12

Martin Luther King and Copyright

92px-Martin_Luther_King_Jr_with_medallion_NYWTSThe new movie about Selma is generating controversy for its portrayal of Lyndon Johnson, but the copyright issues surrounding the movie also point to Martin Luther King Jr’s unique role in our political life.  MLK’s children did not grant permission for the film to use Dr. King’s actual words at Selma (“How Long?  Not Long!”).  While I think that the film’s producers would have won in copyright infringement suit by asserting fair use, maybe they would have lost, and there was no way to get that resolved in time to release the movie for the 50th anniversary of the Voting Rights Act.

Why doesn’t this problem arise for other great American political leaders?  Part of the answer is that public officials cannot copyright their public statements made in an official capacity.  Supreme Court Justices do not own their opinions.  Presidents do not own their State of the Union Speeches.  And so on.  These documents are in the public domain from the moment that they are released.  MLK, though, is the only (or most) consequential political figure who never served in an official role.  Thus, he could copyright his speeches and writings.  Congress could buy the copyrights from MLK’s children, but this would be unprecedented.

I suspect that if MLK were still alive (he would be younger than Jimmy Carter or Bush 41), he would not be enforcing his copyrights in the way that his estate does.  But then again, much more might be different today if MLK were still with us.

7

Fed Officials Accused of Perjury in AIG Bailout Trial

In the financial trial of the century, the most important document is missing. The document is the term sheet that the government says it gave AIG’s board right before taking the company over in Sept. 2008.  The government says the AIG board thus approved the Draconian terms that benefited Goldman Sachs and other rivals. But other evidence, including  AIG’s contemporaneous securities filings, suggests the board was agreeing only to sell the government warrants not transfer 80% of the common stock to it for a song.  The missing document would prove which side is telling the truth.

That’s one of many amazing points of contention noted by Yves Smith of Naked Capitalism in her relentless digging into what government really did during the financial crisis. Most recently, she alleges and documents perjury and obstruction of justice by top federal officials in the pending case of former AIG shareholders against the US. The case alleges that the government trampled on corporate law rights and that the Fed exceeded its authority—allegations that I document in my book, The AIG Story, written with Hank Greenberg, lead plaintiff in the case.

Smith lays out her claims in an extensive blog post at Naked Capitalism, accompanied by reams of additional documents and examples. For those looking for a skinny version, here is an abridged adaptation. Most examples concern Scott Alvarez, general counsel of the Board of Governors of the Federal Reserve; there is one with with Tom Baxter, general counsel of the New York Fed, who worked with Tim Geithner. The shareholders are represented by the noted trial lawyer, David Boies. The point about the term sheet is at the end.

Example 1

Boies: Would you agree as a general proposition that the market generally considers investment-grade debt securities safer than non-investment-grade debt securities?

Alvarez: I don’t know.

 

Example 2

Boies: [Presents a copy of the Financial Crisis Inquiry Commission report stating that the Fed had lowered the standards it applied for the quality of collateral for its loans under two programs then devised to support lending and asks] Do you see that?

Alvarez: I see that. . .

Boies: . . . [W]ould you agree that the Federal Reserve had lowered its standards regarding the quality of the collateral that investment banks and other primary dealers could use while borrowing. . . ?

Alvarez: No.

Boies: You would not agree with that?

Alvarez: Right.

 

Example 3 Read More

6

FAN 43.1 (First Amendment News) Two Upcoming Events on First Amendment & Elections

This week there will be two events in Washington, D.C. concerning elections and the First Amendment. One is on the Williams-Yule judicial elections case, and the other is on the Citizens United case.

Speaking of Citizens United, my FAN post for this Wednesday will be devoted to the case, this on the occasion of its fifth anniversary. Among other things, the post will contain comments on the case from noted First Amendment scholars and lawyers.  

Heritage to host event on judicial campaign solicitation case

Tomorrow the Heritage Foundation in Washington, D.C. will host an event titled “Judicial Elections and the First Amendment — Williams-Yulee v. The Florida Bar.” (The Williams-Yulee case will be argued tomorrow.)

