Saturday, May 27, 2017
And now, there’s the fake news thing:
As a video circulated that appeared to partially absolve President Donald Trump in the administration’s Russian meddling scandal on trading floors on Thursday, stocks surged for the first time in days on the apparent breaking news.
The video, it turns out, was actually two weeks old, misleadingly edited with the intention of falsely accusing former FBI director James Comey of perjury—and was initially aired by conspiracy website InfoWars on Thursday around noon.
Trump wasn’t cleared. In fact, since the video had been around since May 3rd, nothing had changed at all. But by the time traders found out, the dollar index had spiked anyway.
The fallout of the story is leaving analysts wondering how to absorb information in a market that is suddenly waiting on bated breath for the latest rumors to come out of the White House—even when those rumors are intentionally misleading or untrue.
In other words, the news can be fake, but the rally it creates in the stock market is very real.
[Adam] Button, [the chief currency analyst at ForexLive] said that InfoWars isn’t a site that “anyone on Wall Street usually really believes,” but people may change their reading habits after Thursday’s surge.
“People were asking me today, ‘Is Infowars a site I have to start reading now?’ And I said, ‘The answer is yes,’’ said Button.
“You’re not trading on what’s true and what’s false. You’re trading on what the average voter believes is true. It’s a propaganda war.”
The markets chose a particularly inauspicious day to use InfoWars source material to determine what’s happening. Less than 24 hours before the rally, InfoWars host and founder Alex Jones was forced to apologize to and retract articles about Chobani as part of a settlement. …
It’s the second time in two months Jones was forced to apologize and pull down content for claims made on InfoWars. In March, Jones read out a written apology on his show to James Alefantis, whom InfoWars had falsely suggested was running a child sex ring tied to Hillary Clinton’s campaign out of the basement of a pizza shop. Content that had included those allegations were pulled down.
“The idea of trading on propaganda—it’s a strange feeling,” said Button. “Politics is a distraction for the most part, but it’s not anymore. This is taking over.”
Still, would Button recommend reading InfoWars just in case it’s a predictor of how the market might react to bombshell political news—even if it isn’t true?
“I want to say, ‘Yeah, read it now,’” he said. “But the rest of me says, ‘Don’t read that garbage.’”
We have seriously entered Keynesian beauty contest territory; traders don’t care what’s real anymore - all that matters is what other people think is real, at least for a brief period of time.
Friday, May 26, 2017
The Nike Oregon Project is coached by running legend Alberto Salazar, who, by all accounts, is both incredibly competitive and dedicated to his work.
Among the athletes who are or have been associated with the Nike Oregon Project (and coached by Salazar )are gold medalist (in the 5000 & 10,000m in 2012 and 2016) Sir Mo Farah, gold medalist (in the 2016 1500m) Matt Centrowitz Jr., and silver medalist (in the 10,000m in 2012 and in the marathon in 2016) Galen Rupp. These three athletes have been the most dominant male distance runners for the U.S. over the last two Olympic cycles.
Allegations of doping is nothing new for the Nike Oregon project coach and athletes. For example, Kara Goucher, U.S. Olympian and former member of the Nike Oregon Project herself, has been extremely vocal with allegations against the group for years. The Times of London published some of the same allegations against the Nike Oregon Project a few months before The New York Times. FloTrack has released what it thinks is the full report from USADA (US Anti-Doping Agency). The allegations are not only of doping, but of drug use that may have engaged the athletes' long-term health.
I haven't seen any of the contracts for the Nike Oregon Project, but I would be willing to wager they contain morals clauses, allowing Nike to terminate the contracts, for cause, if the coach or athletes' actions tarnish Nike's brand. Often these morals clauses do not even require a finding of liability or guilt - often the mere allegations are enough.
In this case, however, given the success of these athletes and coach, I expect Nike to wait to see if the allegations are confirmed. If, however, these athletes or coach were less popular and/or underperforming, the morals clause might have come into play earlier. These allegations do already appear to be hurting Nike's reputation among my friends who follow track & field. Sadly, however, I imagine that most of Nike's customers are more aware of the medals won by the athletes than the current allegations made against the athletes and coach.
