December 16, 2007
Gregory Mark on Lawrence Mitchell, The Speculation Economy: How Finance Triumphed Over Industry
Posted by Gordon Smith

Gregory Mark of Rutgers School of Law has been kind enough to contribute another review of Larry Mitchell's book, The Speculation Economy: How Finance Triumphed Over Industry:

It is a pleasure to see a fine mind at work.  Larry Mitchell, long known as something of an iconoclast among scholars of corporate law, has in recent years turned towards the history of corporate law.  This book represents what I, at least, hope is but the first of his book-length efforts in history, for it demonstrates the explanatory power of a deft mind with a talent for prose.  The book should also serve to remind the legal academy of one of its grandest traditions (and its attendant cautions), the law professor as autodidact.

Mitchell’s thesis, that finance has subsumed industry and that it is possible to identify a moment - really a moment crossing several years - when the conquest of commerce by finance took place, is one about which I have more than a little reservation.  But his identification of the thirty year period from 1890 to 1920 as somehow transformative is certainly correct, though not unique to him.  Mitchell’s contribution, and it is a major one, is to combine the business history of that period with the legal history of the period and to demonstrate that the two were intimately connected.  As with any fine work of history, however, even if the thesis is contestable, it provides an invaluable set of insights and explanations.  I wish to single out but one explanation and one insight built on a metaphor to demonstrate the virtues of the book, before delving into my quibble with the thesis.

Watered stock.  To a modern law student, a modern lawyer, or a modern person of business, that concept is utterly foreign.  When an occasional reference to watered stock appears in a casebook or history, by definition universally pejoratively, I would guess that most people read right over it, happy to know that it was bad but unconcerned about why that might be, or even what it is.  Yet, until roughly World War II, it was a concept that excited the imagination of financial manipulator and reformer alike.  Mitchell provides the definition, “stock [issued] at a par value higher than a corporation’s tangible economic value.  The difference was called ‘water.’” (59) The evil is seems clear.  The seller somehow cons the buyer into paying more than the stock is worth.  Of course, much depends on the concepts of “par value” and “tangible,” but the nature of the scam is clear.  Mitchell’s elaboration on the anxieties provoked by watered stock is nothing short of brilliant, the more so since he understands that modern finance simply scratches its head at such a notion.  To the modern market, assuming a reasonable flow of truthful information, the selling price is the price is the price, and a company is worth not its tangible assets, but the value of its projected income streams compared to other available investments, each valued the same way.  But, in eras when truthful flows of information were themselves rare, and legal protections relatively costly, reliance on “par” and “tangible” had meaning they lack today.  And, of course, the triumph of finance, Mitchell argues, is premised in part in a change in attitude, from regarding a company as a collection of assets to a mechanism for the production of income.  His explanation of watered stick is thus the best I have ever read, both for its clarity and for its significance historically.

Mitchell’s virtues as an author, however, are not limited to clarity of exposition.  He can turn a metaphor with the best of them.  What better metaphor than modern financial instruments as somehow agricultural to make the new understandable to citizens in a society in flux?  Watered stock is, after all, itself a metaphor for the dark side of the transformation.  The agricultural metaphor’s positive force, or at least its legitimating force is one that, to my knowledge at least, is best developed by Mitchell’s work.   And, he knows it.  With a becoming modesty he notes that, as a new form of property, the stock market could fill the evaporating role of the land ... in classical American life and thought. ...  I exaggerate only a little to say that this idea of corporate securities as the new family farm helped to legitimate the stock market as an American institution[.]” (4)  As an author he knows that the metaphor works its spell not just on the subjects about whom he writes, but on the reader as well, making smoothly understandable the jarring transitions of the era.

Alas, however much I admire the work, I simply cannot bring myself to subscribe to its ultimate thesis, that somewhere between 1890 and 1930 finance came to dominate industry.  I am perfectly prepared to believe, and do believe, that Mitchell demonstrates that this era represents such a shift, but that it represents the shift is something else again.  The capacity of finance to dominate industry has been a perpetual fear that has reared its head episodically throughout the history of the republic.  The fear of foreign financiers dominated much of the early nineteenth century.  The first national bank’s charter was allowed to lapse because of such fears.  The prevalence of those fears was not without cause.  The industry of America was commercial agriculture in that era, and the indebted farmer’s perpetual plight is a standard trope of the period’s politics and literature.  The farmers whose land was seized in foreclosure, and then sold off by financiers at their profit, was but a precursor to the railroad and industrial reorganizations in Mitchell’s decades.  And in the decades after Mitchell’s era corporate managers fought, and largely succeeded, in keeping finance at bay, financing growth through retained earnings and dipping into capital markets as lightly as possible.  Managers, always accused after Berle and Means of not wanting to answer to shareholders, shared a palpable aversion to answering to financiers also.  If one is to believe the work of people like Ron Chernow, for example, investment banks moved from financing and reorganizing industries to countries at the end of Mitchell’s period.  For a variety of reasons, some legal, some macroeconomic, and some political, financial institutions played second fiddle to the companies for which they raised money for some time after the Second World War.  While anecdote is of limited evidentiary value in contending with a thesis as sweeping as Mitchell’s, allow me to proffer two: IBM and Barbarians at The Gate.  IBM, an industrial icon, borrowed no money on the bond markets in its computer manufacturing days until the last few years of the twentieth century.  The story of Ross Johnson’s corporate folly is the story of a man who invited the financial community in because he succumbed to the siren song of the buyout, not because he was not having fun and living well running the company (shareholder welfare to one side).  All this is to suggest not that Mitchell is wrong in the story he tells, but rather in the significance he attributes to it.  American business history is, it seems to me, better described the story of a tension between financial and commercial/industrial entities.  In some periods, for some reasons, finance dominates.  In other periods, it does not - it is sleepy.  In some years Harvard Business School graduates flock to industry.  In some years they do not.  Mitchell tells the story of an era better than any I know, combining technical legal expertise with a nuanced understanding of finance, commerce, and industry developed from prodigious research and the realism of someone who sends lawyers from law school into the trenches.  The transformation he interprets is vital, but hardly final.  In history, as in ideas, there are no final victories.

