The bracket is available on cbssportsline (so you have to register if you haven’t already):

http://volcon.mayhem.cbssports.com/e

The password is “Volokh” (be sure to capitalize the V).  One bracket per person, please.

Note that I’ve configured the rules to multiply the points for the round by the seed (rewarding upsets) which seemed as arbitrary as any other rule I might choose.

To the winner goes a stylish VC t-shirt of your choice:

http://www.cafepress.com/volokhconsp#link-productCategory-110

Good luck!

Check out some of the others while you are there–Rob Long, Peter Robinson, and Mark Steyn are the three hosts.

For those who love Chesterton, little more needs to be said.  For me, on the other hand, Chesterton is a struggle to read.  Many people are charmed by his elliptical round-about essayish style of writing–he’s one of those guys where you are supposed to “enjoy the journey” as he gets to the point.  My brain, however, is a bit too lawyer/social sciene and doesn’t really work that way.  So I find myself getting impatient at times with Chesterton, although like everyone else I do enjoy his nuggets of style and his overall insights.  Moreover, his body of work is so vast that it is impossible to get to all of it and my sense is that (as one might predict) it is of uneven quality.

For those like me, Alsop’s show really hits the mark.  Each show is thematic in nature and Alsop does the work of wading through all of this and chasing down the works and excerpts that best capture Chesterton’s insights and most elegant turns of phrase.  I’ve found it to be a great introduction to Chesterton that has in fact led me to read (and re-read) Chesterton and to get more out of it.  For those who are interested in a good intro to Chesterton, now is a good time to tune in.  I find the excerpts from Chesterton’s fiction (often dramatized) to be especially fun because those are the works that I’d probably be least likely to read on my own.  I believe that “new” episodes air on Sunday evenings and then repeat on Wednesday mornings, but since I just dvr it I’m not exactly sure of the times (I say “new” because, as I noted, I am prompted to write now because they are actually running very old episodes but they seem to run on the same schedule).

As for Alsop’s somewhat hagiographic approach to Chesterton, I suspect one will find it either charming or off-puting.  I find it to be the former, but others may not.  Enjoy.

I guess one could say that the best thing about the current bill is that it allows individuals and families to opt out of insurance coverage until they need it. Since insurance companies would not be allowed to deny coverage based on preexisting conditions, but individuals and families will be penalized only at the rate of only 2.5 percent of their annual income if they do not have insurance, it makes sense for families earning under around $500,000 per year to forego insurance coverage until they get sick. Clearly insurance coverage costs most middle-class families far more that 2.5 percent of their annual income, so the current bill serves as a disincentive to purchase insurance. Bravo, Mr. President!

I should note that her opening and closing sentences in this passage although seemingly facetious are not entirely so, in that elsewhere in the article she discusses how the current version of health insurance encourages overuse of the medical system, overuse of the most expensive aspects of the medical system particularly, and that this high usage level provides no demonstrable increase in health.

A review of data for people over 65, all of whom have health insurance, shows that when they have access to more care, they endure more medical visits and procedures, which costs more money, but does not necessarily lead to improved outcomes.  The folks at Dartmouth have been studying this for years, and their data shows that having access to more specialists and medical facilities increases Medicare costs, but does not improve outcomes. I’d encourage you to read Shannon Brownlee’s insightful book, Overtreated: Why Too Much Medical Treatment is Making us Sicker and Poorer, to understand how overtreatment is costing us more money, but not improving health-care outcomes.

She also calls for tort reform for the medical malpractice system and reforms to align patient and doctor incentives more closely to making more cost-effective choice treatments.

Josh also raises the key point behind all of this–what happens if the “nudge” provided by the government doesn’t actually get people to do what regulators want them to do?  Do we just nudge harder?  At what point does a nudge turn into a shove–or when do we just skip nudging and instead shove for people’s own good?

If it is possible to know what people “really” want to do, or what regulators think people should do for their own good, it isn’t clear why we wouldn’t just compel them to do it if they won’t do it themselves (the paternalistic slippery-slope observed by Rizzo and Whitman).

The case for voting for Joe Asch is made well by current trustees T.J. Rodgers, Peter Robinson, and Stephen Smith in this letter.  I heartily associate myself with their comments but would like to add some additional words.

I see three characteristics of Joe that make him ideally suited to be an alumni trustee: independence, knowledge, and judgment.  I was classmates with John Replogle but I don’t really know him so my comparisons are based primarily on what I’ve read on his website.

Independence: Based on my experience on the board one personal attribute stands out above all else in serving as a trustee–independence.  The Dartmouth boardroom is an extraordinarily conformity-inducing environment and it takes a strong sense of independence in order to keep from being assimilated into its group-think.  Joe has shown that he is willing to support the board and administration when it is in the right but equally willing to raise questions and speak up when appropriate.  Let me make this clear: if you want a rubber-stamp cheerleader trustee, then Joe Asch is not your candidate.  If you want a trustee who is going to ask hard questions, reach considered judgment, and collect deep reliable information on the effects of Dartmouth policies on actual students and faculty, then Joe is your guy.

Alumni should not forget that the current budget crisis at Dartmouth is not unique–it is actually the second time in a decade that the Trustees have managed Dartmouth into a major financial hole (the first one led to the swim team debacle).  Dartmouth needs trustees who are going to be willing to stand up, if necessary, to prevent this from happening again.  Joe blogs at Dartblog where he offers commentary and facts on Dartmouth.  As can be readily seen from reading there, Joe knows the ins and outs of the College’s budget better than anyone I know (including all but one trustee (T.J. Rodgers) with whom I served).  He had repeatedly pointed out areas of waste and bloat.  He also offers praise where appropriate and criticism where appropriate, including his outspoken support for President Kim’s efforts to bring the College budget back into balance.  He supported the former Dean of the College Tom Crady’s efforts to reform the student services bureaucracy and to make the Dean’s office more responsive to student needs.  He is a friend and supporter of Dartmouth’s coaches and athletic programs.  He has been entrepreneurial in his philanthropy, including funding a well-regarded student writing program.  Joe is also willing to tackle issues such as alcohol enforcement and class over subscription that are important to students and faculty but which can be controversial.  This is exactly the sort of courage, creativity, and intellect that the board needs.

