As Gordon mentioned in his introduction, since I last blogged I've been up to a bunch of things, but by far the biggest is having a baby. I know there are blogs devoted to motherhood, and blogs about academic mothers, and I'm pretty sure everything I might have to say has already been covered there. But maybe novelty is overrated. I know a few people close to embarking on this particular voyage, and this one’s for them.

A year after giving birth, here's what I'd tell my pregnant and worried former self:

1. Don't worry, you'll still be you.

2. Labor and delivery isn't the hard part; it's the first 2 weeks and then 2 or 3 months afterwards.

3. Your world will become increments of minutes, hours, days, weeks: She slept 2 hours 40 minutes. She's 11 days old. We have our 2 week appointment tomorrow. The days will rush by, though some minutes will seem endless.

4. Singing to your child will bring rushing back memories of songs your mother sang to you, and remind you of how important and magical those songs were when you were small.

5. You won't be in control. Get used to it.

6. Professors can devote every waking hour to work, and still have more to do (more to read, write, think, more to prepare for class). Cara marvels at the shadow her small hand makes on the wall, and then I stop and see it too.

6. You'll still be you. It will take time, but you'll put your life back together, and there will be space for you. I promise.

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I decided to see how often the Internal Revenue Code and Immigration and Nationality Act have been amended of late.  And, as you probably expected, nothing beats the IRC for congressional tinkering.  Here's the number of sections of the code amended since 2001:

For a little comparison, here's the number of sections of the INA over the past few years:

Both huge statutes, both big issues - but man, Ways and Means stays involved in our tax affairs.  The DHS oversight people and Tom Tancredo have nothing on those guys.

Of course, the methodology employed here might be suspect.  Here's what I did, and I'd welcome your comments about what I did wrong.  I downloaded the credits for each section of each act from Westlaw.  That gave me a massive text file.  Then I used Concordance to give me a frequency count for each time a year was cited in the credit sections.  And voila, a hit for each year that the GPO recorded an amendment for each section.  Of course, I'm sorta depending on the GPO or whoever to accurately record amendments, but I'm not really sure how else I could do it.  Thoughts?

Permalink | Taxation | Comments (3) | TrackBack (0)

As I mull over law, literature, and business, I've been intrigued lately by a literary simile of my colleague Alex Scherr. My riff on it is that the litigator is like a novelist. He tells the jury a story. The deal lawyer is more of a playwright. She writes a script, sets the stage, and tells the actors what to do with the props. Generally she gives instructions as to how the actors are to behave, but she is not the actor, in either the theatrical or physical sense of the word. The novelist is ultimately in control of the action, but the playwright is at the mercy of others-- who are sometimes less than faithful to the script.

I'm not sure the description completely works, but I think it's this separation from "the action" that surprises and frustrates many young transactional attorneys, and helps explain why many of them ultimately move from law to the business side. There they make the decisions rather than just setting the stage.

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Agencies that want to formalize their cooperation with one another don't conclude treaties, and they don't pass regs.  They sign Memoranda of Understanding (MOUs).  MOUs don't require all that pesky process and reflect an increasingly interconnected regulatory enterprise.  What's more, the SEC likes them.  It has concluded MOUs with many foreign security regulators, and now the agency is on a domestic tear.  It just did a deal with the Fed.  Not the fanciest deal, to be sure:

Under the MOU between the two agencies, the SEC and the Board would share information and cooperate across a number of important areas of common interest including anti-money laundering, bank brokerage activities under the Gramm-Leach-Bliley Act, clearance and settlement in the banking and securities industries, and the regulation of transfer agents. The MOU specifically covers bank holding companies and so-called Consolidated Supervised Entities that own securities firms. It builds on and formalizes the long-standing cooperative arrangements between the SEC and the Board, as well as the more recent cooperation on matters including banking and investment banking capital and liquidity following the Board's emergency opening of credit facilities to primary dealers.

With the President's Working Group coordinating policy, with Paulson's blueprint proposing to merge regulatory responsibilities, and with these MOUs, it is fair to say that there's a new mood about coordination afoot in Washington.  How much of a mood?  Consider this:

The SEC recently entered into a similar MOU with the Commodity Futures Trading Commission. An agreement between the SEC and the Department of Labor is anticipated later this summer.

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Have you seen Dan Ernst's excellent series of posts on the evolution of American bureaucracy at the Legal History blog?  Here's an overview and a primer on Dan Carpenter's approach to bureaucratic history.  Here's a great primary source on the downside of price controls during WWII.  Here's a pedagogical take on the case that might have precipitated the NLRA ("Debs decisively resolved lingering doubts about whether the equitable remedy of injunction was available in labor dispute," Ernst says).  And finally, here's a heap of 1930s realism, e.g., how international law is bunk (to Jerome Franck, at least), and double e.g., about how corporate law is bunk (to James Dill, at least).  Well worth reading, if you like your history. 

Okay, just a couple more: this is why Harvard men are so great, at least as far as the Department of Agriculture was concerned.

