More Angsting About Angsting

So ... I entered a piece in the law review submission free-for-all.  It has caused me to reflect further on this system that generally causes academic jaws to drop in every other discipline when you describe it. Being at this stage of my career (see Further Reflections on the End of Ambition) where placements tend to be a matter of bucket list check-off and pure ego, my heart really does go out to those whose angst is related to getting or retaining a job. I thought "ctr" (the Appointments Chair at a T50 school) offered some wise counsel in the comments, consistent with the data, about not getting too hung up on the relative rankings of the schools in which you place your pieces.

I do not discount the angst.  I recently went through the five stages of law review submission grief.

Denial:  [Imagine thought balloon if this were a cartoon] "Oh wow, I've been called now by the fourth different Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty to do a peer review of a submission.  I must be thought of as having scholarly chops well above the station otherwise indicated by the faculty letterhead on which I am obliged to submit my own work."

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Polito: The TCJA's Self-Created Patents Goof

I'm working Paul's side of the street here.  My colleague Anthony Polito (the best-dressed member of the Suffolk Law faculty) has posted Did Congress Goof? TCJA and the Taxation of Self-Created Patents and Inventions on SSRN.  Here is the abstract:

Congress, by the Tax Cuts and Jobs Act of 2017, amended the Internal Revenue Code so that patents and inventions created by the personal efforts of a taxpayer disposing of them are not capital assets, and therefore generate ordinary gain or loss. In and of itself, the action seems straightforward enough. It represents a policy choice about which reasonable minds can certainly differ, but it is a clear policy choice.

Congress, however, did not repeal or amend another, pre-existing, provision specifically granting capital gain treatment to specifically the same class of assets. What is the effect of Congress’s action under the circumstances? It is possible to reconcile the provisions as a matter of pure textual analysis. That reconciliation, however, seems quite contrary to the desire or intent of those who initiated the amendment because it leaves most gain from the disposition of the assets in question taxed at capital rather than ordinary rates.

This Article does not address the matter as a question of tax policy. Rather the question this Article addresses is the efficacy of the legislative process. What are the prospects for the proposition that self-created patents and inventions generate ordinary income as the Internal Revenue Code stands today? What action should be taken if the desire truly is to impose such ordinary income taxation and to deny capital gain taxation?

In the end, if the desire is to tax the disposition of self-created patents and inventions at ordinary rate, legislative action is the best option. This Article demonstrates that courts or the Treasury might rescue that resort, but that might not happen. If there is a bottom line to the analysis, it is this. Congress should, and should be expected to, clean up its own messes.

Coase and Fireworks

In my continuing effort to demonstrate what the mundane world looks like through the eyes of a nerdy law professor, today we will talk about Ronald Coase, recipient of the Nobel Prize in economics, and fireworks.

The bulk of this is cross-posted over at PrawfsBlawg.  But since it deals in part with Pigouvian taxes, it may appeal as well to nerdy tax law types.

Before we had dogs, I liked fireworks, at least the professionally staged kind.  Up here in Charlevoix, Michigan, every year in late July the town has a week-long event called Venetian Festival.  The highlight on Friday night is a spectacular fireworks show out over the lake for which our deck is effectively a front row seat.  For the last seventeen years or so, however, I have not been out on the deck nor have I seen the fireworks.  No, I am back in a closet with the door closed, comforting our dog(s) who is/are going batshit crazy.

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Self-Plagiarism (And The First And Second Laws Of Textual Physics)

June is my intense writing month, by and large, and I just finished up a draft that I described here.

If you are like me, and have been at this for a while, you probably have developed a theme that pervades your work. Mine has to do with how people, and lawyers especially, make tough judgments in the face of uncertainty. Not tough judgments (although they may be) in adjudication, but what to do when your nicely developed lawyerly rationality can give you five good reasons for doing A and five equally good reasons for not doing A. A perfect example was Meryl Streep as Katharine Graham deciding whether to publish the Pentagon Papers (I rented The Post last night), you either take the leap or you don't.  Not to decide is to decide.

Sometimes a sentence or a paragraph or a long footnote from a previous piece seems like it fits in the new one. It's so easy to copy and paste and - voila! - you've written 200 words - a nice chunk of the day's quota. At least at some point in the drafting of Persistence, I did that. Is it okay?  (Spoiler alert: as far as I know I made it okay under even the most stringent standards.) Thoughts on self-plagiarism follow the break.

 

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Can 'Dumb' Contracts Be Made 'Smart'?

I don't know if it's ready for Broadway, but the article I mentioned in a post a while back (it's gained two quotation marks since then:  The Persistence of "Dumb" Contracts) is all set for out-of-town previews on SSRN.  

There is a group calling themselves Blockgeeks, and one of their number shows up in footnote 1 for this headline from its website: “Smart Contracts: The Blockchain Technology That Will Replace Lawyers”.

