Professor Bainbridge...on law, politics, religion, culture & food

John Edwards

With Kerry picking John Edwards for Veep, I thought I might flag a few of my old posts on Edwards for your reading pleasure:

• John Edwards versus Jobs: a critique of Edwards' old job as a trial lawyer and the deleterious effect of mass tort litigation on jobs and the economy.
• Presidential Politics and Corporate Governance: John Edwards and Shareholder Empowerment: a critique of Edwards' position on shareholder activism.
• John Edwards links to OverLawyered.com's critique of Edwards fundraising.

Ken Klee

My friend and UCLA Law colleague Ken Klee is a remarkable fellow. Nationally respected bankruptcy expert, professor, and practitioner. An article in today's LA Times sheds new light on Ken, who it turns out is running an unusual sideline:

Ken Klee, a UCLA law professor and prominent corporate bankruptcy lawyer ... practices energy healing on the side. A seven-year student of more than half a dozen healing methods including reiki's radiance technique, pranic healing and Theta Healing, Klee practices eight hours a week out of his Brentwood home office, stacked high with stones and crystals, massage table at the center. ...

Klee says, "If I can do it, anybody can do it. I'm a conservative guy, a lawyer, a skeptic. I believe in verifying things. Seven years ago, I would have thought this was completely nuts. Now I'm convinced science is going to validate this. It's going to happen in my lifetime."

Fascinating. Who knew the secret life of a law professor could be so ... out there.

Bachelor Night Revived

With the good wife off at a co-worker's wedding, the faithful dog and I decided it was time to revive an old tradition of the Bainbridge household - Bachelor Night! Long time readers know what this means - porterhouse steak, roasted new potatoes, a small helping of the obligatory green vegetable, and a good bottle of red wine. All accompanied by a favorite DVD (yes, it was one of the Lord of the Rings movies; and, no, I won't tell you how many times I've watched the Return of the King). We shall doubtless incur an unusual degree of disopprobrium this time, however. Not only will dinner be followed by a cigar in the house, not only did we duck going to the wedding, but we also pulled a bottle of Silver Oak out of the wine cellar. Three strikes! Ironically, we were about halfway through the filet side of the porterhouse when this bit of dialogue occurred:

Smeagol: All she gets is nasty orcses. And those doesn't taste very nice, does they Precious?

Gollum: No. Not very nice at all.

Chuckle.

Car Blogging

Mickey Kaus reports on his new car reviewing strategy:

1) [D]rive all the interesting cars at the rental lots down the street; 2) Send the bill to Microsoft.

Personally, if I had Microsoft's resources at my beck and call, I'd be reviewing faster cars than the Prius and the various Scions. (Heck, I drive a faster car than them on a daily basis as it is.) Of course, I'd also be reviewing a 19th Century vertical of Lafite-Rothschild too.

More on Gettysburg

Responding to my post on Joshua Chamberlain's exploits at Gettysburg, a reader sent in the following story, which has obvious appeal for yours truly:

The Irish Brigade Memorial is one to which I'm drawn. I have an ancestor who was killed with the NY 69th at First Bull Run - before the Irish Brigade was formed. He left a wife and three children. ...

The Irish Bgde. was well decimated (Antietam, Fredericksburg, Chancellorsville) by the time it got to Gettysbvurg, It was in a division in Hancock's 2nd Corps. The famous Meagher was no longer commander. It saw action in the Wheat Field and against Pickets Charge on the third day. The men said, "It was Fredericksburg in reverse." and they chanted "Fredericksburg" as the Confederates retreated.

Father Corby was one of the Irish's chaplains. His Memoirs are a worthwhile read. Harry W. Pfanz wrote Gettysburg: the Second Day, it is encyclopedic. He describes Father Corby's general absolution at the outset of the Irish action. There is a famous painting of it and the movie shows it.

