Truth on the Market

Academic commentary on law, business, economics and more

Archive for February, 2006

The Ethicist strikes again

Posted by Geoffrey Manne on February 22, 2006

One of my students brought to my attention this pearl of wisdom from (what appears to be this week’s forthcoming) The Ethicist column in the NYT:

I am a 13-year-old boy. My school has a monthly pizza sale. Parents buy pies from a pizzeria and sell them to us for $1 a slice. I bought a whole pie at the pizzeria and offered slices for $2 to kids at the end of the long line. A school counselor stopped me. She said that I was unethical and was “taking advantage of people.” I thought I was providing a service to people based on the principle that “time is money.” Who is right? Ben Gammage, San Diego

Time may be money, but how much, really, for an eighth grader, who is not paid to attend school? And do we really want all our interactions based on the variable-pricing airline-seat model? Were pizza a necessity of life (as many teenagers regard it) and in short supply, you would have been been guilty of profiteering, as your counselor charged. But there was plenty of pizza, so you didn’t exploit anyone. And pizza does remain a luxury, so nobody was compelled to buy your pricier slices. (Were they? I assume there was no gunplay.) Thus your actions were not unethical, but they were poor social policy — if that’s not too fancy a way to describe undermining a pizza party.

Your counselor’s concern was valid, if poorly expressed. The dollar-a-slice deal made possible a schoolwide pizza party, affordable fun for everyone. Judging by the long line, it’s something people enjoy.

You turned it into a two-tiered system — kids with money don’t wait; kids without money do — shifting it from a we’re-all-in-it-together event to something less communitarian (if more profitable).

ethicist.jpgThe errors here need no pointing out in this forum, I presume. I am glad that he stopped short of condemning the kid outright (unlike the kid’s school counselor), but I’m surprised, given the extent of the truly fundamental flaws in his analysis. Maybe this will turn out to be just a rough draft and the published version will look different. But I doubt it.

This isn’t Randy Cohen’s (he’s the Ethicist) first outing on TOTM. It surely won’t be his last.

Posted in economics, journalism, markets | 6 Comments »

Whose university is it?

Posted by Geoffrey Manne on February 22, 2006

Harvard-Yale-Football-Program-1959.jpgThere’s been some recent (and widely disparate) posting on the nature and governance of universities. See, for example, here (Tsai on sports and higher ed), here (Oesterle on endowment spending), here (Bollier on the knowledge commons; see especially comments by me and Josh in the . . . comments section (duh)), here (Posner on tenure), here (Becker on tenure), and here (me on the education market of the future). More recently Becker and Posner wade back in with posts on for-profit universities.

Now comes news of Larry Summers resignation, on which see Larry here and here.

The unifying (if implicit) question is: For whose benefit are universities operated, and how is that benefit determined? It’s not such an easy question. Many would answer quickly, “the students,” but, even if this were true (and it sure seems not to be), the question would remain, why is it true? Students have almost no say in most university governance, and little ability to evaluate specific university decisions. What constrains faculties, administrators and trustees to act in their interest?

The problem is endemic to nonprofits, but especially universities. Among the (interrelated) problems in sorting all this out are these:

  1. Residual claimants are not well-defined, meaning something of a free-for-all (rent seeking) and imperfect (to say the least) fiduciary relationships.
  2. There’s nothing approaching unity of interest among the potential residual claimants and other stakeholders.
  3. There’s no control market (a function of the above and the legal inalienability of profits).
  4. “Maximization” is generally ambiguous, no matter whose preferences prevail (where the maximand isn’t profits).
  5. Other markets are weak, as well, because the products on offer (ranging from education to research to a “marriage market” and beyond) are hard to observe and measure.

As I said in the post linked above, I think in particular that faculties have little accountability to students and other stakeholders, much to the detriment of students (and probably the broader society). So how should we start to talk about the merits of sports on campus, tenure and “knowledge commons”? Or how should we take Summer’s forced resignation at the hands of, as Larry points out, “segments of the Arts and Sciences faculty”? Are these “good”? How can you tell? By what standard do you judge? Is there any basis for inferring value from persistence?

For example, tenure might be an efficient solution to the problem of the “high commitment” academic workplace, as Posner suggests. But how would you know? There’s not much of a market to punish relative failure and reward relative success in teaching quality (and even research, although this market is a little better). Tenure may encourage the creation and operation of “good” norms, but it also opens the door to bad ones. Which effect prevails? And even if there were a market (if students paid directly for professors’ teaching services) how well do students’ narrow, perceived interests track their real interest or social welfare?

It’s hard for any reasonable observer to be other than disgusted at the situation at Harvard (although perhaps not surprised). What, if anything, is to be done, and by whom? Anyone have any answers?

UPDATE: Becker and Posner weigh in on the Summers debacle. I would just add that, as Posner echoes, l’Affair Étés (get it?) points up the problem with de facto residual claimancy by faculty members within the university organization, strengthening Becker’s plea for more powerful administrators. But the real problem is the relative absence of markets — and, especially with tenure, who will effectively challenge the faculty for control of the organization?

