Friday, May 6, 2016
The Institute for Law Teaching and Learning 2016 summer conference is focusing on "the many ways that law schools are preparing students to enter the real world of law practice." The conference is being held at Washburn University School of Law. The agenda and registration information are available here.
With this post I warmly welcome John Linarelli to the Business Law Professor Blog as a guest blogger for the month of May. Professor Linarelli, Chair in Commercial Law at Durham Law School, has crossed the Atlantic and different disciplines throughout his career. His research engages with issues of inequality, specifically focusing on economic and commercial issues. Recent scholarly publications include his forthcoming co-authored book, to be published with Oxford University Press, Beyond Global Capitalism: Reclaiming the Future of International Law and his 2015 article Concept and Contract in the Future of International Law, 67 Rut. U. L. Rev. 61. Interested readers can view Professor Linarelli’s full academic bio and his SSRN page for more information. Look for new BLPB content from Professor Linarelli later this month.
Understanding that American academics and practicing lawyers may be unfamiliar with Durham University, Professor Linarelli provided us with an overview. He writes a helpful introduction and provides a charming view into some different academic traditions:
Durham Law School usually ranks as one of the top 5 law schools in the UK. In the UK-wide Research Excellence Framework (REF) exercise in 2014, of which all university participate, we ranked third. Our students are incredible and a good number go off to the big City of London law firms upon completion of their practice qualifications. Lord Justice Hughes on the UK Supreme Court is an alum. We also run several LLM programmes, including in Corporate Law, International Trade and Commercial Law, European Trade and Commercial Law, and International Law and Governance.
It is commencement season – our commencement at Belmont University is tomorrow. Commencement season means commencement speeches. Commencement speeches often comes with an extra helping of cliché advice. If I had to guess, no piece of cliché advice is more common in commencement speeches than “follow your passion in your career.”
For example, in Steve Job’s famous Stanford commencement speech he said:
You’ve got to find what you love. And that is as true for your work as it is for your lovers. Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do.
Jim Carey, in an otherwise pretty original and somewhat odd commencement speech, included some of the cliché “follow your passion” advice when he said:
My father could have been a great comedian, but he didn’t believe that was possible for him, and so he made a conservative choice. Instead, he got a safe job as an accountant, and when I was 12 years old, he was let go from that safe job and our family had to do whatever we could to survive. I learned many great lessons from my father, not the least of which was that you can fail at what you don’t want, so you might as well take a chance on doing what you love.
Like almost any cliché, the “follow your passion” instruction contains some wisdom. I do think there are students who take conventional jobs out of fear, and fear shouldn’t drive a decision as important as career choice. That said, I also think this cliché advice can do a good bit of harm. I see students overly focused on trying to find work that fits with their current interests --- music, sports, travel, etc. --- or work that they think will “change the world" and make them feel good in the process. As a result, students often ignore work that may seem ordinary, but is just as important, if not as glamorous.
Accounting, mentioned in Jim Carey’s speech, is actually one of those areas that students often pass over as “ordinary work” or turn to reluctantly, out of fear. Few people I know have a natural passion for accounting. But I have seen a passion for accounting develop over time. As the philosopher William James said:
Action seems to follow feeling, but really action and feeling go together; and by regulating the action, which is under the more direct control of the will, we can indirectly regulate the feeling, which is not.
Most work is “ordinary” work. Even the splashy work celebrated in commencement speeches (and indirectly celebrated by the choice of commencement speakers) has ordinary elements, or was, at the very least, preceded by less unique work. I worry that students, attempting to follow the advice of Jobs, Carey, and others, bounce from job to job trying to find work that makes them feel good immediately and all the time. While I don’t necessary think “do what you love” is bad advice, I think it needs to be tempered with “find work the world needs and that fits your talents,” “do good work wherever you are,” and “know that most work is needed and important, even if it does not grab headlines.” I wish we took more time at our universities to celebrate the day-in, day-out grind of the faithful, ordinary worker. And I am trying to impart to my students that their future work matters, even if it seems common and doesn’t receive much recognition.
