May 02, 2008
I notice that Michele Dickerson, who is guest-blogging up a storm at Credit Slips, is doing a much more thorough job than I at live-blogging the "A Debtor World" conference.
April 18, 2008
The Georgetown Law Center for the Study of the Legal Profession is hosting a conference entitled "The Future of the Global Law Firm." Having not studied law firms in my prior work, I am an imposter-presenter at the conference, which has almost everyone who is anyone with respect to the study of the legal profession. The presentations have been uniformly interesting and provocative.
The participants seem to have reached a few points of consensus. First, the legal profession has changed dramatically in the past two decades and it remains under significant stress, meaning that more change is on the way. Second, the rules that constrain change (e.g., prohibition of non-lawyer ownership, rules relating to conflicts, non-competition rules) should be changed sooner rather than later. Third, the traditional legal form (partnership) is largely irrelevant to the current practice of law, even if law firms want to create an organizational structure that encourages the collegiality of a traditional partnership. Fourth, the law firms that will succeed in the future are those that get the organizational structure right.
On that last point, I have heard a lot of people talking about the need to "think carefully about the changes that will be required." This point came up during the Q&A period of my session, and I made a brief pitch for innovation among law firms. It was not the first time the case has been made for allowing firms to experiment with organizational structure, but I wanted to make the point that innovations usually do not come via deliberation. Innovations come from action. And the problem with the current system is that innovation is impeded by the profession's ethical rules.
Permalink | Conferences| Law Schools & Lawyering | Comments (5) | TrackBack (1)
March 21, 2008
My thanks to Gordon for inviting me to guest blog. I picked this week because it coincides with a conference on Shareholder Rights, Shareholder Voting and Corporate Performance, co-sponsored by the Amsterdam, Vanderbilt and the University of Cagliari, and held here at Cagliari. So here we are in Sardinia to talk governance. One does not usually associate the two, but no is complaining about the venue. Meanwhile, finding an internet outlet on Good Friday has proven daunting. Thanks to the good people at the economics department at Cagliari for helping out.
Today we had papers from, among others, Merritt Fox, Bob Thompson, Henry Hu, and Randall Thomas.
Merritt Fox’s paper, Civil Liability and Mandatory Disclosure, argues against issuer liability for disclosure violations, including those made in connection with public offerings. Merritt grounds his view on a recharacterization of the purpose of the securities laws. He sees them as enhancing efficiency through better governance and enhancing liquidity and dispenses with “investor protection” and its concerns with fair price and risk. He agrees that public offerings present special niceties for noncompliance, but believes that issuer liability leads to avoidance of the public markets, skewing investment and financing decisions. Issuer liability at the same time has a weak compensatory justification because investors are as likely to win as to lose from violations and compensation is ultimately paid by innocent outside shareholders. The deterrence interest is better served by imposing liability directors and officers (subject to limitations) and on an outside certifier modeled as an investment banker.
Chris Brummer of Vanderbilt commented. He wondered where mandatory disclosure fits in a global market populated by institutional investors. He also wondered why Merritt singles out investment bankers for the certifier role, comparing lawyers, who although not expert on the projection of net cash flows at least know the rules. Merritt responded that he’s not wedded to IBs – his certifier just needs to be expert and have adequate capital. What type of firm steps up is not critical to the analysis.
Henry Hu gave his paper with Bernie Black, Equity and Debt Decoupling and Empty Voting II: Importance and Extensions, which recently appeared in Penn. Here Hu and Black apply and extend the empty voting concept to address the question asked in the wake of their first paper: How much does the phenomenon matter? The answer, unsurprisingly, is that it matter very much. The count of incidences has gone from 20 to 81. But the list of phenomena described also has increased. More particularly, this paper emphasizes what management can do to uncouple the vote from the economic interest so as to park votes in favorable hands. Some of this is familiar – defensive use of an ESOP or restricted stock plan to mint votes in advance of an accompanying economic interest. Some of it is new -- a defending management in need of votes could enter into an equity swap, a set up that causes its friendly swap dealer to go long to hedge and thereby acquire a block. European managers have been borrowing using treasury stock to get votes into friendly hands. The law reform recommendation is taken up a notch – firms should be able to control empty voting through (carefully drafted) charter amendments. Henry promises a forthcoming extension to debt.
Bob Thompson gave Corporate Voting, co-written with Paul Edelman of Vanderbilt. The paper describes corporate voting as an error correction device. It is there to remove dysfunctional boards, screen bad acquisitions, and forward a beneficial sale of the firm. Bob’s framework is notably narrower than the agency model advanced by Easterbrook and Fischel a generation ago. The framework is asserted to provide a justification for the traditional vote buying prohibition: The vote, in order to serve its corrective purpose, must be tied to an economic interest in the firm; more particularly, it must follow from the collective shareholder interest. It follows that empty voting is indeed a problem, and that voting rights should be expanded to cover poison pill adoption. At the same time, there’s no compelling reason to expand shareholder access to board nomination – selecting directors, in Bob’s view, is just not as important as the vote’s other functions.
Ehud Kamar commented. I note that some of Bob’s points cut against points made in a paper Ehud is giving here tomorrow, as did Ehud. Ehud asked whether shareholders in fact know better on the matters in question. He also questioned whether Bob’s approach really differs materially from the Easterbrook & Fischel precedent.
Ed Rock gave a paper co-written with Marcel Kahan, Hedge Fund Activism in the Enforcement of Bondholder Rights. This is a great paper that pulls together a lot of under-the radar evidence on aggressive hedge fund enforcement of bondholder rights. Inveterate bondholder advocate that I am, I have looked on this as a positive development. But Ed and Marcel lay out the opportunities for opportunism, showing under- and overenforcement incentives depending on the interest rate picture. I was left with no objections. They make sensible suggestions – use a make-whole premium to better allocate interest rate risk and expand the issuer’s defeasance option. Joe McCahery commented, questioning as to how much we can expect from either remedy.