Permalink | Administrative Law | Comments (0) | TrackBack (0)

I am packing for a few days at Camp Steiner with my twins. Camp Steiner is the highest Scout Camp in the United States (elevation 10,400 feet), and the following was taken from a story in the Deseret News last week:

Camp Steiner, a High Uintas Camp in the Great Salt Lake Scout Council, will still open for the season today as planned, despite unusually wet and muddy conditions there....

   Kay Godfrey, spokesman for the Great Salt Lake Council, said Camp Steiner is opening at its regular time.

   "They'll open up just fine," he said. "A little wetter than usual."

He said the camp still has 2 feet of snow under some trees, but the council punched the road through to the camp a few weeks early this year to ensure it dried out.

From flooding in Wisconsin to a typhoon in Hong Kong to this. I am very much counting on my trip to Laguna Niguel on Thursday to salvage my summer travel.

Permalink | Travel | Comments (0) | TrackBack (0)

As we developed our new blog design, we decided that we liked our modest, but functional, sidebar. Nevertheless, we have added two features:

• The first feature isn't new to our blog, but a couple of us wanted our del.icio.us linkroll back. We lost it a couple of months ago when it inexplicably stopped displaying bullets. Fortunately, it works with the new blog design, and you can find it in the sidebar under the heading "Random Walk." The idea behind the linkroll is simply that all of us read lots of stuff that is linkable, and we don't always want to write a full-blown post when we find something interesting. This sleek widget (even sleeker if you get the Firefox extension) allows us to share the best of what we find.

• The second feature is the Twitter widget. We realize that  lots of people have complaints about Twitter -- and many people are agog over Friendfeed -- but these two applications seem quite different to us. In any event, we are going to experiment with Twitter because  ... well, because something is happening with micro-blogging, and we are interested to see where it leads. Remember that bit about "thinking by writing"? This feature was added in that spirit.

Of course, those who access Conglomerate through a reader can skip these features altogether, so I will be watching our subscriptions to see if we get a sudden spike.

UPDATE: Ok, I am a little slow on the uptake here, but just after I posted this, it occurred to me that Friendfeed = del.icio.us + Twitter + more. In other words, it seems to me that Friendfeed might do both of the things we are looking to accomplish with the two features described above, plus allow for more interaction with readers. The two features are just us pushing content, but Friendfeed allows comments on that content. Any Friendfeed users have thoughts about this?

Permalink | Administrative | Comments (0) | TrackBack (0)

Just like it sounds, this site allows you to enter a website to see whether it's down.

And this part you could have guessed: the founder works for Twitter.

Permalink | Internet | Comments (0) | TrackBack (0)

Have you seen the new Versus ad for the Tour de France? "A new stage begins" is an in-your-face rejection of Jan Ulrich, Michael Rasmussen, Floyd Landis, Alexandre Vinokourov, and other past dopers. A clean Tour? I am not so sure, but I think we can safely say that we are all happy to see the end of the "cyclysm" ads.

Permalink | Cycling | Comments (0) | TrackBack (0)

That's how TDF Blog describes Versus television coverage this year: "Gone is Al Trautwig, who combined bombast and ignorance in staggering proportions." With at least one exception, that would most certainly be the consensus view. Here is a funny post from La Parisienne:

I love waking up at 6 am on a Sunday morning to watch the race go through the mountains. I love the constant commentary of Phil Ligget and Paul Sherwen. I love watching the primetime coverage in the evenings when I've already seen the morning live coverage. I love correcting Bob Roll and Al Trautwig during the primetime coverage when they get the name of a rider or location wrong. I love yelling at the TV before anyone is awake. I love complaining about the riders I hate when they do well, and boasting when my favorites win. I love the dumb look on everyones face when I tell them that I like to watch the Tour de France, and then proceed to not shut up about it for at least an hour. I love that I am the only person I know that I can talk to about this sport at the level that I love and understand it. I love walking into bike shops and asking what race they are showing on their TV in the winter, and then when I proceed to detail what happens throughout the race, who wins, who crashes, who tried hard, who didn't try hard enough, only to have the staff at the bike shop look at me with the sort of admiration I have when I look at Phil Ligget and Paul Sherwen.

I love the month of July like you wouldn't believe.

I love the Tour de France.

I love that it starts in less than 12 hours.

And another from Bike Dummy:

I love the Tour de France for the same reason I love lots of sports.

The thrill of victory!  The agony of defeat!  The rivalries, the scandals, the awesome athletic achievement!

But mostly, I love watching the Tour because I love the live commentary.
I think Paul Sherwin, Bob Roll and Phil Liggett make the best team in sports.  (Thank goodness they finally ditched Al Trautwig)

Bobke is the most colorful - "It'll be a virtual schmegelfest of subhumanoids." Sherwin is the set up man - "the peleton is nervous today, trying to avoid the fracas at the rear."

But personally, I love Phil Liggett.

No prologue this year, and that's another bit of good news for Tour watchers. The first stage was more exciting than usual.

more ...

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The Times gets wind of, and gives big play to, accounting standards harmonization on a slow news day.  Tea leaf readers would probably characterize the story as surprisingly skeptical.  Find it here.

