The list is out! And it contains many former Glom guests and friends of Glom. Congratulations to all.
Bartlett, Robert P. III. Do Institutional Investors Value the Rule 10b-5 Private Right of Action? Evidence from Investors' Trading Behavior following Morrison v. National Australia Bank Ltd. 44 J. Legal Stud. 183-227 (2015).
Bebchuk, Lucian, Alon Brav and Wei Jiang. The Long-term Effects of Hedge Fund Activism. 115 Colum. L. Rev. 1085-1155 (2015).
Bratton, William W. and Michael L. Wachter. Bankers and Chancellors. 93 Tex. L. Rev. 1-84 (2014).
Cain, Matthew D. and Steven Davidoff Solomon. A Great Game: The Dynamics of State Competition and Litigation. 100 Iowa L. Rev. 465-500 (2015).
Casey, Anthony J. The New Corporate Web: Tailored Entity Partitions and Creditors' Selective Enforcement. 124 Yale L. J. 2680-2744 (2015).
Coates, John C. IV. Cost-benefit Analysis of Financial Regulation: Case Studies and Implications. 124 Yale L .J. 882-1011 (2015).
Edelman, Paul H., Randall S. Thomas and Robert B. Thompson. Shareholder Voting in an Age of Intermediary Capitalism. 87 S. Cal. L. Rev. 1359-1434 (2014).
Fisch, Jill E., Sean J. Griffith and Steven Davidoff Solomon. Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform. 93 Tex. L. Rev. 557-624 (2015).
Fried, Jesse M. The Uneasy Case for Favoring Long-term Shareholders. 124 Yale L. J. 1554-1627 (2015).
Judge, Kathryn. Intermediary Influence. 82 U. Chi. L. Rev. 573-642 (2015).
Kahan, Marcel and Edward Rock. Symbolic Corporate Governance Politics. 94 B.U. L. Rev. 1997 (2014).
Velikonja, Urska. Public Compensation for Private Harm: Evidence from the SEC's Fair Fund Distributions. 67 Stan. L. Rev. 331-395 (2015).
Glom readers, it has been a busy semester! I am trying to get back to blogging, and will start with some happy news. I've been obsessing about the politics of securities regulation for some time--specifically, why did we get the JOBS Act, and more generally what explains why and when Congress intervenes in securities law. Between teaching and associate deaning I've also been writing, and I'm proud to report I now have a draft posted on SSRN and accepted at the Indiana Law Journal. Abstract below; comments welcome.
When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.
This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of congressional legislation. The data support what I call the dictation/delegation thesis. According to this thesis, even controlling for shifts in political-party dominance, Congress is more likely to delegate to an agency in the wake of a salient securities crisis than in a period of economic calm. In times of prosperity, when cohesive interest groups with unitary preferences can summon enough political will to pass deregulatory legislation on their behalf, the result will be laws that cabin agency discretion. In other words, when industry can play offense, Congress itself engages in the making of governing rules and does not punt to an agency—even on issues that would seem the logical province of administrative technocrats. In contrast, following a crisis, industry is forced to play defense rather than offense. Its goal is to minimize the deleterious impact of inevitable legislation by shifting regulation as much as possible to the agency level, where it has time to regroup and often delay regulation until the political pressure for reform abates.
Fordham's Sean Griffith is putting his motions where his writing is, and taking positions against "deal tax" shareholder settlements. If you missed it, here's a bit from the Wall Street Journal story on the approach.
Over the past few months, Mr. Griffith says he has bought a small number of shares in about 30 companies following the announcement of a takeover. When the expected shareholder lawsuits are ultimately settled, he plans to use his standing as a shareholder to formally object.
His first salvo came Monday at a Delaware hearing to approve a settlement of litigation over Riverbed Technology Inc.’s sale. Under terms of the settlement, Riverbed, now owned by private-equity firm Thoma Bravo LLC, would pay plaintiffs’ lawyers a $500,000 fee and provide additional details on the buyout process. Riverbed and its new owners also would get immunity from future litigation stemming from the buyout, which closed in April.
Riverbed and Thoma Bravo declined to comment.
Mr. Griffith, who owns 100 shares of Riverbed, said the agreement would enrich plaintiffs’ lawyers while delivering no real benefits to investors, and he asked a judge to reject it.
