November 25, 2006
Putting the Derivative in Derivative Lawsuit
The New York Times, in "Next, a Litigation Futures Exchange?", reports (via Joshua Lipton of The American Lawyer) Australia's highest court has given the okay to "litigation funding companies" that get a piece of the recovery for a share of the costs. While some may scream "champerty" or "maintenance," I'm not sure that creating a market in law suits is such a bad thing, but only if you combine it with the English rule on attorneys fees.
November 24, 2006
A Nu Toy 4U Yule [Heart] 2 H8
Posted by Alan Childress
Yesterday, which I refuse to call Black Friday, was the official starting date for hawking creepy toys that should never have been invented. Tops on my list, so far, is this product from eToys.com, called the GR8 TaT2 Maker. That's a "home tattoo parlor" for those of you who do not speak fluent license plate yet. For ages 6-12 (somehow outgrown by, and inapt for, the teens).
Creepy: the description. "Open up your very own pretend play tattoo parlor. This easy-to-use tattoo maker kit includes an electronic tattoo pen and funky stencils. Using soft, safe pulsating action, the tattoo pen creates realistic, washable designs with dramatic effects. Requires two AA batteries (not included)."
Creepier: rating of 3-1/2 stars out of 4, by twelve customers (most are sincere though one notes, "I've always wanted to see my kid in prison").
Creepiest: the ad's photo of the two boys using this item number 713380 on each other. It's not a parody. They're having way too much fun.
How does this rel8 to the legal profession? The blogger and HatTipee at Arbitrary and Capricious, a Public Defender, predicts of the pictured users: "These kids are so going to show up in my caseload." If so, I add, at least they will already be fluent in license plate. Meanwhile, some poor slob of a dad will be cruising the 7-Elevens on Christmas Day trying to score two AA batteries for this edisonian invention from the fine people at Spin Master. Too bad he can no longer pick up a pack of those chalk-candy cigarettes too--remember, the ones with the fake red-flame tip we loved as kids? Ah, holiday memories.
But do give generously to your local Toy Tats for Tots drive.
And As Long As We're Talking About Bar Membership, What About Law Professors?
Posted by Jeff Lipshaw
My wife happened to ask me this evening whether one had to be admitted as a member of the bar in the state in which one is teaching as a law professor (and presumably not consulting or doing anything else that looks like law practice). This was coincidental, and not in any way related, to
today's earlier post on the bar admissions status of in-house counsel.
Never let it be said that we at LPB can't dash off the occasional original empirical study. On the question whether a law professor needs to be admitted to the bar of a state in which he or she is teaching, the answer is: we aren't sure. But we think we may have ripped the lid off a can of pungent sardines.
After spending countless minutes (actually about forty-five, if you don't count the time we were out walking the dog) researching this issue, here are the preliminary results. Most state law definitions of the practice of law are a variant, codified or not codified, in more detail or less, of the ABA-recommended definition: "the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity."
But does that include teaching law in a law school? On quick review of the ABA materials, it appears that only two jurisdictions hit the issue straight on. The District of Columbia says "no." The comment to its court rule (Court Rules of the District of Columbia Court of Appeals Title VI. General Provisions Rule 49), says "a law professor instructing a class in the application of law to a particular real situation is not engaged in the practice of law because she is not undertaking to provide advice or services for one or more clients as to their legal interests." But Colorado says "yes." Colorado Court Rule, Chapter 18, Rule 201.3(2) states "For purposes of this rule, "practice of law" means: . . . (e) employment as a teacher of law at a law school approved by the American Bar Association throughout the applicant's employment."
This would suggest that Colorado is the lone outlier were it not for the following oddity from the admission on motion data. There are thirty-two jurisdictions that admit lawyers by motion, and in all of them except D.C., South Dakota, Vermont, and Virginia, having taught law counts as "practice" for the purpose of having had enough years of practice to qualify for admission on motion. Then we have the "law professor special status" states:
- If you've taught law in Alabama for three years or New Jersey for five, you can then be admitted in those respective states on motion, as long as you've been admitted in another state already (thus implicitly conceding that teaching is not practicing because presumably you can teach in Alabama or New Jersey without a license).