Randall Thomas gave a second installment of his project with Brav, Jiang, and Partnoy, The Returns to Shareholder Activism. Here the team marshalls evidence on activist hedge funds returns, showing that they beat the returns of hedge funds in general and the S&P 500 to boot. The degree of effort is very high – they sorted out mountains of data to get the sample. I commented on the paper taken in the context of the project as a whole, complaining about their choice of an explanatory theoretical context. Randall’s team cabins the activism phenomenon in classical agency theory, looking for agency cost reductions like free cash flow redirection. I suggested that the market mispricing literature has something to tells us here too, suggesting that hedge fund returns can be explained in part as a function of good stock picking.
Bill Bratton
February 18, 2008
On May 2-3, 2008, the University of Illinois and American Bankruptcy Institute will host A Debtor World and "invite you to join your colleagues and leading academics to explore debt neither as problem nor solution but as a phenomenon. Many different academic disciplines can make important contributions to help us understand why consumers and businesses decide to borrow money, what happens to businesses and consumers under a heavy debt load, and what norms and institutions socieities need to encourage the efficient use of debt."
This conference will feature speakers from various disciplines, institutions and viewpoints, including my colleague Heidi Hurd, Elizabeth Warren, Teresa Sullivan and former colleague Paul Vaaler. The full list of speaker bios is here.
February 08, 2008
Fred Tung and I will be presenting papers at the Fourth International Conference on Contracts tomorrow morning. Today is the first day of the conference, which being held at McGeorge School of Law in Sacramento.
Fred and I will appear on the same panel. Fred will present The New Death of Contract: Creeping Corporate Fiduciary Duties for Creditors and I will present Contracts as Organizations. The other panelist is Daniel Kleinberger, who is discussing Contract Relationships and Fiduciary Relationships: The False Dichotomy. I am interested to hear that presentation because I don't think that there is a false dichotomy, as I explain in The Critical Resource Theory of Fiduciary Duty.
Other than that odd panel on business organizations tomorrow morning, I am feeling like an imposter here. Though I teach Contracts, I don't write much about contract law, and as far as I can tell, everyone else here is talking about contract law. I write about contracts. Are Contracts professors interested in contracts?
Permalink | Conferences| Contracts | Comments (1) | TrackBack (0)
December 08, 2007
Glomming onto Jennifer's recent post on reforming the corporate law curriculum, I have been remiss in not sooner announcing Emory's new Center for Transactional Law and Practice. We've hired Tina Stark, a nationally and internationally recognized expert on transactional skills instruction, to head up the Center. The Center is hosting a conference next May on Teaching Drafting and Transactional Skills: The Basics and Beyond. We are currently actively soliciting proposals for the conference. The deadline for proposals is December 3, 2007.
UPDATE: The deadline has been extended to December 21.
Permalink | Calls for Papers| Conferences| Transactional Law | Comments (0) | TrackBack (0)
November 10, 2007
I'm spending the weekend in New York at CELS. Lots of interesting papers and presentations. Just to name a handful:
Marco Becht, Colin Mayer, & Hannes Wagner, Where Do Firms Incorporate? Deregulation and the Cost of Entry, which studies cross-border incorporation patterns in the EU after Centros, Uberseering, and Inspire Art, three recent ECJ decisions.
Kenneth Ayotte & Edward Morrison, Creditor Control and Conflict in Chapter 11, which investigates how creditors and creditor composition affect the conduct of Chapter 11 cases.
Vladimir Atanasov, Bernard Black, Conrad Ciccotello, & Stanley Gyoshev, How Does Law Affect Finance? An Examination of Financial Tunneling in an Emerging Market, which investigates the effects of legal change in Bulgaria relating to two types of financial tunneling: dilutive equity offerings and below-market freezeouts.
My co-author "Subbu" Subramanian at the Goizueta Business School (Emory) also did a great job presenting our paper: Krishnamurthy Subramanian, Frederick Tung, & Xue Wang, Law, Agency Costs, and Project Finance: An Empirical Analysis, a cross-country study showing the effects of legal rules on firms' choice between project finance and traditional corporate finance. Thanks to Kose John (Stern School) for great comments as our discussant.
Here's the abstract of our paper:
When corporations make large investments, what benefits do they derive from Project Finance vis-à-vis Corporate Finance? In this paper, we show that Project Finance contractually mitigates the agency costs stemming from managerial self-dealing. We argue that cash flows become verifiable in Project Finance because of the contractual arrangements made possible due to a single, discrete project that is legally separate from the sponsor.
We compare Project Finance loans with Corporate Finance loans across forty countries. We show, first, that Project Finance is more likely in countries where laws protecting against managerial self-dealing are weaker. We highlight the causal channel for this effect by showing that in such countries, Project Finance is disproportionately more likely in industries where free cash flows are higher. We use a 4-digit SIC level measure of free cash flow to assets across countries, as well as the US 4-digit SIC measure as an instrument for the cross-country measure. Second, since creditors’ threat to seize collateral deters borrower opportunism, we predict that stronger creditor rights mitigate the marginal effect of weaker protection against managerial self-dealing. We provide evidence for this prediction using exogenous country-level changes in creditor rights and using cross-country tests.
Apart from highlighting the corporate governance benefits of Project Finance vis-à-vis Corporate Finance, our study augments the law and finance literature by highlighting a micro channel through which legal origins can affect financing choices.
Permalink | Conferences| Empirical Legal Studies | Comments (2) | TrackBack (0)
October 18, 2007
This must be a popular date for corporate conferences. Maryland is hosting its annual business law conference today and tomorrow. This year's conference focuses on the 5th anniversary of Sarbanes-Oxley. The conference opened with a roundtable on corporate ethics, where academics from law schools and business schools as well as in-house and outside counsel talked about the impact of SOX on issues of corporate ethics. Tomorrow we will have a set of panels addressing various issues including accounting, capital markets, white collar crime and internal constituents. You can check out the participants and info on the conference here.
