ProfessorBainbridge.com

Proxy Monitor "Findings"

James Copland:

On Wednesday, the Manhattan Institute released a new "finding," looking at executive-compensation shareholder proposals, as part of the Proxy Monitor project. Key findings include:

• Labor unions are playing a big role here. "The two most frequent shareholder sponsors of proposals related to executive compensation have been the American Federation of State, County and Municipal Employees (AFSCME), with twenty-three proposals, and the AFL-CIO, with twelve. Overall, labor unions and their pension funds introduced 70 proposals related to executive compensation to Fortune 100 companies since 2008, constituting over 38 percent of all identified proposals coming to a vote."
• Shareholders are electing to hold annual say-on-pay votes. "Under Dodd-Frank's Section 951, executive-compensation advisory votes are now mandatory for public companies. In 2011, companies with annual meetings scheduled after January 21 must hold a vote to determine the frequency of such votes, which under the statute can be every one to three years. Of the four companies in the Fortune 100 to have voted on the issue thus far--Johnson Controls (JCI), Costco (COST), Emerson Electric (EMR), and Tyson Foods (TSN)--shareholders have supported annual advisory votes on executive compensation at each company save Tyson, which has a dual-share structure giving insiders effective voting control."

I discuss the new finding in a podcast here. Read the whole thing here.

Proxy Monitor is going to be a useful tool.

How Wall Street "reforms" broke the capital markets

Marc Hodak:

Today, our IPO market is broken.  That avenue of exit has been crushed by the weight of governance regulations, especially Sarbanes-Oxley.  These rules were intended to restore confidence in our public markets.  They have, instead, prevented ordinary people from investing in maturing companies like Facebook, Twitter, or LinkedIn, and hampered the ability of companies like that to attract the talent they need to get going.  Such companies are now forced to go to private markets for liquidity, markets that are far less accessible to smaller firms than IPOs used to be.

We will never know how many Microsofts or Apples have not been able to get off the ground since 2002–the year SOX was passed–or may not in the future, because of the higher cost of securing needed talent.  Unfortunately, the people who proliferate these rules like Topsy are not accountable for what doesn’t get created.

He's right. See my Corporate Governance and U.S. Capital Market Competitiveness, which argues that:

During the first half of the last decade, evidence accumulated that the U.S. capital markets were becoming less competitive relative to their major competitors. The evidence reviewed herein confirms that it was not corporate governance as such that was the problem, but rather corporate governance regulation. In particular, attention focused on such issues as the massive growth in corporate and securities litigation risk and the increasing complexity and cost of the U.S. regulatory scheme.

Tentative efforts towards deregulation largely fell by the wayside in the wake of the financial crisis of 2007-2008. Instead, massive new regulations came into being, especially in the Dodd Frank Act. The competitive position of U.S. capital markets, however, continues to decline.

This essay argues that litigation and regulatory reform remain essential if U.S. capital markets are to retain their leadership position. Unfortunately, the article concludes that federal corporate governance regulation follows a ratchet effect, in which the regulatory scheme becomes more complex with each financial crisis. If so, significant reform may be difficult to achieve.

Brady on Airgas

Delaware lawyer Kevin Brady has a lengthy, detailed, and very useful analysis of the recent Delaware Chancery Court's decision in Airgas on poison pills.

PB.com in Top 40

We're named one of the 40 best corporate law blogs.

"Stephen Bainbridge disdains the trend" towards empirical legal scholarship

An article from the National Law Journal (reg. req'd) captures the debate over the merits of empirical legal scholarship. I was in a particularly bad mood the day the reporter called and took it out on ELS, so my remarks are a bit more frank than they might have been had I been feeling more diplomatic, but I must confess that it does capture the gist of my views:

Proponents of this movement — dubbed empirical legal studies — view it as a major trend in legal academia. Harnessing data to answer legal questions gives their work credibility, and empirical research tends to reach a wider audience than traditional legal scholarship, they say. ...

"One of the concerns I have is on the pedagogical side," said University of Chicago Law School professor Brian Leiter. "There are some very smart and talented people doing this, but what does it add in the classroom, and how does it help teach analytical reasoning?"

A damned fine question.

The University of California at Los Angeles School of Law, Washington University in St. Louis School of Law, the University of California, Berkeley School of Law and Northwestern University School of Law are among the institutions that have established centers for empirical legal studies.

