Thursday, December 31, 2009

Calling all Mac users--any idea what this means?

I've gotten these files before. Can't get rid of them; don't know what causes them. But when I brought this problem to the Apple Genius Bar, the person who addressed the problem suggested a wiping-out of my computer and a restore based on Time Capsule. (And I've alluded to the results of that suggestion in an earlier post, here.)

So if anyone knows what causes this problem or how to fix it (or even how to delete these files), I'd sure appreciate your ideas. Thanks!

For those writers with spelling "issues"

See this. Hat tip to my buddy Scott Chase for sending it to me.

Wednesday, December 30, 2009

A true leadership opportunity for our government.

As we've all recognized, the system failed (see this editorial from today's New York Times, here). Here's what I think should happen next, if we are going to see true leadership from the top down.

1. Find out which people made tragically bad decisions about Mr. Abdulmutallab's ability to travel here, given the numerous "do not let this person on a plane to the U.S." clues that we managed to miss. Look for the actual people who made the actual decisions.

2. Ask them why they made those decisions. Find out why they didn't, e.g., share information among agencies, act upon the signals that Mr. Abdulmutallab should not fly, or become more proactive about our nation's safety.

3. Evaluate their decisions, not just in the light of 20/20 hindsight but in terms of what information and incentives they had while they were actually making their decisions. If their decisions were bad in light of the information that they had, then take all appropriate action (in other words, fire them). If their decisions were reasonable--and I'm having a hard time figuring out how that possibility might be true, but I'm willing to keep an open mind--use their decisions to fix the holes in our system.

4. Do not fire Janet Napolitano as a knee-jerk reaction before investigating the causes of our security failure. Personally, I believe that this failure is systemic enough that she should step down voluntarily, but not before she takes with her (on a non-voluntary basis) all of those people who made bad decisions notwithstanding good information. Even though she didn't personally cause the failure in the system, it did occur on her watch.

Accountability starts from the top down. I don't believe that all heads of organizations should commit virtual seppuku every time the people who report to them (or the people down the chain of command) make bad decisions. But sometimes those decisions are of such a magnitude that there's real value in the head of the organization stepping down as well.

Firing Napolitano without investigating the causes of this failure makes a mockery of accountability because it eliminates the incentives for the actual decisionmakers to act with care. They can fail without consequences if only the head of Homeland Security suffers. ("Meet the new boss; same as the old boss.")

Only if accountability permeates all the way through an organization does a culture change.

Tuesday, December 29, 2009

Watch Jeff & Priscila on this LVAC webpage.

Jeff Monroe (our personal trainer) and his wife, Priscila Monroe, are two of our favorite people. If you're ever just feeling blue, just click on the Las Vegas Athletic Clubs website (here), then click on "Guests," and then don't click on anything else until you watch all of the ways that Jeff & Priscila try to entice you into clicking on any of the options. Totally great!

A tale of two customer service philosophies

On the "best of times, worst of times" list, Apple Care has to stand out as one of the best examples of good customer service, and Handango has to stand out as one of the worst.

I've had some hiccups with my MacBook Pro, and the good folks at Apple Care have walked me through a total of 2-1/2 hours of "um, where's that button?" and "can you please repeat that?" Luddite comments on my end, with infinite patience and kindness. I've finished each of two conversations with the folks at Apple Care completely confident that, should my problems recur, they will take good care of me. How do I know that? At the end of every conversation, I've gotten a case number; at the end of the first conversation, the person helping me gave me his name and telephone number.

Handango, on the other hand, has sold me about seven products recently that don't work with my BlackBerry Tour and has refused simply to refund my money, choosing instead to repeat, ad nauseum, that the products do work with my BlackBerry. Unfortunately, no matter how many times Handango sends me the same instructions, the products don't load. Handango makes it almost impossible -- well, so far, actually impossible -- to get closure on my problem. No, Handango Customer Service: trying to load the programs again doesn't work, and clicking my heels three times and wishing for the programs to load doesn't work, either.

Now, I have no idea whether the customer service people at Handango would like to help me, because the format of getting help at Handango is so cumbersome. But I do know that the folks at Apple Care want to help me.

So what I need to know now is how Apple Care hires and retains such great people. We obviously can learn a great deal from Apple Care. Gosh, if we had Apple Care types running our homeland security, perhaps we'd be even making better decisions about how to protect our country effectively.

Why someone should nominate me for the Disney board of directors, part n

See here. Seriously--shouldn't I get a chance to do some good for shareholders, at a company I actually love?

And now, some common sense from one of my heroes

This op-ed today (here) from Clark Kent Ervin.

Here's what we're not realizing: there probably were some procedures in place for homeland security folks to use to keep Umar Farouk Abdulmutallab from getting on that plane to Detroit. I don't know if the procedures were the best ones we could have developed, but I'm going to guess that if (1) someone's own parents call and say, "watch out for our son," and (2) that son is already on a watch list, and (3) he checks in for a flight with no luggage and pays cash for his ticket, there were probably some procedures that could've kept Abdulmutallab off that plane. So what happened?

Procedures don't matter one whit if the incentives for following them (or the incentives for violating them) don't work. Whether it's travel security or corporate governance, all of the regulations in the world are worth less than the paper they're printed on if the people who have to execute them, day-to-day, have no accountability for performing them correctly.

That's why--and no, this is not a non-sequitur--I'm so pleased that Morgan Stanley's going to include clawbacks in the salary provisions for its top executives (see here). Clawbacks = accountability, at least if they're carefully applied.

So all of those idiotic new rules for airline travel, which aren't even designed cleverly enough to catch Abdulmutallab's plot,* mean exactly zero, compared to the incentives for the people creating no-fly lists, the people issuing or revoking visas, and the people working at TSA. Figure out the right incentives, while paying attention to the way that people make basic cognitive mistakes, and you might get some results. It's the people, not the regulations, that matter most.

*Let's see . . . . Nothing on our laps for the last hour of a flight, because terrorists never ignite bombs earlier? Check. No accessing carry-ons for the last hour, because terrorists never plan ahead? Check. No asking the type of security questions that, say, the Israelis ask before someone's cleared to fly? Check. Paying zero attention to behavior and plenty of attention to silly rules? Check. Yep. We're safe now.

