Category Archives: Everything Else

A little bit of this, a little bit of that.

The Bad News

Posted on by
Reply

The Department of Justice and Federal Trade Commission are looking to update the horizontal merger guidelines.

From the Questions for Public Comment [PDF], the agencies list two goals for Horizontal Merger Guidelines reform: “First, updated guidelines could more accurately and clearly describe current Agency practice. Second, updated guidelines could reflect and incorporate learning and experience gained since 1992.” This sounds innocuous enough, right? We’re just going to change the merger guidelines so they actually describe what we’re really doing anyway, and adding in some new things we learned. No biggie.

Well, I’ll save my snark until after the ‘series of public workshops’ has been completed and new guidelines have proposed or adopted. And I’m being somewhat more disingenuous than is called for, as the questions the FTC and DOJ have put out to solicit public input on are actually very thoughtful and unbiased, and bring up issues of antitrust law that very much ought to be addressed. But I’ll admit it: the prospect of a change in merger guidelines under a Democratic Administration doesn’t exactly have my heart leaping for joy.

For a good discussion on the effects of a Guidelines update, both pro and con, check out “Should the Agencies Issue New Merger Guidelines?: Learning From Experience”. His conclusion:

“I believe that the business community and merger practitioners understand current enforcement policy on horizontal mergers quite well. This is true with respect to general policies and also with respect to fine points on market delineation, competitive effects analysis, and evaluation of efficiencies claims. Therefore, I perceive no significant uncertainty that should be addressed through revising the Horizontal Merger Guidelines.”

-Susan

The Good News

Posted on by
Reply

The Department of Justice is looking to rollback the overuse of the state secrets privilege.

Some of the changes are vaguely worded and do not appear to be likely to impose all that much of a constraining effect. Announcements that the DOJ “commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials” and “commits to provide periodic reports on all cases in which the privilege is asserted to the appropriate oversight Committees in Congress” sound good, but are pretty hollow of content.

But two of the changes do appear to be significant. First is the shift to a “significant harm” standard. Under United States v. Reynolds, the Supreme Court found that the federal government was entitled to invoke the state secrets privilege if, “from all circumstances of the case, […] there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” 345 U.S. 1, 10 (1953). Under the new DOJ policy, which will go into effect October 1, 2009, “the Department will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security.”

The second important policy change is that any invocation of the privilege will have to be made at the highest level of the DOJ, by the Attorney General himself. This is a good move. Any “state secret privilege” should only be brought into play in extreme circumstances, and should not be entered into casually. The AG is one step removed from the President himself, and hopefully this will lead to a greater degree of accountability in the process.

Then again, if I were going to be extremely cynical, I would suggest to you that the Executive Branch is only adopting this new policy — which is modest in scope — as a preemptive measure, to ensure that the Legislative Branch does not usurp control over reforming the state secrets privilege. But this is Washington, D.C., why would anyone be cynical here?

-Susan

The Celebrities-for-Aid Program

Posted on by
1

Over at Aid Watch:

I’m going to propose a theory of international trade between Africa and celebrities. Africa exports stereotypical images of misery in return for celebrities’ advocacy for more Africa funds. The theory of trade says that trade only happens when both parties gain. Celebrities gain some combination of altruistic satisfaction, a good PR image, and a boost for their acting or singing career. Africa gains aid funds.

Unfortunately for Bono, foreign aid no longer provides an easy way to distinguish yourself among the crowd of C-listers. For a star out there looking for a cause, maybe its time to pull a Bob Barker and go back to promoting spay/neuter clinics instead?

The current celebrity advocacy market indeed seems to have abundant supply. At least that was the impression I got from a web site announcing an Oscar-like Awards show for Celebrity Humanitarians. The celebrities being honored including some that I’d never heard of, like Brett Ratner. Even after I looked him up on the Internet, I still can’t remember what he is not famous for. So with the upcoming Noble Humanitarian Awards at which Brett is a headliner, the celebrities are barely trading above the price of used books at this point.

So maybe celebrity advocacy has finally saturated the market, and we could now give advocacy back to people who know something about their causes.

-Susan

p.s. Happy ODST day!

It’s not over ’til it’s over.

Posted on by
Reply

Here’s a cool and very thorough article on “When is the Verdict or Judgment Final?: An Examination of Post Trial Activity in Civil Litigation”. There are a lot of neat factoids throughout, such as your odds of prevailing on a JNOV or motion for new trial (hint: they’re not good, but better if you’re the defendant) or whether post trial activity is more likely after a jury or bench trial (unsurprisingly, it’s more likely after a jury trial). Litigant characteristics also matter: plaintiffs are more likely to seek post-trial relief against an organization defendant than an individual defendants, but defendants’ rate of post-trial activity is not related to party characteristics.

In all, 35% of cases, either a post trial motion or appeal was filed. The breakdown:

“[L]itigants requested post trial relief in an estimated 28% of civil trials and filed notices of appeal in 18% of civil trials. Post trial motions were filed in nearly a third of trials won by the plaintiff and in a quarter of trials where the plaintiff did not prevail. In terms of appellate activity, appeals were filed at nearly identical rates among trials won (18%) and lost (17%) by the plaintiff. ”

And if you’ve won at trial level as a Plaintiff, it may just pay to keep on going: “In addition to the sizable minorities of plaintiff winners seeking to challenge trial court outcomes, courts granted post relief more frequently to plaintiffs than defendants. Over a third (37%) of plaintiff winners requesting post trial relief received it. Defendants, in comparison, were granted post trial relief in 1 out of 4 trials where they sought to amend or overturn trial decisions that found for the plaintiff. ”

However, Plaintiffs that lose at trial are likely to keep on losing. Defendants who win, however, fare very nicely indeed: “[P]laintiffs filed post trial motions (21%) and appeals (16%) in considerable numbers of trials that they lost. Defendant winners, in comparison, sought post trial relief by filing motions or appeals in less than 5% of civil trials. In terms of ruling in favor of a post trial motion, courts granted post trial relief to only 7% of plaintiffs who sought it. Even though few defendants who won at trial requested relief, it was granted to nearly 60% of those defendants making a relief request.”

