Bruinskins I are 0-1, which is really disappointing considering the lousy production my opponent got from starters like Jamal Lewis, Deion Branch, and Limas Sweed (of all people). The SOB had Tom Brady, which cures a multitude of ills, while I suffered through Jay Cutler's Lambeau disaster. This week my new opponent and I look to be pretty evenly matched. I'm pretty sure I'm going to start Flacco over Cutler at QB, for the reasons discussed here. I'm going to start Forte and Portis in hopes that they do better at RB this week than they did last week, but, as you'll see in a moment, I don't have any viable options there anyway. Roddy White and Chad Ochocinco give me strong anchors at WR. I'm going to leave Knowshon Moreno (RB) and Kevin Walter (WR) on the bench one more week to see how their injury status evolves. Accordingly, Torry Holt becomes my WR3 by default. The only real question this week thus is whether to start Kellen Winslow or Brent Celek at TE. If I was certain that McNabb would start and play well, I might go with Celek, who I think is going to have a breakout year (assuming a healthy McNabb). Given the uncertainty about Philadelphia's QB situation, however, I think I'll go with Winslow for at least one more week, especially since his opponent this week, the Buffalo Bills, gave up six catches for 77 yards and two touchdowns to Patriots TE Benjamin Watson in Week 1. I'll be watching Forte and Portis closely. If this team is going to be successful this year, I'm going to need them to be consistently productive. I picked up the Falcons DST to take advantage of their matchup with the Panthers this week. The Falcons DST got 4 turnovers against the Dolphins last week, while Jake Delhomme has 11 turnovers in his last two games that counted. If either holds to form, I could pick up a ton of defensive points this week. If both hold to recent form, my DST could be the difference maker. I kept the Chargers and will do DST by committee for a while to take advantage of the matchups.
Bruinskins II are 1-0 thanks mainly to Adrian Peterson's huge game. This week's opponent brings Tony Romo, Brian Westbrook, and Randy Moss to the table, so AP's going to need help. I need Derrick Ward to get into the end zone at least once. The question of the week is which two of the following do I start at WR and the flex position: Darren Sproles, Percy Harvin, or DeSean Jackson. (I wish I had these guys in my Yahoo leagues, where I get points for return yards and TDs on offense.) I'm inclined to go Harvin at WR and Sproles at flex. I think Favre is falling in love with Harvin. Press reports indicate LT isn't going to play this week, which means Sproles should get a lot of touches. Meanwhile, Philly's QB situation counts against Jackson. This is another league where I picked up the Falcons. I kept the Redskins and will do DST by committee for a while to take advantage of the matchups.
Cowboys Drool are 1-0 thanks in large part to Tim Hightower's career day as a receiver. Thank goodness this is a PPR league. I'm inclined to leave RBs Ricky Williams, Lendale White, and Donald Brown on the bench, while starting Hightower and Ronnie Brown. WR is easy: Larry Fitzgerald and Marques Colston are every week starters. Chris Cooley starts at TE. He's clearly got a rapport with Jason Campbell and should have a big game against the woeful Rams, who gave up 95 yards and two touchdowns to Seahawks TE John Carlson in Week 1. Peyton Manning starts at QB. Duh. The only real question is the flex position, which in this league is a WR/RB/TE option. My choices are Devin Hester, Josh Morgan, and Brent Celek (plus the aforementioned RBs). I don't like any of them. Celek's downside is the Eagles QB situation. Morgan didn't impress last week and faces a surprisingly stout Seattle defense. Hester is burdened with Cutler and facing the still potent Pittsburgh defense. Even so, I'm going with Hester (I think), mainly because this league awards points for return yards and TDs to offensive players. The prospect of Hester busting a couple of big punt returns gives him a boost.