Matt Levine thinks it is the lord's work. Bainbridge approves. And Alison Frankel is interested. I approve as well - it's nice to see a law professor doing a research based quasi-clinic, and if Sean gets his law students to help out, he'll be following Lucian Bebchuk's very effective model.
A very strong legal studies group, and as you all know, Athens is a paradise. Announcement after the jump:
Faculty Position in Legal Studies
Terry College of Business
University of Georgia
The University of Georgia's Terry College of Business invites applications for a non-tenure-track faculty position in legal studies, at the Lecturer rank, beginning fall 2015, with a starting date of August 14, 2015. We seek individuals with a strong commitment to and competency for superior teaching. Participation in service activities appropriate to the rank is also expected.
Qualified candidates are required to hold a J.D. from an accredited institution. Strong communication skills and the potential for excellent teaching are also required. The position is renewable based on performance and promotion to Senior Lecturer is possible after six years of service. Salary is competitive and commensurate with qualifications.
Applications will be accepted until the position is filled. To apply, send a letter of introduction and a full vita to: Legal Studies Search Committee Chair, 206 Brooks Hall, University of Georgia, Athens, GA 30602-6255 or in a PDF file via email to email@example.com.
The University of Georgia is located in Athens, Georgia. Georgia is well known for its quality of life with both outdoor and urban activities (www.georgia.gov). UGA (www.uga.edu) is a land grant/sea grant institution located approximately 60 miles northeast of Atlanta.
The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, or protected veteran status.
It's located in mighty pretty country. The announcement is after the jump.
A successful candidate will demonstrate the ability to contribute to the mission of the Business Administration and Law program in providing students with the skills needed to address the challenges of contemporary business.
A demonstrated record of achievement in teaching at the college or university level is preferred. A commitment to teaching excellence and innovation and the responsibility of four undergraduate classes per semester are required.
Additional service responsibilities include advising students, advising student organization and other service assignments as designated by department head. Moreover, candidate must be willing to meet the AACSB accreditation requirements regarding academic qualification of college of business faculty. The AACSB requirements for academic qualification mandate a minimum level of relevant research and publication.
WCU embraces its role as a regionally engaged university and is designated by the Carnegie Foundation for the Advancement of Teaching as a community engaged university. Preference will be given to candidates who can demonstrate a commitment to public engagement through their teaching, service, and scholarship.
Minimum Training & Experience Requirements:
At minimum, a JD degree is required. Degree must be from an appropriately accredited institution.
Additional post graduate degree in a business related field. Teaching experience (face-to-face and online formats).
Salary Range: Dependent upon qualifications.
Special Instructions to Applicants:
To be considered, you must apply online. HARD COPY APPLICATIONS AND RESUMES WILL NOT BE ACCEPTED. Review of applications will begin immediately and continue until the position is filled.
You must attach the following to complete the application process:
- Cover Letter
- Unofficial Transcripts from highest degree earned
- at least 3 Professional References with contact information
|Contact:||Dr. AJ Grube, Search Committee Chair
Department of Business Administration and Law
Western Carolina University
|Online App. Form:||https://jobs.wcu.edu/applicants/Central?quickFind=53786
Earlier today my friend Steph Tai at Wisconsin got me thinking about academic debates. She was writing about the live debates that are a staple of FedSoc and ACS events, but the thoughts may also apply to written debates. While the debate format has some virtues, the key shortcoming of debates is that people are cast in roles that require disagreement and that lead -- often ... perhaps inevitably, if we really want to win -- to distortion and misunderstanding. Debates are sometimes fun and often interesting, but if the goal is to advance understanding, they are too often unproductive or even counterproductive.
All of this reminded me of the "principle of charity." Although this has religious overtones, I am talking about the idea from philosophy, defined on the linked page as "a methodological presumption ... whereby we seek to understand [a point of] view in its strongest, most persuasive form before subjecting the view to evaluation." This is a useful principle, even for debaters, though my experience has been that it is often ignored.
Maybe the format of our events can make a difference here. Next week I am participating in the annual Law and Entrepreneurship Retreat, hosted this year by Usha at the University of Georgia. One of the features of this event that I really appreciate is the format because we present each other's work. For example, I have a work in progress this year, but it is being presented by Bobby Bartlett at Berkeley. I will get a little time to talk after he presents, but authors mostly just listen and respond to questions during the Q&A. It's not an attempt to reach consensus but an attempt to understand. I am quite certain that everyone at the Retreat will learn more about my topic in this way than they would from a debate.
