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Enforce This! Contract (as) Social Responsibility (Part 4)

A prior post made two basic points about the ABA’s Model Terms to protect human rights in the supply chain (Model Terms) as an example of “contract (as) social responsibility” (KSR): (i) they say nothing about substantive human rights standards (and that may be OK), and (ii) the desire to implement these standards through KSR terms may conflict with a desire to limit the buyer’s legal exposure for their violation.

Or not. . .

I want to turn now to what I suspect will be a central doctrinal question presented by KSR terms: enforceability.

I don’t mean enforceability in a technical sense—offer, acceptance, consideration (or equitable substitute)—but instead in a remedial sense:  Who can get a remedy for breach, and what would it look like?  Since the architecture of U.S. contract law sits on a foundation of privity and expectation, KSR may be an awkward fit, for at least three reasons.

First, consider the problem of third-party beneficiaries.   Read More

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FAN 191.1 (First Amendment News) Abrams Institute to Host Conference on Commercial Speech & Right of Publicity

Commercial Speech & the First Amendment:

Does the Right of Publicity Transcend Commercial Speech?

From Yale Law School’s Floyd Abrams Institute for Freedom of Expression

Please join us for an in-depth discussion on right of publicity. Our keynote speaker will be Jennifer Rothman, Professor of Law at Loyola Law School, Joseph Scott Fellow, and author of the upcoming book: The Right of Publicity: Privacy Reimagined for a Public World.

  • Are there First Amendment limits to this claim?
  • What are the litigation strategies for approaching these claims?
  • And what are the legislative strategies and imperatives for legislative initiatives?

Date & Time

Monday, June 4, 2018 // 8:30 AM – 2:30 PM EDT

Does the First Amendment have anything to say here?

Moderator: Jeremy Feigelson, Debevoise & Plimpton

Panelists:

  • Robert C. Post, Sterling Professor of Law, Yale Law School
  • Jennifer Rothman, Professor of Law, Joseph Scott Fellow, Loyola Law School
  • Rebecca Tushnet, Frank Stanton Professor of the First Amendment, Harvard Law School

What content is protected? What content should be protected? How to frame the argument. Does the concept of “commercial speech” retain any relevance to the analysis?

Litigating the Claims

Moderator: Stacey Dogan, Professor, Boston University School of Law
Panelists:

  • David Schulz, Ballard & Spahr LLP
  • Nathan Siegel, Davis Wright Tremaine LLP
  • Annie Pell, NFL

What are the strategic decisions to be made? What wins, and what does not?

Legislative Initiatives: What matters

Moderator: Daniel Kummer, NBCUniversal Media, LLC
Panelists:

  • Gena Feist, TakeTwo Interactive Software, Inc.
  • Edward Rosenthal, Frankfurt Kurnit Klein & Selz PC
  • Vans Stevenson, Motion Picture Association of American, Inc.

Exceptions Clauses:

  • Do they lead courts to assume that all content is subject to ROP claims, except the exceptions?
  • How should they best be drafted?
  • What other key and contentious clauses are in the legislative mix today?
  • Are there viable compromises between the performers’ unions and the creative community on ROP statutes?

Accreditation

  • Application for New York accreditation of this program is currently pending.

Host of Conference

  • We want to thank Debevoise & Plimpton for agreeing to host the Conference this year.

Conference Sponsors: We want to thank the additional sponsors of this Conference:

  • Ballard Spahr LLP
  • Davis Wright Tremaine LLP
  • Frankfurt Kurnit Klein & Selz PC

Location

Debevoise and Plimpton, 919  3rd Ave., New York, NY 10022

Registration

Space is limited for this Conference. We anticipate a waiting list, so please do not register if you do not think you will actually attend.

REGISTER HERE

If you find that you cannot attend, please let us know ASAP. Again, we anticipate a waiting list.

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FAN 191 (First Amendment News) “Robotica” — First Book on Speech Rights & Artificial Intelligence Published

If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.
Abstract: As more and more communication becomes robotized and/or is driven by artificial intelligence, a variety of questions arise about the relation between the government’s regulation of such communication and First Amendment law. Such robotized communication involves everything from our home appliances, automobiles, phones, computers, and more. Ever more press stories are today being written by algorithmic design, and stock transfers follow a similar path of communication.

