Friday, August 18, 2017

Law & Wellness: Introduction

On July 15 of this year, The New York Times ran an article entitled, “The Lawyer, The Addict.” The article looks at the life of Peter, a partner of a prestigious Silicon Valley law firm, before he died of a drug overdose.

You should read the entire article, but I will provide a few quotes.

  • “He had been working more than 60 hours a week for 20 years, ever since he started law school and worked his way into a partnership in the intellectual property practice of Wilson Sonsini.”
  • “Peter worked so much that he rarely cooked anymore, sustaining himself largely on fast food, snacks, coffee, ibuprofen and antacids.”
  • “Peter, one of the most successful people I have ever known, died a drug addict, felled by a systemic bacterial infection common to intravenous users.”
  • “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”
  • “The further I probed, the more apparent it became that drug abuse among America’s lawyers is on the rise and deeply hidden.”
  • “One of the most comprehensive studies of lawyers and substance abuse was released just seven months after Peter died. That 2016 report, from the Hazelden Betty Ford Foundation and the American Bar Association, analyzed the responses of 12,825 licensed, practicing attorneys across 19 states. Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety. Only 3,419 lawyers answered questions about drug use, and that itself is telling, said Patrick Krill, the study’s lead author and also a lawyer. “It’s left to speculation what motivated 75 percent of attorneys to skip over the section on drug use as if it wasn’t there.” In Mr. Krill’s opinion, they were afraid to answer. Of the lawyers that did answer those questions, 5.6 percent used cocaine, crack and stimulants; 5.6 percent used opioids; 10.2 percent used marijuana and hash; and nearly 16 percent used sedatives.”

There is much more in the article, including claims that the problems with mindset and addiction, for many, start in law school.

After reading this article, and many like it (and living through the suicide of a partner at one of my former firms), I decided to do a series of posts on Law & Wellness. These posts will not focus on mental health or addiction problems. Rather, these posts will focus on the positive side. For example, I plan a handful of interviews with lawyers and educators who manage to do well both inside and outside of the office, finding ways to work efficiently and prioritize properly. My co-editors may chime in from time to time with related posts of their own.

August 18, 2017 in Current Affairs, Ethics, Family, Haskell Murray, Law School, Management, Wellness | Permalink | Comments (0)

Wednesday, August 16, 2017

The CEOs of Corporate America vs. The CEO of America

Business leaders probably didn’t think the honeymoon would be over so fast. A CEO as President, a deregulation czar, billionaires in the cabinet- what could possibly go wrong?

When Ken Frazier, CEO of Merck, resigned from one of the President’s business advisory councils because he didn’t believe that President Trump had responded appropriately to the tragic events in Charlottesville, I really didn’t think it would have much of an impact. I had originally planned to blog about How (Not) To Teach a Class on Startups, and I will next week (unless there is other breaking news). But yesterday, I decided to blog about Frazier, and to connect his actions to a talk I gave to UM law students at orientation last week about how CEOs talk about corporate responsibility but it doesn’t always make a difference. I started drafting this post questioning how many people would actually run to their doctors asking to switch their medications to or from Merck products because of Frazier’s stance on Charlottesville. Then I thought perhaps, Frazier’s stance would have a bigger impact on the millennial employees who will make up almost 50% of the employee base in the next few years. Maybe he would get a standing ovation at the next shareholder meeting. Maybe he would get some recognition other than an angry tweet from the President and lots of news coverage.

By yesterday afternoon, Under Armour’s CEO had also stepped down from the President’s business advisory council. That made my draft post a little more interesting. Would those customers care more or less about the CEO's position? By this morning, still more CEOs chose to leave the council after President Trump’s lengthy and surprising press conference yesterday. By that time, the media and politicians of all stripes had excoriated the President. This afternoon, the President disbanded his two advisory councils after a call organized by the CEO of Blackstone with his peers to discuss whether to proceed. Although Trump “disbanded” the councils, they had already decided to dissolve earlier in the day.

I’m not teaching Business Associations this semester, but this is a teachable moment, and not just for Con Law professors. What are the corporate governance implications? Should the CEOs have stayed on these advisory councils so that they could advise this CEO President on much needed tax, health care, immigration, infrastructure, trade, investment, and other reform or do Trump’s personal and political views make that impossible? Many of the CEOs who originally stayed on the councils believed that they could do more for the country and their shareholders by working with the President. Did the CEOs who originally resigned do the right thing for their conscience but the wrong thing by their shareholders? Did those who stayed send the wrong message to their employees  in light of the Google diversity controversy? Did they think about the temperament of their board members or of the shareholder proposals that they had received in the past or that they were expecting when thinking about whether to stay or go? 

Many professors avoid politics in business classes, and that’s understandable because there are enough issues with coverage and these are sensitive issues. But if you do plan to address them, please comment below or send an email to mweldon@law.miami.edu.

August 16, 2017 in Business Associations, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Law School, Marcia Narine Weldon, Shareholders, Teaching | Permalink | Comments (1)

Wednesday, August 9, 2017

AALS Section on Business Associations Call for Papers: Institutional Investors and Corporate Governance

Call for Papers (DEADLINE: August 24, 2017)

AALS Section on Business Associations

Institutional Investors and Corporate Governance

AALS Annual Meeting, January 5, 2018

The AALS Section on Business Associations is pleased to announce a Call for Papers for a joint program to be held on Friday, January 5, 2018 at the 2018 AALS Annual Meeting in San Diego, California.  The topic of the program is “Institutional Investors and Corporate Governance.”

