PrawfsBlawg

Living Outside the Paradigms

Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines.  (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it.)  I was explaining this yesterday to my father-in-law, who is visiting us here in Michigan.  He's a really bright guy (a lawyer), and loves ideas, but he's not a scholar by any means, and so I'm obliged to use plain English.  It went like this.  If you are constructing a thesis that borrows from many disciplines, how much of an expert in each discipline do you need to be?  Moreover, if it's really original work, who is going to be able to judge whether the work constructively pushes the inquiry along, or is simply bullshit?*  In other words, if you are going to write in law and phrenology, do you have to have the equivalent of a professional certification (whatever that is) in both disciplines?  And if you do, have you been sufficiently co-opted by both disciplines so as to kill off whatever inclination you may have had to do "out of the box" thinking?  That's the dilemma, and I don't think it's any more resolvable by way of a silver bullet than most other long-standing irresolvable debates (like "Tastes Great" or "Less Filling").

At the recommendation of frequent commenter, A.J. Sutter, I recently started a book by Hamline University philosopher of science, Stephen Kellert, entitled Borrowed Knowledge:  Chaos Theory and the Challenge of Learning Across Disciplines.  At the same time, Brian Leiter linked the other day to my friend Rob Kar's recent review (in the Notre Dame Philosophical Reviews) of Brian's Naturalizing Jurisprudence.  The fun in reading something like Brian's work, or Rob's review of it, is the deep dive into a long-standing dialogue; in this case, the jurisprudential debates over the last century or so over the possibility of explaining, philosophically, scientifically, sociologically, or psychologically, how judges go about making law, and more fundamentally, what law is.  Nevertheless, if your intuition happens to be that looking at what judges do is like looking backwards through a telescope (i.e., not wrong, but focused on a very particular instance of how humans manage to order their affairs in the whole scheme of life, law, norms, and business), then you keep bouncing out of it with something of a "so what?"  The "so what?" is likely the reaction of most normal people to most of what philosophers, historians, literary critics, and other sojourners in the humanities do anyway, but I'm a lawyer-practitioner who somehow plopped into the academy, for God's sake, and like Guy Noir, trying to find answers to life's persistent questions.  I thus feel compelled to figure out what might bridge us from the relatively pure jurisprudence of a Leiter or Hart or Raz to what I spent more than a quarter century doing in the real world, which was legal work, but most of the time not involving judges.

More below the fold on the opposite of the deep dive - borrowing from one field to another.

A couple of years ago, I got hung up on Gödel's Theorem, which is one of the groundbreaking instances of pure thought in the last century.  For the uninitiated, Bertrand Russell and Alfred North Whitehead purported to reduce all of mathematics to a set of foundational axioms and rules of inference, focusing primarily on sets and numbers (cardinal, ordinal, real).  Kurt Gödel, a member of the Vienna Circle, constructed a lengthy proof, the purpose of which was to show that any complete complex system of formal logic, like arithmetic (particularly as encapsuled by Whitehead & North's Principia Mathematica), contained propositions that were formally undecidable within the system (i.e., that they could not be proved either true or false using the axioms and rules of inference).  In other words, the system could be either wholly consistent or complete, but not both.  The proof method involves a formal version of the Liar's Paradox, in which the following phrase translates into numbers:  "[Is not provable] is not provable."  In other words,  we get to the point where the system loops on itself, and tells us in formal terms, that the  proposition "is not provable" we've postulated within the system, and then working only from the system's basic axioms and rules of inference, and thus appearing to be provable, is not provable.  That's what makes it a theorem.

This is a mind-bending thing to contemplate, and Douglas Hofstadter's Gödel, Escher, Bach is perhaps the most famous attempt to derive metaphors from it.  But is it an effective metaphor for reducibility or limitations on knowledge, or other epistemological or metaphysical insights?  Gödel himself, like many mathematicians, was something of a Platonist. 

When I was fiddling around with this (and there's a lot of fiddling in this area - do a Lexis or Westlaw search in law reviews on "Gödel"), Larry Solum, ever wise, voiced the cautionary message:  the formal logicians are very skeptical of attempts to extend metaphors from formal logic into other areas.  But are the logicians entitled to define the extension of the metaphor?  That's what Kellert's book is about, but more generally as to all disciplines (including a discussion of the question "what's a good metaphor?").  In particular, he looks at metaphors to chaos theory, something HE knows about, in economics, law, and literature.

Well, I'm just diving into this, so more to come later.

* I may have a special interest in this.  I have a book proposal under review with a major university press.  The following comment from one of the anonymous reviewers is one that I kind of cherish:  "It is clear the author has a special range of interest and expertise, and this book weaves the author’s unique range of interests together with purpose.  The problem is that not many people share the author’s range of interests."

The Shoes

I have not had much time (really much energy) to post from Budapest - last week it was in the low 90s, and teaching two hours a day in the heat of the afternoon just about did me in.  My wife, Alene, was traveling separately in Italy and we met in Vienna over the weekend. 

This has nothing to do with law professoring or teaching.  It's also more of a downer than I mean to convey generally about Budapest, which, other than the heat, has been just fine.  This is, however, the kind of thing one runs into in Europe from time to time.

Walking home from dinner we saw one of the most moving Holocaust memorials I can recall, which somebody described to Alene this morning (the grandmother of the young woman who described the event had survived it).  In 1944-45, Hungarian Jews were lined up on the wall of the Danube and pushed or jumped or shot to their death in the river below, but only after being ordered to remove their shoes, which had value to the Nazis.  The picture at left is of the memorial created in 2004.

Budapest has one of the largest Jewish communities in Europe to have survived the occupation.  While most of the Jews in Hungary outside of Budapest were deported to Auschwitz, the ghetto in Budapest was not exterminated (akin to Cracow or Warsaw) because the Germans simply did not have enough time.  This was because the actual time of occupation was relatively short (the year before the end of the war, Hungary having been an Axis country).  Hence it was one of the few ghettos to have been liberated by the advancing Red Army.

Along the same lines, when I worked for AlliedSignal, the headquarters of the Bendix business, which had been in France since the 1920s, was in the Paris suburb of Drancy, which is near Le Bourget Airport.  Drancy had two claims to fame.  First, it was the home of ardent French communists (our facility was on the Rue de Stalingrad).  Second, it was the site of the deportation center for French Jews rounded up by the Nazis.

Complexity, Judgment, and the Subprime Crisis - The Hedgehog's View

At the end of April, Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, organized a fascinating day-long colloquium on issues of complexity arising in the current financial crisis.  Among other presentations, Barry Schwartz from Swarthmore gave a talk on "the paradox of choice" (i.e., more choice, or more complex choice, doesn't necessarily make consumers happier), and Joe Grundfest gave a luncheon keynote.  One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything?  My analogy was this:  if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe?  I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys?  And even if there is, do we want to prescribe it?  Maybe we like the booms enough to bear the busts!  To keep the analogy going, there's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?

More on the hedgehog below the fold.

One of my most treasured Suffolk colleagues has suggested that I am a hedgehog, in the sense of the Greek saying (appropriated by Isaiah Berlin) that the fox has many clever ideas, but the hedgehog has one big one.  My big one (such as it is) is placing the canard "thinking like a lawyer" into the broader category of how people make sense of the world.  (This comes, I think, from spending so much of my professional life as a lawyer not surrounded by other lawyers.)  Nothing provokes this kind of reflection like great calamities, whether they are oceanic or financial tsunamis.  In a nutshell, the question is how we assess what happened against two very different kinds of "oughts":  (a) the normative "ought" of our sense of the way a just world should work, and (b) the descriptive "ought" that a scientist imagines when she comes up with a hypothesis of explanation that has yet to be borne out by experiment.  My working thesis is that thinking like a lawyer - somewhere between advocacy and truth-seeking - gets this all jumbled up.  What lawyers do mostly is look backwards and assess cause-and-effect in a particular way, and make implicit (and not necessary correct) assumptions about predicting the future from what happened in the past.  To put it otherwise, my hedgehog concern deals with difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty. 

The result (how I spent my summer vacation) is The Epistemology of the Financial Crisis:  Complexity, Causation, Law, and Judgment, in which I've argued this is mostly an epistemological crisis - a crisis of faith in science and algorithm as against the ongoing irreducibility of judgment, whether our own or those to whom we delegate it.  In short, it's scary when we thought we had it nailed, and it turns out we don't know what we don't know.  (I apologize for the use of the word "epistemology" but I like it, despite the warning of a good friend that it's a signal of a high "crap factor.")  There's a little something for theorists of all kinds in there, including a critique of Michael Moore's new book Causation and Responsibility (the first extended treatment of causation in the law since Hart and Honore), Adrian Vermeule's Judging Under Uncertainty, and Richard Posner's A Failure of Capitalism. 

The Vacuous Private Law of Homeowners' Associations (Below the Fold) After Vacuous Reflections About My Vacuous Life

Here we are, back for the fourth summer stint on PrawfsBlawg.  It's hard to believe, when Dan first invited me to do this, in July, 2006, I was an outsider to the legal academy looking in (per Bob Uecker, "gosh, they're having fun in there.")  Also, Twitter was unknown.  Twitter has done a lot to focus my blogging, because, call me an old whatever, but I can't believe anybody gives two hoots about the mundane details of my life, whether by blog entry or tweet, something I wasn't considering back in 2006 while in a New Orleans carwash watching what looked like melted rainbow sherbet ooze all over my car.  Steve Bainbridge seems to be able to get away with food and wine, but he seems to know what he's talking about.  I try to maintain a connection to something legal (or, if not legal, funny). 

If I were inclined to vacuous reflections about life, however, I would extol the pleasures of not of litigating, but of home brewing beer, a subject touched upon in these parts recently.  My son, Matthew, and I are on our  third batch of the summer, having invested $100 in the basic tools of the trade.  Our first 43 bottles were an Irish stout recipe, which we named "Max and Annie's Jewish Stout," after our two dogs.  We've since moved on to "Max and Annie's Michigan Porcupine Pale Ale" (a Sierra Nevada Pale Ale recipe), and "Charlevoix Steam Beer," which is presently fermenting in the crawl space where it is cool.  Our plan is to lay down a carboy full of mead for a full year in a few weeks.  This is a stretch but the legal connection is that I can't post the labels, because I am positive at least the second two violate a whole raft of copyright and trademark rights.

But enough of me.  Let's go below the fold where YOU can hear me whine about the governance of homeowner's associations.

We spend the summers in Charlevoix, Michigan, where we bought a lot sixteen years ago, and built a house twelve years ago.  In Michigan, there is something called a "site condominium," which is basically another way of imposing regulations in a subdivision of free-standing homes, and that's what we have.  There are thirty-six lots, and common elements, which consist of two roads and landscaping, and a beach lot with a removable "Brock Dock" through which residents not on the lakeshore itself have access to the lake.  You own your own lot and house in fee simple absolute, but the lot is established pursuant to a master condominium deed, which contains the property rules, and which incorporates a set of recorded bylaws, which establish the five-person Board of Directors (classified board - two and three seat classes, elected for two years) and the architectual review board, empower the collection of assessments for the maintenance of the common elements, and set use restrictions such as no short-term leasing, no open garage doors, and no boats, trailers, RVs, etc. left in the driveways.

If you want to experience the thrills of corporate governance in a microcosm, do as I have done and be a member of the condominium association Board of Directors for going on fifteen years.  I would have resigned long ago, except that nobody is as anal about the record-keeping as I am, and so I've been the secretary (and now webmaster) for all these years.  The lesson I take from the experience, as a legal theorist, is the tenuous (vacuous?) relationship among (a) the actual private law of the association as reflected in its governing documents, (b) what people think their actual rights are, and (c) how, when it comes to asserting and defending one's interests as between the law and the lore (or custom), a foolish consistency is the hobgoblin of little minds (see Prawfs guest blogger Brian Tamanaha on Law as a Means to an End).   Take, for example, a matter of no small interest:  the ability to see the lake from your living room if you have a house that is not on the lakeshore.  There are local zoning rules that define setbacks, as well as an architectural review board within the condominium association, but it has been almost impossible to restrain the lakeshore residents from building setback to setback (i.e., very large homes on relatively small lots), so that the space between the houses is a mere sixty feet, filled with fast growing (and kind of ugly) white pines that the original developer planted at the lot lines to keep the place from looking like a landing strip.  But there is no legal right anywhere in the documentation that says you have a property right in your view of the lake.  The only way to control this is through community controls on landscaping (which doesn't help with the stuff that was here before) or an appreciation of the Prisoner's Dilemma we find ourselves living in, and the ensuing need to cooperate.  Nevertheless, I find myself educating a neighbor every year on the fact that there is no legal right to a "view corridor" as it has come to be known.  If there were, I would have already done something about the forest of scrubby white pines that block my view.

Then there is the question of the separation of ownership and management.  We just issued a rule to the effect that there were to be no permanent firepits built on the beach.  You can have fires, but you have to use a portable firepit (they exist), which means that you clean up after yourself, and there's no lingering hot embers for a kid to fall into.  My publication of this rule prompted the following "Berle and Means" response from a neighbor (otherwise, a very nice person - beware the pitfalls of the inference one draws from e-mail):  "Does the board act and make rules based on the good of the people that live here?"  

Well, I could go on, but there is shameless self-promotion yet to be written.

A Theory: Under-Theorization is the Key to the Heretofore Under-Theorized Academia-Practice Divide

Two people whose blog posts and comments I almost always enjoy seemed to disagree about something over at Concurring Opinions.  I think it is an interesting point of entry into why academic and practicing lawyers are often ships passing in the night.  Academics use the term "under-theorized" all the time; I never heard the term in twenty-six years of practice.  This simple point has been heretofore under-theorized.  I'm going to step into the breach with the following theory about under-theorization:  Academics are reductive (indeed, in some cases, radically reductive) theorists; practicing lawyers are not.  Academics seek to theorize - i.e. to provide causal explanation of social events in time and place - in a reductivist way.  The social world is too diverse for highly reductivist theory without specialization; practicing lawyers, on the other hand, have theories too, but the causal explanation is at a level academics would call under-theorized.   

Here's what triggered this.  In his post, Deven Desai extolled the value of summer reading for academics, but added "[o]ne last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument."  A thoughtful and frequent commenter from the real world of practice, A.J. Sutter (why doesn't somebody ask him to guest blog?) begged to differ:

Drilling down and reading voraciously about your area of law can actually be counterproductive. If you're doing transactions, a sensitivity to the nuances of drafting is certainly essential, but a highly detailed knowledge about case law may get you focused too much on pathologies, rather than usual practice. Moreover, it isn't so difficult for a client to find someone who knows a lot about a particular area of law.

What a client cares about is finding someone who understands his or her BUSINESS. The client also cares about finding someone with whom he or she can have personal rapport. (Lest you think corporate clients are "it"s, you will always be dealing with flesh-and-blood human beings, and usually with one key decision-maker, such as a GC or other in-house lawyer if the company is big.)

It so happens that something that I'm reading this summer helps theorize about both views and is the basis of my thesis above.  More on Thomas Haskell's The Emergence of Professional Social Science, after the jump!

Haskell sets modern professional social science, as a subset of modern professionalism generally, in context by studying the rise and fall of the American Social Science Association, the forerunner of modern disciplinary associations like the American Historical Association and the American Economic Association.

Here is my poor attempt to restate his thesis, in a nutshell.  Each of us has a sense (perhaps naive) that we are free and volitional agents, largely able to determine for ourselves the course of our lives; we have, in Haskell's words, "causal potency."  Moreover, until the late 1700s and early 1800s, little about the organization of society undercut the soundness of that belief.  Individuals lived in dispersed and independent communities (by and large), and the cause of things - in the sense of reasoned explanation that made sense of the world, and to the extent educated people thought about these things - was proximate, either in oneself, in one's local community, or in a personal God that determined otherwise inexplicable events. 