But is such data speech under the First Amendment? Are such transfers even communication within the meaning of the First Amendment? And if so, to what extent, any why, can the government regulate these new technologies? Such questions and others are explored for the first time in book form in  the latest work by First Amendment scholars Ronald Collins and David Skover.

Professor David Skover

The book (their tenth) is ROBOTICA: SPEECH RIGHTS & ARTIFICIAL INTELLIGENCE (Cambridge University Press, June 2018).

  Following the main text, are four commenatries by Ryan Calo, Jane Bambauer, James Grimmelmann, and Bruce E.H. Johnson. The authors thereafter reply to the commentaries.

Advance Praise

“Collins and Skover have produced a wonderfully readable, thorough, and insightful exploration of the intersection of technology and free speech theory, from the beginning of time well into the future. If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.” — Martin Redish, Louis and Harriet Ancel Professor of Law, Northwestern University Law School

“Collins and Skover have long been among the finest minds focused on free expression in America. In this remarkable book, they now turn insightfully to an incredibly complex and timely issue associated with ‘robotic expression’: how should the First Amendment handle contests involving regulation of ‘robot speech’ as artificial intelligence grows rapidly in prominence? This book conveys their deep knowledge – and the knowledge of other noted scholars – of the history, law, and technology that inform the way we should think about this emerging field of constitutional inquiry. ” — John Palfrey, Head of School at Phillips Academy, Massachusetts & former Executive Director of the Berkman Center for Internet and Society, Harvard University

New Book on Right of Publicity 

Jennifer Rothman has written an important, informative study of the right of publicity as it has developed in the United States and its connections to a robust privacy right. By reexamining the past, she has elaborated principles that will be useful in defining both publicity and privacy rights for the digital age.Rebecca Tushnet, Harvard Law School

Abstract: Who controls how one’s identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity―a little-known law, often wielded by celebrities―to answer that question, not just for the famous but for everyone.

In challenging the conventional story of the right of publicity’s emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity. This shift and the right’s subsequent expansion undermine individual liberty and privacy, restrict free speech, and suppress artistic works.

The Right of Publicity traces the right’s origins back to the emergence of the right of privacy in the late 1800s. The central impetus for the adoption of privacy laws was to protect people from “wrongful publicity.” This privacy-based protection was not limited to anonymous private citizens but applied to famous actors, athletes, and politicians. Beginning in the 1950s, the right transformed into a fully transferable intellectual property right, generating a host of legal disputes, from control of dead celebrities like Prince, to the use of student athletes’ images by the NCAA, to lawsuits by users of Facebook and victims of revenge porn.

The right of publicity has lost its way. Rothman proposes returning the right to its origins and in the process reclaiming privacy for a public world.

→ RelatedRothman’s Roadmap To The Right of Publicity

Steve Brill’s Latest Book Discusses First Amendment Law (among other things) Read More

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Vanderbilt Law Review, Volume 71, Number 4

The Vanderbilt Law Review is pleased to announce the publication of our May 2018 issue:

ARTICLES

Rafael I. Pardo, Bankrupted Slaves, 71 Vand. L. Rev. 1071 (2018).

William Magnuson, Regulating Fintech, 71 Vand. L. Rev. 1167 (2018).

Sarah L. Swan, Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018).

ESSAY

Susan S. Kuo & Benjamin Means,The Political Economy of Corporate Exit, 71 Vand. L. Rev.  1293 (2018).

NOTES

Alex Carver, Rethinking Conspiracy Jurisdiction in Light of Stream of Commerce and Effects-Based Jurisdictional Principles, 71 Vand. L. Rev. 1333 (2018).

Jessica Lauren Haushalter,Neuronal Testimonial: Brain-Computer Interfaces and the Law, 71 Vand. L. Rev. 1365 (2018).