In thinking through the difficulty of agency costs within the public corporation, corporate law academics have turned repeatedly to institutional investors as a potential solution.  The agglomeration of shares within a large investing firm, together with ongoing cooperation amongst a large set of such investors, could overcome the rational apathy the average shareholder has towards participation in corporate governance.  Alternatively, activist investors could exert specific pressure on isolated companies that have been singled out—like the weakest animals in the herd—for extended scrutiny and pressure.  In these examples, the institutionalization of investing offers a counterbalance to the power of management and arguably provides a systematized way of reorienting corporate governance.  These institutional-investor archetypes have, in fact, come to life since the 1970s and have disrupted the stereotype of the passive investor.  But have we achieved a new and stable corporate governance equilibrium?  Or have we instead ended up with an additional set of agency costs – the separation of ownership from ownership from control?  This program seeks to explore these questions and assess the developments in the field since the beginning of the new century. 

The program is cosponsored by the Section on Securities Regulation.

Form and length of submission

Eligible law faculty are invited to submit manuscripts or abstracts that address any of the foregoing topics. Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of final manuscripts.  Any unpublished manuscripts (including unpublished manuscripts already accepted for publication) may be submitted for consideration.  Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.

The initial review of the papers will be blind.  Accordingly, the author should submit a cover letter with the paper.  However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school.  The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes. 

 

Deadline and submission method

To be considered, manuscripts or abstracts must be submitted electronically to Professor Matthew Bodie, Chair-Elect of the Section on Business Associations, at  mbodie@slu.edu.  Please use the subject line: “Submission: AALS BA CFP.”  The deadline for submission is Thursday, August 24, 2017.  Papers will be selected after review by members of the Executive Committee of the Section on Business Associations.  The authors of the selected papers will be notified by Thursday, September 28, 2017.

 

Eligibility

Full-time faculty members of AALS member law schools are eligible to submit papers.  The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members; graduate students; fellows; non-law school faculty; and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.

The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

August 9, 2017 in Business Associations, Call for Papers, Conferences, Current Affairs, Joshua P. Fershee, Research/Scholarhip | Permalink | Comments (0)

Monday, August 7, 2017

SEALS 2017 - Business Regulatory Reform

Yesterday, on the last morning of the 2017 Southeastern Association of Law Schools (SEALS) conference, Matt Lyon, the Associate Dean at Lincoln Memorial University - Duncan School of Law (UT Law's Knoxville neighbor) convened a discussion group on "Corporate and Financial Reform in the Trump Administration." I was grateful to be asked to participate.  In addition to me, BLPB co-bloggers Josh Fershee and Marcia Narine Weldon, my UT Law coworker Brian Krumm, Securities Law Prof Blog editor Eric Chaffee, and University of Houston Law Center colleague Darren Bush were among the discussants.

SEALS2017(RegReformDiscGrp-1)

Each of us came with issues and questions for discussion.  Each of us offered reflections.  Recently made, currently proposed, and possible future changes to business regulation were all on the table.  I wish this session had been held earlier in the program, since many had left before the Sunday morning sessions (and we were competing with, among other enticing alternatives, a discussion session on marijuana regulation). However, we honestly had more than enough to discuss as among the seven of us, in any case.

I had to leave the session early to attend the SEALS board meeting.  But before I left, I took some notes on topics relating to my interest in and potential future work on regulatory reform.  I continue, for example, to be interested in the best approaches to reducing and streamlining regulation.  (See my posts here and here.)  A few additional outtakes follow.

Continue reading

August 7, 2017 in Conferences, Current Affairs, Joan Heminway | Permalink | Comments (0)

Friday, August 4, 2017

Summer Reading: Option B by Sheryl Sandberg and Adam Grant

OptionB

Shortly after hearing Sheryl Sandberg and Adam Grant speak on a Harvard Business Review podcast, I purchased Option B.

After listening to the podcast, I expected the book to contain more references to the research on resilience than it ultimately did. While I knew the book was popular press, I expected Penn Professor Adam Grant to add a more scholarly flavor. As it was, the book was a relatively short memoir focused on the death of Sheryl Sandberg's husband Dave. Had I started the book expecting a window into Sandberg's grieving process rather than an accessible integration of the resilience research, I think I would have appreciated the book more.  

On the positive side, the book is an extremely easy read and is written with a punchy, engaging style. Sandberg is quite honest, and is blunt in sharing with the readers what is and isn't helpful in interacting with those who have experienced great personal loss. In Sanberg's opinion, you should address the elephant in the room, and should not worry about reminding them of their loss, as they are already thinking about it all the time. Vague offers like "let me know if I can do anything to help" were deemed less helpful than more specific offers like "I am in the hospital waiting room for the next hour if you would like a hug" or "what would you not like on a burger." Also, mere presence was deemed meaningful. As someone who is always at a loss for what to say or do in these situations, her suggestions were helpful. 

Of the relatively limited references to research, I found the discussion of Martin Seligman's work helpful, including the finding that "three P's can stunt recovery: (1) personalization - the belief that we are at fault; (2) pervasiveness - the belief that an event will affect all areas of our life; and (3) permanence - the belief that the aftershocks of the event will last forever." (16).

Also, I appreciated the references to Joe Kasper's work on post-traumatic growth in its "five different forms: finding personal strength, gaining appreciation, forming deeper relationships, discovering more meaning in life, and seeing new possibilities." (79). Thankfully, the authors note that you do not have to actually experience trauma to benefit from this sort of growth, you can experience pre-traumatic growth (especially through observing the trauma of others or near-misses in your own life). 

Based on the podcast, I was hoping on more information on raising resilient children, and there is a chapter on this topic. That said, the chapter did not offer much new. Sandberg and Grant refer to Carol Dweck's work on growth mindset, which I reviewed a few years ago on this blog. The main suggestion was to help "children develop four core beliefs: (1) they have some control over their lives; (2) they can learn from failure; (3) they matter as human beings; (4) and they have real strengths to rely on and share." (111).

While this book wasn't quite what I expected, given the very limited amount of time it took to read (2-3 hours), I think it was worthwhile as a honest look at one person's grief and suggested ways to serve grieving people. 

