April 30, 2004

Rhythm and melody

It's method on the edge of madness
It's a balance on the edge of a knife
It's a smile on the edge of sadness
It's a dance on the edge of life

--Rush, "Out of the Cradle" (2002)

Most of the best pieces of music are symbiotic unions of rhythm and melody--the whole is often greater than the sum of its parts.

Lying underneath and tying everything together is the rhythm, which moves the piece inexorably forward without letting anything fall off the wagon to lose itself on its own. Tethered by the rhythm and drawing energy from its momentum, the melody plays on the surface and makes everything beautiful. The rhythm provides the inexorable; the melody provides the surprise. Rhythm is the power; melody is the play. Rhythm is the depths and melody the heights.

Music isn't the only thing uniting rhythm and melody. Good relationships do this too. One person can play riffs off the other one if it's working right. Then they can trade roles, to show each other what they can do. The whole damned dozen adds up to thirteen.

Does anything else partake of both? I think good arguments do. The best ones are unions of hard-driving power and agile maneuvering. Dazzle them with speed and then flatten them with power.

(Take that, bitchez!)

Posted by Carey at 08:12 PM | Comments (0)

Poem on my blog

Will and Heidi are observing "poem on your blog day" as a way of finishing off National Poetry Month. (I appear to have mistaken it for "national hockey-watching month.")

Anyway, I like the old romantic poets: Keats, Tennyson, people like that. They do such great nature poems. Here's Ode to Autumn, by John Keats:

Season of mists and mellow fruitfulness,
Close bosom-friend of the maturing sun;
Conspiring with him how to load and bless
With fruit the vines that round the thatch-eaves run;
To bend with apples the mossed cottage-trees,
And fill all fruit with ripeness to the core;
To swell the gourd, and plump the hazel shells
With a sweet kernel; to set budding more,
And still more, later flowers for the bees,
Until they think warm days will never cease,
For Summer has o'er-brimmed their clammy cell.

Who hath not seen thee oft amid thy store?
Sometimes whoever seeks abroad may find
Thee sitting careless on a granary floor,
Thy hair soft-lifted by the winnowing wind;
Or on a half-reaped furrow sound asleep,
Drowsed with the fume of poppies, while thy hook
Spares the next swath and all its twined flowers;
And sometimes like a gleaner thou dost keep
Steady thy laden head across a brook;
Or by a cider-press, with patient look,
Thou watchest the last oozings, hours by hours.

Where are the songs of Spring? Ay, where are they?
Think not of them, thou hast thy music too,---
While barred clouds bloom the soft-dying day,
And touch the stubble-plains with rosy hue;
Then in a wailful choir, the small gnats mourn
Among the river sallows, borne aloft
Or sinking as the light wind lives or dies;
And full-grown lambs loud bleat from hilly bourn;
Hedge-crickets sing; and now with treble soft
The redbreast whistles from a garden-croft,
And gathering swallows twitter in the skies.

Posted by Carey at 01:53 PM | Comments (2)

April 28, 2004

Making fun of Arkansas

Throughout the semester, our property class made fun of Arkansas for failing to abolish the Rule in Shelley's Case. Those people in Arkansas were so backward!

Well, now that I'm done with my property final--and have no reason whatsoever to care about the Rule in Shelley's Case ever again--I've gone and found this (second one down).

No more making fun of Arkansas.

Posted by Carey at 12:02 PM | Comments (2)

April 24, 2004

Starbucks everywhere

Thanks to this guy, I can show you some of the Starbucks locations that hold special memories for me.

This one, for whiling away the morning just before I came to law school.

This one, for grabbing a coffee at 5:30 am as I headed in to the hospital on my third-year ob/gyn rotation in medical school.

And this one, where I procrastinated most of this afternoon away...

(Thanks to Monica.)

Posted by Carey at 08:55 PM | Comments (1)

Whom should we not trust?

The debate over the prisoners at Guantanamo seems sometimes to turn on whom you trust the least: George W. Bush, or the Supreme Court.

Posted by Carey at 08:21 PM | Comments (0)

Mowing with baby

When you're sitting in front of your computer, pretending to be writing a paper even though you've run out of ideas and need to take a break, you sometimes notice things that you wouldn't notice otherwise.

Maybe it's your brain trying desperately to focus on something else. Trying to let you know it's time to pack it in.

This morning, I was staring out the window when I noticed a white male in his 30s who appeared to be pushing a lawnmower back and forth across the concrete courtyard behind the graduate library. Thinking that this would be a bizarre thing to do, I looked closer-- no, it wasn't a lawnmower. It was a baby stroller. He was pushing this baby stroller back and forth across the courtyard with the same kind of purposeful, task-oriented stride that people usually employ when mowing their lawn. "Only a few more lengths of this yard, and I'll be done."

There was a small child in the stroller, so it wasn't as bizarre as it could have been. But my mind wandered, and I imagined the conversation he'd just had with Mom:
"It's your turn to walk the baby."
"Yes, dear. I'll get it done as soon as I can, and then will you please leave me alone so I can watch the hockey game on TV?"

Definitely time to take a break.

Posted by Carey at 07:49 PM | Comments (1)

April 22, 2004

Anti-immigration candidates defeated

Members of the Sierra Club have rejected a slate of candidates for the Club's board who had been characterized as "outsiders" and who had been criticized for their anti-immigration views. Among the defeated candidates was the former Governor of Colorado, Richard D. Lamm.