Thus, my final comment, not really on the book but on the project.  The legal academy is undergoing a profound change, in which the profession is being sliced up into turfs dominated by individuals with additional professional training, be it economics, history, philosophy, medicine, what have you.  An unfortunate by-product of this otherwise salutary intellectual development, is a kind of balkanization of the collective endeavor and a concomitant tendency to devalue the work of those without the formal training.  Mitchell reminds us that important contributions can come from those who master material, whether they burnish their resume with academic epaulettes or not.

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December 10, 2007
Gordon Smith on Larry Mitchell, The Speculation Economy: How Finance Triumphed Over Industry
Posted by Gordon Smith

Like the other reviewers, I quite enjoyed Larry's detailed description of the "formative era of American corporate capitalism" from 1897-1919. While Larry obviously is concerned about some of the effects of American corporate capitalism -- most importantly, the ways in which industry responds to the demands of finance -- this book is not a polemic. In the end, the power of Larry's telling lies in the simplicity of his thesis: "The speculation economy was a common stock economy." (193)

Larry sets the stage in Chapter 1 with an account of the founding of the American Economic Association as an attempt to encourage "perfect freedom in all economic discussion." The founders were breaking away from what Larry calls the "orthodoxy of laissez-faire," and the proposed platform -- drafted by Richard T. Ely, who as a professor at the University of Wisconsin was the object of a "trial" that became one of the great landmarks in academic freedom in the United States -- read as follows:

We regard the state as an educational and ethical agency whose positive aid is an indispensable condition of human progress. While we recognize the necessity of individual initiative in industrial life, we hold that the doctrine of laissez-faire is unsafe in politics and unsound in morals; and that it suggests an inadequate explanation of the relations between the state and the citizens.

Even though the condemnation of laissez-faire did not survive the inaugural meeting of the AEA, this proposed platform sets up the tension that Larry wants to explore: the role of the state in channeling the market. He spoils the punchline in the Preface: "The story of the formative period is a story of problems misperceived, transformations not yet understood and misguided regulation."

The portion of Larry's story that most fascinated me was the merger wave of the 1890s, which made "the business of America into the business of finance." (56) Contemporary observers were consumed by the issue of "overcapitalization," though the nature of that problem is difficult to pin down. As Larry reminds us, "capitalization" was a formal concept, referring to the nominal value of the stocks and bonds issued by the corporation. "Overcapitalization" meant simply that "the corporation was capitalized in an amount that was greater than the cash value of the assets that appeared on its balance sheet." (58) To modern eyes, this seems like a rather silly thing to be worried about because modern theories of valuation make the nominal values of value of stocks and bonds irrelevant. Larry acknowledges this, but notes that he is not much concerned about the substance of overcapitalization. Instead, he is interested in the fact that legislators believed that is was a real economic problem.

This belief led to an exaggerated concern over the potential for monopoly because, the reasoning goes, only through monopolization could promoters obtain the profits necessary to support their excessive issuances of stock. By focusing on the potential for monopolization, rather than on the market's need for information to produce accurate valuations, regulators encouraged expansive issuances of stock. Thus, "corporate promoters introduced the new middle class to the stock market, and it is here that both investor and market were transformed."

This is a bizarre tale, but one that must be understood to fathom capitalism as it is currently practiced in the United States and, increasingly, elsewhere in the world.

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Fred Tung on Lawrence Mitchell, The Speculation Economy: How Finance Triumphed Over Industry
Posted by Fred Tung

"We are all capitalists now," I like to tell my students.  Our savings, our mortgages, our retirements, our insurance policies--literally, our futures--are all tied up with the capital markets.  The mortgage meltdown offers a timely illustration:  even financially conservative homeowners are suffering harm, as real estate speculation, overbuilding, and foreclosures push up the supply of housing stock and deflate the value of all the houses in the neighborhood, not just the ones in foreclosure.