This summer, I am working on a paper on morals clauses, including a discussion on when these clauses may be unenforceable, so I will continue to follow this story and may update with new information.
Thursday, May 25, 2017
Wednesday, May 24, 2017
On June 8, I will answer this and other questions during an interactive session for a group of social entrepreneurs at Venture Cafe in Miami. Fortunately, I will have an accountant with me to talk through some of the tax issues. I was invited by the director of Radical Partners, a social impact accelerator. We estimate that 75% of the audience members will work for a nonprofit and the rest will work in traditional for profit entities with a social mission.
Many entrepreneurs in South Florida have an interest in benefit corporations, but don't really know much about them. Our job is to provide some guidance on entity selection and demystify these relatively new entities. Some of the issues I plan to address in my 20 minutes are:
1) the differences between nonprofits, for profits, and benefit corporations
2) the differences between benefit and social purpose corporations (focusing on Florida law)
3) the biggest myths about benefit corporations (such as perceived tax benefits)
4) tax issues (for the accountant)
5) director duties
6) funding- changing funding model from donors to investors; going public
7) reporting, auditing, and certification requirements
8) benefit enforcement proceedings
9) the role of B Lab and the difference between a B Corp and a benefit corporation (currently 15 Florida companies are certified through B Lab)
10) transparency and accountability issues
We plan to leave about 45 minutes for questions. Not many lawyers in Florida have experience with benefit or social purpose corporations, so I am seeking guidance from our readers. If you are a practitioner and have dealt with these entities in your states, I'm interested in your thoughts. Are a lot of your clients asking about these entities? Have they converted? How do you help them decide whether this change is good for them? I'm also fortunate to have colleagues on this blog who are real thought leaders in the area, and am looking forward to their comments. Personally, I believe that for many business owners, benefit corporations may provide a perceived marketing edge, but not much more, Author Tina Ho has raised concerns about greenwashing. If I'm wrong, let me know below or send me an email at firstname.lastname@example.org.
Tuesday, May 23, 2017
Last weekend, retired NFL receiver Calvin Johnson made news when he revealed that he was not pleased with the Detroit Lions and how they handled his retirement. Johnson is apparently frustrated that the Lions required him to pay back about 10% of the unearned $3.2 million remaining on his $16 million signing bonus from his 2012 contract. This is apparently a thing for the Lions, who sought all of the unearned signing bonus money remaining on Barry Sanders' contract when he abruptly retired in 1999.
This is in contrast to Tony Romo's retirement, in which the Dallas Cowboys released him, making the $5 million remaining on the signing bonus Romo's. Cowboys owner Jerry Jones said he was following the “Do Right Rule” when he allowed the team to release him. The Seattle Seahawks made a similar decision with Marshawn Lynch.
Some have argued that Johnson is being "pettier" than the Lions in this spat. Mike Florio, a sports writer and graduate of WVU College of Law, where I teach, argued that "while Johnson has every right to be miffed at the Lions, Johnson also should be miffed at himself. Or at whoever advised him to retire instead of biding his time until the Lions would have released him." Florio correctly notes that Johnson had a big cap number likely to come due had he not retired or accepted a restructured deal, so he was coming from a position of power in negotiating, which would have likely forced the Lions to cut him. Still, that doesn't mean Johnson is wrong to be frustrated.
Perhaps Johnson didn't ever want to be cut in his career, even at that point in his carerr. Maybe he just wanted to retire. The Lions were worried, perhaps about "precedent" that other players could use to walk away without paying back the bonus, though there is already such precedent out there, as discussed above, and the Lions have non-binding precedent already in the Barry Sanders case, where an arbitrator said Sanders had to pay back some of his signing bonus. Beyond that, the response to most players would simply be, "I know we didn't ask Calvin Johnson for any money back. You're not Calvin Johnson."
It is true that the Lions could seek money from Johnson, and that Johnson almost certainly, from a legal sense, owed the money. But having a legal right to something doesn't always mean it is a good idea. And that is important for lawyers to remember. The question I would have asked the Lions front office is this: "Is it really worth $320,000 when it is possible that one of your greatest players will feel disrespected by the process? Especially when you already created a rift with one of you other greatest players fifteen years ago?"
