumers. Of course, scans of comics have been making their way around the internet on, or sometimes before, a given comic's onsale date for some time now. As in other industries, publishers have dabbled with DRM, and publishers have enbraced different (and somewhat incompatible) methods for providing consumers with authorized content. Publishers' choices sometimes lead to problems with vendors and customers, as I discuss a bit below.

While services like Comixology offer a wide selection of content from most major comics publishers, they are missing chunks of both the DC Comics and Marvel Comics catalogues. DC entered a deal to distribute 100 of its graphic novels (think multi-issue collections of comic books) exclusively via Kindle. Marvel Comics subsequently struck a deal to offer "the largest selection of Marvel graphic novels on any device" to users of the Nook. 

Sometimes exclusive deals leave a bad taste in the mouths of other intermediaries. DCs graphic novels were pulled from Barnes & Noble shelves because the purveyor of the Nook was miffed. Independent publisher Top Shelf is an outlier, offering its books through every interface and intermediary it can. But to date, most publishers are trying to make digital work as a complement to, and not a replacement for, print.

Consumers are sometimes frustrated by a content-owner's choice to restrict access, so much so that they feel justified engaging in "piracy." (Here I define "piracy" as acquiring content through unauthorized channels, which will almost always mean without paying the content owner.) Some comics providers respond with completely open access. Mark Waid, for example, started Thrillbent Comics with the idea of embracing digital as digital, and in a manner similar to Cory Doctorow, embracing "piracy" as something that could drive consumers back to his authorized site, even if they didn't pay for the content originally.

I recently ran across another approach from comic creators Leah Moore and John Reppion. Like Mark Waid, Moore and Reppion have accepted, if not embraced, the fact that they cannot control the flow of their work through unauthorized channels, but they still assert a hope, if not a right, that they can make money from the sales of their work. To that end, they introduced a virtual "honesty box," named after the clever means of collecting cash from customers without monitoring the transaction. In essence, Moore and Reppion invite fans who may have consumed their work without paying for it to even up the karmic scales. This response strikes me as both clever and disheartening.

I'll admit my attraction to perhaps outmoded content-delivery systems -- I also have unduly fond memories of the 8-track cassette -- but I'm disheartened to hear that Moore and Reppion could have made roughly $5,500 more working minimum wage jobs last year. Perhaps this means that they should be doing something else, if they can't figure out a better way to monetize their creativity in this new environment. Eric Johnson, for one, has argued that we likely don't need legal or technological interventions for authors like Moore and Reppion in part because there are enough creative amateurs to fill the gap. The money in comics today may not be in comics at all, but in licensing movies derived from those comics. See, e.g., Avengers, the.

I hope Mark Waid is right, and that "piracy" is simply another form of marketing that will eventually pay greater dividends for authors than fighting piracy. And perhaps Moore and Reppion should embrace "piracy" and hope that the popularity of their work leads to a development deal from a major film studio. Personally, I might miss the days when comics were something other than a transparent attempt to land a movie deal.

As for the honesty box itself? Radiohead abandoned the idea with its most recent release, King of Limbs, after the name-your-price model adopted for the release of In Rainbows had arguably disappointing results: according to one report, 60% of consumers paid nothing for the album. I can't seen Moore and Reppion doing much better, but maybe if 40% of "pirates" kick in a little something into the virtual honesty box, that will be enough to keep Moore and Reppion from taking some minimum wage job where their talents may go to waste.

Posted by Jake Linford on June 7, 2012 at 09:00 AM in Books, Film, First Amendment, Information and Technology, Intellectual Property, Music, Property, Web/Tech | Permalink | Comments (3) | TrackBack

Wednesday, June 06, 2012

Keeping Tact ... Intact

TactI’m delighted to return to PrawfsBlawg. During this month’s visit, I plan to focus on topics that are included in my second book, Advocacy to Zealousness: Learning Lawyering Skills from Classic Films (Carolina Academic Press, 2012). I thought I’d start with something about the skill of tact, and how its presence or absence impacts the teaching, study, and practice of law. In the not-too-distant past, when communication methods were limited to in-person meetings, telephone calls, and written correspondence, there were still myriad minefields to maneuver around to avoid the commission of communication faux pas. Rude or terse statements (made intentionally or unintentionally) could lead to hurt feelings or heated arguments, but, absent national print or television coverage, the unfortunate words and misunderstandings were limited to condensed areas, and relationships could be mended much quicker. Today, words can spread around the world in a split second, and private resolutions are harder to come by. What we say, and how we say it, has permanence, presence, and persistence. And, sadly, the least tactful statements tend to last the longest. It’s this new sense of permanence of words and statements that makes it crucial to learn to exercise great care in their use and delivery. Law professors are charged with preparing students for the practice of law, and tact is an essential skill for any lawyer. However, times have changed, and people are generally less tactful, which can pose challenges in guiding students in this delicate area. How do you address tact in the classroom and among colleagues? How do we keep tact … intact?

Posted by Kelly Anders on June 6, 2012 at 03:51 PM in Books, Life of Law Schools, Teaching Law | Permalink | Comments (1) | TrackBack

Tuesday, May 15, 2012

In the mail

I don't get to read books as much as I'd like, even in the summertime, but I wanted to bring a few new books to your attention, since I think they will be of wider interest, and perhaps you'll have good fortune to get them to the front of your reading queue.

First, Jeremy Waldron has reworked his Holmes Lectures and published them as a book entitled, "The Harm of Hate Speech." Waldron is one of my favorite legal philosophers and in this book, he takes on American exceptionalism having to do with free speech laws that protect bigots from censure, tort liability or punishment. I'm looking forward to seeing what he has to say.

Second, Eduardo Penalver, who regularly guestblogs here, has a new book on property theory that he has written with his colleague Gregory Alexander. It's called, suitably enough, An Introduction to Property Theory, and you can download the introduction here on SSRN and buy it here.

Last, for now, is a book by Princeton historian, Hendrick Hartog, called Someday All This Will Be Yours. Appropriately enough for a post-Mother's Day blog post, it's a modern history of inheritance and old age! If you have Prufrock on the brain, or are simply interested in the construction of contemporary familial mores, you will want to read this book. In the meantime: I grow old, I grow old, I shall wear the bottoms of my trousers rolled.

Happy reading!

Posted by Administrators on May 15, 2012 at 03:15 PM in Books | Permalink | Comments (0) | TrackBack

Wednesday, May 09, 2012

In Case You Missed It: Michelle Alexander on the Colbert Report

Michelle Alexander (Ohio State) discussed her compelling new book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness" (New Press), on last night's edition of the Colbert Report.

The Colbert ReportMon - Thurs 11:30pm / 10:30c
Michelle Alexander
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One of my favorite parts of the interview: Colbert asking, if people of color do not use drugs at higher rates than whites, "why didn't David Simon set The Wire in Greenwich, Connecticut?" Congratulations to Michelle on her wonderful appearance and on her groundbreaking work.

Posted by Dawinder "Dave" S. Sidhu on May 9, 2012 at 01:51 PM in Books, Television | Permalink | Comments (0) | TrackBack

Sunday, May 06, 2012

Upcoming Conference: Implicit Racial Bias Across the Law

Having browsed through the 2012 Entry Level Hiring Report, I am delighted that so many talented individuals will be joining our ranks as tenure-track law professors.  I look forward to meeting, learning from, and collaborating with the newest members of our community.  I am particularly pleased to see several names on the list, including that of Robert J. Smith.  Rob -- who worked under Charles Ogletree at Harvard's Charles Hamilton Houston Institute for Race and Justice before serving as a DePaul VAP this academic year -- will be heading to UNC School of Law this fall.

When I went on the market last year, I talked to a number of people who were instrumental in helping me secure a tenure-track faculty position.  Rob was one of them.  In addition to providing me with guidance and support, he introduced me to Justin Levinson (Hawaii).  Justin single-handedly put me in the right frame of mine to succeed at the AALS Conference.  Having completed my first year at New Mexico, I very much appreciate, and am honored by, the opportunity to be a law professor.  I can honestly say that I may not have had this position were it not for Rob and Justin's generous help. 

While some first-year law professors, myself included, hope to escape their first year on the job without asking anyone where the bathroom is and without setting their law school on fire, Rob, by contrast, is already doing amazing things.  Specifically, Rob and Justin co-edited a book, "Implicit Racial Bias Across the Law" (just published by Cambridge University Press), that explores implicit racial bias in a number of major legal contexts, such as capital punishment, education, and intellectual property.  Next month, the Charles Hamilton Houston Institute will be hosting a conference centered around the book.  I encourage readers to consider attending.  Details are below the fold:

Implicit Racial Bias Across the Law: A Book Conference

Date: Thursday, June 14, 2012, 9:00 AM
Location: Austin Hall, Ames Courtroom, Harvard Law School
Address: 1515 Massachusetts Ave., Cambridge, MA

Speakers include: Michele Goodwin (Minnesota), Melissa Hart (Colorado), Jerry Kang (UCLA), Ogletree (Harvard), Song Richardson (American), Eli Wald (Denver), Eric Yamamoto (Hawaii), and current and former federal judges.

From the conference web page:

"Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This conference considers what emerging social science can contribute to the discussion of race in American law, policy, and society. The conference will explore how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, the conference, designed to coincide with the launch of the book “Implicit Racial Bias Across the Law”, examines both the continued subordination of historically disadvantaged groups and the legal system's complicity in the subordination.

"The conference will bring together scholars, judges, practitioners, and community leaders to explore the issues surrounding implicit racial bias in law and policy. It will begin with a compelling overview of the social science. What does science teach us about automatic biases? And what do we still not know? Leaders in the areas of criminal justice, housing law and policy, education, and health care will then present overviews of the impact of implicit bias in their fields. Attendees will hear federal judges’ and leading scholars’ perspective on implicit bias claims in the courtroom and hear experts’ assessment of the future of implicit bias in the law. A lively afternoon session will include simultaneous break-out sessions and roundtable discussions of specific implicit bias related topics. Audience participation will be welcomed and encouraged. The conference will close with a discussion of setting a forward looking and collaborative implicit bias agenda."

Those interested may RSVP for the conference here:

Posted by Dawinder "Dave" S. Sidhu on May 6, 2012 at 08:34 AM in Books, Entry Level Hiring Report | Permalink | Comments (5) | TrackBack

Monday, April 23, 2012

Interactive Casebooks

Recently I learned that I'll be teaching Copyright law for the first time, a circumstance that launched my search for casebook. One of the ones that I considered was Brauneis and Schechter's Copyright: A Contemporary Approach, which is an interactive casebook just published by West.  The book is released in a paper format, along with a one-year subscription to an electronic version of the book. Prawfs using a West/Westlaw password can obtain access to the electronic version.

The authors used the electronic format of the book nicely. I liked the links to the subject matter of the cases, such as clips of songs, images and the like. For example, one link which allowed me to play the video game that was the subject of Williams Electronics v. Artic Int'l.  The links to the statutory text were particularly useful.

Although I ultimatley didn't end up going with this one (at least this year), I found the format helpful and intriguing, particularly for courses where there are strong visual components.  If you've used any of the interactive casebooks in your courses, your feedback about your experience would be very helpful.

