Shopping at the AALS Meat Market

Since I’m on the appointments committee this year, I will be enjoying the ritual this Friday and Saturday of engaging in a marathon of interviews with prospective law professors. Since I bet more than a few candidates have done some reconnaissance on GW’s appointments committee, they might be reading this blog. The secret password for getting a callback is “concurring.” Just kidding, of course. . .

For candidates who want some advice on surviving the event, we have several posts here at Concurring Opinions that might be of use, including one of my own. I don’t have much to add to what has already been said regarding advice. What’s so odd about the law professor hiring process is that it seems to be shrouded in mystery when you’re on the market, yet when you’re on the other side, so many things that were mysterious seem obvious.

Anyway, I’m excited about the group of candidates GW’s committee is interviewing later this week. We’ve got dozens of interviews lined up in a row, so I sure hope our candidates are interesting. At Concurring Opinions, we have a number of law professor wannabe readers, and to all of you who will be at the AALS conference this week, best of luck!


Corporate Law “Reform” in Multiple Dimensions

In an earlier post, I discussed the U.S. Chamber of Commerce’s foray into the growing conflict over the corporate internal affairs doctrine and whether that doctrine rises to the level of a constitutional imperative. Of course, the Chamber’s efforts in this area are but one small piece of a much larger overall strategy in addressing the production and content of American corporate law. In an article in Sunday’s New York Times, other pieces of that strategy now have become apparent.

The Chamber and others reportedly will launch a campaign following the election in which they may seek to scale back requirements imposed under the Sarbanes-Oxley Act, limit liability of accounting firms, make it harder for prosecutors to bring cases against individuals and firms, limit what they view as overzealous state-level enforcement, eliminate the private right of action under Rule 10b-5, and require some investor claims to be arbitrated. According to the article, they intend to achieve most of these objectives though agency action rather than resorting to legislation.

Wow. The “post-post-Enron” backlash cometh. . . .

We will have to see how all of this plays out, but I will offer three tentative impressions.

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Further Studies of Bilateral Free Trade Agreements Needed

As Larry Helfer writes, the United States has “regime shifted” in international trade, moving from the multilateral, global negotiations in the WTO, where liberalizing trade has stalled, to bilateral or regional agreements. These agreements have received insufficient attention.

In a recent paper written as part of a symposium in honor of Margaret Jane Radin, I offer one example of how we might approach such studies. In the paper, “Exporting DMCA Lockouts,” I compare anti-circumvention provisions in all of the post-DMCA FTAs. To do this, I ran dozens of blacklines, comparing those provisions in various FTAs with each other. This comparative approach revealed a significant amount about the negotiating position of the United States, viz., what aspects of these provisions on which the U.S. would be flexible. Such an approach provides information not only for other potential FTA counterparties, but also demonstrates the extent of our commitment to largely not budge from very strong anti-circumvention rules.

The amount of material for future scholarship in such an approach is quite large. Many aspects of human endeavors are affected by these FTAs–which bind not only our trading partners, but ourselves. Thus, there is a large need for academic inquiry into what these FTAs require.

Here’s my abstract for the paper, which can be downloaded here.

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Xoxohth, Civility, and Prestige: Part I

xoxo.jpgXoxohth claims to be the “most prestigious law school admissions discussion board in the world.” According to its marketing materials, it controls 70% of the online “market” for “higher education and career discussion”, with around 6000 posts a day on various topics. One of its founders reports that the site receives 350,000 to 500,000 unique visitors every month, making it significantly more trafficked than any other law blog, with the exception of Volokh. (By comparison, we get 60-70K unique hits a month.)


Among many legal scholars and administrators, there is a shared impression that discussion at XO is overrun by sexist, racist, anti-semitic, and just plain foolish talk. The well-known Leiter-XO engagement (see here) is just one example, but it isn’t alone. Based on correspondence, I have learned that multiple law school deans and assistant deans have dealt with the Board when trying to mediate online disputes involving their school’s students. XO has been threatened with legal action (at least twice) involving alleged defamation on the board, although the site is not, to my knowledge, involved in pending litigation. Some wish the entire XO discussion board was a hoax (although others think it may be providing a public service) and some, well, some are mad as hell:

If this is what other lawyers are going to be like, I want out. They make us all look like utter a[*******]. People should avoid law school because it sucks, not because of these jerks.

I’ve written a bit about the Board before, in the context of a US News citation dispute, and since then, I’ve been in contact with one of the Board’s administrators, Anthony Ciolli, a 3L at Penn Law. I think the board is pretty fascinating, primarily because its anonymity enables, and its format records, discussions among rising lawyers that are frank and heterodox (in legal culture) with respect to race, gender relations, and professional development. It isn’t the only forum for such discussions, but it may be the largest.

