Sunday, February 16, 2020
What’s the #1 new release in Banking Law on Amazon? I’m glad you asked! It’s Professor David Zaring’s first book, The Globalized Governance of Finance (Cambridge University Press). In 2008, Zaring joined Wharton's Legal Studies and Business Ethics Department as an assistant professor. At the time, I was a PhD student in the Department and also focused on banking law. So, it was really exciting for me to have a banking law scholar join us and I’m thrilled to now have a chance to highlight his new book. My copy is on its way from Amazon, so for now, I’ll share Zaring’s description of his book and my own thoughts with BLPB readers soon!
The book pulls together work I’ve done on the regulatory networks – the Basel Committee, IOSCO, IAIS, e.g., – that have become the global taste for harmonizing financial regulation. I think the regimes, and their relative bindingness (especially Basel), are interesting in their own right, and they are also an interesting way of doing global governance, where the sine qua non is often thought to be a treaty enforced by a tribunal, a la the World Trade Organization.
But in finance, you see neither of those things, and still robust oversight that American regulators, regardless of administration, seem to embrace. Even as the Trump administration has pushed for changes in trade law, Randal Quarles of the Fed has been installed as chair of the Financial Stability Board, the network of networks that keeps everything moving. The Obama administration tried to get a Basel-like process into its trade deals, and issued an executive order encouraging agencies to harmonize regulations.
Moreover, since the financial crisis, regulators have doubled down on these networks, adding political oversight from the G-20, a middle manager in the FSB, and standardizing notice and comment rulemaking at the network level. That, I think, makes the whole scheme look increasingly like a cross-border bureaucracy. After all, American agencies make policy through notice and comment rulemaking overseen by career regulators overseen by political leaders. So too Basel, IOSCO, IAIS, and the other networks.
Tuesday, January 28, 2020
I promised to check back in after negotiating The House on Elm Street (here). I’m checking in! We negotiated this exercise – which contains both legal and ethical issues – in my MBA Business Ethics/Legal course this evening. It proved to be a great learning experience. My previous post mentioned that Professor Siedel had made its use easy by creating thorough teaching notes. And as I suspected, while it might be ideal to have students read a negotiation text or have a full 75 minutes to debrief the exercise, neither proved essential to a valuable learning experience. It also provided a great segue into agency law, another of tonight’s topics.
During our discussion of ethical issues, I mentioned Professor Clayton M. Christensen's How Will You Measure Your Life? This past week, this question became particularly poignant. Christensen, one of Harvard Business School’s leading lights, passed away at the age of 67. Several years ago, BYU Law School Dean Professor Gordon Smith and I started “The Business Ethics Book Club for Law Professors.” The wonders of technology enabled several of us business law professors from all over the country to gather virtually about once a semester for a few years to read books on ethics, including Christensen’s book, which were generally written by business school professors. It’s a short, but powerful read. I highly recommend it to all BLPB readers. My recollection is that it was a popular book club selection too!
In this book, Christensen (and coauthors) seek to answer three simple questions: “How can I be sure that”: 1) “I will be successful and happy in my career?”, 2) “My relationships with my spouse, my children, and my extended family and close friends become an enduring source of happiness?,” and 3) “I live a life of integrity – and stay out of jail?” (p.6) Christensen wasn’t a business ethics professor. Rather, the book’s prologue explains that one of Christensen’s courses was Building and Sustaining a Successful Enterprise, in which “we study theories regarding the various dimensions of the job of general managers. These theories are statements of what cause things to happen – and why.” (5) On the last day of the course, instead of using these theories to examine organizations, the class used these theories to study themselves: “We are there to explore not what we hope will happen to us but rather what the theories predict will happen to us, as a result of different decisions and actions…Year after year I have been stunned at how the theories of the course illuminate issues in our personal lives as they do in the companies we’ve studied” (p.6) According to Amazon, this is “the only business book that Apple’s Steve Jobs said “deeply influenced” him.” And it’s not the only time Christensen’s work has been widely praised. His breakout work, The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail, was heralded by some as "one of the six most important business books ever written." Without doubt, both books are great, worthwhile reads.
Monday, December 30, 2019
This fall semester flew by. Hoping to make time to read and listen to more good content next semester. Always open to suggestions, especially podcasts because my commute is now about 30 minutes each way.
A Guide to the Good Life: The Ancient Art of Stoic Joy - William B. Irvine (Philosophy) (2009). Review of stoicism and an attempt at modern application. “Unlike Cynicism, Stoicism does not require its adherents to adopt an ascetic lifestyle. To the contrary , the Stoics thought that there was nothing wrong with enjoying the good things life has to offer, as long as we are careful in the manner we enjoy them. In particular, we must be ready to give up the good things without regret if our circumstances should change.” (46).
Utilitarianism - John Stuart Mill (Philosophy) (1863). Reread before my spring business ethics class. “It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool or the pig think otherwise, that is because they know only their own side of the question. The other party to the comparison knows both sides.” (7). “Next to selfishness, the principal cause that makes life unsatisfactory is a lack of mental cultivation.” (10).
