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July 24, 6:00 AM / Agricultural Law / Bunny: It's what's for dinner
Rabbit for dinner? The thought either delights or disgusts. From the Washington Post:
Chefs love rabbit. Some diners, especially the 2.3 million Americans who keep rabbits as pets, don't. And therein lies a potential for growing controversy. "In Europe, you eat rabbit everywhere. In America, it has been an elite meat," says Bob D. Whitman, a rabbit breeder . . . . "A lot of Americans have Easter Bunny syndrome." . . .
Those for and against rabbits-for-dinner divide neatly into two camps, and they all call themselves rabbit lovers. On one side are chefs and omnivores who see rabbit as a flavorful, healthful and interesting alternative to the omnipresent chicken. "It's a great option because it's lean, but when it's braised it's really tender," says chef Cathal Armstrong . . . .Among meats, rabbit is a healthful choice. Agriculture Department statistics show that rabbit meat is lower in saturated fat than beef and pork and slightly lower in cholesterol than chicken. The breeds used for meat (commonly California, New Zealand or a cross of the two) are almost twice the size of typical pet rabbits. . . .
Equally passionate are those who prefer to keep rabbit off the plate. Based on The Post's reader mail, an admittedly unscientific sampling, it looks as if rabbit has replaced veal as the most offensive meat. A small photo of fried rabbit legs in a review of Bebo Trattoria in Crystal City prompted a deluge of letters last year . . . . "Ethically, there is no difference between rabbits and other meats, but psychologically there is," [a vegan who keeps a pet rabbit] said in an interview. He added that he boycotts any restaurant that serves rabbit.
More recently, Tina Klugman of Overland Park, Kan., wrote in to request that newspaper critics be forbidden to write about rabbit dishes. Reached by e-mail, the 30-year-old Klugman, who says she is not a vegetarian or "any kind of animal rights activist," said she sees rabbits as companion animals, not food: "I do think it's disgusting to eat bunny, especially after learning about their personalities. They are super-intelligent animals."In particular, Klugman is bothered by the fact that the USDA classifies rabbits as poultry. As such, they are not subject to the rules of the federal Humane Methods of Slaughter Act, which is designed to protect farm animals from unnecessary suffering. According to the Humane Society of the United States, most rabbit slaughters do not take place in federally inspected plants. "There is virtually no regulation for rabbits to prevent the worst abuses," says Erin Williams, a spokeswoman for the Humane Society's campaign against factory farming. . . .
"It's not the same as a pet bunny," [says one chef]. "You'll get hate mail. People get freaked out that we're serving Thumper."
July 24, 2:15 AM / MoneyLaw / Wood
Ever since Jim Chen started on the dead wood idea I cannot get it out of my mind. (You may interpret that sentence however you like.) As I understood the term when I started teaching it referred to people who did not write whether or not they had ever written. That definition is pretty narrow. All wood that is not growing is dead wood or at least I think that is the case. Dead wood, in fact, holds up houses and builds new ones. But even assuming the term makes some sense at least dead wood is far from the worst wood form.
Take faculty who talk big, are hugely self promotional and write and say nothing of consequence. I think composite "wood" might be the term here. So you might say in reference to your faculty, "We've got some composite over there." What is that? Something that is not what it appears to be and inside it's a bit crumbly. To me the composites are worse than dead wood. On second thought maybe the composites are actually balsa.
And then there is dry rot. That must be worse than dead wood. I think the term applies not to non writers -- after all they can be good citizens and tireless teachers. No, the dry rot label goes to those who do very little in any category but still affect what an institution does. Maybe they just volunteer to arrange foreign programs in adult Disney World -- Western Europe. They are worse than dead wood because they can undermine the structure and suck other things under with them. Thankfully, I think dry rot is relatively rare.
And then my favorite faculty members to whom Jim alluded recently. Yes the Making Nice, Knowing Better, Doing Nothing crowd. These are the ultimate free riders and followers of the Not-Really-New-York-Times rule. They know better and could shape an institution for the better but they are found, figuratively speaking, quaking under their desks for fear of saying anything controversial. When a Dean or a University President enters a room that portion of the brain that forms the words "I disagree" suddenly nods off. To call these folks spineless is an insult to invertebrates everywhere. Would root rot fit here? Poison Ivy? Snake wood? Maybe it is necessary to move to another phylum. I am thinking Echinodermata which includes the mighty sea cucumber, but I would like to stick to the wood metaphor. So why not pulp, as in wood pulp, and anyone who has lived near or passed by a wood pulp plant will understand why.
July 24, 1:32 AM / BioLaw: Law and the Life Sciences / Affymetrix's Wings Gets SNPed
Sometimes a single nucleotide variant among the thousands that make up a typical gene can indicate significant abnormality in a patient. These needles in genomic haystacks, called "Single Nucleotide Polymorphisms", or "SNPs", can be not only medically useful, but quite lucrative to medical diagnostic companies as well.
In 1999, Biologists John Landers, Barbara Jordan, David E. Housman, and Alain Charest files "method[s] of genotyping...based on the use of single nucleotide polymorphisms (SNPs) to perform high throughput genome scans." The methods apparently invented by Lander et al. allowed high-throughput screening of patients' genomes for SNPs relevant to diseases. They assigned to the Massachusetts Institute of Technology ("MIT") their patent, United Patent Number 6,703,228 (the "'228 patent"), claiming, for example:
Claim 1. A method for detecting the presence or absence of a single nucteotide polymorphism (SNP) allele in a genomic DNA sample, the method comprising:
preparing a reduced complexity genome (RCG) from the genomic DNA sample, wherein the RCG is a randomly primed PCR-derived RCG, and
analyzing the RCG for the presence or absence of a SNP allele.
Affymetrix is a California company that sells microarrays, which are devices capable of testing large numbers of genes for the presence of particularly indicative SNPs. On July 1, 2008, MIT and E8 Pharmaceuticals sued Affymetrix for infringing the '228 patent, engaging the services of Wiley Rein, the D.C. law firm that won a patent infringement settlement of more than half a billion dollars from BlackBerry-maker, Research In Motion. Affymetrix previously lost an interference proceeding in the United States Patent & Trademark Office ("USPTO") contesting Lander et al.'s claim to have been the first inventors of these methods, and stands to suffer huge damages should it be found to infringe the '228 patent.
Affymetrix has previously doubted the validity of many so called "gene" patents, a position that dovetails nicely with the company's strong desire not to be forced to license the many existing SNP patents one by one. Now, the company is being sued not on specific SNP patents, but a patent that claims methods of detecting those SNPs. Interestingly, if Affymetrix extends its previous arguments about unpatentability to include these methods, the company's own history of filing patent applications on very similar technologies - including an application that challenged the rightful ownership of the methods claimed in the '628 patent - is likely to smell a tad fishy.
July 24, 1:10 AM / MoneyLaw / Hockey goons and law school Arschlöcher: A multimedia hat trick for MoneyLaw
In blogging, if not in legal scholarship, one sometimes gets the feeling that one has scored a hat trick. So it is with Plus/minus and the problem of measuring Arschlochkeit. To celebrate the success of my post suggesting the use of hockey's plus/minus statistic as a basis for measuring goon-like behavior in law teaching, and to thank my readers for some very useful comments, I'm posting the following hat trick of YouTube videos:
1. Faithful MoneyLaw reader Ani Onomous has all but dared me to post Warren Zevon's Hit Somebody. I'll gladly sink to the challenge:
2. My dear friend, Guy Charles, evidently feeling free to read and comment on blogs now that he has finished his stint as an interim dean, suggests that I have mistakenly equated "deadwood" status with Arschlochkeit. Guy, as they say on the patinoires where Québecois players came to dominate hockey, tu avais tort. Ever since I introduced the term Arschloch and all of its derivatives to MoneyLaw, I have taken pains to identify Arschlochkeit as a function of selfish, rude, destructive behavior, and not a function of mere scholarly failure.