And now we come to Steve's Skins in the ProfessorBainbridge.com league. I am tied for fourth in this points championship league with last year's arch-nemesis Jonathan Adler. We're a whopping 41 points behind DC Justice, whose roster was led by huge performances by AP, Greg Jennings, and Donavan McNabb. We must gird our loins and pull up our socks. I'm set with Aaron Rodgers at QB, Reggie Wayne at WR, Steve Slaton and Ryan Grant at RB, and Owen Daniels at TE. The question marks are at WR2 and the flex WR/RB position. I need to select two out of the following 4: Hester, Julius Jones, Eddie Royal, and Earl Bennett. Actually, as I see it, it's really Hester versus Bennett for the WR slot, both of whom outscored Royal last week, and Jones versus Royal for the flex slot. I don't like either of the former this week because they'll be reliant on Cutler lighting up the Steelers defense, which isn't going to happen (I hope). Cutler favored his former Vanderbilt teammate last week, but this league gives offensive players points for return yards and TDs, which argues for Hester at WR. Jones did so well last week, while Royal did so badly that I think I have to go with the former at the flex. Granted, the Browns suck and the 49ers defense is better than expected, which argues for going the other way, but I don't trust Kyle Orton yet. This is the third league in which I picked up the Falcons DST hoping Delhomme gives it up three or four or six times. As with the others, I kept my original DST (Jets) to play the matchups.
Megan McArdle thinks so:
I now put the chances of a substantial health care bill passing at 75%, and the chances of the Democrats losing the house in 2010 at about 66%.
Replacing Ted Kennedy is major, of course, but the real game changer is that the CBO is willing to score health care savings on the grounds that the bill contains automatic spending cuts.
Conservatives are filled with rage and anguish. The spending cuts, they argue, mostly will not be done, which means that this bill is going to cost hundreds of billions more than its proponents claim. They are absolutely right: the savings cuts will not be made, and I doubt that many in the Democratic party leadership, or the liberal wonkosphere believe that they will.
... I think that for those of us who were opposed to this bill, it's game--almost--over. This isn't exactly surprising; Democrats have a commanding lead in the house and the Senate, and now they have the presidency too. If public opinion on this thing craters again, I'll reassess. But for now it looks like it's time to start preparing for an ambitious health care reform, and all the dislocations, and the budget crisis that we now have even less ability to aver.
Let's assume worst case scenario: A liberal version of Obamacare gets rammed through the Senate using reconciliation to bypass the filibuster. The purported savings don't materialize. The costs are enormous. The public option squeezes out private insurance.
Ten years from now we wake up and realize that Obamacare has been a disaster. Is there any possibility that it would be reformed, let alone repealed? The list of failed government programs that have been repealed is a pretty short one.
Since the New Deal, the role of the state has consistently grown. Shrinkage has been rare.
The core policy dilemma in responding to the financial crisis through promulgation of new laws and regulations is that bad prior policy choices were core contributors to the crisis. In a very real sense, regulation got us into this mess, so why should we expect it to get us out. Arnold Kling has just published a report dealing with this issue.
The paper shows that broad policy areas—including housing policy, capital regulations for banks, industry structure and competition, autonomous financial innovation, and monetary policy—affected elements of this framework to varying, but important, degrees. While considering alternative points of view concerning the causes of the financial crisis, the paper concludes that bank capital regulations were the most important causal factor in the crisis and that the policy “solutions” to previous financial and economic crises sowed the seeds for this current crisis.
The WSJ reports that the Fed plans extensive regulation of bank pay policies to prevent the taking of excessive risk:
Under the proposal, the Fed could reject any compensation policies it believes encourage bank employees -- from chief executives, to traders, to loan officers -- to take too much risk. Bureaucrats wouldn't set the pay of individuals, but would review and, if necessary, amend each bank's salary and bonus policies to make sure they don't create harmful incentives. ... Its strategy appears to go further than what some in the industry were expecting, given that it would apply to many employees, not just top earners. It would go beyond a more generic list of "best practices" that many thought the central bank would craft.