Maybe it was asked, and the answer was yes, but I just don't see the upside. My guess is that the Lions asked for a lot more and the two sides negotiated to this figure. But that process, not the payment, is likely what irked Johnson. Why does it matter? Because it tells future people the team wants, especially coaches and free agents, how the Lions do business. And when choosing between two similar offers, that could very well lead one to choose the other team.
I often use these kinds of issues facing a business when teaching the importance of the business judgment rule and allowing a board of directors not to pursue claims it can win (as long as there is no fraud or self dealing). Sometimes, it is better for the entity to let a claim go than to extend a bad story or scare off potential talent. Back in 2007, for example, Billy Donovan was hired to leave his head coaching job at the University of Florida to lead the NBA's Orlando Magic. Just days later, Donovan decided he did not want to leave Florida, and asked the Magic to let him return to the college game. The Magic decided to let him do so without any financial penalty, though they did ask him to agree not to coach in the NBA for five years.
Why let Donovan back out and return to Florida without a payment? For one, the Magic needed to hire a new coach, and you want to send a message that you are a good employer. Second, Donovan was beloved in Florida. He had won two NCAA championships in a key market for the team. Don't irritate your prime audience is always a good bit of advice. There was little upside to being difficult. The team was almost certainly irritated, but there is little value in letting that lead to bad publicity and unnecessary public spats. This principle extends well beyond the sports realm, but it is especially important in any area where employers fight for talent, which is common in the sports and entertainment areas.
In assessing the legal (and business) options for the Calvin Johnson situation, good lawyering requires a recognition that key issues were likely related to perception and respect, not money. As such, the fact that there was an argument about repayment at all was the issue that made Johnson frustrated (and now could have repercussions in the future free agent market). It is certainly possible the Lions assessed this risk and decided it was worth it. I disagree that it was worth it, but that would be a reasonable decision. (As a life-long Lions fan, I will need more evidence the problem was properly assessed, though I do hold out hope for the new front office.)
Such decisions, if made simply on the legal merits (e.g., Would I win in court?), run the risk of what Jeff Lipshaw calls "pure lawyering," which is essentially legal reasoning without context or assessment of non-legal impacts or opportunities. As Lipshaw explains in the preface to his book, Beyond Legal Reasoning, A Critique of Pure Lawyering:
Legal reasoning is merely one way of creating meaning out of circumstances in the real world. In its pure form, it does nothing more than convert a real-world narrative to a set of legal conclusions that have no necessary connection either to truth or morality.
Or the ability to recruit free agents.
Monday, May 22, 2017
I ask my Advanced Business Associations students to recognize and process theory and policy and relate them to doctrine at the practical level. This is, as most of you will recognize, a tall order of business for students who have just recently learned what business associations law is and may not yet (at the time they take the course) have applied the law in a practical context outside the classroom. (The course is open to 2L and 3L students who have already taken Business Associations.)
So, when it came time to lionize my friends Lyman Johnson and David Millon at a symposium honoring their work (which, as you may recall, I first heralded on the BLPB a year ago and wrote a bit about back in October), I decided to put my scholarship pen (keyboard) where my teaching mouth is. My goal for the symposium was to write something that linked theory and policy through doctrine to law practice and, at the same time, incorporated Lyman's and David's work. The essay I produced in fulfillment of these objectives was recently released and posted to SSRN. I excerpted from it in my post on Saturday. The full SSRN abstract follows.
In context, corporate law is often credited with creating, hewing to, or reinforcing a shareholder wealth maximization norm. The now infamous opinion in Dodge v. Ford Motor Co. describes the norm in a relatively bald and narrow way: “A business corporation is organized and carried on primarily for the profit of the stockholders." As a matter of theory and policy, commentators from the academy (law and business) and practice (lawyers and judges) have taken various views on this asserted norm—ranging from characterizing the norm as nonexistent or oversimplified to maintaining it as simple fact.
