Friday, August 15, 2014
Over at PrawfsBlawg, on a post comparing the SEALS and AALS conferences, an anonymous commenter questioned the value of academic conferences.
In this economic environment, many schools are tightening their belts. A number of schools have made cuts to funds for travel and professional development.
Below, I list some of the areas in which conferences can provide benefits.
Teaching. At most conferences I attend, I attend at least one panel on pedagogy. In addition, many of the panels provide new material for classes. Also, fellow professors may be more willing to share teaching materials, which can be invaluable, if they have met you in person at a conference.
Service. Conferences are often the hub for discipline-related service. Many, if not most, of my external service opportunities have come from other professors I met at conferences.
Research. You can receive excellent comments on your papers at conferences and are much more likely to get other professors to review your work if you have met them in person. Also, a number of the people who have cited my work are people I met at conferences.
Professional Development. Much of our time as professors is spent with students, who are usually not experts in our subject areas. Even most of our colleagues are not experts in our specific research areas. Conferences give professors a chance to test themselves against other experts in their areas, which can lead to significant professional development.
Inspiration. I tend to return from conferences inspired and refreshed. Seeing the successes of my colleagues at other schools encourages me to be more efficient and improve in all areas.
Community. Academic community often grows from conferences. Blogs, social media, listservs, e-mail, and phone calls can sustain the community, but I think it is relatively difficult to be truly plugged into the broader academic community without at least a few in-person meetings with other professors.
Compensation. Frankly, I count funding for conferences as part of my compensation. A school without funding for conferences would likely have to pay more in salary if it did not provide funding for conferences. Also, payment for conferences usually amounts to a relatively small portion of total faculty compensation.
Rankings. Many school rankings depend, at least in part, on peer reputation. In the U.S. News law school rankings, for example, peer reputation is actually the single most heavily weighted factor. I don’t think schools should chase rankings just for the sake of the rankings, but improving rankings can impact things that matter (recruiting intelligent students, attracting recruiters to campus, and making (generous) alums happy, etc.) I’m not sure how much schools spend on those glossy brochures they send to other schools, chasing peer reputation, but I am much more likely to think well of another school if I hear a good presentation from one of their faculty members than if I see an impressive looking pamphlet in my mailbox.
Of course, there are probably ways to cut spending on academic conferences without losing the above benefits and I am open to those ideas.
Related to this post, I am interested in how other schools divvy up travel funds (and any details about your school's approach to travel funds that you can share). At Belmont, we apply to our assigned associate dean to get funding for any conference we wish to attend. Except in the most rare circumstances, you will not get funding if you are not presenting a paper. I am not sure what the limits for travel funding are at Belmont, but they have been generous in granting my requests so far. I know some schools grant professors a set amount of travel funds each year; this seems like a good way to encourage careful spending and allow better planning by professors, but it does not address the variation in professor productivity (unless the amount granted is pegged to recent publications).
Monday, August 11, 2014
Ah, yes . . . . The public/private divide . . . . My co-blogger Ann Lipton fairly begged me to write about this topic today, given that she had to miss the discussion session on the subject (entitled "Does The Public/Private Divide In Federal Securities Regulation Make Sense?") convened by me and Michael Guttentag at last week's Southeastern Association of Law Schools (SEALS) annual conference. Arm-twisting aside, however, this is a topic of current interest (and actively engaged scholarship) for me.
The discussion session allowed a bunch of our corporate and securities law colleagues to explore historical, present, and projected future distinctions between public and private offerings and public and private companies/firms. The discussion ranged widely, as did the short papers submitted by the participants. Some topics of conversation were oriented in part toward corporate governance concerns--comments from Lisa Fairfax on linkages to shareholder empowerment and from Jill Fisch on executive compensation in the post-Dodd-Frank public environment come to mind in this regard. Other discussion topics engaged securities regulation more centrally, including by, e.g., questioning the coherence of the rationale underlying the Section 12(g) and 15(d) reporting thresholds (with interesting commentary from Amanda Rose and Usha Rodrigues); offering historical observations about the difference between public offerings and private placements and how that history does, should, and may play out in offering markets (Dale Oesterle and Wulf Kaal); expressing concern about accredited investor status in the wake of the new Rule 506(c) under the Securities Act of 1933, as amended (Jonathan Glater); and analyzing the CROWDFUND Act at the public/private offering and company divides (me).
Different notions of "publicness" and "privateness" were offered up, dissected, and used in the discussion. Many pointed to the formative work of Hillary Sale (The New 'Public' Corporation, Public Governance, and J.P. Morgan: An Anatomy of Corporate Publicness) and Don Langevoort and Bob Thompson (Redrawing the Public-Private Boundaries in Entrepreneurial Capital-Raising and 'Publicness' in Contemporary Securities Regulation after the JOBS Act) as important touchstones. Both sets of papers address issues involving the publicness of firms. The Langevoort and Thompson Redrawing article also addresses public and private offerings of securities on a detailed level.