Permalink | Accounting | Comments (2) | TrackBack (0)

We just returned from the Stadium of Fire in the Lavell Edwards Stadium. I would have preferred watching football, but this was a great show. We were enthralled by the sky divers who opened the show.

My 17-year-old son immediately took to the idea. "I want to do that." I see ROTC in his future.

More photos below the fold ...

more ...

Permalink | Holidays | Comments (0) | TrackBack (0)

If you are a regular here at Conglomerate, you will notice some big changes in the look of the front page. Since the founding of the blog, I have been tinkering with the design, and it was becoming increasingly apparent that blog design was not my forte. One of our readers, Garrick Infanger, graciously offered to provide a fresh new look to the site that was well within our budget, and you now see the results of that effort. I have been doing a lot of the finishing changes over the past couple of days, and we still have a ways to go before the site is completely converted, but the front page is working, and the subsidiary pages will be coming online as the day progresses.

Permalink | Administrative | Comments (6) | TrackBack (0)

Hiking Y Mountain is popular most summer days, but especially so on the Fourth of July. We arrived at 6:00 am to avoid the big crowds. Here are two of my sons standing on the Y ...

While we were up there, the balloons took off again ...

It's a beautiful day in Happy Valley!

Permalink | Holidays | Comments (0) | TrackBack (0)

In late May I attended the Teaching Drafting and Transactional Skills conference put on by Tina Stark and Emory Law School. Athens is separated from Atlanta by 70 miles and about 2 hours of hideous traffic. So I prepared for my trek to the Big City by hitting the public library for a book on CD, selecting after brief deliberation Tuesdays with Morrie. I knew only that it was a wildly successful bestseller by Mitch Albom, who I knew from The Sports Reporters, an ESPN show that my husband watches religiously, and that it was about Albom’s visits to his dying former professor. Why not?, I thought.

Why not, indeed. Surprisingly, it turns out that I’m a bit of a sucker for the “dying prof imparts last lessons” genre. Upon arrival I narrowly avoided tearfully embracing those unsuspecting conference attendees unlucky enough to count among my acquaintances.

A month later, I can’t help but wonder what makes TWM and the “dying professor’s words of wisdom” genre so appealing to those outside academia. A recent entrant in this category is Randy Pausch’s The Last Lecture. Pausch was diagnosed with terminal cancer. He gave a last lecture to a packed auditorium at Carnegie Mellon, where he’d taught computer science for years. I followed with interest WSJ writer Jeffrey Zaslow’s account of attending the lecture and the enormous reader response to Zaslow’s column. The lecture itself was viewed over 6 million times on the internet. Pausch’s book has also been a best-seller.

I have several different responses to the popularity of the dying professors’ concluding reflections, but they’re hard to cram into one blogpost, so I’ll focus on one. The Emory conference was fabulous and flawlessly run, and I look forward to hearing upcoming Glom guestblogger Tina’s reflections on it. But for me, it’s tied up with TWM and the question of what we’re teaching and why. The “why” ultimately must be a question of “stickiness,” that is, that fraction of the information or knowledge that we impart that sticks with our students after they've left our classrooms.

We at Georgia are offering more and more transactional skills courses: Anatomy of a Merger, Drafting for the Transactional Lawyer, Lending and Commercial Finance, to name but a few. The students still clamor for more. At panels on choosing classes, I emphasize the importance of taking Corporations as a 2L, of Securities Regulation, of tax, tax, tax. I believe all these points to be vitally important.

And yet, on the most recent curriculum panel for 1Ls eagerly anticipating being able to choose their own courses for the first time, my distinguished colleague Wally Hellerstein, a state & local tax expert whose work had that very day been cited multiple times by the Supreme Court, told the students, “Don’t worry about it. Take courses that interest you. Take a law and literature course. You’ll learn what you need in practice.” In Albom’s account, at least, few of Morrie’s many visitors seek sociological insights, and Pausch’s wisdom doesn’t seem to have much to do with computer science.

Do other law profs wrestle with the issue of stickiness? What would you say in your last lecture?

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Jonathan Weil expresses some confusion about Lehman's latest survival strategy; I'm keeping my eye on how the Fed and the SEC are going to divvy up the oversight responsibilities if this thing goes south, and meanwhile Henry Paulson has told the British that he's trying to figure out how to allow big financial firms to fail.  Here's Weil:

So let's say you're a big shot at Lehman Brothers Holdings Inc., trying to keep your firm from becoming the next Bear Stearns Cos. The stock has tanked. The market has doubts about your balance sheet. What do you do?    

One step to avoid would be any action that might create needless public uncertainty about your company's finances, because investors' greatest fear is of the unknown.    

So what does Lehman do? It sells billions of dollars of assets to a newly formed hedge fund that:    

1) counts Lehman as a significant investor;    

2) is run by seven recently departed Lehman executives;    

3) is operating out of Lehman's office space, three floors down from the office of Lehman's corporate secretary.    

Hat Tip: Brad DeLong.

