Archive for the ‘Current Events’ Category
posted by Danielle Citron
Brilliant news: CDT’s Board of Directors just announced that Nuala O’Connor has been named President & CEO, effective January 21, 2014. O’Connor will succeed Leslie Harris, who is stepping down after leading CDT for nearly nine years. As the privacy community knows well, Harris provided extraordinary leadership: vision, enthusiasm, and commitment. O’Connor will build on that tradition in spades. She is the perfect leader for CDT.
From CDT’s announcement:
“Nuala drove an ambitious civil liberties agenda as the first Chief Privacy Officer at the Department of Homeland Security in a post 9-11 world. She fought for and implemented policies to protect the human rights of U.S. and global citizens in a climate of overreaching surveillance efforts. The Board is thrilled to have Nuala at the helm as CDT expands on 20 years of Internet policy work advancing civil liberties and human rights across the globe,” said Deirdre Mulligan, CDT Board Chair.
O’Connor is an internationally recognized expert in technology policy, particularly in the areas of privacy and information governance. O’Connor comes to CDT from Amazon.com, where she served both as Vice President of Compliance & Customer Trust and as Associate General Counsel for Privacy & Data Protection. Previously she served as the first Chief Privacy Officer at the U.S. Department of Homeland Security (DHS). At DHS, O’Connor was responsible for groundbreaking policy creation and implementation on the use of personal information in national security and law enforcement.
“I am honored to join the superb team at the Center for Democracy & Technology. CDT is at the forefront of advocating for civil liberties in the digital world,” said O’Connor. “There has never been a more important time in the fight to keep the Internet open, innovative and free. From government surveillance to data-driven algorithms to the Internet of things, challenges abound. I am committed to continuing to grow CDT’s global influence and impact as a voice for the open Internet and for the rights of its users.”
“Nuala is a brilliant choice to lead CDT. She is a passionate advocate for civil liberties, highly expert about the emerging global challenges and fully committed to CDT’s mission. She is a bold leader who will guide CDT into its next chapter. I have had the honor of working with CDT’s talented and thoughtful team for almost nine years. I am confident that they will thrive with Nuala at the helm,” said Leslie Harris.
Beyond her experience at Amazon and DHS, O’Connor has also worked in consumer privacy at General Electric, and as Chief Counsel for Technology at the U.S. Department of Commerce. She also created the privacy compliance department at DoubleClick and practiced law at Sidley Austin, Venable, and Hudson Cook.
O’Connor, who is originally from Belfast, Northern Ireland, holds an A.B. from Princeton University, an M.Ed. from Harvard University, and a J.D. from Georgetown University Law Center. She currently serves on numerous nonprofit boards, and is the recipient of a number of national awards, including the IAPP Vanguard Award, the Executive Women’s Forum’s Woman of Influence award, and was named to the Federal 100, but is most proud of having been named “Geek of the Week” by the Minority Media & Telecom Council in May 2013. She lives in the Washington, D.C. area with her three school-aged children.
posted by Albert Wong
By Albert Wong and Valerie Belair-Gagnon, Information Society Project at Yale Law School
In a recent article in the Columbia Journalism Review, we reported that major US newspapers exhibited a net pro-surveillance bias in their “post-Edward Snowden” coverage of the NSA. Our results ran counter to the general perception that major media outlets lean “traditionally liberal” on social issues. Given our findings, we decided to extend our analysis to see if the same bias was present in “traditionally conservative” and international newspapers.
Using the same methods described in our previous study, we examined total press coverage in the Washington Times, one of the top “traditionally conservative” newspapers in the US. We found that the Washington Times used pro-surveillance terms such as security or counterterrorism 45.5% more frequently than anti-surveillance terms like liberty or rights. This is comparable to USA Today‘s 36% bias and quantitatively greater than The New York Times‘ 14.1% or the Washington Post‘s 11.1%. The Washington Times, a “traditionally conservative” newspaper, had the same, if not stronger, pro-surveillance bias in its coverage as neutral/”traditionally liberal”-leaning newspapers.
In contrast, The Guardian, the major UK newspaper where Glenn Greenwald has reported most of Snowden’s disclosures, did not exhibit such a bias. Unlike any of the US newspapers we examined, The Guardian actually used anti-surveillance terms slightly (3.2%) more frequently than pro-surveillance terms. Despite the UK government’s pro-surveillance position (similar to and perhaps even more uncompromising than that of the US government), the Guardian‘s coverage has remained neutral overall. (Neutral as far as keyword frequency analysis goes, anyway; the use of other methods, such as qualitative analysis of article tone, may also be helpful in building a comprehensive picture.)
Our extended results provide additional context for our earlier report and demonstrate that our analysis is “capturing a meaningful divide.”