Thursday, May 5, 2016
Today I hit “submit” on an article I was asked to review for an international law journal. Because the process required blind peer review, I won’t be any more specific other than to say that the article related to a topic that I have written and spoken about extensively over the past few years. Unfortunately, the author did not cite any of the main (or even ancillary) articles on the topic and instead focused on a number of disparate theories that barely related to the title or topic of the piece. In short, the article had a few good pages and might make a few decent articles, but only after major revisions. I knew what the article was missing because I have read almost every other piece written on the topic.
As a junior academic, I admit that the most frustrating part of the law review process is the lack of peer review, at least in the United States. My colleagues in the EU review articles of 10-12,000 words on average and generally have 1-2 other reviewers deciding on publication of a scholar’s piece. The review period tends to be 6-8 weeks (or so I have been told) and generally journals require exclusive submission. In worst case scenarios, authors can wait several months for an acceptance or rejection. Although I am not a fan of the exclusive submission process, I do prefer the peer review model. It may be subjective, but it’s no more subjective than having articles accepted by 2Ls and 3Ls, who may have no expertise or familiarity with the topic they are reviewing.
A 2014 essay by Josephine Potuto raises another issue with the U.S. law review system—how the articles are edited. The abstract states simply:
Law professors publish in law reviews, not peer-reviewed journals. They are edited by law students. The editing process can be both irritating and exasperating. From experiences lived and those shared by colleagues across the country, I provide concrete examples of where law student editors go wrong, and also explain why.
Finally, in an effort to improve the process, I recommend that faculty advisors and editors read some of my co-bloggers’ insights on the topic.
Happy grading to all and I wish you a productive summer. I will be writing less frequently in May due to a honeymoon and then a research trip to Cuba, which of course, I will blog about. I'm also writing a law review article on Cuba, so hopefully editors won't hold this column against me!
Wednesday, May 4, 2016
In follow up to my post yesterday, my trusted and valued co-blogger Joan Heminway asked a good question (as usual) based one of my comments. My response became long enough that I thought it warranted a follow-up post (and it needed formatting). Joan commented:
you say: "there should be no problem if, for example, Delaware corporate law did not allow a for-profit entity to exercise religion for the sole sake of religion. I think that is the case right now: that’s not a proper corporate purpose under my read of existing law." Are you implying that a corporate purpose of that kind for a for-profit corporation organized in Delaware would be unlawful? Can you explain?
My response: I am suggesting exactly that, though I concede one might need a complaining shareholder first. My read of eBay, and Chief Justice Strine’s musing on the subject, suggest that an entity that is run for purposes of religion (not shareholder wealth maximization) first and foremost, is an improper use of the Delaware corporate form. (“I simply indicate that the corporate law requires directors, as a matter of their duty of loyalty, to pursue a good faith strategy to maximize profits for the stockholders.”) Chancellor Chandler explained in eBay:
The corporate form in which craigslist operates, however, is not an appropriate vehicle for purely philanthropic ends, at least not when there are other stockholders interested in realizing a return on their investment.
I think this definition of philanthropic easily includes religious ends (or should).
Chancellor Chandler continued:
Jim and Craig opted to form craigslist, Inc. as a for-profit Delaware corporation and voluntarily accepted millions of dollars from eBay as part of a transaction whereby eBay became a stockholder. Having chosen a for-profit corporate form, the craigslist directors are bound by the fiduciary duties and standards that accompany that form. Those standards include acting to promote the value of the corporation for the benefit of its stockholders.
I don’t see how this should play any differently if it applied to religion. Consider, for example, this possible spin:
Jane and Carrie opted to form Religion, Inc., as a for-profit Delaware corporation and voluntarily accepted millions of dollars from BigCo as part of a transaction whereby BigCo became a stockholder. Having chosen a for-profit corporate form, the Religion directors are bound by the fiduciary duties and standards that accompany that form. Those standards include acting to promote the value of the corporation for the benefit of its stockholders.
Further to the point, Chancellor Chandler added:
I cannot accept as valid . . . a corporate policy that specifically, clearly, and admittedly seeks not to maximize the economic value of a for-profit Delaware corporation for the benefit of its stockholders—no matter whether those stockholders are individuals of modest means or a corporate titan of online commerce.
Thus, a for-profit business can be religious in nature—e.g., make religious books or products or sponsor religious seminars—but as a Delaware corporation, the purpose of the entity must be to “promote the value of the corporation for the benefit of its stockholders.”
