Category: Education

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Nothing so Lovely as a Tree

The books featured in this third top on our gallery tour—the case “Diagramming the Law”—all use images to overcome the limits of language for conveying complex legal and conceptual analysis.

We think they can point us to insights about the way law works in the world, and how it’s historically worked through images—especially images in books.

For centuries, the most common illustration in law books was a visual metaphor drawn from the natural world: the tree. As a graphic device—a chart—used in legal textbooks and treatises, trees of consanguinity and affinity helped readers grasp the legal significance of kinship for marriage and inheritance. The very first image in a printed law book, in 1473, was a tree of consanguinity.

We could have filled the entire Grolier Club exhibition hall with images, images, and more images—of trees … oh, man, could we ever (no, seriously, we could have).

Looking at them arrayed together across the big wooden tables of the Yale Law Library rare book gave new force to the idea—developed by the post-structuralist theorists Deleuze and Guatarri—that the western cultural and intellectual tradition is characterized by “arborescent thought.”

A “tree grows in our minds”? Our thinking is structured by this metaphor?

You’d better believe it—perhaps especially within the common law tradition, where the organic comparison fits so well.

By depicting legal relationships in spatial terms, trees represent those relationships more efficiently than is possible through language alone. They thus stand beside their text neither as allegories of the spirit of the whole, as we saw in our first case, nor as illustrations of a specific part, as in case two, but rather as concise charts of an extended structure of analysis.

The metaphor of the tree long persisted as a beguiling way to depict kinship and its legal consequences.

Yet the success of the tree also gave bud to new ways to crisply display legal and conceptual relationships, and those are represented throughout the case, too. On the very right-hand side, you can spy the colorful Atlas of German Law, which substantially advanced the tradition in contemporary Germany. We were happy to have its author, Eric Hilgendorf, speak at a recent symposium about the exhibit.

This post begins with an image from the seminal, first work of English jurist William Blackstone, which concerns a question of legacy admission to All Souls College, Oxford. In the words of legal historian S.F.C. Milsom, Blackstone’s creative use of graphic aids enabled him “to compress into a single chapter the mass of detailed rules which would in every possible case identify who a man’s heir was.”

The image above is an innovative descendant of hundreds of years of tradition in legal publishing.

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William Blackstone, An essay on collateral consanguinity. London: W. Owen … and R. Clements, in Oxford, 1750.

Mark S. Weiner & Mike Widener

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For the next stop on our tour, click here.

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Watch Your Head

A woman heedlessly dumps a chamber pot from a second-story window. A group of clergy physically block laity from assembling around an altar. A bearded man furtively moves a boundary stone.

Welcome to the second stop on our exhibit tour of “Law’s Picture Books.”

The illustrations in this case—“Depicting the Law”—use figurative images to depict specific legal rules. They show not the symbolic, but the concrete. What knives are prohibited on the streets in seventeenth-century Genoa? Look to the image—there is the law:

In contrast to the images in “Symbolizing the Law,” the images in this case generally don’t appear at the start of books. Instead, they appear directly next to the legal language they illustrate.

They can tell us a lot not only about the history of law, but also about the history of culture and society, because they often include rich details from daily life.

This publishing tradition has ancient roots. It begins with the thirteenth-century Sachsenspiegel, an extraordinary compilation of Germanic customary law that remains unsurpassed in its seamless integration of text and image. And it continues up through the modern era—for instance in the charming Textbook of Aerial Laws that we were delighted to put on display.

Yet there also are major gaps within this history: on the European continent, such images largely disappear in eighteenth-century publishing, and there are almost none in the entire Anglo-American tradition. We don’t know why, and we hope our exhibit will encourage people to look for answers.

What about that heedlessly-dumped chamber pot?

Joost de Damhoudere’s treatise on criminal law stood out from the competition for its lively depictions of specific crimes, shown in a suite of five dozen woodcuts. The illustration that begins this post shows pedestrians fleeing the falling household garbage—or worse—unlawfully thrown onto public streets. The book was one of the most successful books in the entire history of legal literature, appearing in thirty-nine editions in four languages between 1554 and 1660. Twenty-three of these editions were illustrated, making it also one of the most successful illustrated books in any genre.