Some common sense about cybertalk

See here. Great editorial!

Thursday, December 24, 2009

Wow. Check out this great investigative reporting by Gretchen Morgenson and Louise Story.

See here. One of my law students has been working on a case involving these allegations. Fascinating.

Update: Thanks to my guru, Jack Ayer, some other thoughts (here, here, and here). Thanks, Jack!

Wednesday, December 23, 2009

Classic exam bloopers (and a rant)

I'm working my way through grading my PR exams, and one blooper (well, two, actually; but they were actually the same blooper) cracked me up last night (see here).

On a more serious note, although I don't count off for bad writing on exams--and maybe I should, given that my exams are 72-hour take-homes, with plenty of time to proofread the submissions--I'm stunned by the sheer illiteracy of some of these exam answers. Some of the answers are riddled with the sort of mistakes that even fourth-graders shouldn't be making. And Boyd School of Law students are smart.

I refuse to believe that bad writing can go hand-in-hand with clear thinking. How difficult is it, really, to learn when and how to use commas, to maintain a consistent tense within the same sentence, or to understand the difference between "it's" and "its"?

Let's assume that someone managed to get a high school degree without learning any basic rules of writing. Let's also assume that he got a college degree without learning any of those rules. When he goes to law school, knowing that his livelihood will consist of analyzing problems and communicating that analysis, isn't it time for him to take the time to learn the rules that he missed, or at least to develop a checklist to catch his known predilections for errors?

The refusal to learn to write decently while in law school strikes me as unadulterated laziness. In my first year of law school (yes, a long time ago), my Criminal Law professor, who had taught English in his former career, told me that my writing needed improvement. He spent time with me to rid me of passive voice and some funky usage, and I worked hard to fix my bad habits. (And I wasn't a particularly bad writer before he started working with me; Bob Weisberg just wanted to make me a better writer.)

So, Boyd students who don't write well, here's an offer for you: Take our comments about your writing to heart, and offer to work with a professor to improve your writing while you're in school. Your future clients will thank you.

Tuesday, December 22, 2009

Guilty pleasure: I Can Has Cheezburger

I'm totally addicted to And this picture just takes the cake:

Dear Government of the State of Nevada: here are some revenue-raising ideas

Dear Government of the State of Nevada:

As Nevada slips ever further into a budget deficit, and the Governor seeks proposals for up to 10% cuts from state agencies (see here), it's time to consider options for raising revenue, rather than simply cutting further. Some combination of revenue-raising and cutting may be in order, but if we persist in the Governor's cut-only plan, we're going to ruin any hopes for economic recovery.

Here, then, is my list of proposals to help Nevada through this crisis. I'm no genius, and I don't make any claim that my ideas are the best ones out there. I just want to start the ball rolling.

1. California's loss can be our gain, part 1. Both today's New York Times (here) and the Wall Street Journal (here) report that Sen. Dianne Feinstein wants to protect more than one million acres of the Mojave Desert from being used for solar power. Hey, we have desert land--lots of desert land. And even though most solar power uses a lot of water in its processing, there are technologies out there that use less water (see, e.g., here). Why don't we consider becoming the nation's preeminent source for solar power? (Of course, we'll need to build ways of transmitting that power, or it'll be useless. But wait! That will . . . create jobs.)

2. California's loss can be our gain, part 2. California's going through an unprecedented economic crisis, and among other problems that it's facing is the draconian budget cut of its flagship university system (see here). Take a look (here) at what the UC system has achieved, even during a financially disastrous year. I'll bet that some professors in the UC system might be open to coming to Nevada, if Nevada would be willing to invest in what makes professors happy: money to do research, money for travel, money to support students. In the "it'll take spending some money to make money" category, investing in luring some top brains to Nevada--especially if Nevada leverages the new relationship with the Brookings Institution and UNLV (see here)--could create a think tank to solve problems (and . . . create jobs) out here in the desert.

3. McCarran is a good airport, so why isn't Las Vegas a shipping center? When you think gateways, do you think Memphis? (See here.) FedEx did. I like Memphis as a city--loved visiting Graceland, love the music scene--but Las Vegas makes perfect sense as a business-friendly shipping hub. Heck, we're suffering so much economically that if we could give a nationally based business some decent tax breaks, there would be a reason for that business to come here. Oh, and that would . . . create jobs.

4. Go easy on the tourist industry, and make the tax base more even. In a great interview (see here), UNLV Prof. Mary Riddel has pointed out the danger of being a single-industry town. Well, Las Vegas seems to be a single-industry town, and Nevada sure seems to be a single-industry state. And that industry is based on attracting people with discretionary income--income that's increasingly rare these days. Raising the costs for tourists to come here by, say, increasing taxes on them, is not helping our single industry. What would happen if we lowered those taxes, while replacing that lost income for the state by a smaller, broader-based tax generally? I know that increasing taxes is anathema for Nevada politicians, but Albert Einstein (as usual) was right: insanity is doing the same thing over and over and expecting different results. Refusing to reconsider our state's tax system and expecting to come out alive from this recession are mutually exclusive actions.

5. Don't get me started on how many different ways Nevada has gotten Yucca Mountain wrong. (See here.) Here's a riddle for you: why is it safe to store nuclear waste above ground in every other state but not even reasonable to consider storing it on and near the Nevada Test Site (one of the most contaminated areas in North America)?

6. Don't cut the budget across the board. Think about budget cuts this way: when you're facing a personal budget problem, do you cut everything by 10%, or do you figure out which parts of your budget are discretionary and which parts are necessary, so that you can leverage your cuts for the maximum effect? Smart people don't say, "Hmmmm. I need to cut my food intake by 10%, my housing by 10%, and my entertainment budget by 10%." Smart people keep the necessary spending and jettison the discretionary spending.

7. Find a group of smart volunteers who aren't dependent on re-election to do some of the heavy lifting for the politicians. I get it: politicians really can't make the hard decisions, because too many voters have short memories and will resent economically expedient measures if those measures affect their own interests. (Don't gore my ox!) So why can't politicians gather together some smart Nevadans--especially those who own small businesses, the mainstay of any economy--to provide good ideas and political cover? Again, I'm not the best person for the job, by any means, but I'd sure be willing to help if asked.

