Update (8/19): Here is my open letter to the Governor of Florida (and to all 11 deans of Florida law schools) regarding the Florida bar fiasco.
I interrupt my regular blogging program to bring my loyal readers the following news bulletin, followed by some personal commentary:
Last month, the Florida Board of Bar Examiners rescheduled our state’s bar exam for August 19. Yesterday, the Board announced that, due to technical problems with the exam software, it is now postponing the Florida bar exam to a date yet to be determined in October. This is outrageous on so many levels, but the buck has to stop somewhere: the Florida Board of Bar Examiners is a local and national disgrace and, in my view, is guilty of breach of contract, negligence, and intentional infliction of emotional distress. In the meantime, I call on the members of this board, if they have any sense of decency or a shred of humanity, to apologize to the bar applicants and back up that apology by petitioning the Florida Supreme Court to grant all of them diploma privilege forthwith; otherwise, they must resign. Governor DeSantis, are you listening?
As a child, I used to love visiting the Post Office with my mom. Today, I just discovered that my friend and colleague Hollis Robbins (@anecdotal) is writing a book on the history, literature, and aesthetics of the U.S. Post Office. I can’t wait to pre-order her new book; in the meantime, below is her syllabus for her “Post Office Stories” course. You’re welcome!
Check out my colleague and friend Brian Frye’s excellent new syllabus for his Intellectual Property Theory course. The focus of his course is not so much on the substance of IP law (black letter law and cases) but rather on teaching students how to think about writing legal scholarship. For my part, I like the focus of this course because in my experience the most important (and the most challenging) aspect of legal scholarship is the idea of a research contribution. (See, for example, this paper by Yves Gendron.) Two cheers for Professor Frye!
I have spent most of the last few years writing and revising several business law textbooks, including Business Law and Strategy with Sean Melvin and David Orozco as well as the third and fourth editions of The Legal Environment of Business. (Both textbooks were published by McGraw Hill.) This summer, however, I was able to devote myself to a wide variety of scholarly projects. In brief, I wrote up or substantially revised the following papers this summer:
If you google the phrase “Baptists and bootleggers,” one of the items that will invariably pop up is this entry in Wikipedia (edited by me for clarity; emphasis added; footnotes and hyperlinks omitted): “Bootleggers and Baptists is a concept put forth by regulatory economist Bruce Yandle, derived from the observation that regulations are supported both by groups that want the ostensible purpose of the regulation, and by groups that profit from undermining that purpose. For much of the 20th century, Baptists and other evangelical Christians [supported] Sunday closing laws restricting the sale of alcohol. Bootleggers sold alcohol illegally, and got more business if legal sales were restricted.”
Or in the eloquent words of Yandle and a colleague (2001), “Such a coalition makes it easier for politicians to favor both groups…. The Baptists lower the costs of favor-seeking for the bootleggers, because politicians can pose as being motivated purely by the public interest even while they promote the interests of well-funded businesses…. [Baptists] take the moral high ground, while the bootleggers persuade the politicians quietly, behind closed doors.” Also, before proceeding, here is a link to Professor Yandle’s original 1983 essay on the subject of Baptists and bootleggers, and here is a link to a follow-up article published in 1999.
As it happens, I was first introduced to this idea in law school by Professor Robert Ellickson and then re-introduced to it many years later by my colleague and friend Todd Zywicki during a two-week crash course in law and economics in Colorado that I attended in 2013. (Shout out to the Law & Economics Center (LEC) at George Mason University for inviting me to attend this excellent summer seminar.) If you think about it, Professor Yandle’s theory has to be one of the most powerful scholarly ideas of the late 20th Century, for it helps to explain almost all forms of economic legislation and regulation. I am thus shocked and surprised that I have not blogged about this idea until today, but I am not here to point fingers (especially at myself) or to rehash an old but powerful theory.
Instead, I am here to restate a question my philosophical friend and fellow blogger Peter Clark recently posed on his excellent “Inverted Logic” blog: what if the moralizing “Baptists” and the rent-seeking “bootleggers” are the same person or group? Clark describes the origins of his “dual-actor” theory here, and he develops the idea further here in The Journal of Brief Ideas. For my part, one of the reasons I find Clark’s dual-actor hypothesis so persuasive is that often a regulated corporation or other large rent-seeking actor will have many stakeholders, and the interests and motivations of these will often diverge among the familiar Baptist and bootlegger lines. So, kudos to Clark and the dual-actor theory!
According to my colleague and friend Steven Lubet (via The Faculty Lounge), although college football coach Nick Saban’s contract does not (I repeat, NOT) include a force majeure clause, “he still stands to lose over $1 million in incentives if the season is canceled.” What would legendary ‘Bama coach Bear Bryant say?
Bonus question: If the SEC does cancel its fall college football season (like the Big Ten and the Pac 12 have done), could a force majeure clause be implied or otherwise read into Saban’s contract?
I still have two full weeks before I have to go back to teaching, so I am making the most of my time by catching up on my readings. Among the many things I have learned is that the great H.L.A. Hart did not have an advanced law or philosophy degree and did not begin teaching until he was almost 40! For his part, Nassim Nicholas Taleb is an insufferable bore, but his “Skin in the Game” book is very relevant to our current “cancel culture” troubles, while the coffee-table book on “Big Cats” not only contains many beautiful photographs of lions, leopards, tigers, etc.; it also describes their evolutionary history, mating practices, eating habits, and other forms of behavior. Lastly, the Moon “Florida Gulf Coast” travel book is for a family beach vacation I am planning for next week, and I will have more to say about the other books in my pile soon …
Given that most scholarly journals are now published in an online format, does the peer review process still serve a legitimate “quality control” function, or is peer review now all about crude “academic turf protection,” i.e. preventing new voices and new perspectives from being published in the most prestigious journals? What if it’s a little bit of both? In any case, it’s always fun to see what happens when you google the following question: “Does peer review actually work?”