Permalink | Business Organizations | Comments (0) | TrackBack (0)

So what about literary theory and business? The big problem with the theoretical side of law and literature for my purposes is that most of it focuses on public law, where you’ve got that big enchilada, the Constitution. On the transactional side there is no corresponding fundamental text to interpret. I take a few different approaches.

The most promising angle seems to me to be narrative theory. As an introduction, we’re reading Sanford Levinson, Owen Fiss, and Robert Cover’s Nomos and Narrative (am I crazy to be assigning this?). Next, in the quest for a text to interpret, there are some folks reading Delaware corporate opinions as literature, or at least, as rhetoric: Ed Rock, David Skeel, Sean Griffith & Myron Steele. Oh, and we’re reading Barbarians at the Gate. I know, I know, it’s nonfiction. But, as we’ve discussed, it’s hard to find good dramatic depictions of deals, and if we’re talking narrative strategies, then BATG is relevant, for sure. I’ve recommended it for years with the promise that it “reads like a novel.” From there, I hope we'll talk about the stories corporate lawyers tell: to the other side, to a company's shareholders, to target shareholders, to the SEC.

Then I turn to law and lit approaches with a transactional or economic bent. Fish’s The Law Wishes to Have a Formal Existence discusses the parol evidence rule, contractual ambiguity, contracts implied in law, and Judge Kozinski’s efforts in Trident Center to stabilize the plain meaning of words against the threat of ambiguity posed by the California Supreme Court’s opinion in Pacific Gas & Electric Co. Robin West, in Authorial Autonomy and Choice, contrasts Richard Posner’s depiction of the parties to a contract as consensual wealth maximizers with the representation of the individual in the work of Franz Kafka. Posner roars against the outrage of being read as literature, firing back first with an article, and then a book titled Law and Literature: a Relation Reargued. Finally, the grandfather of Law and Literature, James Boyd White, reviews Posner’s book in What Can a Lawyer Learn from Literature?, taking issue with Posner’s fundamental conception of what literature is. I know the students may be less than thrilled to see so many law review articles on the syllabus. I’m crossing my fingers that this series of scholarly scuffles translates into some interesting classroom discussions.

When I proposed the course, I confess I was worried about finding material, but I have over 13 sessions’ worth already. I’d still welcome any further suggestions, though...

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Here at the Glom, we love to post about Supreme Court cases that affect the world of business and securities law.  When the Supreme Court hands down landmark opinions on such constitutional law jewels as the right to bear arms (Heller) and the death penalty (Kennedy), we generally let the blogospheric experts have the limelight for awhile.  However, we have blogged on the death penalty for rape before and I devoted an episode of Illinois Law (Illinois College of Law's biweekly television show) to the death penalty this past spring.  Therefore, I thought I had enough to cred to jump into the fray on this one sidepoint:  If you are a progressive, liberal voter who is looking for a progressive, liberal candidate who will appoint liberal, progressive judges, do you hope the candidate is happy or unhappy about Kennedy v. Louisiana (death penalty is unconstitutional punishment for rape of child)? 

In other words, should Obama applaud the opinion or bemoan it?  Obama has shown disappointment at the decision, which has left him open to criticism from both sides.  Ann Althouse asked why, if Obama really wants a justice who goes with her "heart," then shouldn't he think Kennedy went with his heart here?  But of course, couldn't going with your heart make you give the person who raped a child the highest penalty possible?  Which is the heart thing to do?

I find this an interesting question because several years ago, I was on a jury panel for a criminal case in Milwaukee in which the defendant was on trial for sexual assault of his own 4 year-old daughter.  The defendant was poor and African-American.  The claims were made by the mother, a year after the date of incident, during custody proceedings.  I was very interested to see what the prosecutor and defense attorney would do with me.  I had a 4 year-old daughter at the time.  The questions they asked about my legal background revealed that I had worked on death penalty defense cases.  I was a law professor with Birkenstocks on.  I was obviously a progressive liberal.  Would I be easy or hard on the defendant?  The case settled before the second round of voir dire began, so we'll never know.

The Kennedy case creates some strange tensions:  most legal reformers who want enhanced penalties for rape and more protection of victims probably aren't pro-death penalty.  The Venn diagram intersect of those who want the death penalty expanded and those who work to decrease sexual assault, even for children, is probably fairly small.  In addition, If you read the briefs in Kennedy v. Louisiana, you'll see it's not an easy case.  One can imagine a case in which the perpetrator is a repeat rapist and murderer who abducts a child, brutalizes and beats the child, then leaves the child for dead.  There, the fact that the perpetrator wouldn't be subject to the death penalty because the child didn't die seems fairly arbitrary.  However, in this case, the facts aren't open and shut, and there is a lot of ambiguity there. 