Scholars know that the illustrations were Damhoudere’s idea—he railed against lazy and expensive illustrators for failing to provide images for some his chapters.

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Joost de Damhoudere, La practique et enchiridion des causes criminelles. Louvain: Etienne Wauters & Johan Bathen, 1555. Illustrations by Gerard de Jode. Acquired with the John A. Hoober Fund.

Mark S. Weiner and Mike Widener

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To continue the tour, click here.

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Our Tour Begins

Welcome to our virtual gallery tour of “Law’s Picture Books” at the Grolier Club, which we introduced in yesterday’s post. Our gallery consists of ten cases, each of which features images that serve a particular function or goal in legal publishing.

Today we’d like to show you the first case, “Symbolizing the Law.” It features books that contain allegorical images of law. What do law’s images do? For one, they represent law’s abstract ideals—indeed, images often convey those ideals much more effectively than can words alone.

You could talk to someone all day long about how law is no respecter of persons, or about the importance of its being applied with neutrality. Or you could just show them an image of Lady Justice. Allegorical images are central to the history of law book publishing—and, in the case of Lady Justice, to its brand identity.

Viewed collectively, the images of Lady Justice in this case illustrate a number of trends. You can see her transformation from an allegorical image to a trademark, much like the barber’s striped pole. In her early incarnations, Lady Justice is often appropriated to legitimate the power of the state or the sovereign, as in the statutes of Venice and Genoa that we have on display. Later, she’s used as a polemical device in the literature of law reform and social protest, as in the pamphlet we feature calling on the governor of California to pardon the radical labor leader Tom Mooney.

There are a number of curious things to recognize about the images in this case.

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Law’s Picture Books

As the Wall Street Journal reported a few weeks back (along with the New Yorker and the Frankfurter Allgemeine), the two of us recently opened an exciting exhibition in New York about the history of illustrated law books.

The exhibit is called “Law’s Picture Books: The Yale Law Library Collection,” and it includes over 140 items drawn from Yale’s unique collection in the field—which Mike developed. The exhibit is accompanied by a 220-page, full-color exhibition catalogue, as well as a companion exhibit at Yale Law School.

Here are a few snaps from the gallery at the Grolier Club, near the corner of Park and 60th, where the exhibit is on display until November 18:

Over the next ten posts, we’d like to share some images from the exhibit with the readers of Concurring Opinions, and we’d like to reflect a bit on their meaning. We think they’re fascinating, mysterious, beautiful, and intriguing—and that they can teach us a lot about law.