On a further note, as several commenters suggested in response to our original report, the US media’s pro-surveillance bias may be a manifestation of a broader “pro-state” bias. This theory may be correct, but it would be difficult to confirm conclusively. On many, even most, issues, the US government does not speak with one voice. Whose position should be taken as the “state” position? The opinion of the President? The Speaker of the House? The Chief Justice? Administration allies in Congress? In the context of the Affordable Care Act, is there no “pro-state” position at all, since the President, the Speaker, and the Chief Justice each have different, largely irreconcilable views?
November 1, 2013 at 11:02 am Posted in: Anonymity, Civil Rights, Culture, Current Events, Cyber Civil Rights, Government Secrecy, Politics, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized Print This Post 10 Comments
posted by Lawrence Cunningham
Sometimes the up-to-the-minute nature of contemporary life obscures ancient principles. A case in point is the news surrounding last week’s and last year’s firings by Berkshire Hathaway of the CEOs of its subsidiary, Benjamin Moore & Co. But the values that Benjamin Moore has embraced for more than a century and those Berkshire has embraced for nearly half a century speak louder than the gossipy whispers associated with these two sad episodes (hat drop to New York Post).
In 1883 Brooklyn, twenty-seven-year-old Benjamin Moore, along with his forty-three-year-old brother Robert, created the paint company that remains in business today. He articulated several business principles to guide his company:
- A fair deal for everyone.
- The giving of value received without any graft or chicanery.
- Recognition of the value of truth in the representation of our products and an effort at all times to keep the standard of our goods up to the highest mark.
- The practice of strict economy without the spirit of parsimony, and the exercise of intelligent industry in the spirit of integrity.
Moore’s motto was “quality, start to finish.” It charged a premium price for it, even when that sacrificed market share. To reinforce its investment in quality, the Moore brothers began the practice of selling paint through independent distributors. Other paint makers might sell in hardware stores, or as private-label products of customer retailers, or in their own retail stores. Benjamin Moore & Co. always strictly adhered to the model of distributing exclusively through certified dealers. Those distributors, in turn, have invested considerable effort in building their businesses to keep their end of the bargain. Read the rest of this post »
posted by UCLA Law Review
Volume 61, Discourse Discourse
October 15, 2013 at 7:05 pm Posted in: Civil Rights, Constitutional Law, Current Events, Economic Analysis of Law, Financial Institutions, International & Comparative Law, Law Rev (UCLA), Politics Print This Post No Comments
posted by Lawrence Cunningham
The virulent narcissist Eliot Spitzer should now slink quietly back into political obscurity. Having been decisively defeated in yesterday’s Democratic primary race for comptroller of New York City, Americans can breathe a sigh of relief that New Yorkers had the sense to repel the preening scion.
The hypocrite, who made his name by falsely accusing others of wrongdoing that turned out to be the kind of misbehavior he had engaged in, threatened to use the same bullying tactics running New York City’s finances. This would have meant flexing muscles to attack corporate America indiscriminately in the interest of Spitzer’s self-promotion.
The sideshows he promised involved waging battles against corporations in which NYC invests to effect corporate governance makeovers on terms Spitzer would approve. Such distractions would not only have ruined reputations of corporate managers, but would have impaired corporate productivity, cost American economic output and diminished employment prospects and retirement funds of people across the country.
A majority of NYC Democratic voters saw through Spitzer’s arrogant duplicity. He is the man, after all, who proclaimed to the utmost integrity yet humiliated his wife by elaborate infidelity, scarred his three daughters for life by screwing (literally) girls their age for years and furtively broke federal banking laws repeatedly while publicly punishing others for similar transgressions.
One hopes that Spitzer, myopic and thick-headed, will finally take the hint that people do not think liars and cheats like him should be in public office. Good riddance.
posted by Suzanne Kim
I am so delighted to be guest blogging for Concurring Opinions this month and to be part of this exciting community. This month, I will be blogging on various intersections of law, social norms, gender, sexuality, family, and work. I have been researching some of these issues for my book project on Gender and Social Norms in Same-Sex and Different-Sex Marriage (contracted with NYU Press). Although today’s topic is not part of this book research, it takes up many of the concerns that animate my work.
Recently, a plastic surgery procedure that has gained popularity among South Koreans has gained some major media attention in the U.S. The procedure, technically called Valentine anguloplasty and sometimes colloquially called a “smile lipt,” is supposed to lift the outer corners of the lips into a smile, even when the putative smiler is not actually smiling. According to a South Korean plastic surgery center promoting its smile procedure, people of Korean descent like myself have shorter mouths and lower mouth corners than “Westerners,” which means that I and others similarly situated supposedly have a greater tendency to look like we’re frowning. “Perma-smile” to the rescue.
Considering the United States’ status as a world leader in the consumption of plastic surgery, one would think that Valentine anguloplasty would hold some appeal, even to the blessedly long-mouthed. But based on the American media reaction, what’s been dubbed “joker lips surgery” is not likely to catch on any time soon.