UPDATE 2:  David Friedman reminds us again that Adam Smith said it all before.  A point I also made (quoting the same excerpt) here.

Posted in markets, nonprofits, universities | 1 Comment »

Business Continuity Programs and Fiduciary Duties

Posted by Bill Sjostrom on February 22, 2006

This CFO.com article describes a new Deloitte & Touche/CPM Group survey on business continuity management programs.  The survey finds that “[m]ore than 83 percent of companies have developed business continuity management programs, compared with only 30 percent of companies just six years ago.â€?  Deloitte and CPM attribute the increase to the fact “that executive management remains primarily concerned with regulatory compliance, and with fulfilling fiduciary responsibilities by addressing operational resilience in response to a broad array of disruptive events.â€?Â

I don’t know offhand what regulations require or encourage a company to adopt a business continuity program, but I don’t doubt that there are some.  What I find curious is the reference to “fulfilling fiduciary responsibilitiesâ€? which seems to imply there is a fiduciary duty to adopt such a program.  There is no such specific duty.  A decision on whether a business should put a program in place is just like any other business decision.  Absent a conflict of interest, as long as the decision is made on an informed basis, in good faith and in the honest belief that the decision is in the best interests of the corporation, the board has fulfilled its fiduciary responsibilities regardless if the decision is to adopt or not to adopt a continuity program.  Ultimately, if the board takes up the issue, it should consider the probability and magnitude of various business disruption risks and make a judgment as to whether it believes it is in the best interest of the corporation to put a program in place.Â

Maybe I’m reading too much into the article, but this looks like another example, in addition to the one Gordon Smith points out here, of business people having a more expansive notion of fiduciary duty than is the case under corporate law, which seems to me is not a good thing because it leads to suboptimal risk taking by the board.

Posted in corporate law | Comments Off

Buy-Out Prices in Nose Bleed Territory

Posted by Bill Sjostrom on February 22, 2006

According to this FT article, Stephen Schwarzman, the head of the buy-out firm Blackstone (a firm that will soon close on a record $13.5 billion buy-out fund), warned that prices being paid in buy-outs are in “nose bleed territory� and that “seeds of excess� are being sown.  As Schwarzman put it:  “[W]hen it ends, it always ends badly.  One of those signs is when the dummies can get money and that’s where we are now.�  This is consistent with the position I took in this post that market forces will prevent buy-out funds from continuing to reap easy profits.

Posted in private equity | Comments Off

Another Antitrust Suit Against the NCAA

Posted by Josh Wright on February 22, 2006

The NCAA is no stranger to defending antitrust suits. Remember Maurice Clarett? How about the NIT? Tom Farrey of ESPN the Magazine brought my attention to a new and very interesting antitrust suit filed last week in Los Angeles on the theory that the NCAA has illegally conspired to prohibit member colleges from offering athletic scholarships covering the “full cost” of attendance. Apparently, the NCAA fixes a standard scholarship package, called “grant-in-aid,” which is approximately $2,500 less than the official cost of attendance. Farrey also notes that:

“[A]thletes are the only students subject to aid restrictions imposed by an agreement among universities. Talented students in music, chemistry or any other area can be bid upon by individual colleges, without limits on the total value of their scholarship packages.”

NCAA President Myles Brand had apparently come out in favor of a proposal bridging the gap between grant-in-aid and full cost in 2003, but to no avail. The lawsuit was filed on behalf of a class of scholarship athletes in the graduating classes from 2002-2010 by none other than (1998 California Antitrust Lawyer of the Year) Maxwell Blecher and seeks damages covering the difference in scholarship costs and full costs for some 20,000 athletes from 144 colleges (the article estimates this difference to be near $117 million, which would be trebled to $351 million). Of course, one expects that the NCAA will trot out the classic sports/antitrust defenses: the fixed scholarship is necessary to maintain “competitive balance” and “preserve amateurism.”
This suit will be a fun one to watch.

*For the sake of disclosure, this suit caught my attention because Ramogi Huma, a UCLA linebacker during the 1990s, was responsible for getting the class of plaintiffs together through his organization, Collegiate Athletes Coalition. CAC has received its own fair share of press for its work over the years with regards conditions for student-athletes (insurance for mandatory summer workouts, health care, eliminating employment restrictions, etc.). This fact caught my attention because, like many former Bruins who managed to make their way to the weightroom from time to time, I met Ramogi during the early days of the CAC. Though I have not been following their activities closely, the CAC has clearly grown from its UCLA days, with Congressional testimony under its belt (and apparently, support from the United Steelworkers of America), and involvement in a federal antitrust suit.