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The Meaning of Patriotism

Last fall, I began reading Hillbilly Elegy. I wanted to see how the author, J.D. Vance, would deal with the question of class. I was particularly interested to see if his experiences at Yale Law School were anything like mine. They were in one respect – we were both introduced to sparkling water at large law firms and couldn’t understand why anyone would drink the stuff.
I finished reading the book after the election. Vance’s memoir is more an effort to deal with his dysfunctional upbringing than an explanation of the white working class’s electoral preferences. There are no more than a half dozen political comments in the volume. Before the election, I quickly glossed over them. After the election, the asides, however brief, rankled. The one to which I kept returning was his declaration that his people were “patriotic.” Yet, he gave the idea of patriotism no content. It made me reflect on my own upbringing.
My working class family certainly thought of itself as patriotic. My father had fought in World War II and he identified strongly with that service. When we moved out to the suburbs, he bought a flagpole and mounted it in the center of our front yard, flying the flag every day the weather permitted.
Beyond the flag, however, my parents’ patriotism had content that they frequently repeated. Most of the litany was “this is a great country because” and the most important because was that the country embraced us. All four of my grandparents had come from Italy around the turn of the twentieth century. My parents kept telling us as children that we would be “American.” For my brother and me, with our blue eyes, blond hair, and inability to speak any language other than English, this was a source of amusement. But we also understood that our parents meant that we were to embrace American values.
The first of those values was the importance of education. Two of my four grandparents had been illiterate. My parents had been the first in their families to complete high school and they felt deprived of the opportunity to go further. They spent our childhood telling us that education was the American secret to success and that we must be prepared to seize the opportunities America offered.
In Catholic school, the nuns also taught us about what it meant to be American. They prepared us to do battle with our perceived enemies – the Protestants, who we were told would challenge our faith. But we were also taught that we could be loyal Americans and good Catholics because of the separation of church and state. The need to separate private devotion from public leadership was central to our understanding of citizenship. We saw tolerance as the great American virtue, and learned that it was something we owed others if we were to demand it for ourselves.
Next in my parents’ litany of “this is a great country” was their belief that the United States was strong and prosperous because, unlike Italy, it got things done. As a child, I read Mark Twain’s, A Connecticut Yankee in King Arthur’s Court, which captured the idea of the United States as a nation of tinkerers open to innovation. My father, who was a carpenter, liked the idea. He was proud that he had voted for every winning presidential candidate from Franklin Roosevelt to Jimmy Carter – irrespective of party. His winning streak ended with Ronald Reagan. He didn’t vote for Reagan for the same reason he didn’t vote for George McGovern: he saw both as radicals who put commitment to ideology over pragmatism, that is, ahead of doing what the nation needed at the time.
These notions of patriotism informed my family’s definition of effective leadership. My first cousin became the Republican Majority Leader of the New York State Senate when Mario Cuomo was the Democratic governor. He liked to say that he respected Cuomo and Cuomo respected him. The two of them had come from similar backgrounds and while they often differed politically, respect meant thinking of each other as intelligent, competent and willing, when the necessary time came, to cut the deals necessary to get the state’s business done.
These clear distinctions between public leadership and private commitments informed my own sense of professionalism. I remember my surprise in the eighties when I sat down with a new faculty member. She began the conversation by announcing, “I am a feminist.” I thought to myself: “If you were to look at the sum total of my beliefs, you could say I am a feminist, too. But what does it mean to tell somewhat that in your first extended discussion? Does it mean that you have made up your mind before you hear the facts? That you put loyalty to the cause ahead of loyalty to the institution that just hired you?”
My cousin the majority leader, who was substantially older than I, died a while ago. In 2005, I stopped by to see his widow who was dying of cancer. When I walked in the door, in the only political conversation we ever had, the first thing she said to me was, “Does anyone still support George W. Bush? We had his number in 2000. We can’t believe anyone still supports him.” My cousins, lifelong Republicans, felt betrayed by the direction their party had taken.
Is there anything left of the notions of patriotism that my working class family once held dear? It’s hard to find them in today’s politics. But the academy is changing. When I moved from California to the Midwest ten years ago, I was pleased to find a less ideologically divided faculty despite a range of political views. My new colleagues told me that the faculty had been more factionalized a few years earlier. But the most polarizing of the professors had left, and those who remained were determined not to rekindle the conflicts. They had recreated a leadership ideal that made commitment to the whole more important that uncompromising purity or partisan loyalties. Let us hope that there is a way to do so for the country as a whole.

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On Ree Dolly, J.D. Vance and Empathy for Low-Income Whites (or, What Hillbilly Elegy is Good for)

This is my fourth and final installment about J.D. Vance’s Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.

One striking aspect of the wide-spread kudos heaped on Hillbilly Elegy is that readers do not seem put off by J.D. Vance.  That is, many (most?) readers appear to sympathize (for lack of a better word) with him, even if they cannot empathize with the circumstances of his upbringing and his struggle socially to transition to Yale Law.  When you consider how many outlets exist for poking fun at low-income, low-education whites, sometimes referred to as “white trash” (think:  Wal-Mart shoppers,  lots of reality television shows poking fun at the white working class, lots of hateful Tweets demeaning this group, the presumptive Trump voter), this attraction to Vance is surprising.  Is it really possible to “clean up” so well, so quickly?  I knew Yale law degrees were valuable, but Vance’s seems to be working miracles.