Yet, not everyone anchored their ideas to these existing works. One participant (Ben Means) provocatively suggested, for example, analyzing public disclosure rules using the bumpy-versus-smooth taxonomy for legal rules described in Adam Kolber's recent California Law Review article. I was not familiar with this piece. I now plan to read it.
Many discussants denied the continued existence or salience of a public/private divide in securities regulation, believing instead that there is a sliding scale or continuum between public and private. Although this argument has more traction after the JOBS Act and the Dodd-Frank Act, evidence of an indistinct line both in finance and entity law predates those legislative initiatives. Some of us were uncomfortable in declaring the death of the public/private divide--or in letting go of the analytical distinction between publicness and privateness because of the role that it serves in scholarship and teaching. The public/private divide has been a heuristic in securities regulation that people find hard to abandon . . . .
My paper, which is founded on the works of Professors Langevoort, Sale, and Thompson, is forthcoming in the University of Cincinnati Law Review. Although the draft is not "ready for Prime Time" yet, I am happy to share it with anyone who may be interested in it. Other papers submitted for the discussion group may or may not be precursors to works in process. But you can contact any discussion group participant (or ask me to contact one or more participants on your behalf) if you want to explore their ideas further.
Although I am not yet fully ready to step back into the classroom to teach next week, I am better prepared for the experience (and for the research and writing I am doing) thanks to the SEALS conference. And now, to finish that syllabus . . . .
Sunday, August 10, 2014
The following paragraph is an excerpt from Micro-Symposium on Competing Theories of Corporate Governance, 62 UCLA L. Rev. Disc. 66, which can be found online (here) and is also available via Westlaw.
On Friday, April 11, and Saturday, April 12, 2014, the UCLA School of Law Lowell Milken Institute for Business Law and Policy sponsored a conference on competing theories of corporate governance…. This conference provided a venue for distinguished legal scholars to define the competing models, critique them, and explore their implications for various important legal doctrines. In addition to an oral presentation, each conference participant was invited to contribute a very brief essay of up to 750 words (inclusive of footnotes) on their topic to this micro-symposium being published by the UCLA Law Review’s online journal, Discourse. These essays provide a concise but powerful overview of the current state of corporate governance thinking….
The included essays:
- Stephen M. Bainbridge, An Abridged Case For Director Primacy
- George S. Georgiev, Shareholder vs. Investor Primacy in Federal Corporate Governance
- David Millon, Team Production Theory: A Critical Appreciation
- Usha Rodrigues, David and Director Primacy
- Stefan J. Padfield , Citizens United, Concession Theory and Corporate Social Responsibility (CSR)
- Christopher M. Bruner, Corporate Governance Theory and Review of Board Decisions
- Robert T. Miller, The Board Veto and Efficient Takeovers
- Lisa M. Fairfax, Toward a Theory of Shareholder Leverage
- Iman Anabtawi, Shadow Directors
- Michael D. Guttentag, Shareholder Primacy and the Misguided Call for Mandatory Political Spending Disclosure by Public Companies
- James J. Park, Averages or Anecdotes? Assessing Recent Evidence on Hedge Fund Activism
Shameless self-promotion excerpt:
In extremely truncated form, my argument proceeds as follows. While both director primacy and shareholder primacy differ in terms of who should control corporate decisionmaking, both identify shareholder wealth maximization as the positive and normative goal of corporate governance. In addition, while team production theory tempts advocates of CSR, in the end it also falls short of supporting mandatory CSR. As for the theories of corporate personality, both aggregate theory and real entity theory view the corporate entity as standing in the shoes of natural persons to some meaningful degree (typically the shareholders in the case of aggregate theory and the board of directors in the case of real entity theory), thereby providing corporations a basis for resisting government regulation. Only concession theory, which views the corporation as fundamentally a creature of the state created to serve public ends, can support mandatory CSR as a normative matter. Thus, the advocates of mandatory CSR should use concession theory, with its emphasis on the public roots of corporations, to provide the compelling narrative necessary to move our corporate law beyond its exclusive focus on shareholder wealth maximization.
Stefan J. Padfield , Citizens United, Concession Theory and Corporate Social Responsibility (CSR), 62 UCLA L. Rev. Disc. 84, 86 (2014).
Saturday, August 9, 2014
Below is a call for abstracts from Professor Amy Sepinwall (Wharton).
