Monthly Archives: May 2010

Bill Patry’s War on Copyright Rhetoric

William Patry, Moral Panics and the Copyright Wars (Oxford University Press, 2009)  (summary at OUP; related blog).

Bill Patry’s “Moral Panics and the Copyright Wars” is the latest word on the way in which copyright law has responded to technological change. In eclectic and humorous prose, drawing on history, linguistics, philosophy, behavioral economics and the Bible, among other sources, Patry provides harsh criticism of the ways in which Congress and the copyright system have responded to disruptive technologies such as the VCR and file-sharing networks – and by “responded”, Party means did whatever the content industries demanded.

The book sets out the well-formed perspective of an important figure within the copyright cognoscenti. For almost three decades now, Patry has engaged with the copyright system in various roles, including a practitioner in private practice, full-time academic, author of a multi-volume copyright law treatise, copyright law blogger, copyright advisor to the House of Representatives and policy advisor to the Copyright Office. His intimate familiarity with the copyright system makes the pessimistic tone of his book especially notable. Continue reading "Bill Patry’s War on Copyright Rhetoric"

Deconstructing Stock Options

In “The Non-Option,” David Walker expertly dissects one of the puzzles of employee stock option compensation: why stock options are always granted at the then-current market price for the stock, resulting in “at-the-money” options.  If parties could tailor their compensation packages to individual needs and desires, one would expect that at least some firms would agree to give their employees stock options that had an exercise price lower than market price (known as “in-the money” options).  Indeed, the desire for in-the-money options was so strong that hundreds of companies essentially created them through illegal option backdating.  Recent changes to accounting rules were thought to have dampened the disparity in regulatory treatment between at-the-money and in-the-money options.  Walker’s article, however, explains how tax law has stepped in to continue this familiar bifurcation in treatment.

The narrative of the rise and fall of stock options begins in the early 1990s.  In order to encourage shareholder primacy and efficient corporate management, scholars and policymakers set upon a course of promoting incentive-based executive compensation.  This programme found its instantiation in IRC § 162(m), which allowed companies to take unlimited tax deductions for compensation earned “solely on account of the attainment of one or more performance goals.”  Since the deduction for other pay (such as salary) was limited to $1 million, this gave substantial corporate tax savings to performance-based pay.  Stock options became a natural way to provide this kind of pay.  Longstanding accounting rules took a “face-value” approach to the valuation of options because of the difficulty in calculating their value.  Under these rules, a company incurred no expense (for accounting purposes) when issuing at-the-money options; the options only needed to be expensed when the employee exercised them.  As a result, “costless” and deductible stock options fueled the Internet boom and the late-1990s stock surge.  However, increasing pressure to account for the real value of options led the Financial Accounting Standards Board (FASB) to change its rules in 2005.  FASB now requires that at-the-money options be expensed.  This change, along with the stock market bust in the early 2000s, cooled companies on options and led to more of a mix between options and restricted stock (as Walker describes in this article). Continue reading "Deconstructing Stock Options"

The Return of Banishment: Punishment and Policing

Katherine Beckett & Steve Herbert, Penal Boundaries: Banishment and the Expansion of Punishment, 35 Law & Social Inquiry 1 (2010).

Hear the word “banishment,” and the image that comes to mind will likely hail from an earlier time.  Think Anne Hutchinson’s expulsion from the Massachusetts Bay Colony in the seventeenth century, or the transportation of British and Irish convicts to Australia in the nineteenth century.  Banishment went the way of the rack and screw, so the thinking goes.  Instead, the predominant form of modern punishment is a form of confinement: incarceration.  If modern punishment is incarceration, and the criminal justice system its primary source, then anyone interested in modern punishment need look no further.

One of the chief virtues of a sociological analysis of law is that it loosens the grip of rigid thinking like this, particularly with respect to emerging developments that don’t fit into existing categories of scholarly attention.  This is the goal of Katherine Beckett and Steve Herbert’s Penal Boundaries, Banishment and the Expansion of Punishment, and they’ve achieved it in such a way that makes it a compelling read for scholars and teachers of criminal law. Continue reading "The Return of Banishment: Punishment and Policing"

Queued Post from Z2

Michael Froomkin

Michael Froomkin


I wrote this on Sat, May, 22 at 5pm, but set it to publish on Sunday at 9am.