- If you are hired as a law professor at the University of Hawaii Law School or the Boyd Law School at UNLV, you can be admitted to the bar of those states on motion (the notes here don't indicate that Nevada requires a prior admission!).
- In Ohio, full-time teaching at an ABA-approved law school, whether in or outside of Ohio, may satisfy the past practice requirement (I am still searching to see if the may includes the discretion to make the decision based on average faculty brain volume.)
Here are questions for further study:
1. Assuming that teaching either is practice, or counts as practice for purposes of the number of years you have been practicing for admission on motion, does it matter whether your approach to teaching and research is or has been so theoretical as not to have any arguable connection to the practice of law?
2. In Colorado, is it a defense to an unauthorized practice charge to claim you are teaching "interdisciplinary studies" when in fact you mentioned the Coase Theorem twice during your Secured Transactions course?
3. What is the status of legal historians, and in particular, those members of classical studies departments who specialize in Roman law?
4. Is there an exception, arising out of the First Amendment, for the teaching of Talmudic or canon law?
5. And what of those poor souls who happen to be on law faculties but do not have a law degree?
All I can say is that there is a benefit to not being a member of the bar in the jurisdiction where you teach. If you dread the following lead-in on an e-mail or a phone call: "Professor, this actually doesn't have anything to do with class. Um, it's a personal problem. I sure hope you can help. My [landlord][boyfriend][girlfriend][parole officer][marriage counselor] [shrink] told me yesterday that [he][she][it] wanted to [evict][drop][kill][marry][prosecute] [sedate] me. . . ." And you get to say, with a sigh of relief, "I'm sorry, but I'm not admitted to practice here."
Corporate Compensation and Ethics Turn NY Papers Into Hatfield-McCoy
Posted by Alan Childress
The corporate governance and ethics issues raised by executive compensation and backdated options have generated hot press and much blogging the last several months, including Jeff's posts here and here--the latter of which somehow shoehorned an analogy to Paris Hilton. And now those issues have boiled over into a debate of journalistic standards in the mainstream press. Over at Ideoblog, U. Illinois law professor Larry Ribstein (left) tracks here the emerging feud between the New York Times and the Wall Street Journal's Holman Jenkins over recent reporting (and opinionizing) about such matters. [The U. Ill. website also links here a recent radio broadcast in which Ribstein responds to government talk of a more flexible SOX to come, a development on which I most recently posted here.]
Ribstein obviously and openly is a partisan in this NY newspaper war, siding with--and perhaps instigating or at least foreshadowing--the criticisms Jenkins has expressed about the Times' reporting lately, accusing it in essence of blind acceptance of corporate drivel. The Times in turn accuses Jenkins of some unspecified vendetta against one of its reporters. The feud may not shed light on the tendentious issues of corporate compensation and excess, but it raises real questions about journalistic objectivity and the blur between news reporting and columns.
Making Corporations Safe from the Threat of Unauthorized Malpractice of Law
Posted by Jeff Lipshaw
Cranberry guru and co-editor Childress passes on this story from Law.com about new rules being passed to insure that in-house lawyers are licensed to practice in the state where they are employed.
Objecting to licensure of in-house lawyers would be the height of political incorrectness, and I don't intend to be politically incorrect here. When I moved from Michigan to Indiana in 1999 to become the general counsel of Great Lakes Chemical, I immediately applied for for full (not business counsel) admission. It was pretty cool, because in Indiana, you are only admitted on a foreign (that's Michigan) license conditionally until you have certified in each of five succeeding years that you have practiced more than half your time in Indiana. So every year, I would make my certification, pay my dues, and get a little sticker to put on my admission certificate.
Sometime in the last several years, like the other states in the article, Indiana passed its rules for admission on a business counsel license. So I was never faced with the possibility of having a limited license. But even under the limited license rule, you still have to fill out the form for the Committee on Character and Fitness, and that was the biggest part of the job. I was tracing old traffic tickets down, and trying to figure how where I worked during each summer of college.