The proposal will likely push banks to use "clawbacks" -- provisions to reclaim the pay of staffers who take risks that hurt their firms -- in certain pay packages, among other tools, to punish employees for taking excessive risks with their firms' money. The central bank could also demand that more pay be offered through restricted stock or other forms of long-term compensation designed not to reward short-term performance.The proposal raises four concerns. First, risk and return are inextricably linked. If you want a higher rate of return, you have to take greater risks. Financial institutions owned by shareholders thus must take into account the basic fact that shareholders have a strong incentive to favor risky projects. Because creditors have a prior claim on the firm’s assets and earnings, they get paid first; shareholders get the residual—whatever is left over. Shareholders thus prefer projects offering potentially high rate of returns, so there will be something left over after the creditors get paid.
If compensation policy encourages banks to reduce the risks they take, that policy will inevitably result in a lower rate of return for shareholders. This will significantly distort the flow of capital. Shareholders will divest bank stocks and invest in industries offering a higher rate of return. This will raise the cost of capital for banks and perhaps have the unintended consequence of making banks weaker rather than safer.
Second, whether or not that specific unintended consequence comes to fruition, it's critical to remember that government regulation of compensation has been characterized by unintended consequences. The Journal explains:
Previous efforts to regulate pay have often failed or even backfired, sending pay higher. A 1980s law restricting "golden parachutes" helped spread what had been a rare practice. A 1993 law limiting annual salaries led to bigger stock-option grants, pensions and deferred compensation. Former Securities and Exchange Commission Chairman Christopher Cox once said the law belongs in the "Museum of Unintended Consequences."
Jonathan Macey, a professor at Yale Law School, says the Federal Reserve plan "responds to an acute problem" of taxpayers losing when a bank blows up, but ceding all the gains to traders and executives when the bank makes a profit.
The proposal could have unintended consequences, however, he said. If the Fed takes the 25 biggest banks and works to make sure they are consistent in the way they pay people, it "may make things worse because it contributes to lemming-like, herd behavior," he said. "Bubbles are caused by that behavior. What you want is diversity and heterogeneity between firms."
A third problem is that the proposal may not only distort the capital market, it may also distort the job market. If the best and brightest perceive finance as offering lower income potential, they'll be incentivized to look elsewhere. Again, the proposal thus could have the unintended consequence of making harder to strengthen the banking sector.
Finally, how do you tell whether a policy will encourage "excessive risk"? How do you decide what level of risk is appropriate versus excessive? Once you make that determination, how do you figure out whether a proposed pay policy will encourage the latter rather than the former? Why do we think government bureaucrats are going to be any good at answering those questions?
My guess would be that government bureaucrats will be over conservative. They won't want the Washington Post and NY Times writing articles about how they were asleep at pay switch. If so, all the problems outlined above will be exacerbated.
I'm not saying that risk management failures didn't contribute to the financial crisis. They did. I'm not saying that pay policies didn't contribute to those failures. They did.
I'm just saying, the Fed damn well better be sure it knows what it's doing here ... and I'm dubious that it does.
Via Brian Leiter, I came across two rankings of law schools by blogging stats. First, number of blogs to which professors at a given school contribute. UCLA ranks in the 17-26 tier with six. Second, number of professors at the school that blog. UCLA ranks in the 22-28 tier with six. Interestingly, considering that I'm going to be spending next year there as a visiting professor, Virginia isn't ranked on either list.
Does no one on the UVa faculty blog?
If so, query what they are likely to make of someone who has been called "the most overrated blogger in the entire internets."
These videos remind me of one of those credit card ads:
Jay Leno on Top Gear: Priceless
Jeremy Clarkson admitting America is a freer country than Great Britain: Priceless plus a few bucks
(The Leno segment starts at about 2:50 of the first video)
Bruinskins I lost last week 65-69. Tom Brady put up 25 points for my opponent. Jay Cutler put up only 10 for yours truly. Cutler's ineptitude also doubtless contributed to Matt Forte (my first round draft pick) being held to just 5 fantasy points. Meanwhile, sitting there on my bench was Joe Flacco, whose 29 fantasy points went to waste instead of winning the game for me.