The event will feature:

Hans A. von Spakovsky,  a Senior Legal Fellow at Heritage, will host and moderate the event.

Here is a description of the upcoming event:

On January 20, the U.S. Supreme Court will be hearing oral arguments in Lanell Williams-Yulee v. The Florida Bar. At issue is whether a ban on solicitation of campaign donations by judicial candidates in state elections in Florida violates the First Amendment rights of the candidates. Does Florida have a compelling interest in imposing such a ban to preserve the appearance of impartiality of its judges? Is it necessary to ensure judicial independence and maintain public confidence in the judicial system? Does this ban on solicitation violate the First Amendment rights of candidates to engage in political speech and political activity? Does the soliciting of campaign donations involve core political speech? In a post-argument briefing, two First Amendment experts who filed amicus briefs in the case, along with the former Chief Justice of the Indiana Supreme Court, will discuss these issues as well as the oral arguments conducted that morning before the Supreme Court. Moderating the panel will be a former FEC commissioner.

→ For more information, go here.

 __________________

Event: Citizens United v. FEC after Five Years

This coming Wednesday the Center for Competitive Politics is sponsoring a conference on Citizens United.

LocationCato Institute


Agenda

9:00 AM: The Story Behind the Lawsuit

  • Michael Boos, General Counsel, Citizens United
Interviewer: TBA

9:20 AM: The Impact on Parties in the age of Citizens United: Are changes needed?

  • Joel Gora, Professor of Law, Brooklyn Law School
  • Neil Reiff, Founding partner, Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
  • Peter J. Wallison, Arthur F. Burns Fellow, American Enterprise Institute

10:20 AM: Should liberals support Citizens United?

Interviewer:
 Stuart Taylor, Jr.Author, freelance writer and a Brookings Institution nonresident senior fellow

  • Ira Glasser, former Executive Director, ACLU
  • Gabe Rottman, legislative counsel, ACLU
  • Wendy Kaminer, Author, lawyer, social critic and contributing editor of The Atlantic

11:20 AM: Beyond Citizens United: the future of campaign finance jurisprudence

  • Bobby R. Burchfield, Partner, McDermott Will & Emery LLP
  • Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Bradley A. Smith, Chairman and Founder, Center for Competitive Politics, Judge John T. Copenhaver Visiting Endowed Chair of Law at the West Virginia University, former FEC Chairman
Interviewer:
  • Matea GoldThe Washington Post
15

Benjamin Harrison on Voting Rights

84px-Benjamin_Harrison_PortraitIn reading through the presidential Annual Messages, I was most surprised by President Benjamin Harrison’s communications to Congress.  Harrison was the last president until the 1960s to seek a strong voting rights bill, and his rhetoric on race belies the myth that Republicans stopped caring about African-Americans in the South after 1876.  Consider this passage from Harrison’s 1889 Annual Message:

The colored people did not intrude themselves upon us. They were brought here in chains and held in the communities where they are now chiefly found by a cruel slave code. Happily for both races, they are now free. They have from a standpoint of ignorance and poverty–which was our shame, not theirs–made remarkable advances in education and in the acquisition of property. They have as a people shown themselves to be friendly and faithful toward the white race under temptations of tremendous strength. They have their representatives in the national cemeteries, where a grateful Government has gathered the ashes of those who died in its defense. They have furnished to our Regular Army regiments that have won high praise from their commanding officers for courage and soldierly qualities and for fidelity to the enlistment oath. In civil life they are now the toilers of their communities, making their full contribution to the widening streams of prosperity which these communities are receiving. Their sudden withdrawal would stop production and bring disorder into the household as well as the shop. Generally they do not desire to quit their homes, and their employers resent the interference of the emigration agents who seek to stimulate such a desire.

But notwithstanding all this, in many parts of our country where the colored population is large the people of that race are by various devices deprived of any effective exercise of their political rights and of many of their civil rights. The wrong does not expend itself upon those whose votes are suppressed. Every constituency in the Union is wronged.