Yeah. This article's not going to win me any friends at the office.

Stephen Bainbridge disdains the trend. "A lot of the people I see who are empiricists, often with doctorates in the social sciences, aren't very good lawyers," he said. "I've read numerous papers that just got the law wrong. The problem is that we're hiring people with Ph.D.s in other fields, but their law credentials are middling at best. Someone who is a brilliant economist wants to be in a economics department, so we get second-rate lawyers who are second-rate in their academic field." ...

Empirical scholars have been knocked for conducting research simply because a data set is available, not because they have an important subject to explore. "They can only answer questions when they can get numbers," Bainbridge said. "If they can't count something, it doesn't exist for their purposes." ...

Several empirical scholars said that some doctrinal scholars simply don't understand their work. Bainbridge insisted that the skepticism is justified. "I think ELS is pretty much getting a free ride," he said. "There are a lot of people who have decided, for whatever reason, that this is the coming thing. We need to have a much more vigorous debate about the place of empirical legal studies in the legal academy."

Update: A friend and colleague emailed me as follows:

In the most recent postings to PB, I noticed, you slam ELS but elsewhere you propound:
 
"During the first half of the last decade, evidence accumulated that the U.S. capital markets were becoming less competitive relative to their major competitors. The evidence reviewed herein confirms that it was not corporate governance as such that was the problem, but rather corporate governance regulation. In particular, attention focused on such issues as the massive growth in corporate and securities litigation risk and the increasing complexity and cost of the U.S. regulatory scheme." Emphasis supplied.
 
Is the principle that it's good for lawyer-scholars to be consumers of empirical studies but that they should not be producers? That is not illogical or even entirely implausible, but neither is it self-evident.
 
To be sure, we may (I await evidence)  give too much weight to PhDs in the hiring process (and I have long pointed out that we tend to get the second-rate PhDs). But some of our colleagues who are adept at legal analysis and do not have PhDs are doing some good empirical work. Maybe we need some empirical study of the performance of legal scholars who do empirical work.

I have no objection to legal scholarship that relies on real social science being done by real social scientists. Having said that, I'm always skeptical of data mining and causation issues. See, e.g., this "study":

Here's a deeply strange 2010 study in which college undergrads were asked to imagine a female instructor with various tattoos:

"128 undergraduates' perceptions of tattoos on a model described as a college instructor were assessed. They viewed one of four photographs of a tattooed or nontattooed female model. Students rated her on nine teaching-related characteristics. Analyses indicated that the presence of tattoos was associated with some positive changes in ratings: students' motivation, being imaginative about assignments, and how likely students were to recommend her as an instructor."

So tattooed teachers make students more motivated and more creative, not to mention stand a better chance of getting a positive recommendation from her pupils?

What I object to is (1) pseudo-social science being done by legal academics untrained in the relevant discipline, (2) hiring people to teach law with because they ran enough linear regressions to get to the point of being ABD in some social science but not to the point of actually being able to get hired in their home discipline, and/or (3) hiring people who are really good at their home social discipline but have mediocre legal credentials/skills. Both of the latter categories tend to produce lousy legal scholarship and make awful classroom teachers.

More on public sector unions

Brian Schwartz of the Boulder Daily Camera:

"Two wolves and a sheep voting on what to have for dinner." James Bovard`s critique of democracy also applies to public-sector unions. Unions and union-backed politicians are the wolves. Taxpayers are the sheep.

Public-sector union representatives "will often be on both sides of the collective bargaining table," explains law professor Stephen Bainbridge. Union leaders are on one side; their "bought and paid for politicians" are on the other. Unions fund politicians` campaigns, and the politicians reciprocate by facilitating extravagant union wages, benefits, and protections.

He's quoting from this post on public sector unionism.

Off to Valcon to talk about executive compensation

I am off to Las Vegas to attend Valcon 2011, which is a conference for deal makers, fund investors, and financial or legal advisers in the distressed debt, restructuring and valuation business.

I'll be giving the Regulatory Keynote Address on "Will Dodd-Frank Reduce Systemic Risk?" To narrow that sweeping topic a bit, I've focused my presentation on "Executive Compensation and Risk in the Post-Dodd Frank Environment."

