Category: Current Events

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Donald Trump and the Politics of Disjunction

I posted the following discussion of Donald Trump’s candidacy on Balkanization in January.  I think it stands up pretty well while being neutral, so I thought I would reprint it here:

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We’ve had an extended discussion on the blog about whether Barack Obama is a “reconstructive” President as described in the groundbreaking scholarship of Stephen Skowronek. Part of the answer turns on the outcome of 2016 presidential election. Will Obama’s successor build on what he did or repudiate his legacy? That remains to be seen.

There is another way, though, of looking at this question. Skowronek’s presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a “Mr Fix-It” rather than deep connections to the party’s ideology or constituencies. Past examples include Herbert Hoover, a self-made millionaire who (though it’a hard to remember now) was widely thought of as a problem solver before he was elected. Jimmy Carter is another example–he was an engineer by training–who was a classic outsider in 1976. On the losing side, there was Wendell Wilkie (the GOP nominee in 1940) who had never been elected to anything and was touted for his business success. These are the “disjunctive” presidents or presidential candidates.

The Republican Party went with this sort of strategy in 2012. Mitt Romney was mainly known as a success in business and as a highly competent manager (of, for example, the Winter Olympics). As Governor of Massachusetts for one term, he certainly did not come from the heartland of the GOP coalition and did not have broad government experience. There was a plausible advantage in this, though, as he also did not carry much of the baggage that a party insider or crusader would.

Now we are getting disjunction on steroids with Donald Trump. He is also pitching himself as “Mr Fix-It” without any significant commitment to the traditional ideology of the party or, of course, any service in office. He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party’s ideology–Ted Cruz. You can also contrast Trump’s success with the weakness of the obvious Establishment candidate–Jeb Bush–to see how far the traditional formula for success in the GOP primary is falling short this time.

Why does this matter? Because disjunctive candidates only do well at the end of a particular coalition, which implies that the other side represents the start of a new one. But has that already happened with Obama’s election, or will it happen after, say, President Trump has a disastrous term?

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UCLA Law Review Vol. 64, Discourse

Volume 64, Discourse
Discourse

Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United Alexander Hertel-Fernandez & Paul Secunda 2
Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II Liliana M. Garces 18
Why Race Matters in Physics Class Rachel D. Godsil 40
The Indignities of Color Blindness Elise C. Boddie 64
The Misuse of Asian Americans in the Affirmative Action Debate Nancy Leong 90
How Workable Are Class-Based and Race-Neutral Alternatives at Leading American Universities? William C. Kidder 100
Mismatch and Science Desistance: Failed Arguments Against Affirmative Action Richard Lempert 136
Privileged or Mismatched: The Lose-Lose Position of African Americans in the Affirmative Action Debate Devon W. Carbado, Kate M. Turetsky, Valerie Purdie-Vaughns 174
The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection? Clay Calvert 230

Platform Responsibility

Internet platforms are starting to recognize the moral duties they owe their users. Consider, for example, this story about Baidu, China’s leading search engine:

Wei Zexi’s parents borrowed money and sought an experimental treatment at a military hospital in Beijing they found using Baidu search. The treatment failed, and Wei died less than two months later. As the story spread, scathing attacks on the company multiplied, first across Chinese social networks and then in traditional media.

After an investigation, Chinese officials told Baidu to change the way it displays search results, saying they are not clearly labeled, lack objectivity and heavily favor advertisers. Baidu said it would implement the changes recommended by regulators, and change its algorithm to rank results based on credibility. In addition, the company has set aside 1 billion yuan ($153 million) to compensate victims of fraudulent marketing information.

I wish I could include this story in the Chinese translation of The Black Box Society. On a similar note, Google this week announced it would no longer run ads from payday lenders. Now it’s time for Facebook to step up to the plate, and institute new procedures to ensure more transparency and accountability.

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Rule of Recognition for Party Nominations

There are many scenarios that could play themselves out at the Republican National Convention this July, but here is one that I thought I’d flag.  Suppose the loser claims that he was cheated out of the nomination by a manipulation of the rules, questionable rulings on delegate credentials, etc.  A lawsuit challenging the official result would almost certainly go nowhere, but . . .

How does a state official decide who is the Republican nominee for President?  This is almost always a ministerial task, but what if the loser argues to, say, the Secretary of State of Florida that he was the real winner of the nomination and should appear on the ballot.  (Kind of like the medieval period where there were two Popes each claiming that the other was not legitimate.) Does that Secretary of State have the discretion to decide who won?  If so, how would she decide?  And if that decision were challenged by another candidate, on what basis would a state court overturn that decision?

 

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.