It has been the hope of every patriot that a sense of justice and of respect for the law would work a gradual cure of these flagrant evils. Surely no one supposes that the present can be accepted as a permanent condition. If it is said that these communities must work out this problem for themselves, we have a right to ask whether they are at work upon it. Do they suggest any solution? When and under what conditions is the black man to have a free ballot? When is he in fact to have those full civil rights which have so long been his in law? When is that equality of influence which our form of government was intended to secure to the electors to be restored? This generation should courageously face these grave questions, and not leave them as a heritage of woe to the next. The consultation should proceed with candor, calmness, and great patience, upon the lines of justice and humanity, not of prejudice and cruelty. No question in our country can be at rest except upon the firm base of justice and of the law.

I earnestly invoke the attention of Congress to the consideration of such measures within its well-defined constitutional powers as will secure to all our people a free exercise of the right of suffrage and every other civil right under the Constitution and laws of the United States. No evil, however deplorable, can justify the assumption either on the part of the Executive or of Congress of powers not granted, but both will be highly blamable if all the powers granted are not wisely but firmly used to correct these evils. The power to take the whole direction and control of the election of members of the House of Representatives is clearly given to the General Government. A partial and qualified supervision of these elections is now provided for by law, and in my opinion this law may be so strengthened and extended as to secure on the whole better results than can be attained by a law taking all the processes of such election into Federal control. The colored man should be protected in all of his relations to the Federal Government, whether as litigant, juror, or witness in our courts, as an elector for members of Congress, or as a peaceful traveler upon our interstate railways.

Methodological Pluralism in Legal Scholarship

The place of the social science in law is constantly contested. Should more legal scholars retreat to pure doctrinalism, as Judge Harry Edwards suggests? Or is there a place for more engagement with other parts of the university? As we consider these questions, we might do well to take a bit more of a longue duree perspective–helpfully provided by David Bosworth in a recent essay in Raritan:

No society in history has more emphasized the social atom than ours. Yet the very authority we have invested in individualism is now being called into question by both the inner logic of our daily practices and by the recent findings of our social sciences. . . .

Such findings challenge the very core of our political economy’s self-conception. What, after all, do “self-reliance” and “enlightened self-interest” really mean if we are constantly being influenced on a subliminal level by the behavior of those around us? Can private property rights continue to seem right when an ecologically minded, post-modern science keeps discovering new ways in which our private acts transgress our deeded boundaries to harm or help our neighbors? Can our allegiance to the modern notions of ownership, authorship, and originality continue to make sense in an economy whose dominant technologies expose and enhance the collaborative nature of human creativity? And in an era of both idealized and vulgarized “transparency,” can privacy—-the social buffer that cultivates whatever potential for a robust individualism we may actually possess—-retain anything more than a nostalgic value?

These are provocative questions, and I don’t agree with all their implications. But I am very happy to be part of an institution capable of exploring them with the help of computer scientists, philosophers, physicians, social scientists, and humanists.

I suppose Judge Edwards would find it one more symptom of the decadence of the legal academy that I’ll be discussing my book this term at both the Institute for Advanced Studies of Culture at UVA and at MAGIC at the Rochester Institute of Technology. But when I think about who might be qualified to help lawyers bridge the gap between policy and engineering in the technology-intensive fields I work in, few might be better than the experts at MAGIC. The fellows and faculty at IASC have done fascinating work on markets and culture–work that would, ideally, inform a “law & economics” committed to methodological pluralism.
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23

Milton Hebald, RIP

The great sculptor, Milton Hebald, passed away at age 97.  May he rest in peace.  The NYT has a fine obituary here.  Accompanying this post are photos of three of his numerous sculptures gracing the grounds at Morefar, the Brewster, NY estate of the late Cornelius Vander Starr, founder of what Hank Greenberg turned into the American International Group.

Boy flying kite at Morefar (pp. 33-34)

 

 

 

 

 

 

 

 

 

 

 

 

Boy Flying Kite

Statue at Morefar (pp. 33-34)

 

 

 

 

 

 

 

 

 

Handstand

2011-09-10 10.22.03

 

 

 

 

 

 

 

 

 

Tennis Anyone?