The theme of the article is: "could that be?"  Spoiler alert: Probably not. Here is the abstract:

“Smart contracts” are a hot topic. Presently, smart contracts mostly consist as evidence of property, like crypto-currencies or mortgages, created and/or transferred on blockchain technology. This is an exploration of the theoretical possibilities of artificial intelligence in a far broader range of complex and heretofore negotiated transactions that occur over time. My goal is to understand what it means to make a contract smarter, i.e. to delegate more and more of the creation, performance, and disposition of legally binding transactions to machine thinking. Moreover, I want to do so from the perspective of one who is neither a true believer in the purported technological singularity to come nor a digital Luddite.

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The Persistence Of Dumb Contracts

I'm going to spend this summer working on a project about language, law, and code — what lawyers with meat rather than silicon brains are likely to retain as their domain over the foreseeable future.  Hence, The Persistence of Dumb Contracts.  I want to say a couple words about it, but only to highlight a convergence with the cutting edge practical work of James Hazard (founder of CommonAccord) and others at the intersection of contracts and computers.

As to the paper, I would link you to something but it's not nearly ready for prime time.  For the time being, consider the development of doctrine over the last 150 years or so regarding the parol evidence rule and the interpretation of the contractual text.  It's an ontological issue — is the "reality" of the deal bound by the metaphoric "four corners" of the document or is the text a mapping onto something else?  An early paragraph from an early draft of the intro:

Now imagine this debate in the context of digitally documented transactions that span the complexity gamut from one-shot commodity sales to longer term relationships like commercial leases or shareholder agreements. There is or will be a continuum across which “smarter” contracts will do less mapping of antecedent understandings and create more generally accepted social realities than dumber ones. I see no point in trying to create mutually exclusive sets. At one end of the continuum, the smart contract is little more than a cybernetic artifact like Bitcoin, a virtual dollar bill having a social ontology and no less a fixed and timeless meaning than a physical Federal Reserve note. At the other end, it is like more than a digitized form into which someone plugs a few chunks of data and comes out with a Kindle book or a mortgage loan. Somewhere in the middle, say in connection with a program that can sort out the puts and takes of ten years’ worth of contingency in a 50,000 square foot office lease, the contract needs to be able to create virtually a world of real estate business and law that either maps on or substituted for the physical version. Dumb contracts will persist, and the extent to which individual contracts are dumb rather than smart will depend on the extent to which there is utility to smartness or dumbness in the particular circumstance.

As to Jim Hazard, my colleague, Gabe Teninbaum, who directs Suffolk Law's Institute on Law Practice Technology & Innovation, introduced us.  Jim's passion and project is CommonAccord.org, "an initiative to create global codes of legal transacting by codifying and automating legal documents, including contracts, permits, organizational documents, and consents."

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The Rule Of Law Is Not A Rule Of Law: Thoughts On Solum And Meyer

Pardon me while I diverge from the topic of legal education to talk about something abstract like "the rule of law," provoked by recent work of two of my favorite legal educators.  

On April 4, Larry Solum (Georgetown) delivered the Regula Lecture at the University of Akron on "Surprising Originalism", which you can watch here.  I am always interested in what Larry has to say, first, because we share some common interests in language and philosophy, and, second, because he delivers it so well.  If I can summarize his point quickly, it is that (1) sensible originalism is possible if we look not at the founders' intentions, but what the words of the constitutional text actually meant at the time they were uttered; and (2) that originalism in constitutional interpretation is preferable to alternatives like the "living constitution" because the former is more likely to preserve the rule of law - that is, as a restraint on rule by pure power and might.  Larry's particular contribution is the application of the work of the philosopher of language H.P. Grice to the constitutional text - looking not merely at the semantics of the sentences as written, but at their pragmatics as well.  At the time they were written, what did they say but, more importantly, what did they implicate to the public that would have read or heard the words?

I am not a constitutional scholar, but I have my own reasons for being interested in Grice.  Robin Bradley Kar and Margaret Radin have just placed the first Harvard Law Review article on contract law in over ten years.  They use Grice's principles to argue that extensive boilerplate and click-throughs in consumer and other contracts ought not to be considered part of the parties' actual agreement.  I wrote a response, not necessarily disagreeing with the policy issues regarding boilerplate, but taking issue with, among other things, the references to Grice.

I didn't take issue with Larry Solum's point (1) above, at least in terms of thinking about constitutional meaning as guided by Grice.  What I wondered about, as I listened to his lecture, was the move in point (2) - that hewing to a philosophy of constitutional originalism was central to the rule of law.  What went through my head was a line I have used before: "the rule of law is not a rule of law."

So I was delighted to see that Linda Meyer (Quinnipiac) happens to have just posted an essay that expands far more eloquently on that thought.  It is not a direct response to Larry Solum's argument; I'm the one making that connection!  Her essay is Sisyphus and the Clockmaker: Two Views of the Rule of Law in Keally McBride's 'Mr. Mothercountry: The Man Who Made the Rule of Law.'  You can see from the abstract why it caught my eye:

This essay is an engagement with Keally McBride's excellent book, "Mr. Mothercountry: The Man Who Made the Rule of Law," and argues that the rule of law is not a law of rules, but a culture of self-restraint and humility.

Some comments below the break.

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