The guilty verdict for Virginia ex-governor Bob McDonnell on charges of public corruption is a major headline of today. I've been thinking a lot about corruption for the past few months, so here are a few thoughts:
-Corruption is in the eye of the beholder. My Essay turns on the proximity of time of two donations and legislative action. In the most notable case, a member of the House introduced a bill the day after receiving a $1000 donation. Readers' reactions to the story fall into two distinct camps. One: OMG! I can't believe that! Two: So what? Why does that necessarily mean there's corruption? In answer I say:
-Timing does matter. From the WaPo:
[Prosecutors] backed up his story by using other evidence to weave a strong circumstantial case that an agreement had been reached between the businessman and the first couple based on the close timing of Williams’s gifts and loans and efforts by the McDonnells to assist Williams and his company.
In one instance, McDonnell directed a subordinate to meet with Williams on the same night he returned from a free vacation at his lake house. In another, six minutes after e-mailing Williams about a loan, McDonnell e-mailed an aide about studies Williams wanted conducted on his product at public universities.
-definitions are the name of the game. The Supreme Court's 2014 McCutcheon decision narrowed the definition of corruption to only cases of quid pro quo corruption--cases where there's an actual exchange. The McDonnell defense apparently conceded that there was an exchange, but contested whether the quo in question--events at the governor's mansion, setting up meetings for the donor--counted as "official acts." This is a broad definition.
-Corporations are always going to participate in political life. We expect them to lobby for positions favorable to their firms. See here for a recent WSJ article on disclosure of political spending, with quotations from some sterling law professors, including friends-of-Glom Mike Guttentag and Steve Bainbridge, who quite rightly observes that the risk is that managers spend the corporation's money "on their own preferences, as opposed to what's good for the company."
-So in corporate governance terms the question is how to sort the "good" spending that is for the benefit of the company from the "bad" spending that is driven by idiosyncratic managerial preference and doesn't do the corporation any good. But in political governance terms, the question is how to regulate even "good" corporate spending that we find to be corrupting. I at least don't have a good idea of how to draw that line. The Court says trading donations for access is fine, and so are donations that secure a candidate's gratitude. My hunch is a lot of people might call those corruption. But corporations need to be able to explain to candidates how the government's rules and regulations affect their business. I'm certainly not confident that the average politician knows much of anything about any particular issue.
So where does that leave me? Still wondering about corruption, and eager to get back to corporate and securities law, that's where!
Like Elizabeth I attended Seattle University's fantastic Berle VI conference. The quality of the talks was uniformly high, and the tone of the conference was one of engagement and dialogue, not ideology. In short, it was a great conference.
Unusually for me, I didn't present a paper, but was a mere participant (or, as I like to think of it, "invited guest"). I felt it my duty as invited audience member to ask questions, even though I was always the last to raise my hand in elementary school, college, and even law school.
This is what I want to type next: here's the secret about law conferences--and, I'd be willing to guess, academic conferences in general. The women in the audience are counting. Always. They're counting the number of women speakers. They're counting the number of questions women ask. Particularly if the speaker calls on his own questioners, they're aware of how many women he calls on and whether he ignores women who have had their hands up for some time to call on men who raise their hand later. A constant back-of-the-mind tally is part and parcel of the woman academic's conference world.
I don't know if that's true, though--that's why I'm uncertain about the authoritative tenor of the prior paragraph. It's something I've talked about with women academics many times. Never with men. But it's something I do almost subconsciously. If I had my druthers I'd take a while to frame my question, hear what others have to say, see if I have anything to add, formulate and reformulate. But if there's a 15-minute Q-and-A period and no woman has raised her hand at the 10-minute mark, I start to feel a lot of pressure to say something. Anything. Particularly at my home institution, since it's the deep South and I don't want it to look like we're some backwater where women are oppressed/unengaged/unintellectual.
Berle VI was an ideal conference in gender terms--centered around an article by 2 women academics, nearly half the attendees women, which is almost unheard of in corporate or securities law. Thus it seems like a good time to voice these thoughts. This is something that feels quite personal, and something I've never blogged about--nor read about--but have thought about a lot. Hence the title of this post-- I'm posing a question about conference questions and how others perceive them. How many women feel this way? How many men have any clue that they do?
