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David Millon's "Radical Shareholder Primacy"

I have been reading with interest David Millon's new paper, Radical Shareholder Primacy (July 28, 2014), available at SSRN http://ssrn.com/abstract=2473189, which argues that:

Abstract: This article, written for a symposium on the history of corporate social responsibility, seeks to make sense of the surprising disagreement within the corporate law academy on the foundational legal question of corporate purpose: does the law require shareholder primacy or not? I argue here that disagreement on this question is due to the unappreciated ambiguity in the shareholder primacy idea. I identify two models, the 'radical' and the 'traditional.' Radical shareholder primacy originated at the University of Chicago in the later 1970s, first in the work of Daniel Fischel and then in his co-authored writings with Frank Easterbrook. The key point is the assertion that corporate management is the agent of the shareholders, charged with maximizing their wealth. There is no legal authority for this claim; Fischel drew it from the financial economists Michael Jensen and William Meckling, who used the agency idea in a non-legal sense. So those who say that this notion of shareholder primacy is not the law are correct. However, a different conception of shareholder primacy is based on the idea that shareholders hold a privileged position within the corporation's governance structure, enjoying a monopoly over voting rights and the right to bring derivative lawsuits and singled out for special mention in the traditional specification of fiduciary duties as being owed to 'the corporation and its shareholders.' In this sense, shareholders enjoy primacy over the corporation's other stakeholders, although there is no maximization mandate and corporate law is largely ineffective in allowing shareholders to insist that management privilege their interests. Nevertheless, this version of shareholder primacy is enshrined in the law, and, if the radical version's agency claim is laid to rest, there is no harm in acknowledging that fact.

I am prepared to associate myself more or less with David's traditional version of shareholder primacy, which he describes as follows:

This model also claims to privilege shareholders, but its commitment to them is significantly weaker than under the radical version. Under the traditional model, which emerged in the last years of the nineteenth century and was embodied in corporate law and widely accepted for much of the twentieth century, management enjoys broad discretion and is largely inunune from shareholder control." While it is assumed that a business corporation is organized in order to generate profit and, as a practical matter, a corporation that regularly loses money cannot survive long-term, there is no expectation that management must maximize current share price to the exclusion of competing objectives. These can include regard for the interests of non-shareholder constituencies under circumstances management deems to be appropriate, as well as long-term investments that reduce current earnings for the sake of future gains. Certainly there is no sense that an agency relalionship exists between management and shareholders.

I say more or less because I would offer a couple of qualifications. First, for reasons I've laid out in various places, but perhaps most comprehensively here, I think that management can and should have "regard for the interests of non-shareholder constituencies under circumstances management deems to be appropriate [only to the extent management reasonably believes doing so will redound to the benefit of shareholders in the long-term and that management should not do so at all in final period situations]."

Second, and this is mostly a semantic quibble, i understand the term shareholder primacy as making two distinct claims. One goes to the ends of corporate governance and claims that managers have a fiduciary duty to sustainably maximize shareholder returns over the long-term. The other goes to the means of corporate governance and claims that shareholders both do and should have ultimate control of the company. I accept the former but reject the latter. Instead, as I have argued ad nauseam, control of the corporation is vested in the board subject to very limited shareholder accountability mechanisms. Hence, I prefer the term director primacy.

Related articles

Managing Shareholder Interventions: An Updated Director Primacy Critique of Shareholder Empowerment

The Economist is ineducable on shareholder activism

Director Primacy at the Lowell Milken Institute

Shareholder Activism in the United States: Managing Shareholder Interventions

Lyman Johnson's "Law and the History of Corporate Responsibility: Corporate Governance"

I have been reading with interest Lyman Johnson's new paper, Law and the History of Corporate Responsibility: Corporate Governance (2014). 10 University of St. Thomas Law Journal 974 (2014); U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-21; Washington & Lee Legal Studies Paper. Available at SSRN: http://ssrn.com/abstract=2469979:

Abstract: This article is one part of a multi-article project on the role of law in the history of corporate responsibility in the United States. Key background material for the project is set forth in the introduction to an earlier article addressing corporate personhood. This paper deals with corporate governance while other articles address corporate purpose and corporate regulation.