"Attention! Order arms!" Father Corby stepped on a boulder and explained what he was about to do (give the soldiers General Absolution). The brigade knelt: each man on his right knee, uncovered, hat and rifle in left hand, bowed head. Father raised his right hand and pronounced the Latin words of absolution. The author describes it as solemn and impressive amid the roar of battle. Father ended the rite with the observation that the "Catholic Church refuses Christian burial to the soldier who turns his back on the foe or deserts his flag." Those were days of priestly zeal for the salvation of souls.

A reader at Notre Dame writes:

The Holy Cross Priests and Brothers live here at the Notre Dame campus in Corby Hall, named after the brave chaplain and later president of the university. Out in front of the residence, is a statue of Fr. Corby, in Union Uniform, with his arm raised, giving the benediction. It is a copy of a statute placed on the battlefield at Gettysburg - one of only three individual statues not of a general (Lincoln and a civilian being the other two).

The statue is popularly known here at ND as "Fair Catch Corby" - the benediction giving right arm seeming to signify a 'fair catch."

Remembering Gettysburg: Joshua Chamberlain

With the 141st anniversary of the Battle of Gettysburg upon us, assuming I've done my sums correctly, Dave Kopel, Paul Gallant, and Joanne Eisen offer up a very fine appreciation of Union General Winfield Scott Hancock, whose heroics indeed well deserve to be recalled. Yet, if I were asked to select the real hero of Gettysburg, I'm afraid my choice would not be Hancock. Instead, I would nominate Joshua Chamberlain. If one were forced to pick just one moment that saved the Union, it would almost surely be Chamberlain's stand on Little Round Top. Let him describe it in his own words (from his action report):

Mounting a large rock, I was able to see a considerable body of the enemy moving by the flank in rear of their line engaged, and passing from the direction of the foot of Great Round Top through the valley toward the front of my left. The close engagement not allowing any change of front, I immediately stretched my regiment to the left, by taking intervals by the left flank, and at the same time "refusing" my left wing, so that it was nearly at right angles with my right, thus occupying about twice the extent of our ordinary front, some of the companies being brought into single rank when the nature of the ground gave sufficient strength or shelter. My officers and men understood wishes so well that this movement was executed under fire, the right wing keeping up fire, without giving the enemy any occasion to seize or even to suspect their advantage. But we were not a moment too soon; the enemy's flanking column having gained their desired direction, burst upon my left, where they evidently had expected an unguarded flank, with great demonstration.

We opened a brisk fire at close range, which was so sudden and effective that they soon fell back among the rocks and low trees in the valley, only to burst forth again with a shout, and rapidly advanced, firing as they came. They pushed up to within a dozen yards of us before the terrible effectiveness of our fire compelled them to break and take shelter.

They renewed the assault on our whole front, and for an hour the fighting was severe. Squads of the enemy broke through our line in several places, and the fight was literally hand to hand. The edge of the fight rolled backward and forward like a wave. The dead and wounded were now in our front and then in our rear. Forced from our position, we desperately recovered it, and pushed the enemy down to the foot of the slope. The intervals of the struggle were seized to remove our wounded (and those of the enemy also), to gather ammunition from the cartridge-boxes of disabled friend or foe on the field, and even to secure better muskets than the Enfields, which we found did not stand service well. Rude shelters were thrown up of the loose rocks that covered the ground. ...

The enemy seemed to have gathered all their energies for their final assault. We had gotten our thin line into as good a shape as possible, when a strong force emerged from the scrub wood in the valley, as well as I could judge, in two lines in echelon by the right, and, opening a heavy fire, the first line came on as if they meant to sweep everything before them. We opened on them as well as we could with our scanty ammunition snatched from the field.

It did not seem possible to withstand another shock like this now coming on. Our loss had been severe. One-half of my left wing had fallen, and a third of my regiment lay just behind us, dead or badly wounded. At this moment my anxiety was increased by a great roar of musketry in my rear, on the farther or northerly slope of Little Round Top, apparently on the flank of the regular brigade, which was in support of Hazlett's battery on the crest behind us. The bullets from this attack struck into my left rear, and I feared that the enemy might have nearly surrounded the Little Round Top, and only a desperate chance was left for us. My ammunition was soon exhausted. My men were firing their last shot and getting ready to club their muskets.