Just Mercy - Bryan Stevenson (Non-fiction, Law) (2014). Stories of injustice in our criminal legal system. Reread in advance of our SEALSB Conference in Montgomery, AL. Stevenson founded the Equal Justice Institute (EJI) in Montgomery. The EJI’s museum and memorial are well worth your time; like the book, they are quite moving.
The Dream - an investigation of multi-level marketing companies (MLM).
Road to the Olympic Trials - Peter Bromka ran just two seconds shy of the standard; he will take another shot at the Houston Marathon in January.
Elizabeth Anscombe on Living the Truth (Jennifer Frey - University of South Carolina, Philosophy). Focuses on Anscombe’s theory of intentionality of action.
Ipse Dixit Legal Scholarship Podcasts (hosted by Brian Frye - University of Kentucky, Law)
Wednesday, October 2, 2019
I recently listened to an episode of EconTalk: “Dani Rodrik on Neoliberalism.” What follows is an excerpt from the show, wherein Rodrik defines neoliberalism:
What I mean by neoliberalism is really mostly a frame of mind that places the independent functioning of markets and private incentives and pricing incentives at the center of things. And I think in the process downgrades certain other values, like equity and the social contract, and certain restraints on private enterprise that are often required to achieve economic ends that are more compatible with social goals.
For whatever it’s worth, I’d change this definition as follows:
What I mean by neoliberalism is really mostly a frame of mind that places the independent functioning of markets and private incentives and pricing incentives at the center of things. And I think in the process [posits that] certain other values, like equity and the social contract, and certain restraints on private enterprise that are often required to achieve economic ends that are more compatible with social goals [are optimized via free markets compared to the historical failures of central planning].
Two other comments from the show that stuck out to me:
- what both Foxconn and the Amazon cases show is that in fact there is so much uncertainty about markets and consumer preferences and technologies that, you know, before the ink is dry that there are things that contribute to the unraveling of these contracts
- the cornerstone idea in microeconomics of utility--I mean, it's not measurable
On this last point, I was remined of a footnote in Volume I of the two-volume mini-treatise on the history of economic thought I co-authored with Robert Ashford (A History of Economic Thought: A Concise Treatise for Business, Law, and Public Policy):
To the extent utilitarianism poses a challenge to laissez-faire policies (i.e., rather than letting the market decide who gets what, we will study costs and benefits and allocate resources on that basis), economists favoring laissez-faire policies could be seen as hijacking utilitarian concepts by simply defining the results of free exchange as utility. In other words, while utilitarianism may be viewed as starting out as a challenge to laissez-faire ideology, once utility is equated with efficiency, and efficiency is generally associated with free-market transactions, then utilitarianism arguably becomes an asset to those espousing a laissez-faire ideology as opposed to a challenge.
Monday, August 5, 2019
I did not manage to do much outside reading over the summer, given a move to the Nashville suburb of Franklin.
Always open to recommendations. I am also interested in podcast recommendations for my new commute.
On Paradise Drive - David Brooks (Social Commentary) (2004). Rough satire (or is it satire?) to read right before we moved to the suburbs.
Running for My Life - Lopez Lomong and Mark Tabb (Biography) (2012). Recommendation from Colleen Baker. Inspiring story of how one of the lost boys of Sudan became a US Olympic athlete. Just a few weeks ago, Lopez Lomong won both the 5000m and 10,000m at the U.S. Championships.
Deep Work - Cal Newport (Self-Help) (2016). Georgetown computer science professor argues that there are increasing rewards for “deep work” (challenging work, requiring full concentration), but that society is pushing us toward “shallow work” with social media, constant e-mailing, open office, and the like. He suggests setting routines, fully resting (embracing boredom), and scheduling internet use (and avoiding the internet outside of those times).
Advanced Marathoning - Pete Pfitzinger and Scott Douglas (Fitness) (2d. 2009). Recommended by two of the best runners I know. Will use this book (along with the advice of my friend and supper runner Joey Elsakr) to train for the Rocket City Marathon in December 2019. The third edition is now available.
Gilead - Marilynne Robinson (Novel) (2004). Narrator shares his experiences and the experiences of his father and grandfather as ministers in Gilead, Iowa. Winner of the Pulitzer Prize for Fiction in 2005. On the short-list of President Obama’s favorite books.
Monday, May 6, 2019
This was a busy semester, but I still managed to read a few books. Always open to recommendations.
Enough. John Bogle (Business) (2009). Vanguard’s founder reflects on business, money, satisfaction, and life. Easy read. Read this during a 2+ hour faculty meeting.
Half an Inch of Water - Percival Everett (Fictional Short Stories) (2015). A series of stories situated in the western U.S.--about loss, love, youth, aging, corruption, animals, and the wilderness. My favorite story is “A High Lake” because it reminds me of my grandmothers’ independence, intelligence, and care before they died.
The Enduring Community - Brian Habig and Les Newsom (Religion) (2001). Co-authored my a minister to two of my siblings while they were at the University of Mississippi (Newsom). Attempts to clarify the roles of the Church in community.
Heavy - Kiese Laymon (Memoir) (2018). Raw memoir in which the author struggles with his weight, abuse, racism, addiction, and depression. Laymon was raised in Jackson, MS and is an English professor at University of Mississippi, after a number of years on the faculty at Vassar College.
