One of the things I love about the Crocker Fellows course is that we have faculty from five different departments in the room simultaneously (Business, Engineering, Computer Science, Life Sciences, and, of course, Law). Each of the disciplines represented in the room has its own canonical ideas, and listening to those ideas play out is educational for all of us.

For example, today a faculty member invoked the Five Whys (of Toyota fame) in trying to help one of the teams understand the root cause of a problem. Here is the idea, in a nutshell, as stated by Kenichi Ohmae: "If instead of accepting the first answer, one … persists in asking 'Why?' four or five times in succession, one will certainly get to the guts of the issue, where fundamental bottlenecks and problems lie."

A couple of years back, Eric Ries wrote a nice blog post on "The Five Whys for Start-Ups" at HBR, and Jeff Lipshaw noticed the affinity of the Five Whys with the Socratic method. Want a lean startup? Hire a law professor as a manager!

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So, just as I was getting a handle on moderation with the timesuck that is Facebook, a friend tells me about Pinterest.  If Facebook is a timesuck, then Pinterest is a black hole:  a very pretty, tasteful, affirming black hole.

So, what is Pinterest?  I'm still not sure.  It's official description is an "online bulletin board."  In fact, each user (you have to be invited or get on the waiting list) may have numerous "boards," categorized by topic.  Then, users "pin" images to their boards.  These may be photos by the user, but almost all the time these are photos that are captured elsewhere on the web with the "pin it" app.  The user may comment on the image or just pin it.  When you log on to Pinterest, you are shown all the images that users have pinned on their boards -- the users you are "following" or the ones that Pinterest automatically had you follow when you joined based on your interests.  If you like another user's image, you can repin it to your board.  Generally, you will follow your friends, possibly other users you encounter, and then I sort of get confused.

What are people pinning?  The folks I follow (and me) generally pin recipes, design ideas, fashion ideas, kids' ideas, and crafts.  There are a lot of topics.  I haven't pinned that much.  I'm more of a browser than a pinner.  I still am not quite sure what the point is except to have a pretty website to scroll through every day with photos of things most of my friends (and me) like -- a recipe to turn a watermelon into an open-mouth shark with fruit salad coming out, instructions on how to turn your builder-quality bathroom mirror into a framed thing of beauty, witty poster sayings, crock-pot recipes.  what's not to like?  And, unlike Facebook, there is no pressure to be witty, no requirement to read posts about other people's kids, no fear of running into extreme politics, and no fear of old sweethearts seeing your beach pictures.  If we are putting our shiniest face forward on FB, then on Pinterest you are putting the shiniest face forward that you can conjure up from design/fashion/food images -- this is what my house would like like and the cooking smells it would be filled with if I had unlimited time and money.

So, now to the point.  How does this make money?  So far, Cold Brew Labs, headquartered in Silicon Valley, has raised $27 million in funding based on a $200 million valuation.  Hmmm.  If you look on Pinterest, there is no advertising.  And ads would completely ruin the visuals.  There is some sense out there that Pinterest may be making money based on links back to merchants.  So, if I decide I like a dress I see on a website, and pin that to my board, then someone clicks back to that website, there is some opportunity for revenue there.  There also seem to be commercial folks joining Pinterest.  A radio station we listen to here in Champaign has been mentioning (all the time) that it has joined Pinterest.  The radio station is nonprofit, but surely there are forprofit firms joining Pinterest.  There are a lot of Etsy folks on there.  There's also the possibility that some users who create boards like "New Dresses From X That I Love" are really X employees.  Then the "ads" would be hard to distinguish from "user pins," wouldn't distract from the visual flow and would generate revenue.  But this is guessing.

I have two problems with Pinterest.  First, I can't really figure out how to use the site.  I can't find my own friends that I know are on it.  (Unlike FB, the "find friends" search engine can't find squat.)   More importantly, I'm worried it has copyright problems.  People are pinning anything they want from anywhere they want.  If the pin comes directly from the original image on the web, then under the image, the link appears, but that's it.  But who knows what images are going up without any sort of attribution.  Here are the Terms and here is the Copyright Policy.  Basically, users promise not to violate copyright when they pin stuff up there, and Cold Brew Labs promises to consider, in its discretion, any complaints that users have violated copyright.

Besides that, I did make the slow-cooker basalmic pork tenderloin, and it was good.

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Some of you may have been planning to attend the Boston University Transactional Conference, which was scheduled for November 2nd and 3rd of this year. Please note that the conference has been cancelled, and a new date is not anticipated.