In subsequent posts, I will be exploring three basic questions about XO.

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A Global Financial Regulator?

Barney Frank, who will likely take over the House Financial Services Committee if the Democratics win next week, has this to say to the Financial Times about regulatory cooperation:

‘Doesn’t that sound like fun,’ Mr Frank said . . . ‘Joint action is theoretically [good] but what does that mean? In American baseball, if the runner and the ball arrive at the base at the same time, the tie goes to the fielder. Who breaks a tie if there is a disagreement over policy between the SEC and FSA?’

Asked if a supra-national regulator would be needed, he told the Financial Times: ‘I don’t know. At this point that’s something to look into.’

Those are some scary words for folks who are already worried about the federalization of corporate law. About SOX itself, Frank said:

[T]he idea that Sarbox could be more widely applied abroad was “not going to happen” because it was being watered down in the US.

Business and financial leaders in Europe continue to fret about the possibility that Sarbox could find its way to the UK and elsewhere through the back door, such as if a stock exchange in the US acquired one in the UK.

Asked if Europeans were justified of such concerns, Mr Frank said: “It’s not going any further. Six months from now it will be less of a burden for companies than it is today.” His view reflects a belief in Washington that Sarbox should not be changed through Congress.

Instead, the two regulators responsible for overseeing how it is implemented – the SEC and Public Company Accounting Oversight Board, the accounting watchdog – should clarify how sections of the law should be implemented.


Columbia’s Center for Contract and Economic Organization

Bob Scott, freshly arrived at Columbia Law, and Patrick Bolton, of the University’s Business School, have organized a new Center on Economics and Contract Law. From the description:

The Center for Contract and Economic Organization was created to exploit the synergies between the University’s leading scholars in contract theory and the economics of information and the faculty at the Law School, who are themselves among the nation’s most prominent legal scholars in the law and economics of contracts, commercial transactions and business organizations. The singular focus that links these various scholars is the study of the mechanisms of contracting both inside and outside the firm: Why do economic actors write the contracts that they do? How are these choices affected by variations in economic organization? And, how can (and do) lawyers (and the law) facilitate efforts to develop more efficient mechanisms for contract and transactional design? While several other universities have centers that focus more specifically on corporate structure and governance, the Center is both unique and uniquely placed to make major contributions to existing knowledge.

Collaborations among scholars at the Center (including visiting fellows) not only advances primary work in contract theory but supports empirical study of existing institutions and contracting behaviors. A central focus of the Center is the integration of the work of theorists from both law and economics. The goal is twofold: to develop richer theories that incorporate a more realistic conception of legal institutions and of the observed behavior of economic actors, and to use these new frameworks to analyze and critique existing legal and business practices. In brief, the Center supports scholarly collaborations in law, business and economics for the purpose of better understanding (and improving) real world transactions and institutions.

In service of these goals, the Center sponsors a number of continuing initiatives. It supports visiting fellows from each of the major disciplines for research sabbaticals lasting from several weeks to as long as a semester in duration. The Center sponsors several major conferences–an annual interdisciplinary academic conference as well as occasional conferences that engage both academic and professional participants. There is also a continuing workshop in which scholars from around the University evaluate and critique work-in-progress presented by leading academics. In future years, interdisciplinary colloquia will focus as well on the work of students interested in sustained scholarly research and collaboration with Center faculty. Ultimately, the Center plans to coordinate joint degree programs that specialize in the study of contract and organization theory.[emphasis added]

Great stuff!


William of Ockham Goes to Commercial Law Class

Ockham.jpgA lot of legal argument consists of mastering the reasons for and against various recurring dualisms in the law. For example, there is the well-worn dichotomy between rules and standards. Rules provide ex ante certainty and easy resolution of disputes ex post. Standards reduce the incentives for parties to engage in undesirable but rule-skirting behavior ex ante and provide greater substantive fairness ex post. Another example is substance vs. procedure. For example, in administrative or corporate law should judges scrutinize the substance of the decisions that were made, or should they confine themselves to looking only at the procedures used to reach the decision?

A key to understanding the U.C.C., and with it commercial law, is another distinction that students have a harder time wrapping their minds around. I call it the divide between realism and nominalism. During the middle ages scholastic philosophers debated whether or not universals had actual existence independent of any particular instance of the universal, or whether ultimately all that existed was the particulars themselves. The U.C.C. makes a lot more sense, I believe, once you recognize that it in so far as it is possible, it is aggressively committed to nominalism.