Redyip has returned, and by virtue of my new role as Associate Dean for Faculty Development, I'm more interested than usual in the annual springtime flood of submissions to the newly minted law review editorial boards (although I do have an article out this cycle. And it's totally awesome).
The problem is one of volume: ExpressO and Scholastica have lowered the cost of submission to each additional journal to mere dollars, giving an author the incentive to submit to dozens and dozens of journals. The fall cycle is diminished, and so more and more submissions funnel into the weeks of February and March. For years this system limped along mostly on expedites, where authors submitted to large numbers of journals. Once an author received an offer from a journal, she would expedite up, and law reviews in the tier above the offering school would use those expedites as a screening mechanism. But anecdotal reports suggest that the sheer volume of articles may be overwhelming students, and expedited articles are going unread.
The typical law prof response is to tut-tut, and murmur approvingly about peer reviewed journals. But a peer review journal means exclusive submissions, the torture of revise and resubmit, and a whole lot of work from the peers (i.e., us). I think most professors, when alone with their thoughts in the dark of night, would admit that they like the ability to submit simultaneously, and the closure of knowing where their piece will land come April. So what to do?
ExpressO's now offers two limited forms of relief to student editors: First, it allows law reviews to set a maximum number of simultaneous requests for expedite. Second, it allows law reviews to select "peers" from which to receive expedites.
Here's a bolder solution: what if authors could credibly commit that they were only offering to 10-20 journals at a time? This would reduce submissions significantly, and also allow journals more comfort in knowing that the authors really are interested and that their offers, while being shopped, aren't being shopped to every single school ranked higher than they are.
The problem is that it would be hard for authors to credibly commit, since any individual is best served by cheating. But what if the system's intermediaries--ExpressO and Scholastica--offered this feature? That is, allowed authors to signal that they'd only submitted to a limited number of reviews at any one time, and then flagged those pieces as "exclusive" (or at least, semi-exclusive) for law review editors? If the reviews collectively stated a preference--even a mild one--for such submissions, maybe we'd all be better off.
The school that go me my start in teaching is advertising for someone to join the BA level B school in business law. Because I think this announcement revises one published earlier, I'll leave it after the jump, for those interested.
The Department of Business Administration in the Williams School of Commerce, Economics & Politics at Washington and Lee University invites applications to fill a full-time tenure-track or clinical appointment in Business Law beginning in August 2015. The successful candidate will be hired at the Assistant Professor/Clinical Assistant Professor or Associate Professor/Clinical Associate Professor rank. Candidates applying at the Assistant Professor/Clinical Assistant Professor level should have at least three years of successful teaching experience at an AACSB accredited institution.
This position is a tenure-track or clinical appointment that requires a strong commitment to excellence in teaching in an undergraduate liberal arts environment. A qualified candidate for the tenure track appointment must demonstrate the capacity to conduct ongoing scholarly research that is consistent with the rank sought. A qualified clinical candidate must demonstrate the ability to remain engaged appropriate professional activities. The position requires appropriate service contributions to the W&L community including advising undergraduate business administration majors.
The successful applicant will teach Business Law (a core course in the business administration major) as well as electives. W&L provides faculty the opportunity to develop appropriate courses that are of interest to the faculty member and for which there may be student demand. In particular we are interested in the areas of negotiations, entrepreneurship, international law, or corporate governance.
Candidates must have a J.D. degree from an ABA accredited law school. Candidates with a second degree in a business-related field, a record of publishing in the field of business law, business or professional experience, and/or teaching experience in higher education in the field of business law are particularly encouraged to apply.
Applicants should send a letter of interest, curriculum vita, and teaching evaluations to: businessLaw@wlu.edu. Review of applications will begin immediately and continue until the position is filled. All application materials must be submitted by is October 15, 2014. Please state in your cover letter if you will be attending the Southeastern Academy of Legal Studies in Business conference.
If you have questions about the position, please contact Bob Ballenger, Head, Business Administration Department, firstname.lastname@example.org.
Washington and Lee is a highly selective, private, liberal arts university with 1800 undergraduates, located in the Shenandoah Valley in Lexington, Virginia. One of the nation’s finest liberal arts colleges, W&L is unique in having accredited pre-professional undergraduate programs in business administration, journalism, and accounting, plus a graduate School of Law. Established in 1749, it is the ninth oldest institution of higher learning in the nation. To learn more, please visit www.wlu.edu.
