Greg Goelzhauser

2004-07-11T22:37:00.000-07:00

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2004-06-26T23:12:00.000-07:00

I've been blogging at Crescat Sententia.

2004-06-11T20:10:00.000-07:00

Blog Titles: I'm generally quite averse to names. This aversion has manifested itself recently while deciding whether, and if so what, to name this blog. When I began blogging more than one year ago, eponymous blogs were quite popular. As the 'sphere has grown, though, the norm seems to have shifted towards giving one's blog a more creative title. Perhaps there is something that puts people off when viewing an eponymous blog. In my case, though, it simply represents my lack of creativity in attempting to derive a name.

I'm certainly not alone in hosting an eponymous blog. Indeed, two of the most popular blogs by political scientists are eponymous: Daniel Drezner and Brett Marston. The latter moved to the eponymous form after having a title--Marstonalia--for some time. Incidentally, having a blog title make use of the blogger's name has been quite popular. There is, for example, Balkanization by Professor Balkin, The Leiter Reports by Professor Leiter, and The Yin Blog by Professor Yin. The number of creative blog titles is great. Examples include The Idea Shop, Marginal Revolution, The Right Coast, and How Appealing. Others--like Legal Theory Blog and SCOTUSBlog--are terrifically titled given their descriptive accuracy.

Being a fan of descriptive titles but lacking a central theme for this blog and not having the creativity to pen a good title on my own, I turned, where else, but to Nietzsche. Much of interest and use can be found on and for a good deal of matters in Human, All Too Human. Examining the aphoristic form used throughout Human, All Too Human I searched for those which were titled in a way suitable for the title of a blog but also contained a thought or thoughts whose meaning made the devotion of my blog title appropriate.

I found two particulary good aphorisms. (The problem was in the titles, not the accompanying thoughts.) I eventually settled on one that seemed particularly appropriate for a blog.

Uncompleted thoughts.- Just as it is notonly adulthood but youth and childhood that possess value in themselves and not merely as bridges and thoroughfares, so incomplete thoughts also have their value. That is why one must tormet a poet with subtle exegesis but contend oneself with the uncertaintly of his horizon, as though the way to many thoughts still lay open. Let one stand on the threshold; let one wait as at the excavation of a treasure: it is as though a lucky find of profound import were about to be made. The poet anticipates something of the joy of the thinker at the discovery of a vital idea and makes us desire it, so that we snatch at it; he, however, flutters by past our heads, displaying the loveliest butterfly-wings - and yet he eludes us.

Translated by R.J. Hollingdale, 96. I haven't yet adopted the title "Uncompleted Thoughts" but I think it a good one for a blog. I care nothing for the norm against eponymous blogs, though, so I may keep the title the way it is.

2004-06-11T15:21:00.000-07:00

Dogs and Word Recognition: Marginal Revolution points to this story about the ability of dogs to understand language.

As many a dog owner will attest, our furry friends are listening. Now, for the doubters, there is scientific proof they understand much of what they hear.

German researchers have found a border collie named Rico who understands more than 200 words and can learn new ones as quickly as many children.

Patti Strand, an American Kennel Club board member, called the report "good news for those of us who talk to our dogs."

"Like parents of toddlers, we learned long ago the importance of spelling key words like bath, pill or vet when speaking in front of our dogs," Strand said. "Thanks to the researchers who've proven that people who talk to their dogs are cutting-edge communicators, not just a bunch of eccentrics."

The researchers found that Rico knows the names of dozens of play toys and can find the one called for by his owner. That is a vocabulary size about the same as apes, dolphins and parrots trained to understand words, the researchers say.

Rico can even take the next step, figuring out what a new word means.

The researchers put several known toys in a room along with one that Rico had not seen before. From a different room, Rico's owner asked him to fetch a toy, using a name for the toy the dog had never heard.

The border collie, a breed known primarily for its herding ability, was able to go to the room with the toys and, seven times out of 10, bring back the one he had not seen before. The dog seemingly understood that because he knew the names of all the other toys, the new one must be the one with the unfamiliar name.

None of this is surprising. We have two Australian Shepherds--a breed very similar to the Border Collie. One of them is very intelligent. Like with the dog described in the story, we are forced to spell a good deal of words to avoid exciting him. Also like the dog described, he knows the names of the many toys lying around the house and remembers names we offer to new toys almost instantly. Because we've named so many toys and he knows so many words, we have taken to using descriptive phrases like "blue man" to describe a new toy that happens to be blue. Of course, he doesn't recognize the color. He does, however, recognize an unfamiliar name and retrieves the toy is not familiar with. We also use "new toy," which works quite well if it has been a while since we named the last toy.

