ProfessorBainbridge.com

Lipton on the Empirical Evidence re Shareholder Activism

The latest volley from Lipton in his long running battle with Lucian Bebchuk re shareholder activism reviews the empirical evidence Lipton believes makes the case against the sort of unconstrained activism Bebchuk favors.

I've been cribbed re insider trading

Justin Fox at HBR has an interesting analysis of the recent rash of insider trading cases, in the course of which he comments that:

... the insider trading prohibition has been elaborated through Supreme Court decisions and SEC orders in the U.S., and has spread to many other countries as well. It has also been the source of unending discussion and controversy among legal scholars. Just in the past few months, the Columbia Business Law Review has come out with an entire issue devoted to the topic (based on a symposium held at Columbia last fall), and Edward Elgar has published a 512-page Research Handbook on Insider Trading edited by UCLA Law Professor (and prolific blogger) Stephen Bainbridge.

I will not claim to have read all or even most of the contributions to these volumes (law professors write long), but just dipping into them is an educational if bewildering experience. (The Langevoort article cited above is from the Columbia Business Law Review; my brief history of insider trading law is partly cribbed from Bainbridge’s introduction to the Handbook.) 

"Why I Wear What I Do"

Science fiction writer John Scalzi's post on what he wears to work (pictured at left) reminds me of the debate that occasionally pops up in law school blogs over whether law prfoessors ought to wear suits and ties to work. Scalzi writes:

What I am wearing today is generally representative of what I wear on any day, both for work (writing and also making appearances) and for just existing. Occasionally I will swap out the polo for a henley or a t-shirt (if I am at a convention and/or not planning to leave my house that day the latter is more likely), but the Levi’s tend to be a staple, and I tend to wear jeans for more than any other type of trouser. I do have suits and other more formal clothes, but I wear them rarely.

My sartorial choices are virtually identical, except that I usually wear khakis instead of jeans (but not always). What's interesting to me about Scalzi's post is that none of reasons for wearing what he does really apply to me. But his bottom line does:

My systematic and personal advantages mean that nearly all disadvantages posed by someone judging me on my appearance are temporary and light. This is also why I find it amusing to post deeply unflattering pictures of myself online (see the one to the right as an example); I don’t have to worry about the negative side-effects of doing so. People who actually are judged on their appearance, and for whom that judgment will have a material effect on their life, don’t have the same luxury to be unconcerned as I do. What’s interesting and amusing to me is a matter of stress and anxiety for others.

A much shorter version of all the above is that I can put on $120 worth of clothes and shoes and be taken seriously almost anywhere I might want to go. So that’s what I do.

Being able to be taken seriously without having to wear a suit and tie is one of the many things that make being a law professor such a truly wonderful job.

Corporate Personhood is not the Enemy

Kaimipono Wenger:

The recent Citizens United decision has spawned a wave of really awful political critique, mostly from progressive writers and activists. A news story from earlier this year highlights one of the wackier critiques, in which a man drove in the carpool lane along with a copy of Articles of Incorporation. When pulled over, he turned it into a media event:

Your honor, according to the vehicle code definition and legal sources, I did have a ‘person’ in my car. But Officer ‘so-and-so’ believes I did NOT have another person in my car. If you rule in his favor, you are saying that corporations are not persons.

The carpool-lane stunt is probably the most over-the-top of responses, but many other critics have weighed in. For instance, the Occupy movement passed a resolution against corporate personhood, while an internet petition to “end corporate personhood” has garnered hundreds of thousands of signatures. Clearly, many people are deeply upset about the idea of corporate personhood.

Wenger goes on to explain why they are mistaken before concluding that:

The real work is in pushing back against specific overly permissive corporate-speech doctrine, not trying to undo the century-old rule of corporate personhood. Corporate personhood is not the enemy.

Well, at least he's half right. I don't think the current state of campaign finance law is overly permissive. It still restricts speech (and, yes, spending money to speak is speech). But he's right to say that corporate personhood is not the issue and, to the contrary, is a good thing.

Obama said people would be able to keep their health coverage. Wrong. He said same thing about keeping your doctor. Should we worry?