Why does the cynic in me say this is all about the $800 fee and not about protecting the public? Certainly if you are holding yourself out to the public and taking fees, and appearing in the courts of a state, you should hold a license. But if you are licensed in any state and doing nothing but representing the corporation in-house, then additional requirements seem silly. Indeed, ABA Model Rule of Professional Conduct 5.5(d) says as much, providing merely that "a lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that . . . are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission. . . ."
Somehow, the licensing rules take me back to images of circuit riders, and reading the law in a lawyer's office. The ABA Model Rule recognizes the modern reality: even if the headquarters of my corporation is located in Indiana, I am rarely practicing "Indiana law." Doing anything more than what is dictated by the Model Rule says something about the guild or, more likely, about the fee revenue.
November 22, 2006
Bow To Us: The Legal Profession Gave You the Cranberry Sauce that Wiggles
Jeff previously posted this amazing link (by LSU's Christine Corcos) which cleverly reels off all sorts of authors, actors, artists, heroes, journalists, and stars who were first, of all things, lawyers. The list looks pretty comprehensive. But glaringly omitted are two crucial historical figures who start with Ma [as do we all]: Max Weber, a commercial lawyer before he practically invented [not the grill but rather] sociology; and--most importantly this week--Marcus Urann, sage inventor of the sweet gelatinous form of cranberry "sauce." The feat is explained nicely by Peter Lattman at the WSJ law blog. As one commenter named Nerd posted, that kind of cranberry sauce in a can is the only food you have to open both ends to remove.
The legal profession, for all its public trashing lately, deserves major credit for this. (Don't add that we gave you Watergate too.) Apparently owing to the log o'berry, Lattman waxes: "Lawyers are, indeed, something for which everyone around the Thanksgiving table should be thankful." You're welcome and Happy Thanksgiving from LPB. [Alan Childress]
Some 70 McGeorge Students Volunteering in New Orleans Over Winter Break (And Maybe You Are On-Deck to Help Too)
Posted by Alan Childress
A follow-up to our previous posts (here, here) on serious criminal defense issues in post-Katrina New Orleans: There may be some good news on the way to help Tulane's and Loyola's clinics (including Loyola's Steve Singer, acting as the PD's chief of trials) to address the backlog of unrepresented and under-represented defendants. It comes in the shape of volunteer law students and lawyers from all over the country. Many of them, and lots of other worthwhile projects along the Gulf Coast, are coordinated through the larger Student Hurricane Network. [More on the impressive SHN volunteer effort, and your place in it, beneath the fold.]
For example, today's Sacramento Bee is reporting this inspiring story about some 70 McGeorge law students organized to lend a hand (intake, interviews, etc.) Dec. 14-22. Writes the Bee's Eric Stern, "They'll help patch a criminal justice system that remains in tatters a year and a half after evidence and records were destroyed by the flooding. Inmates were displaced across the region, and the newly arrested and accused haven't seen lawyers yet."
There's a huge and continuing need: some 3500 inmates' cases are pending, with a dozen or fewer PDs to represent them. Some defendants are already overstaying their possible prison term and need to be identified as soon as possible. In an interview this summer (in this thorough story from the San Diego Union-Tribune), Singer made clear that the system had many holes before the storm that needed plugging even then: “I compare it to the levees. ...They were always substandard but nobody realized it until the hurricane came. The same thing with the criminal justice system. It was always substandard. It was less obvious unless you were in it.” The new pro bono assistance is essential and welcome, but no one mistakes it for the structural, funding, and programmatic reform that has been needed for some time--an exigency the storm laid bare.
Where to go from here, on these issues and others needing human capital help?
As for further volunteer needs in law and administration throughout the affected Gulf Coast area, the Student Hurricane Network writes that it "is currently working to facilitate winter break student trips. If you want to organize a trip from your school or would like to help with planning, please contact us at [email link]." SHN already has an impressive mission, record, and community [see its About SHN page and photos], led by driven and responsible law students, such as Tulane's Morgan Williams. Criminal defense is only one aspect of its attention and care. Its efforts have been reported on by the ABA Law Student Division here and several law school newspaper or website stories, such as this one from Brooklyn Law School, as well as law student websites such as these volunteers from the University of Oregon.