Going into fantasy football week 2 (about which more later), the big question is: Cutler or Flacco? Who to start?
Even with Troy Polalumu out, I believe Pittsburgh still has a top three defense. So I suspect Cutler is going to have big problems against them this week.
In contrast, even though the Chargers are my DST for Bruinskins I, if JaMarcus Russell could light them up for 200+ yards and 2 TDs (counting the one the refs took back), Joe Flacco should show well.
My rule of thumb is to start the guys I drafted highest for at least the first few weeks. But the combination of Cutler's performance last week and him facing the Steelers this week inclines to make an exception and sub in Flacco.
Jess Bravin reports that:
In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law. ... Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.
Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."
A DailyKosite observed: "If Justice Sotomayor keeps up with this line of thinking, she will truly represent a great progressive change on a much too corporate-friendly Court."
Maybe so. Maybe not.
If she keeps up with this line of thinking, the one sure thing is that she'll be making a fundamental error (or, more precisely, two fundamental errors).
There are a couple of different ideas bollixed up in Sotomayor's statement. We need to entangle them.
Let's start with the idea of corporate personhood.
It is certainly true that the corporation's legal personhood is a mere legal fiction. A corporation is not a moral actor. Edward, First Baron Thurlow, put it best: "Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and nobody to be kicked?" The corporation is simply a nexus of contracts between factors of production.
Although the corporation’s legal personality obviously is a fiction, it is a very useful one. Consider a large forestry company, owning forest land in many states. If the company were required to list all of its owners—i.e., every shareholder—on every deed recorded in every county in which it owned property, and also had to amend those filings every time a shareholder sold stock, there would be an intolerable burden not only on the firm but also on government agencies that deal with the firm. Hence, for example, it is useful for the law to allow the corporation to sue and be sued in its own name and to own and deal in property in its own name.
Likewise, the corporation's legal personhood is a useful fiction in constitutional law. Government regulation of corporations obviously impacts the people for whose relationships the corporate serves as a nexus. (You see how hard it is to even talk about the corporation without reifying it?) It's useful to allow the corporation to provide those persons with a single voice when seeking constitutional protections.
Indeed, doing so is not just useful, it is necessary to protect the rights of the parties to those various contracts. As Larry Ribstein explains in Corporate Political Speech, 49 Wash. & Lee L. Rev. 109, because "a corporation is a nexus of contracts, these contract rights should be constitutionally protected to the same extent as other contract rights. Thus, the state must show why intervention in the corporate contract is constitutionally justified given the availability of self-protection through private contracting." He continues:
The Court must begin to base its decisions on well-developed modern economic theory rather than on unsupported assertions about corporations and the political process. It is particularly important to understand that any regulation of corporate speech or of the electoral process can have far-reaching consequences in terms of both the costs of governing the firm and the deadweight costs of effecting wealth transfers among interest groups. Until the Court understands these consequences, its decisions may be the proverbial bull in the china shop, particularly as pressure builds for more extensive reform of campaign financing and of corporate political activity.
While it may be useful to allow the corporation "person" standing to assert collective rights, however, it is very important to remember that this is still a fiction that we embrace to facilitate protection of the rights of individuals. As Ribstein recently blogged:
In a nutshell, viewing the corporation as an entity for First Amendment purposes actually serves to push the speech rights of owners and managers under a rug. Abandoning entity reasoning would focus on what matters for the First Amendment analysis. My article and blog post just linked show that once you do that, and put the arguments for limiting speech rights under an analytical spotlight, they look pretty weak.
A distinct problem with Sotomayor's analysis is her treatment of the corporation as a creature of state law. It is true that a corporation must have a certificate of incorporation from the state to obtain legal recognition as such. We might reasonably infer from Sotomayor's overall comment, however, that she accepts some version of the old concession theory, pursuant to which the corporation was regarded as a quasi-state actor exercising powers delegated by the state. It has been over half-a-century since corporate legal theory, of any political or economic stripe, took the concession theory seriously. In particular, concession theory is plainly inconsistent with the contractarian model of the firm, which treats corporate law as nothing more than a set of standard form contract terms provided by the state to facilitate private ordering.