Knowledge: Joe would bring an incredible depth of knowledge, both qualitative and quantitative to the board.  He lives in Hanover and has formed friendships with many students and alumni over the years.  He has audited over 30 classes over the past several years.  He routinely has students and professors over to his home (I was a frequent guest during my stint as a trustee).  He understands Dartmouth mission and has the kind of on-the-ground intelligence that one can gain only through those sorts of interactions with students, faculty, and administrators.  This sort of information, responsibly used, cannot help but benefit the board’s decision-making.

When I went on the board in 2005 I had a number of pre-existing friendships with faculty members that I had developed through my academic career.  I found the information that I obtained through those relationships to be invaluable in understanding what was really happening at Dartmouth (and which didn’t always match the official story).  For example, the petition trustees were raising questions about the financial health of Dartmouth and budgetary priorities for several years at a time when the other members of the board (and the alumni establishment) were telling us that we were wrong.  Subsequent events, of course, have proven us out–especially President Kim’s acknowledgment that there is a long-term unsustainable structural budget deficit.

Joe’s depth of knowledge of Dartmouth’s inner workings, combined with his independence, would make him an incredible asset.  Mr. Replogle is a CEO of a trendy division of the Chlorox Corporation and, from what I can tell, seems to believe that it is micro-managing for trustees who actually talk to students, faculty, and administrators and make up their own minds about what works and what doesn’t.  It reminds me of the comment of Judge Jose Cabranes, who said of trustees at the universities where he has served on the board, “No one will be surprised to learn that business executives (who make up a large part of all university boards), for example, prefer to be the sort of trustees that they would hope to have on their own boards—namely, they prefer ‘team players’ who do not disturb the peace of the executive, who recognize the limits of their own competence (limits that are especially visible in an academic setting), and who recognize the effective limits of their authority.”  I don’t know whether that is Mr. Replogle’s view, but his statements and endorsements on his website are not encouraging that he will be willing to resist the party line when necessary.

Again, if alumni prefer a trustee who is simply a blank slate who will be content just to fly in four times a year and take as their sole source of information the official line of the administration and the board majority, then Joe Asch is not your man.  If you are looking for someone who is going to collect information from a variety of sources, including personal experience, then Joe is the sort of engaged trustee that I think Dartmouth needs.

Judgment: Finally, Joe has excellent judgment in deciding what is right for Dartmouth’s future.  Again, this flows from independence, intellect, and knowledge.

First, Joe supports the continuation of parity between elected and appointed trustees as provided in the 1891 Agreement.  Mr. Replogle has waffled on this issue and now come up with some sort of scheme of appointing young alumni to the board.  The bottom line here is clear: the traditional balance of parity served Dartmouth exceedingly well for over a century.  There is nothing wrong with traditional parity and I’m afraid that Mr. Replogle’s effort to conjure up an alternative seems to be nothing more than a transparent cheap political ploy to straddle the issue by trying to appear to be in favor of parity while at the same being afraid to endorse traditional parity, which would put him at odds with the incumbent board majority.  That sort of political fence-sitting does not bode well for an ability to resist the pressures of the board majority to toe the party line.  Indeed, this political calculation is exactly the opposite of the transparency and accountability that Dartmouth needs more of from its leadership.

Parity makes use of the full wisdom of the alumni and through the petition process promotes the election of independent trustees.  Joe is right on this crucial issue–and as Dartmouth’s financial catastrophe has pointed out, the need for independent trustees of colleges and universities is more important now than ever.

Second, Joe understands that promoting dual excellence in teaching and research among Dartmouth’s faculty is both crucial and attainable.  Because Joe has actually been taking classes and has befriended students and faculty over the years, he knows who are the excellent teachers and he knows who are the leading scholars.  He has the trust of many students, faculty, and coaches.  He has been a relentless advocate for promoting the excellence of Dartmouth’s faculty and prioritizing the investments necessary to bring that about.  He has been critical at the departure of some of Dartmouth’s star faculty members, such as Mike Gazzaniga or Walter Sinnott-Armstrong.  Most striking to me (as a professional academic) is that Joe actually knows who are the stars on the faculty and their areas of scholarly expertise.  I was always stunned at how little the non-petition trustees actually knew about the Dartmouth faculty, the work they were doing, and what they needed to succeed.

Joe, by contrast, by being in their classes and interacting with faculty on an ongoing basis is exceedingly knowledgeable about the unique challenges and opportunities of being the most undergraduate-oriented institution in the Ivy League and how to promote dual excellence in teaching and research.  He understands which departments realize this and what they have done in order to prosper.  And he realizes that maintaining this requires a razor-sharp focus on Dartmouth’s financial and intellectual priorities.

For those three reasons–independence, knowledge, and judgment–I am voting for Joe Asch for trustee.  Alumni really do have a choice here between an establishment CEO-type candidate who seems to define his mission as being a good “team player” (in Judge Cabranes’s words) or an independent, courageous, well-informed candidate who supports traditional parity for alumni-elected trustees.

Note: Do to a technical error with accessing the blog today an earlier version of this post was inadvertently published earlier.

The op ed is based on my article with Marcus Cole on “Anna Nicole Smith Goes Shopping: The New Forum Shopping Problem in Bankruptcy” which we are submitting to law reviews as we speak.  As I note in the column (and we develop in the article), the forum shopping issue triggered by Smith’s case goes to the heart of the modern bankruptcy system.  Policing the line between proper use of bankruptcy and improper forum shopping into bankruptcy is the cornerstone of a hybrid bankruptcy system like ours, where state debtor-creditor law and federal bankruptcy law co-exist.  The purpose of bankruptcy law is to move debt collection from the individualized “race of diligence” outside bankruptcy to a collective proceeding inside bankruptcy.