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University of Toronto Law Journal Volume 68, No. 2, Spring 2018

University of Toronto Law Journal – Volume 68, No. 2 (Spring 2018)

The proper role of policy in private law adjudication

Ross Grantham, Darryn Jensen

Canadian legislatures and the regulation of the private health-care industry

Marie-Claude PrémontCory Verbauwhede 

Group rights, participatory goods, and language policy

Piet Goemans

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Why is Business Law Education So Bad?  Value-Creation by Law Professors

The question posed in the title of this post—why is business law education so bad?—was first asked in a famous and provocative 1984 paper by Stanford law professor Ronald Gilson, Value Creation by Lawyers.

That paper is best known for developing a micro-economic answer to a different—but ultimately related—question: Why would anybody pay for business transactional lawyering?  And, if no one would (or should) pay for those services, why should anyone pay (or be paid) to learn (or teach) them?

The price of bad education

Although the questions are not new, they have become more important as technology and markets transform the practice and study of law.

Gilson argued that there was an economic explanation: lawyers produce and verify information that brings the deal price closer to a hypothetical “true” market value.

Although this question—and Gilson’s answer—have received the most attention, Gilson also had important observations about legal education.  Boiled down, he suggested that law schools should: (1) expose students to the actual transactions in which they were likely to participate; and (2) teach them a legal theory that would help to explain both why these transactions occurred, and why (and how) lawyers would add value by performing services in them.

When Gilson wrote this, law schools struggled with both because, among other things, most legal academics had little transactional experience.  In the more than thirty years since Value Creation, however, law schools have exploded with courses that achieve the first goal, exposure.  It would be difficult today to find a law school that did not offer some form of skills training to prepare law students for careers as business lawyers.  A large and growing literature describes in exquisite detail how to design and teach these courses.

Yet, so far as I can tell, neither the courses nor the literature engage the second half of the problem as Gilson framed it, legal theory. (I put to one side clinics, which have their own literature, as well as skills supplements for traditional classes).  Rather, they focus on “transactional skills” qua skills, such as drafting and negotiating—admittedly vital functions—without considering how legal theory might explain, explore, enhance or critique them.  They have taken half of Gilson’s recommendation and declared victory.

This is a problem for two reasons. First, it seems indifferent (perhaps hostile) to the role that legal theory and scholarship could play here.  Transactional skills literature reads as a series of “recipes,” how-to-get-to-yes-guides insensible to the possibility that, in many deals, “no” may be better the answer. Read More

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Charles Evans Hughes and Chevron Deference

Chevron deference is a hot topic. There is growing criticism from judges and scholars against the view that courts should defer for the most part to agency readingsof statutes they are charged with implementing. I do not have a dog in this fight, but I did come across an interesting nugget recently for people who do care.

Many of you have heard this famous line from Charles Evans Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.” Legal Realism run amok, right? But the context in which then-Governor Hughes made this off-the-cuff remark was in a speech attacking the notion that courts should exercise robust review over the decisions of administrative agencies. The speech concerned a bill in New York
that proposed creating a commission to regulate railroads. Here is the relevant passage from Hughes:

But when you deal with a railroad man who fairly and squarely meets you, you will find that he will agree that these powers are needed, supposing that abuses exist which would call them into action. The other night I was talking to such a gentleman, and when we got through, the practical result of all was this : I said to him : ” What you really want is a chance to go to the courts ? ” And he said: ” Yes, that is all there is about it.” That seemed to be the main point. A chance to go from the commission to the courts.

I have the highest regard for the courts. My whole life has been spent in work conditioned upon respect for the courts. I reckon him one of the worst enemiesof the community who will talk lightly of the dignity of the bench. We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon the courts, nor do I want to see any indirect assault upon the courts. And I tell you, ladies and gentlemen, no more insidious assault could be made upon the independence and esteem of the judiciary than to burden it with these questions of administration, questions which lie close to the public impatience, and in regard to which the people are going to insist on having administration by officers directly accountable to them.