Smile surgery has actually been around for decades and isn’t just a recent invention of South Korean plastic surgeons. The response to this latest supposed craze, though, is what interests me more than the procedure itself. No, not many of us want to look like this. But while the origins of this photo are murky, the hypocrisy of the reaction to South Korean women wanting to look smiley is clear.
What strikes me is how narrow the chasm is between the perma-smile of Valentine anguloplasty and the social norms that compel those of us not in South Korea, particularly women, to smile – a lot. Psychologists Marianne LaFrance, Elizabeth Paluck, and Marvin Hecht found that women smile more than men, particularly when women and men think that they are being observed. This effect corresponds with numerous studies with which LaFrance, Paluck, and Hecht engage concerning social expectations for women to smile and penalties imposed on men for smiling too much. Others have written cleverly about the common form of street harassment consisting of ordering women to smile.
Women pay the price of not smiling (or of the much-memed “bitchy resting face”) on the street and in the workplace every day. People like nice women. And the smile is a proxy, although often a sloppy one, for that niceness.
For a woman to smile all the time, especially in the workplace, is — to borrow from Devon Carbado, Mitu Gulati, and Gowri Ramachandran – to perform “gender comfort,” easing the way for women’s presence. What’s already a treacherous climb for women up to leadership positions in firms and corporations is made even more difficult by the added load of having to be smiley and perky all the while. Sociologist Arlie Hochschild has identified the strains posed by such “emotional labor,” particularly for flight attendants expected to smile continuously to project concern, friendliness, and other emotions not necessarily felt all the time but considered necessary for the job.
We see the legal imperative and effect of the smiliness social norm historically and contemporaneously. I recently watched the excellent PBS documentary Makers: Women Who Make America (2013), which reminded me of the 1950s expectation for those women living the post-war American Dream to be cheerful, smiley, and content. Sixty years later, the norm persists. Social expectations for women’s comportment often influence their willingness to negotiate, to ask for more, to complain.
In the context of the workplace, the Lilly Ledbetter Fair Pay Act, setting the statute of limitations for a pay discrimination case from each new paycheck affected by the discriminatory action, is an important step in remedying discrimination of which a plaintiff may be unaware. But it also importantly accounts for the social dimension of that unawareness. When one is socialized to be nice, it is difficult to suspect wrongdoing, even if it occurs over years.
Despite advances like this, social science accounts of workplace dynamics, particularly in the context of negotiation continue to give pause. While women suffer opportunity- and pay-wise from failures to negotiate, they also suffer when they do negotiate. Hannah Riley Bowles, Linda Babcock, and Lei Lai demonstrate in their research that women are judged more harshly than men for initiating negotiations for higher compensation, with perceptions of “niceness” and “demandingness” explaining resistance to female negotiators. In recognition of the threat posed by women seeking higher pay, one approach is Sheryl Sandberg’s in Lean In, advising women negotiating pay to smile frequently.
This is all terribly depressing when I think of legal and social change. We teach young women to be assertive, but they will likely be judged for being “agentic women.” When we think about women in the workplace, perhaps then it makes sense that some would try to create through facial alteration what many “Westerners” are able to achieve more easily without going under the knife and paying $2000 – a permanent smile and all that comes with it. :)
September 7, 2013 at 9:03 am Tags: Current Events, discrimination, employment discrimination, fair pay, gender, negotiation, plastic surgery, smile surgery, social norms, women in leadership Posted in: Culture, Current Events, Technology, Uncategorized Print This Post One Comment
posted by Dave Hoffman
[A brief note of apology: it's been a terrible blogging summer for me, though great on other fronts. I promise I'll do better in the coming academic year. In particular, I'd like to get back to my dark fantasy/law blogging series. If you've nominations for interviewees, email me.]
One of the major lessons of the cultural cognition project is that empirical arguments are a terrible way to resolve value conflicts. On issues as diverse as the relationship between gun ownership and homicide rates, the child-welfare effects of gay parenting, global warming, and consent in rape cases, participants in empirically-infused politics behave as if they are spectators at sporting events. New information is polarized through identity-protective lenses; we highlight those facts that are congenial to our way of life and discounts those that are not; we are subject to naive realism. It’s sort of dispiriting, really. Data can inflame our culture wars.
One example of this phenomenon is the empirical debate over minimum wage laws. As is well known, there is an evergreen debate in economics journals about the policy consequences which flow from a wage floor. Many (most) economists argue that the minimum wage retards growth and ironically hurts the very low-wage workers it is supposed to hurt. Others argue that the minimum wage has the opposite effect. What’s interesting about this debate -to me, anyway- is that it seems to bear such an orthogonal relationship to how the politics of the minimum wage play out, and the kinds of arguments that persuade partisans on one side or another. Or to put it differently, academic liberals in favor of the minimum wage have relied on regression analyses, but I don’t think they’ve persuaded many folks who weren’t otherwise disposed to agree with them. Academic critics of the minimum wage too have failed to move the needle on public opinion, which (generally) is supportive of a much higher level of minimum wage than is currently the law.