What the Marshall case illustrates, by contrast, is a paradigm example of the type of forum shopping that we want to prevent–forum-shopping simply to relitigate state law issues that should be resolved in state courts, both as a matter of state law expertise (state courts have more expertise in applying their law than a bankruptcy court 1000 miles away) and jurisdiction (state law matters should be resolved in state courts where possible).  Typically, most bankruptcy courts have appreciated this and the need to discourage rather than promote forum shopping into bankruptcy.  We argue in the paper that where this traditional prudential self-restraint breaks down, however, it is imperative for Article III courts to intervene to ensure that Bankruptcy Judges are not overstepping their bounds and chipping away at the wall that polices forum shopping.

The working paper I reference is here.

I’ve noticed (partly educated by Roy’s prior comments on this) the interesting phenomenon that has arisen over the the past decade or so of this relationship between academia and Wall Street.  That Wall Street bankers write big checks to buy board seats is now pretty widespread.  But concerning as well is the increasing service by university presidents on corporate boards.  At many universities today this simply seems to be an accepted perk of the job–either explicit or implicit.  One wonders whether these close relationships between Wall Street and elite academia can actually be good for the academic mission in the long run.

Much has been written about whether Hayek is right or wrong as a matter of history or historical inevitability.  To my mind that’s largely a side issue.  What I think is timeless and relevant about The Road to Serfdom is what I think of as the key philosophical-economic insight that drives the book.  Which is that there is a central economic issue that characterizes all human societies, namely the problem of scarcity.  Governmental intervention cannot repeal the reality of scarcity.  So, at root, we have a basic choice to make: either each of us chooses for ourselves (classical liberalism) or government chooses for us (or to put it otherwise, we all choose for each other).  On this central insight, I think that Hayek has the matter exactly right–either we choose for ourselves or someone else chooses for us.

Hayek’s historical prediction follows from this basic insight–in a world where government chooses for us, somebody has to decide whose needs get met and whose do not.  Which further means that government has to come up with some array of which needs are more important than others.  Taxes provide the paradigm example: each dollar in taxes basically means that the individual has one less dollar to spend on what he wants and instead one dollar is given to the government to spend.  At the margin, each dollar in taxes means that you have to sacrifice some of your leisure (in order to work more) or forgo some consumption activity that otherwise would have spent money on (a book, vacation, a clarinet for your child, or whatever).  But Hayek’s crucial insight is keeping this central question front and center–either you decide what to do with your own money or someone else decides.  Those are the only two choices.

The open question is whether it is compatible with democracy and freedom in the long-run for everyone to claim that their preferences should be on the menu of those that are worth being met.  Hayek drew the lesson from the 1930s that democratic government allocation of economic resources led in the short run to budget deficits, in the medium run to inflation and monetizing the debt, and in the long run dictatorship that imposed a standard of values on society (and totalitarian impulses designed to brainwash people into to subordinating their own preferences to the preferences of the collective).  A corollary is that when government allocates resources, rent-seeking and influence peddling become endemic to the system of trying to get your needs met rather than someone else’s.

And isn’t this in the end what all the fuss is about health care, cap and trade, financial regulation, and even deficit spending?  Although dressed up as questions of economics, as The Road to Serfdom makes clear, these are really questions of freedom and individual liberty.  Hayek’s eventual solution (as developed in Law, Legislation, and Liberty) was that it was both more efficient and more moral to have these basic allocational decisions made by impersonal processes like markets and the rule of law (especially the common law, as he understood it (perhaps in an unrealistic fashion)) rather than conscious political decisions as to who should get what.  But it seems to me that regardless of whether he offers the right solution, he certainly asks the right question and won’t let us sweep under the rug the core recognition that everyone one of these decisions are fundamentally issues of personal liberty and who gets to decide.

Carbon taxes fundamentally amount to a choice that political decisionmakers believe that you should not drive so much or live in such a large house.  The resource-allocation decisions at the heart of health care are obvious in terms of deciding which medical needs are more important than others.  Paternalistic financial regulation proposals implicitly rest in part on the idea that some people disapprove of the way others spend their money and the reasons for which they borrow, so that it is an acceptable cost that some people will be unable to get credit cards or other types of good credit.  People recognize that massive deficits to subsidize our consumption today mean massive taxes tomorrow meaning less for our children to spend on their own needs and happiness.

So I’m not surprised that Hayek is becoming a text for the current age.

UPDATE:

A few people have mentioned that John Stossel’s show last week was on The Road to Serfdom.  I found the show here.

The absence of a power of recall was a major sticking point for the Anti-Federalists, who anticipated that without the power of recall, the power of instruction would be largely a dead letter.  My recollection–although I can’t at the moment place my hands on the source–was that there was a major showdown over instruction at the time of the Andrew Johnson impeachment, and that (if I recall correctly) at least one Senator resigned rather than voting to convict Johnson, as he had been instructed by the state legislature.

I’ve seen nothing in the history of the 17th Amendment that would suggest to me that the power of instruction and advisory recall was changed by the 17th Amendment.  My reading of that history is that the 17th Amendment was designed to primarily just change the mechanism by which Senators were elected, but not to change the traditional idea that Senators were fundamentally ambassadors of the state.  Of course, changing the mode of election has fundamentally changed the relationship between Senators and their electors, but based on my reading the legislative history of the 17th Amendment, I suspect that the sponsors of the amendment would have been surprised at the way in which the Senate as a political body has evolved into just another version of the House.  My sense is that they thought that the norm that the Senate was a representative of the states in their corporate bodies was so deeply-rooted that merely changing the mode of election would have little effect, an assumption on which they were clearly incorrect.

The phenomenal increase in small loans to consumers by banks is too well known to require elaboration.  Retail instalment credit selling had its original impetus earlier but it also has shown in the last decade a constantly increasing volume.  There has resulted not only a staggering aggregate per capita consumer debt but a revolution in the public attitude toward owing money.  The far-reaching consequences on the national economy extend into the production and distribution system and exert heavy influence on real wages....