Haskell Murray and Anne Tucker recently blogged quite engagingly about their Fear of Missing Out (FOMO). They made me feel old--not only because of these newfangled acronyms, but also because I remember feeling that way myself. I found particularly brave their articulation of the suspicion that they weren't "good enough" and had somehow lucked into the job. I remember feeling that way, too, and I have a sneaking suspicion that there are 2 kinds of junior faculty members: 1) those who think they're not really as smart as everyone else, and 2) those who really aren't as smart as everyone else. "Arrogance" is just a few letters away from "ignorance."
But I digress. I remember feeling this way, and I had a mentor give me excellent advice my first year:
Just say no.
At least, your default answer should be "no." To my chagrin, I realized something at the end of my first year of teaching: This job has infinite demands. There are 3 elements to it: teaching, scholarship, and service. You could devote every waking moment to your teaching, and still have more you could do. Ditto for service. Ditto to the nth degree for scholarship: always another talk you could attend, an article you could read. But you can't do those things and write. At least, I can't. You have to get used to always feeling like there's more you can do. You'll feel guilt, but you have to make your peace with it.
I set boundaries for myself, like trying not to travel more than once a month while classes are in session. But the best piece of advice I got was that your default answer should be "no."
P.S. Haskell, I'd love for people to think that I'm some kind of superwoman, but that was my schedule for a brief period of my life. Baby #3 started sleeping through the night at about 6 months. Hallelujah!
I can't resist medal tables. No - not the top of the tables, where imperial sports machines duke it out. I love the bottom of the tables. More particularly, rooting for the tiniest of countries and particularly those countries that have never had a medal winning athlete. My assumption: those athletes don't have a huge apparatus supporting them. And one local medalist is more likely to generate dancing in the streets in Montenegro than Munich.
The assumption doesn't always hold. Some big time athletes relocate to micronations to save on taxes (like Austrian skiier Marc Ghirardelli to Luxembourg in the '80s and '90s). Some Gulf States have been on a spending spree to buy African athletes to win summer medals.
Even so, go Liechenstein!*
* Liechenstein won skiing medals in the '70s and '80s thanks to two pairs of siblings.
I've been quite busy so far this semester, juggling two and a half classes, finishing up a symposium piece and trying to rework a piece for submission this spring. (Sometimes I think of channeling Richard Scarry with a "What Do Law Professors Do All Day?" post. Gripping as that tale would be, it would lack the Tyrolean charm of a be-sneakered Lowly Worm and the unlikely disasters of Mr. Frumble. Perhaps best not.)
On that last task, I was finally able to turn back to my spring piece in earnest last week (I know the window's maybe/possibly/definitely open. Please don't tell me). I presented the paper a few times in the fall and got excellent feedback that convinced me I need to take the data I have in a different direction. I spent this past Monday getting back up to speed on the draft, and then kind of spun my wheels, reading legislative history, taking some notes, not making much headway. As the day wound down into futility I thought--you know, I'll go running tomorrow and figure this all out. Sure enough, about 15 minutes in to my morning run, I had rethought the paper and had a new direction mapped out.
Of course my big rethink might come to naught. But it is nice to know myself well enough to recognize when I'm stuck, and to know how to get unstuck. That oracle was on to something.
After over four years of work, my book Law, Bubbles, and Financial Regulation came out at the end of 2013. You can read a longer description of the book at the Harvard Corporate Governance blog. Blurbs from Liaquat Ahamed, Michael Barr, Margaret Blair, Frank Partnoy, and Nouriel Roubini are on the Routledge’s web site and the book's Amazon page. The introductory chapter is available for free on ssrn.
Look for a Conglomerate book club on the book on the first week of February!
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In a study that is sure to make faculty meetings around the country even less pleasant, Timothy Judge, Beth Livingston, and Charlice Hurst found that more "agreeable" men earn less than disagreeable male colleagues. The earnings differential between agreeable and disagreeable women was less pronounced. At the same time, the pay gap between disagreeable men and disagreeable women was larger than the gap between agreeable men and agreeable women. This fascinating study attempts to tease out whether conforming/not conforming to gender stereotypes might explain part of the gender gap in pay. And its implications go far beyond that.
