September 30, 2013
I Won!
Posted by Christine Hurt
June 22, 2013
Sounds about right...
Posted by Usha Rodrigues

Today's WSJ on Wall Street's reaction to the Fed's suggestion that it's contemplating ending its bond-buying program: "The market reacted as an addict might to the threat of losing drugs--it broke into shakes and a cold sweat."

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February 27, 2013
I think the WSJ could use an obits editor
Posted by Usha Rodrigues

I learned a lot from yesterday's C. Everett Koop obituary yesterday.  Koop, the U.S. surgeon general from 1981-89 was a figure I dimly remembered from high school, and the WSJ painted a sympathetic portrait of an evangelical Christian who used his bully pulpit to address social issues like AIDS and smoking in ways that dismayed some of his conservative supporters.

One paragraph stood out, however, and I think for the full effect you need to see the newsprint, so I've taken a picture.  Unfortunately it's split across columns.  The paragraph begins thusly:

"Before becoming the nation's chief doctor, Dr. Koop was famed for separating conjoined twins at Children's Hospital of  


As you'll see, that last sentence is a tad misplaced.  When it recurs the second time, it's a little less jarring (although perhaps not for the rabbits and cats in question).
Afforded me a chuckle over breakfast yesterday.


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August 21, 2012
Scholastica's Author Communication: Harsh? Or Brilliant?
Posted by Usha Rodrigues

And now for a little law professor inside baseball.  For personal reasons I have found myself enveloped in the August submission cycle, which is a little more mysterious than the spring.  Be that as it may, I have been quite pleased with the offers that have come in, and should reach a final decision soon.

There's been blogosphere buzz about a new entrant to the submissions business, long dominated by ExpressO.  Being old enough to remember the pain of submitting articles via snail mail (mail merge, anyone?), I have found ExpressO a pure delight, offering easy quick electronic service at negligible cost.  The new kid on the block is Scholastica, and it scored a coup by nabbing the California Law Review and the Chicago Law Review as early adopters.  See blog posts from Dan Filler at the Faculty Lounge,Gerard Magliocca at ConOp, and Jesse Hill at Prawfs.  In a comment to the last post, a founder of Scholastica writes:

Scholastica provides powerful software that goes beyond ExpressO's submission/distribution service, all at no additional charge to the journal – so journals of all sizes/rankings can easily have software to make the start-to-finish journal management process easier.

Journals using Scholastica get more than just article submission; they get an entire platform for efficiently running their journal, from submissions to reviews to decisions to copyediting to publishing – again, at no charge to the journal. We also give law reviews flexibility to be part of the standard law review submission pool or they can operate as a standalone single/double blind peer reviewed journal. They can also publish open-access content online with just a few clicks.

Hmm, appealing to the law reviews as a kind of one-stop shop?  It will be interesting to see how this market shake-up plays out.  I offer but one small insight from a new customer. 

Professors who play the game know that myriad rejections are one price of admission.  Even articles that wind up at the likes of Harvard Law Review garner, through the natural course of things, dozens of rejection emails.  The wording of these emails varies, but they share a few points in common:

1. Thank you for your submission.

2. Each year we receive thousands of articles and can only select a few for publication.

3. After careful consideration, we have decided we cannot accept your article.

4. We hope you will consider us for submissions in the future.

Here was the email I received from the Chicago Law Review via Scholastica:


 Think of the roller coaster of emotions.  First, the email's subject line creates a sense of anticipation: oooo, a decision has been reached!  What will it be?  And then, upon opening the email in question, harsh reality, in 2 terse, bolded words.  Decision: Reject.

What do you think?  Admirably to-the-point?  Unduly harsh for the tender of ego, particularly the young assistant prof or prof-wannabe?

The more I look at the email the funnier it gets.

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January 13, 2012
"How can I get through to both of her?"
Posted by Gordon Smith
July 26, 2011
Conferencing While Rome Burns
Posted by Usha Rodrigues

Back from one trip and headed to SEALS tomorrow, I can't find the time to blog about the incredible business stories unfolding this July.  So I'll let America's Finest News Source do it for me.

Congress Continues Debate Over Whether or Not Nation Should Be Economically Ruined

Rupert Murdoch Worried He Might Have Damaged Heretofore Perfect Reputation

If you're at SEALS, do stop by our blogging panel Friday morning.  Dan Markel will be there, as will Dave Fagundes and Lesley Wexler.   Also check out the happy hour the night before.  Let's party like it's August 1.  

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July 19, 2011
Breaking News: WSJ Decries Capitalists, Champions Corporate Social Responsibility
Posted by Usha Rodrigues

I haven't been able to follow the News Corp. saga as closely I'd like, but I was surprised by the tone of yesterday's Wall Street Journal editorial.  For those not in the know, News Corp. owns Dow Jones, publisher of the WSJ. Here's the ed page's assessment of Dow Jones' acquisition by Murdoch:

The Bancrofts were admirable owners in many ways, but at the end of their ownership their appetite for dividends meant that little cash remained to invest in journalism. We shudder to think what the Journal would look like today without the sale to News Corp.