Note how the two points are related. The state provides the corporate form as a means of facilitating private ordering amongst people. When the state wrongfully interferes with how those people have ordered their relationships, those people need the protections of the Constitution. Collective action problems of various sorts may prevent them from banding together to vindicate their rights. Accordingly, the law allows the corporation--under the control of its board of directors--to seek the necessary Constitutional protections on behalf of the community of stakeholders (and, especially, the shareholders who hold the residual claim).
I treat these issues in more detail in my article, Community and Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship.
It's often said that Caremark claims are the most difficult corporate law claims for a plaintiff to win. It's not immediately apparent why that should be the case. After all, Caremark claims are premised on the board doing a lousy job of monitoring management. In turn, monitoring management is the board's primary--although not exclusive--function.
There are lots of reasons why we want courts to be hostile to Caremark claims. One was called to mind by, of all things, Daniel Henninger's column in the WSJ today on the way rules still are mostly followed in sports but not in politics.
Boston lawyer Harvey Silverglate argues in a forthcoming book, "Three Felonies a Day," that federal law has become such a morass that people in business routinely violate statutes without a clue. Modern law lacks what sports provides lucidity.
Human capacity is inherently bounded. No system of internal controls reasonably can be expected to ensure corporate compliance with the "morass" of laws to which modern businesses are subject. Nor would it be reasonable to expect corporate directors to oversee such an exhaustive system of controls. It would swamp their attention span and preclude them from doing anything else.
This is why corporations should only be expected to focus on the laws they are most likely to violate and that are likely to result in the most serious sanctions. In turn, it is also why boards of directors should be liable only when they have missed obvious red flags that would have alerted them not to one of the three felonies a day, but to felonies that are repeated over and over again.
I'm pleased to announce that I've accepted an offer to be a visiting professor at the University of Virginia law school for the 2010-11 academic year. I spent 5 happy years in Charlottesville collecting a couple of degrees and Helen and I both still have a lot of friends and family in Virginia and the Mid-Atlantic area. So we're looking forward to it both professionally and personally.
Long-time readers, however, can already predict the downside. Yes, once again, I've been told by the boss that the dogs are too tender to fly and so we will be driving across country. When we last did so back in 2001 when we were going to Harvard for the year, Helen, Sam (our late golden retriever), and I spent 6 glorious days crowded together in a BMW X5 and 5 glorious nights in crappy "dog-friendly" hotels in miscellaneous two-bit towns. The prospect of fitting Helen, Toby, Bella, and myself in the Porsche seems too daunting for words. I may have to break down and get something practical.
At last, it's football season. With my beloved Washington Redskins still mired in the Danny Snyder era of perpetual mediocrity, my alma mater Cavaliers having managed to lose to William & Mary, and my Bruins likely to finish in the middle of the pack (at best), things are looking grim.
All of which is why I'm probably going to be spending a lot more time thinking and writing about fantasy football this year than the real world stuff. (My bosses here at the law school probably would prefer I spend it on corporate law, but ....)
I ran my rosters through the Footballguys.com rate my team tool. It produces something that looks like a personalized analysis from each of their four writers, but on close examination their reports turn out to be a collection of canned comments strung together by some sort of computer algorithm.
FWIW, for the benefit of those following along at home, here's the rosters and the best prediction for each:
Bruinskins I (CBS standard scoring)
Bruinskins II (CBS standard scoring)
Steve's Skins (Yahoo PPR)
I'm tempted to swap Hester for Jones as my flex starter, because our league gives points for return yardage (1 per 35 yards) and return TDs (6) as offensive categories
Oddly enough, this is the team I like best and the experts liked least.
