ProfessorBainbridge.com

Books in Brief

Andy Olree, The Choice Principle: The Biblical Case for Legal Toleration -- An argument founded in Evangelical theology for a quasi-libertarian political framework in which sinful choices are not regulated by law except where they victimize others.

Eric Klinenberg, Fighting for Air: The Battle to Control America's Media -- An extended rant against consolidation in the media industry. Plus, some insightful thoughts on the way the new media is challenging traditional media outlets from both the left and right. Worth reading by anybody who cares about the evolution of media.

Andrew Roberts, A History of the English-Speaking Peoples Since 1900 -- It takes a certain amount of chutzpah to write a book that explicitly picks up where Nobel Prize winner Winston Churchill's famous History of the English-Speaking Peoples left off. Roberts is a better historian the Churchill, and a very good writer, but can't match the master's literary skills. Then again, how many others can? In any case, just like Churchill, Roberts has an agenda -- namely, to advance the claim that the English-speaking peoples are the last best hope of mankind. Atlanticist, pro-American, robustly opinionated. A recommended read.

Costco CEO Supports Minimum Wage Boost. But Why?

From the WaPo:

The chief executive of Costco Wholesale, the nation's largest wholesale club, yesterday became the most prominent member of a new organization of business owners and executives pressing Congress to approve an increase in the federal minimum wage.

Jim Sinegal, a maverick entrepreneur who founded Costco in 1983 and has resisted Wall Street pressure to cut wages and benefits for his 130,000 employees, said he signed onto the effort because he thinks a higher minimum wage would be good for the nation's economy as well as its workers.

Nonsense. The Post has completely missed the real story. Costco is (a) playing to the ideological predilictions of its top management, (b) trying to get some favorable publicity in the blue state areas where it does most of its business, and (c) trying to hurt both Walmart and the small businesses with which Costco competes:

From the Seattle Post Intelligencer back in 2004:

Costco Chief Executive Officer Jim Sinegal, 68, is a Democrat who says President Bush's $1.7 trillion in tax cuts unfairly benefit the wealthy. He opposed the Iraq war and supports Sen. John Kerry of Massachusetts for president. And he's the only chief executive of a company in the Standard & Poor's 500 Index to donate money to independent political groups formed to oust Bush, Internal Revenue Service records show. ...

"Wal-Mart is extremely strong in Republican strongholds; they are a red-state retailer," said Amy Bonkoski, an investment adviser at Cleveland-based National City Corp.'s private-client group, which manages about $26 billion, including Wal-Mart and Costco shares.  "Costco is stronger in Democratic states. Costco is a friend to labor. Unions hate Wal-Mart." ...

Costco wouldn't have to raise salaries with Kerry's proposal to increase the minimum wage to $7 an hour, from $5.15 now. It already pays hot-dog vendors as much as $16 an hour, and the lowest wage it pays is $10 an hour.

That's higher than the $9.96 average wage paid at discount stores bearing the Wal-Mart name. ... Wal-Mart has benefited from the president's opposition to raising the minimum wage, since some employees make less than $7 an hour, and from the Republican-controlled Congress' reluctance to make it easier for workers to unionize.

Typically of the MSM, however, the Washington Post made no effort to analyze whether Sinegal was being altruistically or opportunistically. They just assume he must be the good guy, when in fact he's using shareholder money to advance his personal beliefs and at the same time being a ruthless competitor. If you think about it a minute, the real good guys in this scenario are the small business that compete with both Costco and Walmart and that will suffer when the minimum wage hike goes through.

Update: One of the Economist's bloggers thinks both Costco and Walmart will benefit, which strengthens my point that the real good guys are the mom-and-pop businesses that can't afford to pay much more than the current minimum wage:

CEO's who support higher minimum wages are not, as the media often casts them, renegade heros speaking truth to power because their inner moral voice bids them be silent no more.  They are by and large, like Mr Sinegal, the heads of companies that pay well above the minimum wage.  Forcing up the labour costs of their competitors, while simultaneously collecting good PR for "daring" to support a higher minimum, is a terrific business move.  But it is not altruistic, nor does it make him a "maverick".  Costco's biggest competitor, Wal-Mart, also supports a higher minimum wage, and for the same reason.  Wal-Mart's average wage is already above the new minimum; it will cost the company little, while possibly forcing mom-and-pop stores that compete with Wal-Mart out of business.  This seems blindingly obvious to me.  Though I don't expect we'll see "the minimum wage—it's great for Wal-Mart!" in many Democratic campaign commercials.