Larry Mitchell's book The Speculation Economy:  How Finance Triumphed Over Industry explains how we got here.  The book offers a rich historical account of the Merger Movement, the growth of big business in America, the popularization of stock market investment beyond elites, and regulatory failings all along the way.  Larry identifies several important trends in the early decades of the twentieth century that together created the Speculation Economy--the switch from balance sheet firm valuation to valuation based on capitalized earnings; the popularizing of stock investing to the middle class; the gradual inclusion of common stock in the investment portfolios of average investors, who at the turn of the century were generally willing to hold only corporate bonds, and possibly some preferred stock for the true risk lovers.  These trends together ultimately enabled finance to triumph over industry.  Firm managers came under new pressures from the stock market to produce short-term profits, so that they could meet their dividend obligations or show consistent stock price appreciation.  These demands of the stock market, increasingly populated by diversified small holders who cared more about stock performance than the business of the corporation, would eventually create incentives for corporate managers systematically to sacrifice long-term goals in order to pursue quarterly earnings targets.

Larry's analysis of the interplay of these various trends, along with the federal government's inability to effect regulation to stabilize the economy, is interesting and provocative.  I loved the book, but I have a serious quibble over--of all things--the title. 

The title oversells in some sense.  Larry's focus is not on promoter fraud or market manipulation or frenzied bubble activity--what we ordinarily might think of as speculation, and episodes of which all occur in Larry's telling.   Instead, Larry's focus is on the normal, mundane operation of financial markets, independent of any scandal or panic.  His view, which he makes explicit in his epilogue, is that "the American economy is intrinsically  speculative even under normal conditions."  For Larry, what is intrinsically speculative is--please correct me, Larry, if I overstate--that individual middle class investors would invest in common stock and accept discounted cash flow valuation as a meaningful analytical tool.  Valuing stock based on what a company might earn--as opposed to its liquidation value--necessarily involves some subjectivity, which means that to some extent, stock investors are all guessing what other stock investors think a stock is worth.  But this happens in any liquid market. 

"Speculation" is of course a disparaging term for Larry, but his essential discontent is a discontent with modern finance.  To be fair, Larry offers careful description of the historical context in which common stock investing becomes widely accepted, and seen in this context, it does seem kinda wild.  On the other hand, the same historical progression could as readily be seen as a triumph of financial progress--both technical progress in terms of valuation and portfolio theory, and social progress in terms of the democratization of investment markets.

Related to the title is--of course--the subtitle:  How Finance Triumphed Over Industry.  Finance did not triumph over Industry in Larry's story.  And though I was waiting for the conflict and triumph for several hundred pages, no such tension or resolution occurred.  Instead, as the Epilogue eventually makes clear, the period Larry covers--through 1919--merely sets the stage for an eventual triumph of Finance over Industry, when CAPM and the takeover boom of the 1980s really push corporate managers to short-termism.

Regardless of titular quibbles, I thoroughly enjoyed the book.  I learned a great deal about historical episodes I knew nothing about, as well as historical episodes I knew something about.  Anyone interested in US corporate history should read this book.

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Lisa Fairfax on Lawrence Mitchell, The Speculation Economy: How Finance Triumphed Over Industry
Posted by Lisa Fairfax

First, thank you to everyone participating in the book club.  I had the chance to read Larry Mitchell’s book, The Speculation Economy, on the train to and from New York and I found it to be a fascinating read.  I thought it was gong to be a journey into the economic history of the stock market—and it was.  However, what grabs the reader’s attention is the colorful and clearly well documented stories about this era (such as the back and forth between President Teddy Roosevelt and Maine Representative Charles Littlefield with respect to the attempts at federal incorporation).  In this regard, the book was an economic and social history lesson.  For me, the various personal stories behind the shifting economic landscape and the level of detail within those stories were critical to understanding how the era took shape and for telling a cautionary tale about the modern market.  Indeed, to the extent that similar influential players have emerged in today’s market (with similar colorful stories), The Speculation Economy underscores the importance of recognizing those players and their potential impact on the direction of our economy and society.  In this regard, the book suggests the need for greater attention to the social, political, and economic forces that mold the market.  At bottom, one critical lesson is that the structure of the market is not the inevitable result of efficiency, but the result of complex factors that can be manipulated (even at the risk of efficiency) and need to be controlled.

As the title suggest, the main theme of the book is to demonstrate the manner in which what Larry calls the “speculation economy” emerged, and also to indicate some of the drawbacks of such an economy.  In this regard, the book pinpoints the myriad factors that emerged so that investors shifted their investment strategy from buying bonds and preferred stock to being speculators—or widespread purchasers of common stock.  Within this context, I found the discussion about dividends intriguing. As Steven Banks points out, the dividends issue may be subject to different interpretations.  Yet I found it illuminating, particularly as it relates to broader observations about the merits of short-term and long-term investment horizons often seen in corporate scholarship. The book uses historical data to reveal that investors went from expecting regular dividend payments to an investment strategy that focused on price appreciation, pursuant to which dividend payments were not expected; instead the expectation was that earnings would be retained and reinvested to spur growth and appreciation.  In this way, the book uses the treatment of dividends to show that investors changed from viewing their investment as a form of guarantee to an investment that was focused on more speculative and uncertain price appreciation.  However, what is the meaning of this change? 

