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And I’m Back – Deven to GA Tech, Scheller College of Business

I joined the Scheller College of Business at Georgia Tech in August. Some have asked (or speculated as law professors seem to do) about my choice. As those who know my past might see, I go where I think the best work is possible. My scholarship dives into business and technology literatures. GA Tech is excellent in both areas. I took the interview and the position with the hope that I could go deeper into these fields. And, as I hoped, it is great here. Peter Swire is my office neighbor. My group in law and ethics is smart and fun. Throw in friends like Stu Graham, and excellent professors in marketing (can you say more branding?), strategic management, information technology management, operations management, organizational behavior, accounting, and finance, and it is a field day. Folks here are pursuing data analytics, IT and supply chain, behavior and identity shaping by branding, and more. Chats have already pointed to me books and articles for my next set of papers. And that is just at Scheller. I am connecting with the engineers and public policy folks too. Not to mention that friends at Emory, GA State, and Georgia law are near, and I am overdue to visit them. So why move? The opportunity and resources make it a high quality problem place: so much to do and so many people with whom to connect that picking is difficult.

With a summer hire and move, blogging has not been active. Plus, I find that I am bursty (if that is a word). A few ideas pop up and blog posts fly. Then things seem less interesting for a bit. In any event, I think I have a few posts up my sleeve. See you in the funny papers, err blogosphere, as Hawkeye Pierce would say.

Improving Lawyers’ Efficiency, the Guantanamo Way

John Patrick Leary has a great series of posts called “Keywords for an Age of Austerity.” While he hasn’t yet taken on the term “efficiency,” it’s something we hear a lot from “Legal Rebels” nowadays. I found the following passage from an interview with philosopher Johanna Oksala very insightful on one intersection between law and efficiency:

In [my book Foucault, Politics, and Violence] I [discuss] new interrogation techniques – including waterboarding – that were introduced at Guantanamo Bay detainee camp in 2002. Philip Sand shows in his book Torture Team that what made these new, considerably more aggressive interrogation techniques possible was not the suspension of international law, but an interpretation of it that made it consistent with pregiven policy aims: the effective gathering of intelligence for national security. The law was respected by the state, but it was used strategically: the policy should have been drawn up around the law, but instead the legal advice was fitted around the policy. Legality was subsumed under efficiency and professionalism.

What’s said here of government as a client applies as well in many recent situations where firms’ corner-cutting policies were taken to lawyers, who appeared far more interested in “efficient” outcomes for their employers or clients than in bounding their actions by law. They also appeared willing to fit their ideal of “professionalism” to that overriding pursuit of efficiency. So we should be a bit cautious when we hear, bandied about, terms like “efficiency,” “innovation,” “putting the client first,” et al. in discussions of the future of the profession. Scratch the surface, and you’ll often find a definition of each that is partial, self-serving, or even Orwellian.

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UC Davis Law Review, Issue 47:5 (June 2014)

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Lectures

Leaving Home? Domicile, Family, and Gender
Susan Frelich Appleton

Town of Greece v. Galloway: Constitutional Challenges to State-Sponsored Prayers at Local Government Meetings
Alan Brownstein

Articles

Watching Me: The War on Crime, Privacy, and the State
Kimberly D. Bailey

Beyond the Judicial Fourth Amendment: The Prosecutor’s Role
Russell M. Gold

From Protest to Perry: How Litigation Shaped the LGBT Movement’s Agenda
Gwendolyn M. Leachman

Reasonable Accommodation as Professional Responsibility, Reasonable Accommodation as Professionalism
Alex B. Long

Blightened Scrutiny
Andrew Tutt

“Law and Counterrevolution: Charles Beard and the Origins of American Constitutionalism,” Papers Presented at the 2013 Annual Meeting of the American Society for Legal History

Fletcher v. Peck and Constitutional Development in the Early United States
Gerald Leonard

The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787
Aaron T. Knapp

Note

Undoing Hardship: Applying the Principles of Dodd-Frank to the Law Student Debt Crisis
Christopher Gorman

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UC Davis Law Review, Issue 47:4 (April 2014)

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Lecture

The First Amendment’s Firstness

Akhil Reed Amar

Festschrift Honoring Angela Harris

Honoring Angela Harris: A Review of “Gender, Violence, Race, and Criminal Justice”

Cynthia Lee

In Honor of Angela Harris: Finding Breathing Space, Embracing the Contradictions, and “Education Work”

Stephanie M. Wildman

Breaking Glass: Identity, Community and Epistemology in Theory, Law and Education

Francisco Valdes

Professor Angela P. Harris: A Life of Power at the Intersection: When the Equality Walk Matches the Equality Talk

Professor Emma Coleman Jordan

Articles

The Jury As Constitutional Identity

Andrew Guthrie Ferguson

The Mobile Health Revolution?

