Working Papers
When presented in full-text, working papers available on the George Mason School of Law site are in Adobe's PDF format, and require Adobe Acrobat Reader to view and print these documents.
The Law School's Working Papers in Law & Economics are also available from the Social Science Research Network (SSRN).
Below is information about the most recent papers published in our working papers series. Additional information about the working papers series can be found on the following pages.
Recent Working Papers:
Presumptive Business Judgment, Substantive Good Faith, Litigation Control: Vindicating the Socioeconomic Meaning of Harhen v. Brown
By: 
Harry Hutchison
No.: 08-26 [Full text 
]
Abstract:
Much legal debate exists as to whether courts should engage in procedural or substantive review of a committee or board's attempt to control the litigation. Opponents argue that the current regulatory framework is insufficient when it comes to precluding the filing of questionable cases. Meanwhile, those wishing to encourage and expand liability rules as a corporate governance mechanism deem the framework as too constrained. In an attempt to address these viewpoints, this Article will examine the Harhen v. Brown case decision to determine if the result, despite its reversal by the Massachusetts Supreme Judicial Court, can be justified or whether the decision is an unsustainable invitation to the courts to substitute their judgment for that of directors.
This Article begins by attempting to establish a defensible framework for evaluating judicial review. The author does so through reference to the nature of the wrongdoing at issue, utilizing Zapata v. Maldonado, as well as by explicating the nature of the social meaning of derivative suits, including judicial review of efforts by firms to control the litigation; and through the application of law and economics analysis. The Article then examines an earlier case, Houle v. Low, that enlarged the scope of the Massachusetts business judgment rule as it relates to decisions to terminate shareholder derivative suits. The Article next examines the Massachusetts Appeals Court's application of Houle v. Low to its Harhen v. Brown decision.
Finally, the author addresses policy considerations, including an examination of the deterrence and compensatory value of derivative litigation, and law and economics to this Harhen v. Brown holding. The author argues that the decision taken in Harhen was justifiable because it has the potential to reduce firm-specific agency costs by encouraging meritorious claims which vindicate the social meaning of such suits by creating public deterrence effects in addition to providing private relief. The author contends that the rules (however indeterminate) derived from this case should be expanded to encompass all (including settlement) decisions taken by special - either prelitigation or contemporaneous litigation - committees and the courts.
The SEC's 2006 Soft Dollar Guidance: Law and Economics
By: 
D. Bruce Johnsen
No.: 08-25 [Full text ]
Abstract:
After some two years of deliberations, in July 2006 the SEC released its long-awaited Guidance on the scope of the “soft dollar safe harbor.” Passed as part of the Securities Acts Amendments in May, 1975, the safe harbor has protected fund advisers and other money managers for over 30 years from criminal actions and civil suits for breach of fiduciary duty when they use client assets to pay more than the lowest available brokerage commissions in exchange for “brokerage and research services.” During this time the SEC has interpreted and re-interpreted the safe harbor’s scope, largely owing to the public controversy soft dollars engender as a form of illicit “kickback” designed to subvert advisers’ loyalty. The SEC’s 2006 Guidance attempts to dramatically narrow the permissible use of soft dollars by prescribing a laundry list of protected and unprotected services. Yet the SEC is now considering further interpretation, and its chairman has petitioned Congress for an outright repeal of the soft dollar safe harbor. This paper shows that soft dollars are an innovative and efficient form of economic organization that benefits fund investors. According to economic theory now well-established in antitrust law, the SEC’s Guidance is hopelessly misguided. Were the Guidance to come under the scrutiny of a federal court, the SEC would very likely experience another in its recent string of embarrassing legal defeats.
Directed Brokerage, Conflicts of Interest, and Transaction Cost Economics
By: D. Bruce Johnsen
No.: 08-24 [Full text ]
Abstract:
This paper relies on the economics of transaction costs to assess the likely effect on investor welfare of the U.S. Securities and Exchange Commission’s (SEC’s) prohibition on an innovative business practice known as directed brokerage. Its key insight is that the quality of a broker’s execution of portfolio trades is difficult for a mutual fund adviser to assess until it is too late ? that is, execution quality is an “experience good.” In the meantime, low-quality brokerage can substantially reduce investor returns. To have the incentive to provide high-quality execution, a broker must expect to receive a stream of premium portfolio commissions in excess of his execution costs, much along the lines of a Klein-Leffler quality-assuring price premium. Competition between brokers for premium commissions leads them to post a performance bond with advisers equal to the present value of the expected premium stream. With directed brokerage, the bond takes the form of up-front broker effort devoted to marketing the fund’s retail shares. Once having posted the bond, any broker that provides low-quality execution will eventually be terminated by the adviser and lose the premium stream that provides a normal return on the up-front bond. Low-quality brokerage is thus screened out. Contrary to its intended effect, the SEC’s prohibition on directed brokerage likely reduces investor welfare by failing to recognize the problems inherent in transacting experience goods.
