Author: Adam Benforado


Are They Law Students? Or Legal Education Customers?

In case you missed it, there is an interesting debate in the New York Times today over whether business schools ought to treat enrollees as “customers” or “students.” The back and forth was prompted by a recent article in the Chicago Tribune and, in the exchange, Stephen Joel Trachtenberg (president emeritus, George Washington), Edward A. Snyder (dean, University of Chicago Booth School of Business), David Bejou (dean, Elizabeth City State University School of Business), Richard Vedder (professor of economics, Ohio State University), and Mark C. Taylor (professor of religion, Columbia University) make some provocative points.

Although it is not always made so explicit, it seems to me that many law schools are struggling with the same concerns. How much control should law students have over the exact trajectories of their educations? Should there be more mandatory courses or more electives? How much time should professors spend on their teaching versus their scholarship? Should students be able to dictate (or at least have input on) how professors teach, what they teach, and when they teach? Should students be permitted to attend faculty meetings?

While the comparison seems natural, it is also worth thinking about how the M.B.A. context might potentially be different from the J.D. context.

Perhaps the New York Times should sponsor another debate?


The Strange World Of John Mackey

John Mackey, CEO of Whole Foods, is an intriguing character and, in the past, I’ve used him (and the company he co-founded) to spark discussion in my Business Organizations class on a range of topics including stakeholder interests (Whole Foods seven “core values” are a nice jumping off point) and corporate compensation (no one at Whole Foods is permitted to earn, as a salary, more than 19 times what the average employee makes), among others.

Thus, I was excited to see a profile of Mackey in the most recent copy of the New Yorker. The article drags at points, but for corporate law scholars I think it’s worth a skim through. In some ways, Mackey is a one-of-a-kind CEO, but his successes, failures, dreams, and theories may be indicative of broader dynamics.


“Be Simon Cowell for a Day!” and Other Catchy New Court System Slogans . . .

I am looking forward to jury service in January and, thus, was not surprised that commenters on my last post expressed a similar level of interest/excitement/desire with respect to jury service.

Clearly, part of my positive feelings about serving has to do with my good fortune at having a job that allows me the freedom to take off a day or two without serious consequences. Many people do not have this luxury and the lowly compensation offered by the court system is simply not enough to make up for missed days of work.

That said, I’m still surprised at the lengths people go to get out of jury service and my sense of general negative sentiments related to serving.

The reason for my wonderment is that Americans seem to love “jury panels” and judging. American Idol. Top Chef. Survivor. America’s Next Top Model. So You Think You Can Dance.

How can we be so willing to spend hours each night watching “reality” panels condemn or reward people and texting in our “votes” and so unwilling to participate in real-life panels?

You might think it was the subject matter, but we love legal dramas. Law and Order. Judge Judy. The Practice. I could go on . . .

Maybe court systems around the country should spend less time lecturing people about how jury service is a duty owed by each citizen and more time emphasizing that jury service can actually be interesting and enjoyable.


Duty Calls

For the first time since becoming a law professor, I’ve been called for jury duty.

For trial attorneys out there, I’m curious: would you rather have a law professor on a jury or a practicing litigator?

Dave blogged last year about his day of jury service in Philadelphia’s First District, but his panel never actually saw a judge.

Dan had a nice post earlier this year on a full-time law professor who acted as a jury foreperson and was then accused by the defendant of improperly influencing his fellow jurors.

My sense is that if you are worried about domination by a single individual, you’d be best to steer clear of professors of any type. For better or for worse, many of us academics like to hear ourselves speak, fancy ourselves rather gifted at “boiling things down” for others, and are experts at twisting arms and delivering subtle barbs in small groups (yes, it turns out that faculty meetings do train you for something other than competing on “Survivor”).

For law professors out there: have you ever served on a jury while a professor? If so, were you the foreperson?


Cold Cash for Coldplay?

Dear Chris Martin,

First off, hello to Gwyneth and Apple; please give them my best.

Okay, let’s get down to business. I was just watching a clip of Alicia Keys performing Empire State of Mind on the Colbert Report (with Colbert filling in, rather ably, for Jay-Z) and I must say that the chorus of the new song sounds quite a lot like your 2002 hit The Scientist. In fact, if my ear is not mistaken, it’s even in the same key.