Washington and Lee University is an Equal Opportunity/Affirmative Action Employer.
The announcements are after the jump; one of them you may have seen already, but all of them require applications outside of the AALS FAR process, and are, in my view, well worth your consideration.
KELLEY SCHOOL OF BUSINESS, INDIANA UNIVERSITY
Department of Business Law and Ethics
The Kelley School of Business at Indiana University seeks applications for open-rank, tenure-track positions in the Department of Business Law and Ethics, effective August 2015. The candidates selected will join a well-established department of 16 full-time faculty members who teach a variety of courses on legal topics and business ethics at both the undergraduate and graduate levels.
To be qualified, a candidate must have a J.D. degree with an excellent academic record and must demonstrate the potential for outstanding teaching and research in law and/or ethics.
Interested candidates should review the application requirements and submit their application at http://indiana.peopleadmin.com/postings/920. Candidates should direct any questions to Jamie Darin Prenkert, Chair, Department of Business Law and Ethics, Kelley School of Business, 1309 E 10th Street, Bloomington, IN 47405 or email@example.com.
Application materials received by October 15, 2014, will be given full consideration.
Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment without regard to age, ethnicity, color, race, religion, sex, sexual orientation or identity, national origin, disability status or protected veteran status.
KELLEY SCHOOL OF BUSINESS, INDIANA UNIVERSITY
Department of Business Law and Ethics
The Kelley School of Business at Indiana University seeks applications for full time, non-tenure-track lecturer or clinical faculty positions in the Department of Business Law and Ethics, effective August 2015. The candidates selected will join a well-established department of 16 full-time faculty members who teach a variety of courses on legal topics and business ethics at both the undergraduate and graduate levels.
To be qualified, a lecturer candidate must have a J.D. degree with an excellent academic record and must demonstrate the potential to be an outstanding teacher in business law and/or ethics courses. Ideal candidates for clinical faculty positions will meet all of the requirements of a lecturer candidate and will have had career experience in law or ethics and compliance that is significant in duration and that indicates the attainment of a substantial level of responsibility and leadership.
Interested candidates should review the application requirements and submit their application at http://indiana.peopleadmin.com/postings/921. Candidates should direct any questions to Jamie Darin Prenkert, Chair, Department of Business Law and Ethics, Kelley School of Business, 1309 E 10th Street, Bloomington, IN 47405 or firstname.lastname@example.org.
Application materials received by November 15, 2014, will be given full consideration.
Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment without regard to age, ethnicity, color, race, religion, sex, sexual orientation or identity, national origin, disability status or protected veteran status.
The Wharton School at the University of Pennsylvania invites applications for tenured and tenure-track positions in its Department of Legal Studies and Business Ethics. The Department has eighteen full-time faculty who teach a wide variety of business-oriented courses in law and ethics in the undergraduate, MBA, and Ph.D. programs and whose research is regularly published in leading journals. The Wharton School has one of the largest and best-published business school faculties in the world. In addition, the school has a global reach and perspective, as well as an interdisciplinary approach to business issues (embracing ten academic departments and over twenty research centers).
Applicants must have either a Ph.D., J.D., or both, from an accredited institution (an expected completion date no later than July 1, 2016 is acceptable) and a demonstrated commitment to scholarship in business ethics, business law, or a combination of the two fields. Specific areas of potential focus for hiring include corporate governance, normative ethics related to business, social impact/sustainability, securities regulation, and health law/bioethics. The appointment is expected to begin July 1, 2015.
Please submit electronically your letter of introduction, c.v., and one selected article or writing sample in PDF format via the following website by November 1, 2014: APPLY. Some decisions for interviews will be made before the deadline, so candidates are encouraged to apply early.
The University of Pennsylvania is an equal opportunity employer. Minorities, women, individuals with disabilities, protected veterans are encouraged to apply.
Subject: Position opening: Business Law/Real Estate, California State University Northridge
California State University, Northridge (in the L.A. area) has an opening for a tenure track faculty member to support our expanding real estate program. Here's a link to the application: http://www.csun.edu/sites/default/files/AA1%20BLAW%20AY15-16%28Revised%29.pdf Both Stuart Pardau and Melanie Williams will be at the Annual Conference and would be happy to talk about the position and our programs.