Resolution of Mass Tort Claims in the Bankruptcy System
By: 
Douglas Smith
No.: 08-23 [Full text ]
Abstract:
This Article addresses the resolution of mass tort claims in bankruptcy, with a particular emphasis on one important mechanism available under the Bankruptcy Code, Section 157(b). Section 157(b) allows the district court presiding over a bankruptcy case to centralize all related claims for resolution within the bankruptcy proceedings. This is a particularly important procedural tool given the necessity of a centralized resolution of mass tort claims - one that has been increasingly utilized to resolve such claims on a global basis.
The Article discusses the essential aspects of mass tort litigation in the United States, the potential mechanisms for addressing mass tort liability as well as their shortcomings, the tools available within the bankruptcy system for resolution of mass tort claims, and the ability of bankruptcy courts to centralize all related claims for resolution in a single forum through litigation of common threshold issues of liability. The Article concludes that the bankruptcy system may succeed in efficiently and fairly resolving mass tort claims where other mechanisms have failed.
The Constitutionality of Civil Commitment and the Requirement of Adequate Treatment
By: Douglas Smith
No.: 08-22 [Full text ]
Abstract:
This article addresses the constitutional concerns and costs and benefits associated with civil commitment for sexually violent predators. In particular, it focuses on Washington’s civil commitment program, the oldest such program in existence in the United States and, indeed, the only program in the nation in which the constitutional parameters of the treatment program have been fully litigated. From the outset, Washington’s civil commitment program has been the subject of significant litigation and in large measure that litigation has defined the scope of the constitutional rights of civilly committed individuals to constitutionally adequate treatment. At the same time it has demonstrated many of the problems associated with such programs and provides an important case study in assessing their costs and benefits. The article concludes that, in addition to the potential constitutional concerns regarding civil commitment, the costs of civil commitment appear to outweigh its benefits and that increasing criminal penalties for crimes of sexual violence may be a superior alternative.
Kelo, Directed Growth, and Municipal Industrial Policy
By: 
Steven Eagle
No.: 08-21 [Full text ]
Abstract:
This article explores trends towards increased local government land use regulation to spur economic development and towards partnering with private redevelopers. It notes that while Kelo v. City of New London has intensified these trends, the use of condemnation for retransfer for private redevelopment endorsed by Kelo is only one tool by which local government advances what the author terms municipal industrial policy. While Kelo expresses confidence in the ability of courts to distinguish between permissible economic development takings primarily for public benefit and impermissible takings primarily for private benefit, the author maintains that any such distinction is illusory.
The article also explores how public choice considerations augur in favor of unnecessary and inefficient condemnations. Finally, it suggests some alternatives that would better effectuate urban redevelopment while avoiding unfair and inefficient exercises of eminent domain. There include greater recognition of fractional property interests, and facilitating owner participation in post-condemnation redevelopment. Other salutary alternatives are localizing neighborhood redevelopment control, and making blight redevelopment open and transparent by replacing condemnation with abatement and foreclosure.
Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights
By: 
Eric Claeys
No.: 08-20 [Full text ]
Abstract:
In tort scholarship, conventional wisdom assumes that economic analysis explains doctrine more determinately than philosophical analysis. This Article challenges that assumption, using land-use torts as a point of contact.
The Article studies cattle trespasses, pollution nuisances, train-sparks cases, and other basic rules of tort liability Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights theory that informed the content of these torts when “tort” was forming into a single field of legal study. The “Jeffersonian” natural-rights theory predicts the contours of doctrine more determinately and accurately than “Coasian” economic analysis. It also anticipates and finesses a significant normative challenge to Coasian economic tort analysis—its tendency to demand that triers of fact process unrealistically volatile and fact-specific information to prescribe legal results.