Posted by Amy Landers on April 23, 2012 at 05:19 PM in Books, Intellectual Property | Permalink | Comments (1) | TrackBack

Friday, March 30, 2012

"In the Whirlwind"

I received from the library today my hot-off-the-presses copy of my teacher Robert Burt's new book, In the Whirlwind.   I'm really looking forward to it.  Here's some blurb-age:

God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.

In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.

Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.

Posted by Rick Garnett on March 30, 2012 at 02:21 PM in Books, Rick Garnett | Permalink | Comments (0) | TrackBack

Thursday, March 22, 2012

Trayvon Martin and Florida's "Stand Your Ground" Law

In the wake of the tragic killing of Trayvon Martin in Florida, there seems to be a lot of misinformation about Florida's so-called "Stand Your Ground" law which critics are pointing to as evidence that such laws allows killing with impunity.

Some say that the "Stand Your Ground" law makes it exceptionally hard to win a conviction. First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. Moreover, the prosecution often has a really good witness in a homicide case: the defendant himself, if the police have arrested and interrogated him, and whose statement often will have material discrepancies with his trial testimony, assuming he testifies (and if a defendant claims self-defense and doesn't testify, the jury will hold it against him, no matter how much we tell them not to).

So what are we left with that distinguishes Florida's law? Well, obviously there is the "stand your ground" provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. That is why Anthony Sebok wrote in 2005 that it is "unlikely . . . that this change will change outcomes in particular cases."

So what is truly distinctive about Florida's "Stand Your Ground" law? It is this: while self-defense conventionally is just that -- a defense, to be raised at trial -- self-defense under the Florida law acts as an immunity from prosecution or even arrest. Section 776.032 of the Florida Statutes provides that a person who uses deadly force in self-defense "is immune from criminal prosecution." This odd provision means that a person who uses deadly force in self-defense cannot be tried, even though the highly fact-intensive question of whether the person acted in self-defense is usually hashed out at trial. The law thus creates a paradox: the State must make a highly complex factual determination before being permitted to avail itself of the forum necessary to make such a determination.

Not only that, Section 776.032 provides immunity from arrest unless the police have "probable cause that the force that was used was unlawful." Again, the law creates a Catch-22: police cannot arrest the suspect unless they have probable cause, not just to believe there was a killing, but also that the killing was not in self-defense; and where, as is often the case, the defendant is the only living witness to the alleged crime, the police likely will not be able to form probable cause without interrogating the suspect.

The Trayvon Martin case demonstrates the flaws in Florida's "Stand Your Ground" law. But let's not lose focus over what exactly those defects are, and they are not in the decision to abrogate the common-law duty to retreat, over which reasonable people can disagree and have for decades. No, the defect in the law is in the odd provisions that grant immunity from prosecution and even arrest, preventing the machinery of criminal justice from resolving whether the self-defense claim is a valid one.

Posted by Michael J.Z. Mannheimer on March 22, 2012 at 11:28 PM in Books, Criminal Law, Current Affairs | Permalink | Comments (47) | TrackBack

Thursday, February 02, 2012

Book Club on "Cultivating Conscience": Wrap-Up


Many thanks to Adam Benforado, Chad Flanders, Brett McDonnell, Tom Ulen, Molly Wilson, and especially our author Lynn Stout for an engaging and thoughtful book club on Cultivating Conscience.  I hope the club will be a resource for folks in the future who are reading the book for research, for class, or for general enlightenment.

Here's a wrap-up of all the posts for the club:

And here are some places you can pick up the book:

Thanks again to all our participants!

Posted by Matt Bodie on February 2, 2012 at 02:57 PM in Books | Permalink | Comments (0) | TrackBack

Monday, January 30, 2012

"Cultivating Conscience" for Contracts


One of the biggest questions for me coming out of "Cultivating Conscience" is whether or not legal scholars can adapt the existing law & economics "utility-maximizing" framework to our new understandings of human behavior.  Jolls, Sunstein & Thaler imported the psychological work on heuritics and biases into the existing L&E framework through the nomenclature of "behavioral law and economics."  They sought to adapt, rather than replace.  But it seems to me that other strains of law & psychology research, such as the scholarship on procedural justice by Tom Tyler and others, call the entire framework into question.  If we are actually motivated by fairness, rather than utility, can we just label the taste for fairness as a type of utility?  Or do we have start over?

Stout states in her conclusion: "It would be a grave mistake to put down this book thinking . . . that the homo economicus model should not be taught in our schools and universities . . . . Rather, the message is that the homo economicus model is not the only model of of human behavior that should be taught."  (P. 252).  This statement seems at first a conciliatory gesture -- a recognition of the value of the law & economics framework.  At the same time, however, I think it is a rather audacious move, because it heralds the creation of another model of human behavior.  What is this other model?  Is there only one, or more?  Stout gets us started by focusing on the role of conscience in our behavior and demanding that conscience get accorded its proper role.  But if we are truly creating a new paradigm, much work remains to be done.

Of course, the immediate L&E move is to incorporate conscience -- or, perhaps, a utilitarian taste for fairness -- into the existing L&E model.  And so we see this in the realm of contract.  Stout's chapter on contract law focuses on incomplete contracts and the role that conscience plays in filling out their terms.  As Stout acknowledges throughout her chapter, there has been a lot of economics/law & economics research about how to avoid opportunism in incomplete contracts.  Stout suggests a greater role for conscience in these contracts by prompting contractual partners to reveal their prosocial preferences ahead of time, making room for prosocial behavior in courts' enforcement of these contracts, and even giving"spite" its due.

It is not clear, however, whether Stout's reforms fall outside the traditional L&E model.  Consider, for example, Judge Posner's law and economics defense of a rather robust version of contractual good faith in Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 593-95 (7th Cir. 1991):

So we must consider the meaning of the contract duty of “good faith.” . . . The duty of honesty, of good faith even expansively conceived, is not a duty of candor. . . . But it is one thing to say that you can exploit your superior knowledge of the market . . . . It is another thing to say that you can take deliberate advantage of an oversight by your contract partner concerning his rights under the contract. Such taking advantage is not the exploitation of superior knowledge or the avoidance of unbargained-for expense; it is sharp dealing.

. . .[C]onduct that might not rise to the level of fraud may nonetheless violate the duty of good faith in dealing with one's contractual partners and thereby give rise to a remedy under contract law. . . .This duty is, as it were, halfway between a fiduciary duty (the duty of utmost good faith) and the duty merely to refrain from active fraud. Despite its moralistic overtones it is no more the injection of moral principles into contract law than the fiduciary concept itself is. It would be quixotic as well as presumptuous for judges to undertake through contract law to raise the ethical standards of the nation's business people. The concept of the duty of good faith like the concept of fiduciary duty is a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to their dispute. The parties want to minimize the costs of performance. To the extent that a doctrine of good faith designed to do this by reducing defensive expenditures is a reasonable measure to this end, interpolating it into the contract advances the parties' joint goal.

 The contractual duty of good faith is thus not some newfangled bit of welfare-state paternalism or (pace Duncan Kennedy, “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685, 1721 (1976)) the sediment of an altruistic strain in contract law . . . .

Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 593-95 (7th Cir. 1991).  Judge Posner's defense of good faith might seem less remarkable if his vision for it were not so strong.  But in Market Street, the Court essentially requires a contractual party (A) to inform the other party (B) about a particular contractual clause if A thinks B has forgotten about it.  Intent is key; if A knows B is taking an action that B would not take if B remembered the clause, A has an obligation to tell B.  If A doesn't know, then there's no obligation.

That's a rather surprising result to me, especially given that in the actual case, A is a relatively small investing group and B is a huge pension fund which should be able to take care of itself.  And it raises the question: does prosocial behavior have a role in law & economics?  I think Judge Posner would certainly think so, and he would justify it as what the parties would have negotiated for, had they had the foresight/ability to do so.  If that's the case, then maybe "Cultivating Conscience" will simply fill out our existing understandings of the rational actor, rather than challenging that framework itself.  But then how far can homo economicus take us, if he ultimately has a conscience?

Posted by Matt Bodie on January 30, 2012 at 10:10 PM in Books | Permalink | Comments (0) | TrackBack

Might Cultivating Conscience Perpetuate Injustice?

Was this book written especially for me? 

I’ve had that thought before: reading, say, The Catcher in the Rye at age 14 and sensing something very familiar in Holden Caulfield’s voice, almost feeling it in my own throat.  But it is rare these days—especially when I’m flipping pages in my capacity as a law professor.  The type of research I do (at the intersection of law and psychology) and the way I teach courses like business organizations (offering up and then tearing down a neoclassical economic perspective) leave me sometimes feeling a bit out on my own.

Lynn Stout’s new book, Cultivating Conscience, however, suggests that I’m not as alone (or crazy) as I might sometimes fear.

On nearly every page of the book, I came across something that I have taught in one of my classes, written about, or pondered in a quiet moment.  I, too, have drawn insights from the work of Stanley Milgram in my scholarship, delved into research on why people “cheat” with my students, and wandered into the worlds of game theory and evolutionary psychology.  I share many of the conclusions that Stout draws, from those at the core of the book’s message (e.g., “Outside anonymous markets . . . the assumption of rational selfishness may be of questionable value in helping us address social problems like failing schools, rising crime, poor medical care, political corruption, or CEO malfeasance.” (246)) to those that are slightly more peripheral (“[W]e should have different legal rules for natural persons and for corporations.” (171)). 

Yes, I am somewhat biased, but I feel confident that even with a truly objective pair of eyes, I would have reached the same ultimate judgment: this is an important book of significant and lasting value.  It is thought-provoking, nimble, and engaging.  The writing is sharp and the examples are lively (e.g., I particularly liked the notion that “litigation in relational contract cases” can resemble “the medieval practice of trial by combat” (182)).  I suspect that even those who come to Cultivating Conscience as deep skeptics will find it to be a rewarding read.  It’s worth us all spending more time to consider the incongruity between the rational actor model and how real humans behave, the incredible power of conscience on our actions, and the ways in which “unselfish prosocial behavior” may be encouraged in society.

Perhaps because I feel so close to a lot of the material, I did occasionally disagree with Stout on small matters.  For instance, I think at points, the law and economics movement is portrayed as more homogeneous than it actually is (e.g., as I’ve suggested with Jon Hanson, even at its origin, Guido Calabresi and Richard Posner offered quite different paths forward) and occasionally the economic arguments are depicted as more flimsy than they actually are (e.g., I don’t think that punitive damages pose as significant a challenge to deterrence theory as Stout implies when one factors in the probability of a harm being detected).  At other points, I think Stout might have pushed harder on why law and economics has been so dominant in legal academia over the last few decades.  She is right to focus on its “appealing scientific patina” (44) and the fact that people “tend not to notice unselfish prosocial behavior” (44) (which might undermine the rational actor model), but it might have been worth also emphasizing more directly that law and economics provides a vision of ourselves that is both intuitive and affirming, that it is a model that benefits those at the top of society, and that it has been actively promoted by those both outside academia (e.g., think tanks like the American Enterprise Institute) and within (e.g., through the Olin Foundation, which has donated millions of dollars to top law schools to support scholars in this area).