Corporate responsibility concerns associated with corporate personhood, corporate purpose, and corporate regulation all ultimately relate to a far more basic issue: corporate governance. As the commercial demands of nineteenth century industrialization led to substantial displacement of the partnership form of business enterprise by large corporations with dispersed shareholders, control of these corporations - i.e., their governance - centered in the hands of senior managers, not investors themselves. This phenomenon of “separation of ownership from control” is quite different than in the typical partnership and was seminally described by Adolf Berle and Gardiner Means in their 1932 book, The Modern Corporation and Private Property. It has continued to occupy center stage in corporate law for the past eighty years.

From a legal history vantage point on corporate responsibility, the stupendous rise in commercial significance of the corporation in the nineteenth century corresponded to the precipitous decline of a regulatory approach to corporations under state corporate law, and instead, the twentieth century “outsourcing” of such regulation to an array of other legal regimes ostensibly designed to protect both investor and noninvestor groups. This meant that corporate law itself developed in such a way as to loosen, not tighten, most constraints on those who govern public corporations. The thesis of this article, developed in Parts I and II, is that corporate governance, both as a body of law and as a field of academic study, has historically had little to say on the important subject of corporate responsibility. Instead, the quest for greater responsibility in the United States largely has come from “external” legal regulation and from ongoing shifts in business and social norms. Recently, corporate law’s long and unsustainable neglect of corporate responsibility concerns has led to the emergence of a new type of business corporation, the “benefit corporation.” Benefit corporations expressly permit the directors to advance both investor and noninvestor interests, in aid of pursuing a larger public benefit. The implications of this development for governance of the regular business corporations are unknown. One potential adverse outcome is the “ghettoization” of corporate responsibility within benefit corporations, leading to even less serious attention to such concerns in the traditional business corporation.

I agree with Lyman that "corporate governance, both as a body of law and as a field of academic study, has historically had little to say on the important subject of corporate responsibility. Instead, the quest for greater responsibility in the United States largely has come from “external” legal regulation and from ongoing shifts in business and social norms."

But I disagree with Lyman's argument that this supposed neglect is unsustainable. Instead, I agree with Gordon Smith's eloquent exposition of the The Dystopian Potential of Corporate Law, available at SSRN: http://ssrn.com/abstract=976742, which argues that:

The community of corporate law scholars in the United States is fragmented. One group, heavily influenced by economic analysis of corporations, is exploring the merits of increasing shareholder power vis-a-vis directors. Another group, animated by concern for social justice, is challenging the traditional, shareholder-centric view of corporate law, arguing instead for a model of stakeholder governance. The current disagreement within corporate law is as fundamental as in any area of law, and the debate is more heated than at any time since the New Deal. 

This paper is part of a debate on the audacious question, Can Corporate Law Save the World? In the first part of the debate, Professor Kent Greenfield builds on his book, THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES, offering a provocative critique of the status quo and arguing that corporate law matters to issues like the environment, human rights, and the labor question. 

In response, Professor Smith contends that corporate law does not matter in the way Professor Greenfield claims. Corporate law is the set of rules that defines the decision making structure of corporations, and reformers like Professor Greenfield have only two options for changing corporate decision making: changing the decision maker or changing the decision rule. More specifically, he focuses on board composition and shareholder primacy. Professor Smith argues that changes in corporate law cannot eradicate poverty or materially change existing distributions of wealth, except by impairing the creation of wealth. Changes in corporate law will not clean the environment. And changes in corporate law will not solve the labor question. Indeed, the only changes in corporate law that will have a substantial effect on such issues are changes that make the world worse, not better.

Related articles

Lyman Johnson on The Dwindling of Revlon: Highly Recommended

Johnson on the History of Corporate Responsibility

Diamond on Corporate Personhood and Critical Legal Studies

Do religious traditions motivate enhanced corporate social responsibility?