What?s Wrong with Shareholder Nominations Anyway?

Lisa Fairfax poses that question over at Conglomerate, noting the various reasons HP has offered for ooposing a shareholder proposal "to allow certain shareholders to gain access to the corporation?s proxy in order to nominate up to two directors." This was a fairly frequent topic in the early days of the blog (see the archive for this category), plus the subject of a number of TCS Daily columns over the years, including:

• Does the SEC Know When Enough Is Enough?
• The SEC: From Bad to Worse?

My most complete treatment of the issue of shareholder nominations, however, was A Comment on the SEC Shareholder Access Proposal:

Abstract: The Securities and Exchange Commission (SEC) recently proposed a set of amendments to its proxy rules intended to provide shareholders of public corporations with a limited ability to nominate candidates for a corporation's board of directors and to have their nominee placed on the corporation's own proxy statement and card. This essay reviews the principal features of the proposal and identifies several issues remaining for resolution. The essay concludes that the SEC likely has authority to adopt the proposal, but argues that the costs the rule will impose on corporations outweigh any likely benefits from greater shareholder democracy.

Politicians and Consistency

Glenn Greenwald catches Republican politicians flip-flopping on the scope of Congressonal war powers. When Clinton was bogged down in Somalia, they endorsed expansive Congressional war powers. Now that Bush is bogged down in Iraq, they're emphasizing Presidential power. But so what? Catching politicians talking out of both sides of their mouths is like shooting fish in the proverbial barrel.

Virtually all politicians are shameless flip-floppers; indeed, it seems to be a bona fide job qualification. Consider how Democrats flip-flopped on filibusters of judicial nominations, to take but one example. (See also this list.) Moreover, as John Yoo pointed out in the Pennsylvania Law Review, Bill Clinton took a view of Presidential War Powers nearly as expansive as that of George Bush:

Although on several occasions Congress refused to authorize the use of force, President Clinton argued that he had the sole constitutional power as commander-in-chief to send American servicemen and women into harm's way. While he often signaled that he would welcome congressional support, he also made clear that he would implement his military plans without it. President Clinton further refused to acknowledge that the War Powers Resolution bound his discretion to act. The Clinton administration has rendered the War Powers Resolution a dead letter.

So let's start with the assumption that most politicians on both sides of the aisle will say anything that advances their cause of the moment, without regard to whether it's consistent with positions they've taken earlier. Indeed, most can do so with out so much as a red face.

The only question that really matters is what powers, if any, Congress has to limit the scope of a President's conduct of war. My friend Georgetown University Professor Anthony Arend is a leading expert on national security law. He's blogged that:

... courts have repeatedly said, to quote Justice Jackson in the Steel Seizure Case, that the President "has no monopoly of 'war powers,' '"

He's told the press that:

Congress may lack the power to "micromanage an ongoing conflict" with detailed mandates for deploying forces. However, Arend told TNS, lawmakers could rein in war spending so that the White House "would have no choice but to reduce troops in accordance with that funding reduction."

I take it that Arend would agree with Ann Coulter's observation that:

If Congress doesn't like it, the Constitution gives it two choices: It can cut off funding, or it can impeach the president. Congress controls the purse – it doesn't wage war.

The Republican Congressmen who thought Congress could cut off funding for Clinton's Somalia misadventures were right back then. So are the Democratic (and some Republican, by the way) lawmakers who think they can cut off funding for Bush's Iraqi misadventures.

The Constitutionality of the Marine Corps?