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Academics & Search Engines

To balance what I’ve just written on politics & search, let me excerpt an article considerably more sympathetic to the “manipulation of results” enterprise:

Let’s say you’re a law professor who is trying to build a reputation as an expert on affirmative action. In the past, you’d build that reputation by publishing articles in various high-profile publications, or journals with scholarly credentials. Many of those articles would show up in a Google search using the key words “affirmative action,” of course, but they’d be scattered all over the results. Because Google considers links to be a kind of vote endorsing the content of a given page, if you created a specific page called “affirmative action” — where your various articles and thoughts were collected — and encouraged others to link to that page, you could very quickly “own” affirmative action in Google. (Right now, none of the top results are associated with an individual, and most are intended as neutral, dictionary-style definitions and discussions. But that needn’t be the case.) And of course, once your page made it to the Top 10, positive feedback would be likely to propel your page higher in the rankings, as more people linked to the page, having found it originally via Google.


This strategy happens to be old news to the bottom-feeders of the digital world: the spam artists who have long hacked the Google database to ensure that their sites rank highly when people search for “sex” and “blackjack” and “cheap Canadian meds.” But just because the spammers got there first doesn’t mean that Google-centric positioning cheapens the work of intellectuals. The Nation and Harper’s exploit the very same postal system that the junk mail impresarios use, after all.


[It may be] inevitable that intellectuals who are interested in speaking to a wider audience will orient their work around Google’s rising influence. [F]or the mainstream understanding of complex issues, Google (and Wikipedia, whose entries often rank near the top of Google searches) are quickly becoming central authorities.

I’m a bit less optimistic about this development than Johnson is, if only because I’ve long worried about unintended consequences of ranking systems. But I may just be expressing an academic prejudice against populist editing. And I must say that sites like this, by Vernellia R. Randall, are a great public service that likely deserve to be the top hit for a Google search for “race and health.”

Political Google-Bombing

As the midterms approach, yet another tiresome tactic is polluting the information ecosystem: the manipulation of search engine results to paint an unflattering picture of political opponents. Generally called “Googlebombing,” I think this development is only good for one reason: it will call people’s attention to the politics of search engines as all-purpose information finders.

Search engines can suppress controversy, and at first glance the tactics of the “Google Bombers” may seem an admirable effort to bring salience to oft-overlooked stories:

If things go as planned for liberal bloggers in the next few weeks, searching Google for “Jon Kyl,” the Republican senator from Arizona now running for re-election, will produce high among the returns a link to an April 13 article from The Phoenix New Times, an alternative weekly. Mr. Kyl “has spent his time in Washington kowtowing to the Bush administration and the radical right,” the article suggests, “very often to the detriment of Arizonans.”

But such efforts ignore the value of organic search results untainted by the classic forces of power and profit. I don’t mind if paid results are determined by who has the most money or best way to manipulate the system, but organic results at a general purpose search engine are held out to be an accurate account of what is the case. A search for Jon Kyl should, ideally, produce among the highly ranked organic results some relatively balanced portrayals that give voters a good sense of what he stands for. It is deeply troubling to think that a cabal of his opponents (or supporters) could crowd such results off the top pages in order to advance their agenda. The manipulators also risk provoking search engines into downranking political sites, or at least those heavily interlinked ones which (look like they) are trying to artificially affect the results.

The groups profiled in the article should also know that they can easily be outmatched in the production of digital astroturf. Yet one of their ringleaders sanguinely “hopes[more] political campaigns would take up the tactic, which he called ‘search engine optimization,’ as a standard part of their arsenal.” I admit that search engine optimization is a very complex topic, but it often boils down to the commodification of salience: if you give enough money to the SEO, they try to get you ranked high in response to certain queries. Given the already overwhelming influence of the “dollar primary,” the last thing we need to do is to extend that dynamic into the world of online politics.

PS: The speakers at this panel had some interesting insights on the topic…more on that later. I can already sense some people will think I’m mistaking Google for Wikipedia. But one can spot an unhealthy dynamic without necessarily committing to a particular way of stopping it. I suppose my biggest beef here is with the sense that an “arms race” of google-bombing is inevitable/desirable.


Race, Sports, and Hustle

Critical race analysis of sports law is a deep and rich scholarly topic. (See here for a nice example). It came to mind when a friend forwarded me this list, from the Major League Baseball website, which seeks to recognize the “Look Again Player of the Year“. As sponsor Joe Buck explains:

Behind every great team on the diamond, lurking in the shadow of baseball superstars, live the role players who sacrifice for their team in often unrecognized effort.

In other words, who are the overlooked hustle guys? The fan favorites. The gritty, wants-it-more, working-man’s players.

Notice anything interesting about the list?

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