ProfessorBainbridge.com

Citing to Cases Pulled From Google Scholar

Josh Camson takes a look at the issue and concludes that the correct format for the url one should use when citing cases found in the Google Scholar database is:

http://scholar.google.com/scholar_case?case=CASENUMBER

Unfortunately, that is not the URL that will appear in the address bar when you first found the case. He cites, as an example, a search for commerce clause cases that kicked up US v. Lopez. The address bar will read:

http://scholar.google.com/scholar_case?case=18310045251039502778&q=commerce+clause&hl=en&as_sdt=800000000003

Instead of just copying and pasting the address bar url, you thus have to identify the case number (the number after the first equals sign and before the ampersand) and manually insert it into a manually typed citation using the correct url format. I guess you could short cut part of the process using autotext, but it still looks to be a pain in the ass. Why not just stick to Lexis or Westlaw (setting aside cost)?

My biggest complaint about citing internet sources, however, remains the unwieldy length of most urls. It inevitably messes up the appearance of the page when using fully justified fonts.

Hacking and Insider Trading

BNA Securities Regulation and Law Report:

The U.S. District Court for the Southern District of New York March 24 granted summary judgment to the Securities and Exchange Commission in the case involving Ukrainian computer hacker Oleksandr Dorozhko (SEC v. Dorozhko, S.D.N.Y., No. 07 Civ. 9606 (NRB), 3/24/10).

In the closely watched proceedings, the SEC had argued that hacking into computer systems to obtain confidential, internal information that is later used to trade securities violates 1934 Securities Exchange Act Section 10(b) and Rule 10b-5 even in the absence of a breach of fiduciary duty.

In July, the U.S. Court of Appeals for the Second Circuit agreed with the SEC, concluding that a computer hacker who trades on material nonpublic information can be held liable for insider trading even if the hacker did not violate any fiduciary duty in obtaining the information (41 SRLR 1410, 7/27/09). The appellate court remanded for the district court to determine “whether the computer hacking in this case involved a fraudulent misrepresentation that was ‘deceptive’ within the ordinary meaning of Section 10(b).”

In February, the SEC moved the district court for summary judgment. Dorozhko's counsel Charles A. Ross, of Charles A. Ross & Associates LLC, New York, did not oppose the motion, telling the court that his efforts to reach his client for instructions have been unsuccessful (42 SRLR 519, 3/22/10).

I continue to think the case was wrongly decided, for the reasons I explained in my essay RULING ON HACKERS AS INSIDE TRADERS: RIGHT IN THEORY, WRONG ON THE LAW:

Should Underwriters Sell CDSs on Their Client's Bonds?

Dealbook reports that:

California’s state treasurer, Bill Lockyer, has sent a letter to six big banks that underwrite the state’s municipal bond sales, asking about the banks’ involvement in selling credit-default swaps on California debt, Reuters reports.

The letter to Bank of America-Merrill Lynch, Barclays, Citigroup, Goldman Sachs, JPMorgan Chase and Morgan Stanley expresses concern that the spreads on the California credit-default swaps are mispricing the state’s credit risk and inflating interest costs.

More from Reuters:

“I have no preconceived notions about the effect of C.D.S. trading on California (general obligation) bond prices, or about your firm’s activities in the California C.D.S. market,” Mr. Lockyer said in his letter, released late Monday.

“I do, however, worry about firms selling our bonds, on one hand, and trading C.D.S. on our bonds, or otherwise participating in that market, on the other.”

Taxpayers have a right to know, Mr. Lockyer added — and others in the municipal debt market agreed.

“If anybody has the right to ask the question it’s probably the state of California,” said Michael Pietronico, chief executive of Miller Tabak Asset Management in New York, which oversees $250 million in assets,

“The state pays out substantial underwriting fees because it’s one of the top issuers in the country and it has a right to know if they’re working on its behalf,” Mr. Pietronico said.

I certainly think California's entitled to disclosure here. Sunshine being the best disinfectant, and all that. By analogy to agency law, underwriters ought not earn secret profits on their dealings on behalf of the principal. But I'm not sure I see a serious conflict of interest here. As long as the underwriters are charging California market rate commissions and using their best efforts to sell all the bonds offered, how does selling CDSs on those bonds conflict with California's interests?

I suppose under some circumstances the CDS market could affect the market for California bonds, but why should that per se disqualify these underwriters? So long as they disclose, California's no worse off than it would otherwise be. After all, somebody's going to sell those CDSs. So why shouldn't California's underwriters get to wet their beaks?

