You’ve Got @greement–Email Negotiation Advice

This past semester, my students participated in an email negotiation with students from Hastings and Boalt law schools which turned out to be quite interesting for them and for me reading their journals afterwards.  It is always lovely to write an article — it’s even nicer to see that what you write might actually be happening in reality as well!  In a chapter entitled You’ve Got Agreement: Negoti@ting via Email in the recently published book Rethinking Negotiation Teaching,  Noam Ebner and others (including me) review some of the advantages and disadvantages to email negotiation, many of which were experienced by my students.

The difference in the type of media meant that students really needed to engage in conscious “shmoozing” to build rapport.  We discovered that one Hastings student was actually a Marquette alum — building instant rapport — while other overly brusque email exchanges did not work as well.  Tone in email matters.  Students also appreciated the asynchronous part of email negotiations.  They could think, do some research, and then email back to their counterparts.  They also noted when they got in a good email rhythm with the other negotiator.  At the same time, email also made it easier to lose touch and for the negotiation to take longer than it would have otherwise.

We also saw some other effects from the email negotiation — diminished information exchange and diminished trust — that students needed to overcome.  But, having talked about this in advance, students knew that they would need to work at this.  All of which goes to the point that this was a very worthwhile exercise and practice. 

As the New York Times wrote about last month in a very good article, even real estate deals are being done over email. 

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Little Reforms Have Big Implications at SEC

The Director of the Securities and Exchange Commission’s 21st Century Disclosure Initiative, Dr. Bill Lutz, was on the Marquette University campus May 4.  He was kind enough to give an update on the Initiative over lunch to a group of faculty from the Law School and the College of Business Administration.  Dr. Lutz is an interesting choice to lead the SEC’s effort to reconceptualize the manner in which the agency collects, analyzes, and disseminates financial information.  He is Professor of English emeritus at Rutgers University, and one rarely thinks of the words “English language” and Form 10-K in the same breath.

The 21st Century Disclosure Initiative finished its Report in January 2009.  You can read the Report here: www.sec.gov/spotlight/disclosureinitiative/report.shtml.  The recommendations in the Report are both modest and potentially revolutionary.  Today the SEC continues to operate under the same system of preparing and filing specific disclosure documents such as annual reports and quarterly reports that was instituted in 1934.  In the 1990s, the Commission adopted EDGAR, a system for filing and viewing each individual report electronically.  However, the “document centric” format remains and anyone searching for specific items of company data today on EDGAR still has to typically scroll through hundreds of pages to find what they are looking for.

The Report by the Initiative proposes the adoption of company-specific databases for each company required to file reports with the SEC. 

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Fairness in Federal Cocaine Sentencing Policy

As is notorious, federal law treats one gram of crack cocaine the same as 100 grams of powder cocaine. Thus, a defendant caught with five grams of crack faces the same five-year mandatory minimum prison term as a powder cocaine offender in possession of 500 grams; 50 grams of crack produces the same ten-year minimum as five kilograms of powder. Despite a steady stream of criticism from academics, judges, and the United States Sentencing Commission over the past 20 years, Congress has declined to revisit the 100:1 ratio. In 2007, the Commission took a small step towards remedying the imbalance, reducing crack sentences under the advisory federal sentencing guidelines (which also contained a 100:1 crack/powder disparity) by two levels, then designating the amendment for retroactive application. As a result, thousands of federal crack prisoners received sentence reductions averaging about 17 percent. However, as the Commission itself acknowledged, true reform would require Congress to modify the 100:1 ratio and the resulting statutory mandatory minimum terms. Based on a change in position by the last major player supportive of the 100:1 disparity, the United States Department of Justice, that reform may, finally, be imminent.

In recent testimony before the Senate Judiciary Committee, Subcommittee on Crime and Drugs, Assistant Attorney General Lanny Breuer indicated that the Administration “believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” It is too soon to tell whether Congress will completely eliminate the disparity, as the Justice Department appears to advocate, or merely narrow it to, say, 10:1 or 20:1, as the Commission and some legislators have previously recommended. Whatever it elects to do, Congress should consider retroactive application of the statutory change. Experience under the Commission’s recent crack guideline amendment shows that courts are well-equipped to apply the change to existing sentences.

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