Law

(Eugene Volokh) Lenta.ru so reports. The bill would criminalize “actions in public, demonstrating clear disrespect to society and committed with the intent to insult the religious feelings of believers,” with the maximum punishment being one year in prison, or three years if they are committed. The final vote on the law is expected by the end of the week. Thanks to my father Vladimir Volokh for the pointer.

From the New York Times: After listening to two months of testimony on the New York Police Department’s stop-and-frisk practices, Judge Shira A. Scheindlin left little doubt about her views of their effectiveness in helping detect criminal behavior. . ....

RECENT HITS (for all papers announced in the last 60 days) TOP 10 Papers for Journal of Contracts & Commercial Law eJournal March 22, 2013 to May 21, 2013 RankDownloadsPaper Title 1 340 The Fiduciary Obligations of Financial Advisors Under...

This is the eighth in a series of posts reviewing Margaret Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Daniel Schwarcz is an Associate Professor of Law at the University of Minnesota School of Law. One...

(Kenneth Anderson) At the Lawfare blog, a communication from an unidentified “senior national security official” in the Obama administration on the leak investigation against Fox News’ James Rosen.  It’s striking that a senior official would decide to communicate these views via a blog – though Lawfare (whose editor-in-chief is the former Washington Post journalist turned Brookings scholar Benjamin Wittes) has evolved into something closer to an edited magazine than a blog, with a readership that includes the key national security community in DC.  The unnamed official’s comments raise issues touched on by some of the analyses here; I leave it to others here at VC more expert than I in these areas to say what it means. An excerpt: [T]he Administration has been roundly [criticized] for suggesting that a reporter who knowingly solicits classified information might be committing a crime. At the risk of violating the old adage about not picking a fight with someone who buys printer’s ink by the barrel, I want to take this on. The Department of Justice did not claim that the Fox News reporter in the [Stephen Jin-Woo] Kim case committed a crime merely by publishing classified information. According to the Government’s filing in the case, the reporter in question actively asked people with access to classified information to break the law by providing him classified information he could publish. He used false names and “dead drop” email accounts to do so. In other words, he wasn’t someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so.

(Eugene Volokh) Apropos the recent posts on the Administration’s leak investigations and the press, I thought I’d note three items by our own Jonathan Adler from when a similar issue arose during the Bush Administration: Reporting Is Not a Crime: Conservatives Should Think Twice About Criminalizing Journalism (National Review Online), A Troubling Prosecution: United States v. Rosen Has Its Thorns (National Review Online), and Prosecuting the Press (a chain of posts on the subject here at the Conspiracy).

Posted by D. Daniel Sokol Daniel Greene, Georgia State University - Department of Finance, Omesh Kini, Georgia State University and Jaideep Shenoy, Tulane University - Department of Finance discuss Buyer Power in Conglomerate Acquisitions. ABSTRACT: There is a burgeoning literature...

Chauncee D. Smith (Fordham University School of Law) has posted Deconstructing the Pipeline: Evaluating School-to-Prison Pipeline Equal Protection Cases Through a Structural Racism Framework on SSRN. Here is the abstract: This article posits that a wide range of U.S. education and criminal justice policies and practices -- such as zero tolerance regimes, academic sorting, and school district financing methods -- collectively result in students of color being disparately pushed out of school and into prison. Vast empirical and qualitative research indicates that this dynamic process, known as the "school-to-prison pipeline", wreaks havoc upon today's minority population. Both anti-pipeline legal scholarship and equal protection case law tend to examine school-to-prison pipeline problems through an isolated, or perhaps overly-restricted, lens which inhibits the development of a jurisprudence that allows the pipeline's systemic invidiousness to meaningfully redressed. This article attempts to advance normative viewpoints and legal doctrine by deconstructing the pipeline through a structural racism framework.