... And it is not too early to be thinking about spring break! The SHN also needs coordination and committee leadership help from people who may not necessarily travel.
SOX Compliance May Be Growth Niche for Mid-Size and Smaller Law Firms
That's the astute observation of Tom Kane on his Legal Marketing Blog, following on a study that shows compliance with Sarbanes-Oxley is the corporate world's new #1 expressed headache and need. Fully 86% of companies surveyed rated SOX as their main concern. That leaves room for one or two attorneys in even smaller firms to master the field and create niche marketing in an area of growth, Kane reasons.
Previously and elsewhere (here, here, and here), it has been noted that publicized SEC measures promising to ease compliance costs are likely to be half steps, at most. So Kane's prediction and advice does not seem undermined even by recent publicity suggesting--perhaps mostly as wishful thinking--that there's a more flexible SOX in the future. [Alan Childress]
"Scorched-Earth Litigation" Results in Sanctions Totaling $1,260,000
Here is a report from the Knoxville News Sentinel on a recent sanctions order of $1.26 million issued by a Tennessee state judge against a plaintiff real estate developer from Florida. He filed suit in 1999. After 1,866 docket entries, and finding multiple misrepresentations and "improper purpose," the judge had enough. The article reports it as the largest sanction in the state. I note it is more than the $996,645 approved under "inherent judicial authority" by the Supreme Court in Chambers v. NASCO, Inc., 501 U.S. 32 (1991). As in that case, this appears to be levied againt the party, not his attorneys. [Alan Childress]
Heteronomy and Autonomy in Small Business Practice
Posted by Jeff Lipshaw
The USA Today delivered to my hotel room on November 20 had a special Money section devoted to the topic of small business. The cover story is about Aaron Wolfson, who took five years to open The Savvy Gourmet, a cooking school, catering house, and kitchenware store in New Orleans, just in time to see it washed away by Hurricane Katrina. And yet he came back with "a new business plan to suit the needs of a largely abandoned city." (For more on the subject of urban entrepreneurship in New Orleans, visit Idea Village's website. Or buy a CD from street artist and jazz musician, Hack Bartholomew, right, after sipping your cafe au lait and nibbling on your beignet at the Cafe du Monde.)
My students would accuse me here of being "emo," but I can't help but wax philosophic about it. If heteronomy is the philosophical term for the world of physical cause-and-effect, of the inexorable tide of economic, demographic, and social forces, then autonomy, at least in small business, is the
spirit of the entrepreneur, who decides, as a autonomous agent, to intervene, as a matter of free will, in the face of those forces. (It's fair here to accuse me of being a trumpeter of Schumpeter, left. For a Schumpeterian view of legal education in general, see Jim Chen's post over at Money Law.)
I want to make the argument that neither the profession nor the academy has yet figured out how lawyers best assist this unusual creature. Take the article by Rhonda Abrams entitled "9 Problems to Avoid by Planning Ahead:" the categories are cash flow problems, partner break-ups, natural disasters, loss of a major customer, new competition, industry change, loss of key personnel, theft and embezzlement, and family problems. Who more equipped than a well-trained lawyer to assist a client in planning ahead? But how many of these contingencies are addressable in advance by the tools we teach lawyers? I have argued before (in the DePaul Law Review, a publication I am gratified to find has achieved "top fifty status") that the prime means by which business lawyers attempt to impose order on the contingency of the heteronomous world is the institution of contract, which notwithstanding rational actor and behavioral economic theory to the contrary, is feeble at best. If we fly-speck the specific recommendations in "Planning Ahead," only a few are expressly legal: draw up a partnership agreement with a buy-sell mechanism, have adequate insurance policies against natural disaster, fraud, and theft, develop an estate plan for the owner-operator.