The Accounting Department of the Lindner College of Business at the University of Cincinnati invites applicants for up to two full-time Professor of Business Law, Educator track positions (nontenured, but union), with an August 2015 start date. UC has a large accounting program, with 700 undergraduate majors, a Master of Science in Accounting, a Master of Science in Taxation, and a doctoral program. Business Law is part of the Accounting Department, and offers required and elective business law courses at both the undergraduate and graduate levels (including MS Accounting). The Lindner College of Business is nationally ranked in the top 100 business schools, and the MBA program was recently ranked #60 nationally by US News and World Report.
Primary responsibilities involve teaching and related service activities. High quality teaching is expected; teaching load and rank will be determined commensurate with teaching credentials, prior professional law experience, and prior research productivity. Sustained academic and professional engagement is required, and publishing in quality business law related journal is desirable.
Candidates must have a JD from an accredited institution approved by the US American Bar Association (ABA) and be licensed to practice law in a US jurisdiction.
Preferred qualifications include: an undergraduate or graduate degree in accounting or business; professional law or tax work experience; experience teaching undergraduate and graduate business law courses at a US AACSB accredited institution, with evidence of effective classroom outcomes; the ability to interact effectively and professionally with other faculty and the business community; a passion for teaching and mentoring students; the ability to build quality academic programs; and research skills and recent journal publications. Candidates must possess both written and spoken English fluency, and provide evidence of such throughout the interview process.
Representatives will be available at the Academy of Legal Studies in Business (ALSB) meeting in Seattle in August. If interested in meeting with a UC representative in Seattle, please contact Ilse Hawkins at email@example.com.
For additional information about the university please go to www.uc.edu. To apply for position (214UC8724), please see www.jobsatuc.com. For questions, please contact Ilse Hawkins at firstname.lastname@example.org or the Department Head, Dr. Robert Larson at Robert.Larson@uc.edu.
The Department of Ethics & Business Law in the Opus College of Business at the University of St. Thomas has an opening for a one-year position as a Visiting Distinguished Service Faculty in Business Law, for the 2014-15 academic year. This position will involve teaching three courses (including International Business Law) each semester. To apply (and for more information about this position), visit this site: https://facultyemployment-stthomas.icims.com/jobs/1252/visiting-distinguished-service-faculty-in-business-law/job, and submit an online application (two letters of recommendation to be sent separately). Additional questions can be directed to the search committee chair, Dale Thompson (email@example.com).
The College of Business Administration (COBA) at Texas A&M University--Central Texas (A&M-Central Texas) is currently looking for new faculty members in our Management and Marketing Department with a particular need for someone able to teach employment law, labor relations, and legal environment of business courses (all three in an academic year) beginning in the fall of 2015.
A&M-Central Texas was established in 2009 as an upper-level undergraduate and graduate institution within the Texas A&M University System. Although we are young and developing, the state, the region, the U.S. Army, the Texas A&M System, and a Silicon Valley investment group are all making considerable investments in our success. In 2010, the U.S. Army donated 600+ acres of land for our campus, and our second building on the new campus just opened this summer, with others to follow, including a building to house COBA.
A&M-Central Texas is accredited by the Southern Association of Colleges & Schools Commission on Colleges and COBA is currently ACSBP accredited. We are excited to announce that in March we formally began an exciting journey towards AACSB accreditation by becoming a member institution and have continued to work diligently on that goal over the last several months.
We are located in Killeen, TX, a city of about 120,000 (not including the 50,000+ on Fort Hood, which is the largest Army installation in the world). Killeen is about an hour north of Austin, and just a few miles west of the I-35 corridor, which is one of the fastest trans-metropolitan regions in North America. Killeen is part of an MSA of over 400 thousand, which grew an astonishing 30% between 2000 and 2010, and has been virtually recession-proof. New investment and construction has continued unabated at a breakneck pace since 2009, and the State of Texas currently operates with a large budget surplus. A&M-Central Texas also has the most diverse student body in Texas, and Killeen is one of the most ethnically diverse cities in the state (owing a lot to Fort Hood).
Furthermore, the cost of living can't be beat: the median home value in this ZIP code is around $125,000, and the cost-of-living index is only 87 (100 is average).