The attitude of the average man toward indebtedness and thrift has been changed.  He has been beset on every side by selling pressure calculated to make him want to enjoy today the benefits of tomorrow’s earnings and minimizing the weight of the resulting debt burden.  Where once he had to obtain money in order to obtain goods, there are now several commercial sources of credit not only willing but anxious to accept his promise to pay.  This complete revolution in the consumer’s attitudy toward borrowing has been too gradual to be detected during any one year, but comparison of today with 1920 makes the extent of the change dramatic.

The year this pining for the good old days of frugal America? 1941.  And I’ll be if you went back to 1920 you could find similar groans about the “staggering” amount of consumer debt being layered on and the negative effect on consumer morality.  (From Law and Conemporary Problems, 1941).

For me it brings to mind the famous story about Daniel Patrick Moynihan’s challenge to incumbent James Buckely in the 1976 New York Senate race.  Buckely at one point referred to Moynihan as ““Professor Moynihan from Harvard” to which Moynihan memorably replied, “the mudslinging has begun!”

But Eugene’s post suggests a larger point–I suspect that the real reason why there are so few successful professor-politicians is a matter of temperament.  Academia is at root a job for introverts who like to sit in their offices and read and write.  Politics is at root a job for extroverts who like meeting and working with other people.  It is this same dichotomy that suggests why so few academics are interested in, or capable of, being a successful dean or administrator.

My impression is that this dichotomy may have grown in recent years.  As professors generally have come to teach less and gain fewer rewards for student interaction, the self-selection for introverted personality types has grown.  Meanwhile, the almost universal growth in administration in universities has led to more people pursuing those jobs as a permanent career and an earlier self-selection into those jobs, as naturally smart but less-introverted people move into administrative careers earlier.  The extreme specialization of academia today, moreover, reinforces this divergence in the career path as administrators find it increasingly difficult to return to research after being away.  In a more teaching-oriented world, I suspect that movement in and out of administration is probably easier.

My prediction would be that in years to come we will see more academic-politicians–but drawn increasingly from a class of professional university administrators that increasingly is coming to look more like corporate CEOs or politicians and less from the ranks of typical professors.

Note also that in recent years it seems that there are a larger number of politician-professors–a movement from politics to academia.  One thinks of Tom Kean, Bob Kerrey, and Hank Brown, as examples of Senators who became university presidents.  I suspect that has something to do with the nature of the job of a university president these days, which is much more of a CEO-type job of managing a large organization, and a glad-handing fund-raising job, rather than steward of the intellectual mission of the institution.  I have my doubts as to whether that is a beneficial development overall, but it does seem to be the case.

As to Eugene’s query about the errors that might arise from professor-politicians, I think that he is likely being too kind to our colleagues in the academy.  I think more likely is not that professors would overestimate articulateness and data, but rather that professors in general have very little patience for the minutiae of policy.  As one who has worked in and with the government I am struck by how much detail work there is in the regulatory and legislative process, and that this is the truly hard work of the job.  And work that I suspect that professors are ill-suited to tackle.  I think this is what an academic might be tempted to refer to as “boring details,” but is the bread-and-butter of actual policymaking.  I suspect that a government run by academics would look an awful lot like the Berkeley city council rather than an oasis of reason and data.

As for President Obama, I suspect that the issues that have arisen have less to do with the professorial aspect of his personality (however we choose to define that).  Instead, I think that his performance thus far tends to confirm a concern that was raised when he was running–that he does not have an “executive” temperament, by which I mean the ability to act decisively and then move on.  Of course, it is possible to have an overabundance of executive personality in terms of acting too decisively and being unable to reconsider a course of action–as arguably George W. Bush illustrates.

I suspect that is much of the appeal that Sarah Palin had in 2008 was that she was the only one in the race with executive experience and executive temperament.  Like GWB, it seems likely that she probably has that in over-abundance.  But voters, I suspect, look for an executive temperament in their Presidents, which is a main reason, I suspect, that Governors tend to become President rather than Senators.  Palin’s popularity, I further suspect, is largely a manifestation of being compared to such a weak group when she arrived on the national scene (Obama, Biden, and McCain).  Compared to a group of more plausible and qualified presidential candidates, especially those with executive experience, I doubt that she’d have gotten any traction.  Compared to that particular group though, for those who consider executive decisiveness a valuable presidential attribute she provided a distinct contrast to the others.  If she runs for President in 2012 and she gets matched up with others who have worn the mantle of executive decisionmaking but also have greater knowledge to back it up (Romney, Huckabee, Pawlenty, Barbour), her distinct appeal compared to the 2008 general election field will be less prominent.

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

Don’t hold your breath. As it is, Democrats don’t even seem able to score political points by highlighting their opponents’ obstructionism.

It should be a simple message (and it should have been the central message in Massachusetts): a vote for a Republican, no matter what you think of him as a person, is a vote for paralysis.

Actually, I think that this was the central Republican message in Massachusetts.

ST. JOHN’S, N.L. — Newfoundland Premier Danny Williams will undergo heart surgery later this week in the United States.

Deputy premier Kathy Dunderdale confirmed the treatment at a news conference Tuesday, but would not reveal the location of the operation or how it would be paid for.

“He has gone to a renowned expert in the procedure that he needs to have done,” said Ms. Dunderdale, who will become acting premier while Mr. Williams is away for three to 12 weeks.

“In consultation with his own doctors, he’s decided to go that route.”

Mr. Williams’ decision to leave Canada for the surgery has raised eyebrows over his apparent shunning of Canada’s health-care system.

“It was never an option offered to him to have this procedure done in this province,” said Ms. Dunderdale, refusing to answer whether the procedure could be done elsewhere in Canada.

And that’s the central point of Pete’s paper–that if the trial by ordeal was believed to be accurate then it would be effective.  So the really cool and (to me) completely unexpected finding of the paper is that the overwhelming number of people who were tried by ordeal were actually acquitted.  One would have thought that the trial was so goofy that the results would have been at best random and at worst a complete kangaroo court that produced convictions.   I’ll let you read the paper as to why this turns out not to be the case.

I’ve not seen any direct confirmation that there was a deliberate boycott, but it seems plausible.  A few reports from the time note the absence of the Justices, and that some of them had travel conflicts (it is not clear whether those were avoidable or convenient–I recall William F. Buckley’s response to an undesired invite, “I’m sorry, but I cannot attend–I will be in Australia on that date, if necessary.”).  Other Justices had no explanation for their absence.