Another story on this (also from Marginal Revolution) says: "It's not clear whether Rico has a special ability to learn words or whether the phenomenon is widespread in dogs. She hopes to find other "smart" dogs and test their ability to learn." While Rico and my dog--The Fat Dog or Fatty--are "special", I certainly don't think they are all that rare. We have another a second dog who is Fatty's sister from a separate litter. She has a completely different personality and hasn't near the ability to learn words and phrases the way her brother does. That said, I do think you are more likely to find this ability in the more intelligent breeds--like Border Collies and Australian Shephers--and that matters and that there is a strong correlation between how much you speak to your dog, though this will certainly not be the deciding factor.

Here are a few of the things The Fat Dog understands: blue man, kong, kong bone, duck, McDonalds (we eat out a lot), Sonic, Mommy, Daddy, Dewey (his sister), sister, Grandma, Aunt Jan, Britney (he will go to all these people individually), treat, leash, outside, squirrel, bird, new toy, PetsMart, eat, food, time for bed (he will go into the bedroom and get in the bed), get the lights (he will turn off the lights), go get ... (all of the above objects), pig's ear, time to get brushed, jump up (into your arms if he trusts that you'll catch him), chomps (he'll gently bite your fingers), sit, stay, down, out, back up, bow, over, crawl, leave, drop, give me right, give me left, shake, come, touch, agility, you better run, goose, let's go or time to go (he knows he is going), we are leaving or bye (he knows we are leaving), take ... to ... (add an object he knows first and a person second).

There's more, but you get the point. And the list is ever-growing as he picks up on new things, learns people's names, and so on. I don't know what to make of it all, but it certainly is amazing.

2004-06-10T22:40:00.000-07:00

Like I Said, Relax: A few days ago I offered some thoughts on suggested summer reading for incoming law students. While I did suggest a few books, the thrust of my advice was that incoming students lay off law related reading unless they would really rather read law related volumes over, say, a nice work of fiction. Whatever incoming students end up reading over the summer, my suggestion for all was to relax.

Now comes evidence of the perils of not following this advice. Meet The Unreasonable Man, a soon to be 1L at the University of Minnesota. The first book on The Unreasonable Man's "currently reading" list is Civil Procedure: Examples and Explanations. "What's the harm," you say? A recent post of his asks, "Does this blog have personal jurisdiction over me?" To make matters worse, the post is footnoted! In fact, at last count 7 of 9 posts on the main page included footnotes. They're not quite in Bluebook form, granted, but it's a bit scary nonetheless.

Undoubtedly, a handful of pre-law students--especially those that may be attending Minnesota in the Fall--are now clicking over to Amazon to order a hornbook on civil procedure. The Unreasonable Man says Stephen King is next on his reading list, but this is a notorious trick played often by first year law students. Don't be fooled. He'll really be moving on to the next volumes in the E&E series: contracts, criminal law, torts, and so on. Note to incoming students: Don't let him get too far ahead of you, you'll never catch up.

Update: Lest anyone get the wrong idea, this post was all in good fun toward The Unreasonable Man. He has good reasons for doing the reading, but I couldn't resist stretching the post to mske a larger point about a prominent law school mentality.

2004-06-10T22:16:00.000-07:00

Political Science Blogging: I'm in the process of adding blogs I frequent to the roll. As I do this, I'm struck by the few political science related blogs I know of and read. Those blogs authored by political scientists that I do know of and visit regularly include Daniel Drezner, Brett Marston, and Signifiying Nothing. As a future graduate student in the discipline--after one more year of law school--and current blogger, it would be great to see the network of political scientists blogging about research in their field grow. There is certainly no shortage of law students and professors blogging about current scholarship and engaging in theoretical discussions. Moreover, the blogosphere has seen a recent influx of sites devoted to scholarly blogging in philosophy (see e.g., links provided in this recent post by Professor Leiter). If anyone knows of any blogs authored by political scientists that I am missing--especially those that dig a bit into the discipline--please send along links.

2004-06-10T22:10:00.000-07:00

More on Predatory Pricing: Professor DeLong offers a few more thoughts here. Be sure, also, to check out the comments section, which plays host to some interesting thoughts and stories.

2004-06-08T11:42:00.000-07:00

Predatory Pricing: Marginal Revolution points to Brad DeLong's post on, among other things, predatory pricing. Professor DeLong says:

Microsoft could successfully follow the strategy of underprice, grab the whole market, and then raise prices (somewhat) because the market for operating systems is not contestable: it's really expensive to write an operating system, and if you are a new entrant with a small market share the magnitude of this up-front cost makes it impossible to make a profit--hence no new entrants into the operating system market (save for Linux, which works according to a very different logic than that of market profitability).