Over at the Volokh Conspiracy, Ilya Somin and Eugene Volokh are blogging about the constitutionality (perhaps more precisely the constitutional status) of the Air Force, the Marine Corps, and the Coast Guard. It's all pretty Scholastic, but since Eugene claims "the question I pose is theoretically nontrivial," let's play along.

In the first place, let's remember that the mode of constitutional interpretation that is commonly referred to as "originalism" in fact consists of three rather distinct modes of inquiry. Let us define originalism as "the belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it." Next, we'll define textualism as " a formalist theory of statutory interpretation which holds that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law." Finally, I have defined traditionalism as looking "at how the Constitution has been interpreted over time, such that well-established traditions become entrenched."

With this background in mind, let's turn to the three cases. The easiest case, I think, is that of the Marine Corps. Eugene posits that:

The tougher conceptual question is whether the Marines can constitutionally be considered part of the constitutionally specified Navy (whether or not they are part of a federal agency labeled the Navy), or must be seen as falling under the constitutional head of "Armies." In either event they'd be constitutional, but if they are treated under the head of "Armies," then they'd have to be funded using appropriations that are for no longer than two years; if they are treated under the head of "Navy," they can be funded under unlimited-length appropriations. Recall that the relevant Congressional powers are:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy.

...

My (somewhat vague) recollection is that the constitutional distinction between armies and the navy stems from the fact that Englishmen of the time -- including the American variety -- saw land-based forces as much more dangerous to domestic liberty than sea-based forces, and sea-based forces as much more important to day-to-day national defense. That's also why there was lots of concern about a standing army, but not about a standing navy. Modern Marines are in this respect at least potentially more like "armies" than like the "navy"; that's why the question I pose is theoretically nontrivial.

A narrow textualist approach to interpretation might well get bogged down in the question of whether the Corps falls under the Navy or Army for the purpose Eugene identifies. Both the originalist and traditionalist approaches, in contrast, lead to an easy result; namely, that the Marine Corps should be treated as part of the Navy for this purpose.

The Continental Congress established a Marine Corps on November 10, 1775, a date that is still celebrated by the Corps as its birthday. During the Revolution, the Corps performed mainly in amphibious roles in conjunction with the Continental Navy. Although the Continental Marine Corps was disbanded after the Revolution, the Marine Corps was reestablished in 1798 and has remained in continuous existence ever since. A naval historian observes:

On 10 November 1775, two weeks after establishment of the Continental Navy, Congress resolved to raise two battalions of Marines.  On the twenty-eighth of the same month, Congress adopted "Rules for the Regulation of the Navy of the United Colonies" that applied equally to the Marines as to the Sailors.  Marine officers were to serve with naval officers on courts-martial.  Marines and Sailors were to subscribe to the same enlistment papers, binding themselves to be subject to the commanding naval officer of their ship.

When the Department of the Navy was established on 30 April 1798, it was understood by all that the department included Sailors and Marines. ...

The Act of 1798 did not give the Marine Corps an organizational existence or mission independent of the Navy, for the legislation authorized the President to discharge Marines whenever there were changes in the numbers of vessels in commission--if he did not want to use the Marines in other duties ashore.  Nor did it specifically state that service ashore meant that the Marine Corps was to come automatically under the control of the Army, as some Army officers later assumed.  In essence, the law allowed the President as Commander-in-Chief and the Secretary of the Navy by implication to use the Corps of Marines as  they saw fit.  ...

An Act for the better organization of the United States Marine Corps, approved on 30 June 1834, clarified some of the ambiguities left by the act of 1798.  The new act directed that the corps would be subject to the laws and regulations for the
government of the Navy.

The same author reports:

On 1 July 1797, President Washington signed another "Act providing a naval armament," which empowered the President to cause three frigates to be manned and employed.  Congress directed that the crews were to include Marines.  The act specifically referred to the Marines as "belonging to the navy."

Hence, the Founders knew that Congress might recreate the Marine Corps and that practice during the Revolutionary War would assign the Corps to the Navy. The first Congresses to deal with the post-1798 Marine Corps treated it as part of the Navy. Accordingly, both an originalist and traditionalist approach to the problem suggest that the Marine Corps should be treated as part of the Navy for purposes of Congress' appropriations power.