Let us keep the courts for the questions they were intended to consider. When questions of property rights are involved, the constitutional right to hold property and not to be deprived of it without due process of law is involved; when, under the guise of regulation or authority to supervise railroad management, there is an assumption of arbitrary power not related to public convenience; when there is a real judicial question let the courts have it and every good citizen will stand aside and hope to see it decided fairly and with even-handed justice. When you deal with matters of this sort you may be sure that there will be a variety of questions, which, whatever the fact may ultimately be proved to be, can by astute lawyers be said to involve such judicial matters, and there will be abundant opportunity for review of everything that should be reviewed.

But to say that all these matters of detail which will be brought before the commission, matters requiring men to give their entire attention to the subject, toget their information in a variety of ways, to have hearings of those interested, and to deal with questions from a practical standpoint, should, at the option of the corporations, be taken into court, is to make a mockery of your regulation. And, on the other hand, if that policy should succeed, it would swamp your courts with administrative burdens and expose them to the fire of public criticism in connection with matters of this description, from which I hope they will be safeguarded.

You must have administration, and you must have administration by administrative officers. You cannot afford to have it otherwise. Under the proper maintenance of your system of government and in view of the wide extension of regulating schemes which the future is destined to see, you cannot afford to have that administration by your courts. With the courts giving a series of decisions in these administrative matters hostile to what the public believes, and free from that direct accounting to which administrative officers are subject, you will soon find a propaganda advocating a short-term judiciary, and you will turn upon our courts the final safeguard of our liberties that hostile and perhaps violent criticism from which they should be shielded and will be shielded if left with the jurisdictions which it was intended they should exercise.

Now obviously this passage does not address all aspects of the Chevron debate. Still, I think it gets at important parts of that conversation, such as public accountability and the politics/law distinction.

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Contract (as) Social Responsibility (Part 3): Model Contract Terms

My prior posts (#1 and #2) set up the idea that contract appears to be an increasingly attractive way to do some sort of “social justice,” for example by attempting to reduce labor trafficking in supply chain contracts.  I refer to this generally as “contract (as) social responsibility” (KSR).

A contradiction in terms?

I want to turn now to a thoughtful example of KSR terms, the Model Terms (Model Terms) being developed by the Working Group to Draft Human Rights Protections in Supply Contracts of the Business Law Section of the American Bar Association (Working Group).

The Working Group is led by Professor David Snyder (American University) and attorney Susan Maslow.  Although the Model Terms have not yet been posted, they should be shortly and, in any case, are available from David (dsnyder@wcl.american.edu) and Susan (smaslow@ammlaw.com).  The Working Group’s report and the Model Terms are slated to be published in The Business Lawyer later this year.  [Disclaimer:  I am a member of the Working Group and on the editorial board of The Business Lawyer.  Nothing I say on CoOp should be imputed to them.]

While I should probably post a “spoiler alert” here, I thought it would be helpful to summarize certain aspects of the Model Terms in order to identify some of the issues they and, by inference, other KSR terms may raise.

The Model Terms have two goals that are, perhaps, in tension.

Read More

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Buffett Shareholders at the Berkshire Hathaway Annual Meeting 2018

Whew!  What a wonderful time at Berkshire Hathaway’s 2018 Annual Meeting, an annual ritual I’ve enjoyed since 1997, and with my wife Stephanie for the past decade.  This year was special for many reasons, including the release of our new book The Warren Buffett Shareholder: Stories from Inside the Berkshire Hathaway Annual Meeting.  Our amazing group of 43 contributors did a great job illuminating why tens of thousands go every year.  Most of us appear in the group photo (below left) outside this year’s Meeting place.

Half the contributors to The Warren Buffett Shareholder at the 2018 BRK Meeting

Another unique milestone occurred, as Berkshire released complete videos and transcripts of the meetings dating to 1994.  This is an apparent response to the recent proliferation of books and blogs providing notes of the Meeting.  Warren always prefers the real thing!  For me, these archives are a trip down memory lane, including a fond reminder of how many times Warren and Charlie have endorsed my book, The Essays of Warren Buffett: Lessons for Corporate America: four times (see here, in 1998, 2000, 2008 and 2010). Thanks to them both for the kind words and for the honor and opportunity!

LAC lecture at UNO’s “Berkshire System Summit”

Bookworm display.