For what its worth, I tend to agree with those who say that the Justices probably shouldn’t attend the SOTU anyway.  My impression is that the symbolism of the SOTU has actually been turned on its head over time.  Initially, the SOTU seems to have been seen as a summoning by the Congress to the President to appear and make himself accountable–thus it was in some sense an assertion of Congressional supremacy over the President.  Which might explain why Presidents historically refused to appear in person.  Nowadays I think it is perceived the other way around–Congress is a stage for the President to tell Congress what he wants them to do.  In that sense it is much more like an assertion of the supremacy of the President over Congress.  When the Justices show up, they are essentially putting themselves in the position of being props in this presidential show, which I think is demeaning to the judiciary’s status as a co-equal branch.

Having said that, I think it is absolutely the right of the Executive Branch to criticize the Judiciary.  The Judiciary claims the right to criticize the Executive Branch all the time when it overturns criminal convictions or administrative rulings.  And I don’t think it would be out of line at all for a President to say that he thinks that Roe v. Wade should be overturned, for example, or to criticize a Court’s ruling in a terrorism case.  Obviously there are issues of tone and style, and perhaps some think that President Obama could have stated the matter more respectfully, but that’s an issue of decorum in my view, not a serious issue of comity.

So, for example, if the Justices did boycott the 2000 SOTU to send a message to Clinton and other judges, then I say first, “Bravo!” and second, maybe that sort of subtle but symbolic message is the most powerful message of all.

Notice and Order Regarding Motions to Lift Stay
______________________________________________________________________________
The Attorney who signs a Motion to Lift Stay must personally appear in Court at all hearings
relating to the motion unless an agreed order has been filed with the Clerk of Court at least two
(2) business days prior to the scheduled hearing. The attorney who signs the motion may not
send another attorney in lieu of appearing personally. Sanctions may be imposed for failure to
personally appear.

I assume that his objective is to make sure that the lawyers who show up for hearings know about the cases in which they are appearing.  But requiring the lawyer who signed the motion doesn’t ensure that: just because the lawyer signed the motion doesn’t mean he’ll be more prepared for oral argument.  Moreover, why does the judge believe that the more knowledgeable lawyer would sign the motion rather than showing up to argue?  What if the more-prepared lawyer is sick the day the motion is signed?  Or argued?  More generally, surely there are more direct ways of policing unprepared lawyers than requiring the lawyer who signed the motion to show up.  What if the lawyer has an emergency the day of the hearing–he really can’t send one of his colleagues to appear?

I’ve never heard of anything like this before and it is hard for me to follow how this makes sense.

In looking back over my choices, one thing seems clear–nobody is likely to accuse me of being a “film snob.”

Common law, of which agency and trust are critical components, is the bedrock upon which all our statutory and regulatory edifices are constructed. Unfortunately, the old required courses in the law—the courses necessary to master the law’s basic anatomy—have largely been crowded out by courses about the law. Almost every self-respecting law professor is now an amateur sociologist engaged in “ground-breaking” and “cutting-edge” scholarship that has a gender, race, or sexual identity hook. Those who are less sociologically inclined are likely preoccupied with some ultra-technical aspect of the Constitution, some piece of legislation, or a regulation. Many professors manage to cobble together entire courses around their preoccupations.

In short, professors mainly teach what they want to teach, which does not overlap much with what prospective lawyers need to know in order to sort out the rights, duties and obligations of parties. Even a negotiation, mediation, or arbitration requires a context, which the core curriculum was designed to supply. Instead, law students at great expense are getting little more than bad sociology.

Professional schools need to strike a balance between book-learning and real-world experience. The American law school now deserves failing grades in both departments.

I’m guessing his critique will resonate with some and infuriate others!

I know little about Strauss and the Straussians (although, as the expression goes, some of my best friends are Straussians).  But I have long been interested in Strauss from an outsider’s perspective.  One of my favorite professors in college (Roger Masters) was a Straussian.  I learned an awful lot from him (especially on how to read critically).  I rarely agreed with him, perhaps because I am an enthusiast for modernity (see Rappaport’s summary above).

Now maybe someone can explain to me the disagreements among the Austrian economists, the Objectivists, and the People’s Front of Judea (versus the Popular People’s Front) then I will have all wisdom.  On second thought...

Reviewing my answers, one thing is clear: I don’t think that anyone will ever accuse me of being a film snob.

This is an issue that I worked on extensively while I was at the FTC, so I have some familiarity with how outrageous some of these settlements are and how important work like Ted’s is in protecting consumers.  In particular, what I became aware of is how many of these lawsuits are essentially settled in a collusive bargain between class counsel and the defendant.  Usually the defendant pays a couple million dollars to the lawyers and gives coupons or some similar redress to the members of the class.  In one case a judge noted that the coupons–which allowed class members to get discounts on future purchases–essentially amounted to a request for a court-ordered promotional scheme.  An example (in a case well after I left the Commission) was the FTC’s intervention in the Netflix settlement.

Ted is taking this on.  Here’s an example of one of the settlements to which he has filed an objection.

Here’s a profile of Ted’s activity on this front from a few years ago, when he was doing it as a side activity.  And here’s his license plate.

The symposium will take place on Tuesday and Wednesday, December 8 and 9.

• Omri Ben-Shahar (University of Chicago Law School)
• Tom Brown (O’Melveney & Myers)
• Bob Chakravorti (Federal Reserve Bank of Chicago)
• Richard Epstein (University of Chicago and NYU Law Schools)
• Joshua Gans (University of Melbourne Business School)
• Ron Mann (Columbia University Law School)
• Geoffrey Manne (International Center for Law & Economics and Lewis & Clark Law School)
• Tim Muris (George Mason University School of Law and O’Melveney & Myers)
• Allan Shampine (Compass/Lexecon)
• Bob Stillman (CRA International)
• James Van Dyke (Javelin Strategy & Research)
• Joshua Wright (George Mason University School of Law)
• Todd Zywicki (George Mason University School of Law)

Thanks to my friend Geoffrey Manne for organizing the program and inviting me to participate.  Check it out beginning tomorrow.

