ProfessorBainbridge.com

Pileggi on noteworthy Delaware cases from 2011

Among the many public services rendered by Francis Pileggi's blogging  is his annual roundup of important Delaware cases. It's a must read for me, as a check to make sure I haven't missed anything. Inevitably, there will be some case(s) that slipped past me during the year but about which I am glad to now know.

I just read Pileggi's 2011 post. How did I miss Openlane?

Civility in context

Matt Bodie chides Roberta Romano, Larry Ribstein, and I for standing up for ourselves against John Coffee's (as Romano put it) "serial namecalling." We could quibble about whether what Coffee wrote is actually insulting; I still think so given our history. Indeed, it's curious that Bodie leaves out and reference to the Sgt. Schultz crack (which admittedly still rankles).

Bodie also complains that we've all "Called a major piece of federal legislation "quack corporate governance.'" BFD. There's a huge difference between uncivil towards a person and being uncivil about a piece of legislation.  

So Bodie's main complaint is that Larry and I have been uncivil from time to time when blogging. I concede the charge. Although I'm usually a pretty civil fellow even on this site, there have been more than a few times when I cut loose with a few zingers. But so what?

In his essay The Circumstances of Civility, Brian Leiter defines civility as "showing respect for the other person or persons with whom one is conversing; avoiding insulting, demeaning or derisive language (or gestures); and genuinely listening to (and trying to make good sense of) what the other person says." A good working definition. I'll adopt it.

But when should one be civil? 

Leiter argues that context matters:

Some philosophers with Kantian intuitions think that civility is always a general requirement of respect for persons, an intuition that I do not share, and for which I can not think of any compelling arguments, and many objectionable counter-examples, like those in the text: treating Nazis in Weimar with civility seems to me a moral failing on the part of their opponents, not a requirement of respect. Such a demanding conception of civility would also be incompatible with derisive polemics (think H.L. Mencken), which often play an important role in political and social life. 

Instead of being a universal value, Leiter argues that civility is a paramount virtue in settings characterized by "epistemic values and motives: knowledge, understanding, learning, and the desire for all of these."

Leiter offers teaching as the prime example of such a circumstance. I would argue that formal scholarship and academic conferences, however, come in as close seconds. They are conversations in which people are trying to exchange knowledge and learn from one another. Incivility in those contexts distorts the conversation and therefore tends to impede the epistemic values inherent in those contexts.

Blogging is something else entirely. It's not a conversation (at least the way i do it), it's a monoloque. To be sure, there's some learning and imparting of knowledge going on, but there's also politics, football, and so on. Insults, disparaging or derisive remarks, and even expressions of contempt have been part and parcel of the enterprise since the start. No sensible person would deny that Leiter is a serious and important scholar, for example, but he admits to routinely be uncivil in the blogosphere:

It has, on occasion, been noted that gentleness is not the hallmark of my postings on this blog, at least on matters of a political nature. The fans call it the "no bullshit" approach, pungent, acerbic. This law student calls me, aptly enough, "the man who blogs with a hammer," while Jeremy Stangroom at Butterflies & Wheels says I am "everyone's favorite Rottweiler." (I'm not sure about everyone's.) Dispassionate discursiveness is not the medium in which I generally operate here, a fact for which some of my philosopher friends occasionally take me to task.

While I've never had the misfortune of being a target of Brian's rapier wit, some of the things other people have said about yours truly in the blogosphere make comparing one to Sgt. Schultz sound like a compliment. Because I know the blogosphere is a rough place, I've mostly ignored them or, rarely, responded in kind. In contrast, I both give and expect civility in scholarly settings, which is why I took issue with Coffee.

There's a time and a place for "Dispassionate discursiveness" and a time and a place for incivility. I'm comfortable with where I've chosen to draw the line.

Truth on the Market gangs up on yours truly

As regular readers know, the ABA Journal has named Professor Bainbridge.com as one of the top 100 law blogs (fourth time in 5 years). But now my "friends" at Truth on the Market are giving me the backhanded compliment of ganging up on me:

Until December 30, polls are open over at the ABA Journal to vote for your favorite blog in each of the categories.  We urge all of our readers to go to http://www.abajournal.com/blawg100 to register and to vote for Truth on the Market in the Business Law category. At the moment we’re neck and neck with our friend Prof. Bainbridge for the top slot.  It may be close, but the 8 of us should be able to best the 1 of him!