The talk is loosely based on my article Dodd-Frank: Quack Federal Corporate Governance Round II (September 7, 2010). UCLA School of Law, Law-Econ Research Paper No. 10-12. Available at SSRN: http://ssrn.com/abstract=1673575.

Blogging will be light until I get back next week.

Fleebagging: Today's Word of the day

Fleebagging: Used to describe Democratic lawmakers cowardly absconding from their state so as to avoid having to vote on some controversial bill. It is a pejorative adapted by right of center bloggers from pejorative "teabagging," which had been adopted by left-liberal bloggers to equate activities of the Tea Party movement with a form of oral sodomy.

Possibly coined by Ed Morrissey.

Chait's bullshit

Jonathan Chait purports to respond to my post on the case against public sector unionism by claiming that my analysis "does not reflect actual reality at all." He elaborates:

If public sector unions were merely bargaining with themselves, wouldn't they be winning unbelievably fat contracts that paid their workers considerably more than they could get in the private sector? (They aren't.) For that matter, would they be facing contract rollbacks in states across the country? It seems obvious that there's a very powerful adversary at the bargaining table -- namely, the desire by elected officials to minimize taxes on their constituents.

Since TNR apparently doesn't allow one to comment on his posts without taking out a 20-issue subscription, I'll respond here.

In attacking my argument, Chait engages in a very selective editing of my post. Specifically, he edits out my discussion of Terry Moe's research, which shows that "there is ample evidence" that unions behave in precisely the way I described in that post.

Having excised real social science by a real social scientist, Chait substitutes rhetorical questions for data. He does provide a link whose phrasing would lead one to assume that public employees don't get paid more than private sector employees.When you follow the link, however, you learn the author (journalist Jonathan Cohn of TNR) finds the evidence inconclusive:

Having spent some time reporting on public and private sector compensation before, I can tell you that there is a lot of disagreement over the proper way to adjust the raw compensation figures to account for variables like age, education, and so on. (The debate is as much philosophical as methodological: Some conservatives argue that public employers put an artificial premium on graduate education, effectively paying more for degrees that don’t make workers better qualified.) I haven’t seen a specific refutation of Keefe’s report on Wisconsin, but if you want to read an analysis that suggests public workers, in general, are over-compensated, Andrew Biggs of the American Enterprise Institute has done work along those lines--and has a new article in the Weekly Standard summarizing his views.

Finally, Chait completely ignores the alternative argument I offered based on the Wellington and Winter analysis, which expressly does not require that unions be on both sides of the bargaining table.

If you'll pardon me for using a variant of one of the infamous seven words, I call bullshit.

Fiduciary duties of employees

Robert Goddard reports on a pair of interesting cases from Scotland:

An employee does not owe the employer fiduciary duties by virtue of being an employee (see, e.g., Nottingham University v Fishel [2000] EWHC 221 (QB), [2000] ICR 1462). However, it has been recognised that the circumstances of the relationship may be such to give rise to a fiduciary relationship. In an opinion given last week - Samsung Semiconductor Europe Ltd. v Docherty [2011] CSOH 32 - Lord Glennie found that such circumstances were present in the case before him.

This strikes me as most curious. Under US law, employees typically will be deemed agents of their employer. Hence, Restatement (Third) of Agency § 7.07 provides that “an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work.” The Restatement elsewhere (§ 1.01) provides that all employees are agents, and that “[a]s agents, all employees owe a duty of loyalty to their employers.” Hence, although “employers do not generally owe fiduciary duties to employees,” “an employee normally owes fiduciary duties to his employer.” Combs v. PricewaterhouseCoopers, 382 F.3d 1196, 1200 n. 2 (10th Cir.2004)."

Having said that, Justice Felix Frankfurter famously observed that "[t]o say that a man is a fiduciary only begins analysis; it gives direction to further inquiry." We would then go on to ask whether the employee had breached his duties by engaging in the specified conduct. Whether that would lead to the same of a different result as the Scottish cases would be highly fact specific.

Corporate Veil Piercing and Corporate Formalities

Steve Bradford:

My Business Associations class has been discussing piercing the corporate veil.  Every time I return to this material, I’m struck by how intellectually vacuous the doctrine in this area is.