A few links to tide you over during your tryptophan-induced torpor:
- Many law faculty dream (or so I’ve heard) of splitting their school in two and separating themselves from various colleagues (mimicking the good bank/bad bank model). Well Penn State is doing just that with its two campuses. (See the Dan Filler’s short post at the Faculty Lounge and the comments thereto);
- In the NY Review of Books, Elaine Blair reviews Every Love Story is a Ghost Story, D.T. Max’s bio of David Foster Wallace. It’s fascinating discussion of how Wallace drew on his own experience in addiction recovery, to create not only characters but a map out of the intellectual wilderness of “self-consciousness and hip fatigue” in American culture high and low;
- David Nasaw has slices of his new book, The Patriarch: The Remarkable Life and Turbulent Times of Joseph P. Kennedy at Slate;
- In the New Yorker, Nick Paumgarten explores the eternal musical afterlife in the Grateful Dead tape archives;
- Steve Bainbridge on vino for Thanksgiving (what about post-Thanksgiving?) and shareholder empowerment and banks.
- Track grandma’s flight home at FlightRadar24.
Youtube - uploaded by chasefukuoka61
So the "other matter" on which I've been working this semester is Baby #3. At this point, I feel like we're officially joining the ranks of the insane (except of course, for my fellow bloggers Christine, Lisa, and Gordon, who handle 3+ child-parenting with grace and aplomb!). Baby is due in December, and my semester to-do list includes finishing teaching Corporations and co-teaching an ethics seminar, writing an exam, grading an exam, potty-training Daughter #2, and getting her to share a room and "big girl bed" with Daughter #1. Add to that 2 newish writing projects and 4 conferences/colloquia. To you shaking your head, realize this: ambitious as this might sound, it's much easier to do anything when baby is on the inside.
Then in September our older dog, Meghan, died. I've tried to write a follow-up sentence at least 10 times, and everything winds up seeming trite or inadequate, so I'll leave it there. But it was a big change for us: we were a 2-dog household before we had children. I'd gotten Meghan as a puppy my last year of law school, and she and our second dog, Henry, were ideal dogs for kids. Mellow and with a firm understanding of the rules of the house (don't steal food or run away; you can loll on whatever furniture you see fit), they spent the majority of each day lying around the house. Comforting companionship that demanded very little.
About 3 weeks after Meghan's death I added another task to this semester's list: finding a second dog. It sounds quick, I know, but the loss hit Henry hard: he'd never been a solo dog, and he seemed increasingly depressed and out of sorts. We all were. And with a new baby on the way, the task integrating a new dog took on some urgency.
I'm lucky to have friends in the dog rescue community, and so with some trepidation I placed an order for a dog: 1-2 years old, female, housebroken, good with children and with dogs, no major health issues. I felt guilty about it: Meghan was a 6-week-old SPCA special, and Henry came from a foster home at about 6 months. I kind of expect to deal with housebreaking, teething, and training when I get a new dog. Part of the bargain, the responsibility of the good dog owner. But my friend assured me that plenty of dogs killed at shelters fit my description, and that giving a dog a home was what counted.
So we told the girls we were "fostering" Sweet Pea, who was 4 years old but otherwise fit my order to a T. You can guess the rest. Sweet Pea has gotten out and stolen food a few times, and there have been some casualties as she endeavors to understand the difference between child toys and dog toys. Her hind foot is a little wonky, as my parents would say, from being hit by a car in her youth and healing incorrectly.
In short, she's perfect.
I write this post to suggest that, if you're thinking about getting a dog but dread that initial getting-acclimated period because you just don't have the time, you can probably find one that will be pretty easy to adopt. You may even feel guilty about how easy it really is.
So we're buying a new minivan tomorrow. More on the whys and wherefores of that later, but through dumb luck we seem to have stumbled on a good time to buy a car. I write up our experience for whatever it's worth.
Step 1: Test drive in June. The new model year starts shipping around September. Who knew? I thought it was later in the year, more like October or November. But no, dealers appear to be desperate and Honda, at least, is offering "dealer cash" to dealers who can move out those stale, tired old 2012 vehicles fast.
Step 2: Use a car buying service. Both AAA and USAA (our insurer) offer TrueCar free to their members. It's not clear to me how TrueCar makes its money (insights welcome), but we filled out an online form detailing what we'd like, and then they emailed us the contact information of two Atlanta dealerships offering us a few thousand dollars off the price of the car. One of them called the house literally 5 minutes later, offering us a few thousand dollars more off the price. Off to the races!
Step 3: Bargain over email. An initial email from a sales agent read: "We do have a black one in stock and I am hoping that you will want to get together this weekend to go over all of your options." Ha. I emailed back that we lived over an hour away and wouldn't be driving to Atlanta without a deal in hand.
Step 4: Check with your local dealer and see if they can match the price. Sadly, they couldn't. But they told me I was getting a good deal.