This generally positive response to Vance reminds me of a similar response to Ree Dolly, the 17-year-old heroine of the movie “Winter’s Bone,” which won the Grand Jury prize at Sundance in 2010.  If you saw the film and remember it, that is likely because Jennifer Lawrence starred as Ree.  Indeed, for this her breakout role,  Lawrence was nominated for the Academy Award for best actress. (The film was nominated for best picture).  Ree is the daughter of what would widely be considered a “white trash” family.  Yet she is nothing short of heroic as she courageously rises above the meth-making and hillbilly-version-of-organized-crime circumstances of her extended family.  She takes plenty of hard knocks–literally as well as psychologically–in the quest to prove her father’s death so that she can prevent loss of the (very modest and “trashy”) family home to the bail bond company that secured her father’s release after his last foray into the illicit drug scene.  Along the way, however, it is clear that Ree prioritizes the well-being of her younger siblings–and keeping her nuclear family together in the face of her mother’s mental incapacity and father’s death.  I recorded some of my thoughts about “Winter’s Bone,” Ree and our reaction to her and her milieu back in 2010 here and here.   The most salient quote from one of those posts follows:

Film critics have touted Ree as brilliant, a feminist heroine, a modern-day Antigone.  Like many film goers to whom I have spoken, they look past her trappings and her kin, and they see her value.  This is progress—but then, Ree’s character and courageous acts are exceptional.

A.O. Scott, in his summary of that year’s films under the headline “Hollywood’s Class Warfare,” called Ree “exotic” and “an other.”  He wrote of many of that years protagonists (which included Mark Zuckerberg!):

What they all really want is entrée into the middle class, which is why these movies can set them up as objects of audience sympathy and identification.

So Ree is brilliant and we can sympathize and identify with her, while J.D. is compassionate and discerning.  (And if Ree is Antigone, what figure from Greek tragedy might J.D. be?)  I guess I’m surprised by these assessments because I grew up a little too close to where both of these “characters” come from.  As I have suggested elsewhere in this series of posts, maybe my response, my skepticism is a case of familiarity breeding contempt.  (And to be clear, I feel contempt for neither Ree nor J.D., but my relationship to both is complicated by considerable familiarity with their milieu.)

Or maybe I’ve just heard so much denigration of low-income whites in my years as an academic that I expect the worst (at least in this regard) from liberal elites.  A number of scholars of socioeconomic class have observed that hillbillies, rednecks and such are the only “identity” group not protected by political correctness (see here, here and here, collecting sources; plus herehere, and here).  Given that it’s ok to engage in micro-aggressions (and worse!) against low-income, low-education whites, what gives for Ree and J.D.?  How can they be heroes?  Presumably because  both rise above their circumstances.  (Interestingly, both also remain loyal to parts of their families, despite those family members’ anti-social practices).

If we coastal elites have this capacity to respond with compassion to Hillbilly Elegy despite the provenance of its protagonist, maybe the book has some redeeming value after all.  Maybe it’s good for something besides satisfying our voyeuristic curiosity about the enigmatic Trump voter (and, of course, making J.D. Vance a very rich man).  Maybe, in fact, it’s particularly useful for educators–including legal educators.

In January, I participated in an AALS 2017 panel on “Cultivating Empathy.” I spoke about how the use of film excerpts in both my Law and Rural Livelihoods and Feminist Legal Theory courses helped to foster student empathy for low-income, low-education whites.  My law school, UC Davis, features an overwhelmingly left-leaning student body, and as a community we were nearly universally flummoxed by the outcome of the 2016 Election.  In a sense, our law school is its own echo chamber.  Yet I noticed that when I showed even brief excerpts from films such as “The Accused,” “North Country,” and “Winter’s Bone,” students responded with great empathy to characters like Sarah Tobias, Josey Aimes, and Ree Dolly–all low-income, low-education, working-class white women.   If we see these socioeconomically disadvantaged whites first as human beings and only secondarily as  (presumptive) Trump voters,  it’s not so hard to empathize with them, to process the stories of their lives, to “get into their heads” in some small way and to imagine having to make the very difficult choices they must make to survive, never mind thrive.

