ProfessorBainbridge.com

My SSRN rankings and my scholarly agenda

SSRN sent along the following data via email:

Your Author Statistics as of 05/31/2011 (out of 162,222 authors in SSRN, based only on Publicly Available, Downloadable Papers)

33 is your AUTHOR RANK, based on 76,034 TOTAL DOWNLOADS.
45 is your AUTHOR RANK, based on 10,761 DOWNLOADS IN THE LAST 12 MONTHS.
2,361 is your AUTHOR RANK, based on 173 TOTAL CITATIONS.

You can find the complete table of the Top Authors Ranking by Downloads and Citations at http://hq.ssrn.com/rankings/Ranking_display.cfm?TRN_gID=7

I expect my rankings to drop in the future as I focus increasingly on books and eBooks. My next five planned projects are all in that category (three already under contract) and, at most, will generate SSRN postings of their table of contents and introduction. And that doesn't include new editions of the case books, treatises, and statutory supplement. At this point, absent some compelling symposium invitation, I don't expect to write a traditional law review article of the sort that will get posted to SSRN until late 2012 at the earliest.

BTW, in case you were wondering, here's my currently planned projects:

Working Title	Status	Expected Publication Date
Corporate Governance After the Financial Crises	Book manuscript submitted to Oxford Univ Press	Nov 2011
A Concise Guide to Revlon-land	in progress	Late 2012
Business Associations case book 8th edition	on schedule for Dec 2011 submission to Foundation Press	Mar 2012
Agency Partnership and LLC treatise 2nd edition	expected w/ Foundation Press	late 2012?
Research Handbook on Insider Trading	under contract w/ Edward Elgar	Early 2013
Employee Involvement in Corporate Governance	under contract w/ Edward Elgar	mid-2013
Incorporating Catholicism: Intersection of Law, Organizational Economics, and Theology	academic press book?	late 2013 or early 2014?
Mergers and Acquisitions treatise 3rd edition	expected w/ Foundation Press	late 2014 or early 2015?
Corporation Law treatise 3rd edition	expected w/ Foundation Press	late 2014 or early 2015?

As you can see, there's not a ton of room in that schedule for SSRN-type projects. 

A Dance with Dragons Premonition

Publisher's Weekly has a more or less positive review of George RR Martin's forthcoming novel A Dance with Dragons: A Song of Ice and Fire: Book Five, but which nevertheless left me worried:

More characters are revived than killed off and more peace accords signed than wars declared, but the heart-hammering conclusion hints that the next installment will see a return to the fiery battles and icy terror that earned the series its fanatic following.

Does this mean we have to wait for the next book to get "fiery battles and icy terror," which would mean that what we'll get in A Dance with Dragons, will be more of what Publisher's Weekly aptly referred to as "slow trudges through war-torn, corpse-littered Westeros"?

Worse yet, does "heart-hammering conclusion" mean another cliffhanger ending to be followed by a seven year delay before Martin gets around to the next book? Why 7 years? Take a look at the man's track record:

Title	Release	Years Between
A Game of Thrones	8/1996	n/a
A Clash of Kings	11/1998	1.25
A Storm of Swords	8/2000	1.75
A Feast for Crows	11/2005	5.17
A Dance with Dragons	7/2011	5.75
Average wait between books		3.48
Projected wait for The Winds of Winter		7.71

To get the projected wait for the next volume, I used Excel's Forecast function, which gave this result:

Admittedly, we're dealing with a small data set, but the trend line is not favorable.

What's Leiter smoking? (And where can I get some?)

I like Brian Leiter, but when he says something like the following I think he must be smoking something recreational:

The American legal academy is already quite far to the right on a range of economic and policy issues by comparison to both the rest of the U.S. academy and the legal academies in other common law jurisdictions ....

Sure. Just like John Kerry is to the right of Bernie Sanders.

The American legal academy remains a space dominated by left-liberals, in which those of us who really are on the right are about as common as four leaf clovers.

To be clear, I don't think that outright bias is the primary cause of the dearth of conservatives in the legal academy. Instead, as I've explained before, I think network effects constitute the main culprit.

Brian kindly refers to my analysis, observing that:

Those, by contrast, who have no self-serving reasons to complain (such as Professor Bainbridge, whose academic career has flourished on the merits of his work) take a more nuanced view of the possible role of political bias in the hiring process.

And later:

One must distinguish, it seems, between social conservatives whose scholarship is largely unrelated to their political and moral views (Professor Bainbridge may be such a case), and those whose political and moral views are manifest in their scholarship.

