When they first heard of Newscorp's bid for Dow Jones, the Bancroft family was mostly icy. Now they are meeting with Rupert Murdoch, and the tone has changed. Here is Michael B. Elefante, a Dow Jones director and representative of the family:

After a detailed review of the business of Dow Jones and the evolving competitive environment in which it operates, the family has reached consensus that the mission of Dow Jones may be better accomplished in combination or collaboration with another organization, which may include News Corp.

The market seemed fairly confident that they would come around. This is from the W$J:

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I just completed the Academic Blogger Survey. I usually don't like completing surveys because the ambiguities in the questions drive me batty, but this one was well constructed. I was forced to confess that I spend way too much time online, so I am going cycling with my wife and children tonight. (Glad I am not in Atlanta!)

The question that made me pause longer than any other was whether I considered academic blogging to be: (a) research, (b) scholarship, (c) teaching, (d) service, (e) none of the above. Given that I have written about this topic, you would think I would have a ready answer, but the right answer is "it depends." That wasn't one of the options.

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Don't come to Atlanta today.  Wildfires in southern Georgia have been spreading smoke and particles all the way to Atlanta and into neighboring South Carolina, Florida, and Alabama.  Air quality is not good.  Ugh.

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Since going Google last month, I have been adjusting to Gmail. The more I use it, the more I like it. That's a good sign for any service, especially one based on software.

But there are days when I wonder about email. William Birdthistle has a series of interesting posts on scholarly productivity over at Prawfs (see here, here, and here), and email is one of the villains: "My advice to new professors would be to ration your time on email and the web to the absolute minimum, perhaps even to the point of spending most of your day on an unconnected computer. I found email, in particular, a tremendous way to fritter away days of my life."

Fred Wilson also feels burdened by email, but he is not interested in unplugging. He is looking for options: "text messaging, instant messaging, and site messaging for one to one messaging. And blogging, twitttering, and social networking for one to many messaging." All of that seems like it would send William, already teetering, over the edge. Me, too.

In the end, I suppose this is all about maintaining communities -- or, if you prefer, networks -- right? Each of us is a member of multiple communities, and we need to figure out the best way to maintain those connections. Some thoughts on the relative merits of these technologies:

• At the moment, I use email and telephone for one to one messaging and blogging for one to many.
• I do not like text messaging, though it has the dual virtues of cheap mobility and asynchronicity. I am tempted to go this direction for my family communications, which are getting more complicated by the year with five growing children.
• IM is not asynchronous, which is a big problem for me.
• My children enjoy site messaging with their friends, but that seems like a generational thing. Can you imagine lawprofs communicating via Facebook? Ok, maybe it isn't unimaginable, but like any social networking service, it requires some critical mass before it becomes worthwhile.
• I don't use LinkedIn, either, even though I am registered and receive periodic invitiatons to link. So few people I care about use it that it just isn't worth the effort.
• Finally, I have experimented with twittering, and I like it. I think it has potential.

As always, I would be interested to hear others' experiences and recommendations on this score.

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This case -- in which the US Supreme Court will decide whether financial advisors may be liable for "deceptive conduct" under Section 10(b) of the Securities Exchange Act -- has already been attracting a lot of internet buzz. Jay Brown has an interesting post on the (likely) pivotal position of Justice Alito in the outcome. Larry Ribstein agrees on Justice Alito's key role, but "find[s] it hard to believe that Alito would vote to (1) undercut the Central Bank precedent; particularly where (2) that would have the effect of opening a large and ambiguous trap door in securities law liability."

On the merits, this is a tough and interesting issue. The Circuits have split, but if I were a betting man, I would place my money on Ribstein (with the Fifth and Eighth Circuits), rather than Brown (with the Ninth Circuit). But we will watch developments with interest.

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You can trust me. I am bad at it.