Eight to one! Are you going to let the TOTM bullies gang up on our happly little community here at PB.com?

Of course not. So please go over to the ABA site, register, and vote for PB.com as one of your 12 favorite law blogs. I'm in the Business Law category. Thanks for your support!

Have you voted for me yet?

If you haven't yet voted for ProfessorBainbridge.com as one of your favorites among the Top 100 law blogs, please go over to the ABA site, register, and vote for PB.com as one of your 12 favorite law blogs. I'm in the Business Law category. Thanks for your support!

 

Lion does not play well with Windows networks

After years of campaigning with our IT folks, I finally persuaded them to let me buy a Mac at the office. Until yesterday, it worked seamlessly with our Windows network. But then ....

I installed the Lion OS.

Installing Lion not only severed the connections to my drives on the network server, it also did something that makes it impossible to reconnect them via SMB. I've got internet access, email, printer connections, etcetera. Just no network access.

It turns out that this is a known problem, but Apple products have worked so well for me in the past that I didn't bother checking.

Lesson of the day #1: Check for known problems with any critical applications/resources before upgrading your OS.

Lesson of the day #2: Back up your files to iCloud or Dropbox. Because I did so I can continue working with all my files while waiting for Apple or my IT folks to fix this.

And so a request for Apple: Please fix this in the next update for Lion. Thanks.

PB.com chosen as one of ABA's Top 100 Blogs

For the fourth time in five years, ProfessorBainbridge.com has been chosen as one of the Top 100 law blogs by the ABA Journal. I'm delighted and honored to be in such excellent company. But now it's your turn to do me a favor: Go over to the ABA site, register, and vote for PB.com as your favorite law blog. I'm in the Business Law category. Thanks for your support!

Corporate governance/law blogs matter

Congratulations to our friends at Conglomerate and TOTM for having been flagged by Bill Savitt of Wachtell as having an important impact on Delaware corporate law. As Gordon Smith at the former noted:

According to Savitt, one reason the Delaware courts are in a better position than other courts to legislate or regulate, rather than just deciding incrementally, is that Delaware decisions are subject to extensive commentary from academic bloggers!

Savitt also flagged our friends Pileggi and Davidoff as influential corporate law bloggers. Kudos to all.

But Savitt apparently had no love for ProfessorBainbridge.com. So what are we? Chopped liver? Westlaw searches in the De-CS library turned up no hits for either theconglomerate.org or truthonthemarket.com. In contrast, professorbainbridge.com kicked up two cites. Consider, for example, Desimone v. Barrows, 924 A.2d 908 (Del. Ch. 2007):

 

By way of example, consider the concerns of some distinguished scholars about the boundaries between law and equity in this area. Those scholars posit that if directors violate the express terms of a stockholder-approved stock option plan, they have acted without authority and their actions may be set aside as invalid, because the directors did not have the authority to take those actions in the first place.^FN82 Therefore, these scholars see little room for the application of fiduciary principles to judge such behavior.^FN83 

FN82. See, e.g., Stephen M. Bainbridge, Ryan v. Gifford: Chandler Tackles Stock Options, at ProfessorBainbridge.com, http:// www. professor bainbridge. com/ 2007/ 02 / ryan—v— gifford. html (Feb. 7, 2007).

FN83. E.g., id. (arguing that if the backdated option grants are declared invalid as being ultra vires, there is no further harm to the corporation to justify derivative litigation against the board); see also Larry E. Ribstein, Bainbridge and Chandler on Backdating, at http:// bus movie. typepad. com/ ideoblog / 2007/ 02/ bainbridge— and—. html (Feb. 8, 2007) (agreeing that backdated options can be set aside as ultra vires and noting that although a disclosure violation would still remain, fashioning a remedy for the disclosure violation would be problematic).

As Bertie Wooster once observed, after all, "I mean, while one lives for one's Art, so to speak, and cares little for the public's praise or blame and all that sort of thing, one can always do with something to paste into one's scrap-book, can one not?"

Oh well, at least we got some tweet love for the scrapbook.

 

We get some tweet love

From @CorpGovLeaders

@ProfBainbridge on Plurality Voting for Electing Directors http://t.co/RQjU4tCJ #ABA #Delaware - great blog on #corpgov#directors

I supplied the emphasis for "great blog," of course.