The Coast Guard is a more interesting case. Although the modern Coast Guard long has been regarded as part of the armed services of the United States, the Guard was founded as an amalgamation of five pre-existing (and very old) Federal agencies: the Revenue Cutter Service, the Lighthouse Service, the Steamboat Inspection Service, the Bureau of Navigation, and the Lifesaving Service. Note that all of these agencies related in some way or another to commerce and navigation. Hence, even on a taxtualist basis, one might plausibly argue that the source of Congressional power with respect to the Coast Guard is not the provision of Article 1, sec. 8, dealing with navies and armies but rather the provisions dealing with regulation of commerce and navigation. Right?

As for the Air Force, I leave that as an exercise for the reader.

Sunlight the best disinfectant for hedge fund empty voting

My Examiner column:

One vote per share of stock long has been the dominant rule in American corporations. This link between economic and governance interests generally works well. It ensures that as a shareholder’s voting power increases, so does the shareholder’s proportionate share of the corporation’s earnings. Accordingly, a shareholder with a substantial voting position has a strong interest in ensuring that the corporation performs well.

Increasingly, however, hedge funds and private equity funds are decoupling voting and economic interests. To take a simple example, a hedge fund might borrow shares in Ajax Corporation from another institutional investor. Under standard corporate law rules, the hedge fund is entitled to vote the shares, while the lending investor retains the economic interest. More complicated arrangements using various forms of derivative securities, such as options or futures, are also being used increasingly often.

As Texas law professors Henry Hu and Bernard Black have demonstrated, thisso-called "empty voting" phenomenon is potentially subject to serious abuses. Because the hedge fund has "more votes than economic ownership," Hu and Black explain, the fund could end up with "a negative economic interest and, thus, an incentive to vote in ways that reduce the company’s share price." Suppose, for example, that the hedge fund is selling Ajax stock short. It now has an incentive to drive down Ajax’s stock price and, accordingly, an incentive to cast its "empty votes" in value-reducing ways.

A related problem is the risk of over voting. In some cases, both the lender and borrower of the securities receive proxy materials and attempt to vote the shares. Because tracking of stock lending is often incomplete, companies routinely end up counting both votes. Nobody knows for sure how common over voting has become, but there’s general agreement that it is a growing problem.

The U.S. Securities and Exchange Commission and its global counterparts in other major markets, such as the UK’s Financial Services Authority and Hong Kong’s Securities and Futures Commission, are well aware of the potentials for abuse and are now considering regulatory responses. The problem is that the simplest regulatory solutions all are fraught with the risk of serious unintended consequences.

For example, the simplest solution to empty voting would be to ban the lending of securities. On the one hand, however, it’s not clear that even a complete ban on lending securities would solve the problem. As already noted, hedge funds are using increasingly sophisticated financial derivatives, which likely would provide ways to end run any such ban.

On the other hand, there are lots of legitimate reasons for lending securities. It facilitates short selling, for example, which helps promote market efficiency. Indeed, there’s an emerging consensus among financial economists that short sellers often have identified price-relevant information of which the market as a whole is unaware. By selling short, these sellers help move stock prices in the correct direction and thus make the stock market more efficient.

Instead of attempting substantive regulation, with its potential for unintended consequences for the capital markets and its conflict between federal and state law, regulators ought to go back to Louis Brandeis’ famous aphorism: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

Under current law, Securities Exchange Act Section 13(d) requires that anyone who controls more than 5 percent of a class of voting securities must file a written disclosure statement with the SEC within 10 days after crossing the 5 percent threshold.

This provision was adopted back in the 1960s and has long since been rendered obsolete by technological developments. The 10-day filing window, for example, makes little sense for an era in which computer monitoring of stock positions and the availability of electronic filing makes real time disclosure practicable.

As a first step towards dealing with the issue of empty voting, Congress should authorize the SEC to amend its rules under Section 13(d) to make clear that anyone with the right to vote more than 5 percent of a class of a company’s voting securities must file a disclosure statement with the SEC, regardless of whether the holder has an economic interest in the shares, and that the holder of the economic interest in more than 5 percent of a class of a company’s voting securities also must file a disclosure statement, regardless of whether the holder holds the voting right with respect to those shares.