This year we are going to reorganize the article submission and editing process in the hopes of making it easier, and also reducing the chance of any article falling through the cracks. (We’ll probably use the old system during the 2010 summer, then move to the new system in late August 2010.) Continue reading "Queued Post from Z2"

2nd Test of Automated Posting ZetaSec –> Zeta

This post was authored on Sat, May 22 at 2:45pm.   I have just changed the settings on Zeta to reflect (1) that updates are from a cron file rather than from zeta itself being loaded; and (2) that updates should be posted automatically rather than manually.  If this post appears on Zeta, the changes did what I expect.

Now we need some filler. Zeta" class="more-link">Continue reading "2nd Test of Automated Posting ZetaSec –> Zeta"

Testing Automatic Posting to Zeta from Zetasec

This post was authored on Sat, May 22 at 2:35pm.   I have just changed the settings on Zeta to reflect (1) that updates are from a cron file rather than from zeta itself being loaded; and (2) that updates should be posted automatically rather than manually.  If this post appears on Zeta, the changes did what I expect.

Now we need some filler. Continue reading "Testing Automatic Posting to Zeta from Zetasec"

Zeta2 Test Post on Feb. 21

Michael Froomkin

Michael Froomkin


Just trying test test from zeta2

Each section is (or should be) managed by a pair of Section Editors who have independent editorial control over that section. The Section Editors are responsible for selecting a team of ten or more Contributing Editors. Section Editors also commit to writing one Jotwell essay of 500-1000 words per year (a “Jot”) in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Section Editors also are responsible for approving unsolicited essays for publication. Continue reading "Zeta2 Test Post on Feb. 21"

Armageddon for the Legal Profession?

Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2008) (summaries at OUP and

Legal professionalism is prophesied an apocalypse with increasing frequency. The territory covered by The End of Lawyers? is the threat posed by IT.

Susskind’s big idea is that technology will create a future where lawyers are not the dominant interface between citizens and the law. Acting as a consultant to law firms on IT has confirmed his view that they suffer from conservatism, hostility to innovation and resistance to information technology. He chaired the UK Advisory Panel on Public Sector Information, currently sponsored by the Ministry of Justice, and remains the IT adviser to the Lord Chief Justice of England and Wales. His ideas are glimpsed in the directions that the UK government has taken since Susskind’s 1996 bestseller, The Future of Law. One of his   predictions, online legal communities–cross between Facebook and Wikipedia–sponsored by government surfaced in the Community Legal Service. His ideas have more traction in the UK, but are as transportable as the technology around which they are woven. Continue reading "Armageddon for the Legal Profession?"

Methodology in Jurisprudence

Joseph Raz, Can There Be a Theory of Law?, available at Googlepages; also available in Joseph Raz, Between Theory and Interpretation (Oxford, 2009), pp. 17-46; and in Martin P. Golding & William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell, 2004), pp. 324-342.

For decades, if not centuries, discussions in Jurisprudence classes often start with the question, “What is Law?”  What then ensues is usually the bandying about of various conventional or off-the-wall definitions (depending on the tastes and inclinations of the teacher or coursebook editor), followed by a predictable reading and discussion of the 1958 Harvard Law Review debate between H. L. A. Hart and Lon Fuller, perhaps with some reference thrown in to Ronald Dworkin, or a natural law theorist (either very old, Thomas Aquinas, or more recent, say, John Finnis).  By then, it is considered safe to abandon discussions of the nature of law and go on to the next topic.

The problem with these discussions is that they skim across the surface of jurisprudential debates without ever reaching the core.  Courses may include debates about whether the Nazis had law or not, or whether we have a moral obligation to obey the law, but still there is little attention to all that is being assumed by any discussion of theorizing about (the nature of) law.  However, one should not be too quick to blame the teachers (or coursebook editors).  Even the theorists who wrote the canonical articles were not always clear, or helpful, about what is going on when theoretical claims are made. Continue reading "Methodology in Jurisprudence"