A corporate conscience? I don't think so

Let's demilitarize the regulatory agencies too - Overlawyered

One consequence of the events in Ferguson, Mo. is that people are talking with each other across ideological lines who usually don’t, a symbol being the attention paid on both left and right to Sen. Rand Paul’s op-ed last week in Time. And one point worth discussing is how the problem of police militarization manifests itself similarly these days in local policing and in the enforcement of federal regulation.

At BuzzFeed, Evan McMorris-Santoro generously quotes me on the prospects for finding common ground on these issues. The feds’ Gibson Guitar raid — our coverage of that here — did much to raise the profile of regulatory SWAT tactics ....

via overlawyered.com

Walter Olson reminds us that the problem of paramilitary cops goes beyond local SWAT teams and the like, to include the feds.

"Grappling With the Cost of Corporate Gadflies" - Stephen Davidoff Solomon

Corporate America is being held hostage by three people you have probably never heard of.

The three people — John Chevedden, William Steiner, James McRitchie and their families — specialize in bringing shareholder proposals at annual meetings, urging companies to change their compensation practices or improve their corporate governance.

These three are a force unto themselves. Together, they accounted for 70 percent of all proposals sponsored by individuals among Fortune 250 companies this year, according to a new study by the Manhattan Institute.

via dealbook.nytimes.com

Go read the whole thing. Now.

Why did law professors blow the Obamacare cases?

David Hyman has an answer and a reply to his critics.  Constitutional Prognostication: Does Anybody Know Anything? (August 5, 2014). University of Illinois Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2392042:

Every client knows that his case is a winner, but practicing lawyers know better. Indeed, practicing lawyers are extremely reluctant to make predictions about how a case will come out — and when forced to do so, they will invariably reference the hazards and uncertainties of litigation, and hedge any predictions they make. When it came to the legal challenges against the Patient Protection and Affordable Care Act ("PPACA"), law professors who teach and write about constitutional law were far less circumspect. Indeed, they seemingly competed with one another to demonstrate how confident they were that that the federal courts would reject the legal challenges to PPACA in their entirety.

How did these confident predictions fare when the cases were actually tried? Not all that well – if by "not all that well" we mean "the complete repudiation of everything that law professors believed and espoused." The University of Illinois Law Review has now published five responses to my article, by Professors Blackman, Blumstein, Koppelman, Mazzone, and Ramseyer. In this short essay, I summarize each of the responses, and offer a short reply, organized around two P’s (Predictions and Practical Knowledge), and one M (Merits).

Related articles

Hyman on Constitutional Prognostication

Hyman on Law Professor Perceptions of the Challenges to the Affordable Care Act

Why Did Law Professors Misunderestimate the Lawsuits against PPACA?

Christian O'Connell takes on Marci Hamilton on RFRA, Hobby Lobby, and the Satanic Temple

Here.

Update: Hamilton responds here.

Revisiting Harry Edwards on the problems with interdisciplinary legal scholarship

Harry T. Edwards, Another ““Postscript” to “The Growing Disjunction Between Legal Education and the Legal Profession”, 69 WASH. L. REV. 561, 562 (1994)

[T]he problem began in the late ‘60s when an increasing number of individuals who aspired to become history professors or economics professors or philosophy professors or political science professors or literature professors discovered that there were few, if any, opportunities in those fields. After spending several years doing graduate work, they finally faced reality and attended law school. Most of these individuals had no real interest in law or in becoming a lawyer, but many were excellent students. As a result, they were hired by law faculties ... in increasing numbers .... This led to an explosion of interdisciplinary work in law, as well as to an increasing rejection of the importance of doctrinal analysis even in mainstream courses.

Obviously it's not true of every law and Ph.D. faculty member, but it is true enough that the law school scam folks ought to be taking notice.