-Susan

Comedy Break

Posted on by
Reply

On torts-guru John Banzhaf:

“I can’t believe this guy is a law professor at a major university” states Barbara Jenkins. “It is a sad day when they allow someone with such a lack of credibility teach law to our young men and women, he sues people and organizations with no basis, just to cost them attorney and court cost to benefit Pfizer and anti-American practices, even politicians look at him as a leach on society.

“ASH has received millions in funding directly from Pfizer as a “partner” according to this post on a blog. This brings serious questions about the credibility of Pfizer’s tactics by using an attorney that is proud to be referred to as “communist” and lacking real legal skills to the point that a Congressional House Committee conducting a hearing about John Banzhaf’s frivolous lawsuits commented that the best way to beat John Banzhaf was to “simply let him keep speaking.”

and,

Attorney Banzhaf hopes soon to see smokers incarcerated in smoke-free prisons or even to realize his life’s ambition of frying them in an electric chair for the crime of smoking tobacco[.]

Check out this line from the second quote: “according to this post on a blog.” That has got to be the most amazing citation I’ve ever seen. I’m going to use that from now on whenever I’m having trouble finding a source to back up a claim — of course it’s true, I saw it on this post on a blog once!

And say what you will about Banzhaf, but the man’s got the most terrifying volleyball spike I’ve ever seen in a law professor.

-Susan

A “Tired” Argument…

Posted on by
4

Yuk yuk. Oh god, that one was really bad. Okay, I promise, there will be no more puns in the future.

But I’ve only just come across this article, “Obama can help free trade with tariffs,” and it’s managed to sufficiently irritate me enough that I can’t let it pass by without comment. We know now that Obama did, in fact, agree to the 35% increase in tariffs on Chinese tires. It was a poor decision, and I have my fingers crossed that this was an ugly unicorn of a decision that won’t be seen again.

But Prestowitz’s article is full of WTF.

The orthodox free-trade view of most pundits holds that if Mr Obama accepts the recommendation he will fail the free-trade test. In fact, the truth is just the opposite. Not to accept the tariff recommendation would be a severe blow to open trade and globalisation as well as to America’s future economic health.

The phrase “extraordinary claims call for extraordinary proof” comes to mind, but Prestowitz sure doesn’t deliver it. On why not imposing barriers to trade is not desirable, he writes:

This kind of trade is not win-win. Rather it is a classic zero-sum game. It is well-known to game theorists that in such situations a tit-for-tat response is the optimal strategy.

Horsedroppings. The ‘optimal strategy’ in any given trade situation is going to depend on what sort of strategy the other 190-odd players on the world market are going with. I seriously doubt that there’s any game theorist anywhere that has declared “in a classic zero sum game, always go with tit-for-tat.” (And for that matter, he’s not even come close to actually showing this is a “classic zero sum game” in the first place!)

But even if Prestowitz were right about the above, game theory alone is completely inadequate for making the sort of decision Obama just made. There are going to be serious political and diplomatic repercussions from the imposition of the tire tariff, and the last thing the U.S. wants to be doing right now is to be setting a precedent for the rest of the world that hard economic times justifies the enactment of short sighted and petty trade restrictions.

-Susan

Update: An economist responds to Prestowitz’s argument.

While Lolcats are the future of capitalism, check out Rolcats for proof that even Communism is not immune from the funny cat picture epidimic.

Posted on by
Reply

Failblog is brought up enough in conversation with people roughly my age that I’m pretty sure it’s not too embarrassing for me to publicly admit to reading it. But this still blows my mind: failblog and the associated webpages (hi there, lolcats) are an impressively profitable economic enterprise. How profitable? This post on The Economics of LOLCats has some good detailed information and hard numbers on just how much lolcats is bringing in, but here’s the most impressive statistic:

Now, consider that iCanHasCheezBurger contributes 5% to WordPress.com Unique user traffic, slightly more of its visitor pie. WordPress raised nearly $30,000,000 in financing, so we can losely say LOLCATs are worth 5% of that, or $1,500,000.

And the best part? All of Lolcat and Failblog’s content is produced by the consumers. And they produce it for free. (Somewhere, Marx is rolling in his grave about this flagrant undervaluing of labor…) And further note that these consumers happen to be members of a highly valuable demographic group, and who will quickly snap up any lolcat-related with equal fervor.

Failblog has a clip up giving a tour of the Failblog Headquarters — a spartan wall-less warehouse populated by what looks to be refugees from a Google POW camp — which proves that this isn’t some experimental off-shoot of Time-Warner. It’s just a bunch of kids who sit around all day going, “Hey, you know what people want to see? Funny redneck engineering!” And bam. Another phenomenon is born. All content generated by the internet hivemind.

Technology is amazing. For everyone who thought that the future would bring us flying cars and a cure to cancer, sorry. We got lolcats instead.

To prove that our economy has been taken over by lolcats, note that even Paul Krugman has fallen victim to their tiny kitten chokehold.

-Susan