In addition, the 10-day filing window should be shortened to no more than 48 hours. The person filing such a disclosure statement should be obliged to electronically submit a copy of the disclosure statementto the issuer, which should be obliged to immediately post the statement on its investor relations Web site.

Guest Speaker Ribstein

Today's guest speaker for my corporate governance colloquium is University of Illinois law professor Larry Ribstein, who is presenting his paper: Corporations and the Market for Law, which you can download from SSRN. Abstract:

The state competition for corporate law has long been studied as a distinct phenomenon. Under the traditional view, corporations are subject to a unique choice-of-law rule, the “internal affairs doctrine” (IAD). This rule is explained as a historical accident, or by the special logistics of the corporate contract. The resulting market for corporate law appears to have special characteristics, particularly including the dominance by the single state of Delaware.

This paper challenges the traditional view. It shows that the corporate law market is best understood as a special application of the general market for law. Any differences are matters of degree rather than kind, and are explained by considerations underlying enforcement of all choice-of-law contracts rather than by factors unique to corporations. It follows that theories of corporate competition that ignore the broader law market context are incomplete, and that the competition for corporate law carries lessons for the law market generally. Moreover, the connection between the corporate and other law markets has implications for the nature of corporate law, the constitutional status of the IAD, the scope of the IAD, and for the relationship between state and federal law

The Duke Provost Speaks

After months of silence, Duke Provost Peter Lange weighs into the lacrosse case with an open letter to the Duke faculty that is best described as pablum, cliched hokum, trite aphorisms, and tired PC rhetoric. Strikingly, there is no criticism for the Duke faculty and students who rushed to judge the lacrosse players guilty. To the contrary, they come in for implied defense:

The cumulative damage of the months of attacks on some of our faculty and the distress of those who sympathize with them is exceeding the limits of prudence about provoking external reactions.

Not a word is spoken, however, of the cumulative damage of the months of attacks and investigations of the players. Likewise, nothing is said about what columnist Rick Martinez aptly called the "self-generated culture [at Duke] of pseudo-oppression helped send the three players, their teammates and [team coach] Pressler down the river for an alleged crime that is supported by scant evidence."

Baude's Book Selection

Will Baude repo rts that as he prepared for his exam in Business Organization, he relied on:

The Economic Structure of Corporate Law, by Easterbrook and Fischel, has been something like my bible throughout learning and studying for my exam. It is implausible in places, a little glib in others, but fundamentally a brilliant, brilliant book ....

Indeed, as I acknowledged in my review, Easterbrook & Fischel's book is a class in the field. (So much so that Kent Greenfield recently published a book that serves mainly as an extended progressive answer to E&F, about which much more in due course.) Candidly, I suspect Will made the right choice; Yale being more of a preparatory school for the legal academy rather than an actual law school. If you want to actually learn some law, however, you might want to consider Corporation Law and Economics.

Pine Ridge Epitome (Carneros) 2003

This wine has all the ingredients for producing a Chardonnay that would illustrate everything that's wrong with California Chardonnay these days: Dijon clones, new French oak, extended lees aging, and so on. Instead of producing an overblown, industrialized, woody wine, however, Pine Ridge has produced a big but balanced wine in which fruit and oak complement one another. Plus, there's just the right amount of acidity to make the Epitome very food friendly. Mango, almond, toast. Grade: A-

Bloggers would not be lobbyists

Mark Fitzgibbons continues to claim that Section 220 of the Senate ethics reform bill would treat bloggers as lobbyists, criticizing me personally. He continues to be wrong. I can understand why Fitzgibbons, Viguerie and their ilk want people to think bloggers would be covered; they make their money and achieve their political goals through astroturf of the sort Section 220 was designed to address. As a matter of principle, I continue to believe that the only valid form of regulation of such activities is disclosure. But that doesn't change the fact that they need a highly constrained and artificial reading of the relevant statutes in order for bloggers to be captured by this law.