Step 5: Post about your story and hope that readers chime in with helpful tips that don't make you feel like a chump who missed out on some basic bargaining tactics.
Step 6: Remember that. no matter what, it could be worse (start at :44 or, if pressed for time. 3:11):
WaPo is remembering the crash of Air Florida Flight 90, which happened 30 years ago today. Seventy-five people died in the crash, which I remembered last week while riding to Reagan National after the AALS annual meeting. One reason that crash is so memorable to me is "The Man in the Water," Roger Rosenblatt's famous essay:
The person most responsible for the emotional impact of the disaster is the one known at first simply as “the man in the water.” (Balding, probably in his 50s, an extravagant moustache.) He was seen clinging with five other survivors to the tail section of the airplane. This man was described by [Donald Usher and Eugene Windsor, a park-police helicopter team,] as appearing alert and in control. Every time they lowered a lifeline and flotation ring to him, he passed it on to another of the passengers. “In a mass casualty, you’ll find people like him,” said Windsor. “But I’ve never seen one with that commitment.” When the helicopter came back for him, the man had gone under. His selflessness was one reason the story held national attention; his anonymity another. The fact that he went unidentified invested him with a universal character. For a while he was Everyman, and thus proof (as if one needed it) that no man is ordinary.
Still, he could never have imagined such a capacity in himself. Only minutes before his character was tested, he was sitting in the ordinary plane among the ordinary passengers, dutifully listening to the stewardess telling him to fasten his seat belt and saying something about the “No Smoking” sign. So our man relaxed with the others, some of whom would owe their lives to him. Perhaps he started to read, or to doze, or to regret some harsh remark made in the office that morning. Then suddenly he knew that the trip would not be ordinary. Like every other person on that flight, he was desperate to live, which makes his final act so stunning.
For at some moment in the water he must have realized that he would not live if he continued to hand over the rope and ring to others. He had to know it, no matter how gradual the effect of the cold. In his judgment he had no choice. When the helicopter took off with what was to be the last survivor, he watched everything in the world move away from him, and he deliberately let it happen.
Yet there was something else about our man that kept our thoughts on him, and which keeps our thoughts on him still. He was there, in the essential, classic circumstance. Man in nature. The man in the water. For its part, nature cared nothing about the five passengers. Our man, on the other hand, cared totally. So the timeless battle commenced in the Potomac. For as long as that man could last, they went at each other, nature and man; the one making no distinctions of good and evil, acting on no principles, offering no lifelines; the other acting wholly on distinctions, principles, and, one supposes, on faith.
Since it was he who lost the fight, we ought to come again to the conclusion that people are powerless in the world. In reality, we believe the reverse, and it takes the act of the man in the water to remind us of our true feelings in this matter. It is not to say that everyone would have acted as he did, or as Usher, Windsor, and [Lenny Skutnik, who jumped into the icy water to drag an injured woman to shore]. Yet whatever moved these men to challenge death on behalf of their fellows is not peculiar to them. Everyone feels the possibility in himself. That is the abiding wonder of the story. That is why we would not let go of it. If the man in the water gave a lifeline to the people gasping for survival, he was likewise giving a lifeline to those who observed him.
The odd thing is that we do not even really believe that the man in the water lost his fight. “Everything in Nature contains all the powers of Nature,” said Emerson. Exactly. So the man in the water had his own natural powers. He could not make ice storms, or freeze the water until it froze the blood. But he could hand life over to a stranger, and that is a power of nature too. The man in the water pitted himself against an implacable, impersonal enemy; he fought it with charity; and he held it to a standoff. He was the best we can do.
Sadness tinged this Christmas and New Year's for me, as it did for so many others, because of the news of Larry Ribstein's untimely passing. Amidst shepherding children through holiday traditions, and up and down the East Coast, I have been reflecting on what Larry meant to me.
Here's the Larry story I kept coming back to:
It's early September of this year, and I'm struggling with framing the theoretical portion of my latest draft. It's crunch time: I've arranged weekend babysitting because I need to get this puppy out the door. The good news: I have a new spin! The bad news: I need feedback. Any law professors at their computers this weekend are unlikely to be able to spare the time for me. Except...
Friday night I email Larry, asking him if he has the time to look at a draft. He writes back: "sure".
12:10 Saturday I get comments back from Larry, and a suggestion for a source to help with reframing.
1:57 I've read the source, give the framing another whirl, and email him back at with a follow-up question.