This is the potential problem with the Hobby Lobby case as to Delaware law. There, the companies had a lot to lose:
If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.
These losses were justified in that case as being necessary to exercise religion, and not to further a corporate purpose. Of course, they had to make that claim, because otherwise they couldn’t get the benefit of RFRA, which requires demonstrating “an honest conviction,” which could be problematic if the reason was couched in business terms, and not religious ones.
Incidentally, I think the business judgment rule should probably protect this decision, anyway, but I don’t know that Delaware law would support that view. In fact, it shouldn't based in recent case law, and I think plainly eBay says no on that one. The Supreme Court says RFRA protects the right to pursue religious ends. It doesn't mean Delaware law does. (Note: Hobby Lobby is not a Delaware entity, so the rules are admittedly different.)
Thus, my fix seek to balance these competing possible outcomes. Tell shareholders your plan, and they can’t question it later, even if that plan costs the company $475 million in losses. Where the law has evolved, I don't think it's fair to suggest it was part of the bargain for all companies, thought maybe investors in Hobby Lobby did know. But it doesn't matter. I thought craigslist’s long-standing business plan was sufficient notice, too. Chancellor Chandler disagreed.
Last week, Hamdi Ulukaya, founder and CEO of Chobani, announced a 10% company stock grant to all company employees. Chobani joined the ranks of high profile stock grants including Whole Foods, Starbucks, Apple and Twitter. Stock grants, while more common in tech industries, are a part of hybrid corporate law-employment law conversation on shared ownership. Employee ownership in companies can occur in several different forms such as ERISA-governed benefit plans where the company stock issued or bought as a part of a retirement saving plan. Alternatively, a stock grant may be structured as a bonus plan, a standard compensation, or a vesting employee benefit eligible after threshold years and types of service. All of these plans fall under the rubric of shared ownership. In 2015, the National Center for Employee Benefits estimated that over 9000 companies participated in some form of shared ownership.
In a similar vein, actors in the hit (and record-breaking with 16 Tony Nominations) musical Hamilton have entered into a profit-sharing agreement with producers. The deal is different for these actors, but the sentiment is the same in sharing profits, aligning interests, and promoting employee loyalty.
Shared ownership plans, especially the ERISA-governed ones can have specific tax and financing benefits for companies. Creating a shared ownership plan, however is often focused on creating certain firm-specific benefits such as recruiting and retaining talent, and improving firm performance by aligning interests between employees and the company. The recruitment and retention aspect can be especially valuable to start-up firms that struggle to compete with mature firms on salary and reputation. Empirical studies have found improved workplace performance, on average, for firms with shared capitalism plans, with positive effects observed most strongly when combined with policies such as low supervision, decision-making participation, and competitive pay.
I note these stories with particular interest for several reasons. The first is that I am routinely embarrassed by how little play I give employees in my corporation class . I seem all too happy to ignore this very important piece of the corporate power puzzle, engine for the machine, etc., etc. Second, I have been looking at shared ownership in the context of a recent research project, so look for more on that topic in a separate post once the project progresses. Third, my sense is that social enterprise movement will bring with it greater demands for shared ownership as a means to address social factors such as retirement security, employee autonomy and wage inequality. Look for more of these stories in the headlines and an emphasis on it in scholarship.
I am looking forward to attending and presenting at Emory University School of Law’s upcoming conference (June 10-11) focused on the art and science of teaching transactional law and skills. I received word yesterday from Sue Payne, the Executive Director of Emory Law's Center for Transactional Law and Practice, that the keynote speakers for the conference are "the dynamic duo of Martin J. Katz and Phoenix Cai will deliver a keynote address entitled – 'Encouraging this Particular Form of (Very Fun) Madness – Roles for Deans and Faculty Members.'" The notice se sent to me on the keynote speakers offers the following information about Professors Katz and Cai and the conference as a whole:
Marty Katz is Dean and Professor of Law at the University of Denver, Sturm College of Law. Under his leadership, Denver Law developed and implemented a major strategic plan that included initiatives in experiential learning and specialization. He is a founding board member of Educating Tomorrow’s Lawyers, a national consortium of law schools that serve as leaders in the experiential education movement. Dean Katz’s recent publications include “Facilitating Better Law Teaching – Now” (Emory Law Journal) and “Understanding the Costs of Experiential Legal Education” (Journal of Experiential Learning).