In an effort to broaden the conversation about the shareholder wealth maximization norm in an applied context, this essay describes shareholder wealth maximization under various state laws (in and outside Delaware) as a function of firm-level corporate governance—corporate law statutes, decisional law interpreting and filling gaps in that statutory law, and corporate charter and bylaw provisions—as applicable to both publicly held and privately held corporations in a variety of states. In this overall context, the essay considers the possibility that holders of shares in for-profit corporations may desire to maximize overall utility in their shareholdings of a particular firm, rather than merely the financial wealth arising from those holdings. To accomplish its purpose, the essay first briefly and generally addresses shareholder wealth maximization as a function of applicable statutory and decisional law and as a matter of private ordering (collecting, synthesizing, and characterizing, in each case, points made in the extant literature) before suggesting the broad implications of that analysis for corporate governance and shareholder wealth maximization and concluding. Ultimately, the essay makes a case for a more nuanced look at the shareholder wealth maximization norm. Given differences in doctrine and public policy among the states and variance in that doctrine and public policy among public, private, and statutory close or closely held corporations within individual states, answers to open questions are likely to (and should) depend on individualized facts assessed through the lens of specific statutory and decisional law and applicable public policy.
I fear that this short piece does not do the subject (or Lyman and David's amazing work) justice. But my biggest regret is that the essay went to press without the addition of thanks to two special folks in my author's footnote. I want to call those two colleagues out here.
Sunday, May 21, 2017
"the offshore corporate law model creates information asymmetry that is difficult to regulate ex post" 23 Colum. J. Eur. L. 401 #corpgov— Stefan Padfield (@ProfPadfield) May 16, 2017
"[A]dequate political will to confront the massive loss of ... revenue attributable to corporate tax avoidance"? 50 Int'l Law. 275 #corpgov— Stefan Padfield (@ProfPadfield) May 21, 2017
Saturday, May 20, 2017
Loyalty has been in the news lately. The POTUS, according to some reports, asked former Federal Bureau of Investigation ("FBI") Director James Comey to pledge his loyalty. Assuming the basic veracity of those reports, was the POTUS referring to loyalty to the country or to him personally? Perhaps both and perhaps, as Peter Beinart avers in The Atlantic, the POTUS and others fail to recognize a distinction between the two. Yet, identifying the object of a duty can be important.
I have observed that the duty of government officials is not well understood in the public realm. Donna Nagy's fine work on this issue in connection with the proposal of the Stop Trading on Congressional Knowledge ("STOCK") Act, later adopted by Congress, outlines a number of ways in which Congressmen and Senators, among others, may owe fiduciary duties to others. If you have not yet been introduced to this scholarship, I highly recommend it. If we believe that government officials are entrusted with information, among other things, in their capacity as public servants, they owe duties to the government and its citizens to use that information in authorized ways for the benefit of that government and those citizens. In fact, Professor Nagy's congressional testimony as part of the hearings on the STOCK Act includes the following in this regard:
Given the Constitution's repeated reference to public offices being “of trust,” and Members’ oath of office to “faithfully discharge” their duties, I would predict that a court would be highly likely to find that Representatives and Senators owe fiduciary-like duties of trust and confidence to a host of parties who may be regarded as the source of material nonpublic congressional knowledge. Such duties of trust and confidence may be owed to, among others:
- the citizen-investors they serve;
- the United States;
- the general public;
- Congress, as well as the Senate or the House;
- other Members of Congress; and
- federal officials outside of Congress who rely on a Member’s loyalty and integrity.
There is precious little in federal statutes, regulations, and case law on the nature--no less the object--of any fiduciary the Director of the FBI may have. The authorizing statute and regulations provide little illumination. Federal court opinions give us little more. See, e.g., Banks v. Francis, No. 2:15-CV-1400, 2015 WL 9694627, at *3 (W.D. Pa. Dec. 18, 2015), report and recommendation adopted, No. CV 15-1400, 2016 WL 110020 (W.D. Pa. Jan. 11, 2016) ("Plaintiff does not identify any specific, mandatory duty that the federal officials — Defendants Hornak, Brennan, and the FBI Director— violated; he merely refers to an overly broad duty to uphold the U.S. Constitution and to see justice done."). Accordingly, any applicable fiduciary duty likely would arise out of agency or other common law. Section 8.01 of the Restatement (Third) of Agency provides "An agent has a fiduciary duty to act loyally for the principal's benefit in all matters connect with the agency relationship."