I do agree with Guy Charles, and very much so, that "the fundamental problem is having someone on your team or faculty who will intentionally harm his/her colleagues to benefit themselves." And I suspect that Guy speaks from personal knowledge when he correctly observes that "[t]he only way to deal with the Arschloch is to leave the institution." In his honor, I'm posting this video of the notorious hockey goon, Tie Domi, fighting his own teammate in Helsinki:
3. This of course is MoneyLaw, and we should try at least occasionally to quantify our instincts. I've discovered, quite happily, that at least one website, HockeyGoon.Com, has defined "goon" status according to this formula:PIM — 10G — 5A
Games
where PIM = penalty minutes, G = goals, and A = assists. The idea is to count penalty minutes per game, discounted by behavior (scoring and helping teammates score) that actually contributes to the team's offensive well-being.
The discovery of this formula warrants the display of a hockey fight so popular that it has won nearly 10 million YouTube views. Surely this is ice hockey's video equivalent of Chris Fairman's SSRN download, Fuck.
So let's get started on building a formula for Arschlochkeit, the academic equivalent of hockey goonery directed at one's own teammates. In the interest of avoiding further damage to Tie Domi's reputation — Mr. Domi, after all, plays hockey in lieu of teaching law — I propose giving our model Arschloch an easily remembered name. How about Lars Rogersson? The real Lars Rogersson is an erstwhile European soccer player who happens to have exactly the sort of name you'd imagine of a hockey goon from Stockholm or Malmö.
Of our model goon, Lars Rogersson, we need to ask three questions:As always, I welcome comments and insights from MoneyLaw's thoughtful readership.
- What traits make Professor Rogersson such an Arschloch?
- Can we quantify the essential, indispensable components of Professor Rogersson's Arschlochkeit?
- Can we weave those quantifiable components into an easily calculated, meaningful metric that separates Arschlöcher like Lars Rogersson from decent, well-intentioned, and valuable team players in the legal academy?
July 23, 11:20 PM / Jurisdynamics / Engineered beauty
Each year Microsoft invites students and staff at the University of Cambridge's engineering department to submit photos that are "beautiful, fascinating, intriguing, amusing, or possibly all of these things." Here are nine images, including the three winners, from the 2008 Microsoft Photography Competition. 
July 23, 9:33 PM / Ratio Juris / Utopian Thought & Imagination, Part 1
Brian Leiter recently excoriated the Chronicle of Higher Education for publishing a short article by Russell Jacoby about the academic disciplinary treatment of Hegel, Marx and Freud. Jacoby is rightly called to task for grossly inaccurate generalizations about the teaching and scholarship among professional philosophers devoted to these august intellectual giants. It just so happens that I was planning on drawing attention to Jacoby as well, this time, however, for something he's penned of more scholarly and reliable persuasion: Picture Imperfect: Utopian Thought for an Anti-Utopian Age (2005).
Jacoby writes in the preface to his latest book: "Today most observers judge utopias or their sympathizers as foolhardy dreamers at best and murderous totalitarians at worst." No doubt this was the consensual judgment crystallized in the "Liberal anti-utopianism" of such widely influential thinkers as Karl Popper, Hannah Arendt, and Isaiah Berlin. Ours is an age drawn to the chaotic darkness of (often technocratic) dystopian nightmares, for we are too chastened or cynical, perhaps as a result of living through the catalogue of collective and genocidal violence conspicuous throughout the twentieth-century, to be enchanted and inspired by the visions and ideals provided by utopian portraits of "the good" or "the best" society. We might, with Raghavan Iyer in an essay on that quintessential nineteenth-century utopian writer, Edward Bellamy, ask ourselves: "Do we despair of our capacity to exercise constructive imagination? Are we doubters of dreams and believers in nightmares?" There are, to be sure, exceptions to the rule, be it Ernest Callenbach's Ecotopia (1975), Ursula K. Le Guin's The Dispossessed (1974), or "feminist utopias" (see here, here, and here). But even these utopian vistas seem several times removed from their forebears: comparatively tepid and thus timid in construction, they are but a simulacram of the classical utopian genre. And utopian political philosophy is rarer still, hence one such product that has at least family resemblance to same, namely Rawls's The Law of Peoples (1999), is aptly christened by its creator as a "realistic utopia," an oxymoronic appellation rationalizing a reflexive recourse to a "realism" that "reconciles us to our political and social condition." All the same, we should be grateful to Rawls's unapologetic commitment to "ideal theory," at least in A Theory of Justice (1971, revised ed., 1999), particularly in light of the lamentable concessions made to his communitarian critics in the John Dewey Lectures, published as Political Liberalism (1993). In the latter work, Rawls is in full philosophical retreat form the Kantian "transcendental" perspective, as "the concept of moral persons being free and equal is [now] located in the public culture of our democratic society" (T.K. Seung, Intuition and Construction: The Foundation of Normative Theory, 1993, p. 41). In brief, the cosmopolitan--or utopian--potential of Rawls's theory of justice is short-circuited by way of avoiding both moral realism and metaphysical questions, thereby taking so-called Kantian constructivism in a conventionalist or culturally relativist direction never envisaged by Kant himself:
"Rawls can evade the metaphysical question [regarding the truth of moral principles] only by taking the antimetaphysical and antirealistic position, that is, the concept of moral persons is not a metaphysical entity but only a product of our culture, or rather the Kantian ideals of liberty and equality have no significance outside our tradition of liberal democracy. In that case, the
original position and the two principles of justice can make normative claims only for those who happen to share the same Kantian ideals. There is no reason to say that the conception of justice as fairness is objectively better than any other conception. [....] So Rawls wants to regard moral facts and moral ideals as social and cultural entities. This amounts to a surrender to normative positivism: moral norms and ideals are no more than social or cultural facts. Normative positivism inevitably leasd to moral and cultural relativism. Kant took the transcendental perspective chiefly to avoid the evils of normative positivism and moral relativism. In that regard, Rawls's Kantian conventionalism goes against the spirit of Kant's own philosophy." (Seung, p. 45)
Onora O'Neill further explains the precise nature of Rawls's difference with Kant on this score:
"[Kant's] vindication of practical reason is decisively different from the conceptions of reasonableness that Rawls has put forward. In the later versions of his theory of justice, Rawls depicts a conception of democratic citizenship within a bounded society as the source and context of reasoning about justice. By contrast, Kant (although he uses such terms as 'citizenship' and 'public' metaphorically) deploys a conception of practical reason which does not presuppose that those who reason about justice and politics must be linked by common citizenship in a 'bounded society' with a democratic constitution. Kant consequently views state boundaries and the system of states, the exclusions and inclusions which define citizenship in those states, as well as the nature of a just constitution, as problems for justice rather than as presuppositions of justice. As he sees it, basic political institutions do not confer but rather need justification: to invoke them in its absence is to appeal to spurious authorities. In rejecting not only justifications that appeal to shared norms, but those that appeal to shared citizenship, Kant embarks on a construction of justice whose broadest vision is of a cosmopolitan order within which states are to be justified. By contrast, Rawls, who views bounded societies as in part constitutive of reason, must treat international justice as an appendix to domestic justice. [....] The formula of universal law proposes as the test of ethical adequacy simply that agents adopt principles which (they take it) could be adopted by, willed by, all others. It is, as Kant puts it, a conception of the reasonable which addresses 'the public in the strict sense, that is, the world,' rather than the restricted public of a particular society or state. Kant's public is not the Rawlsian public, consisting only of fellow citizens in a bounded liberal democratic society: it is unrestricted. Hence, Kant's conception of ethical method takes a cosmopolitan rather than an implicitly statist view of the scope of ethical concern; correspondingly, he takes a more demanding view of the construction of principles in that he conceives of justification as aiming to reach all others without restriction." (Onora O'Neill in Samuel Freeman, ed., The Cambridge Companion to Rawls, 2003, pp. 360-362)
I'm not intending to be dismissive of works like Political Liberalism or The Law of Peoples simply because of their deliberate distance from utopian thought proper [which will be defined in another post in this series], for they help us see the imaginative, conceptual, and moral limits of one of, if not the, strongest strains of the social contract tradition of Liberalism, especially when set alongside cosmopolitan conceptions of justice (see here, here, here, here, here, and here), or next to moral theories of international law (e.g., here), or in contrast to socialist critiques of capitalism (see here, here, here, here, here, and here), or in light of "basic income" proposals in so-called advanced capitalist societies (see here and here). Rawls enables us to better appreciate the strengths and limits of Liberalism such that any utopian alternative will have to take on board some of that tradition's most cherished ideals and values, even if these are now understood or interpreted in fresh or revolutionary ways (cf. Martha Nussbaum's The Frontiers of Justice: Disability, Nationality, Species Membership, 2006).