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This is the year for BYU Law School's accreditation review by the ABA, and we just had dinner with the ABA Site Evaluation Team. This sabbatical visit is designed to gather facts, so the ABA can determine whether we are in compliance with the ABA Standards. Critics argue that adherence to the ABA Standards blunts innovation in legal education. That is the thrust of the debate surrounding Duncan School of Law's battle with the ABA, which was featured last month in the NYT.

One thing that isn't often mentioned in these discussions is that the spreading of innovation is one of the ABA's stated purposes of the accrediation process. According to the ABA Overview, "Innovative approaches to legal education are to be encouraged and the accreditation process can foster growth and development by providing a clearinghouse for fresh ideas."

Hmm ... does innovation really spread through the accreditation process? If so, how often?

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Mitt Romney's tax returns have inspired a national conversation about charitable giving and taxes. Romney deserves kudos for his charitable giving, which extends well beyond the LDS Church.

While charitable contributions and taxes are sometimes portrayed as substitutes, we think of charitable giving as "generous" and we think of paying taxes as a necessary cost of living in a civil society. Thus, Learned Hand aptly described our attitude toward the payment of taxes: "any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes." Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934).

Despite this widespread view toward the payment of taxes, Romney is still criticized for not paying (or wanting to pay) more taxes. In a WaPo piece from earlier today, for example, Rabbi Sharon Brous of Los Angeles observes, "On one hand, I really admire his sense of obligation to his immediate community, but I would offer that perhaps he might adopt a more expansive notion of what community is." This, despite the fact that Romney was not using the most tax-advantageous method of making his charitable contributions. (Thanks, Miranda.)

Rather than blaming Romney for paying too little in taxes, perhaps we should encourage more charitable giving. Again from the WaPo story:

Overall, Americans give between 2 and 3 percent of their income to charity, according to the Philanthropy Roundtable, but in the first few years of the recession, that number dropped, too. Newt Gingrich gave just $81,000 — 2.58 percent of his $3.1 million income and a fraction of his 2005-06 tab at Tiffany’s — to charity in 2010....

The more individuals and corporations give, the less the government has to. Giving, and giving until it hurts, forces you to recognize that, like a parent, you’re responsible for other people — whether in your own community or around the world. When you lay down your money, you say, “This (church sanctuary, child, environmental hazard) is my problem.” Providing a sense of interconnected obligation is traditionally what religious communities have done best, and it is no surprise that the religious groups that are growing fastest in America — Mormons, Pentecostals, certain sects of Jews — are those that make demands on their members' time and money.

Rather than comparing effective tax rates, perhaps we should compare rates of charitable contributions plus taxes to reveal who is really supporting society. 

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"The laws of economics explain how people make money. But another kind of law -- written by legislatures, bureaucracies, and courts -- often determines who gets what share."

Make the Rules or Your Rivals Will by Richard Shell is a book about law and strategy. Law professors teach and write about topics like public choice, agency capture, rent seeking, etc., but I don't often hear law professors talking systematically about the use of law for strategic purposes.

We tend to organize our thinking around doctrinal areas and around various legal skills. The systematic study of law and strategy seems different. It is not defined by a particular subject matter or set of skills. Even when we talk about law more generally, we generally do not analyze it through the lens of strategy. 

In simplest terms, the study of law and strategy views the world from the perspective of a business and asks: how can we use law to gain a competitive advantage? This question ought to be of interest to lawyers, but does any law school teach a class on law and strategy?

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Originally, I was hoping to start this post with a link to some research a colleague and I just completed that discusses how lenders may be overestimating property values prior to foreclosure. But it has not made it through formatting and on to the web yet, so I will instead share the findings with you.

In this research we find that lenders may be overestimating property values prior to foreclosure in weak housing submarkets. (By “lender” I mean banks servicing their own loans or securitized loans.) We find evidence of overestimating values by looking at the difference between the sale price at foreclosure auction (in this case the lender’s reserve/minimum bid) and the subsequent sale price of the home out of REO in submarkets in Cuyahoga County, OH (home to Cleveland). As the housing market gets weaker, the gap between those two sale prices grows. We also find that lenders’ value estimates may be dramatically improved by incorporating a few simple factors such as the age of the home and the poverty level in the home’s census tract. So we would expect lenders to pick up on this at some point and adjust their models accordingly. But we don’t see that happening. There are three possible explanations I can think of, though I welcome others.