This result shows that the advocates of restricting immigration haven't made much headway in persuading environmentalist liberals of their ideas. Why is this?

Perhaps the most important reason is that the loudest voices opposing immigration are those of far-right politicians like Representative Tom Tancredo (R, Colorado). Mr. Tancredo praises almost everything George W. Bush does, except of course for his "amnesty" program for illegal Mexican workers.

More importantly, though, the non-uberpatriot advocates of restrictions on immigration simply haven't made their case well enough. Which is too bad, because they do have a case. They've failed to explain how restricting immigration isn't the same thing as restricting the freedom to travel. They've failed to put forth any convincing arguments for why denying citizenship is different from callously denying poverty-stricken immigrants the vital opportunity to rise out of poverty and misery.

I personally do not favor the harsh immigration restrictions advocated by people like Rep. Tancredo. But I recognize an intuitive sense that handing out citizenship without any restrictions whatsoever would not be a good idea.

I'm counting on other people who know more about this issue than I do to make some non-racist, non-fascist arguments for sensible limits to immigration.

Posted by Carey at 11:36 AM | Comments (3)

April 21, 2004

Are we really "at war?"

Here's a few questions I wish more of my political opponents would ask me:

"What would it take for you to support the Patriot Act?" "How threatened would the country have to be before you'd start trusting Bush to set things right without aggressive oversight?"

These questions would seem to pin me to the wall. Surely there must be some conceivable scenario in which I would acknowledge that our government needed to be freed up to fight the enemies of our nation as it sees fit.

There is, indeed, such a scenario. A whole lot of them, actually. But we're a long, long way from any of them.

The problem with the arguments made by folks like Eugene Volokh (which are otherwise quite good) is that they take it for granted that we're somehow "at war." Sure, George W. Bush has said so. But that's obviously not going to be enough. Proponents of restricting civil liberties have yet to overcome their first burden, which is to explain how September 11, 2001 "changed everything." They assert it without argument, as if it were obvious. I don't think it is.

The first problem for those who claim that we're at war is that their definition of war doesn't allow for the possibility of peace. If we're at war now, then we've always been at war, and we always will be. This is true for more than just the tired (but still impeccably correct) reason that we can't really tell when a war on a concept begins and ends. If we're at war with "terrorism" then when did this war start? Surely it didn't start with September 11. Did it start with the bombing of the Cole? The Oklahoma City bombing? The bombing of the Atlanta Olympics? The bombing in Chicago's Haymarket Square?

September 11 was tragic, but it wasn't fundamentally different from what had come before. It was a successful terrorist attack. But it didn't tell us anything different from what we'd known already. There are fanatics out there in the Middle East (and in Oklahoma and Montana) who hate our government and are trying to kill Americans to advance their cause. There always have been terrorists somewhere, and they've always been able to launch successful attacks.

The success of the 9-11 terrorists was rare, but it wasn't enough to convert the previously existing state of peacetime into a state of wartime. Or, if it was, the advocates of curtailing our civil liberties have not explained how. Was it the number of deaths? The fact that it was seen by everyone on TV?

The second problem for those who say we're at war is that they haven't adequately explained why this war seems so different from other wars. "Wartime" has historically meant a time where personal sacrifice was necessary. WWII required rationing and the employment of women. The Civil War meant brother fighting brother. The Revolutionary War meant the quartering of soldiers. War, in other words, has historically meant the mobilization of society. The more modern the war, the more it required a total commitment to fight. In this most modern war, the only thing we've ever been asked to sacrifice is our civil liberties. (Leaving aside the sacrifice of lives in our invasion of Iraq, which opens up a whole new can of worms when we ask whether this was part of the same war that supposedly justifies the Patriot Act.)

Paradoxically, the paucity of the government's call for sacrifices makes the isolated sacrifices they do request seem suspect. Why sacrifice our civil liberties, and only our civil liberties?

It's not as if the Bush administration doesn't acknowledge the differences between this supposed war and all other wars we've known. They act as if simply repeating the statement that "this war is different" will somehow explain how it is different. But repetition isn't a good enough explanation.

Could it be that a better explanation is that we're not at war at all? That the government simply wants to recalibrate the balance between civil liberties and the power of law enforcement in favor of more law enforcement? And that it's throwing around the word "wartime" as a convenient, but false, reason for what they're doing?

I'll tell you what it would take for me to support the Patriot Act, and to trust the Bush administration with a blank check. A real war. A sustained attack by an enemy powerful enough to conquer us, and deprive us of the political system which truly preserves our freedom and allows us to pursue satisfying and productive lives. If, for example, the Saudi Arabian or Chinese governments attacked us.

Another way I might be persuaded to support the Patriot Act would be if any of its supporters could argue persuasively that it was necessary, not merely to make us safer, but to preserve our freedoms in the long run. Civil liberties aren't free. The price for civil liberties is the greater risk of crime, and for the occasionally successful terrorist attack. But it's a price worth paying, in my opinion. I don't envy all those "safe" people living in Singapore.

The most effective response to the risk of hijacked planes, it seems to me, was always a locked door to the pilot's cabin that stayed locked during the flight. Giving the government the ability to search my library records without informing me seems much less effective.

Posted by Carey at 10:21 PM | Comments (2)

April 20, 2004

Two words: law. lessness.