Call for Abstracts for the Normative Business Ethics Workshop Series of the Carol and Lawrence Zicklin Center for Business Ethics Research:
Over the 2014-2015 academic year, the Carol and Lawrence Zicklin Center for Business Ethics Research at the Wharton School, University of Pennsylvania, will be convening a regular works-in-progress series for scholars working in normative business ethics (NBE).
The series is part of an effort to foster, and increase the prominence of, normative business ethics in the academy and the public sphere. This particular initiative has two key objectives: First, it endeavors to provide a regular forum for scholars working on business ethics from a normative perspective. The community of such scholars is relatively small, and dispersed across numerous institutions, and there are few opportunities for these individuals to convene and share work. This series is an effort to connect these scholars, and enrich their shared intellectual life. Second, the series aims to be especially valuable to junior faculty, by providing them with feedback from, and opportunities to interact with, more established members of the normative business ethics community. To that end, we hope to have one junior author and one senior author at each session.
The workshop will meet roughly once a month over the academic year, for a total of 6 sessions per year. Anyone with an interest in normative business ethics is invited to attend the sessions. Faculty interested in having their paper discussed at the workshop should submit an abstract and list, in order of preference, the date(s) they could present from those listed below. (Further information about submission can be found under the “Call for Abstracts” below.) Two draft papers will be selected for each session. Complete draft papers will be circulated at least one week in advance of each session and participants will be expected to have read them carefully, and to arrive at the workshop prepared to offer constructive feedback.
The sessions will be structured so as to maximize the opportunity for paper improvement through the comments of a community of scholars committed to normative business ethics. To that end, authors will not present at the session for which their paper has been assigned. Instead, those gathered will go around the table and each participant will offer a few points of feedback on the paper.
An author whose paper is selected for presentation in a given semester will bear an obligation to attend the other two sessions that semester or to send feedback via email to the authors whose papers are presented at any session that she is unable to attend. In this way, each author will be assured of a good number of responses to her paper.
The Zicklin Center will provide the room and refreshments for each session. Attendees will be asked to pay for their own travel expenses. Some travel funding is available for paper authors for the session at which their paper will be discussed.
For Fall 2014, the workshop will be held on the following dates:
Friday, October 10, 2014, 2:00-4:30 PM.
Friday, November 14, 2014, 2:00-4:30 PM.
Friday, December 5, 2014, 2:00-4:30 PM.
Call for Abstracts
We invite individuals interested in workshopping a paper in normative business ethics to submit a paper abstract. The abstract should be a maximum of 500 words, and the accompanying email should indicate preferred dates of presentation from those listed above. Please send these to Lauretta Tomasco, email@example.com, by September 1, 2014. Individuals will be notified about whether their paper has been selected for presentation by September 15, 2014.
Please address all questions to Amy Sepinwall, firstname.lastname@example.org.
Monday, August 4, 2014
Many of us are in the process of (perhaps frantically) wrapping up our summer scholarly activity and re-focusing our primary professional attention on teaching. As always, I am using the annual conference sponsored by the Southeastern Association of Law Schools (SEALS) to help me make this transition. Yesterday, I attended a discussion session led by law school associate deans and faculty who focus on faculty development--scholarship and teaching. It was an incredibly interesting and wide-ranging discussion.
Part of the conversation centered around summer research stipends, a topic that has been in the national news a bit over the past few years. Various participants in the discussion session addressed, each from his or her individual institution's vantage point, the reasons for/purposes of summer research stipends (which not every school represented at the session currently has) and how summer stipends actually work or should/could optimally work. I was surprised by the variations in approaches and ideas from school to school. While the individual models are too numerous to capture here, I summarize below the fold some of the top-level points made and thoughts shared during the discussion.
Wednesday, July 30, 2014
While I will miss my friends at the wonderful SEALS conference, I am excited to be attending and presenting at the Academy of Legal Studies in Business (ALSB) conference in Seattle next week.
For the ALSB conference, the organizers have set up a Guidebook App. I am just now exploring all the features, but it looks like an impressive and useful tool.
The App includes:
- The conference program.
- The conference schedule.
- Your schedule. You create your own schedule and can have reminders send to your phone.
- Full text of all the conference papers, organized by subject, author, and title.
- An attendee list, where attendees can share their contact information.
- In-app social networking.
- Information about exhibitors.
- A survey.
- Information about Seattle (restaurants, attractions, etc.)
There is a free version of Guidebook, but it looks like this ALSB Conference App has features of the rather expensive paid plans. The free version is limited to 200 downloads and doesn't appear to allow inclusion of presentation materials. Given the textbook publisher listed at the bottom of the App, I am guessing that the textbook publisher paid at least part of the cost, though that is pure speculation on my part.