These minor points to the side, I think that Stout’s overall message is compelling: “the homo economicus model is not the only model of human behavior that should be taught. . . . [and] material incentives are not the only tools we should use to change behavior . . . .” (252)  I could not agree more. 

Given my strong affinity for Cultivating Conscience, it is, thus, rather difficult to provide the grist for a good blog discussion.  I think Stout has hit the nail squarely on the head and I don’t want to distract from my overall message: this is a great book.

That said, if I were to choose one area where I think Stout and I might diverge on a more fundamental level, it’s my concern that cultivating conscience might not actually promote fairness and justice.  My worry is that encouraging “unselfish prosocial behavior” may merely reinforce the status quo and protect the most privileged in society.

Take the story of Franco Gonzales, the man who returned $203,000 that he found in a bag that fell out of an armored truck.  Stout uses the example to open the book and returns to it at several points as an example of the marvelous nature of conscience.  She also uses Franco to show that a person can be moral and virtuous in one area of his life, and not in another: Franco, it turns out, is an immigrant, who is living illegally in the United States.  My initial reaction was to feel very heartened by Franco’s “moral” decision to return the money, but as I thought about it more I became unsure.  Does the moral dictate that Franco call the police and turn over the cash he found actually promote justice?  How about the moral dictate that he not enter the United States illegally or that, once there, he turn himself in to the authorities for deportation?  

It may have been conscience that prevented Franco from keeping the $203,000, but why was that the optimal or fair outcome for anyone other than the owner of the $203,000?  Franco was extremely poor (he was a dishwasher in a Chinese restaurant, with “little or no formal education or savings” (234)) and, if he had kept the money, we learn from Stout’s description, he would have sent a large chunk of the money to his “mother, who lived in a farming village in Mexico” (3) and worked as a house cleaner (234).  Given that the money fell out of an armored truck, it seems reasonable to assume that it belonged to a large bank, which was insured by a large insurance company.  A $203,000 loss to the bank or insurance company would have been nothing—a rounding error on the CEO’s salary—but for Franco and his relatives, it might have made all the difference in the world. 

Similarly, in Stout’s account, it should have been conscience that prevented Franco from illegally entering (and remaining) in the United States.  Indeed, if his conscience had been properly cultivated in this regard he wouldn’t have broken the law.  But would this be the just outcome? 

The definition of “unselfish prosocial behavior” is extremely malleably and, to a large extent, is set by those with power, wealth, and influence.  In a society with slavery, it can be “selfish antisocial behavior” to run away from your slave owner, depriving him of his property.  In a society in which women are second class citizens, it can be “selfish antisocial behavior” for a woman to drive a car, show her ankles, or go to college.  I don’t dispute Stout’s claim that “[j]ust as thin and fragile reeds can be woven together to make a basket that is strong enough to carry a heavy load, when many small acts of restraint and consideration on the part of many individuals are woven together, they form a peaceful and prosperous society.” (61)  The problem is that such a society may be deeply unjust and the basket weave itself may make it very hard for those born without rights, property, and respect to gain any of those things.  Indeed, it may be their own consciences that prevent those at the bottom from gaining equal footing.

Posted by Adam Benforado on January 30, 2012 at 10:22 AM in Books | Permalink | Comments (1) | TrackBack

Book Club on "Cultivating Conscience" Begins Today


Our book club on Lynn Stout's "Cultivating Conscience: How Good Laws Make Good People" begins today.  You can find an introduction to the book, author, and club participants here.  We are looking forward to the posts from our participants and your comments.

Posted by Matt Bodie on January 30, 2012 at 12:32 AM in Books | Permalink | Comments (0) | TrackBack

Friday, January 13, 2012

Reading list suggestions for Crim Students

A student of mine asked me recently about books that give an inside feel of what it's like to be a lawyer in the criminal justice system. I thought I'd crowdsource and invite you to weigh in. 

Off the top of my head, I could think of a few. I haven't read them all or even many of them, so perhaps I should add them to my Amazon wish list...feel free to add more suggestions in the comments.  

David Feige, Indefensible

John Kroger, Convictions

Dershowitz, The Best Defense

Abbe Smith, Case of a Lifetime: A Criminal Defense Lawyer's Story

Kevin Davis, Defending the Damned 

Stephen Bogira, Courtroom 302


Posted by Administrators on January 13, 2012 at 12:18 PM in Books, Criminal Law, Dan Markel | Permalink | Comments (14) | TrackBack

Tuesday, January 10, 2012

Book Club on "Cultivating Conscience"


I'm happy to announce that on January 30 & 31, Prawfs will be hosting a book club for Lynn Stout's "Cultivating Conscience: How Good Laws Make Good People."  Lynn is the Paul Hastings Professor of Corporate and Securities Law at the UCLA School of Law, and she is internationally respected for her work on corporate governance, securities law, and financial products.  In "Cultivating Conscience," she applies the principles from many of her works in business law to a broader spectrum of human behavior.

Joining us for the club will be, along with Lynn and myself:

  • Adam Benforado, Assistant Professor, Earle Mack School of Law, Drexel University
  • Chad Flanders, Assistant Professor, Saint Louis University School of Law
  • Brett McDonnell, Professor of Law and Solly Robins Distinguished Research Fellow, University of Minnesota Law School
  • Tom R. Tyler, Professor of Law and Psychology, Yale Law School
  • Thomas S. Ulen, Swanlund Chair Emeritus, University of Illinois at Urbana-Champaign, and  Professor Emeritus, University of Illinois College of Law
  • Molly J. Walker Wilson, Associate Professor, Saint Louis University School of Law

I'm very excited to have such a great set of participants.  Hope you can join us for the Club.

Posted by Matt Bodie on January 10, 2012 at 12:30 PM in Books | Permalink | Comments (1) | TrackBack

Thursday, November 24, 2011

Holiday Gift List for Your Favorite Criminal Law Theorist

Not long ago, the philosophy of criminal law and punishment was thought to be a bit of a dead end. Happily, that has not been true for at least the last 25 years, and indeed, now the problem might be that there is too much to read in this area.

Oxford University Press continues to exacerbate that problem. Indeed, in just the last few months, I have received the following three volumes, all just recently published:

Retributivism Has a Past: Has It a Future? (Ed. by Michael Tonry)

The Oxford Handbook of Philosophy of Criminal Law (edited by Deigh and Dolinko)

Philosophical Foundations of Criminal Law (edited by Duff and Green)

These are in addition to the volume that we just celebrated at St. Johns' earlier this month, Mark D. White's edited collection on Retributivism: Essays on Theory and Policy (OUP 2011 also).

I hope to dip into or even immerse myself in these waters over the coming months. I suspect all these volumes will provoke thought and move the discussions forward. But if I'm wrong about that, you'll read about those reactions here :-) In the meantime, I invite OUP to lower the price tags. All of these volumes are priced well above what normal people would be willing to spend on books, making these the preserve of law and philosophy libraries. Alas.



Posted by Administrators on November 24, 2011 at 03:39 PM in Article Spotlight, Books | Permalink | Comments (3) | TrackBack

Thursday, November 10, 2011

Kahneman Profile/Review

If you are at all interested in behavioral law and economics, you will be interested in Michael Lewis's profile of Daniel Kahneman, which includes a review of his new book, Thinking, Fast and Slow.

Posted by Lyrissa Lidsky on November 10, 2011 at 10:46 PM in Books, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Humanity's Law

Just wanted to put a quick link to the cool book club recently held over at Opinio Juris regarding Ruti Teitel's new book, Humanity's Law. Participants include Joanne Mariner; Bill Burke-White; and Ralph Wilde. Here's how Ruti explained the origins and argument of the book:

I have been following the relationship of law to post conflict and political transition for many years now.  The puzzle that occasioned this book was the apparently expanding role of law in periods of conflict, and the way the law at issue departed from traditional international law and its traditional distinctions between war and peace, international and domestic law, and focus on state security, to a shift in focus and  new emphasis on the  protection of human  security.

In this book, I trace this development historically and through illustrations involving conflicts in diverse regions, showing that the overarching legal framework which governs this new normativity draws from international human rights law, the law of war (its two strands) and international criminal law.

I argue that just as the human has become the subject of protection, so too it is the subject of enforcement, although this understanding can also result in greater duties for the state regarding as we have seen in recent legal judgments in number of areas, from awards of reparations for abuses committed in and out of conflict and often after the passage of time to identifying responsibility in the counter terror campaign.

A host of controversies ensue  from the normative, what principles ought guide the new responsibility to protect? 

To the question of how largely our state based institutions can operationalize  global engagement? The emergence of humanity law and its domination in many contexts of conflict lead to a number of hard questions that need to be tackled directly.  For example:  Have criminal trials far from the scene of conflict made it more not less difficult to heal old grievances, for example in the Balkans? How about the intervention in Libya?  Did the international legal community jump the gun in threatening Ghadaffi and his family with criminal indictments, taking off the table options such as amnesties or exile that might have led to an earlier and less bloody regime change in Libya?   Have the competing allegations of war crimes and humanitarian violations made in harder rather than easier to have meaningful peace talks between Israel and Palestine, distracting from the underlying political claims at issue?  I look forward to hearing your views.

Posted by Administrators on November 10, 2011 at 02:47 PM in Books | Permalink | Comments (0) | TrackBack

Monday, November 07, 2011

Global Justice and Medical Tourism

Over the last few years, when I have not been working on bioethical issues relating to reproduction and reproductive technologies, I have been working on a different project relating to medical tourism – the travel of patients from one country (the “home country”) to a foreign country (the “destination country”) for the primary purpose of getting health care.  I have done three major law review articles on the subject (and a few other bioethics and medical journal articles). The first law review article focued on quality of care and medical malpractice recovery.  The third, which is forthcoming in the Cornell L. Rev, focuses on circumvention tourism -- patients who travel abroad for the purpose of circumventing a home country restriction on access, such as in the case of abortion, assisted suicide, female genital cutting, and reproductive technology use in some contexts.  The second law review article is coming out this week in print, but I have already posted it online here. This piece of the project, I hope, will be useful beyond medical tourism to those interested in globalization and global justice theory more generally.

A good way to frame my subject of inquiry is by way of a recent New York Times article  by Somini Sengupta, entitled “Royal Care for Some of India’s Patients, Neglect for Others,” which captures a particular global justice critique well: She begins by describing the care given at Wockhardt Hospital in India to “Mr. Steeles, 60, a car dealer from Daphne, Ala., [who] had flown halfway around the world last month to save his heart [through a mitral valve repair] at a price he could pay.” The article describes in great detail the dietician who selects Mr. Steele’s meals, the dermatologist who comes as soon as he mentions an itch, and Mr. Steeles’s “Royal Suite” with “cable TV, a computer, [and] a mini-refrigerator, where an attendant that afternoon stashed some ice cream, for when he felt hungry later.” This treatment contrasts with the care given to a group of “day laborers who laid bricks and mixed cement for Bangalore’s construction boom,” many of whom “fell ill after drinking illegally brewed whisky; 150 died that day.” “Not for them [was] the care of India’s best private hospitals,” writes the article’s author; “[t]hey had been wheeled in by wives and brothers to the overstretched government-run Bowring Hospital, on the other side of town,” a hospital with “no intensive care unit, no ventilators, no dialysis machine,” where “[d]inner was a stack of white bread, on which a healthy cockroach crawled.”