On the one hand, this shift can be interpreted as a positive development, reflecting the American investors’ change toward a long-term investment horizon without a focus on short-term profit.  Indeed, presumably the investor that demands dividends has an interest in ensuring that a corporation meets it financial expectations on a regular, and hence, short-term basis.  By contrast, an investor concerned with price appreciation cares less about the short-term and more about the business specific advances that will lead to long-term appreciation.  In this regard, one can view the story about dividends as in conflict with the story of short-termism.  On the other hand, later portions of the book underscore the notion that short-termism is not an inevitable result of the speculation economy.  More importantly, it seems that the crux of the shift as it related to dividend expectations was not one that focused on the distinction between a short-term investor and a long-term investor, suggesting that such dichotomy in the literature may not be as useful as some scholars believe.  Rather, the shift relates to investor expectation.  The investor focused on dividends has a specific and fixed expectation.  While the investor focused on price appreciation does not.  Moreover, the investor focused on price expectation is encouraged to believe that the sky is the limit with regard to profit.  This in turn generates pressure not only to show appreciation (sometimes by whatever means necessary), but also to pursue as much profits as possible without any other clear guiding principle.  From this perspective, the book does a good job of pointing out that the shift from a fixed payment investment regime to speculation caused a shift in expectations that needs to be better managed. 

Importantly, the book does not indicate that the speculation economy is inherently bad.  Instead, Larry refers to such economy as a “neutral fact.”  In this regard, he acknowledges that the market produces benefits and that there are positive aspects of the market that we should embrace.  In fact, the triumph of finance over industry does not mean that we inevitably ignore all industry-specific concerns in favor of profit.  However, the triumph does suggest that the speculative market is capable of exploitation in ways that other markets may not be.   

Then too, the book’s account also has implications for those interested in corporate social responsibility.  Such advocates may find these remarks in the book’s preface disheartening.  It is there that the book notes, “our speculation economy. . .has pushed American social norms from a vision of collective life that achieved currency during the Progressive Era to a more atomistic form of individualism that has both recalled an earlier American ideal and driven the future.”  On the one hand, this may suggest that the pressure to focus on profit and ignore issues of social responsibility may be deeply embedded and hence especially difficult to counteract.  On the other hand, the book suggests that there is room for socially responsible behavior.  However, the book also suggests that such behavior will not emerge as a natural result of individual altruism, but must somehow be affirmatively fostered.  In this regard, the book encourages the work of those seeking to shape the behaviors of corporate managers, while validating its importance. 

Ultimately, the book adds an important piece to the puzzle of our economic markets, and has implications for a variety of different corporate law debates.

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Steven Bank on Lawrence Mitchell, The Speculation Economy: How Finance Triumphed Over Industry
Posted by Gordon Smith

Welcome to the Conglomerate Book Club! As we announced in October, we will be focusing today on  Larry Mitchell's new book, The Speculation Economy: How Finance Triumphed Over Industry. We will be posting reviews throughout the day, and we encourage our readers to join the discussion in the comments. For our first review, we are grateful to Steven Bank, Vice Dean and Professor of Law, UCLA Law School:

Larry Mitchell’s latest book, The Speculation Economy: How Finance Triumphed Over Industry, is an impressive tour through an important period in the history of American business and financial history.  As Mitchell describes in fine detail, the emergence of the modern large corporation, the separation of ownership and control, and the expansion of the stock market, all occurred or accelerated during the end of the nineteenth century and the first two decades of the twentieth century.  While each of these developments has been studied in the past, Mitchell’s book may be the first to tackle all of them in an attempt to locate the birth of the modern corporate economy.

Moreover, Mitchell manages the difficult task of providing the type of detail and citation sufficient for scholars while still maintaining the readability and accessibility important for reaching a broader population.  While I wouldn’t exactly call it beach reading, I read the book cover-to-cover on an airplane while on a round trip flight to the East Coast.  Mitchell accomplishes this balancing act in part by collecting a number of interesting anecdotes about this period, such as the origin of the term “watered stock” (think thirsty cows being driven to market for weighing), and by profiling some of the oft-forgotten lawyers who facilitated the great wealth accumulation, such as James B. Dill of New Jersey.

But the folks here at Conglomerate aren’t paying me to just praise the book (actually, they aren’t paying me at all, but that’s another story).  It’s clearly worth a read, but that isn’t to say there aren’t things that struck me as odd or as missing.  Perhaps most fundamentally, the title reveals an interpretation of the period that is overstated, if not exactly backwards.  Mitchell’s claim is that this period was the dawn of something called “The Speculation Economy.”  He argues that ordinary people for the first time began to speculate by buying stock in corporations with which they had no connection or intimate knowledge.  These corporations were often the result of great mergers designed to produce marketable stock more than actual products.  This is certainly one sense of the word “speculate” and Mitchell adequately documents the term’s use by some contemporary commentators to describe the expansion of the stock market.  Nevertheless, in another sense this was the end of the speculation economy.  While individuals were surely primed to take more risks, the simple fact was that corporate stocks had become less speculative despite the fact that some of those companies focused more on Wall Street than Main Street.   The early corporate venture was akin to a voyage of the British East India Company.  If the venture was successful and the ship returned, everyone received huge returns on their investment.  More than likely, however, the venture did not pan out, either because of troubles on the seas or in the far-flung lands, in which case everything was lost.  The nineteenth-century corporation frequently operated under a similar model.  Dividend payout rates were extremely high and most corporations distributed all of their profits as dividends each year.  Conversely, there was no return on the investment or the investment was lost entirely in down years.  Moreover, in the absence of an actively traded stock market for non-railroad companies, the stock was effectively illiquid.   In the twentieth century, this corporate finance model began to change.  Dividend payout rates dropped substantially as companies recognized the value of retained earnings as a protection against panics and as a cheaper form of financing.  The concept of the “regular dividend” emerged as many corporations sought to attract stockholders seeking to hold shares for income rather than simply for speculation.  This regular dividend permitted more objective valuation by outsiders, especially in the absence of financial reporting, which in turn facilitated trading in the stock among dispersed investors on a public exchange.  In effect, corporate stock became more plausible as an investment for outsiders not simply because investor attitude had changed toward speculation, but also because the underlying corporation had changed into a more solid, albeit still risky, business investment.