Back to Jacoby. Picture Imperfect identifies "two currents of utopian thought: the blueprint tradition and the iconoclastic tradition." It is the former that Jacoby would have us jettison, understood as responsible, in part, for the epithet "utopian" being "tossed around as a term of abuse, [as] it suggests that someone is not simply unrealistic but prone to violence:"
"The blueprint utopians have attracted the lion's share of attention--both scholarly and popular. They describe in vivid colors; their proposals can be studied and embraced or rejected. From Thomas More to Edward Bellamy, their utopias took the form of stories in which travelers report of their adventures from an unknown future or land. They offered characters, events, and particulars. Bellamy's Looking Backward, a classic of blueprint utopianism, commences with a straightforward narrative. 'I first saw the light in the city of Boston in the year 1857.'"
In taking to heart the biblical prohibition of graven images of the deity (Exodus 20:4-5), the "iconoclastic" tradition is said to have drawn from the wellsprings of Jewish mysticism and apophatic (or 'negative') theology, as well as German romanticism in particular and music and poetry in general. Perhaps its finest and foremost representative is, for Jacoby, the "philosopher of Marxist humanism and revolutionary utopianism," as well as, it should be said, a one-time apologist for Stalinism, Ernst Bloch (see Jack Zipes, 'Introduction: Toward a Realization of Anticipatory Illumination' in Ernst Bloch [Jack Zipes and Frank Mecklenburg, trans.], The Utopian Function of Art and Literature: Selected Essays, 1983, pp. xi-xliii):
"[T]he iconoclastic utopians offer little concrete to grab onto; they provide neither tales nor pictures of the morrow. Next to the blueprinters they appear almost as ineffable as they actually are. They vanish into the margins of utopianism. Bloch's Spirit of Utopia opens mysteriously. 'I am. We are. That is enough. Now we have to begin.' In regard to the future the iconoclasts were ascetic; but they were not ascetics. This point must be underlined inasmuch as iconoclasm sometimes suggests a severe and puritanical temper. If anything, it is a longing for luxe and sensuousness that define the iconoclastic utopian, not a cold purity.
In an image-obsessed society such as our own, I suggest that the traditional blueprint utopianism may be exhausted and the iconoclastic utopianism indispensable. The iconoclastic utopians resist the modern seduction of images. Pictures and graphics are not new of course, but their ubiquity is. A curtain of images surrounds us from morning till night and from childhood to old age. The word--both written and oral--seems to retreat in the wake of these images."
In our next post on this subject I'll explain what I find troubling about this crude typology. Let it suffice for now to say that the utopian literature Jacoby is referencing does not deserve categorization as "blueprint utopianism," and the "images" it contains are of a different order (they are, so to speak, in one's mind) than the literal images and visual orientation that suffuse the contemporary culture of affluent and hyper-technological societies under the spell of "virtual reality." Utopian literature, by definition, is not intended to be construed as a blueprint, architectural or otherwise. Of course one might argue that some forms of utopian literature are structurally prone to abuse by readers enamored of their visions, moving them to utilize these works on the model of blueprints, irrespective of the needs and wishes of others. But I suspect even the most ardent admirers of the products of utopian imagination have not mistaken these as detailed instructions readymade for wholesale and immediate implementation (were that even possible or feasible). There is a history of utopian communal experimentation, but it has typically been a far more modest undertaking than one would infer from Jacoby's discussion. Still, we might nevertheless concede that some forms or species of utopian literature are more liable to misuse than others, owing to their mode of presentation, specific contents, what have you. Making such an argument would be similar or analogous to what Leszek Kolakowski attempted to accomplish with regard to the writings of Marx in his three volume magnum opus, Main Currents of Marxism (1978, now available in a one volume edition):
"It is not enough to say that Nazi ideology was a 'caricature' of Nietzsche, since the essence of a caricature is that it helps us to recognize the original. The Nazis told their supermen to read the Will to Power, and it is no good saying that this was a mere chance and that they might equally well have chosen the Critique of Practical Reason. It is not a matter of establishing the 'guilt' of Nietzsche, who as an individual was not responsible for the use made of his writings; nevertheless, the fact that they were so used is bound to cause alarm and cannot be dismissed as irrelevant to the understanding of what was in his mind. St. Paul was not personally responsible for the Inquisition and for the Roman Church at the end of the fifteenth century, but the inquirer, whether Christian or not, cannot be content to observe that Christianity was depraved or distorted by the conduct of unworthy popes and bishops; he must rather seek to discover what it was in the Pauline epistles that gave rise, in the fullness of time, to unworthy and criminal actions."
Jacoby has a salutary analysis of the Liberal anti-utopianism of intellectual luminaries like Popper, Arendt and Berlin. Popper, the most vociferous of the three, castigated the "blueprint" tradition of utopianism, indeed, for him, "utopian" has purely pejorative denotation and derogatory connotations. Herbert Marcuse was on the mark when, in a review essay of Popper's The Poverty of Historicism (1957, second ed., 1961), he notes the rather idiosyncratic definition of historicism that animates the book: "Certainly, it would be entirely unjustified to insist on conformity with lexicographical usage. However, I think such a strange deviation from usage should have firmer grounds than a construction built from disparate elements of theories." These words apply with equal force to Popper's more-than-stipulative definition of utopianism, in fact, he proffers a textbook example of a "persuasive" definition, one contrary to a philosophical temperament and useless for dispassionate philosophical analysis. Popper contends that the "blueprints" or "ends" of utopians are necessarily resistant to proof (or, conversely, falsification), and this structural feature, including its abstract qualities and orientation to the distant future, is what motivates the utopian to a single-minded and exclusive resort to violence so as to realize these ends, so as to instantiate the utopian blueprint. If we truly care about the relief of suffering or the amelioration of evil, Popper argues this is best achieved by means and methods of an incrementalist sort or in piecemeal fashion, utterly divorced from the entertainment of any lofty ideals, a Platonic-like focus on the Good, or dreams of a better world. Jacoby is sympathetic to what he terms Popper's "reasonable argument," one suspects if only because it provides no small measure of support to his own thesis about "blueprint" utopianism. I rather think the quality of Popper's 1947 lecture, "Utopia and Violence," is appallingly poor, especially for a philosopher, and thus it is not the least bit plausible. Thankfully, Jacoby's sympathy for Popper's argument does not extend too far nor cloud his assessment of its consequences:
"Popper's reasonable argument has echoed down the intellectual corridors of history, each decade it gains more recruits. In the immediate future it would be supplemented by 'end of ideology' thinkers such as Raymond Aron in Europe and Daniel Bell in the United States. Other refugee thinkers would confirm and collaborate Popper's positions. They would expand the category of utopians to include all those with a plan, and they would charge utopians with violence. Implicitly or explicitly, utopians meant 'Marxists.' That much, perhaps most of twentieth century mass violence had little to do with utopians barely intruded upon the argument."
Liberal anti-utopianism has been enormously influential in cultivating an ideological animus that lumps together "utopianism, totalitarianism, and Nazism." Any systematic appraisal of the evidence would find that are no necessary ties whatsoever between utopian musings and Marxist-Leninist or Maoist ideologies, or between the fertile products of utopian thought and imagination and anti-Semitism, fascism, xenophobic and ethno-nationalism, racism, authoritarianism, or any genocidal ideology. For now, we close with the following from Judith Shklar's provocative study of the "last of the classical utopists," Jean-Jacques Rousseau (blamed by some conservative ideologues for the Jacobin terror of the French Revolution):
"Utopia is an attack on both the doctrine of original sin, which imposes rigid limits on men's social potentialities, and on all actual societies, which always fall so short of men's real capacities. The object of these models, however, was never to set up a perfect community, but simply to bring moral judgement to bear on the social misery to which men have so unnecessarily reduced themselves. For the fault is not in God, fate, or n
July 23, 1:58 AM / MoneyLaw / Plus/minus and the problem of measuring Arschlochkeit
I misspoke when I asserted recently that MoneyLaw strongly prefers baseball and football to hockey. It turns out that hockey maintains a statistic that may hold the key to an ongoing exchange between this forum and Concurring Opinions over the impact of tenure on the intellectual and social behavior of professors.