Empirical scholarship and the null result

A friend reports over on Facebook that s/he had run a number of empirical tests of a certain claim and had found no evidence the claim was true. S/he bemoans that this null result - which I think is actually more interesting than a positive result, since it is counter the conventional wisdom - means that the piece has become much harder to place in a top journal. And s/he's right. The publication bias against null results is sufficiently well known as to have its own Wikipedia entry.

Call me old-fashioned. Call me a curmudgeon. Call me a stick in the mud. Call me a crank with an idée fixe. All too true. But I still don't see why leal academics shouldn't stick to what presumably we do better than any other social scientist; namely, going out and reading the damned cases and figuring out what the rule of law is. And then throw in some policy analysis and call it a day.

Should you teach business associations by topic or by entity?

Joshua Fershee revisits the issue, concluding he likes the topic by topic approach. As he notes, however, I come down pretty hard on the entity by entity approach.

But thanks to Josh for the kind words:

I have great respect for Prof. Bainbridge, and his writing has influenced me greatly, but ...

Why must there always be a but? :-)

Today's Tweet of the Day

What would happen if Jesus tried to feed the 5000 today? pic.twitter.com/nhi3CLXR6G

— Stephen Bainbridge (@ProfBainbridge) August 18, 2014

Interpreting the duty of good faith and fair dealing

Gordon Smith writes:

In Good Faith and Fair Dealing as an Underenforced Legal Norm, Paul MacMahon of the London School of Economics explores the divide between "the rhetoric of good faith and fair dealing and the reality of judicial enforcement." ... This is a well-researched, well-written, thought-provoking article, and I recommend it highly.

I agree and encourage you to check out both Gordon's excellent summary and the paper itself.

Business Law Professors on Twitter

Here's the updated list.

Why is insider trading illegal?

Brian Galle poses an age-old question, Why is insider trading illegal? At the risk of annoying my dear friend and mentor Henry Manne, I'm afraid I still think it's because we want to enforce private rights in information. I offer that argument, along with a critique of both arguments in favor of regulating insider trading and arguments in favor of deregulating it, in Insider Trading: An Overview, which is vailable at SSRN: http://ssrn.com/abstract=132529:

Insider trading is one of the most controversial aspects of securities regulation, even among the law and economics community. One set of scholars favors deregulation of insider trading, allowing corporations to set their own insider trading policies by contract. Another set of law and economics scholars, in contrast, contends that the property right to inside information should be assigned to the corporation and not subject to contractual reassignment. Deregulatory arguments are typically premised on the claims that insider trading promotes market efficiency or that assigning the property right to inside information to managers is an efficient compensation scheme. Public choice analysis is also a staple of the deregulatory literature, arguing that the insider trading prohibition benefits market professionals and managers rather than investors. The argument in favor of regulating insider trading traditionally was based on fairness issues, which predictably have had little traction in the law and economics community. Instead, the economic argument in favor of mandatory insider trading prohibitions has typically rested on some variant of the economics of property rights in information. A comprehensive bibliography is included.

There's a shorter justification of the property rights approach in a 2010 post The Whys and Wherefores of Regulating Insider Trading.

You'll also want to read my post Implications of a property rights approach to insider trading.

As for whether the insider trading prohibition should be mandatory or a default rule, I addressed that issue in a 2009 post Why the insider trading prohibition is mandatory rather than just a default rule.

And, of course, you'll want my book Bainbridge's Insider Trading Law and Policy

Related articles

Henry Manne on Insider Trading

Manne on SEC Insider Trading Charges in Sanofi Deal

Might the Second Circuit finally be willing to do something about the vagueness of insider trading law?