The Bush administration will argue before the Supreme Court today that American courts have no jurisdiction over the incarceration of foreign nationals held in prison camps at Guantanamo Bay.

The Bush Justice Department will base its arguments on technicalities--that Guantanamo is not US soil--and on an odd political theory which boils down to this: "unless we, the crackpot politicians and extremist neoconservative hacks who brought you such peace of mind in places like Iraq, are able to act without any oversight whatsoever, America's very existence will be placed at risk."

Have the terrorists won already?

Are only a few successful attacks enough to cause America to abandon the rule of law, in exchange for an overweening deference to a strongman President who soothes our fears by relieving us of our responsibilities? How committed are we, really, to the rule of law? To democracy? How courageous are we, really?

We acted from fear when we gave Bush a free hand to invade Iraq. Fear was responsible for the eagerness of Congress to give Bush greater domestic surveillance powers under the Patriot Act. Fear is behind our unwillingness to hold Bush accountable for his detention of prisoners on Guantanamo.

We hear a lot about courage, but we haven't been demonstrating much of it lately. Hopefully the Supreme Court will start to calm things down by ruling against the Administration in these war-on-terrorism cases. We can and should act to defend ourselves from terrorists, but this does not mean that we ought to sacrifice our commitments to the things that make us different from terrorists. We supposedly hold values that extend beyond just "achieving our objectives." We recognize the value of restraint; of leadership by persuasion and by example rather than by force alone; of rationality in the face of threats, rather than reflexive and fear-driven retaliation; of democracy as a strong and vibrant thing, rather than a vulnerability that should be sacrificed at once to keep us safe.

The Bush Administration has been advocating too many of these latter alternatives and too few of the former. Not only should the Supreme Court rule against the Administration in these cases before it, the American people should rule against Bush in the upcoming election before them.

Posted by Carey at 08:52 AM | Comments (8)

April 17, 2004

Avs win!

The Avalanche have sent the Stars to the golf course. Too bad I couldn't watch it.

The problem with being in Ann Arbor is that when ABC has the games, they always show the Red Wings in this region. Bah! As if everyone in Ann Arbor was a Wings fan!

Posted by Carey at 10:12 PM | Comments (6)

April 16, 2004

"I'm good at this!" (or not)

I'll bet William Safire wishes he could take this one back (see Prediction #9).

Posted by Carey at 02:03 PM | Comments (0)

April 15, 2004

Love, friends, and pills

Seems like love and friends are good for heart attack victims. They're kind of like a new, effective pill developed by, say, Pfizer.

So who, I wonder, will pay for them? Love is cheap, but friends cost a lot.

Posted by Carey at 08:49 AM | Comments (1)

Glorfindel feels guilty (or not)

Me: Here's my written assignment.

Lady in office: Oh. Well. Did you know that your partner had already turned in a report for both of you?

Me: Oh. Well. That's interesting. But it's ok, I'm sure his report is good.

Bureaucrat (sitting in the back of the office and eavesdropping): Did you not get the email from the professor about turning in only one report per group, or did you just fail to read the email???

Me (thinking): "Oh! No! You caught me! I'll just castrate myself right here for my evil sins, and spill my blood in penance! Where's that hairshirt, anyway???

Posted by Carey at 08:32 AM | Comments (0)

April 14, 2004

I blogged this instead of watching hockey?

I've given the question of corporate wrongdoing, as carried on between myself and Ben from That's News to Me, some (ok, downright perfunctory) thought.

It seems that the most productive next step is simply to try to clarify what the issues are, and then decide if any are worth the blog-time to pursue further.

My concern is with the harm that often results from the "actions" of corporations. The scare quotes are necessary because I agree with Professor Bainbridge that corporations do not in fact "act" in the same way that individuals do. Specifically, corporations aren't "moral actors" in the way that all individuals are (at least if you subscribe to a belief about morality that says this of individuals). Therefore, when morally condemnable actions are taken by a corporation, it makes no sense to morally condemn the corporation. Far better, as Bainbridge points out, to condemn the directors.

But (and this is the point I was making in my first post), this is easier said than done. Many people fail to pin the responsibility for corporate harm on the directors for several reasons that all relate to the nature of the modern corporate entity.

  1. We fail to recognize that the corporation isn't a moral actor. Instead of blaming the directors of Bristol-Meyers Squibb or Abbott for their unconscionable pricing of Taxol or Norvir, we blame the corporations themselves. This sometimes results in punishment of the corporation (e.g. driving Arthur Anderson into bankruptcy and putting many rank-and-file employees out of work) and the failure to punish the individual executives responsible for the decisions.
  2. We confuse the moral criteria which apply to a corporation (maximize profit for shareholders within the law) with the moral criteria which apply to the individuals who serve as directors. We say, mistakenly, that these individuals have no moral obligations other than to maximize shareholder profit within the law. But this is plainly wrong; no one really thinks a person's moral obligations are exhausted by their job descriptions.
  3. To the extent that a corporate director can be fired for failing to maximize returns because she thought doing so in a particular instance was immoral, the corporate structure incentivizes (to use an ugly word) the commission of immoral acts. So long as they are technically legal, do them even if you think they're immoral. Throw into this mix the Posnerian/Holmsian arguments that you should do them even if they're illegal, so long as the monetary liability is less than the profit realized, and we have a dangerous incentive structure.
  4. That this incentive structure is ubiquitous and possibly unavoidable does not make it less dangerous in the case of corporations. Sure, the corner grocer might have a similar incentive structure to maximize profits (with a lesser threat of losing his job if, for moral reasons, he chooses to forego the occasional extra dollar of profit), but the corner grocer has much, much less power to adversely affect the lives of the people around him. If he's a ruthless opportunist, an occasional employee might get fired, or a few aluminum cans might not get recycled. But if the guy who runs Abbot Laboratories behaves in the same way, thousands of AIDS patients suffer (and some die) who wouldn't have had Abbot foregone a few percentage points of profit.
  5. Believers in the "mystic powers" of free enterprise will often say that the pursuit of profit is, virtually by definition, incapable of harming the society in ways that I seem to be afraid of. And this is the scariest thing of all. Sure, these true believers will sometimes even acknowledge the distributional problems (profit for whom?), but they usually go on to assert, without argument, that even the less-advantaged will ultimately be better off. A rising tide lifts all boats. What's good for GM is good for America. The corporation is, for the true believer, the exemplar of their brand of theology. Drug prices too high? They not only aren't, but they can't be, because, by definition, the more profitable the pharmaceutical industry, the more research, and the more research, the more cures, and the more cures, the more happiness. There is no such thing as an unconscionably, immorally large profit. That kind of religious zeal is frightening.