August 4, 2017 in Books, Current Affairs, Haskell Murray, Psychology | Permalink | Comments (0)

Wednesday, August 2, 2017

How (Not) To Teach A Course in Compliance and Corporate Social Responsibility

Good morning from gorgeous Belize. I hope to see some of you this weekend at SEALS. A couple of weeks ago, I posted about the compliance course I recently taught. I received quite a few emails asking for my syllabus and teaching materials. I am still in the middle of grading but I thought I would provide some general advice for those who are considering teaching a similar course. I taught thinking about the priorities of current employers and the skills our students need.

1) Picking materials is hard- It's actually harder if you have actually worked in compliance, as I have, and still consult, as I do from time to time. I have all of the current compliance textbooks but didn't find any that suited my needs. Shameless plug- I'm co-authoring a compliance textbook to help fill the gap. I wanted my students to have the experience they would have if they were working in-house and had to work with real documents.  I found myself either using or getting ideas from many primary source materials from the Society of Corporate Compliance and Ethics, the  Institute of Privacy ProfessionalsDLA Piper, the Federal Sentencing Guidelines for Organizational Defendants, policy statements from various governmental entities in the US (the SEC, DOJ Banamex case, and state regulators), and abroad (UK Serious Frauds Office and Privacy Office). Students also compared CSR reports, looked at NGO materials, read the codes of conducts of the guest speakers who came in, and looked at 10-Ks, the Carbon Disclosure Project, and other climate change documents for their companies. I also had students watch YouTube videos pretending that they went to CLEs and had to write a memo to the General Counsel so that s/he could update the board on the latest developments in healthcare compliance and risk assessments. 

2) This should be a 3-credit course for it to be an effective skills course- My grand vision was for guest speakers to come in on Mondays  for an hour and then I would lecture for the remaining time or I would lecture for two hours on Monday and then students would have simulations on Wednesday.This never happened. Students became so engaged that the lecturers never finished in an hour. We were always behind. Simulations always ran over. 

3) Don't give too much reading- I should have known better. I have now taught at three institutions at various tiers and at each one students have admitted- no, actually bragged- that they don't do the reading. Some have told me that they do the reading for my classes because I grade for class participation, but I could actually see for my compliance course how they could do reasonably well without doing all of the reading, which means that I gave too much. I actually deliberately provided more than they needed in some areas (especially in the data privacy area) because I wanted them to build a library in case they obtained an internship or job after graduation and could use the resources. When I started out in compliance, just knowing where to look was half the battle. My students have 50 state surveys in employment law, privacy and other areas that will at least give them a head start.

4) Grading is hard- Grading a skills course is inherently subjective and requires substantive feedback to be effective.  40% of the grade is based on a class project, which was either a presentation to the board of directors or a training to a group of employees. Students had their choice of topic and audience but had to stay within their industry and had the entire 6-week term to prepare. Should I give more credit to the team who trained the sales force on off-label marketing for pharmaceuticals because the class acting as the sales force (and I) were deliberately disrespectful (as some sales people would be in real life because this type of  training would likely limit their commissions)? This made their training harder. Should I be tougher on the group that trained  the bored board on AML, since one student presenter was in banking for years? I already know the answers to these rhetorical questions. On individual projects, I provide comments as though I am a general counsel, a board member, or a CEO depending on the assignment. This may mean that the commentary is "why should I care, tell me about the ROI up front." This is not language that law students are used to, but it's language that I have tried to instill throughout the course. I gave them various versions of the speech, "give me less kumbaya, we need to care about the slave labor in the factories, and less consumers care about company reputation, and more statistics and hard numbers to back it up."  Some of you may have seen this recent article about United and the "non-boycott, which validates what I have been blogging about for years. If it had come out during the class, I would have made students read it because board members would have read it and real life compliance officers would have had to deal with it head on.

5) Be current but know when to stop- I love compliance and CSR. For the students, it's just a class although I hope they now love it too. I found myself printing out new materials right before class because I thought they should see this latest development. I'm sure that  what made me think of myself as cutting edge and of the moment made me come across to them as scattered and disorganized because it wasn't on the syllabus.

6) Use guest speakers whenever possible- Skype them in if you have to. Nothing gives you credibility like having someone else say exactly what you have already said.

If you have any questions, let me know. I will eventually get back to those of you who asked for materials, but hopefully some of these links will help. If you are teaching a course or looking at textbook, send me feedback on them so that I can consider it as I work on my own. Please email me at mweldon@law.miami.edu.

Next week, I will blog about how (not) to teach a class on legal issues for start ups, entrepreneurs, and small businesses, which I taught last semester.

August 2, 2017 in Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Employment Law, Human Rights, Law School, Lawyering, Marcia Narine Weldon, Teaching | Permalink | Comments (0)

Monday, July 31, 2017

Democratic Norms and the Corporation: The Core Notion of Accountability

The corporate form has been compared and contrasted favorably and unfavorably with government.  The literature is broad and deep.  Having said that, there is, perhaps, no one who writes more passionately on this topic than Daniel Greenwood.  Set forth below are two examples of text from his work that illustrate my point.

We live in a democratic age, in which the sole legitimate source of political power is the consent of the governed. Yet our business corporations defy every norm of democracy.
 
Most fundamentally, corporate law and our major business corporations treat the people most analogous to the governed, those most concerned with corporate decisions, as mere helots. Employees in the American corporate law system have no political rights at all—not only no vote, but not even virtual representation in the boardroom legislature. Board members owe a fiduciary duty to the corporation, according to most of the statutes, and to the shareholders, according to the popular shareholder primacy narratives, but they owe no consideration at all to employees.
 
Daniel J.H. Greenwood, Essay: Telling Stories of Shareholder Supremacy, 2009 Mich. St. L. Rev. 1049, 1060 (2009).
 