Phoenix Cai is the founding director of the Roche International Business LLM Program and Associate Professor of Law at the University of Denver, Sturm College of Law. The Roche LLM in International Business Transactions is an intensive and experiential graduate program designed to train both U.S. and foreign lawyers in private transactional law. Prior to joining Denver Law, Professor Cai was a corporate lawyer specializing in both domestic and international mergers and acquisitions, banking, finance, and securities law.
Don’t miss this opportunity to hear Dean Katz and Professor Cai share their thoughts about how deans and faculty members can promote excellence in transactional law and skills education.
For more information about the Conference, including a list of the many other esteemed presenters and the topics they will cover, go to our conference website. If you would like to register for the Conference, please go here.
I hope to see many of you there. My presentation focuses on teaching the drafting of corporate bylaws. I will say more on it in this space later.
Tuesday, May 3, 2016
Submissions: manuscripts or abstracts must be submitted electronically to Professor Michelle Harner, Chair-Elect of the Section on Business Associations, at email@example.com August 24, 2016.
The AALS Section on Business Associations and the AALS Section on Comparative Law are pleased to announce a Call for Papers for a joint program to be held on January 5, 2017, at the AALS 2017 Annual Meeting in San Francisco. The topic of the program is “Business Law in the Global Gig Economy: Legal Theory, Doctrine, and Innovations in the Context of Startups, Scaleups, and Unicorns.”
Startups and entrepreneurs have long played an important role in the U.S. economy. From Henry Ford to Mark Zuckerberg, entrepreneurs have revolutionized the ways in which their customers receive products and services. As Phil Libin, CEO of Evernote, has explained, “There’s lots of bad reasons to start a company. But there’s only one good, legitimate reason, and I think you know what it is: it’s to change the world.”
That philosophy continues today as entrepreneurs disrupt markets and challenge business and legal norms. Traditional notions of the firm, fiduciary duties, contractual bargains, and optimal capital structures may not aptly fit entrepreneurial approaches. Indeed, entrepreneurs’ business models, financing needs, and operational objectives require lawyers and scholars to rethink governance, capital structures, and regulatory schemes that may limit or impede further innovation, both nationally and transnationally.
A recent Vanity Fair article discussing Citizens United is making the rounds. (I saw it on Facebook!) The article notes:
It had already been established, in Buckley v. Valeo (1976), that anyone has a First Amendment right to spend his or her own money advancing his or her own cause, including a candidacy for political office. Citizens United extended this right to legally created “persons” such as corporations and unions.
I have been giving some more thought to whole “personhood” discussion of late, and my thoughts have taken me back to both Hobby Lobby and Citizens United. What follows is a long blog post that pulls together my thoughts on these two cases in an admittedly not well developed way. But it's a start (though I really should be grading).
What factors generate a healthy secondary market in securities? That is my question for this week. I have found myself struggling with this question since I was first called by a reporter writing a story for The Wall Street Journal about a work-in-process written by one of our colleagues, Seth Oranburg (a Visiting Assistant Professor at Chicago-Kent College of Law). The article came out yesterday (and I was quoted in it--glory be!), but the puzzle remains . . . .
Secondary securities markets have been hot topics for a while now. I followed with interest Usha Rodrigues's work on this paper, for example, which came out in 2013. Yet, that project focused on markets involving only accredited investors.
Seth's idea, however, is intended to prime a different kind of secondary market in securities: a trading platform for securities bought by the average Joe (or Joan!) non-accredited investor in a crowdfunded offering (specifically, an offering conducted under the CROWDFUND Act, Title III of the JOBS Act). [Note: I will not bother to unpack the statutory acronyms used in that last parenthetical expression, since I know most of our readers understand them well. But please comment below or message me if you need help on that.] Leaving aside one's view of the need for or desirability of a secondary market for securities acquired through crowdfunding (which depends, at least to some extent, on the type of issuer, investment instrument, and investor involved in the crowdfunding), the idea of fostering a secondary securities market is intriguing. What, other than willing buyers and sellers and a facilitating (or at least non-hostile) regulatory environment, makes a trading market in securities?