There is also a more academic or policy strain of critiques among those who write about global health and/or globalization.

The goal of this paper is to examine this kind of critique.  Here is my take...

As I argue in the paper these kinds of critiques should be understood as raising there kinds of questions: (1) An empirical question: Does medical tourism have negative effects on health care access for the poor in the destination country? (2)  The normative question: If so, do home countries or international bodies face obligations to prevent or correct those negative effects, and under what circumstances? (3) The regulatory question: If so, how might they do so?

I discuss some of the development economics and health system design pertaining to the first question and regulatory options as to the third question, but most of the paper is focused on the second normative question. This gives me an opportunity to engage ongoing debates in normative and applied ethics between theories of global justice, cosmopolitan, statist, and intermediate. I discuss the ways in which these theories suggest we may owe different things to those inside versus outside the nation state, or the ways in which the obligations may be activated under different circumstances depending whether those who suffer are our fellow nationals or foreign.  While my focus is on medical tourism, I also show how some of the ideas I develop are applicable to other instances of the globalization of health care such as medical migration (the brain drain).  The goal (you, dear reader, can judge if it is successful) is to have a dialogue between these theories and the concrete medical tourism cases, to see ways in which the theories speak to the cases but also the ways in which the cases identify gaps, ambiguities, and possible divergeny ways of filling the blanks.

 I am currently editing a book for Oxford on legal and ethical issues in health care globalization and starting a new book project on medical tourism specifically. While I have found the global justice literature useful as to these project, I actually think it has many more applications to the work done by law prawfs – for example in immigration law and labor and employment law, among other areas.  Since this law review article represents a part of an ongoing project, I am definitely eager for your thoughts.

Posted by Glenn Cohen on November 7, 2011 at 11:17 PM in Article Spotlight, Books, Immigration, International Law, Legal Theory | Permalink | Comments (7) | TrackBack

This Is Our Story

I'm excited to announce that later tonight, my wife, the incomparable Wendi Adelson, will be doing a book signing for her new novel, entitled, This Is Our Story. If you're in Tallahassee, I hope you'll stop by.

Where: Student Life Cinema, 942 Learning Way (FSU main campus)
When: Monday, November 7th, at 7:00 p.m.
Admission is free and open to the public. Download her e-book here or buy a copy in person! 

And if you're curious about the novel, here are some reader reviews and a description:

This is Our Story follows the lives of Rosa and Mila, two young women from different countries who become victims of human trafficking when unwittingly duped into domestic servitude and commercial sexual exploitation in the American Southeast. Their experiences with the underbelly of globalization here in our own backyard, and the legal battles they wage against their traffickers with their immigration attorney, Lily, are told in their own voices, and hers, in vivid and compelling detail.

Finally, Wendi has been teaming up with some others to blog on issues related to human trafficking and the law, and you can find that great resource over here.

Posted by Administrators on November 7, 2011 at 03:04 PM in Books | Permalink | Comments (2) | TrackBack

Saturday, October 22, 2011

The Retributivist Tradition...and its Future: A Conference on Friday Nov. 4, 2011

If you are in or about New York City on November 4, please consider attending The Retributivist41HaPyMl0ML__SL500_AA300_ Tradition And Its Future at St. John's University School of Law.  The conference will take up many of the chapters in Retributivism: Essays on Theory and Policy (Mark D. White, ed., 2011).  My own contribution to the conference will have to do with an essay I wrote called, What Might Retributive Justice Be?

The conference description follows and the program is after the jump.  Hope you can make it. 

Retributivism as a justification of punishment is a very old idea, with sources in ancient codes of religious law and morality. After a period of dormancy in the 20th century, retributivism is now ascendant again as a theory of punishment, as scholars have reinterpreted the commitment to just desert in novel and provocative ways.

This conference, The Retributivist Tradition and Its Future, brings together leading thinkers in punishment theory to reflect on retributivism's past and present, with an eye toward what retributivism and punishment theory generally might become. Many of the speakers are also contributors to the recently published volume, Retributivism: Essays on Theory and Policy (Mark D. White, ed., OUP 2011), which will also be considered at the conference.

8:30-9:00         Registration/Breakfast

9:00-9:15         Welcome: Dean Michael Simons (St. John’s University School of Law)

9:15-10:45       Panel I: Conceptualizing Retributivism

    Panelists: Michael Cahill (Brooklyn Law School)

    Dan Markel (Florida State University School of Law)

    Kyron Huigens (Cardozo Law School)

    Discussant: Youngjae Lee (Fordham University School of Law)

     Moderator: Matt Lister (Villanova Law School)

10:45-11:00     Break

11:00-12:30     Panel II: Philosophical Perspectives on Retributivism

    Panelists: Sarah Holtman (University of Minnesota, Philosophy)

    Jane Johnson (Macquarie University, Philosophy)

    Mark White (CUNY, Political Science, Economics, Philosophy)

    Discussant: Ekow Yankah (Cardozo Law School)

    Moderator: Larry Cunningham (St. John’s University School of Law)

 12:30-1:30       Lunch

 1:30-3:00         Panel III: Retributivism and Policy

     Panelists: Mark Tunick (Florida Atlantic University, Political Science)

    Luis Chiesa (Pace Law School)

    Marc DeGirolami (St. John’s University School of Law)

    Discussant: Adil Haque (Rutgers School of Law – Newark)

    Moderator: Elaine Chiu (St. John’s University School of Law)


Posted by Administrators on October 22, 2011 at 09:21 PM in Article Spotlight, Books, Criminal Law | Permalink | Comments (0) | TrackBack

Friday, October 14, 2011

Transfer of "Legal Technology"

I just heard a talk about technology transfer (a piece by Jennifer Carter-Johnson).  Roughly speaking, the inventors are scientists with academic positions and the technology transfer process enables inventions originating in universities to be licensed to industry.  I don’t think an equivalent exists in law schools, although maybe this model will be – or has been - explored as law schools search out new funding sources. 

Why no transfer of "legal technology"?  The broad answer might be that it just doesn’t fit with the academic mission of law schools, and raises concerns about academic freedom and how monetary incentives might influence research.  The narrow answer probably lies in what is patentable – do law professors generate anything patentable? 

But my suspicion is that some information generated in law schools is worth good money.  For example, sometimes law professors are like analysts.  A passage from Michael Lewis’s new book, Boomerang: Travels in the New Third World, described Meredith Whitney’s prediction of municipal defaults.  She’s a Wall Street analyst, but the description of what she did to identify this risk rang a bell.  She needed the answer to some question.  When she did the research, she discovered another pattern.  This led to more research and ultimately to a conclusion that challenged common wisdom.  It sounds like what law professors do at least some of the time.

Posted by Verity Winship on October 14, 2011 at 12:17 PM in Books, Life of Law Schools | Permalink | Comments (0) | TrackBack

Tuesday, October 11, 2011

Justice Stevens and State Sovereign Immunity

Lots of folks have been writing about Justice Stevens' new memoir, Five Chiefs, and the various interesting tidbits and/or omissions in/from the book.  One point I haven't seen addressed yet, though, is the book's near-obsession with the topic of state sovereign immunity, especially in its summary of the Rehnquist Court and the Epilogue.  It's quite striking to me, for example, that in a Term that included Wal-Mart, Concepcion, al-Kidd, Bennett, Winn, and a host of other cases (i.e., the October 2010 Term), Justice Stevens singled out VOPA v. Stewart in the book's Epilogue as perhaps the most significant decision the Court handed down last year. 

Don't get me wrong--I've written quite a bit on why Stewart was and is such an important case; I just never thought anyone else agreed with me! More to the point, I wonder if others reading the book had the same reaction that I did--and have any explanation for why, of all the cases with which to end such a story, Justice Stevens decided to go with a little tiny case about the ability of state-created agencies to pursue relief under Ex parte Young? I have my own thoughts, including that, from Justice Stevens' perspective, state sovereign immunity might be one of the more vulnerable bodies of Rehnquist Court jurisprudence going forward (see, e.g., his majority opinion in Central Virginia Community College v. Katz), but am curious if I'm alone on this one...

Posted by Steve Vladeck on October 11, 2011 at 01:04 PM in Books, Constitutional thoughts, Steve Vladeck | Permalink | Comments (2) | TrackBack

Sunday, October 02, 2011


I'm grateful to Dan Markel for inviting me to be an October guest blogger on PrawsBlawg. I am primarily interested in talking about my new book, BREAKING THE DEVIL'S PACT (NYU Press 2011), but your responses and breaking news may well take me in other directions as well.

Breaking the Devil's Pact is a case study of DOJ's effort, by means of Civil RICO, to purge the International Brotherhood of Teamsters (IBT) of organized crime's presence and influence in the union. U.S. Attorney Rudy Giuliani brought the lawsuit in 1988 against the president (Jackie Presser) and general executive board (GEB) memberts of the IBT and some two dozen Cosa Nostra bosses. The complaint alleged a "devil's pact" between the union and organized crime defendants to exploit the union and its pension and welfare funds and to violate the rights of rank and file members. The massive complaint cited scores of past criminal prosecutions for theft, embezzlement, fraud and violence. None of these allegations came as a shock.
Labor racketeering in the IBT had been notorious for decades. Indeed, in 1957 the AFL-CIO expelled the IBT from the labor federation on account of corruption and racketeering. However, there was no positive change in the next 30 years. In 1986, the President's Commission on Organized Crime (PCOC) called the Teamsters (then the nation's most populous labor union) the most "mobbed-up" union in the country and called for a civil RICO lawsuit to impose court monitorship.

You'll recall that in 1988, Ronald Reagan was president. You may not recall that the IBT was the only major labor union that had endorsed his presidential candidacy (twice). Shortly before the lawsuit was filed, 300 members of Congress delivered a petition to Attorney Gneral Meese, exhorting the DOJ not to file the rumored civil RICO lawsuit because it would be harmful to a "free and independent labor movement." (How's that for cynicism?) All the candidates, Democrats and Republicans, except George H.W. Bush, promised not to file the lawsuit. Nevertheless, the DOJ (via Giuliani) did file it, an impressive statement about DOJ's political independence at that time.

U.S. v. IBT was settled in 1989 on the eve of trial. The consent decree stated that there should be no organized crime presence in the union, that association with organized crime would constitute a disciplinary offense, that for the next 5 IBT elections, the president and GEB members would be selected via one person one vote secret balloting by the rank and file supervised by a court appointed elections officer, and that the IBT disciplinary machinery would be wielded by court appointed investigators and adjudicators. The lawsuit in its remedial phase is now in its 22nd year, with no end in sight. The disciplinary prong of the remediation has expelled 500 IBT officers, including some of the most powerful figures in the union. The election prong has produced the most democratic union elections in American history. I argue that by any standard of assessment, U.S. v. IBT must be regarded as one of, if not, the most important organized crime case in American history. A case could also be made that it is the most important labor litigation of the last 50 years. Nevertheless, it has attracted little if any attention from criminal law or labor law scholars. Students are likely to finish a course in federal criminal law without having heard about the case. Similarly, labor law casebook authors apparently do not see it worthy of much, if any attention. Perhaps you have some thoughts about why this is the case?