One other oddity of the book is that it only devotes part of one chapter to the crucially important influence of World War I.  Mitchell concedes on p. 103 (citing Warshow) that the most dramatic expansion of the stockholder ownership base took place between 1917 and 1920.  This was no mere coincidence.  As Mitchell relates in some detail, the Liberty Bond drives introduced an entire new class of individuals to the advantages of investing.  An entire market of brokers developed to serve these new investors and as those bonds came due, those brokers convinced the individuals to put that money into the stock market.  Moreover, corporations plowed back their high earnings during the war into their businesses, which may have further stabilized corporate stock after an initially rocky transition to the post-war economy.  All of this probably deserves more attention in Mitchell’s story.

Part of the reason Mitchell may have decided to spend less time on World War I is that his focus is not on taxation, which is a significant omission.  This is true throughout the book and not just during the World War I discussion.  In his discussion of disclosure efforts, there is no mention of the 1909 corporate excise tax provision mandating corporate publicity for returns.  Although this was a flawed provision and was repealed within two years, Taft had trumpeted it as partial fulfillment of his pledge to continue Roosevelt’s pursuit of corporate reforms.  The absence of tax discussion is particularly glaring though during World War I.  A fundamental question lurking in Mitchell’s story (but largely unanswered) is why the wealthy blockholders sought to sell their stock and some of their control in the first place.  Tax played a huge role in this during the war.  Top marginal rates climbed from 7 percent in 1915 to 77 percent in 1918.  Wealthy investors sought relief.  Retained earnings avoided those high rates, but Congress responded by imposing excess profits taxes on corporations.  Middle class investors were not subject to the income tax or those high marginal rates.  Thus, they were willing buyers.  Tax-exempt Liberty Bonds provided a refuge for the wealthy and tax-free reorganizations (first permitted in 1918) provided a method of diversifying without realizing gain.  Of course, arguably this is all an entirely separate paper or book, but nevertheless it is hard to appreciate the significance of World War I, or indeed to fully understand the transition described in the book, without it. 

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October 04, 2007
Conglomerate Book Club
Posted by Gordon Smith

We are pleased to announce the next installment of the Conglomerate Book Club ...

Last year we inaugurated the Conglomerate Book Club with a discussion of In the Shadow of Law, a novel by Kermit ("Kim") Roosevelt of the University of Pennsylvania School of Law. Since that debut, we have been searching for just the right opportunity to stage another session. We have found that opportunity in Larry Mitchell's new book, The Speculation Economy. Many of our readers will know Larry. who is the Theodore Rinehart Professor of Business Law at the George Washington University Law School, and is widely recognized for his work on issues of "progressive corporate law."

The Speculation Economy addresses this question: "
When did the stock market become the driver of the American economy?" As you might infer from the question, we need to explore of bit of American business history to discover an answer, so we have enlisted Greg Mark and Steve Bank to comment on the book. Glommers Lisa Fairfax, Fred Tung, and I will also offer some brief thoughts.

All of this will happen on December 10. Each of the reviewers will write a brief review of the book, about the length of a typical blog post. And we will post those reviews on the blog. Larry will respond to the reviews, and then we will carry on the discussion in the comments. Please make some time in your schedule to read the book and join us for the discussion.

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August 15, 2006
The Conglomerate Book Club
Posted by Gordon Smith

Welcome to the inaugural edition of the Conglomerate Book Club. Today we are pleased to be discussing In the Shadow of Law, a novel by Kermit ("Kim") Roosevelt, Associate Professor at the University of Pennsylvania School of Law. Below the fold are four brief comments on the book and Kim's responses. (Beware of spoilers!) Please feel free to join the discussion.

Over the past couple of months, I have been tinkering with an application at Ning, and this seems like an appropriate moment to unveil the Conglomerate Bookshelf. People who hang around Conglomerate do a fair amount of reading, and this seemed like a nice way to build a repository of book recommendations from the community. Check it out and let me know what you think. If you would like to rate Kim's book, you can find it here. At the moment, only the Conglomerate bloggers are authorized to add books to the Bookshelf, but if people are interested in this idea, we'll consider expanding.

