Gender Frustrations

I have taken a week to think about how to blog about a session that I saw last weekend at the ABA Conference.  The session was about using movies to demonstrate gender differences in negotiation, and I went to see what teaching tools might be provided.  I was on the negotiation program track for the ABA, and had helped select this session for presentation at the conference, so I was really looking forward to it.  Instead, the session became a very good example of the challenges in teaching about gender differences in negotiation.

The session started out with slides that listed how women communicate or how women negotiate.  I think, in retrospect, that the speakers may have been trying to highlight some of the stereotypes about women from the 1970’s and ask whether these were still relevant but — without any introduction to what they planned to do, cites to the outdated research, or other signposting — it appeared that the speakers were presenting these comments as current and true (even if that was not their intention).  When asked what research this was based on, the speakers stated that “this is what the research shows. ”  As some in the audience continued to challenge further assertions about the research, the tone went downhill and unfortunately, rather than becoming a learning experience, became more of an argument, which continued even after the session.  All this, of course, at a dispute resolution conference. 

I wanted to unpack a few key things from this session. 

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Put This in Your PIPE . . .

3L Douglas Hoffer has a new paper on SSRN describing and defending “PIPE financing” — a form of corporate financing that has taken off in the past fifteen years.  PIPE financing permits corporations to raise money by selling equity through a two-step process that diminishes the regulatory burdens normally associated with public offerings. 

PIPE deals have drawn negative comments from other scholars and the SEC, but Douglas thinks the critics have failed to appreciate the important benefits of PIPE financing. His paper, entitled “Quagmire: Is the SEC Stuck in a Misguided War Against PIPE Financing?,” will be published in Transactions: The Tennessee Journal of Business Law.  The abstract appears after the jump.  

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Judge Crabb’s Ambitious Establishment Clause

I am not going to go ballistic over Judge Barbara Crabb’s decision that the National Day of Prayer – an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic – violates the Establishment Clause.

She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn’t always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb’s decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don’t think she handled them in the right way.

It would be hard for me to conclude otherwise. I have argued — here and here — that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.

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