Category: Law and Humanities

1

The Disney Opinion and Executive Compensation

I had the good fortune to be asked to review Professor Telman’s Business Judgment Rule, Disclosure and Executive Compensation article, over on the ‘glom. I enjoyed the paper, both because I think Professor Telman proposes an interesting way to attack recent executive compensation scandals and because I am currently working with my sister (the nicer, funnier, smarter Professor Nowicki) on an empirical paper on executive compensation, such that the topic weighs heavily on my mind. In addition, however, it was interesting to read Professor Telman’s article on the heels of the Delaware Supreme Court’s Disney opinion and its weak review of the Disney board’s analysis of Ovitz’s vulgar pay package. Indeed, Gordon Smith poses a query to Professor Telman (and perhaps me) on the ‘glom that is partially related to something I had intended to address earlier here, on concurringopinions.com. For what it is worth, then:

Executive Compensation and the “Ovitz Fiasco”

In my view, the Disney board failed in an amazing assortment of ways with respect to the hiring and compensation of Michael Ovitz, not the least of which include

(a) the failure to sufficiently consider/review/debate (become informed about) the decision to hire Ovitz (or the “decision to elect Ovitz as Disney’s President”) and

(b) the failure to review as a board at least to some minimal degree the OEA.

The Delaware Supreme Court, in its recent Disney opinion, did not do a strong job with addressing these failures, both in the collective and as the bevy of very distinct issues that they were. In its opinion, the court inappropriately collapses and poorly addresses four inquiries:

(1) Did Eisner have the authority to hire Ovitz into a senior-level position – e.g. delegate board authority to an officer ala normal agency principles and DGCL § 141 – without first securing official board approval?

(2) Did the board *as a group* have to debate/consider/review/become-informed-about the decision to elect Ovitz as Disney’s President?

(3) Was a full board vote needed when approving a very costly senior executive compensation package or could that sort of matter be finalized without full board ratification?

(4) If a full board vote was needed on the compensation package, was it permissible for the board to delegate the discussion and deliberation on the entirety of the Ovitz compensation issue to the compensation committee, such that all the full board needed to do is hear the comp. committee say “yep, fine with us” and the rest of the board could sign-off on the package? (Francis v. Smith?)

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2

Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art

Law of Conservation of Responsibility?

Back in 2004, a Florida judge angrily sent 11 defendants—mainly traffic offenders—to a jail cell for hours because they happened to be in the wrong courtroom. He’s now trying to keep his job, and claims in his defense that he had undiagnosed attention-deficit hyperactivity disorder (ADHD).

I think the case raises fascinating issues, less for the judge’s defense (I have no idea whether it’s accurate or exculpating), than for the cultural effect of such defenses. Are support groups for people with ADHD glad to see such defenses raised in court, since they add legal heft to diagnoses? Or are they worried that opportunistic defendants are going to discredit ADHD as one more tool to “get around” conventional notions of responsibility? I’d love to hear more on this type of debate, either in the criminal context (over the insanity defense) or in civil contexts. It’s a bit topical, given that the Supreme Court will hear arguments in Clark v. Arizona on April 19, to determine whether defendants have a constitutional right to an insanity defense.

All I’ll say for now is that this is not just a scientific question….

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Three Cheers for Categorizers!

gursky.jpg

Dan mentioned an indefatigable blogger who’s now taxonomizing over 600 law-related blawgs. I’ve heard a lot of critics of bloggers complain about “navel-gazing” in this field. But this type of work is exceedingly valuable, as I try to demonstrate in a recent piece on “information overload externalities.”

In my view, categorizers are a uniquely beneficial “genus” in the information ecosystem, and they deserve special solicitude from copyright law. Categorizers should be able to provide small samples or clips from whatever works they organize or index, without begging for licenses from the copyrightholders who own the sampled work.

Unfortunately, categorizers have been getting some rough treatment by courts lately. For example, Google recently lost a battle against “erotic image purveyor” Perfect 10 because the low resolution images on its “image search” might reduce Perfect 10’s sales to the “cell phone viewing” market. The Author’s Guild (which appears neither to represent all authors nor to be a guild) is suing to stop Google’s digital book indexing project—even though Google permits any aggrieved copyright owner to opt out! They believe Google should have to work out, individually, permissions for each of the millions of books they want to index.

Imagine if uber-taxonomizer 3L Epiphany had to ask permission to quote or cite to any of the blawgs he compiled. Are we really going to let a few cantankerous holdouts veto an effort to archive and index the world’s expression? I hope not, for a couple reasons…

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9

What’s in a Language?

spanish.jpgOver at the Glom, I posted on the possible acquisition of Univision Communications, which owns Univision, the Spanish-language channel. This topic got me thinking about the relative utility of learning various foreign languages. Being from Houston, I would have to say that the single most important language in the U.S. is Spanish. (For example, in the market for childcare, non-Spanish speaking buyers are at a definite disadvantage. I’m not saying this to be silly or rude. I’m saying it because it’s true.) I never understood why Texas public schools do not require the teaching of Spanish from first grade forward. I know, people in the U.S. tend to think that English is the only necessary language, unlike natives of other countries who learn multiple languages. However, even when Americans believe in learning languages, we tend not to be very practical.

