MOJ Joint Statement on the Situation at Ave Maria School of Law

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155717211/moj-joint-state.html

From MOJ:

We, the members of Mirror of Justice, are a group of Catholic and Christian law professors and former law professors. We wish to express our profound concern with the course of events at Ave María School of Law (“AMSL”). While we differ among ourselves in our religious and political convictions, we share a commitment to Catholic legal education and respect Ave Maria's serious desire to express its religious identity. We write as legal academics and as persons who believe and expect a Catholic law school to be “a living institutional witness to Christ and his message.” (Ex Corde Ecclesiae, ¶ 49).

The statement goes on to explain the standards by which we evaluated the situation, our understanding of the core facts of gravest concern, and the conclusions we have drawn. In closing, we wrote:

By the failure to live their Christian commitment, the AMSL Dean and Board cause scandal in the legal, academic, and religious communities. This scandal is exacerbated by the fact that their actions are taken on behalf of a law school named for the Blessed Mother of Christ. We echo this sentiment expressed earlier by an MOJ contributor: “The hour is not too late for [AMSL’s Dean and Board] to model for the legal and academic communities the essence of a Catholic Christian law school. In fact, [we] would suggest [that they] have a better, clearer opportunity to mirror Christ now than when [they] first began because the only path left open is through the cross. It may not be what [they] had planned, but God works in mysterious ways.”

We pray that all involved with AMSL will have the courage to exercise the convictions of Christian discipleship to reconcile all parties involved in the matters we have discussed.

I am proud to be part of the blogging community at MOJ and to have co-signed this important statement.

Why I am a Small l Libertarian

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155681035/why-i-am-a-smal.html

My wife and I wanted to put an addition on our house here in the City of Los Angeles. Our general contractor told us that the first thing we had to do was get up-to-date zoning and property information from the Building Pemits Department. He recommended that we hire a "fixer" who was used to dealing with the bureaucracy. That was 2 months ago. Today, we were informed by the City zoning department that they could not give us the necessary zoning information ... because, according to zoning records, our house does not exist! On top of which, the zoning folks also had no record of the street on which we live.

I was speechless until it occurred to me to ask why, if our house doesn't exist, we have to pay property taxes and so on. The answer? "That's another department." Back to being speechless. I then recovered enough to ask what we had to do to have the existence of our house established, which I thought would be a simple process - after all, you can see it on Google Earth. I was told we would first have to have a hearing to determine whether the street that runs in front of our house is a public street or private road. Given the backlog, it would be about a year before that process could be completed. Then we'd have to have another hearing to establish the existence of our house. Then we'd have to apply for a building permit, geological inspection, etcetera etcetera. At which point, I gave up in despair. After all, I was starting to have visions of being told that we'd have to tear our house down because it doesn't exist, which was getting kind of metaphysical. Anyway, goodbye addition.

True story.

Update: The interest in this story prompts me to relate another of my adventures with LA bureaucracy. I live in the Hollywood Hills. When the houses on our block were built back in the 1930s, the city sewer was not extended up the street. To connect the houses, the builder(s) ran an "unofficial" 4 inch clay pipe under our properties down to where it could be patched into the city line. By the late 1990s, the pipe was failing and causing all sorts of problems. In 2000, we went to the City and asked to have a proper City sewer line ran up our block to which we could connect. They agreed. We could have our line ... in 2020! So we had a fundraiser for our city councilman. He asked what he could do for us. We told him about the sewer. A couple of days later, one of his aides called with good news. We had been bumped up. To 2018. So much for campaign finance corrupting politicians, eh?

At this point, we all clubbed together (overcoming an interesting holdout problem along the way) and ran a new private line.

Between these two episodes, it's been quite a ride with the City of LA.

And boy would I like to get my hands on our builder! Unfortunately, he's long since met his maker.

The Limits of Private Equity Shareholder Activism

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155649867/the-limits-of-p.html

From Deal Journal:

nullThe best advice for investors in companies that are targeted by activist shareholders like Carl Icahn and Nelson Peltz may be this: wait for the stock to pop and then head for the hills.

Harvard has a new study out that examines the performance of shares in companies targeted by activists. (Read about it in this Wall Street Journal article today.) The upshot: the modern day corporate raiders are only going to make other shareholders money if their goal is to get the target company sold — and they succeed.

Why? It seems that the skill of activists like Icahn, Peltz and William Ackman is in judging the value of companies in a sale, and not in figuring out how to improve companies’ operations and profits. Says Robin Greenwood, the Harvard assistant professor who conducted the study: “They’re investors. They’re not operating guys.” Icahn’s failed bid to shake up Motorola, and his only-somewhat-successful campaign at Time Warner are cases in point. (To be fair, Icahn reaped profits for his investors off the Time Warner campaign, and Greenwood says Icahn is among a group of activists that are a cut above the rest.)Rgreenwood

The study’s findings go against the commonly held belief that companies benefit from activist attention. That is why shares initially tend to rise when these investors come to town. If the study’s conclusions are correct, in most cases those stocks won’t stay up for long. Especially now that there are few M&A suitors to bail any investors out.