I’m on FREE’s prgram advisory committee and one thing we were conscious of is trying to schedule the timing of the program to minimize interference with summer associate positions and other opportunities.

Whoops, I forgot to mention that the dates are May 23–27, 2010.  FREE will pay for expenses at the conference (meals and lodging) and a $300 travel reimbursement.

The current case, like the previous case, arises from the 1891 Agreement between the Dartmouth Trustees and the alumni of the College, acting through the Association of Alumni, that gave the alumni the right to elect half of the non-ex officio members of the Board of Trustees.  At the time, the Board was comprised of 12 members, of which 2 served ex officio (the Governor of New Hampshire and the Dartmouth president).  Upon striking the agreement, over the next two years, 5 of the appointed trustees resigned and were replaced with elected trustees.  Over time, the size of the board expanded, and by the time I was elected a trustee in 2005 there were 8 elected Alumni Trustees, 8 appointed Charter Trustees, and the Governor and College president as ex officio members.  As I have discussed in detail elsewhere, the 1891 Agreement was the culmination of decades of negotiations between the trustees and college administration on one hand and the alumni on the other.

In 2007 after a string of petition trustees were elected to the Board, a majority of trustees voted to impose a board-packing plan, which added 8 new appointed seats to the board, making 16 appointed and 8 elected trustees.  I won’t rehash that here, except to point interested readers to my earlier discussions as well as the Court’s excellent opinion which held that the plaintiffs in that case stated valid claims both on contract and promissory estoppel theories.  Importantly, the Court also held that the Association of Alumni had standing to sue and capacity to contract in that case, as well as to provide valid consideration, such as administering the Alumni Trustee elections.  For purposes of analysis on the current summary judgment motion, I am going to take it as given that the underlying contract claim is valid.

In Spring 2008, however, the alumni leaders who brought the suit had to stand for reelection and were voted out of office.  The winning slate of alumni loyal to the trustees and administration dismissed the suit.  Their campaign position had been that the alumni should have “negotiated” more with the trustees before bringing suit.  As the current plaintiffs note in their most recent brief, it thus came as quite a surprise when the suit was dismissed with prejudice, with the deliberate intent to try to foreclose a future lawsuit if negotiations broke down (it doesn’t actually work, as will be discussed below).  After all I’ve seen over the past few years, I thought that I was beyond being shocked by the sort of behavior described in the plaintiffs’ brief, but I confess that this surprised even me.  The College has not contested any of the claims in the briefs of the current plaintiffs with respect to the collusive behavior of the AoA leadership in settling the prior case.  Read the first 10 pages of so of the plaintiffs’ brief if you want to get a flavor of what happened.

I note in passing that almost two years have now gone by since the loyalist slate was elected.  Since that time, the trustees have never for a single moment ever suggested that they intend to back off from the board-packing plan, either publicly or privately.  It was, to put the matter gently, an unorthodox negotiating tactic for the newly-elected members of the AoA Ex Comm to immediately surrender its only bargaining chip (the right to sue to enforce parity).  This was a curious negotiating strategy, especially in light of the fact that the president of the Association of Alumni (John Mathias) is a lawyer.  The trustees, for their part, simply treated the matter as closed.  I’m afraid that to the extent that the current leaders of the AoA continue to state that the trustees are open to negotiation on this point, either they are exceedingly gullible or they think that the alumni are exceedingly gullible to believe them.  To their credit, the trustees have never even suggested for a moment that they are open to reconsideration, so the confusion is solely on the side of the alumni association leaders.

But last year a group of 7 alumni brought a new lawsuit as individual alumni to enforce the 1891 Agreement.  They claim that they were direct beneficiaries and third-party beneficiaries.  As I see the case, the core claim is that they are third-party beneficiaries of the 1891 Agreement and have the right to enforce the contractual promise of parity in the 1891 Agreement.  Dartmouth has filed a motion for summary judgment.  Reading all of the briefs (including one that I submitted focusing on the public policy questions raised by the case), if the judge applies the law correctly to the case, the plaintiffs should prevail on the summary judgment motion (and eventually will prevail in the case).  I’ve been teaching Contracts now for over a decade and this is the strongest third-party beneficiary case that I’ve ever seen.  In talking to one of my colleagues who also teaches Contracts, he accurately referred to this case as having “casebook quality facts” in terms of illustrating the doctrine of third-party beneficiaries.  Moreover, given the high quality of Judge Vaughan’s opinion in the first case, he is likely going to get this right.

Once understood, the plaintiffs’ case is simple and compelling.  The key to understanding why the 7 individual alumni plaintiffs are valid third-party beneficiaries is that they are organized for these purposes through the Association of Alumni, which is an unincorporated association.  In the first case, this legal status as an unincorporated association meant that the plaintiffs (which were the elected leaders of the AoA in that case) had to show that they had capacity to contract and to enforce the contract.  The Court held, correctly, that they did.  And the AoA itself provided consideration when it agreed, for example, to administer the elections of Alumni Trustees.

From this standpoint, the current case is actually much easier on this point.  It is precisely because the AoA is an unincorporated association that the 7 current plaintiffs can enforce the contract.  Because it is not a corporate entity, the AoA is fundamentally a collection of its individual members.  It exists on behalf of and to further the interests of its individual members not itself in a corporate capacity.  Thus, the entire purpose of the 1891 Agreement was to benefit the individual members of the AoA, not to benefit the AoA itself. It is each individual alumnus who is the beneficiary of the contract by given the right to vote for Alumni Trustees to comprise half of the Board.  The AoA doesn’t benefit–each alumnus benefits by having the right to vote.  The AoA is simply an instrumentality that is chosen for the alumni to administer their substantive rights under the agreement.  The AoA itself has no obvious rights as a corporate entity independent of the aggregate individual rights that comprise the Association.

Once the nature of the AoA as an unincorporated entity is understood, the case is an easy one to show that there is are viable third-party beneficiary claims that easily survive summary judgment.