First, lenders may not be overestimating the value at all. The price they pay for property may represent bidding in accord with an Ohio law that automatically sets the minimum bid at the first foreclosure auction, rather than waiting for subsequent auctions when the minimum bid can be adjusted. The way Cuyahoga County interprets this law, prior to foreclosure the County pays for a drive-by or walk-around appraisal. The initial minimum bid is set at two thirds of that appraisal. (If anyone can think of a good reason for this law, please share in the comments.) If no one bids at the first auction, the lender can lower the minimum bid at subsequent auctions. Anecdotally, bankers report credit-bidding their judgment to meet the minimum bid to obtain control of, and begin marketing, the property.

Automatically placing the minimum bid may be routine for bankers, but it probably does not always payoff: we find that the worst 25% of REO property sells for less than half of its minimum bid, if it sells in the quarter it is taken into REO. If it stays in REO for four quarters, it sells for less than 10% of its minimum bid. If the property’s minimum bid was $50,000 (remember, this is the worst 25% of property taken into REO), the lender recovers $5,000 before the broker’s commission, maintenance, taxes, and transfer costs. It is unclear why lenders would be in such a rush to obtain such low-quality properties if they were valuing them correctly.

The next two explanations differ from the first, because they assume that lenders are actually bidding at or close to their estimated value of the property. The second explanation may be that the methods used to value property just don’t work well in weak submarkets, and lenders’ valuation models are not correcting for that. It is not hard to imagine that a walk-around appraisal is a reasonably accurate way to value most property in most markets. If brokers want to find non-foreclosure sales to use as comparables, they have to reach back further in time in weak markets than they do in others, so the prices they use are more likely to be stale. Walk-around appraisals may also miss interior damage(stripped copper pipe and wire, appliances, etc.) that properties are more likely to have suffered in weak markets.

The third possible explanation is that lenders are shifting accounting losses from loan portfolios to REO portfolios. This could be accomplished by using the inflated estimated value to prevent recognizing losses on the loan, and instead writing down the value in the REO portfolio. There are two potential benefits to this. The first is that capital markets tend to pay more attention to loan portfolio performance than REO portfolio performance. The second benefit is that most solvency tests for banks focus on loan portfolio performance metrics, and pay little or no attention to REO portfolio performance. So shifting these losses could potentially make lenders look healthier and more attractive than they actually are.

Any way you slice it large REO portfolios are bad for banks and communities. One way to reduce the size of these portfolios is to lower foreclosure auction reserves, increasing the chance that others will purchase the property at auction instead of it becoming REO.  If there is no market for the property, then donation to a land bank or similar entity may be the answer.

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Broc Romanek thinks yes, so we'll outsource to him:

We've told the story about how American capitalist J.P. Morgan is reputed to have had a rule that he would not invest in a company whose CEO was paid more than 50% above the executives at the next level. He reasoned that, if the CEO was paid more, he wouldn't have a team but only courtiers. Internal pay is a primary factor when a company determines how to pay its workforce - why shouldn't that principle apply to how CEOs get paid?

It's shocking to me how few companies employ internal pay equity today. It's use by DuPont, Whole Foods and a handful of others is no secret. And Dodd-Frank's mandate for disclosure is well known. Shouldn't boards demand to see what those ratios look like ahead of the mandated disclosure? And even more important, as noted above, shouldn't boards demand to see those ratios to protect themselves from liability given the known bad data in the peer group surveys they get year after year? Of course, advisors should be willingly recommending the use of this alternative since it's their job to protect the board. Sadly, most advisors blindly adhere to the status quo as too often happens.

I just can't see what is wrong with putting together internal pay numbers for a board to consider. Where is the evil here? I suppose the downside is it likely will reveal how badly the board has been doing its job setting CEO pay levels over the past 20 years when historical numbers are crunched.

Interesting, as always.

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Because I'm teaching Corporate Tax this semester, I'm probably poring over the "How Much Tax Does Romney Pay?" discussions.  Yesterday, my friend and former colleague Miranda Fleischer was quoted in an article not about the passive income rates that drive down Mitt Romney's (and others) effective tax rate, but about his charitable deductions.  Miranda has written extensively about the whys and wherefores of the charitable tax deduction.  Her latest is Equality of Opportunity and the Charitable Tax Subsidies, 91 B.U. L. Rev. 601 (2011).