Fordham's Murphy Conference on Corporate Law is this weekend. This year's focus is on Corporations, Investors, and the Securities Markets. Here's the lineup. I'll be presenting a work in progress: The New Death of Contract: Creeping Corporate Fiduciary Duties for Creditors. It's still in beta (so it's not on SSRN yet; the link is to the conference webpage). Comments welcome.
October 17, 2007
A reminder that the University of Illinois College of Law is hosting "The Mystery of Delaware's Success" this Friday, October 19, 2007 at 3:00 p.m. This conference will feature Chancellor William Chandler and Professors Bill Carney, Bob Thompson and Larry Ribstein speaking on the topic of the continued domination of Delaware corporate law. If you are planning on attending, please let me know at achurt@law.uiuc.edu.
Also, if you cannot make the autumn trek to beautiful Champaign-Urbana, the event will be webcast live: You can watch the conference LIVE via webcast through Windows Media Player. Just click - File>>Open URL - and type in http://130.126.84.45:2075 and you will be connected live to the conference.
August 20, 2007
If you're like me, you often receive postcards about interesting conferences the week before (or after) the conference and think, "you know, I might have gone to that." Well, here's your chance!
On October 19, 2007, the University of Illinois College of Law Program in Business Law and Policy will present "The Mystery of Delaware's Success," with our keynote speaker Chancellor William B. Chandler III. The lecture will also include presentations on the topic by William Carney, Robert Thompson and our own Larry Ribstein. The lecture will event will begin at 3:00 p.m. at the College of Law.
I hope that many of our readers and law professor colleagues, especially those within driving distance, will make plans to come and be our guest at the College of Law for the day. More information, including registration information, is here.
August 06, 2007
Seven of us from the U. of Illinois (Amitai Aviram, Margareth Etienne, Vic Fleischer, Miranda Fleischer, Pat Keenan, Paul Stancil and myself) are in beautiful Bloomington, IN today attending the second annual Big Ten Aspiring Scholars Conference, organized by Ken Dau-Schmidt. We are enjoying the fantastic hospitality of the faculty here at the Indiana University - Bloomington School of Law and look forward to presenting our work and learning about the work of other junior scholars from other law schools in our region.
I'll be presenting the beginnings of a project that I'm very excited about tentatively titled "Defending Windfalls." I'll be talking about why I am concerned that society places differing moral vales on various economic gains and presenting some mini-empirical work on how the word "windfall" is used in the news media. More later!
July 16, 2007
Under the amazing direction of Andrea Schneider, Marquette University Law School is announcing its First Annual Dispute Resolution Works in Progress Conference, to be held in Milwaukee, WI on October 19-20, 2007. More information is available at the website. Note that the registration deadline is August 3.
June 15, 2007
I'm in Seattle today at the invitation of Seattle University's dean, Kellye Testy. Tomorrow, Seattle University is hosting a works-in-progress conference day, but today is the Fifth Annual Directors Training Academy. This training day is presented by the Center for Corporations, Law & Society here at SU. I am very much looking forward to hearing from directors of publicly-held corporations there take on current events and how they have or have not adapted. More later!
June 05, 2007
Miranda and I are headed off to Boston this weekend for the Second Annual Junior Tax Scholars Conference, which we are co-organizing with Lily Batchelder (NYU) and David Walker (BU). Special thanks to David Walker and BU for hosting this year!
This year's participants: Lily Batchelder (NYU) Neil Buchanan (GW) Adam Chodorow (Arizona State) Allison Christians (Wisconsin) Steven Dean (Brooklyn) Michael Doran (Virginia) Miranda Perry Fleischer (Illinois) Vic Fleischer (Illinois) David Gamage (Boalt) Kristin Hickman (Minnesota) Mitchell Kane (Virginia) Ruth Mason (Connecticut) Lloyd Mayer (Notre Dame) Ajay Mehrotra (Indiana) Alex Raskolnikov (Columbia) Adam Rosenzweig (Wash U) Dennis Ventry (American) David Walker (BU) Ethan Yale (Georgetown). Apologies to the junior tax folks out there that we weren't able to invite; eventually some of us may get tenure, which should open up some slots.
One of the fun things about these kinds of conferences is seeing if any themes emerge without any coordination by the organizers. Some accidental themes this year: (1) the application of Domar-Musgrave in specific institutional contexts (hedge funds, state and local tax, deferred comp), (2) how social norms affect tax compliance, (3) the global market for tax rules, (4) applying different conceptions of distributive justice to specific tax contexts. Broadly speaking, our generation of tax scholars seems especially talented at bridging the theoretical and practical rather than focusing on pure theory or purely doctrinal questions.
More details after the jump. (To encourage works-in-progress, the conference papers are available only on a password-protected site. Papers will be posted to SSRN in due time.)
Friday, June 8
Panel 1 - International
Mitchell Kane, Taxation and International Charter Competition
Discussants: Steven Dean, Victor Fleischer
Steven Dean, The Market for Extraterritorial Tax Information
Discussants: Ruth Mason, Dennis Ventry
Allison Christians, International Tax and Global Governance
Discussants: Mitchell Kane, Kristin Hickman
Ruth Mason, Juicial Activism & the ECJ's Two Country Problem
Discussants: Allison Christians, Lloyd Mayer
Lunch Dicussion Topic: Is Tax a Subject Matter or a Discipline?
Is tax law simply a doctrinal area, like corporate law or patent law, that relies on other disciplines (economics, sociology, history, philosophy) for causal theories and methodologies? Or do tax scholars have a unique way of looking at the world?
Panel 2 - Distributive Justice
Discussants: Miranda Perry Fleischer, Adam Rosenzweig
Lily Batchelder, The Superiority of an Inheritance Tax
Discussants: Adam Chodorow, David Gamage
Miranda Perry Fleischer, Charitable Justice
Discussants: Lily Batchelder, Mitchell Kane
Panel 3 - Taxation of Risk
Adam Rosenzweig, Taxation, Risk and Derivatives
Discussants: Ethan Yale, Victor Fleischer
Ethan Yale, Investment Risk & Deferred Compensation
Discussants: David Walker, Michael Doran
Victor Fleischer, The Blackstone IPO
Discussants: Adam Rosenzweig, Alex Raskolnikov
David Gamage, Should States Tax Capital Income?