Jones v. Harris Decided

The Supreme Court today issued a unanimous decision in Jones v. Harris, a case in which a mutual fund investor challenged allegedly excessive advisory fees.

Regulatory Background

• Congress enacted Investment Company Act of 1940 to mitigate conflicts of interest inherent in relationship between investment advisers and the mutual funds they create
• Section 36(b) imposes on investment advisers a fiduciary duty with respect to the receipt of compensation for services
• Authorizes fund shareholders to bring claims for breach of fiduciary duties
• Approval by the board of directors is not conclusive…shall be given consideration by the courts as deemed appropriate under all circumstances

The Second Circuit decision in Gartenberg v. Merrill Lynch Asset Management, Inc. set prevailing standard for more than 25 years:

• Does the fee schedule represent a charge within the range of what would have been negotiated at arm's-length; or
• Are the fees so disportionately large that it bears no reasonable relationship to the services rendered
• Gartenberg found that fees paid to other fund advisers were not dispositive
• A court should rely on its own business judgment to determine whether the fee is inconsistent with the investment advisers fiduciary duty under Section 36(b)

Courts should consider six factors:

• Nature, extent and quality of services provided to fund shareholders
• The profitability of the fund’s fees to the adviser
• Fallout benefits to the adviser
• Whether fee levels reflect economies of scale as the fund grows
• Fee structure of comparative funds
• The independence and conscientiousness of the trustees

The Seventh Circuit Opinion in Jones v. Harris Associates Easterbrook's majority opinion held that

• Harris had not violated the Act because the fees were ordinary
• Rejects Gartenberg approach ("because it relies too little on markets")
• Disclosure plus fee-setting market will regulate itself
• Investors vote with their feet and dollars
• Market competition rather than a "just price" administered by the courts is appropriate
• Judge Posner issued dissent and chided the panel for rejecting Gartenberg

SCOTUS Opinion (per Alito)

The syllabus of the SCOTUS decision informs us that:

Based on §36(b)’s terms and the role that a shareholder action for breach of the investment adviser’s fiduciary duty plays in the Act’s overall structure, Gartenberg applied the correct standard.

(a) A consensus has developed regarding the standard Gartenberg set forth over 25 years ago: The standard has been adopted by other federal courts, and the Securities and Exchange Commission’s regulations have recognized, and formalized, Gartenberg-like factors. ...

(b) Section 36(b)’s “fiduciary duty” phrase finds ts meaning in Pepper v. Linton, 308 U. S. 295, 306–307, where the Court discussed the concept in the analogous bankruptcy context: “The essence of the test is whether or not under all the circumstances the transaction carries the earmarks of an arm’s length bargain. If it does not, equity will set it aside.” Gartenberg’s approach fully incorporates this understanding, insisting that all relevant circumstances be taken into account and using the range of fees that might result from arm’s-length bargaining as the benchmark for reviewing challenged fees. ...

(c) Gartenberg’s approach also reflects §36(b)’s place in the statutory scheme and, in particular, its relationship to the other protections the Act affords investors. Under the Act, scrutiny of investment adviser compensation by a fully informed mutual fund board, see Burks v. Lasker, 441 U. S. 471, 482, and shareholder suits under §36(b) are mutually reinforcing but independent mechanisms for con-trolling adviser conflicts of interest, see Daily Income Fund, Inc. v. Fox, 464 U. S. 523, 541. In recognition of the disinterested directors’ role, the Act instructs courts to give board approval of an adviser’s compensation “such consideration . . . as is deemed appropriate under all the circumstances.” §80a–35(b)(1). It may be inferred from this formulation that (1) a measure of deference to a board’s judgment may be appropriate in some instances, and (2) the appropriate measure of deference varies depending on the circumstances. Gartenberg heeds these precepts.

(d) First, since the Act requires consideration of all relevant factors, §80a–35(b)(2), courts must give comparisons between the fees an investment adviser charges a captive mutual fund and the fees it charges its independent clients the weight they merit in light of the similarities and differences between the services the clients in question require. In doing so, the Court must be wary of in-apt comparisons based on significant differences between those services and must be mindful that the Act does not necessarily ensure fee parity between the two types of clients. However, courts should not rely too heavily on comparisons with fees charged mutual funds by other advisers, which may not result from arm’s-length negotiations. Finally, a court’s evaluation of an investment adviser’s fiduciary duty must take into account both procedure and substance.Where disinterested directors consider all of the relevant factors, their decision to approve a particular fee agreement is entitled to considerable weight, even if the court might weigh the factors differently. Cf. Lasker, 441 U. S., at 486. In contrast, where the board’s process was deficient or the adviser withheld important information, the court must take a more rigorous look at the outcome. Id., at 484. Gartenberg’s “so disproportionately large” standard, reflects Congress’ choice to “rely largely upon [independent] ‘watchdogs’ to protect shareholders interests,” Lasker, supra, at 482.

