Author: Dave Hoffman

3

Why Enron Still Matters

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Matt Bodie has a provocative post up on Prawfs titled “The Enron Trial: Reasons Not to Watch“. Explaining that he doesn’t find the trial all that interesting, Matt argues that Enron is an overexposed story, Skilling and Lay aren’t the real “bad guys”, and the jury is likely to decide the case on factors other than the underlying factual guilt. The first objection is fair (my colleague Jonathan Lipson has pointed out that ““[t]he Enron case has already spawned a cottage industry among legal academics.” ). However, Matt and I part ways on his second and third objections.

Matt argues that :

Like many criminal conspiracies, the worst offenders have pled, leaving trials for those who have the best case for innocence. Lay and Skilling may or may not have really known what was going on. Sure, even not knowing is bad, given their positions of authority. And creating a culture of noncompliance is also wrong.

I’d guess that the reason Skilling and Lay have not pled and Fastow has is demographics. Fastow is a young(ish) man, who can serve significant time and still emerge with earning power. Lay and Skilling don’t have the years left to do the time that the government (apparently) would find appropriate. But more importantly, take a look at the indictment. I think it is right to be hesitant about conflating all crime with evil, but I don’t know why Lay and Skilling should be described as merely knowingly lazy at the helm. The government is charging, rather, that they personally profited from a conspiracy that they designed. The purpose of that conspiracy was to defraud thousands of investors. (Yes, I recognize that this is all contested and contestable, and you can make this a story about criminalizing agency costs. Moreover, as Larry Ribstein has observed, “the moral force of the criminal law should be reserved for the cases that deserve it.” But I think that the case is going to turn on the perceived truthfulness of the defendants on the stand, which by all accounts is a core jury competency.) Fastow, by contrast, self-dealt to the company’s detriment: a crime whose impact on the securities markets was more indirect, although ultimately catastrophic. In any event, if Skilling and Lay are guilty of the knowledge and purpose charged by the indictment, they are evil. Maybe less evil than, say, murderers, but that is a distinction I leave for other folks to make.

As for the jury point, I agree that this trial may not be resolved based on an application of cold logic to clear facts – but I don’t think that the morality play we’re seeing in Houston is noticeably different in that dimension from any other criminal trial. Criminal adjudications create norms for relevant potential offender communities – – here corporate CEOs – – and it is that process of norm creation that drives my interest in the story.

Plus, just check out the stories the attorneys told today. On one side, we’ve got the prosecution, spinning the jury a familiar tale about greedy, lying executives. In my view, they’ve got the worse of the case on the facts, which is why I’m with Gordon and Christine in betting on a partial or full acquittal. On the other side, the defense has to rehabilitate not just their clients but a corporate law system that may diverge from ordinary intuitions about responsibility:

‘Ken Lay has, does and will continue to accept responsibility for the bankruptcy of Enron. He was the man in control … But failure is not a crime. Bankruptcy is not a crime. If it were we’d have to turn Oklahoma back into a penal colony because there would be so many people we’d have to lock up,” Lay’s lawyer Mike Ramsey told the jury this afternoon.

I understand Matt’s Enron-overload. But I guess I’m not there yet. I can’t wait for tomorrow!

2

Liveblogging the Enron Trial

Via Christine Hurt, I found the Houston Chronicle’s weblog of the Lay/Skilling trial. The first day, for a certain type of person (read: corporate law nerd) was a must-read. My favorite part was the human touch from Judge Lake at the end:

The judge extensively warned the jurors not to talk to friends and family about the case and warned that media reports are not evidence.

He said they will be supplied muffins for breakfast; he noted that the banana nut go fast and the medicinal-tasting cranberry never get eaten.

First thought: so supply and demand are out of whack? Sounds like the opportunity for a little creative trading to me! Second thought: tomorrow, the prosection and defense jointly fund a trip to starbucks for sixteen blueberry muffins. Not the non-fat version, the ones that make the next five trips to the gym dead weight loss.

7

Injustice in Michigan

Via Howard B., I read this report on a recent case before Michigan state trial court Judge Michael Martone. According the article, back in May ’05, high school teens were caught drinking at their prom. The school sanctioned them, but they were also sent to Judge Martone on charges of being a minor in possession of alcohol (a misdemeanor). Judge Martone apparently said from the bench (as the students were leaving, perhaps?): “There’s to be no alcohol [in the future.]”

Needless to say, the students went to college, drank, and classically, posted photos of themselves drunk on the web. The pictures were captioned, and some of the captions slurred Martone.

Judge Martone self-googled and found the page. I can’t seem to, which suggests something about our respective googling skills. “”They made a mockery of the legal system,” he said. “I had to do something.” He reported the students to their probation officers and the police, and had the students arrested for contempt of court. The charge: “disobeying [Martone’s] direct order not to consume alcohol.” The article tells us what happened next.