Our student body is non-traditional, with an average age of about 33 years, but that has been trending downward. We have a lot of active duty and veteran military personnel, but a growing proportion of civilians. Most of our classes are offered in the afternoon and evening, but we are moving toward more traditional morning/day classes. In addition, because of our strong ties to serving military personnel around the world, we also offer many courses online (40%). This is an important element of our university mission, and is not driven solely by cost considerations.
We have excellent online course technology, technical support, and a course development support staff to help those with little or no online teaching experience get up to speed. Depending on preferences, most full-time faculty teach anywhere from 25%-50% of their courses online.
Faculty members would first and foremost be expected to provide excellent instruction, but a significant part of faculty evaluation includes university and professional service and scholarship. The research and publication expectations here are modest and commensurate with our teaching mission. There is ample flexibility and funding support to engage in scholarly activities, and many of our faculty members do it very well. Our current faculty members have published in noteworthy journals and have served on several major editorial boards. We are looking for people who can and want to do research, but who are equally concerned with quality teaching and having an impact on students and in the community. Our primary concern is that you care deeply about what you write about and are bringing that excitement and knowledge into the classroom.
Teaching at a young, growing institution is a lot of work, but it's also a unique opportunity to have the flexibility to do scholarship and service that "counts" in many different ways, and to be able to put your fingerprint on an institution that is changing lives daily, and hopefully for many years to come.
Successful candidates must be able to demonstrate the capability to teach at a high level in both face to face and online course formats, which assumes strong technological skills and hopefully experience using learning management systems like Blackboard. This will be a tenure track appointment at the rank of either Assistant or Associate Professor and pay commensurate with one’s experience and the norms of similarly situated institutions.
Lucas Loafman who is the Chair of the A&M-Central Texas Management & Marketing Department, and a longtime ALSB member, will be in Seattle Tuesday, Wednesday, and Thursday to speak with interested applicants.
If you have any questions or are interested in discussing this with him in Seattle, he may be reached at firstname.lastname@example.org.
To apply visit the TAMUCT jobs site (posting to appear soon): https://www.tamuctjobs.com/applicants/jsp/shared/Welcome_css.jsp
Babson College has an opening for a tenure track Assistant or Associate Professor of Business Law. Would you please notify the list serve? Carolyn Hotchkiss and I will be attending the Seattle Conference and can informally chat to anyone interested about life at Babson College. Formal interviews will take place this Fall.
Here is the link: https://babson.peopleadmin.com/postings/3009
I wanted to finish up my discussion of administrative enforcement by considering alternatives. We often take regulatory enforcement for granted. A securities regulator, for example, naturally will have the power to seek out violations of the securities laws and sanction violations. As is common in administrative law, scholars, courts, and Congress start with the assumption that expertise in the industry is the most important input into the enforcement calculus. If an agency is familiar with an industry, it will make good enforcement choices.
In my forthcoming article in the Minnesota Law Review, I argue that this question is actually much more complex than we usually assume. In particular, prosecutorial discretion has strong generalist aspects that largely do not depend on the regulatory subject matter. Giving enforcement authority to a specialist agency instead of a generalist enforcer (such as the Department of Justice) trades one type of expertise for another. Furthermore, specialists inherently see enforcement actions more narrowly. As a result, we shouldn’t see enforcement by regulatory agencies as inevitable or automatic.
Since it is still in draft form, I’d very much appreciate any and all comments. Thanks again to Erik for the chance to blog this week.
I have a problem with VAPs--the visiting assistant professorships/fellowships that are the most common entry-point to the legal academy. What I am looking for in a new colleague is curiosity, discipline, and the capacity for intellectual give-and-take--not just play king-of-the-hill and defend a position against all comers, but engage in a real dialogue. One of my colleagues call it "sparkiness."
So how do you find that?
Pre-VAP, writing an article while in practice was a strong signal--if you were interested, cared enough, and were hard enough working to write while in practice, you were a pretty good bet. With VAPs now de rigeur, the signal is muddied. Each law school that houses VAPs has strong institutional incentives to place all of them, so it's hard to use VAP recommenders as a signal--the law school will find someone to enthuse about each of its VAPs. And VAPs are now well-groomed to say the right things, coached as to the standard arguments and responses. They talk the talk. But will they walk the walk 3 years into teaching? It's hard for me to tell.