Our whirlwind visit this year began Thursday morning at the University of Nebraska where I gave a talk about the Berkshire Hathaway system, especially the role of shareholders in it (photo far right).  Sales afterwards were brisk.  Great to see host Bob Miles as well as Nicole Friedman, Robert Hagstrom, Jeff Matthews, Ron Olson and many other friends!

On Thursday evening, Yale University Radio’s Jim Campbell and I spoke about what to expect at this year’s meeting and to discuss the new book.  Later Thursday, we swung by the Bookworm in West Omaha, which always has a dazzling display of great reads, especially those concerning Berkshire and Buffett (photo near right).

Friday morning I always speak to several different corporate groups, such as boards of directors and senior managers of companies trying to learn from the Berkshire model. This year I spoke to a large group of folks from AGR Partners, headed by Ejnar Knudsen.

On Friday afternoon, it was off to Creighton University, where for the fourth year I participated in a lively panel discussion featuring such luminaries as Vitaliy Katsenelsen and a full house of engaged devotees.  Afterwards, the hosts offered a wine and cheese reception and book signing boasting dozens of luminous authors on Berkshire and related subjects, including many contributors to our new book.  An action shot of Stephanie signing appears below left, with Keith Ashworth-Lord in the background. Thanks to Jim Ross of Hudson Books for rounding up the books and authors and to Bob Johnson, John Wingender and their colleagues at Creighton for the panel.

Friday evening we were off to the annual reception of the Yellow BRKers Club, folks I first met 25 years ago. While they don’t usually invite speakers or offer book signings, a one-time exception was made for this book given its unique perspective and provenance.  We are grateful to Alex Bossert for the opportunity and to both catch up with old friends and make new ones!  (One new friend is Maya Peterson, the young author of Early Bird, a great book about starting to invest at a young age!)

Saturday morning started early for many, and most cracked open the Omaha World Herald, which always has a special section on Berkshire for the Annual Meeting. For the fourth year in a row, thanks to Steve Jordon and Brad Davis, I contributed a columun offering insight into Berkshire culture, this year focusing on the shareholders; Stephanie wrote a great column this year too, highlighting insights gleaned from our book.

The big event was Saturday at the Century Link Center, where we spent some of the time in the meeting but most of the time at the Buffett-sponsored Bookworm exhibit where our book was featured along with a limited number of others that Warren hand picks.  Thanks to Warren for having a six foot plywood mock up of our latest book’s cover constructed to form part of the entrance to this year’s Bookworm exhibit (where Stephanie is seated in the picture at right).

Thanks to Bookworm owners, Phil and Beth Black, for loading stacks of three of my books on the table (pictured at left below).  With much gratitude to them and many others throughout the weekend, we sold thousands of copies of our new book along with hundreds more of Berkshire Beyond Buffett and The Essays of Warren Buffett.  Our fellow authors and book signers also enjoyed brisk sales and it was great to see them, including Peter Bevelin, Jeff Gramm, Andy Kilpatrick, and Laura Rittenhouse.

Saturday evening we headed over to the Holland Performing Arts Center for a panel discussion before the Young President’s Organization. I joined an amazing panel–Vitality again plus Tom Gayner and Tom Russo–who’ve been doing this together for more than a decade. Thanks to them and to host Todd Simon, President of Omaha Steaks, for letting me participate.

We rose early Sunday morning so I could join 3000 others running the Brooks 5K.  A fun race, it was great to see “team members” Tom Gayner, Ingrid Hendershot and John Pecaut out for the fresh air and good exercise.  It was also great to say hello to Berkshire’s Greg Abel (who wore Number 1) and Brooks’ Jim Weber.  Best news: I finished in about the same time this year as last year.  (Every finisher received the medal I’m wearing post-race in the photo at right).

While I ran, Stephanie set up a book signing at the Markel Brunch in the Hilton, where we met even more wonderful readers and sold more boxes of books.  At that point, exhilarated as we were, we called it a day with two of our favorite Omaha traditions: a lovely private brunch and then a visit to Borsehims to buy Stephanie an elegant pair of earnings.