Interestingly, the HBS abstract of the study also calls into question the utility of shareholder activism by standard institutional investors:

Are hedge funds better than large institutional investors at identifying undervalued companies, locating potential acquirers for them, and removing opposition to a takeover? Are they best equipped to monitor management? While blockholding by large institutional investors—pension funds and mutual fund investment companies—is widespread, there is virtually no evidence that these institutional shareholders are effective monitors of management or that their presence in the capital structure increases firm value. When institutional blockholders make formal demands on management, there is no evidence of their success. This working paper outlines the advantages and limits of hedge funds to manage these tasks. Greenwood and Schor's characterization differs markedly from previous work on investor activism, which tends to attribute high announcement returns to improvements in operational performance.

The study is available here in full text. A summary HBS Working Knowledge article is here.

Chemerinsky Out at UC Irvine

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155625522/chemerinsky-out.html

As regular readers know, I'm not a fan of law professor Erwin Chemerinsky's politics or the implicit left tilt of the plans for the new UC Irvine law school, but I'm also no fan of firing people because of their political views. From the Law Blog:

According to Brian Leiter’s Law School Reports, a blog on comings-and-goings in legal academia, UC Irvine, which recently got approval to start a law school, reached an agreement with Duke’s Erwin Chemerinsky (pictured), a prominent constitutional law scholar, to have Chemerinsky be its inaugural dean — and then rescinded the offer yesterday because of his political views. (For background, here’s a recent Los Angeles Times story on Chemerinsky when he was a leading candidate for the job.) Chemerinsky

According to Leiter’s report, about a week ago Chemerinsky signed a contract to be the dean of Irvine’s Donald Bren School of Law. But Yesterday, Irvine’s chancellor, Michael V. Drake, flew to Duke and fired Chemerinsky, “saying that he had not been aware of how Chemerinsky’s political views would make him a target for criticism from conservatives,” according to the report.

If true, that's just ridiculous. Chemerinsky's a very liberal guy, with whose stated views I routinely disagree, but he's not out there on the radical fringe. Moreover, to fire someone because they're a target of political attacks sets the worst kind of precedent for all of us in legal education - on both sides of the aisle - who dare express political views.

To be sure, hiring and firing a Dean is different than hiring or firing a professor. As a school's chief administrator and fundraiser, the Dean must be able to work with people of all political persuasions. Given how important fundraising is in the modern job description of law school deans, an ability to work well with donors is essential. The new UC Irvine law school will be smack in the middle of Orange County, which is less of a conservative bastion than it once was, but since a new law school will have no alumni to tap for funds, the UC Irvine Dean will have to attract money from local boosters, who are still mostly GOP-leaning real estate barons. So Chemerinksy always struck me as an odd choice. But, shouldn't they have figured that out before signing him to a contract? As Chemerinsky told the Law Blog, his politics aren't exactly a secret:

“I’ve been a liberal law professor for 28 years,” Chemerinsky said. “I write lots of op-eds and articles, I argue high-profile cases, and I expected there would be some concern about me. My hope was that I’d address it by making the law school open to all viewpoints.”

Having apparently hired him without adequately vetting the appointment with all key stakeholders, to then dismiss him explicitly over politics strikes this observer as unwise both from a PR standpoint and from an academic freedom perspective. At the very least, I bet this incident makes it much harder for UC Irvine to attract top law faculty - especially the public interest lawyers they planned on emphasizing. As Brian Leiter observes:

Chemerinsky was a far more prominent scholar than the University had any reason to suppose it would be able to land for a brand new law school. 

It’s fair to say that the future does not look bright for the planned UC Irvine law school. Who will take the job now given this history?

Speaking of GOP-leaning real estate barons, my guess - and it's just a guess - is that Donald Bren may have had a hand in this development. Bren gave $20 million to UC Irvine to finance the law school, which is to be named after him. His Forbes bio includes this comment: "Major Republican donor; a skiing buddy of Schwarzenegger." His campaign contributions are summarized here, mostly going to fairly conservative GOP candidates. Did he complain about Chemerinsky's politics? Update: Leiter's posted an update making the same speculation, concluding:

Even if financial gain was the motive, the University, I suspect, has miscalculated the costs and benefits of its misconduct, since the reputational damage the school will now incur is likely to be quite substantial.

He's likely right.

Anthrax

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155164852/anthrax.html

Atrios:

I've long been fascinated by the erasure of the anthrax attacks - which, in their own way, freaked out the country more than 9/11 did* - from our collective memory.Anthrax

*People object when I suggest this, but while the 9/11 attacks were of course The Big Ones, anthrax was this creepy shit which was KILLING US THROUGH THE MAIL. While most people didn't expect a plane to fly into their building, the anthrax attacks created a heightened sense of OMIGOD THIS COULD HAPPEN TO ME. 9/11 was terrible, but the anthrax attacks were terrifying to people.