I think I agree with Ben about what constitutes "good" (i.e. effective and legal) corporate governance. This isn't a point of contention. What I'm interested in is the question of whether "good" corporate governance means that many people are at risk of getting hurt, and whether the government should therefore structure the laws and arrange the regulatory schemes to keep this well-governed corporation from hurting people.

I therefore agree with Ben that we ought to control corporations with incentives--i.e. laws and regulatory environments. I'm as pessimistic as Ben is about the feasibility of abandoning regulatory and legal control of corporations for some form of individual scrutiny of the directors. My discussions of the problems of accountability are meant not to support more accountability (nice, but difficult), but to argue for stringent and watchful regulation as a more effective alternative. If I caused confusion about this point, I apologize.

I disagree with Will Baude's suggestion that corporations are not inherently more dangerous than equivalently wealthy individuals. Corporations allow the individuals who decide in their name to hide from view and to disclaim responsibility; they tend to be reified by observers as the "moral actor" when in fact they are not (see Bainbridge's criticism of the LA Times columnist for making this error); and the corporation is "expected" to maximize profit at the expense of all other values in a way that individuals usually are not.

As convenient support for this last claim, I quote Ben:

Once we start with individual punishments, community allegiances, etc, we get into a world where the whole purpose of a corporation is put at risk -- we no longer know what managers should do (obey the law, or listen to shareholders?), what corporations are (entities which are required to obey the law, or a series of contracts, in which case the duty is still to maximize wealth), etc.

Corporations, unlike people, are presumed to have only one purpose. It's revealing that it's an argument against a policy merely to say that this singularity of purpose will be compromised.

Anyway, I've wasted far too much time on this. The Avalanche are in overtime again...

Posted by Carey at 10:32 PM | Comments (0)

April 13, 2004

"common-interest communities"

Ben has posted more of his thoughts on corporations and accountability. As with most posts I enjoy, I agree with some of his points and profoundly disagree with some others.

But my comments will have to wait for a while. I've been wasting too much time reading about the Colorado Avalanche, who were up 3-1 last night and blew a golden opportunity to bury the Dallas Stars in a really deep hole.

I also need to do some reading for Property class about "common-interest communities" (covenant-controlled subdivisions where you can't paint your house pink or park your beautiful primer-gray '78 Chevy Nova on your own driveway).

I think I'm going to call them "icky, sicky, throw-up communities."

Posted by Carey at 08:46 PM | Comments (2)

April 12, 2004

I buried my truffle

Blog readers, like judges, should not be like pigs, hunting for truffles buried in posts (briefs). United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

Readers shouldn't have to hunt for the truffles in a post because most blog readers don't make very good pigs.

I apologize for burying my truffle. Yesterday I posted about corporate obligations. Will Baude noted this response from "Ben," who blogs at That's News to Me. While his post is full of interesting ideas and viewpoints, Ben hasn't rooted up the point of my argument. I apologize for this; my key paragraph should have been at the top of my post, instead of buried in the middle. I'll highlight it here:

What I want to say is that the corporate organization in its current incarnation as a fictive legal entity with rights of speech, ownership, and due process, dangerously obscures the responsibility of the human beings who make decisions in its name.

This proposition is not at all obvious. It is very contestible. That's why I hope that Ben will, if he disagrees with it, produce some arguments against this claim instead of against claims he thinks I've made, but haven't.

For example, Ben writes: "I'd like to know who would volunteer to run a corporation under the Carey-rule of liability for "honest mistakes." I never proposed any "rule of liability." What I said is that the directors of a corporation ought, like all other human beings, to be held accountable for their honest mistakes, and that the corporate structure, like other large organizational structures, often makes this difficult.

There are many ways to hold someone accountable besides exposing them to "massive liability," as Ben seems to have misunderstood me to say. Ben is correct that it would be absurd to hold governmental officials "liable" for every mistake they make; this demonstrates his misunderstanding of my comparison between corporations and government.