A lawyer's lawyer sees the world, I think, in simple models by which contracts are supposed to inhibit opportunism - the futures contract for the purchase and sale of wheat that gives the buyer a remedy against the seller's opportunism when the contract price was $100, and the market price on the date of sale is $120. Indeed, the law is an element of the heteronomous world; it controls, restricts, limits the choices of the free agent. The entrepreneur, on the other hand, sees the world as a moveable feast of phenomena, posing danger and opportunity to be seized and exploited, and choices to be made, over and over again. "There is no rule for the application of a rule" teach the philosophers, and it might be the entrepreneurs' creed, because what the philosophers are really telling us is that what we think are rules for the application of a rule are not inherent in the rule, but in our social constructs around it. Most of us believe the rule of 2-4-6-8 means that the answer is 10; the entrepreneur sees it as 12 or 19 or 1-5-6.
Does that mean there is no place for the traditional tools of the lawyer in representing the small business person or entrepreneur? Of course not. Those tools are part of the planning ahead. But in my dream curriculum, the entrepreneur's lawyer has also honed her skills in "lawyer as conceptual blockbuster," in "lawyer as friend," in lawyer as counselor, in lawyer as ethicist (not just a legal ethicist, but deontological and consequential ethicist as well). That lawyer is one who understands the process of judgment looking forward is far more complex and mysterious than the application of the legal algorithm embodied in a contract.
November 21, 2006
Judge Strikes Down Las Vegas Ban on Feeding Homeless People
The New York Times is reporting, from AP, that a federal judge today struck down Las Vegas' anti-panhandling law, which this prior post referenced and was featured in an earlier Times story. There is also a report today here in the New York Lawyer. [Alan Childress]
Research Proposals Welcome for Empirical Study of Law Firm Data
As also posted on Empirical Legal Studies, William Henderson (Ind.--Bloomington) announces, for The Law Firms Working Group, the availability of extensive data for research into law firms and the profession:
The Law Firms Working Group, a joint initiative of the American Bar Foundation (ABF) and Indiana University School of Law--Bloomington, is currently accepting research proposals for empirical work on law firms and the legal profession. Pursuant to a special licensing agreement with American Lawyer Media (ALM) designed to facilitate this research, the Working Group will make available to a limited number of researchers several comprehensive datasets on large U.S. or global law firms. Working Group data includes cross-sectional and longitudinal information on law firm structure, financial performance, lawyer demographics, branch office size and location (including coding by metropolitan area), lawyer mobility, associate satisfaction, relative law firm prestige derived from lawyer surveys, practice group prominence, and several other facets of modern law firm practice. Because of licensing restrictions, composition of the Working Group will be limited to twelve active projects.
Contact information and application procedure follow below the fold. The final deadline is 2/16/07 but earlier proposals are encouraged. [Alan Childress]
The announcement further states:
Researchers interested in joining the Law Firms Working Group and obtaining access to this data should submit a research proposal (maximum of 750 words) and curriculum vitae via email to Professor William Henderson at (wihender(at)indiana.edu). Although the initial data are primarily quantitative, the Working Group welcomes proposals that combine quantitative and qualitative methodologies. Selection criteria for research proposals include (a) intellectual merit, (b) researcher qualifications, (c) proposal timing, and (d) lack of significant overlap with other Working Group projects. Researchers are therefore strongly encouraged to submit their proposals as soon as possible before February 16, 2007. Initial project approvals and invitations to join the Working Group will be made as soon as practicable and thereafter on a rolling, space-available basis. At this time, the Working Group provides no research support beyond the acquisition and archiving of data.
For further information on the Law Firms Working Group, including the scope of available data and licensing restrictions that will apply to all Working Group Members, please contact William Henderson at Indiana University School of Law—Bloomington. Professor Henderson can be reached by email [above] or phone at (812) 856-1788.
Michelson on the Legal Profession in China
Posted by Alan Childress
Ethan Michelson has posted “The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work,” on SSRN's Law & Soc'y: Legal Prof. journal. Michelson (below) is in the departments of Sociology and East Asian studies at Indiana-Bloomington. The article also appears in volume 40 of the Law & Society Review, and is posted here in a very legible PDF format as in the Review.