Pierre Schlag's new blog

A few years ago, I had occasion to observe that:

I've never met Pierre Schlag, a constitutional law professor at the University of Colorado, but at a distance he seems like a very interesting guy. One of his books, for example, has been described as reading:

... as if it were written by an alienated central European intellectual smoking bad cigarettes in a cheap urban room and getting a lot off his chest. Reason in law is a sham. It cannot be anything but a sham, and, since in liberal culture reason is the basis of law’s authority, liberal versions of law are and always will be shams. Reason can only be understood as a modest and inherently skeptical enterprise, one deeply incompatible with political rule. The rule of law is rule by the beliefs of those in power. Reason is merely power’s rhetorical cover. It signifies nothing, at least nothing honorable. ... Readers must know their Derrida, Foucault, Lyotard, and Nussbaum as well as their H.L.A. Hart, Dworkin, and Sunstein to follow the argument.

We corporate law types don't run into Foucault very often and I could go the rest of my career quite contentedly without reading any more articles by or about Dworkin. Yet, having said that, I occasionally aspire to being an alienated Anglophile intellectual smoking bad cigars and drinking red plonk in some cheap Paris cafe. So that's a common bond right there.

I mention this because Schlag is now co-authoring a new blog called "brazenandtenured–law politics nature and culture". In his email announcing the blog, he wrote that:

It's on law, politics, nature and culture.  It will contain mini-essays, commentaries, and experimental-idea pieces on all these subjects (and perhaps more.)   We’re trying to redeem through example and experimentation the idea that law is part of the liberal arts.

I suspect I won't agree with very many of the normative and political claims advanced in the new blog, but early returns suggest that it's going to be well written, interesting, and provocative. Should be a good read, so I'm blogrolling it.

The impact of blogging on scholarship

Joshua Fershee blogs:

David McKenzie & Berk Ozler have posted The Impact of Economics Blogs on SSRN. Here's the abstract:     

There is a proliferation of economics blogs, with increasing numbers of economists attracting large numbers of readers, yet little is known about the impact of this new medium. Using a variety of experimental and non-experimental techniques, this study quantifies some of their effects. First, links from blogs cause a striking increase in the number of abstract views and downloads of economics papers. Second, blogging raises the profile of the blogger (and his or her institution) and boosts their reputation above economists with similar publication records. Finally, a blog can transform attitudes about some of the topics it covers.

I'm curious if this holds true for Business Law Bloggers, too.  My suspicion is that the findings would hold true across disciplines or at least many disciplines. As the authors explain:

This evidence is . . . consistent with the view that blogging helps build prestige and recognition in the profession, with bloggers being more likely to be admired or respected than other academics of similar (or in many cases better) publication records. This is of course only a correlation, and there are several caveats to consider. First, to the extent that blogging serves to increase the RePEc ratings by increasing downloads (as seen in the previous section) and citations, the observed correlation will be a lower bound on the causal impact of blogging. However, if bloggers are also more likely to be engaged in other activities of a public intellectual, such as media appearances, writing books etc., and if these don't all arise directly as a result of blogging, the estimates will conflate the impact of blogging with the impacts of these other activities, thereby overstating the impact of blogs. Nevertheless, given the large magnitude of the coefficient observed, it does not seem likely that all of the observed impact of blogging just reflects omitted variables, and therefore we view this evidence as strongly suggesting that blogging increases the influence, respect, or public image of the blogger. [footnote omitted]

There is always the risk a prolific blogger will get a greater (and disproportionate) share of recognition for being more "out there" more often than a non-blogging colleague.  That said, a consistent, if not prolific, blogger who has a similar publication record may be more connected to current events in his or her profession. And blogging demonstrates a willingness and ability to share opinions (for better or worse).  

Blogging can't, and shouldn't, replace other forms of scholarship. But in addition to tradtional scholarship, it adds to the overall depth, and especially breadth, of knowledge. At least, it does for me. I truly believe my scholarship and my teaching have improved because of blogging, even if, sometimes, it feels like a lot of "extra" work.  As long as it is making me better at what I do, it's work I need to do.

I have no doubt that being an active blogger has helped my SSRN download and law review citation stats. Until california killed the golden goose, I also used to make a few bucks at it. And I still have fun with it, so I just keep grinding away. But I also still see blogging as a mixed enterprise rather than solely a scholarly adjunct.