I keep using the quote that Michael Douglas said in The American President (1995): "We've got serious problems, and we need serious people." We don't need partisan politics; we don't need grandstanding. We need smart people of good will who want to make Nevada thrive. I know that there are such people in our state's government, and there are such people in our state generally. Let's use those brains and, to quote the great Gene Kranz, as played by Ed Harris in Apollo 13 (1995),* "Let's work the problem, people. Let's not make things worse by guessing."

*Wow. 1995 sure was a good year for movies.

Monday, December 21, 2009

R.I.P., Joe Hunter Reynolds

The world lost a truly great human this week: Joe Hunter Reynolds (see obituary here). Even this obituary doesn't do Joe justice. His word was gold--no one ever needed a "this is to confirm" letter from him, because once he said something, he followed through. His Marine career was outstanding: he survived both Iwo Jima and the frozen Chosin. He served the state of Texas with all of his heart, and he was the quintessential family man.

Susie and their family have our deepest sympathies. Jeff & I loved Joe, and we will always be grateful that we knew him. The world is worse off with his passing. The last time we grieved this deeply was when we lost Ron Bliss, whose passing we still mourn.

Thursday, December 17, 2009

I told you that judges and lawyers care about good writing....

See here. Bravo, Judge Kressel! And a hat tip to one of my best friends (who's going to be unnamed in this post) for pointing this notice out to me), and to the Wall Street Journal Blog, for the whole story (here).

Wednesday, December 09, 2009

State governmental math

Because Nevada was running a deficit on, oh, day 2 of our fiscal year, the governor has come up with a new plan to deal with a potential $53 million shortfall: layoffs of state employees (see here).

Now, I believe that the state should close the shortfall. (I'm a big fan of income being larger than spending.) But I don't understand why the governor persists in thinking that cuts are the only way to make the income/spending equation balance. We have one of the narrowest tax bases in the country--basically building our income on the backs of the tourism industry. In a recession, that income base will inevitably decline with discretionary spending.

I'm not seeing the governor or the legislature come up with ways to make our tax system sustainable, or even more fair.

And don't get me started about how much money Nevada has lost by not accepting federal Yucca Mountain money while it studies (or should have studied) whether the license for Yucca should be (or should have been) granted. We threw away jobs and money because the state didn't even want to consider putting storage of nuclear waste NEXT TO THE NEVADA TEST SITE, which is not exactly pristine land now. Because the state had a knee-jerk reaction (and I understand: the government told the citizens of this state that above-ground nuclear testing was safe, all those years ago) to the plan, we've lost serious revenue here. Ask all those folks in Summerlin and Pahrump how they feel about Yucca being stalled.

Look, Nevada: I like living here (although I bemoan the lack of infrastructure). I want this state to thrive. We cannot thrive on the backs of tourists. We need someone with the political cojones to say that it's time to rethink how Nevada gets income, and not someone who recites the mantra of cutting without thinking about all of the consequences.

Either Nevada becomes a place that has well-educated citizens with skill sets for employers, or it devolves into a state rather like the one portrayed in the movie Idiocracy. California's also facing severe budget issues, and its "tax everything" approach isn't working, either. Let's figure out a sensible middle ground and stop posturing for the news media.

Sunday, November 22, 2009

Legal Profession Blog is, of course, right again.

See the various posts about the new, flawed SuperLawyers rankings here and here.

A plague on both their houses.

I'm officially disgusted with both political parties at this point. I've been a Democrat most of my life, and it's fair to say that I'm a social liberal and an economic conservative. I had hoped that, sometime in the last year, both parties would realize that it's time to stop demonizing each other's views and try to work productively with each other.

But I haven't seen that. Instead, I've seen polarizing votes and name-calling (on both sides); I've seen my own political party cave in on some long-term and deeply held principles; I've seen votes on bills that few (if any) people have read; and I've seen (at best) a shading of the truth by both parties when it comes to the projected effects of several bills.

What I haven't seen is a willingness to sit down and talk through the issues as if Congress cared about the solutions, rather than caring about whether votes on bills will affect re-election odds. I'm tired of people "so concerned with keeping [their] job[s] that [they've] forgotten to do [their] job[s]." See the clip from The American President here--it captures my feelings quite well. Although I don't agree with everything that Michael Douglas's President Andrew Shepherd says in this well-written speech by Aaron Sorkin, I sure agree with the sentiment that governing is all about character. And I haven't seen a lot of demonstration of character in our legislative representatives lately.

Look: I believe that the two things that help people overcome obstacles are good health and a strong education. I believe that the better-off should make sure that there's a basic standard of living for those worst-off, although I don't believe that government is always the right way to effect that redistribution of wealth. I believe that people who take excessive risks should bear the responsibility for those risks. (If their risks pan out, great; I'm a big fan of capitalism. If their risks don't pan out, though, they need to reap the consequences of those risks.)

But I also believe that we shouldn't try big, sweeping changes unless there are no other options. I believe that all legislation has unintended consequences of which we should beware (credit card bill, anyone?). I believe that probably no one understands the best way for our economy to recover and that therefore we should listen to a variety of ideas and not just to party-line rhetoric. And I believe that increasing taxes and reducing options for paying for uncovered medical services by reducing the cap on flexible spending accounts doesn't inure to the public's benefit.

As antediluvian as it sounds, I actually don't believe that everyone has a "right" to universal health care or that everyone has a "right" to a college education. There are rights, and there are "wish lists," and the two are very different. I do believe that a strong society should make all reasonable efforts to secure health care and education, but that--as with most things--there are tradeoffs of which we should be cognizant. Some of those tradeoffs include deciding at which point our deficit is so large that we should work hard not to increase it.

I do believe in raising taxes for certain objectives, but I don't believe in raising taxes as some sort of cure-all. (For example, I believe that Nevada needs to increase its tax base in order to diversify its income. Basing taxes on only one industry is a recipe for disaster.) And I believe that we should be very careful when raising taxes so that, again, we don't have unintended consequences. I'm particularly worried about small businesses and how they're going to survive in this recession. What are the mandates and increased taxes going to do to stimulate the economy? I'm sure that some increase in our taxes is necessary, but I doubt that we're raising taxes with a surgical scalpel. Instead, we're using a sledgehammer.

