Dan Filler Signs on the Dotted Line

I’m delighted to report that Dan Filler has agreed to stay on permanently here at Concurring Opinions. He probably doesn’t fully appreciate the fact that he has just signed away his life for nearly nothing in return. He’ll spend eons of time producing content for the blog and get no financial rewards or otherwise.

But his loss is our gain. We think that Dan is a terrific blogger, and he’ll continue to add greatly to this site. We couldn’t be more pleased. Welcome aboard, Dan!


Becker, Posner and the Purpose of the University

Richard Posner and Gary Becker, over at their eponymous blog, have been blogging about the Summers resignation. They both come out for Summers, and against tenure. The discussion is worth checking out in full.

I wanted to focus in on what seemed to me to be an underlying issue that neither Becker nor Posner really nails down: what good is the university supposed to maximize? Or, clearer put, what is the purpose of a university? Posner argues that faculty and university incentives and capabilities are misaligned:

The faculty are interested primarily in their own careers, and what is good for their careers and what is good for Harvard are only tenuously connected . . . What is more, [a replacement president] might be more inclined to kow-tow to faculty, enhancing their careers at the expense of the long-run health of the institution.

But this does not tell us what success or “long-run health” means. Both eminent economists turn quickly to market measures of value. Posner claims that “our universities are the best in the world” [Ed.: Now is the time to remind the reader that such puffing claims are not to be trusted, and to suggest that they look for this paper on that very topic.] Becker is more explicit:

Still, I believe the only satisfactory way to evaluate how universities (or businesses) are run is by their success or lack of it in the long run. Although there is no simple way, like profitability, to judge universities, there is an effective way to judge a university system. The American college and university system is widely accepted as the strongest in the world. This is why American universities are filled with students from abroad, including those from rich nations with a long history of higher education, like Germany and France.

I conclude from this that the American university system must be doing many things right, at least relative to the other systems. And what is right about this system is rather obvious: several thousand public and private colleges and universities compete hard for faculty, students, and funds. That the American system of higher education is the most competitive anywhere is the crucial ingredient in its success.

This argument confuses me. Is the claim that because our universities attract foreign students at higher rates than foreign graduates attract U.S. students our universities are “successful” and should do more of what they are already doing? That claim would seem tough to swallow given that our universities allow entry into our economy and (through marriage to fellow-students) citizenship, and thus attending Harvard isn’t necessary a proxy for endorsing its governance structure. Or is the claim that our success is a product of competition itself? In that event, who cares what internal governance looks like as long as we have established a market for private education?

More generally, it seems to me that without a good account of what the university should be doing (and not what the market is rewarding it for doing) arguments about proper governance structure are founded on quicksand. After all, there are a significant number of more autocratic colleges than Harvard extant. Almost all such schools are traditionally seen as less successful in many ways. Should we chalk Harvard’s success up to path-dependence? The distorting effects of tenure and labor unions? Does this internal market not matter to our evaluation of Harvard’s success? Because if it does, how can we say that the faculty governance model that Harvard has long followed is inversely related to “long term health” of that institution?

(Hat Tip: Todd Z.)


Shameless Plug

blow.jpgAs multiple teasers in this space have hinted, I’ve been working on an article about vivid commercial lies and boasts. That article is now out to the law reviews, under the heading: The Best Puffery Article Ever. Given the title,further description seems sort of unwise, but for the curious, perhaps an abstract would be in order:

This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: “puffery.” Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on conclusions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such conclusions are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing.

The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of “misleading” speech, a term of art at the heart of the Supreme Court’s contested and still evolving commercial speech jurisprudence. Missing from that jurisprudence is a satisfactory account of how consumers and investors react to speech that is not literally false but which has false implications. I present such an account, focused on the incentives and capabilities of sellers to exploit buyers’ cognitive vulnerabilities. I draw on economic, marketing, psychology and consumption literatures.