0

Buffett on Family Business: Beat the Third Generation Curse

warren buffettWarren Buffett is very good at spotting great family businesses. What does he look for? How can his filters help family businesses prosper?

For one, they can mitigate one of the greatest dangers: the third generation “curse.” This refers to how few family businesses survive beyond the third generation, let alone prosper.

An under-appreciated fact about Berkshire Hathaway, the conglomerate Buffett built: virtually all its family businesses boast second or third generation descendants who rival or outshine previous generations. That is rare among family businesses.

So while every family and business situation differs, Berkshire’s two dozen family companies are a good place to look for insight about multi-generational prosperity in the family business.

Studying Berkshire’s family businesses, I found that they are united by the following values. These values are important factors in their success, in the founding generation and subsequent ones.

Family business members, and their professional advisors, whether in law, accounting, or other fields, would do well to ponder these points.

Read More

14

Tribute: A Liberal in the House of Harry Jaffa (1918-2015)

Harry Jaffa (credit: Ohio State University)

Harry Jaffa (credit: Ohio State University)

1-14-15: 1:03 a.m. My mind races. How does one pay tribute to someone with whom one disagreed on several important issues? – issues about life and law and other things that matter. That question confronts me as I sit down to pay tribute to Harry Jaffa, someone who taught me much and always treated me kindly.

It’s rather late. I page through my tattered copy of Crisis of the House Divided: An Interpretation of the Lincoln Douglas Debates (1959). I first read it in 1968 or thereabouts. It’s by Harry V. Jaffa, the noted conservative political philosopher. He died recently. I found out by way of a New York Times obit by Robert McFadden. (Jaffa died on the same day as Walter Berns, another political theorist.)

I stare at the black-and-white pic of the young Jaffa taken years before I met him. I peer into his distant eyes. What was he thinking at that moment in 1959 / in that bookstore / next to his newly released book / finely clad / grinning confidently / with a book of the poet C.C. Cummings lingering behind his left shoulder?

* *  * *

“Since the first and most successful enterprise of the Fathers was to produce disobedience to an ancient established order, it would have been peculiarly difficult for them to inculcate reverence.”

Screen Shot 2015-01-14 at 3.35.05 AMI marked that passage – one from a chapter titled “The Teaching Concerning Political Moderation.” It is one of many such markings.

I think more and more about Professor Jaffa as I glance at the row of books in my library bearing his name. Formally speaking, I never studied under him, though I did know him. We met in the 1970s at Claremont College where he taught with the noted constitutional historian Leonard W. Levy (1923-2006). I read Levy’s books, too, though I was never one of his students. But I knew both men rather well. Levy was quite liberal (my stripes), Jaffa was quite conservative. Both strong personality types and both friends (as far as I know).

The Students of Strauss

When I first encountered Professor Jaffa, the philosopher Leo Strauss had recently visited Claremont. Back in those days Jaffa was friendly with many of his colleagues who, like him, had been students of Strauss. There was, for example, Martin Diamond and Allan Bloom. Of them he wrote this in his Crisis book: “I owe much to the enthusiastic interest of Professors Allan Bloom . . . and Martin Diamond . . . .”

That was in the days before the name “Strauss” became politicized. It was also before Jaffa parted company (sometimes fiercely) with so many of his former friends and colleagues, including Diamond and Bloom. There was still peace in that valley, that intellectual oasis where so many young students like myself came to learn how to read and appreciate the great works of Western political thought.

I studied under other students of Strauss (Michael Ormond and Thomas S. Schrock) and thereby came to read many works by the famed University of Chicago scholar – works such as Strauss’ Persecution and the Art of Writing (1952), Natural Right and History (1953), On Tyranny (1963), and The City and Man (1964), among other books.

photoOf course, one of the mainstays of my liberal education back then was History of Political Philosophy (1963), a collection of thoughtful and carefully crafted essays on noted political philosophers from Plato to Dewey. Strauss and Joseph Cropsey edited the volume. There was a long essay in it on Aristotle written by Jaffa (removed in the 3rd edition at H.J.’s insistence, I believe). I studied that essay and learned much from it, so much that I set out to read more by him. In time I came to Crisis of the House Divided, which I spent many an hour savoring . . . but never as required reading.