So Easterbrook's opinion is reversed. Posner's position (more or less) prevails. As for the debate between the two, however, the bottom line expressed by Justice Alito's unanimous decision was that "The debate between the Seventh Circuit panel and the dissent from the denial of rehearing regarding today’s mutual fund market is a matter for Congress, not the courts."

Can a State Take Federal Land by Eminent Domain?

Apparently, Utah is trying to do just that:

...  as reported by the AP: Utah Governor Gary Herbert on Saturday authorized the use of eminent domain to take some of the U.S. government’s most valuable parcels.

Yes, LBers, you’ve read that correctly: a state has invoked eminent domain in order to take back land from the feds.

According to the AP, Herbert signed a pair of bills into law that supporters hope will spark similar legislation throughout the West. Many contend that federal ownership of wide parcels of land restricts economic development in an energy-rich part of the country. Many people in Utah are still angry that President Clinton designated a large area in Utah as a national monument in 1996, a move that stopped development on the land.

More than 60 percent of Utah is owned by the U.S. government, and policy makers here have long complained that federal ownership hinders their ability to generate tax revenue and adequately fund public schools.

I have no idea whether this could work either under the facts of the case at bar or, more generally, under any set of circumstances. But some quick Westlaw research kicked up a seemingly relevant case, which --oddly enough--also comes from Utah; namely, Utah Power & Light Co. v. U.S., 243 U.S. 389 (U.S. 1917), in which we find that:

Should't a Reasonable Investor Have a Smidgen of Common Sense?

BNA Securities Regulation and Law Reports relates that:

Sean David Morton, a self-described “natural psychic, trained Remote Viewer, [and ] intuitive consultant,” was charged March 4 in the U.S. District Court for the Southern District of New York over his alleged role in a multi-million dollar offering fraud in which he touted his psychic ability to predict stock market movements (SEC v. Morton, S.D.N.Y., Civil Action No. 10-CV-1720, 3/4/10).

In a release that day, the Securities and Exchange Commission said that beginning in 2006, Morton solicited investors in companies he and his wife controlled—the entity defendants—by claiming he would use his “psychic expertise to provide investment guidance to his investing team.”

In order for statements to be actionable as securities fraud, they must be material. Facts are material if there is a substantial likelihood the reasonable investor would consider them to be important in making decisions about investments. Granted, the SEC complaint identifies a number of statements that purport to be factual. E.g., "'I have called ALL the highs and lows ofthe market, giving EXACT DATES for rises and·· crashes over the last 14 years.' (emphasis in original."

But shouldn't context matter? Consider, by way of analogy, the bespeaks caution doctrine. The doctrine, in its simplest form, says that statements are to be read in context. In practice, courts posit that corporate statements alleged by plaintiffs to be materially misleading must be read in the context of relevant cautionary statements the company has made elsewhere. Take a statement by a CEO saying something like, “I am confident that our earnings this year are going to be much better than those in the past.” Let us say that the facts suggest that the company was doing badly at the time the CEO made the statement, or at least not showing any signs of outdoing its past performances. A court using the bespeaks caution doctrine might point to other language in the prospectus and registration statement along the lines of “this company exists in a volatile marketplace and there are no guarantees that our stock price will consistently increase” and say that, in the context of the warning, the CEOs statement is immaterial as a matter of law.

Here, the relevant other language is not cautionary in the traditional sense. If Morton in fact was telling investors that he was using "his 'psychic expertise to provide investment guidance to his investing team,'" shouldn't that have alerted a reasonable investor to take any other statements made by Morton with more than just a grain of salt? A reasonable investor presumably does not make decisions using a Magic 8 ball. Yet, one of Morton's investment vehicles was named "Magic Eight Ball Distributing."

The SEC complaint claims that we can infer materiality from the fact that some investors invested with Morton. But this is bootstrapping, at best. The mere fact that some investors are idiots does not tell us anything about what the proverbial reasonable investor would have done in these circumstances. After all, as PT Barnum put it, there's a sucker born every minute. See See Hillson Partners L.P. v. Adage, Inc., 42 F.3d 204, 213 (4th Cir.1994)(courts need not ascribe “childlike simplicity” to reasonable investor, but should ask whether investors would have considered information significant).