The corporation as a state-within-the-state . . . cannot be justified under any democratic theory, because this state-like entity defies all democratic norms internally. No corporation operates by the principle of one person, one vote. All economically significant corporations disenfranchise a substantial portion of the affected populace, while even shareholders vote according to the number of shares they hold. Moreover, standard corporate law sharply limits the control that even the “voters” have over “their” entity. The law bars them, in the absence of unanimous consent, from making fundamental value choices, for example, from balancing the pursuit of profit against other potential corporate goals, such as quality products, interests of non-shareholder participants or even the actual financial interests of the real human beings who own the shares. Moreover, it even bars them from electing directors pledged to particular interests: directors, unlike ordinary politicians, are bound by law to pursue the interests of all (and only) shares, and courts will enforce this duty-subject to the often significant limitations of the business judgment rule-at the behest of any shareholder, regardless of election results. Theorists, therefore, usually resort to market-based explanations of why the corporation is unable to exert any power over its shareholders, employees and other participants.
 
Daniel J.H. Greenwood, Markets and Democracy: The Illegitimacy of Corporate Law, 74 UMKC L. Rev. 41, 54–55 (2005) (footnotes omitted).  Whether you agree with Daniel or not on the substance, his views are transparent and his belief and energy are palpable.
 
With politics in the news every day and corporations on my mind, I have been pondering certain elements of democracy as they play themselves out in corporate governance.  In particular, of late, I have focused in on accountability as a core democratic norm.  

Continue reading

July 31, 2017 in Corporate Governance, Corporations, Current Affairs, Joan Heminway | Permalink | Comments (2)

Friday, July 28, 2017

Summer Reading: John Inazu - Confident Pluralism

These days it is easy to get discouraged on how divided our nation seems to be on a number of issues. John Inazu, Distinguished Professor of Law, Religion, and Political Science at Washington University, maps a way forward in his book Confident Pluralism (2016).

The book is divided into two parts: (1) Constitutional Commitments, and (2) Civic Practices.

The first part “contend[s] that recent constitutional doctrine has departed from our longstanding embrace of pluralism and the political arrangements that make pluralism possible.” (8) Further, the first part offers guideposts for future decisions and political solutions. The first part argues for both inclusion and dissent, for the free formation of voluntary groups, for meaningful access to public forums, and for access to publicly available funding for diverse organizations. Provocatively, Inazu claims that Bob Jones case – which stripped tax-exempt status from Bob Jones University due to its prohibition of interracial dating/marriage – is “normatively attractive to almost everyone, [but] is conceptually wrong.” (75) Inazu claims that “[t]he IRS should not limit tax-exempt status based on viewpoint of ideology.” (79) He extends the argument to “generally available resources.” While the Trinity Lutheran case was decided by the Supreme Court after publication of Confident Pluralism the decision seems in line with Inazu’s argument about the provision of ”generally available resources” to all types of organizations. Inazu does concede “Neither [the inclusion of dissent] premise is absolute. Inclusion will stop short of giving toddlers the right to vote or legally insane people the right to bear arms. Dissent will not extend to child molester or cannibals.” (16) I fully never figured out how he draws these lines, as he discusses other controversial topics that the majority of people strongly object to, but perhaps he only seeks to exclude when virtually everyone in society agrees.

The second part “canvass[es] the civic practices of confident pluralism that for the most part lie beyond the reach of the law.” (10) The second part centers around civic aspirations of tolerance, humility, and patience. As defined by Inazu, “Tolerance is the recognition that people are for the most part free to pursue their own beliefs and practices, even those beliefs and practices we find morally objectionable. Humility takes the further step of recognizing that others will sometimes find our beliefs and practices morally objectionable, and that we can’t always “prove” that we are right and they are wrong. Patience points toward restraint, persistence, and endurance in our interactions across difference.” (11). In this part, he describes the “hurtful insult” and the “conversation stopper” as speech we should aspire to avoid. (97-100). The hurtful insult includes terms like “fat, ugly, stupid, friendless.” (97). The aim of the conversation stopper is not primarily used to wound (as the hurtful insult is) but rather to shut down the conversation. Terms like “close-minded, extremist, heretical, and militant” fall in the conversation stopper category. While Inazu admits that those terms can be hurtful, he claims that they are mainly used to shut down reasoned debate.

In conclusion, this is a timely book and is well worth reading. At under 170 pages (including the notes), it is an extremely quick read, but the book is also worth pondering for extended time. Inazu encourages relationships across differences, such as Dan Cathy (Chick-fil-A) and Shane Windmeyer (Campus Pride) and former President Barack Obama and former Republican senator Tom Coburn. (124) I’d add the friendships of the late, conservative justice Antonin Scalia with his liberal colleagues on the Supreme Court Ruth Bader Ginsburg and Elena Kagan. With Inazu, I suggest face-to face conversations with friends with different, strongly-held beliefs. While social media and electronic communication can sometimes suffice between in-person meetings, tough topics are best handled around a table and after trust has been earned. Personally, I count my friendships with those who see the world very differently than I do as some of my most valuable relationships, and those friendships make it difficult to construct the straw men we see so frequently in TV news “debates.”

For more, Paul Horwitz (Alabama) shares some thorough and thoughtful notes on the book here

July 28, 2017 in Books, Constitutional Law, Current Affairs, Ethics, Haskell Murray | Permalink | Comments (0)

Friday, July 7, 2017

Social Media: Costs and Benefits

A few weeks ago, Stephen Bainbridge asked about the benefits of the social media site LinkedIN. His question caused me to revisit the costs/benefits of social media. Below I reflect on the social media websites I use.

With so many professors getting in trouble on social media - see, e.g., here, here, here, here, and here - it may make sense to ask if any of the websites are worth the risk. As long as you are wise when you post, and assume a post will be seen in the worst possible light, I think social media can be worth using. 

Facebook. 