Cowboys Drool (Yahoo PPR) (in my defense, the league is named "Cowboys Rule," which could not be allowed to slide by)
TE: Brent Celek
UCLA School of Law Dean Michael Schill has announced that he is leaving UCLA to become dean of the University of Chicago School of Law effective January 1, 2010. Brian Leiter gloatingly reports that:
Before moving to UCLA, Dean Schill taught at NYU and Penn for many years, and is no doubt well-known to thousands of current law students and young lawyers as co-author of the leading casebook on property.
Schill has been, by any measure, a phenomenally successful Dean at UCLA: recruiting faculty from tenured posts at NYU, Virginia and Chicago; retaining faculty in the face of offers from Harvard, Texas, and Michigan; doubling the number of endowed chairs at the law school, and nearly doubling alumni participation in annual giving. Only rarely does one encounter a Dean who gets such rave reviews from his faculty. UCLA has, of course, been one of the nation's top law schools for decades, but Dean Schill will leave the school in probably its strongest and most competitive position ever. My colleagues and I are fortunate, indeed, that he will take the helm here, and we look forward to welcoming him to Chicago.
Indeed, Chicago is most fortunate. Mike Schill has been an amazing dean. Far better than Chicago deserves.
Under Schill’s leadership, the UCLA law school assembled a very strong managerial team. On the administrative side, the law school has been run efficiently and effectively. Significant improvements in a number of areas have been quite noticeable. Information technology has steadily provided improved resources and capabilities, for example, especially in the classroom.
I have been particularly impressed with the work of Associate Dean Laura Lavado Parker and Director of Communications Lauri Gavel. Under Schill’s supervision, they have significantly enhanced both the quantity and quality of the law school’s communication with alumni and media. The law school now routinely funnels media inquiries to faculty with expertise, for example, so that I have been quoted in the media much more often in recent years.
I’ve been privileged to sit in with Schill and Parker during several meetings with prospective donors. They did a remarkable job of anticipating how best to “stroke” the target. Indeed, I’ve come out of several of those meeting thinking I should be contributing more to the law school!
Not surprisingly, Schill did a great job in fundraising. In particular, I’ve been very involved with the UCLA Law Firm Challenge. The fiscal year that ended on June 30, 2008, was record breaking with 75% of the School's alumni at 76 participating firms making a gift to the School. The alumni with whom I deal routinely credit Dean Schill with the success of the program. Along with other Schill-initiated fundraising developments, we have raised the 16% aggregate alumni participation rate in 2002 (which was at the bottom of the nation's top 20 law schools) to 30.5% in 2008 (which puts us in the top 5).
Schill changed our alumni culture from one of (what one alumni friend of mine called) benign neglect to one of enthusiastic and generous support for the School, in the way that the alumni at our private and public school competitors support their schools. The alumni I know were enthusiastic about Schill. They believed in his vision for the school and were willing to open their wallets in response. Not surprisingly, I'm hearing today from alumni who are deeply saddned by this news.
Nonetheless, I am firmly convinced that Dean Schill has laid the foundation for the future financial strength of the law school. In particular, he has left us in good shape to complete the current $100 million campaign in short order, which will allow the law school to compete effectively with better funded private schools.
Schill’s success at fundraising enabled the School to make a number of programmatic enhancements. In 2005, for example, Dean Schill launched the School’s comprehensive Entertainment and Media Law and Policy Program, which has enriched the School’s curricular offerings. The focus of the program is multifaceted: It is not just about the business of entertainment or the practice of entertainment law; rather, it is about all sorts of media and intellectual property, as well as about policy and culture in what is one of the most dynamic segments of the economy in the country.
Another very important development driven by Schill has been the creation of a joint program with RAND, which significantly enhances the School’s ability to conduct empirical and interdisciplinary research.
I have never had cause for complaint for how I have been treated by any of the deans I have served with at UCLA. During Dean Schill’s tenure, however, I have felt particularly valued and appreciated. He has gone out of his way to reward my teaching and scholarship. It’s not just the rewards, however, it is his demeanor. He has a knack for making one feel that one is a valued member of the School community.
I will miss him tremendously.