Housing Sector Fragility

At the Business Law Prof blog, Josh Fersee opines that "It's Time to Trust the Housing Market Again."

A major, and continuing, part of the financial crisis relates to the struggling housing market. According to the National Association of Realtors, housing inventories are up slightly, possibly driven by those seeking to “trade up” in the “down market.” This could help signal (and fuel) a turn around in the housing market. However, credit remains difficult to obtain, and just as important (and unfortunate), home buyers (and sellers) are facing a difficult appraisal market, too. An interesting aside: All-cash sales are a remarkable 27% of all sales (10% is the more typical number), another indicator that banks aren’t fueling a recovery in the market. All-cash sales, of course, skip the need for mortgage approval (and appraisal).

Count me as a skeptic. It's pretty clear that government bailouts aren't working very well in this sector:

The $75 billion Home Affordable Modification Program, which originally sought to help three million to four million homeowners facing foreclosure, has resulted in only 168,708 permanent loan modifications in a year. That prompted, Friday, an expanded foreclosure-prevention effort, including wider efforts to forgive mortgage principal. ...

Keep in mind, the latest rescue plan follows unprecedented efforts to support housing. Besides the modification program, the government also has taken over Fannie Mae and Freddie Mac; created and prolonged a first-time home buyers' tax credit; and increased the role of the Federal Housing Administration, which in 2009 insured nearly 30% of single-family mortgages.

At the same time, the Federal Reserve has kept interest rates near zero while purchasing $1.25 trillion of mortgage-backed securities, bringing mortgage rates to historic lows.

For all this, the housing market still is badly wounded, even if prices have stabilized in some areas. Mortgage delinquencies have worsened for seven consecutive quarters, according to the Office of the Comptroller of the Currency, while delinquencies more than 90 days past due among prime borrowers increased 16.5% in the fourth quarter of 2009.

Wine Lists

My favorite restaurant in Los Angeles is Valentino. The size of its wine list is near the top of the list of reasons I love it. It's hundreds of pages long with thousands of choices. Perusing it over a glass of sparkling wine and an appetizer is a joy.

Yet, there's also something to be said for a small list. When Helen and I had dinner earlier this week at Savann in NYC (on Amsterdam just south of 80th Street), we were presented with a concise list of a few dozen wines, all of which were very reasonably priced, but which also clearly had been chosen to match up brilliantly with the French/Mediterranean bistro cuisine. By presenting us with a limited range of impeccable choices, the restaurant made life very simple. Do we want red or white? French or New World? Big or small?

Harvey Steiman reports on his interview with famed chef Thomas Keller:

At one point, for example, as we discussed wine, he suggested that wine lists are too big. That caught my attention, as his Napa Valley restaurant, the French Laundry, possesses a Wine Spectator Grand Award. It is a big list, with 2,705 selections and nearly 20,000 bottles in the cellar. He seemed uncomfortable with that, so I asked him why, and that led to one of his more pungent comments, that he thinks of a big wine list as “a pissing contest.” ...

He understands why an ambitious restaurant like the French Laundry or his New York outpost, Per Se, should have a deep cellar. But in the end, he believes (and this comment did not make it into the story): “Luxury is not about choices. Our culture has defined it as having all these choices. But to me, luxury is not having any choices at all.” ...

This caught my eye. One of the key insights of behavioral economics is that having too many choices can be paralyzing, as the New Yorker explained in a review of Barry Schwartz's estimable book The Paradox of Choice: Why More Is Less:

In his view, “unlimited choice” can “produce genuine suffering.” Schwartz makes his case mostly through research in psychology and behavioral economics—research that shows how far real people are from the perfectly rational “utility maximizers” posited by classical economists.

In the real world, neither people nor firms maximize utility. Life is complicated, the options of the marketplace are numerous, and the human intellect is frail. As Herbert Simon, the 1978 Nobel laureate in economics, observed, any firm that tried to make decisions that would “maximize” its returns would bankrupt itself in a never-ending search for the best option. What firms do instead is “satisfice,” to use Simon’s term: they content themselves with results that are “good enough.” Schwartz, who is a close reader of Simon, worries that the profusion of choices we face—a hundred varieties of bug spray, breakfast cereal, extra-virgin olive oil—is turning us into maximizers, and maximizers, he thinks, are prone to misery and depression.