After Dave Hoffman's initial post asserting the absence of a "deadwood" effect, my response and Dave's rejoinder appear to have swung the focus (at least for now) from the impact of tenure on productivity to the problem of patrolling against Arschlochkeit. In commentary on my post, Ani Onomous rightly observes that personnel decisions based on perceived Arschlochkeit have the potential to negate MoneyLaw principles. It therefore behooves this project — or "movement," as Dave so generously calls us — to find some sort of empirical way of measuring Arschlochkeit.As it happens, organized hockey has been recording a statistic called the plus/minus. Plus/minus is quite simple: it measures the team goal differential when a specific player is on the ice. According to LCS Hockey's thoughtful analysis of plus/minus, this metric awards "a plus . . . to all skaters on the ice when their team scores at even-strength or short-handed" and assesses "[a] minus . . . to all skaters on the ice when their team yields an even-strength or short-handed goal." (Those familiar with hockey will notice that power-play goals in favor of the team with superior manpower do not advance plus/minus.) The upshot is that if your team scores while you are skating, you gain plus/minus points. If the other team scores on you, your plus/minus regresses.
The problem is that plus/minus is a team-dependent statistic and requires further analysis before it sheds light on individual talent (or its absence). As LCS Hockey observes: "One player can only do so much. He could be the best defensive player in the history of the game, but if he's out there with four stiffs and a sieve, chances are he's going to finish on the minus side of the ledger." Hockey's challenged reminded me of the problem that Paul Edelman and I faced over the course of our Most Dangerous Justice series of articles (parts 1, 2, 3), which attempted to discern voting power on the Supreme Court on the basis of each Justice's participation in winning coalitions.
Again, from LCS Hockey:Lousy teams are going to have lousy plus-minus ratings. The expansion 1974-75 Washington Capitals, perhaps the worst team in NHL history, owned nine of the 13 worst plus-minuses that season, including Bill Mikkelson's -82, which still stands as the record for futility. In fact, not one Capital player that season finished as a plus, a natural result of being outscored 446 to 181.But filtering plus/minus figures by overall team performance does shed light on individual players' value. For example, a player who is +15 on a powerful offensive team may well be less valuable than a player who posts a valiant +10 on a poor defensive team. A player who posts a negative plus/minus figure for a Stanley Cup-winning squad is an affirmative liability.Plus/minus is robust enough to capture value from different positions in hockey. Both Bobby Orr (lifetime +597, pictured above in one of his most triumphant moments) and Wayne "The Great One" Gretzky (+518) are among professional hockey's all-time plus/minus greats, even though they played different positions in radically different style. The statistic recognizes lifelong consistency: Ray Bourque (+528) holds the third-highest plus/minus in NHL history without ever winning a single-season title.
All that remains is to find an academic equivalent of team goals, for and against, that would power an analogue of plus/minus in our profession. Alas, like obscenity, Arschlochkeit defies definition, let alone quantification, even though we know it when we see it. People who threaten junior colleagues with negative tenure votes on nonacademic grounds are Arschlöcher. So are those who invite other colleagues to think of the school's top administrators according to invidious racial stereotypes (going so far as to describe one administrator as "lazy and shiftless" and another as "crafty and inscrutable"). [Yes, Mr. Worst-Professor-in-America, I'm talking about you.] But these are hardly things that get tracked on Westlaw and SSRN.
Perhaps it's time to revisit a post I wrote long ago, suggesting things faculty governance might learn from Wikipedia. Wikipedia's list of policies identifies a wide range of antisocial behaviors that can scarcely be tolerated in that collaborative environment. These range from the obvious — personal attacks, legal threats, general incivility — to forms of conduct that are as colorful as they are crass — sock puppetry, edit warring. Courtesy of plus/minus, hockey teaches us to count team-wide outcomes and to notice who's skating when good and bad things happen. And courtesy of Wikipedia, we may yet learn what things to count, in an enterprise where goals elude definition, let alone trigger celebratory lights and sirens. The grand problem of knowing what to do with this information remains. In the meanwhile, though, we'd do well simply to take some preliminary steps: deciding what the quantifiable constituents of Arschlochkeit are and undertaking to measure them.
July 23, 0:05 AM / Ratio Juris / Jesse Jackson, golf pro
New York Magazine has a fairly complete summary of the media reaction to this episode:
July 22, 5:49 PM / MoneyLaw / LSA: Job Market Risk Index(Cross-posted to Law School Almanac)
It's not news that the job market is tough for new lawyers right now. But how bad is it? And how bad will it get? Lets look at some recent figures. According to the U.S. Department of Labor, Bureau of Labor Statistics, there were 761,000 lawyers working in America in 2006. The BLS projects that this number will grow by 11% over the decade from 2006 to 2016. That means that we should have about 83,710 new jobs for attorneys by 2016, or an average of about 8,371 new jobs per year.
In order to guess at the overall employment outlook for new lawyers, we have to guess at the number that might retire as well. Retirements should, in theory at least, create more jobs for new attorneys. The ratio won't be one to one, because large firms hire and fire new associates based on overall market conditions, not based on the number of partners retiring or senior associates promoted to partner each year. But to keep this simple we'll just assume that one retirement equals more or less one opening.
So lets look at some history first (PDF). The first table here shows the number of JDs awarded by ABA approved law schools for the years 1966 through 1995:
Click here to read the rest of this post . . . .It seems reasonable to assume that lawyers who graduated somewhere in this time frame will make up most of those retiring over the 2006 - 2016 decade. Those called to the bar in 1966 had worked for 40 years at the start of the period, and those admitted in 1986 had worked for twenty. The numbers marked as BEST and WORST seem like the largest and smallest number of attorneys that might retire in the near future. The BEST case assumes that retirees come mainly from the largest cohort of those admitted from 1986 to 1995. The WORST case assumes that retirees are mainly those from the 1966 to 1975 period. The MIDDLE case is the average of these two.
The table below adds the number of retirees estimated per year to the average number of new jobs per year to figure BEST, MIDDLE, and WORST cases for total number of jobs available to new attorneys. The TOTAL number is an estimate of the "overhang" of unemployed lawyers in the market -- it's just the yearly gap times three. This is a figure to keep in mind, because new JDs may continue seeking jobs for some time, and this problem compounds quickly in a market where large numbers of new lawyers fail to find jobs each year.
So in the best case -- growth at least as projected and no more new lawyers each year than we had in 2006 -- we might have jobs for 97% of new JDs over the next decade. But the middle or worst cases would leave 25 - 45% of new lawyers out of work each year, with a total of 30 - 60,000 new JDs hanging about in the job market doing something other than working as lawyers.
The number of new JDs per year comes from the next table, which shows the number of degrees awarded in 2006 by all ABA approved law schools. This table also shows the JMRI score for each school. Schools are sorted in descending order of US News Combined Reputation Score. The JMRI is a measure of the proportion of the total openings for new lawyers each year which would be "filled" by a given school's graduates and the graduates of all schools higher up in the listing. Divide the JMRI by ten to get a percentage of the job market -- 250 equals 25%, for example. A JMRI of 1,000 or higher may be cause for some concern.
This is only a crude metric because of course the job market doesn't fill from top to bottom in strict reputation score order. Law firms tend to hire from a certain number of national schools and then from local schools in their region -- not indiscriminately from all schools in the country. Larger firms tend to hire more graduates from national schools, and smaller firms do more of their hiring locally. Also, students at a "riskier" school with very high grades and prior work experience in high demand may have much better prospects than graduates with no such assets at a less "risky" school. So the JMRI score is just a relative estimate of the overall risk of not finding a job for graduates of different schools -- not an absolute predictor of the outlook for lawyers from any one school. The BEST and WORST columns give alternative measures for those cases.
Of course, the cases all assume job growth for new lawyers will at least match BLS projections. Given the current rumors of mass layoffs, mergers, and even some firms folding, that may or may not happen. The new JD figures per year also do not include graduates from recently approved schools at Charlotte, Elon, and Drexel ... or UC Irvine ... or the ten new law schools now under proposal or development. They also include no graduates from the Peking University Law School, which according to Bill Henderson also has plans to seek ABA accreditation.