 I'm on record bemoaning the decline of the WSJ in the post-Murdoch era.  Maybe the Bancrofts were money-hungry capitalist owners, but it was a better paper then.  Really.

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June 08, 2011
The Faculty Workshop
Posted by Usha Rodrigues

Wow.  Just finished Pierre Schlag's The Faculty Workshop (H/T Dan Markel).  It's definitely legal academia inside-baseball, but it certainly makes a nice break from grading/writing drudgery.  Here's my favorite bit:

Of course, it's not just the non-verbal cues that matter. The actual questions asked are important as well. But you already know the standard questions. As a gentle reminder here, I will simply list them as rapidly as possible in a single paragraph. Please do read as quickly as you can. Here goes: the rules v. standards question, the institutional competence question, the this-bit-of-history is against you question, the have you considered… question, the on page 18 you say…. and yet in footnote 262, you say… question, the capillary trench warfare question, the I've actually worked on this as a lawyer question, the real law/real politick question, the rational utility maximizer would have done otherwise question, the cognitive error/bias of your choice question, the where's your empirical support question, the in terrorem effects question, the perverse incentives question, the institutional design question, the but you have not dealt with…. question, the how would you deal with…. question, the somewhat nastier, wouldn't you have done better arguing that… question, and, of course, the ubiquitous what should the courts do question.


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February 16, 2011
A Börse with No Name
Posted by Usha Rodrigues

You've probably seen the headlines: the Germans are coming! The Germans are coming! 

I must admit that news of Deutche Börse's takeover of the NYSE stuck a nationalist chord in me that took me by surprise.  Followers of the Big Board's organizational history know that it was a nonprofit until 2005.  In terms of my analysis in Entity and Identity, as the exchange grew bigger and seats became more of a commodity and less about individual relationships, the NYSE became less of an identity organization, and thus the nonprofit form made less and less sense for it.  In the increasingly competitive world exchange market merging might be inevitable, but something still seems wrong with a NYSE that's not majority-owned by U.S. shareholders. 

For your amusement, here are some possible names (some serious, some funny) for the new exchange, courtesy of the WSJ:

  • NYSE Deutsche Börse

• Borsa Americana

• Euro-American Stock Exchange, or EASE

• The Exchange

• Big Börse

• Denyex, short for DEutscheNewYorkEuropeaneXchange

• New York Frankfuerter Börse, or NYFB

• Global Bourse, or GloBo

• The Haus

And the totally humorous ones:

• Stocks and Schnitzel

• Fuhgettaboutitbörse

• New York Borscht

• AufwiderBorse

I like the Big Börse.


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December 14, 2010
WikiLeaks' Bank of America Revelations
Posted by Usha Rodrigues

According to The Onion.  My favorite: "CFO Charles Noski has had to have the concept of interest explained to him eight times since being hired."

For those seeking even more offbeat humor, try this.  You'll never look at DGCL 102(a)(3) the same again.

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September 15, 2010
Terrible Twos = Successful CEOs?
Posted by Usha Rodrigues

Monday's Financial Times struck a chord with my own domestic life.  Author Lucy Kellaway treated readers to an extended comparison of toddlers and CEOs. A sample:

Both groups tend to swagger round with a wide-legged gait.  Both say "mine" a lot and are exceedingly bad at sharing.  Both have short attention spans.  Both lack common sense and have issues with listening.  CEOs and toddlers are also hazy about the existence of other human beings, tending to view them as objects.  They both inspire fear in the hearts of their handlers.  And anyone who has observed how toddlers behave on aircraft will realise why it is a good idea for CEOs to travel in private jets. 

But a reader pointed out some good toddler/CEO traits:

  • Toddlers are fully of energy and enthusiasm. You can't beat a toddler who is really into something and going for it 100 per cent.
  • Toddlers are natural risk-takers. They throw themselves into climbing down the banisters in the boldest, bravest fashion.
  • Toddlers are persistent. When told not to smear jam on a DVD, they will wait a couple of minutes and then do it again.
  • Toddlers are inquisitive. They will not be fobbed off with a stock reply but go on asking "why? why? why?"

Kallaway adds more qualities: that two-year-olds are "assertive and jolly good at saying no.  They are not hamstrung by inhibitions...They are good at making decisions." 

How funny is this to those of you without toddlers?  To me it's hilarious.  But it also speaks to a dilemma my husband and I have discussed more than once.  Our parental role, as I understand it, is to socialize our children.  Teach them to share, play nicely, don't shout, don't run, be careful.  Listen to me.  Because I said so. 

But it seems like CEOs and similar high fliers don't heed these lessons.  They're stubbornly convinced that they're right all the time--that's what leads them to take risks no sane person would ever take.  You get the feeling it would be exhausting and frustrating to live with Steve Jobs, let alone work for him.  Try telling him he's wrong or needs to listen.  You think a little time-out is going to change his mind?  Did his parents even try?  Should they have?  By trying to socialize our children are we also squelching them?  Does discipline doom our daughters to a life of paycheck toil rather than multimillion-dollar bonus bliss?