Sunday, May 1, 2016
"new study shows just 37% of U.S. high school seniors were academically prepared for college-level math & reading" https://t.co/cejUEdgX6b— Stefan Padfield (@ProfPadfield) April 29, 2016
Saturday, April 30, 2016
Securities regulations have increasingly required disclosure of, and shareholder input into, corporate executives’ pay. For years, public corporations have been required to disclose the salaries of named executive officers, Dodd-Frank instituted (nonbinding) shareholder say-on-pay votes, and very soon, companies will be required to disclose the ratio of the CEO’s pay to median employee pay.
Now, a new study by Hongyan Li and Jin Xu looks at the effect in the context of CFO pay.
Prior to 2006, the SEC required disclosure of the pay of five highest paid executive officers, including the CEO. In 2006, however, the SEC changed its regulations to require disclosure of CFO pay, regardless of whether the CFO was one of the most highly paid. The authors used the change as a natural experiment to discover the effect of disclosure on both CFO salary levels and CFO behavior.
Using a sample of S&P 1500 firms from 1999 through 2013, they find that at firms that had not previously disclosed CFO pay, CFO pay increased at a greater rate than at firms that had been disclosing CFO pay all along. More worryingly, they also found that after companies began disclosing CFO pay, the quality of financial reporting deteriorated. I.e., it seems as though once the CFO position becomes more prominent – and more highly paid – CFOs feel more need to “sing for their supper” in the form of generating positive (and potentially artificial) results.
That said, there seems to be room for further analysis. The authors divide companies into 4 groups based on whether they reported CFO pay prior to the 2006 changes (always reported, often, seldom, and never) and they find that on some measures, the increase in earnings management is confined to the seldom and/or often groups. So the story is not as simple as disclosure = deterioration. Still, the study highlights flaws in a regulatory philosophy based on the disciplining effects of disclosure.
Friday, April 29, 2016
Earlier this month, B Lab, the 501(c)(3) nonprofit organization that oversees the certification of B corps, announced that it will move its October 2016 retreat from North Carolina because of North Carolina’s controversial House Bill 2 (“HB2”).
In an April 12 e-mail to “Friends of the B Corp Community,” the B Lab team wrote:
Standing for inclusion, the global B Corp community has decided to relocate the 2016 B Corp Champions Retreat and related events from North Carolina in light of the newly-enacted State law HB2 which limits anti-discrimination protections, particularly for members of the LGBT community.
Immediately, B Lab will work with the North Carolina B Corp community and others to get HB2 off the books and make North Carolina more inclusive and business-friendly.
B Lab also linked to this longer statement in that e-mail.
The Model Benefit Corporation Legislation and the laws following the Model require that a third-party standard be used by benefit corporations to measure their social and environmental impact. B Lab’s standard is currently the most popular standard, but it is not required or even mentioned by the benefit corporation statutes. Allowing for various third-party standards helps prevent the benefit corporation law from being overly political. I do wonder, however, if B Lab’s public stand on this issue will make the benefit corporation laws harder to pass in more conservative states, because of B Lab’s large role in cultivating both the certified B corp and benefit corporation communities.
Further, this situation leads to a question I asked in 2012 --- would B Lab exercise their veto power and deny certification to Chick-fil-A, if Chick-fil-A applied for certification and managed the required social score? As I wrote in 2012, I don’t see anything in the benefit corporation laws that would prevent Chick-fil-A from becoming a benefit corporation, but I am less sure if Chick-fil-A would be successful in obtaining certification from B Lab. B Corp certification is separate from the entity formation process, and the certification is under the control of B Lab rather than the government.
Also, I am not a nonprofit expert, but I wonder whether B Lab is flirting with the lobbying restrictions for 501(c)(3)s, especially when it promises to “work with the North Carolina B Corp community and others to get HB2 off the books.” They also seem to be involved in the attempts to pass benefit corporation laws in states across the country. (Thoughts from nonprofit lawyers or professors welcomed in the comments or by e-mail...I am told that 501(c)(3)s are allowed to do an "insubstantial" amount of lobbying).