Patrick Kennedy has an IQ of 70.  The victim, his eight-year-old step-daughter, initially said that she was raped by someone matching the description of a boy in her neighborhood.  Twenty months later, she said that she was raped by her stepfather, who had been arrested two weeks after the rape.  In the intervening time, authorities had threatened to take the child away from her mother if the mother did not believe the state's theory of the case.  On the other hand, the defendant tried to schedule an emergency carpet cleaning the morning of the rape to get blood out of the carpet, which he claimed was the result of the victim's "becoming a young lady."  He was also found trying to clean the carpet himself when the police arrived.  What is undisputed is that the victim was savagely raped, requiring surgery.(Neither supreme court brief mentions any scientific evidence, such as DNA, or any information from a sibling, who seems to have been at home.)  Although the Supreme Court was not weighing the facts of this case to determine whether the evidence supported the verdict or the sentence, surely the facts of the case affect decisionmaking somehow.

So, does the progressive, liberal heart go out to the young girl or to the future defendants who will face the death penalty?  Hard to say.  I think Obama would have liked to say that he was relieved that the use of the death penalty, which he has criticized, would not be expanded.  That he was glad that the revival of the death penalty for rape, which has its roots in a racist Southern history, was not successful.  But then, wouldn't his critics get to pounce on him for not caring about little girls?  About children?

Permalink | Supreme Court | Comments (2) | TrackBack (0)

On Saturday one of my favorite summer rituals commences. Le Tour de France is laboring under the weight of recent drug scandals -- Floyd Landis' long challenge may finally be over and Michael Rasmussen just won compensation of $1 million, even as he was being banned for two years -- but the Tour remains a great spectacle. And I love rising in the morning to the sound of Phil Liggett and Paul Sherwen calling the race. Here's a classic moment that caused me to jump out of my chair when I saw it live ...

I have been in Europe for the race, but unless you are actually at the stage, it's just not as fun as watching at home. For one thing, the race happens during the afternoon over there, but I have come to prefer the Tour over breakfast.

Permalink | Cycling | Comments (3) | TrackBack (0)

I've got a post up at Opinio Juris responding to Susan Franck's essay on the promise of empirical research in international economic law.  Susan keeps track of the outcomes of investment arbitration disputes, a real service to anyone interested in the field, and a ton of work, given that the awards, panels, etc in those disputes are a. nominally kept secret, and b. not organized in a useful fashion anywhere else.  Anyway, she thinks empirical research is the way to go.  I hem and haw in response here.

Permalink | Globalization/Trade | Comments (0) | TrackBack (0)

Former Glom guest blogger Larry Cunningham is now guest blogging at Co-op, and he has an interesting post about how law professors (might) spend their time. The list of teaching burdens is useful, but the more useful number, as Larry observes, is "contact hours": the product of credits and student enrollment. Larry notes, "It may not be uncommon, for example, for a school to have 1/4 of its faculty members bearing, respectively, 100, 250, 500 and 700 contact hours."

I have never seen the contracts hours of any faculty, but that would be interesting data. I had exactly 500 contract hours last year, which seems pretty typical for me. Thinking back over the years, I am usually in the 400-600 range, depending on whether I have a seminar or the large or small Contracts sections. I cannot even imagine how much writing I could do with 100 contract hours per year, but I think I would miss having a large number of students ... except at grading time.

Finally, I will turn to Larry for the understatement of the year: "For some such teachers, annual contact hours can exceed 1200. That makes it more difficult for them to discharge their other duties in scholarship and service." All of a sudden, multiple choice exams look very attractive.

Permalink | Law Schools/Lawyering | Comments (1) | TrackBack (0)

I just read Tyler Cowen's post on the Long Tail ("The Long Tail hypothesis is basically true, just don't sell to the Long Tail alone"), when I stumbled across this site ...

According to the Salt Lake Tribune:

Launched initially to provide Texas authorities with clothing for FLDS children in custody, the online store now is aimed at helping their mothers earn a living.

The venture, which has already drawn queries from throughout the U.S., is banking on interest in modest clothes, curiosity and charity to be a success.

They have a growth strategy:

And more enterprising efforts are in the works: The group plans to launch a site offering FLDS-made crafts in coming weeks. It will feature CDs of members like Jessop singing songs for children, children's books written and illustrated by FLDS members and cookie and recipe books.

Cute kids. But don't expect an IPO.

Permalink | Businesses of Note | Comments (1) | TrackBack (0)

Thus begins America's Freedom Festival in Provo ...

Permalink | Holidays | Comments (2) | TrackBack (0)

Kieran responding to Fabio's post, "why i blog."

My primary reason for blogging is not on Fabio's list. I blog because writing for an audience forces me to think more critically about the information that I consume. Pre-blogging, I was a huge consumer of information, but an intermittent analyzer. Analysis takes time and energy, and I was so busy consuming, after all ...

So when I tell people that blogging has changed my life, I mean it in a very fundamental way. A few days ago, I ramped up my blogging because I decided while I was away at various conferences and speaking engagements -- reflecting on my habits and routines -- that I needed to incorporate blogging more fully into my life as a scholar and teacher. I was thinking exactly along the lines expressed by Ann (here and here) earlier today, in a somewhat surprising take on Rush Limbaugh:

I think he knows that doing things day-by-day keeps the show alive and makes it work. It's what works in blogging too. If you have a whole planned agenda and you just crank out the propaganda, people will get sick of you. It's when you are talking/writing to figure out what you think, to find out what you want to say, that you are interesting. (They didn't do that on Air America.)