But who is the principal in any divined agency relationship involving the FBI Director?
Friday, May 19, 2017
In last week’s post, I mentioned Dr. Steven Garber. Recently, I finished his 2014 book Visions of Vocation: Common Grace for the Common Good. This book is among a handful of books in the faith & work area that I have read over the past few months.
Visions of Vocation is beautifully written, lyrical and rich. Garber’s weaves philosophy, literature, and personal stories throughout the book’s 255 pages.
Garber’s thesis in this talk, which echoes in much of his work, is that “vocation is integral, not incidental to the Missio Dei (mission of God)." Garber says the book Visions of Vocation grew out of these questions: Can you know the world and still love the world? & What will you do with what you know? The first question hits home, as the flaws of jobs and people often become more vivid over time. After the second question, Garber shows how stoicism and cynicism are unsatisfying responses.
Garber offers no easy answers, which is, perhaps, on purpose. These are difficult questions in a difficult area, and easy answers may not exist. I finished the book still hoping for some clear principles for integrating faith and work, but maybe the stirring questions were the point. The stories of folks at International Justice Mission and Elevation Burger, among others, do help in thinking about how faith and work fit together, as do the references to Walker Percy and Wendell Berry.
Again, this is not a book that provides a few simple steps or quick takeaways, but for a number of days after finishing it, I am still pondering its contents. For that reason, I think the book was well worth reading.
Thursday, May 18, 2017
Wednesday, May 17, 2017
I try to watch at least one Ted Talk a day. I learn new substantive topics and I also learn from listening to the speakers break down complex topics in an engaging way--a key skill for the classroom. I don’t know that any of the videos in a recent article written for business people really transformed my thinking about business, but I did find some parts interesting and inspiring.
Here they are for your viewing pleasure:
- Myths of Entrepreneurship
- Why Work Doesn't Happen at Work
- 10 Things to Know Before You Pitch to a Venture Capitalist
- What Consumers Want
- What Makes us Feel Good about Our Work
- The Power of Time Off
- Build a Tower, Build a Team
Tuesday, May 16, 2017
This past week was a big one for loyalty stories. First, we have the New York Times reporting that President Trump asked former FBI director James Comey for his pledge of loyalty, to which Comey apparently promised "honesty." (The White House disputes this report.)
Then, we have a high school quarterback in Illinois being forced to decommit from the University of Wisconsin's, apparently because he tweeted that the University of Georgia had offered him a scholarship. The student called Wisconsin Coach Budmayr, telling him he had the offer and said he was "still 100% committed to the Badgers." The next day Budmayr apparently told him that he was no longer a good fit for Wisconsin and that he should keep looking. The reason: lack of loyalty.
Obviously, I only have the facts as they have been portrayed in these articles, and there are two sides to every story. Nonetheless, these anecdotes got me to thinking about loyalty and how people tend to perceive the concept.
To some, loyalty means fidelity. This can be in the physical or emotional sense, as in the marriage context. Some view extend it to ideological loyalty. And to some, it means undying, uncompromising agreement and support. It is this last idea that troubles me, because often it means that the loyalty is misguided.
Merriam-Webster dictionary defines loyal as follows:
1. unswerving in allegiance: such a
a : faithful in allegiance to one's lawful sovereign or government were loyal to the king
b: faithful to a private person to whom faithfulness is due a loyal husband
c : faithful to a cause, ideal, custom, institution, or product a loyal churchgoer
2. showing loyalty a loyal friend
The Trump-Comey scenario is clearly type 1(a), but I think the same is true of the Badger football situation. The concept of requiring absolute loyalty to the cause as a prerequisite for being part of the team.
The problem, of course, is what it means to be faithful and to whom. In the Comey situation, Comey's loyalty is to the FBI, the country, and the truth, not the person in the White House. Trump has sort of acknowledged this, although it is not clear what the president had in mind if he really did ask Comey for such a pledge. But it is clear that if Comey were to have pledged loyalty to the president, he would clearly have created the risk of compromising his loyalty to the country and the truth.