Michelson focuses particularly on client screening and the role of lawyers (including cause lawyering) in a period of massive professional transition. He begins by quoting lawyer-client conversations which are fascinating--and reminiscent of the classic law-and-society work [he discusses] on U.S. lawyers' power-based interactions with their divorce clients, e.g., Austin Sarat & William Felstiner. But the interactions in China may not share (or at least start out with) the same power dynamic; one client asks her labor-law attorney: "You have a problem with your head, don't you? Everything is one big question mark in your head, isn't it?" The lawyer's reply: "There's nothing wrong with my head." The article's full abstract is below the fold.
Michelson wrote a more general examination of the transition and privatization ("unhooking") of the Chinese legal profession over the past 20 years, found here, as a doctoral dissertation for the University of Chicago. Plus general updates, and thoughtful commentary, on the sea changes to law in China and its emerging profession may be found on the Chinese Law Prof Blog edited by GW's Donald Clarke.
The abstract of Michelson's SSRN article:
This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help.
November 21, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack
Bathroom Break Issue Leads to Contempt
by Mike Frisch
A recent Kansas discipline case reinforces the principle that the First Amendment does not afford protection to statements by counsel in ongoing litigation. In re Eckelman involved an attorney representing a criminal defendant. During a recess, defense counsel was told by her client's wife that jurors and the victim were together in the rest room and may have spoken with each other. The attorney then comfirmed that jurors and the victim were both there but did not overhear any conversation. The attorney then went into the judge's chambers and demanded a mistrial. The demand was deemed premature as the judge wanted to interview the jurors.
The attorney became angry and profane and was held in contempt. Back in court, she told the judge that she was "furious," could not "control it" and that the judge was "the cause of it." The attorney also accused the judge of speaking with jurors without a factual basis. The court found that the lawyer violated ethics rules by speaking to the judge in chambers without notifying the prosecutor and by "undignified and discourteous" behavior. It further held that the lawyer's diabetic condition, now under control, played a role in the behavior. Censure was imposed.
P.S. the client was acquitted of all charges.
NY Times on Criminal Lawyering in New Orleans Post-Katrina
Interesting story this morning in the New York Times on criminal prosecution and defense after Katrina, including the effect of damage to the evidence room on such prosecutions. It is "In New Orleans, Rust in the Wheels of Justice," reported by Christopher Drew. As many as 500 defendants have been freed due to lost evidence and lost witnesses (even including arresting officers), while many others languish in jail awaiting their speedy trial.
The story quotes Tulane colleagues Pam Metzger (left) and Katherine Mattes (rt.) from the defense angle, from experience in the school's clinical representations. People assume this is a gift to defendants. Not if exonerating evidence and alibi witnesses go AWOL. “What people say when you describe all the evidence problems is how terrible it will be if we have people who committed crimes and can’t be prosecuted,” [Mattes] said. “But it also can work the other way.” [Alan Childress; HT to Jeanne Carriere]
November 20, 2006
Washington State Bar Seeks Executive Director
The Washington State Bar Association posted a job announcement for a new Executive Director, to oversee the bar organization, in Seattle.
Deadline: December 1. [Alan Childress]
Firm Conflicts Checking Is No 'Prosaic' Chore
That is the conclusion and advice yesterday of lawyer-blogger Bruce MacEwan, on his Adam Smith, Esq., based on recent cases involving big firm cost and embarrassment. "[T]he notoriety of even an alleged conflicts offense is something no one needs." He also mentions and links software aids for conflicts checks, but thinks they don't substitute for judgment and strategic questions. [Alan Childress]
Supreme Court Overreliance on Law Clerks?