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My light blogging this week is easy to explain: I have been completely immersed in drafting a proposal to the Professional Development Committee of the Association of American Law Schools for a "Workshop on Transactional Law." This project started with a post on "Training Dealmakers in Law School" by Usha Rodrigues. That post inspired me to write a response, which included an off-the-cuff suggestion for a transactional conference (go to the end of the post). Darian Ibrahim followed close on my heels with another post endorsing a conference on transactional law, and we were off and running.

That was last October.

A number of people besides Darian and Usha responded to my suggestion for a conference, and we formed a drafting committee, which met for some preliminaries at the AALS Annual Meeting in January. Progress was slow during winter semester, but the power of deadlines kicked in on Memorial Day, and I have been researching and drafting ever since.

I will submit the proposal to the AALS later today. Here is the first paragraph:

This proposal describes a two-day workshop on transactional law to be held at a Mid-Year Meeting of the Association of American Law Schools ("AALS"). "Transactional law" refers to the various substantive legal rules that influence or constrain planning, negotiating, and document drafting in connection with business transactions, as well as the "law of the deal" (i.e., the negotiated contracts) produced by the parties to those transactions. Transactional law touches many substantive areas of law, but it is most closely identified with bankruptcy, business associations, contracts, commercial law, intellectual property, securities regulation, and taxation. The study of transactional law is attentive to the role of lawyers in consummating business transactions, thus implying some consideration of "transactional skills" – planning, negotiating, and document drafting. While business law clinics have been at the forefront of teaching transactional skills, this workshop will focus on transactional law as part of the non-clinical curriculum and in legal scholarship.

This is a popular idea. In addition to the 11 members of the drafting committee, the proposal has been endorsed by eight AALS Section Chairs or Chairs-Elect.

Thanks to all who participated in the drafting process. Now it's time for the AALS Professional Development and Executive Committees to do the right thing and authorize the workshop.

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Recently I have noticed that many of the music radio stations to which I listen appear to engage in a lot of product placement.  By that I mean various radio personalities appear to spend a lot of time discussing how much they enjoy a particular product or service such as a weight-loss center or a breakfast food.  Because they talk about the product or service in the context of their routine dialogue, it takes me a while to catch on to the fact that they might be engaging in some form of advertising.  In that regard, these product "discussions" seem potentially deceptive, and hence problematic.  And I wondered if they were a form of stealth advertising.

I recall that last year the FTC expressed concern about the dangers of stealth advertising, which is marketing that fails to clearly disclose the relationship between the marketer and the consumer, such as when a celebrity secretly gets paid to wear certain products.  In addition, Ellen Goodman has written an article in the Texas Law Review about stealth marketing and the potential harms posed by advertisers who pass off promotional messages as editorial content.  Goodman points out that such advertising is harmful not only because it is deceptive, but also because it harms robust public discourse by creating skepticism regarding the authentity of media communications, and potentially creating the impression that all communications are promotional in nature.  I am not certain if the radio personalities to whom I listen are getting paid for their seeming promotions--that is there is no disclosure after their, in some cases lengthy, conversations about a given product.  But of course that uncertainty is the problem. I will admit that my uncertainty has caused me to become much more skeptical about all of the conversations occuring on the radio--but maybe that just means these personalities need to get back to playing music. . .

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The month of May is high conference season for legal academics.  The advice comes fast and furious.  So this year, in an attempt to retain some of the knowledge, I jotted down a few notes. 

Presentation Advice

1.  Get to the new stuff quickly.  This is one that I still mess up.  The first priority of any presentation should be showing off your novel contribution to the field.  The challenge is that without some background and literature review, your audience (who typically hasn't read the paper) won't know what you're talking about.  Your 20 minutes goes quickly, and it's easy to find yourself with just two minutes left and new stuff to cover.  So, given the choice between leaving your audience a little fuzzy about the background/lit review and unclear about what your contribution is --- make your contribution crystal clear. 

2.  Trust your discussant.  Most discussants aren't out to get you.  Good ones will restate your thesis and clarify its contributions and well as its limitations.  The best ones will even tip you off beforehand so you know what's coming.