While pricey for the paid plans, this might be something for AALS, SEALS, and other large conference organizers to consider for future years. The free version may be useful for smaller conferences.
Monday, June 23, 2014
This past week, I joined a group of our business law prof colleagues at the National Business Law Scholars Conference out at Loyola Law School in Los Angeles. Headlined by a keynote presentation on "the audience" for business law scholarship from Frank Partnoy and an author-meets-reader session on Michael Dorff's new book, Indispensable and Other Myths: The True Story of CEO Pay, the conference featured a staggeringly interesting array of panels on everything from standard corporate governance to financial regulation. Kudos to the planning committee.
Steve Bainbridge presented Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties in an opening concurrent panel. If you haven't read it yet, I recommend it. Admittedly (as I told Steve), I have an especial interest in the Meinhard case and in the expressive function of decisional law. But most of us in the business law professor group teach the case in one course or another, and his paper is relevant to many in that context.
Monday, June 16, 2014
I have been working on a draft article for the University of Cincinnati Law Review based on a presentation that I gave this spring at the annual Corporate Law Symposium. This year's topic was "Crowdfunding Regulations and Their Implications." My draft article addresses the public-private divide in the context of the Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act--more commonly known as the CROWDFUND Act. I am using two pieces coauthored by Don Langevoort and Bob Thompson (here and here), as well as three works written by Hillary Sale (here, here, and here) to engage my analysis.
I also will be participating in a discussion group at the Southeastern Association of Law Schools annual conference in August on the publicness theme. That session is entitled "Does The Public/Private Divide In Federal Securities Regulation Make Sense?" and is scheduled for 3:00 pm on Augut 6th, for those attending the conference. Michael Guttentag was good enough to recruit the group for this discussion.
All this work on publicness has my head spinning! There are a number of unique conceptions of pubicness, some overlapping or otherwise interconnected, with different conceptions being useful in different circumstances. I am attracted to a number of observations in both the Langevoort/Thompson and Sale bodies of work, but there's clearly a lot more to think about from the standpoint of both scholarship and teaching.
So, today I ask: What does publicness mean to you? Does there continue to be salient meaning in the distinction between piublic and private (offerings, companies, etc.)? If so, what should publicness mean in these contexts? I am curious to see what others think.
Thursday, June 12, 2014
Monday, June 9, 2014
Today, we finished two days of amazingly rich discourse on business law issues at the Association of American Law Schools (AALS) Workshop on Blurring Boundaries in Financial and Corporate Law in Washington, DC. (Full disclosure: I chaired the planning committee for this AALS midyear meeting.) All of the proceedings have been phenomenally interesting. I have learned so many things and been forced to think about so much . . . . For those of you who couldn't be there, I tried to faithfully pick up a bunch of salient points from the talks and discussions on Twitter using #AALSBB2014. Moreover, some of the meeting was recorded. I will try to remember to let you know when, to whom, and how those recordings are being made available. (Feel free to remind me if I forget . . . .)
One idea shared at the workshop that I am particularly intrigued by is the use of a new standard in federal securities regulation, suggested by Tom Lin in his talk as part of this morning's plenary panel on "Complexity". He argues for an "algorithmic investor" standard (working off/refining the concept of the reasonable investor) in light of the growth of algorithmic trading. It's predictable that I would be interested in this idea, given that I write about materiality in securities regulation (especially insider trading law, in articles posted here and here), in which the reasonable investor standard is central. (In fact, Tom was kind enough to mention my work on the resonable investor standard in his talk.)
Tom is not the first to argue for a securities regulation standard that better serves specific investor populations. Memorable in this regard, at least for me, is Maggie Sachs's paper arguing for a standard focused on the "least sophisticated investor". But many other fine works contending with materiality or the concept of the reasonable investor in securities regulation also question (among other things) the clarity and efficacy of the reasonable investor standard in specific contexts.
Friday, June 6, 2014
For those interested in the Academy of Legal Studies in Business ("ALSB") conference in Seattle (August 4-7), the deadline to upload papers is June 29, and early-bird conference registration ends on July 1.
More information is available at the ALSB website. The ALSB conference is the national conference for legal studies professors in business schools, though I believe that interested practitioners and law professors would also be welcome.
Hope to see some of our readers in Seattle.
Thursday, June 5, 2014
Last week I posted about proxy advisory firm ISS and its recommendations regarding Wal-Mart and Target.
This week the US Chamber of Commerce weighed in on the two main proxy advisory firms, what the organization sees as their potential conflict of interests and the lack of transparency, and the SEC’s imminent release of guidance on the firms. It’s worth a read and has some great links.
