Sorting in the Academy

A recently released study of academics asserts that certain characteristics of professors may explain the higher proportion of liberal academics relative to the population at large. The study concludes that 43 percent of the political gap between academics and a random population sample can be attributed to four factors more common among academics: 1)high levels of educational attainment; 2) disparity between levels of educational attainment and income; 3) self-identification as Jewish, non-religious, or a member of a faith that is not theologically conservative Protestant; and 4) high tolerance for controversial ideas.

The authors of the study, Neil Gross and Ethan Fosse, note that their findings confirm the theories of French sociologist, Pierre Bourdieu. Like Bordieu, Gross and Fosse see intellectuals as defined by "possession of high levels of cultural capital and moderate levels of economic capital." Bordieu asserts that this structure shapes intellectuals' political views. ".... Deprived of economic success relative to those in the world of commerce, intellectuals are less likely to be invested in preserving the socioeconomic order, may turn toward redistributionist policies in hopes of reducing perceived status inconsistency, and may embrace unconventional social or political views in order to distinguish themselves culturally from the business classes."

The four factors account for only some of the difference. The authors theorize that young adults are sorted into the professoriate based on their political views. "[T]he professoriate, along with a number of other knowledge work fields, has been 'politically typed' as appropriate and welcoming of people with broadly liberal sensibilities, and as inappropriate for conservatives." The reputation of the academy for 'political type' "leads many more liberal than conservative students to aspire for the advanced educational credentials that make entry into knowledge work fields possible, and to put in the work necessary to translate those aspirations into reality."

Although students may not be aware of its effect on their career choices, political typing likely affects them: "Because these identities involve cognitive schemas and habitual patterns of thinking that filter experience ... most young adults who are committed liberals would never end up entertaining the idea that they might become police or correctional officers, just as it would never cross the minds of most who are committed conservatives that they might become professors, precisely because of the political reputations of these fields."

In Remembrance

Should the United States go to Pot? Si no, Por Que

Dr. David Nathan, a Princeton based psychiatrist who treats patients suffering from substance abuse, has come out on the opinion page of the Wall Street Journal for the decriminalization of marijuana.

Dr. Nathan is admirably candid about the potential baleful effects of the drug, and about the fact that those effects would be visited on some folks under a decriminalized regime. But he believes the costs of the status quo are greater than the benefits derived, and that the benefits of the change would be greater than the costs realized.

He may be right. One interesting piece of speculation in the article concerns the 'gateway drug' argument that usually accompanies discussions of whether or not to legalize (note the change from decriminalize to legalize; there is a difference, discussed below) marijuana. The gateway drug argument holds that marijuana use, not so dangerous in itself, leads to the use (which here is synonymous with abuse) of truly dangerous substances. Dr. Nathan says however that the gateway properties of marijuana may be attributable to nothing more than the fact that users who go to a dealer for marijuana may be upsold to other substances by the dealer. If he is right about that, then, as he states, legalization, insofar as it obviates the trip to the illicit dealer, removes the gateway effect.

All right. But what about those like Bill Bennett, who say things like this: Drug use is wrong because it enslaves the mind and imprisons the soul. And that on that account the state should not be in the business of serving the stuff up, or of making money by taxing the stuff if the market is private. The usual debating point to raise for folks on the other side from Bennett is to point to alcohol and say, "What about that?". Then Bennett's side says we can't let the perfect be the enemy of the good. And anyway, if you don't like the effects of alcohol on society it is odd to take the position that it should take on a partner, even if we consider marijuana the lesser evil.

It is not clear which way the nation will go, but it is instructive to note that the choices we make will have some serious externalities, principally for Mexico.

Consider part of what is likely to happen if the United States legalizes marijuana: Mexico's ultra-violent drug cartels (the level of violence is a reflection of the level of money involved and of the reinforcing thrill uninstructed packs of young men are liable to take in perverse violence) will be devitalized to this extent: they currently get about half of their revenue from home-grown marijuana. Should that revenue disappear with the advent of a legal market, the gangs will be less able to intimidate, less able to name their price for cocaine shipments from Colombia, and more susceptible to ruin at the hands of law enforcement. By the way, the tragic rise to inordinate national prominence of the Mexican drug gang follows the U.S. sea-route interdiction efforts of cocaine originating from South America, which increased the cost of getting cocaine to the United States via that route and made the land route through Mexico economic.

Now consider what happens if the United States decriminalizes marijuana. That is to say, what if we decide that end users cannot be prosecuted but that the sale of the drug is still illegal. It might seem both large souled and practical to go this route. It may actually be those things. For us. But it is a nightmare scenario for Mexico. Demand will rise among Americans immune from prosecution, and the black market will get that much blacker, and Mexico will bleed itself white.