How to explain this puzzle? My colleague Brishen Rogers has a terrific draft article out on ssrn, Justice at Work: Minimum Wage Laws and Social Equality. The paper urges a new kind of defense of minimum wages, which elides the empirical debate about minimum wages’ effect on labor markets altogether. From the abstract:
“Accepting for the sake of argument that minimum wage laws cause inefficiency and unemployment, this article nevertheless defends them. It draws upon philosophical arguments that a just state will not simply redistribute resources, but will also enable citizens to relate to one another as equals. Minimum wage laws advance this ideal of “social equality” in two ways: they symbolize the society’s commitment to low-wage workers, and they help reduce work-based class and status distinctions. Comparable tax-and-transfer programs are less effective on both fronts. Indeed, the fact that minimum wage laws increase unemployment can be a good thing, as the jobs lost will not always be worth saving. The article thus stands to enrich current increasingly urgent debates over whether to increase the minimum wage. It also recasts some longstanding questions of minimum wage doctrine, including exclusions from coverage and ambiguities regarding which parties are liable for violations.”
I’m a huge fan of Brishen’s work, having been provoked and a bit convinced by his earlier work (here) on a productive way forward for the union movement. What seems valuable in this latest paper is that the minimum wage laws are explicitly defended with reference to a widely shared set of values (dignity, equality). Foregrounding such values I think would increase support for the minimum wage among members of the populace. The lack of such dignitary discussions in the academic debate to date has level the minimum wage’s liberal defenders without a satisfying and coherent ground on which to stand. Worth thinking about in the waning hours of Labor’s day.
September 2, 2013 at 9:02 pm Posted in: Behavioral Law and Economics, Civil Rights, Consumer Protection Law, Contract Law & Beyond, Culture, Current Events, Empirical Analysis of Law, Employment Law Print This Post 2 Comments
Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities
posted by Zvi Triger
Gender segregation on buses is becoming increasingly conspicuous in the Hassidic community in New York. Should society tolerate seating arrangements which mandate women to sit at the back of the bus? Is it analogous to racial segregation? Or are there valid considerations that make gender segregation legitimate? The ultra-Orthodox cite multiculturalism, and demand tolerance of their traditions. But what is tradition, and how old should a practice be in order to be recognized as a tradition?
All these questions have been asked in Israeli, where gender segregation in public transportation to and from ultra-Orthodox communities began in the late 1990’s. In a recently published article I argue that gender segregation is a self-defeating practice. Its motivation is to erase female sexuality from the public sphere, but by being so preoccupied with women’s “modesty” it in fact puts their sexuality at the center of attention. The paradoxical obsession with female sexuality is also, in a way, a form of sexual harassment. Gender segregation on buses is not part of Jewish tradition; not even the ultra-Orthodox tradition. It is a very new product of a rising Jewish religious fundamentalism, which I believe is a reaction to women’s demand for equal rights and their exposure to the outer world (thanks to technology). in Israel segregation on buses is sometimes enforced by passengers violently.
The leaders of the ultra-Orthodox communities, both in New York and in Israel, have been very astute in their enlistment of multicultural discourse and political correctness to promote their misogynist agenda. The majority should not be confused by this. There are plenty of strong voices from within the ultra-Orthodox community who object to this trend. In Israel, for example, a group of ultra-Orthodox women and men petitioned the Supreme Court against segregation on public transportation. These people are part of the ultra-Orthodox community as well, and have as strong a claim to their traditions as any of the Rabbis who have decided all of the sudden to send women to the back of the bus.
August 31, 2013 at 6:13 pm Tags: gender segregation, Jewish law, public tranportation, ultra-orthodox, women's rights Posted in: Civil Rights, Constitutional Law, Culture, Current Events, Feminism and Gender, Race Print This Post No Comments
posted by Zvi Triger
When I hear about American supporters the new Russian homophobic legislation (or, for that matter, about President Putin and his aides who initiated such crazy legislation, which prohibits, among other things, even expressing tolerance towards LGBTs), I can’t help but recall a New York Time article from last year titled Homophobic? Maybe You’re Gay, which claimed that there is “empirical evidence of a connection between homophobia and suppressed same-sex desire.”
August 29, 2013 at 11:50 pm Tags: homosexuality, Russia, sexuality, Vladimir V Putin Posted in: Criminal Law, Culture, Current Events, International & Comparative Law, LGBT, Politics, Uncategorized Print This Post 2 Comments
posted by Frank Pasquale
Rep. Mike Fitzpatrick (R-Pa.) proposed legislation . . . that would cut National Security Agency (NSA) funding if it violates new surveillance rules aimed at preventing broad data collection on millions of people.