Next week I will be blogging from Salvador, Brazil where I will be enjoying the World Cup. I will post a brief recap of some of the business-related Law and Society sessions I attended in Minneapolis last weekend. With all of the controversy that invariably surrounds a large sporting event in a country that scores high on the corruption perception index, I may even be inspired to write a law review article on the FCPA.
Thursday, May 29, 2014
Greetings from the Law and Society conference. Tomorrow I serve as the discussant on a panel entitled Theorizing the Corporation at Legal Intersections with Professors Charlotte Garden of Seattle, Sarah Haan of Idaho and Elizabeth Pollman of Loyola, Los Angeles. We will debate/discuss corporate personhood and how Citizens United has affected elections in ways that people might not expect. I'll explain more about that and other panel discussions in next week's blog.
If you're at the conference or Minneapolis, swing by the University of St. Thomas, Room MSL 458 at 12:45 on Friday.
Thursday, May 15, 2014
1) I was not the only person who went to law school because I was terrified of math and accounting. Many of my students did too, which made teaching this required course much harder even after I explained to them how much accounting I actually had to understand as a litigator and in-house counsel.
2) I will always make class participation count toward the grade. Apparently paying tens of thousands of dollars a year for an education is not enough to make some students read their extremely expensive textbooks. A 20% class participation grade is a great incentive. Similarly, I will never allow laptops in the classroom. The subject matter is tough enough without the distraction of Instagram, Facebook and buying shoes on Zappos.
3) Students come to a required course with a wide range of backgrounds- some have never written a check and others have traded in stocks since they were teenagers and use Bitcoin. Teaching to the middle is essential.
4) As I suspected, when students are allowed to use an outline for an exam, they won't study as hard or as thoroughly, and I will grade harder.
5) Never underestimate how little many students know about the basics of how businesses operate. No matter how smart they are, many students have simply had no exposure to any kind of business. For some of them it's almost like taking civil procedure all over again in terms of difficulty. (I taught that for the first time too).
6) Balanced public policy discussions can get even the quietest students to participate. On the last day of class we debated the purpose of the corporation using benefit corporations, Citizens United and Hobby Lobby as vehicles for discussion. They did all of the readings and watched the assigned videos for class, leading to some of the richest discussion of the year.
7) Law students say they hate to work in groups, but many of them thrive and take leadership roles they wouldn't normally assume, especially when they know that this work also counts toward their class participation grade. They also learn to take risks in small group discussion that they might not normally take in front of the whole class.
8) Using a game for a review works really well. I used a modified Jeopardy format and allowed groups to work in teams. The competitive nature of the students came out and it also provided a more interesting and lively review than the standard lecture.
9) It's really important to match your textbook to teaching style, learning objectives and type of student.
10) Even the most "terrified" law student can learn to like business associations. I have had several students email me to say they miss the course because they have no one with whom to discuss current business issues. That warms my heart.
There are a number of things I will change next semester. I'm looking forward to learning from more seasoned business law professors at the Emory Conference on Teaching Transactional Law in 2 weeks.
Thursday, May 8, 2014
Last week I blogged about enterprise risk management, lawyers, and their "obligations" to counsel clients about human rights risks based in part on statements by the American Bar Association and Marty Lipton of Wachtell, who have cited the UN Guiding Principles on Business and Human Rights. I posted the blog on a few LinkedIn groups and received some interesting responses from academics, in house counsel, consultants, and outside counsel, which leads me to believe that this is fertile ground for discussion. I have excerpted some of the comments below:
“Corporations do have risk with respect to human rights violations, and this risk needs to be managed in a thoughtful manner that respects human dignity. I did wonder, though, whether you see any possible unintended consequences of asking attorneys to start advising on moral as well as legal rights?”
“I agree. Great post. Lawyers should always be ready to advise on both legal risks and what I call "propriety". If a lawyer cannot scan for both risks, then he or she is either incompetent or has integrity issues. Companies that choose to take advice from a lawyer who is incompetent or has integrity issues probably have integrity issues too. I'm not sure I would leave leadership on ERM as a whole in the hands of a lawyer, unless that person has very good risk credentials.”
“As a lawyer, and a casinos and banks counselor, recently, due to a Constitution reform in Mexico, I have been more involved in the Universal Declaration of Human Rights and the "Pacto de San Jose Costa Rica" (American Convention of HR) where you find out that the law in the best benefit of the citizen will be applicable, even over the Constitution. Of course that has an important impact over secondary laws and over many industries as well. So, you are absolutely right: "are we lawyers ready to be good counselors to our clients?". My personal thought is that we have to get involved in all those Human Rights laws and with the impact that they have with our country’s laws. That is where the world is going in the benefit of our species.”