Educated - Tara Westover (Memoir) (2018). Pitched as the remarkable story of the author’s journey from a survivalist family that did not believe in formal schooling to a Cambridge PHD. But I think the book is more interesting as a look at how memories are formed, abuse, family, and mental illness.
Wednesday, April 3, 2019
I recently received a copy of Citizen Capitalism: How a Universal Fund Can Provide Influence and Income to All from Sergio Gramitto. While I have not yet read the book, I didn’t want to let another blog post go by without passing along at least some of its highlights, as well as why I am particularly interested in its proposals.
In addition to Sergio, the authors of Citizen Capitalism include Tamara Belinfanti and the late Lynn Stout. Suffice it to say that Lynn was one of our true superstars, and I would hate to miss any presentation by either Sergio or Tamara. I’ve had the pleasure of engaging professionally with all of them in some capacity, and I hold them each in the highest regard.
Sergio and Lynn first discussed the idea of a Universal Fund in their article Corporate Governance as Privately-Ordered Public Policy: A Proposal, and then expanded on that idea with Tamara in Citizen Capitalism. The book has been reviewed in numerous places (see, for example, here and here). What follows is a descriptive excerpt from Cornell’s Clarke Program on Corporations & Society.
We offer a utopian-but feasible-proposal to better align the operations of business corporations with the interests of a broader range of humanity. The heart of the proposal is the creation of a Universal Fund into which individuals, corporations, and state entities could donate shares of public and private corporations. The Universal Fund would then distribute a proportionate interest in the Fund-a Universal Share-to all members of a class of eligible individuals (for example, all citizens over the age of 18), who would then become Universal Shareholders. Like a typical mutual fund, the Universal Fund would "pass through" to its Shareholders all income on its equity portfolio, including dividends and payments for involuntary share repurchases. Unlike a typical mutual fund, however, the Universal Fund would follow an "acquire and hold" strategy and could not sell or otherwise voluntarily dispose of its portfolio interests. Similarly, Universal Shareholders could not sell, bequeath, or hypothecate their Shares. Upon the death of a Universal Shareholder, that individual's Share would revert to the Fund.
Robert Ashford has been advocating for a similar proposal for years (see his SSRN page here) under the heading of binary economics (also known as “inclusive capitalism”). I’ve had the pleasure of working with Robert on a few related projects, and pass along the following excerpt from my article The Inclusive Capitalism Shareholder Proposal for whatever it may be worth.
When it comes to the long-term well being of our society, it is difficult to overstate the importance of addressing poverty and economic inequality. In Capital in the Twenty-First Century, Thomas Piketty famously argued that growing economic inequality is inherent in capitalist systems because the return to capital inevitably exceeds the national growth rate. Proponents of “Inclusive Capitalism” can be understood to respond to this issue by advocating for broadening the distribution of the acquisition of capital with the earnings of capital. Obviously, distributing capital more widely should, all else being equal, help alleviate at least some poverty and close at least some of the economic inequality gap by providing poor-to-middle-class consumers capital (paid for by the earnings of that capital) that they did not have before. But why should corporations distribute the ownership of their capital more broadly? The answer is because broadening the distribution of capital should promote greater growth because low-to-middle-income consumers are understood by many to spend more than wealthy consumers. This increased demand may then be expected to produce gains sufficient to offset the costs incurred in the process of instituting the Inclusive Capitalism proposal presented herein.
Based on my initial overview, I believe one meaningful difference between the Citizen Capitalism proposal and Ashford’s binary economics / inclusive capitalism proposal is the source of funding. The Citizen Capitalism proposal relies on donations while the binary economics proposal relies on the self-interest of corporations in increasing consumer demand.
Regardless, there are good arguments to be made for capitalism being the least worst system for advancing the well-being of individuals, and proposals like the foregoing provide important pro-market alternatives for addressing inequality.
Tuesday, December 4, 2018
I posted about my summer reading here, and I have decided to write this sort of post each semester, at least for a few semesters.
This semester was incredibly busy, and I didn't read as much as I would have liked, but I am glad I finished at least a few books. Nearly all of these books were pretty light
Always looking for interesting books to read - and I am open to reading in most areas - so feel free to leave a comment with suggestions or e-mail me.
The Honest Truth About Dishonesty - Dan Ariely (Non-Fiction - Ethics/Behavioral Economics, 2013). Duke University behavioral economist examines the environs/structures that encourage or discourage honesty.
Hannah Coulter - Wendell Berry (Fiction-Novel, 2005). Elderly lady, twice widowed, reflects on her life and the lives of her family members as the world changes after World War II, and as the modern world diverts from rural, farming communities like Port William, KY. Berry’s first novel with a female narrator.
The Most Important Year - Suzanne Bouffard (Non-Fiction - Education, 2017). Discusses the importance of the year before kindergarten. (My oldest child starts kindergarten this coming fall). Biggest takeaway was to engage in Q&A with my children while reading to them; engage them.
Bad Blood - John Carreyrou (Non-Fiction - Business and Ethics, 2018). Discusses the Theranos scandal. The executives governed with fear and NDAs. Raised hundreds of millions of dollars (eventually at a $9B valuation), signed big healthcare deals, and recruited board members by appeal to ego, fear of missing out, vague grandiose claims, and name-dropping. No board members or major investors truly understood the science and were unable to uncover the fraud.