Discussants: Neil Buchanan, Ethan Yale
Saturday, June 9 - BU Law School, 765 Commonwealth, 12th Floor Lounge
Panel 4 - Taxation and Democracy
Discussants: Lloyd Mayer, Lily Batchelder
Lloyd Mayer, What Is This "Lobbying" that We Are So Worried About?
Discussants: Ajay Mehotra, Miranda Perry Fleischer
Ajay Mehotra, To Lay and Collect: American Governors and Tax Policy, 1908-2008
Discussants: David Gamage, Allison Christians
Lunch Discussion Topic: To What Extent Should Our Research Make Political Concessions?
What elements of the tax system do you accept as a given when talking about tax reform? Should you account for administrability concerns? Should you take a realization-based system as a given? The capital gains preference? Tax-exempt entities? Revenue-neutrality? As scholars, how should we strike the right balance between rigorous theoretical analysis and relevance to the politically-charged debates of the day?
Panel 5 - Tax Administration
Kristin Hickman, A Problem of Remedy
Discussants: David Walker, Adam Chodorow
Michael Doran, Tax Penalties and Tax Compliance
Discussants: Dennis Ventry, Ruth Mason
Alex Raskolnikov, Tax Identity
Discussants: Michael Doran, Ajay Mehotra
David Walker, Regulatory Penalties
Discussants: Alex Raskolnikov, Neil Buchanan
Dennis Ventry, From Competition to Cooperation
Discussants: Kristin Hickman, Steven Dean
June 03, 2007
If you only know my blog persona, you may be surprised to learn that I suffer from glossophobia, better known as stagefright. Stagefright is an awkward phobia for a law professor. After all, we have to stand up in front of a large class four times a week and command the stage. We present papers to (occasionally hostile) audiences at conferences and job talks. Speaking up at faculty meetings remains especially difficult for me.
Back when I was practicing law in New York, I knew I had to work on my public speaking skills if I was going to get a teaching job. So I decided to face my fear head on: I enrolled in an acting class. First, an intro class at NYU. Then another class at the Atlantic Theater Company, and then a Shakespeare class.
Moment to Moment. Acting never got easy -- don't look for me on a real stage anytime soon -- but the classes definitely helped with managing the stagefright. My teacher emphasized intention and working moment-to-moment. (The school, based on the work of Mamet and others, was sort of the opposite of emotion-based method acting. The idea is that the audience percieves your intention on stage, not whatever you feel inside.) Very useful for the classroom, where working moment-to-moment is the key to the quasi-Socratic teaching method most of us use. And besides, it was fun: my classmates were serious wannabe actors, and after a few months some of them were heading off to do auditions for soap operas or Law and Order.
Broadcast News. It's surprising how many lawprofs have trouble with public speaking, and it's shameful how rarely we acknowledge or address the phobia. One tell-tale sign is a quiver in the voice. Most of us don't sweat like Albert Brooks in Broadcast News, but a shaky voice is hard to hide. The most useful tips I picked up from acting class: (1) don't fight the nervous energy - use it to your advantage by channeling it into enthusiasm for what you are trying to accomplish on stage, and (2) release the nervous energy by projecting your voice and allowing yourself to gesture. This second point is tough, because your instinct when you get nervous is to speak more quietly and swallow your words, which only bottles up the energy, making your painfully self-aware of the awkward moments in the performance ... making your voice shake all the more.
Acting for Lawyers. Given the importance of public speaking to the legal profession, why don't we teach public speaking as a one or two credit pass/fail skills course? Someday I'll work with an acting coach to design an "Acting For Lawyers" course. All the world's a stage, after all.
May 28, 2007
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.
May 21, 2007
Yesterday at the University of Wisconsin Law School, a group of legal scholars gathered to discuss "law and entrepreneurship." Anne Miner, my colleague in the UW Business School, launched the day with a discussion of "What is Entrepreneurship?" in which she mapped to progression of that field of study. Here I am with Anne after her session:
The morning was devoted to teaching law and entrepreneurship, and the afternoon was filled with paper presentations. In between, we took an impromptu hike along Lake Mendota:
Left to right: Vic Fleischer, Mike Guttentag, Usha Rodrigues, Bob Lawless, Gordon Smith, Darian Ibrahim, George Geis, Bobby Bartlett, and Brian Broughman.
At the end of afternoon session, Mike Guttentag provided the recap of what we had learned, though I am not sure you can get that from the whiteboard:
We finished the day on Capitol Square at The Old-Fashioned, which provided an authentic Wisconsin experience, including fried cheese curds. Dan Burk, who will be speaking at the companion conference entitled Technology Entrepreneurship & Institutions: Contemporary & International Research, met us for dinner.
A good time was had by all.
Permalink | Conferences| Entrepreneurship Education | Comments (0) | TrackBack (0)
May 08, 2007
If the two panels that I attended yesterday were any reflection of the rest of the conference, the 2-day 7th Circuit Bench-Bar Conference was a step above the normal large CLE-driven bar conference. The first panel was "Traditional Media's Coverage of the Supreme Court," which began with an opening address by Joan Biskupic, Supreme Court reporter for USA Today and Sandra Day O'Connor biographer. The panel comprised David Savage (LA Times); Jonathan Turley (GW Law School) and Joe Kearney (Dean, Marquette Law School). This panel was moderated by MIke Gousha, former Milwaukee anchorman and current Distinguished Fellow in Law and Public Policy at Marquette Law School).
Joan Biskupic's address was very enlightening for those of us who know very little about modern-day journalism in general and Supreme Court bureaus in particular. She drew two distinctions between reporters and bloggers in coverage of the Supreme Court. The first is that her obligation is first to the facts. Her article must cover the factual bases and then provide analysis and commentary and time and space allow. Second, reporters have the advantage of "being there." The full-time Supreme Court reporters (of which there are fewer and fewer as even large newspapers such as the Chicago Tribune and the Houston Chronicle feel the pinch of budget cuts) are there on the ground, in the building, year-round. Those few holding "hard passes" have the advantage of being able to talk to litigants, watch oral arguments, note who is in the gallery and who is not, etc. She did not disparage blogs or bloggers, and of course we were all mindful that among legal reporters, full-time legal correspondents such as Joan, who graduated from Georgetown Law Center, and David Savage are in a class by themselves.