July 22, 5:13 AM / MoneyLaw / What Concurring Opinions gets wrong about MoneyLaw
Deadwood: It isn't so much about the place as it is about the cast of characters.
Dave Hoffman of Concurring Opinions asserts: "The Moneylaw movement is decidedly anti-tenure." Jeff Harrison has his own view, of course, but I come neither to praise nor to bury tenure. The institution of academic tenure is here to stay, and not even MoneyLaw's most dedicated partisans are so foolhardy as to abort their careers by touching academia's third rail. Besides, if I've learned anything in this business, it is this truth: One's ability to accomplish things and to effect genuine change is inversely related to the extent to which one speaks one's mind.
So, if you're expecting me, as an early adopter of the "MoneyLaw movement" — seriously, has anyone ever written more flattering words about this blog, especially in the course of trashing one of its premises? — to condemn tenure, you'll have to wait a long time, and in vain. I'll also decline the temptation to quarrel with Dave Hoffman on sabermetric and bibliometric matters, except to observe in passing that Role Models in Finance: Lessons from Life Cycle Productivity of Prolific Scholars focuses on the effect of tenure on highly prolific "role model[]" finance scholars, as distinct from "the average finance Ph.D." Jeff Harrison, effectively and consistently, has exposed deep veins of timidity in the academy. And I have already exhorted fellow professors to write boldly, on the understanding that cowardice is a profound vice. As a result, I have neither occasion nor inclination to contest the notion that tenure protects academic freedom and inspires bold teaching and scholarship.
But bold and honest talk about tenure should focus on two drawbacks that even the most ardent defenders of the institution would be hard pressed to deny:And that, in short, is what Concurring Opinions gets wrong about MoneyLaw and this movement's attitude toward tenure.
- Far worse than tenure's marginal propensity, if any, to encourage loafing and to shelter unproductive faculty members from real accountability is its elimination of meaningful sanctions against odiously selfish, institutionally destructive faculty members. All it takes is one rabid rodent to infect the entire horde.
For a sense of the intensity with which MoneyLaw has addressed this issue, consider this: The German word Arschloch and its plural form, Arschlöcher, have appeared no fewer than 12 times in previous MoneyLaw posts. In academia's eternal morality play, where character matters far more than talent, the negative impact of Arschlochkeit (the condition of being an Arschloch) far outweighs any adverse productivity effects attributable to tenure.- Except perhaps at Yale and other schools where as many as one out of twelve graduates is a law professor, tenure insidiously separates professors from a realistic appreciation of their students' professional futures. At Louisville, the admittedly small base of 6,000 alumni might have a half-dozen members who work as law professors or federal judges. Literally 99.9 percent of our alumni are working without the benefit of a form of lifelong job protection that law professors rarely if ever subject to serious scrutiny. If we intend seriously as legal academics to serve our students and our graduates, it behooves us to focus on the professional conditions that they will face.
July 21, 9:49 PM / Jurisdynamics / Access to knowledge: further building blocks
As promised in my first post on access to knowledge (A2K), I am pleased to provide links to Lea Shaver's forthcoming paper, Defining and Measuring A2K: A Blueprint for an Index of Access to Knowledge, and to the PowerPoint presentation that Lea made at this year's American Association of Law Libraries meeting in Portland.
July 21, 7:07 PM / Jurisdynamics / Literary Warrant [32]Marino Pliakas, Michael Wertmüller & Peter Brötzmann
Read the rest of this post . . .
- Robert Bamberger, Specialist in Energy Policy, Resources, Sciences, and Industry Division, Congressional Research Service (CRS), The Strategic Petroleum Reserve: History, Perspectives, and Issues (Order Code RL33341) (Updated May 15, 2008)
"Congress authorized the Strategic Petroleum Reserve (SPR) in the Energy Policy and Conservation Act (EPCA, P.L. 94-163) to help prevent a repetition of the economic dislocation caused by the 1973-1974 Arab oil embargo. The program is managed by the Department of Energy (DOE). The capacity of the SPR is 727 million barrels, and it currently holds slightly more than 700 million barrels of crude oil. In addition, a Northeast Heating Oil Reserve (NHOR) holds 2 million barrels of heating oil in above-ground storage. At issue in recent years has been whether SPR capacity should be expanded and whether the reserve should continue to be filled."—Summary.- Lauretta Burke, World Resources Institute (WRI), Coastal Capital: Putting a Value on The Caribbean's Coral Reefs (June 13, 2008)
"Coral reefs are a vital part of the Caribbean’s marine environment, and are integral to the economies of many of the region’s small island states. WRI’s economic valuation methodology can help decision-makers in the region better understand the enormous economic value the reef provides and use this data to make better-informed coastal policy."
- Carbon Disclosure Project (CDP) & IBM, Making Advances in Carbon Management: Best Practice from the Carbon Information Leaders (A Joint CDP and IBM Study) (2008)
"This study covers one of the biggest long term campaigns facing business leaders today. A campaign recognised as vital in government, in industry, and among the general public. Across the corporate world, managers are drawing up strategies to measure and manage greenhouse gas (GHG) emissions and to use that intelligence to cut their carbon footprint. During March and April 2008, eleven carbon leaders co-operated in sharing information about how they gather their GHG emissions data, what they measure, how far they have gone in the process, and what the experience has been like. Their insights and discoveries will help other companies to follow where they have led."—Objectives of the study.- Council on Foreign Relations, Confronting Climate Change: A Strategy for U.S. Foreign Policy (Independent Task Force Report no. 61) (2008)
"A cap-and-trade system will create economic incentives to reduce emissions, but those incentives will not be sufficient to deliver deep cuts in emissions at an acceptable cost.The Task Force thus recommends that the United States take complementary steps to help market forces functionmore effectively and to seize the many opportunities to align the goal of slowing climate change with other important policy objectives. Those other steps include adopting policies that would improve energy security by reducing oil use in ways that also lower emissions; using traditional regulation in places where markets fail to function efficiently, most notably by targeting opportunities to improve energy efficiency; expanding federal support for research, development, and commercial scale demonstration of low-carbon technologies; and supporting the construction of new infrastructure, such as a more robust electric grid, that will support low-carbon energy. The Task Force also recommends that the United States seek to reduce biofuels tariffs, since many imported biofuels are currently more climate-friendly than many domestically produced ones; however, the United States should do so only in a context where changes to tariffs do not ultimately encourage increased emissions. It also recommends phasing out subsidies for mature biofuels such as conventional corn-based ethanol."—Executive Summary.- Carol L. Cwiak, North Dakota State University, Department of Sociology, Anthropology, and Emergency Management, Emergency Management Education: A Status Report (2008 FEMA Emergency Management Higher Education Program Report)
"The number of emergency management higher education programs continue to grow in both number and strength. The data collection herein was undertaken to provide a status report of where emergency management higher education currently stands. The goal of this report is to assist the FEMA Emergency Management Higher Education Program, policymakers, educators, students, practitioners and other interested parties in understanding where higher education is today and where it is heading in the future. This report will examine current program status, program and student demographics, growth expectations, trends and challenges."—Introduction.- Forbes.com, Special Report: Water (June 19, 2008)
"The news is grim. In China, India, the U.S. and elsewhere, people are depleting aquifers faster than they are being replenished. At current rates of consumption and growth, two-thirds of the world's population will face water scarcity in 20 years. Drought has come to sear not just famously dry places like Arizona and Australia but also cities like Atlanta and Barcelona. Water-borne diseases kill 5 million people each year—more than AIDS and war combined."In short, the prognosis is poor—if, that is, we continue our wayward ways. Fortunately, we don't have to. Unlike such global problems as war and poverty, the water crisis stands a good chance of being solved in our lifetimes, through human ingenuity."