Now, I’m not suggesting that you sue her. I just want to throw out as a little reminder that George Harrison was docked $400,000 because My Sweet Lord (“Hare Krishna”) echoed the Chiffons’ single He’s So Fine (“Doo lang, doo lang, doo lang”) from seven years earlier. And separate juries found that the Bee Gees’ How Deep Is Your Love? was too indebted to Ronald Selle’s Let it End, and Morris Albert’s Feelings copied Louis Gaste’s Pour Toi. I could go on.

The point is, there’s some money here just sitting on the table and I say WE grab it. Settlement is the way to go (because those pesky appellate judges can overturn things, as Mr. Selle found out). The time to act is now. My fee is totally reasonable.

I mean, think about it this way: this is a golden opportunity to make up for that undisclosed settlement you had to pay out to guitarist Joe Satriani last September after he sued you because the title track from Viva La Vida sounds, well, quite a lot like his If I Could Fly (see here) . . .

Even-Steven. Am I right?

Your pal,



Exploiting Familial Ties

At 5:44 AM on Sunday, I received a lengthy email from a stranger in which the author recounted his life history, apologized for various grammatical and spelling mistakes in the note, and then, in a shocking surprise, did NOT ask me to transfer money to an offshore account in order to secure my share of a fortune locked up by despotic rulers in Africa.

No, the author (EI) did not want to defraud me; he wanted to tell me about the “fraud” that he’d experienced.

EI had come across an article that I wrote in the Philadelphia Inquirer back in August about the need for a consumer financial protection agency and he thought I would be interested in his interactions with Discover.

EI is from the fading generation of Americans who grew up on the notion that a person never bought anything that they did not have the cash for. However, he recently found out that his daughter had run up $2300 on her credit card, which with interest and penalties had ballooned to $6500. EI was very worried about his daughter being “behind the curve all the rest of her life” and so he negotiated with Discover to pay cash out of his own pocket to settle the matter with the company. EI is not a rich man, but he wanted to make sure “they would never bother [his] daughter again.”

So what happened?

The very next month, Discover sent his daughter a new credit card application.

Ugh. I’d love to think that this story is extremely unusual, but it’s not. EI’s experience reveals a highly effective and proven strategy for the credit card industry: think of your customer base not as isolated “individuals” but as “units.” The ideal unit is composed of an irresponsible and cash-strapped member of the credit generation and an older relative who is skeptical of debt, cares about the younger relation (and the family reputation), and has savings to dip into. The first half of the unit charges and charges and charges; the second half pays and pays and pays.

Earlier this month, the House of Representatives passed the Wall Street Reform and Consumer Protection Act and the pressure is now on the Senate, where draft legislation is currently before the Senate Banking Committee (the bill will probably come to the Senate floor in February or March). As a result, there is going to be a push by the industry in the next few months to portray the battle as one over personal responsibility. We are going to hear a lot about “greedy” Americans living beyond their means. As the din grows louder, however, let’s not forget about all of the EIs out there — the frugal, responsible Americans who help the ones they love when they fall on hard times – and the companies that exploit them.


The Benefits of Cultural Funding

In a reversal of the Bush years and later Clinton years, President Barack Obama has shown a firm commitment to the arts as a societal good.

He has brought musicians of all sorts to the White House for performances and educational sessions, as well as backing $100 million in new cultural funding. In addition, the National Endowments for the Arts and Humanities have received their largest allocations of federal money in 16 years.

Jim Leach, the former Iowa Republican representative and head of the humanities endowment has championed arts spending by arguing that public money spent on the arts and humanities helps “to bring perspective to issues of the day.” However, a new study from Norway of nearly 50,000 people suggests that cultural engagement may have a more direct positive impact on members of the public.

As summarized at ScienceDaily, according to researchers at the Norwegian University of Science and Technology,

[i]f you paint, dance or play a musical instrument—or just enjoy going to the theatre or to concerts—it’s likely that you feel healthier and are less depressed than people who don’t . . . .

. . .

“There is a positive relationship between cultural participation and self-perceived health for both women and men,” says Professor Jostein Holmen, a . . . researcher who presented the findings, which have not yet been published . . . . “For men, there is also a positive relationship between cultural participation and depression, in that there is less depression among men who participate in cultural activities, although this is not true for women.”

In the study, the researchers controlled for socioeconomic status, social capital, chronic illness, and smoking and alcohol use, among other factors.

For lovers of the arts, all of this is promising. Still, the verdict is out on whether Obama will truly be a “culture” president. His administration ran into trouble earlier this year when an official at the arts endowment, Yosi Sergant, encouraged artists to focus their work on assisting Obama’s agenda on health care, education, and the environment. This led the White House to issue guidance to agencies to be firm in not allowing politics to play a part in public grants. (For those who are interested, in a previous op-ed in the Washington Post, I considered the dangers that powerful non-governmental entities—particularly corporations—pose to the independence of art.)