3.  Slow down.  Most presenters go too fast.  Slow down, emphasize the important points, pause after those points, and repeat them later on.

4.  Offer multiple takeaways.  Audiences vary in their level of sophistication about your subject matter, so it's important to offer both basic and more nuanced takeaway points.

Research Advice
 

5. Use a rifle, not a shotgun.  I think this was attributed to Judge Easterbrook, and I'm not entirely sure what it means.  I think it means that when you are trying to explain behavior, clarify your thinking and use as narrow and refined a theory as possible to get the job done. 

6.  Be ambitious.  Be ambitious in choosing your projects (but careful, nuanced and patient in the execution of the project). 

I have mixed feelings about "big" papers - I've read too many "Towards a New Theory of [subject] Law"-type papers that overpromise and underdeliver.  But recently I also saw some amazing papers that show that younger scholars can indeed make important contributions.  I guess we'd all rather see big papers with some flaws than a small paper on what the Supreme Court's holding in a v. b means for x industry in the state of Ames. 

7.  Don't understate your contribution. If your paper makes an incremental contribution, people will value it if they can see why the contribution matters. 

8.  Develop a rich theory.  For empirical work, develop a rich, explicit theory of what explains the behavior you are studying before getting into the explanatory/data part of the paper.  This applies whether the work is qualitative or quantitative.  Otherwise the audience is left with lots of interesting explanations but no clear understanding of what it means. 

9.  Be explicit about weaknesses in the data/methodology. This builds trust with your audience.

Meta Advice

10.  Develop more human capital.   It's increasingly necessary to engage with papers from a variety of methodological approaches.  This doesn't mean that we have to become quantitative empiricists, political scientists, philosophers, economists and historians.  But if you don't understand some of the basics of other approaches, you'll be missing out. 

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Legal academics love to talk about law reviews. We trade stories, we share conventional wisdom, and, of course, we write law review articles about them. Mostly these exchanges are based on contradictory anecdotes (often from our own experiences as law review editors) and disputed folk wisdom. Jason Nance and Dylan Steinberg do not purport to answer all of our questions, but with their new paper -- based on survey results of law review editors -- they "hope that the introduction of significant empirical data into the debate can refocus the conversation about how best to structure the changing world of legal scholarship."

Their focus is article selection, and they begin with a bill of particulars drawn from the extensive literature on law reviews:

• "Student editors, much of whose time is spent enforcing the rules of the Bluebook, are overly influenced by the number and complexity of an author's footnotes."
• Quoting James Lindgren: "law review editors respond positively to the padding that weights down most law review articles, accepting long articles more readily than short articles."
• Quoting Carl Tobias: "Articles Editors' attentions are too likely to be swayed by 'hot, trendy or cute topics.'"
• Citing Richard Posner: "although law students are trained in doctrinal analysis and are likely competent to select and edit articles that engage in it, the current trend toward interdisciplinary and theoretical articles leaves law reviews ill-equipped to perform their appointed tasks."
• "It appears to be generally assumed that, to a significant degree, Articles Editors use an author’s credentials as a proxy for the quality of her scholarship."

To test the selection process, the authors sent a survey instrument to approximately 400 law reviews. They asked Articles Editors "to consider the influence of 57 possible factors that they might consider during the process of deciding whether to make an offer of publication." The authors received responses from 191 editors at 164 journals. The top ten positive influences on selection are predictable:

1. The author is highly influential in her respective field.
2. The article fills a gap in the literature.
3. The topic would interest the general legal public.
4. The author has published frequently in highly ranked law reviews.
5. The author is employed at a highly ranked law school.
6. The article provides enough background explanation so that one not familiar with the particular field can understand the relevant issues.
7. The topic has been discussed in the news in the past year.
8. The author has a large number of previous publications.
9. Articles on similar topics have not been published in your journal recently.
10. The author has practice experience related to the manuscript submitted.

