Wednesday, October 25, 2006

Kempf on Spitzer - Or How I Learned to Stop Worrying and Love the Wall Street Journal Op-Ed Page

I love the Wall Street Journal. There, I've said it. I don't read much of Section C (unless my currency futures contracts are top of mind that day), but I love the Personal Journal, and the three right, center, and left articles on the front page (that's the location, not the political bent). I also love the op-ed page. Now the left-hand column of unsigned editorials is, even by my standards, neo-Neanderthal, and I don't share Larry Ribstein's unabashed regard for Holman Jenkins who appears regularly on the facing page. In fact, that's what got me going this morning. Holman takes off against the antitrust laws today, even in their core horizontal anti-pricing fixing mode. That's a position well to the Cro-Magnon of even my old antitrust professor, the late great Bill Baxter, the first chief of the DOJ Antitrust Division in the Reagan administration. (Bill didn't truck much with any vertical theories, but he viewed core price-fixing as a sin against micro-economics.)

But my faith in the WSJ op-ed as an open forum was restored when I looked back and saw that Don Kempf, former Kirkland & Ellis partner, and former GC of Morgan Stanley (and one of the country's great commercial trial lawyers) was praising the socks off Eliot Spitzer, who is usually Public Enemy No. 1 on the very left-hand side of that page.

Why? Because everything was so against type, from the Journal's willingness to publish the article, to Kempf's non-doctrinaire view of the world, to the expression of respect and regard for someone whose views do not wholly align with your own.

I am currently registered to vote in Marion County (Indianapolis), Indiana, and there is a race for Marion County Prosecutor between the Republican incumbent, Carl Brizzi, and his challenger, the mayor's former deputy, Melina Kennedy, who also happens to be a friend of mine. (Full disclosure: I almost always vote for my friends, particularly when they are running against each other, and I intend to vote for Melina.) These are two good, honorable people (for people willing to subject themselves to the voting approval of the masses). Brizzi's focus has been on Melina's lack of experience as a trial lawyer (now I never saw Adam Schiff actually appear in court - he just second-guessed Ben Stone and Jack McCoy, and generally at forty-two minutes past the hour - cha-chong!). But why, instead of his ads sounding like she's a dolt, can't it be: "she is a fine person and a fine lawyer, and perhaps a fine administrator, but one prerequisite of this job is and should be experience as a trial lawyer, and she doesn't have it." That's a fair and honorable position.

Let's see. This post was about civil discourse. Yes.

UPDATE: The question has been raised (note the deliberate use of the passive voice) what this has to do with Money Law: the art of winning the unfair academic game. The answer is - I think a lot about civil discourse, and the law school's role in teaching it. I was honored to be able to talk to the Tulane faculty today about about a work in progress, and somehow, at least on one of the questions, we were able to honor the integrity and articulateness of the challenge to the thesis (as between questioner and responder), and the thesis, and yet still hold to our positions. Is that because neither of us really have a stake in it? Maybe I'm naive, but that has been the constructive and thoughtful tenor of most of my formal and informal discussions with the academy. What if the discussion had real economic or political consequence turning on it? Does the discourse become less civil? And does that explain the nasty edge to the debate between two, by all accounts, honorable lawyers running for Marion County prosecutor? Sorry for not making that clear earlier.

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