By the way, most of you know that Ann is a former colleague. Her office was directly across the hall from mine at the University of Wisconsin Law School, and we started blogging at roughly the same time. I never told her this while I was there, but perhaps it's deserves saying publicly that I have learned and continue to learn more about blogging from Ann than from any other source. We each have our own styles, but I believe that we both love blogging for the same core reason: because of what she calls concisely "thinking by writing."

Why do you blog, if you do? If you don't, why don't you blog?

Permalink | Blogs and Blawgs | Comments (1) | TrackBack (0)

A couple of car-related items:

First, about hybrid cars . . . . 

Christine and Gordon's recent hybrid car postings (Highlander for Christine; Prius for Gordon) got me thinking. You see, my family lives in a Prius-rich environment.  Literally about a third of our friends have at least one Prius in the family, and one family has two--and they are Prius proselytizers as well.  We, on other hand, drive a couple of relatively old, relatively guzzly cars.  The efficient one is a 12-year-old Volvo, which gets about 15 mpg in city driving.  The other is a 10-year-old Lexus SUV (the big one), which gets about 10 mpg (with a tailwind).  When I get self-conscious about our old guzzlers, my defense mechanisms cause me to speculate about whether buying a new hybrid is as green as generally believed.  Specifically, the manufacture of a new car--even a really fuel-efficient one--must leave a pretty big carbon footprint, right?  All that steel and shipping!  Is it possible we'd be better off just keeping our old cars forever and repairing them as needed, as they do in Cuba?   

Turns out, building a new Prius requires 113 million BTUs of energy.  So compared to an existing car, in carbon footprint terms, a new Prius has already consumed 1,000 gallons of gasoline before it rolls off the showroom floor!  Instead of a new Prius, buy:

i. a 1998 Toyota Tercel, which gets about 35 mpg.  You'd have to drive the Prius 100,000 miles before you broke even with the old Tercel.

or

ii. a 1994 Geo Metro XFi, which gets the same 46 mpg as the new Prius, but without the carbon overhead.  In terms of carbon footprint, the Prius will never catch up.

Of course, odds are that you won't be getting that new-car smell.  As one analyst concludes, "You might feel better driving a hybrid, but you won't necessarily be greener."

Second, about road rage. . . .

Did you hear that bumper stickers cause road rage?  This study's been out for a few weeks now, and actually that's not what it said.  Apparently, bumper stickers signal the driver's territoriality.  Bumper stickers personalize the car, marking the driver's territory.  These drivers are quicker to perceive a threat to their territory by the actions of other drivers, and they are correspondingly more lively at defending against these perceived incursions.  And this is independent of any substantive message on the bumper sticker:

It does not seem to matter whether the messages on the stickers are about peace and love -- "Visualize World Peace," "My Kid Is an Honor Student" -- or angry and in your face -- "Don't Mess With Texas," "My Kid Beat Up Your Honor Student."

So watch out for those bumper stickers!

Permalink | Environment, Miscellany | Comments (6) | TrackBack (0)

The very smart Bernadette Meyler (who does public law and law and humanities at Cornell) has started blogging at the interesting findandreplace.  Good stuff on Vermuele on Carl Schmidt and Boumediene already, so give it a look, why don't you?

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I cannot possibly be the only person who hates Randy Cohen's "The Ethicist" column in the NYT Sunday Magazine.  Readers (real or imaginary) present sticky social and professional situations, and Cohen tells the reader the "ethical" path the reader must follow.  Exactly what code of ethics is being followed is unclear; Cohen is obviously drawing on some sort of moral compass, but we are never told where this moral compass comes from, what moral philosophy it draws from, etc.  Just a big jumble of what is right and wrong according to Cohen.  And of course, Cohen never takes into account what is legal, which should be at least part of the answer if we believe either that one has a duty to follow (at least just) laws or that laws reflect some sort of balancing of duties, rights and consequences. 

Anyway, this Sunday Cohen is asked by Patrick Hebron of Brooklyn whether it is "ethical" for him to give a young artist friend $9,000 in return for a 1% share of his "lifetime earnings" no matter what time of work the artist does.  Cohen claims that this is not unethical but might be a bad deal for the investor.  Cohen likens this arrangement to three things, which should raise red flags.  First, Cohen likens the arrangement to "investing in a corporation."  Bingo!  And we call that buying a security, which are required to be registered with the SEC unless covered by an exemption.  So, Mr. Hebron, Cohen has just given you the go ahead to possibly break the law.  Cohen, who seems to focus on whether this creates an indentured servitude aspect, says the arrangement are like the Bowie bonds.  But of course, the arrangement is nothing like the Bowie Bonds, which are the mere securitization of royalties from songs already written and recorded.  The moral hazard of the artist that Mr. Hebron is worried about is not present in the Bowie Bonds.  Cohen also likens the arrangement to "French Open tennis champion Ana Ivanovic, who received the backing of a Swiss businessman when she was 14 in exchange for repayment if she hit it big one day."  The businessman actually became her business manager and covered her expenses with an interest-free loan, hiring a coach for her and setting her up in Switzerland after she had to flee from Serbia.  That's called a loan.