James B. Jacobs
NYU School of Law


Posted by Jim Jacobs on October 2, 2011 at 07:03 PM in Books, Criminal Law, Workplace Law | Permalink | Comments (2) | TrackBack

Friday, September 23, 2011

Weekend reading in criminal justice and an idea for other areas

My crim law friends at Rutgers have embarked on a very neat new project that I hope will be replicated across fields so as to address the vanishing book review problem.  Here's the announcement:

We are delighted to announce the launch of our new free website, Criminal Law and Criminal Justice Books, which features high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 
The website can be found at: clcjbooks.rutgers.edu 
Please peruse it at your convenience.  We welcome your comments and suggestions.  Please subscribe to the site to receive notice of all new postings, and feel free to forward the link to anyone you think would be interested. Our hope is that, before long, CLCJ Books will become an indispensable resource for scholars, students, and others interested in the field. 
With all best wishes,
Jim Finckenauer and Stuart Green 
Co-editors of Criminal Law and Criminal Justice Books
Check out in particular George Thomas' review of Brandon Garrett's new book and Adil Haque's review of the volume on Retributivism (and don't forget about the upcoming conference tied to that book at St. John's.)

Posted by Administrators on September 23, 2011 at 04:10 PM in Books, Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack

Wednesday, July 27, 2011

Bedtime Reading


If you are in that window of parenting where your kid is too old to have picture books read to them at bedtime, but too young to be able to read chapter books for themselves, I can recommend Lemony Snicket's A Series of Unfortunate Events, in particular Volume One, The Bad Beginning, which has legal maneuverings as one of its principal plot devices. It contains this charming passage, which, if you are a law professor, will allow you to open up a dialog with your little one about what exactly it is that you do for a living:

There are many, many types of books in the world, which makes good sense, because there are many, many types of people, and everybody wants to read something different. … But one type of book that practically no one likes to read is a book about the law. Books about the law are notorious for being very long, very dull, and very difficult to read.

It also records a short judicial opinion, uttered by the fictitious but insightful jurist, Justice Strauss:

"I'm afraid this dreadful nonsense is the law."

And my son still wants to be an veterinarian. What gives?

Posted by Eric E. Johnson on July 27, 2011 at 07:34 PM in Books | Permalink | Comments (0) | TrackBack

Thursday, July 14, 2011

The Space Shuttle's Lying, Derelict Astronaut


As Atlantis is somewhere overhead tracing the last orbits of the Space Shuttle program, I'm thinking about my recent nightstand book, Riding Rockets by former astronaut Mike Mullane. In the autobiography, the three-time mission specialist reveals how the military and NASA tolerated a culture of chronic lying and fraud among its flyer corps. For example, here's how Mullane describes some of his blithe criminal conduct aimed at bolstering his chances in the astronaut-selection process.

In an act of incredible naïveté, the docs at NASA had asked us to hand-carry our medical records from our home bases. ... As the miles passed, I pulled out pages I felt could generate questions I didn't want to answer. In particular I pulled out references to the severe whiplash I had during an ejection from an F-111 fighter-bomber a year earlier. ... I liberated the offending pages from my files, planning to reinsert them on the return flight. I had one very slim chance of getting selected as an astronaut. I wasn't going to let a little thing like a felony get in the way. (p. 2)

I realize that the job of astronaut doesn't have the same need for a moral character requirement as that of lawyer. But it's such a coveted job, you'd think NASA could insist on a modicum of rectitude. After all, unmanned rockets can put up satellites. Half the reason to send real people up into orbit is to have heroes.

Mullane goes on to talk of how he lied, lied, and lied some more to an interviewing psychiatrist:

What would [the true stories of my childhood] have said about Mike Mullane? ... That I was an out of control risk taker? That I scorned rules? There was no way I was going to reveal that history. So I lied. (p. 23)

And did he turn out to be an out-of-control risk taker who was a liability to the astronaut corps? That's the conclusion I have to draw from the description of the re-entry on his second mission into space, aboard Atlantis for STS-27.

According to the checklist I should have been strapped into the mid-deck seat, but there was nothing to do or see down there, so I had asked [Commander Robert "Hoot" Gibson] if I could hang out on the flight deck and shoot some video of the early part of reentry. I would get into my seat before the Gs got too high. (p. 285)

But he didn't keep his deal with the commander:

The clouds appeared to skim by at science-fiction speeds. The sight was a narcotic and I watched it until my zero-G weakened legs couldn't take my weight any longer and I collapsed to the floor. It was beyond time to get to my seat. I pulled myself to the port-side interdeck-access opening and looked down. Uh-oh. I had waited too long. ... I was stuck on the flight deck, its steel floor now my seat, a situation I didn't altogether regret. (p. 287)

Mullane rode the shuttle back to Earth like this, sitting on the floor of the upper deck and unable to stand up, even though he was the person designated in an emergency to operate the lower-deck escape hatch and deploy the slide pole if the crew needed to bail out. Nice, huh? He exposed the whole crew to elevated risk because he wanted to be able to look out the windows.

I might of thought this kind of nonsense would get Gibson and Mullane into trouble at NASA. It sounds like dereliction of duty to me. And you and I both know that doing the equivalent as a passenger on an airliner would get you arrested by the sky marshal and facing jail time. But apparently there were no repercussions for the astronauts. Mullane flew again into space aboard Atlantis and eventually retired to become a motivational speaker. And Hoot Gibson went on to two more shuttle flights and a post-NASA career as a Southwest Airlines pilot. At Southwest, he presumably insisted that all passengers, including those in the exit-row, actually sit in their seats during landing.

All in all, I appreciate what Mullane has done for the historical record by writing his candid book. But reading about Mullane's dubious service has tempered my sadness about the end of the Space Shuttle program. What's more, you know that Mullane is nowhere near to being on the leading edge of deviance in the astronaut corps. Obviously, you'll remember astronaut and convicted felon Lisa Nowak, who drove all night from Houston to Orlando to try to kidnap her romantic rival for the affection of philandering NASA astronaut William Oefelein.

At the end of the day, I am happy to give an increased role to adorable robots that look like Johnny 5 from Short Circuit.


This rover would never tamper with its medical records, and it looks like Ally Sheedy's friend. (Image: NASA/JPL)

Posted by Eric E. Johnson on July 14, 2011 at 05:51 PM in Books, Current Affairs, Science | Permalink | Comments (3) | TrackBack

Saturday, July 02, 2011

The Ikea Effect and Locke's Theory of Property


I'm reading Predictably Irrational a behavioral economics popularization by Dan Ariely. I was struck by how much Ariely's exposition of irrational human attitudes toward ownership tracks John Locke's theoretical justification for private ownership of property. Ariely writes:

[T]he more work you put into something, the more ownership you begin to feel for it. Think about the last time you assembled some furniture. Figuring out which piece goes where and which screw fits into which hole boosts the feeling of ownership. ... I can say with a fair amount of certainty that pride of ownership is inversely proportionally to the ease with which one assembles the furniture ...
(Predictably Irrational, p. 175)

Ariely calls this the "Ikea effect." For me, living with a bunch of furniture I got from Ikea about 10 years ago, I would say the Ikea effect is that the more time I wasted assembling the furniture back then, the greater is my present-day desire to destroy it with an aluminum baseball bat. But anyway, check out what Locke says:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.
(Second Treatise of Civil Government, ch. 5)

Perhaps this suggests that Locke's theoretical justification may have been driven less by detached logic and more by intuition springing from irrational impulse.

(Photo and composite by me; Locke engraving from public domain.)

Posted by Eric E. Johnson on July 2, 2011 at 11:51 AM in Books, Property | Permalink | Comments (4) | TrackBack

Sunday, June 26, 2011

"In Defense of Judicial Elections" - author Q&A

In their book “In Defense of Judicial Elections” authors Melinda Gann Hall and Chris Bonneau do just that – they provide a defense of judicial elections. Their work has been somewhat controversial and so I decided to spice up our Prawfs summer by conducting a very brief “E-Interview” with them on the subject. My understanding is that they are generally willing to engage in some ‘give and take’ in the comments section of the blog. This does not necessarily mean that they will answer every question – it’s their call.

JY - Judicial elections have gotten a lot of media attention in recent years and a number of groups and even former SCOTUS justice Sandra Day O'Connor have voiced their opposition to them. In your book "In Defense of Judicial Elections" you obviously takes a different view - please elaborate.

CB - I think the main difference is that our research and analysis begins from a place of agnosticism and we only make conclusions based on the empirical data.  Moreover, our position is subject to being revised in the future if the evidence warrants.  The vast majority of the opponents of judicial elections are not interested in how they actually work.  They aren't interested in empirically verifying their claims.  And, when people dare to question their assumptions (whether it be us or Jim Gibson or Matt Streb or Eric Posner or anyone else), they simply ignore the evidence and shift their argument.  

MGH: The most significant difference between our book and much of the advocacy taking place on this topic is that we rely on empirics rather than outdated normative theories or unsubstantiated assumptions. Elections certainly have limitations but of the case against them rests on hyperbolic rhetoric or unverified hypotheses.

JY - Aren't you concerned that some of the less desirable aspects of political elections will influence judicial decision making? Won't powerful interests cast undue influence on case outcomes, given that they might have helped finance a judge’s reelection or might do so in the future?

MGH - Recusal standards and disclosure requirements will go a long way toward remedying this problem. However, there is no reason to expect a quid pro quo relationship between donors and judges. Money tends to support candidates who share a group's interests. There is no evidence at all that judges are "bought. We also should acknowledge that there is no way to remove politics from the judicial selection process. Appointment systems, including the “merit” plan, have their own shortcomings.

CB - No more so than some of the less desirable aspects of appointments will influence such decisionmaking.  This is a point we have made numerous times, but bears repeating:  there is simply no evidence--NONE--of justice being for sale.  Moreover, do we really think that "powerful interests" don't have undue influence on case outcomes as, say, the US Supreme Court?  Of course they do.  At least with elections, voters have a choice and can oust rogue judges.  

JY - In recent decades it has become quite clear that judicial elections can be ugly affairs with lots of negative campaigning - doesn't this hurt the judiciary's image - making people see them less as esteemed decision makers and  more as politicians in robes?

MGH - Judges are politicians in robes in some sense, and voters are smart enough to recognize this. Judges have a great deal of discretion,  and their values influence what they do. Also keep in mind that state supreme court elections have been heated for decades, with defeat rates that surpass many other elected offices. If competitive elections, or elections at all, harm judicial legitimacy, there would be obvious evidence of this by now. 

CB: This is a great question and it is a legitimate concern.  However, in a series of survey experiments--in KY as well as nationwide--Jim Gibson has found that negative ads and candidates talking about policy have no consequences for legitimacy.  He did find a negative effect for campaign contributions, finding that campaign contributions do lead to a loss of legitimacy (this is also true for state legislatures).  But, and this is a crucial point, the net effects of elections is still positive. That is, even with the costs incurred by campaign contributions, judicial elections are legitimacy-ENHANCING institutions.  This is a really important finding and undermines the arguments of folks like Justice O'Connor and Justice at Stake. 


Posted by Jeff Yates on June 26, 2011 at 08:23 PM in Books, Current Affairs, Judicial Process, Law and Politics, Science | Permalink | Comments (2) | TrackBack

Thursday, June 16, 2011

Coming soon to a theatre near you ...