Notice how many of the top factors are attempts to certify the quality of the manuscript by means other than actually reviewing the manuscript (1, 4, 5, 8, 10). "Quality" in this world is measured by the attention an article brings to the journal, and Nance and Steinberg insightfully observe that "all of the top five positive factors are concerned, to a greater or lesser degree, with publishing articles that are likely to be read and cited frequently."

The factors included in the survey were influenced by a "panel of experts" comprised of current and former Articles Editors for the University of Pennsylvania Law Review and several faculty members at the University of Pennsylvania Law School. I find it striking that Nance and Steinberg did not include "quality of analysis," "quality of writing," "thoroughness of research," or similar factors among the options. Perhaps these factors would have a strong positive influence on all law review editors. Or, at least, all law review editors would rate the factors that way.

Finally, given my practice of not Bluebooking submissions, I was chagrined to see the following among the factors generating the highest negatives:

• The citations do not conform to your journal's citation format.
• Parentheticals are generally missing from the footnotes.
• The article contains several missing footnotes.
• Many citations do not include specific page numbers of the sources the author cites (pincites or jumpcites).
• The article contains numerous typographical and grammatical errors.

Nance and Steinberg offer this interpretation:

It is clear that, while they are selecting articles for the quality of their scholarship, Articles Editors also have an eye on the difficulty of preparing an article for publication. Six of the ten most important negative factors are directly related to the expected difficulty of the editing process. It is interesting, however, that grammatical and typographical errors, undoubtedly the easiest errors to address during editing, have the strongest negative impact on an article’s chances for selection. This probably represents an underlying concern that a poorly proofread article may have been hastily put together and may not represent excellent research or scholarship.

This article has a lot more fodder for discussion, and it's fun reading for those of us who play the law review game.

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The skepticism regarding entrepreneurial studies continues over at Credit Slips. Last week Bob Lawless posted Entrepreneurs Among the Bankrupt, and today Elizabeth Warren adds an interesting story of her attempt to construct a joint study of failed entrepreneurs with Stuart Gilson at Harvard Business School:

Stuart loved the topic, and over lunch we agreed that we should study only "small start-ups." ... While Stuart talked about angel investing and venture capital, I speculated that a lot of the failed entrepreneurs in bankruptices we financed on credit cards and the spouse's job at an insurance office. We drifted apart.

The stumbling block was the wide variation among entrepreneurial firms:

The Consumer Bankruptcy Project has lots of variation, from the unemployed 25 year old to the widow on social security and the couple making over $100,000.  But the Business Bankruptcy Project multiplied the variations. Tina's Tax Preparation and Tanning Salon (a real business in our sample) had just as fancy a corporate charter as Memorex (also in our sample), and both were in Chapter 11. If there is this much variety in failure, I suspect there is even more within the range of starting up businesses and where they eventually end up.

The problem here is fairly obvious, isn't it? Professor Warren is interested in bankruptcy, not entrepreneurship. Could she have conducted a study of venture-backed firms in bankruptcy? Certainly. Would it make sense to slice off that part of the bankruptcy universe for special consideration? Sure, if you were interested in venture capital financing. I am not sure what, if anything, such a study would tell us about the bankruptcy system, but it certainly would tell us something about venture-backed firms.

Law professors are accustomed to thinking about the world in doctrinal categories, which have their own peculiar origins, but we have seen successful attempts to cut across doctrinal lines. For example, scholars who are interested in the phenomenon of discrimination consider various legal and institutional arrangements that promote or enable discriminatory practices, even though "discrimination" is quite varied. Not only are the objects of discrimination quite varied -- by race, gender, age, ethnic origin, sexual orientation ... or fatness -- but the mechanisms of discrimination are infinitely varied and subtle. (I made a similar argument in my response to Bob Lawless about the phenomenon we call "corporate governance.") In the end, the test lies not in the variability of the underlying phenomenon, but in the essential commonality of activities we call "discrimination" or "entrepreneurship."