Remember what Obama said about Obamacare?

If you like your doctor, you will be able to keep your doctor, period.  If you like your health care plan, you'll be able to keep your health care plan, period.

He lied about health plans. Did he lie about doctors too?

Dropbox or iCloud: Which is better for law professors?

I gave up on using my local law school network to store my computer files when I discovered Dropbox a few years ago. I find RDC clunky and slow, whereas I could access Dropbox effortlessly wherever and on whatever I had a web browser. As I began to rely more and more on my iPad, that became an even more important consideration.

As a Mac user, however, I now find myself using both iCloud and Dropbox. Work stuff and Office documents generated at home are on Dropbox. Music, video, photos--all the iTunes and iPhoto stuff--is on iCloud.

I'm wondering whether I really need Dropbox anymore or if iCloud can be a complete one-stop storage service. In pondering that question, I came across a helpful post that explained:

Dropbox embraces the past for current computer users with years of experience, whereas iCloud is the future of file management for consumers in a Post-PC world.

So to get everyone up to speed, iCloud is the service in iOS (iPads, iPhones, iMacs, etc) that automatically syncs your documents. You edit using Pages on your iMac and it syncs to Pages on your iPad. The defining feature of iCloud when compared to Dropbox is that the documents are in a virtual “silo” per app. Meaning your Pages docs are only available in your other copies of Pages, on your other Apple devices. Your Keynote presentations on your Mac sync to your Keynote app on your iPad. It all works seamlessly in the background.

Dropbox is different. It is a folder on your hard drive that syncs to a virtual folder than in turn syncs to another folder on another device you have. Basically it is a large folder “in the cloud” that apps can tie in to and you can have on most all your devices and computers. It is the most flexible and least inventive. iCloud is the most inventive and least flexible. ...

Apple is aiming to do away with file systems. I agree that this is the best path. Tablets and computers should do the heavy lifting and make things easy for you. You should not need a degree in computers to operate any device these days. 

I love the possibilities iCloud thus offers. The ability to seamlessly work on any platform is very attractive. The problem as I see it is that the rest of my world isn't ready for me to embrace iCloud:

• In the classroom, I have to run PowerPoint off the law school network on a PC machine, so I can't simply run a Keynote presentation on my iPad that will show on the class projector. Getting the Keynote Presentation off my iMac or iPad and onto the Windows network as a PowerPoint presentation seems non-trivial.
• Law reviews and book publishers still use MS Word files. If I work in Pages, how much of a hassle will it be going back and forth between Pages and Word, especially when we get to the editing stage and are exchanged versions with tracked changes, comments, etc....
• My coauthors are all MS Word/Windows people (not that there's anything wrong with that).
• The law school network is Windows-based. Getting documents off the network and into Dropbox is easy. Not sure it'll be that easy with iCloud.

I'm sure there are other problems I'm not even seeing yet. So I wonder what other law professors who are facing the same question are doing?

Review of "The American Illness"

I contributed an article on the effect excessive and poorly chosen corporate and securities laws have on the viability of US business to a recent volume entitled The American Illness. The volume has now received a positive review from an English barrister named John Holbrook:

Against a litigious background on both sides of the Atlantic, it is refreshing to come across a collection of essays that puts the US legal system in the dock and subjects it to the sort of forensic analysis that lawyers usually reserve for others. The 20-plus contributors to The American Illness focus on the relationship between law and economics and ask whether and why the US legal system has contributed to the country’s long postwar decline. ...

Several authors draw attention to the harm that several decades of expanding liability is now causing the American economy. Whereas low levels of liability boost investments in novel technologies, product innovation is harmed at very high levels of liability. Nowadays, American consumers are effectively required to purchase product-liability insurance with everything they buy and producers have been turned into general insurers. This constitutes a deadweight cost that makes American producers less competitive in the international marketplace. Neither do consumers benefit because, apart from paying higher prices, the burdens imposed from a safety first-and-foremost regulatory framework reduces consumer choice.