For football, this is harder to define. Is it to the team? To the coach? To the other players? To the program? Everything?
Blind allegiance is rarely a good thing, and can often lead to bad outcomes. In the Badger football case, it seems the coach was either (a) looking to get out of the commitment and took an excuse, (b) really believes assurances from one of his commits are hollow, or (c) wanted to send a message about allegiance. It is entirely possible it was some combination of the three.
When it comes to the high school player, I can imagine a scenario where the player was excited to be pursued, and he was showing off a little. Hard to blame a kid for that, frankly. Despite assurances to the contrary, the Badger coach wanted none of it. His team, his call, but I don't like it.
In my view, loyalty runs two ways. And loyalty should have room for misunderstandings, at a minimum, if not mistakes. Even it it doesn't, in the case of college player and college coach, the coach is the grown up. He or she should act like it. That means, if you have a real problem with the player, state it. And if you really don't want them any more, say it. I have no idea what the coach said, and in fairness to him, he may be the one taking the high road here by not airing issues publicly.
I can't say these stories raise any clear answers for me. But they do raise questions about loyalty, and what it means. I think that's worth thinking about, especially for lawyers and future lawyers. Both of these stories make me uncomfortable. It's worth it to me to think about why and what that means. And I think we should all spend a little time thinking about it.
Monday, May 15, 2017
Today, I am spending my birthday attending and presenting at the Fifth Annual Midwest Symposium on Social Entrepreneurship in Kansas City, Missouri. I owe my presence here to my entrepreneurship colleagues and friends Tony Luppino (UMKC Law) and John Tyler (Kauffman Foundation). Thanks for the awesome birthday present, guys.
There's so much I have to say about just the first day of this event. (I also will be here and presenting tomorrow.) The proceedings so far have been incredibly thought-provoking and instructive. Most intriguing has been the focus around creating an ecosystem for social entrepreneurship. Of course, law and lawyers have roles in that. Hence, this blog post . . . .
Specifically, I want to devote today's post to the four essential action-elements necessary to generate a successful, sustained future for social entrepreneurship as posited and described by Mark Beam, Maverick in Residence at the Kauffman Foundation, in his kick-off keynote presentation this morning. (As an aside, I will note that Mark started his talk with a brief recounting of the origin of the word "maverick," which was independently fascinating.) Here are Mark's four elements, as I captured them in my notes (likely imperfectly), together with a bit of summary definitional commentary. He contended that, to build a sustainable ecosystem for social entrepreneurship, we must:
- Redefine work (recognizing entrepreneurship as work; taking into account the power and effects of technology, but knowing it needs to serve us and the human potential)
- Nurture entrepreneurial ecosystems that mimic and integrate natural systems (e.g., helping people to help themselves; moving resources from the “haves” to the “have-nots”)
- Evolve our capacity to serve more of the entrepreneurial community through ecosystem design (referring to three megatrends outlined by Kauffman Foundation CEO Wendy Guillies--demography, geography, and technology; opening up entrepreneurship to all to increase business, start-ups employment, productivity)
- Tell new stories (relating anecdotes that connect us; “we create the future through the stories we tell ourselves”—visioning the future through stories)
That may not sound like much, but trust me. The talk (beautifully delivered with amazing graphics, photography, and media content) was much better than my quick summary of the outtakes.
What Mark said made a lot of sense to me based on my related experience and work. But I found myself thinking about the role of the lawyer in these action items. How can lawyers--especially business lawyers--who support social enterprise help social entrepreneurship to productively move forward?
Sunday, May 14, 2017
"Roughly 78 percent of Americans disapprove of the Court's landmark ruling in Citizens United" 20 N.Y.U. J. Legis. & Pub. Pol'y 101 #corpgov— Stefan Padfield (@ProfPadfield) May 14, 2017
Saturday, May 13, 2017
Joshua Fershee started a conversation about incompetent male leaders, so in keeping with that theme, here are a couple of other interesting data points.
