Monthly Archive: July 2008


Should (legal) academics use Facebook? (Part 527 of a continuing series.)

True, the “should academics use Facebook?” article is fast becoming passe. (See also: “should academics blog?”, “should academics use MySpace?”, and “should academics navel-gaze?”) However, a recent post on the HNN (History News Network) is a particularly good example of the species. In a discussion of whether historians should use Facebook, historian Jesse Lemisch sets out some helpful analysis:

Why should historians be on Facebook? I think it has the potential to be an electronic version of the halls of the AHA: a place of lively and utterly informal talk about what historians are doing and saying, and what’s going on in their lives. Just as Facebook threatens to replace college reunions, it can constitute something like a professional meeting, between professional meetings. (Note that “something like”: I have no desire with this proposal to replace professional meetings, but rather to extend them.)

I value the papers given at the AHA and OAH, but I generally come away from these meetings as well educated by conversations in the halls, and while prowling the book exhibits. Somebody has mounted a stupid and uncomprehending attack on me in a book whose galleys are available at booth 432. And there he is, at booth 927, hiding, but available for animated conversation. Here’s somebody you haven’t seen in years, and, thank goodness, she has a name badge. And, you find, she is doing fascinating work. Here is somebody who responds to regards to the spouse with a facial expression that tells you immediately that your information is no longer accurate. And here are historians of all stripes, and information about new sources and new work and controversies not yet erupted. And so on: readers of HNN know what happens in the halls of the AHA. For better or worse, all these things can happen on Facebook.

This sounds like an admirable enough goal. Why not chat about books, vacations, restaurants, and whatever else on Facebook?

There are interesting parallels to law. For instance, of conversations I’ve had at AALS, I’d say maybe a quarter of them have been purely law conversations of the type it would be hard to have online. But the majority have been general-topic chats of one kind or another. Ideally, Facebook and sites like it can facilitate the broad, cocktail-party mingling that helps keep law professors — a notoriously socially awkward group — connected and in general contact with one another. In theory, this could be good. (On the other hand, it’s awfully tricky to gossip on a public forum.) Right? What’s not to like about it?

I would write a lot more about how law professors could use Facebook, but duty calls. II have an urgent appointment to attack Nate’s zombie with my vampire before my daily attacks expire. Then, perhaps after a few games of Word Twist, I’ll be back with Part 2.


The History of Contract Law and Bibliographic Angst

indenture.jpgMy research assistant recently asked me if I could suggest a good book to read on the history of contract law. I had him for contracts last spring, I talk a fair amount about history in my class, and he’s interested (or at least is pretending to be to make me feel better). I found myself a bit tongue tied. Were he English, the answer to the question would be easy enough. Read P.S. Atiyah, The Rise and Fall of Freedom of Contract, A.W.B. Simpson, A History of the Common Law of Contract, or David Ibbetson, A Historical Introduction to the Law of Obligations. Indeed, given that the history of American contract law is in part at least the history of English contract law, I mentioned all of these books but then dismissed them. They aren’t really what he was looking for. He wants something a bit more recent and American with a bit less emphasis on the medieval writs and the seventeenth century revolution in assumpsit. So what to suggest?

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Emory Law Journal 57:4 (2008)


Emory Law Journal, 57:4 (2008)


Thomas A. Piraino, Jr., The Antitrust Analysis of Joint Ventures after the Supreme Court’s Daugher Decision, 57 EMORY L.J. 735 (2008).

Frederick Tung, The New Death of Contract: Creeping Corporate Fiduciary Duties for Creditors, 57 EMORY L.J. 809 (2008).

DEBATE: Saving the World with Corporate Law?

Kent Greenfield, Proposition: Saving the World with Corporate Law, 57 EMORY L.J. 948 (2008).

D. Gordon Smith, Response: The Dystopian Potential of Corporate Law, 57 EMORY L.J. 985 (2008).


Jordon T. Stringer, Criminalizing Voter Suppression: The Necessity of Restoring Legitimacy in Federal Elections and Reversing Disillusionment in Minority Communities, 57 EMORY L.J. 1011 (2008).

Elisabeth Bassett, Reform Through Exposure, 57 EMORY L.J. 1049 (2008).


Criminalizing Risky Sexual Behavior: Some More Evidence

The cornerstone of the argument against treating unprotected sex as a crime is that the frame is simply inapposite. Yes, it’s logical; one can easily fit sexual behavior with an HIV risk into the same syllogisms as brawling with a knife, but as I’m sure old OWH would say at just this point, the sex life of law has not been logic but experience. At the same time, the argument that criminal law just doesn’t fit is hard to frame, or prove, empirically. In this post, I thought I would briefly summarize the empirical evidence on two narrower points: that criminalization of risky sexual behavior does not protect public health, and may hurt it.

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Pro Bono? Cui Bono?

Some large law firms require all their attorneys to do a certain amount of pro bono work. But a better approach might be to require the attorneys either to do a certain number of pro bono hours or to donate a certain amount of money to public interest law firms. (The law firm and lawyer could together donate the value of the lawyer’s time and the amount the firm would have spent on support staff, copying, tech support, and so forth had they taken on the project.) And perhaps an even better approach would be for law firms to do away with pro bono work altogether and just donate money. So why doesn’t this happen? Why services instead of money?