In any event, in seems that non-profits, social enterprises, and traditional for-profits are becoming more and more active in social and political debates. And these organizations are often powerful, influential players.
Thursday, April 28, 2016
Hello, everyone - I'm passing this along in case any of our readers have an interest, or know anyone who might have an interest. And if anyone needs convincing as to why they should spend a semester or a year in New Orleans, email me privately and allow me to extol the city's virtues.
Tulane Law School is currently accepting applications for a visiting tax professor for either the Fall of 2016 or for the entire 2016-2017 Academic Year. Visitors would be expected to teach basic Income Tax and other tax related courses. Applicants at any career stage are encouraged. To apply, please submit a CV along with a statement of interest and any supporting documentation. Applications and questions may be directed to Vice Dean Ronald J. Scalise Jr. at firstname.lastname@example.org. Tulane University is an equal opportunity/affirmative action employer committed to excellence through diversity. All eligible candidates are invited to apply.
Wednesday, April 27, 2016
The shimmering mirage of summer has cast its spell on me, which means I am laboring under the delusion that I will have so much more time to do the thinking, learning, and writing that I want to be doing. My work is increasingly dependent upon statistical evaluations that others do, and occasionally involves my own work in the area. Several years ago I attended an empirical workshop for law professors at USC (something like this) taught by Lee Epstein and Andrew Martin that was an instrumental introduction and my only formal foundation in the area. I have the bug and want to learn more! But I don't know the best way to go about it-- piecemeal or full immersion--or even what all is available. I compiled my research below and share the list for interested readers. Comments encouraged by anyone who wants to share their experience with a listed option, general advice, or add to this meager list.
Empirical Skills Resources:
Introduction/Immersion Workshops like:
- George Mason’s empirical workshop
- Duke/Northwestern’s causal inference workshop
- SELS pre-conference empirical training
- Estimate--Michigan State’s summer econometrics workshop
- ICPSR summer offerings –
Free electronic courses:
Recomended text books/books
Epstein/Martin Introduction to Empirical Research
Enroll in a course at your university (audit or pursue another degree) such as basic statistics or an Econometrics course.
Tuesday, April 26, 2016
Beer is good. It's an opinion based on serious research. A lot of beer laws are not good. They often restrict beer distribution, limits sales, and generally make it harder for us to access good beverages.
There have been some benefits of these restrictions. The main one, probably, is that it provided the storyline for Smokey and The Bandit:
Big Enos (Pat McCormick) wants to drink Coors at a truck show, but in 1977 it was illegal to sell Coors east of the Mississippi River without a permit. Truck driver Bo "Bandit" Darville (Burt Reynolds) agrees to pick up the beer in Texas and drive it to Georgia within 28 hours. When Bo picks up hitchhiker Carrie (Sally Field), he attracts the attention of Sheriff Buford T. Justice (Jackie Gleason). Angry that Carrie will not marry his son, Justice embarks on a high-speed chase after Bandit.
(Note that IMDB's description -- "The Bandit is hired on to run a tractor trailer full of beer over county lines in hot pursuit by a pesky sheriff." -- seems to have confused the film with the Dukes of Hazzard. Crossing state, not county, lines was the issue and Rosco P. Coltrane was not part of the Bandit films. I digress.)
In my home state of West Virginia, getting craft beer, until 2009, was hard. Beer with more than 6% ABV could not be sold in the state. All beer in the state is "non-intoxicating beer" but the definition was raised from 6% so that it now includes (and allows) all malt-based beverages between 0.5% and 12% ABV.
Monday, April 25, 2016
Congratulatons to the Newly Appointed Dean of the J. Reuben Clark Law School at Brigham Young University!
Although other outlets in the blogosphere (including the blog he founded, The Conglomerate) beat us to the punch by a few weeks (see, e.g., here and here), I want to take time out today to congratulate D. Gordon Smith, currently Glen L Farr Professor of Law at BYU Law, on his appointment as Dean of BYU Law commencing May 1. (That's this coming Sunday!)
I have had the privilege of working with Gordon a number of times over the years (perhaps most notably in the formation and leadership of the AALS Section on Transactional Law and Skills and with The Conglomerate), and he is a consummate professional. He represents his institution impeccably as a scholar and servant of the academy and the profession. He has great judgment and is a kind, considerate soul. I know that he will be a great leader for BYU Law.