Everybody Always - Bob Goff (Non-Fiction - Religion, 2018). Lawyer, Consul to Uganda, Pepperdine Adjunct Law Professor discusses unconditional and unbounded Christian love.
Small Teaching - James Lang (Non-Fiction - Pedagogy, 2016). Read with a group of fellow Belmont professors. Encouraged me to start classes with a few questions about the previous class and/or low-stakes assessments (in the same form as the exams). Break tasks into component pieces and practice; just like football players practice steps and do drills focused on a piece of the whole. Suggests coming to class 10-15 minutes early and trying to engage each student in conversation over the course of the semester.
Your Mind Matters - John Stott (Non-Fiction - Religion, 1972). Lecture turned into a short book, encouraging Christians to engage their minds. Speaks out against anti-intellectualism.
Thursday, November 29, 2018
I’d like to thank the Business Law Prof Blog for the opportunity to be a guest blogger! In this first post, I build on a subject of previous posts (here, here, and here): Theranos, a now defunct Silicon Valley health-care start-up.
I rely heavily on the Financial Times to follow developments in one of my main research areas: financial market clearing and settlement (I’ll plan to report next week on the upcoming December 4th meeting of the Market Risk Advisory Committee, sponsored by CFTC Commissioner Rostin Behnam). The FT recently announced that Wall Street Journal investigative reporter John Carreyrou’s book, Bad Blood: Secrets and Lies in a Silicon Valley Startup, had been named the FT/McKinsey Business Book of the Year 2018. Having immensely enjoyed reading past winners, I wasted no time in ensuring that Amazon Prime speedily delivered it to my doorstep.
Bad Blood is a riveting tale of Theranos’ spectacular rise and fall, and well-worth the reader’s time. A fun fact is that a pathologist blogger, Adam Clapper (founder of the former Pathology Blawg), tipped Carreyrou onto the Theranos story (Chapter 19). Additionally, in the months after Bad Blood’s publication, its founder and CEO, Elizabeth A. Holmes, and former COO, Ramesh “Sunny” Balwani, were charged by the Justice Department with wire fraud.
I know little about the health-care industry. Yet in reading Bad Blood, I was struck by links to and concerns shared with the financial industry (an area about which I know more). Below, I make a few observations and invite reader comments on their importance in these and other industries.
Post-financial crisis, rock-bottom interest rates acted as a “key ingredient” to a new Silicon Valley boom (p.82). Similarly, these low rates have also been a key ingredient for the many years of increasing stock market prices post-financial crisis. Indeed, recent equity market declines made at least a temporary rebound yesterday after comments by Federal Reserve Chairman Jerome Powell at the Economic Club of New York.
The increasing expansion of private markets enables companies such as Theranos to “avoid the close scrutiny” (p.178) to which public companies are subject (nevertheless, Theranos and Holmes settled fraud charges with the SEC). Given current regulatory structures, it also risks severely limiting retail investment opportunities. And it adversely impacts financial journalists’ access to information!
When I teach Banking and Financial Institutions Law, the term “regulation-induced innovation” tends to amuse students. The Theranos tale demonstrates, however, that such practices aren’t a laughing matter. For example, its business strategies appeared to include: maneuvering in regulatory “gray zones” between the FDA and Centers for Medicare and Medicaid Services (p.88), exploiting “gap[s] spawned by outdated statutes” (p.125), and “operat[in]g in a regulatory no-man’s-land” (p.260). Such practices can be troublesome enough in financial markets. However, in Theranos’ case, the stakes (patient health) were much higher.
Finally, who doesn’t love a good story? Carreyrou, a two-time Pulitzer Prize-winning journalist, is an expert storyteller. His portrayal of Holmes suggests that she too profoundly understood the power of stories, and that she had a bewitching talent for telling them. Clearly, untruthful, non-fictional narratives are generally unethical and, depending upon the context, might also be illegal. However, taking a cue from Holmes on the importance of stories and honing one's ability to tell them could assist financial market policymakers. Indeed, several years ago, the FT’s Gillian Tett wrote an opinion piece entitled, “Central bank chiefs need to master the art of storytelling.” Enhanced storytelling capabilities could also assist academics researching financial market regulation. For both, the ability to compellingly communicate with the public about issues in financial markets and their broad-based importance is critical. Even so, constructing a fascinating narrative about clearing and settlement along the lines of Bad Blood would be no small feat!
Tuesday, August 21, 2018
There is a “post 7 book covers of books you love, without comment” campaign sweeping Facebook, and I have been tagged.
I am breaking all the rules.
Below are 8 books, 9 if you count both of the books I read by Mohsin Hamid. I don’t love all the books below, but I did read them all this summer. I am not posting a picture of the covers (but I do provide links to the books), and I couldn’t help including a brief comment on each.
Inside the Magic Kingdom - Tom Connellan. (Non-Fiction, Pop-Business). My mother-in-law was reading this for her job at the beach, and I ran out of reading material. Cheesy, pop-business book, but interesting for the way Disney’s C-level executives assist in picking up the trash at the parks, and the parties at the parks they held for the families of the construction crew members. Plus, the books was more interesting to me because we plan to go to Disney World as a family sometime in the next 12 months or so.