Lawrence Cunningham’s Essays of Warren Buffett is a useful and well-ordered collection of Buffett’s thinking on a number of topics.  As such, it serves as a profoundly useful textbook of clear thinking for corporate America. The book also highlights an aspect of Warren Buffett to which less attention is paid now than will be in the future. That is of Warren Buffett as history’s greatest Philosopher of Practical Capitalism.    In the last decade many people have lost trust in our capitalist system.   Yes, we like the material abundance that it generates, but who can subscribe to and defend the rampant, unchecked, and amoral version of capitalism that we have seen recently.  We are all too familiar with the cast of ugly characters:  The bankers who lost millions while still collecting their outsized bonuses, Bernie Madoff who masqueraded behind his façade of public spirited financier and philanthropist while he was actually ripping off widows and orphans. How can we subscribe to a version of capitalism that seems to regularly allow the greedy to endlessly and senselessly enrich themselves while bringing the rest of us to the brink of financial ruin?  Although many of us were brought up on Adam Smith’s invisible hand and the free market of Milton Friedman that delivers goods, services, welfare and justice to all, they way this has played out practically over the last decade is indefensible.  In a bygone era this unpleasant side of free market capitalism was at least part of what drove Karl Marx to write Das Kapital, and what lead to whole societies practicing Socialism, creating so much of the human misery of the last century. For those of us who still believe in capitalism, free markets and maximum individual liberty as expounded by John Stuart Mill, what is the answer to these excesses. Can we not find a new Milton Friedman, Hayek or Adam Smith for this century. Someone who intelligently and charismatically clarifies why big government and more regulation are not the answer. But the new defenders of free markets are not towering figures – indeed quite the opposite.  Can you name one charismatic defender of free markets around today who is a match to Mill, Friedman, Hayek or Smith?  I can not. Perhaps a new kind of politics can do it:  British PM David Cameron is a   Compassionate Conservative who does not want to make government smaller, he only wants to make it more efficient.  Indeed, he had Britain’s socialized healthcare system celebrated at the London 2012 Olympics in front of a world stage. But Cameron and his ilk are deeply unpopular in today’s Britain, and the jury is still out as to whether he will be able to take a victory lap for his austerity program – the way Margaret Thatcher and Ronald Reagan were able to do.  And in the US, while Paul Ryan was a much more credible figure than Sarah Palin, he still does not seem to quite capture what we are after.  Especially in an age where politicians are as reviled as bankers. Into this breach steps Warren Buffett.  Not in the cloak of a politician – like his father – nor that of a thinker, speaker or writer.  But as a businessman and an investor. Yet most of the chattering classes still see him as only a businessman and investor, and have not yet cottoned on to Buffett’s Practical Philosophy of Capitalism.  This is philosophy is one in which it is perfectly ok to get obscenely rich, and in which free market capitalism works without excess.   In this version, you get rich by “telling the truth and selling cheap”, to use the words of Rose Blumkin, the Jewish refugee founder of Nebraska Furniture Mart.  You do business within a web of deserved trust, contracts are short, accounting is conservative and options are properly accounted for.  Rather than lying and obfuscating for personal gain, you apply the golden rule and tell your partner what you would have liked to know if you had been in his shoes. And if the proverbial hits the fan, Salomon scandal style, you fess up in

(Eugene Volokh) I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee: (b) ... The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of § 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors: (1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult; (2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child; (3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child; [Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV] (16) Any other factors deemed relevant by the court. Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights of those parents who don’t favor “a life of service,” or whose vision of “a life of service” is different from the court’s. And a recent case, Wood v. Wood (Tenn. Ct. App. May 16, 2013) (nonprecedential) (emphasis added), suggests that this isn’t just an empty phrase that would be equally satisfied by all reasonable educational plans: Mother argues that this factor favors her because she values education more than Father as she has a college degree whereas Father was suspended from college for failing grades. In addition, Mother argues that she cares more about the child’s education because she enrolled the child in a college preparatory school. While we agree that Mother appears to care substantially about the child’s education, even Mother agreed that the proposed school in Union City is a good school for the child to attend. In addition, while Father’s own college endeavors proved unsuccessful, nothing suggests that Father does not value education for the child. Further, beyond school, Father testifies that he exposes the child to a church environment, which may help the child prepare for a life of service. Accordingly, we conclude that this factor favors neither parent. Yet preferring more religiously observant parents over less observant ones, whether because “a church environment” promotes “a life of service” or for some other reason, strikes me as a violation of the First Amendment; see also Part I.D of my NYU Law Review article on the First Amendment and child custody. The origin of the phrase in Tennessee law seems to be Bevins v. Bevins (Tenn. Ct. App. 1964); the Tennessee statute seems to, among other things, codify part of the Bevins court’s analysis. Here’s the relevant passage: The real matter to be considered is what is the best thing to do with these children that they may be left in a home where they are nurtured, loved, appreciated and where the environment is such that is conducive not only to th