Martone began questioning [the student who created the internet page about it], why she created it, and what some of its symbols and profane words meant.

In an exchange of about 45 minutes, Martone reminded her to be honest, as [she] first evaded some questions [she was pro se], then admitted that her Web site did use profanity aimed at Martone, and that she had a drinking problem.

He sentenced her to 30 days in the Oakland County Jail. She was marched off in handcuffs, to spend Christmas and New Year’s Day behind bars.

Martone then sentenced [another student] to 15 days. The two become cellmates.

If this version of the facts is accurate, this story strikes me as deeply troubling on a number of levels.

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6

RateMyProfessors and Subverting Hierarchy

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Back in May, Kaimi commented on Prawfs about Ratemyprofessors.com. Law students came somewhat late to the site, but my anecdotal sense is that there has been an explosion in ratings in the last six months. For most law schools in the country, multiple professors are now listed and rated. Most law school ranking sites have an anonymous student “moderator,” which would seem to suggest that RMP is trying to defend itself against defamation suits. If that’s the case, it would be fascinating to see what directions the moderators have received. From a brief review of the ratings of lots of law profs., I can’t believe that the directions are particularly restrictive. There is some nasty stuff out there.

Recently, I came across this article analyzing why undergraduates comment on and use RMP. The money paragraph:

[Students] want to provide information to others, and they also feel part of a community of posters. Primarily, students appear motivated to post ratings for teachers who are perceived as being either very good or very bad. This explains why the number of ratings per professor did not show linear correlation with the perceived quality of that person’s teaching. The data show that the only significant relationship with regard to the number of posts was that of the “hotness” rating. Professors with higher hotness ratings received more ratings on average. However, while perceived hotness seems to relate to the propensity to post ratings, this factor did not seem to affect the average quality rating as there was no significant relationship between hotness scores and overall quality scores. This suggests that perceived attractiveness of professors is related to students’ propensity to post about them, but is not sufficient to influence what is posted.

As far I can tell, the lack of correlation in this study between attractiveness and quality rankings is anamolous.

I wonder what would have happened were law students to be asked why they post on RMP. My suspicion is that law students, unlike undergraduates, are more motivated by feelings of powerlessness and a desire to sanction (with online gossip) professors who take particular advantage of the (conservative) hierarchy that the Socratic dialogue offers. As Duncan Kennedy explained in his little red book, “it is meaningful to oppose [hierarchy] by talking, by joking and refusing to laugh at jokes, through the elaboration of fantasies as well as through the elaboration of concrete plans for struggle.” That is, I bet at least some law students use RMP as a way to implicitly whittle their professors down to size.

But maybe that is giving students too much credit. It’s not clear to me whether the student who thinks that I “bounc[e] around the classroom like a leprechaun” was hoping to subvert traditional ideas of law school classroom management. Maybe s/he just didn’t like me much.

10

Trump’s Net Worth

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This article press release details Donald Trump’s new defamation suit against New York Times reporter Timothy L. O’Brien and Warner Books, Inc., for, saying that Trump was not a billionaire in the book The Art of Being the Donald:

The lawsuit alleges that in publishing these false statements, O’Brien and Warner deliberately chose to ignore, among other things, voluminous and comprehensive financial information that Trump made available to them prior to the publication of the book, which confirmed conclusively that Trump’s net worth is in the billions of dollars. Indeed, Forbes Magazine rigorously analyzed the very same books and records and other financial data that O’Brien and Warner chose to ignore, and concluded that Trump’s net worth conservatively is at least $2.7 billion.

What I know about the topic of Trump’s net worth comes largely from O’Brien’s NYT articles on the topic, which (not incidentally) were quite skeptical of Forbes’ approach to valuation. I also am surprised that Trump would be interested in exposing his books to public scrunity, which (presumably) O’Brien and Warner could insist on as a part of their defense. Shucks, as a plaintiff, Trump might not even be able to obtain a protective order in N.J. State Court. [Being unfamiliar with local practice, this is just a guess, but Trump’s privacy claim is weaker than it would be if he had been forced to court as a defendant.]

Nevertheless, you’ve got to give Trump style points for being willing to double-down his bets:

The lawsuit, which was filed in state court in Camden, New Jersey, seeks $2.5 billion in compensatory damages and $2.5 billion in punitive damages….

4

Criminal Prosecution for Scientific Fraud

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I spoke to a reporter at the end of last week about the criminal prosecution of scientific fraud. I’m not sure how coherent my end of the conversation was at the time, but I thought the topic was interesting enough to return to it briefly here.

Let’s put aside potential investigations and prosecutions by the federal Office of Research Integrity (part of DHHS). Granted, the ORI has claimed an extraordinarily broad mandate (funded and unfunded applications!), which might be worth returning to one day. But on the whole, such cases seem to me to be a fairly mundane application of the general contract fraud principles.