Run Faster - Brad Hudson. (Non-Fiction Wellness/Training). Recommended by my friend Dr. Jeff Edmonds who we profiled on this blog. Less user friendly than Dr. Daniels' Running Formula, but still useful for those looking to self-coach in running.
The Ability to Endure - Michael Chitwood. (Non-Fiction, Autobiography). Received this book for free at the 2018 Q Conference in Nashville. I am a sucker for autobiographies and memoirs, especially of relatively normal people like Michael.
The Ethics of Influence - Cass Sunstein (Non-Fiction, Law & Behavioral Economics). Started this a number of months ago, but finished it this summer. Builds on and refines the thesis in Nudge. Explores the ethical boundaries of nudges (mostly by governments). Claims that nudges should improve or maintain welfare, autonomy, and dignity.
The Collected Short Stories of Eudora Welty. – Eudora Welty (Fiction, Short Stories). Only read a few of the selected stories this summer. Impressive character development in a condensed space.
The Reluctant Fundamentalist - Mohsin Hamid. (Fiction, Novel). The novel follows an in-depth conversation between Changez (a Pakistani Princeton Alum) and an American (probably military). Symbolism is a bit overdone, but otherwise it is a tightly-woven and engaging read. I also read Hamid’s more recent book (2017 v. 2007), a fictional/slightly sci-fi take on the lives of two refugees, Exit West.
This Day: Collected & New Sabbath Poems - Wendell Berry. (Poetry). I am not a big poetry buff, but Berry’s poems mirror the beautiful and serene outdoor locations where he writes. I liked to read these poems in the quiet of the early morning before my three children woke up.
Friday, August 4, 2017
Shortly after hearing Sheryl Sandberg and Adam Grant speak on a Harvard Business Review podcast, I purchased Option B.
After listening to the podcast, I expected the book to contain more references to the research on resilience than it ultimately did. While I knew the book was popular press, I expected Penn Professor Adam Grant to add a more scholarly flavor. As it was, the book was a relatively short memoir focused on the death of Sheryl Sandberg's husband Dave. Had I started the book expecting a window into Sandberg's grieving process rather than an accessible integration of the resilience research, I think I would have appreciated the book more.
On the positive side, the book is an extremely easy read and is written with a punchy, engaging style. Sandberg is quite honest, and is blunt in sharing with the readers what is and isn't helpful in interacting with those who have experienced great personal loss. In Sanberg's opinion, you should address the elephant in the room, and should not worry about reminding them of their loss, as they are already thinking about it all the time. Vague offers like "let me know if I can do anything to help" were deemed less helpful than more specific offers like "I am in the hospital waiting room for the next hour if you would like a hug" or "what would you not like on a burger." Also, mere presence was deemed meaningful. As someone who is always at a loss for what to say or do in these situations, her suggestions were helpful.
Of the relatively limited references to research, I found the discussion of Martin Seligman's work helpful, including the finding that "three P's can stunt recovery: (1) personalization - the belief that we are at fault; (2) pervasiveness - the belief that an event will affect all areas of our life; and (3) permanence - the belief that the aftershocks of the event will last forever." (16).
Also, I appreciated the references to Joe Kasper's work on post-traumatic growth in its "five different forms: finding personal strength, gaining appreciation, forming deeper relationships, discovering more meaning in life, and seeing new possibilities." (79). Thankfully, the authors note that you do not have to actually experience trauma to benefit from this sort of growth, you can experience pre-traumatic growth (especially through observing the trauma of others or near-misses in your own life).
Based on the podcast, I was hoping on more information on raising resilient children, and there is a chapter on this topic. That said, the chapter did not offer much new. Sandberg and Grant refer to Carol Dweck's work on growth mindset, which I reviewed a few years ago on this blog. The main suggestion was to help "children develop four core beliefs: (1) they have some control over their lives; (2) they can learn from failure; (3) they matter as human beings; (4) and they have real strengths to rely on and share." (111).
While this book wasn't quite what I expected, given the very limited amount of time it took to read (2-3 hours), I think it was worthwhile as a honest look at one person's grief and suggested ways to serve grieving people.
Friday, July 28, 2017
These days it is easy to get discouraged on how divided our nation seems to be on a number of issues. John Inazu, Distinguished Professor of Law, Religion, and Political Science at Washington University, maps a way forward in his book Confident Pluralism (2016).
The book is divided into two parts: (1) Constitutional Commitments, and (2) Civic Practices.