After that AALS panel, a  law professor who teaches at a state university law school in the midwest approached me and said he thought my plea for a more empathic approach to low-education whites could help him and his colleagues better understand their students, most of whom are conservative to one degree or another, and many who are Trump supporters.  Of course, not all conservative white voters are low-income and/or low-education (an angle on the 2016 election often lost on the media; see more here and here) but some overlap exists.  So, wouldn’t it be great if law profs could take their generally positive reaction to J.D. Vance and Hillbilly Elegy and use it to inform how they engage their own students who may be similarly situated to J.D. before he got that fancy schmancy Yale Law degree.  In this regard, we should credit Yale Law’s Amy Chua, who saw value in Vance as a student and mentored him while we was at Yale.  (One can’t help wonder the extent to which the sensationalism of Chua’s Battle Hymn of the Tiger Mother inspired similar sensationalism in Hillbilly Elegy, but I digress).

UC Davis Undergraduate Education has just launched a #firstgen initiative.  In its initial phase, the program encourages professors who are the first generation in their family to get a college degree to “out” themselves (as by wearing to class these cool T-shirts they have supplied to us) so that first gen students can find us, seek us out for mentoring.  The program also aims to educate faculty about first gen student perspectives, encouraging us to be transparent about expectations and grading, reminding us that not all of our students will have parents who can coach them toward success, who will understand the significance of opportunities on offer, let alone how to actively seek out those opportunities.  Among the startling figures that have come to the fore with this new UC Davis initiative:  42% of our undergrads are first gen, a number that no doubt reflects the enormous racial and ethnic diversity of California and our student body.  Further, more than 300 faculty members from across campus have self identified as first gen by joining an online faculty directory.  At an initial gathering, I noticed that many of them/us appeared to be non-Hispanic white, though perhaps that is a generational thing.  Our law school also has a #firstgen program in the works.  A few other law schools already boast these, and numerous undergraduate programs do, too (see more here, here, herehere, and here).

These “#firstgen” initiatives are important in that they remind us to see and assist  not only racial and ethnic minority students, but also would-be class migrants who are white.  We must be mindful of what all of these students need to succeed in a very different world than the one from whence they come.  White skin is not a magic tonic.  And as much as Hillbilly Elegy annoys me (see prior posts here, here and here for elaboration), if the book is good for something , that something may be cultivating empathy among those who can help aspiring class migrants–whatever their race or ethnicity, remembering that white people “have race,” too–to achieve the increasingly elusive “American Dream” via access to higher education.

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Empowering Law Students in a Time of Trouble

The presidential election of 2016 ended with a stunning upset. The result left many people concerned about the future. As a law professor, I think I have a special responsibility to think about those concerns, because my students are becoming lawyers at a time when our nation may need lawyers more than ever.

This fall, I’ve taught a small group of first-year students. We’ve worked on much more than civil procedure doctrine; we’ve worked on lawyering.   Students have to attempt uncomfortable arguments, analyze in unaccustomed ways, write “like lawyers,” and attend to details of facts and procedure.

Before the election, I’m not sure I’d explained why lawyering matters. As John Adams said in 1780, this is “a government of laws and not of men,” that is, a government of laws and not of individuals. If, as many fear, President-Elect Donald Trump acts as though he does not understand what a government of laws means, we can despair, or we can do what lawyers do: use our power to keep government within the law and not use government power in pursuit of individual gain or to injure some groups while helping others.

Law students sometimes lack an appreciation for the primacy of law. When we examine the Constitution, some are surprised that Article I is about the Congress, the body charged with enacting laws. Article II concerns the executive branch, which is charged with carrying out the laws. While students (and many lawyers) think the courts are more important, we only hear about them in Article III.   The creation of law comes first; execution, interpretation and enforcement come later.

The idea that federal government officials use their power solely as authorized by the Constitution and by laws enacted by Congress is plainly an aspiration and not always the reality. The smaller the gap, the more confident people feel that we are protected from government going awry.