So whatever he's smoking has left him with clarity and good judgment in some respects.

In contrast to my own insouciance, Steve Bradford takes Brian's complaint seriously:

Brian Leiter complains that conservatives aspiring for legal teaching jobs have an advantage because of programs like the Federalist Society’s  Olin-Searle-Smith Fellows in Law, which Leiter says “employ[s] ideological criteria for eligibility.”

The ideological criteria that Leiter is apparently complaining about? “Commitment to the rule of law and intellectual diversity in legal academia.” Seriously. Leiter provides no further explanation and this is the only thing I could find on the program’s web site  that even comes close to being ideological ideological criteria.

A commitment to the rule of law is certainly ideological, but hardly rightist. And who argues against intellectual diversity in legal academia? If support for the rule of law and intellectual diversity makes one a conservative, I would hope all law professors are conservative.

Leiter may be assuming that the Federalist Society awards fellowships only to those who support its ideology, and no one disputes that the Federalist Society has a conservative/libertarian philosophy.  But that’s not what Leiter says. He says the criteria themselves are ideological. If Leiter thinks the rule of law and intellectual diversity are conservative principles, then perhaps we do need more conservatives in legal academia.

So did David Bernstein and Ilya Somin.

Doing so is an error, I think. Among his many virtues, Brian is an inveterate provocateur. He enjoys using that rapier smarts and wit to needle the opposition. Indeed, it's one of the reasons I like the guy. I find his tweaking of the opposition nearly as entertaining as the over the top reactions it so often provokes. (Of course, it's especially easy to let it slide when he says such nice things about yours truly while wielding said rapier.) So my advice to my fellow conservatives is that when Brian goes on one of these toots the best thing to do is to sit back, relax, and watch the show. If you can get your hands on it, smoking some of whatever Brian's got would probably enhance the entertainment value.

How regulation is chilling the dynamism of the American economy

The WSJ reviews Silicon Valley entrepreneur Henry Nothhaft's new book, Great Again: Revitalizing America's Entrepreneurial Leadership:

Mr. Nothhaft, ... who is the CEO of the technology-miniaturization company Tessera, chronicles how difficult it has become, particularly in California, to start capital-intensive enterprises. Excessive regulation and Washington policies, he argues, undermine initial public offerings and discourage the launch of businesses that provide jobs and drive productivity. ...

Money for companies that require capital to produce tangible products is much harder to come by [than money for things like Twitter]. Why? Mr. Burke recites the environmental, safety and other bureaucratic regulations that raise costs and slow creative ferment. He also highlights the tax burden beyond the corporate rates. When his company paid $10 million for German manufacturing equipment, California levied a "use" tax—Innovalight was using equipment purchased outside the state—of nearly a million dollars. "That's not a tax on our income," Mr. Burke says, "it's a tax on growing our business."

It might be tempting to dismiss these gripes as the usual complaints of the business class, but consider the consequences of such a tax and regulatory environment. Venture capitalist David Ladd's bluntness is startling: "We would not fund a company that was building hardware or semiconductors, nor any of the tough physical sciences," he tells Mr. Nothhaft. "We'll invest in China instead and let them do it."

Nothhaft lays the blame on several areas, such as corporate tax, but also hits on a subject near and dear to the heart of this blogger:

... despite the recent successful LinkedIn public offering, there is no doubt that the regulations imposed on public companies by the Sarbanes-Oxley Act of 2002 have considerably dampened the IPO market. When Mr. Nothhaft was preparing a mobile-Internet firm called Danger to go public in 2007, he says, the company had to spend $3 million and many precious man-hours to become Sarbox-compliant. When the law was enacted, Mr. Nothhaft dryly observes, the government estimated that the average cost of compliance would be $91,000.

This conclusion is amptly backed up by data, as I documented in my article 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.

This is how the United Kingdom wages cyber-war

Zagat buzzes:

British intelligence recently hacked into an al-Qaeda online magazine and replaced bomb-making instructions with a recipe for cupcakes.

Cupcakes?

PCAOB Head Pushes Auditor Rotation

In passing Sarbanes-Oxley, Congress considered requiring reporting companies to rotate their outside auditor periodically, but ultimately decided not to go that route. Instead, SOX § 203 requires registered public accounting firms to rotate (1) the partner having primary responsibility for the audit and (2) the partner responsible for reviewing the audit every five years. The audit committee must ensure that the requisite rotation actually takes place.