The first part “contend[s] that recent constitutional doctrine has departed from our longstanding embrace of pluralism and the political arrangements that make pluralism possible.” (8) Further, the first part offers guideposts for future decisions and political solutions. The first part argues for both inclusion and dissent, for the free formation of voluntary groups, for meaningful access to public forums, and for access to publicly available funding for diverse organizations. Provocatively, Inazu claims that Bob Jones case – which stripped tax-exempt status from Bob Jones University due to its prohibition of interracial dating/marriage – is “normatively attractive to almost everyone, [but] is conceptually wrong.” (75) Inazu claims that “[t]he IRS should not limit tax-exempt status based on viewpoint of ideology.” (79) He extends the argument to “generally available resources.” While the Trinity Lutheran case was decided by the Supreme Court after publication of Confident Pluralism the decision seems in line with Inazu’s argument about the provision of ”generally available resources” to all types of organizations. Inazu does concede “Neither [the inclusion of dissent] premise is absolute. Inclusion will stop short of giving toddlers the right to vote or legally insane people the right to bear arms. Dissent will not extend to child molester or cannibals.” (16) I fully never figured out how he draws these lines, as he discusses other controversial topics that the majority of people strongly object to, but perhaps he only seeks to exclude when virtually everyone in society agrees.
The second part “canvass[es] the civic practices of confident pluralism that for the most part lie beyond the reach of the law.” (10) The second part centers around civic aspirations of tolerance, humility, and patience. As defined by Inazu, “Tolerance is the recognition that people are for the most part free to pursue their own beliefs and practices, even those beliefs and practices we find morally objectionable. Humility takes the further step of recognizing that others will sometimes find our beliefs and practices morally objectionable, and that we can’t always “prove” that we are right and they are wrong. Patience points toward restraint, persistence, and endurance in our interactions across difference.” (11). In this part, he describes the “hurtful insult” and the “conversation stopper” as speech we should aspire to avoid. (97-100). The hurtful insult includes terms like “fat, ugly, stupid, friendless.” (97). The aim of the conversation stopper is not primarily used to wound (as the hurtful insult is) but rather to shut down the conversation. Terms like “close-minded, extremist, heretical, and militant” fall in the conversation stopper category. While Inazu admits that those terms can be hurtful, he claims that they are mainly used to shut down reasoned debate.
In conclusion, this is a timely book and is well worth reading. At under 170 pages (including the notes), it is an extremely quick read, but the book is also worth pondering for extended time. Inazu encourages relationships across differences, such as Dan Cathy (Chick-fil-A) and Shane Windmeyer (Campus Pride) and former President Barack Obama and former Republican senator Tom Coburn. (124) I’d add the friendships of the late, conservative justice Antonin Scalia with his liberal colleagues on the Supreme Court Ruth Bader Ginsburg and Elena Kagan. With Inazu, I suggest face-to face conversations with friends with different, strongly-held beliefs. While social media and electronic communication can sometimes suffice between in-person meetings, tough topics are best handled around a table and after trust has been earned. Personally, I count my friendships with those who see the world very differently than I do as some of my most valuable relationships, and those friendships make it difficult to construct the straw men we see so frequently in TV news “debates.”
For more, Paul Horwitz (Alabama) shares some thorough and thoughtful notes on the book here.
Monday, July 24, 2017
Hot Off the Press: Russell and Heminway on Representing the Organizational Client on Environmental Matters
My good friend and long-time mentor Irma Russell and I wrote a chapter for the recently released ABA book, Ethics and the Environment: A Lawyer's Guide. Irma also is a co-editor of the book (with Vicki Wright). In our joint contribution, the chapter entitled "Representing the Organizational Client on Environmental Matters," Irma and I cover issues involving professional responsibility, corporate governance, and environmental compliance. Guess which part was my primary responsibility . . . ?!) Covering some 37 pages of the 242-page book, the rules we cover and the observations we make are fairly wide-ranging. We hope, as we noted in our conclusion to the chapter, that we supply legal counsel representing corporations and other organizations with "foundational tools to assist them in providing advisory and advocacy-oriented services to organizational clients in the environmental law context." Irma and I received our copies last week. The book soon will be available through the ABA and other outlets.
Friday, July 21, 2017
My mother-in-law was reading the book for her job at a private elementary school, and I brought a limited number of books (due to the weight of my hardcopy books), so I read this book too. Our teaching center at Belmont University has mentioned Palmer’s work a number of times, so I was interested in the book.
Simply stated, Palmer’s thesis is that “good teaching comes from the identity and integrity of the teacher.” He defines identity as “an evolving nexus where all the forces that constitute my life converge in the mystery of self," and he defines integrity as “whatever wholeness I am able to find within that nexus as its vectors form and re-form the pattern of my life.” (13) Teaching, he argues, comes from the heart and soul of the teacher, and not primarily from chosen techniques.
Palmer makes a solid point about paradox and pedagogical design. “The space should be bounded and open….hospitable and charged….invite the voice of the individual and the voice of the group…welcome both silence and speech.” (76-77). The tendency in teaching, I think, is to swing from one side to the other, when we really need to be addressing all of these things simultaneously. Making space for silence in the classroom is something that is especially difficult for me.
He observed, “students who have been well served by good teachers may walk away angry—angry that their prejudices have been challenged and their sense of self shaken. That sort of dissatisfaction may be a sign that real education has happened. It can take many years for a student to feel grateful to a teacher who introduces a dissatisfying truth.” (96-97). This made me wonder if we should add teaching evaluations from alums 5+ years after the class.
I also liked his description of subject-centered classes (instead of teacher-centered or student centered). In the subject-centered class, the students are active and important participants, but they are not the focus of the time.