"Moneyball" the movie. The moneyball concept gets a lot of play in the realm of academic hiring and performance analysis. Of course, that get's no play in this movie - but if Brad Pitt plays moneyball general manager Billy Beane, then who is Billy Beane in law and what actor plays him in Moneylaw the  movie?


Posted by Jeff Yates on June 16, 2011 at 09:27 PM in Books, Culture, Film, Games, Life of Law Schools, Science, Sports | Permalink | Comments (3) | TrackBack

Friday, June 03, 2011

Summer Reading Lists for Rising 1Ls

Someone recently asked me for help generating some thoughts about reading lists for entering 1Ls. I'd love to crowdsource some serious thoughts about this, particularly with an aim toward bolstering the sections on Current Issues, Supreme Court, and Legal History. If you have access to what your school recommends to rising 1L's please share.  I've listed some thoughts (not of my own) below, but I would love to give this person some more suggestions, so have at it!


Current Issues in the Legal Profession
  • Paul Carrington, Stewards of Democracy: Law as a Public Profession (1999) (Westview Press).
  • Mona Harrington, Women Lawyers: Rewriting the Rules (1995) (Plume).
  • Larry Krieger, The Hidden Sources of Law School Stress
  • Anthony T. Kronman, The Lost Lawyer: Failing Ideals in the Legal Profession (1995) (Belknap Press/Harvard).

Legal Figures

  • G. Edward White, Oliver Wendell Holmes: Sage of the Supreme Court (2000) (Oxford University Press).
  • Gerald Gunther, Learned Hand: The Man and the Judge (1994) (Knopf).
  • Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005) (Times Books).
  • Andrew Kaufman, Cardozo (1998) (Harvard University Press).

The Supreme Court

  • William H. Rehnquist, The Supreme Court (2002) (Vintage Books).
  • Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (1998) (Times Books).
  • Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007) (Random House, Inc.).
  • Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (1979) (Simon & Schuster).

Legal History

  • Anthony Lewis, Gideon’s Trumpet (1966) (Vintage Books).
  • Lawrence Friedman, A History of American Law (2005) (Touchstone).
  • Kermit Hall, The Magic Mirror:  Law In American History (2008) (Oxford University Press).
  • Peter Irons, The Courage of their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (1990) (Penguin).
  • Randall Kennedy, Race, Crime and the Law (1997) (Pantheon Books/Vintage Books).
  • Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (1976) (Knopf).
  • Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction (2008) (Henry Holt).
  • Richard Lazurus, The Making of Environmental Law (2004) (University of Chicago Press).


  • Randy Barnett, The Structure of Liberty: Justice and the Rule of Law (1998) (Oxford University Press).
  • Richard Epstein, Simple Rules for a Complex World (1995) (Harvard University Press).
  • Ronald Dworkin, Taking Rights Seriously (1978) (Harvard University Press).
  • James Boyd White, The Legal Imagination, Abridged Edition (1985) (University of Chicago Press).
  • Edward H. Levi, An Introduction to Legal Reasoning (1962) (University of Chicago Press).
  • K.N. Llewellyn, The Bramble Bush: Classic Lectures on Law and Law School (2008) (Oxford University Press).
  • Cardozo, The Nature of the Judicial Process (1921) (Yale University Press).
  • Grant Gilmore, The Ages of American Law (1979) (Yale University Press).

Legal Nonfiction

  • Jonathan Harr, A Civil Action (1996) (Vintage Books).
  • Edward Larson, Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion (2006) (Basic Books).

Classic Novels

  • Gerald M. Stern, The Buffalo Creek Disaster: How the Survivors of One of the Worst Disasters in Coal-Mining History Brought Suit Against the Coal Company—and Won (1977) (Vintage Books).
  • Harper Lee, To Kill a Mockingbird (2006) (Harper Perennial Modern Classics).
  • Herman Melville, Billy Budd, Sailor (2006) (Simon & Schuster).

Legal Composition

  • William Strunk, Jr., The Elements of Style (2007) (Filiquarian Publishing, LLC).
  • Richard Wydick, Plain English for Lawyers (2005) (Carolina Academic Press).


Posted by Administrators on June 3, 2011 at 07:00 PM in Books, Life of Law Schools | Permalink | Comments (26) | TrackBack

Monday, May 30, 2011

One book?

A recently graduated student of mine sent me a note the other day, asking for a suggestion for one (broadly speaking) law-and-lawyering-related book to read during the few days off he has before starting his bar-exam preparation.  I recommended Kazuo Ishiguro's "The Remains of the Day", which my own teacher -- David Luban -- once recommended to me.  Other suggestions? 

Posted by Rick Garnett on May 30, 2011 at 01:14 PM in Books, Rick Garnett | Permalink | Comments (10) | TrackBack

Thursday, May 19, 2011

Summer Re-reading

I love my Kindle.  (That was an uncompensated endorsement, but Amazon, if you're listening I'd be happy to provide you my taxpayer ID for a 1099.)  One of the things I like I about it is that it makes buying a book seem less momentous -- you get an idea, you search for it on the Kindle Store, and boom, in a minute you're reading the first page.  This has led me to buy books that I otherwise would not have bought, in particular, books I've already read.  Right now I'm re-reading 1984, a book I haven't read since high school.  It's such a rich book, and with thirty more years of life experience since the first time I read it I feel like it's a brand new read.

So here's a fun question to kick off summer pleasure-reading season: what's been your best re-reading experience?   What have you come back to after a period of time that struck you as significantly different, more meaningful, whatever, as compared with the first time you read it?

Posted by Bill Araiza on May 19, 2011 at 11:03 AM in Books, Culture | Permalink | Comments (2) | TrackBack

Monday, May 16, 2011

The Anti-Entry Level Hiring Report

As an excellent counterpoint to the entry-level hiring report, I strongly recommend Samuel Buell, Becoming a Legal Scholar, 110 Mich. L. Rev. (forthcoming 2012), and would  be very curious to hear what folks think about it. I looked for excerpts to pull, but I would have ended up excerpting the whole thing, so here's the abstract:

There is now a literature on how to become a law professor. The first book-length treatment of the subject, Becoming A Law Professor, displays a common fault of this literature in directing candidates’ focus on process at the expense of substance. The present body of material on the market for new legal academics does not persuade candidates of the necessity of locating their agendas and voices as scholars, much less does it show them how to go about that vital search. It also risks contributing to a tendency of credentialing processes to standardize resumes without improving outcomes. A second-generation literature is needed: on how to become a legal scholar. This Review explains the need for that literature and suggests some directions for it.

This article captures a lot of what makes me uncomfortable about the hiring report, notwithstanding how fun it was to put together. Although do note this excerpt from Buell's article:

I admit to a full share of responsibility in this process of standardizing teaching candidates. Few things irritate me more in the hiring process than candidates who evidence a failure to have consulted the resources on preparing for the law teaching market. If you can’t be bothered to do the basic legwork of using the internet to find out the fundamentals of the market in which you hope to compete, how serious can you be about doing the job you are trying to get? (Watch what I do, not what I say: Read the literature on how to handle the job market in spite of my criticisms of it.)

Posted by Sarah Lawsky on May 16, 2011 at 09:34 AM in Books, Entry Level Hiring Report, Life of Law Schools | Permalink | Comments (6) | TrackBack

Thursday, May 05, 2011

The Free, Open-Source Torts Compendium


Last year I blogged about my project to create a free, downloadable casebook for torts. The completed casebook, broken into two volumes with an online appendix, is done and online. At James Grimmelman's suggestion, I will write a teacher's manual over the summer, which will be available to instructors upon request.

If you are in the market for a new torts casebook, mine has the following features: (1) It's free. And students love free. Paperback copies can be obtained at cost through a print-on-demand vendor (Town & Country in New Hampshire, or one of your own choosing). (2) There are no notes or questions; it's just source material. That may not be a feature as far as everyone is concerned, but I know some teachers like it that way. (3) You can customize the book to your own liking. Just let me know, and I'm happy to send you the Word .doc files, and you can add to, delete from, and change around the content as much as you like. (4) You never have to worry about being blind-sided by new editions, because when I do release a new edition, the old editions will stay online, free, and just as printable and downloadable as the new versions.

My casebook's not for everyone. It's a bare-bones approach. I use it alongside a slim treatise (Understanding Torts by John L. Diamond, Lawrance C. Levine, and Stuart Madden) and a memoir (Four Trials by John Edwards). But if it's up your alley, it's free for the taking. And my archive of syllabi, old exams, handouts, and mindmaps is all on my website. Also, my original slideshow .ppt files are available to any instructor who asks.

Posted by Eric E. Johnson on May 5, 2011 at 10:36 AM in Books, Teaching Law, Torts | Permalink | Comments (3) | TrackBack

Tuesday, May 03, 2011

Recent Developments at the NYU Center on the Administration of Criminal Law

Since January, I've had the privilege and pleasure of being affiliated with NYU's Center on the Administration of Criminal Law, and I thought I'd take a moment to share with you all some exciting recent developments at the Center, which is helmed by Tony Barkow and Rachel Barkow. First, the Center recently published a book via NYU Press called "Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct." The book is a collection of essays on corporate governance and its intersection with criminal justice by leading scholars including: Jennifer Arlen, Sarah Sun Beale, Sam Buell, Tino Cuellar, Richard Epstein, Brandon Garrett, Lisa Kern Griffin, and Vik Khanna.  If you're like me, and long puzzled by the intricacies of punishing in a group context, you might find this book's essays very helpful. You can buy it here.

Second, and equally exciting, an amazing conference the Center organized on "policing, regulating, and prosecuting corruption" recently took place at NYU and you can find video of it here and on C-Span, a network that, as Seth Meyers reminds us, gets more eyeballs than NBC these days. Our own Rick Hills participated in that symposium. By the way, the symposium was also sponsored by the Annual Survey of American Law, and that journal will be publishing the proceedings in a future issue.

Posted by Administrators on May 3, 2011 at 10:23 AM in Blogging, Books | Permalink | Comments (0) | TrackBack

Wednesday, April 27, 2011

"Myth of the Rational Market": Wrap Up

MythoftheRationalMarket pb c

Many thanks to Benjamin Means, Lynn Stout, David Zaring, and especially our author Justin Fox for a terrific book club on The Myth of the Rational Market.  I hope the club will be a resource for folks in the future who are reading the book for class or for enlightenment (or both).

Here's a wrap-up of all the posts for the club:

And if you still haven't picked up the book, you can buy it at:

Thanks again to Justin Fox and all of our commenters.

Posted by Matt Bodie on April 27, 2011 at 09:00 PM in Books | Permalink | Comments (0) | TrackBack

Where modern financial theory is worse than Ptolemaic

MythoftheRationalMarket pb c

Matt Bodie wants to know whether I think "modern financial theory is more like the theory of evolution, Newtonian physics, or the Ptolemaic universe." (I was stumped by the Ptolemaic bit at first, but he explains it well.) Matt also figures that I'd probably say Newtonian physics—that is, it delivers a lot of useful answers, but it fails to explain a lot of important phenomena. Sounds about right.