Students in civil procedure read many cases in which government goes awry, starting with Pennoyer v. Neff. The Supreme Court said no when a court allowed a plaintiff to use government power to limit a defendant’s rights in his property without giving the defendant notice in advance. Even a court is not permitted to use power except consistently with the law. No government official or government institution is permitted to act illegally – not the president, not the Congress, not a judge, and not a police officer.

Over the course of my career, my colleagues and I have frequently had to insist that government officials act legally. Some of these officials have been Democrats and some have been Republicans, but all are subject to the law. We’ve argued and won child custody and family violence cases by demanding that the judge decide the case based on the law and not out of gender bias. We’ve persuaded courts not to convict a defendant unless the state has demonstrated beyond a reasonable doubt that the defendant is guilty of a crime. We’ve forced state government agencies not to deprive poor people of Medicaid when federal law says that Medicaid is due.

Because we are a government of laws and not of individuals, people can be asked to believe that government officials try to act within legal boundaries. When government fails, people have the right to demand an end to illegality.

What do law students need to know about lawyers, law and power? My students learned from Buffalo Creek that residents of a flooded valley believed they would never be compensated for their devastating losses. They were convinced that the coal company which caused the flood possessed all the power and that they would be denied justice.

Some residents asked a lawyer to help. Why a lawyer and not a minister or a legislator? Because the lawyer’s job is to make the system work for all, to insist that we have a government of laws, not of individuals. That kind of government is fair and unbiased. Under that kind of government, a coal company cannot make courts to do whatever is good for the company, regardless of law and facts. With the help of a lawyer and his firm, the residents won, and the coal company lost.

Imagine that you are an African-American who has concluded from this presidential campaign that nobody is standing up for you. When you say that racism is behind police killings in your community and that your right to vote is attacked because of racism, you are told that only racists accuse people of racism. Imagine that you are an immigrant or a refugee. You are told you don’t belong here, and you are told that you will be thrown out. Imagine that you are a woman who objects to being groped and demeaned. You are told you are overly sensitive and that nobody does those things; they just talk about them. Imagine that you are Jewish or Moslem. You are told that you cause more trouble than you are worth to this society. Imagine that you are disabled. You are told that you are a freak who can be mocked with impunity.

I am not imagining these threats. What prevents people from concluding that our next group of government officials will not be scrupulous about fighting the threats and complying with the law? What hope do people under attack have in the aspiration that this is a government of laws and not individuals?

As lawyers-to-be, my students need to understand that they will have power to share. As lawyers, we are entrusted with knowing the law. We see when government officials are overstepping their boundaries. We can help educate the public, we can offer help, and we can put our knowledge and skills to work. I hope my students have learned some lawyering this semester. Even more important, I hope they appreciate the power of lawyers to enhance the lives of others who need our nation to have a government of laws and not a government of individuals.

Post-Neoliberal Higher Education Policy

The Obama Administration made at least two major contributions to higher education policy. It cracked down on some for-profit colleges, taking on a consumer protection role largely missing from the Bush years. Donald Trump is unlikely to continue that initiative, and may roll it back.

Obama also encouraged income-based repayment (IBR) of student loans. It appears that “the repayment plan proposed by candidate Trump is not too far from the current repayment plans already in existence”–but few know exactly how the policy will play out once a new set of think tankers and lobbyists take over the Department of Education (DOE).

I surveyed higher education finance policy in 2015, in a piece for the Atlantic. I felt at the time that the Sanders plan was by far the best, and that Clinton’s plan could lead incrementally to a better higher ed landscape. However, over the summer I co-authored a longer article on the foundations of higher ed policy with Luke Herrine, Legal Coordinator of the Debt Collective. Herrine does both scholarly and advocacy work. In a project organizing for-profit college students to obtain debt discharges, he saw some of the worst bureaucratic failures of the current DOE.