Foreign Policy, The World's Lost Environmental Causes (June 2008)
"A few of what were once considered imminent environmental catastrophes now seem like memories from a bygone era. Whether the problem is solved, the public loses interest, or there was never really much to fear, environmental causes can sometimes simply fade away."- G-8 Summit, Hokkaido Toyako, Japan, Declaration of Leaders Meeting of Major Economies on Energy Security and Climate Change (July 9, 2008)
"Climate change is one of the great global challenges of our time. Conscious of our leadership role in meeting such challenges, we, the leaders of the world's major economies, both developed and developing, commit to combat climate change in accordance with our common but differentiated responsibilities and respective capabilities and confront the interlinked challenges of sustainable development, including energy and food security, and human health. We have come together to contribute to efforts under the U.N. Framework Convention on Climate Change, the global forum for climate negotiations. Our contribution and cooperation are rooted in the objective, provisions, and principles of the Convention."- Intergovernmental Panel on Climate Change (IPCC), Climate Change and Water (IPCC Technical Paper VI) (June 2008)
"Observational records and climate projections provide abundant evidence that freshwater resources are vulnerable and have the potential to be strongly impacted by climate change, with wide-ranging consequences for human societies and ecosystems."—Executive Summary.- International Trade Administration (ITA), United States Department of Commerce, Clean Energy Exporter Guides Released (July 17, 2008)
"The U.S. Department of Commerce today released two clean energy technology export guides to help American businesses navigate Chinese and Indian energy markets. The reports—Clean Energy: An Exporters Guide to China, and Clean Energy: An Exporters Guide to India—provide information to U.S. clean energy companies on current political and market conditions and future opportunities in these two growing economies. The guides also provide detailed information on Chinese and Indian national and local clean energy promoters and regulators."—Press release.- Law Librarian Blog, Primers on the Energy Crisis of 2008 (June 8, 2008)
"The price of crude oil has doubled over the past year, from $65 for a barrel in June 2007 to $130 a barrel now. With no end in sight, CNN and Fortune have recently published special reports on this energy 'crisis.'"- Ann Bessie Mathew, MPH & Kimiko Kelly, MPP, Disaster Preparedness in Urban Immigrant Communities: Lessons Learned from Recent Catastrophic Events and Their Relevance to Latino and Asian Communities in Southern California (A Tomás Rivera Policy Institute and Asian Pacific American Legal Center Report) (June 2008)
"Southern California is at high risk for a major natural disaster. Yet, few assessments have been made to discover how communities with large populations of Limited English Proficient (LEP) immigrants would fare in such an event. It has also not been established whether LEP immigrants who may be poor and have low levels of education have the information necessary to prepare for and survive a disaster, or whether the social networks, formats, and language in which they can successfully receive and respond to emergency information are in place."—Executive Summary.- National Oceanic and Atmospheric Administration (NOAA), The State of Coral Reef Ecosystems of the United States and Pacific Freely Associated States: 2008 (NOAA Technical Memorandum NOS NCCOS 73) (April 2008)
"The report issued today . . . says that the nation’s coral reef ecosystems, particularly those adjacent to populated areas, continue to face intense human-derived threats from coastal development, fishing, sedimentation and recreational use. Even the most remote reefs are subject to threats such as marine debris, illegal fishing and climate-related effects of coral bleaching, disease and ocean acidification."—Press release (July 7, 2008)- National Research Council (NRC) & the National Academies Press (NAP), Transitions to Alternative Transportation Technologies—A Focus on Hydrogen (2008)
"A transition to hydrogen vehicles could greatly reduce U.S. oil dependence and carbon dioxide emissions, says a new congressionally mandated report from the National Research Council, but making hydrogen vehicles competitive in the automotive market will not be easy. While the development of fuel cell and hydrogen production technology over the past several years has been impressive, challenges remain. Vehicle costs are high, and the U.S. currently lacks the infrastructure to produce and widely distribute hydrogen to consumers. These obstacles could be overcome, however, with continued support for research and development and firm commitments from the automotive industry and the federal government, concluded the committee that wrote the report."—Press release (July 17, 2008)- Cath O'Driscoll, A Dash of Lime—A New Twist That May Cut CO
2 Levels Back to Pre-Industrial Levels, Chemistry & Industry (c/o PhysOrg.com, h.t. Slashdot) (July 21, 2008)
"Scientists say they have found a workable way of reducing CO2 levels in the atmosphere by adding lime to seawater. And they think it has the potential to dramatically reverse CO2 accumulation in the atmosphere..."- On Water (blog)
"Featuring news, research, and current events on all aspects of water resources. Brought to you by the Water Resources Center Archives and the Center for Water Resources, University of California."- Organisation for Economic Co-Operation and Development (OECD), Directorate for Trade and Agriculture, Economic Assessment of Biofuel Support Policies (2008)
"Government support of biofuel production in OECD countries is costly, has a limited impact on reducing greenhouse gases and improving energy security, and has a significant impact on world crop prices, according to a new study of policies to promote greater production and use of biofuel in OECD countries.OECD’s Economic Assessment of Biofuel Support Policies says biofuels are currently highly dependent on public funding to be viable. In the US, Canada and the European Union government support for the supply and use of biofuels is expected to rise to around USD 25 billion per year by 2015 from about USD 11 billion in 2006. The report estimates that biofuel support costs between USD 960 to USD 1700 per tonne of greenhouse gases (carbon dioxide equivalent) saved."—Press release (July 16, 2008)
- Fred Stolle, World Resources Institute (WRI), Groundbreaking Study Finds the "Hotspots" Most Responsible For Deforestation (July 16, 2008)
"A new collaborative study by World Resources Institute and other researchers finds that much of the world’s deforestation is isolated in a handful of 'hotspots,' not spread out over many nations and many locations. In fact, this study showed that over half the world’s deforestation (in this study only clear-cut are monitored) is happening in just two locations: 48% is occurring in Brazil, with another 13% concentrated in Indonesia. Meanwhile, deforestation in Africa is negligible in comparison."- United States Department of Agriculture, Economic Research Service, Prioritizing Invasive Species Management by Optimizing Production of Ecosystem Service Benefits: Final Report (Contractor and Cooperator Report No. 44) (July 2008)
"This report examined how decisions to invest in invasive species management on public lands could incorporate economic concepts to better gauge the level of social benefits generated and how optimization models could be applied to produce the maximum potential gains in ecosystem services. Findings suggested that management decisions were effectively modeled using GIS-based decision support tools, providing a means to reveal assumptions and allow greater input by the public and scientific community into the decision-making process. The optimization model results suggested that benefits achieved through invasive species treatment might be improved if multiple ecosystem service benefits were considered simultaneously when choosing sites and treatment options rather than choosing options that maximized a particular ecosystem service."—Abstract.- United States Environmental Protection Agency (EPA), A Business Guide to U.S. EPA Climate Partnership Programs (EPA-100-B-08-001) (June 2008)
"Many signs suggest the business community is beginning to confront the climate issue on a wide scale. There are now more than 13,000 firms and other organizations participating in climate-related EPA Partnership Programs. Through participation, these organizations have invested in energy efficiency, clean energy supply, and other climate-friendly technologies, reaping value such as:
- Substantial energy cost savings.
- Improved operating efficiencies.
- Improved risk management.
- Expanded market opportunities.
- Improved job satisfaction, employee recruiting, and worker productivity.
- Enhanced brand and corporate reputation."