Of course, if the Ethicist read the Glom, he would know that this arrangement was considered by a minor league baseball player and abandoned after both the SEC and the MLB became interested.

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As a Skadden alum, I often receive promotional literature from the firm, as well as invitations to alumni events.  Yesterday, I received a copy of "Facets," which is described on the cover as "Skadden's Diversity Publication."

First, I was very impressed with the openness of Skadden to all people when I joined the firm in 1997.  I remember people laughing at all the media attention on firms announcing benefits for same-sex partners because Skadden had been providing the same benefits for years.  Unlike other fancy firms, Skadden didn't seem to care a whit about where you were firm or what school you went to -- the basic question was how smart you were and could you perform to a standard that really approaches perfection.  The Facets publication seems to capture the essence of the Skadden meritocracy -- not only with standard photos of women and people of color, but also with stories that reflect a broader (and more expensive) commitment to diversity.  If a firm is really interested in diversity in the legal profession and any kind of (lower case) affirmative action, then a few hires a year isn't going to cut it.  However, public interest intiatives that focus on giving equal opportunities may, such as Skadden Fellowships and Skadden's new partnership with the City College of New York.  The publication also showcases pro bono representation Skadden provided in litigation involving both affirmative action and same-sex marriage.  I think that if I were looking for a firm that embraced the values of diversity, this publication would go a long way to making me think that Skadden was the firm for me.

Skadden has a long history of really cool publications.  When I was recruited, the recruiting magazines featured attorneys chosen because they had the same last names of famous (but unrelated) people.  I believe our friend Joan Heminway was in that publication! 

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Yesterday, the Delaware Supreme Court agreed to accept questions certified to it by the SEC, marking the Court's first use of the law enacted last year enabling the Delaware Supreme Court to accept such certified questions.  Thus far, the process itself has been interesting.  Indeed, the SEC certified its questions on Friday, emphasizing the need for timeliness since the issues relate to proxy materials being sent on July 17.  And the Delaware Supreme Court responded, not only quickly accepting the certified questions, but also setting a very fast timeline.  Thus, briefs are due July 7 and oral arguments are scheduled July 9.

Of course, the substance of the certification is even more interesting, as they revolve around unsettled questions of Delaware law.  Thus, the AFSCME Employees Pension Plan submitted a shareholder proposal for inclusion in Ca, Inc's proxy statement seeking to amend CA's by-laws and require that the company reimburse the reasonable expenses of a stockholder or group stockholders who run a short slate of director candidates so long as one of their nominees is elected to the board.  CA sought a no-action letter seeking to exclude the proposal based in part on the grounds that the proposal was not a proper subject under Delaware law, and if adopted would cause the company to violate Delaware law.  Confronted with conflicting opinions on Delaware law in this area from two Delaware law firms, the SEC's Division of Corporate Finance indicated that it did not resolve issues surrounding disputed questions of law, and hence requested the SEC to make the certification.

The certified questions: (1) Is the AFSCME Proposal a proper subject for shareholders as a matter of Delaware Law?; (2) Would the AFSCME Proposal, if adopted, cause CA to violate any Delaware Law to which it is subject?

Certainly the responses to those questions should have an important impact on Delaware Law and shareholder activism.  Luckily, we do not have long to wait for their resolution.

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Dear Rupert,

I read an article in the Wall Street Journal about 2 months ago about the changes you’ve been making to the paper. It left me feeling frustrated, and I’d like to end our relationship. Unfortunately, because I had a baby girl about 9 months ago, I am frequently unable to compose letters to owners of major newspapers in a timely fashion. That May morning I got as far as crafting little snippets of an incisive, pointed critique of your new editorial policies, and then gave it up to finish breakfast, restore the kitchen to a semblance of order, and return to grading exams. What stuck with me is that you’ve urged more “newsy,” shorter articles, that end on page one. Editors have scornfully poo-poohed articles with the gestation period of a llama (almost a year, for those not up on llama reproductive cycles).

First, the obligatory introductions, bona fides, and disclaimers. I have been a loyal reader for 8 years. I’ve seen the move to color print, the welcome additions of the Personal Journal, Weekend section, and the Saturday/Sunday edition. I suggest the WSJ to all my students, and require it for my seminar. And I’m just a simple corporate law professor. You make more money in a week than I do all year. That said, for what it’s worth, here’s my take:

more ...

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Steve Davidoff and Matt Bodie are blogging about a nasty issue of statutory interpretation emanating from the takeover dispute between InBev and Anheuser-Busch. Matt describes the problem:

In most cases, the determination of whether shareholders can remove directors is straightforward: if the board is classified, they need cause; if not classified, there is no need for cause.  The A-B board, however, is in a period of transition.  In 2007, the Board and shareholders amended the A-B charter to declassify the board.  Thus, beginning with the 2007 shareholders meeting, directors would be changed over from classified three-year terms to annual elections.