Here's Fitzgibbons' argument:

I’ll refer to the existing law as “DLA,” for Disclosure of Lobbying Activities Act, codified at 2 USC 1601 and following. In the existing law, 2 USC (DLA) 1602(10) defines lobbyist for reporting purposes as one employed or retained who makes two or more lobbying “contacts” and whose lobbying “activities” are more than 20 percent of the time for his “client.”

A “client” may include employers. A client may be the lobbyist’s employer or his own entity, including a sole proprietorship. “Client” is defined in DLA 1602(2) as any person or entity that employs or retains another person for financial or other compensation to conduct lobbying activities. A person or entity whose employees act as lobbyists on its own behalf is both a client and employer of such employees. “Employee” is defined at DLA 1602(5) as an officer, employee, partner or proprietor of a person or entity.

A “lobbyist” for reporting purposes is any individual who is employed or retained by a “client” for financial or other compensation for services that include more than one lobbying contact, but does not include individuals whose lobbying activities constitute less than 20 percent of the “time engaged in the services provided by such individual to that client over a [three month] period.” DLA 1602(9), with bracketed language as it would be amended by S. 1. ...

Let me interrupt here to explain what this complex mass of statutory language means by way of a brief example. “Bob” who blogs only on Saturdays for his site, “Oppose All Tax Increases,” is likely to be hit hardest because his research and writing takes up more than 20 percent of his time for his blog, and his blog is read by more than 500 people. He sends two emails to Congress opposing tax increase legislation. Boom, he’s a lobbyist. Since bloggers were not expressly exempted, they certainly fit within the “new” definition of lobbyists who must register and report quarterly.

Follow that? Nope. Me either. Here's why. Let's start with the actual text of section 1602(10):

The term "lobbyist" means any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact, other than an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a six month period.

First, under 2 USC 1602(10), in order to be deemed a lobbyist someone must have be employed or retained by a client. In addition, that person's must spend at least 20% of their total time for that employer on “lobbying activities,” over a six-month period. In order for Bob's to be captured by that definition in Fitzgibbons' example, one must believe that the law would be interpreted to reach the following results:

1. Bob is an retained and paid by a client.
2. Since Bob is the only person in the mix, Bob must simultaneously also be the client!
3. Since only paid grassroots lobbying is covered by Section 220, Bob must be paying himself.

How very circular. There is a basic canon of statutory construction that says "The legislature did not intend an absurd or manifestly unjust result." Is this not precisely such a result? Fitzgibbons must assume that a court will place this patently absurd interpretation of the statute.

Second, Fitzgibbons must assume that time devoted towards blogging counts as lobbying time. If blogging does not count as lobbying activity, however, only the time Bob spends writing emails to Congress would be covered.

Third, and apropos the prior point, Fitzgibbons ignores the exemption provided by 1602(8), which exempts from the term "lobbying contact" the following:

a communication that is--made by a representative of a media organization if the purpose of the communication is gathering and disseminating news and information to the public

If Bob's blog counts as an organization that can be the client of a lobbyist, shouldn't it also count as a media organization?

Ridge Pagani Ranch Zinfandel (Sonoma County) 1997

Since last noted in 11/2004, this wine has continued to evolve, proving an exception to the general rule that Zinfandel lasts but does not age. Huge bouquet of spice, pepper, briars, and dark berries. The palate offered a more claret-like impression with the same lead pencil and dried currant elements noted in 2004, albeit with a dash of black pepper. Superb. An excellent match for a stew of venison with peas and porcini mushrooms. Grade: A

Behrens & Hitchcock Alder Springs Merlot (Mendocino) 2002

This is precisely what a quality young Merlot should be. Plenty of forward fruit (plums, raspberry, and blueberry) with smooth tannins that make it easy to drink now. At the same time, however, there's enough stuffing to suggest that up to 5 more years in the cellar would not be amiss. A nearly perfect steak wine. (I paired it with Wagyu strip steaks from D'Artagnan Meats, french fries, and a Caesar salad. Yum.) Grade: A-/A

Me versus the Boalt Faculty

Over at Nuts & Boalts, a UC Berkeley law student group blog, Tom Fletcher asked Which Tenured Boalt Faculty Still Publish Articles? Young Mr Fletcher apparently has more free time than most law students I know, since he went out and crunched the numbers to see how many articles each of the 40 tenured Boalt faculty members published per year between 1996 and 2005. Results here.