I conclude by offering a novel liability proposal. Because legal authorities are incapable of satisfactorily drawing a line between harmful and innocuous puffery, the law should make sellers presumptively liable if their speech contains exaggerated, but vague boasts. This approach would place the onus on sellers to balance the costs and benefits of puffery, and thus lead both to more satisfying doctrine and a more optimal level of fraud.

I’ll be putting a draft up on SSRN shortly. And, now, I can return to my regular quota of blogging!


Starbucks’ Secret Menu


Everyone has a different perspective on Starbucks. In a place like San Francisco, with a strong independent cafe culture, it’s seen as Corporate Joe. In Birmingham, though, Starbucks helped balloon the city’s tiny pre-existing cafe community. Enough cultural commentary. My main goal with this post is to alert interested Starbucks consumers to a few attractive menu items that have inexplicably been left off the menu. (I speak primarily for the Birmingham stores, but in my experience these items are generally available nationally.)

For for the frugal and/or low intenisty addict: the Short coffee. It’s served in the same cup as the kid’s hot chocolate. And you always thought that it was nonsensical that Starbuck’s small was called tall. It isn’t; they just don’t want to explain matters to you.

For cafe au lait lovers: the Misto. Cafe au lait fans will love the Misto because, well, it is a cafe au lait. Half cup of coffee, topped with steamed milk. Ask for it extra foamy.

For people who have strong coffee preferences: the French Press. They don’t tell you this, but for 3 or 4 bucks, they’ll serve you up a french press made of any coffee in stock. So when the coffee of the day is House, and you just gotta have Sumatra…it’s your choice. And you’ll have enough to share with a friend.

Take control of your Starbucks experience. Order off menu.


John Paul Stevens In Picture And Song

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If you haven’t heard this Air America spoof of Hang on Sloopy – retitled Hang on Stevens – it’s worth a click. I can’t imagine that Stevens, a Republican (OK, a Hyde Park Republican, but still…) would have predicted this fate 30 years ago.

And if you haven’t yet seen this wonderful childhood photo of the Justice at his dad’s hotel (known, eponymously, as The Stevens, but since transformed first into the Conrad Hilton, and later the Hilton Chicago, and shown at right) take a look. According to this article, he’s the kid on the left.

UPDATE: It seems that you can’t create a permanent link to the photo. To see an enlarged version go here and search keywords for “Stevens Hotel Two Boys”. The photo is entitled “two young boys playing a games, sitting at a small table in a playroom at the Stevens Hotel.” But the picture actually has three boys, and the aformentioned descriptive sentence actually has a grammatical error.

UPDATE 2: I’ve altered the pictures so that everyone can now see both the kid-pic and the hotel.


Government Issue Porn

agReport.gif It’s no surprise that the Attorney General is turning up the heat on pornography. (Christine started us talking about DOJ recordkeeping rules last week, and the Google issue bubbled up a few weeks before.) Porn is an anathema to the GOP’s base, and with few supporters (other than those card carriers over at the ACLU and the 34 million (soon to be 40 million) anonymous consumers hunkered down behind their monitors), such attacks are an easy way to satisfy social conservatives. Perhaps Alberto Gonzalez will take the same approach as Reagan’s AG, Edwin Meese: preparation of a Porn Report. The Attorney General’s Commission on Pornography Final Report (available, at least in part, here) was more than a condemnation of pornography; it was a complete reference volume on the field. History, law, a feminist critique of objectification – everything was there in one intimidating tome. To prove that world was filled with truly porny porn, the Commission produced serious evidence: loads of material extracted from genuine dirty books and magazines. This was one racy government document; I can only imagine the lines at those designated library repositories. Sales must also have been solid. Just as happened with The Starr Report, a commercial publisher stepped in and republished the fat government document. (The flashy book cover, to the right, is the reprint.)