“Exciting idea. I'm going to give a typical lawyer answer; it depends on the lawyer. This reflects what …. said above about competence. I would give a trifle more leeway for those that realize they need more research/education on the topic before advising on it.”
“I have a very strong opinion that the role of an in-house counsel or GC sitting on a Board or Exec. committee cannot be, and should not be, limited to pure legal matters, legal compliance and company legal risk, but rather need to play a key role on corporate business sustainability. Likewise, outside counselors should have this in the top of their agendas. Certainly this has never been the trend in Spain or in some EU countries, and involvement of senior executive legal counsel in corporate decisions relating CSR, Human Rights or similar issues that do have a clear impact on corporate ethics credentials and corporate integrity is now being slowly accepted and perceived as a great added value by the Boards. I am personally convinced that in the next years we will see an interesting evolution on this.”
I agree with the all of the comments, but particularly the last one. Here's ABA Rule 2.1 in it's entirety-
Counselor Rule 2.1 Advisor
"In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."
When I taught professional responsibility, Rule 2.1 typically led to heated discussions. During my stint as a compliance officer, though I often engaged in "moral" and ethical discussions. As for unintended consequences, as the first commenter points out, there could be many. People's "morals" may differ, just as companies have different "cultures." Companies with different cultures operating in countries with different cultures- now that's a whole other layer of complexity. Lawyers and/or compliance officers may not want to "rock the boat" with “moral” discussions and may be more comfortable sticking to black letter law. When it comes to human rights where some multinationals may be dealing with non-binding "soft law" or operate in countries where the binding law is not enforced, what "moral" yet practical advice should lawyers give to their clients on the ground?
These are topics that I plan to write about and that I enjoyed discussing with students in courses I have taught in the past on corporate governance, compliance and corporate social responsibility. Next week I will attend a conference at Columbia University on teaching business and human rights, and I am sure these issues will be front and center. Clearly, based on discussions on LinkedIn, they already are for many practicing lawyers.
Friday, May 2, 2014
During the school year before this past one, I had the privilege of serving as the faculty advisor for a law review symposium. We brought in an excellent group of professors and practitioners and, at least from my point of view, the symposium went quite well. The planning process, however, was much more involved than I had originally thought. All professors should go through the conference planning process at least once, if only to gain more respect for those who plan the conferences at which we present and attend.
While I am certainly not a conference planning expert (and my students did the vast majority of the work for that one symposium), I decided to share some of my thoughts here. Hopefully, these thoughts are helpful, though there may be nothing new for the seasoned conference goer and planner. Feel free to leave comments to fill in the gaps I leave or to offer your own opinions.
Start Planning Early. We started planning our October symposium in late-February/early-March. That timing worked well for us. Professors were finished with (or putting the last touches on) their spring articles, but not quite in exam-scramble mode yet. Initially, I thought we were planning much too early, but soon realized that some of our targeted speakers were already “mostly full” for the fall, and starting any later would have been problematic.
Seek a Variety of Views. A good conference, in my opinion, includes speakers with a variety of views. UCLA’s Micro-Symposium on Competing Theories of Corporate Governance and the Conglomerate’s online symposium on Hobby Lobby are two excellent, recent examples. There is some benefit of having conferences where the speakers are all in the same area (with different opinions), but I have also benefited from conferences that seek to bring academics from various disciplines together and from conferences that include both practitioners and academics.
Double-Check the Technical. A surprising number of conferences start with, or include, technical issues. If you are planning the conference, plan to test the technical side before the conference begins and try to get the presenters to send you any slides beforehand.
Engage the Audience. Plenty of conferences I have attended spend the vast majority of time on the presentations and leave little time for Q&A. Generally, the audiences of academic conferences are pretty sophisticated academics and practitioners. The questions (as long as they aren’t of the self-aggrandizing variety, see this comic from Professor Anne Tucker) can make the conference more engaging, can highlight the difficult issues, and can challenge the presenters. At a recent conference at Belmont University, they collected written questions from the audience, and the moderator chose the best, most relevant questions to ask. This process made the Q&A time more efficient than taking the microphone through the crowd to each audience member and made sure that the questions were not overly long and were of high quality. If possible, you might also want to consider setting up the conference space with round tables and allow the audience to discuss the presentations at their tables, perhaps with the aid of a table host and starter questions. This way many more people get to speak. I have seen the table discussions done extremely well a few times, most recently at a dinner presentation following this University of St. Thomas conference. If the attendees are involved, they generally have a better time and take away more from the experience.