  • Benefits. Facebook has a broader network of people than any of the other social media sites I use. My parents are on Facebook, as is my wife's grandmother and great aunt, as are my peers, as are my much younger cousins. Facebook also has a wide range of user generated content -- photos, links, short & long posts, groups, etc. The "Friends in ___ City" feature has allowed me to catch up with old acquaintances when traveling for conferences or family trips. Just a few weeks ago, I visited with two of my old coaches for the first time since high school. Neither of their e-mails were online, and I have only kept up with them via Facebook. 
  • Costs. For me, Facebook is the biggest time waster among the various social media sites. Recently, I deactivated my Facebook account for the time being. I will probably be back at some point. The benefits of Facebook could probably be achieved in about 30 minutes a week, but until I learn to limit my use to around that amount of time, I will likely continue to deactivate for periods of time to cut back usage.
  • Use for Work. I don’t allow current students to “friend” me, given the more personal nature of Facebook, but I have allowed alums to connect, which has been rewarding. I follow my university and my alma maters on Facebook. I am Facebook friends with a handful of professional contacts.

Twitter.

  • Benefits. I have kept Twitter almost entirely professional; I rarely tweet about my family or my personal hobbies. As such, for me, the benefits of Twitter are captured in the "Use for Work" section below.
  • Costs. Twitter can also eat time, though unlike Facebook,  I am rarely tempted to spend long amounts of time on Twitter. Twitter doesn't allow for very nuanced debate and your posts can be taken the wrong way. Professor Eric Posner recently posted some harsh comments about Twitter; his comments have a kernel of truth. That said, I do think he is overly negative. For example, I think Twitter can actually be better than newspapers for some information. With Twitter you get the news directly from the source, and the news reaches you more quickly and with fewer words. Also, newspapers are unlikely to cover niche topics, like the latest happenings in social enterprise law. 
  • Use for Work. I maintain two hashtags - #MGT2410 and #MGT6940 – for news tweets related to my two primary courses. I allow current students to follow me, though I do not require it nor do I post anything necessary for my classes. I follow mostly professional contacts and professional organizations on Twitter. Given the accounts that I follow, Twitter can be a relatively good place to get quick news. Finally, I have found that a number of C-level executives, lawyers, and well-known academics are easier to engage via Twitter than any other medium.

LinkedIN.

  • Benefits. In thinking about Steven Bainbridge’s question about LinkedIN, I had a difficult time thinking of many significant benefits. I see LinkedIN as a place to connect with professional contacts that you want to share less information than you share on Facebook. I rarely log into LinkedIN, but I haven’t deleted my account either, as the costs of being on the website are incredibly low. 
  • Costs. LinkedIN takes the least amount of my time among the various social media sites. I spend 0 to 30 minutes on LinkedIN most months. There does appear to be a fair bit of spam in the various work groups I have joined, but it is pretty easy to ignore by unsubscribing to group e-mail updates. 
  • Use for Work. LinkedIN seems to be my MBA students' preferred method of connecting, and the site is worthwhile just to stay connected to them. I belong to a number of work related LinkedIN groups, but, as mentioned, most have been overtaken by spammers, so I almost never read the shared content. 

Strava.

  • Benefits. Strava is a social media website for runners, cyclists, and swimmers. For me, Strava’s main purpose is as an online place to log my runs without annoying my friends on other social media websites. On Strava, I only have about 30 friends, all of whom are committed to fitness. The website is an incredibly good accountability tool, as those friends can see if you have been slacking for a few days, and some of them will even call you out. It is also nice to have a few people notice when you have a good race or workout. You can also borrow workout ideas from posts. 
  • Costs. I don't love that people can tell when you are out of town, based on the location of your runs, but with only 30 friends and the privacy settings set tight as to other users, this isn't a huge issue. Strava doesn't take much time. The routes automatically upload from my Garmin and the newsfeed isn't designed to keep you engaged with it. 
  • Use for Work. I don't really use Strava for work other than staying in touch with a couple attorney runner friends. 

Instagram, Pinterest, Etc. I never got into Instagram, Pinterest, or any other social media websites. Instagram does seem to be quite popular among my somewhat younger friends and students, but it also appears to be a giant time waster, so I am glad I never got hooked.

Feel free to share any comments or additional thoughts. 

July 7, 2017 in Business School, Current Affairs, Haskell Murray, Technology, Web/Tech | Permalink | Comments (3)

Tuesday, July 4, 2017

Lessons on Teaching Law and Creating a Legacy from Hamilton: An American Musical

With a Fourth of July post, I was inclined to write something patriotic and connected with our great nation and to law schools generally. As an unabashed and unapologetic fan of the Hamilton: An American Musical, a couple of analogies from this brilliant production seemed appropriate to convey my thoughts on law school and leaving a legacy.  

First, I think most of us who are fortunate enough to serve as law professors recognize the great gift we have to pursue our passion and to be part of educating the next generation of people who understand the rule of law and have the skills to protect the rights of individuals and groups. This is especially needed for those who are marginalized or under represented and thus less likely to be able to enforce their rights without the help of our legal system.  This is an incredible legacy in America, set in motion by some our nation's founders.  

Like John Adams defending British soldiers and Alexander Hamilton defending Loyalists after the war, lawyers (and law professors) do not need to compromise their own views to embrace the ideals they seek to uphold. We can vigorously maintain our personal views, while defending the rights of others to have their views.  As law professors, I think we generally do value and defend the rights of others who have differing views, but I also think we can do a better job ensuring that is the case (and that others know it).

To be effective, law professors must be engaged with their work, with their institution, and their students. This means, to me, engaging in scholarship, in some way, and sharing that work with the world.  As Alexander Hamilton tells Aaron Burr in The Room Where It Happens

“When you got skin in the game, you stay in the game. But you don’t get a win unless you play in the game. Oh, you get love for it. You get hate for it. You get nothing if you…Wait for it, wait for it, wait!”

We need to part of the program. We need to engage and share our ideas. This doesn't mean being overtly political, and it doesn't necessarily mean being abrasive. But we must be invested in what we do, and we must be invested in how we do it. The passive teacher and scholar will likely have passive students, and we need to be educating lawyers to get in, get dirty, and keep learning.  We can't just tell them. To some degree we have to be the ones to show them how.

