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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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LIFE IS GRAND IN SAVANNAH!

Thanks to Sarah and the rest of the Concurring Opinion Crew for inviting me back. It’s been two years since my last run here and lot’s have changed here in Savannah.  This past month in Savannah we have seen the grand opening of our building — re-purposed from an early 19th Century hospital to a stunning Law Library.  To help us open the books on the new space, we invited several thoughtful and wonderful people to join us in thinking about how you reintegrate spaces, with a heavy emphasis on how race, space and place emerge in new environments.  Our key note Al Brophy,and other wonderful contributors, Anthony Baker, Steve Clowney, Lia Epperson, Liz Glazer, Jamilla Jefferson-Jones, Adam Kirk, Kali Murray, Connie Pikerston, Marc Poirier, Amanda Reid, Jeff Schmidt, and others.  It was a great time and a great environment.  (I plan to blog separately about the great panels that were presented and their dialogue that ensued).

On the heels of the colloquium, the New York Times this week published an article looking at what it calls Savannah’s other side — the Black side that is rarely acknowledged or confronted in a city that is “stuck in its on gauzy antebellum bubble.”

A visitor could easily spend a week sauntering along the city’s haunting boulevards and leave without a clue about the essential role Georgia’s oldest African-American community has played here….Blame the Low Country blackout, at least partly, on the fact that in the pageant of cities primping with New South sheen and aura, Savannah has perhaps made a less than eager contestant. The city is so proud of its Southern charms and traditions — Gothic Revival homes, high-on-the-hog soul food, Spanish moss canopies shading picturesque squares — that the mere suggestion of cultural evolution is enough to make an old-timer drop his mint julep. Perhaps Savannah’s legendary singer/songwriter Johnny Mercer said it best when he crooned: “I know I’m old fashioned/But I don’t mind it/That’s how I want to be/As long as you agree/To stay old fashioned with me.”

Boy is that true.  Living in the south again, (and starting a law school in the south) has been a reminder that race and poverty are quintessentially (though not uniquely) southern, along side college football, seersucker suits, and sweet tea.  Where some see spanish moss in charming trees, others see ghosts of past racial conflict..  A law school in the south (particularly a new law school) has a chance to tell a bit of the other side — to be a progressive space of thought and engagement. That’s why I came back to the South and why I call Savannah home.   Like most homes, we still have lots of work to do.

I’m looking forward to sharing more about Savannah, Property, Poverty, Law and Literature, Tenure, the Academy, and maybe a little College Football depending on how season goes (so far not so well — at least last week anyway).

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Upcoming Talk in DC

I’ll be giving a talk on John Bingham to The Lincoln Group of the District of Columbia on Tuesday, December 16th.  If you are interested in attending, here is the information.

Announcing the We Robot 2015 Call for Papers

CommonsRobotHere is the We Robot call for papers, via Ryan Calo:

We Robot invites submissions for the fourth annual robotics law and policy conference—We Robot 2015—to be held in Seattle, Washington on April 10-11, 2015 at the University of Washington School of Law. We Robot has been hosted twice at the University of Miami School of Law and once at Stanford Law School. The conference web site is at http://werobot2015.org.

We Robot 2015 seeks contributions by academics, practitioners, and others in the form of scholarly papers or demonstrations of technology or other projects. We Robot fosters conversations between the people designing, building, and deploying robots, and the people who design or influence the legal and social structures in which robots will operate. We particularly encourage contributions resulting from interdisciplinary collaborations, such as those between legal, ethical, or policy scholars and roboticists.

This conference will build on existing scholarship that explores how the increasing sophistication and autonomous decision-making capabilities of robots and their widespread deployment everywhere from the home, to hospitals, to public spaces, to the battlefield disrupts existing legal regimes or requires rethinking of various policy issues. We are particularly interested this year in “solutions,” i.e., projects with a normative or practical thesis aimed at helping to resolve issues around contemporary and anticipated robotic applications.
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California’s College Rape Rule is Probably a Bad Idea (but not for the Reasons the Critics Say)

Jonathan Chait has joined the chorus of critics of the new affirmative consent rule in California for college campuses. Like others, he contends that the new rule effectively criminalizes ordinary sexual activity among college students. For three reasons, I think the claim is not well supported.

First, consent standards probably do not matter. Dan Kahan did the best study on this issue and the results are pretty clear. No matter what you tell people examining a rape case, they end up applying their own notions of consent. To the degree that any instruction of the law matters the effect size is small. I think this finding will hold true in adjudications under the California affirmative consent rule.

Second, stories of the alleged rapist and victim almost never match rendering legal standards as side issues and putting credibility as the central problem of rape cases. There are normally significant discrepancies between the accounts of alleged rapes. For the people willing to intentionally lie (either way), the new rule just indicates the content of their lie must change. For example, instead of saying, “she never objected,” a defendant would say “she said ‘yes.'” Even for those cases where the discrepancies are based upon cognitive biases or other unconscious factors, it is likely, if history is a guide, that the differences will align around the legal rule in place.

Third, the drunken sex cases that the critics are focused on are almost never resolved based upon the consent standard. The cases instead rely on incapacity. Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent. The affirmative consent standard is a red herring in the primary scenario identified for overpunishment on campuses.

Even with all of those reasons to doubt its effectiveness in changing case outcomes, the California rule might simply be innocuous. However, there is a real danger that rule changes like this feed into a very dangerous cultural myth about rape law. Stephen Schulhofer probably said it best in his book Unwanted Sex: “Opponents of rape reform have managed to convince a wide audience that standards of permissible conduct are now dictated by ‘hypersensitive’ young women and by ‘radical’ feminists committed to a highly restrictive, Victorian conception of sexual propriety…. The reality is far different. The claim that legal rules, campus behavior codes, and company policies enshrine radically overprotective, puritanical rules of conduct is a myth.” In roughly half the states in America, having sex with someone who is highly intoxicated, but still conscious, is not rape. Many jurisdictions still apply a resistance or corroboration requirement in charging decisions despite such rules having long since been removed from statutes.  The list of problems with the application of modern rape law is extensive. Unfortunately, the backlash against the California affirmative consent rule has already helped spread the myth of radical change. And because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative. I hope I’m wrong.