Somehow I came to meet Professor Jaffa personally, though I do not quite remember how. By 1974 I knew him well enough to solicit something from him to publish in my law school’s law review. It was titled “Equality as a Conservative Principle,” 8 Loyola, Los Angeles, Law Review 471 (1975), reprinted in Jaffa’s How to Think About the American Revolution (1978).

Our Dialogues

In the years and decades that followed, from time to time I visited Professor Jaffa at his home with his wife Marjorie. They were routinely gracious. The talk: almost always about Plato or Aristotle or Machiavelli or Hobbes or De Tocqueville or Lincoln or Churchill or Strauss or the Declaration or the Constitution. I steered away from partisan politics. Why? Well, because what I admired about him, what was most important to me, were his talents as a teacher, someone who had carefully studied the great thinkers and was committed to teaching others how to appreciate their words and thoughts. Ideas mattered more to me than ideologies, so I veered away from Republican-Democrat talk, though I listened nonetheless when Jaffa ventured off into those worlds. Sometimes even that talk gave me pause, made me rethink a few of my own views. Then again, sometimes not.

If you would know the Harry Jaffa I knew as a mentor and a friend, read his Crisis or his Thomism and Aristotelianism: A Study of the Commentary by Thomas Aquinas on the Nicomachean Ethics (1952) or his book with Allan Bloom, Shakespeare’s Politics (1964), or his essay “The Case for a Stronger National Government,” in A Nation of States: Essays on the American Federal System (1963) edited by Robert A. Goldwin.  There is, to be sure, more, but I will lay my cards there.

∇ ∇ ∇

In these ideologically torn and tormenting times, it is ever more difficult to be objective and open-minded. Friends flee. Few wish to be Socratic, open-minded, and receptive to reconsidering their gospels. Such one-directional thinking wars with the basic tenets of philosophy, properly understood. But if the ideal of liberal education still means something, and if our commitment to being an open society still stands, then it is only just to be fair — even if it means cracking open the doors of our partisan minds enough to see what we would not otherwise see. There is, after all, no truth in blind denial.

I hope I have answered the question with which I began. However that may be, kindly permit me to close with a few words by Leo Strauss, from his Liberalism: Ancient & Modern (1968):

“Liberal education, which consists in the constant intercourse with the greatest minds, is a training in the highest form of modesty, not to say of humility.”

Indeed.

8

My Next Book

I’m happy to announce that my next book, tentatively titled The Heart of the Constitution:  How the Bill of Rights Became the Bill of Rights, will be published by Oxford University Press.  Check back with me in two or three years when it’s done.

15

Vanderbilt Law Review En Banc Roundtable: Williams-Yulee v. The Florida Bar

Vanderbilt Law Review En Banc, the online companion to the Vanderbilt Law Review, recently published its Roundtable on the upcoming case, Williams-Yulee v. The Florida Bar, set to be argued before the Supreme Court on January 20, 2015. In Williams-Yulee, the Court considers whether a rule of judicial conduct that bans judicial candidates from directly soliciting campaign funds violates the First Amendment. The case has important implications, as currently thirty-nine states elect at least some of their judges and at least twenty have adopted rules of judicial conduct that prohibit candidates for judicial office from personally soliciting campaign funds. Beyond an obvious split among both federal and state appellate courts, Williams-Yulee presents a conflict between the scope of protection afforded by the First Amendment of political speech and the need for judicial impartiality and integrity. Authors Robert O’Neil, Ruthann Robson, Chris Bonneau, Shane Redman, David Earley, Matthew Menendez, Stephen Ware, Charles Geyh, Burt Neuborne, Michael DeBow, and Brannon Denning tackle these questions and more in their contributions.

Roundtable: Williams-Yulee v. The Florida Bar