The Dish

Forbes reports:

With the increasingly high public profile accorded to corporate governance issues recently, it is becoming more important for players on all sides to understand the rules of the game in this rapidly changing environment. … For example, the Conference Board says, since the 2002 enactment of the Sarbanes-Oxley Act (with the intention of restoring public trust in response to a spate of corporate scandals), there have been more than 20 significant rule changes at the U.S. Securities and Exchange Commission. The changes are aimed at enhancing public disclosure and increasing management accountability and oversight.

"The haste and complexity of some rule making has created a strong need for interpretation and guidance in many areas," said Matteo Tonello, senior research associate at the Conference Board’s Governance Center and Directors’ Institute. He is also co-author of the report with Carolyn Kay Brancato, the director of the Governance Center and Directors’ Institute at the Conference Board.

Regular readers of my blog know what’s coming next. That’s right, yet another plug for my book The Complete Guide to Sarbanes Oxley (hey, Andrew said it was okay to plug our books!).

One Amazon.com reviewer gave it 5 stars and wrote:

Professor Stephen Bainbridge’s "Complete Guide to Sarbanes-Oxley" is a well-written, well-organized overview of a very complicated, very intrusive piece of federal legislation. It’s as light as possible on the legal-ese, but heavy on the analysis and practical information.

There are two audiences for this important guidebook. First, this is a useful overview for attorneys who need to be "familiar" with Sarbanes Oxley and how this law may affect anyone with a general commercial litigation law practice, or who may represent corporate officers in matters not directly related to corporate governance. This is not meant to be the definitive, comprehensive treatise for big-firm securities lawyers. The prose would need to be too dense to be meaningful for us "dabblers" in corporate law who may occasionally represent a corporate officer.

Second, this is a useful overview for corporate officers, corporate counsel, and accountants. It would serve the same purpose as a traveler’s phrase book, allowing you to "speak the language" of securities lawyers and corporate auditors in the event that a "situation" arises. I would even recommend that corporate lawyers, as an act of preventive maintenance, stock a supply of this book to pass out to their clients who are officers of publicly-traded corporations or high-profile non-profits.

Am I a feminist (HT: Volokh)? Apparently, no.

You Are 57% Feminist

You aren’t a total traditionalist when it comes to gender roles. But you’re no feminist either. You generally think that women should be treated as equals, but you’re not convinced the world should be gender neutral.

OTOH:

You Are an Excellent Cook

You’re a top cook, but you weren’t born that way. It’s taken a lot of practice, a lot of experimenting, and a lot of learning. It’s likely that you have what it takes to be a top chef, should you have the desire…

Which, if I may say so, will not surprise my regular readers.

A reader with more knowledge than I evidently have in the area of Nevada laws relating to prostitution writes in to make the point that Nevada merely allows certain individual counties to license brothels, and does not recognize contracts related to prostitution.  My mistake (I will freely admit that I am no expert in the realm of prostitution law, but a lawyer friend of mine who knows much more about odd areas of the law had indicated to me that prostitution contracts were enforceable in the Silver State– so a heads up to him).

Nonetheless, I think even if prostitution contracts are not legally enforceable in Nevada, it is logical to think that if that situation were altered, it would not place Utah under a duty to recognize them in its courts, on public policy grounds.  Though that is speculation.

Yeah, well, Stephen, Hugh Hewitt probably considers  me a lefty because, well, anyone who doesn’t think that the sun shines out of Mitt’s [censored] is a godless pinko abortionist communist.  Surely you knew that right?

The important thing to remember is that Hugh has a complete, impartial handle on everything because, well, he wrote a book about how great Romney was and if Romney doesn’t win the nomination and then the White House, he might look a little silly.

The Mitt’s kids meme Eric brought to our attention earlier today is making my friend Hugh Hewitt mad:

The AP, with lefty bloggers in tow, is trying to make an issue out of an ambush question at a Romney campaign forum today.

Lefty bloggers? Me? Liz Mair, who called it just plain stupid? James Joyner, who said it might "be the dumbest answer ever by a presidential candidate" and also rejected the Romney camp’s spin by explaining that "the longer version is more harmful to Romney than the AP story"? Steve Benen, who quotes the Romney spin and then says "Romney still believes driving a Winnebago and writing for a campaign blog is “showing support for our,” on par with serving in the military"? Jim Geraghty, who says "Romney seems a little off-key" and says the Romney spin "leaves me a little cold"? Sorry, but trying to spin this as a lefty tempest in a teapot simply won’t work.

You can discuss the Romney’s kids meme over at my blog, where I’ve cross posted this. Right of center bloggers who agree that Romney put his foot in it (again) are encouraged to send a TrackBack ping, so we can get a sense of whether Liz, James, Steve, Jim and I are aberrational.

Not to turn this into a one-liner heavy, libertarian/gay-friendly version of The Corner, but to offer my two sense on Eric’s post about Charlatans, I’d absolutely rather vote for Fred Thompson than Mitt Romney.  Fred Thompson may have a bit of a conjured image and a thin record, but I don’t believe that he was 100% produced in a factory, specifically for consumption by whatever conservative Republican primary voters  don’t have access to Google, the ability to distinguish between black and white, or a memory that extends beyond two weeks ago.