- United States Environmental Protection Agency (EPA), Regulating Greenhouse Gas Emissions under the Clean Air Act (Advance Notice of Proposed Rulemaking [ANPR], EPA-HQ-OAR-2008-0318) (July 11, 2008)
"The ANPR is one of the steps EPA has taken in response to the U.S. Supreme Court's decision in Massachusetts v. EPA. The Court found that the Clean Air Act authorizes EPA to regulate tailpipe greenhouse gas emissions if EPA determines they cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. The ANPR reflects the complexity and magnitude of the question of whether and how greenhouse gases could be effectively controlled under the Clean Air Act."- United States Government Accountability Office (GAO), Climate Change: Expert Opinion on the Economics of Policy Options to Address Climate Change (Report to Congressional Requesters, GAO-08-605) (May 2008)
"All of the panelists agreed that the Congress should consider using a market-based mechanism to establish a price on greenhouse gas emissions, and 14 of the 18 panelists recommended additional actions as part of a portfolio to address climate change, such as investment in research and development of low-emissions technologies. Experts differed on the initial stringency of the market-based mechanism, with 14 of the 18 panelists recommending an initial price between less than $1 and $20 per ton of emissions. In addition, 14 of 18 panelists were at least moderately certain that the benefits of their recommended portfolio of actions would outweigh the costs. To establish a price on emissions, most of the panelists preferred either a tax on emissions or a hybrid policy that incorporates features of both a tax and a cap-and-trade program. A tax would set a fixed price on every ton of emissions, whereas a cap-and-trade program would limit or cap total emissions and establish a market for trading (buying and selling) permits to emit a specific amount of greenhouse gases. Under the cap-and-trade system, the market would determine the price of emissions. A hybrid system differs from a traditional cap-and-trade system in that the government would cap emissions, but could sell additional emissions permits if the permit price rose above a predetermined level. Panelists also identified general categories of benefits, such as avoided climate change damages, and costs, such as increases in energy prices, associated with their recommended actions. Overall the panel rated estimates of costs as more useful than estimates of benefits for informing congressional decision making, with some panelists citing uncertainties associated with the future impacts of climate change as limitations to estimating benefits. Further, the majority of panelists agreed that the United States should establish a price on greenhouse gas emissions as soon as possible regardless of the extent to which other countries adopt similar policies. At the same time, the majority of panelists said it was at least somewhat important to participate in international negotiations on climate change."—What the Experts Said.- United States Government Accountability Office (GAO), Hurricane Katrina: Trends in the Operating Results of Five Hospitals in New Orleans before and after Hurricane Katrina (July 17, 2008)
"Operating results of all five hospitals significantly declined in 2005, the year of Hurricane Katrina, based on the three measures of profitability we used to illustrate differences in the hospitals’ operating results before and after the hurricane—operating income or loss, net income or loss, and earnings before interest, depreciation and amortization. However, four out of the five hospitals showed some improvement in their operating results for 2006, 2007, and projected for 2008. For the fifth hospital, the amounts for the three profitability measures for 2007 and projected for 2008 declined from 2005 amounts. In viewing these trends, it is important to consider the amount and timing of special payments that the hospitals received to cover Hurricane Katrina-related losses for 2005 through 2008. These special payments included insurance payments from private insurers for business interruption and property and casualty claims, wage index grants from the Department of Health and Human Services (HHS) to cover some of the increases in labor costs experienced by the hospitals and funds from the state of Louisiana for uncompensated care to cover the increased costs for providing health care to the uninsured. They also included Federal Emergency Management Agency (FEMA) and National Flood Insurance Program (NFIP) reimbursements to cover losses due to flooding and federally declared disasters. Despite the improvements in operating results for four of the five hospitals we examined, the financial position for these four hospitals has weakened, as evidenced by declines in net asset balances since 2004. Such declines indicate that the hospitals have been either using their assets, incurring additional debt to support operations or both."—Results in Brief.- United States Government Accountability Office (GAO), National Flood Insurance Program: Financial Challenges Underscore Need for Improved Oversight of Mitigation Programs and Key Contracts (Report to the Ranking Member, Committee on Banking, Housing, and Urban Affairs, U.S. Senate, GAO-08-437) (June 2008)
"The number of federal flood insurance policies in force nationwide increased 36 percent from 1997 through 2006, but most homeowners at risk of flooding still lacked such insurance. While average insurance amounts (per policy) increased 78 percent from 1997 through 2006—consistent with rising home values—the average premium decreased 3 percent from 1997 through 2006, likely driven in part by the increase in policies sold in moderate- to low-risk areas. Conversely, loss amounts fluctuated by year, peaking at more than $17.7 billion in 2005. Seventy-nine percent of the funds paid out through NFIP from 1997 through 2006 were for hurricane-related claims, but the percentages in individual years varied widely (correlating with hurricane activity). Finally, the extent of claim payments attributed to repetitive loss properties (those with two or more claims in a rolling 10-year period) increased from 1997 through 2006, from $3.7 billion to nearly $8 billion, with the most significant increases resulting from the 2005 Gulf Coast hurricanes."—What GAO Found.- United States International Trade Commission (ITC), Industrial Biotechnology: Development and Adoption by the U.S. Chemical and Biofuel Industries (Investigation No. 332-481) (USITC Publication 4020) (July 2008)
"The ITC found that the liquid biofuel
July 21, 6:35 PM / MoneyLaw / Lawyers versus Clients and Lawyers versus ProfessorsJeff Harrison's post just below on how lawyers versus economists frame the same problem provides a nice segue to a thought piece I just posted on SSRN - but this is about how normal people versus lawyers versus law professors go about making judgments.
(Call me a fool, but I like to get stuff out there as early as I can short of being humiliated. I am okay with merely embarrassed). I have wrestled now for four years on the precipice either of an practitioner who thought too much like a professor (actually, that accusation goes back a long time), or a professor who was tainted by so many years of practice. I think Tevye in Fiddler on the Roof spoke to this: "a fish could marry a bird, but where would they live?
I've posted a short and preliminary essay that reflects what I've been thinking about and reading about over the summer, and it has to do with the theory and practice of judgment - how judgment differs as between clients and practicing lawyers, and in turn, how it differs between practicing lawyers and the professors who taught them. The piece is entitled Law's Illusion: Scientific Jurisprudence and the Struggle with Judgment. Here's the abstract:
Why are there two fairly clear chasms that affect practicing lawyers - one between themselves and their clients, and one between themselves and their professors? Both have to do with the irreducibility of judgment - perceiving regularities, applying rules to new situations, and deciding in advance what to do. I suspect Kant was right over two centuries ago, and there has not been much progress theorizing about it since then (even after the behavioral theorists like Tversky and Kahnemann and popular expositors like Malcolm Gladwell); judgment, either the inductive inferences from what we observe to what we generalize, or the leap from what we generalize to what to do next, is not teachable, but only achievable through practice. Practicing lawyers are reductivists in comparison to their clients - reducing the complex world through the "science" of law to a model; professors are reductivists in comparison to their students - either reducing the practice to a rational science, or avoiding the question of judgment at all.
This is a thought piece preliminary to a more detailed treatment of the idea.
(By the way, this is the first time I've posted a new piece on SSRN in a while; the system is improved, but still capable of being screwed up. Key advice: remember to click the "save" button to the upper right when you are done with each entry.)
July 21, 11:30 AM / MoneyLaw / Auction Approach v. No good Deed Approach
There is a story I tell to law and economics students to illustrate a difference between the economist's perspective and the law professor's perspective. It is about an experience I had at my first law teaching job. I visited the economics department and learned that the economists had decided who got which office in a new building by using an auction. Later that day, I passed this information on to my law colleagues and every one of them said instinctively "Who got the money." To me, as I tell my students, it illustrates the difference between allocative and distributive concerns. (Now I understand from one of my well-read colleagues, some schools use auctions to allocate spots in courses to students. The currency is a set number of "points" which are assigned to the students.)
When I tell this story to students or even to colleagues a fair amount of eye rolling takes place -- "oh those crazy economists!" I admit to joining in and snickering. Now I think the economists were way ahead of the game and much more was going on than allocative efficiency.
For example, a the sticky issue at law schools is teaching schedule -- times, days, numbers of hours, capping courses. There are others like travel expenses but let's stay with teaching schedule.
At some point professors are asked what their preferences are for the next year. Let's consider possible responses at each end of a continuum of responses. At one end:
"I will teach Advanced Restitution from the Perspective of the Elderly at 1o, Wednesday. Cap 12 students."
On the other end: "I can teach any of the following 8 courses whenever they are needed the most."
Does the first statement reflect an actual need ( like a standing appointment for an appendectomy at 8 AM or six days of physical therapy a week)? Not likely. Just a preference.
Does the second statement actually reflect no preference? Just as unlikely.
Another difference is the willingness of person one or those over on that end of the continuum to spend time badgering, slipping down to the dean's office and quietly closing the door, or expecting something in return for being flexible, etc. (Low opportunity costs, I know, but that is another post about the theory that one's value to a law school is inversely related to the amount of time spent with the dean or any administrator at the faculty member's request.) They exact a "price" for not getting what they want.
So, the differences in these statements do not reflect a difference in need or a difference in strength of preference. There are at least two other possibilities. One is a difference in sense of entitlement. The other is a difference in moral development with the first person, ironically, fitting the economist's definition of being narrowly self-interested and the second person having a sense of community.