The comparison teaches that conventional impressions about tort philosophy and economics have been misguided in at least three important respects. First, in a significant swath of doctrine, Jeffersonian natural-rights moral theory shapes the contours of tort quite determinately. Second, if philosophical tort scholarship has a bad reputation for being indeterminate, it does so at least in part because it has chosen to focus on the general corrective-justice architecture of tort—to the exclusion of specific theories of political morality informing particular doctrines. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.
Democracy and International Human Rights Law
By: John McGinnis, 
Ilya Somin
No.: 08-19 [Full text ]
Abstract:
The undemocratic origin of most international human rights law greatly reduces the desirability of allowing it to change the domestic law of democratic states. Most international law is made through highly undemocratic procedures. Thus, on average, the quality of what we call "raw" international law rules that have not been ratified by domestic democratic processes is likely to be lower than that of domestic legal rules established by liberal democracies.
Our article does not rest on theoretical arguments alone. We describe several concrete effects of the non-democratic generation of international human rights law. For example, we show how the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potential harmful international law norms in with respect to "hate speech," the "humanitarian" law of war, and comparable worth.
Nevertheless, our conclusions about international human rights law are not wholly negative. Our embrace of democratic processes as an effective generator of human rights naturally leads to a willingness to consider domestic enforcement of international human rights that directly strengthen citizens' control over government policy. We thus seek to reorient international human rights law from generating controversial substantive rights to protecting norms that will facilitate the leverage of citizens in controlling their own governments. As an example, we advocate more ample protection and enforcement for "migration rights" because these allow citizens around the world to "vote with their feet" and thus help them control the actions of the governments under which they live.
The High Costs of Shareholder Participation
By: R. Sean Alley, Harry Hutchison
No.: 08-18 [Full text ]
Abstract:
A number of observers contend that the new literature on happiness, the product of the work of psychologists and economists, poses a significant challenge to traditional economics. Economics generally assumes that peoples’ choices advance their well-being. By contrast, current happiness literature suggests that people often make poor choices that undermine their subjective well-being. Therefore, more wealth and income are not sufficient to make people better off. In view of the new happiness literature, corporate law scholar James McConvill argues that shareholder empowerment should be seen as an end in itself because it enhances the empowered shareholder’s access to happiness-inducing participation. His recent article supplies a novel approach to analyzing corporate governance. Participatory experience is substituted for utility maximization as the relevant investor objective. McConvill disputes prevailing conceptions of rational choice analysis for shareholders and argues that the perceived logic which encapsulates rational choice theory fails to appreciate the non-financial benefits (shareholder happiness) that can be derived from increasing shareholder power. McConvill’s fresh look requires an explanation and a critique. This brief article is the second of a series of articles that offer critical analysis vitiating McConvill’s Panglossian conclusions.
The Law & Economics of Subprime Lending
By: Joseph Adamson, 
Todd Zywicki
No.: 08-17 [Full text ]
Abstract:
The collapse of the subprime mortgage market has led to calls for greater regulation to protect homeowners from unwittingly trapping themselves in high-cost loans that lead to foreclosure, bankruptcy, or other financial problems. Weighed against this catastrophe are the benefits that have accrued to millions of American families who have been able to become homeowners who otherwise would not have access to mortgage credit. Although the bust of the subprime mortgage market has resulted in high levels of foreclosures and even problems on Wall Street, the boom generated unprecedented levels of homeownership, especially among young, low-income, and minority borrowers, putting them on a road to economic comfort and stability. Sensible regulation of subprime lending should seek to curb abusive practices while preserving these benefits.
This article reviews the theories and evidence regarding the causes of the turmoil in the subprime market. It then turns to the question of the rising foreclosures in that market in order to understand the causes of rising foreclosures. In particular, we examine the competing models of home foreclosures that have been developed in the economics literature—the “distress” model and the “option” model. Establishing a correct model of the causes of foreclosure in the subprime market is necessary for sensible and effective policy responses to the problem. Finally, we review some of the policy initiatives that have been suggested in response to the crisis in the subprime market. Because new regulatory interventions will have costs as well as benefits, until the causes of the market’s problems are better understood it may be that the best policy in the short-term is to do little until well-tailored regulatory approaches are available.