Good point. Apropos of which, I just finished Quantico by Greg Bear, which is an excellent techno-thriller set in a plausible near-future in which a character identified as the guy behind the 2001 anthrax attacks plays a key role:

This thought-provoking near-future thriller from bestseller Bear (Dead Lines) focuses on two young FBI agents: William Griffin, the son of a legendary FBI lawman, struggles through training; Fouad Al-Husam, who expects suspicion for his heritage and Muslim faith, finds himself instead sent on super-secret missions to the Middle East. Playing a minor supporting role is their Quantico classmate, Jane Rowland. When a quiet man with mismatched eyes starts telling certain fanatics that he can make gene-keyed anthrax to destroy their hereditary enemies, Griffin and Al-Husam form an unlikely team, headed by veteran agent Rebecca Rose, to handle the threat. Bear's near-future science is, as always, eerily plausible, and while he doesn't stint on sharp criticism of political infighting and its potential to hinder antiterrorism efforts, his would-be terrorists become surprisingly sympathetic as the complex details of their true plan are slowly (sometimes too slowly) revealed.

Mitt Romney Campaign Behind Fake Thompson Site

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155132852/mitt-romney-cam.html

Flip-flops. Dog abuse. And now dirty tricks. Not exactly Presidential timber in my book.

Update: Glenn Reynolds reports that Stephen Smith of the Romney campaign is denying that the campaign had responsibility for the site:

I've dealt with Stephen before, and I have no reason to doubt him, but there's also no reason to doubt that this is an embarrassment for the Romney campaign.

Delaware's Dominance

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155130142/delawares-domin.html

Francis Pileggi cites the latest data on Delaware's dominance as the domicile of choice for public corporations:Delaware

As reported in the August 22, 2007 issue of the Delaware Law Weekly,  ... here is a sampling of the key data:  As of April 2007, over 61% of all Fortune 500 companies were incorporated in Delaware, according to the Administrative Office of the Courts. Since 1973,  75 percent of all U.S. initial public offerings selected Delaware as their state of incorporation.

He also notes data explaining why Delaware tries so hard to stay #1:

The revenue that the legal industry generates for the State of Delaware is also of vital importance to the First State and its residents as well. Over $709 million or 21.6 percent of all of the state's general fund revenue in fiscal year 2007 came from the corporate franchise tax and related fees. Corporations generated another $15 million in special fund revenue and about $10 million for local governments.

Delaware Law Bloggers

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155129097/delaware-law-bl.html

The blogs of principal professional interest for corporate law academics (and lawyers) are those dealing with Delaware law. An article in the Delaware Business Ledger profiles a number of bloggers focusing on Delaware law. The article notes that Francis Pileggi, whom my readers will recognize as a longtime friend of this blog, "might be the dean of Delaware law bloggers." Indeed, Pileggi's clear style, frequent postings, and links to new opinions or statutes makes his blog essential reading for anyone with an interest in this area.

George Will on the Surge

http://feeds.feedburner.com/~r/professorbainbridge/sheN/~3/155126668/george-will-on-.html

It's not as though this came from the Kos side of the spectrum, although I'm sure Hewitt, Barnett, and their ilk will spin it as though it were:

Before Gen. David Petraeus' report, and to give it a context of optimism, the president visited Iraq's Anbar province to underscore the success of the surge in making some hitherto anarchic areas less so. More significant, however, was the fact that the president did not visit Baghdad. This underscored the fact that the surge has failed, as measured by the president's and Petraeus' standards of success.

Those who today stridently insist that the surge has succeeded also say they are especially supportive of the president, Petraeus and the military generally. But at the beginning of the surge, both Petraeus and the president defined success in a way that took the achievement of success out of America's hands.

The purpose of the surge, they said, is to buy time -- "breathing space," the president says -- for Iraqi political reconciliation. Because progress toward that has been negligible, there is no satisfactory answer to this question: What is the U.S. military mission in Iraq?

Many of those who insist that the surge is a harbinger of U.S. victory in Iraq are making the same mistake they made in 1991 when they urged an advance on Baghdad, and in 2003 when they underestimated the challenge of building democracy there. The mistake is exaggerating the relevance of U.S. military power to achieve political progress in a society riven by ethnic and sectarian hatreds. America's military leaders, who are professional realists, do not make this mistake. ...

What "forced" America to go to war in 2003 -- the "gathering danger" of weapons of mass destruction -- was fictitious. That is one reason why this war will not be fought, at least not by Americans, to the bitter end. The end of the war will, however, be bitter for Americans, partly because the president's decision to visit Iraq without visiting its capital confirmed the flimsiness of the fallback rationale for the war -- the creation of a unified, pluralist Iraq.

The neo-cons who got us into this mess have a great deal for which to answer. For the rest of us, maybe it's time to try the Westmoreland solution: Declare victory and go home.