First, a new study shows that male loan officers are more willing to lend money to other men – especially men they bond with. (Bloomberg story here; paper here). That doesn’t work out so well for the banks; these loans are more likely to default. Women loan officers do not suffer from the same bias.
The critical point, for me, is that these biases exist even though they are unprofitable (in short term thinking, anyway; they may be very profitable for men as a group, long term). It’s an obvious point but it bears repeating: prejudice resists evidence. The market cannot cure problems that prejudice bars it from perceiving.
As for why women do not, in these studies, suffer from the same bias (or do not suffer to the same degree), it's not that women are especially rational as compared to men; it's simply that, to quote the immortal philosopher, Douglas Adams:
It is difficult to be sat on all day, every day, by some other creature, without forming an opinion about them. On the other hand, it is perfectly possible to sit all day, every day, on top of another creature and not have the slightest thought about them whatsoever.
Friday, May 12, 2017
From a Facebook post by Dr. Steven Garber, I recently learned of the mutuality in business project by Mars Corporation and University of Oxford.
Quoting from the website:
A collaborative project with the Mars Corporation exploring mutuality as a new principle for organising business. Mutuality - a principle that emphasises the fair distribution of the burdens and benefits of a firm’s activities - is seen as a promising new organising value with the potential to strengthen relationships and improve sustainability.
"Mutuality in business" seems to be yet another term for social responsibility in business. We already have so many terms for the social business concept - blended value, business for good, CSR, creative capitalism, multi-stakeholder governance, natural capitalism, shared value capitalism, social entrepreneurship, social enterprise, social innovation, sustainability, triple bottom line. Many people are trying to create, differentiate, and mark their corner in this social business space.
Despite the addition of yet another social business term, the information at the website is interesting, especially the research projects.
Thursday, May 11, 2017
The Legal Skills Prof Blog has posted an article entitled Our Broken Bar Exam by Deborah Jones Merritt. The post discusses Merritt’s proposal for a task force on the bar exam. Merritt’s article states, among other things:
The bar exam is broken: it tests too much and too little. On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary.
This flawed exam puts clients at risk. It also subjects applicants to an expensive, stressful process that does little to improve their professional competence... The bar examination should test the ability of an applicant to identify legal issues in a statement of facts, such as may be encountered in the practice of law, to engage in a reasoned analysis of the issues, and to arrive at a logical solution by the application of fundamental legal principles, in a manner which demonstrates a thorough understanding of these principles... Why doesn’t our definition of minimum competence include cognitive skills that are essential for effective client representation? The answer does not lie in the fact that these skills are difficult to test on a written exam. Research, fact gathering, interviewing, and other lawyering skills are cognitive abilities.
We could test for these skills by directing test-takers to outline a research plan, interview approach, or negotiation strategy based on a mock client file. Test-takers could also identify potential pitfalls, fall back positions, and ethical issues associated with their plan. These questions are no more difficult to draft and grade than classic issue-spotter essay questions. The primary reason we don’t test bar candidates on these skills is that law schools don’t stress them. Schools teach some professional competencies (like appellate advocacy) quite effectively, but relegate others to a corner of the curriculum. Employers and state supreme courts have urged law schools to teach a fuller range of lawyer competencies, but most schools have resisted…
Here are some of the many ideas that the task force could consider:
- Develop MBE and essay questions that test fundamental principles and legal reasoning, rather than memorization. As proposed above, practicing lawyers could serve as test subjects to validate these questions.
- Allow test-takers to refer to notes, codes, and other sources while taking the bar exam. This practice would more accurately measure professional knowledge.
- Develop tests for more of the competencies that new lawyers perform.
- Replace some (or all) multiple-choice and essay questions with performance-oriented case files like those presented on the Multistate Performance Test (MPT).
- Allow examinees to take portions of the exam at different times, including after the first year of law school.
- Work with law schools to create lawyering classes that would substitute for portions of the bar exam, as the University of New Hampshire has done. Bar examiners could audit these classes for content and rigor.
- Encourage bar associations, law schools, and other organizations to develop postgraduate lawyering institutes to replace some (or all) of the bar exam. Law graduates currently spend more than $100 million annually on bar review courses—in addition to the fees they pay to take the bar. That money could support six to eight week intensive summer programs to teach and assess new graduates’ lawyering competence.