The book’s strength is its compelling analysis of the relationship between law and economics. Too many lawyers, academic and practising, see law as a discipline to be understood on its own terms. Yet The American Illness makes clear that too many lawyers can be positively harmful for an economy. The recognition of the legal system as a means of making the economy work more efficiently is also welcome, not just because it is true but because it also raises this question: at what point does the legal system cease to be a force for good and become a force for harm?

When addressing this issue, the contributors demonstrate the need not just for an appreciation of economics and law, but also for an understanding of the overriding importance of politics. The argument that there can be an optimum number of lawyers per head of population is a technical approach to the issue that goes nowhere because it all depends what those lawyers do. Neither can it be right that increasing liability is merely a response to increasing wealth and consumer demand, as another contributor remarks. ...

By drawing attention to the significant economic harm that litigation is causing America, The American Illness is a welcome contribution to a debate that needs to be had. But if the safety first-and-foremost approach of legislators and judges is to end there needs to be a much wider debate about the political and moral values that fuel a blame-and-claim culture.

Kindly go read the whoile thing. Oh, and don't forget to buy the book.

Former libertarian Judge Richard Posner slams Chief Justice John Roberts

In an essay--tellingly published in The New Republic--denying that he's switched sides on Voter ID law (methinks he doth protest too much), Posner takes an unnecessary implicit potshot at Roberts:

... whatever judges may say self-servingly about being merely “umpires,” just calling balls and strikes and indifferent to who wins and who loses, their priors influence judicial decisions in areas in which the law is in flux because authoritative sources of law, such as the Constitution and statutes and precedents, do not yield clear answers to new legal questions.

A fair between the lines reading is that Posner is saying Roberts lied to get on the SCOTUS.

Posner has never been a conservative, but his journey from classical liberal to modern liberal (at best, liberaltarian) now seems complete. It's a pity we don't have formal excommunications anymore.

"In the name of god, go"

Feel free to draw whatever modern day analogies seem appropriate:

The state of starship research

i09 reports:

Recently, a group of scientists, engineers, and scifi writers gathered at the Royal Astronomical Society to discuss the latest ideas about how interstellar travel might actually happen. ...

Indeed, as a new The Economist article points out, starship research is enjoying something of a boom these days. Just a few years ago there was only one organization working on the prospect of interstellar travel, but now there's at least five, including NASA, DARPA, and several private organizations. ...

Ideas discussed included the visions of Freeman Dyson, notably his nuclear-explosion powered rockets (called Project Orion), and Daedalus, an unmanned vessel conceived by the British Interplanetary Society that that would use a fusion rocket to attain 12% of the speed of light, allowing it to reach Barnard’s Star, which is six light-years away, in a mere 50 years.

If you want to season your science with an amusing conspiracy theory, check out Charles Stross' new short A Tall Tail:

From the author of Rule 34 and Halting State, a tale of deception, engineering, and the most unlikely rocket propulsion technology imaginable.

Why we should be teaching even more business law and start teaching the business of law

Anne Tucker reports on NALP data about what employers want:

Feedback from legal employers (mostly private practice law firms) said that in new-JD hires, they were looking for students who understand that practicing law in a firm is a business and how they fit into that business model. They also want students to have a basic understanding of financial literacy skills.  

So less public interest law and more on how to practice business law and running a law firm as a business. yes?

For a defense of paying law professors to do scholarship

Go here

Biological clocks

A fascinating article on research by UCLA scientists showing that different parts of the body age at different rates and the potential for this insight to explain cancer.

Today is St Crispin's Day

I love this speech best of all those in Shakespeare's plays and I love this performance of it the best:

Rod Dreher says "As far as the Catholic Church goes, Bainbridge is onto something"

He discusses my post the other day on Pope Francis and ideology and then writes of his own experience:

It is hard to be mindful of right doctrine, and right morals, while at the same time remembering that the purpose of the Christian faith is not to learn how to behave morally. But it’s necessary. I am certain that Francis is onto something when he talks about how serious prayer — by which he means an encounter of the soul with the living God — is the antidote to ideological religion.

Similarly, though, the Catholics (and other Christians) who believe that the Christian faith is a feeling, and requires nothing of us but feeling good about ourselves and being nice to others, are also wrong. Like I said, maintaining the balance is hard. But necessary.

I couldn't agree more.

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