The second panel was "The 'New' Media: Bloggers and the Courts," and the panelists were Eugene Volokh, Rick Garnett, Jason Czarnezki, Howard Bashman, and Ann Althouse. Our moderator was Judge Diane Sykes. Judge Sykes asked the panel as a whole several questions, with each panelist speaking in turn. Our questions were "Is the unfiltered and unmediated nature of law blogging a strength or a weakness?" "What impact does law blogging have on the judiciary and are there any ethical considerations that are triggered by judges reading blogs?" and "What Impact does law blogging have on traditional legal scholarship?"
I think as a whole, the panel's reaction to the first question, on the unfiltered and unmediated nature of law blogging, was compared to what? Eugene and Ann pointed out that op-eds are not filtered or even fact-checked, and that blog posts are similar to op-eds. I also noted that the question assumes that in some medium analysis and commentary are filtered and mediated, but I did not believe that to be the case. As Joan had noted in her opening talk, reporters have a primary obligation to the facts. I don't. I add little value reciting facts that I did not originate. I link to sources for facts and I may aggregated them, but I don't originate them. So, I don't need a fact-checker. What may need to be vetted are my opinions and arguments for logic or legal basis, but reporters don't do that in articles, either. If a reporter calls me for a quote on the future of some legal issues, they don't then vet that in any way before it runs in print. I also pointed out that law professors are quite used to vetting themselves because law school courses are extremely unfiltered and unmediated. I could lie to students for 14 weeks if I wanted to. But to protect my reputation, I vet myself before I teach to make sure that I'm on firm factual and legal ground. I also pointed out that the filtering and mediation of blogging takes place in the comments, which Ann noted does not happen once an op-ed, written in stone, is published.
The second question about impact on the judiciary was interesting, and many spoke of the advocacy function of some rare blog posts when cases are pending. Howard Bashman spoke of the "amicus brief" nature of blogging. However, one questioner in the audience questioned the ethical propriety of trying to influence a judge on a pending case. Again, the panel did not believe that this phenomenon was any more troubling that op-eds about pending cases or law review articles arguing what the law ought to be in general in a specific area. However, from overhearing the audience participants after the panel, I understood that the questioner's concern was widespread.
I formed a hypothesis that at least some practitioners (the ones that I overheard) were concerned that blogs created a one-way advantage in the way that ex parte conversations do. If one litigant can get the attention of the blogs, then is the other litigant at a disadvantage? One woman near me said to her colleague "The thing about blogs is that if they say something about me, I can't respond." I wanted to assure her that most blogs have "comment" functions, but I didn't want to fuel her paranoia. What is it about blogs that non-bloggers find so dangerous (and "unduly influential")?
May 04, 2007
I am honored to note that I will be speaking at the Seventh Circuit Bench-Bar Conference on Monday, May 6 on a panel entitled "The 'New' Media: Bloggers and the Courts." The other distinguished panelists (or I should say "the other panelists, who are distinguished") are Ann Althouse, Howard Bashman, Jason Czarnezki, Rick Garnett, and Eugene Volokh. Before our panel, reporters from the USA Today and LA Times will speak on "Traditional Media' sCoverage of the Supreme Court." Other commentators on that panel include Jonathan Turley and my former dean Joe Kearney. I am grateful to the Honorable Diane Sykes for inviting me and am definitely looking forward to participating and also hearing what the other panelists have to say.
We leave today to make a MIlwaukee homecoming weekend out of the conference. In 2003, we travelled from Houston to Milwaukee for the same early May conference in anticipation of our move in June. For us native Texans, May in Milwaukee was the coldest weather we had ever experienced! We wondered what we had gotten ourselves into! This time, we are prepared with jackets, sweatshirts, etc. Remember, it's "cooler by the Lake!"
March 28, 2007
CLEA has circulated its call for papers for the fall annual meeting. The deadline for abstracts or papers is May 15th. Details below the fold.
Here's the full text of the announcement.
You are invited to submit a paper for presentation at the next Annual Meeting of the Canadian Law and Economics Association on Friday and Saturday, September 28 and 29, 2007, at the Faculty of Law, University of Toronto. This call is being sent out by e-mail and will go out by post shortly. If your e-mail address has changed in the past year, please send your updated coordinates to Nadia Gulezko at: n.gulezko@utoronto.ca.
Professor Michael Trebilcock, Chair in Law and Economics at the University of Toronto, Faculty of Law, will be the keynote speaker at this year’s conference.
As in past years, we are soliciting papers in all areas of Law and Economics. In addition, there will be a number of sessions focusing on specific themes. The provisional list of these sessions follows:
1. Corporate Governance (Poonam Puri - ppuri@osgoode.yorku.ca)
2. Corporate Law (Poonam Puri - ppuri@osgoode.yorku.ca)
3. Bankruptcy (Stephanie Ben-Ishai - SBenIshai@osgoode.yorku.ca)
4. Teaching Law and Economics (Stephanie Ben-Ishai - SBenIshai@osgoode.yorku.ca)
5. Securities Law (Anita Anand anita.anand@utoronto.ca )
6.Family Law and Economics (Margaret Brinig - margaret-brinig@uiowa.edu)
7.Normative Law and Economics (Shuba Ghosh sghosh@mail.smu.edu)
8.Behavioural Law and Economics (Claire Hill - hillx445@umn.edu)
9. Norms (Claire Hill -hillx445@umn.edu)
10. Bioeconomics and Neuroeconomics (Janet Landa jlanda@yorku.ca)
11. Competition Policy (Edward Iacobucci Edward.iacobucci@utoronto.ca)
12. Regulation of the Legal Profession (Norman Siebrasse - siebrass@unb.ca)
13. Taxation (Ben Alarie - ben.alarie@utoronto.ca)
14. Environmental Law and Economics (Andrew Green - a.green@utoronto.ca)
15. Intellectual Property (Ariel Katz ariel.katz@utoronto.ca)
16. Crime (Phil Curry pcurry@sfu.ca)
**Anyone wishing to present at the conference should send an abstract, paper or Internet link to submissions@canlecon.org by May 15, 2007. Please indicate whether your submission fits into a particular theme.