Most advocates of accountability in government, including myself, don't advocate for holding public officials liable for honest mistakes. Rather, the usual argument that advocates of accountability make is that the connection between the decision and the person responsible for it should not be obscured. Openness and visibility is itself an effective way of holding people accountable, which is why Dick Cheney-style secret government is a bad thing. But accountability requires more than mere openness. In the case of government, it requires an active electorate who will take note of the behavior of officials and respond to mistakes and misdeeds in whichever way they think is most appropriate. This response can vary from simply noting the mistake and filing it away in memory, to writing a letter expressing disapproval, to voting against an elected official in the next election, to starting an impeachment drive or a campaign to have an appointed official fired. Obviously, the range of responses to misdeeds can be nuanced. Why Ben should think that the only way to hold someone accountable is to expose them to "massive liability" is mystifying.

So I hope Ben will continue the debate. Nothing I actually said is necessarily correct, and some of it might even be silly. But I wish Ben would respond to my actual arguments instead of what he imagines I may have said. Now that I've tried to clarify things a bit, I'm hoping Ben won't have to go hunting for the truffles.

(For more comments on my claims, I refer readers to Anthony Rickey's comment on my original post, and to Heidi Bond's discussion of these issues on her blog.)

Apart from his misunderstanding of what I said, Ben makes an intriguing suggestion:

The interesting question, I think, which Carey takes as a given, is Bainbridge's #3, which insists that directors "act within the law." Frankly, I don't see why they should have to. I think that if society wants to control the corporation's activities, it should do so through the obligation to maximize wealth, not by creating new constituencies (i.e. duties to the community).

Ben promises that more will follow, and I'm looking forward to it. How would social control solely through the obligation to maximize wealth work in practice? This demands further explanation. Most hard-core libertarians wouldn't make this argument, because it's ridiculous. I anxiously look forward to reading what limits Ben would place on this lawless maximization of wealth.

Posted by Carey at 10:12 PM | Comments (3)

Relying on the unreliable

Here at my law school, we have a computerized registration system. The registrar's office maintains that we can go to a website to register for courses; indeed, this is the only way to register here at my law school.

My experience with this Priority Registration System ("PRS") is that it doesn't work. Sometimes, it gives an error message when I try to log in, explaining that "the system is not available" or some such rubbish. More commonly, any attempts to log in simply time out.

It seems that if you go to the Registrar's Office and use the computers there, things work fine. But otherwise, the system is so unreliable that you must plan to go to the registrar's office to register. Most of the advantages of a computerized registration system are nullified by the system's poor performance.

When I add my frustration with this unreliable Web registration system to my frustration with the Law School's decision to run a Novell network application which is incompatible with Mac OS (preventing me from using the network printers) and its decision to use an exam-taking software system (Electronic Bluebook) which requires all laptops to run some version of Windows, I can't help but rate my law school's IT environment as the single worst aspect of being a student here.

(This means, of course, that everything else has been pretty damn good.)

Posted by Carey at 12:03 PM | Comments (4)

April 11, 2004

New blogs on the blogroll

Given all the articulate right-leaning medical bloggers out there, I was glad to find Cameron Page, who spices up the debate a bit. I also discovered a great new Michigan law student blog, written by Aaron Marr Page.

Posted by Carey at 08:39 PM | Comments (0)

Corporate obligations

Professor Bainbridge reminds us, without meaning to, why the modern corporation, unrestrained, is such a threat to civilized and ethical society.

In a post critical of L.A. Times columnist James Flanigan's suggestion (registration) that corporations aren't paying enough in taxes, Bainbridge describes some facts about corporations:

  1. Corporations are not moral actors.
  2. Directors and managers owe duties to shareholders rather than society.
  3. Directors and officers are obliged to maximize shareholder wealth within the law.

Fact #1 reminds us that a corporation is a collection of human beings knit together by legal relationships, and that we make a mistake when we say that this abstract set of relationships itself has moral obligations. Instead, as Bainbridge points out, it's the people who act in the name of the corporation who are morally obligated. "Enron" didn't act; Ken Lay did. Punishing "Enron" is like punishing a concept. (It's like declaring war on "terrorism.")

Facts #2 and #3 simply state the job duties of the director and managers. It's no more surprising that obligations to society aren't included than it would be for these to be included in the job description of a car mechanic or golf pro.

But I'm sure Bainbridge doesn't deny that the people who do these jobs have obligations which go beyond their job descriptions. A human being doesn't stop being a moral actor when she takes the reins of the legal fiction called a corporation. Just like the car mechanic (and even the golf pro), this human being remains constrained by ethical obligations even if the constraints are not imposed on her by her job.

What I want to say is that the corporate organization in its current incarnation as a fictive legal entity with rights of speech, ownership, and due process, dangerously obscures the responsibility of the human beings who make decisions in its name.

This criticism is the same familiar criticism that is often leveled against bureaucracies and governments. There are many reasons why the individuals acting in the name of a large organization escape accountability. The organization can disguise the decisions of the individual and makes these appear to the world as the "acts" of the organization, enabling a miscreant to take advantage of the opportunity to avoid blame for his misdeeds.

The average person (and even some business columnists) can easily make the understandable mistake of attributing a decision claimed to be by "General Motors," to an entity called "General Motors" instead of to its directors. It's a sad fact of human frailty and intellectual limitation, but the sad result is that the human beings running the corporation are too often not held accountable for even their honest mistakes--let alone their calculated misdeeds.

People who call themselves "conservative" know this. They've sharpened their teeth on these arguments for years, but they've always aimed them at the government, bureaucracies, labor unions, and other large organizations with social obligations other than maximizing their profits. Sadly, though, a person of any political stripe who recognizes the importance of personal responsibility shouldn't shy away from crying foul when the organization that discourages accountability is one that Milton Friedman likes.