Build in Extra Time and Breaks. Conferences almost never run exactly according to schedule and almost always seem to run long. While you can warn the presenters that you plan to stick to a strict time-line, presenters almost always go a few extra minutes over the allotted time. If you can, build in some extra time. If you want 30 minutes for Q&A, give yourself 40 minutes so that the presenters can go a bit long and not eat through much of the Q&A time. Also, build in some breaks in the conference. Attention spans seem to be getting shorter and attendees usually attend conferences, at least in part, to network. Breaks give them a chance to meet other attendees. Be warned, however, that it is sometimes difficult to corral the audience back into the presentation space.
Anyway, those are just some of my thoughts. Again, I welcome readers to add comments.
Thursday, May 1, 2014
Last week I had the pleasure of speaking on a panel on global human rights compliance and enterprise risk management with Mark Nordstrom of General Electric and John Sherman of Shift. The panel was part of a conference entitled New Challenges in Risk Management and Compliance at the UConn School of Law Insurance Law Center.
I spoke about the lack of direct human rights obligations under international law for multinationals, the various voluntary initiatives such as the Universal Declaration of Human Rights, the ILO Tripartite Declaration, the UN Global Compact, ISO 26000, the OECD Guidelines for Multinational Enterprises, the Global Reporting Initiative, and accusations of bluewashing. I also discussed Dodd-Frank 1502 (conflict minerals), sustainable stock exchange indices, ESG reporting, SEC proxy disclosure on risk management oversight, socially responsible investors, and the roles of the Sustainability Accounting Standards Board and the International Integrated Reporting Council in spurring transparency and integrated reporting.
Sherman focused on the UN Guiding Principles on Business and Human Rights, which were unanimously endorsed by the UN Human Rights Council in 2011 and which contain three pillars, namely the state duty to protect people from human rights abuses by third parties, including business; business’ responsibility to respect human rights, which means avoid infringing on the rights of others and addressing negative impacts with which a business is involved; and the need for greater access to effective remedy for victims of corporate-related abuse, both judicial and non-judicial.
He pointed out that American Bar Association endorsed the Guiding Principles in 2011 concluding that under Model Rule 2.1 of the ABA Rules of Professional Conduct, a lawyer’s obligation to provide independent and candid legal advice includes the responsibility to go beyond the black letter of the law, and to advise the client on moral, economic, and social and political standards that can affect the lawyer’s advice. This includes the impact of the Guiding Principles when relevant. An advisory group to the Law Society for England and Wales has made even stronger recommendations. Sherman is chairing a working group of the International Bar Association that is developing guidance for bar associations around the world on the Guiding Principles. He observed that Marty Lipton of Wachtel Lipton, has strongly endorsed the Guiding Principles as a “balanced and prudent process for corporations to manage their human rights risks.” Firms such GE, Total, and Coca Cola have met to discuss how their in house counsel can implement the Guiding Principles. Interestingly, Nordtsrom from GE relayed a troubling example of a human rights dilemma in which one of their medical devices was used in China for sex selection purposes rather than for the life saving purposes for which it was intended.
A number of businesses around the world have adopted these voluntary Guiding Principles, but in 2013 Halliburton, McDonalds and Caterpillar faced shareholder proposals based on them. The Guiding Principles have influenced the Dodd-Frank conflict minerals legislation; the US regulations requiring companies investing more than $500,000 of new money in Myanmar to report on their human rights policies and due diligence; the European Commission's 2011 recommendation that all EU countries develop their own National Action Plans to implement the Guiding Principles; the European Union’s Parliament recent directive in April 2014 requiring close to 6,000 companies in the EU to disclose their environmental, social and human rights policies including their due diligence processes, outcomes, and principles risks; the proposed Canadian conflicts minerals legislation; ISO 26000; and the OECD Guidelines for Multinational Enterprises.
Although I now teach business associations and civil procedure, I used to teach a seminar in corporate governance, compliance and corporate social responsibility and found that my students really enjoyed the discussions on human rights and enterprise risk management. Some of the sessions I attended in Geneva on Business and Human Rights at the UN in Decemeber were led by lawyers from around the world who were already advising large and small businesses about the Guiding Principles and how to respond to the numerous comply or explain regimes around the world that are asking about environmental, social and governance factors.
Earlier this week, I sat in on a webinar on the role of the board in overseeing sustainability issues, including human rights, which I will write about next week. There isn’t enough time to address these kinds of issues in a traditional business associations course, but as the ABA and Marty Lipton pointed out, the time is coming for attorneys to counsel their clients on these risks. This means that we as business professors need to prepare our students for this new world.
Wednesday, April 30, 2014
My wife claims that I wasted quite a bit of time watching the Breaking Bad TV series on Netflix over the past few months, but given this recent call for papers, I may claim I was just doing professional development.