    Some of the factors courts consider in piercing have an obvious policy tie to the question at issue: whether the corporation’s creditors should be able to recover from one or more of the shareholders.  Undercapitalization, for instance, can have an obvious effect on the corporation’s ability to pay creditors.  There’s an argument that consensual creditors should protect themselves from any undercapitalization that exists at the time the debt is incurred, but at least there’s a tie between undercapitalization and harm to the creditors.  The same thing can be said for transfers of funds from the corporation to the shareholder after the obligation is incurred.  The harm to the creditors is obvious and, in the case of post-obligation transfers, the self-protection argument is more difficult.

    The factor that doesn’t seem to make sense is failure to follow corporate formalities.  In most cases, you cannot establish a causal link between the failure to follow corporate formalities and the creditor’s loss.  The creditor’s position is no worse because, for instance, the corporation didn’t hold regular board meetings or keep minutes of those meetings. 

    I understand the penalty argument—if you want a corporation, you have to comply with the rules for operating one, or we will penalize you.  But it’s a very uneven penalty.  Successful corporations are never penalized, no matter how blatantly they fail to follow corporate formalities.  They are able to pay their bills, so veil-piercing isn’t usually an issue.  Only corporations that fail to follow corporate formalities and are not successful are penalized.

This is why I advocate Abolishing Veil Piercing:

The corporate law doctrine of limited liability has been much written about, but veil piercing as such has gotten far less academic scrutiny. This article addresses that lacuna, offering a doctrinal and economic analysis of veil piercing. It concludes that veil piercing cannot be justified and, accordingly, advocates abolishing the doctrine. The standards by which veil piercing is effected are vague, leaving judges great discretion. The result has been uncertainty and lack of predictability, increasing transaction costs for small businesses. At the same time, however, there is no evidence that veil piercing has been rigorously applied to effect socially beneficial policy outcomes. Judges typically seem to be concerned more with the facts and equities of the specific case at bar than with the implications of personal shareholder liability for society at large. Veil piercing thus has costs, but no social pay-off.

Veil piercing tries to do too much. Allocating liability within a corporate group controlled by a publicly held corporation involves far different policy considerations than does holding liable the individual shareholders of a closely held corporation. These tasks should be unbundled. Intra-corporate group liability issues should be dealt with as a species of enterprise liability, while the liability of individual shareholders is the proper subject of veil piercing law.

So defined and delimited, the survival of veil piercing is difficult-if not impossible-to defend. A standard academic move treats veil piercing as a safety valve allowing courts to address cases in which the externalities associated with limited liability seem excessive. In doing so, veil piercing is called upon to achieve such lofty goals as leading shareholders to optimally internalize risk, while not deterring capital formation and economic growth, while promoting populist notions of economic democracy. The task is untenable. Veil piercing is rare, unprincipled, and arbitrary. Abolishing veil piercing would refocus judicial analysis on the appropriate question-did the defendant-shareholder do anything for which he or she should be held directly liable. Did the shareholder commit fraud, which led a creditor to forego contractual protections? Did the shareholder use fraudulent transfers or insider preferences to siphon funds out of the corporation?

How do we teach them to think like lawyers when we're only hiring PHDs?

Steve Bradford:

My former colleague Michelle Harner has written an interesting paper entitled The Value of “Thinking Like a Lawyer.”  Michelle recognizes that the market for legal services is changing, but argues for the preservation of that unique set of analytical skills that those in the legal profession call thinking like a lawyer.

Here’s the abstract:
“The legal profession was hit particularly hard by the recent recession. Law firms laid off lawyers in record numbers, and law school graduates found few if any employment opportunities. Clients also started rethinking the terms of the lawyer-client relationship, at least in the larger law firm context. Some commentators suggest that these changes are indicative of things to come; that the legal profession is undergoing a long-overdue paradigm shift that will permanently change the nature of the legal profession. This Essay examines these developments through the lens of Larry Ribstein’s The Death of Big Law and Richard Susskind’s The End of Lawyers?: Rethinking the Nature of Legal Services. It compares and contrasts Ribstein’s and Susskind’s analyses of the profession and assesses potential lessons for lawyers, clients, and legal educators. This Essay concludes by encouraging professionals to remain open to changes that improve efficiency and client service. It also stresses the value of preserving and promoting the hallmark of being a lawyer - that is, thinking like a lawyer.”