Palmer notes that he uses mastery grading, allowing students to revise their papers as many times as they like with only the final grade counting. I tried this once, in an MBA class, because many of my colleagues utilize it. I found mastery grading lacking. It encourages weak initial effort, as the students wait for comments, knowing that they can revise their poor product with more specific guidance.
Finally, I really liked the Quaker concept of a “clearness committee” that Palmer describes. The committee consists of four or five colleagues and a focus person. Before the meeting, the focus person writes a description of the problem (as professors, likely stemming from the classroom). Then, for two to three hours the colleagues of the focus person ask him/her open-ended questions about the problem, being careful not to offer advice, bring attention to themselves, or ask questions that are really advice in disguise (e.g., Have you considered seeing a therapist?) After the questions, the focus person has the option of continuing with mirroring (“reflecting to the focus person things he or she said or did but might not be aware of: 'When asked about A, you said B,' or 'When you spoke about X your voice dropped and you seemed tired.'”) (160). Confidentiality is pledged, not only to those outside of the committee, but also within the committee--meaning that the topic would not be raised again, even among the group members. The clearness committee would take a fair bit of time but seems like a great way to solves problems, as most solutions that stick seem to stem from personal realizations rather than merely outside advice.
There wasn’t all that much that surprised me in this book, but it was an easy read and had a few good reminders.
Friday, July 14, 2017
I highly recommend Jayber Crow by Wendell Berry.
Set in rural Kentucky, Jayber Crow is a story about small town life, community, love/hate, sustainability, and industrialization. The main character, Jonah "Jayber" Crow loses both his parents and his Aunt and Uncle by the age of ten. He spends the next few years in an orphanage before obtaining a scholarship to a local college as a "pre-ministerial" student. Doubting his calling to the ministry, Jayber drops out and returns to his hometown. He serves as the town's only barber, and he also picks up jobs as the local grave digger and church janitor. Jayber narrates, in vivid detail, the exodus from the small town by the younger generation and the invasion of large-scale, profit-focused, corporate farming.
The author, Wendell Berry, warns that "persons attempting to explain, interpret, explicate, analyze, deconstruct, or otherwise 'understand' [this book] will be exiled to a desert island in the company only of other explainers" so I will simply end with a few of my favorite quotes below. I think one of the reasons I so liked this book is because it reminded me of my family's property and of my maternal grandfather, who lived at a pace unknown to most of us and who worked the land with his hands and simple tools.
"You have been given questions to which you cannot be given answers. You will have to live them out--perhaps a little at a time." (54)
"The university thought of itself as a place of freedom for thought and study and experimentation, and maybe it was, in a way. But it was an island too, a floating or a flying island. It was preparing people from the world of the past for the world of the future, and what was missing was the world of the present, where every body was living its small, short, surprising, miserable, wonderful, blessed, damaged, only life." (71)
"Instead of sitting out and talking from porch to porch on the summer evenings, the people sat inside rooms filled with the flickering blue light of the greater world." (258)
"We were, as we said again, making war in order to make peace We were destroying little towns in order to save them. We were killing children in order that children might sleep peacefully in their beds without fear." (294)
"On those weekends, the river is disquieted from morning to night by people resting from their work. This resting involves traveling at great speed, first on the roads and then on the river. The people are in an emergency to relax." (331)
"The Economy does not take people's freedom by force, which would be against its principles, for it is very humane. It buys their freedom, pays for it, and then persuades its money back again with shoddy goods and the promise of freedom." (332)
Update: Here is a trailer for a new film on Wendell Berry, Look & See. Powerful, especially if you grew up in a rural place that is now being "developed," or if have seen beautiful landscapes that you love ruined. "Those who had wanted to go home could never get there now...."
Friday, June 30, 2017
While I am already looking forward to returning to the classroom in the fall, one of the reasons that I love summers is that I get to catch up on reading. It has been an embarrassingly long time since I have finished a fiction book, but I am committed to making fiction an increasing percentage of my reading.
Percy's Moviegoer won the 1962 National Book Award. I have my brother Will to thank for the recommendation and for the book itself. The novel focuses on the life of a New Orleans area stockbroker "Binx" Bolling, and his search for meaning. I won't ruin the story for those who have not read it, but I was moved by the Binx's struggle against what he called the malaise and everydayness. Binx appears to be a pretty sad character, spending a good bit of time hiding from life in movie theaters and engaging in flings with his secretaries, but he can also inspire the reader to ask serious questions, engage in meaningful relationships, and live more intentionally.
Tuesday, June 20, 2017
A friend who is a member of a university faculty (non-law) some years ago recommended that I read Straight Man, by Richard Russo. I am forever thankful. The book is a novel set in a small town in Pennsylvania and follows the trials and tribulations of an English-department faculty member at a college besieged by budget challenges, a dysfunctional department, and his own lack of motivation.
The book is funny -- sometimes laugh-out-loud funny -- and for anyone on a faculty, I am willing to wager that, despite occasional absurdity, this faculty will feel like it could be yours. The main character is sympathetic, to a point, but he is also part of the problem. It is a fast read, and it's one I come back to every couple years. Perhaps it is just a guilty pleasure, but the universality of the characters and the bit of hope that emerges are things I find to be comforting in some way. It may be that the book serves as a reminder that we're not alone in our craziness. Everyone who has taught for a while knows a Hank, a Finny, a Gracie DuBois, Jacob Rose, a Billy Quigley.