David Zaring

In the Shadow of the LawI liked the book - spends a lot of time examining what kind of people might be willing to work at a law firm, and what kind probably shouldn’t. By structuring the plot around two cases, one in which the firm wears a black hat and tries to prevent a corporate client from paying out in a terrible toxic tort case, and one in which it wears a white hat in trying to get a defendant off of death row, Kim Roosevelt acknowledges that big firm legal practice can be diverse, both substantively and morally.

But leaving firm practice turns out to be a worthy goal for all but the most dastardly lawyers at Morgan Siler. I won’t give away much of the plot, but some of those characters change their identities, blow their whistles, go on to their great reward – one of them even becomes a law professor. Anything to get out of the 9 to 5.

Is large firm work so bad? It is certainly plausible that law firm profitability – and perhaps even prestige – is inversely related to desirable working conditions like interesting work, realistic billable hour requirements, and firm family friendliness. But this doesn’t mean that the decision to join a large law firm is a bad one. That decision may be an entirely rational sacrifice of shorter working hours and a different partner-associate relationship for a higher salary, more prestigious job, and a brighter, post-firm future.

Anyway, the book is a popular one among the people I meet. It also seems like it must have been a fun write, as much as any writing project could be. For Kim’s account of how the characters in the novel map, Bruno Bettelheim style, on the characters of Star Wars, see here. In Henry VI Part 2, a rebel suggested that “the first thing we do, let’s kill all the lawyers.” Early in Shadow, after an explosion in a chemical plant, one of the company executives says “That’s the first thing you do. You call all the lawyers.”

You have to respect a shout-out to Shakespeare. I’ll note only that I didn’t catch a parallel celebration of the works of Bruce Ackerman. Kim, if law professors aren’t going to allude to one another in their novels, who will?


Vic Fleischer

During my first week of law school at Columbia -- in a crash course named "Legal Methods" -- Professor Peter Strauss would read aloud from One L.  Strauss taught a superb class.  But his daily reading from Scott Turow struck me as needlessly cruel.  (As if we weren't freaked out enough already.)  Strauss was aiming for humor, but achieved only nervous laughter.  Funny, but not.  The LAW, Strauss seemed to be saying, all laughter aside, was this noble, powerful, distant object, an object to be both respected and feared.

From One L and the Paper Chase onwards (Cf. the recent Anonymous Lawyer), popular culture treatments of lawyering tend to view the law as a powerful external object.  It's sometime merciful, sometimes brutal.  It can be manipulated through artful lawyering, or it can turn on you and twist the truth to prevent justice.

Kim Roosevelt's superb In the Shadow of the Law fits neatly into this tradition, and there is much to be admired in this novel. Roosevelt captures the moral ambiguity of modern law firm life.  The title of the book to see what really causes the difficulties encountered by the characters:  the dark massive shadow cast by THE LAW.

But that's exactly where the book left me feeling unsatisfied.  There is no external, powerful evil force out there.  We make and re-make the law everyday.  I put in three years myself at a big firm (including both corporate finance and death penalty work).  My classmates are now making partner at the very law firms we used to jokingly refer to as the "Death Star" and such.  If the legal system has its weaknesses, we must take it upon ourselves to fix it.  Treating the law as a villain excuses us from the hard moral choices we face.

And so Roosevelt misses some opportunities to bring us deeper into the jungle of moral ambiguity.  (I wish Apocalypse Now, not Star Wars, had been his model.) Roosevelt never quite forces his hero, the young Mark Clayton, to make a difficult moral choice. His characters, while lively and sharp, lack the nuance of a serious novel, leaving the book suspended somewhere between the beach reading of The Firm and the gravitas of Begley's About Schmidt.   By casting the law as an evil, external force, Roosevelt can't quite bring us into the heart of darkness.


Christine Hurt

Any law professor knows that each incoming class contains a few of the same stock characters, much like a Shakespeare play -- The Gunner, The Slacker, The Little Engine That Could.  Those same stock characters go on to populate law firms, so any incoming class of first-year associates will also have stock characters, mostly variations on the first group.  Kim Roosevelt's engrossing novel In the Shadow of the Law breathes life into some of these characters.  We have the scholar, who is getting by on brilliance alone until the job talks start rolling in; the grinder, who compartmentalizes working and running, with a splash of idealism; the slacker, who really just wants the job to meet women; and the earnest one, who really tries to make some sense of things and put forth a good faith effort, but who doubts his place there.  I'm sure we all recognize ourselves and our colleagues in these characters.  We get the sense that if any of them stay and make partner at the firm, it will be the slacker.  Because that's life at the big law firm.

Well, it is and it isn't.  What's missing are the people who really are excited to be practicing law.  Those people actually exist.  Imagine Grey's Anatomy, but with lawyers.  They hate the grueling hours and menial tasks of a first-year associate, but they love the practice of law and are willing to put up with it.  The depiction of firm life in the novel rings true, sometimes too true in a post-traumatic stress disorder sort of way, but it really only depicts half of firm life.  Yes, there are times when you feel that your days are not your own.  You leave the firm to go to dinner only to return to it later.  You show up at work only to be told you'll wake up in a different city.  But there are other times, too.  Times when you really get into drafting a complex agreement and end up being proud of it.  Times when you are meeting with clients and they really seem to appreciate the work you are doing for them.  The partners here are evil, burned out, or cynical; the clients both abusive and dismissive.  Where are the other partners?  The young partners who work hard because they have a family and, although we don't like to think about it, practicing law is the easiest way to make a great salary, even per hour.  Where are the women?  The only woman we see is the first-year associate, who is the fantasy interest of almost every male we meet at the law firm.