After the jump, an explanation of why money might be better, and some speculation about why law firms donate services.

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Thanks and Goodbye

Today is my last day guest blogging, so I want to thank Dan and the rest of the staff here at Concurring Opinions for allowing me to spend the last month here. Let me end with one last post on empirical work and the law. Andrew Gelman makes the nice point here about the difference in empirical work in political science and psychology — psychologists run experiments while political scientists analyze data that already exists. For the most part, legal empiricists are far more like political scientists than psychologists. True legal experiments are few and far between. Of course, this fact does not prevent good work from being done. As an example of one of the most interesting and important pieces of work on the life of real lawyers, all law students, prospective law students, and law professors should be following Bill Henderson’s discussion of the bimodal nature of lawyer salaries.


SEC on the “Performance” of Standards

Green Eyeshade.jpg

Is it useful to ask which performs better, the metric system or the imperial system of measurement? Are meters better than miles? Does one system offer more refined tools to achieve precise results? How useful is it to ask, which performs better, German or Russian? Must it depend on purpose, such as for philosophy or literature? The SEC proposes to ask a version of such comparative performance questions about international accounting versus US accounting at a hastily-called roundtable next Monday.

The SEC’s purpose in holding the roundtable is vague, with its Chairman, Chris Cox, saying it is intended to give the SEC “valuable insights” about how international versus US accounting “performed” amid current market “turmoil” and “pressures.” The roundtable occurs during intense, ongoing debate within the US about whether and on what terms the US should switch from US accounting to international accounting. Chairman Cox and the SEC make it very clear that they favor moving to international standards as rapidly as possible, while investors and others have expressed strong concern about this.

The calling of this roundtable and this framing of the discussion are therefore both interesting and important. Accounting standards are not usually evaluated in terms of their “performance.” They are certainly not evaluated with reference to a particular market environment, such as one in turmoil or under pressure. Accounting standards usually are evaluated in terms of some ultimate purpose, chiefly whether they are reasonably calculated faithfully to capture and fairly report on underlying economic activity. In the US, moreover, that assessment is made according to how useful resulting applications are to investor decision-making.

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Shake Down Entertainment, Ltd.

That’s the name of a corporation (or LLC?) created by members of the bizarre Baltimore gang profiled in this new article from the Washington Monthly. As reporter Kevin Carey writes, the incorporation helped to justify a RICO charge, which in turn led to the defendants adopting white supremacist arguments about the invalidity of the 14th Amendment as a defense to their murder charges. U.S. District Judge Davis didn’t adopt defendants’ view of the world. It’s a good lesson for potential crimelords in our audience: there’s nothing wrong with naming your gang corporation “Sweetness and Light Inc.” Points, incidentally, to the reader who comes up with additional examples of badly chosen corporate names.

The story reminds me a bit of this post I wrote on dockets and odd legal theories floating around. It seems that just as there is a world of undernews, there is a world of underlaw. Underlaw is that set of odd legal theories, strange filings, and misconstrued assertions of authority that laypeople pass to each other on the web and especially (as Carey writes) in prison cells. Although lawyers and judges scoff at these theories when they appear in Court, they are affecting the lives of those that believe them in ways we can only begin to imagine.

(H/T, with good analysis, Scott D.)


Fourth Annual Conglomerate Junior Scholars Workshop

Head on over to the ‘Glom, which is hosting the Fourth Annual Junior Scholars Workshop. One paper this week is about governance of VC-backed firms, and the lineup of commentators is terrific. I’ll be dropping by next week, to talk about James Park’s paper on materiality.

The JSW is always a substantive, interesting, conference, and one of the few “general interest” corporate law forums out there. Congratulations to Christine Hurt and her fellow bloggers, who have once put together a great event.


When To Turn Down a Tenured Law Professorship Job Offer

obama.jpgThere’s a very interesting NY Times article about Barack Obama’s time teaching law at University of Chicago Law School. From the article:

Soon after [losing in the primary for a seat in the U.S. House of Representatives], the faculty saw an opening and made him its best offer yet: Tenure upon hiring. A handsome salary, more than the $60,000 he was making in the State Senate or the $60,000 he earned teaching part time. A job for Michelle Obama directing the legal clinic.

Your political career is dead, Daniel Fischel, then the dean, said he told Mr. Obama, gently. Mr. Obama turned the offer down. Two years later, he decided to run for the Senate. He canceled his course load and has not taught since.

Another interesting fact:

Mr. Obama arrived at the law school in 1991 thanks to Michael W. McConnell, a conservative scholar who is now a federal appellate judge. As president of The Harvard Law Review, Mr. Obama had impressed Mr. McConnell with editing suggestions on an article; on little more than that, the law school gave him a fellowship, which amounted to an office and a computer, which he used to write his memoir, “Dreams From My Father.”

The article also has posted some of Obama’s class materials.