Then we flew home, with more fond memories, and more reasons to return next year, as we and 43 of our friends explain in The Warren Buffett Shareholder: Stories from Inside the Berkshire Hathaway Annual Meeting.  We all thank Warren for making the event possible, and we especially thank him for his support and kind words for our new book, which he called “terrific.”

 

From the new CNBC documentary, Stephanie and I signing books at Hudson in 2017

We again thank the contributors to The Warren Buffett Shareholder: Stories from Inside the Berkshire Hathaway Annual Meeting.

Charles T. Akre is the Managing Member, Chief Executive Officer, and Chief Investment Officer of Akre Capital Management, LLC in Middleburg, Virginia.

Keith Ashworth-Lord is Managing Director of Sanford DeLand, an asset management firm based in Manchester, England.  Keith is the author of Invest in the Best.

Phil & Beth Black are co-owners and operators of The Bookworm, Omaha, Nebraska, which they founded in 1986.

John C. Bogle is the Founder of Vanguard, based in Valley Forge, Pennsylvania. Jack is the author of many books, including The Little Book of Common Sense Investing.

Patrick T. Brennan, CFA, is the Founder and Portfolio Manager of Brennan Asset Management, LLC, a concentrated value investing firm based in Napa, California.

Randy Cepuch is the author of A Weekend with Warren Buffett and Other Shareholder Meeting Adventures.

Stephanie Cuba is a real estate consultant based in New York City, and serves on the board of Brooklyn Excelsior Charter School and the advisory council of the Montefiore Medical Center/Einstein College of Medicine.

Lawrence A. Cunningham is a Professor at George Washington University, Founding Faculty Director of GW in New York, and a Director of Constellation Software Inc. Larry is the author of many books, including Berkshire Beyond Buffett.

Robert E. Denham is a Partner in the Los Angeles office of Munger, Tolles & Olson, LLP, a law firm which frequently represents Berkshire Hathaway. Bob is also a member of the boards of directors of Chevron Corporation; The New York Times Company; FEMSA; and Oaktree Capital Group.

Thomas S. Gayner is a Director and Co-Chief Executive Officer of Markel Corporation in Richmond, Virginia. Tom is a Director of Cable One, Colfax, and Graham Holdings; and Chairman of Davis Funds.

Joel Greenblatt is the Founder, Managing Principal, and Co-Chief Investment Officer of Gotham Capital, New York City, and a Director of Pzena Investment Management, Inc. Joel is the author of several books, including The Little Book that Beats the Market.

Robert G. Hagstrom, CFA, is the Senior Portfolio Manager of the Global Leaders Portfolio at Equity Compass Strategies, an asset management affiliate of Stifel Financial Corporation. Robert is the author of The Warren Buffett Way.

Raymond Buck Hartzell is the Director of Investor Learning and Operations at The Motley Fool, based in Alexandria, Virginia.

Ingrid R. Hendershot, CFA, is the Founder, President, and Chief Executive Officer of Hendershot Investments, Inc., Bristow, Virginia. She is the Editor of Hendershot Investments, a quarterly newsletter for long-term investors.

Mark Hughes is the Director of Equity Research at Lafayette Investments in Ashton, Maryland.

Prem C. Jain is the Elsa Carlson McDonough Chair of Accounting and Finance at the McDonough School of Business, Georgetown University, Washington DC. Prem is the author of Buffett Beyond Value.

Thomas Johansen is a Professor in the Department of Economics, Finance, and Accounting, Fort Hays State University, Hays, Kansas.

Steve Jordon is a Business Reporter for the Omaha World Herald, where he has worked since 1967.

David Kass is a Clinical Professor in the Department of Finance at the Robert H. Smith School of Business, University of Maryland.

Vitaliy Katsenelson is the Chief Executive Officer and Chief Investment Officer of Investment Management Associates, Inc., a value investment firm based in Denver, Colorado. Vitaliy is the author of The Little Book of Sideways Markets.

Karen Linder is President and Chief Executive Officer of Tethon 3D, a 3D printing company, and Principal of Linseed Capital, a private investment firm. Karen is the author of The Women of Berkshire Hathaway.