The same concerns I’ve expressed about health policy also dog education policy. Extreme complexity and baroque targeting of aid make it hard to sustain political support. Just as private insurers have done as much to undermine as to implement the ACA, the servicers at the core of DOE’s student loan management have serially failed the students they are supposed to help.
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What’s Buffett’s Secret to Great Writing?

symposium-coverWe all write more than ever today, but do we communicate well?  As one group, corporate directors, pondered how to communicate effectively to shareholders, they  turned to the gold standard.  They wondered, what most distinguishes Warren Buffett’s annual missive to Berkshire Hathaway shareholders, and asked me, as a student of these writings for two decades, for the answer.

Clarity, wit and rationality are hallmarks to emulate, I said, along with how Buffett personally pens lengthy sections to read more as literary essays than corporate communications.

But, far more important, these attractive qualities are products of a deeper distinction with greatest value. Every Buffett communiqué has a particular motivation: to attract shareholders and colleagues—including sellers of businesses—who endorse his unique philosophy. Tenets include fundamental business analysis, old-fashioned valuation methods, and a long time horizon.

A recurring motif of Buffett’s writing is the classic rhetorical practice of disagreement. Buffett recites conventional wisdom along with multiple reasons why it is inaccurate or incomplete. He then differentiates Berkshire with themes like autonomy, permanence, and trust.

In a new article I wrote at the request of the National Association of Corporate Directors (available free here), I parse recent examples to show that Buffett’s dispatches often work on several levels simultaneously. Think of circles on a dartboard, with the bull’s-eye as Berkshire’s distinctive practices, which Buffett relentlessly explains. Surrounding that core explication, in concentric circles, Buffett lauds specific Berkshire businesses or personnel, contrasts their industry or competitors, and opines on related public policy debates.

By arguing in this artful manner, Buffett hones Berkshire’s corporate culture while answering rivals and critics alike. Leaving an unmistakable effect on the conglomerate’s millions of owners, managers, and employees, Buffett’s essays are a model of tone-at-the-top governance.

Buffett’s essays are rich with history, putting current debates in broad context, and steeped in statistics, anchoring argument in data. Buffett contrasts and compares; jokes and quips; and prefers to praise by name but criticize by category. Even when confronting critics, Buffett’s essays avoid sounding defensive.

Above all, the work expresses who Warren is—a confident, astute and joyous capitalist. Yale University writing professor William Zinsser says that “Motivation is at the heart of writing.” Buffett loves Berkshire, his curated life’s work defined by unusual shareholders, adroit managers, and idiosyncratic principles. Munger has commented: “Warren’s whole ego is poured into Berkshire.”

More than the elements of style, such motivation is a gold standard worth aspiring to.

Download the full article free here.

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In 1996, based on a law review symposium they led together, Warren Buffett chose Lawrence Cunningham to compile his famous shareholder letters into the book, The Essays of Warren Buffett: Lessons for Corporate America, now in its 4th edition and sold worldwide in a dozen languages.

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FAN 118 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents

Note: Below is a heretofore unpublished letter from Floyd Abrams. It follows another one recently posted on this blog by Professor Nadine Strossen. Vice-Chancellor Max Price, to whom both letters were primarily directed, was invited to reply. (Links have been added for reference purposes.) 

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July 24, 2016

Dear Vice-Chancellor Price:

I am a practicing lawyer in the United States who has devoted the better part of my professional career to defending freedom of expression. I am also a Visiting Lecturer at the Yale Law School, have written two books and many articles about freedom of expression around the world, and have spoken about the topic in a number of nations including, by way of example, India, Japan, Sri Lanka, Malaysia, Great Britain and—of particular relevance—South Africa. I was one of a number of foreign scholars who participated in advising the drafters of the South African Constitution. I have spoken about issues relating to freedom of expression in Johannesburg, Cape Town and Pretoria. I have read your statement about the decision of University of Cape Town to withdraw the invitation to Flemming Rose to deliver this year’s  TB Davie Memorial Lecture. I take the liberty of writing this letter to you because your decision is not only of consequence to your university and to your country but to democratic nations and universities in them throughout the world.

Floyd Abrams

I would like to make two brief observations at the outset.