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In his new paper, The Entrepreneurial Spirit and What the Law Can Do about It, Amir Licht covers a lot of ground in pursuit of a "small theory of entrepreneurial motivations." That small theory depends in important part on the psychological profile of entrepreneurs, which he derives from a survey of recent scholarship:

Research on the individual psychology of the entrepreneur after two decades is beginning to yield a clear portrait, the features of which are well-anchored in rigorous analysis. Entrepreneurs are indeed special individuals in that they tend to exhibit a particular combination of psychological attributes compatible with their role in the economy as new venture creators.

This is an aggressive paper, galloping from economics to psychology to sociology to law and back around again. Amir eventually addresses a normative question: can legal reform encourage entrepreneurship? He emerges a skeptic, concluding that there is "disappointingly little room for effective intervention targeted at fostering entrepreneurship."

He may be right. And as a person who is largely ambivalent on these sorts of normative questions, I would not be disappointed if he were right. But Amir is fairly audacious in his efforts to build the foundation for his conclusion, and, by his own admission, the theoretical and empirical support for strong conclusions is missing.

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On Wednesday a federal judge sentenced the secretary accused of trying to sell Coke's trade secrets to eight years in prison, a sentence longer than that recommended by the sentencing guidelines.  Apparently the judge was not only concerned about the secretary's failure to acknowledge her conduct, but also about sending a message concerning the severity of these kinds of offenses.  Interestingly, of course, it was Pepsi that alerted Coke about the crime after receiving a letter offering to sell Coke's trade secrets to the highest bidder.  I was intrigued by this case not only because it is like a great spy novel, but also because I was trying to figure out how to assess Pepsi's actions.  To be sure, one could argue that this is an instance of Pepsi behaving in a responsible manner.  (It is here that I have to admit that I a Pepsi drinker, and from that perspective, I am relieved that Pepsi "did the right thing.") But there are other ways to view Pepsi's conduct.  A Forbes article has a great take on Pepsi's motives.  The article notes that while Pepsi may have been motivated by a sense of corporate responsibility and fairness, Pepsi has been gaining ground on Coke in many areas and hence Pepsi has no need to look to its competitor for new ideas.  Thus, there was no real tension between fairness and profit.  Regardless of its motive, I think it is fair to say that both Coke and Pepsi appreciate the sentiment behind the judge's sentencing because it seems to support companies' efforts to vigorously protect their trade secrets.

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Law.com is reporting the merger of Locke Liddell & Sapp with Lord Bissell & Brook into a 700+ attorney law firm.  This merger of "third coast" and "second city" firms will definitely give the larger Locke Liddell a larger national profile.  (Locke Liddell is itself the product of a 1990s merger of Liddell, Sapp , Zivley, Hill & LaBoon and Locke, Purnell, Rain & Harrell.)  Of course, you may remember Locke Liddell as the home of Harriet Miers, who has recently returned there.

What strikes me as interesting is this quote from the managing partner of Locke, Liddell:  "To my knowledge, this is the first time a large Texas firm merges with a law firm from outside Texas with offices outside the United States."  That's an interesting place in the record books!  There have been mergers of Texas law firms with non-Texas law firms and mergers of Texas law firms with foreign offices and non-Texas law firms.  But this is the first merger of a Texas firm with a non-Texas firm with foreign offices.  Surely there's something more interesting about the merger than that!

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My colleague Anne Miner in the UW Business School studies, among other things, how organizations learn vicariously from the failure of others. "Learning from failure" is novel in business schools and in some other quarters. For example, at Bob Lawless' recommendation, I picked up and started reading Scott Sandage's book, Born Losers: A History of Failure in America. So far, so good. But I had to chuckle at the Prologue, where Sandage argues for the novelty of his approach:

Deadbeats tell no tales, it seems. Distinguished libraries saved the papers of history makers, but where might one look for scraps from the fallen -- the dead letter office?

Actually, as Sandage recognizes, law reporters are a good place to start. They are full of failures, cover to cover. So much so that in law schools we struggle to stave off cynicism in ourselves and our students.

Usually without success.

(Joke intended)

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