This happens to be the parallel that people in academic finance prefer, too. So I do worry that maybe it's a little too generous. Modern finance and economics seem to be quite useful in answering small, focused questions. They don't do so well on big-picture stuff. That means somebody exclusively trained in mathematical finance or economics probably won't do a better job of predicting the course of the economy or the stock market than somebody with knowledge of history, politics, psychology, etc. Of course, a monkey throwing darts may outperform both—which would make the efficient markets guys happy. But models that make no room for business cycles or market bubbles maybe aren't the best models to use in trying to understand business cycles and market bubbles.

The most troubled aspect of modern financial theory is probably its approach to risk. Since the 1960s, the argument has been that while it's almost impossible to predict the future price of a stock or other financial instrument, it is possible to say something meaningful about the riskiness of that instrument (that is, the bounds within which that price will fluctuate). This is true, most of the time. It's just never true when it matters most—in times of crisis. And it's not just that financial risk models have a habit of failing to capture these fat-tailed risks. It's that the widespread adoption of risk-management techniques based on these models seems to bring on the very crises that invalidate those models. So in that aspect, modern financial theory seems worse than Ptolemaic. (Help me out here, people: what's a worse-than-Ptolemaic example from the history of science?)

Posted by Justin Fox on April 27, 2011 at 01:14 PM in Books | Permalink | Comments (6) | TrackBack

Tuesday, April 26, 2011

Fox on the Wavy Line between Scholarship and Business

Myth of the rational market

One thing you notice about the difference between finance and law scholarship is that while the legal corporate guys don't practice, except as expert witnesses, or maybe with a board gig or two, Fox's book interestingly depicts the way that financial research and financial ventures often are twinned.  Ben Graham did value investing in the 30s and 40s, when there was a lot of value to be had - and he downed tools when he concluded that the values had been priced away.  Andrei Shleiffer and Robert Visny co-founded LSV Asset Management.  Robert Merton and Myron Scholes helped set up LTCM, Fama is associated with Dimensional Fund Advisers, and so on.  I don't think it's in the book, but Bob Shiller recently started an investment bank and took his Series 7 exam.

The list of leading legal scholars who litigate is much lower.  Fox notes the irony that all these believers in the efficient markets hypothesis essentially set themselves up to beat the market (p. 225).  I think it is also interesting to compare the relationship between the two parts of academia and their constituency in the real world.  The legal academy is completely dependent on the willingness of the legal community to enforce guild rules requiring people to go to law school.  But, as judges Harry Edwards and John Roberts have sighed, legal scholarship no longer is of much use to practitioners.

Finance looks a little different.  The ability to turn out employees for financial firms sure must help the finance departments.  And in very real ways, what said departments do is to figure out things you can or cannot trade on.  Then, some of them even go trade on it.  But the relationship is fraught.  The "real world" tends to get a chip on its shoulder when dealing with academics (less the case with law school, I think), while academics crave the respectibility of pure science, rather than the grubbiness of, as Larry Summers puts it, "making ketchup."  Fox is good on exploring that relationship, as he must, given that he is reounting the history of an idea (in scholarship), and its eventual triumph (at least in the views of academics who kept testing it against asset prices, if not actual money managers).

I don't really have a bottom line with regard to these law and finance institutional relationships, but I will say that law and finance have had a very good run in the academy since the 1980s, and I think part of that good run - growing pay, prestige, &c - is due to the fact that both have strong constituencies outside of it.  You can't say that about sociology - or even about much of the rest of contemporary economics.  

Posted by David Zaring on April 26, 2011 at 02:41 PM in Books | Permalink | Comments (0) | TrackBack

Scientific Theories and the Efficient Market

Myth of the rational market

Like David, I thought the theoretical core of Myth was the material on Thomas Kuhn's The Structure of Scientific Revolutions.  Although Myth is an intellectual history of a theory, it really cares about the people who devised the theory, and it spends a lot of time on how they -- as individuals -- shaped its various permutations.  It is careful in its history/sociology; it explains the importance of a particular journal to the field, for instance, and how it acquired that reputation.  Now, however, the theory is in crisis.  And the obvious question is: what next?

It's unfair to demand that an author to tell us more about the future at the end of a history.  After all, that is Myth's criticism of  the efficient capital markets hypothesis (ECMH), in a sense -- you can't depend on the past to predict the future, especially when you're predicting human behavior.  I think the book's assessment of the present is very fair: it shows an uneasy uncertainty, with both "sides" in the debate conceding ground to the other.  But it leaves open the question that remains on everyone's mind: where do we go from here?

I'd like to ask a related but more specific question: how do we go from here?  Do we use the methodologies that developed ECMH to try to figure out what went wrong and move from there?  Or do we take an entirely new approach?  I would be interested in Justin's take on the high-level mathematical theory that drove ECMH and its offshoots.  Do we go back to the mathematical drawing board?  Or do we now turn to empirical social psychology?  Or neuroscience?  Or moral philosophy?  Or some mish-mash of everything?

I think part of what Myth is saying is that we have to be more ecumenical, more open to insights from outside the academic mainstream.  Fox's harshest criticism in the Afterword is for the "mindless conformism" that led economists to assume the ECMH was the only answer.  But academia is driven by methodology, and by differentiating between "good" methodologies and "bad."  Can economic theory as taught in grad schools today take us to the new answers?  Or do economists need to look outside, like Thaler did with Kahneman and Tversky, to find a new approach for the future?

I guess, if I were to frame this in analogies, I'd ask Justin whether he thinks the modern financial theory is more like the theory of evolution, Newtonian physics, or the Ptolemaic universe.  Evolution is still regarded as the scientific consensus, but it initially spawned political outgrowths (e.g., eugenics) that mistakenly carried the ramifications of the theory too far.  In contrast, much of Newtonian physics still applies, but the theory of relativity has debunked some of its further outreaches and, in so doing, changed some of our basic assumptions about how the world works.  And the Ptolemaic universe is now viewed as a crude and simplistic approach that was, perhaps, the best guess at the time, but was wildly incorrect.

Based on my reading of the book, I would guess that Justin would compare ECMH with Newtonian physics.  ECMH will continue to provide the core of future research, but some of its maxims will be disproven and reworked along the way.  So we are still waiting for the "theory of relativity" to come to economics.  But this would imply that economists are the ones to reform economics, just as physicists reformed physics.  Physics is a science of natural phenomenon, while economics is all about human behavior.  Perhaps "economics" needs more non-economists to refine or even rethink some of its models.  That would seem to call on social psychologists and neuroscientists, or even sociologists, biologists, and/or computer scientists, to rework our understandings of how the mind works within the economic structure.  Can these insights be incorporated into economics as it is currently framed?  Right now, from this vantage, it is impossible to imagine economics without mathematical models.  Can we have models without oversimplification?

Posted by Matt Bodie on April 26, 2011 at 01:51 PM in Books | Permalink | Comments (1) | TrackBack

Just How Mythical Is the Rational Market?

 MythoftheRationalMarket pb c

The Myth of the Rational Market has lots and lots of people in it, and it's not as polemical as the title makes it sound. These observations came up repeatedly in yesterday's posts—which I found very interesting because they both reflected choices I made early in the process of writing the book. Same goes for David Zaring's question: "Should You Be Assigning the Myth of the Rational Market To Your Class?" (Note from my wife, a law school grad: yes yes yes yes!) 

Myth was not a financial crisis book. If I had turned the manuscript in on time, it would have been published in 2005. Back then, I figured that getting mainstream attention for the book was a long shot, so I needed to write it in a way that would appeal to professors at business schools, law schools, and elsewhere who might assign to their student. I figured that meant (1) not paring the cast of characters down as much as I would have if optimizing narrative flow had been my only concern and (2) not calling people idiots.

I still did leave lots of interesting and important scholars by the wayside. The omission that continues to bother me the most is probably MIT's Andy Lo. He's been one of the most nuanced and constructive critics of the efficient market worldview, and in early drafts of the book he played a significant role. As I pared things down, though, his story mostly disappeared. Then there's the stuff that I just plain missed, like the 1977 Edward M. Miller paper that Lynn Stout discusses. But the goal was to have most of the major papers and scholars that someone in the field should know about represented in the book, rather than just picking four or five people to focus on.

As for my studied neutrality, I wasn't that neutral. Gene Fama feels pretty strongly that I painted him as the villain, while Dick Thaler, Andrei Shleifer, and Larry Summers seem happy enough about how the book turned out. (I'm still not sure whether Bob Shiller, another major figure in my narrative, is aware that the book exists). But yeah, I wanted people on both sides of the rational-market divide to be able to read the book and find it useful.

So what do I think about the efficient market hypothesis? That in certain contexts it's really smart and useful, and in others it's silly and dangerous. Second-guessing the judgments of financial markets is not something to be done lightly, and most of the time most of us are better off not trying to. But that's different from saying that financial markets are always right, and will always steer economies optimally as long as they are freed from government interference. The first claim is one of modesty, the second of hubris. Yet both have been made and continue to be made under the banner of the efficient market.

Posted by Justin Fox on April 26, 2011 at 08:50 AM in Books | Permalink | Comments (0) | TrackBack

Monday, April 25, 2011

The Market Myth

For initiates, as Fox shows, the idea of the rational market seems to have arrived with the force of revelation:  “After about ten minutes it just hit me, this has got to be true.  The idea for me was so powerful; I said to myself, ‘This is order in the universe.’” (105) (quoting Rex Sinquefield, MBA student at the University of Chicago circa 1970 and former Catholic seminarian).

To the extent that the idea of the rational market is not just an ordinary factual proposition but a framework for ordering experience—something that “has got to be true”—then it becomes difficult to evaluate.  Perhaps this is why Fox’s title describes the rational market as a “myth.”  The word choice suggests that the rational market is more than a false belief.  When faced with a myth, we are more likely to ask whether it is useful than whether it is literally true.  A myth is a way of explaining a natural or social phenomenon that makes it part of a broader world view, investing it with symbolic value that can legitimate and reinforce norms of behavior.  The interpretation of myth, therefore, cannot be separated from the human context in which it arises.

Fox appears to take this approach.  He observes that the straightforward problem with the theory of the rational market is that it was clear all along “that price movements also sometimes reflected false information, incorrect interpretation, and plain old mood swings.” (102)  Yet, rather than dismissing the rational market idea as utopian economics, Fox maintains that the “unwillingness to give up on theories even when their underpinnings had been largely demolished was, like so many things about rational market finance, not entirely crazy.” (235)  As Fox recounts, economists have made important advances using the rational market as a guide, even if their fundamental assumptions were shaky at best.

In the end, Fox concludes mildly that the rational market can help shape individual judgment but should not “substitute” for it.  There is more to say about the relationship of myth, financial theory, and markets, and it is a sign of the quality of Fox’s book that it rewards the reader’s attention and invites further inquiry.  Given space limitations, I will simply close with a question:  does the rationality of the market depend upon who is asking?  Finance scholars, investors, government regulators, bankers, and taxpayers may have different perspectives.  After all, a theory that usefully motivates academic research can still prove destructive if let loose in the world.

Posted by Benjamin Means on April 25, 2011 at 08:31 PM in Books, Corporate | Permalink | Comments (1) | TrackBack

Should You Be Assigning The Myth of the Rational Market To Your Class?