Beginning in the 1800s, as the Industrial Revolution and urbanization took effect, educated people (not just academics) came to believe that such explanation required understanding the impact on individuals and local communities of remote causes, in short, cause and effect in an increasingly interdependent world.  With increasing interdependence came increasing specialization - the rise of professions.  The transitional model was the ASSA, a group largely of New England social inquirers, general social philosophers as it were, who themselves were overwhelmed by the next generation of truly professional social scientists.

What Haskell argues is that there is a connection between the rise of societal interdependence and the contemporaneous ceding to professionals (by educated people generally) of the task of causal attribution between events in the world.  My take on Haskell is that he not only makes sense, but that we've not mastered the theory of theorization in more than one hundred years since Charles Peirce, William James, and John Dewey thought about it. 

Haskell says social science is a search for the independent variables of explanatory cause somewhere between the "causal potency" of the individual and First Causes like God:

To engage in inquiry is to search for genuine causation, to shear away merely secondary influences and necessary conditions so as to isolate those factors which, within a given frame of reference, can be regarded as self-acting, causal entities - "independent variables"  As causes recede and as growing interdependence introduces more and more contingency into each chain of causation, the realm of inquiry must expand and the conditions of satisfying explanation must change.  Common sense fails and the claim of expertise gains plausibility.  Explanation itself becomes a matter of  special significance, because the explainer promises to put his audience back in touch with the most vital elements of a receding and increasingly elusive reality.

And when does the pursuit of this chain of causation end?  It's a troubling issue.  Haskell relates that  Herbert Spencer learned as a child to question every cause and "as an adult took to his bed and wore earmuffs to prevent overstimulation of his senses."

There's a kind of Rule of Recognition problem going on here.  In a specialized, professional world, how do you recognize expertise?  Haskell's historical account says professional organizations arose in order to achieve a community of expertise.  For ordinary lay people, lawyers are a prime example of such a professional guild, but modern philosophers and historians and economists and sociologists have their self-certifying guilds as well.  Those particular protocols surfaced, for example, in the form of peer review for publishing and tenure review for advancement.

What strikes me about the current state of legal academia - particularly the debates over interdisciplinary work - is how it resembles the 1890s, in terms of the contrast between the old "gentlemen social inquirers" and the new professional social scientists.   Academic lawyers merely skimming the surface of specialties appear to their more specialized brethren as dilettantes, particularly as the specialists dig deeper and deeper into reductivist explanation.  I speculate (theorize?) that philosophical (Susan Neiman?) or economic (Steven Levitt or Paul Krugman?) or historical (David McCullough or Doris Kearns Goodwin?) public intellectuals are the closest equivalent to practicing lawyers in trying to operate at a level of explanation above the technical, and as such operate either outside or at the very boundaries of the community of academic professionals in those areas.

Lawyers are different, in the sense that there is a vaster layer of the discipline that interacts on a daily basis with the lay community, and must necessarily "theorize" or explain cause and effect that the more specialized and reductive members of the discipline reject as unsatisfying.  The analogy from another Haskell work, Objectivity is Not Neutrality, is apt.  Suppose a legal issue involves why some pipes froze in Duluth and caused extensive damage to a building.  Expert testimony on the physics of water molecules and how the expansion causes by crystallization would burst the pipes would be impertinent, because it operates at the wrong level of explanation.  The pipes burst because the superintendent of the building forgot to turn the heat on!

So now we understand the Deven-A.J. dialogue a little better.  Deven is rightly suggesting what a law professor should suggest:  drill down, learn the details, find the underlying causes, and then the causes of those causes.   A.J. is rightly responding in so many words:  that's not the level of explanation - of causal attribution - that operates between practicing lawyers and their clients (nor, would I add, between most practicing litigators and either judges or juries).

The open question is whether the specialized, professional, reductivist explanation is the better one.  My answer is:  it depends what you are trying to explain.  For a critique of an attempt to use economic theory to explain contract interpretation, see my Models and Games:  The Difference Between Explanation and Understanding for Lawyers and Ethicists, forthcoming this fall in the Cleveland State Law Review, at pp. 29-43. 

Indeed, even old practitioners can get co-opted.  My friend Bill Henderson understandably took me to task in good ol' plain English a couple weeks ago for an unduly specialized explanation of classroom deportment in my syllabus:  "what the hell are you talking about? All those years of practice, and you obscure a simple issue with Kant and Posner."  He (and other commenters) were right, and I dropped it from the syllabus.

The New Formalism Panel

It was a treat merely to be on a roundtable panel with Larry Solum, Randy Barnett, Ekow Yankah, and our moderator, Dennis Patterson, as I've mentioned, to discuss the new formalism.

Larry kicked off with a short summary of what the new formalism was and was not.  Randy followed with a discussion why he began as a contextualist, and, like Jack Balkin, had come to view himself as adopting a "new formalism" (though he was careful to state that it was not how he defined himself - I paraphrase roughly "I don't think I've ever though of myself as 'a new formalist'").  I followed with a discussion of the neo-formalism that Schwartz and Scott adopted in the private law of business contract interpretation, and Ekow closed the panelists' short summaries with a critique of formalism as giving undue weight to the written text, particularly in view of segments of society who may have no ability to influence the drafting of the text.  We then proceed to about an hour of vigorous discussion in which the not-overwhelming-but-not-too-shabby-for-a-panel-in-the-second -to-last-time-slot-on-the-last-day audience participated, moderated pugnaciously by Dennis Patterson.

This was constitutional high theory at its finest, and nobody asked a question or made a comment about textualism or contextualism in contract law.  In fact, about five minutes into the questions, I passed Larry a note saying I would give him $100 if there were a question about my segment, and I never once even came close to worrying about taking out my wallet.

Hmm.  If somebody had, was my promise to Larry enforceable?

Anyway, I've decided to post a redacted form of my comments below the fold.

Here are the comments:

My jumping off point about new formalism is a comment Larry Solum made in the earlier session on Brian Tamanaha’s Law as Means to an End.

We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism. 

In its broadest jurisprudential articulation, this immanence shows up as “justice” or “the rule of law.” The intellectual history of formalism is well-known – the systematic, self-contained, scientific, axiomatic, purportedly deductive textualism of Langdell and Williston gives rise to realism, and its contrasting contextualism.   I think Willistonian formalism in contract law was intended to achieve an immanent norm – that being what my European sociology friends would call juridical justice, or the treatment of like cases alike.   And a student of Luhmann would note the systemic paradox.   Each opposing parties within the system argues to the adjudicator that its view, and its view alone, serves the interest of justice, here being consistency with prior case law.   It is like each side in a football game, or in war, invoking God on its side.

So we would begin by noting the strong explanatory power of realism or contextualism.   Private law does NOT pose the antinomy of an immanent normative order with instrumentalism toward our individual purposes, because in the ex post resolution of conflict between private parties, all is instrumental.   The issue is merely whether we will be textual or contextual in our instrumentalism.

But there is a new formalism proposed for contract law, and my claim is that it is really a sign of the persistence of teleology, of the imputation of purposiveness in nature and in the analysis of social systems. In their 2003 Yale Law Journal article "Contract Theory and the Limits of Contract Law,” Alan Schwartz and Robert Scott made the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.   The argument builds from the usual normative assumption that society is better off with legal rules that maximize efficiency in economic terms – all other things being equal (and they always are), more surplus is better than less surplus, regardless how the parties divide it up.   In the long run, interpretive mistakes even out, using plain meaning is cheaper, so parties would prefer plain meaning interpretation on the assumption that courts get it right most of the time. This move is not surprising, given its grounding in the social science of economics, and the aspiration of social science to uncover and explain causal relationships in social science with rigor analogous to that found in the physical sciences. 

But it seems to me we have the old antinomy now in a different expression, and once again it arises from the opposition of subjective interest and objective norms.   For in Schwartz and Scott, there are objective norms.   The key conflation of the subjective and the objective occurs quickly, implicitly, and effectively because it makes the fundamental assumption that “there is a correct answer” – this being the mutual intention of the parties and it is the court’s obligation to find it.   And I suggest “the mutual intention of the parties” is to contract law what “the rule of law” or “justice” is to law generally.    Say that to a contract lawyer, we nod our heads “uh huh,” and move on.    Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.   Setting the price is just "strategic behavior" and merits no discussion.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus at all, much less first.   But if I had a choice between a smaller total surplus and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.

It seems to me the world works from the first-person not the third-person perspective.    Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

I propose a different antinomy, not formalism versus instrumentalism, but in some borrowed terms, between aboutness and thingness.    I go back to my earlier characterization of “the rules by which our social relationships are regulated or constituted” and offer these comments and questions:

• Instead of focusing merely on rule-following (Fred Schauer’s work), we focus on the distinction between aboutness and thingness of regulative and constitutive rules.

• We ask, on one hand, whether the contract is a reflection or shadow of the transaction, a regulation of the transaction; in short, about the transaction.

• We ask, on the other hand, whether the contract is constitutive of the transaction.  Is the contract a thing in itself?

• And now we call upon a distinction in debates over the philosophy of social science – that being causal explanation versus understanding, or the exercise of hermeneutics.

• We can uncover and explain things.  This bespeaks:

      - Casual explanations
      - Algorithmic functions
      - Mathematical models
      - Laws (of nature, not the sovereign)

Whether you are a Langdellian scientist or a practitioner of the dismal science, it is hardly a leap to attribute thingness in your role as an objective third party observer of the object of study.

And things inhere in the order of nature.    It is the teleology that underlies science.   But it is not a given that the application of scientific method to ourselves works, any more than the ascription of surplus maximizing in individual cases, simply because overall it is a useful model in the aggregate. We are subjects within a system, considering ourselves.  And the alternative view of social science is not that we look for causal laws, but that we understand or make sense of our place in the world.   This is “hermeneutics.”  I contend this is what the parties are doing when they make the contract – they understand, they make sense – the contract is about their relationship.    The purposes are those of the parties, and may or may not align to form an immanent “mutual intention.”  The objectivity inherent in ex post litigation yields thingness, formalism, purposiveness in the contract itself.    We search for that immanent “correct answer” of mutual intention, even though, as I have written, mutual intention is most often an illusion.

I conclude by noting Tom Grey’s ultimate conclusion about “the new formalism”:    it is far more pragmatic than its most strident proponents would let on.    I contend that Judge Posner, a theorist who nevertheless must decide cases, foregoes contracts as things in favor of a common sense pragmatism (whether or not it is well-informed) that is ultimately hermeneutic and not scientific.  Why?    Perhaps because the nature of an antinomy is that it cannot be resolved.

Homeless

There is a multi-session program on Niklas Luhmann taking place here in Berlin during the Law & Society meeting.  Yesterday afternoon I attended a roundtable that was one of the later segments.   Glancing around the room, surreptitiously checking out name tags, and listening to accents during the Q&A, it was pretty clear I was one of the few Americans, if not the only one, in the room.

Here's some half-assed speculation on intellectual history.  Over the last hundred years, Dewey, Holmes, pragmatism, legal realism, critical legal studies, and law and economics sucked all the air out of the room, so to speak, when it came to reacting to a rationalist or quasi-rationalist foundationalism on our side of the Atlantic.  Luhmann is also a reaction to rationalism, but with a distinctly European acceptance of paradox.  Which raises the question:  if you are an American and somewhat obsessed by paradox in all its forms, are you homeless?

More below the fold.

First, a plug for the presenters, Hans-Georg Moeller, author of Luhmann Explained:  From Soul to Systems, and Michael King and Chris Thornhill, co-authors of Niklas Luhmann's Theory of Politics and Law.

Michael's contribution to the roundtable was subtitled "Why Academic Lawyers Shouldn't Read Luhmann," which was understandable after Hans-Georg's discussion of Luhmann's take on the fundamental paradox of justice.  Justice is a "contingency formula."  What that means is that within a system like law, justice serves as a foundational value, even though justice is incapable of directing a particular legal result in any particular case.  From outside the system, an observer would say that justice is in fact highly contingent, but the internal system would collapse if the actors came to believe that it was not.  This is in fact another way of looking at the antinomy of formalism and instrumentalism Larry Solum highlighted in an earlier session on Brian Tamanaha's Law as Means to an End.  Or, as I suggested in a comment at the end of the Luhmann session, the paradox in real world litigation is that each party invokes justice as argument in service of instrumental goals, as though God could really be on each side in a football game (or a war).  Within the autopoietic (or closed or self-referential) system of law, justice appears as consistency among like cases, not necessarily congruence with fundamental human, moral, or religious values.

So, says Michael, Luhmann is anathema to academic lawyers of all stripes.  To those focusing purely on doctrine, Luhmann would be saying:  "Your search for consistency within the system is ultimately futile.  You believe you can operate within the system to improve it, but that is merely an illusion required to allow your system to continue qua system.  All you are really doing is restating the foundational principle of justice (or whatever) in another way."  To the "morality police" concerned with assuring that legal justice equates with moral justice, the connection (in the traditional of legal positivism) does not exist.  What you see are fundamental is a contingency formula by which what you think is fixed is really contingent.  And to "law and..." scholars who believe they stand outside the system and assess it objectively, you may not recognize the paradoxical nature of your own position.

To return to Larry's articulation of the formalism-instrumentalism antinomy, were I a Luhmannite (and perhaps I am), I would interpret this last in the following way.  We encounter the paradox as an empirical matter.  As legal philosophers who have become conscious of the paradox, we have three choices.  One, we can engage the paradox even if it is incapable of resolution.  (This is what I think Luhmann does.  And that appeals to my Kantian proclivities).  Two, we can make the conscious decision to ignore the metaphysics of the paradox.  That means we are either pragmatists or virtue theorists.  Or three, we can try to resolve the paradox by adopting some form of normative or theoretical foundation with which law must accord (and here, ironically, we can place Charles Fried on contract as promise, law and economics generally, and Dworkin).  Or we can take some combination of the three (for example, Richard Posner, who combines choices two and three).

But, I wonder, is someone operating in the American intellectual tradition, but who opts for choice one, homeless?

On to Berlin

I am sitting in the gate area in Schipol Airport in Amsterdam, waiting for my connection to Berlin for the Law & Society Association Annual Meeting.  If one can acquire intellectual gravitas by association with fellow panel members, I am going to have a big day on Saturday, when I sit on a roundtable on "The New Formalism" with Larry Solum, Randy Barnett, Dennis Patterson, and Ekow Yankah.

On the topic of formalism in my little corner of the world, I am re-reading "Contract Theory and the Limits of Contract Law" (113 Yale L.J. 541) by Alan Schwartz and Robert Scott, in which they make the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.  I have written before about the implications of trying to step out of the first person mode of entering into a contract to adjudge its meaning from a third party objective perspective.  I know I will have more to say about this, particularly as to law and economics, in terms of the move from explanation of causal relationships in physical science to the far muddier task of social science to the ascription of motives in individual cases. 

But for the time being I am pondering what seems to me an unwarranted (and key) assumption in the middle of the article that, it seems to me, falls victim to this first-person versus third-person problem.  As is often the case, Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.  Setting the price is just "strategic behavior" and, as far as I can tell merits no discussion in the article.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus first.  If I have a choice between a smaller total surplus (assuming I ever thought about it in those terms) and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.  Think of it this way.  I have an asset I would be willing to sell for at least $500.  Buyer A values it for as much as $900 (a $400 surplus) and Buyer B values it for as much as $1200 (a $700 surplus).  But because of other opportunities that are more valuable, B is only willing to offer me $800, and A is willing to offer me $900.    In an economists' world of perfect information, B ought to bid up and take the deal, and I ought to know that, but it seems to me the world works from the first-person not the third-person perspective.   Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

The irony here, and it is appropriate on the eve of Law and Society, is that I agree generally with the Schwartz and Scott outcome, but not for the reasons they articulate.   I think the contract is a shadow of the deal (nod to Austin Sarat and Thomas Kearns) with only a tenuous link to any mutual intention of the parties.  Given that the outcome is likely to be random and not necessarily rational, less is more.