We shall see what 2010 brings.


You Can’t Copyright “Convicted Rapist”

Former South Dakota Representative Ted Alvin Klaudt sent a notice to The Associated Press and a few other news outlets on Monday informing them that he was reserving a common-law copyright for his name and that anyone who used it without his express consent would be on the hook for $500,000.

Two years ago, Klaudt was convicted of second-degree rape for coercing his two teenage foster daughters into a fake “fertility” examination, purportedly to assist them in acting as egg donors.

He got 44 years.

And, oh, yeah, 10 more for witness tampering.

The Associate Press has decided to risk it, despite Klaudt’s warning. As reported in the New York Times:

Laura Malone, associated general counsel for intellectual property at The Associated Press, said names of people, companies and products cannot be protected under copyright law. Names can be protected under trademark law, but only in association with goods or services used in commerce, she said.

“Even if there was a valid trademark, the mere use of the name in a news story is not an infringement of trademark,” Malone said Tuesday.

“There is no legal substance to these claims,” she added.

Well, Mr. Klaudt, it was worth the try . . .


Buy Now! New and Improved Edition!

Say what you will about Aspen, West, and the rest, but the recent rise of the used textbook market (particularly online) has been tough on publishers seeking profit growth and to keep revenues up they have looked for ways to fight back.

One of the main approaches has been to pump out new editions of casebooks more and more frequently.

I have found this frustrating, not only because I would like my students not have to fork over a hundred and fifty bucks for a book unless it is absolutely necessary, but also because it requires constant updating of teaching materials by professors (or their assistants), which takes away from other academic pursuits. Clearly, some of this revision of teaching notes can be beneficial (e.g., learning about new developments in case law), but a lot of it is tedious make-work (e.g., updating page numbers).

I taught my current Business Organizations textbook exactly one time before it was “updated.” When I asked for a list of changes from the publisher so that I didn’t have to do a comparison myself, I was denied, which struck me as odd at the time, but made some sense after I completed the comparison. There wasn’t much different other than an altered thickness and width of the paper and a few changes to cases toward the end of the book.

It all seems like a waste of money, time, and paper.

Is there a better way forward?

Online enrichment tools? Rapidly disintegrating pages? Kindle copies?

If you have an idea, let’s hear it . . . operators at the major legal publishing houses are standing by.


Do Professors Like Anonymous Grading?

No one likes grading (well, . . . almost no one). I’m still a new kid on the block, but I’ve collected enough data points (or, more accurately, I’ve heard enough bellyaching) in my short time in the neighborhood to feel fairly confident in that assertion.

However, if grading must be done, what is the best approach? My impression is that while my students are generally big fans of anonymous assessment, my colleagues at Drexel and elsewhere may not be.

Part of this phenomenon has to do with the realization by many legal academics that blind grading can result in some “unfortunate” outcomes. We have all had the student that we think is bound for great things do poorly on our exam and the deadbeat student get a B+ (or even an A-). That hurts given that potential employers (law firms, judges, and others) use grades as a primary screening tool when deciding between candidates.

That said, I think my discomfort comes from a slightly different place: while acknowledging the strong counters in literary theory and elsewhere, I tend to believe that texts ought not to be separated from their authors. It is authors as much as words that mark our paths through emails, essays, articles, short stories, and exams.

Certainly, knowing the identity of the author can cause distortions in meaning, but so can not knowing the identity of the author.

What’s so fair about denying a student the right to shape the meaning of her words on an exam? And is it true that when there is only a student ID number involved we, the exam graders, forget about authors altogether . . . or is that we make guesses and implicit assumptions about identities and then allow the texts to be indelibly stamped by our imagined authors?

If anything, objectivity and unbiased assessment is far more critical in the legal world outside the classroom (lives, liberties, and billions of dollars are often at stake) and yet anonymous authorship of texts is the exception. I do not mean to suggest that the situations are entirely parallel but it is worth considering the fact that lawyers almost always sign their names to work they submit for assessment, whether it is a motion or amicus brief or a memo to a client. Knowing the identity of the author is important enough to outweigh other concerns.

Is this true with respect to law school exams? I’m not sure, but I do know that approaches like adding a participation component to the final grade don’t really address the problem (although they may go some distance to avoiding the sting of giving a student who has proven himself to be incompetent throughout the semester a B+).