I agree, but how do we make sure law schools can teach people to think like lawyers when our hiring criteria increasingly privilege people who do interdisciplinary and empirical rather than traditional legal scholarship? When we hire people with mediocre law credentials just because they're good at running regressions or have a PhD? Or when the PhDs we hire went the law route either because law schools pay more or because they didn't have the chops to get a top job in their home discipline.

If we were still trying to hire folks because they were EIC of a top law review, head of their law school class, had a good clerkship, and some experience in a top law firm doing real law, I'd be more confident of our ability to teach people to think like lawyers instead of teaching them to think like mediocre statisticians, sociologists, philosophers, economists, or what have you.

Why Don't the Wisconsin Senate Republicans Just Pass the Collective Bargaining Section?

As I understand it, the Wisconsin Senate has 19 GOP and 14 Democrat members. (When the Democrat senators decide to respect the principle that elections have consequences and come back to their jobs, I'll let them have back their "ic." But not when they're behaving so undemocratically.)

The flight of the 14 Democrats out of state deprived the Senate of the 3/5 quorum necessary to conduct business relating to fiscal matters. As to non-fiscal matters, however, the quorum is a simple majority. The GOP members thus constitute a quorum for conducting such items of business.

As I understand the bill that triggered the Democrats mass exodus, it includes the controversial provisions cutting back on collective bargaining by public employees and various fiscal matters relating to public employee pensions and benefits and so on.

Here's what i don't understand: Why can't the Wisconsin Senate Republicans simply cut the bill in half? Leave the fiscal reforms for another day when the Democrats come crawling back. In the meanwhile, however, put the collective bargaining provisions up for a vote. Is there some bizarre rule that sweeps collective bargaining rights into a broad definition of fiscal? If not, why not just do it. Or at least threaten to do it to put pressure on the Democrats?

At the end of the day, what matters in Wisconsin is not dollars and cents. What matters is limiting the power of public employee unions. As I discussed here a few days ago, I find the case against public sector unionism compelling. So I'd urge the Wisconsin Republicans to pull the trigger and pass the collective bargaining limits now.

A Few Questions about the Wisconsin Teacher's Walk Out

Althouse:

Madison schools will close again on Monday — the 4th school day in a row — to accommodate teachers protesting at the Capitol.

"Nearly 3,000 Madison teachers, staff and family gathered at Monona Terrace... At one point, the [union] membership was so evenly divided on a vote to return to work Monday, they were asked to exit the meeting room and re-enter through two separate doors so an exact count could be taken. The vote was 741-731 to return Monday, but a later, more overwhelming vote to return Tuesday won the day."

I've got a few serious questions to which I honestly don't know the answer:

1. Is the teacher walk out a strike?
2. If so, is it a legal strike?
3. If it is an illegal strike, who would have the authority to go PATCO on the teachers?
4. If it doesn't qualify as a strike, is it the educational equivalent of blue flu?
5. Is a blue flu illegal under Wisconsin law?
6. If so, who would have the authority to fire or otherwise sanction the teachers?

Finally, why isn't somebody doing something to force the protestors to get back to work?

Top 10 Greatest Presidents

A pre-President's Day Gallup poll ranks America's Greatest Presidents as chosen by those polled:

This got me to thinking about how I would rate the top 10. I decided to focus solely on what they did as President. Hence, while I totally honor him for it, Washington's service as commander-in-chief and in the Constitutional Convention don't count. They make him a Great American, but they don't affect his greatness as President. Accordingly, I start my list with Lincoln.

