Category: Administrative Announcements


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!


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!


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.



Light Blogging This Week

I’ll be blogging lightly this week, if at all, as I work to finish two projects with near term deadlines. A litte more near term, perhaps, now that I’ve read Christine’s window post.

In the meantime, our readers may be interested to read this new Linda Beale post on Prawfs, and subsequent reader comments, that seem to be grappling with the question: “must blog posts be short and collegial to be good?”


Good Morning!

First of all, thanks to Dan, Dave & Kaimi for inviting me to visit for a short while. I gave Dan a picture that featured my whole family (I’m the female in the green shirt) because Kate Litvak once told me that I should rent out my adorable children to political candidates. The mid-term elections are coming up, so would-be Senators or Govs (no Reps, please) can feel free to explore the possibilities. Have seersucker short pants, will travel.

My blog home is Conglomerate, and I post over there on things corporate and things not-so corporate with Gordon Smith and Vic Fleischer. This week, we have Lisa Fairfax taking our blog for a spin, so go over and check it out. The main corporate topic that has my attention this month is the Enron trial in Houston, which is just starting Week #2 this morning. I will keep all of my Enron thoughts over at the Glom, but as you can see from last week (here, here and here), my thoughts runneth over. That being said, I’m looking forward to stretching my legs over here and blogging a little off-topic for a change. I teach a couple of classes today at my day job at Marquette, but I’ll be back to chat a little later.


Introducing Guest Blogger Christine Hurt

christine-hurt1a.jpgWe are delighted that Christine Hurt will be joining us as a guest for the next few weeks. Christine is a regular blogger at the Conglomerate, a terrific blog about law and business. She’s currently a law professor at Marquette Law School, and she’ll be moving this fall to teach at the University of Illinois Law School.

Christine teaches Business Associations, Mergers & Acquisitions, Corporate Finance, Torts, and a seminar on the Ethics of Business.

Prior to becoming a law professor, Christine practiced corporate law in Houston, Texas at Baker Botts, LLP and Skadden, Arps, Slate, Meagher & Flom, LLP. She also served as the Director of Legal Research and Writing at the University of Houston Law Center for four years.

Christine has written a number of articles, including: Moral Hazard and the Initial Public Offering, 25 Cardozo L. Rev. 711 (2005); Counselor, Gatekeeper, Shareholder, Thief: Why Attorneys Who Invest in Their Clients in a Post-Enron World Are ‘Selling Out,’ Not ‘Buying In, 64 Ohio St. L.J. 897 (2005); and Network Effects and Legal Citation: How Antitrust Theory Predicts Who Will Build a Better Bluebook Mousetrap in the Age of Electronic Mice, 87 Iowa L. Rev. 1257 (2002).

She has two new articles which will be published shortly: Regulating Public Morals and Private Markets: Online Securities Trading, Internet Gambling and the Speculation Paradox, forthcoming B.U. L. Rev. (2005); What Google Can’t Tell Us About Internet Auctions (And What It Can), forthcoming U. Toledo L. Rev.

Please give Christine a warm welcome.



What do you get when you combine an astounding 33 female law professors and a blog? You get Feminist Law Professors, a meta-group blog that looks to be a must-read. The blog looks like it is mostly an Ann Bartow creation, but the sidebar credits include a number of very interesting names. Welcome to the blogosphere, FLP!


Introducing Guest Blogger Dan Filler

dan-filler2.bmpWe’re delighted that Dan Filler will be guest blogging here over the next few weeks.

Dan is a Professor of Law at the University of Alabama, where he teaches courses in criminal law and directs a capital defense clinic. He received his A.B. from Brown University and his J.D. from NYU. Before entering teaching he clerked for Judge J. Dickson Phillips on the Fourth Circuit, practiced with Debevoise & Plimpton, and served as a public defender with the Defender Association of Philadelphia and the Bronx Defenders. His newest article, The New Rehabilitation, is forthcoming in 91 Iowa L. Rev. __ (2006). His other publications include Silence and the Racial Dimension of Megan’s Law, 89 Iowa L. Rev. 1535 (2004), Terrorism, Panic and Pedophilia, 10 Virginia Journal of Social Policy & the Law 345 (2003), From Law to Content in the New Media Marketplace, 90 Cal. L. Rev. 1739 (2002), and Making the Case for Megan’s Law: A Study in Legislative Rhetoric, 76 Indiana L.J. 315 (2001).

We greatly look forward to Dan’s visit.


Great To Be Here

Thank you to Dan, Dave, and the rest of the CO Gang for inviting me to make a guest appearance here. I suspect I’ll spend much of my first week commenting on the Alito hearing, which connects nicely to my scholarly and teaching interests, but whatever the nature of our discussion, I am very much looking forward to taking part in this virtual community of legal reflection.

In the weeks ahead I will try to take my responsibilities here seriously, knowing that CO’s reputation for analysis and insight is both important and the product of many individuals’ hard work. I fully expect also to have some fun, which should be easy given the wit and good humor of my co-bloggers.

Incidentally, the youngster in the photo with me is my son Steven, who will be 4 next month. Laura and I also have another son, Michael Jr., who is 5.