At the end of the day, however, I guess I prefer a world of choice. Some days I prefer to be presented with a wine list with 2000 options. Some days I don't. Thankfully, we live in a world where both are available.

Treasury Securities No Longer Risk-Free?

In Corporate Finance, when I teach my students about the Capital Asset Pricing Model, I tell them that we use the interest rate on short-term US Treasury notes as a proxy for the rate of return on a "risk free" asset precisely because those securities are essentially risk free.

Maybe we need to rethink that assumption. I noted a while back the troubling phenomenon that the price of credit default swaps on US Treasury bonds is rising.

It's a highly negative signal from the market. People are willing to bet that the USA can't get its financial house in order.

The news on this front, unfortunately, is getting worse rather than better:

The bond market is saying that it’s safer to lend to Warren Buffett than Barack Obama.

Two-year notes sold by the billionaire’s Berkshire Hathaway Inc. in February yield 3.5 basis points less than Treasuries of similar maturity, according to data compiled by Bloomberg. Procter & Gamble Co., Johnson & Johnson and Lowe’s Cos. debt also traded at lower yields in recent weeks, a situation former Lehman Brothers Holdings Inc. chief fixed-income strategist Jack Malvey calls an “exceedingly rare” event in the history of the bond market.

The $2.59 trillion of Treasury Department sales since the start of 2009 have created a glut as the budget deficit swelled to a post-World War II-record 10 percent of the economy and raised concerns whether the U.S. deserves its AAA credit rating. The increased borrowing may also undermine the first-quarter rally in Treasuries as the economy improves.

Why is this happening? Because the financial markets no longer regard the US government's predilection for deficit spending as sustainable:

While Treasuries backed by the full faith and credit of the government typically yield less than corporate debt, the relationship has flipped as Moody’s Investors Service predicts the U.S. will spend more on debt service as a percentage of revenue this year than any other top-rated country except the U.K. America will use about 7 percent of taxes for debt payments in 2010 and almost 11 percent in 2013, moving “substantially” closer to losing its AAA rating, Moody’s said last week.

Who's to blame? It's about time Obama stopped blaming Bush:

President Obama’s budget proposal would create bigger deficits every year of the next decade, with the gaps totaling $1.2 trillion more than his administration projects, the nonpartisan Congressional Budget Office said this month. Publicly held debt will zoom to $20.3 trillion, or 90 percent of gross domestic product, by 2020, the CBO forecast.

It's about time Obama and the rest of the Democrats got serious about cutting spending. Yet, somehow, I'm not optimistic.

Obamacare Predictions

Marc Hodak offers some predictions:

By the end of 2014:

• Insurance premiums will be higher
• The percent of America’s uninsured will fall far short of the target
• Medicare’s benefits will be reduced
• The federal budget deficit will be higher than currently projected
• Medical costs will be higher than currently projected

He goes on to offer detailed specifics.

Update: Megan McArdle offers 8 predictions of her own, of which these strike me as especially salient:

6)  This program will not reduce the rate of growth in medical costs by anything like 1.5% a year.

7)  A fiscal crisis of some sort is quite likely by 2030, though not just because of this program.  But this program will make it worse, either by increasing the deficit directly, or by using up the low-hanging fruit that should have funded Medicare reform.   

8)  By 2030, there's an 80% chance that the government will have imposed substantial price controls on pharma and other medical technology--and this will noticeably slow the rate of innovation.

Why call on anyone?

Jacqueline Lipton muses on whether law professors should rely on volunteers or cold call on students. Which is the wrong question, of course, because it assumes a fact not in evidence; namely, that we ought to call on students at all. I'd answer that question in the negative, as I explained in Reflections on Twenty Years of Law Teaching.

See You Next Wednesday

I'm on vacation.

 

Disgraceful Democrats

It was bad enough when the Democrats resorted to sleazy deals to get Obamacare through the Senate (see, e.g., The Louisiana Purchase and The Cornhusker Kickback). Then they had to plan to ram it through via reconciliation.

But now the Dems have gone past tawdry to outright malfeasance. The Washington Post reports that, in order to avoid having her members have to actually vote on the Senate version of the bill, Nancy Pelosi is leaning towards using the "sleight of hand" maneuver known as deem and pass:

The House would vote on a more popular package of fixes to the Senate bill; under the House rule for that vote, passage would signify that lawmakers "deem" the health-care bill to be passed. The tactic -- known as a "self-executing rule" or a "deem and pass" -- has been commonly used, although never to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Pelosi said she is considering for a late-week House vote, but she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.

