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Academic Notes

From time to time readers ask about my academic work. Here are some recent highlights:

I was interviewed recently for an article based in part on my new book, From Che to China, by, of all places, Inside Fashion, an industry magazine published in Hong Kong. An English language version of the article can be found here and a Chinese language version can be found here.

I was interviewed and quoted extensively in Dan Schwartz’s new book on Private Equity and Dan named me to his “Class of 2010 in Private Equity and Venture Capital.” A link to the text can be found here. My comments to Dan were largely based on a paper I completed recently on organized labor and private equity which can be found here. It will appear as a chapter in a book edited by Peer Zumbansen (York) and Cynthia Williams (Illinois) soon.

I will be presenting my work on the financial markets with economist Jennifer Kuan, a research fellow at the Stanford Institute for Economic Policy Research, at a conference on the current economic crisis to be held at the New School next week. You can learn more about the conference here. Jenny, in turn, will be presenting our paper at the Industry Studies Conference at the University of Illinois Chicago soon after that. You can learn more about that conference here. And you can access a draft of our paper here.

What did John Yoo do wrong?

At the very least, John Yoo needs to re-think what it means to be a lawyer.

That is the minimal conclusion one reaches after reading the final report of the Office of Professional Responsibility of the Department of Justice and the final review of that report by the DOJ’s Assistant Deputy Attorney General David Margolis.

Margolis rejected the OPR conclusion that Yoo had engaged in intentional misconduct, but no one who reads both the report and the Margolis review letter can come away with anything other than a queasy feeling in their gut that someone like Yoo was advising the CIA during the early stages of the post-9/11 period.

As Margolis indicates, Yoo came to the position with his own personal view of expansive presidential power. He then used his position as a top legal advisor to the Executive Branch to assert that viewpoint.

As Margolis conceded:

“While I have declined to adopt OPR’s findings of misconduct, I fear John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligations to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.”

Yoo was asked by the CIA for legal advice about the use of interrogation techniques. Specifically, whether or not these would be considered torture and thus subject CIA officers to legal liability. The CIA was so concerned about this potential liability that it actually asked for “advance pardons” in case of future prosecutions.

In other words, the CIA was looking for a “Get Out of Jail Free” card and they asked John Yoo to provide them one.

Although it should have been perfectly clear to Yoo that his view of presidential power was not sufficiently well accepted to assure the CIA that they would not be held liable at some point in the future he nonetheless advised them that they could engage in tactics like water boarding.

When a lawyer is asked for advice about the law he is really being asked, as Oliver Wendell Holmes suggested, to predict what it is that a judge (or jury) is likely to do if they are asked to assess what happened. A lawyer’s client deserves no less.

CIA officers involved in the “war on terror” have already faced liability for their actions in Italy. It may only be a matter of time before they face prosecution in the United States.

When the CIA called Yoo they needed a lawyer. An ideologue answered the phone and sadly misled them. As a result it is likely that hundreds of people were needlessly and illegally harmed.

One wonders if the UC Berkeley Law Dean, Chris Edley, who has hidden behind John Yoo for several years will have the courage to respond appropriately. While Yoo cannot have his tenure revoked, there is nonetheless a need for other action to be taken here if only to put students at Berkeley on notice about the actual content of Professor Yoo’s behavior and ideology.

Did Al Gore Really Say That?

Al Gore has millions invested in his climate change myth according to the New York Times. He defends himself by calling his critics “deniers” – what, as if they were denying the Holocaust?

The myth, of course, is not whether or not global warming is taking place – although some of the same people who told us 20 years ago to expect an Ice Age are now telling us the opposite.  No, the climate definitely changes and the direction is a subject of legitimate debate.

The myth, of course, is whether human carbon contribution has anything to do with it. Ice core samples over 400,000 years demonstrate that in fact warming PRECEDES carbon change by some 800 years.

Gore’s Dual Role in Spotlight: Advocate and Investor – DealBook Blog – NYTimes.com.

A Nobel No One Can Deny

6a00d83458654369e200e54f2bc63f8833-800wi1Berkeley Economist Oliver Williamson and Indiana University Political Scientist Elinor Ostrom shared the Nobel Prize this week.

My long time favorite for the prize has been Benoit Mandelbrot. Mandelbrot’s work on the behavior of prices in markets should have helped us avoid the recent financial collapse, but until very recently his work has been give far less attention than it deserves.

The book The Black Swan by Nassim Taleb is built off of the theoretical work of Mandelbrot.images-13

Mandelbrot makes the point that the rational actor approach to the markets ignores the “wild” nature of actual pricing in financial markets. So-called “efficient markets” advocates mistakenly apply concepts borrowed from physics to markets, ignoring the absence of phenomenon like inertia in those markets. He argues that there is a fractal structure to pricing of financial assets that could be far more powerful in explaining the apparently inexplicable nature of financial markets.

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Perhaps next year as the drama of the recent collapse of our financial markets has sunk in, Dr. Mandelbrot will finally gain the recognition he deserves.

Nonetheless, I am particularly pleased to have heard of Dr. Williamson’s award. I was trained in law school in his tradition, what is known broadly as the “new institutionalism” or “new institutional economics.” Most of my research today looks broadly at the importance of institutions as opposed to simple images of arms length markets in understanding how the world works.