Our public elementary school in Whitefish Bay teaches a foreign language beginning in first grade. I think this is wonderful. However, the language is French. I know, I know, a lot of people have learned French in school. But, other than maybe conversing with someone on your one trip to Paris and learning to speak in “this outrageous accent” a la Monty Python, what good is it doing you now? If we were staying here, we would be making a very big push to change this to Spanish or something else useful. We are now looking at two elementary schools in Champaign. They both teach Spanish and Chinese. These choices seem very smart to me. I took Latin in school, and even though I’ve never been able to use it in conversation, I think it was helpful as a building block language. The whole SAT thing and all. But I can’t vote for French. Hebrew, Sanskrit, any of these are fine. But not French.

So, what language do Co-op readers think should be taught in elementary schools (if any)?

12

Green Bag Honors Good Legal Writing from Past Year

The Green Bag has published its first ever “Almanac of Useful and Entertaining Tidbits for Lawyers & Reader of Good Legal Writing from the Past Year: Selected by the Legal Luminaries and Sages on our Board of Advisors.” (whew!–it’s a lawyerly mouthful; too bad the editors couldn’t practice what they’re preaching).

The top vote-getters in each category:

1. OPINIONS AND ORDERS

Honorable Paul H. Cassell, U.S. v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004)

Honorable Alex Kozinski, In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005) (dissenting)

Honorable Mark P. Painter, Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio Ct. App. 2005)

Honorable James M. Rosenbaum,Rohwer v. Federal Cartridge Co. 2004 U.S. Dist. Lexis 23744 (D. Minn.)

Honorable Antonin Scalia, Roper v. Simmons, 543 U.S. 551 (2005) (dissenting)

Honorable Diane P. Wood, Gore v. Ind. Univ., 416 F.3d 590 (7th Cir. 2005)

2. BOOKS

David Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago Univ. Press 2005)

Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Henry Holt 2005)

Sadakat Kadri, The Trial: A History, From Socrates to O.J. Simpson (Random House 2005)

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5

Why Blawging is Bad For Law

Hello Folks.

I’ve joined Co-Op today from Prawfsblawg. This is by my count the fifth time I’ve introduced myself at a new blog-home. That makes me a bit of an itinerant blogger. It is also pretty ironic, because I generally think that the institution of blogging/blawging threatens to fundamentally disrupt some very valuable aspects of how law is currently organized, administered and transmitted.

To take an example I posted on recently on Prawfs, consider what happens to the common law when the primary sources which form its skeleton — judicial opinions – become the fodder for the entertainment of an audience of millions of eager web-surfers. Yes, I’m talking about you, Howard. It isn’t that How Appealing, and like blawgs, are bad. Indeed, I visit Howard’s blawg every day, and it is an invaluable resource. It is that Howard’s popularity, and the increasing linking of opinions by the MSM-online, provides incentives for judges to write witty, funny, entertaining, short, glib opinions, instead of careful, boring, technically precise ones. That is, to the extent that lower-court judges want to be noticed and profiled by (kind of silly) websites like these, it makes sense to be more like Scalia and Douglas than Souter and Rutledge.

Some might protest: surely federal judges don’t care much about having their opinions widely publicized? They have life tenure, and they care only about not being reversed. But the motivations of federal judges seem to me to be an open question, and I think that if I could somehow chart the growth of funny and media friendly opinions, we’d see a small bump beginning with the introduction of WL and a huge increase in the last five years.

So, why is this bad?

To find out, you’ll have to visit here again, as I will be retuning to this topic soon.

4

Why Orwell’s 1984 Is So Bleak

orwell3a.jpgAccording to this article, the drab and dismal world portrayed in George Orwell’s 1984 was in part influenced by his bouts with illness:

The new study, by John Ross of Caritas St. Elizabeth’s Medical Center in Boston, recounts Orwell’s sickly life. . . .

Orwell was born in India in 1903 as Eric Blair. He suffered multiple bouts of bronchitis and other respiratory ailments, Ross writes. As a young man, Orwell had several episodes of bacterial pneumonia, and also contracted dengue fever while in Burma. He was a heavy smoker, and he suffered fits of coughing from a condition called bronchiectasis. . . .

[D]epressed by his wife’s death, Orwell moved to a windy and damp Scottish island. His health worsened significantly just as he was working on the first draft of “1984,” Ross reports. Fever, weight loss, and night sweats sent him to the hospital, where he underwent “collapse therapy,” a treatment designed to close the dangerous cavities that form in the chests of tuberculosis patients. . . .

“Orwell himself told his friends that 1984 would have been less gloomy had he not been so ill—it was a very dark, disturbing, and pessimistic work,” Ross said. Orwell’s illnesses “made him a better and more empathetic writer, in that his sense of human suffering made his writing more universal.”

I wonder what a less gloomy 1984 would have read like — Brave New World perhaps?