As of now, eight of the thirteen directors have been changed over from classified to annually elected.  The remaining five will be elected to one-year terms at the 2009 shareholders meeting.  However, as of now they are serving out their last classified term of three years.  So -- are they still classified or not?

Obviously, this situation is unlikely to arise often, and both Steve and Matt contend that the Delaware statute does not address this situation expressly. Let's think about this ...

Consider first Section 141(k): "Any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except ... in the case of a corporation whose board is classified as provided in subsection (d) of this section."

Note that the board is classified, not the directors.

But then look at Section 141(d):

The directors of any corporation organized under this chapter may, by the certificate of incorporation or by an initial bylaw, or by a bylaw adopted by a vote of the stockholders, be divided into 1, 2 or 3 classes; the term of office of those of the first class to expire at the first annual meeting held after such classification becomes effective; of the second class 1 year thereafter; of the third class 2 years thereafter; and at each annual election held after such classification becomes effective, directors shall be chosen for a full term, as the case may be, to succeed those whose terms expire.

Hmm. Can we reconcile these provisions? Beyond the problem of whether the board or the directors are classified, by a literal reading, these sections are nonsensical: if the board of directors is "divided" into "1 class," as allowed by Section 141(d), then the directors on that board would not be removeable, except for cause pursuant to Section 141(k). Of course, most boards of directors have only one class, and every board must have "1, 2 or 3 classes," so did the drafters of this statute intend to prohibit removal except for cause in all circumstances? Nonsense!

The only reasonable reading of the statute would hold that a "classified board" is one with at least two and no more than three classes. Using this as a starting point, A-B could argue that it's current board has two classes: directors to be elected in 2008 and directors to be elected in 2009. That's a pretty straightforward argument that all of the directors are subject to removal only for cause. But would it work? I think there is a strong argument that it would not. Two points ...

First, both Steve and Matt, apparently taking their cues from A-B, imagine an argument in which five of the A-B directors are "classified" while the remaining eight directors "have been changed over from classified to annually elected." I do not see how this is possible under the terms of the Delaware statute. Whether you are talking about a "classified board" or "classified directors," it seems clear that all of the directors have to be involved in the classification scheme. In other words, a company cannot have a mix of classified and unclassified directors.

Second, as suggested above, in this case, A-B could argue for two classes that would become one at the end of 2009. This would take care of the problem in the foregoing paragraph, but it seems to me that Section 141(d) would foreclose such an argument because the argument rests on the premise that one set of directors could be elected for multi-year terms while another set would be elected annually. Section 141(d) plainly contemplates terms of equal length for each class of directors. Thus, the A-B transition scheme seems to violate the terms of the statute.

Simple.

UPDATE: The implication of my analysis is that a declassification of the board of directors would permit the immediate removal of all directors with or without cause prior to the expiration of the full terms to which directors were elected. This is why John Coates wrote in 2001: "To be effective, a staggered board must be specified in the charter, or, if in the bylaws, the shareholders must not be able to amend by the bylaws without a supermajority vote." John C. Coates IV, Explaining Variation in Takeover Defenses: Blame the Lawyers,  89 Cal. L. Rev. 1301, 1411 (2001).

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And the incentives (or not) for credit reporting companies to get things right, by Elizabeth Warren:

Why should consumers be saddled with the responsibility to monitor the errors of credit reporting agencies? It is MY information about ME.  Someone else is collecting it, creating errors, and passing those errors along to other people. Those errors can cost me a job, denial of homeowners' insurance, a higher premium on my car loan, a higher price to buy a car even for cash, and, of course, a higher price for a mortgage, a credit card, a car loan, or any other loan. And the system says, in effect, it is my problem to monitor the information. It isn't enough that I don't impair my own credit. It is also my problem to find errors that the company has put in, to document the correct those errors, to fight with the company if they won't believe me, to check to make sure the errors were removed and to make sure those errors never reappear. I can even pay for insurance to help me if a credit reporting company makes a mistake.   

Since I already have a full-time job and a life outside that job, I resent this capture of my time. I also believe that a law that puts the burden on consumers to correct errors and puts no penalty on the credit reporting companies for passing along bad information is designed to encourage a high error rate.  There are simply not enough incentives for the credit issuers to spend their money to reduce errors in the credit reporting system or to make correction cheap and quick....

A lot of people end up paying for bad credit reports. Many never know it because they don't know that the price quoted for insurance or a car was based on their credit score. They will just be poorer than they would have been if the credit reporting companies had more incentive to get it right.

All of that sounds right. I have never obtained a loan without needing to clear up something on my credit report. Mistaken transactions are the inevitable fate of a person named Smith, at least under the present system.

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If you don't find some new interesting blogs on this list, you are more plugged in than I am. Or you don't find law blogs interesting. Whatever the case, one blog on this list is this one.

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When I started law school, I was completely focused on litigation. After the better part of two summers of litigation exposure, I was thinking about switching careers. That's when I almost accidentally fell into a transactional assignment at the end of my second summer. Loved it. Never looked back.

If you are law student thinking about this choice, I recommend reading Jeff Lipshaw's post over at Legal Profession Blog. Solid advice from an experienced hand.

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