Well, so much for that.  On to Berlin!

A Really Good Analogy is Like Finding a Ten Point Match in Fingerprinting

I want to thank Jamie Colburn whose comment below  on Eric Masur (Harvard physics) contained a link to this post by Michael Dorf on analogies to physics, and inspired that clever [?] title.

There the question was whether Laurence Tribe's article using curved space was a good analogy for constitutional law issues.  And Professor Dorf called into question the power of Judith Jarvis Thomson's well-known analogy to the famous violinist mysteriously attached to one's circulatory system as a way of looking at the morality and legality of abortion.   (I read the essay in Tom Grey's jurisprudence class in the spring of 1979 and I remember thinking the analogy was powerful, but that is somewhat beside my point here.)

Professor Dorf says:

The point of an analogy is to take something fairly complicated and compare it to something simpler that the reader/listener already understands.

I am not sure if "complicated-simple" is the point of an analogy.  What is critical, it seems to me, is the pre-cognitive (abductive?) recognition of patterns  by which we say if A is sufficient similar to B, then if A leads to C, B will lead to something similar to C (call it C prime).   To make a point about analogy with an analogy, the power comes from the extent to which A matches B, like a five point or a ten point match in fingerprinting, even though it is still no more than an explanatory theory about the causal relationship between A and C, on one hand, and B and C prime, on the other.  ("Complicated-simple" seems to me to have more to do with a model than an analogy, both of which bear some resemblance to a metaphor, but that takes us into "family resemblances" among words, and I don't want to go there because there is a whole class of people who will stop reading anything that includes a reference to W............)

We sense there is something fundamentally different between social structures like the Constitution, or a corporate entity, and physical structures, like space, so it weighs against the analogy, but we see the pattern nevertheless, so the analogy still has some power.  I used to sit in board meetings in which non-lawyer board members discussed transactions, and it would drive me nuts when they would get asset sales and stock sales mixed up.  So I had this explanatory analogy.  Think of the corporation as an egg carton, and the assets as the eggs.  The rule is that you can't cut up the egg carton.  You can sell interests in the egg carton, or you can take the eggs out and sell them, but you can't cut the carton.  Then some smart-ass would say, "okay, how do you explain mergers?"  And I would respond "well, if you have two egg cartons, you can magically superimpose one upon the other and now instead of a carton that holds a dozen eggs, you have one that holds two dozen eggs, except that it still looks just like the first egg carton."  At which point somebody would say "uh, guys, can you take this off-line and let us get back to discussion of the deal?"

My intuition is that a good analogy is something like finding a ten point match in fingerprinting, but it breaks down because good analogies are not necessarily as quantitative as that analogy implies.  If your head is not spinning yet (note that is a metaphor, not an analogy), go get some more coffee and be glad you are not me trying to put this together into an article, which I was supposed to be doing instead of writing this post.

Science of Creativity or Creativity of Science?

Alene gave me the article I referred to in the previous post because of the focus on pedagogy; there is also a nugget of substance that happens to coincide with something I'm working on this summer.  So blogging comes with a lot less guilt when I can use it to think out loud.

Here is another piece of the interview with Eric Masur:

On a physics exam, the student will see a diagram and they’ll classify it. Then, it’s simply a matter of putting the right numbers in the right slots and, sort of, turning a crank. But this is algebra. It is not physics. When you test the students later on the concept, they can’t explain what they’ve just done.

This saddens me. In my laboratory, we’ve made some important discoveries. Several were accidental — serendipitous. If we’d only functioned on the standard knowledge, we wouldn’t have recognized what was before us.

Q. What were these findings?

A. Here’s the biggest one: Just for the fun of it, we once put a silicon wafer into some gas we had lying around the lab. We then irradiated it with ultra-short laser pulses. What came out was a wafer as black as the blackest velvet. Until that moment, the conventional wisdom was that silicon was never black. So it certainly was possible to think of this thing as a mistake and to have tossed it away. Instead, we put it under an electron microscope where we saw that we had found a new material: 98 percent silicon, 2 percent embedded gas.

And today, we have a patent for this black silicon, which has important applications in communications and sensor technology.

Some thoughts on the relevance of this to my nascent project below the fold.

The thrust of the work, for which I have posted the present introduction as thought-piece, is to explore my sense of the "thingness" of some areas of the law, as opposed to the "aboutness" of others.  I have made up a number of words or descriptors in the past seven months to explain this - morphosity or "formness" is one; viscosity or "thickness" is another.  This is thinking out loud, so bear with me, and defer on the implications, if any, for now.

It seems to me there is a difference between law that is laid upon independent activity in a regulative way - like contract law upon transactions, for example - and law that creates systems that otherwise would not exist.  Hence, the distinction between Articles 2 and 9 of the UCC:  one is about transactions that otherwise exist, but Article 9 is a creation in and of itself.  Its rules, to use the term bandied about by philosophers, are constitutive.  That is not to say there are no regulative rules in Article 9, but they are regulative in the same way that it is regulative to outlaw clipping in football after you have determined what clipping is out of constitutive rules (thanks to Fred Schauer for that example).

So when we start to talk about a system of rules, it's hard to avoid thinking about models and metaphors, and how analogical reasoning fits into all of this.  I've just finished reading Max Black's essay on the subject ("Models and Archetypes") in his book Models and Metaphors:  Studies in Language and Philosophy.  Black proceeds through an analysis of various types of models, from the scale model to the analogue model to the mathematical model to the scientific theoretical model.  From there he proceeds to a discussion of the means by which we extend what we know (i.e. the patterns of what is known to us) by analogy to something we do not quite understand.  And here is where we return to the relevance of Professor Masur's comments.  Black says, comparing scientific theoretical models to metaphor as figure of speech:

Much the same can be said about the role of models in scientific research.  If the model were invoked after the work of abstract formulation had already been accomplished, it would be at best a convenience of exposition.  But the memorable models of science are "speculative instruments," to borrow I.A. Richards' happy title.  They, too, bring about a wedding of disparate subject, by a distinctive operation of transfer of the implications of relatively well-organized cognitive fields.  And, as with other weddings, their outcomes are unpredictable.  Use of a particular model may amount to nothing more than a strained and artificial description of a domain sufficiently known otherwise.  But it may also help us to notice what otherwise would be overlooked, to shift the relative emphasis attached to details - in short, to see new connections.

Black concludes:  "If I have so much emphasized the importance of scientific models and archetypes, it is because of a conviction that the imaginative aspects of scientific thought have in the past been too much neglected.  For science, like the humanities, like literature, is an affair of the imagination."

If we take Black and Masur together to impart some sense of mystery at the core of physics, how much more is the same implicit in the assessment of social issues, or the solving of social problems, the latter of which is category within which we teach our students a particular discipline.  But solving those problems by formal applications of rules may be to understanding human relationships what doing algebra is to understanding physics.  I remember vividly "brainstorming" sessions in our business when things were looking dark and we needed new and creative ideas.  Everyone would be straining and struggling, and true to my nature, I would crack a joke, only to have the CEO glower at me:  "this is serious." 

Try this:  "be creative or you are fired!"  Sorry, it doesn't work.  Focus instead on the relationship between humor and innovation.   Each involves the unanticipated juxtaposition of ideas.

Professorial Charisma: Sage on the Stage or Guide on the Side?

My wife passed me the  Science Times section of the New York Times this morning in which there is a conversation about teaching physics with Harvard professor Eric Mazur.  Very interesting, particularly when juxtaposed with the thoughts about teaching law from the recent New Law Professors Workshop.  Here's a taste:

Q. When a task force on teaching at Harvard gave its report this past January, its chairwoman, Theda Skocpol, cited you as one of Harvard’s most innovative teachers. Have many of your colleagues since asked to observe your classes?

A. A few. At Harvard, teaching is left to the individual professor. There isn’t a lot of cross-pollination. The upside is that this “every tub on its own bottom” credo has made it possible to experiment with my own classes and not get much interference.

Now, I’ve walked into science classrooms here to see what the others do. Some of it makes me burn. You know, these great, fantastic performances by energetic professors where attendance is miserable and half the students seem asleep. Toward the front of the room, you see a handful of kids furiously taking notes, while others fiddle with their laptops. “Any questions?” the professor asks. There are none.

Q. When you teach Physics 1b, do you give “fantastic performances?”

A. You know, I’ve come to think of professorial charisma as dangerous. I used to get fantastic evaluations because of charisma, not understanding. I’d have students give me high marks, but then say, “physics sucks.” Today, by having the students work out the physics problems with each other, the learning gets done. I’ve moved from being “the sage on the stage” to “the guide on the side.”

This is reminiscent of Lao Tzu's words in the Tao:  "When the best leader's work is done the people say, 'We did it ourselves.'"

More on the substance of the physics in another post.

Darian Ibrahim's Paper on Angel Investor Contracts

The Conglomerate Junior Scholars Workshop continues, with a neat paper from Darian Ibrahim on angel investors and a series of responses from luminaries like Larry Ribstein, Barbara Black, George Dent, and David Hoffman.

For the uninitiated, angel investors are those brave souls who put the first significant money into a start-up enterprise.  They overlap on the more developed end with venture capitalists, and on the less developed end with the holy triad known as "FFF:"  friends, family, and fools.

Being the hedgehog I am (wandering, I think, in the instant classic Solum sense - how does he do it?) about the lawyers' impulse toward a certain kind of rationality, and underlying (and autopoietic - look that one up!) presumption that the impulse is correct, I supplied a lengthy comment to Christine Hurt's intro to the discussion.

Stepping Off the Cliff and Publicly Following Advice on Scholarship from the AALS New Law Professor Workshop

All of Friday at last week's AALS New Law Professor Workshop was devoted to teaching, and two speakers, Doug Berman (Ohio State), of blogging and criminal sentencing fame (he is quoted on the front page of the New York Times this morning regarding the Libby commutation), and Angela Davis (American), shared the two hours devoted on Saturday morning to scholarship.  As to Doug's talk, I'll simply note that the written outline, one and a half pages of well-spaced bullet points, repeats the word "write" fourteen times.  Indeed, this is a public apology to Angela, because she spoke on the mechanics of writing and placing articles, but by that time, Doug had gotten me so fired up I didn't want to listen anymore about writing, and went up to my room to write.

One of Doug's major theses was "the importance and value of quantity. . .aka. . .avoiding the false comforts of 'quality over quantity.'"   (Readers of my blog posts know that has never been my concern.  Indeed, I take it one step further and actively sacrifice quality for quantity.)  Point number one under that thesis was "realize 80% of genius is revealed in the first 20% of efforts."  On that note, I decided this morning that the introduction (12 pages) to a piece on which I have been reading, writing, and thinking for six months, and the conclusion of which, say 48 pages (or the remaining 80%) in the future, is still murky to me, is certainly not genius, but on the other hand, beyond laughable.  So without further ado, and in another exercise of shameless self-promotion, I posted on SSRN a piece entitled Aboutness, Thingness, and Morphosity:  A Pragmatic Ontology of Formal Systems in Law, the abstract of which follows:

Others have spoken of a sense that distinguishes areas of the law, for example, the law of property, in terms of “thingness.” I explore the implications of this sense for the phenomenon known as formalism, in which legal forms reflect a belief in a “deep reality.” I contend our tendency to formalism is more than linguistics; it reflects perceptions of forms intangible but nevertheless real, all of which raises an ontological question. I further explore the pragmatic consequences of this otherwise philosophical question, in areas of complex arrays of constitutive and regulative rules, like accounting standards, codes, business acquisition agreements, and corporate structures. Lawyers are not unique among human beings in perceiving intangible deep realities where others do not, but if we see things as real that our clients do not, perhaps we ought to address the implications. This is the introduction to a work-in-progress in which I will attempt to do so.

I have done this a whole bunch of times and it is still like stepping off a cliff.

A Critique of Pure Reason?

There's a neat online symposium going on over at Conglomerate.  The current entrant in the Conglomerate Junior Scholars Workshop is a paper by Trey Drury (Loyola - New Orleans, left) on Section 102(b)(7) of the Delaware General Corporation Law, and its equivalents in the other jurisdictions, which limit directors' liability for money damages (but not a limit on injunctive relief or the finding of a breach of duty) with respect to the duty of care.

As anyone who has followed my ramblings here (and over at Legal Profession Blog) knows, I am hardly an empiricist.   (When I want my dose of philosophical empiricism, I turn to my friend David McGowan at San Diego, who does as good a job channeling Hume as anybody I know!)  I have said before that one of the great benefits of being a law professor is the wide brief to be a social philosopher.  I think that brief comes with an obligation to be clear about the descriptive, the normative, and the prescriptive, even if it is just to be clear that the descriptive and the normative are difficult to separate.  But I do wonder from time to time whether we jump to the prescriptive too quickly (noting that I am sure I have done the same thing).

Professor Drury is far more sympathetic to the "20-20 hindsight" problem in assessing directors' decisions than many commentators.  Nevertheless, I wondered whether Professor Drury's very interesting and readable paper was a solution in search of a problem, and commented: 

I'd be the last person to excoriate exercises in pure reason, but I'd still like to see some empirical work showing that most of the current bubble of corporate governance work is something other than the availability heuristic at work. There are 9,000 publicly traded companies in the U.S. - is it really the case that 102(b)(7) and its ilk are a problem for them worth the intellectual energy?

The only empirical work cited in the article (I think) is the Bradley and Schipani study, which I have not read. I'm skeptical it supports the claim that directors are "incentivized" to bad behavior, because just on the description, it sounds to be a macro look at share prices (and I'd want to dig through the methodology). Assuming it is methodologically sound, I would think about giving it more airplay at the outset as the basis for thinking there is a problem, rather than merely inferring, as a deductive exercise, that 102(b)(7) causes a problem. The sense otherwise, at least to me, is the hammer in search of a nail problem.

Of course, it's also possible that I am a spineless, passion-less wimp.

*Cross-posted at Legal Profession Blog

Dispelling New Law Professor Angst

The AALS New Law Professor Workshop, just concluded, had segments that made it worth the price of admission.  The session on Friday morning on learning theory was a breath of pedagogical fresh air.  As my wife pointed out, a fourth grade teacher spends four years learning how to teach nine year olds, and, as somebody else pointed out, law professors learn teaching primarily by having been students.

I kept flipping, internally, between the viewpoint of participant and observer.  What tended to break my willing suspension of disbelief was the occasion reference like "of course, you know what it's like to take the bar; you've just done it" or "we, your teachers, take pride in seeing you out there" or "remember that the senior faculty are baby boomers."   All of these spoke to the expectation that most people in the audience were within a certain band of age and experience.  My remedy was to pull out my copy of Modern Maturity (the official journal of AARP), and pop another Centrum Silver.

It didn't matter to me.  I took this on knowing I was a cohort outlier.  And, I suspect, the thing as to which I was most outside the norm was angst about the future, and particularly the prospect of tenure.   That subject would have been the unmentioned elephant in the room except it was mentioned so often.   Most people I'm sure, if you asked, would say their goal was to become a great scholar or a great teacher.  But, to use the jargon, the revealed preference was getting tenure.