The candidates' tax returns have revived discussion about carried interest and the 15% tax rate of dividends and capital gains (see the other Professor Fleischer), but at least Romney's tax profile reminds me of some of the foundational questions of why we have the charitable tax deduction.  Romney and his wife are very generous with their charitable contributions (they gave 16.4% of gross income, more than other filers with similar income).  Newt Gingrich, on the other hand, donated less money as a percentage of income than even the average taxpayer, even though his AGI was over $3 million.

One of the questions surrounding the charitable tax deduction is why should the government subsidize charitable giving.  If we believe that the deduction prompts taxpayers to give 30% more or something like that than they would otherwise give, the government is generally giving a partial match to taxpayers's pet charities.  Miranda has in a series of articles fleshed out the philosophical reasons why government subsidization is probably a good idea.  But I wonder whether it's necessary.  Without the deduction, would taxpayers generally be less generous by 30% or so?  Would we still donate to our religious institutions, alma maters, food banks, women's shelters and legal aid clinics without it? 

I think the answer for the Romneys is yes.  They probably donate to their church out of a mixture of duty and love for their church, and a deduction wouldn't change that.  According to Miranda, the Romneys also aren't giving charitable donations in the most tax-advantaged way, so lowering their tax bill does not seem to be a goal of their generosity.  Of course, you can say that with the Romneys' wealth, the marginal utility of the deduction may not be the same as for the rest of us.  So, what about the middle class (or the other 99%, depending on your choice of rhetoric).  Do we give or give more generously because of the tax deduction?

I think business law can provide insight here.  Look at Kiva.  If you make a "loan" to an entrepreneur through Kiva (which it makes through its foreign partners), you do not receive interest, but even that foregone interest is not tax-deductible.  Neither is the principal amount, even if you do not cash out after being repaid but re-loan instead.  (See Sarah Lawsky's Money for Nothing:  Charitable Deductions for Microfinance Lenders, 61 SMU L. Rev. 1525 (2008).  But, Kiva was pretty successful in attracting what were essentialy non-deductible charitable donations.  Now, Kiva invites patrons to make either loans or tax-deductible donations for administrative expenses of Kiva.  An interesting question is whether the addition of the tax-deductible option lessened the amount received as loans and what the resulting ratio between them is.  Kickstarter, a crowdsourcing site for artists to fund new projects, raises money without the promise of a tax deduction (though some of its artists do have 501(c)(3) organizations).  Do the tax-deductible projects get funded quicker and more fully?  Are there other perks that donors prefer?  Production credit?  Special access or invitations? 

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Anticipating Facebook's IPO later this year, I thought it might be fun to look back at Facebook in an earlier time. Below is a video of Mark Zuckerberg speaking to students at Stanford. He observes, "you can't see the profiles of the people at other schools."

That was a design choice: "we realized that the people around you at your school are the people who you are going to want to look up mostly anyway." If they made the base of people who could access a profile too broad, people wouldn't share information, such as their cell phone number, as freely.

Zuckerberg recognizes that the design choice entailed tradeoffs in the utility of the site, but it's fascinating how differently most of us think about those tradeoffs today. It's hard to even remember when Facebook was so limited. Of course, although he doesn't use the word, privacy on Facebook still looms large.

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This semester, Afra Afsharipour (UC Davis) and I are organizing a virtual workshop featuring transactional law scholarship. Unlike the many workshops on law and economics or other topics that are housed in particular law schools, this workshop is independent of any particular law school. We meet online every other week, and scholars present working papers to a group of ten core faculty via video conference technology. It's an experiment in low-cost scholarly community building, and while the technology is not perfect, I was encouraged by our first session on January 13.

In that session, Brian Quinn (BC) presented his working paper, Putting Your Money Where Your Mouth Is: The Performance of Earnouts in Corporate Acquisitions. Brian tests the claim that earnouts are a contractual response to adverse selection in corporate acquisitions. The empirical data in the paper is available because of the disclosure of fair value accounting data now required by the Financial Accounting Standards Board. Brian concludes, "Rather than resolve the problem of adverse selection, earnouts are probably better explained by an alternative hypothesis: that they resolve the problem of uncertainty present in corporate acquisitions."

If you are interested in transactional scholarship, this paper is worth a read.

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The National Business Law Scholars Conference (NBLSC), formerly known as the Midwest Corporate Legal Scholars Conference, will be held on Wednesday, June 27th and Thursday, June 28th at University of Cincinnati College of Law in Cincinnati, Ohio.  This is the third annual meeting of the NBLSC, which has been renamed this year to reflect its national scope and the widely varied interests of its participants.  We welcome all on-topic submissions and will attempt to provide the opportunity for everyone to actively participate.  We will also attempt to assign a commentator for each paper presented.  Junior scholars are especially encouraged participate, and we will hold a special “how-to” panel for prospective business law scholars discussing the job market and transitioning into the legal academy.