Second, as law professors who are committed to their profession, I think we need to be thinking about who we want to be as professors, including our desires for our legacy, early in our careers.  We need to think about what we want to be like as tenured professors before were are tenured.  And we need to think about where we hope to get as professionals, as teachers, and as scholars.  I think a lot faculty members (law and otherwise) get to a point where they aren't sure what it will mean to move on or how, and that makes it hard to stay engaged or focused because you don't have an idea of the end game. And that is linked, in part, to feeling like their legacy is incomplete.  That is understandable.   

Alexander Hamilton says, in the song, The World Was Wide Enough Legacy: 

"What is a legacy? It's planting seeds in a garden you never get to see."

And it's true. We rarely, if ever, will get to see our legacy, but we can know what we are trying to grow.  We each create our own legacy by the seeds we choose to plant.  And as professors, we plant those seeds in our students.  They go out and hopefully grow and flourish. And as part of a profession, those seeds are spread wider than just our students, as those new lawyers go out and interact with and work to protect others.  We must think carefully about what we are teaching about the profession that we helping to shape, whether or not we ever see it fully grown.  The world evolves and so must we, so that the seeds we plant, our legacy, is one that is worthy of this great, though greatly flawed, nation that got its start 241 years ago.  

As we celebrate the Fourth of July, let us celebrate the past while at the same time we think about the future.  This goes for both our teaching and for our nation overall.  Wishing you a happy and safe Fourth. 

July 4, 2017 in Current Affairs, Law School, Lawyering, Music, Teaching | Permalink | Comments (1)

Tuesday, June 27, 2017

The Business of Minor League Baseball: Antitrust Exemption May Be Wrong, But 9th Circuit is Right

Reuters reports that minor league baseball players lost a claim for artificially low" wages.  The court found, appropriately: "The employment contracts of minor league players relate to the business of providing public baseball games for profit between clubs of professional baseball players."

Samuel Kornhauser, the player's lawyer plan to ask the 9th Circuit to reconsider (probably en banc) or appeal to the U.S. Supreme Court. Kornhasuer, in an interview, stated: 

"Obviously, we think it's wrong, and that the 'business of baseball' is a lot different today than it was in 1922. There is no reason minor leaguers should not have the right to negotiate for a competitive wage."

Kornhauser is certainly correct that things have changed in the last 100 years, though I would argue that the justification for the antitrust exemption was just as unfounded in 1922 as it is today. The origin is the Federal Baseball decision, and it was wrong then, and it is wrong now.  But it is also the law of the land. The 1998 Curt Flood Act, as the court appropriately explains, "made clear [Congress intended] to maintain the baseball exemption for anything related to the employment of minor league players."

There is no question Congress can change the law, and there is no question Congress has not. This is one to be resolved via negotiation or legislation, issue, and not via the courts.  

June 27, 2017 in Current Affairs, Joshua P. Fershee, Legislation, Sports | Permalink | Comments (0)

Wednesday, June 21, 2017

Is This the End of Uber's PR Nightmare?

Yesterday, during a conversation with a law student about whether corporate social responsibility is a mere marketing ploy to fool consumers, the student described her conflict with using Uber. She didn’t like what she had read in the news about Uber’s workplace culture issues, sex harassment allegations, legal battles with its drivers, and leadership vacuum. The student, who is studying for the bar, probably didn’t even know that the company had even more PR nightmares just over the past ten days--- the termination of twenty employees after a harassment investigation; the departure of a number of executives including the CEO’s right hand man; the CEO’s “indefinite” leave of absence to “mourn his mother” following a scathing investigative report by former Attorney General Eric Holder; and the resignation of a board member who made a sexist remark during a board meeting (ironically) about sexism at Uber. She clearly hadn’t read Ann Lipton’s excellent post on Uber on June 17th.

Around 1:00 am EST, the company announced that the CEO had resigned after five of the largest investors in the $70 billion company issued a memo entitled “Moving Uber Forward.” The memo was not available as of the time of this writing. According to the New York Times:

The investors included one of Uber’s biggest shareholders, the venture capital firm Benchmark, which has one of its partners, Bill Gurley, on Uber’s board. The investors made their demand for Mr. Kalanick to step down in a letter delivered to the chief executive while he was in Chicago, said the people with knowledge of the situation.

… the investors wrote to Mr. Kalanick that he must immediately leave and that the company needed a change in leadership. Mr. Kalanick, 40, consulted with at least one Uber board member, and after long discussions with some of the investors, he agreed to step down. He will remain on Uber’s board of directors.

This has shades of the American Apparel controversy with ousted CEO Dov Charney that I have blogged about in the past. Charney also perpetuated a "bro culture" that seemed unseemly for a CEO, but isn't all that uncommon among young founders. The main difference here is that the investors, not the Board, made the decision to fire the CEO. As Ann noted in her post this weekend, there is a lot to unpack here. I’m not teaching Business Associations in the Fall, but I hope that many of you will find a way to use this as a case study on corporate governance, particularly Kalanick’s continuation as a board member. That could be awkward, to put it mildly. I plan to discuss it in my Corporate Compliance and Social Responsibility course later today. As I have told the students and written in the past, I am skeptical of consumers and their ability to change corporate culture. Sometimes, as in the case of Uber, it comes down to the investors holding the power of the purse.

June 21, 2017 in Ann Lipton, Compliance, Corporate Governance, Corporate Personality, CSR, Current Affairs, Marcia Narine Weldon, Teaching | Permalink | Comments (0)

Wednesday, June 7, 2017

Why Do Companies Bother With Corporate Social Responsibility Reports?

In 2016, a number of news outlets focused on Wal-Mart’s reputation crisis and outdated management style. Many, including union leaders, doubted the sincerity behind the company’s motivation in raising wages last year. I’ve blogged about Wal-Mart before, but today, there appears to be a different story to tell. Wal-Mart, the bogeyman of many NGOs and workers’ rights groups, actually believes that “serving the customers and society is the same thing… [and] putting the customer first means delivering for them in ways that protect and preserve the communities they live in and the world they will pass on to future generations.” This comes from the company’s 148-page 2016 Global Responsibility Report. Target’s report is a paltry 43 pages in comparison.