Simon Lorne is Vice Chairman and Chief Legal Officer of Millennium Partners, New York City. A former partner of Munger, Tolles & Olson, Si also serves as chairman of the Alternative Investment Management Association.

Thomas J. Manenti retired in 2018 as the Chairman and Chief Executive Officer of MiTek Inc., a Berkshire Hathaway company based in St. Loui, where he had worked since 1977.

Jeff Matthews retired in 2017 as the General Partner of Ram Partners LP, where he had served since 1993. Jeff is the author of several books, including Pilgrimage to Warren Buffett’s Omaha.  

Tim Medley is a Partner at Medley & Brown, a financial advisory firm in Jackson, Mississippi, and a Director of the Sequoia Fund, Inc.

Robert P. Miles is an Executive in Residence at the College of Business Administration, University of Nebraska Omaha. Bob is the author of several books, including The Warren Buffett CEO.

Olza M. (Tony) Nicely is the Chairman and Chief Executive Officer of GEICO, a Berkshire Hathaway company, where he has worked since 1961.

Shane Parrish operates the farnamstreetblog.com.

Daniel Pecaut  is the Chief Executive Officer of Pecaut & Company, an investment firm based in Sioux City, Iowa. Daniel is the co-author, with Corey Wrenn, of The University of Berkshire Hathaway.

John Petry is the Founder and Managing Member of Sessa Capital LLP. He serves on the board of the Success Academy Charter Network.

Laura J. Rittenhouse is the Chief Executive Officer of Rittenhouse Rankings, Inc., an investor communications and coaching firm, and author of several books, including Investing Between the Lines.

Francois Rochon is the Founder, President and Portfolio Manager of Giverny Capital based in Montreal, Canada.

Jim Ross is the Manager of the Hudson Booksellers store at Eppley Field in Omaha.

Thomas A. Russo is the Managing Member of Gardner Russo & Gardner LLC, serving also as General Partner of Semper Vic partnerships.

Andrew Steginsky, CFA, is the ‎Founder and Managing Director of ‎Steginsky Capital LLC in New York.

Macrae “Mac” Sykes is Senior Research Analyst, Gabelli & Company in Rye, New York.

Phil Terry is the Founder and Chief Executive Officer of Collaborative Gain, Inc., which runs leadership programs, and of Reading Odyssey, a lifelong learning nonprofit organization.

Charlie Tian is the Founder and Chief Executive Officer of GuruFocus.com.  He is the author of Invest Like a Guru.

Whitney Tilson is the Founder and Chief Executive Officer of Kase Learning, through which he teaches seminars on value investing, entrepreneurship and worldly wisdom. He was a contributor to Poor Charlie’s Almanack.

Bruce N. Whitman is the Chairman, President, and Chief Executive Officer of FlightSafety International, a Berkshire Hathaway company, where he has worked since 1961.

John R. Wingender is a Professor and Chairman of the Department of Economics and Finance at the Heider College of Business, Creighton University.

Jason Zweig writes The Intelligent Investor column for The Wall Street Journal. He is the editor of the contemporary edition of Benjamin Graham’s classic book, The Intelligent Investor.

 

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FAN 190 (First Amendment News) Seattle U. Law School’s Homeless Rights Advocacy Project Issues Report on Begging Restrictions in Washington State

Jocelyn Tillisch

An important new report has just been released by Seattle University Law School’s Homeless Rights Advocacy Project. The 105-page report is titled Begging for Change: Begging Retsrictions Throughout Washington.

The report was prepared by:

The Homeless Rights Advocacy Project researched the laws of sixty-four cities across Washington State and found 121 ordinances that prohibit or restrict begging. An overwhelming number of these ordinances punish begging as a misdemeanor, inflicting on already vulnerable people ongoing and escalating collateral consequences.