We want openness in government because we want accountability. Especially when the institution has as much power and as much ability to misuse it as a government. Modern corporations don't quite have the same power as (some) governments, but the danger they pose is great nonetheless. For the sake of that same accountability we treasure so much in government, we should keep the modern corporation tightly under control with iron-clad regulations, and maintain a healthy fear of what can happen when the regulators fall asleep, or are paid to look away.


NOTE: I look forward to reading Bainbridge's defense of corporations in the two papers linked to in his post.

Posted by Carey at 08:27 PM | Comments (2)

April 09, 2004

Tape recording Scalia

Does anyone find it disturbing that Antonin Scalia, Associate Justice of the Supreme Court, Public Servant, and one of the most powerful individuals in America, does not consent to the recording of his public appearances?

Justice Scalia isn't objecting to the paparazzi taping his dinner conversations with his wife at a restaurant. His objections aren't to recording his private statements. He's not objecting to reporters taping his discussions with his law clerks in his chambers, and possibly interfering with the performance of his duties as a Justice.

Justice Scalia objects to reporters taping his public comments, made in his capacity as a Supreme Court justice, to an audience of high school students. Actually, we don't know this with certainty, since the federal marshall who ordered the tapes erased may have been acting more on his own initiative than Scalia's.

In either case, the press should not tolerate this. Scalia's public comments should be fair game.

Howard Bashman has links.

Posted by Carey at 09:32 AM | Comments (12)

April 08, 2004

Whoa, there you are!

About three-fourths of the way through last semester, in about mid-November, I lost my Constitutional Law syllabus. It just up and disappeared on me. I couldn't find it anymore.

I didn't cry; I didn't bitch; I didn't whine. I just copied someone else's syllabus, and went on with my life. Would it surprise you that eventually I just forgot all about my lost Constitutional Law syllabus?

Would it surprise you that three days ago, on April 5, I found it? I was taking a break from reading Contracts in the library. I wandered down one of the aisles filled with old casebooks, noting an interesting one that was exclusively about Remedies, and another that was devoted to Cases on Federal Government Contracts.

And then I saw my old Constitutional Law syllabus, lying there on the shelf, probably untouched since I had browsed this same aisle back in November.

I don't need it anymore. What good is an old Constitutional Law syllabus anyway? But for some reason I'm going to keep it. I lost it, and then I forgot about it and then I found it again. This somehow makes it more important, now, than just any old syllabus.

Posted by Carey at 09:28 PM | Comments (5)

April 07, 2004

Real passion in the blogosphere

I go off to the other side of campus for a few measly hours, and what do I find when I get back?

A delicious, passionate argument about the only subject that seems to inspire this kind of thing these days: law school rankings intelligent design.

Hey, I don't give a rat's ass either way about evolution, but I do love arguments. It's fun to just watch this furious battle. Listen to this rhetoric:

Side A: Although I’m a bit rusty I do believe this is the proper way to deduce outcomes using Bayesian probability. I could have also put in in this form: P (U1 v U2) = (N1) + (N2) + (N3)…P(U1).P(U2)

Side B: Break out that tetanus shot because you go way beyond rusty. Somehow or other, N1, which is an event, gets added to N2, which is an event, gets added to N3 and there are dots and probabilities--what is the mathematical character of that ellipses connecting P(U1), and what exactly are U1 and U2? Different universes? What the hell are you trying to do? Do you have any idea what you're talking about? You can't add events and get probabilities.

Doesn't get any zestier than that, folks!

Posted by Carey at 06:53 PM | Comments (0)

April 06, 2004

Tinkering with CPR, blood substitutes

The CPR basics of pump-and-breathe keep getting refined.

While investigating the usefulness of a medical device, a team of researchers noticed that paramedics were giving too many breaths to patients when administering CPR, said the study published electronically on Monday by the journal Circulation.

(The headline of this article is misleading. It isn't that "too much CPR" is a bad thing; it's that performing CPR less than optimally is, well, less than optimal.) We keep learning more about what "optimal" really is.

ACLS keeps being tinkered with too. Vasopressin now seems all the rage:

Vasopressin use among patients with post-event asystole, however, was associated with significantly higher rates of hospital admission and hospital discharge. For these patients, use of vasopressin rather than epinephrine conferred about a 40 percent greater likelihood of survival to admission.

And paramedics in Denver are now carrying the blood substitute PolyHeme:

“We are pleased that patient enrollment in this ambulance trial with a blood substitute may now begin,” said Ernest E. “Gene” Moore, M.D., Chief of Surgery and Trauma Services, Denver Health’s principal investigator. “This study could potentially lead to a change in the initial treatment of critically injured and bleeding patients that may result in improved survival.”

All in all, it seems like a great time to be in emergency medicine!

Posted by Carey at 08:58 AM | Comments (6)

The passing of an era

The era of the independent bookshop is coming to an end. When they aren't forced to close by sales losses to Amazon or to Barnes&Noble, many independent bookshops die naturally when their owners retire. There isn't a new generation of booksellers to replace them. They're all working at Borders.

Soon it will all be Taco-Bell.