What accounts for the difference? Both use the Global Reporting Initiative framework, which aims to standardize sustainability reporting using materiality factors and items in the 10-K. Key GRI disclosures include: a CEO statement; key impacts, risks, and opportunities; markets; collective bargaining agreements; supply chain description; organizational changes; internal and external CSR standards (such as conflict mineral policy, LEED etc); membership associations; governance structure; high-level accountability for sustainability; consultation between stakeholders and the board; board composition; board knowledge of sustainability; board pay; helplines or hotlines for reporting unethical or unlawful behavior; climate change risks; energy consumption; GhG emissions; employee benefits; health and safety; performance appraisal process; human rights assessments; wage and hour audits; supplier diversity; community engagement; PAC contributions by party; and more.

Whew! Companies can of course glean a lot of this information from their proxy, 10-K and other disclosures, but it still takes the average company months to complete. It may not even be worth it. Although 82% of consumers say they want to buy from a socially-responsible company, only 17% have actually read a CSR report, according to one study.  To be honest, I’m surprised the number of CSR report readers is that high. My informal survey during Monday's class revealed that one student out of the 12 had read a CSR report, and this is in a group that chose to take a two-hour course in compliance and CSR that meets at 7:30 pm in the summer.

Here’s what I learned about Wal-Mart by reading the first four pages its report (it cleverly has big colorful picture blocks of statistics). I knew from press reports that Wal-Mart is currently facing numerous employment law class actions and may soon pay $300 million to the DOJ settle its bribery scandal. But the CSR report made Wal-Mart look like the model corporate citizen. The company earned 482 billion in revenue, employs 2.3 million employees, operates in 28 countries, and had 260 million weekly customer visits in 2016. It has invested 2.7 billion over 2 years in wages and benefits for its employees. It will train 1 million female farmers and factory workers around the world. It has eliminated 35.6 million metric tons of greenhouse gas emissions from its supply chain. Target, which has settled for 18.5 million with several states over data breaches, took a different approach for its report. Its first few pages has pictures and charts too but focuses on what it has achieved/exceeded and what it hasn’t based on its own 20 goals. The Target 2015 report is a decidedly more humble looking document than the Wal-Mart product (the next Target report is due this year). 

I tend to believe that these CSR reports are designed for the consumption of regulators and lawmakers- hence the longer and more robust Wal-Mart report. Although Target claims in its report that CSR can enhance its reputation, the average Wal-Mart and Target consumer will not stop to read the report and many who boycott these stores will not likely change their minds be reading these reports. Instead, they may view them as an expensive marketing tool. Although Target doesn't face the same level of legal problems or reputational issues as Wal-Mart, it has still lost market share to Wal-Mart and Amazon, proving my theory that no matter what consumers say about shopping ethically, they really focus on convenience, quality, and price. 

I look forward to hearing what my students think at tonight’s class. I fear I may already traumatize them with the videos they will see about Nike, fair trade, and whether boycotting sweatshops make sense.

June 7, 2017 in Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Marcia Narine Weldon | Permalink | Comments (0)

Tuesday, June 6, 2017

GM Votes Show Value of Shareholder Proposals as a Process for Accountability

More than two years ago, I posted Shareholder Activists Can Add Value and Still Be Wrongwhere I explained my view on shareholder proposals: 

I have no problem with shareholders seeking to impose their will on the board of the companies in which they hold stock.  I don't see activist shareholder as an inherently bad thing.  I do, however, think  it's bad when boards succumb to the whims of activist shareholders just to make the problem go away.  Boards are well served to review serious requests of all shareholders, but the board should be deciding how best to direct the company. It's why we call them directors.    

Today, the Detroit Free Press reported that shareholders of automaker GM soundly defeated a proposal from billionaire investor David Einhorn that would have installed an alternate slate of board nominees and created two classes of stock.  (All the proposals are available here.) Shareholders who voted were against the proposals by more than 91%.  GM's board, in materials signed by Mary Barra, Chairman & Chief Executive Officer and Theodore Solso, Independent Lead Director, launched an aggressive campaign to maintain the existing board (PDF here) and the split shares proposal (PDF here).  GM argued in the board maintenance piece: 

Greenlight’s Dividend Shares proposal has the potential to disrupt our progress and undermine our performance. In our view, a vote for any of the Greenlight candidates would represent an endorsement of that high-risk proposal to the detriment of your GM investment.

Another shareholder proposal asking the board to separate the board chair and CEO positions was reported by the newspaper as follows: "A separate shareholder proposal that would have forced GM to separate the role of independent board chairman and CEO was defeated by shareholders." Not sure. Though the proposal was defeated, it's worth noting that the proposal would not have "forced" anything.  The proposal was an "advisory shareholder proposal" requesting the separation of the functions.  No mandate here, because such decisions must be made by the board, not the shareholders.  The proposal stated: 

Shareholders request our Board of Directors to adopt as policy, and amend our governing documents as necessary, to require the Chair of the Board of Directors, whenever possible, to be an independent member of the Board. The Board would have the discretion to phase in this policy for the next CEO transition, implemented so it did not violate any existing agreement. If the Board determines that a Chair who was independent when selected is no longer independent, the Board shall select a new Chair who satisfies the requirements of the policy within a reasonable amount of time. Compliance with this policy is waived if no independent director is available and willing to serve as Chair. This proposal requests that all the necessary steps be taken to accomplish the above.

GM argued against this proposal because the "policy advocated by this proposal would take away the Board’s discretion to evaluate and change its leadership structure." Also not true.  It the proposal were mandatory, then this would be true, but as a request, it cannot and could not take away anything.  If the shareholders made such a request and the board declined to follow that request, there might be repercussions for doing so,  but the proposal would have kept in place the "Board’s discretion to evaluate and change its leadership structure."  