The story (or the two stories) definitely held my interest and made me keep turning the pages.  Like Vic, I both practiced in corporate finance and did death penalty work, so I enjoyed the plot.  I was sad to see that special purpose vehicle financing became another evil stock character, though!  (Really, SPEs don't steal money; people steal money.)  I have to say that my favorite part came at the end when the managing partner's wife bumped into the burned out partner.  Very nicely done.

I have not read any legal fiction in awhile, but I'm very glad that I read this book.  I look forward to the sequel -- where Katya and Mark argue about who will leave to pick up the baby at 6:00.

Gordon Smith

In the penultimate chapter of Kim Roosevelt’s In the Shadow of Law, one of the minor characters sacrificed his legal career in a last-ditch effort to save a prisoner’s life. After explaining his choice to a stunned colleague, the novel’s protagonist, the lawyer “thrust his hands in his pockets and walked away.” (438) In the final chapter, the protagonist faces his own career-threatening choice and must decide whether justice and his own personal sense of morality demand the sacrifice. “I have seen that choice, thought Mark. Could I put my hands in my pockets and walk away?” (443)

In the Shadow of Law explores the alienation experienced by lawyers in a large Washington D.C. firm. Each of the lawyers in Kim’s cast struggles to reconcile the professional self to an alternative image of self. This is, of course, a timeless theme – the search for “integrity,” “wholeness,” or even “perfection” – but a large law firm seems like a particularly apt setting in which to explore the theme. After all, all lawyers represent clients, whose interests may challenge the lawyers’ own values, and big-firm lawyers may feel uniquely powerless to influence a client’s choices. In a blog post last month, Kim suggests that this is peculiar to the modern practice of law:

The basic change in the nature of legal practice is what you could call the industrialization of law. There’s a real parallel to the industrial revolution. In pre-industrial society, you have an artisanal mode of production, where craftsmen make entire products. And of course they have control over the choices that go into the making of the product, and they have a set of skills and a degree of self-sufficiency because they can make the entire thing on their own. Industrialization changes that: suddenly you have assembly-line workers who don’t have unique skills. And they aren’t making an entire product; they’re doing something like making a door handle over and over and over again. What they’re making is valueless in itself. They have no choice in how they do it, or control over what it is.

“Powerless” is not a word most would associate with big firm lawyers, but I can relate to this sense of being swept along by events. And when you feel like that, your options are pretty limited: learn to live with it or put your hands in your pockets and walk away.

Kim Roosevelt

It’s always an honor to have one’s work subjected to critical analysis, and in particular analysis from such a serious and distinguished set of reviewers. So I thank all of you for taking the time to engage with the book, for taking it seriously, and for holding it to the high standards that you did. I hope that I can do the same to your reviews.

Christine Hurt asks where the happy lawyers are, and also the women. Both are fair questions, and both relate to the question of realism, which is something I thought about both while writing the book (though I admit that enthusiasm sometimes carried me into satire) and when discussing it afterwards. I was trying to write a book that was a realistic look at law firm life in a way that, say, The Firm was not. But I was also trying to tell a particular story, and that meant that it was almost inevitably going to be somewhat one-sided. Too much balance lessens drama and makes it harder to keep the plot streamlined. (Which is not to say that my plot is streamlined, only that there wasn’t much room in the structure or the cast for the happy careerists.)

There certainly are happy lawyers in big firms—I knew several, and I was one myself. There aren’t so many happy lawyers in the book, I admit, or at least not happy and healthy lawyers who plan to stay at the firm  (Peter Morgan is fairly happy, though not in a healthy way; Walker enjoys his time at the firm but ultimately has to leave; and Ryan’s choice to embrace the firm as his identity might make him happy but wasn’t intended to be presented as the right choice.) The reason for this is that I wanted to say something about the evolution of legal practice, so the happy and healthy lawyers who find firm practice a satisfying career are mostly in the past. I thought that the suggestion that firm practice has become less satisfying and less lifestyle-friendly (which I think is clearly true) would be undermined by having happy careerists in the book; also, there wasn’t really a role for them in the plot I had constructed.

I don’t have quite as good an answer to the question of where the women are. Some of the characters really had to be male to fit the plot or the natures I had planned for them—Ryan Grady and Harold Fineman, in particular. I thought it would be implausible for Peter Morgan or Wallace, given their prominence in the world of 1960s and 1970s legal practice, to be female. Walker was a possibility, but I didn’t think that the hypertrophied intellectualism and lack of empathy would be as plausible in a woman. I tried to make up for this by giving more of the minor roles to women—the judge in the exploding car case, the capital defender, Walker’s co-clerks, but it still ended up a bit imbalanced. The script for the television pilot (which sadly didn’t make it to series) made Gerald and Larry Angstrom both female, which I thought worked pretty well, although it required a bit of a change to the bathroom scene. As for the evil SPEs, blame Lynne Lopucki, whose article “The Death of Liability” inspired the securitization subplot.