Fitzpatrick has also offered language to restrict the term “relevant” when it comes to data collection. On the one hand, it seems odd for Congress to micromanage a spy agency. On the other hand, no one has adequately explained how present safeguards keep the integrated Information Sharing Environment from engaging in the harms catalogued here and here. So we’re likely to see many blunt efforts to cut off its ability to collect and analyze data, even if data misuse is really the core problem.
August 22, 2013 at 9:44 am Posted in: Criminal Law, Current Events, Google & Search Engines, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology Print This Post No Comments
posted by Lawrence Cunningham
Venture entrepreneurs and seasoned executives alike often weigh the pros and cons of a U.S. company being privately held or publicly listed. That goes for start-ups trying to decide to make an initial public offering as it does for listed companies trying to decide whether to go private.
Everyone considers the transaction costs of such a switch high because IPOs and going private transactions are complicated, requiring paying accountants, appraisers, lawyers and other professionals. They are also time-consuming.
So setting aside transaction costs, let’s highlight the usual pros and cons, to do an IPO or stay public:
● access to capital
● liquidity for shareholders
● a currency (stock) to pay managers or make acquisitions
● cache from the sign of business maturity or stature
● the public arena invites the threat of hostile takeovers via proxy battles or tender offers
● rigid governance requirements, especially board size, independence and oversight
● Wall Street analyst attention that drives focus on short-term results, not long-term prosperity
● required disclosure, posing direct administrative costs and potential indirect costs as to competitive matters
● exposure to securities lawsuits by disgruntled stockholders
Although disclosure may be a “con” to a company, from a social perspective, watchdogs value the transparency, especially as to matters of stewardship and corporate social responsibility of larger institutions.
Assuming such a list is roughly complete, how should you evaluate the situation for Berkshire Hathaway? Stipulate that it had good reasons for public company status in its early days, the 1970s and 1980s, even the 1990s. Is it still worth it today? Read the rest of this post »
August 14, 2013 at 1:21 pm Tags: Berkshire Hathaway, Corporate Governance, going private, going public, Warren Buffett Posted in: Corporate Finance, Corporate Law, Culture, Current Events Print This Post 2 Comments
The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)
posted by Zvi Triger
In my article Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine Heterophilia I introduced the concept of law’s inherent heterophilia. One can see it as a new generation of homophobia, more politically correct perhaps, in which the goal of eradication has been substituted by the goal of assimilation. The need to cover, which almost every LGBT individual has experienced and which has been so shrewdly identified by Kenji Yoshino in his book “Covering: The Hidden Assault on Our Civil Rights,” is a typical product of social and legal heterophilia that seeks to encourage such assimilation. Because of its benign nature, legal heterophilia, as opposed to legal homophobia, is much harder to detect, and therefore it is much harder to fight.
How can we distinguish law’s homophobia from law’s heterophilia? To be sure, it is not easy to draw the line between homophobia and heterophilia, and many heterophile actions can be interpreted as unconsciously homophobic. However, generally speaking, laws that privilege predominantly heterosexual institutions, such as marriage, are heterophile in nature, while laws that restrict LGBT individuals, discriminate against them, or punish them as such, would be labeled as homophobic. Thus, laws privileging married couples and awarding them forms of protection that unmarried couples cannot receive are heterophilic as long as LGBT individuals cannot get married, and probably as long as they do not extend those privileges to all couples, married and unmarried, gay or straight. The Mayo Clinic’s policy demanding same-sex couples to marry or else the employees’ spouses will lose their health benefits, instead of extending the benefits to all partner regardless their marital status and their sexual orientation is a product of socio-legal heterophilia.
Indeed, the very demand to marry, which is a consequence of the Windsor case, is heterophilic even when it does not involve the carrot of benefits or the stick of their denial. As a recent New York Times article demonstrates, such social requirement is becoming more and more conspicuous in the wake of the Windsor ruling. And what is fascinating, is that heterosexuals are the ones who nudge same-sex partners to marry most.
While not using the term “heterophilia” or its derivatives, Janet Halley has exposed some of the most heterophilic strands of the institution of marriage in her 2010 article Behind the Law of Marriage (I): From Status/Contract to the Marriage System. Marriage law, however, is not only heterophilic; it also has homophobic qualities, as many scholars have rightly observed. It remains to be seen if society and the courts will be able to release themselves of all forms of prejudice and discrimination concerning marriage and marital status. Getting rid of the homophobic Section 3 of DOMA was only the first step in this direction.