These proposals appear to have been properly brought, properly considered, and properly rejected.  As I suggested in 2015, shareholder activists can help improve long-term value, even when following the activists' proposals would not.  That is just as true today and these proposals may well prime the pumpTM for future board or shareholder actions.  That is, GM has conceded that its stock is undervalued and that change is needed.  GM argues those changes are underway, and for now, most voting shareholder agree.  But we'll see how this looks if the stock price has not noticeably improved next year.  An alternative path forward on some key issues has been shared, and that puts pressure on this board to deliver.  They can do it their own way, but they are on notice that there are alternatives.  An shareholders now know that, too.

This knowledge underscores the value of shareholder proposals as a process.  They can and should create accountability, and that is a good thing. I agree with GM that the board should keep control of how it structures the GM leadership team.  But I agree with the shareholders that if this board doesn't perform, it may well be time for a change.  

June 6, 2017 in Corporate Finance, Corporate Governance, Corporations, Current Affairs, Financial Markets, Joshua P. Fershee, Management, Securities Regulation, Shareholders | Permalink | Comments (0)

Monday, June 5, 2017

Marketing God and Jesus: The Growing Commercialization of Religion

This past week, I traveled through parts of Tennessee and Georgia to attend a concert (Train with Natasha Bedingfield and O.A.R.--fantastic!) and visit the University of Georgia School of Law (to plan the 2018 National Business Law Scholars conference).  On that trip, I saw a number of billboards with religious messages--more than I remember having seen in the past.  This set me to reflecting on the use of billboards--typically commercial space--for this purpose.  I share a few observations today on that topic.

The messages on the billboards I saw appear to be important to the speakers who offer them.  [Note that in this paragraph I am working from memory but have tried to describe what I saw as accurately as possible.]  I saw several that were just printed with the word "JESUS" (in all capital letters, as I have written it here) and one that said: "TRUST JESUS" (again, in all caps, as written here) with a faded waving American flag in the background.  But the most striking billboard that I saw was one that stated: "In the beginning God created everything," a message that was accompanied on the left by a circle in which the Darwinian progression to humankind was depicted and across which there was a large "X."

On the one hand, highway billboards are a great vehicle for the exercise of free speech.  We are captive in our vehicles and generally bound to certain key routes when engaged in car travel over any significant distance.  Other than distinctive local flora and buildings (as well as traffic, exit, and other roadside driving guidance), billboards are the primary visual as one drives on a highway.  In fact, their size often makes them more attractive than those flowers, structures, and signage.  (Although I have never missed an exit for a billboard, I have come close.)

The use of billboards for religious messaging does not convert the message to commercial speech (to the extent that question may be relevant to any free speech analysis).  

Continue reading

June 5, 2017 in Current Affairs, Joan Heminway, Religion | Permalink | Comments (6)

Friday, June 2, 2017

"Even Bank Robbers Can Tithe"

One of the most striking lines in Provost Jeff Van Duzer's talk at the Nashville Institute of Faith and Work a few months ago was his statement that "even bank robbers can tithe."

See a somewhat similar version of that talk here.

Jeff Van Duzer's point seemed to be that you cannot be a truly socially responsible company simply by giving some money to good causes. I think he was exactly right. He went on to explain that socially responsible businesses should focus on creating good products and good jobs. 

This week I was thinking about Jeff Van Duzer's talk when I considered, for about the one hundredth time, how to define social enterprises.

Think about Ben & Jerry's, a company that comes up at almost every social enterprise conference. While I can think of some good that ice cream does, I wonder if Ben & Jerry's main products are, on the whole, socially beneficial. We have a serious, deadly obesity problem in the country, and Ben & Jerry's products seem to be contributing to this problem. Perhaps Ben & Jerry's ice cream is more healthy than most options or uses more natural ingredients (I am unsure if this is true), but are Ben & Jerry's core products a net benefit to society? Perhaps Ben & Jerry's tip the scale in the social direction by providing good jobs with good benefits. However, Ben & Jerry's is best known for their giving and advocacy, which any business (no matter how socially destructive) could do.

The same arguments could be made against Hershey and Mars Corp., both of which are also well known for their focus on social responsibility. Are there certain industries that social enterprises should avoid altogether? Or should social enterprises enter all industries and try to make them incrementally better?

As a consumer, I am becoming more convinced that providing good products should among the very highest priorities. High quality products and thoughtful customer service is becoming increasingly difficult to find.

Given that I have two young children, Melissa & Doug toys come to mind as a company that is doing it right. Their products are durable and well-designed. Their products are designed to encourage Free Play, Creativity, Imagination, Learning, Discovery. Little Tikes is an older, but similar, company. I have never heard Melissa & Doug or Little Tikes referred to as "social enterprises," but, in my opinion, both companies benefit society much more than many of the frequently mentioned "social enterprises." 

June 2, 2017 in Corporations, CSR, Current Affairs, Haskell Murray, Social Enterprise | Permalink | Comments (5)

Friday, May 26, 2017

Nike Oregon Project and Morals Clauses

Logo

Last Friday, The New York Times ran a story on possible performance enhancing drug use inside the Nike Oregon Project.

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. 

May 26, 2017 in Current Affairs, Ethics, Haskell Murray, Sports | Permalink | Comments (0)

Tuesday, May 23, 2017

Just Because You Can, Doesn't Mean You Should, Detroit Lions Edition

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.  

May 23, 2017 in ADR, Compensation, Contracts, Corporate Personality, Current Affairs, Joshua P. Fershee, Lawyering, Sports | Permalink | Comments (1)

Saturday, May 20, 2017

Loyalty to Whom (or What)?

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?  

Continue reading

May 20, 2017 in Agency, Business Associations, Corporate Governance, Corporations, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (4)

Tuesday, May 16, 2017

What is Loyalty?

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

3. obsolete :  lawful, legitimate

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. 

May 16, 2017 in Current Affairs, Joshua P. Fershee, Lawyering, Philosophy | Permalink | Comments (1)