David Zaring also points to what could be considered a lack of balance by observing, rightly, that choosing to work at a big firm isn’t necessarily a bad idea.  I agree with that; I didn’t intend the book to be read as simply a criticism of big firms. As I point out when I talk about the book, it’s the big firms that have the resources to do significant pro bono work. What I was hoping to achieve on that tack was not to stop people from going to big firms but first, to inspire them to think a little bit about why they were doing it, and second, to encourage young associates, once there, not to think of firm practice as something that requires them to abandon their own moral judgments—and to point to pro bono as an opportunity to exercise both substantial responsibility and independent moral judgment.

I’m pleased that David caught the shout-out to Shakespeare. The first title I came up with was in fact “Call All the Lawyers,” but the feeling of embarrassment that overwhelmed me whenever I told anyone soon led me to realize that it was not, in fact, a very good one. As for the shout-outs to legal scholarship, there aren’t really any to Bruce Ackerman, but the cert. petition that Walker reads about exhaustion and procedural default is related to an article I wrote, as is his job talk. Perhaps those don’t count as shout-outs, because they’re to me, and actually they’re more a consequence of laziness than anything else—I needed some scholarship, and rather than invent it entirely, I took something I was familiar with. (I did the same thing with a fair amount of Walker’s biography, reasoning that his lack of admirability as a character would prevent anyone from thinking he was supposed to be a stand-in for me. That was shortsighted on my part, as a number of people seem to have made the equation and simply assumed that I also have no moral sense.)

In terms of comparing what a reader gets from a book to the effect the author intends, I think most of the responsibility lies with the author, who is after all the one exercising choice about the book’s content. So I consider it a criticism of myself to say that Vic Fleischer reads the book in a manner almost diametrically opposite to what I had hoped for. The point I was trying to make, to the extent that fiction is about points, was precisely that law is not an evil external force. Law is incomplete; law requires human action to have effect. Different characters in the book have different views on the sort of action that is necessary or appropriate, and also on the nature of law and of lawyers’ duties. Walker, for instance, believes that what law requires of him is simply intellect, which will allow the law to achieve its logical perfection and beauty. He feels a duty to the law as an abstraction with no moral content. Peter Morgan and Harold Fineman, though differing in some ways, largely view law as a way to advance the interests of the client. This view has some moral content, but it is defined and bounded by the lawyer-client relationship; it has no room for independent moral judgment. Ryan Grady has no real interest in the law or clients; to the extent he feels a sense of duty it is to follow the internal rules of the firm, such as billing in quarter-hour increments, even if what he does thereby serves neither the law nor the clients nor any moral value.

The moral choices that Mark is supposed to be facing are choices between these different conceptions of law and duties. How vigorously should he pursue his pro bono case?  Do his duties there run to the higher-ups who have assigned him to it, to the criminal justice system, or to Wayne Harper as an individual? And how should one respond if, as in the other plotline, it turns out that a client has been doing some very bad things? The answer that Mark and Katja come to, I was trying to suggest, is that one doesn’t have to dismiss the law as something unrelated to one’s moral sense. To put it in Gordon’s terms, living with it and walking away aren’t the only choices (which is why that framing of the problem comes up in the penultimate chapter). The law doesn’t want, as Walker thought, to be beautiful; the law wants to be just. And that is what it needs people for, because, as I say in the last chapter, it’s people who do justice.

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July 12, 2006
Announcing the "Conglomerate Book Club"
Posted by Gordon Smith

Mark your calendars!

In_the_shadow_of_the_law On August 16, we will inaugurate the Conglomerate Book Club with a discussion of In the Shadow of Law, a novel by Kermit ("Kim") Roosevelt. Kim is an Associate Professor at the University of Pennsylvania School of Law, where he specializes in constitutional law and conflict of laws. Prior to entering academe, Kim clerked with Associate Justice David Souter and worked as an associate at Mayer, Brown and Platt in Chicago. Kim will join us on August 16 for a discussion of his debut novel ... and perhaps some discussion of his next novel.

The Conglomerate Book Club will be an occasional feature on the blog, held whenever we find a book -- fiction or nonfiction -- that interests several of the bloggers and, we hope, our readers. In the Shadow of Law is such a book, focusing on the lawyers in Morgan Siler, a fictional Washington, D.C. law firm. Kim offers some nice background on the novel in this guest-blogging post over at Eric Muller's Is That Legal? (Though I have read Kim's novel, it didn't occur to me until I read his post that "you can more or less map the characters from In the Shadow of the Law onto the characters of Star Wars." But now that he mentions it ...)

Here's how the Conglomerate Book Club will work. Each of the reviewers -- including some of us here at Conglomerate and some guest reviewers -- will write a brief review of the book, about the length of a typical blog post. And we will post those reviews on the blog. Kim will respond to the reviews, and then we will carry on the discussion in the comments.

Any questions?

Ok, then go buy a copy of the book and read it before August 16! We look forward to hearing from you.

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