Thus does the future of marijuana's status in the United States serve as a reminder that this Leviathan can seldom commit itself to anything without also committing other nations to something else.

L'Amour Est un Oiseau Rebelle

The Metropolitan Opera's live HD telecast of Bizet's Carmen to movie theatres set a record with 240,000 viewers. (Carmen blew away the record set by Puccini's Madama Butterfly last March with 197,000 viewers.) I saw and heard it in the sold out State Theatre right here in State College.

Ah, Habanera

The bird you thought you had caught
beat its wings and flew away ...
love stays away, you wait and wait;
when least expected, there it is!
All around you, swift, swift,
it comes, goes, then it returns ...
you think you hold it fast, it flees
you think you're free, it holds you fast.
Love! Love! Love! Love!
Love is a gypsy child,
it has never, ever, known law;
if you love me not, then I love you;
if I love you, you'd best beware!

I cannot understand how her dress stayed on.

Finding Comfort in Casebooks

There is something familiar and comfortable about a law school casebook. For starters, I know how to read them and get what I need from them. After spending three years in law school, the casebook-learning method becomes routine. Second, they are a contained universe. The casebook poses the question and usually presents the answer, or at least the key to discovering the answer. Third, similar to being a contained universe, the casebook is finite. I know that once I have read and digested all of the information in the book, I am prepared to handle any question covered by said book. Until another case comes along and overrules the law, of course. But even subsequent laws don't seem as daunting once the framework for learning the particular subject material is established. The point is that I know that after X-number of pages, and the requisite diligence, I will have gained understanding. Finally, given a good author, the casebook can actually be diverting to read. Whether it is a sassy bankruptcy scholar or a witty property professor, casebook-learning can be a source of entertainment. For me, the process of learning and digesting the law via a casebook feels natural and safe.

Life as a lawyer outside of the law school environment, whether practice or "real life," is not nearly so comfortable. There are decisions to make and there is not always a safety-net of scholarship upon which to rely. While others may have encountered similar anxieties and issues, I find a lack of scholarly consensus with respect to a situation to be a bit unnerving. There are problems without solutions, and as a sometimes overly-analytical mind, the "paralysis of analysis" can set in and be debilitating. Personally, I like to know that there are others - far wiser than I - who have worked through a problem and arrived at the "right" solution. I find that I often lack the confidence to determine my conclusions are fair, let alone right.

Perhaps part of my own transition from law student to lawyer involves trusting my instincts. In both the law and in my personal life, maybe I do have the skills I need to either: a) reach a reasonable conclusion, or b) know when and where to seek input on a particular matter. Maybe . . . For now, I find the ability to retreat into a casebook provides a measure of solace. For this, I am grateful.

And We're Back!

Anyone who watches SNL may appreciate the reference to Jimmy Fallon's Z105 "Morning Madhouse" skit. The skit has little, if anything, to do with the law, but it does make me laugh. As we begin the Spring 2010 term, which feels less "springy" and more "wintry," a bit of light-hearted humor would do us all well.

The Spring term is the final lap for our 3Ls, and the beginning of the bar preparation season. I wouldn't say the Fall semester is necessarily easier than the Spring, but for me, the pressure mounted each Spring. To help keep school in perspective, and my mood elevated during the remainder of winter, I found things that made me laugh to be the best medicine. Perspective, after all, is a key to avoiding burn-out and insanity in law school!

So, good luck to everyone this term, especially the 3Ls!

The Year of Living Dangerously

The unholy crucible of Washington compromise has worked this oddity into tax law: there is no estate tax in 2010. And there promises to be a large one in 2011. Stephen Moore, writing in the Wall Street Journal about 2010 tax issues more generally, spends some time on the estate tax.

Moore of course would prefer to remove the oddity mentioned above by avoiding a resumption of the estate tax in 2011. Not so Sen. Max Baucus, who, apparently and tragically undiminshed from his health care labors, aspires to "raise the estate tax back to between 35% and 55% this year, and to make that change retroactive to Jan. 1." The better to pay for that other thing, I suppose.

But can that be done? Here's Moore: "Can Congress impose a new estate tax, say in April, on someone who was already dead and buried in February? Let's hope not." Moore has been around long enough (which requires only a month or so) to know hope is all we can do.

But let's hope Baucus fails in his ambition, and, for entertainment purposes, that Moore does, too. In that case, we can behold the pageant of moral hazard that will reign among heirs apparent this year.

Early on the pressure will likely manifest itself in elliptical ways. For example, encouraging the old tycoon to take up rock climbing. Should he prove surprisingly competent at that, late summer might see more direct efforts. For example, "Surprise!" yell the descendants as they spring from behind the matriarch's bedroom curtains (when she first wakes and on a day not her birthday).