The editorial board New Mexico Law Review does not list any business law topics in their areas of particular interest, but I can think of a few. Accounting fraud and money laundering feature prominently. The IRS is involved in some episodes. Magrigal (a global conglomerate), Los Pollos Hermanos (a restaurant chain), and A1A car wash (which becomes a family-owned business) are three businesses that take center stage. There is a sale of a company (the car wash) in one episode and possible fiduciary duty issues throughout. I may even see a benefit corporation angle to explore...
This is a fun idea for a special law review issue.
Thursday, April 24, 2014
Last week the DC Circuit Court of Appeals generally upheld the Dodd-Frank conflict minerals rule but found that the law violated the First Amendment to the extent that it requires companies to report to the SEC and state on their websites that their products are not “DRC Conflict Free.” The case was remanded back to the district court on this issue.
As regular readers of the blog know I signed on to an amicus brief opposing the law as written because of the potential for a boycott on the ground and the impact on the people of Congo, and not necessarily because it’s expensive for business (although I appreciate that argument as a former supply chain professional). I also don’t think it is having a measurable impact on the violence. In fact, because I work with an NGO that works with rape survivors and trains midwives and medical personnel in the eastern Democratic Republic of Congo, I get travel advisories from the State Department. Coinicidentally, I received one today as I was typing this post warning that “armed groups, bandits, and elements of the Congolese military [emphasis mine] remain security concerns in the eastern DRC….[they] are known to pillage, steal vehicles, kidnap, rape, kill and carry out military or paramilitary operations in which civilians are indiscriminately targeted… Travelers are frequently detained and questioned by poorly disciplined security forces [I was detained by the UN] at numerous official and unofficial roadblocks and border crossings…Requests for bribes [which I experienced] is extremely common and security forces have occasionally injured or killed people who refused to pay.”
None of this surprises me. I commend the efforts of companies to clean up their supply chains and to cut off income sources to rebel groups who control some of the mines or brutally insert themselves into the mineral trade. But what the State Department advisory makes clear (and what many people already know) is that the problem that the Dodd-Frank law is trying to solve is not something that can be cured through a “name and shame” corporate governance disclosure, especially one that may no longer have the “shame” factor of having companies brand themselves “not DRC Conflict Free.”
Earlier this week, Senator Ed Markey and eleven other members of Congress sent a letter urging SEC Chair Mary Jo White to avoid any delay in implementing the rule. The letter states in part “…the law we passed was simple. Congress said that any company registered in the United States which uses any of a small list of key minerals from the DRC or its neighbors has to disclose in its SEC filing the use of those minerals and what is being done, if anything, to mitigate sourcing from those perpetuating DRC's violence. Such transparency allows consumers and investors to know which companies source materials more responsibly in DRC and serves as a catalyst for industry to finally create clean supply chains out of Congo.”
The "law" may have been “simple,” but the implementation is not for a large number of companies. That’s probably why the EU has proposed a voluntary self-certification scheme focused on importers rather than manufacturers and sellers like Dodd-Frank. That’s probably why a large number of companies are not ready to comply, according to a recent PwC survey of 700 companies.
Chair White, who has made no secret of what she thinks of the SEC’s role in solving human rights crises, still has to reissue Dodd-Frank 1504, the resource extraction rule that was struck down after a court challenge. According to a Davis Polk report, as of April 1, 2014, a total of 280 Dodd-Frank rulemaking requirement deadlines have passed. Of these 280 passed deadlines, 45.7% have been missed and 54.3% have been met with finalized rules. The SEC has a lot of financial rule making to complete and should consider how to prioritize and retool the conflicts minerals rule using the agency's discretion and going beyond the fixes that may be required by future rulings on the First Amendment issue.
I will continue to monitor the future of this law. I am now on my way to a conference for businesspeople, lawyers, academics and students at UConn entitled New Challenges in Risk Management and Compliance. I will discuss regulatory issues related to global human rights and enterprise risk management on a panel with the human rights initiative leader for General Electric and the General Counsel for the Shift Project, who worked with John Ruggie on the UN Guiding Principles on Business and Human Rights. I am excited to meet and learn from them both. The Guiding Principles and earlier iterations of Ruggie’s work greatly influenced both the US and EU conflict mwinerals laws.
Next week I will report back on some of the outcomes from the conference.
Sunday, March 16, 2014
The "Conference on Multi-Jurisdictional Deal Litigation" will be held April 25, 2014. Here is a brief introduction:
M&A litigation is increasingly filed in both the target’s state of incorporation and its headquarters state. It is the most important current development in corporate litigation. The leading plaintiffs’ and defendants’ deal litigators from Delaware and from Texas will discuss every aspect of this issue at our day-long conference. Chief Justice Strine of the Delaware Supreme Court and Justice Brown of the Texas Supreme Court will be panelists.