Posted in antitrust | 6 Comments »

Measure 37 Upheld

Posted by Geoffrey Manne on February 21, 2006

You may or may not know that Oregon’s Measure 37 — our anti-takings measure — was ruled unconstitutional last year by a state trial court. See this post by Todd Zywicki. But today the Oregon Supreme Court reversed, and handed the effort to quash Measure 37 a resounding defeat. The court’s holding, on each of the claims raised:

In sum, we conclude that (1) plaintiffs’ claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution. The trial court’s contrary conclusions under the state and federal constitutions were erroneous and must be reversed.

portland.jpgFor those who don’t know about it, Measure 37 is Oregon’s version of Richard Epstein’s classic refrain on takings: “Take and pay.” It leaves governments a choice — pay for land use planning (and Oregon has a lot of land use planning) or refrain from it. This won’t be the end of the saga, but the court’s opinion is sure a nice waypoint.

By the way — here’s the dispositive language of Measure 37. (There’s more to the measure than I’m about to quote, but this is the real meat of the measure. For the whole thing, follow the link to the court’s opinion and then scroll down to the appendix:

(1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.

(2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.

Also sweetening the victory: The case was successfully argued by Lewis & Clark’s dean, Jim Huffman. Congratulations, Jim!

Posted in markets, politics | 3 Comments »

On disclosure: Hands-tying

Posted by Geoffrey Manne on February 20, 2006

Dale Oesterle has called Gretchen Morgenson a “national treasure.” Today Larry Ribstein exposes the treasure for fool’s gold. I’m with Larry on this one.

Morgenson’s article on executive compensation is yellow journalism at its worst (well, at least a far as business journalism goes. And really — what else is there?).

As Larry suggests, hatchet jobs like Morgeson’s can be quite costly:

To what extent do stories like this shape misguided public policy like the SEC’s recent compensation disclosure rule? What is the social cost of the useless reshuffling firms must do to minimize damage from sensationalist stories like this?

Excellent questions. To me this sort of story highlights one of the dangers of mandatory disclosure: That the information might actually be used. We’re all accustomed to thinking that shareholders are rationally apathetic, but rationality means nothing if it doesn’t mean that shareholders will be less apathetic [does that make them more pathetic? -- ed.] when the cost of action goes down. It is, after all, the fundamental grounding for our securities regulatory regime.

thomas schellingAnd this may be bad. The problem is that forced, Plain English disclosure of pay packages along with Ms. Morgenson’s finely-honed commentary (“it’s outrrrrrrrrageous!”) may induce shareholder action — in precisely the sort of situation in which the shareholders’ collective best interests are served by specialized decision-making by the board and seriously-limited or no shareholder second-guessing of business decisions. When, that is, their hands should be tied.

One of the great strengths of our system of corporate governance is that it permits corporations to control the level of shareholder participation in the firm — which is to say, the exent to which shareholders may harm themselves. They are routinely denied access to proxies, constrained in their voting, and, of course, completely absent from all regular business decisions. It makes sense that firms should be permitted to select the appropriate level of shareholder action, to the extent it can be controlled. So why shouldn’t boards be permitted to control the flow of information, as well? To the extent that making information more costly functions just like restricting access to corporate proxies in constraining shareholder participation, isn’t it appropriately in the board’s control? Firms can’t always control what shareholders — or journalists — do with the information they disclose, but they can control the disclosure in the first place.

Posted in disclosure regulation, securities regulation | 10 Comments »

SEC Advisory Committee on Smaller Companies Meets Tomorrow

Posted by Bill Sjostrom on February 20, 2006

The SEC Advisory Committee on Smaller Public Companies is meeting tomorrow (2/21/06) at 9:00 a.m.  Click here for the Notice of Meeting.  This is the committee that has proposed, among other things, exempting smaller public companies from SOX 404.  The meeting will be audio webcast through www.sec.gov.

I’m going to try to listen to it in part because a committee member called me today about a comment I submitted on one of the proposals.

Posted in securities regulation | Comments Off

$6 Million for Biondi

Posted by Bill Sjostrom on February 20, 2006

Matt Bodie at PrawfsBlawg has a nice postscript on Icahn’s settlement with Time Warner (click here). Frank Biondi will get a nice postscript too–$6 million. Biondi agreed late last month to serve as Time Warner’s CEO in the event Icahn was successful in ousting the board. Even though Icahn was unsuccessful, Biondi gets $6 million for the few weeks he helped Icahn. As Biondi put it: “It beats minimum wage, that’s for sure.” See this article for more details.

Posted in business, hedge funds | 1 Comment »

New Blog on Empirical Legal Studies

Posted by Bill Sjostrom on February 20, 2006

The Empirical Legal Studies Blog—a collaborative effort of Jason Czarnezki (Marquette), Michael Heise (Cornell), William Ford (Chicago), and Theodore Eisenberg (Cornell)—launched today at www.elsblog.org. Its purpose is to “advance productive and interdisciplinary discourse among empirical legal scholars.” Welcome to the blogosphere ELS!

p.s: I noticed your site is lacking “TM”s. You may want to slap on a few.

Posted in administrative, blogging | Comments Off

 
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