There are recommenders and recommenders, of course. Each institution will have those discerning types who don't lard on the praise--whose compliments, even if sparing, mean more than the lavish encomiums of their colleagues. But how to find these?
As I commented on Elizabeth Pollman's great closing post,
last year I was talking to a distinguished older professor about hiring. He said he had stopped caring about how smart someone was, since everybody at this level is smart. "I don't care how smart the candidate is. Show me why they've done." I've thought about that conversation a lot since then. What makes a successful law professor or law student seems to have as much to do with drive/work ethic as smartness. The latter may be necessary, but is not sufficient.
It's just harder to discern "what someone has done" when their job as a VAP is basically to produce scholarship and have it be vetted and polished. Of course I'm just throwing stones--I don't have any ideas about how to make these discernments in the post-VAP age. Maybe someone else does?
I blogged yesterday about administrative enforcement, an area that lies at the intersection of criminal and administrative law. Among other topics, my scholarship has considered the civil penalty process. In particular, what are the inputs and incentives that shape administrative agency penalties?
A standard model used to describe the penalty process emphasizes economic theories of deterrence. Financial penalties are a mechanism to raise the price for violations either to make misconduct completely unprofitable or, in the alternative, to force violators to internalize the costs of violations. I’ve pointed out one way that this theory may break down – administrative agencies might not focus on deterrence at all. Instead, their penalties may be crafted to achieve retributive ends.
In our recent Harvard Law Review article, For-Profit Public Enforcement, Margaret H. Lemos and I looked at penalties from another perspective: public enforcers may have self-interested reasons to maximize civil penalty recoveries. These incentives are widely recognized in private enforcement. Class action lawyers, for example, operating on a contingency fee basis have straightforward reasons to maximize recoveries.
Perhaps less obviously, public enforcement lawyers can have comparable incentives to impose large penalties. These incentives work most clearly in cases where enforcement agencies keep a portion of the civil penalties imposed. This structure is common in the asset forfeiture process used in connection with many criminal cases and also exists in other state and federal enforcement contexts. Even when penalties are turned over to the general treasury, enforcers may have reputational incentives to maximize penalties. Both agencies as a whole and individuals working in enforcement agencies may seek to build a reputation as an aggressive enforcer for reasons other than deterrence.
Assuming that these claims are right and that civil penalties can be driven by retributive or self-interested goals, is this a problem? Perhaps, perhaps not. Self-interested public enforcement may push enforcers to emphasize financial recoveries over other tools of regulatory control, such as injunctive relief. However, if our default assumption is that administrative agencies underenforce and usually do not impose adequate penalties, the pressure of self-interest may correct this trend to some degree.
The presence of retribution in civil penalties has similarly mixed effects. Of course, if penalties are supposed to be carefully calculated to deter, retributive ends will hamper this goal. On the other end, we now widely recognize the role of norms in shaping compliance behavior. Retributive punishment done well can shape and reinforce industry norms.
Erik, thank you for that introduction. It is a pleasure to join the Conglomerate for a week. My scholarly interests have recently focused on federal administrative enforcement – enforcement actions by agencies like the SEC, the CFTC, as well as a host of lower profile entities. This is a fascinating area of public law combining two scholarly literatures. Administrative enforcement actions share much in common with criminal cases. They are brought by public entities to vindicate public wrongs. However, the administrative context deeply shapes this type of enforcement. For example, unlike most prosecutor's offices, administrative enforcement bodies tend to be industry-specific.
As a result, administrative enforcement can go wrong in two different ways– the “criminal law” way or the “administrative law” way. Administrative agencies face the challenges of regulatory capture, inadequate or incorrect information, or simply the wrong incentives to engage in appropriate regulatory action. Criminal enforcement, though, often struggles with procedural fairness as well as the difficult task of assigning the correct level of punishment to different forms of misconduct.
Take, for example, this last issue: the fundamental question of penalty levels. Administrative agencies commonly use financial penalties to punish regulatory violations. How should these penalties be set? Which cases require the largest penalties and which only need more modest sanctions?
Criminal law scholars will recognize this question as an inquiry about theories of punishment. Speaking broadly, criminal law considers a couple of approaches. Utilitarian theories of punishment (e.g., deterrence, rehabilitation, incapacitation) seek to punish conduct to produce beneficial social outcomes. Retributive theories emphasize desert – punishment occurs because the violator deserves punishment, not because it produces a social benefit.