Now comes the moment when Chamberlain assured his place in Valhalla:

It was imperative to strike before we were struck by this overwhelming force in a hand-to-hand fight, which we could not probably have withstood or survived. At that crisis, I ordered the bayonet. The word was enough. It ran like fire along the line, from man to man, and rose into a shout, with which they sprang forward upon the enemy, now not 30 yards away. The effect was surprising; many of the enemy's first line threw down their arms and surrendered. An officer fired his pistol at my head with one hand, while he handed me his sword with the other. Holding fast by our right, and swinging forward our left, we made an extended right wheel, before which the enemy's second line broke and fell back, fighting from tree to tree, many being captured, until we had swept the valley and cleared the front of nearly our entire brigade.

Meantime Captain Morrill with his skirmishers sent out from my left flank, with some dozen or fifteen of the U.S. Sharpshooters who had put themselves under his direction, fell upon the enemy as they were breaking, and by his demonstrations, as well as his well-directed fire, added much to the effect of the charge.

Having thus cleared the valley and driven the enemy up the western slope of the Great Round Top, not wishing to press so far out as to hazard the ground I was to hold by leaving it exposed to a sudden rush of the enemy, I succeeded (although with some effort to stop my men, who declared they were "on the road to Richmond") in getting the regiment into good order and resuming our original position.

Four hundred prisoners, including two field and several line officers, were sent to the rear. These were mainly from the Fifteenth and Forty-seventh Alabama Regiments, with some of the Fourth and Fifth Texas. One hundred and fifty of the enemy were found killed and wounded in our front.

Chamberlain was awarded the Congressional Medal of Honor. Chamberlain's memoir of the battle, Through Blood and Fire at Gettysburg, is well worth reading. As a university professor, Chamberlain was one of the best-educated soldiers to fight in the war and wrote a superb account of the fight. I would also recommend Conceived in Liberty: Joshua Chamberlain, William Oates, and the American Civil War, which is a dual biography of Chamberlain and the Alabama officer who commanded the Confederate troops opposing him on that fateful day. Finally, of course, Chamberlain is one of the heroes of Michael Shaara's classic novel The Killer Angels .

Poker by Gender

I find it mildly interesting that the women win so often on Celebrity Poker Showdown, while the World Poker Tour is dominated by guys. I'd try working up a theory to explain this observation, but I'm trying to be more politically correct in my blogging.

Diversity in the workplace

Rob raises the issue of whether diversity adds to productivity over at his Business Pundit blog. I did some research on this issue for my work on participatory management. It turns out that there is considerable evidence that homogeneous work teams tend to be more productive. I cite some of the relevant literature in footnote 80 of my paper article Privately Ordered Participatory Management: An Organizational Failures Analysis. A more detailed treatment can be found at pages 45-46 of my paper Corporate Decisionmaking and the Moral Rights of Employees: Participatory Management and Natural Law (the broader discussion of trust in the workplace at pp. 34-49 provides relevant background):

I note that the importance of ethnic and similar ties to the development of trust within a group has demonstrable consequences for the viability of participatory management in a diverse workplace. Even within communitarian societies, egalitarian relationships are often limited to homogeneous cultural groups. [Citing Francis Fukuyama, The End of History and the Last Man at 252] In heterogeneous groups, mandated due process rights tend to substitute for spontaneous and genuine trust. This conclusion is supported by empirical evidence that worker participation in corporate decisionmaking is most effective in homogeneous work forces. [Citing Robert Drago, Share Schemes, Participatory Management and Work Norms, 23 Rev. Radical Pol. Econ. 55, 59 (1991) (study of participation schemes in Australia finding that such programs are more effective when the work force is homogeneous).] The success of the well-known worker cooperatives at Mondragon in Spain, for example, is attributed to the ethnic and cultural homogeneity of the Basque workforce. [Citing Jacqueline Bhabha, The Right to Community, 64 U. CHI. L. REV. 1117, 1126.] Consider also the observation that many Japanese-owned U.S. manufacturing firms, "particularly in electronics, have adopted very few Japanese production methods. Rather, they utilize paternalistic and low-wage employment strategies with little evidence if any sophisticated work practices." [Citing Thomas A. Kochan et al., The Transformation of American Industrial Relations at xvii.] Practices found in the homogenous Japanese society apparently have not been transplanted to the more diverse U.S. workplace.