Executive Summary

Drew Sena

The act of panhandling, commonly known as begging, is a constitutionally protected form of speech. But Washington’s cities are increasingly enacting ordinances that criminalizebegging. The consequences of criminalizing begging are severe and include violations of First Amendment and due process rights. Indeed, these ordinances often outlaw peaceful and nonintrusive behavior protected by the First Amendment. Some advocates assert that since 2015, “100% of federal court cases have ruled bans/restrictions [on begging] are unconstitutional.”

Further, these laws do not contribute to a solution for homelessness; instead, they function to remove visible poverty and homelessness from sight. Due to the nature and penalties of these anti-begging ordinances, the debtor’s prison grows, and the cycle of homelessness continues.

Key findings include:

  • The vast majority of Washington cities punish begging: 86% of surveyed cities have at least one law criminalizing begging in their municipal codes.
  • 83% of these laws result in a misdemeanor if violated. Criminal convictions exacerbate homelessness.8
  • Begging restrictions are proliferating: approximately 2/3 of all begging ordinances were enacted after 2001.
  • Washington’s second most popular laws are “aggressive” begging restrictions.
  • In the 1990s, courts began invalidating prohibitions on peaceful begging asunconstitutional restrictions on free speech. Many cities tried to circumvent this outcome by incorporating non-aggressive conduct into their so-called “aggressive begging” laws.
  • Only 2% of aggressive begging ordinances turn on the specific, objectively aggressive conduct of the person begging.
  • For the vast majority— 98% of aggressive begging laws—a violation can occurbased solely on a bystander’s subjective perception.
  • If a bystander feels fearful or even feels compelled to give, such feelings may be enough to make begging criminal regardless of whether the person begging has done anything objectively aggressive.
  • 42% of all aggressive begging ordinances rely exclusively on a bystander’ssubjective perception.
  • This reliance on whether a witness “subjectively” feels fear is highly problematic in light of well-established science proving people tend to feel fear simply when viewing a homeless person regardless of that person’s conduct

LSU’s Sexual Harassment Policy Challenged in Fifth Circuit

The case is Buchanan v. Alexander (No. 18-30148, 5th Cir.), which was summarily dismissed by the District Court. The matter is now before the federal circuit court.  As framed by counsel for Plaintiff-Appellant, “[t]his appeal will require the Court to interpret the law establishing limitations on a public university’s ability to terminate a tenured professor for engaging in academic speech that purportedly conflicts with anti-sexual harassment policies.”

Appellant Teresa Buchanan (credit: FIRE)

Fired LSU Professor Files First Amendment Lawsuit Challenging Speech Code Championed by Feds, FIRE, Jan. 21, 2016 (Note: The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, which is part of its Stand Up For Speech Litigation Project.)

On appeal, the Plaintiff-Appellant makes the following arguments:

I.  Standard of Review

II.  LSU’S Sexual Harassment Policy is Facially Unconstitutional

A.  The First Amendment Requires Sexual Harassment Policies Targeting Speech to Be Narrowly-Framed, Precisely Defined, and Limited to Severe, Pervasive, and Objectively Offensive Behavior

  1. The Government Cannot Restrict Speech Merely to Avoid Offense, and Any Regulation of Speech Must Be Narrowly Focused and Clearly Defined
  2. Anti-Harassment Policies Are Subject to First Amendment Limits

B. The District Court Applied the Wrong Standard of Review

C. LSU’s Policy Fails to Satisfy Constitutional Scrutiny

II.  LSU’S Sexual Harassment Policy was Unconstitutionally Applied to Professor Buchanan

A. Professor Buchanan’s Speech is Constitutionally Protected

1. Academic Freedom is of “Transcendent Value”

2. The District Court Erroneously Held Dr. Buchanan’s Academic Speech Was Unprotected

a. The Undisputed Record Established That Dr. Buchanan Advanced Pedagogical Reasons for Her Speech

b. The District Court Misread the Law to Support Its Distorted View of the Record

B. LSU’s Poorly-Defined Policy and Haphazard Approach Allowed Anything to Be Defined as “Sexual

Harassment”

C. LSU’s Termination of Buchanan Violated the First Amendment

IV. Appellees Cannot Avoid Personal Liability 

→ Counsel for Plaintiff-Appellant 

U. Michigan Harassment Code Challenged  Read More