You may wish to communicate directly with the coordinators listed above if you have questions or suggestions regarding the themes, but please submit to submissions@canlecon.org . The draft programme will be decided upon by July 1, 2007. Completed papers (or, preferably, Internet links to the papers) will be due by August 15, 2007. Panel moderators will be indicated on the programme. Accepted papers will be posted on SSRN with the authors’ approval.
Registration information will be sent to all participants in due course. Please note that the registration fee for the 2007 CLEA Annual Conference is $200.00 CDN/$160.00 US. For students this fee is 30.00 CDN / 25.00 U.S. This covers all conference materials and meals, including the dinner on Friday evening. Spouses or partners are welcome to attend the Friday evening dinner, for a fee of $20.00. Please send your cheque, made out to the University of Toronto to Nadia Gulezko, Faculty of Law, University of Toronto, 84 Queen’s Park, Toronto, ON M5S 2C5. Please note that members will not be permitted to present if their registration fee is not paid. Please visit the CLEA web site for inforrmation on accommodations.
Poonam Puri (ppuri@osgoode.yorku.ca)
President
- The Association web site can be found at: www.canlecon.org
March 16, 2007
Yesterday I spent the day at the above-titled conference at Georgetown Law Center, hosted by the Georgetown Business Ethics Institute in partnership with the National Association of Criminal Defense Lawyers, the Heritage Foundation, the U.S. Chamber Institute for Legal Reform and the American Criminal Law Review. All four of the panels were great, and I enjoyed both the lunch talk by Richard Thornburgh and the wrap-up by Edwin Meese. All in all, it was a wonderful conference. Thanks so much to John Hasnas of the Georgetown Business Ethics Institute for inviting me.
Although it's hard to single out individual remarks because every speaker brought something interesting to the conference, I thought I would outline some of the information that was new to me that I heard there. Most of the people at the conference have been talking and writing about these issues for quite awhile, but we still gained new perspectives from listening to one another. The panels were also fascinating because not only academics were invited; practitioners such as Andrew Weissmann (former director of the Enron Task Force and current partner at Jenner & Block) and Michael Elston (Chief of Staff and Counselor to Deputy Attorney General Paul McNulty) added to the diversity of thought on their panels. (And no, this subpoena for Mr. Elston was not served during the conference.)
More below the fold. . . .
Andrew Weissmann began with an anecdote about how the Enron Task Force, which was composed of U.S. attorneys from around the country, felt somewhat "hometowned" in Houston. I don't think he was seriously hinting that the Task Force suffered from Houstonians dear love for Enron, as the force seemed to be successful at the local level, but not quite at the appellate level.
William Laufer (The Wharton School of the University of Pennsylvania) spoke on the same panel about entity-level indictments and convictions. One point that he made that was interesting was that of the almost 1200 corporations that have been convicted during the period 1996-2005, 91.6% had 50 or fewer employees. Now this may be for many reasons (most corporations are small corporations; smaller corporations have the same individuals as shareholders, directors and officers, so no way for them to separate themselves from the "rogue actors"), but Bill also thought it shed light on a "dual-track" system. In this system, large corporations can engage in "restorative justice" negotiations to make amends to the community and reconcile with the state. By doing so, these corporations avoid indictment.
Craig Lerner (George Mason University School of Law) presented a paper co-written with Moin Yahya (University of Alberta) entitled Left Behind after Sarbanes-Oxley, which predicts that "ideal entrepreneurs" will exit the market for officers in publicly-held corporations, leaving only "swashbucklers" and "bean counters." Ideal entrepreneurs are risk-neutral concerning business risks, but risk-averse as to legal risks. Because of their risk aversion, they will see the current state of affairs criminalizing conduct with harsh penalties even when no intent exists as a dealbreaker. (I think Craig responded to a question that even higher executive compensation may not keep these ideal entrepreneurs in the publicly-held market.) Swashbucklers are risk-seeking for both business and legal risks and so will stay, as will bean counters who will deal with the window dressing of cosmetic compliance programs and the like.
Julie O'Sullivan (Georgetown Law Center) spoke on some interesting twists in the conundrum whereby corporations do an internal investigation and then later waive attorney-client privilege at the behest of the U.S. attorney. Julie mentioned the Computer Associates case in which employees who lied to company counsel were later charged with obstruction of justice. The argument in that case was because the company was under investigation, the company counsel was acting as an arm of the state. Hmmm. Julie made the pointed argument that if company counsels are going to be considered state actors, then they will then have to abide by the Constitution and give Miranda warnings, etc. Also, companies will begin adding to their Upjohn warnings the statement "And if you lie to us, you'll be prosecuted for obstruction of justice," which would probably inhibit communication!
March 14, 2007
I am in D.C. to speak at the conference on Corporate Criminality: Legal, Ethical and Managerial Implications organized by the McDonough School of Business at the Law Center. Many academic and blogospheric friends will be there like Ellen Podgor, Gerry Moohr and Sara Sun Beale, as well as political notables Ed Meese and Richard Thornburgh. Hopefully there will be some blog fodder there!
Side Notes: First, the International Association of Firefighters are staying at my hotel for their convention. I almost asked three firefighters in the elevator whether they were voting for Guiliani after reading this article in the NYT, but I decided against it.
Second, the first room the hotel sent me to had not been cleaned. When I opened the door, one of the beds was unmade, and the sheets sort of looked like a body was wrapped up in them. I could hear the opening tones of Law & Order in the distance (dun-dun). But, there was no body. I got a new room, though.