I think it's instructive that even a left-leaning paper like the Post calls this "a procedural sleight of hand." I also find it instructive that even a left-leaning blogger/law professor like Jack Balkin thinks the Dems can't avoid political accountability:

There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule. Under Article I, section 5 of the Constitution, the House can determine its own rules for passing legislation. There are plenty of precedents for passing legislation by reference through a special rule. ...

The structural constitutional reason for this requirement is that members of the House must not able to avoid political accountability for passing the same bill as the Senate. The point of bicameralism and presentment is that all three actors (House, Senate and President) must agree to the legislation, warts and all, so that all three can be held politically accountable for it. They cannot point fingers at the other actors and deny responsibility for the policy choices made. The House cannot say, "oh we didn't pass X; that was the Senate's decision." If the House doesn't accept the same language as its own, even if that language is then immediately changed in an accompanying bill, there is no law.

Speaker Pelosi is trying to give House members a way of saying they did not vote for the Senate bill, but my point is that however much she and they may be trying to do this rhetorically, she and they can't really do this politically and constitutionally. They have to take responsibility for what they are doing and the language of the bill has to say that they are taking responsibility. This is the point of Article I, section 7.

Deem and pass may make some members of the House feel better by providing a sort of fig leaf, but to be constitutional the process cannot rid them of political responsibility for passing the Senate bill. If it did, they would not have created a valid law.

Inevitably, some will say "well, the GOP did it too," just as they have with reconciliation. But so what? In the first place, two wrongs don't make a right. What the hell happened to changing the way Washington works?

In the second, whatever the GOP may have done via reconciliation or "deem and pass" in the past, they never used them to (a) pass the biggest entitlement program and most important social legislation in decades or (b) to fundamentally reshape the rules of the game for 1/6th of the entire frakking economy.

Obamacare may yet pass. In my book, however, it will always be the illegitimate offspring of sleaze and procedural sleight of hands. And that leaves me angrier than I can ever remember being about anything in politics during the 30-odd years I've been paying attention.

Citizens United

The Supreme Court's decision in Citizens United continues to reverberate around the corporate blawgosphere. David Post notes that:

So here’s a cute little trademark dispute. Those stalwart defenders of free speech, Citizens United, apparently are not so crazy about being on the receiving end of the First Amendment’s free speech guarantee. The group, which as you know won a huge victory last month in the Supreme Court in its First Amendment challenge against the FEC’s interpretation of the federal election rules, has now apparently threatened, on grounds of trademark infringement, a Wisconsin group who have issued an online petition (and facebook group) named “Citizens United against Citizens United” as a protest against the Court’s decision. 

He thinks "It’s unseemly, at best. And probably a loser, too."

Eugene Volokh points out that unions are the likely winner from Citizens United:

Denver's Diversity Dean

NLJ reports:

The University of Denver Sturm College of Law has created a new associate dean position to promote diversity and inclusiveness within the institution. ... "The main reason we wanted this position was to send a pretty clear message that this is important to us," said Martin Katz, who was appointed as dean of the law school in February. "The way to do that, in my mind, was to put someone in a top position at the law school."

The new associate dean for diversity, Catherine Smith, has been a professor at the school since 2004. ... "Tenure gives her the freedom to get things done, even if that means rocking the boat," Katz said of Smith. "She'll have the ability to twist arms if necessary."

Smith won't begin her new role full time until the fall, but she has already been soliciting suggestions. "I'm amazed at how much of a need there is to have someone in the building who people can go to with issues or concerns about diversity and inclusiveness," she said. "It's important to have a liaison between the administration, the faculty and the students."

By Katz's estimation, slightly fewer than 18% of the students are minorities, but the law school can and should do better. Smith's top priority is to improve the pipeline of diverse students and boost the percentage of minority students admitted. ... Improving faculty diversity is another priority, Katz said. Smith led the school's entry-level faculty hiring efforts this year, and four of the seven candidates selected belong to ethnic minorities. Smith hopes to do a better job of retaining diverse students and professors, she said.

So much for color-blindness in admissions and hiring, I guess. OTOH, no mention is made of intellectual diversity. Nor is there any mention of outreach to groups like, say, The Federalist Society. One might also wonder whether arm-twisting will impact academic freedom and free speech on the part of those who dissent from the politically correct account of diversity.