At most schools my guess is that teaching loads are, in large part, allocated -- except with respect to the instances in which student needs are observed -- on the bases of sense of entitlement, level of moral development, and opportunity costs associated with time spent badgering.
Whatever the economists were achieving back in the office auction had to be superior to this. So how about a dean assigning to each faculty member 500 points and letting the bidding begin? schedules?
Two final points. Is this the fault of deans? A year ago I would have blazed away and said yes. Clearly, community minded professors make it possible for deans to "serve" those with a sense of entitlement and still think too many do respond to squeaky gates but I have come to believe that they cannot be responsible for the moral development of their faculties. That was what mom and dad were supposed to have done.
Second. Would this ever happen? Of course not. That would require those with a sense of entitlement to see themselves as no different than the rest of the faculty. And, it would violate the important elitist rule of never revealing what you really want because then you have revealed a weakness.
July 20, 3:16 AM / Jurisdynamics / Annabelle
Within the expressive idiom of American folk music, is there a more compelling example of literary naturalism than Gillian Welch's 1996 ballad, Annabelle
(on Revival)?
In previous blog posts, in this forum and on MoneyLaw, I've come close to answering the question. Now I wish to say, emphatically, in this forum and on Danzig U.S.A., that Annabelle might well be the perfectly composed song in the Southern folk tradition:
July 20, 0:52 AM / MoneyLaw / LSA: Law School ClustersAfter pointing out the more severe flaws in the Legal Education Value Added Rankings, I have spent some time studying Linda Wightman's LSAC National Longitudinal Bar Passage Study (based on a cohort of students who started law school in 1991). With respect to "valued added" concepts in legal education, one conclusion of this study stands out: LSAT scores and law school GPA have the strongest predictive value for bar passage rates, but results for students with the same LSAT and LGPA differ significantly between certain of the six "clusters" of schools which the study identified.
Linda Wightman identified one group of schools ("Cluster 3") in which students having the same LSAT score and LGPA seemed to have higher success in passing the bar relative to several other clusters. And she found the greatest gap between the success of students with the same LSAT and LGPA who attend schools in Cluster 6 vs. those in Cluster 3. There were lesser gaps in outcomes between with schools in Clusters 2 and 5 compared with those in Cluster 3. Two of the clusters (1 and 4) had no significant difference in success rates from Cluster 3 (also an interesting conclusion). Finally, the differences were greatest between students attending schools in different clusters when those students had a lower LSAT score and law school GPA.
Click here to read the rest of this post . . . .Wightman points out that the study does not establish any causal connection between attending schools in different clusters. And it is a little hard to identify example schools from the various clusters, not the least because for most schools the values of the variables involved in the study have shifted greatly in the past seventeen years. But regardless what schools made up what clusters in 1990, Wightman's basic notion remains compelling -- finding significant variables on which law schools tend to naturally cluster, and then examining how outcomes differ between those clusters.
I'm trying now to understand the math behind the clustering procedure and to repeat the process using current data, to see what clusters might emerge today. As a first step in that process, I composed data from the ABA Official Guide to Law Schools (2008 Edition) to replicate the variables Wightman used in her 1993 study: Clustering Law Schools Using Variables That Describe Cost, Selectivity, and Student Body Characteristics (PDF). I've only gotten as far as calculating summary statistics and Z-scores, but those results seemed striking enough to merit posting on their own (*). The variables Wightman used for clustering and which I have recalculated are:
ENROLL FT: Full-time enrollment
S/F RATIO: Student to faculty ratio
MIN %: Percent minority enrollment (first-year)
ACC %: Acceptance rate (total)
LSAT: Median LSAT for entering full-time students
UGPA: Median undergraduate GPA for entering full-time students
TUITION: Full-time resident tuition and fees
I have not done any hypothesis tests to determine which changes are statistically significant, but just eyeballing the data seems to reveal some notable shifts.
Enrollment: The mean and standard deviation have both dropped, suggesting a convergence of all schools toward lower full-time enrollments.
Faculty: The S/F ratio has dropped by a good bit, but the standard deviation has widened. Schools seem to be employing noticeably more faculty overall, but they may also have scattered quite a bit in the magnitude and direction of change on this measure.
Minorities: The mean percentage of minority enrollment has increased from 16% to 21%, but the standard deviation is about the same -- basically the entire curve took a step to the right. One question we may have is which minorities are counted for the purpose of "minority enrollment." I am not sure whether Wightman's figures only include certain minorities, or if she used the Total Minority numbers from the ABA as I did (and as I assumed she did).
Selectivity: The overall distribution of acceptance rates has hardly changed at all, but academic index parameters have changed a lot. Schools as a whole appear to have become much more selective on GPA and much less selective on LSAT scores. The Wightman study uses LSAT scores from the old scale, and I could not find a score percentile table from 1991 anywhere online (if anyone out there happens to have a copy of one, please let me know). I made a rough attempt to equate the scoring scales, from which I guessed that a 36 on the old scale was around the 85th percentile. The current mean of 158 falls at the 75th percentile. Median GPAs, meanwhile, have shifted upward more than 0.20, but the standard deviation has stayed about the same. Here again, it looks like the whole curve just shifted right by quite a bit (grade inflation, anyone ... ?).
Cost: The standard deviation for total tuition and fees today is larger than the mean was seventeen years ago -- enough said.
For anyone who wants it, I will add a link to the Excel spreadsheet with all of this data on the downloads page at LSA.
(*) As Wightman did, I excluded a handful of schools from these statistics: 1) The three ABA approved schools in Puerto Rico; and 2) The "one law school that enrolls part-time students almost exclusively."
July 18, 10:41 PM / MoneyLaw / The blog post of the year
It's only July, and MoneyLaw strongly prefers football and baseball to hockey, but the triumphant lifting of the Stanley Cup sets the right tone. Bill Henderson has written what I consider to be the most important blog post of the year: How the "Cravath system" created the bi-modal distribution. Indeed, if there is a more compelling read among recent publications for those who care about law students, legal education, and the legal profession, I do not know it.
Here are the lessons I take away from Bill's powerful post and his even more devastating working paper:Whether the relevant players will have the vision and courage to get past the "Cravath system," before that obsolete model swallows them alive, will be the most important MoneyLaw move that legal education and the legal profession as a whole can make in the foreseeable future.
- The love of credentials has become the root of all evil.
- The current system is unsustainable, and many firms that persist in the teeth of client discontent and an eroding economy will be — and will deserve to be — crushed and melted.
- There is a way out that enables firms, lawyers, and law schools to maximize human capital in law.
July 18, 1:11 PM / MoneyLaw / Bright KnightFrom the National Law Journal and the ABA Journal comes news that legal academia should take to heart in its own domain.
Holland & Knight is a big firm. It operates 22 offices throughout the United States and in China and Mexico. Its 1100 lawyers make Holland & Knight the 18th largest law firm in the country.
But Holland hasn't been wholly profitable of late. In 2007 it was only one of three firms in The American Lawyer's list of the 100 highest-grossing law firms to show a decline in profits. This setback came after layoffs in 2002 and 2005 that snared 110 lawyers and 240 staffers.
Relative to many other megafirms, Holland pays lower associate salaries and nets lower profits per partner. But the tradeoff, according to firm tradition, is a pleasant work environment.Newly elected managing partner Steven Sonberg is responding to client demands for lower fees and increasingly accessible partners with two initiatives.
First, Holland & Knight will discount its fees for some clients in exchange for success fees. Successful cases would yield more revenue for Holland. The new fee structure responds to complaints by midsized, entrepreneurial companies.
[Hushed whispers rush through MoneyLaw's audience. "Imagine that," remarks one stunned reader. "Accountability. Performance-based compensation."]
Second, Holland has pledged to change expectations regarding partners and their performance. Steven Sonberg intends to increase partner productivity in response to clients' demands for instant responses and on-call lawyering. Partners who can’t meet billable hour requirements may be fired:
"The days of partners 50 and older playing golf on Wednesdays are long gone. There is no tenure here."
July 18, 11:22 AM / Commercial Law / Of Settlements and Sales: Hanson Staple Co. v. Ole Mexican Foods, Inc., A08A0658.