August 12, 2013 at 4:06 am Tags: discrimination, homophobia, same sex marriage, sexuality, United States v. Windsor Posted in: Constitutional Law, Culture, Current Events, Family Law, Feminism and Gender, Supreme Court, Uncategorized Print This Post One Comment
posted by Lawrence Cunningham
The Washington Post Co., in which Warren Buffett’s company Berkshire Hathaway has been a large shareholder for decades, is selling its flagship asset, The Washington Post, to Jeff Bezos. Buffett was not interested in bidding for the paper, despite the price Bezos is paying of $250 million, a sharp discount from historical valuations. The Boston Globe, which The New York Times bought two decades ago for $1.1 billion, has just sold to John Henry for a mere $70 million. Buffett was not interested in that franchise either. Nor is he interested in buying other papers recently up for sale, such as the Chicago Tribune, the Los Angeles Times or the Philadelphia Inquirer. I’d be surprised if he cared to bid on The Wall Street Journal or New York Times when they go on the block.
These might be good newspapers, but they are not good businesses. Buffett’s Berkshire Hathaway has bought numerous small newspapers this year and last. They are very different animals. They are known less for outstanding national journalism than for local beats and especially local information and advertising.
Despite these realities, journalists just five months ago (and one at the New York Times this morning, Andrew Ross Sorkin!) congratulated themselves and their industry after they thought they read Buffett saying good things about them. As I wrote then (March 19, 2013), the journalists read things Buffett didn’t write. He is not bullish on newspapers; but quite bearish. In light of recent events, herewith that post updated.
* * * * *
In case you missed it, journalists have been saying that Warren Buffett is bullish on newspapers, with the New York Times running a headline reading “In His Annual Letter, Buffett Plays Up Newspapers.” They cite the fact that he devoted 1800 words of his March 2013 missive to Berkshire Hathaway shareholders to the topic of newspapers. They stressed how Berkshire invested $344 million in the industry in the past 15 months. The Oracle of Omaha was putting his mouth where his money was, newspaper insiders reported.
The trouble with this narrative is that it’s not exactly what Buffett’s letter said, suggesting a dose of wishful thinking among practitioners of the trade. True, Berkshire has made the indicated investment and Buffett expresses his belief that newspapers, especially local newspapers with local niches, have a vital role which should translate into profitability. That was followed by a huge qualification: IF they can find an appropriate business model that marries traditional print and advertising with on-line distribution and revenue. But none has done so yet, Buffett’s letter reminds everyone.
Buffett’s allocation of three pages of his letter to newspaper investments seemed more an explanation of why Berkshire would invest such small sums, for its size, in anything, whether newspapers or some other industry. The letter stressed the continuing decline in circulation, profitability and cash flows of the newspaper business, though mentioning that Berkshire’s own newspapers have done better than most. The letter also made clear that, should the economics of the newspaper businesses Berkshire owns continue to deteriorate substantially, they will be candidates for sale.
The newspaper business, in short, remains in serious trouble. In fact, the real information content of this year’s Berkshire letter may be another point that Buffett emphasized: the only way buying a newspaper business makes sense today is if it can be bought for an extremely low price compared to earnings. Berkshire’s acquisitions met the stringent test.
That mindset reflects the market’s sense about the value of the newspaper business as well, suggested by such examples as the lack of buyers a few years ago for the Seattle Post-Intelligencier and Rocky Mountain News (Denver) and what has become notoriously clear were wildly excessive valuations of Rubert Murdoch when be acquired the Wall Street Journal in 2007 and of the New York Times when it acquired the Boston Globe two decades ago.
Civic mindedness, noblesse oblige, or a desire to be relevant and in the mix may stoke the appetites for some potential buyers of newspapers, such as Murdoch, the group of businessmen who bought the Philadelphia Inquirer last year, Mort Zuckerman, or even the Hearsts, Sulzbergers and Zells of the world. Today: add Jeff Bezos and John Henry. But despite Buffett’s obvious personal fondness for newspapers, that isn’t his style. Journalists who thought Buffett was saying he’d play that role should likewise think again. As I read the letter, the real message is that the newspaper business, like many others being throttled by rapid disruptive change, faces profound challenges.
posted by Gerard Magliocca
There is a robust debate going on right now about whether Larry Summers or Janet Yellen should be nominated as the next Chair of the Federal Reserve. (Personally, I think Summers is a clown, but that’s not the point of the post.) Does a nominee to the Federal Reserve count as an “executive nomination” for purposes of the Senate’s recent deal about filibusters? I would think that the answer is no, because a Fed Governor has a fixed term and can only be removed for cause. On the other hand, this is not a lifetime appointment like a federal judge would receive, and maybe that was the point of the deal (exclude judges and bills).