I thought about these criticisms and recommendations as I graded my Business Associations exam this week. Every year, I dutifully spend time on GPs, LPs, and LLPs in class and test on them during exam time because the Florida bar tests on these business subjects every year. The bar pays scant attention to LLCs even though that’s the fastest growing business entity in my state. Indeed, I have had almost a dozen guest speakers in my startup law skills class, and all of the attorneys indicated that they deal almost exclusively with LLCs and corporations. I worry when I spend time on interviewing and negotiation skills in the doctrinal class because the bar won’t test on these topics, but these are precisely the skills my students will need in practice.
Perhaps I worry for nothing. After the administration of every bar exam, I receive notes from students indicating that they felt prepared for both the exam and for life after law school. But I fear that schools do too little to prepare students for either. I highly recommend that you read Merritt’s article and if you agree with her, work with your state bar and the NCBE on reform.
Wednesday, May 10, 2017
I received this call for papers and wanted to pass it on.
This Call for Papers invites contributions to the Cambridge Handbook of Corporate Law, Corporate Governance and Sustainability. Those tentatively selected to contribute will be invited to a Cambridge Handbook Symposium in Oslo on 12-14 March 2018, with draft chapters to be submitted to the editors beforehand. Participation at the Symposium is not a condition to contribute to the Handbook, but it is strongly encouraged. The Symposium is expected to enhance the quality of the contributions, reinforce the cohesive nature of the volume, and contribute to the timeliness of the manuscript.
The Handbook will be edited by Professor Beate Sjåfjell, University of Oslo, and Professor Christopher Bruner, Washington and Lee University. Final confirmation of contributions for the Handbook will be contingent on review of the chapters and will be decided by the editors. . . .
More information is available here. In case you need a bit of encouragement to make a proposal, I will add that (in case you do not know them) the editors are well-regarded scholars in the field and also great people.
Tuesday, May 9, 2017
Back in 2013, Tomas Chamorro-Premuzic wrote Why Do So Many Incompetent Men Become Leaders? on the Harvard Business Law Review site. He argues,
the main reason for the uneven management sex ratio is our inability to discern between confidence and competence. That is, because we (people in general) commonly misinterpret displays of confidence as a sign of competence, we are fooled into believing that men are better leaders than women. In other words, when it comes to leadership, the only advantage that men have over women (e.g., from Argentina to Norway and the USA to Japan) is the fact that manifestations of hubris — often masked as charisma or charm — are commonly mistaken for leadership potential, and that these occur much more frequently in men than in women.
He further notes that the qualities that the same traits that often lead to a male manager to get hired (i.e., be perceived as a leader) are the characteristics that get in the way of being an effective and successful leader. ( "[L]eaderless groups have a natural tendency to elect self-centered, overconfident and narcissistic individuals as leaders, and that these personality characteristics are not equally common in men and women.") Thus, because we mistake confidence for competence, we pass up a lot of good people (and hire the wrong people). These mistakes apply to both men and women, but Chamorro-Premuzic notes that (by nature and/or nurture) women are less likely to have those traits.
there is no denying that women’s path to leadership positions is paved with many barriers including a very thick glass ceiling. But a much bigger problem is the lack of career obstacles for incompetent men, and the fact that we tend to equate leadership with the very psychological features that make the average man a more inept leader than the average woman. The result is a pathological system that rewards men for their incompetence while punishing women for their competence, to everybody’s detriment.
This is true, but I would also note that it's also likely that the women who get hired because of the traditional traits he describes are also less likely to be successful. Most leaders, he notes fail, whether in politics or business: "Good leadership has always been the exception, not the norm."
This suggests that people doing the hiring (or voting) would be well served to change their criteria for assessing talent and quality, at least in some ways. We simply can't keep using the same inputs and be surprised we keep getting the same outputs. If we change our inputs, there is a good chance that we will have a greater diversity of leaders (particularly increasing the numbers of women) and may, in fact, choose more successful leaders. It seems to me worth a try.