I'm tired of sound bites that blame the other party--EITHER party--for the nation's ills. I'm tired of sound bites that make the solutions sound simpler than they actually are. I'm tired of sound bites that pretend that fixing one problem won't lead to the creation of other problems. Most of all, I'm tired of Congress acting first and thinking second, if at all.

There are, of course, good senators and good representatives. I worry, though, that their voices are outshouted by those who are first in line for taking credit and last in line for taking blame.

Pretty much everything in this world comes down to character. Let's see if we can get our elected representatives to remember that.

My hair guru in action!

See here. Yay, Sara!

Thursday, November 19, 2009

Continental Airlines sees box, refuses to think in or out of it.

I am sitting on a "weather-delayed" (or could it be the delay caused by the massive computer glitch, here?) flight from Austin to Houston IAH, hoping to get there in time to board my flight from Houston to New Orleans. I need to be in New Orleans TONIGHT, because I'm testifying in a court case tomorrow morning.

When I called Continental to see what it could do if I missed my connection, the customer agent (yes, I've omitted the word "service"--intentionally) told me that all other flights were sold out, she couldn't help me find another flight on another airline, and that she could put me on a flight in the morning which would get me to New Orleans after I was supposed to be in court.

So I got on my computer, went to, and found a first-class ticket on a later Continental flight from Houston to New Orleans. Price? Just a hair more than the original ticket.

You tell me: how difficult is it to tell a distressed customer that there are first-class seats available on the sold-out flight?

Southwest Airlines doesn't treat its customers with this much disdain. Normally, I like Continental. I really do. (I love Southwest--that's the difference.) But c'mon. The entire nation is having flight problems today, and the customer agent doesn't want to look at other alternatives?

For shame, Continental. For shame.

UPDATE: I made it to my original connecting flight with 5 minutes to spare, and Continental refunded the back-up ticket. So at least it improved on its original customer service glitch. Thanks, Continental--but please learn to think a bit more broadly when travelers seek help.

Law students, grammar, and the practice of law

I'm hearing through the grapevine that some of my law students were unhappy with the grades that they received on their group papers this semester. I told them to find a movie with legal ethics issues and write about those issues. (Sneaky way to reinforce what they're learning, eh?)

The good news: for the most part, they did good work analyzing the ethics issues in the movies. The bad news: most of them made proofreading and grammatical mistakes.
The statistics: because virtually every group did a good job on the analysis, I curved the grades based on their mistakes in proofreading and grammar.

I'd warned them that no one could get an A on this assignment without good grammar and few proofreading mistakes. Why am I so strict? Because no matter how good their analysis is, if they can't showcase their work with decent writing skills, their employers and their clients won't be impressed.

I don't know where students get the idea that employers and clients (and law professors) don't care about writing skills. It's one of the key skills that lawyers must have. And our writing program at Boyd is not just good--it's superb.

So here's a request for my lawyer (and client) friends out there: please weigh in on this post. Do you care about how your lawyers write? Does it matter to you if they say good things, but say them poorly?

Many thanks.

Tuesday, November 17, 2009

Well, duh....

The SuperLawyers law school rankings are out (see here for a leak of the results). As I predicted (here), older and bigger schools did well; younger and smaller schools (except for Yale, which counts as "older") did poorly.

I had emailed SuperLawyers to find out if its methodology was going to factor age and size of school into account. The folks there were very nice, but noncommittal--and you can see for yourself that the results show what I'd predicted.

Speaking of nice, I had occasion to call Bob Morse of USNWR last week for some info, and as always, he was extremely helpful and courteous. Not everyone agrees with his methodology, but no one can argue with his willingness to be accessible.

Saturday, November 14, 2009

New SuperLawyers rankings of law schools punishes smaller, newer schools

In the world of rankings, more info is usually better, but only when the ranking is fair(ish). SuperLawyers is about to release its new law school rankings, which consists of counting the number of lawyers making SuperLawyers from each school and then ranking the law schools according to the headcount.

Nice try, but won't smaller or newer schools (and yes, I teach at a small, new-ish school) suffer from not having the quantity of graduates that the larger and older schools have?

Ah, well--if we start ranking schools based on inverse height of bankruptcy professors, Boyd will do pretty well (but we'll have to exclude our two bankruptcy judge adjuncts, because one of them is way too tall to help us on such a ranking).

Wednesday, November 11, 2009

Sad news about Fred Zacharias

I read on Brian Leiter's blog this morning that Fred Zacharias had passed away (see here). I had the opportunity to visit with Fred a number of times at conferences and, like a lot of folks who study professional responsibility, really enjoyed his scholarship. He had a keen mind and was quite generous of spirit in helping others with their work. Once again, untimely passings are a reminder of how important it is to tell people while they're alive how much they mean.

To Fred's friends and family, please know that my thoughts are with you at this most difficult of times.

Monday, November 09, 2009

Happy birthday, Marine Corps!

10 November 1775-10 November 2009 (so far). I'm so proud of the Marines I know, from Joe Reynolds, Racehorse Haynes, and Harold Hyman, all the way to John Ames, David Polyansky and the three Van Niels (my hubby, my bro-in-law, and my father-in-law). I'm also proud of the Marines I haven't even met yet. What an amazing organization! Some of the best lessons on leadership and character come from the Marine Corps.

Semper fi, and happy 234th birthday, Marines!

Click here for a YouTube video of the Silent Drill Team. Click here for another Marine Corps video. Click here for this year's birthday message. For the Marine Corps Hymn, click here and here.

Saturday, October 31, 2009

More on John O'Quinn

His New York Times obituary (here). As I read various comments to posts about John's death, I'm struck by two things: first, how many people actually did appreciate his work, and second, how many people wrote anonymously nasty comments about him.

People either liked John or hated him. I think that very few people really knew him. They were reacting to what they read about him or what they heard from third parties.

Some take-aways: I think that John would have felt gratified to have known how many people did think highly of him, and I think that he would have liked to have known that he was important enough to have made the NYT's obituary page.