Ambiguity–what would lawyers do without it?
posted by Danielle Citron
The NSA and the rest of our surveillance state apparatus is shrouded in secrecy. As captured in Frank Pasquale’s superb forthcoming book, governmental surveillance is a black box. Gag orders prevent Internet companies from talking about their participation in PRISM; nearly everything revealing is classified; the Executive Branch is telling us half truths or no truths. To counter massive governmental overreach, Bradley Manning, Edward Snowden, and others have exposed some sunlight on our surveillance state. That sunlight isn’t coming from those who are betraying the country, but those who are trying to save it, at least that’s what many registered voters think. According to a Quinnipiac poll released today, American voters say “55 – 34 percent” that NSA consultant Edward Snowden is a “whistleblower rather than a traitor.” According to the assistant director of the Quinnipiac University Polling Institute, “Most American voters think positively of Edward Snowden,” at least they did before he accepted asylum in Russia. From July 28 to July 31, 1,468 registered voters were surveyed on the phone. These sorts of leaks seem inevitable, at least culturally given our so-called commitment to openness and transparency. The leakers/whistleblowers are trying to nudge the Executive Branch to honor its commitments to the Fourth Amendment, the sentiments of the Church Report, and the Administration’s 2009 Openness and Transparency memo. Let’s see if letting the air out moves us closer to the kind of country we say we are.
H/T: Yale ISP’s Christina Spiesel for the Quinnipiac Poll
posted by Cristina Tilley
A recent episode of Keeping up with the Kardashians (stick with me for a minute) sparked an interesting conversation last month about the intentional infliction of emotional distress tort. As all first-year students learn — to much snickering — the Restatement’s test for whether a defendant’s actions are intolerable in a civilized society is whether an average member of the community learning of the challenged behavior would exclaim “that’s outrageous!” Perhaps because of the stilted formulation, IIED is the Rodney Dangerfield of the torts world. This may explain why the Supreme Court has been so willing to strike jury IIED verdicts that are later alleged to impair speech rights. Two years ago, in Snyder v. Phelps, the Court observed that the “outrageous” standard is “highly malleable” and “inherent[ly] subjective.” For that reason, the Court suggested that jury decisions about outrageous speech may be constitutionally suspect.
But is the standard as malleable as the Court suggested? If you listen carefully, you will often hear the precise words of the Restatement — “that’s outrageous” — voiced in spontaneous response to stigmatized behavior. Let’s return to the Kardashians. The youngest of the crew, Kylie and Kendall, were recently featured taking cell phone video of their mother using the ladies’ room. Feeling that the world at large should join in the hilarity, the girls then posted the video to their blog for all to see. Mother Kris claimed to be furious and embarrassed (but not too furious or embarrassed to cut the footage from the television show that eventually aired). Told about the episode over lunch, a law professor colleague frowned and exclaimed . . . “that’s outrageous!” When an Australian radio DJ convinced a nurse attending to the hospitalized Kate Middleton last year that she was the Queen and broadcast the ensuing conversation, the nurse committed suicide. The New York Times immediately dubbed the prank “outrageous.” When an obstetrician proud of his work on a Caesarean section carved his initials into a patient’s abdomen, the hospital that had employed him called the act “outrageous.” And so on. Read the rest of this post »
posted by Lawrence Cunningham
Eliot Spitzer says he’ll do in the New York City comptroller’s office what he did in the New York State Attorney General’s office. Assuming he is not lying, that would be a very dangerous thing. New York City voters should remember what he did as AG. Here is a sampling.
As AG, Spitzer twisted a Depression-era law called the Martin Act, intended to police bootleggers, into a despotic sword against corporate New York—the “legal equivalent of King Arthur’s Excalibur,” an informed legal analyst wrote.[i] Writers at Forbes summarized the modus operandi: “The hallmark of a Spitzer trophy is victory by intimidation.”[ii] To give some examples, AG Spitzer:
● coerced Marsh & McLennan’s board to oust CEO Jeff Greenberg, an abuse of power that prompted corporate governance expert Richard I. Beattie, chairman of Simpson Thacher, to condemn Spitzer’s misconduct.[iii]
● pressured AIG’s board to oust CEO Hank Greenberg, an abuse of power that prompted Stanford law professor and former SEC Commissioner Joseph A. Grundfest to lament that if a government official insists that a board fire a CEO, the CEO will be fired, even before any investigation or hearing and even if evidence later shows the government was wrong.[iv]
● blackmailed Merrill Lynch’s board into settling a civil case by saying he would otherwise file assorted criminal charges, dubious as a matter of legal ethics.[v]
● threatened John C. Whitehead, former deputy secretary of state and chairman of Goldman Sachs, for a Wall Street Journal op-ed questioning Spitzer’s tactics, yelling “there is now a war between us and you’ve fired the first shot. I will be coming after you. You will pay the price. . . . You will pay dearly.” [vi]
● bullied friends of Kenneth R. Langone, co-founder of Home Depot and benefactor of NYU medical school, cornering Jack Welch, former chairman of GE, to say he “was so mad that he was going to put a spike through Langone’s heart.”[vii]
● ranted to former New York State Attorney General Dennis C. Vacco about Hank and Jeff Greenberg, that he was going “to take those mother fuckers down.”[viii]
● screamed at a law partner of David Boies, the prominent lawyer who represents Hank Greenberg: “Because your firm is in bed with someone like Hank Greenberg, you have to bear the consequences and I have a bazooka pointed at David Boies, you and everyone else at your firm who is involved.”[ix]
Spitzer brought many down and rattled innocent good citizens. Everyone in New York City should worry that Spitzer will find ways, as he threatens, to radically expand the power of the comptroller to do equally dangerous things in the City. That will include trampling on due process rights and instilling in people fear of out-of-control government officials such he aspires once again to be.