I remember the Chinook Bookshop, in my hometown of Colorado Springs. My family didn't live on that end of town, so we usually ended up going to the B.Dalton in the mall. But I enjoyed browsing in the Chinook. Their inventory of maps was "the largest from Chicago to the coast," and they always seemed to have strange books that the B.Dalton would never have.

Sure, the Hardy-Boys books I liked were often cheaper at the B.Dalton. The Chinook never offered discounts. Period. It was a full-service, full-price place. I browsed at the Chinook, but I bought books somewhere else. No one has any nostalgia for the low prices at the Chinook. Perhaps in this way it was most obviously a creature of the era when it started, circa 1959. Back then, wages were high enough to raise a whole family on just one. This was fortunate, because if Mom wanted to work, no one would hire her because she was a woman (and when they did, they wouldn't pay her as much because she was a woman). We've made tradeoffs since then. Mom can get a job just like Dad, but neither of them can find jobs with benefits. These days, Mom and Dad sometimes both have to work two jobs. Just to afford the discount books at Sam's Club.

Ahh, tradeoffs.

Some independent bookstores will survive, here and there, but the era of the mom-and-pop bookseller is over. The world changes. Sometimes for the better, sometimes for the worse, and sometimes things just change.

Posted by Carey at 08:23 AM | Comments (2)

April 05, 2004

Wal-Mart Government

Where do you stand on issues of democracy and corporate rule?

One way to find out is to consider a case where they seem to be so closely interwoven that it's hard to clearly separate the democracy from the corporate bullying. The city of Inglewood, California, will vote tomorrow on whether to allow Wal-Mart to build a superstore largely exempt from local ordinances governing the rest of the city.

Is Wal-Mart Government a good thing when the people vote for it?

While Wal-Mart has turned to the ballot in a number of cities and towns to win the right to build its giant emporiums, the Inglewood initiative is significantly different. The proposal would essentially exempt Wal-Mart from all of Inglewood's planning, zoning and environmental regulations, creating a city-within-a-city subject only to its own rules. Wal-Mart has hired an advertising and public relations firm to market the initiative and is spending more than $1 million to support the measure, known as initiative 04-A.

On one hand, it seems right to let the citizens of the community that will have to live with the consequences of Wal-Mart Government decide for themselves if that's a good thing.

On the other hand, it smells like exploitation when Wal-Mart feels the need to submerge the issue in $1 million of direct campaign spending, and when the ballot issue is responding to a City Council and numerous community groups who have already said "no."

Ironically, perhaps, the best argument against Wal-Mart is also the best argument for Wal-Mart. The Mayor (who supports the initiative) says:

"We're talking about a new police station, a new community and cultural center, a new park in District 4, upgrades for every park and recreation area in Inglewood," Mr. Dorn said. "As far as I'm concerned, it's a no-brainer."

The goodies that make Wal-Mart so easy to say "yes" to simultaneously make it very hard to say "no." They raise the issue of whether there's real choice, and real democracy, when an economically strapped community can obtain a new fire station only by exempting a powerful global corporation from virtually all its local requirements and controls.

Say to a starving man: "give me the right to ignore your wishes in the future, and I'll set you up with all-you-can-eat for the next week."

Coercion? Or real choice?

Consider another of Wal-Mart's arguments, made by corporate spokesman Peter Kanelos:

There's only one entity in the entire state of California that can determine how much market share any company has, and that's the customer.

Like it or not, this is powerful. It points up the fact that we may often say one thing as citizens, and say the opposite as "customers." Wal-Mart is powerful, but that's only because we keep shopping at Wal-Mart. We buy their cheap goodies; does this mean we're 'estopped' from denying them their exemptions from regulation? Or at least, does our opposition to Wal-Mart mark us as inconsistent when we continue to shop there?

What do you think about democracy? What do you think about corporate rule? It's time to take your stand.


The next battle: Los Angeles:

In the city of Los Angeles, where officials are putting the finishing touches on an ordinance that would effectively prohibit the Supercenters in much of the city limits, political and labor leaders say they are watching Inglewood closely for clues to the kind of fight the company may wage against them.

More analysis here:

But Inglewood is different. Never before has there been anything like this, anywhere. The Homestretch at Hollywood Park initiative asks Inglewood voters to carve a wide path through land-use law. The issues are so complex that Judge Dzintra Janavs said she could not wade through them all; yet those are the very issues to be presented to voters in the form of a 71-page ballot measure that creates a one-project exception to planning laws and administrative procedure.
Posted by Carey at 10:45 AM | Comments (4)

April 04, 2004


David Brooks apologizes for the suburbs:

The reality is that modern suburbia is merely the latest iteration of the American dream. Far from being dull, artificial and spiritually vacuous, today's suburbs are the products of the same religious longings and the same deep tensions that produced the American identity from the start. The complex faith of Jonathan Edwards, the propelling ambition of Benjamin Franklin, the dark, meritocratic fatalism of Lincoln -- all these inheritances have shaped the outer suburbs.

Which prompted a (check out the pictures) response from Crescateer Amanda Butler:

I'm a college student: I sympathize with the desire for cheap towels of better quality than the ones you get in a Motel 6. But it's not the old-field pines that are encroaching today. Instead it's the new housing developments and McMansions where there are no trees left worth speaking of. Maybe they'll look ok in another thirty years. But until then, I want to either live somewhere where the neighborhood trees are tall (as is the one towering outside the window of my second-floor apartment) or I want there to be places to escape to where there just are no neighborhoods, only trees. I want to go some place where cell phones just don't work [but I've got my broad band internet access]. God help us if there's never a West to go to. Where will we go when we want to flee, when we want to be reassured that all of America isn't like the place that we currently find ourselves hating?