Instead, I’ll concentrate on a free-floating action in fraud against a scientific investigator for having misled potential patients. Thus, consider the scenario of a doctor faking an experiment to show that Drug X prevents heart attacks and has no side effects, when, in fact, it has no preventative powers, and it causes immediate hair loss. Is that doctor criminally liable? Civilly?

I’d guess that to the extent that general fraud often requires an intent-to-induce element, most scientists would be able to successfully assert that they did not intend for patients to rely on their work. In the civil context, I also assume that a consumer’s action would fail on the “justifiable reliance” end. If this weren’t true, I imagine that most scientific papers would end with a disclaimer that they are not intended to be relied upon, and that patients ought to consult their physicians (etc.)

But let’s put aside the doctrine for a moment and consider the policy arguments for attacking scientific fraud with prosecution. There are at least two reasons to think this is a bad idea (again, apart from the government-contract fraud case).

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1

Drug Package Insert Regulations

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The Times this morning offers this revealing story about the FDA’s new drug package insert regulations.

There is lots here for the legal blawgosphere to chew on. Administrative law profs will be interested in claims about the pre-emptive effect of the regulation’s preamble. Behavioral researchers will like the discussion of information overload. And, needless to say, food law folks will wonder if they are next.

But I’m interested in a detour around halfway through the story, where the author notes (and I’m going to take his word for it) that:

But the rule does not address the information sheets routinely provided to patients by pharmacists. These sheets are lightly regulated and often fail to include important drug warnings.

Here’s my (perhaps silly) question. What economic explanation is there for the “fail[ure] to include important drug warnings”? Even if consumers don’t want this information,* why don’t drug companies want to marginally reduce their liability costs? Perhaps they are more interested in making “extra” profits on off-label use (which could be deterred by pharmacy information sheets) than they are concerned about reducing accident costs (which might be relatively fixed). But perhaps I haven’t thought about this hard enough. Does anyone else have an idea?

* I’m skeptical, that that is a topic for another post.

1

Truth on the Market: Why Build When You Can Buy?

As Dan noted, today a new blog, Truth on the Market, went online. As I expected when I first welcomed this possible development, it seems likely that TOTM will be a regular stop in my daily internet rounds.

Keith Sharfman’s new post is worth further comment:

A blog’s market share is largely search-driven rather than reputation-based. And for search-generated hits, blog entries compete with each other on a level playing field. A blogger’s reputation cannot in itself trigger search hits in the absence of search-relevant content. This makes me confident that there’s still plenty of room for Truth on the Market in business law blogging, notwithstanding the large number of high quality business law blogs that already exist.

This is interesting. I think Keith is saying that off-line reputation doesn’t transfer easily to online blogs, and, therefore the barriers to entry for a new blog’s success are quite low. I agree (look at this blog’s success over the last three months). But I do think that it is easy to overstate this point, because to some degree search traffic is “distorted” by prior reputation through google pagerank. Around 20% of our daily traffic currently is driven here by google (and other search engines). I suspect we’d get significantly more hits if our page rank value (currently 3) were higher; we expect that if we continue to do a good job over time, we’ll build a virtuous cycle with google and obtain some type of early mover advantage with traffic. But still, as Randy Barnett said at the AALS blogging session, it is far from too late to start a new blog.

Incidentally, I wonder what explanation we could come up with for the TOTM folks’ unwillingness to simply buy an existing blog? (Like the market for virtual swordmasters, but more professionally useful!) Starting a blog takes time, and an existing blog’s traffic, google score, blogrolls, etc., surely have some value. If folks are looking for a platform, why build your own? A related question: why have so few bloggers followed in the Conglomerate’s footsteps and merged with another blog to grow an audience? (Maybe Ribstein’s HSR concerns chilled activity?) Such mergers would seem to be a dominant solution to some of the time and traffic worries that plague most bloggers. Group blogging also may help to ameliorate the political concerns with blogging recently in the news. (Note: if this blog is too [_____], blame Solove! I’m kidding. Blame Wenger.)

5

The Future of Law Libraries

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Via Brian Leiter, I read this post on a controversy at Tulane’s Law Library. The Law Librarian Blog, after detailing recent staff and policy shifts, wonders whether the University administration is using Katrina as an excuse to do away with an independent academic law library:

So my question is do the actions at Tulane reasonably represent a sub rasa determination by relevant powers to subsume the law library into the operations of the University library, demoting it from an independent entity and transforming it into a subordinated department? The recent spate of firings looks to be designed to preshape the structure of the law library for insertion into the main library’s organization.

If this is true, I wonder whether Tulane would defend itself by arguing that in light of recent developments, there is less of a need for an independent law library than there used to be. Or, more provocatively, “Law Libraries. Huh. What are they good for?”

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