Walmart cannot successfully follow any analogous strategy. Suppose it sells gasoline cheap, wipes out all competitors in the area, and then raises prices to $12 a gallon. What happens then? Well, the underground storage tanks of its defunct competitors are still there. Gas pumps are cheap. $12 a gallon is a lot of money. You get lots of new entrants taking over the locations of the old gas stations, and competing with Walmart. If Walmart wants to maintain its monopoly, it must limit price to make new entry unprofitable. And since new entry is easy and cheap--since the market is contestable--the limit price is not that high above the competitive price.

Walmart cannot acquire a monopoly by underpricing--"predatory pricing," it is called--without giving a large present to consumers. And the contestability of the market means that it cannot take that present back once it has acquired a monopoly.

Professor DeLong's point is one that has led to the virtual nullification of predatory pricing post Matsushita and Brooke. Relying on neoclassical microeconomics, the Chicago School led the charge against predatory pricing. Their suggestion was that successful predatory pricing would be most improbable and that therefore it bordered on irrational for firms to attempt to carry through such a strategy. Many of the arguments put forth by Chicago School theorists were advanced by John McGee in his seminal article examining the alleged predatory practices of Standard Oil: Predatory Price Cutting: The Standard Oil (N.J.) Case, 1 Journal of Law & Economics 137 (1958).

In that article, McGee suggested that there was little evidence pointing to predatory pricing by Standard Oil. He also suggested that such practices would be irrational in the sense that Standard Oil--being a much larger firm than its competitiors--would have to lower prices over a very large market share. Realizing that a predatory pricing scheme could not be enforced ad infinitum, smaller firms were not likely to exit the market. "Ah," you say, "but the smaller firms may run out of money. Then what?" The answer to that has been that so long as the smaller firms were efficient market participants, capital markets would provide funds to ensure continued operation.

But that's not all. Even if firms were to exit the market, the firm engaging in predatory pricing would eventually need to recoup its losses by charging monopoly rents. If this were to occur in a contestable market, new entrants would be lured into the market by the possibility of earning large profits. The result would be increased competition and a lowering of price back near marginal cost. Firms--being rational maximizers of their profits--would understand that recoupment of lost profits would be unlikely and would thus refrain from engaging in predatory pricing. If I've read him correctly, this is Professor DeLong's point. And, I should add, it is one that has had a profound impact on predatory pricing law--to the point that the modern day standard for convicting a firm for predatory pricing is so high that it is almost impossible to meet for an antitrust plaintiff.

Unfortunately, this is not the whole story. As astute readers will have noticed, the traditional account advanced by McGee et al. relies on perfect information. More recent economic accounts of predation taking into account strategic behavior and incomplete information have presented quite a challenge to the traditional account.

Theories grounded in the literature on strategic behavior and signaling, for example, suggest that a dominant firm may be able to drive out smaller, less efficient, or more risk averse competitors from the market through predatory pricing. For example, firms possess incomplete information with respect to rivals' cost functions. Theories of cost signaling suggest that firms may be able to mislead competitors into believing that they will not be able to compete with the dominant firm over a long period of time.

Moreover, successful predation combined with incomplete information and risk aversion on behalf of potential competitors may keep the market clear for the dominant firm. If Wal-Mart successfully engages in predation only to later raise gas prices to $12 a gallon, competing firms may enter the market. But, of course, the recoupment period is not likely to include so drastic a rise in prices. More likely is a much smaller rise in prices. Given past successful predation, imperfect information, and risk aversion, potential competitors may choose to invest their capital in another industry.

The point is simply that the traditional economic story with respect to predatory pricing--as advanced by Professor DeLong in his post--has been complicated to some extent by models of predation being advanced by theorists taking into account incomplete information and other market mechanisms that may play a role. None of this challenges Professor DeLong's bottome line: "Few industries have cost structures such that attempts at monopolization through 'predatory pricing' harm consumers."

While I think it good to be aware of some of the modern theory with respect to predatory pricing--thus this post--I am not sure what impact the models should have on predatory pricing law. The bottome line is that antitrust is designed to protect consumers and it is not obvious that these models suggest greater harm to consumers than envisioned by classical theory. Moreover, it is doubtful that our evolving understanding of the theoretical possibilities with respect to predatory pricing can overcome the high potential error costs should judges decide to back away from current predatory pricing jurisprudence and attempt more complex analyses of the operational forces and circumstances at issue in cases alleging predation by a dominant firm.