1. Abraham Lincoln: Preserved the Union. Emancipation Proclamation. Set stage for reconciliation. Homestead Act. National Banking Act.
2. George Washington: Defined so many of the President's roles. Avoided foreign entanglements. Put down rebellion. Jay Treaty. Kept balance between Hamilton, Adams, and Jefferson, no small task. Bill of Rights on his watch. 
3. Thomas Jefferson: I've lost most of the hero worship I developed for Jefferson while attending his University and reading Dumas Malone's magisterial biography (Jefferson the Virginian (Jefferson and His Time)). His failures re slavery and his sympathy for the French revolutionaries appall. Conor Cruise O'Brien's superb biography The Long Affair: Thomas Jefferson and the French Revolution, 1785-1800 was a useful corrective. Still, he helped John Adams set the precedent for peaceful transition of power between Presidents of differing parties. Lewis & Clark. The Louisiana Purchase. Barbary pirates dealt with. Foundation of US Navy. Ended external slave trade on time.
4. Theodore Roosevelt: Possibly ranked too high. Must admit to admiring his out-sized personality. But I think he actually had a lot of very significant accomplishments: Panama Canal. Great White Fleet. US starts to become Great Power. Trust busting. Food and drug regulation. Conservation. National parks.
5. Franklin Delano Roosevelt: Pains me to rank him this highly. The bad: Created modern regulatory state. Court packing scheme. Keynesian economics. Allowed Japanese internment. Corporatism in the early New deal (esp. NIRA). But there is also so much good: Lend-lease kept UK in war. Managed coalition warfare among the Allies. Won the war. Set stage for post-war American dominance. Ended racial discrimination in federal government hiring and thus helped set the stage for successful civil rights movement.
6. Ronald Reagan: My favorite President. Tax cuts and reform. Military buildup bankrupted Soviet Union. Won the Cold war. Arms reduction. Morning in America after Carter malaise. Would rank higher if he had actually done more to cut the size of government. Starving the beast didn't work. Only gave lip service to pro-life movement. Put Swinging Sandy O'Connor and Anthony Kennedy on SCOTUS, thereby preventing emergence of a solid conservative majority.
7. Dwight D. Eisenhower: Ended Korean War. Balanced budget 3 out of 8 years. Interstate highway system. Civil Rights Act of 1956.
8. John Adams: At this point, you start getting into the territory where candidates have some serious warts. E.g., the Alien & Sedition Act. On the plus side, he managed the crisis with France despite a telling lack of support from either major party or his own cabinet. And he helped set the precedent for peaceful transition of power between Presidents of opposing parties.
9. James Polk: Reduced tariffs. Managed the Fifty-four forty or fight crisis to a peaceful resolution. Won the Mexican war, annexing Nevada and California. Second only to Jefferson in the amount of territory he added to USA.
10. Andrew Jackson: Speaking of warts, the Indian Removal Act remains a blot on the national escutcheon. On the plus side, there was the veto of the rechartering of the Bank of the United States. Squashed South Carolina's secessionist tendencies for a couple of decades. Managed the Nullification crisis and the Texas revolution. Expanded the voting public.

Comparing my list to the Gallup poll, Clinton comes in way too high on the latter. I'd put him somewhere around 15 or so. If only he could have kept his pants zipped.

Kennedy is even more overrated. I get the mystique. All that Camelot crap. But his positive record's pretty thin and there's a ton of negatives.

It's way too soon to draw conclusions about Obama, but my guess is that he'll end up in the bottom third.

W should be somewhere in the bottom quintile. The war of choice in Iraq still seems like a mistake, all things considered. The failure to catch Osama. Massive deficits. Huge growth in entitlements. The corruption of the K Street Gang.

Jimmy Carter goes into the bottom quintile too. Gave away the Panama Canal. Pardoned the draft dodgers. Fumbled Iran. The hostages. The malaise speech. Stagflation. It was the worst presidency of my adult life.

Richard Nixon is a most interesting case. He was a liar and a cheat. Given half a chance, he might have become a usurper as well. His efforts to ape Disraeli's progressive toryism mostly turned into left-liberal programmatic victories. Massive expansion of the regulatory state. Harry Blackmun was an awful SCOTUS choice. Wage and price controls flopped, as one would expect. Adopted Keynesian economic policies. Yet, he also did a lot of really good stuff, especially in foreign policy. Relations with China. Detente. SALT I and II. Saved Israel's bacon in the 1973 war with Operation Nickel Grass. Got us out of Vietnam quagmire, albeit by throwing the South Vietnamese under the bus. Took us off the gold standard. Doesn't get enough credit for efforts in areas of school desegregation and civil rights generally. William Rehnquist and Lewis Powell were great SCOTUS choices. How does one grade such a mixed bag?

What is really shocking abut the whole exercise is the number of nonentities, mediocrities, and flops who have made it to the Oval office. With the exception of Polk and Jackson, the Presidents who served between Monroe and Lincoln were almost all mediocrities, at best. The list between Lincoln and Teffy Roosevelt is equally uninspiring. In the modern era, you've got oddities like Carter, Gerald Ford, Bush 41 and 43, and Obama.

Surely we can do better.