The Ethics of Insider Trading

Regulating Regulation by Deal

I recommend a new paper:

Davidoff, Solomon and [Zarig] have put together a paper on the litigation between the government and the preferred shareholders of Fannie Mae and Freddie Mac.  Do give it a look and let us know what you think.  Here's the abstract:

The dramatic events of the financial crisis led the government to respond with a new form of regulation. Regulation by deal bent the rule of law to rescue financial institutions through transactions and forced investments; it may have helped to save the economy, but it failed to observe a laundry list of basic principles of corporate and administrative law. We examine the aftermath of this kind of regulation through the lens of the current litigation between shareholders and the government over the future of Fannie Mae and Freddie Mac. We conclude that while regulation by deal has a place in the government’s financial crisis toolkit, there must come a time when the law again takes firm hold. The shareholders of Fannie Mae and Freddie Mac, who have sought damages from the government because its decision to eliminate dividends paid by the institutions, should be entitled to review of their claims for entire fairness under the Administrative Procedure Act – a solution that blends corporate law and administrative law. Our approach will discipline the government’s use of regulation by deal in future economic crises, and provide some ground rules for its exercise at the end of this one – without providing activist investors, whom we contend are becoming increasingly important players in regulation, with an unwarranted windfall.

Big tent academic conferences in law

Haskell Murray argues that big tent academic conferences offer law professors a number of benefits:

Teaching.  At most conferences I attend, I attend at least one panel on pedagogy.  In addition, many of the panels provide new material for classes.  Also, fellow professors may be more willing to share teaching materials, which can be invaluable, if they have met you in person at a conference.

Service.  Conferences are often the hub for discipline-related service.  Many, if not most, of my external service opportunities have come from other professors I met at conferences.

Research.  You can receive excellent comments on your papers at conferences and are much more likely to get other professors to review your work if you have met them in person.  Also, a number of the people who have cited my work are people I met at conferences.  

Professional Development.  Much of our time as professors is spent with students, who are usually not experts in our subject areas.  Even most of our colleagues are not experts in our specific research areas.  Conferences give professors a chance to test themselves against other experts in their areas, which can lead to significant professional development.

Inspiration.  I tend to return from conferences inspired and refreshed.  Seeing the successes of my colleagues at other schools encourages me to be more efficient and improve in all areas. 

Community.  Academic community often grows from conferences. Blogs, social media, listservs, e-mail, and phone calls can sustain the community, but I think it is relatively difficult to be truly plugged into the broader academic community without at least a few in-person meetings with other professors. 

Compensation.  Frankly, I count funding for conferences as part of my compensation.  A school without funding for conferences would likely have to pay more in salary if it did not provide funding for conferences. Also, payment for conferences usually amounts to a relatively small portion of total faculty compensation.  

Rankings. Many school rankings depend, at least in part, on peer reputation.  In the U.S. News law school rankings, for example, peer reputation is actually the single most heavily weighted factor.  I don’t think schools should chase rankings just for the sake of the rankings, but improving rankings can impact things that matter (recruiting intelligent students, attracting recruiters to campus, and making (generous) alums happy, etc.)  I’m not sure how much schools spend on those glossy brochures they send to other schools, chasing peer reputation, but I am much more likely to think well of another school if I hear a good presentation from one of their faculty members than if I see an impressive looking pamphlet in my mailbox. 

I don't buy it. Back in 2010, I wrote that:

Anticipating the forthcoming annual meeting of the Association of American law schools at the end of this week, Trey Drury poses the following question: When Did the AALS Become an Issue Advocacy Organization, or Does the AALS Really Think New Orleans Health Care Workers are Bigots?

The short answer is that the AALS is a typical example of the modern academic organization: It's not a learned society.  instead, it's basically an association of left-liberal busybodies who care mostly about two things; to wit, (1) maintaining their cartel and (2) politically correct, multicultural identity politics.

Some of us have been around long enough to have gone down this road at least once before. As recently as 2008, for example, there was an enormous controversy within the AALS because, as David Bernsteinrecounts, "because the owner of one of the hotels [at which the conference was being held], Doug Manchester, donated $125,000 to to support an initiative banning same-sex marriage in California." Other highlights of the AALS' ideological crusades include:

• The 1990 decision to ban discrimination based on sexual orientation in its member law schools, which had the effect of requiring law schools to ban military recruiters and also complicated life for some religiously-affiliated law schools
• The AALS' continuing refusals to allow the National Association of Scholars, the Federalist Society, or the Christian Law Professors Fellowship to hold their functions at annual meeting hotels or to advertise them in the program
• The AALS' opposition to the Solomon Amendment
• The AALS' opposition to Proposition 209 and similar litigation and referendum challenges to affirmative action
• The AALS' insistence on racial and gender diversity in selecting speaker panels, while ignoring intellectual diversity
• The AALS' hostility to institutional pluralism, which has sometimes resulted in heavy handed enforcement of certain accreditation standards on religiously-affiliated law schools

I'm not the only curmudgeon who thinks the AALS is driven by left-liberal ideology. In a January 3, 2000, Washington Post op-ed, Charles Fried wrote that:

The central theme of the annual meeting of the Association of American Law Schools (AALS), which begins this week in Washington, is "A Recommitment to Diversity." The only plenary panel consists of the head of Bill Clinton's civil rights division, a gay rights and disability rights activist, a former lawyer for the Mexican American Legal Defense Fund and a critical race theorist.

All estimable people, and in a sense quite diverse, but in case you didn't get the point the program announces, "In the last several years, an assault has been launched against diversity efforts. Court decisions . . . as well as statewide referenda . . . have limited affirmative action and diversity efforts. These actions go to the very heart of the diversity goals of the AALS." 

Of course the term "affirmative action" means racial preferences, and "diversity" means diversity as defined by the racist census categories enshrined in much of our preferential and set-aside legislation and programs. As the roster of speakers and topic announcement make clear, diversity certainly does not mean -- though this is supposed to be a meeting of scholars and intellectuals -- diversity of ideas or points of view, unless your idea of diversity is the full gamut of opinions from left to far left. 

The AALS approach is striking because meeting at the same time in the same city, the law teachers sections of the Federalist Society and the National Association of Scholars -- both routinely dismissed as "right-wing" and "conservative" -- have mounted discussions of related topics that are genuinely and studiedly diverse in the only sense relevant to academic discourse: diverse in the points of view presented. 

But these groups are prohibited from meeting in the same hotel as the AALS or publicizing their panels in its literature (as is the Christian Law Society). On the other hand the avowedly leftist Society of American Law Teachers is welcomed to the party with full courtesies.

A decade later, those groups are still banned and the AALS idea of diversity still runs only from "left to far left."

In his essay Legal Education's "Learned Society," Professor Erik Jensen "discusses the politicization of the Association of American Law Schools as evidenced by two events: the 2000 Annual Meeting of the Association and a fracas that occurred during the author's tenure as an editor of the Journal of Legal Education, published by AALS."

I wish I had ideas about how AALS could be reestablished as an apolitical organization, but I don’t. The positions that AALS takes reflect generally popular ideas in the legal academy; they’ve been institutionalized within American law schools one-by-one (with a few exceptions) and within the organization that represents nearly all of those schools.

But I can suggest a starting point for moving in the right direction: trying to appear fair. AALS meetings should be open to all organizations dealing with legal education, and AALS should be willing to publicize the programs of alternative organizations. If AALS is going to continue its current exclusionary policy for Annual Meetings, it should be forced to defend that policy publicly in a substantive way. And AALS officials shouldn’t accept charges of racism without at least pretending to afford procedural protections to the accused parties.

None of those suggestions should be controversial. That each would be resisted unfortunately says a great deal about the Association of American Law Schools today.

That none of these proposals have been implemented a decade later says even more. After all, as Fried concluded:

Intellectuals have influence only if they have fresh ideas to respond to fresh realities, and the fortress mentality reflected in this pathetic performance of the AALS cannot possibly produce anything new. Those who highhandedly would design a program such as this and propose it as a serious academic exercise hope somehow to exert influence. Instead they discredit themselves and condemn their voices to irrelevance.

And in 2012 I wrote that:

At Prawfs, Dan Rodriguez comments:

What are your good ideas for the AALS as an organization going forward, especially in these remarkably difficult times for legal education?  I have the opportunity to play a leadership role in the association for the next little while (being nominated as president-elect at the upcoming annual meeting).  My sense is that we can do much better as a group in furthering the myraid objectives of the law professoriate.  Moreover, I would like to use my (small) bully pulpit to advance objectives that are critical to our collective future.