In addition to recent scholarly examinations of the influence of U.S. Supreme Court clerks, which we reported here and here, consider this very recent and brief FindLaw article written by former clerk (and now L.A.-based practioner and frequent adjunct law professor) Edward Lazarus. He writes on this issue and other internal dynamics of the new Court. Lazarus is author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court (1999). [Alan Childress]
Frank on Moral Consequential Reasoning, Goodenough on Values and Fairness in Free Market Institutions, and a Gift Recommendation for Your Favorite Philosopher
Based on the posting of two chapters on SSRN, MORAL MARKETS: THE CRITICAL ROLE OF VALUES IN THE ECONOMY, Paul J. Zak, ed., Princeton University Press (2007) has just gone on my book order list or my holiday gift list, whichever comes first. This sounds like a must-read for those of us who play in the overlap between morality and markets. (Unfortunately I cannot find a link for it yet either on Amazon or at the PUP web site.)
First we have "The Status of Moral Emotions in Consequentialist Moral Reasoning" by Robert H. Frank (Cornell - Economics). Here is the abstract:
The philosopher Bernard Williams describes an example in which a botanist wanders into a village in the jungle where ten innocent people are about to be shot. He is told that nine of them will be spared if he himself will shoot the tenth. What should the botanist do? Although most people would prefer to see only one innocent person die rather than ten, Williams argues that it would be wrong as a matter of principle for the botanist to shoot the innocent villager. And most people seem to agree.
The force of the example is its appeal to a widely shared moral intuition. Yet some philosophers counter that it is the presumed validity of moral intuitions that such examples call into question. These consequentialists insist that whether an action is morally right depends only on its consequences. The right choice, they argue, is always the one that leads to the best overall consequences.
I will argue that consequentialists make a persuasive case that moral intuitions are best ignored in at least some specific cases. But many consequentialists appear to take the stronger position that moral intuitions should play no role in moral choice. I will argue against that position on the grounds that should appeal to their way of thinking. As I will attempt to explain, ignoring moral intuitions would lead to undesirable consequences. My broader aim is to expand the consequentialist framework to take explicit account of moral sentiments.
The recognition of the character of consenting players by other consenting players assists humans in taking part in productive, consensual interactions. Classical economic modeling gave insufficient attention to the structural requirements of trade and cooperative interaction. A combination of game theory and institutional economics helps us to redress the balance, and leads us to the conclusion that values play an important role in many kinds of institutions, and are of fundamental importance in interactions that are not subject to complete structuring through such alternatives as law, physical mechanisms, or institutionalized markets. Values such as honesty and trustworthiness can be very effective in transactional contexts, helping in the restructuring process of mechanism design and changing the dominant solutions in interactions from those with poor cooperative outcomes to those with higher mutual potential.
Fairness, by contrast, often plays a different role. It can be viewed, at least in part, as a measuring process in which we decide whether participation in the game as designed is individually rational, i.e. desirable as a matter of uncoerced choice. The pay-off structures set in place by a bargaining system based on the marginal utility of the players may not match up with their fairness pricing, a problem which could lead to instability in the system. This instability can be resolved by adding an appropriately calibrated redistribution rule to the overall game, whether in a dyadic paring, a firm, or in society as a whole.
November 20, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack
Judges Winning Libel Suits and the Costs of U.S. Litigation
Over at Concurring Opinions, Daniel Solove (GW) offers, in "The Cost of Litigation," his reaction to the recent case in which a jury awarded $7 million in damages to the Illinois Supreme Court Chief Justice it found to have been defamed by a local newspaper (and to today's New York Times story on the case and the history of defamation suits brought by judges in their courts). Noting that defense costs dwarf the real liability exposure in most defamation cases (say studies from the Media Law Resource Center), Dan wonders still whether a loser-pays rule is really a viable solution and invites Comments.
UPDATE: For the somewhat unrelated story of a Pennsylvania lawyer suing a dating/411/slur website for defamation, based on his being dissed horribly by an ex-girlfriend (or anonymous critics), see the How Appealing blog here and here. Nah, the U.S. is not over-lawyered nor are litigation costs too high.... The website, www[dot]DontDateHimGirl[dot]com, is not linked here. Whether such a case has legs may well depend on whether the site is merely relaying others' views or is considered a "publisher," especially since some recent cases like this one reported on in California protect mere posters of others' defamatory information. [Alan Childress]