Since Andrew was kind enough to tell us to feel free to use this forum to promote our blogs and books, allow me to plug a post on ProfessorBainbridge.com, Last Year’s Biggest M&A Case, in which I analyze In re PNB Holding Co. Shareholders Litigation. It’s a fairly typical example of the sort of corporate governance wonkery regular readers get.

Coming soon to PB.com, by the way, will be a site redesign. I’ve long wanted to redo the front page into a landing page that serves as a planet (a.k.a. hub) site for three content blogs: one on corporate law/governance, one on food and wine, and one for punditry of the sort I’ve been doing here this week.

My assumption – based on lots of conversations with members of my target audience – is that a professional blog focusing solely on technical legal analysis, without requiring the reader to wade through political opinions, wine reviews, and so on, will be more effective in reaching this target audience. These readers can bookmark that site and/or subscribe exclusively to that site’s feed. As such, I’ll be able to use this corner of my section of the blogosphere more effectively as an adjunct to my vocation.

Conversely, I also no longer have to worry that my generalist readers will get bored. After all, there was always something incongruous about going from a post that used the jargon of Oliver Williamson’s New Institutional Economics to analyze some aspect of corporate governance to a post about the comparative merits of white and black truffles.

I tried a DIY version of this project last year. It didn’t work out very well. But now I’ve got a professional web designer who seems to get "it." So please keep checking PB.com for the new design; hopefully, we’ll roll it out next month.

I’m afraid Andrew Jackson just isn’t much of a citation for me, Stephen. I have too much of a fondness for central banks, and too much of an aversion against ethnic cleansing.

But let’s look at the idea on the merits. Jackson argued, “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others … The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”

Under what rationale, then, were the Southern politicians wrong in refusing to recognize the validity of the Brown decision? Since any politician who loses a court case probably thought his position had some legal soundness, then why should they honor any decision at all under the sun? What does a court opinion actually decide, then?

What this amounts to is that everybody becomes their own final arbiter of the Constitution, a state of legal anarchy. And this is wrong for the very simple reason that the Constitution has already made the judiciary into that arbiter.

And it’s the judiciary’s job to be the final arbiter of constitutionality for a very simple reason: the politicians have too many motives and opportunities to lie and cheat about it. If the politicians can declare that any court decision they didn’t like was a product of bad reasoning and then ignore it, how is the judiciary actually providing any check upon the political system?

The other branches place checks upon the judiciary, through appointing the judges and also by being able to amend the Constitution in an extreme circumstance. But under Jackson’s idea, what power does the judiciary have for itself as the third branch of the government? How can any minority’s rights be protected if the majority can summarily call the decision illegitimate?

What this all came down to in the end, of course, was the apocryphal reaction Jackson is said to have had when the Supreme Court ruled against his policies of mistreating the Native Americans, and even if he never said it, it nevertheless accurately describes what he and Van Buren did: “John Marshall made his decision — let him enforce it.”

As you concluded, “How do we decide which cases are like Brown and which cases are ones like Roe, which we all seem to agree decided an issue that should have been left to politics? I think that’s a very difficult question.”

Under Jackson’s doctrine, why does that decision even matter once you’ve made it? Someone else has a different opinion, and we’ve just declared that the Supreme Court, or really any court, does not actually have any final jurisdiction in the matter.

There will always be decisions we don’t agree with. But encouraging people to question or even deny the legal legitimacy of those decisions is simply not the answer. It only creates many more problems.

There’s a good comment on my earlier post by Bret Swanson of the Discovery Institute here. He references two interesting commentaries by Nobel Prize-winning economist Robert Mundell that are also saguine about the prospects for the Chinese dumping the dollar. They can be found here and here.

The other day, Drudge had some screaming headline about how a bill in Congress on global warming would reduce the gross domestic product by over $500 billion. Even in a $13 trillion economy, this is real money.

When I clicked on Drudge’s link, it took me, as usual, to a wire story that offered little additional detail. The actual study, however, was easily available online–in this instance, the Energy Department’s web site, where Drudge could have found it himself if he had bothered to take another couple of seconds to look.

I don’t mean to pick on Drudge. Almost every blogger does the same thing and I find it frustrating because so often the wire copy is inaccurate or misleading. I suspect that in such cases the blogger doesn’t really want to know the truth because that might spoil the story.

The Energy Department study is a good example. It is true that it projects GDP will be lower by $533 billion if the bill in question passes. But this is a total reduction over a 21-year period (2009-2030). Since the study indicates that this is 0.22 percent of GDP over this time, we can calculate that total GDP will equal more than $242 trillion over this period. Obviously, $533 billion isn’t so much in this context.

DOE says the size of the economy in 2030 would only be lower by between 0.3 percent and 0.5 percent. Considering that GDP will be about $40 trillion in 2030, according to the latest report from Social Security’s actuaries, this doesn’t seem like much to worry about–the equivalent of rounding error.

This doesn’t mean I support the particular bill. It just means that perhaps the economic cost is not unreasonable, as Drudge implied. I would strongly urge bloggers to make an extra effort to find the actual studies they refer to and not rely solely on news reports or wire copy that may be misleading or innacurate.