2004-06-07T22:15:00.000-07:00

Institutional Representation in the Blogosphere: The corners of the blogosphere I frequent are those primarily authored by professors and students in the disciplines of law, economics, political science, and philosophy. That being so, I am interested in institutional representation amongst members of these corners and throughout the academy generally, though I am most familiar with representation in these disciplines.

Harvard and Chicago (see "Blog Chicago") are clearly well represented across a number of disciplines. George Mason is dominant in economics, see e.g., Marginal Revolution, Cafe Hayek, and Corner Solution. In law, Ohio State (see links provided by Chris Geidner), Michigan (see links provided by Cicero's Ghost and JD2B), and Wisconsin (see links provided by Professor Smith) are all very well repsented in terms of both professor and student blogs. In terms of pure star power, UCLA--with Professors Volokh and Bainbridge--and the University of San Diego--with Professor Solum and the crew at The Right Coast--maintain institutional dominance with respect to law professor blogging.

With institutional representation so concentrated it seems worth asking: What factors give rise to certain departments having a good number of particpants in the blogosphere while others have only a very small number, if any? The answer seems to lie in the development of institutional norms. Blogging, I suspect, is still viewed as a fringe activity in certain parts of the academy. I suspect that a department needs a singular personality to start blogging and wave off questions related to opportunity costs in terms of class preparation and publishing, not to mention whatever existing biases are held towards blogging by other members of the faculty or the administration. Obviously, this is pure speculation. Moreover, if there is anything to this it is almost certainly not the only explanation.

Student concentration may present an entirely different story. It's interesting, for example, that the law students are concentrated in first tier schools. Perhaps this is just chance, but I don't that explanation likely. Why Harvard, Yale, Stanford, Chicago, Columbia, Penn, Michigan, Wisconsin, and Ohio State rather than, say, Kansas, St. Louis University, Roger Williams, or Widener? Why such a large portion of the top 10? Surely there are a good deal of possible explanations. One, for example, is that some schools--e.g. Harvard--are simply ahead of the game. Another is that a few may encourage more, which is a similar but, for obvious reasons, distinct explanation from the institutional norm one advanced earlier with respect to professors.

This is, I think, a fascinating topic that deserves more attention. I have been thinking about this for a long time but was prompted to write by the debut of The Garden of Forking Paths, "a blog devoted to Agency Theory, including related issues in Philosophy of Action, Moral Psychology, Metaphysics and Ethics." Among its contributors is Eddy Nahmias, Professor in the philosophy department at Florida State. As far as I know, Professor Nahmias is the first faculty member from Florida State to enter the somewhat connected community of law, economics, political science, and philosophy blogs. The addition led to these thoughts. I should note that I focused this post on the law school blogging community, because it is the one I am most familiar with both in terms of blogging and institutional specifics. Perhaps those in different disciplines can tackle their areas.

2004-06-07T14:07:00.000-07:00

Legal Journals and SSRN: Professor Bainbridge has a post up on SSRN and its influence on the legal publishing community. In it, he goes behind the scenes to describe the different ways various law reviews are dealing with the increasing influence of SSRN:

Law reviews are reacting in a couple of ways. Some are requiring authors to remove an article from SSRN when it is accepted; this phenomenon seems especially widespread among top tier journals. These journals have very lucrative contracts with Lexis and/or Westlaw, pursuant to which the final article, as published, is archived in their databases. Apparently Lexis and Westlaw perceive SSRN as a competitor and pressure the law reviews.

And

Interestingly, law reviews at schools below the first tier recently have struck out in a different direction. On May 27th, I posted an article, Abloishing LLC Veil Piercing to SSRN. In the intervening two weeks, I have received two unsolicited offers of publication from good (albeit not top 30) law reviews. As it happens, this article already has found a home. Yet, I find it very interesting that at least some law reviews are now using SSRN as an early-warning system to find new articles. By then offering the author a bird in the hand, the journals may be able to induce risk averse academics (or those who need an immediate offer of publication for tenure or promotion purposes) to publish with them. It'll be interesting to see if it works. I'm doubtful that it will, since there is so much pressure on authors to at least try to land your article in a top 30 journal. Kudos to the law reviews involved, however, for some creative, out-of-the-box thinking.

Many law journals are indeed perusing SSRN in an effort to land pieces they may otherwise not be able to get by making an early offer. The hope, as Professor Bainbridge so precisely put it, is to "induce risk averse academics (or those who need an immediate offer of publication for tenure or promotion purposes) to publish with them."