So what do federal agencies do? As I argue here, administrative agencies almost uniformly talk about deterrence, but usually engage in retribution. When setting penalty levels, agencies move penalties up or down in response to facts that justify retributive punishment but do not adjust penalties in the way deterrence requires. For instance, building on Gary Becker’s justifiably famous work, Crime and Punishment: An Economic Approach, most deterrence theories emphasize the role of the probability of detection in setting penalty levels. To deter appropriately, penalties need to increase when violations are harder to detect and punish. In practice, though, administrative agencies place little weight on this issue. Instead, agencies are deeply concerned with issues like mens rea, a topic far more central to retributive theories of punishment.
Is this retributive bent in administrative enforcement surprising? Perhaps not. A large literature suggests that most people are intuitively retributive when making punishment choices. In social science experiments, study participants set penalties based on retributive concerns, but do not adjust punishment levels in ways that would be required to deter appropriately. In this way, administrative agencies look like the rest of us. We mostly care about desert even when we talk about deterrence.
Steve Bainbridge is not afraid to stake a claim. Yesterday he took aim at both empirical legal scholarship and the law & PhD. folks. How not to win friends and influence people at a law professor conference, indeed.
I'm not singing Steve's tune, but I will hum a few bars. I've done some empirical work, and I see real value in its insistence on seeing what's actually out there--how things work in the real world. Especially in the corporate and securities fields, we can count things and measure the effects of changes in the law. To ignore that ability to measure and test law's impact seems foolhardy.
Still, we are law professors. Law must come first. I remember in my earliest days in the academy listening with disbelief to a fellow newbie law prof: "I just want to do empirical work, and law pays better than economics. I don't care about the law at all." He laughed. I didn't.
There does seem to be a "race to economics" in ELS these days, to see whose works is most rigorous--meaning most like that of real economists. I think "Law and"s --including economics PhDs, but also myriad other disciplines--can contribute to a law faculty, but their value is that legal training enables them to pursue questions that would not occur to straight PhD's. One of the projects I'm working on is a hybrid constitutional law, securities law, political science piece. It may all come to naught, but it's an inquiry a political scientist wouldn't make,. That's my comparative advantage as a lawyer.
In the comments to his post Steve laments that "the legal academy is not producing scholarship that is relevant to the bench and bar or that our graduates (especially at the T14 schools) are coming out of school better versed in theory than professional skills." This is a problem. Even than for the general law prof, for "Law and"s I think that practice is vital.
To put it bluntly, Harvard/Yale/Chicago/Columbia/Stanford can hire whoever they want, because they're in the business of pedigreeing elite students. They can hire professors who haven't practiced law and who write about theoretical topics. It doesn't effect their students' job prospects. All the other law schools have lemming-like followed their lead, accepting without question that the way up the USN&WR rankings is to look as much like possible as the T5. That worked fine during boom times, but in this legal market, it seems a lot like walking off a cliff.
Here is an old saw: the best way to predict bubbles is to look at the industry to which Harvard MBA grads are flocking. I used this as a laugh line when I spoke to David’s students at Wharton in October. Now Matt O’Brien at the Washington Post Wonkblog extends the analysis to Crimson undergrads.
O’Brien’s article is the latest salvo in the analysis of what makes “Organization Kids” flock to finance. Kevin Roose’s Young Money made a splash when it was published earlier this year. Academics looking to understand students should consider delving into what makes students who enter finance and law with more than a dismissive lament of “kids these days.” Indeed, the modern university seems designed specifically to create organization kids. Think of how the bizarre gatekeeping rituals of college admissions filter down to create an achievement junky culture that begins in middle school if not earlier. Students and parents seek to anticipate the divinations of middle aged oracles who themselves attempt to divine meaning from personal statements and lists of extracurriculars.
The Harvard MBA Indicator is a fun parlor game. But it also suggests that in trying to understand deep questions such as why bubbles begin and how financial institutions operate, we might look at a broader set of disciplines than just economics. Some very interesting legal scholarship on bubbles, financial markets (think Stuart Banner’s history) and financial institutions (Annelise Rile’s sociological studies of Japanese firms) serves as examples of the possibilities. If academics lament their students being organization kids, they should have a little self-awareness and step outside their own institutional comfort zone.