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Hot Topics 2015 to 2016: A New Year Note

What an eventful 2015! Thanks to you, my friends and colleagues in media, business, investing, and academia, for engaging conversations, publications, and gatherings on a range of topics. These include Berkshire Hathaway, shareholder activism, the AIG case, celebrity contract disputes, and many more.  During 2016, I’ll continue to offer insights, interviews, and commentary and lecture widely on the vital business stories of the day. As we move into the New Year, herewith a forecast of hot topics in 2016 I’ve been following, gratefully along with many of you, in 2015:

  1. Shareholder Activistm 2.0 . A subject of ascending importance, I’m especially interested in the activist personalities and target cultures, and in 2015 commented for a profile of Carl Icahn in the  San Jose Mercury News (by Michelle Quinn) and of Nelson Peltz in the Wilmington News Journal (Maureen Milford & Jeff Wordock) as well as the case of DuPont Company on WDEL Radio (Frank Geravce). Expect to see more of the younger generation of activists—even younger than Bill Ackman and with fewer resources—as this approach to governance cements as mainstream. I am directly involved in a few of these efforts, including as a director nominee.
  1. Google and Gloms. As a cross-current against activism, I foresee continued restoration of the conglomerate business model. In 2015, I endorsed Google’s move in that direction, as noted in stories in The Omaha World-Herald (Steve Jordan), Quartz (Max Nisen), and MarketWatch (Tim Mullaney). I expect to see more conglomerates, even as many shareholder activists oppose them, and predict that the clash will be resolved by switching from a general aversion to gloms to the specific question of the model’s suitability for particular personalities, ownership structures, and corporate cultures.
  1. Berkshire Culture. I continue to believe that Berkshire corporate culture is special and full of lessons. In 2015, I was grateful to many editorial page editors for printing my op-eds on this theme. These addressed corporate culture and leadership in The Wall Street Journal (thanks Mark Lasswell & Paul Gigot); what’s so instructive about Berkshire in The Omaha World-Herald (thanks Deb Shanahan & Steve Jordan); and numerous aspects of Berkshire and Buffett in the Dealbook of The New York Times (thanks Jeff Cane & Peter Henning, Wayne State U.). More to come in 2016 as the company continues to both evolve and stay the same, as thoughtfully put in various stories in which I’m quoted, including in Fortune (Roger Lowenstein) and Reuters (Luciana Lopez).

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Guns and Abortion

I guess I should say something about the most recent discussion on guns in the United States. My take is that the answer to the problem of gun violence rests on changing culture rather than law.

The right to own a gun for self-defense and the right to have an abortion are both constitutional freedoms that many people reject as too costly (in other words, they kill lots of people). In both instances, though, if you ended the rights in question there would be plenty of lawbreaking that would be even more costly. So what is the upshot?  You can have regulations that marginally restrict the activity, but they are largely symbolic (say, banning partial birth abortion or things that are characterized as assault weapons).

Another solution involves just persuading people that the act in question is wrong or unnecessary.  This is much harder and far less satisfying because it concedes that the activity will continue, but in terms of reducing the harm it’s probably the more effective answer.

I wonder whether gun control proponents will start moving in the direction of direct protests (say, outside their local gun shop) the way anti-abortion activists target clinics.

From Territorial to Functional Governance

Susan Crawford is one of the leading global thinkers on digital infrastructure. Her brilliant book Captive Audience spearheaded a national debate on net neutrality. She helped convince the Federal Communications Commission to better regulate big internet service providers. And her latest intervention–on Uber–is a must-read. Crawford worries that Uber will rapidly monopolize urban ride services. It’s repeatedly tried to avoid regulation and taxes. And while it may offer a good deal to drivers and riders now, there is no guarantee it will in the future.

A noted critic of the sharing economy, Tom Slee, has backed up Crawford’s concerns, from an international perspective. “For a smallish city in Canada, what happens to accountability when faced with a massive American company with little interest in Canadian employment law or Canadian traditions?”, Slee asks, raising a very deep point about the nature of governance. What happens to a city when its government’s responsibilities are slowly disaggregated, functionally? Some citizens may want to see the effective governance of paid rides via Uber, of spare rooms via AirBnB, and so on. A full privatization of city governance awaits, from water to sidewalks.

If you’re concerned about that, you may find my recent piece on the sharing economy of interest. We’ll also be discussing this and similar issues at Northeastern’s conference “Tackling the Urban Core Puzzle.” Transitions from territorial to functional governance will be critical topics of legal scholarship in the coming decade.

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Conscientious Objections to Following the Law

There is one aspect of the Kim Davis situation that is not getting enough attention.  Let’s suppose that you think that officials like her should be given an exemption from following a law that they think is very wrong on religious grounds. Wouldn’t that mean that religious people would be less likely to get elected or chosen for public office?

Under the exemption scenario, the public or the appointing official would have every right to inquire about the religious beliefs of the candidate or applicant.  Now, of course, a candidate could say “My religious views would not affect my public duties” or “I will always follow the law.”  But people might not believe these statements, or just may be less inclined to take a chance on openly religious people.  Thus, I would think that creating or extending such an exemption would actually harm religious folks who want to serve.