The Role of the Common Law in Defining and Protecting the Environment: A Prolegomenon
By: Steven Eagle
No.: 08-16 [Full text ]
Abstract:
This article surveys contemporary issues in defining and protecting the environment. It stresses the continuing relevance of common law methodology and doctrine. It reviews the development and imprecision of the term “environment,” together with the influence of various philosophical and utilitarian views of environmentalism. These are juxtaposed against corresponding approaches to human flourishing. Finally, the article analyzes how contemporary notions devaluing meaning of property and property rights have contributed towards a lack of interest in developing common law principles - principally those of nuisance - in dealing with environmental issues.
A Federalism-Based Rationale for Limited Liability
By: Douglas Smith
No.: 08-15 [Full text ]
Abstract:
This article contends that there are strong historical and economic arguments in favor of limited liability for corporate shareholders that arise from the federal structure in the United States. Limited liability is an important tool for minimizing extraterritorial regulation. It allows each state to bar other states from imposing liability on corporations created in their respective states in a manner that deviates from the policy of the state of incorporation. Moreover, it allows states to compete as centers of corporate creation. Certain states have developed particularly stringent doctrines of limited liability and it is arguably no accident that such states are favorites for those seeking to incorporate. Likewise, States with stringent doctrines of limited liability may protect their corporations from the application of relaxed standards of tort liability found in other jurisdictions or procedural standards that threaten to impose significant and arguably unwarranted liability upon the corporate entity. Plaintiffs under such circumstances will find themselves limited to the assets of the corporation even though they may be able to establish entitlement to far greater sums under the laws of their own jurisdictions. This aspect of limited liability has become even more important given the recent increase in forum shopping and the recognition of certain jurisdictions as magnets for claims that would not succeed elsewhere. Moreover, it explains the continuing vitality of limited liability in the context of involuntary tort creditors, which has been the focus of significant academic criticism.
Natural Rights, Economic Liberties, and the Privileges or Immunities of United States Citizenship: A Modest Tribute to Professor Siegan
By: Eric Claeys
No.: 08-14 [Full text ]
Abstract:
This Essay was written for a symposium at the University of San Diego commemorating Professor Bernard Siegan. The Essay celebrates Professor Siegan’s constitutional scholarship by reconsidering whether the Privileges or Immunities Clause of the Fourteenth Amendment covers fundamental property and commercial rights.
The Essay makes four observations about the original meaning of the Privileges or Immunities Clause. First, the Articles of Confederation, prominent legal treatises available at the Founding, and prominent case law on the Comity Clause all suggest that “privileges” or “immunities” cover the rights to acquire and hold property and the right to practice a trade. Second, in Blackstone’s Commentaries, colonial charters, and Founding Era public discourse, “privileges” and “immunities” referred to positive laws securing fundamental natural rights. Third, the Comity Clause makes much less sense conceptually if “privileges” and “immunities” refer to formal non-discrimination rights than they refer to fundamental rights with substantive moral content. Finally, the term “abridged” in the Privileges or Immunities Clause strongly suggests that the “privileges” and “immunities” in the clause have not merely formal but also substantive content.
The evidence canvassed in this Essay is not comprehensive, and the interpretation of the Privileges or Immunities Clause is not complete. But these claims do provide new evidence about the original meaning of the Privileges or Immunities Clause and its structural fit with other relevant portions of the Constitution. And they should also help scholars sift other relevant evidence of original meaning more sensitive to how the terms “privileges” and “immunities” were assumed to refer to fundamental substantive rights.
Which is the Constitution?
By: 
Ross Davies
No.: 08-13 [Full text ]
Abstract:
When deliberating over District of Columbia v. Heller (the gun control case) the Supreme Court might do well to consider whether the result on which it settles will depend on the number and placement of commas in the Second Amendment. There are, after all, several versions of the Second Amendment available. They feature from zero to three commas in various arrangements over which reasonable minds have differed for a long time, as William Van Alstyne recently noted. And the problem is more general: identifying and preserving a single, agreed-upon version of a text produced by our federal constitutional ratification processes can be much more difficult than one might imagine. If the Court does rest a decision in Heller on an interpretation of one particular version (any one will do) of the Second Amendment, it should be prepared to answer a puzzling question about federal judicial power. The question is this: If the Court is in charge of interpreting the Constitution, does that mean it is also in charge of deciding what counts as part of the Constitution? Does the Court have, for example, the power to say a three-comma version of the Second Amendment is part of the Constitution, and the no-comma, one-comma, and two-comma versions are not? And if it does have that power, is it also free to select different Second Amendments for different occasions?
