Law

The Essays of Warren Buffett: Lessons for Corporate America are as rich as the man, judging by the variety and depth of commentary contributed to this week’s on-line symposium. A dozen luminaries addressed, often with very different viewpoints, issues such as target audience; thematic approach; selected content; what is Berkshire?; and even who is Warren Buffett? Seventeen years after hosting an in-person conference on the subject, I remain as impressed as ever at the varied impressions that can be generated by the same set of material. Herewith a recap of this week’s contributions, at least as I saw them, leading off with a hearty thanks to all who contributed to the symposium.  Audience. The broadest theme revealed disagreement about the audience for the book. Sy Lorne set the stage, noting the many audiences Warren addresses when writing the letters, nominally shareholders of Berkshire Hathaway Inc. but really a broader range of constituencies. Yet Sy suggested The Essays, if not the letters, were targeted to investors, as he worried that they make investing look too easy; similarly, Jill Fisch seemed to think they were for investors when observing that Buffett’s lessons cannot readily by adapted by retail investors. Students seemed to be seen as the target audience when Guy Spier characterized The Essays as a textbook while Steven Davidoff said The Essays are for everyone (the “common man”), a point also once made by New York Times columnist Joe Nocera when he recommend that President Obama read The Essays. I appreciate that people from all these walks of life have been fans of the book and I’m grateful for that. Yet I confess that Kelli Alces struck closest to my sense of the intended audience for The Essays, as her remarks reflected my sub-title: Lessons for Corporate America. Approach. A slight disagreement appeared in relation to the value of reading Buffett’s letters fully in chronological order versus the selective and thematic rearrangement that distinguishes The Essays. Chris Begg appreciates the “logical architecture” of The Essays while Sy put in a good word for the full-chrono approach. My goal was to identify the core themes and present them in a dynamic sequence, omitting repetition and esoteric data, while revealing both the consistent principles applicable to given topics and how Buffett’s approach evolves over time. The approach works, in part because, as Carol Loomis explained, Buffett has been highly consistent over four decades of writing his letters and, as Bill Bratton’s careful tracing of the history of Berkshire’s divided policy attests, readers can see quite clearly the precise way in which his thinking has changed. As Chris wrote, The Essays enables readers “to witness the progression of Buffett’s thinking as it evolved over the decades.” Themes.  Don Graham and Bob Mundheim related personal experiences on topics that animate The Essays, respectively, the potentially valuable role of shareholders in advising management and the unusually modest role bankers play in deal-making at Berkshire. How The Essays animate such anecdotes is revealed poignantly in Deborah DeMott’s copiously-annotated review and assessment of Berkshire’s skepticism about agents. The discussion Deborah quotes about Berkshire’s acquisition of the Scott Fetzer Companies in 1985 was essentially identical to the story Bob related of Berkshire’s acquisition of Benjamin Moore & Co. in 2000. The pairing of Bob and Deborah’s pieces nicely links practice and theory. What’s Berkshire? Jill and Kelli each explored how Berkshire is unusual or unique, sharing my sense that the company cannot be replicated, perhaps because Buffett is sui generis. He may have that distinction either because of his unconventional nature, as Don suggests, or his command of psychology, as Ken Shubin Stein hypothesizes. But Kelli rightly notes the lessons it offers for other corporate constituencies on many topics.  She cites disclosure, a point that dovetails wit

Posted by D. Daniel Sokol Ricardo Biscaia (CIPES - Centro de Investigacao de Politicas de Ensino Superior), Paula Sarmento (FEP - Faculdade de Economia do Porto) discuss Cost inefficiency and Optimal Market Structure in Spatial Cournot Discrimination. ABSTRACT: This paper...

Patrick Metze (Texas Tech University School of Law) has posted Speaking Truth to Power: The Obligation of the Courts to Enforce the Right to Counsel at Trial (45 Texas Tech Law Review (2012)) on SSRN. Here is the abstract: Professor...