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Some news on the academic front

images4I don’t talk too much here about my academic work but I do get asked about it from time to time so I thought I would update King Harvest readers. My general interest is in the impact of globalization on political and financial institutions. I am generally of the view that globalization is a very much more problematic process than is widely believed. I am also working closely with Jennifer Kuan at Stanford’s Institute of Economic Policy Research on institutional structures in our financial markets

First off, I have just put the finishing touches on a book, From Che to China: Labor and Authoritarianism in the New Global Economy. It will be issued by Vandeplas Publishing, an independent legal publisher, in the next month or so.  It argues that the decline in industrial relations institutions such as collective bargaining in the advanced economies emerges just as globalization is posing critical questions of industrial relations in many new parts of the world such as Asia and eastern Europe. Unfortunately, authoritarian forms of labor organization are now being seen increasingly rather than support for the traditional democratic trade union.  The book examines the question from several different angles and includes case studies as well as theoretical analysis.  And I also attempt to point to alternative approaches for labor organizations.  As soon as its up on Amazon I will let people know. Meanwhile you can read the chapter on Che Guevara here.

My work with Jennifer Kuan is progressing very nicely. We argue that the privatization of the NYSE through its 2006 IPO was actually damaging to the capital markets. The Old NYSE was actually a kind of socialistic entity – a mutual benefit corporation owned and governed by its members. That actually led to good things (for capitalism of course) and was quite stable. We made a preliminary argument in a law journal article we published in the Spring 2007 issue of the Duquesne Business Law Journal.  You can find a working paper version here.

Now we have actual data and have been presenting it at various conferences, including the ISNIE meetings at UC Berkeley and a conference sponsored by the Sloan Foundation in Chicago.  We presented a revised version again at IOFest at Berkeley a few days ago. We should have it in working paper shape soon and will post it to SSRN.  My SSRN page is here.

I have just recently finished another paper called Beyond Berle and Means: Private Equity and the New Capitalist Order which will appear as a book chapter in a collection called The Embedded Firm edited by Peer Zumbansen of York’s Osgoode Hall and Cynthia Williams of the University of Illinois (who just finished a two year visit at Osgoode).  A major British academic press is thought to be our publisher if all goes well.  The book grew out of one of the best conferences I have attended recently organized by Osgoode in February of 2008 (maybe it was great because I found out while I was up there that my wife was pregnant with our first child!).  I also presented the paper this summer in Paris at the SASE meetings (that’s Society for the Advancement of Socio-Economics).  That was also a great event and our panel was very lively. An early version of the paper can be found here. A shorter and livelier version was published by Dissent magazine as well for whom I write occasionally. That piece led to some interesting reactions from European labor folks, some liked it while others were upset at my concern about what I called the “populist” nature of their attack on private equity.

Another project is a book on the Equal Rights Amendment just in the final stages and to be issued by an independent press called the Center for Socialist History in Berkeley. I co-authored that with the late Hal Draper – an earlier version was finished but never published. In light of the very wide gulf today between arguments about gender and class today I think it will make a very useful contribution to the debate.

That’s it for now. Feel free to visit my law school home page for occasional updates and of course I will report on significant items here from time to time.

Chicago Man Donates Kidney to A Stranger

I don’t cry easily but the tears were flowing when I watched this story this morning. It may have been because Tom LeClair is my cousin – we grew up together in Chicago.

wbbm0929kidneydonorTom is probably the most selfless person I’ve ever met although he pointed out that he did this in part in memory of our other cousin, Tom Fielding, who gave a kidney to his sister, Jeri, some years back. Tom Fielding passed away a few years later at age 51. I wish I had half the courage of either one of these guys.

I spoke to Tom this afternoon and both he and the kidney recipient are doing well. Maybe Chicago has something to celebrate after all.

Hugo Chavez Romances Oliver Stone

1_63_090709_chavez_stoneOliver Stone accompanied Venezuelan strong man Hugo Chavez down the red carpet this week at the Venice film festival for the premier of Stone’s newest propaganda film on the wave of “left” authoritarianism sweeping across Latin America.

Just keep in mind that the film is likely as accurate about current Latin American politics as was Stone’s explanation of the Kennedy assassination.

When will the American stalinoid left learn that the enemy of my enemy is not necessarily my friend?  The race to embrace figures like Chavez (or even worse, Ahmadenijad or Hussein) by certain segments of the “left” is a mirror image of the policies of the US government for so many decades in Latin America and other parts of the developing world.  There the US frequently chooses to back hardline violent and authoritarian forces like the Nicaraguan contras or the recent coup against the Honduran president or the failed coup attempt against Chavez himself a few years ago.  This senseless policy only creates the political conditions that fuel the rise to power of pseudo-left authoritarian groups like the Sandinistas or Chavez.

In memoriam: Virginia Leary, stalwart supporter of international labor rights

Intlawgrrls has posted a much deserved tribute to my friend and colleague, Virginia Leary, who died this week in Geneva, Switzerland, of a heart attack at the age of 82. Professor Leary had battled cancer recently and her passing comes as sad news to those of us who have engaged in scholarship and political support of international labor rights. Virginia contributed a paper to the collection I published with Lance Compa and was always a valuable friend in the law school world. She taught at SUNY Buffalo for many years, as part of the admirable intellectual culture at the school, and then later at Hastings College of Law in San Francisco. She was also, of course, part of the Geneva international labor culture which is where she had retired.