I don't know.  We're still teaching our daughters to share and clean up after themselves.  They can learn to be self-absorbed and stubborn after they leave the nest.  Isn't that what college is for?

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May 28, 2010
Insider Trading: What Not to Do
Posted by Usha Rodrigues

OK, I'm throwing in the towel--the Disney insider trading story is just too good.   Here's the letter sent to various hedge fund managers:        

Hi, I have access to Disney's (DIS) quarterly earnings report before its release on 05/03/10 [sic]. I am willing to share this information for a fee that we can determine later. I am sorry but I can't disclose my identity for confidentiality reasons but we can correspond by email if you would like to discuss it. My email is [email protected] I count on your discretion as you can count on mine. Thank you and I look forward to talking to you.

I'm honestly at a loss as to what to say.  Maybe you can supply the punchline.

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May 12, 2010
Hot Tub Time Machine 2: the Blawg edition
Posted by Erik Gerding

It’s the end of the semester and the beginning of sequel season at your local cineplex. In an effort to tie up loose ends, and procrastinate from grading, I present to you my pitch for the ultimate sequel:

Hot-Tub time Machine 2: the Blawg edition

A rag tag team of bloggers, Vokolh C, Flounge, and Bleiter decide to return to the hot tub to prevent various big mistakes in 1999 from happening.

Vokolh C. travels to Washington D.C. to convince Senator Orrin Hatch not to block Elena Kagan’s nomination to the D.C. Circuit since she’ll end up on the Supreme Court anyway.

Flounge travels back to the Beltway of the same time period to prevent the abolition of the IMF in the face of criticisms that there aren’t financial crises affecting industrialized nations any more. (Oh, wait. That’s a bad idea that didn’t get implemented.)

Bleiter travels back to teach the first generation of law students using e-mail to think before they use that medium to opine about race and genetics.

When the three blawgers return to 2010, they are horrified to learn that their handiwork has backfired: President Lieberman has appointed a French speculator to the Supreme Court who rules that cylons are entitled to free speech and bailout money.

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April 21, 2010
Betting on the Goldman Suit
Posted by Erik Gerding

While we are on the subject of pure bets, when will there be a prediction market on the outcome of this case?  When will you be able to place your bets?

I am not ready to take an official position - "Goldman is liable" or the "SEC will lose."  What law professor would given that we are only at the beginning of learning the facts?

But that doesn't stop you from making educated guesses and bets.  There is of course an active arbitrage market on Wall Street betting on the outcome of things like high profile litigation and whether a regulator will allow a merger to go through.

When there is a Goldman prediction market, prices will change as new facts come up.

Is there any social value to this type of bet? -- you can probably predict what I will say if you read a previous post -- depends if any party to a bet has a pre-existing risk.

And there is entertainment value.

Would there be any intellectual value to a prediction market beyond giving me something to blog about?  Remember Oliver Wendell Holmes' old adage that law is just a prediction of what a court will do.

Does that mean a prediction market is the law?   

Addendum:  I wouldn't be at all shocked if lawyers -- even law professors -- will be hired by arbitrageurs to evaluate bets on the case.  There may be a lot less professional risk if you are placing a bet without putting your name in writing or on a blog. 

Here is a more gossipy question: if you were hiring a lawyer or law professor to help you place a bet on the outcome of the case, who would you pick? 

Here is a half serious legal question: could there be market manipulation if a professor then writes statements to influence the price without disclosing her interest?

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March 13, 2010
The best democracy money can buy
Posted by Usha Rodrigues

According to WaPo, Murray Hill is running for the Republican Congressional primary in my home state of Maryland.  Murray Hill is also a "progressive" PR firm looking to garner publicity and pointedly criticize Citizens United.  Pesky age restrictions like being a U.S. citizen and being at least 18 years old kept its voter registration from succeeding, but you can still view its website and YouTube video.  Life imitating art

I'm still organizing my Citizens Unitedthoughts, but it continues to amaze me how much this opinion resonates with the general public.  I had dinner with a college friend last week who went the English Ph.D., freelance route, staying far, far from the legal world.  She refered to it knowingly as the "Corporations are people, too" opinion. 

It's liberals' Kelo, isn't it?

Update: Larrry Ribstein responds, and has helpfully compiled his blog musings here.  I think Larry frames the conservative response well: corporations aren't "people, too" but people speak through them.  Still, the lefties have a powerful soundbite that resonates with a big chunk of society.

I'm currently working on a theory that suggests that we might draw a principled distinction between associations organized solely to make money and those organized for a different purpose.  Larry won't like this because it limits for-profit corporate speech, but it would broaden pre-Citizens United speech rights by permitting unlimited spending/speech by nonprofits like the Chamber of Commerce and labor unions (as well as Citizens United itself).  More later.

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