Category: Management

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FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

Owen Fiss on Harry Kalven Read More

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Exploration and Exploitation – Ideas from Business and Computer Science

One of the key reasons I joined GA Tech and the Scheller College of Business is that I tend to draw on technology and business literature, and GA Tech is a great place for both. My current paper Exploration and Exploitation: An Essay on (Machine) Learning, Algorithms, and Information Provision draws on both these literatures. A key work on the idea of exploration versus exploitation in the business literature is James G. March, Exploration and Exploitation in Organizational Learning, 2 ORG. SCI. 71 (1989) which as far as I can tell has not been picked up in the legal literature. A good follow up to that paper is Anil K. Gupta, Ken Smith, and Christina Shalley, The Interplay Between Exploration and Exploitation, 49 ACAD. MGMT. J. 693 (2006). I had come upon the issue as a computer science question when working on a draft of my paper Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding. That paper was part of my thoughts on artificial intelligence, algorithms, and the law. In the end, the material did not fit there, but it fits the new work. And as I have started to connect with folks in the machine learning group at GA Tech, I have been able to press on how this idea comes up in technology and computer science. The paper has benefitted from feedback from Danielle Citron, James Grimmelmann, and Peter Swire. I also offer many thanks to the Loyola University Chicago Law Journal. The paper started as a short piece (I think I wanted to stay at about five to eight thousand words), but as it evolved, the editors were most gracious in letting me use an asynchronous editing process to hit the final 18,000 or so total word count.

I think the work speaks to general issues of information provision and also applies to current issues regarding the way news and online competition work. As one specific matter, I take on the idea of serendipity which I think “is a seductive, overstated idea. Serendipity works because of relevancy.” I offer the idea of salient serendipity to clarify what type of serendipity matters. The abstract is below.

Abstract:
Legal and regulatory understandings of information provision miss the importance of the exploration-exploitation dynamic. This Essay argues that is a mistake and seeks to bring this perspective to the debate about information provision and competition. A general, ongoing problem for an individual or an organization is whether to stay with a familiar solution to a problem or try new options that may yield better results. Work in organizational learning describes this problem as the exploration-exploitation dilemma. Understanding and addressing that dilemma has become a key part of an algorithmic approach to computation, machine learning, as it is applied to information provision. In simplest terms, even if one achieves success with one path, failure to try new options means one will be stuck in a local equilibrium while others find paths that yield better results and displace one’s original success. This dynamic indicates that an information provider has to provide new options and information to users, because a provider must learn and adapt to users’ changing interests in both the type of information they desire and how they wish to interact with information.

Put differently, persistent concerns about the way in which news reaches users (the so-called “filter bubble” concern) and the way in which online shopping information is found (a competition concern) can be understood as market failures regarding information provision. The desire seems to be to ensure that new information reaches people, because that increases the potential for new ideas, new choices, and new action. Although these desired outcomes are good, current criticisms and related potential solutions misunderstand the nature of information users and especially information provision, and miss an important point. Both information users and providers sort and filter as a way to enable better learning, and learning is an ongoing process that requires continual changes to succeed. From an exploration- exploitation perspective, a user or an incumbent may remain isolated or offer the same information provision but neither will learn. In that case, whatever short-term success either enjoys is likely to face leapfrogging by those who experiment through exploration and exploitation.

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Buffett on Family Business: Beat the Third Generation Curse

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

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

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

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

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

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

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Berkshire Beyond Buffett in Print and on Shelves

BBB at barnes & NobleBook publication day always feels like a big deal, enough of a professional achievement to announce it to the world, so here goes: Berkshire Beyond Buffett: The Enduring Value of Values is now available from Barnes & Noble, Indie Stores, Target, Walmart, and other shops across Europe and North America. Thanks to my wife Stephanie for the picture at left from a B&N in New York City (bottom shelf, middle, next to the new Google book).  Of course it’s online at B&N.com (ships immediately), Amazon (ships October 21), and CEO-READ.Amazon BBB Book Cover - Copy

Visit the book’s web page for a free sample chapter and other free cool stuff, including details of the multi-campus book tour. It spans from my beloved GW, to my alma maters U. Delaware and Yeshiva U., and to universities coast-to-coast from Columbia to Stanford as well as Northwestern, Wash U and many others (thanks again, diligent patient hosts!). There’s also an Author-at-Google talk which should be very interesting, and they promise a You Tube posting afterwards.

On the tour, I’ll be joined to discuss Berkshire Beyond Buffett by several Berkshire directors, numerous Berkshire subsidiary CEOs, and a number of Berkshire’s largest shareholders (thanks Sandy Gottesman, Don Graham, Tom Russo et al!). The theory? As with the book’s portrait and thesis, we’ll hear a wide variety of diverse voices singing the same singular song of a strong and distinctive corporate culture.

The reviews have begun, including a particularly comprehensive one this morning by Kevin LaCroix, as well a recap interview by ThinkAdviser yesterday. Media appearances begin with radio next week (American Talk Radio on Monday, The Motley Fool on Wednesday, Bob Brinker at the weekend) and television the following week (Betty Liu on Bloomberg Tuesday, Liz Claman on Fox Business Wednesday, and others).

While the anticipation of all these events and dialogue is exciting, there is something simply special about grasping the physical volume in hand, inky aroma, cream-soft pages, firm bound spine, and well-edited narrative. The feeling reminds me how much I love books, which makes it extra cool to write them and to behold their physical beauty, as well as their intellectual sustenance.