And the closing window that will be New Year's Eve could well loose the inner Utilitarian of anyone standing vigil by the bedside of an old and infirm moneybags. And there may be many such folks standing vigil. Hospitals, more likely than Times Square, may set attendance records that night for visitors.

Without the intention of causing the outcome, the muti-motived authors of this mess are encouraging, in this limited context, the sort of inter-generational suspicions regnant in Orwell's 1984.

Best Jobs

The Wall Street Journal has published a list of the 200 best jobs for 2010 based on environment, income, employment outlook, and physical demands and stress. The list reflects a study by Careercast.com, an employment site.

Selected data:

1. Actuary
22. Court reporter
62. Musical instrument repairer
63. Federal judge
80. Attorney
179. Roofer
200. Roustabout

Saab RIP

It's over. Ja.

The acting CEO of GM says there's no hope a bidder will appear with the kind of krona that can get the pistons pumping again at Saab.

UCC Article 2 Sale of Goods

I am reassured and horrified that the Article 2 scope disorder I've observed among my Contracts students is not just my problem. Thom Lambert at University of Missouri Law encountered a severe strain while grading his Contracts final exams and wrote about it on Truth on the Market.

UCC Article 2 governs contracts for the sale of goods. Apart from some interesting cases involving North Sea oil platforms, electricity, and software which push the envelope of 'goods,' it really couldn't be simpler. Yet, students every year write in the the final exam answer that Article 2 does or does not apply to a particular transaction because one or both of the parties is or is not a merchant.

Yes, some sections of Article 2 regulate the rights of certain professional sellers or buyers who participate in a sale of goods. But the scope of Article 2 is not merchant dependent. UCC Article 2 governs contracts for the sale of goods and it does not matter for purposes of its scope whether the parties are Exxon or rank amateurs picking up a broken leaf blower at a neighborhood garage sale.

Professor Lambert laments that every year his Contracts students screw this up on the exam, and the next year he increases the number of times he tells the class that UCC Article 2 governs all contracts for the sale of goods without regard to whether one of the parties is a merchant. Ad nauseum. I do the same. In every class session in which Article 2 is pertinent I say it: Goods -- not real estate, not services. Goods. Merchant schmerchant, I say. Goods. Do not take your eye off the goods. Where they are, Article 2 (or 2A if the deal is a lease) will be. Merchants come and go. Goods remain.

Let's review. UCC Article 2 applies to all contracts for the sale of goods. Any questions?

Professor Lambert speculates that this mistake may root in students' fixation with UCC 2-207 -- the "battle of the forms" which in part applies only "between merchants." 2-207 is the first foray into statutory interpretation for most students. Perhaps the battle of the forms triggers in some students a form of PTSD. When a simple scope question appears on the exam, students traumatized by 2-207 lose their grip and can see only merchant Viet Cong snaking through the rice. It's only a contract for the sale of goods, but in the heat and the darkness it looks like the enemy. Ah, the smell of merchants in the morning.

My friend and colleague Keith Elkin works with law students preparing for the bar exam. He told me that students make this mistake on practice bar exams even after watching the bar prep video heads say it over and over: UCC Article 2 applies to contracts for the sale of goods.

Next time I teach Contracts, I may give peace a chance and omit coverage of 2-207. If Lambert is right, the price of a really good immersion in a really badly drawn statute is too high.

American Needle Next Week

Professor Stephen Ross hosted a moot argument of the American Needle v. NFL case last month at Penn State Law. The Supreme Court will hear the argument for real Wednesday, January 13. If you missed the moot, you can view it online.

32% More

American people and their businesses filed 32% more bankruptcy cases in 2009 than in 2008. Last year was the seventh worse on record with about 1.43 million cases filed.

The spike in filings was sharpest in Arizona where the number of cases filed in 2009 rose 77% over last year. Wyoming cases rose 60%, Nevada 59% and California 58%. Pennsylvania is near the bottom of the list with a 14% increase. MSNBC.com sports a cool map of the US showing percentage increases by state.

Cold and Gray, Exceedingly Cold and Gray

The sound of the wind howling in the woods outside made me think of the coldest my imagination has ever been: Jack London, To Build a Fire.

"When it is seventy-five below zero, a man must not fail in his first attempt to build a fire --that is, if his feet are wet. If his feet are dry and he fails, he can run along the trail for half a mile and restore his circulation. But the circulation of wet and freezing feet cannot be restored by running when it is seventy-five below. No matter how fast he runs, the wet feet will freeze the harder."

Target Puts a Bulls Eye on Costco and Sam's

Target Corporation has launched The Great Save. It's packing up the holiday doodads and stocking the shelves with super-sized packages of toilet paper, bottled water, ketchup and other useful items. The Great Save will give a part of Target stores the look of a warehouse club.

Smart move? On December 31, Target stock closed down .7%. The Great Save runs through February 21. I'll be watching. NYSE: TGT.