posted by Lawrence Cunningham
Permanence is the most distinctive trait of Berkshire Hathaway, the diversified Fortune 10 conglomerate whose unusual features, thanks to iconoclastic chairman Warren Buffett, are legion. Permanence is salient because, unlike any other conglomerate in history or rival in the acquisitions market, Berkshire has never sold a subsidiary it acquired.
Ironically, the experience that led to this unique practice culminated in the reluctant sale of Berkshire’s original business, textile manufacturing, in 1985. That sale was so painful for management, employees and other stakeholders that Berkshire committed to avoid a replay.
Instead, it adopted a policy of up-front screening, rigorous acquisition criteria that cut the chances of owning a business that would be tempting to sell. Berkshire then turned that policy into a huge advantage, assuring prospective sellers of companies a permanent corporate home.
In turn, the assurance of permanence appealed strongly to the kinds of companies that would meet Berkshire’s rigorous acquisition criteria: those owned and loved by families, entrepreneurs and other owner-oriented types. Some fifty acquisitions later, the promise has never been broken.
That is why I found so peculiar the following passage in William Thorndike’s well-selling book, The Outsiders, a profile of select big-name CEOs, including Buffett, whom Thorndike considers to have been similar to each other but different from everybody else. After referencing the 1985 closure of Berkshire’s ailing textile business, he writes: Read the rest of this post »
posted by Cristina Tilley
Prentice Women’s Hospital is a landmark for me. Owned by Northwestern University, it stands directly across from the Northwestern Law complex, meaning that I passed it virtually every day as a law student and more recently as a VAP here at the school. So I’m keenly interested in the University’s plan to tear down the concrete, clover leaf-shaped structure and replace it with a state-of-the-art research facility. The debate over its fate also illustrated a trend towards advocacy in the mainstream media that raises some interesting legal questions.
The building is one of the foremost examples of late-Modernist architecture in the city, and activists pressed the Chicago Commission on Landmarks to give the building landmark status, thus preserving it from demolition. When, in the midst of the preservation effort last year, local alderman Brendan Reilly said he was “open to suggestions” to save the building, New York Times architecture critic Michael Kimmelman stepped in. Kimmelman did not merely detail the architectural relevance of the building or express his support for preservation. Instead, he asked Chicago architecture’s It Girl, Jeanne Gang, whether it would be possible to build a research tower on top of the existing structure. She responded with drawings of a 31-story skyscraper perched on top of the clover leaf. Kimmelman wrote about Gang’s idea, running pictures of her concept in the paper. Again, though, he didn’t stop there. He contacted a field officer for the Chicago office of the National Trust for Historic Preservation, and asked whether her organization would support the idea. He contacted Northwestern to ask whether the university might sign on. And he called the president of an international structural engineering firm to get feedback on the structural and financial feasibility of the plan. Somewhere along the way, Kimmelman stopped looking like a reporter, or even a critic, and started looking more like one of the activists trying to save the building.
Putting aside the admirable intentions that obviously drove Kimmelman, his efforts illustrate the increasingly porous boundary between reporting and advocacy, even in the mainstream media. Of course, partisanship and muckraking in journalism are not new. But as journalism migrates onto our phones and screens alongside Instagram and Facebook, and as “dying” newspapers and network news broadcasts venture beyond traditional reporting techniques to chase eyeballs and engagement, it grows increasingly difficult to categorize what exactly we are consuming when we consume the news. Why do these questions, obvious fodder for media ethicists, matter to lawyers? For two reasons, one specific and one general.
posted by Kaimipono D. Wenger
San Diego County Clerk Ernest Dronenburg filed a petition yesterday seeking to prevent California county clerks from issuing marriage licenses to same-sex couples until a set of legal issues have been clarified. A reporter from the Union-Tribune called me to discuss the filing, and I ended up being quoted for the idea that the filing was “reasonable” because of legal uncertainties, as a sort of counter-balance to an Aaron Caplan quote that the request will not not “go far.”
Both of which are, I think, correct — but in different ways. Due to the limits of the newspaper medium, a twenty-minute phone interview ended up condensed into a soundbite which — well, which may not seem reasonable. I suspect that this has to do with word limits and editors and the need for a news story with a particular narrative balance. (“I mostly agree with what the other guy said” is a boring article.) But here on blog, we can elaborate in more detail on exactly which ways the Dronenburg filing may or may not be reasonable. Read the rest of this post »