I have various thoughts to be sure.  What are yours?

The best thing we could do with the AALS is to disband it:

• It helps the ABA maintain the law school monopoly on legal training, which perpetuates the lawyer monopoly on provision of legal services.
• It creates a monoculture in which all law schools are obliged to comply with an ever growing set of rules. Schools with particular reasons for differentiating themselves from the pack, such a religiously affiliated schools, face pressure to conform to the standard left-liberal, secular humanist model that informs AALS policies and politics. As such, the AALS lacks any real room for institutional pluralism.
• Speaking of politics, it serves mainly as a talking forum for left-liberals (most of whom are so well paid that they're in the top 1 or 2 %) to whine about how they're victimized by society.
• It does a really lousy job of serving as a learned society.

I can't think of one useful thing the AALS does except to provide a massive schmooze fest for faculty to network at taxpayer and student expense. And while that's fun, it doesn't justify the organization's existence.

Again from 2012:

Solango Maldonado identifies a couple of AALS annual meeting panels that are sure to be "informative and engaging." Richard Albert can barely constrain his excitement: "The AALS has assembled a terrific program. There are so many panels I can't count them all!"

I haven't been to every AALS annual meeting since I joined the profession back in 1988, but I've been to a lot ... and can count the number of "informative and engaging" panels I've seen on the fingers of one hand.

I've come to agree with Brian Leiter:

Complaints about the AALS are legion among law professors: the organization's relentless political correctness (without regard to the diversity of views among its members), its inability to stage real scholarly conferences, and its intrusive, and again largely politically motivated (when not cartel-motivated!), regulation of law schools. ...

 

Complaints about the AALS annual meeting are particularly common, such as this one from a prolific young scholar about the recent meeting Atlanta:

"The panels were okay, though I think I'd prefer the format of real academic conferences. Trying to be timely produces pretty half-baked comments, in my opinion. I mean, is a four person, three hour discussion about Guantanamo Bay going to change any minds or shed significant light on the relevant constitutional issues? Hardly."

Panels in which speakers haven't prepared papers, and in which they appear to have only thought about the topic ten minutes earlier, are all too common.

I also mostly agree with Orin Kerr:

Over at Brian Leiter's Law School Reports, Brian comments on the upcoming Association of American Law Schools January meeting for law professors: "[M]y sense is that specialist meetings of scholars have completely displaced the AALS as the destination of choice for those looking for conferences with intellectual content. Am I wrong?" Brian is quite right. This year's panels look unusually good, but in past years I've been significantly underwhelmed. 

  Of course, that doesn't mean the AALS January meeting has no purpose at all. As I see it, it serves at least five critical purposes, in descending order of importance: (1) It provides law professors with an all-expenses paid trip to the city where the conference is being held (this year, New York); (2) It provides professors an opportunity to sample the culinary delights of that city (figures Solove would be way ahead of me there); (3) For conservatives and libertarians, it provides a trip to the Federalist Society's shadow conference, always held near the AALS meeting and generally rich in intellectual content (and always with lots of co-conspirators); (4) For blog readers, it puts you in town for the annual CoOp/Prawfs happy hour; and (5) It provides a chance to roll your eyes at the bland and meaningless theme the conference organizers come up with, this year being "Reassessing Our Roles as Scholars and Educators in Light of Change." Uh huh.

As for Orin's positive reasons, the drawback of point # 1 is that the AALS mostly rotates within a very limited number of cities and after 22 years in the business I've been to almost all of them. Plus, it's a crappy time of year for vacations. Point # 2 holds mostly for New Orleans. Point 3 is perfectly true. Point 4 doesn't apply to those of us who are antisocial. Point 5 is true, but can also been done in the comfort of your home institution's faculty lounge.

So what do you think: Is the AALS annual meeting "informative and engaging" or a major league suckfest?