For anonymous posters who make gratuitous comments about people they don't know, you need to remember that every human is someone's son or daughter. If you're a pundit, a poster, a blogger, you may want to say something nasty about someone--and sometimes, that nastiness is well-earned. But every time you write something for public consumption, at least think about the fact that the person is human before you post it. If you still want to post it, go ahead. (I've read enough horrifying things about myself online to be inured to it by now.)

Oscar Wilde once said, "A gentleman is one who never hurts anyone's feelings unintentionally." Think before you post.

And John, I'm sorry that more people didn't tell you that they appreciated you while you were alive.

Thursday, October 29, 2009

John O'Quinn killed in car accident

I'm still in shock after hearing that John O'Quinn was killed in a car crash today (see here). I got to know him fairly well from my time at the University of Houston Law Center, and it's fair to say that he was a complicated man. Clearly talented as a litigator, obviously generous in several ways, he was still tormented by ethics complaints and personal issues.

I know that he reached out to me after my mother died, and he reached out to me and to the school after the Law Center (to which he gave a significant amount of money) was inundated with more than 14 feet of water after Tropical Storm Allison.

He had a hunger to be appreciated and valued, and I think he had the problem that most very rich people do: not knowing who one's true friends really are. That must be extremely difficult, and I'm sure that it's lonely.

He does leave behind some true friends (as well as several people who will be more than morbidly curious about his estate). Although we spoke from time to time after I left Houston, we lost touch over the past year or so. I'm sorry for the way he died, and I'm sorry for the personal demons that kept his intelligence and talents from staying in the forefront. I liked him, most of all for the charity that he did behind the scenes that never had his name visible and for the real love that he had for the strategy of trying cases. (Yes, yes--his name is on several buildings, but he wrote a lot of checks that never had his name attached to the donations.)

Like many plaintiffs' lawyers, I think that one of the things that drove him was the desire to be a hero for his client. Whether that drive took him beyond the rules, I don't know. There are certainly allegations that he crossed the ethical line in a variety of ways in several cases, but as far as I know, although he was brought before the disciplinary committee more than once, I don't think he was found to have violated the rules. But I could be wrong about this issue. I don't think I'm wrong about his drive to be a hero.

Most people who are happy in their jobs don't do it for the money. They do it for the chance to use their talents to the best of their ability. If the money comes (and it did, in John's case), that's great. But I've never seen money make someone happy. I've seen money give someone peace of mind and security--not happiness. The ability to use your talents is much more likely to contribute to happiness.

Rest in peace, John. My thoughts go out to all of those who truly cared for you.

You've got to love this kind of contract drafting!

See today's front-page story in the Wall Street Journal (here).

Friday, October 23, 2009

I don't think garden-variety caps on executive compensation are the way to go--but I don't care if there's a rush to the exits, either.

Joe Nocera's column in this morning's New York Times (here) once again gets it right: it's not about the caps, it's about the boards of directors deciding about compensation packages in the first place. If shareholders are unhappy with who's getting paid what, the fix is with getting rid of the folks believing the hype about who has to get paid the gargantuan bucks.

Look, I'm a firm believer in capitalism. I don't believe that the free market system works perfectly--obviously, we don't have anything near perfect information--but I have no problem with people making money, even scads of money. But boards of directors who let people get scads of money for failing abysmally, year after year, just aren't doing their jobs. Rewards aren't aligned with risks, and that's why so many boneheaded risks are being taken. It's all upside and no downside, because the risks are being paid for with other people's money.

Want the C-level officers to take more reasonable risks? Then create incentives for them to have more skin in the game? (Of course, that's what stock options were supposed to be about, but those options didn't quite work out the way we hoped.)

Boards are being told by compensation gurus that the best people won't work for less than huge salaries, all of which have to be earned up-front, or close to it, or these best folks will bolt for better jobs. Fine. Let them bolt. Heck, hold those doors open for them so that they won't bruise themselves during their dash for better, more lucrative work.

In a wonderful case, reported by WSJ Blog's Peg Brickley here, Bankruptcy Judge Jeff Bohm said "no mas" to ludicrous requests for compensation:
Oblivious to recent congressional and public criticism over executives of publicly-held corporations who are paid monumental salaries and bonuses despite running their companies into the ground, two investment banking firms now come into this Court requesting that they be employed under similarly outrageous terms. They do so because two committees in this Chapter 11 case have filed applications to employ these investment banking firms to perform valuation services even though two other independent firms have already performed similar valuations. These investment bankers, who wish to have their fees and expenses paid out of the debtor's estate, have sworn under oath that they will render services only if they immediately receive a nonrefundable fee aggregating $1.0 million. This Court declines the opportunity to endorse such arrogance. The purse is too perverse.
In observing that the two investment banking firms' proposed compensation was significantly higher than the compensation that an already-retained firm was charging in the same case, the bankruptcy judge also pointed out that
one other investment banking firm--i.e. Parkman Whaling--has already been retained to provide similar valuation services in the case at bar without demanding such a high premium; Parkman Whaling has received $75,000.00 per month, which is substantially lower than the fees demanded by Houlihan Lokey and Tudor Pickering. It is entirely legitimate to ask why Houlihan Lokey and Tudor Pickering are unwilling to work under the same or similar terms as Parkman Whaling. Neither Houlihan Lokey nor Tudor Pickering adduced sufficient testimony at the July 15, 2009 hearing to convince this Court that they should be treated so differently--indeed, so much more favorably--than Parkman Whaling. Stated differently, Parkman Whaling is as capable and competent an organization as Houlihan Lokey and Tudor Pickering, and to approve the far more exorbitant terms demanded by Houlihan Lokey and Tudor Pickering would suggest that these two firms somehow provide services that are superior in quality than those provided by Parkman Whaling. There is nothing in the record to suggest that this is true.
The court then highlighted its shock at the tone-deafness of some of the specific compensation requests:
Nevertheless, the Court feels compelled to discuss the initial provision in the proposed terms requiring a daily witness fee of $25,000.00 because the very fact that Tudor Pickering made such an audacious request underscores how oblivious the investment banking community--or, at least this one investment banking firm--is to the extremely hard economic times in which the country in general, and this Debtor in particular, find themselves. This Court believes that a discussion of the $25,000.00 daily witness fee request is appropriate to telegraph to the business bankruptcy bar and the investment banking community how unseemly this request really is.
One of the best parts of the case is the footnote immediately following this part of the court's opinion:

For example, the men and women of our nation's armed forces, who risk their lives to preserve and protect the abundant freedoms of this country, earn an annual salary that barely exceeds Tudor Pickering's proposed $25,000.00-per-day appearance fee. See United States Army Public Website, Benefits--Total Compensation, (listing the average annual salary for a military police sergeant as $26,967.00). Moreover, there are numerous other occupations whose members are in daily physical danger and who provide absolutely necessary services for our society but yet are paid an annual salary approximating the requested daily fee of the Tudor Pickering witness. For example, a nursing-aide at a public hospital, can expect to earn less annually than what Tudor Pickering is requesting for each day it appears for a hearing. See United States Department of Labor, Bureau of Labor Statistics Website, Occupational Employment and Wages, May 2008, Nursing Aides, Orderlies, and Attendants, http://www.bls. gov/oes/current/oes311012.htm (listing the average annual salary for a nursing-aid as $24,620.00). Finally, public school teachers who are educating future generations can expect to earn barely more in one year than Tudor Pickering seeks to be paid for each day that it appears for a hearing. The per annum salaries of the military personnel, nursing-aides, and public school teachers, compared with the requested daily fee of $25,000.00, speaks volumes about the level of hubris among some members of the investment banking community.

(Citation omitted.) In concluding its opinion, the court refused to fall for the adage that the requested compensation had to be paid or the case would lose the opportunity to get the best and brightest minds:

The exorbitant fees requested by Houlihan Lokey and Tudor Pickering are similar to the "appearance fees" which certain of the world's top athletes--for example, Tiger Woods--are able to command. However, unlike Tiger Woods, whose presence does guarantee a financial benefit at any event where he appears, neither of these two investment banking firms introduced any testimony or exhibits guaranteeing some benefit to the estate in this case. They expect to be paid an appearance fee for simply showing up--not only do they not guarantee success; they do not even guarantee they will work a minimum number of hours in order to try to achieve success. This Court will therefore not approve the payment of their requested "appearance fees." Tudor Pickering is not Tiger Woods. Nor is Houlihan Lokey.

In In re Mirant Corp., 354 B.R. 113 (Bankr. N.D. Tex. 2006), the Honorable D. Michael Lynn made some very telling comments about the integrity of the process with respect to financial advisors demanding guaranteed compensation under [sec] 328:

The court erred seriously in entering orders which left it so little discretion in assessing the work of the financial advisors. Though the court was given to understand Debtors and the Committees could not obtain competent financial advisors without assurance that there would be substantial "success" bonuses, whether or not each advisor could show it had earned such a fee, the court has since learned that some financial advisors, at least, will accept more conventional arrangements in terms of compensation. In the future, the court hopes and expects that parties in large chapter 11 cases in this and other districts will seek out financial advisors that are willing to have their work judged on a basis similar to the rules applied to other professionals.

In re Mirant, 354 B.R. at 128 (emphasis added). In effect, Judge Lynn has recommended that parties in large Chapter 11 cases should call the bluff of investment bankers who make Shermanesque statements that they will only provide services pursuant to a huge, guaranteed fee approved under [sec.] 328. Judge Lynn is urging parties to respond to these investment bankers by telling them that if they will not work under the more conventional arrangements pursuant to [sec.] 330, or at least pursuant to reasonable fee arrangements under [sec.] 328, then the parties will find one or more of their competitors who will. Implicit in Judge Lynn's remarks is that if the parties themselves give in to these investment bankers, then the bankruptcy courts themselves must call the bluff of these financial advisors and challenge them to accept reasonable fee arrangements.This Court shares Judge Lynn's concerns about the integrity of the process and also accepts his remarks and advice. Given the state of the record in this case, this Court will not approve the proposed enormous fees for Houlihan Lokey or Tudor Pickering, but rather chooses to call their bluff. Every other key professional in this case--including the investment banking firm of Parkman Whaling--has agreed to reasonable fee arrangements that are governed by, among other orders, the Procedure for Professionals Order, the Cash Collateral Order, and the Budget. Given the state of the record, there is no good reason why Houlihan Lokey and Tudor Pickering should be exempt from these same reasonable compensation arrangements. This Court does not want to make the error (about which Judge Lynn cautions in Mirant) of approving the Applications and later learning that some other financial advisors would have accepted much more reasonable compensation arrangements, which include agreeing to oversight by this Court. Indeed, given that Parkman Whaling, an investment banking firm every bit as competent and qualified as Houlihan Lokey and Tudor Pickering, was willing to work for a reasonable fee, this Court's approval of the compensation schemes proposed by Houlihan Lokey and Tudor Pickering would not only be an error; it would be a gross error.

(Footnotes and citations omitted). Judge Bohm added that "Judge Lynn's willingness to concede his mistake [in Mirant] in order to educate others and improve the bankruptcy system underscores his own high integrity and brilliance."

My point? A judge in Houston, Texas understands the difference between good compensation for good work and unreasonable compensation for very little work. And he's not the only judge with, well, judgment. I'd expect boards of directors to be able to distinguish gold from dross as well. If they can't, then let's vote them out and vote in others who can distinguish the two, and who have the courage to do so.

Thursday, October 22, 2009

I couldn't be happier.

While enjoying my morning coffee, I read that two of the Yale Law women who were woefully abused by anonymous posts at AutoAdmit a few years ago settled their lawsuits against the posters (see the ABA Journal story here). Those anonymous posters weren't trotting out any of the usual excuses for hiding behind pseudonyms: fear of retaliation, fear of losing their jobs, etc. They were cowards and bullies, pure and simple. And now, at least one of them has been named--and publicly shamed.


Monday, October 12, 2009

Hat tip to Brad Wendel for another great post on morality

Over at Legal Ethics Forum: see here.

BTW, where did Prof. Wendel get his undergraduate degree? Oh, yes: RICE UNIVERSITY.