As I noted in my book Complete Guide to Sarbanes-Oxley: Understanding How Sarbanes-Oxley Affects Your Business, as a matter of good practice, a company ought to consider rotating audit firms periodically so as to get the benefit of a fresh set of eyes. Some corporate governance experts recommend doing so at least every ten years. In addition, governance experts recommend rotating audit firms if a substantial number of former company employees have gone to work for the audit firm or vice-versa.

But should good practice be made mandatory? Broc Romanek reports that:

Yesterday, new PCAOB Chair Jim Doty delivered this speech that should be considered the most profound public policy speech ever made by a PCAOB Chair. Jim talks about cultural challenges that still impede auditor independence and skepticism - and then calls for a broad public policy debate to repair the credibility and transparency of the audit. Jim lays out four areas that this debate should touch - auditor's reporting model, auditor independence, more context for audit committees and audit transparency - all of which have several items within them. But the one item that surely will get people talking is this excerpt from his speech:

The PCAOB's efforts to address these problems through inspections and enforcement are ongoing. But considering the disturbing lack of skepticism we continue to see, and because of the fundamental importance of independence to the performance of quality audit work, the Board is prepared to consider all possible methods of addressing the problem of audit quality -- including whether mandatory audit firm rotation would help address the inherent conflict created because the auditor is paid by the client.

My concern is that consolidation of the accounting profession has made auditor rotation extremely difficult. As I explained in my book Complete Guide to Sarbanes-Oxley: Understanding How Sarbanes-Oxley Affects Your Business, SOX prohibits a public corporation from obtaining a wide range of non-audit accounting and consulting services from the accounting firm that performs their audit. Many public corporations get a wide array of such non-audit services from all 3 of the other Big 4 accounting firms. Rotating the auditing firm thus will be pretty complicated, as firms have to reshuffle their non-audit services. It'll be even more complicated if the firms are subject to some sort of cooling off period between when they provide audit services and can begin providing non-audit services (and vice-versa).

One key reform of the accounting profession thus ought to be promoting smaller accounting firms as viable alternatives to the Big 4.

Does Keynesian Economics Really Work?

The Hill reports that:

House Democrats this week have amplified their calls for new spending on infrastructure and other federal projects in the face of May's discouraging job-creation figures.

Obama's been doing that since 2008, inflating the national debt massively and running unprecedented deficits, and the economy still sucks. As Tad DeHaven observed last year:

That the stimulus did create jobs isn't in question. The real question is whether it created any net jobs after all the negative effects of the spending and debt are taken into account. How many private-sector jobs were lost or not created in the first place because of the resources diverted to the government for its job creation?

Don't expect the administration's economists to attempt an answer to that question any time soon.

Here's another question that the administration would prefer to ignore: How many jobs are being lost or not created because of increased uncertainty in the business community over future tax increases and other detrimental government policies?

The economist Robert Higgs coined the phrase "regime uncertainty" to describe Franklin Roosevelt's anti-business climate, which prolonged the Great Depression. Unfortunately, this president is repeating the same mistake.

Health care mandates, cap-and-trade legislation, new financial regulations, union protections, and the probability of higher taxes to pay for the administration's debt spree have caused innumerable businesses to remain on the sidelines.

As one small business owner recently told me, "I want to hire but I'm afraid the administration's policies are going to force me to turn around and let them go."

So maybe government really is the problem:

"If you talk to job creators around the country like we have, they’ll tell you all the over-taxing, over-regulating, and over-spending that’s going on in Washington is creating uncertainty and holding them back," House Speaker John Boehner (R-Ohio) said at a press conference Friday.

The difference between public and private sector unionism

Eileen Norcross of George Mason’s Mercatus Center has posted a new paper on the difference between public and private sector unionism:

The public sector union movement shares a link to the history and institutional structure of private sector unionism, yet they are also distinct movements, differing in origins, goals, approaches to bargaining, philosophies, and effects. These two unionisms operate in different spheres. Private unionism operates as a labor cartel within the market economy and thus affects the profitability of firms, economic growth, the supply of labor, and consumer prices. Public sector unions function as a monopoly provider of labor within a bureaucratic-political realm. Public sector unionism introduces an unelected body into policy-making, thereby undermining the sovereignty of the state. Public sector employees are able to influence through political lobbying of their employer-sponsors or politicians, who may seek to enhance union employment as a means of expanding their constituency.