My only regret is that Gordon will likely have to step back from the many leading roles he has had in pushing business transactional law scholarship forward. His service as a symposium sponsor, conference panel organizer, moderator, discussant, and presenter are so appreciated by me. [sigh]
Nevertheless, I admit it's great to see another strong business law teacher, scholar, and servant in a law deanship. I am delighted for him. And I wish him all the best.
Sunday, April 24, 2016
ICYMI, ICYMI, FOMO, and TMI are in the dictionary now: https://t.co/So9cOQi6S7— Merriam-Webster (@MerriamWebster) April 20, 2016
Saturday, April 23, 2016
I wanted to drop a quick plug for the latest addition to the blawgosphere: The Surly Subgroup: Tax Blogging on a Consolidated Basis. My colleague, Shu-Yi Oei, is one of the founding members, and they've put together a really nice group of professors with a variety of interests who will post about a range of tax-related issues. They just went live this week, but already there are a couple of posts up that may be of interest to BLPB readers, including one on the new regulations for Uber and Lyft drivers in San Francisco, one on whether organizations that distribute marijuana are eligible for charitable organization status for tax purposes, one on Donald Trump's tax proposals, and one on Prince's tax dispute with the French government.
If you're like me, you have no idea what the phrase "Surly Subgroup" means. No matter; Shu-Yi's helpfully posted an explanation here. Basically, affiliated corporate groups may file a consolidated tax return, raising questions about the extent to which losses in one can offset the income of another. "Separate Return Limitation Year" (SRLY) rules govern that question for corporations that have losses prior to their affiliation with the group. And those rules allow the "subgrouping" of corporations that were affiliated with each other prior to joining the larger group - hence, SRLY subgroups.
Friday, April 22, 2016
Last week I attended the Midwest Academy of Legal Studies (MALSB) Conference in Chicago, IL. MALSB is one of the 12 regional associations of legal studies professors in business schools that has an annual conference. The Academy of Legal Studies of Business (ALSB) is the national association and the annual national conference is similar to AALS.
Given that I started my academic career at a law school, and still attend some law school professor conferences, I notice differences between law school and business school legal studies professor conferences. While there are plenty of similarities between the conferences, I note some of the differences below.
Pedagogy Presentations. While law school professor conferences do usually address pedagogy in a few panels, the business school legal studies conferences I have attended seem to have a much stronger emphasis. For example, I think the regional and national ALSB conferences tend to have 30%+ of the presentations dedicated to pedagogy. Many of the business school legal studies conferences have master teacher competitions as well, where finalists present their teaching ideas or cases to the audience and a winner is chosen by vote. I think some of this focus on pedagogy is because a fair number of business school legal studies professors are full-time, non-tenure track instructors without research responsibilities. In any case, I generally find the pedagogy presentations quite useful and think law school professor conferences could increase their focus on the area.
Relative Lack of Subject Area Silos. Maybe the biggest difference I have noticed between law school professor conferences and business school legal studies conferences is the relative lack of subject area silos at the legal studies conferences. At most law school professor conferences I attend, I can and do spend the entire time listening to only business law (narrowly defined) presentations. I leave small and big law school conferences only having heard about business associations, corporate governance, M&A, and securities law. At MALSB I heard those presentations, but also heard talks on employment, constitutional, contract, tax, and white collar criminal law. The conference organizers try to keep the panels in generally the same subject area, but the panels bleed into other areas and there is almost never enough pure business presentations to keep you fully occupied at a legal studies conference. The relative lack of subject area silos is good and bad. It is good because the exposure to other areas can lead to new insights about your own areas, but I still attend some law school professor conferences for more focus and depth.
Associated Journals. Most of the regional and national legal studies associations run blind, peer-reviewed law journals. In my opinion, these journals are excellent for our field and offer a nice alternative to law reviews. I've stuck with the national journals to date because a number of the regional journals do not have WestLaw or Lexis contracts yet. As I have said before, I think there is room for even more traditional peer-reviewed law journals, perhaps run by law schools or by law school associations.
Enjoyed my time at MALSB. The people and the presentations were definitely worth the trip.