The first is that I am not writing to you to urge you to adopt or to apply American standards in deciding who may be invited. As your statement correctly observed, the framers of your Constitution quite deliberately adopted a general right of free expression subject to certain specific limitations relating to propaganda for war, incitement of imminent violence, and “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.”

The second is that I am not writing to suggest that the cancellation by a university of an invitation to speak made to a  prominent  public figure is unique to South Africa. Quite the opposite is true. In the United States, a number of invitations have been made and then withdrawn by universities to prominent individuals including a former Secretary of State and the current head of the International Monetary Fund after protests were feared if the speaker was permitted to offer her views. Indeed, it is precisely because of my strong belief that the decisions of those American universities—and there are many of them– were so shameful and so contrary to basic principles of academic freedom that I take the liberty of writing to you.

UnknownAt the outset, nothing in the South African Constitution lends any support to your decision. Nothing that Mr. Rose has ever said can possibly be said to constitute propaganda for war. He has never urged violence against anyone or sought to incite it. Your statement observes that “Mr. Rose is regarded by many around the world as … someone whose statements . . . possibly amount to hate speech.”. I appreciate and honor your unwillingness to say that you credit any such an insupportable charge. But if you are unwilling to do so—and there is no basis for doing so—you can hardly rely on the notion of incitement as a basis for cancelling the invitation. I note in that respect that even the clause of the South African Constitution that limits free speech protection to advocacy of racial hatred or the like does so only when the speech at issue “constitutes incitement to cause harm”.

Writing from afar, I cannot comment specifically on your expressed concern about the security risks of permitting Mr. Rose to appear except to say that your nation, as mine, has experienced security risks in the past and when aware of them has been able to protect speakers and listeners alike. The security question is not whether it can be provided; it is whether freedom of speech on your campus is so important that it is worth doing so, with all its risks. Your Academic Freedom Committee obviously thought it was. From any perspective that honors academic freedom, that is a necessary conclusion.

Dr. Max Price

Dr. Max Price

The same is true of your stated concern that inviting Mr. Rose may have the perverse effect of limiting rather than vindicating academic freedom since he “represents a provocatively—potentially violently—divisive view.” Of course, Mr. Rose himself offers provocative views. I am sure that is why he was invited. But he hardly “represents” a “potentially violently” view about anything. The risk of violence is at all not from him but from those who simply do not accept core notions of freedom of expression and academic freedom. To yield to those who cannot abide freedom of expression that they find abhorrent is to abjectly surrender to them.

There remains the first basis articulated by you for rescinding the invitation to Mr. Rose—concern about provoking conflict on campus. It is, I am well aware, awfully easy for people thousands of miles away from your campus and whose views you have not sought, to presume to advise you that even if there is a risk of conflict on your campus that follows or accompanies a speech by Mr. Rose, it is one worth accepting. Who needs, you may well ask, such second-guessers? All I can say is that those of us who weigh in on the issue from abroad do so because we care about your country, are impressed by its Constitution, and are often in awe of your Supreme Court and its liberty-protecting rulings. We also offer our views because the decision to disinvite by your great institution is one that will be viewed carefully by academic institutions around the world as they decide how to respond in similar circumstances.

The very first TB Davie Memorial Lecture was delivered by Chief Justice Centlivres, the Chancellor of your university, on May 6, 1959. He then summarized what he characterized as Professor’s Davie’s “articles of faith” as follows: “The first was that a university is primarily a centre of learning, the second that a university flourishes only in an atmosphere of absolute intellectual freedom, and the third, that the pre-eminent virtue of university life is intellectual integrity,.” Guided by those precepts, it is difficult to understand or accept the cancellation of Mr. Rose’s appearance.

Respectfully submitted,

Floyd Abrams

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News Update: Michael Cardo, UCT: A tale of two lecturers, PoliticsWeb, July 25, 2016 (“This coming weekend, the University of Cape Town will host Hamza Tzortzis, a highly controversial lecturer who propagates a radical version of Islam. His visit to the campus follows hot on the heels of an executive decision to bar Danish journalist Flemming Rose from delivering the 2016 TB Davie Memorial Lecture on academic freedom.”)