The moment is ripe for a new update – Porn 2K, perhaps – but times and technology have changed a great deal in the interim. Nowadays, a report need not take the form of a paper book that gathers dust in the Government Document Collection. Like many government publications, it can be distributed on the web – complete with hypertext links to sources. Imagine the manifold ways that a Gonzalez Report might show the nature and extent of pornography in America. If the Meese Report soldiered through, making its case through the use of dry text, a new hi-tech report could provide readers with link after link to graphic, vulgar, offensive, genuinely nasty smut. And the nature of this smut has changed! Pornography, like everything else, has gone the way of the celebrity. So what atrocities might be exposed in this report?

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The end is near, and so I face my final curtain

Many thanks to the regular crew at CO, particularly Dan and Dave, for inviting me to comment this past month. I have had a wonderful time and look forward to returning. Thanks also to the many readers who have taken the time to contact me, comment on my posts, or simply to read them. It is wonderful to be part of the electronic community of legal scholars, students, and the interested public, and I am indebted to those who asked me to take a role. Best wishes, and please continue to call and e-mail.



Hallucinogenic Tea with Chief Justice Roberts


Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?

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When Punishment Breeds Crime

The NY Times has an important article today about the extent to which ex-offenders are burdened by court costs. There have been some further comments on the issue here. I know what many folks will say: criminal offenders, not society, should pick up the secondary costs of their behavior. Clearly, it is appropriate for people who have money to pay for court costs and perhaps even the cost of incarceration. But most people who commit crimes are poor. So while justice may demand offenders to pay, common sense requires that courts be very careful in assesssing such charges.

There are at least two reasons why indigent offenders should be assessed minimal, if any, costs. First, as a practical matter, these individuals will take a very long time to pay up. In many cases, this means that they will remain on probation – with all the associated administrative costs – for longer than the sentence otherwise demands. (Probation often remains open until all costs are paid, irrespective of the underlying sentence.) Aggressive judges actually incarcerate offenders for non-payment when they find (sometimes incorrectly) that the offender had money but simply didn’t share it with the courts. Incarceration is incredibly pricey. It’s a reasonable expense to stop serious crime, but excessive when the only “crime” is a failure to contribute $100 to the public fisc.

A second problem with these fees, even for those who can marginally afford them, is that they can tip poor offenders over the brink. Among the poor, criminal convictions and incarceration create very dark economic futures. There has been some important literature showing that incarceration – and particularly the poverty that follows when offenders leave jail – damages offender communities and leads to further crimes spikes. This in turn leads to more incarceration. Ex-offenders are already saddled with a large bundle of economic and social sanctions, often termed collateral punishment or civil disabilities. They have trouble getting jobs, housing, licenses, and other things essential to earning a living. Earning a living, in turn, is typically a precondition for staying out of trouble. To the degree that these fees make economic survival more difficult, they are counterproductive: they produce crime.

This is not a bleeding heart versus tough love issue. It is a matter of pragmatism. Bernie Ebbers should share the costs of his trial and punishment if he has some cash lying about. But while there may be moral arguments for dunning the average John Doe, practical considerations suggest we shouldn’t.


Straw Men In Advertising

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I recently noticed that Rite Aid’s prescription bag sports the following headline: “One in two women dies from heart disease. One drugstore is taking a stand.” What is Rite Aid suggesting? Have CVS, Walgreens and Osco gone soft on heart disease? Do they condone the illness? It reminds me a bit of Outback’s flummoxing motto: “No Rules, Just Right.” Just what are the regulatory structures handcuffing the eager steak lover? What does a fellow have to do to get a Porterhouse over at Ruth’s Chris?

I’m waiting to see what straw men will be identified next. Will Southwest Airlines boast that their cargo holds are mold-free? Will we learn that Crest does not cause teeth to turn indigo? It’s time to have a talk with the marketing folks here at Alabama Law. I’m going to suggest that we stand up against irrational jury verdicts. Take that, Harvard!