There are two types of third-party beneficiaries: intended beneficiaries and beneficiaries by estoppel.  Dartmouth’s Motion for Summary Judgment fails on both counts in the current case.

Intended beneficiary: As noted above, the purpose of the 1891 Agreement was to provide a benefit to individual Dartmouth alumni by giving them the right to vote for half of the non-ex officio Trustees.  It turns out that this had a lot of other benefits (as I discuss in my brief), but that’s the essence of the deal.  As noted, this flows directly from the fact that the AoA is an unincorporated association–the whole contract makes sense when understood as being designed to benefit all of the individual alumni as intended beneficiaries (either directly or as third-party beneficiaries) rather than the AoA.  This is what my colleague had in mind in referring to this as casebook quality facts–if one wanted to design a contract with an intended third-party beneficiary, this is what it would look like.  (I note that for similar reasons the plaintiffs might also be direct beneficiaries, but I don’t think it is necessary to discuss that given how compelling the intended beneficiary claim is).

Beneficiary by Estoppel: The plaintiffs also argue that they are beneficiaries by estoppel.  This is just promissory estoppel where the reasonable reliance is by a third party.  The plaintiffs submitted an Affidavit by Dr. John Steel, a former petition trustee, who states that he relied on the 1891 Agreement in a number of ways over the years.  At the Summary Judgment stage the Court takes Steel’s claims as true for purposes of establishing whether there a contested issue of material fact.  Steel’s Affidavit certainly states reliance and any claim that he did not in fact rely would have to be an issue of credibility for trial that can’t be decided on the pleadings.  Moreover, given that the underlying Agreement was a valid contract and Dartmouth through its actions repeatedly ratified and reaffirmed the promise of parity in the 1891 Agreement, I don’t see how it could be argued that Steel’s as a matter of law Steel’s reliance was not reasonable.

So on the core third-party beneficiary claims in the case, the plaintiffs should win.  Indeed, this is pretty much hornbook law in this case.  The purpose of the contract was to benefit alumni as a class of third-party beneficiaries.  Moreover, at least one plaintiff has stated a claim as being a beneficiary by estoppel based on reasonable reliance on the contract, a question that cannot be resolved by summary judgment.

There are two other issues in the case that are quite straightforward and that I think require little discussion.

Res judicata: The first is the claim that this case is barred by res judicata from the first case being dismissed with prejudice.  The plaintiffs’ brief dispatches of this pretty easily.  First, the facts provided by the plaintiffs show that the first settled through extreme collusion between the plaintiffs and defendants (again, you have to read the brief to be able to believe this).  After the loyalist slate was elected, they entered into secret negotiations to settle the case.  The defendants even paid for the plaintiffs new lawyers to settle the case.  David Spalding, a Vice-President of Dartmouth, was also a participant on the plaintiffs’ side as the Secretary of the AoA.  Again, it is well-established law that where the plaintiff and defendant collude in a settlement, then they are not adverse parties for purposes of a judgment on the merits, which is what is necessary for res judicata to apply.  Thus, even if res judicata would be the basic rule, there is an exception here.

Second, there has to be an identity of parties.  Dartmouth claims that both cases were “controlled” by the Hanover Institute, a 501(c)(3) organization.  This doesn’t work for a couple of reasons.  First, when the loyalist slate decided to settle the case, quite obviously they were not operating under the control of the Hanover Institute.  Second, the Hanover Institute was not a plaintiff in either case and simply raised money for the lawsuits.  Which means that the plaintiffs could simply get a new “banker” and res judicata wouldn’t apply, which shows that the Hanover Institute isn’t the real party in interest, but in fact it is the individual plaintiffs.

So Dartmouth’s res judicata arguments are weak.

Finally, there is the question as to whether these plaintiffs have standing to sue as third-party beneficiaries.  Of course they do.  It is again hornbook law that if a party is a third-party beneficiary then that party has standing to sue to enforce its rights.  Where there is a third-party beneficiary, the standard rule is that duty can run to either the promisee or the third-paty beneficiary and either the promisee or the third-party has standing to sue to enforce the promise (Restatement (2d) section 305).  This is especially clear where the remedy being sought is specific performance, as is the case here (Restatement (2d) section 307).  So even if we assume for the sake of argument that the AoA was the promisee under the 1891 Agreement (as suggested above, a case could be made that in fact the individual alumni were actually the promisees and not third-party beneficiaries), individual alumni were quite obviously the intended beneficiaries of the agreement and have standing to sue.  As stated in the case (Hamill v. Maryland Casualty) that is in the casebook from which I teach, “It has been said that so long as the contract necessarily and directly benefits the third party, he may enforce it.”

But even if the individual alumni were considered for some reason to be incidental beneficiaries rather than intended beneficiaries they would probably still have standing to sue.  There is a longstanding rule that permits even incidental beneficiaries to sue if there is an inability of the promisee to enforce the right (such as because of death or disability) or an “outright refusal” of the promisee to enforce the rights.  This traditionally has arisen in the context of child support obligations where the right runs to the custodial parent, not to the children who are incidental beneficiaries.  But where the parent is unable or unwilling to enforce the child support agreement, the children have been given standing to do so.  The reason for the rule, and the exception, are both pretty obvious.  The reason for the rule is that the parent is assumed to have the child’s best interest at heart and the parent has her own incentive to enforce the contract.  Thus it is unnecessary to give the child the right to enforce the claim directly, which could give rise to redundant claims.  But the justification for the exception is obvious as well–where the parent is essentially a disloyal agent who is not acting in the best interests of the child, then the child has the right to sue to enforce the obligation.  That is essentially the case here with the unequivocal refusal of the leaders of the Association of Alumni to enforce the rights of the alumni under the 1891 Agreement.

In short, if the AoA’s leaders want to get rid of parity then they have to do it through an amendment to the AoA’s constitution.  A poll taken around the time of the board-packing plan found that 90%-plus of alumni supported the continuance of parity.  The AoA’s leaders can’t do it through a stealth, back-door process of engaging in a collusive bargain with a majority of the trustees to simply refuse to enforce the rights embodied in the 1891 Agreement.