Brooks, the suburban apologist, explains the suburbs as a product of a "paradise spell" and a "fruition myth." We have suburbs because we dream of better things. Butler emphasizes the other side of this coin, in a way that's more to my taste: we have suburbs because we hate our current lives, and wish to flee.

Brooks' vision inspires (if that's the right word) quietism and acceptance. His description of suburban reality may allow for lampooning and sarcasm, but Brooks leaves no room for real criticism. The most greedy, selfish, thoughtless, repugnant, stupid, and lazy behavior becomes for Brooks just a quaint side-effect of an American Utopianism that has made us the greatest nation on Earth and under God.

Butler's vision is by far the more responsible. It allows us in certain cases to say to the people of Suburbia: "Stop. Your utopianism is irresponsible. You need to clean up your own mess before you simply flee to somewhere else."

I don't want to put words in Butler's mouth. But I don't have to; her approach to suburbia allows for a reasoned debate about the pros and cons of the suburban way of life. Brooks, by equating suburbia with every success America has ever had, implies that if you bitch about the suburbs, you're really bitching about Mom, Apple Pie, Antibiotics, and a Rising Standard of Living.


EDIT: Kevin Drum writes a fascinating post about this topic, with statistics that let you see into the world of urban planners and commercial developers.

Posted by Carey at 07:53 PM | Comments (1)

April 03, 2004

You can comment, but you must reload

This blog's comments are now operational. However, in order to see the comment you've posted, you'll have to reload the page after you post. The Trackback should work normally.

Now get back to work, you procrastinators...

Posted by Carey at 07:18 PM | Comments (1)

April 02, 2004


Woe is me, that my comments and trackback should be inoperative on a day that Brian Leiter links to my blog.

I suppose if that's my biggest problem, I'm leading a charmed life.

Won't stop me from complaining, though. . . ;)

Posted by Carey at 08:41 PM | Comments (3)

Fatal Errors

Via Political Theory Daily Review, a summary of Bush's war rationale:

"More than anything, the administration's war in Iraq resembles a software program that, at first, works brilliantly, but then catches the user in a cycle of "fatal error" messages."

Posted by Carey at 09:52 AM | Comments (0)

April 01, 2004

Blog Notice

I'm still posting, but the blog isn't fixed yet. Comments and Trackback are still disabled. Until it's fixed, I'll try to keep this notice here at the top.

Please don't hesitate to email comments to the address above.

Posted by Carey at 10:15 PM | Comments (0)

Rankings insanity

This year's USNews rankings of American law schools have been leaking out all week in advance of their official release. Brian Leiter's blog has an interesting discussion of the rankings insanity that has inevitably followed. Please follow the links on Leiter's page to get a sense for what this insanity is like.

But don't stop there. The insanity runs deeper than that.

It isn't just that, as Brian Leiter points out, USNews' ranking methodology is not credible. It isn't just that students overestimate the influence of USNews' rankings on hiring. It isn't even that any attempt to rank law schools individually from best to worst, whether done poorly (USNews), or better than that (Brian Leiter), becomes ridiculous and silly as soon as you treat the resulting list as anything more than just a list of selectively compiled statistics.

The real insanity is what the furor over school rankings reveals about the priorities of law students. To wit: get a job with a lot of prestige that pays a lot of money.

To the extent that employers rely on the rankings, their insane behavior is revealed as well: hire students from highly-ranked schools whose interest in the legal profession is limited to the amount of their compensation.

Fortunately, this extreme characterization does not apply to many prospective law students who use the rankings merely as tools to gather information that they will then thoughtfully integrate with their own interests and reasons for attending law school, in order to decide where to apply. One of Professor Leiter's posts quotes a letter from a student like this.

But I think this extreme characterization does apply more often than you might think.

It isn't that the students are bad. They're not (most of them). They are simply unsure of why they want to be lawyers. I don't mean that they don't know what legal specialty they'd like to pursue, or that they don't know if they'd prefer to work in government or in the private sector. What matters is that they don't know how or why a legal career will allow them to contribute anything of value to their fellow citizens. And this uncertainty is what draws so many law students into the insane world of Biglaw: big prestige, big money, big spending. Why? They don't know. They don't know why they do what they do. So they do what others tell them to do. It starts with automatically picking the higher-ranked law school. It continues with automatically working for the most prestigious firm which will hire them. And it ends with doing work which may be meaningless, unfulfilling, and occasionally simply evil.

It isn't that practicing law at a prestigious firm is boring or evil. Usually, I suspect, it's the opposite. Especially if the lawyer knows why she is there, if she's thought about how her work contributes to the community and is valuable beyond just the paycheck it earns her. If she hasn't, though, she's an automaton, and that can sometimes be evil, not just at Biglaw but at small-law, government law, and non-law (doctoring, accounting, street-sweeping, and bus-driving).

The rankings insanity is insane because it reveals the occasional thoughtlessness which can ripen by force of habit into blindness. This blindness can lead to scandals like Enron and Tyco. It can lead to governmental evil, like Naziism, fascism, and Stalinism. But usually, the blindness merely leads to the daily, low-level grunginess and lack of joy that plagues modern working life.

Posted by Carey at 09:10 PM | Comments (10)