2:08 he emails me with an answer.
2:25 I'm emailing again, suggesting an alternate frame and asking for his thoughts.
2:37 Larry emails back, suggesting a change in emphasis.
2:45 I email back.
3:01 Larry responds.
3:24 I email back.
4:00 Larry responds.
Finally, the section is done. And it's stronger and richer than it was just 24 hours ago. I send my last email at 4:07. It reads: "You're hilarious. And a treasure. Thanks again, U"
On a Saturday afternoon. For a junior colleague. At another institution. Even as it was happening, I couldn't believe how lucky I was. Larry was smart, he was blunt, he was quick, he was generous. Each quality is rare taken individually; together, they are unheard of.
But it was his love of movies that really got me. Larry organized the best conference I think I'll ever go to. I mean, instead of having a list of articles to read, we had a viewing list--I spent March 2009 trying to watch as many movies as possible. For that alone, I'm in his debt.
After all the hype and Oscar drama, I finally saw Avatar when it came out on DVD. I was not impressed. This manipulative simplistic story almost won Best Picture? Really? I emailed Larry to ask what he thought. His reply was terse: "I wouldn't see Avatar unless strapped to a seat and threatened with torture."
God, I'll miss you, Larry. We all will.
Julia Child's Mastering the Art of French Cooking has been on my bookshelf for two years, mostly unused, since my wife purchased it for me after we first saw Julie and Julia. When we saw that movie again last week, I was inspired to take down the book and cook some eggs.
Well-cooked eggs are scrumptious, and cooking eggs well seems easy when you watch Julia:
Evidence that a picture is a worth a thousand words, the instructions in Mastering the Art of French Cooking for making an omlette -- which has only four ingredients (eggs, butter, salt, and pepper) -- are seven pages long! This is why most people never cook from Julia's classic book.
But I have been drawn in, attracted by Julia's emphasis on technique as the key to great cooking. In the original forward of the book, she wrote: "the excellence of French cooking, and of good cooking in general, is due more to cooking techniques than to anything else."
Although I have enjoyed cooking since childhood, when I spent hours in the kitchen with my mother, I am largely reliant on recipes. Julia promises something more:
Our primary purpose in this book is to teach you how to cook, so that you will understand the fundamental techniques and gradually be able to divorce yourself from a dependence on recipies.
This approach to cooking resonates with me right now. As I have contemplated my goals for the next year, Mastering the Art of French Cooking has become a metaphor for the manner in which I want to approach my teaching, my scholarship, my Church service, my family interactions, and my personal development. "Precision in the small details," Julia observed, "can make the difference between passable cooking and fine food." It's already clear to me that Mastering the Art of French Cooking is not just about food.
Larry Ribstein presented a paper in a conference at Lewis & Clark Law School in October 1996. I was a young corporations professor, and he was already a big name in the field. We had recently tussled in an email forum on limited liability companies -- which Larry subsequently edited and published in The Business Lawyer -- and I was not sure what to expect of him in person. Those who knew Larry understand that he could be rather direct in defending his views (or, as Larry Solum observed, he "defended his vision of law with a tenacity and rigor that is rare, even among law professors"), and, truth be told, I was a bit afraid of him. Over the two days of the conference, however, I found myself increasingly drawn to him at meals and during the breaks. The second day of the conference involved a trip up the Columbia Gorge and then to the Timberline Lodge on Mt. Hood for dinner. Larry and I spent much of that day talking, cementing a friendship that I count as one of my most treasured in the academy.
Over the ensuing 15 years, Larry and I often presented at the same conferences, and we usually sat together to watch and discuss the presentations. We collaborated on various blogging adventures, and I was looking forward to seeing him next week at the AALS Annual Meeting. Isn't it amazing and wonderful that so many of us could feel this sense of intimate connection to him?
How is that possible?
As I have reflected about Larry's passing over the past day, I realize that he was my friend because we shared a love of ideas, and he was my mentor because he taught me the importance of getting those ideas right. A few years back, I presented a piece called "Unlimited Shareholder Power" at a symposium at Notre Dame. Larry was also on the program, and after my presentation, he immediately approached with with some comments. I knew that he would not be enamored with my proposals, which finally appeared in print this fall, but I am still struck by the generosity of his comments. He seemed quite taken with my idea that each corporation could become a "laboratory of corporate governance," and we played with that idea for some time.
This type of interaction was the norm with Larry Ribstein. He was all about developing great ideas. And I loved him for that.