With a disclaimer, I want to take an old baby boomer's privilege and offer advice that will probably be worth as much as you have just paid for it.  Unlike many, I do not have a young family, with all the attendant concerns about professional, domestic, and financial security.  (I do have three children in college, however.)  I was once a young associate in a law firm, concerned (but I hope not obsessive) about becoming a partner.  Nothing really could force the desired result, other than work on the inputs that really mattered.  Everything we learned about succeeding, we learned in grade school - be thoughtful, work hard, care about others, control what you can control.   I go back to the wonderful comments of that non-pareil mentor, Larry Solum, at the New Law Professor Section gathering at the AALS Annual Meeting in January:  do the work for the intrinsic value, and let the chips fall where they may. 

To be sure, that is easier said than done, and there is sensible advice to be had.  But almost every aspect of the politicking and instrumentality advice boils down to the kind of good sense every one of us has in our respective hearts.   To listen once again to Larry, the aretaic virtues are not a bad model - for example, courage is a mean between rashness and cowardice.   Q:  "Is it advisable for junior faculty to voice opinions at faculty meetings?"  One answer could be:  "have a buddy you trust give you the norms of your institution, and if the answer to the question is no, shut up."  I think a better one is:  "Don't be a wallflower, and don't be a bull in a china shop.  Be self-aware.  Be respectful of those who have come before you.  Have courage."  (By the way, that wouldn't be bad advice for a new general counsel about to attend her first board of directors meeting.)  I give great credit to Kent Syverud for bringing this out in his concluding remarks.

If This is July, It Must Be PrawfsBlawg

Let's see.  The last time I posted something here it was August 2006, I had just rolled into New Orleans, and everything was contingent.  Here it is July 2007, I'm attending the AALS New Law Professor Workshop (see post over at Legal Profession Blog on that) which says something in itself about the reduction of contingency.   Since last July we've graduated one son from high school (and he is going to Stanford), saw our daughter get married and accepted to the theater grad program at Columbia, moved our permanent household to Cambridge, Massachusetts, and increased the number of nights I will spend in the same area code with my wife (whether she likes it or not).

But I digress.  I want to give substantial credit to Dan Markel, and his courageous decision to let me guest blog a year ago, for the fact that I am now a faculty member at a respected institution.   I discuss the power of the internet and the blogosphere, among other things, for the, shall we say, "well-seasoned" academic aspirant in the only thing I've written in the last couple years that my family understood (they didn't like it, but they understood it):  Memo to Lawyers:  How Not to "Retire and Teach."

Thanks for having me back!

Of Willie Nelson, Manic Expression, Au Revoir, and Coming Soon to a Blog Near You

Turn out the lights
The party's over
They say that
All good things must end
Call it tonight
The party's over
And tomorrow starts
The same old thing again

                                                    - Willie Nelson (as interpreted by Dandy Don Meredith)

It's three days short of a month since I first posted something as a guest, and having now whined to Dan Markel about everything on my plate between now and early November, I am going to say thank you, thank you to my gracious hosts, this has been too much fun to count as work, and au revoir (not goodbye).

Several things I have learned:

- Never again make a joke about Richard Posner not having ever had an unpublished thought  until you yourself have been a manic expressive on line for a month.

- Do not debate in the comments with anonymous posters.

- Don't take it personally.

- There is something called Trackback Spam, and it's not pretty.

- You can challenge yourself intellectually in this medium.

Dan has also been kind enough to let me say (not as though these things compete) that Alan Childress, of Tulane and visiting this year at GW, another co-editor with whom we are currently in top secret free agency negotiations, and I will be launching the Legal Profession Blog as part of the Law Professor Blogs network some time in October.  We hope to dig into the issues that touch on an academic view of the profession, including law firm economics, ethics, the profession's view of the academy, and the globalization of the profession.   The only question Paul Caron has had is whether we will be able to post enough to keep it active.  I don't know.  I am completely out of ideas, but that may reflect the fact I taught the first session of Secured Transactions and Business Enterprises today, and am so tired I can barely type.  Alan is probably going to have to carry us.

Thank you also to new cyber-friends Vladeck, Secunda, Gowder, Horwitz, the ubiquitous Anon, FMLTX whoever you are, and everybody else.  The views reflected here are not necessarily those of PrawfsBlawg, or sometimes even the author, ten minutes after he posted them.  Take it away, the pride of the Demon Deacons, the urbane and dashing Bobby Chesney.

Unintended Law Firm Merger Synergies?

The WSJ also reports this morning the merger of "Cooley Godward LLP, a 445-lawyer law firm known for its representation of West Coast technology companies" with "Kronish Lieb Weiner & Hellman LLP, a 110-lawyer New York firm specializing in commercial litigation, bankruptcy and white-collar crime."  I'm sure the idea of one-stop shop, from start-up to IPO to backdated option scandal defense, to bankruptcy never occurred to them, although it would make for an interesting study in branding (now there's a law firm unlike any other). 

More on law firm mergers later, perhaps.

Posner and Steele in Today's Journal

I let my Wall Street Journal go a while back (I confess when the company-paid subscription ran out), but I just resubscribed, and it was sitting politely on the front stoop when I left the house this morning.  WSJ readers all have their favorite sections; the places I always look are the front page middle column and the right side of the first op-ed page.  (The "official" editorials are too Neanderthal even for me, but you almost always get a well-written if usually a smidgen right of center provocative viewpoint on the rest of the page.)

Sure enough, the op-ed page did not disappoint this morning.  At the top, we have Richard Posner on the institutional and constitutional  infirmities (not the decision itself) by which the Hon. Anna Diggs-Taylor in the Eastern District of Michigan struck down the NSA surveillance program.  And at the bottom, we have one of my favorite op-ed writers, Shelby Steele, on anti-Semitism and white guilt as applied to reactions to Islamic extremism.

H/t for pass-thru link: HJB.

Solum on "It Takes a Theory"

Larry Solum's weekend "Legal Theory Lexicon" takes on the "it takes a theory to beat a theory" adage, with an unusual (for him) but delightful touch of the snarky.

In particular, I like the Daniel Farber quote on the problem of "physics envy" in the social sciences.  It took Einstein's theory of general relativity to beat Newton's gravitation theory, and it did so by predicting curvature of light, testable during an eclipse, that Newton's theory could not explain.  As Farber points out, rational choice theorists roll out "it takes a theory to beat a theory" against the behavioral economists, with both sides assuming implicitly that (a) the goal of social science is to state a unified predictive theory of human behavior, and (b) that it is possible to state a unified predictive theory of human behavior.

I'll add two brief comments,  if I think about it long enough, the inspiration for which I must lay at the feet of Professor Solum and his great blog.  First, a thoroughly enjoyable screed, if you are into this kind of epistemological debate, is The Flight from Reality in the Human Sciences by Ian Shapiro (Yale, Political Science), who argues, primarily in connection with the rational choicers, that maintaining the integrity of expansive social science theory has become the tail that wags the dog of social science research.   Second, to my mind, the real problem with the application of "it takes a theory to beat a theory" in connection with divining (note my deliberate word choice) a unified predictive theory of human behavior is Hume's dictum in A Treatise on Human Nature about conflating the descriptive with the normative:

[T]he author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.

Thoughts From a Touchless Car Wash About the Joys of Being a Law Professor

The Prius was screaming for a bath this morning, and that ubiquitous woman in the GPS ("in half of a mile, right turn onto L-A thirteen fifty-two") directed me over to a touchless car wash on Louisiana Street.  As this thing that resembled a miniature of the Grande Arche de la Defense moved back and forth over head, at one point coating us with something that looked like melted rainbow sherbet, I thought about my dinner out with new colleagues last evening, Gordon Smith's post and the associated comments over on Conglomerate about interview questions, and Article 9 of the UCC.  I didn't think it was blogworthy until I got back here, and was chuckling to myself (a strange thing when you are sitting alone in your office on a Sunday morning) over Kate Litvak's last comment to Michael O'Hear's post on teaching criminal law:  namely learning the  criminal statutes (then, I presume, getting the hell out) and getting on to the fun stuff like Article 9.  Perhaps it is the liberating and creative effect of humor (the unexpected juxtaposition of heretofore wholly unrelated events or concepts, like Robin Williams' impression of Elmer Fudd singing Bruce Springsteen - "I'm dwivin' in my cah, tuhn on da wadio...") that just snapped it all together.  (Thank you, Kate!)

Call this paean to the academic life ridiculously sentimental; call me a fool; but ask me the interview question "why do you want to be a law professor?"

Because, despite all the faults, the incomprehensibility of the hiring system, the thrashing over student-edited publications, the struggle to determine the legal academy's place between research university scholarship and the trade school training of professional lawyers, the impact of internet access in the classroom, the butterflies in my stomach (and  shpilkes) the thirty minutes before EVERY class, my worry that I have tapped myself out on ideas for new articles (or to a far lesser degree, blog posts), I love it.

How on earth does that possibly tie back to dinner last night and Article 9?   That was what I was considering as the shower of red, blue and yellow glop spread over the windshield.  A long-time faculty member (who teaches criminal law, among other things, and was a prosecutor at one time) and his wife invited another visiting faculty member, his spouse, and me over to their lovely home for a glass of wine, and then we all went out to dinner.  The occasions in my previous life for having a conversation in which the other parties have tremendous experience and expertise in things like criminal law and international law were relatively few.  This conversation started in on current events (Iraq, fighting the Taliban as a response to 9/11, the Israeli-Hezbollah war), turned to theories of the law of war where recognized nation-states are belligerent with non-state entities in failed states, and finally, as I was taking a break to gather my thoughts and catch my breath (I compared it to being the dummy in bridge), the critical theorist view of the whole idea of international law as being something created by the European colonial powers, thereby incorporating within it presumptions about colonialism, legitimate defense, the rules of war, and terrorism.

And just a few hours before, I had jotted some notes to myself from the Warren and Walt book on Secured Transactions to raise with the students on Tuesday:  the debate between Jackson and Kronman, on one hand, taking an efficiency view why there should be secured credit (while it might seem unfair to let a debtor prefer some creditors over others, the subordinated or unsecured creditors will reflect their greater risk in a premium for lending or in turning to other borrowers), and Lynn LoPucki's response why this fails to take account of involuntary unsecured creditors like tort victims (hence we should prefer such creditors even over the secured creditors in bankruptcy).  I had posed the question, at least to consider:  does Article 9 favor the entrenched, the powerful, the banks, the corporations, the diligent, the smart?  And is that the right policy?

Do I buy critical theory either in the area of international law, or the far more mundane world of project finance?  Not really, although the Frankfurt School critiques of modern media and institutions are powerful and thought-provoking.  Do I worry about the segue from critical theory to post-modern despair or nihilism?  Yes.  But the point is the intellectual struggle in civil discourse, the journey, not the destination.  That's the common thread between discussion of the law of war and the law of purchase money security interests.  And that's why I love it.

Branding Redux

Apropos of the earlier discussion on law firm branding, the National Law Journal reports that the firm now known as DLA Piper Rudnick Gray Cary "is expected to announce in September that it is taking a new,  shorter name to strengthen its international brand. . . ."

One of the managing partners is a good friend, and I am willing to pass suggestions on to him.   I'm thinking maybe something made up and techno, like Altria (old Philip Morris) or AXA.  Right now, I'm leaning to Intimidex over UniLex.   Wait, wait, how about IntimiLex?

"How Are You?" and Other Questions to Which Short Answers Are Best

The 1Ls are here.  In the spirit of Edward Levi's An Introduction to Legal Reasoning (which I read in the summer of 1976 and did not understand), we need now to reason our way from the base case of what do students and professors call each other verbally to other forms of communication and signaling.

The 1Ls are all wearing name tags, and they are moving from orientation session to orientation session.  (I remember only one assembly in which the then president of the Stanford student body introduced us to the school by saying "you're probably only here because you didn't get into Harvard.")  The faculty, as far as I can tell, are not wearing name tags.  But I am going to a new student mixer sponsored by the SBA at a bar tonight, and I will probably wear a name tag.  Unlike many of my colleagues, there is no danger that I will be mistaken for a typical student, but older people do go back to law school now and then.  So I think the name tag will say:  "Prof. Jeff Lipshaw."   It is possible, however, that two non-verbal signals would give me away.  One, I am wearing the uniform:  tape-striped Polo long-sleeve oxford cloth button-down and khaki chinos WITH tie (albeit the ugly pink flower garden one that my children hate*) .  Two, my name tag will be on my right lapel, not my left, indicating subtly that I am either a member of a power elite or a professional glad-hander (when you wear it this way and extend your right hand to shake hands, the name tag is more easily visible to the other person). 

Students are also e-mailing.  How do you "sign" the e-mail?  I am presently opting for the deliberately ambiguous:  "Best, JML."  (Belle Lettre wrote something about this from the student standpoint, but I cannot find it quickly enough.)

The other issue is how to answer the question "so, where are you visiting from?"  (Ten extra points to anyone who was to ask "Whence are you visiting?" but twenty points taken off for "From whence are you visiting?")  I have concluded that while "Indiana" is a half-truth in at least four or five ways** (but not one regulated by the SEC, or, as far as I know, the AALS), and despite my earlier moralizing to the contrary, it's the best one, socially speaking, unless you really want to know the whole long boring self-indulgent story.  And despite my own self-regard or ability as a raconteur, nobody does.

*Including my daughter Arielle who is a paralegal at a major New York law firm - and this is completely irrelevant to the point, but she called me last night after a gin and tonic (hers, not mine), and I think, if I understood her correctly, wanted me to mention her in the blog - done.

** State or university?  If university, Indianapolis or Bloomington?  If Indianapolis, adjunct or regular faculty?

The Continuum from Ethical to Criminal: The Option Backdating Controversy

There's been a flurry of commentary this morning provoked by a Wall Street Journal op-ed piece that is something of an apologetic for the option backdating controversy of recent weeks.  Larry Ribstein weighs in, if I have his argument right, not to say that the backdating, if it occurred, was right, but remedying it should not be a matter for the criminal law (versus SEC civil enforcement, assuming there is a cause of action for backdating).  Dale Oesterle over at Business Prof Blog (part of the Law Professor Blog Network) makes the deontic argument about respecting rules qua rules.

I have not read the op-ed piece (I'm relying on Larry summary) because finding a copy of today's WSJ quickly demonstrated another aspect of what here in New Orleans is referred to as "the post-Katrina world."  But the gist of it is this.  Let's assume that I am granted 100 stock options in a public company today at a $10 strike price, reflecting yesterday's closing price of $10 per share.  If the stock price rises to $20 in two years, I "exercise" by buying the stock at my option price, and either hold it, or more commonly, immediately sell it, and get proceeds of the difference between the market price ($20) and the strike price ($10) times 100 shares:  in this case, $1,000.  For tax purposes, that $1,000 is ordinary income to the recipient, but for a number of years there has been an underlying controversy how this income to the recipient should be reflected in the financial reporting of the company.  Historically, under generally accepted accounting principles (GAAP), option compensation as just described never shows up as an expense of the corporation.  Its cost is reflected, if at all, in the effect of dilution on all the existing shareholders when the new shares are issued, upon exercise, at less than the market value.   The exception to this was if you issued an option having a strike price BELOW the market price as of the day it was issued (or the closing price the night before).  In that case, the option cost had to be expensed on the company's income statement.  This reduced the current earnings of the company, something managers and Wall Street stock analysts do not like to see.  (I should note that while I am not an economist, I am sympathetic to an economist's reaction that in a transparent world of perfect information, none of this accounting treatment should make any difference to value.)

