BurtLaw's Law and Economics

BurtLaw's Law and Economics
BurtLaw.Com	- LawAndEverythingElse.Com - Copyright (c) 2006 Burton Randall Hanson

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.

The billable nap. Many of the standard employee manuals written by lawyers authorize the discharge of any employee for "habitual carelessness or recklessness, disorderly conduct, insubordination, theft, leaving work before quitting time without permission, falsification of records, sleeping on the job, and waste." "But," you say, "I don't know of a co-worker who hasn't occasionally, maybe even regularly, broken one or more of these kinds of rules." Which rules one breaks depends on where one is on the food chain. Lower-level employees are good at that form of insubordination that finds literary representation in the great bad-ass story-telling genre. And the more immediate form, bad-mouthing the bosses, actually can make for a more productive workplace by allowing the blowing-off of steam. Unlike pleasure-producing bad-mouthing of the bosses among peers, sleeping on the job is one of those things that many employees can't do without getting caught and disciplined, perhaps discharged. But, as a general rule, the higher one rises on the food chain, the less likely one is to be disciplined for that. If you look in executive suites, law-firm partner offices, and judicial chambers, you'll often find couches or recliner chairs. One suspects the occupants occasionally use them for nothing more scandalous than an after-lunch nap. A well-known appellate judge, no longer with us, took such naps. He was not a slacker. Unlike some of his colleagues, he was never behind in his opinion writing. Moreover, the quality of his opinions exceeded that of most appellate judges around the country. One of his tricks was he hired law clerks on merit. And he didn't waste his waking work hours. He used them to actually read briefs, cases cited, and transcripts, to think, to write his own opinions, etc. According to Felix Frankfurter, Justice Holmes "never made a fetish of long hours...indeed, he believed that what he called work -- really creative labor -- could not be pursued for more than four hours a day. But he worked with almost feverish intensity." Unlike so many of our appellate judges across the country, he was both prolific and prompt. And brief. And memorable. Felix Frankfurter, Of Law and Men 164-65 (1956). Comes now the research to prove what my Grandpa Otto Herfindahl knew many years ago. In the winter, at least, when we humans experience "carnivore lethargy," he regularly took a "kvile ete midten," or rest (nap) after lunch. He even did this in the summer on hot days, lying on the cool floor to rest and cool off briefly after a hard morning of work. "Many European countries and others with hot climates have long implemented an afternoon down time, or siesta, when stores close, business shut down and residents go home for a nap, or take a long rest at a cafe or restaurant. Experts say that with a rest during the afternoon hours when the serotoninergic system in a person's brain slows, workers might perform better at their jobs, and even be more safe." [more] If you've ever been the overjoyed recipient of a bill from an expensive attorney, you might note suspicious itemizations -- e.g., "strategization - one hour." I suppose it's always possible that that is a euphemism for "case meditating" (not "mediating"), which itself is a euphemism for "case power napping" or "post-lunch result-oriented resting and dreaming" in preparation for negotiations or trial. Would this necessarily be unethical? Arguably not more so than billing a client for two hours' time spent inefficiently. For more on the almighty, inefficient and notorious "billable hour," at the temple of which so many lawyers worship, click here. (10.31.2001)

LawAnd(Herfindahl)Economics. I just re-read an essay, "What is Conservation," that has been called a "classic" in the field of environmental philosophy and resource management. [more] It happens to have been written, circa 1960, by my late mother's first cousin, the late Orris Clement Herfindahl. There is still a great deal of simplistic either/or thinking on the parts of participants in the public debates over environmental conservation and public resource policy. But more and more one sees signs that the prevailing approach is that recommended by Herfindahl a decade before the first Earth Day, namely, the approach of reasonably reconciling ecology and economics (similar to, though not identical with, the reasonable reconciling attempted by common law appellate judges faced with a case involving an antinomy or conflict between two constitutional rights). [more] Herfindahl died unexpectedly in 1972 while mountain trekking in Nepal, ten years before the "trustbusters" in the U.S. Department of Justice began using the "economic index" named after him -- the "Herfindahl Index" or the "Herfindahl-Hirschman Index" -- to determine whether the change in the degree of economic concentration in any particular industry resulting from a merger is impermissibly anticompetitive. [more] Herfindahl first used the index in 1952 at the University of Chicago to determine economic concentration in the steel industry. A Google-brand internet search using the words "Herfindahl" and "index" yielded 2,000 results. There have been numerous law review articles written about the index, and it is now widely used throughout the world by economists -- for example, just recently in India to determine the degree of competition in the markets in branded biscuits and branded bread, both popular Indian foods. [more] Harvard economist Caroline Hoxby has used it in analyzing the economics of proposed school reforms involving making primary and secondary schools more competitive and giving parents greater choices, a topic that promises to be in the news during the Bush administration. [more] Herfindahl's books include: Three Studies in Minerals; Natural Resource Information for Economic Development; Economics Copper Costs and Prices 1870--1957; and a text with Allen V. Kneese, Quality of the Environment: An Economic Approach to Some Problems in Using Land, Water, and Air. (01.06.2001)

"What does the Herfindahl-Hirschman index measure?" That's the first of 71 questions on the last version of the infamous trivia quiz U.S. Circuit Court Judge Danny Boggs gives his law clerk applicants. I know the answer to the first question because the "Herfindahl" in the HHI is my late mom's late cousin, Orris Herfindahl, who died trekking in Nepal. Click here for the latest story about Judge Boggs & his clerks, three of whom have appeared on Who Wants to be a Millionaire, click here for the quiz, and click here for the answers. (05.28.2001)

See, also, LawAndJudicialEconomics.

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