In short, the Court in this case should deny Dartmouth’s summary judgment motion.  In fact, I think the issues in the current case may be even easier than the issues in the last case (which required a pretty sophisticated understanding of the nature of consideration and promissory estoppel).  Because of the AoA’s status as an unincorporated association, the most natural understanding of the 1891 Agreement was to make individual alumni the direct and/or third-party beneficiaries of the 1891 Agreement of giving them the right to elect half of Dartmouth’s Trustees.  And, if so, they plainly have the right to sue to enforce it.  Given that Judge Vaughan got the last case right, I expect he’ll probably get this case right too.

At that point President Kim and the majority of the trustees are going to have to figure out how much more of the alumni’s donated money they are going to continue to squander on their project to disenfranchise the alumni–and I would hope at some point the alumni would start asking questions about whether this is why they donate to the College.

Let me stress in closing that this is just my personal analysis of the case based on my years teaching and reading about Contracts.  I haven’t consulted with the lawyers for the plaintiffs.  These views are mine alone and should not be attributed to the lawyers for the plaintiffs or to anyone else.  Finally, this is obviously a blog post and not a brief so I haven’t provided chapter and verse for every argument here nor have I taken care to make sure that my language might be as precise as in a brief.  But I’ve been teaching Contracts for a long time and this is pretty basic stuff.

Ed’s conclusion:

My overall take on American Original is decidedly mixed.  On the positive side:  The book is well written, much more so than I expected from my occasional encounters with Biskupic’s reporting.  It is also in many places more evenhanded than I expected.  And I found the first four chapters particularly interesting.

I’ll flesh out the negative side in my posts to come, but here’s an overview:  Consistent with her reductionist depiction of judging as politics, Biskupic does not engage well with Scalia’s ideas about judging.  In particular, I doubt that any reader will come away from the book understanding what Scalia’s original-meaning methodology is, much less his stated reasons for believing that it’s the correct interpretive methodology.  Far from grappling with Scalia’s jurisprudential ideas, Biskupic resorts to flawed and simplistic accounts.  Worse, she misrepresents Scalia’s positions and statements on a variety of matters—always to his detriment.  In sum, although she may well have, as she says (p. 415), “worked hard to be both fair to him and true to the readers of this book,” she has fallen well short of those goals.

Ed’s review reminds me again of why I so admired Jan Crawford Greenburg’s book Supreme Conflict–I was impressed by Greenburg’s effort to really understand conservative judicial philosophy and their effort to distinguish law from policy and politics.  Some may criticize them as failing to live up to this purported goal, but I think that Greenburg’s sense of what animates the debates within the conservative legal movement is correct and that she does describe those debates fairly, even if she doesn’t agree with them (which, to her credit as a journalist, I had no idea after reading the book whether she was actually sympathetic or hostile to conservative legal theories).

Overall, I thought it a pretty interesting insight into the issue.  But that’s not what I’m concerned about here.  What I thought was interesting about it was what an example it provides about the difficulty that people often have in understanding how markets work.  The author, Atul Gawande, is a doctor, not an economist.  At the end of the article he turns to proposals for reform.  And he has this discussion with a doctor:

The third class of health-cost proposals, I explained, would push people to use medical savings accounts and hold high-deductible insurance policies: “They’d have more of their own money on the line, and that’d drive them to bargain with you and other surgeons, right?”

He gave me a quizzical look. We tried to imagine the scenario. A cardiologist tells an elderly woman that she needs bypass surgery and has Dr. Dyke see her. They discuss the blockages in her heart, the operation, the risks. And now they’re supposed to haggle over the price as if he were selling a rug in a souk? “I’ll do three vessels for thirty thousand, but if you take four I’ll throw in an extra night in the I.C.U.”—that sort of thing? Dyke shook his head. “Who comes up with this stuff?” he asked. “Any plan that relies on the sheep to negotiate with the wolves is doomed to failure.”

Be that as it may, Wright has proposed that the issue be settled on the field of battle–through a wager!  Here’s Wright’s wager (the stakes are undefined at this point):

The CFPA Act’s supporters have fought vigorously for this piece of legislation.  Professor Levitin appears quite confident that our analysis represents a “scare statistic” meant to avoid rigorous cost-benefit analysis and to ignore precision.   Of course, we find this line of attack ironic in light of the complete absence of empirical evidence in favor of the CFPA Act mustered up by its supporters.  More generally, we’d like to offer Professor Levitin the opportunity to prove that he means what he says about our overestimate of the lower bound of the impact of the CFPA Act on consumer credit and about the beneficial effects of the CFPA Act more generally.  We are economists.  And so we also believe in the power of revealed preferences.  We stand by our estimate of the lower bound at 2.1 percent.  If Professor Levitin is correct that is a ‘scare statistic’ that we’ve inflated from the true number, we would like to provide an opportunity for Professor Levitin to profit from our misguided approach and to test whether he really believes that the effect on consumer credit will be smaller than that.

We propose the following wager to Professor Levitin:

If the effect on consumer credit is less than 2.1 percent, you win and we lose

If and when the CFPA Act is passed, there will be ample data to test the impact of the CFPA on consumer credit directly.  We’re happy to negotiate what methods should be used to calculate the number to both of our satisfaction.  We’re also happy to let you name the stakes.  But let’s make it interesting.  If it’s good enough for Mankiw and Krugman, it’s good enough for us.  What do you say?

I wish that wagers such as this would become more common.  The most famous was probably the Simon-Ehrlich wager.

Back during the debates over the 2005 bankruptcy reform act I wish that I had thought to make a wager on whether bankruptcy filings would decline following the reform.  Critics argued that filings would stay the same because bankruptcy filings are largely involuntary (so consumers don’t respond to incentives) or even that bankruptcy filings would rise because credit card issuers would expand credit supply and lending to riskier borrowers.  I think a well-specified wager (as is the Wright challenge) is an excellent way of seeing how much people believe their claims as opposed to just making rhetorical arguments.