The Market for Union Representation: an Information Deficit or Rational Behavior
By: Harry Hutchison
No.: 08-12 [Full text ]
Abstract:
In his forthcoming Virginia Law Review article, Information and the Market for Union Representation, Professor Matthew Bodie asserts the NLRB’s model fails to ensure the inclusion of sufficient relevant information. Offering a “purchase of services” paradigm as an alternative way to understand the decision to choose or refrain from choosing to join a union, Bodie conceives the representation election as a collective economic decision rather than the end result of a political campaign. In order for the market for union representation to function satisfactorily, adequate knowledge is required. Professor Bodie tenders a provisional solution—mandatory disclosure aimed at boosting public confidence in the market for union representation.
Although Professor Bodie’s approach is a welcome addition to the literature, it suffers from a few shortcomings. First, labor unions have historically opposed transparency. They are unlikely to welcome additional disclosure initiatives. Second, his proposal appears to offer a constrained conception of capture that concentrates on employers. Public choice shows that the possibility of capture, grounded in self-interest, is not limited to employers. A more robust conception of capture would include union hierarchs and their ideological allies who see unions as a staging area for the achievement of ideological goals that few workers share. Third, Bodie’s article offers a prevailing but contestable conception of free-riding that appears to overestimate the economic benefits that workers receive from unions. Lastly, Professor Bodie appears to underestimate the capacity of workers as autonomous and adaptive principals to acquire adequate information about the cost and benefits of unionization over a period of time. Even within the existing disclosure framework, workers respond to the information provided by the market, by choosing, or more likely by declining to choose union representation.
Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System
By: John McGinnis, Ilya Somin
No.: 08-11 [Full text ]
Abstract:
This essay offers a new defense of judicial review of the Constitution's federal structure. It begins by showing that federalism is best understood not as a system that creates rights for states but one that provides benefits for the citizens of the nation. It achieves this goal by distributing powers best exercised at the national level to the federal government and those best exercised more locally to the states. The benefits of this distribution include catering to diverse preferences of citizens in different states and creating horizontal competition among the states for efficient provision of government services.
Because these benefits flow to citizens rather than to government officials, the structure of federalism creates a classic principal-agent problem. We show in the paper that citizens will be poor monitors of these officials, because they are rationally ignorant of politics, particularly structural issues, like federalism, and because they are an extremely large group, giving them incentives to free ride on the monitoring of others.
We then show that state officials have incentives to take advantage of this lax monitoring and themselves undermine federalism. State officials may surrender their powers and acquiesce in congressional overreaching in the areas of the Commerce Clause, section 5 of the Fourteenth Amendment, the spending power and sovereign immunity. To give just one example, we show that while horizontal competition among the states may benefit citizens, state officials may benefit from avoiding competition and seeking a cartel sustained by a federal regulation. For such reasons, the political process cannot be counted upon to protect the proper distribution of powers, because state officials as well as federal officials have few incentives for its preservation.
Because our theory of federalism is not a states' rights theory, we also believe that judicial review is appropriate when states usurp federal power or otherwise undermine federalism. State officials have strong incentives to undermine structural federalism in such areas as the dormant Commerce Clause and the Compact Clause. We thus call for more judicial enforcement in some of these areas as well. Ours is thus a unified theory of judicial review that justifies judicial enforcement of federalism against both federal and state governments. We end by sketching the beginnings of a theory explaining why the federal judiciary, given its structure and incentives, will improve the enforcement of this most essential constitutional distribution of power.
The Second Amendment and the Supreme Court
By: Douglas Smith
No.: 08-10 [Full text ]
Abstract:
This article discusses the litigation regarding the Second Amendment currently pending before the Supreme Court. I argue that the narrow issue that is before the Court (whether the Second Amendment guarantees an individual right) is fairly straightforward and present arguments regarding the text and history of the amendment that suggest it guarantees a fundamental individual right. In the process, I critique the arguments that have been presented by the District of Columbia to the contrary.