The book also a good reminder of traps we, as faculty (and administrators), can fall into, and hopefully, help us avoid them. If you need a break from research and heavy reading, I highly recommend you put this in the rotation.
Here's the Amazon.com Review:
First Jane Smiley came out of the comedy closet with Moo, a campus satire par excellence, and now Richard Russo has gotten in on the groves-of-academe game. Straight Man is hilarious sport, with a serious side. William Henry Devereaux Jr., is almost 50 and stuck forever as chair of English at West Central Pennsylvania University. It is April and fear of layoffs--even among the tenured--has reached mock-epic proportions; Hank has yet to receive his department budget and finds himself increasingly offering comments such as "Always understate necrophilia" to his writing students. Then there are his possible prostate problems and the prospect of his father's arrival. Devereaux Sr., "then and now, an academic opportunist," has always been a high-profile professor and a low-profile parent.
Though Hank tries to apply William of Occam's rational approach (choose simplicity) to each increasingly absurd situation, and even has a dog named after the philosopher, he does seem to cause most of his own enormous difficulties. Not least when he grabs a goose and threatens to off a duck (sic) a day until he gets his budget. The fact that he is also wearing a fake nose and glasses and doing so in front of a TV camera complicates matters even further. Hank tries to explain to one class that comedy and tragedy don't go together, but finds the argument "runs contrary to their experience. Indeed it may run contrary to my own." It runs decidedly against Richard Russo's approach in Straight Man, and the result is a hilarious and touching novel.
Wednesday, April 26, 2017
COLLECTIVE BOOK ON LEGAL INNOVATION
Call for submissions
The program « Law & Management » developed by the European Center of Law and Economics (known as CEDE in French) of ESSEC Business School, is an innovative and pioneering research program which aims to study the use of law as a competitive factor.
In this regard, the members of the research program « Law & Management » have decided to publish a collective book focusing on legal innovation. This book, co-edited by A. Masson (ESSEC) and D. Orozco (Florida State University), will analyze, by crossing the points of view of lawyers and creative specialists, the concept and life cycle of legal innovations, techniques and services, whether they are related to legislation, legal engineering, legal services, legal strategies…, as well as the role of law as a source of creativity and interdisciplinary teamwork. All the techniques that could facilitate legal innovations from the perspective of design thinking to predictive design, through the customer experience will be analyzed.
The program Board is now opening the call for proposals. Papers proposals (consisting in a brief summary in English) of a maximum length of 1000 words, should be sent to A. Masson (email@example.com) by May 8th, 2017. A least one practical example of legal innovations on which the papers will rely on must be mentioned in the proposals.
The proposals will be reviewed and selected by a scientific committee. Authors will receive a definitive answer by June 6th, 2017. The final manuscripts will be expected by October 9th, 2017.
A conference, following the publication of the book, will be organized in Paris in 2018.
With the support of the Paris Île-de-France Regional Chamber of Commerce and Industry and the French Corporate Counsel Association (AFJE).
Thursday, December 15, 2016
This post is not about politics, although it does concern President-elect Trump's cabinet pick, ExxonMobil head, Rex Tillerson. I first learned about Tillerson during some research on business and human rights in the extractive industries in 2012. I read the excellent book, "Private Empire" by Pultizer-prize winner Steve Coll to get insight into what I believe is the most powerful company in the world.
Although Coll spent most of his time talking about Tillerson's predecessor, Lee Raymond, the book did a great job of describing the company's world view on climate change, litigation tactics, and diplomatic relations. Coll writes, “Exxon’s far flung interests were at times distinct from Washington’s.” The CEO “did not manage the corporation as a subordinate instrument of American foreign policy; his was a private empire.” Raymond even boasted, “I am not a U.S. company and I don’t make decisions based on what’s good for the U.S.” Indeed, the book describes how ExxonMobil navigated through Indonesian guerilla warfare, dealt with kleptocrats in Africa, and deftly negotiated with Vladmir Putin and Hugo Chavez.
Before I read the book, I knew that big business was powerful--after all I used to work for a Fortune 500 company. But Coll's work described a company that was in some instances more influential to world leaders than the UN, the US State Department, or the World Bank. I don't know if Trump has read the book, but no doubt he knows about the reach of Tillerson's power. I won't comment about whether this pick is good for the country. I will say that this choice is not outrageous or even surprising given Trump's stated view of what he wants for America. The key will be for Tillerson, if he's confirmed, to use the skills he has honed working for ExxonMobil for the country.
If you have time after grading for a really good read (it's a fast 700 pages), pick up the book. Coll's view on the Tillerson nomination is available here.
Wednesday, September 14, 2016
As you know, assessment is of critical importance these days, and I am confident that in a few years most, if not all, law school casebooks will come with effective, out-of-the-box, turnkey assessments. If you believe your book is already there, or even close, please send your pitch to me at firstname.lastname@example.org. Assuming no unforeseen problems, I plan to post these pitches here, as I am sure they will be of interest to many of our readers.