Myth of the rational market

Tomorrow, I'll look more at a particular aspect of the The Mythof the Rational Market.  Today I want to look at the big picture, which I will do by asking whether this intellectual history of a scholarly movement - one almost entirely composed of economists, as Matt and Lynn's posts have observed - belongs in academic articles and on syllabi.  It's a great account, and certainly synopsizes the right people.  I could see it working very well at Wharton, particularly in a non-required, paper-oriented course.  Moreover, because I'm a fun loving guy, I recently listened to Robert Shiller's basic finance lectures at Yale, and many of the economists covered in the course - Holbrook Working, Modigliani, Fama and French, &c - are in the book, so it could be the right kind of supplement for hardworking students in survey courses too. 

The book is focused on finance.  We don't get too much of "Fama lifts weights every day," or "Merton Miller never did stop talking about the enormous marlin that got away from him and Hemingway off of Cuba."  I actually like those stories, and find that they help me to keep straight the arguments between the weights guy and the distance running guy, or whatever.  And so while no one wants cute overload, my personal taste for cute was not met by the book - though, that's also a reason why the book works in an academic context.

What about the method?  Well, you have to buy into the concept of intellectual history in the first place, but one of IH's huge methodological problems, selection bias, is mitigated by Fox's very large (to my mind, quite comprehensive) cast of characters.  I think there's a patina of Thomas Kuhn's Structure of Scientific Revolutions here, which is discussed most on pp.203-05.  Finance got quantitative and rationalist in an effort to understand an important phenomenon that many market participants - the scientists working under the old paradigm - were getting exactly wrong by speculating, following charts, and possibly even value-investing.  Many low hanging fruit were picked.  And now, Fox concludes, we're still in the world of Ptolemean epicycles, given that the first thing that all behavorial economists say is that markets work.  Here's his winning summation: "The creator of the efficient market hypothesis no longer believed that prices were right, while some of the efficient market's fiercest critics found themselves teaching in the classroom that ... prices were right" (p. 300).  I'd like the book even better if we had an even stronger sense of what they external forces that drove the turn to rationality in the first place, and its takeover.  Was it science envy?  Soemthing technocratic about the 20th century?  The usual expert conspiracy against the laity?  If Fox has a view, I think he held it close, which makes the book difficult to sum up in a bumper sticker, if that sort of thing is to your taste.

Posted by David Zaring on April 25, 2011 at 06:43 PM in Books | Permalink | Comments (1) | TrackBack

A Cast of Thousands


There are fifty people in the "Cast of Characters" at the end of The Myth of the Rational Market.  I get the feeling, though, that perhaps this was the publisher's limit.  "Thousands" is an exaggeration, but there are dozens if not hundreds of folks running through this book.   I read the "Cast" before digging in, and I have to confess to some skepticism that these people would all be brought to life in a vibrant yet manageable way.  But I think the book pulls it off.

Explaining finance theory through people is a brilliant but well-nigh impossible approach.  The Scylla and Charybdis of this enterprise are simplifying things into banality, on the one side, or swirling down too deep into the complexity on the other.  The book treads closer to the complexity, which -- as an academic -- is where you want the error to be.  But I think both experts and interested non-experts will be able to engage with this tome on its own terms.  

Myth is focused on the characters.  From the colorful Irving Fisher and the overlooked Holbrook Working, up through the indefatigable Eugene Fama and the chastened Michael Jensen, Myth brings the people behind the theories into vivid display.  Like Lynn, I might have liked to see the book take on another academic or two.  Jensen's work was incredibly influential on the law of business and finance, and Henry Manne's article on the market for corporate control gets its appropriate due.  But the real "translators" for the finance literature in law were Frank Easterbrook and Daniel Fischel.  Fischel's book on Milken is mentioned in passing, but The Economic Structure of Corporate Law was critical in making finance theory into corporate law maxims.  In addition, it might have been nice to see a digression into Coase, Williamson, and transaction cost economics.  But this really would have been a digression in a book focused more on the stock market than the firms that make up that market.

 Fox's editors are probably rolling their eyes right now, as "more academics" is probably not what they were looking for.  Indeed, it is remarkable how well the book caters to the interests of an academic crowd while at the same time remaining readable and engaging.  With one or two exceptions, we learn almost nothing about the character's personal lives, but their intellectual lives are brought into striking relief.  We learn enough personal details to remember them without losing the focus on the theories that are the true subject of inquiry.  I loved Myth's engagement with ideas -- it is fascinated by the details of CAPM, the Black-Scholes(-Merton) pricing model, and behavioral economics, to name a few.  Despite its subtitle, it is more interested in theory than in practice, and it does just about as good a job at explaining the intellectual history of the efficient capital markets hypothesis as I think could be done.   But it does so by discussing the people involved, and how their careers were shaped by theory.

In a follow-up post, I want to discuss what the book concludes in terms of theory, and push a little bit on the book's ultimate message.  But I would strongly encourage those who know the models, or want to know the models, to get the better understanding that Myth provides.

Posted by Matt Bodie on April 25, 2011 at 11:52 AM in Books | Permalink | Comments (0) | TrackBack

Lynn Stout on "The Myth of the Rational Market"

Here are Lynn's thoughts for the Club:

The Myth of the Rational Market is a book about the intellectual history of financial theory.  Described thus, you might think it would make readers’ eyes glaze over.  But Justin Fox makes the intellectual history of finance fascinating: full of drama, intrigue, conflict, triumph, and defeat.

He accomplishes this by focusing not only on the key ideas of 20th century finance, but also on the personalities who developed those ideas.  (Like any good playwright, Fox provides his readers with a  “cast of characters.”)   He describes the tragedy of Irving Fisher, “the greatest American economist of the first half of the twentieth century,” now remembered mostly for his ill-timed 1929 prediction that the stock market had reached a “permanently high plateau.”  He recites the intellectual odyssey of Michael Jensen, a guru of market perfection who became enthralled in his later years with the idea that markets rely on the integrity of those who participate in them.  And—delightfully and at last—he tells the tale of Jack Treynor.  (Treynor’s story is known to many in finance, but few outside it.)  In the late 1950s, Treynor, then a consultant at Arthur D. Little, developed what is now widely conceded to be the first Capital Asset Pricing Model (CAPM).  He showed his draft to John Lintner of Harvard Business School, who passed the manuscript on until it eventually found its way into the hands of William Sharpe, a UCLA economics doctoral candidate.  Sharpe published his own version of the CAPM in September 1964, and in 1990 was awarded the Nobel Prize in Economics for his work.  (Note to Nobel committee: Jack Treynor is alive and well in California, and it’s not too late to call.)

With stories like these, almost any good writer could make finance palatable.  But Fox does more; he not only brings out the personalities of 20th century finance, he also brings out the “personalities” of finance theories themselves, including the tantalizing utopia of the rational, efficient market that prices all stocks at fundamental value; the Black-Scholes options pricing model with its hidden but fatal assumption that the future will repeat the past; and Jensen’s “agency cost” theory of the firm, the intellectual origin of modern managers’ obsessive quests to increase “shareholder value.”  He shows how these ideas eventually were challenged by, and have had to wrestle (often to an uneasy standstill) with new theories, like the idea of irrational investors whose emotions and “adaptive expectations” cause them to trade too much and to systematically under- and overvalue securities.

It should now be apparent I am a serious fan of this book.  Nevertheless, like any good reviewer, I feel compelled to suggest there was one more story, and one more personality, that Fox perhaps should have mentioned.  This is the tale of how finance theory has tried to ignore the problem of “heterogeneous expectations,” meaning the reality that investors subjectively disagree with each other in their predictions for the fate of the market.  When William Sharpe first tried to publish his CAPM, it was rejected by reviewers at the Journal of Finance on the grounds that his assumption that investors  have “homogenous expectations” (make identical estimates of the risks and expected returns from different securities) was too unrealistic.  Sharpe managed to convince the Journal the CAPM still had value, and his paper was eventually published.  Ever since, most modern finance models explicitly or implicitly assume homogenous expectations.  But in 1977, Edward M. Miller published a ground-breaking paper in the Journal of Finance arguing that if investors disagreed, one could expect bubbles and crashes and stock prices might easily fail to capture fundamental value.  Because Miller’s paper flew in the face of the idea of a rational and omniscient market, it was highly controversial, and he has since moved away from the shark-filled waters of finance to write on less contentious topics, like IQ and race.  But after the Crash of 1987, Miller’s idea of investor heterogeneity has begun to creep back out from the shadows, and a number of contemporary theorists have been bold or foolish enough to explore how it might explain anomalies like the 1990s tech bubble, or stock markets where every share trades hands on average every four months.

But this is only very, very small defect in an otherwise wonderful volume.  The Myth of the Rational Market is now full of my notations, and I plan to keep it on the shelf near my desk for many years. 

Posted by Matt Bodie on April 25, 2011 at 10:52 AM in Books | Permalink | Comments (1) | TrackBack

Book Club on "The Myth of the Rational Market"


Welcome to the Book Club on "The Myth of the Rational Market: A History of Risk, Reward, and Delusion on Wall Street," by Justin Fox.  We'll be starting with contributions from Benjamin Means, Lynn Stout, David Zaring, and myself, with reactions from Justin Fox to follow.  We hope you'll particpate in the comments.

Posted by Matt Bodie on April 25, 2011 at 08:26 AM in Books | Permalink | Comments (0) | TrackBack

Tuesday, April 05, 2011


Bluebook 04

The Bluebook is such an unwieldy document, its editors have now created BlueTips, a web feature that allows the Bluebook editors to disseminate "authoritative guidance to reasonable questions on subjects covered by The Bluebook."

That's weird, isn't it? Because one would think the whole point of The Bluebook is to provide "authoritative guidance" on the subjects it covers, especially being as how it describes itself as "systematic," "definitive," and "a uniform system."

Take a look at this BlueTip:

Under rule 18.2.2(b)(i), main page titles are abbreviated in accordance with table T13. Where a main page title is better characterized as an institutional author, however, abbreviate in accordance with rule 15.1(d).

I mean really, someone needs to stop these people.

Posted by Eric E. Johnson on April 5, 2011 at 03:42 PM in Books | Permalink | Comments (0) | TrackBack

Monday, March 21, 2011

Academic Satire Recommendations

It is possible that you are at that point in the semester, or in your career, when you are in need of academic satire in literary form.  Although many would recommend Lucky Jim by Kingsley Amis, it has scenes of gratuitous cruelty in the beginning chapters that I can never get past. [I feel the same way about certain episodes of Seinfeld involving George or most episodes of Curb Your Enthusiasm.] It does contain a brilliant description of a hangover, though. Some would recommend Jane Smiley's Moo, which has a brilliant opening chapter but doesn't follow through.  Instead, I prefer David Lodge's Changing Places, which has a brilliant scene about a "rising star" English professor whose tenure prospects are scuttled when he admits during a drinking game at a faculty party that he's never read Hamlet.  I also love Richard Russo's hilarious Straight Man, which captures the inanity of (certain) faculty meetings perfectly.   

Posted by Lyrissa Lidsky on March 21, 2011 at 07:42 PM in Books, Lyrissa Lidsky | Permalink | Comments (11) | TrackBack