Despite my sometimes insufferable Kantianism, I am also sympathetic to the idea of letting  economic markets determine economic outcomes, like how much executives or baseball players or Jessica Simpson or Paris Hilton get paid.  But I worry when, during the course of normative argument,  the implicit utilitarianism that is the philosophical basis of most economics is not made explicit.  Again, I do not think Larry Ribstein is saying that backdating options is okay; I think he is making the point that it is not a matter for the criminal law.  But, below the fold are some moderately inchoate thoughts on this.

The WSJ article appears to construct the following apologetic:  (1) Companies wanted to recruit good new people by giving signing bonuses that were money or some form of recognized compensation equivalent.  (2)  Giving money would be reflected as a hit to earnings, but there existed a system by which you could give real value without it being so reflected:  stock options. (3)  The accounting rules would let you give a "strike price at market" option but that wouldn't give the company the benefit of having provided real value to the employee, particularly when you wanted to give the value now as a signing bonus.  (4)   If you gave a "strike price below the market" option that would accomplish the purpose of giving real value to the employee, but you would take an earnings hit, which is exactly what you didn't want in steps 1 and 2.  (5)  The accounting rule was silly, but it was clear.  (6) If the stock had been trading at $5 six months earlier, and you just made the agreement, as they say, "nunc pro tunc" (now for then), by putting a six month old date on the agreement, you accomplished both objectives.  (7)  Backdating was not clearly impermissible (though I wonder how often it spanned a tax or fiscal year).  (8) Using a questionable but not clearly impermissible technique to avoid a clear and undesirable  implication of the alternative is not such a big deal.

I think a lot of what passes for moral outrage or deontic analysis on this issue is really normative political argument about wealth distribution, and consistent with good old American populism, going after rich people is pretty easy.  I have no issue with the straight-up argument "I was freely offered what seems to be an outrageous amount of money for what I did, but it was all disclosed and above-board, I earned it, and I'm going to enjoy the benefits of it."  (What I think of the person will probably depend on the definition of "enjoy the benefits of it" - did he/she endow a fund for diabetes research or buy a 150 foot yacht? or, even better, both.)

But this technique (speaking as a former GC and as an academic ethicist) bothers the hell out of me.  The former GC can come up with all sorts of consequentialist reasons for not doing this.  (One of my epigrams has been:  "whenever I thought I was doing something extremely clever, it generally came around to kick me in the a__.") [NB:  when I speak as a former GC, it is spiced with mild profanity.]

The academic ethicist wonders again about the conflation of practical reason as between determining correct ends, and using what is also called "practical reason" to get the result I want (See Richard A. Posner, Economic Analysis of Law, 6th ed., at 3-28).  Larry Solum recently highlighted a paper on this subject by Pamela Hieronymi at UCLA.  Just yesterday, we had a discussion about whether one might just pay the parking tickets over the course of a year rather than pay the greater cost of a parking permit.  It seems to be there IS something more than rational calculation, and even if, to Larry Ribstein's point, it is not a matter of criminal law,  the absence of that something is reflected in legal and business minds that would let the practice go forward.   

Branding and Law Firms

Over at Conglomerate, Gordon Smith has posted a comment on Vic Fleischer's case study on the branding effect in the MasterCard IPO and similar thesis on the Google IPO.  Gordon asked why farmers organize into coops and suggests that it has as much to do with branding (say, as "organic" farms) as with governance.

It's a fascinating subject, and the following comment has all the hallmarks of a blog post - quick, anecdotal, and wholly ignorant of most real scholarship on the topic.  But I want to offer two not-so-hypothetical hypotheticals about law firm branding.

1.  My first appearance in court was three or four days after the swearing in ceremony in November, 1979.  A partner asked me to cover THE NEXT DAY a hearing in the Ann Arbor District Court (the court for matters less than $10,000) on a motion to dismiss a complaint in which the pathetic plaintiff had sued the wrong one of our scumbag client's multiple corporate entities.  And the sorry thing was that suing the right one wasn't going to help because the statute of limitations had run (assume no fraud here, just slickness competing against incompetence).   The brief had been filed; I spent  four or five hours prepping,  and I slept maybe three hours (complete with all the classic stress dreams, like taking a final in a math class I had forgotten to attend), worrying about the hearing.   I have mentioned before that when I was twenty-five I looked like I was about eighteen, but when I walked into the courtroom, and said "May it please the court (I don't think  lawyers usually used that form of address in the Ann Arbor District Court), Jeff Lipshaw of  Dykema, Gossett, Spencer, Goodnow & Trigg appearing for defendant Global Scumbags, Inc." there was , to my mind, a palpable reaction from judge and opposing lawyer that could not have been attributable to my person.  DGSG&T (now known merely as Dykema "A Law Firm Unlike Any Other") was the 800-pound gorilla in Michigan, and the brand had to put a patina over anything I was saying.

2.  Many years later, when I was buying services, firms like Dykema and its equivalents in other non-financial center cities (other examples of the type would be firms like Reed Smith in Pittsburgh or Bryan Cave in St. Louis or Dorsey & Whitney in Minneapolis or Baker & Daniels in Indianapolis or Preston Gates in Seattle - not firms necessarily that bid for our work - but of equivalent size and reputation) would market for deals that inevitably ended up in Wall Street firms (and, by the way, not in any New York City firm, but in a select group of NYC firms).   If you merely looked at the bona fides of the individual lawyers put forward - schools, academic records, deal experience - there was no real basis for explaining to them why it was that we were willing to spend double the amount per hour to hire, say, Skadden or Weil or Wachtell, to do the deal.  You could make actual value related arguments, but I don't think they were ever really supportable.  To my mind it had to be the brand.

Indeed, both as a law firm partner and as a buyer of services, I made the argument to those fine firms that there were areas in which the brand was perfectly fine.  For example, there is no branding reason why you could not establish a national center for ERISA or partnership tax in St. Louis.  But for bet-the-company M&A work, the firms were wasting their precious marketing dollars competing against the goliaths of the industry.

A Quinquagenarian* Wonders...

The "The Way We Live Now" essay by Christopher Caldwell in this morning's New York Times Sunday Magazine raises an issue of discrimination that morphs together snippets of constitutionality, statutory and moral analysis, and I'm not sure to a sound conclusion. 

The subject is "age qualified" communities, not the kind in which I think my wife and I would want to live, even as empty-nesters (liking the diversity of organically developed neighborhoods), but to many of my superannuated peers, ones that might be to their liking.   The issue is the exception in the Fair Housing Act of 1988 (as amended):  the statutory prohibition on discriminating against families with children has an exception for developments in which 80 percent of the households have a person 55 or older, and the development must be billed as a "senior community" or "retirement community."

The author argues:

"I just want to be with people like me" is the argument made in favor of every kind of segregation.  It was not an unreasonable-sounding argument even when it was made by Alabamans and Boy Scouts and club men.  But it wasn't a winning argument either.  What explains our sudden readiness to make moral exceptions when children are the ones excluded?

Seems to me three different standards are conflated here.  To the constitutional scholars out there, has age ever been a suspect classification?  Clearly Congress has the power to pass legislation that bars discrimination that does not rise to a constitutional level.  And I'm not sure why the exclusion of children from a privately operated community that does not seek to take on the hallmarks of government deserves moral opprobrium.  I love my nieces and nephews of younger siblings, but "been there, done that" already, and I'm always happy that they go home with their parents.

Am I missing something?  I promise not to discriminate against vicenarians and tricenarians.

*Quinquagenarian

Talmudic Simplicity and the Law

The last post about the surface simplicity and underlying complexity of Article 9 reminded me of one of my last forays as a litigator before my first mid-life crisis in which I came to terms with how much I despised litigation and bolted into the corporate group.  Some say it was because I somehow managed to lose two cases it was seemingly impossible to lose (the latter was one in which I somehow managed to lose a stipulated motion, but that's a story for another time). 

In 1989, my partner Don Young and I tried a tremendously interesting case in the federal district court in Detroit.  We represented an outfit known as the Michigan Property & Casualty Guaranty Association.  This was a creature of state insurance regulation, and existed to deal with the effects of insurer insolvency (akin to but not exactly like what the FDIC would do if a bank went belly up).  In short, if there were an insurance company insolvency, the staff of this little association would estimate the claims that needed to be paid, and the solvent insurance companies would be assessed pro-rata by how much insurance premium they wrote in Michigan.

One of the neat twists of the statute was something called the "net worth" exception.  If you were an insured with a worthless policy, but your net worth exceeded an amount determined by a statutory formula, you had to bear the loss yourself, and were not entitled to reimbursement from the association.  The Association denied coverage for a large supermarket chain in the Detroit area (known as Farmer Jack's), and got sued in federal court on the grounds that the net worth provision violated the equal protection clause of the 14th Amendment.

To find out what happened, continue below the fold.

As any first year constitutional law student knows, this is a case that never should have gone to trial, and that is the point of Talmudic simplicity.  In socio-economic legislation, not invoking a discrete and insular class under footnote 14 of the Carolene Products case (yes, Bill Cohen, I still remember it!), the test is whether the legislature had any conceivable rational basis, whether or not articulated, for the disparate treatment under the statute.  Nevertheless, the court denied our motion for summary judgment (which as I recall made the point that the Michigan legislature could have concluded (a) that wealthy insureds could bear the loss, or (b) that wealthy insureds would have known to assess carefully the credit rating and financial wherewithal of their insurers).  We proceeded to a six day trial in which the plaintiffs put on experts to say the statute was irrational because net worth didn't have anything to do with anything, and we rebutted with our own experts, figuring that, given the standard, all we had to do to win was not try the case in Esperanto.

I may have been the first lawyer ever to begin a closing argument with the Talmudic story of those great rival rabbis of the early Common Era, Hillel and  Shammai, and the skeptic.  As the story goes, the skeptic first went to the irascible Shammai, and asked "can you teach me the Law while I stand on one foot?"  Shammai, consistent with his personality, applied one foot to the skeptic's tuchas, and booted him out the door.  So the skeptic went to the wise and gentle Hillel, and asked the same question.  Hillel responded, "Of course.   All of the law is simply this:  what is hateful to you, do not do unto another.  All the rest is commentary.  Now go and study."

The point was to say to the judge: it's very simple; it's all in the standard of review, and I need not say anything more about the evidence for the statute to be upheld (I did say more, but it would have been a gutsy thing to sit down right then).

To come back to the theme from the beginning, you cannot lose a rational basis case like this.  But I did.  I wondered later if I lost her in the story of Hillel and Shammai, but, no, she just didn't understand the standard of review.   To find out how it all came out in the end, see Borman's, Inc. v. Mich. Prop. & Cas. Guar. Ass'n, 925 F.2d 160 (6th Cir. 1991).

Here's to Article 9 (Tastes Great! More Filing!)

I did not plan five minutes ago on starting this post this way, but if you can't be random and spontaneous on a blog post, where can you be?  But as I intend before I'm done to reflect on teaching Article 9, perhaps some random spontaneity will entertain those readers for whom the mere mention of the UCC has the same effect as hypoglycemia.  What prompted this was the observation that when you click on "Create a Post" for PrawfsBlawg in TypePad, the motto "Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005" appears just before the window in which you compose (as I am now doing).  As most of the substantive discussion on this blog swirls around mighty and controversial issues of constitutional and criminal law, that seems to me to a prudent, if not intended, benefit of TypePad.  It reminds the author to be civil even when consumed by passion. 

This post, however,  started as an ode to Article 9 (the revised version, please), particularly when compared to Article 2.  The thought flashed through my mind whether my siding with Article 9 over Article 2 would constitute partisanship.    And while I have not consumed any alcoholic beverages since downing a Sierra Pale Ale in Indianapolis almost a week ago, I had an image of one of those  Miller Beer commercials with Dick Butkus and Bubba Smith, in which a bunch of law professors are sitting in a bar (Karl Llewellyn?  Richard Craswell?  Charles Fried?) passionately screaming at each other:  " Works Great! Less Efficient!"  But that's just me.

The intellectually honest part of this has to do with the fact that prepping for Secured Transactions has caused me to dig into Article 9 for the first time.  I taught Sales last year, and had been fairly steeped over the years in Article 2 (for example, I have a 2-207 flow chart that would make you plotz).  Article 9, it turns out, is conceptually easy in the big, big picture (attachment, perfection, priority, enforcement, bankruptcy) but full of knotty little problems in the execution.  More importantly, Article 2 was  a creation of the legal realists, who wanted the law to track the way transactions really worked with the idea perhaps that would be more efficient.  In my humble opinion, it manages to be neither realistic nor efficient.  All those "reasonables" and "seasonables" and "trade usages" and "courses of dealing."  Article 9, on the other hand, makes no bones about its arbitrariness.  You pays your money and you takes your chances.  And because it is newly created system laid on top of existing practices (versus Article 2 which attempts to incorporate existing practices, see Lisa Bernstein on this topic), it has, for the most part, like it or not, an internal logic.

Larry Ponoroff, a old pro at this, tells me it was better in the halcyon days before the most recent revision.  I don't know, but if you wanted to trade me Article 2 for Article 9, you'd have to throw in Ronald Coase, Guido Calabresi, and a legal positivist to be named later.

Participation and Exam Policy

One of the things I did not do well last year (see here) was to have the appearance of structure in (or is it command of?) the teaching process.  I am sympathetic to the students' feeling of being lost if the method is foreign, the conclusions are unclear, the professor is somewhat random, and the subject matter is the application of law to something about which they have little experience (contracts, business, negotiations, etc.)   It seems to me there is a better chance of engagement in the micro if there is at least some sense (a) of the macro structure, and (b) that the professor has a clue what the macro structure is.  The appearance of structure, it seems to me, includes the substantive as well as the procedural.  I had already posted on TWEN a full semester syllabus, but today I posted the "on call" list - divided each class into five groups of about eight to ten students, and gave the dates on which they would be on call.

As to exam policy, I am considering saying that anything in the readings or in class discussion is fair game for the exam (mainly to encourage rather than demand attendance), but it occurred to me what I might get is verbatim note-taking (either by hand or on laptop) than participation.  I'd be interested in reactions to that.  (The blind grade system here accommodates a factor for attendance based on a pre-announced policy that is applied on a blind basis, but it means you have to take roll or use a sign-in sheet, and I still don't like that idea.)   

N.B.:  Both of my classes are upper level this semester, so I worry more about it.  1Ls are too scared not to attend, and they seem to want to participate.

So Much to Do, So Little Time

It's interesting to read the other posts about allocation of time as between teaching and scholarship. From the cocoon of my home office over the summer, it was hard to see how you couldn't have time to do everything.  It's only taken a day back in the saddle to recall that it's not an issue of teaching versus scholarship; it's teaching and scholarship versus everything else.

Got in early this morning; opened up Warren and Walt on Secured Transactions.  Warren and Walt on Secured Transaction is still sitting unread in the same spot seven hours later.  In the meantime we've had the good (meeting new colleagues and law school staff; tremendously helpful staff), the bureacratic  (Westlaw somehow discontinued my password in the last two days), and the Up the Down Staircase (we have iPrint, and I printed to an HP4100 printer in the library but it turns out there are about a half dozen HP4100 printers in the library, so we were all scurrying around looking for the documents).  So it's 3:30 p.m. now, and as everybody knows, I am a morning person and go braindead in the late afternoon.  At which point writing a blog entry or organizing my bookshelves or renewing my bar association membership is more up my intellectual alley.

Every person here is sympathetic to a wanderer because everybody was a wanderer just a year ago.  The stories on the local news this morning were about schools reopening.  There's an organization called the Louisiana Recovery Authority that is helping people find new homes.  People are tremendously upbeat and enthusiastic.  Last night, I shopped at the Whole Foods Market on Magazine Street, which was jammed, but it had just rained so every time I stepped outside my glasses steamed up.  You never know when you are going to learn something new, though.  I mentioned that to Dean Ponoroff and he showed me the trick to keep it from happening.