Nathan Cortez

Disability, Development, and Human Rights: A Mandate and Framework for International Financial Institutions

Michael Ashley Stein & Penelope J.S. Stein

The Knowledge/Embodiment Dichotomy

Kevin Emerson Collins

CEOs and Presidents

Tom C.W. Lin

Note

The TPP & Its Broken Promises

Kelly Volkar

 

 

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FAN 35.1 (First Amendment News) — Creative Freedom & the First Amendment

On Wednesday, October 22, Freedom House and the Motion Picture Association of America, in support of Free Speech Week, will host a discussion on Creative Freedom and the First Amendment. The event will be held in Washington, D.C.

image001Panelists

Using current on-screen examples, the discussion will focus on how movies and television shows in the United States are powerful instruments that inform and enlighten us, advancing debates on crucial social and cultural issues. The creative freedom the First Amendment protects is fundamental to the ability of storytellers to tell these stories through television and film in America.

 Free Speech Week is an annual, non-partisan national event celebrating the value of freedom of speech.

→ For more information about the Creative Freedom event, contact Ivory Zorich at ivory_zorich@mpaa.org

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Berkshire Beyond Buffett in Print and on Shelves

BBB at barnes & NobleBook publication day always feels like a big deal, enough of a professional achievement to announce it to the world, so here goes: Berkshire Beyond Buffett: The Enduring Value of Values is now available from Barnes & Noble, Indie Stores, Target, Walmart, and other shops across Europe and North America. Thanks to my wife Stephanie for the picture at left from a B&N in New York City (bottom shelf, middle, next to the new Google book).  Of course it’s online at B&N.com (ships immediately), Amazon (ships October 21), and CEO-READ.Amazon BBB Book Cover - Copy

Visit the book’s web page for a free sample chapter and other free cool stuff, including details of the multi-campus book tour. It spans from my beloved GW, to my alma maters U. Delaware and Yeshiva U., and to universities coast-to-coast from Columbia to Stanford as well as Northwestern, Wash U and many others (thanks again, diligent patient hosts!). There’s also an Author-at-Google talk which should be very interesting, and they promise a You Tube posting afterwards.

On the tour, I’ll be joined to discuss Berkshire Beyond Buffett by several Berkshire directors, numerous Berkshire subsidiary CEOs, and a number of Berkshire’s largest shareholders (thanks Sandy Gottesman, Don Graham, Tom Russo et al!). The theory? As with the book’s portrait and thesis, we’ll hear a wide variety of diverse voices singing the same singular song of a strong and distinctive corporate culture.

The reviews have begun, including a particularly comprehensive one this morning by Kevin LaCroix, as well a recap interview by ThinkAdviser yesterday. Media appearances begin with radio next week (American Talk Radio on Monday, The Motley Fool on Wednesday, Bob Brinker at the weekend) and television the following week (Betty Liu on Bloomberg Tuesday, Liz Claman on Fox Business Wednesday, and others).

While the anticipation of all these events and dialogue is exciting, there is something simply special about grasping the physical volume in hand, inky aroma, cream-soft pages, firm bound spine, and well-edited narrative. The feeling reminds me how much I love books, which makes it extra cool to write them and to behold their physical beauty, as well as their intellectual sustenance.

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FAN 35 (First Amendment News) Clear & Present Danger in the states — Holmes’s Legacy

Suppose that a code were made and expressed in language sanctioned by the assent of the courts.  – Oliver Wendell Holmes (1870)

Judge Oliver Wendell Holmes, Jr.

Judge Oliver Wendell Holmes

46 States & 209 statutes 

Incredibly, commentators have long overlooked one of Holmes’s greatest contributions to American law, namely his contribution to state statutory law. Today, 46 states have codified, in one form or another, Holmes’s clear-and-present-danger formula for either civil or criminal liability. This codification, found in 209 state statutes, is not limited to criminal advocacy cases. State lawmakers have tapped Holmes’s famous formula for any variety of purposes, including but not limited to the following categories of regulation:

  • Parental rights
  • Food and drug safety
  • Witness protection
  • Bullying in schools
  • Gun safety
  • Therapist and counselor privilege
  • Building safety
  • Environmental reports
  • Banking law
  • Involuntary commitment
  • State-municipal loans
  • Treatment of the elderly

Because this body of statutory does not concern free speech cases involving criminal advocacy, Schenck and its progeny leading to and beyond Brandenburg v. Ohio need not govern the interpretative meaning of the clear-and-present-danger formula. In other words, state courts are largely free, consistent with other legal constraints, to give such statutes whatever interpretative gloss they wish.