To submit a presentation, email Professor Eric C. Chaffee at echaffee1@udayton.edu with an abstract or paper by April 15, 2012.  Please title the email “NBLSC Submission – {Name}”.  If you would like to attend, but not present, email Professor Chaffee with an email entitled “NBLSC Attendance”.  Please specify in your email whether you are willing to serve as a commentator or moderator.  A conference schedule will be circulated in early June.

Conference Organizers:

Barbara Black (University of Cincinnati)
Eric C. Chaffee (University of Dayton)
Steven M. Davidoff (The Ohio State University)

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Since the mid-2000s, researchers have been studying the impact of foreclosures on surrounding property values.  A colleague and I recently finished an important contribution to this line of research.  Anyone attempting to craft responses to the housing market's current woes, particularly efforts to stabilize neighborhoods and home values, should give two of our results serious consideration. 

First, our findings suggest that most prior studies overstate the impact that foreclosures have on surrounding property values.  The reason they overstate the impact of foreclosures is that they don't take into account long term vacancy or property abandonment even though vacancy and abandoned property also drive down surrounding property values (either by adding units of supply or dis-amenities, depending on the vacant home or abandoned property's condition).  In our study, we include measures of all three (both individually and collectively) and we find (in Table 10 on p.42, for those interested) that when you only measure one of the three factors that drive down housing values, you overstate the influence of the factor you are measuring.  This result is important because it tells us that foreclosures do not decrease surrounding property values as much as previous studies suggest, and that attempts to stabilize markets should address vacancy and abandonment in addition to foreclosure.

Second, and more importantly, we illustrate how foreclosure, vacancy, and abandonment have differential impacts on weak housing markets relative to average housing markets.  (The following information summarizes Tables 12-14.)  When we subdivide Cuyahoga County's (home to Cleveland) housing markets by strength, we see huge differences.  In the markets that more closely approximate the average market in the US, we see what prior research and theory would predict: foreclosures, vacancies, and abandoned housing all substantially lower surrounding home values.  In these markets, long-term vacancy and property abandonment are not as common or as problematic as foreclosure.

But in weaker sub markets, things are strikingly different: long term vacant homes and abandoned properties drive down prices more than foreclosures, and are more common than they are in normal markets.  Part of what drives this result is that lenders are attempting (and usually succeeding) to selectively foreclose on the "best-of-the-worst:" properties that have some prospect of resale because they are in the best neighborhoods in weak housing sub markets. 

Understanding the relationship between foreclosure and abandonment is tricky: in weak markets, foreclosure accelerates abandonment, but does not appear to cause it.  Foreclosed properties are sometimes abandoned, for example when lenders foreclose on a property that turns out to be among the worst-of-the-worst, they sell it to a property speculator that usually abandons it.  But abandonment is really driven by long-term population loss that resulted in an oversupply of housing relative to demand.  Plenty of property has been vacant long term or abandoned but has not been through a foreclosure recently. 

The fact that vacancy and abandonment are bigger problems in weak housing markets than foreclosure is not surprising to those that have studied, worked, or lived in these markets.  People with no experience with weak housing markets often overlook the problems of vacancy and abandonment, instead focusing on foreclosure.  It is critical for policymakers to understand the differences between average and weak housing markets because the best tools for stabilizing housing in them differ. Weak markets need subsidies for the removal of vacant or abandoned homes, and less funding for rehabilitation.  Likewise, proposals to move REO to rental property might not be as wise in weak markets as they are in average or stronger markets.

There are some promising local practices, such as modern land banking and low-value REO donation accompanied by per-property demolition grants that will help correct this supply/demand imbalance.  Still, I personal think it would be better in the long run if policymakers paid more attention to right-sizing weak housing markets, and less to subsidizing rehab and new construction in them.

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According to my Facebook page, a lot of people I know seem to really hate the Citizens United decision.  On a daily basis.  I'm not that fascinated by the thought of corporations making unlimited campaign funding expenditures because I just don't see how the results will be any different.  (We can argue about it, but then I'll just get bored and try to change the subject.)  But, I understand that many folks this election season do not like the thought of tainting democracy with corporate dollars.