March 12, 2007
Last week was the week of three illnesses and a funeral at our house. In succession, illness struck the two kids and me, and Paul had to travel solo to Austin when his 93-year-old grandfather passed away. (Marvin Schlecte practiced medicine until he was almost 90 years old. May we all live such productive and happy lives.) However, I did crawl out of my sickbed just long enough to present my latest paper at a conference held at the University of Illinois College of Law with the Zhongshan University in Guangzhou, China: Chinese Reforms in Comparative Perspective. This conference was coordinate by my great colleagues Tom Ginsburg and Cindy Williams, and I was grateful for being asked to participate.
Two interesting points: First, this was my first time to present with an interpreter. We had been told to prepare a 15-minute presentation, even though our allotted time was 30 minutes each. When every thing you say is said twice, this takes a lot of your time! I found myself thinking very hard about every sentence that I said. No fluff, no filler, no getting to say the same thing in a slightly different way than the first time. Very succinct.
Second, the thrust of my paper, The Undercivilization of Corporate Law, is that Type I errors in our criminal law system and Type II errors in our civil system under the same facts are inconsistent with our baseline expectations of defendants' protections. However, I prefaced my talk with acknowledging that in other countries, such as China, baseline expectations may differ. That got a laugh!
January 09, 2007
In addition to AALS this past weekend, the American Economics Association held its own annual meeting in Chicago. Over at the Organizations and Markets blog, Peter Klein has posted links to noteworthy AEA papers on organizations. These include a paper on Firm Boundaries in the New Economy: Theory and Evidence, by Krishnamurthy Subramanian. "Subbu," a co-author of mine on a couple of projects, is a new, up-and-coming finance professor at the B-school here at Emory (Goizueta). Here's what his paper is about:
The theory in this paper highlights the trade-offs that knowledge intensive firms confront when deciding among mergers/acquisitions, joint ventures, alliances, and arm’s length contracts. I define a knowledge intensive firm as a collection of the knowledge assets that it owns and the agents who have full access to such assets. Therefore, boundary decisions between two firms are modeled using access to knowledge and ownership of knowledge. Modeling boundary choices using ownership cannot provide optimal incentives since ownership affects incentives asymmetrically, and ownership can encourage over-investment. In contrast, modeling the boundary choices using access and ownership can provide first best incentives since access and ownership complement each other in providing incentives: access affects incentives symmetrically while ownership affects them asymmetrically. The theory explains why some mergers/ acquisitions in knowledge intensive industries are successful while others fail and in what situations an alliance or a joint venture dominates a merger/ acquisition and vice-versa. Using a sample of alliances and joint ventures in the high technology industries, I provide empirical evidence to support the theory.
Permalink | Conferences| Economics| Law & Economics| Organizational Theory | Comments (0) | TrackBack (0)
January 08, 2007
David Lat isn't the only person with a camera! Here's a photo of all the Glommers and some guests, spouses and friends:
Like Gordon, I had some scattered comments on the AALS conference this past week, so I'll copy his bullet point format:
- In The Big Chill, Jeff Goldblum makes a comment (while 6 of the 8 reunited friends are elsewhere engaging in intimate moments with non-spouses) along the lines of "I have the distinct impression that there is sex happening right now as we speak." Not quite as scintillating, but I had the distinct impression at the conference that there were interviews happening all around me! To be a fly on the wall. . . .
- The Disney panel was great. Having Justice Jacobs there did not seem to make any of the speakers or questioners pull any punches. Of course now I have to change all of my teaching notes.
- Like Gordon, I was also very impressed with the Agency, Partnership panel. I've now seen Rob Sitkoff present twice in just a few months, and I'm on the edge of my seat each time. Only Rob can make trust doctrine sound like Desperate Housewives: "And REITs aren't even trusts!"
- While lunching at Lebanese Taverna, Laura Bush walked in the restaurant. Then, on the plane from Dulles to Indianapolis, Clarence Thomas was in first class. Who will we bump into when AALS is in New York?
- I'm sure unrelated to Gordon's post-conference illness, I began the conference with some sort of stomach flu. I'm sure that had I felt well enough to go to Cloud, David Lat would have featured my photo here and my career would have felt a surge of new energy.
- More than one person described the AALS as a law dork fest to me. I'm sure that couldn't possibly be further from the truth. As evidence, I'll introduce a quote (said forcefully and with much conviction) from an actual conversation that I still can't believe I was part of: "The problem with the Lord of the Rings movies is that they aren't historically accurate."
January 02, 2007
AALS Update: Thursday morning I will be presenting "Two and Twenty" to the AALS Section on Agency, Partnerships & LLCs. The article provides a menu of reform options for taxing partnership profits.
Given the mostly non-tax audience, I will be focusing on (1) how the flexibility of the partnership form (generally a good thing for business) creates opportunities for tax planning (and headaches for tax authorities) and (2) how the partnership rules, designed with small business in mind, are being used by large investment funds. My panel includes Larry Ribstein, Robert Sitkoff, and Brett Freudenberg. Deborah DeMott will comment on my piece.
August 01, 2006
I'm in Bloomington, IN at the first Big Ten unTENured Conference, a workshop for untenured law profs at schools in the Big Ten. Indiana-Bloomington has sponsored this conference, and I have to say that both the idea and the execution are outstanding. Hats off to Ken Dau-Schmidt and the rest of the faculty for giving us this great opportunity to discuss our scholarship. I presented my paper "The Undercivilization of Corporate Law," which hopefully I'll be posting in the next month or so. I got some great feedback and comments and got to reconnect with friends at Indy, Minnesota, Iowa, and Michigan State and meet new ones.
We'll be leaving early tomorrow to collect our kids from grandparents in Virginia, so here's hoping the hours in the car fly by!
July 09, 2006
The Law & Society Annual Meeting was a hive of activity, as usual. The great strength of the conference is the diversity of the panels. That is also its great weakness. Without any sort of screening, sessions proliferate, and quality is highly uneven. Sessions with more participants than members of the audience are not unusual.