Re Freedom of Expression

Of the 209 state laws that currently employ the clear-and-present-danger language, 40 have done so in matters relating to freedom of expression and/or assembly. Examples of such laws include the following:

  • Regulation of the content of student newspapers
  • Regulation of speech advocating the overthrow of the government
  • Regulation of speech related to the incitement of riots
  • Criminal contempt with respect to publication of court proceedings
  • Regulation of criminal syndicalism
  • Regulation of reading materials of the mentally ill
  • Regulation of free assembly
  • Regulation of expression in public places where alcohol is served
  • Regulation of prison inmate correspondence

422 State Court Opinions Read More

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More on Redistricting

Another way of looking at the Arizona State Legislature case is that the Constitution should be read to limit the freedom of states to take decisions that affect the structure or composition of the national government.  This rationale is advanced in some of the cases that discuss different uses of the word “legislature,” so let’s explore some examples.

1.  The ratification and proposal of constitutional amendments.  Article Five provides that Congress gets to decide how a constitutional amendment is ratified (either through state legislatures or conventions).  Article Five also specifies that only state legislatures may petition Congress for a second constitutional convention.  In neither instance may a state choose another method (say, by giving the Governor a role, using the initiative process, etc.)  Why?  I suppose because these are national (rather than local) decisions and thus the nation gets to choose the means.

2.  The election of Senators prior to the Sixteenth Amendment.  Only state legislatures could pick senators.  A state could not write its constitution to use another method.  Senators, of course, are national officials.

3.  The creation of new states from existing states.  Article Four says that this cannot be done without the consent of the relevant state legislatures.  Creating new states, of course, has a profound effect on the national government.

Why do I bring these up?  You could say that congressional redistricting is an example of a state action that directly affects the composition of Congress.  As a result, the Constitution’s statement that this “shall be prescribed in each State by the Legislature thereof” does limit a state’s ability to use some other method like an independent body.  On the other hand, Article One, Section expressly gives Congress the power to override a state decision of this sort.  As a result, you could say that if Congress does not prohibit what a state does in this regard then the Constitution should not be read to impose an independent barrier.  in other words, there is no “Dormant Elections Clause.”

Just food for thought.

 

Legal Scholarship & the University

Just a quick note to make explicit something implicit in my last post: I not only agree with Dave Hoffman’s point about the enduring value of many modes of law teaching, but also think that we could do with a lot less defensiveness about the value of legal scholarship. It is not only the case that legal theories “have fundamentally changed our thinking about the law,” as Robin West and Danielle Citron argue. There are areas of social science presently adrift either because they have not adequately incorporated key legal insights, or because attorneys and legal scholars have failed to fully engage with key controversies and ideas. And there are fields–like political economy and finance theory–now being revitalized thanks to the efforts of legal academics. Legal scholarship exists not only to help the bench and bar, but to enrich the social sciences and humanities generally.

From Piketty to Law and Political Economy

Thomas Piketty’s Capital in the 21st Century continues to spur debate among economists. It has many lessons for attorneys, as well. But does law have something to offer in return? I make that case in my review of Capital, focusing on Piketty’s call for a renewal of the social science of political economy. My review underscores the complexity of the relationship between law and social science. Legal academics import ideas from other fields, but also return the favor by informing those fields. Ideally, the process is dialectic, with lawyers and social scientists in dialogue.

At the conference Critiquing Cost-Benefit Analysis of Financial Regulation, I saw that process first hand in May. We at the Association of Professors of Political Economy and the Law (APPEAL) are planning further events and projects to continue that dialogue.

I also saw a renewed synergy between law and social sciences at the Rethinking Economics conference last month. Economists inquired about bankruptcy law to better understand the roots of the financial crisis, and identified the limits that pension law places on certain types of investment strategies.

Some of the organizers of the conference recently took the argument in a new direction, focusing on the interaction between Modern Monetary Theory (MMT) and campaign finance reform. “Leveling up” modes of campaign finance reform have often stalled because taxpayers balk at funding political campaigns. Given that private campaign funders’ return on investment has been estimated at 22,000%, that seems an unwise concession to crony capitalism. So how do we get movement on the issue?
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