But what about art?  I love movies, and I see a lot of them, so I am usually at least somewhat interested in the Oscars.  Back BC (before children), we used to have Oscar parties and actually watch the award show.  Until the end.  So, today I was a little intrigued by the announcement of the nominees.  Here are the nine (yes, nine) nominees for Best Picture:  The Artist, The Descendants, Extremely Loud & Incredibly Close, The Help, Hugo, Midnight in Paris, Moneyball, The Tree of Life and War Horse.  Other pictures picking up nominations in major categories are Beginners; A Better Life; Tinker, Tailor, Soldier, Spy; Warrior; Bridesmaids; Albert Nobbs; The Girl with the Dragon Tattoo; and A Week with Marilyn.

I have seen half of them, which is pretty good for an Oscar list.  (I actually haven't seen Hugo because none of my children wanted to go see it.)  I think in many years, audience goers are a little disappointed that the list is mostly made up of artsy movies that have either had limited release by January or are critic's darlings just not their cup of tea.  Blockbusters and comedies are often overlooked.  I think that's ok -- this isn't the All-Stars, it's an industry competition between folks in the industry.  If legal academics voted on Best Law Review Article (like business law professors do), then the result would probably be different than if the general public voted, or even the practicing bar.

But today's listings are even weirder.  Some of these are pictures that neither critics nor audiences liked (Iron Lady; Extremely Loud & Incredibly Close) or pictures that were mixed (Tree of Life).  It's almost as if a Republican who is polling third is suddenly named the nominee by the party.  So, why do these movies get nominated?  Maybe it's because their studios spent millions of dollars campaigning academy members to get them nominated.  Here are a few stories on oscar campaigns, one calling for a "luxury tax" on studio spending and one chronicling a campaign that was fruitless.

In fact, the Academy instituted new rules this year on studio campaigning, which take effect today.  After nominees are announced, the rules restrict appearances, panels, etc. where nominees might be able to sway academy members.  So, we are in the movie analogue to "the quiet period."

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Having recently blogged about The Man in the Water, I was hooked rather easily on David Hyman's 2006 article, Rescue Without Law: An Empirical Perspective on the Duty to Rescue. Start here: "six times as many Americans lose their lives every year trying to rescue someone else than have lost their lives to a non-rescue in the past ten years combined."

Really? Are these numbers reliable? This is the most challenging issue for the paper. David taps various sources for accounts of rescues and non-rescues, but he readily admits the problem: "It is likely that there is under-reporting of both rescues and non-rescues, but the actual magnitude of such under-reporting cannot be quantified." On the other hand:

The number of verifiable instances of rescue exceeds the number of verifiable instances of non-rescue by approximately 800:1, and that ratio is based on multiple years and multiple independent data sources. It seems unlikely that the under-reporting ratio for nonrescues is so much larger than the under-reporting ratio for rescues to overcome this huge disparity in the number of verified cases.

Ok, I am not sure that will be convincing to all, but I am willing to play along. Assuming he is more-or-less right about the numbers, why do we care? Because they may change the way we think about this area of law:

The problem of non-rescue has attracted considerable scholarly attention over the past century. Every torts textbook features a section on the subject. More than a hundred law review articles and several books have been written on the subject, with dozens more touching on it in passing. These articles follow a consistent strategy of recounting the horrific details of a particular anecdote or two, and then offering vague generalities to the effect that the anecdotes illustrate a larger problem. None explore the typicality of such anecdotes, or attempt to specify the frequency of non-rescue and rescue. For most commentators, the inevitable conclusion is that there is a problem with non-rescue, for which “there ought to be a law.” The willingness of average Americans to rescue one another is typically discounted or dismissed entirely. Attention is called to the moral superiority of the European countries which have adopted a duty to rescue.

As you might imagine from the title, Hyman not only questions the existing scholarship on the duty to rescue, but he talks about Ellikson's Order Without Law, at least for a bit toward the end of the paper. Nevertheless, his conclusion there seems somewhat surprising: "'Rescue without law' is unlikely to be the result of social norms, because these patterns developed in the teeth of laws that encourage the opposite behavior, [and] they involve strangers who are unlikely to ever meet again.... Instead, research into behavioral psychology suggests that 'rescue without law' is most likely the result of 'hard-wired' altruism, which induces rescue even at significant personal risk."

There's lots more, but as you can see, I enjoyed reading this piece. Any law review article that calls into question the moral superiority of Europe is usually worth a little time.

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