Visiting Professor Arrives

Somewhere on I-59 south of Hattiesburg, you notice a couple of things, like freeway signs that are missing pieces or, in one case over on the northbound side, the sign is bent over at a funny angle.  My wife asked me on the cell phone if the trees were blown over, and maybe they were, but I couldn't tell.  The thing that struck me when I crossed the state line into Louisiana was that the grass in the median was freshly mown.

I-59 becomes I-10 West and it sneaks up on you, but all the sudden you are on a causeway crossing Lake Pontchartrain.  I'm from Michigan, so I'm used to being on and around lakes, but on boats.  This is the sensation of being on a boat out in, say Grand Traverse Bay, seeing the Leelanau shoreline several miles on one side of you and the Lower Peninsula mainland several miles on the other, but you are driving your car.

When Alene and I came down to visit in April, we arrived late at night and took a cab directly to the hotel in the Garden District.  For two delightful days (70 degrees and no humidity in NOLA) we walked the length and breadth of Uptown, the Garden District, the CBD, and the French Quarter.  Depending on where we were, the signs of Katrina were lesser or greater.  Tulane runs north and south in a narrow wedge of the crescent; at the time, the areas toward the north end of the campus, like the baseball stadium, were still wrecked.  Calhoun Street borders Tulane to the east, and north of Freret Street, almost all the houses were being repaired.  But, by and large, it didn't seem all that bad.  Joggers were out running on the street car tracks on St. Charles (the street car wasn't running); there was a big girls' soccer field day on the levee in Audubon Park; people were sitting in coffee shops and going to restaurants.  There was a lot of construction going on (blue tarps on the roofs) in the Uptown areas that did not flood, but it looked a lot like our old neighborhood outside Detroit (Birmingham, Michigan) where there seemed to be no limit to high and tight you could build in a fifty foot frontage on a quaint street.  When we left, the cab took us through some neighborhoods north of Claiborne Avenue, and the driver pointed out the water marks four or five feet up the doorways.

All of this is to say that you have to come into New Orleans from the east on I-10 to appreciate what happened.  But anything I say about it would be trite.

I am sitting comfortably in my office, books unpacked and shelved, pictures hung in the couple spots where the former tenant left the hooks, tschotchkes arranged (my great philosopher finger puppets, the dancing rabbi, Fearless Leader from Rocky and Bullwinkle, Kung Fu Chipmunk, and the Wake Forest dartboard set on which I inscribed "Lipshaw's Handy Grading System").  Patrick from IT has been down and we seem to be all set.  I have my faculty handbook to read, and lists of the forty souls in Secured Transactions and fifty-three in Business Enterprises who have, by what fate, been entrusted to my teaching.  At Tulane, the faculty is spread into office suites throughout the building, interspersed with the classrooms.  I have just paced it off, and it is about twelve paces from my desk to the room where I will teach Secured Transactions.   For some reason, that seems  cozy.

Perhaps the sensation is the result of having driven a long way in two days, or the discombobulation of a person who likes his routines (give me a Starbucks, a gym, and access to broadband, and I'm a happy camper), but New Orleans was an exotic place before Katrina, and is more so now.   There is an additional sensation, and the best comparison I have is to the close proximity of war and normality that you experience in Israel.  A friend's son is starting medical school in Tel Aviv and, while he was evacuted from his Ulpan (intense language study) in Haifa, he reports life pretty much goes on as normal to the south.  I visited Israel during the Intifada, and was driven back from Jerusalem to Tel Aviv on the freeway that cuts just south of Ramallah.  Life went on in Jerusalem and Tel Aviv, but at an intersection along the freeway, you could see Ramallah several miles away.  Life seems normal here, but it's only a couple miles to the still wrecked and still deserted upscale mall, the streets and streets of boarded and abandoned houses, and the neighborhoods with the white FEMA trailers in the front yards.

The Train Pulls Out of Kankakee...

Less than twenty-four hours but more than six hundred miles since I told Dan Markel that I would just as soon not do blog posts that are purely personal rumination, I feel obliged to say something about the longest solo drive I have ever made in my life.   I am now safely down for the night in a Holiday Inn Express somewhere in Mississippi, having left Indianapolis at 7:00 a.m. today.   In no particular order of importance:

1.  If tonight I'm staying in a Holiday Inn Express, then tomorrow when I arrive I should wait until Dean Ponoroff is out of the office and then slip into his chair.  When somebody walks in and asks, "are you the dean?" I can reply, "no but I stayed in a. . . ."

2.  My son and I went to see Talladega Nights:  The Legend of Ricky Bobby a couple days ago.  When I arrived here, I could not bring myself to eat dinner at the Applebee's.

3.  This is the first time I have ever stepped foot in Alabama or Mississippi.  The model of the Saturn 1-B at the Alabama welcome center near Huntsville is cool.  I wasn't so sure about the three sided pillar just across from it that says:  "Alabama:  we dare to defend our rights."  (For the record, I have Hawaii, Alaska, Washington, Oregon, Idaho, North Dakota and South Dakota to go.)

4.  Pilot truck stops have the best coffee.  The one outside of Louisville also had fresh bananas.

The Consultant's Four-Quadrant Matrix (or What You Might Think About When You Have Shpilkes* the Night Before You Hit the Road)

There is a trick to establishing oneself as a wildly successful management consultant, and I am pleased to offer a PrawfsBlawg exclusive on how it is done.   

Here's how it works.

1.  Identify two necessary,  mutually interdependent, yet conflicting attributes or values.
2.  Plot one attribute low to high on the x-axis, and one low to high on the y-axis.
3.  Draw a rectangle with the x-axis on the bottom and the y-axis on the left.
4.  Bisect the rectangle vertically and horizontally to create four quadrants as a matrix.
5.  Identify examples for each quadrant of people, organizations, or whatever it is on which you are consulting that, in your opinion, have the two attributes in the following combinations:  low-low, high-low, low-high, and high-high.
6.  Make it clear that the correct progression in the matrix is from low-low to high-high (i.e., southwest to northeast).
7.  Offer a list of ten things the group hiring you can do to move from low-low to high-high.
8.  Close to thunderous applause, find the bar, and hope they have one of those huge bowls of boiled cocktail shrimp.
9.  Mail your bill for $5,000 for the day's work.

A less cynical take on this below the fold.

*shpilkes

In fact, when well done, these presentations are memorable, because the models are simple and there is a fundamental insight they elicit.  I listened to John Kotter of the Harvard Business School present his four-quadrant model on leadership and management to an executive conference when I was working for AlliedSignal.  Kotter's thesis is that management and leadership are just these kinds of necessary, mutually independent, and conflicting attributes of people and organizations.   Management consists of (1) planning and budgeting, (2) organizing and staffing, and (3) controlling and problem-solving.  The leadership analogs of these activities are (1) setting direction, (2) aligning people, and (3) motivating and inspiring.  This is a little dated, but when I listened (circa 1995), Kotter's examples were taken from the airline industry, and you can guess who stood where:

Low management - low leadership:   Eastern
Low management - high leadership:  People's Express
High management - low leadership:  United
High management - high leadership:  Southwest

The point is that leadership and management, particularly as they are found in individual styles, can be oil and water, but successful organizations need both.

Another model came from a fellow by the name of Tom Connellan, who was affiliated with the University of Michigan Business School, and  specialized in consulting on customer service.   Tom was enamored with the intense focus on customer service one found in the Disney theme parks.  Tom's was actually a nine-quadrant matrix, with quality of product on one axis, and quality of service on the other.  What each box described was the customer's attitude toward the firm, and it went like this:

Low quality - low service:  Gone

Low quality - mediocre service:  Going
Mediocre quality - low service:  Going

High quality - low service:  Looking around
Mediocre quality - mediocre service:  Looking around
Low quality - high service:  Looking around

High quality - mediocre service:  Loyal
Mediocre quality - high service:  Loyal

High quality - high service:  An advocate

Just this morning, a friend and I were discussing her painting, and, on the spur of the moment, I did a four-quadrant matrix on "technique" and "passion" (get it?  artists can have high or low technique and high or low passion, and you want to avoid being a passionless hack in favor of being a passionate technician, but if you can't have both, you need one or the other).

This can be quite a parlor game, though I 've not yet figured out how to package it as the next Boggle or Trivial Pursuit.   Or make it a cultural icon like Six Degrees of Kevin Bacon.  I have thought about whether the model applies anywhere in legal academy, and if so, what's the point?  Teaching vs. scholarship?  Clinical vs. doctrinal?  Empirical vs. theoretical?  Does every professor need to strive for high on both axes?  Can you plot faculties as a whole from school to school?   And when you are done, does it mean anything?

Professor-Student Wars and the Second-Person Standpoint

As we turn to a new school year, thoughts turn again to teaching and students, and that's reflected here in the various posts over the last couple days.  I read my co-guest blogger Michael O'Hear's most thoughtful post and the comments just before running out to get our dog's monthly fluoxetine fix at Costco ($6.30 for 30 pills - isn't America great?), and I've been thinking about it the whole time.

I want to begin with some anecdotal observations and link this back to some theoretical work I have admired.  Over twenty-five years intervened between when I stepped out of a law school class as a student and when I stepped back in as a teacher.  In 1979, Bill Gates was still just a couple years removed from dropping out of Harvard and hypertext was still a gleam in Tim Berners-Lee's eye; in 2005, laptops and wireless access in the classroom were an issue.   So even though I had experienced my own "Torture by Power Point" in the corporate world, squirming through hours on end of strategic and operational business reviews, I was not fully prepared for  re-immersion in the multi-media world of the new law school.  (Ask any of my Sales students about my attempt to introduce the Arabian Score v. Lasma Arabian race horse case in Doug Whaley's book with the theme music from Mister Ed.  It was a technological disaster.)

I've previously blogged on the subject of setting up mutually conflicting hypothetical imperatives as the basis for archetypal organizational disputes, and Michael's theme - it's not you, it's us - reminded me this is a nice case in point.  Remember that a hypothetical imperative is an "if - then" directive to action under which the validity of the directive in the "then" clause depends upon situation posed in the "if" clause (hence it is hypothetical).  "If you want to get into a good law school, then do well on your LSATs."   Directing somebody to do well on LSATS is absurd if the person doesn't want to get into law school.  This contrasts with a categorical imperative that, by definition, has no "if" clause; it is always true.  "Do unto others as you would have them do unto you." 

The basic hypothetical imperative works in organizations like this:  "if we want to be more successful and get along better, then you should stop  doing what you do, and interfering with me, and instead accommodate what I do in the way I am used to doing things."

Bear with me for a personal anecdote as illustration.  Faced with teaching a standard doctrinal class for the first time, believing myself to be an engaging sort of person, wanting very much to prove that I could be a professor as I remembered my professors,  and most of all, wanting to shed the  canard of "practitioner,"  I had a pretty clear vision what I wanted to do, and how I wanted to do it.  The idea of Power Point was, for some (entrenched?) reason, anathema.  Perhaps that I could not imagine Gerald Gunther, or Bill Cohen, or Bill Baxter, or John Kaplan standing in front of a Power Point outline.  I also came from a management philosophy heavily biased toward personal accountability and delegation (versus command-and-control).

The academic dean asked each professor teaching a IL class to give a practice exam question late in the term.  It was clear several weeks into the fall term that the students (a wonderful group by the way) were engaged in the usual first term struggle, panicked about what exams would be like, and struggling mightily with the concept of consideration in my class.  I put it to the class, and on overwhelming vote, agreed to give an early practice exam (sounds like what Orin does, but monitored by the LRW profs on a timed basis), based solely on the first sixty-one pages of reading and class discussion.  I did not grade them or even write a full model answer, but I did a pre-test extra session on how I approached exams, wrote and posted an outline of the model answer, conducted a special review session, and did a sign-up for appointments for anyone who wanted to spend thirty minutes while I looked over and reacted to the answer in real time. 

Apparently the student panic manifested itself in a consensus among at least some students that they wanted it as a take-home.   The exam was to take place from 4:00 p.m. to 5:00 p.m. on the same day as my class, which ended at 2:50 p.m.   The class started with a student asking "does it have to be a timed exam?  do you care if we do it as a take-home?"  My mode of going ballistic is probably a forced calm combined with somewhat snarky  sarcasm.  I said, "Are you a legally competent adult?  It's your decision.  I don't care whether you take it home or don't take it at all. There's no attendance taken and I won't know one way or the other.   But  [the LRW prof] and I aren't doing this for us; we are doing it for you.  Now, if you want to pass up the chance, after all this panic, and all the prep we've done, to find out what it's like to take an exam in the heat of a timed session, to feel the pressure of reading, assimilating, organizing and writing a coherent answer in fifty minute, that's your call.  I think you would be inordinately foolish, but I'm not going to decide for you."

So let's assess how professor and students (who, by the way, seem to like each other) are seeing themselves and the other right about now.  I see myself as  carrying on a noble tradition, designed to foster critical thinking and independence, particularly in the face of the world of gray areas and conflicting rules the students will face in their careers.  The students appear to be, in a word, molly-coddled.  The phrase that pops into my mind is "enabling behavior" as for addicts:  see what your soccer moms, television-shortened attention spans, and Power Point outlines have done.

I can't speak for all the students, but based on later discussion, I think there is some basis for this characterization of their concurrent reaction.  They see themselves as victimized by this bizarre language and culture they are being asked to absorb, in a teaching method by and large that is foreign to them, with no clear answers.  And it is coming, at least in my case, from a first-time professor who seems, for the sake of tormenting and confusing them, adamant in not providing a term-long syllabus by which they can anchor themselves, or giving a Power Point outline to organize where we are, or ever coming to a clean, crisp conclusion either at the beginning or end of class.  (As opposed to in the office, where the final line is often "why do I understand it in here but not in class?")

Each side's case can be put in the form of a hypothetical imperative:  if you want to [learn well] [teach well], then you should stop resisting doing things [my][our] way, listen to [me][us], and accommodate [my][our] way.  And this, if not resolved, just cycles.  (If you have any doubt, put into this format any one of your best fights with spouse, partner, significant other, parent, child.)

So there is something special in an insight like Michael's:  the problem is me, not you.  (I actually like that better than the first person plural because it enforces the idea of accountability.)  But I don't think the answer lies in attributing fault to the other (blame) or to oneself (mea culpa), because the problem is  mutual, mirror-image, and from the standpoint of each protagonist, absolutely clear.   Stepping back, the problem would not exist but for the fact that you and I each want a result, but are trying to impose our self-generated hypothetical imperatives on each other.

And now a diminishing returns warning.   I am far better at explanatory modeling of this dynamic than in proposing normative solutions.  As I mentioned in the entrenched interests post, the solution we tried at Great Lakes was deontological, and much of what you have read here was significantly influenced by that experience.  But that approach had its problems as well.  You walk a fine, fine line sounding like you are preaching interpersonal moral duties in the business world, and the approach may have strayed over the line not in its substance, but in its presentation.  Nor is a blog post the place to try for a more fulsome explication.  I'm convinced, however, that there are tremendous insights in the work around the second-person standpoint by Rob Kar (Loyola - Los Angeles), which in turn keys off insights from Stephen Darwall at Michigan.

That work focuses on second-person claims, something with which I continue to wrestle, because I think claims and demands are legal in nature, and law doesn't resolve this problem.  But in the interim, the best students, like Belle Lettre, try to get beyond their own angst, and try to figure out if there is some method in the madness being presented to them (to Orin's and Michael's point, it helps if it is done well).  And it struck me that the best teachers (maybe the ones who are doing it well) try to get beyond their own entrenched interest in doing it the way John Kaplan or Bill Baxter or Clark Byse did it (whether we loved it or hated it), and be thoughtful about what it all sounds and looks like to a student.