A very interesting recent paper, Diversity and Productivity in Production Teams, similarly found support for this line of argument, albeit not at a statistically significant level:

Diversity in ability enhances the team productivity if there is significant mutual learning and collaboration within the team, while demographic diversity is likely to harm productivity by making learning and peer pressure less effective and increasing team-member turnover. ... Our results indicate that teams with more heterogeneous worker abilities are more productive. Holding the distribution of team ability constant, teams with greater diversity in age are less productive, and those composed only of one ethnicity (Hispanic workers in our case) are more productive, but the findings for team demographics are not robust to alternative model specifications.

Another study, Diversity, Discrimination, and Performance finds that: "We find little payoff to matching employee demographics to those of potential customers except when the customers do not speak English. Diversity of race or gender within the workplace does not predict sales or sales growth, although age diversity predicts low sales." In other words, they conclude that there is no consistent empirical support for the proposition that "employers must hire a diverse workforce to attract diverse customers." (P.7) Second, they find no correlation between diversity and sales in a retail environment, which again suggests that policies mandating workplace diversity cannot be justified on grounds that such diversity increases productivity or profitability. (Of course, this study also would not support an argument for dismantling such policies on grounds that they reduce productivity or profitability.) Granted, there are contrary findings, such as Corporate Governance, Board Diversity, and Firm Performance, which finds "significant positive relationships between the fraction of women or minorities on the board and firm value." On balance, however, it seems unlikely that workplace diversity can be justified on grounds that it increases firm productivity or profitability. Instead, proponents of diversity requirements ought to rely on other justifications. This result finds support in a somewhat surprising place; namely, a survey of the relevant literature by two critical race theory scholars, Mitu Gulati and Devon Carbado. In their paper, The Law and Economics of Critical Race Theory, at 132-46, they critically canvass the relevant literature. (By my rough eyeball count, they refer to at least 30+ separate works of theoretical and/or empirical research.) At 145, they conclude:

There is theoretical and empirical evidence suggesting that employers are motivated to pursue homogeneity: Put simply, homogeneous workplaces facilitate trust, loyalty, and cooperative behavior. The story with respect to heterogeneous work teams is different. First, at an institutional level, heterogeneity is difficult and costly to manage. Second, the most cost-effective way for individual supervisors to manage heterogeneity is to "socialize away" outsider difference. Thus, it is more accurate to characterize this strategy as eliminating, rather than managing, heterogeneity. Third, even assuming that heterogeneity can be effectively managed, the benefits of a heterogeneous workplace are speculative, and they are realized primarily over the long term.

There results are consistent with my interpretation of the literature; namely, that there are findings on both sides but that on balance the economic incentive of employers is to pursue workplace homogeneity. Indeed, they acknowledge that such incentives mean that "an employer's preference for racial sameness won't always be motivated by racial animus." They then proceed to advance alternative justifications for promoting racially diverse workplaces, just as I suggest above. This is, I think, a useful contribution to the discussion. There are distributional and other justice grounds for policies that promote or mandate workplace diversity. The proponents of such policies, however, appear to overstate their case when they claim that there also are strong efficiency rationales for such policies. My thanks to Von at Obsidan Wings, whose post prompted me to flesh out the argument in more detail. (I would still disagree, however, with Von's suggestion that these studies do not support the argument that workplace homogeneity is in the shareholders' interest. It depends on how we define the interests of shareholders. If shareholders are concerned with profitability or productivity, it appears that workplace homogeneity is the preferred policy. Carbado and Gulati's argument, for example, is predicated on the claim that managerial employment decisions are motivated by concern with short-term returns to the firm.)