I organized a session entitled "New Questions About Contracts," which featured two interesting empirical studies of contract terms by Ronald Mann and Rachelle Sampson, respectively; a brief discussion of my survey of empirical studies of contract terms (which will be available in draft form by fall); and comments by Mark Suchman and Stewart Macaulay. By Law & Society standards, turnout was excellent, and I enjoyed the session very much, including the post-session discussions, of which there were many.
My main goal is to encourage more empirical work on contracts, but I have a methodological agenda, too. Most empirical studies of contract terms use a Williamsonian framework, which is interesting and productive, but incomplete. This framework assumes that many/most/all contract terms are motivated by a desire to curb opportunism. Why do we have covenants? To deter opportunism. Why are cash flows structured this way or that? To prevent opportunism. And so forth.
Interestingly, Ronald Coase eschewed opportunism as a meaningful motivation for contractual structure, suggesting that reputational constraints usually prevent opportunistic behavior. Ronald H. Coase, The Nature of the Firm: Influence, 4 J. L. Econ. & Org. 33, 44 (1988) ("the propensity for opportunistic behavior is usually effectively checked by the need to take account of the effect of the firm’s actions on future business"). Also, consider this from Harold Demsetz:
Opportunistic behavior is not a problem that is mentioned by Coase in his famous paper, but it is clear from his later writings . . . that he does not believe opportunism offers a special justification for vertical integration. Therein lies a difference between Coase and those who see opportunism as an important source of vertical integration. Coase believes that there is a wide variety of coordination problems, of which opportunism is only one, and that all of these are candidates for resolution through managed coordination or through contractual arrangements made across markets. Which institutional arrangement seems best requires a judgment about the tradeoff between transaction and management costs, even in the case of opportunism.
So the goal of my project, beginning with a survey and continuing with several other papers already in production, is to explore "new" questions about contracts, questions not motivated by opportunism. If you have thoughts on this, I would be happy to hear them.
Obviously, this post is not even close to a complete recap of the conference, but if you have thoughts or insights from the conference, feel free to include them in the comments.
July 05, 2006
Some combination of the Glom is heading to the Law & Society Conference tonight and tomorrow. Surely we'll have Internet access (gasp) there. If you are around, remember that we are co-hosting a happy hour with Prawfsblawg tomorrow night, Thursday, at 9:30 p.m. at the James Joyce Pub near the conference hotel, the Marriott Waterfront. (I suppose that if you stay at the pub too long, you start rambling on, stream of consciousness style, with no sentence structure or punctuation.) If you're thinking of going, email Dan Markel so we can look for you. He's put up directions here.
June 23, 2006
While we're all at the Law & Society Conference in Baltimore in two weeks, Dan Markel at Prawfs suggested we all get together for a PrawfsGlom blogger/reader Happy Hour. So, mark your calendars for Thursday, July 6 at 9:30 or so, and check out the details here.
June 14, 2006
The annual Law and Society meeting is coming up, July 6-9 in Baltimore. Navigating the massive events calendar can be a bit intimidating, so here's a rundown of corporate law panels. Hope to see you there.
Thursday, July 6.
8:15-10:00
Current Issues in Corporate and Securities Law--Part I
Jayne W. Barnard, Securities Law Recidivists: Smart, Charismatic, Adaptable Men (Mostly)
Erica Beecher-Monas, Diversity in the Boardroom: Have We Come a Long Way, Baby?
12:30-2:15
Author Meets Reader--Tamar Frankel, Trust and Honesty: America's Business Culture at a Crossroad.
2:30-4:15
New Questions about Contracts
Vic Fleisher, The Mastercard IPO
Ron Mann, Making Electronic Contracts Enforceable (and Unenforceable)
Rachelle Sampson, Formal Contracts in the Presence of Relational Enforcement Mechanisms: Evidence from Technology Development Projects
Gordon Smith, New Questions about Contracts: Empirical Studies of Contract Terms
Friday, July 7.
10:15-12:00
New Looks at Corporate Regulation and Corporate Governance
Tamar Frankel, Trust, Honesty, and Business Culture in America
Peter Huang, Happiness and Cost-Benefit Analysis of Financial Regulation
Joanna Shepherd, Fred Tung, and Albert Yoon, Cross-Monitoring and Corporate Governance
10:15-12:00
Current Issues in Corporate and Securities Law--Part II
Joan MacLeod Heminway, Sex, Trust, and Corporate Boards
Christine Hurt, Cleansing, Catharsis, and Restoring Confidence: The Corporate Crime Lottery
Margaret Sachs, Materiality and Social Change
Saturday, July 8.
10:15-12:00
Roundtable--Course on the Business Firm as Social Entity
James Fanto, John Conley, Larry Solan, Tom Tyler.
This Roundtable will present a course on the
Business Firm as Social Entity (the "Course"). The goal of the Course
is to produce a syllabus, readings and materials from the social
sciences, finance and the law that could be used by faculty in
different educational settings, including psychology departments,
business schools and schools of public affairs, as well as law schools.
2:30-4:15
Current Issues in Corporate and Securities Law--Part III
Claire Moore Dickerson, Business in the Shadow of the Law: Parasols and Other Self-Help
Dimity Anne Kingsford Smith, How Do Online Investors Seek Information and What Does This Mean for Regulation?
Therese Maynard, Corporate Law Practicum: Bridging the Gap Between Theory and Practice
June 13, 2006
Now that we have the Disney opinion in hand, I wanted to remind everyone that the AALS Section on Business Organizations will be focusing on Disney in the January meeting. The call for papers is here (pdf).
Lily Batchelder (NYU), Miranda Perry (Colorado), and I will be hosting the first annual Junior Tax Scholars Conference this weekend here in Boulder. The participants are:
Lily Batchelder (NYU)
Craig Boise (Case)
Neil Buchanan (Rutgers)
Adam Chodorow (Arizona State)
Allison Christians (Wisconsin)
Steven Dean (Brooklyn)
Michael Doran (Virginia)
Vic Fleischer (Colorado)