Sinking A Forty Foot Putt on the 18th Green

As golfers know, it's what keeps you coming back, despite all the frustration on the first seventeen and four-fifths holes.  I was going to jump in with a no doubt useless insight on the "laptops in the classroom" debate, but instead I read this from Belle Lettre, and thought "encountering students like this  is the equivalent of the long putt in my teaching experience."  And written by someone less than half my age.  I wish I had been that wise.

But if the goal of being a professor is to teach and to impart knowledge and to guide the students through the process of learning, then there is much greater responsibility--even more responsibility than your students have--to be good, because in the being good, there is the doing of good. That good being, of course, the education of young minds and the profoundly transformative effect knowledge has on the young. Once you know something, you can never go back to your state of ignorance. And young people are really ignorant. I know this, because I am a young person. I have learned so much from my professors, and not merely blackletter law (actually, what is that?) I have learned legal history, philosophy, ethics, and once in a while, humor. Law professors have the enviable ability to teach facts, impart wisdom, and inspire their students (by example and oratory) to do "right." And that is the greatest good.

Good Morning, America, How Are You?

Summer is over.  As my friend Belle Lettre might say, this morning I pack up my "gutless" Environmentally Friendly But Economically Yet Unproven Hybrid, and begin the 1,260 mile journey over the course of the next week from Cutesy But Historical Lakeside Hemingway Obsessed Resort Town, through People's Republic Governed But Amazingly Affluent for a College Town (to meet my son and caravan back to Industrial But Prosperous Steakhouse-Infested Amateur and Motor Sports Capital Heartland City), and then continue next Wednesday to Multi-Ethnic and Recently Devastated But a Place to Be If You Want to Make A Difference Southern Party City.  And a year as a visiting professor begins.

Don't you know me I'm your native son.

If a Tree Falls in a Forest. . . .

Larry Solum has highlighted a new article by Michael Steven Green (William & Mary) in which Professor Green responds to a passage in Ronald Dworkin's Justice in Robes in which Professor Dworkin in turn had responded to an earlier criticism by Professor Green.   I will get back to Larry's insight in a moment.

To use a baseball analogy  (I'm from Detroit so it's on my mind), for me, reading this debate (which is densely jurisprudential) is like watching the stars battle in The Show (the Major Leagues) from somewhere in Class A.   I think  I understand what's going on here,  and have even tried to weigh in on it in a couple articles (here and here), but to mix my metaphors, see the title to this post.  (That sounds self-pitying; it's not.  I've learned much from Professor Green; he has a wonderful article that explains Hans Kelsen's Pure Theory of Law.)

I want to pick up on Larry's comment "I must say it is hard to pin Dworkin down" because I've had the same reaction.  The Dworkin-Green debate  is the stuff of classic "what is law?" jurisprudence.  To Dworkin, it is anathema that law qua law be devoid of moral content - hence, the decades long debate with the positivists, from H.L.A. Hart on.  If I can boil this down, Dworkin is picking up on modern philosophy of language in which it is posited that words do not have inherent meaning; meaning is a matter of shared attribution of concept to verbal symbol.  Professor Dworkin seems to be arguing that in using the shared language of law, there is also a shared moral understanding inherent in the use of the verbal symbols.  And that is what Professor Green identifies as the fallacy: the conflation of the two.  As he says in his conclusion:  "It is one thing to say that the content of the concept of law is revealed through reflection on the linguistic practice of using that concept.  It is quite a different thing to say - as Dworkin does - that the law of a jurisdiction is revealed through the moral interpretation of a jurisdiction's legal practices."

I have tried to argue that you can simultaneously be a positivist, believing that law can be law as a mundane or inglorious or even evil (like Nuremberg Laws) social structure, and not give up on the belief that there are some moral universals out there.  What Dworkin tries to do, again and again, is to import those moral universals into the law, I assume believing that law loses its what? majesty? integrity? if it does not grow out of, or incorporate, moral roots.

In Law as Rationalization, in which I was trying to get at the difference between our use of and response to law versus our response to ethics in a business context, I wrestled with what I thought was a similar conflation by Dworkin.  (He has not bothered to respond to it; but I'm not in  The Show!)  To Larry Solum's point, he is very hard to pin down.  In an article entitled "Objectivity and Truth:  You Better Believe It" (25 Phil. & Pub. Affairs 87 (1996)), Dworkin tried to tackle post-modern relativism, a project to which I am wholly sympathetic, by arguing there were objective moral facts, but that we (read: Dworkin) just know what they are in a quotidian way without having to resort to metaphysics.  Again, for a good Kantian, whether a moral proposition is objectively true is not even part of the game; that's the difference between using reason to access knowledge, and using reason to access a moral imperative.  There is no need to prove the latter is true.  But that seems to bother Dworkin immensely. 

So what he does is to posit a not-fully-post-modern thinker who believes in a  first order proposition like "murder is wicked"  but is skeptical  you can make a statement like "it is objectively and always the case that murder is wrong."  In the effort to establish the objectivity of the moral truth without resorting to metaphysics, it seemed to me Dworkin engaged in another fallacy:  to collapse the two propositions together, contending that because any moral proposition is making a claim that it is ipso facto an objective truth.  (This sounds reminiscent of the ontological proof of God - perfection implies existence - that Kant refuted.)  He doesn't so much refute the skepticism of the second proposition as much as simply to announce an alternative:  morality is so deeply imbued in us we ought to just accept it.  Essentially he is saying: accept a metaphysical reality without the bother of metaphysics.

Teaching and Scholarship, Part Quatre

There is presently going on over at the Empirical Legal Studies blog an on-line discussion of Ben Barton's paper on the relationship (or lack thereof if you buy Ben's conclusion) between teaching and scholarship.  Commenters are Bill Henderson and Jeffrey Stake from IU.  This has popped up in the blogosphere several times, hence Part Quatre or Cinq.

I know just enough statistics to be dangerous (see here and here), and probably haven't been around the academy long enough to earn the right to comment, but Dan gave me "full author" access, so I'm going to jump into the fray, and offer my usual array of well-chosen witticisms and observations below the fold.

UPDATE:  More on this topic from Vic Fleischer at Conglomerate  here.

1.  One of the questions is whether the data on the dependent variable, teaching quality, which is derived from student evaluations, is reliable.   This is not an unusual problem, and occurs whenever we seek to support a  hypothesis with quantitative proxies for the non-quantitative attribute.  What you end up with is a good measure of the proxies, and it's another question entirely whether the proxies have anything to do with the attribute.  (Like do the indicia of independence of directors in Sarbanes-Oxley or the NYSE listing requirements have anything to do with directors acting independently?   Are those indicia good proxies for intellectual or moral independence?)

Ben offers several reasons we should rely on the data, including a variant of the "street light" defense ("Why are you looking here for my lost ring when I dropped it across the street?"  "Because there is no light over there.")  My own reaction to personal evaluative data is based on years of looking at my own performance evaluations, other people's performance evaluations, reams and reams of so-called developmental "360 studies" on myself and others, collating hiring interview reactions, and talking to very, very good HR people about what they all mean.  I conclude the data is qualitatively but not quantitatively reliable, but only after being scrubbed.  What that means is when you analyze it, at least in the corporate setting (and that's how I approached my own student-generated teaching evaluations), you have to ignore the best and worst comments, and take single points of criticism or praise as marginally meaningful. Repeated themes (even if they are not independent) are very, very helpful for individual development, but difficult to use as bases for quantitative comparisons between people.

UPDATE:  Bill Henderson thinks the data is better market information than most corporations can gather.  See here.  That is a fair point, or at least distinguishes the more limited data in a performance review.  It's also a fact that not just presumably rational students rely on it; presumably rational appointments committee seem to as well.  Or if it's not fully rational, it's a useful heuristic.

2.  If the conclusion is correct, so what?  Would a different finding change anything? Vic Fleischer over at Conglomerate made an acute observation about teaching (in this case, venture capital) that seems like CLE, and teaching that invokes some semblance of scholarship.  As a former practitioner who got into the game first as an adjunct, that was exactly the problem I faced.  I wanted to teach like a legal scholar, not like a CLE presenter.  And my impression was that students knew when they were getting a "talking head how-to" presentation.

I think the issue has a lot more to do with the evolution of legal scholarship from its trade or professional school roots to its present status within the research university.   Jeffrey Stake is onto something in suggesting there is a complex causal if not quantifiable relationship; but I suspect we'd like to believe in any event there is one.  But if there isn't, so what?  Most of our students seem to care far more about being prepared for the bar exam questions on contracts than whether contract law should be based in efficiency or the affirmation of moral promise.  But that won't stop me from teaching the latter, whether they like it or not!

3.  Here's what I'd like to see, not that I don't respect the empirical work being done.  Instead of worrying about overall whether scholarship and teaching are related (because little will change whether they are or they aren't, and both are valued), I'd like to see us thinking about how to use scholarly issues to make us better teachers, or to face down the theory/practice and doctrinal/clinical divides.   
 

Corporate Silos and Entrenched Interests: A Kantian Analysis

This will be a memorable post because I have decided to reveal two, well, if not secrets, then little known facts. First, I am "Unnamed Kindly Avuncular Professor Friend" to whom Belle Lettre referred in her recent post on the perils of empirical research. (I tried to convert that title into an easy-to-use acronym, but it kept coming out obscene.)

Second (for readers in academia, this should constitute side-splitting comedy), some time ago, while still a practitioner, I actually submitted my C.V. in several law school decanal searches, and in one instance, managed to get to the second set of on-campus interviews, perhaps as the token "non-traditional" candidate. (I never tell this story to faculty members while they are eating for fear that I will be called on to administer the Heimlich Maneuver.) Good sense prevailed, and I was roundly laughed out of town, but it was a learning experience.

But this post is not about my chutzpah, or my ability to deceive myself ("O wad some Power the giftie gie us/To see oursels as ithers see us!"). A Kindly Tenured Law Professor Friend (as Belle would say), while simultaneously expressing thanks that it wasn't HIS school that was interviewing me, told me what a practitioner would need to learn about being a dean:

It would require far more education, because the dean would have to be educated on the kind of entrenched interests academics have, and how tenaciously they hold to them even when it makes no sense to do so...

The philosopher in me wanted to know: What are the entrenched interests of academics? Even if different in specifics, are they different in their fundamental nature from the entrenched interests to which others, including non-academics, hold tenaciously even when it makes no sense to do so?

My observation was that entrenched interests are hardly unique to academics. They are the sine qua non of corporate organizational dynamics, and the backbone of the functional silo. In companies, it is line versus staff, or corporate office versus the division, or accounting versus legal, or IT versus everybody (particularly when the servers are down). All solutions are consequentialist. Within the human resources department, the OD (organization design) people and the compensation experts (is a deontological compensation expert an oxymoron?) fiddle with the reporting matrices and the structure of the bonus system to find the optimum means of causing executives to have the wisdom to know when to push for their own divisional or functional interests and when to give in for the greater good (the share of stock in a single company that is all that matters to the shareholders).

In all but the greatest companies, the problem was that it either did not work, or if it did, it reified into a corporate culture (read: entrenched interest) that became over time "the way we always do it." A healthy portion of leadership is dealing with the way the world manages to change yesterday's radical and creative solution into today's problem of entrenched interest. My thesis is that, in fact, it is the sine qua non of human nature to have entrenched interests “onto which we hold tenaciously even when it makes no sense to do so.” And there is no entrenched interest more fundamental for success-oriented people (say, professors or senior business executives) than being right.

I won't attempt to prove the point empirically, but I'm willing to generalize that making our point or upholding a principle, or avoiding being blamed for a mistake, is as or more important than the financial reward. Design engineers create theoretically beautiful but unbuildable designs and blame those idiots in manufacturing for being unable to come up with solutions; the manufacturing people (on the same team, mind you) have an unmistakeable schadenfreude when the designs fail. Sales would write major long-term contracts to sell to death-row inmates if it made quota, and blames the credit department for being "too conservative" in its approvals; the credit department is willing to have the company lose money just as long as it keeps bad debt below its annual goal, and wonders why it is that the sales guys can't seem to find anybody who pays cash anymore. No wonder team production in the corporate world is so hard to understand.

Getting to the solution is far harder than analyzing the problem, but our most interesting stab at it was deontological. (That didn't work either, but sometimes you cannot make a silk purse out of a sow's ear or a robust company out of a flawed business model.) Were it possible to be a Kantian as a matter of organizational behavior theory, the categorical imperative would say the right thing to do is that which is right despite entrenched interests (i.e., if we would will that entrenched interest to be a universal law, then it is right). It's certainly easy enough to see someone else's entrenched interest. But I too have entrenched interests, and I too hold onto them even when it makes no sense to do so. The dysfunction arises when each of us sets up our entrenched interests as hypothetical imperatives (“if – then” propositions of what we should do) in active or passive resistance to each other. Think about the conflicting hypothetical imperatives likely offered by the protagonists in the following archetypal disputes: operating divisions vs. corporate office; credit vs. sales; faculty vs. administration; health and safety compliance vs. plant management; law school vs. university. (I would add we quickly fall into abuse of the second categorical imperative, in which others - autonomous rational agents - become means to our entrenched interests, rather than ends in themselves (or objects versus subjects)).

My law professor friend told me that even with the best intentions, deans finally tire of herding cats, and resort to command-and-control. I truly believe even in the corporate structure we are all volunteers, and command-and-control is an illusion of power. I suspect (and this is a personal challenge for me) the first step in overcoming entrenched interests is personal humility, and the recognition that before I can tell you your entrenched interests are wrong, I need to be introspective and humble and honest about mine. It means dealing with the paradox that despite all we have learned and all our accomplishments, we are only great teachers (and great leaders) if we continue to be great learners.

Charisma and Trial Practice

In a comment to my earlier post on charisma, Paul Gowder raised an interesting point. Paul wondered how much charisma is dependent on the context of, and proximity between, charisma source and charisma object. He also observes there must be research on this. To quote another great Brian Sullivan line, that won't stop me from proceeding with all the confidence that comes from complete ignorance of the subject.

There must be research on this issue in the context of jury practice. I was thinking about the Law & Order episode (from the Abby Carmichael days) in which the young woman juror is bamboozled by the serial killer defendant, hangs the jury (and ends up stabbing him post-trial). The relationship between counsel and the jury, particularly in extended trials, is artificial and odd. You are physically close to the jury, particularly if you have the plaintiffs' counsel table next to the jury box. You can look at each other, but you can't talk to each other, verbally or non-verbally (other than everybody says "good morning" first thing). But stuff is going on that has to resemble charisma-output. Certainly as counsel you start to attribute personalities to the jurors, even though they never say a word! (You don't get that watching Law and Order, by the way. All you see are the occasional jury reactions to colorful testimony by the witnesses.)

A couple anecdotes and thoughts below the break.

1. Irving Younger, in his classic video taped lectures on trial practice, talks about both verbal and non-verbal control of the courtroom. One of my colleagues used to quote his line about keeping the counsel table neat: "all you should have is a single bound notebook and a pencil, and the pencil should be pointed at the jury."