Happy Rice Day, all you Owls out there....

What exactly DO law professors do all day?

Well, I know what one of us is doing. I'm working on an article studying what happens on appeal when lawyers are sanctioned for bad behavior in bankruptcy courts. (If you have any particular ideas on this topic, please pass 'em along....)

And, thanks to John Steele over at Legal Ethics Forum, I found this interesting case (here).

So far, what I've found out is that judges, when writing opinions sanctioning lawyers, are exceptionally clear about what behavior has irked them so. These sanctions opinions have some of the crispest language I've ever read--sad tales, all, and you can just about hear the anger and clenched teeth that the judges have while writing the opinions.

Oh, and one other thing some law profs do. We blog.

Saturday, October 10, 2009

Op-eds and columns in the WSJ and the NYT

As I get older (which, darnit, I appear to do with some regularity), I find myself looking forward to reading certain columnists: among others, Gretchen Morgenson, Joe Nocera (check out today's wonderful column, here), Floyd Norris, and Thomas Sowell (yes, Tom Sowell--so much for you tagging me as a liberal).

I've noticed, though, that I tend to read the NYT for its business news and the WSJ for its op-eds. It used to be the other way around. I'm not saying that I ignore the WSJ's business news--far from it--or that I never agree w/the NYT's op-eds.

Perhaps I'm just contrarian, and now that the Democrats are back in power, I like hearing what the other side has to say. But perhaps I fear groupthink on either side of the political spectrum. We've all seen what happens when a majority congratulates itself on its correct-thinking tendencies, without having some "loyal opposition" challenging whatever notions are popular.

My guess is that most of the country is solidly moderate, as I am. But who knows? I'll be watching the 2010 elections, knowing full well that, whatever happens, both sides will be reading the entrails for prophecies about what it all means.

Thursday, October 08, 2009

Best moment in PR class today

I was talking about bar applications today and the fact that I waited until after I passed the California bar to bring my dog-bite case to a lawyer, so that I didn't have to amend my bar application to add that I was a plaintiff in, well, a dog-bite case.

One of my students raised her hand and asked, "Wasn't that unethical to wait until afterwards to file suit, just to avoid amending your bar application?"

My first thought was that the statute of limitations had barely begun to run on the case (I was bitten in January; took the bar in February) so I was well within my rights to wait. But she caused me to think about the bigger picture. I answered her: "Yes. You're right. I should have gone ahead and updated my application and gone ahead with the suit."

Good for the student for calling me on this one. I like the fact that she was comfortable enough in the class to ask.

Plug for a Boyd law student's band

Am prepping for class right now, listening to Awakenings, an album by the band Cherry Hill. Seth Floyd, one of the musicians in the band, is also a student at Boyd. I'm really enjoying the album, and now I can add Seth to the list of lawyer-musicians I know, including Glenn Reynolds.

Some nice news about a new ambassador

See here. Hat tip to my buddy Seymour for pointing this out to me. Now we need to figure out how to fix "don't ask, don't tell" and marriage prohibitions.

Tuesday, October 06, 2009

Value-maximizing during a jobs crisis, or rankings-management?

As I read about George Washington Law School's decision to take fewer evening students this year (see here) in response to a drop in the USNWR rankings, I see GW's decision as one more step in the tail of rankings wagging the dog of legal education (see my prior posts here). As a strategy matter, I get GW's decision: the rankings feed directly into law firms' decisions about how deep into a school's class to interview on campus, and the rankings also feed directly into the buzz surrounding submissions of professors' articles to law reviews. So a law school's decision to ignore the rankings would have serious negative consequences in several areas.

And yet, how far are we going to let the rankings dictate law schools' admissions, curricular, and placement policies? USNWR is just a news magazine, after all. Its rankings exist far more to sell advertising and its rankings themselves than for its stated objective of providing useful consumer information. (Useful consumer information would concentrate more on what goes on during a student's law school education than on the inputs of LSAT and undergraduate GPA, and it wouldn't rely on surveys with relatively small numbers of participants to judge "quality.")

Until the more elite schools figure out how to deal with USNWR and its pressures on turf that used to be the province of reasoned faculty decisions about how to choose and educate law students, the rest of legal education is going to be hard-pressed to buck the trend.

If non-lawyers can push for writing in "plain language," why can't lawyers?

I woke up this morning to this delightful article (here) in the Wall Street Journal. Now there's a woman after my own heart! If she can argue for forms and announcements written in plain language (and she does -- persuasively), then we should continue her crusade. Brava, Ms. Maher!

Saturday, September 05, 2009

Please vote for this Boyd law student!

See here. Etai Movshovitz and his fiancee have been chosen by Ryan Seacrest as finalists for KIIS-FM's Perfect Wedding Contest. Etai's in my PR course. If we can keep this Boyd student's wedding costs low(er) (even though winning would cause him to have imputed income on which he'll have to pay taxes, of course), that would be lovely. Thanks!

Monday, August 31, 2009

A Brooklyn hero

A judge who makes foreclosure plaintiffs (the mortgage holders who want to foreclose) actually prove their cases: see today's New York Times story (front page, slightly above the fold) here.

Note to the lawyers drafting the complaints--shouldn't you make sure that you have the prima facie case correct before you file?

Hat tip to my buddy Seymour, who also saw the story.

Monday, August 24, 2009

Seriously, you've heard it here before -- billable hours are on their way out

See this morning's Wall Street Journal (front page, below the fold): here. See also here, here, here, here, here, here, and here. I know I'm becoming a broken record, but there's no way that clients are going to continue to help law firms meet their budgets (and keep associate salaries high--for those associates who still have jobs) on a piecemeal approach when they can simply shop around for equally talented lawyers who are willing to try alternative billing methods.

And while I'm on the subject of shopping around for professionals who are willing to do good work for lower fees, don't forget to read the Energy Partners case discussed in this Wall Street Journal blog post (here).

Sunday, August 23, 2009

The future of ballroom dance

Watch Martin Rivas dance quickstep (with Sergei Shapoval and Liza Smith) at this year's Nevada Star Ball): here. BRAVO, Martin!

Sunday, August 09, 2009

A nice way to learn about public service: Rachel's Rave.