Constance B. Backhouse (University of Ottawa - Faculty of Law (Common Law)) has posted A Feminist Remedy for Sexual Assault: A Quest for Answers (Sexual Assault Law, Practice, and Activism in a Post Jane Doe Era, pp. 725-739, Elizabeth Sheehy, ed., University of Ottawa Press, 2012) on SSRN. Here is the abstract:In this final chapter (chapter 28 of "Sexual Assault Law, Practice, and Activism in a Post Jane Doe Era"), Constance Backhouse returns to the very questions posed by Jane Doe’s activism and the Garneau Sisters who followed her: what is a feminist response to sexual assault? As a historian, Constance looks back at harsh sentencing laws for convicted rapists, revealing how embedded they were and remain in racial fear of and hatred directed at Africans and African-Canadians. She argues that feminists should not support prisons and should continue to explore restorative justice options, advocating more, not less, delegation of self-governance to offenders, in contrast, perhaps, to the directions identified by Gillian Balfour and Janice Du Mont. Constance points to a 1974 Ontario decision that awarded compensation to the complainant as a criminal remedy as an example of how to ensure restitution for women. She urges us to divest from criminal law responses and instead invest in the creative possibilities for recognizing and reimagining the harm of rape that feminist artists and authors can offer.

(Orin Kerr) Congratulations to Sri Srinivasan for being confirmed today to a judgeship on the DC Circuit. The final vote was a squeaker — 97-0. There is going to be a lot of speculation that Srinivasan may be nominated to the Supreme Court someday, so it’s perhaps worth noting that Justice Ginsburg has indicated that she is not going to retire this coming year. If Ginsburg announces her retirement at the end of the next Supreme Court term in late June 2014, however, Srivinasan would have served slightly over a year on the DC Circuit. By comparison, Justice Thomas served 16 months on that court before being nominated to the Supremes.

Posted by D. Daniel Sokol Steffen Hoernig (Nova School of Business and Economics, Lisbon, Portugal), Marc Bourreau (Telecom ParisTech, Department of Economics and Social Sciences), and Carlo Cambini (Politecnico di Torino, DIGEP) analyze Fixed-Mobile Integration. ABSTRACT: Often, fixed-line incumbents also...

(Ilya Somin) In his speech on drones and the War on Terror today President Obama made many valid points. But he also continued to elide some key issues. On the plus side, Obama correctly emphasized that the use of drones against terrorists is not inherently illegal nor immoral, that drones are often more discriminating and less likely to inflict civilian casualties than other military tactics, and that US citizens can be legitimate targets when they become enemy combatants. Unfortunately, Obama also continued to dance around the more problematic aspects of his drone policy: who decides whether a particular individual being considered as a potential target is really a member of Al Qaeda and how much evidence is needed to back up such a determination. I emphasized these issues in my recent Senate Judiciary Subcommittee testimony on drones, and here. Here are the most relevant parts of Obama’s speech on these questions: In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes. Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set. All of the above strikes me as entirely defensible so far as it goes. But it leaves unanswered the crucial question of how we determine that a given individual really is a member of “al Qaeda and its associated forces.” It also ignores the issue of how we decide which groups qualify as associated forces of al Qaeda – another difficult definitional issue that I noted in my testimony. The 2001 Authorization for the Use of Military Force that constitutes the legal basis for the War on Terror only authorizes military action against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” North Africa and the Middle East are full of Islamist groups whose ideology is in at least some ways similar to that of al Qaeda and who support its goals to at least some degree. We are not and should not be at war with all of them. At the same time, the president is surely right that our military efforts cannot be limited to the narrowest possible definition of al Qaeda. For reasons outlined by the president and co-blogger Ken Anderson, among others, I think it would be a serious mistake to abjure the use of drone strikes entirely. At the same time, we cannot allow boundless executive discretion in this area either. There must be tighter and clearer legal limits on presidential power in this field. As President Obama himself puts it, there should be “strong oversight of all lethal action.” But it is not yet clear exactly what kinds of measures Obama has in mind or would accept. In a later part of the speech, Obama lists several possibilities, but does not actually endorse any of them: Goin