2. You never quite know what is going to cement a non-verbal relationship. In 1983, we were trying a securities class action (we represented plaintiffs) in the USDC in Grand Rapids, Michigan. My job was to be document-meister (remember this was before micro-computers, much less laptops, were around). We rolled a filing cabinet into the courtroom. When the senior partner needed an exhibit we hadn't already pulled out for the witness examination, I would get up from the counsel table near the jury box, go to the cabinet, pull it out, walk back, and hand it to him. On the second day of trial, somehow I managed to pull the wrong one. Don, our senior partner, gave a big charming smile (Don's regard for his own trial charisma is another story entirely), and said, "no, Jeff, that's not it." So I went back and pulled the right one. The next day we settled the case and the jury was dismissed. The judge let us interview the jurors. One young woman said to me, "oh, when you pulled the wrong document and Mr. Young said something to you, your little cheeks got all red. It was so cute."

3. We had an extended trial (eight weeks, maybe?) two years later in the USDC in Cheyenne, Wyoming. After the trial was over, the same partner received a letter from a juror with a lengthy poem about the case, including the fact that apparently in the privacy of the jury room, the same partner (Don Young) was referred to as "Captain Energy."

4. When I was in high school, F. Lee Bailey was defending some alleged mobsters in the USDC in Detroit. Several of us went down to watch the trial one afternoon. The man had charisma. It enveloped the courtroom.

5. To Paul's multiple points, there must be research on this. Mine are also, no doubt, worthless data points. Systematic research might well explain part of it; whether you could use it to teach lawyers charisma power in the trial setting is another question. Where are the psychologists?

Homage to Brian Sullivan (or, Thoughts on Personal Force)

What makes charismatic people exude their personal power?   I have heard stories about people (of all political persuasions) encountering Bill Clinton in person - is it size? looks? the fact he is/was the President?  (On the latter point, perhaps "is" counts, but a recent personal experience suggests mere "was" does not.  I was in New York in May for my daughter's college graduation, and was walking down Lexington Avenue early on a Saturday morning to get a Starbucks.  A group of people were coming up the street in kind of a funny formation, with two small older people - a man and a woman - in the middle.  I recognized the man as somebody I knew - in fact, in the first instant, I thought he knew me too, because he made eye contact and smiled at me.  Then I realized it was Jimmy and Rosalyn Carter, walking up Lex (holding hands, by the way, it was cute) , neither of whom I know, and the odd formation was the Secret Service contingent.  It was cool, but it was not charismatic.)

Two people in my career with whom I've had more than passing contact have exuded such personal force as to make me wonder how it happens.  One is Larry Bossidy, the former chairman of Honeywell/Allied Signal.   Bossidy is a public figure and best-selling business author, so I don't need to comment on him.   Instead, I want to consider Brian Sullivan, who from 1981 to 1990 (the "Wonder Years," three through twelve, of my law career) was the Executive Partner of the Dykema Gossett law firm based in Detroit.  (In creating the link to its web site, I had a Brian Leiter " wild hyperbole" moment.  Its motto now, I guess, is "A Law Firm Unlike Any Other."  That is either (a) an unremarkable statement of the obvious, unless they are cloning firms now, or (b) the law firm version of what Brian would call Sextonism.  Brian Leiter, that is.  But I can imagine Brian Sullivan having a similar view of the slogan - see below.)

Some of Brian's more memorable exhibitions of personal force, and some speculation on the nature of charisma and personal power, continue below the break.

I have not seen Brian in many years (he pretty much retired cold turkey).  He was about 5'11, a Harvard Law School grad,  jut-jawed, square-faced, with white hair slicked back straight from an even and not very receded hairline.  His voice was very deep and he spoke loudly.   Supposedly he had been a boxer in college.  He had a legendary Irish temper, known to recede as quickly as it flaired up.  He had a stable of high-powered clients, many of whom hired him after having seen him perform on the other side in a negotiation.  When he laughed, it was kind of a bark, but I don't think he had much of a sense of humor.  In 1984, I was asked by one of the other senior partners to organize an associates'  skit/roast (in which now-Professor Lee Pizzimenti of the University of Toledo Law School played a leading role).  My best friend (in the law firm and life), Alan Greene, played our administrative partner, a non-descript bureaucratic fellow with the unlikely name of Henry Clay (known as The Great Compromisor), who, among the associates, was best-known for being Brian's lackey and wearing his pants belted somewhere around his armpits.   Alan, wearing a pair of pants belted around his armpits, began his part of the skit (an announcement by Henry of new administrative cost saving measures, like conserving on paper clips) by walking out on stage and unrolling  posters of Marx, Lenin, and Brian.  We also asked a black associate by the name of Avery Williams to play Brian in a white George Washington wig.  It was the last associates' skit for almost seven years.

One partner told a story of Brian getting mad because a dictaphone wouldn't work, and throwing it against the wall, whereupon it began working perfectly.  The partner watching this said, "well, Brian, you just scared it into working."   

Despite his lack of appreciation of others' humor, he had a dry and deflating wit.  I personally have many times quoted his description of his main job as the leader of a law firm partnership:  "keeping the troops sullen but not mutinous."  (I recommend that to deans. )  A young lawyer was bragging about having billed twenty-two hours in a single day.  Brian's response:  "I wouldn't want to be the client paying for the last eight or ten of them."

I encountered his direct management style once.  I was -  how should we say this? - a bit brash, even a little cocky,  as a young lawyer.  It didn't help that I looked about nineteen when I was twenty-seven.  I was trying to get reimbursed for a trip and getting frustrated and I was probably just a little too abrupt on the phone with his secretary.  About an hour later, I was summoned to his office, where Brian, face beet-red, threw a one-paragraph memo at me, and said "Read this."  It was a fairly accurate description of my conversation with his secretary.  Brian asked, "Is it true?"  I said, "yes, and I'm really sorry.  I will apologize to Carol."  He replied, "you are a really smart guy and a fine lawyer, but if you can't get along with the staff, you have no future with us."

But I have always wondered about that personal force.  Was it the voice?  The temper?  The white hair?  I speculated that it was a combination of two things:  (a) despite the temper, amazing self-control and calculation, and (b) just not caring what other people thought of him.  As to the first, another partner told the story of Brian just reaming an opposing lawyer in the hallway of the Wayne County Circuit Court, and in the midst of the tirade, winking at the Dykema associate standing behind the unfortunate victim.   As to the second, I once speculated that personal power arose because there was an imbalance between two people in terms of how much each other cared what the other one thought.  I cared a lot about what Brian thought of me; Brian didn't seem to care what ANYONE thought of him.  Consistent with that was something Brian told me about negotiating style.  He thought you gained an advantage if the other side thought you were just a little bit irrational and needed to be placated; he once told me it wasn't really a negotiation if he hadn't walked out at least once.

That never worked for me; I always wanted to be loved more than I wanted to be feared.

Class Prep?

I can't say that I don't like prepping for a new class, because when I'm into it, it's always pretty interesting.  But it does take a psychic commitment to buckle down, and I find myself easily distracted (like today) by blogging, e-mail (because I take notes on my laptop), and anything else going on around me.

Recognizing that this is a matter of personal style, I'm still curious how new professors most effectively prepare for a new class.  Last summer, I did extensive class notes (even to the point of inserting reminders for good one-liners) through the summer, and found from time to time either that I was a little stale, or I was redoing everything anyway just before class.  This summer, I am reading and briefing the cases, but not doing class notes until a couple weeks before.  The other alternative is not to do anything over the summer but research and write, and do all the class prep during the school year, something that would significantly raise my anxiety level.

Any thoughts out there?  Please don't respond if it would distract you from class prep.

Being Right and Radical Skepticism

This may be sucking up to my hosts, but I wanted to explain why I so much like the PrawfsBlawg "one line bio": "Just some friends trying to get the arguments right."

I will post something later in my guest tenure on being right (based on a talk I gave once, the sub-title of which was "Being Right is Not All It's Cracked Up to Be.")  There's clearly something unnerving about an encounter with someone who knows without question, to a God-like certainty, with no doubt whatsoever, precisely what is right.  (I believe some things are right almost to a certainty, but I don't know them; but that's epistemology for another day.)  The opposite extreme is the kind of post-modern radical skepticism of a Richard Rorty or, as Frank Snyder skewered in his wonderful essay on blogging, Duncan Kennedy.  I liked Charles Fried's response to the radical skepticism or cynicism of Posner's pragmatics, which linked it back to rightness:  "As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once."  ("Philosophy Matters," 111 Harv. L. Rev. 1739, 1750 (1998)). 

My recommendation to Kim's reading list request reminded me that I prefer to take the example of another Harvard-educated lawyer who lived through turbulent and heady times of change, revolution and learning, here in an excerpt from David McCullough's biography.  John Adams believed he lived in "the greatest of times...the eighteenth century."  But:

Human nature had not changed, however, for all the improvements.  Nor would it, he was sure.  Nor did he love life any the less for its pain and terrible uncertainties.  He remained as he had been, clear-eyed about the paradoxes of life and in his own nature.  Once, in a letter to his old friend Francis van der Kemp, he had written, 'Griefs upon griefs! Disappointments upon disappointments.  What then?  This is a gay, merry world notwithstanding.'"

 

It is a world in which Adams would have, I think, treasured the democratization of information through the Internet.  At the same time he would have understood the paradox - that the wisdom, not randomly distributed, to sort through it all, or to teach others how, was an even more valuable commodity on account of it.  And that the right way to approach the task is somewhere between radical certainty and radical skepticism ("trying to get the arguments right") with a touch of humility ("just") and in a mode of civil, or more than civil, discourse ("some friends").

Solum on Reasons

Larry Solum calls Doug Berman's post on "reason or no reason at all" "nifty" and weighs in with his usual well-considered thoughts here.

Of Reasons and Causes (And Beating a Dead Horse?)

I will take the bait dangled by Doug, Russell and one of the commenters to offer up the philosophical interpretation of "for any reason or no reason at all," and suggest it appears in Joe Slater's explanation of the cause of action for harm caused by the actions of a mentally disturbed person.  (Joe, you are a lawyer worthy of your bar card in scurrying away from metaphysics as quickly as you can, as pointed out here.)

One way of looking at why things happen in the world is to distinguish causes from reasons.  Here's a demonstration of the difference:

Of all [intentional] actions the question can be asked:  Why do that?  This question asks not for a cause or explanation, but for a reason.  Suppose someone asks me why I struck an old man in the street.  The answer "Because electrical impulses from my brain precipitated muscular contractions, and this resulted in my hand making contact with his head" would be absurd and impertinent, however accurate as a causal explanation.  The answer "Because he annoyed me" may be inadequate in that it gives no good reason, but it is certainly not absurd.  Reasons are designed to justify action, and not primarily to explain it.  They refer to the grounds of an action, the premises from which an agent may conclude what to do.

(Roger Scruton, "Kant" in German Philosophers (1982), 69-70.)

A Kantian invokes the concept of personal autonomy and will, versus heteronomy and physical cause.  What makes me a person is my ability to act out of duty or compulsion (including the compulsions of hunger, passions, emotions, etc.), and my freedom to will the choice - obey a duty or succumb to impulse.   Reasons, if they exist, justify action.   I may do something for a reason (I choose duty or passion) or no reason (I don't bother choosing; I just do).  If the legal standard says "for any reason or no reason,"  I am simply given the choice whether to justify or not to justify.  Moreover, to pick up on Joe's point about the absence of at will liability for the actions of a mentally ill person, if I am not a rational person, and hence do not have will in the matter (a mental defect), then the explanation is by cause not reason, and we do not ascribe blame or liability to the mere cause and effect of unwilled activity in the physical world (except strict liability, but that invokes the corrective justice debate in torts and I don't want to go there).

The key, though, is to see the answer to the question "why did that happen" as different in calling for a reason (justification of the action by a rational being) versus a cause (why the action occurred in the physical world).

A Thought Experiment on Norms

There are a number of theses out there on why we obey social norms, including those that have achieved the status of law. (My interest in this arose out of many years of attending public company board meetings, in which non-legal norms seemed to me to be far more important than legal norms.) My scholarly introduction to the subject included Eric Posner's Law and Social Norms, and Lisa Bernstein's work on dispute resolution in the New York diamond district. Without giving either piece its just due, it seemed to me there was something out there about norm-following that was beyond the rational calculation implicit in the game theoretical approach taken by those writers.

There are some approaches that seem to try to bridge the gap between the fully consequential and the wholly deontological. Several weeks ago, Larry Solum highlighted Tom R. Tyler's new book Why People Obey the Law. Tyler's study claims, based on empirical research, that people obey the law because they are inclined to respect legitimate authority. But why do they respect legitimate authority? I thought about a short essay John Mikhail has recently posted, The Poverty of the Moral Stimulus. He does empirical work on the idea that there is "poverty" in the stimulus to which we have a moral response suggesting that our reactions (akin to the poverty of the stimulus in Chomsky's linguistic theory) are innate.

How do we explain our need for order? Below the break, I offer a thought experiment and some theoretical propositions based on that most quotidian of experiences, changing one's driver's license.

Because we are moving, I had to change my address at the Indiana Bureau of Motor Vehicles. I know from experience that I can hedge my bet on the wait time by showing up at 8 am, thirty minutes before it opens, to be among the first in line (i.e., I have to commit 30 minutes, but I know I will avoid the 2-3 hour horror show wait).

In fact, this morning I am the first one there. I sit down (with my iPod and my BA casebook to read a couple partnership cases in prep for the fall class) on the curb. People begin to show up, and they all seem to respect the norm that you line up, and by 8:25 or so there are about thirty people in line, waiting for the door to be unlocked.

At about 8:26, a tall thin sort of Mick Jagger/Tim Curry looking guy, smoking a cigarette, and appearing somewhat agitated, walks up to the door (close to me) looks at the posting of the hours of operation, peers into the storefront window, and parks himself as though he is going to cut into line before everyone. I am leaning up against the door next to him, and wait a minute or two so as not to prejudge his intentions. I can see from others in line that we are on the same page: cutting in line is not right. I say to him: "do you realize that there are about thirty people in line?" He replies: "do you realize this is America? what is your problem?" (a non-sequitur I decide not to try to interpret). As the BMV employee opens the door he kind of jostles his way into the queue now walking in, and a fellow just behind says, "hey, bro, you aren't cutting in front of me." But Mick just races to the front, and the rest of us all look at each other. I cough loudly the word "a------!" and try to organize a cheer in which all thirty people say "a------!" on the count of three. (Maturity was never my strong suit.)

(This thought experiment can be replicated in the taxicab line at LaGuardia at 6:30 pm on any Friday if somebody tries to cut in.)

Now here are the theoretical propositions:

1. There was a breach of the social norm, but it was almost entirely without consequence (a minute or two difference). Nevertheless, there was a palpable communal sense that a norm had been breached.

2. The breach was significant enough to cause at least two members of the group to say something, and I am pretty sure the "hey bro" guy at least thought about a physical response (he was bigger than me!).

3. For others, it clearly had a "disruption in the force" kind of effect.

4. Accepting the blurb as a working thesis of his book, "Tyler suggests that lawmakers and law enforcers would do much better to make legal systems worthy of respect than to try to instill fear of punishment. He finds that people obey law primarily because they believe in respecting legitimate authority." I want to suggest this may be true, but want to posit a second order proposition, based on the little thought experiment at the BMV. We respect legitimate authority because of an innate sense of order, the disruption of which is offensive to us, even if there is no consequence to the disruption.

5. The sense of order is a priori. When the particular emanation of the sense of order conflicts with the real world, it can be the source of pure ideological disputes, like my rabbi getting really cheesed off when I don't wear a yarmulke into the sanctuary.

6. The a priori sense of order is at least as important to the establishment of social norms as a posteriori consequences of their breach (say, as studied in Lisa Bernstein's work), because the sense of breach occurs even when there is no consequence. The a priori sense of order is at the heart of Rules of Recognition (my discussion of Kelsen's Pure Theory of Law is here.)

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

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

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

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

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

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