Blog Roll Addition

I am now following Keith Bishop's California Corporate and Securities Law blawg. Extremely useful resource on all things California business law-related.

Outing LawProf--Updated after he outed himself

LawProf is the nom de plume of the anonymous blogger at Inside the Law School Scam who claims to be "a tenured mid-career faculty member at a Tier One school" purportedly exposing legal education as a "scam."

His identity (and in this instance I use the pronoun to indicate gender) is now pretty widely known (or, perhaps, assumed to be _________. Larry Ribstein recently replied to his claims in a more professional way than he deserves.

Brian Leiter goes in another direction:

ScamProf is the failed academic who has done almost no scholarly work in the last decade, teaches the same courses and seminars year in and year out, and spends his time trying to attract public attention, sometimes under his own name, this time anonymously.  These are important facts about ScamProf, since he is indeed scamming his students and his state, and his initial posts were tantamount to a confession that he's not doing his job.   His colleagues, in any case, now know who he is, and are quite understandably angry, since the reckless genearlizations are naturally read as commentary on them. ... When his identity comes out, there will be additional ironies that will warrant comment.

Brian's talent for invective remains unmatched. I enjoy it even when it's directed at your truly, although not quite as much when it's directed at somebody like ScamProf.

The thing that puzzles me is: Why has nobody outed the dude? As Leiter put it the other day, his identity is obvious (although not to me, but that's just because I was too lazy to put two and two together).

My colleague Eugene Volokh thinks there are serious ethical issues involved in outing anonymous bloggers. I don't. I agree with Michael Krauss' take on an earlier case when Ed Whelan an anonymous blogger on Obsidian Wings as professor John Blevins of South Texas School of Law.

Incredibly, Blevins has defended his anonymous sniping as ethical: he didn't want to get in trouble with his law school, he didn't want to embarrass his family, he didn't want to offend his students. What Blevins didn't want to do, sez me, is take responsibility for his opinions. When you attack someone by name, you name yourself -- we are not in revolutionary times where the original Publius could go appropriately unnamed.

On the substantive debate between Blevins and Whelan, I think Whelan easily has the upper hand, but readers can decide this for themselves. On the propriety of hiding behind a pseudonym while sniping at a critic who is out in the open, I see no redeeming argument.

I have no personal proof of Lawprof's identity. But if those who do decide to out him, I'll applaud.

UPDATE: LawProf has outed himself as Paul Campos.

BTW, I'm closing comments on this post so as to preclude uninformed speculation as to LawProf's identity.

Sullivan and Farrell paint with too broad a brush

I normally like and respect Andrew Sullivan and Henry Farrell, but they're way over the deep end right now:

Are Right-Wing Blogs More Dangerous Than The Left? In a word, in our current world: yes. Henry Farrell uses WaPo Ombudsman Patrick Pexton's weak defense of Jennifer Rubin's blaming al-Qaeda for the Norway attacks to make a larger point about the role of blogs in fomenting violence:

There is no effective contact between e.g. MoveOn or the Daily Kos on the one hand, and the various subgroups and splinters who are more enthusiastic about violence on the other. When the latter try to influence the former, they get mobbed and repelled. The right is a quite different matter – there are dense social ties between online partisans and anti-Muslim bigots and crazies claiming that universal dhimmidom is right around the corner. ...

That's just fucking asinine. Do Farrell and Sullivan really think that the right-side equivalent of MoveOn or Kos--i.e., places like Redstate, The Corner, the Volokh Conspiracy, Instapundit, or the like--have any greater connection with right wing terror groups than Kos or MoveOn have with, say, ecoterrorist groups? If so, where's the evidence?

Sullivan in particular seems increasingly lacking in nuance, lumping everybody right of center into a single pot to be damned as often as possible.

Vacation break

I'm off on a week's vacation and won't be blogging during that period. I'll probably still be tweeting, however, so you can follow me at http://twitter.com/#!/ProfBainbridge. Blogging will resume next week.

PB.com Design Updates

Close observers will notice a few site updates. I've added a profile page. I've created a new page for my updated comment policy. I've added a page with a disclaimer making clear that nothing in this blog constitutes legal advice. Finally, I've added a page with a disclaimer making clear that the opinions expressed herein are mine alone and do not represent the views of the law school at which I am employed, its administrators, faculty, or students.

Links to these pages appear in the "About" section of the inner right-hand column.