Finding myself with a little time on my hands this PM, I decided to see how I stacked up against the Boalt faculty. With an average of 2.20 articles published per year (in Hein Online archived journals), I'd come in fourth on the Boalt faculty (out of 40) behind only Farber, Yoo, and Volpp. If I had more time on my hands, I might figure out how the rest of the UCLA law faculty compares to Boalt, but I'm not quite that bored.

Does what "elite professors" think matter?

Via Jane Galt, I saw this quote from a post by Robin Hanson:

If all we know about a view was that professors held it more, and elite professors even more so, we would be inclined to favor that view.

I'm 48 years old. I spent 11 years in college and graduate school, with the latter 7 years spent at elite institutions. I've spent 18 years teaching at law schools ranked in the top 25, which I think safely qualify as elite institutions. Having thus spent 60% of my life hanging out with elite professors, I feel confident in saying that: If all I know about a view was that professors held it more, and elite professors even more so, I would be inclined to be skeptical of that view.

To be sure, when it comes to their area of expertise, elite professors deserve a degree of deference. When it comes to matters outside their area of expertise, such as whether God exists (the question Galt and Hanson are discussing), elite faculty deserve no more deference than any other smart people. Indeed, they may deserve less deference than a representative cross section of the general public. University faculties tend to be highly self-selected and appointments tend to be dominated by network effects that produce a remarkable homogeneity of belief (or, in this case, disbelief). Outside their areas of expertise (and sometimes even inside it), their beliefs tend to be colored by their ideology and by the need to conform to the expectations of their colleagues.

In his article, Academic Freedom, 77 University of Colorado Law Review 883, law professor Larry Alexander offers an observation that I think lends support to my claim:

My experience has taught me that aside from the fact that those inclined towards liberalism are disproportionately disinclined to go into business and the professions and thus more inclined to become academics, there are reasons in addition to groupthink that explain why academic liberals become more dogmatically liberal and anti-conservative once inside the academy.Foremost among them being the orthodox academic's negative view of the free market.

Now the free market, buttressed by public education, has raised more people out of poverty than all government poverty and redistributive programs together have done. Nonetheless, the free market--and the bourgeois values that undergird it--is typically disdained, if not reviled by academics, at least academics outside of economics departments.

For one thing, the free market is disorderly, while the academic mind is attracted to rational planning and control and, thus, to statism. The academic looks at the free market and sees gigantic waste--the vast number of businesses that prove unprofitable and fold, and the incalculable misspent hours and dollars people invest in training and educating themselves for occupations that disappear or never materialize.

Precisely. So if all we know about a view of some economic or political issue was that professors held it more, and elite professors even more so, we should be disinclined to favor that view. Ditto religious questions, for much the same set of reasons.

See also James Joyner's take, which includes this observation:

A Harvard physicist’s views on all manner of things related to the material world should indeed be favored over those of most people. That’s because his views are not mere opinion, but a reflection of intense study; he is an expert. Furthermore, his expertise can provide solid answers to matters than pertain to religious teaching such as, for example, the age of the Earth, whether human beings were created during the same 6-day period as the mountains, and so forth. Unfortunately, the more important religious questions — whether there is a God or a Heaven or whether Jesus or Muhammed or the Pope provides your best path for getting there — are likely outside the scope of scientific inquiry. That makes his guess as good as yours.

For that matter, expertise is limited even within a field of inquiry. A political scientist at Yale is likely whip smart and able to out-debate your average layman on matters of public policy. His views on whether you should vote for the Republicans or Democrats, whether abortion is immoral, or how judges should go about interpreting the Constitution are still completely normative. In that arena, it doesn’t matter how many degrees you have or whether you have tenure.