Faithless Electors of 1912: Appendix
By: Ross Davies
No.: 08-09 [Full text ]
Abstract:
As the incumbent, William Howard Taft was the presumptive Republican nominee for President in 1912, but he faced a challenge from Theodore Roosevelt, his old friend and predecessor in the White House. Roosevelt enjoyed enormous personal popularity. Moreover, with that growing portion of the public – including many Republicans – whose sympathies were progressive, Roosevelt’s views on several key issues had shifted sharply away from the traditional positions that remained bedrock for Taft and the conservative core of the party. Taft, however, controlled the party machinery and thus in most states the selection of delegates to the Republican national convention, making it impossible for Roosevelt to acquire the party’s presidential nomination by conventional means. The only hope for Roosevelt lay in the popular primaries that had by 1912 taken hold in about a dozen states. His campaign rested on the theory that if he could show overwhelming support in the primary states, the political superiority of his prospects to Taft’s would be obvious, and as a result the Republican organization would back him rather than Taft.
The first step of the Roosevelt Republican nomination plan worked, but the second failed. He ran away with the vast majority of the primary states (including Taft’s home state of Ohio), campaigning on the mix of progressive themes that he labeled “the New Nationalism,” including a graduated income tax, expanded government control of big business through regulation rather than antitrust enforcement, direct primaries and election of Senators, initiative and referendum, women’s suffrage, labor law reform, a “scientific” high tariff, and recall of judicial decisions. Roosevelt drew a total of 1,157,397 votes, to 761,716 for Taft and 351,043 for Robert La Follette, the progressive senator from Wisconsin. Taft nevertheless marshaled the party regulars and prevailed at the Republican national convention in June 1912. In response, Roosevelt and many of his supporters bolted to form the National Progressive Party (aka the Bull Moose Party).
The Bull Moose forces, with less than five months to prepare for a national election, struggled with the problems shared by every national third party movement in the United States – lack of local political organization, lack of candidates for Congress and local and state offices in general, and (most importantly for Roosevelt) lack of established slates of presidential electors. Possible solutions varied from state to state, depending on local regulations and political conditions. In some states where Roosevelt was especially strong, progressives proposed to simply co-opt part or all of the local Republican organization, including Republican presidential electors, for the Bull Moose. Kansas was one such state, and after a majority of the certified Republican candidates for elector declared that given the opportunity they would vote for Roosevelt, Taft supporters went to court.
Piercing the Corporate Veil in Regulated Industries
By: Douglas Smith
No.: 08-08 [Full text ]
Abstract:
This article addresses the theoretical justifications for limited liability and the exceptions to limited liability under the various veil piercing doctrines. In particular, the article considers whether veil piercing is appropriate in regulated industries such as insurance and banking, which have comprehensive regulatory structures that are designed to prevent much of the conduct that veil piercing is designed to remedy. The article concludes that veil piercing is not justified under such circumstances because the economic costs outweigh any benefits.
Fair Warning to Law Schools…and an Invitation to 1Ls, 2Ls & 3Ls
By: Ross Davies
No.: 08-07 [Full text ]
Abstract:
Aspiring law students and professors should have more and better information about the relative quality of law schools. Unfortunately, the people in the best positions to provide that information - the AALS and ABA - have powerful reasons to avoid doing so. The void has been filled in part by the U.S. News rankings. We could go on about their defects and limitations, but we have done that before. U.S. News could improve its product, but why bother? Doing more and better work would be costly, and in the absence of a genuine competitive threat there is no reason to make the investment. Enter the Deadwood Report, in which the Green Bag will provide rough and admittedly partial but transparent measures of law school faculty quality by measuring teaching, scholarship, and (eventually) service. Law schools generally hold themselves out as institutions led by faculties whose members are committed to working in all three areas. Why? Because - according to the law schools and many leaders of the profession - the best teachers tend to be active scholars, and the best scholars tend to be active teachers, and all the best lawyers of every stripe engage in service for the public good. Evidence of the law schools' commitment to this view is reflected in the practically universal requirement of high achievement in all three areas for tenure. And so we should be able to say with some confidence that a good law school will have a faculty consisting of hard-working teacher-scholar-humanitarians. The Deadwood Report will simply test the accuracy of that picture. Our focus will be on the most dully objective of measures: whether the work is being done - whether each law school faculty member is teaching courses, publishing scholarly works, and performing pro bono service.