Evelyn Buggs, a longtime member of the staff of the Office of the Solicitor General, passed away today.  Here are the thoughts of several attorneys with whom she worked. Chief Justice John Roberts, who served as Principal Deputy Solicitor General: I was saddened to learn of Evelyn’s passing. She was my secretary when I worked in the Solicitor General’s Office, and she worked faithfully and tirelessly to serve the Department she cherished and the country she loved. Associate Justice Elena Kagan, who served as Solicitor General: Evelyn Buggs was a true public servant. In her kind, unassuming way, she was the glue that held the Solicitor General’s Office together. She never wanted any praise or recognition, yet she was always there when you needed something, always working behind the scenes, always helping someone. That was Evelyn’s gift to all of us—quietly keeping everything running smoothly, year after year. As so many others who have worked in the Solicitor General’s Office, I consider myself lucky to have known and worked with Evelyn. She will be deeply missed. Solicitor General Donald Verrilli: The Office of the Solicitor General has lost a treasured colleague and friend.  Our dear Evelyn Buggs has passed away, after a long illness.  Evelyn served in the Office for more than two decades.  No one was more devoted to the mission of the Office, and no one has contributed more over the years to its successful functioning.   Evelyn knew for some time that she would not survive her illness.  She asked that she be able to leave the Office as she entered it — quietly and without fanfare, focused on each day’s responsibilities, until she could work no more.  She stayed at her post until just ten days ago.  Her dedication, and the warmth of her smile, never flagged.  The dignity and courage she showed these past few months will be a continuing inspiration to all of us who were privileged to work with her during that time. Former Solicitor General Gregory Garre: Evelyn’s passing is an enormous loss for the Office of the Solicitor General, and a personal tragedy for all of us who were blessed to have known her and worked with her.  Evelyn was not only a great asset to the Office of the Solicitor General and Department of Justice whose excellent work was indispensable to the ability of the Office to function and meets its many demands.  But she exuded a calmness, strength, and positive attitude that rubbed off everyone around her. Every day — for decades — she came to work at the Office of the Solicitor General and, with a quiet force, made those around her better public servants and better people just by the example she set. It is difficult to think of the Office without her, and her warm smile.  I will always be grateful to her for her kindness, dedication, and friendship. Former Solicitor General Paul Clement: Evelyn Buggs was the very model of a public servant. She was professional and dedicated to the work of the office beyond measure and was a source of strength and inspiration to her colleagues.  She will be greatly missed. Former Solicitor General Seth Waxman: Evelyn Buggs was among the gentlest and kindest people I’ve ever had the privilege to know. I hope her memory will be a blessing for the many colleagues whose lives she touched so sweetly. Former Acting Solicitor General Neal Katyal: Evelyn was, without a doubt, the most selfless colleague with whom I have ever worked.  Never once did I hear “I need X, or I need Y.”  Instead it was always — at every turn — about the good of the Office.  Even when she was deeply ill, she made the long commute from Baltimore to OSG every day, which had to be physically demanding in ways few of us can understand. She was classy, quietly capable, and much beloved. In association with Bloomberg Law

James E. Moliterno (Washington and Lee University - School of Law) has posted Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client’s Confidences to Rectify the Wrongful Conviction of Another? (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011) on...

Juscelino F. Colares (Case Western Reserve University School of Law) has posted Paths to Carbon Stabilization: How Foreign Carbon-Restricting Reforms Will Affect US Industry, Climate Policy and the Prospects of a Binding Emissions Reduction Treaty (47 Journal of World Trade 281 (2013)) on SSRN. Here is the abstract: This article investigates new paths for achieving a binding treaty on emission stabilization. Because industry support for US participation in such an agreement is essential, an empirical analysis of lobbying expenditures during Congress’s last attempt to pass emission-restricting legislation is used to gauge industry support and opposition for such reform. The article qualifies its finding of no major spending asymmetry and explains the role of ideological and structural features of the US political system in impeding the passage of any such bill. Scepticism aside, it argues that a shift in US climate policy is coming due to: (i) the implementation of foreign carbon-restricting regimes; and (ii) the US exporters’ response to these reforms. A microeconomic analysis demonstrates that US exporters will increasingly elect carbon-efficient technologies to minimize costs and adjust to a changing regulatory environment. This shift in the carbon intensity of production will cause these industries to form a majority coalition with pro-environment groups in favour of domestic and global emission-restricting reforms. Because these developments lead to the use of border measures designed to curb carbon leakage and address trade concerns, the article makes a few suggestions for reducing potential conflicts between the trade and climate change regimes.