From what I've heard in talking with various members of the law journal community throughout the country is that this is not working. The reason, it seems, is that most of these offers are coming from journals that would most likely not otherwise have a chance at the piece and law professors are simply not risk averse enough to take the bait. Sometimes, though, the offers seem to be made to pieces that may be a good fit and still the journals have been turned down. In these instances, I suspect the reason is that the professor gains a good deal of confidence with the unsolicited offer and resolves to try the process in hopes of a better placement even if he or she would have been happy with the offer on an open market.

Despite what appears to be the failure of journals to land pieces this way it will be interesting to see how the process develops. Obviously, the more journals do this the less the process becomes an attempt at getting ahead in the competitive market and the more it simply becomes a substitute for the competitive market. This transformation would be good for professors as it would lower the cost of submitting. Such a transformation would be bad, though, for the journals. The cost of submitting for most is already quite low and as that cost is further reduced the journals lose what little is left of the information sending signal submission sends. Moreover, costs go up for the journals in terms of having to spend a good deal of time on SSRN and remain up to date so that another journal does not beat them to the punch. Of course, this is all relevant under the current process but it may be worse after a transformation. It also seems to me that the growing transformation may widen the gap between the sexy topics and those with less intuituve appeal to second and third year law students.

For the record, I have not personally been involved in such an offer nor am I aware of any of the four journals at Florida State making such an offer. I have, however, spoken with a good number of people at various journals around the country who have.

2004-06-07T13:10:00.000-07:00

Summer Reading for Incoming Law Students: JD2B points to Jim Dedman's suggested pre-law reading list. Dedman reacts to another list being poured over by a different blogger. The latter suggests:

Lewis, Anthony Gideon's Trumpet
Harr, Jonathan A Civil Action
Friedman, Jane M. America's First Woman Lawyer:
The Biography of Myra Bradwell
Conot, Robert E. Justice at Nuremburg
Faulk, John Henry Fear on Trial
Stone, Irving Clarence Darrow for the Defense

Dedman suggests that "some of the omissions" are "surprising" and offers some more selections:

Woodward & Armstrong, The Brethren
Rehnquist, The Supreme Court
Wellman, The Art of Cross Examination
Bugliosi & Gentry, Helter Skelter
Simpson, Cannibilism and the Common Law
Turow, One L
Osborn, The Paper Chase
Dworsky, Uniform System of Citation

I hardly think any of these "omissions" are "surprising". Generally, the problem with lists circulating the blogosphere is that everyone has favorites and when they are not included on someone's list, they become "surprising omissions". This is especially true of best books lists. Someone will have read something obscure or not and proclaim, "How could so-and-so have left off this book!" Anyway, the point is that I enter the fray without this attitude. I've read a good deal of the books collected in these lists and think many of them fine.

That said, I do have a few reading recommendations for those set to enter law school in the Fall. First, a general recommendation: read what you want. Enjoy a novel you've been putting off or re-read your favorites. You will be doing a lot of law related reading when school starts; no need to start the process three months early. You won't have the leisure time you are enjoying now again for a while, and you may never enjoy such a time again. So have fun. Learn how to cook, watch movies, get your life in order, and if you feel like reading The Brethren, great. It's a fantastic book--dive in. But if you don't, you certainly will not be at a disadvantage when school starts.

If you're still reading and thinking, "That's great. But I want to read something and I'm not sure what to spend my time on." then here are some recommendations. First, a few you will not find on your traditional pre-law reading lists.

Nietzsche, Human All Too Human
Camus, The Stranger
Pynchon, Gravity's Rainbow

For those of you who would just rather read something law related, here are a few more:

Posner, Law and Social Norms
Schwartz, A History of the Supreme Court
Lazarus, Closed Chambers

If you are a pre-law student and are interested in other recommendations, I would be happy to offer my thoughts. Devour these books and your mind will be well-prepared for the start of school. But, above all, have fun this summer and relax.

2004-06-07T00:23:00.000-07:00

Spelling: David Timarsh correctly spelled "autochthonous" to claim first prize in the National Spelling Bee. (Incidentally, David's father is Jay Tidmarsh, Professor of Law at Notre Dame.) Rarely have I seen the type of emotion and drama displayed in that tournament on an NBA court or during the course of the typical MLB game. The most dramatic moment came when eventual runner-up Akshay Buddiga (brother of a past champion) was confronted with the word "alopecoid" and promptly collapsed. More remarkable than the collapse, though, was that he returned to his feet after a brief moment, walked straight to the mic and proceeded to correctly spell the word.