Rachel Diehl, one of the student workers at Boyd, has started her own blog, which describes different ways to do public service in and around Las Vegas (and, ultimately, beyond). See here. Brava, Rachel!

Mazel tov to our friends Martha & Karen!

Who were married yesterday! See here. (And, yes, Jeff & I think that it's way cool that Martha & Karen's announcement made it into the New York Times!)

If you talk with Martha and Karen, ask them about their wedding cha-cha....

Thursday, August 06, 2009

Why I wish I had taken pictures of the Palm Beach Oceanfront Inn, 3550 S. Ocean Blvd., Palm Beach, FL, before I left this morning.

I had a great time at SEALS, as I always do, and this time, I had tried to keep costs down, so I stayed at a place down the road from the Ritz. Here's how the Palm Beach Oceanfront Inn describes itself (see here and especially here). I don't know when those photos were taken, but either Photoshop works miracles, or I'd checked into an alternate universe.

My room had all of the style of a Motel 6 (and there is nothing wrong with a Motel 6, when one is expecting to stay at a Motel 6) without any of the cleanliness or amenities. The bedspread was the second-scariest one that I've ever seen--the first scariest was the one that Jeff & I saw on our trek from Nebraska to Houston with our cat Calypso, and we had tried to sleep hovered above that bed in Oklahoma City. The floor was a greige-y linoleum, and the wall plug tried to come home with me when I unplugged my computer. I don't blame the wall plug. I wouldn't have wanted to stay in that room any longer, either. The refrigerator--actually, a nice touch--had a broken handle, but I was able to pry my way in.

I wouldn't have complained at all (hey, I'd asked for "inexpensive"!), except that when I checked out this morning, the front desk tacked on an additional "resort fee"--a last-minute charge. I asked the desk clerk what the resort fee was for, given that I was staying at a motel. He claimed that the resort fee was for parking (the motel parking slots???), beach access (the wooden stairs???), and computer use (behind the front desk???).

OK, Palm Beach Oceanfront Inn. Here's a tutorial for you, so that you can tell the difference between a resort and your motel.


Most decidedly not a resort

Valet parking

Parking in slots outside rooms, exposed to the elements

Several different places to eat

One place to eat, open at odd times of day

Pools (plural)

Pool (singular), slightly larger than a hot tub

Pool attendants, pool towels, food/drink service at pools

People anywhere near the pool

Gated access to beach

Serial killers can have access to your beach and your rooms

Luxurious rooms

Greige rooms

Luxurious bathrooms

Bathrooms that make you seriously consider buying flip-flops for shower

Luxurious bathroom amenities

The same amenities that you’d get in any other inexpensive motel

Fluffy towels

The same towels that you’d get in any other inexpensive motel


Night watchman (maybe) (I fell asleep, trying to get the image of the room out of my head)

Security guards

Lock on door

I don't mind roughing it (as long as "roughing it" includes cable TV). What I mind is sneakiness. So, Palm Beach Oceanfront Inn, here's hoping that every Google search pulls up this post. Have fun with the next guest who gets tagged for a resort fee at your motel. And, Mr. Front Desk, who--when I asked him if he was kidding about a resort fee--suggested that I stay at the Ritz next time, yes, I believe that I will.

Tuesday, August 04, 2009

A shout-out to Jason Solomon for letting me do some op-eds with him

Jason Solomon, a buddy of mine at U Ga. and one of the co-founders of the Race to the Top blog (here), has kindly let me hang out with him in a couple of op-eds talking about turning the USNWR rankings into something resembling a measure of actual quality, rather than a mere beauty contest. We published op-eds at The Daily Report (subscriptions-only access, though--sorry!) and in Inside Higher Ed (here).

Law school beauty contests, though, are intriguing. Can't get the image of all of us in swimsuits and talent contests out of my mind. Going to have to try, though. I don't want USNWR to think that such an idea would make for a marketable survey.

Tuesday, July 21, 2009

For all of our wounded warriors

See here (hat tip to my hubby for sending this to me). You can find out more about the Wounded Warriors Project here. You can donate to the project here.

Sunday, July 19, 2009

Anonymous postings are the last vestiges of cowards.

After reading the latest barrage of comments over at Wild Wild West's post about late grades (here), which managed to get picked up by the Wall Street Journal's law blog (here), I have to confess that I'm stunned that so many people feel compelled to post vitriol anonymously. Based on the tenor of their comments, I'm going to assume that the bulk of the anonymous posts were written by law students.

Even on the theory that law students often don't make the connection that they're actually going to be lawyers after they graduate and pass the bar, surely they realize that they'll have to sign letters and pleadings with their names as lawyers and that they won't be able to hide behind "Anonymous" sobriquets then? So why do they--as well as so many others--hide behind anonymous postings on blogs?

I doubt that most of them have a true fear of retribution. There are people in the world who can fear retribution: those who suffer abuse in relationships; those who are here seeking asylum from other governments; those on the wrong end of power imbalances with very nasty bosses. Those reasons are good ones for seeking anonymity. Lobbing nastygrams, especially without investigating the reasons that may have caused the complained-about situation in the first place? Not a good reason.

To you budding lawyers out there who are writing anonymous comments on the Wild Wild Law post above: maybe you should be anonymous. Were I to write some of what you've written, I'd be ashamed, too. When you become lawyers, though, you'll have to stop behaving so childishly. I'd be a lot more impressed with you if you'd have the courage of your convictions and sign your name to your comments. I have.

Saturday, July 18, 2009

A once-in-a-lifetime opportunity to relive Apollo 11.

Check out You can listen to what NASA heard 40 years ago.

Forty years ago, I was young enough to think that going to the moon wasn't a big deal. Now I know that it was a miracle--the science worked; the people involved worked up to their potential; and for a brief moment, everyone on Earth got to see an achievement of truly international import. As an adult, I love the space program and all that it brings us.

Thanks, NASA--your people do so much for us!

Monday, July 13, 2009

This just in: cats outrank us.

Thanks to my brother-in-law, more proof that Grace and Shadow rule our roost: here. Considering all of the stupid human tricks that these two cats have trained us to perform, we're not surprised.