Wednesday, April 26, 2017
COLLECTIVE BOOK ON LEGAL INNOVATION
Call for submissions
The program « Law & Management » developed by the European Center of Law and Economics (known as CEDE in French) of ESSEC Business School, is an innovative and pioneering research program which aims to study the use of law as a competitive factor.
In this regard, the members of the research program « Law & Management » have decided to publish a collective book focusing on legal innovation. This book, co-edited by A. Masson (ESSEC) and D. Orozco (Florida State University), will analyze, by crossing the points of view of lawyers and creative specialists, the concept and life cycle of legal innovations, techniques and services, whether they are related to legislation, legal engineering, legal services, legal strategies…, as well as the role of law as a source of creativity and interdisciplinary teamwork. All the techniques that could facilitate legal innovations from the perspective of design thinking to predictive design, through the customer experience will be analyzed.
The program Board is now opening the call for proposals. Papers proposals (consisting in a brief summary in English) of a maximum length of 1000 words, should be sent to A. Masson (email@example.com) by May 8th, 2017. A least one practical example of legal innovations on which the papers will rely on must be mentioned in the proposals.
The proposals will be reviewed and selected by a scientific committee. Authors will receive a definitive answer by June 6th, 2017. The final manuscripts will be expected by October 9th, 2017.
A conference, following the publication of the book, will be organized in Paris in 2018.
With the support of the Paris Île-de-France Regional Chamber of Commerce and Industry and the French Corporate Counsel Association (AFJE).
Friday, April 21, 2017
In this semester's student mentorship group, we have been discussing personal priorities and principles. The consensus from the students seems to be that this topic is not only useful, but also more difficult than originally envisioned. A number of the students expressed a lack of clarity regarding their own priorities and life principles, but they recognized the need for deep thinking about those things.
Outlining priorities and principles could be a useful exercise for politicians and professors as well. Without a clear understanding of our priorities and principles, we often drift toward our political parties and the visible rewards dangled in front of us.
Regarding both politicians and professors, I am most inspired by those who take stands that do not benefit their party or themselves, but rather make the stand because it is the “right thing” to do. Professors, obviously, have more freedom to seek and speak the truth, but I think that professors' impact will be greater if they stick to their principles regardless of the party in power.
Of course sticking to priorities and principles does not guarantee a good or admirable outcome. One must have “good” priorities and principles. What qualifies as “good” is beyond the scope of this short blog post, but I do think priorities and principles that are selfless (or as selfless as we are capable of being) tend to be good ones.
Monday, April 17, 2017
As Haskell earlier announced here at the BLPB, The first U.S. benefit corporation went public back in February--just before publication of my paper from last summer's 8th Annual Berle Symposium (about which I and other BLPB participants contemporaneously wrote here, here, and here). Although I was able to mark the closing of Laureate Education, Inc.'s public offering in last-minute footnotes, my paper for the symposium treats the publicly held benefit corporation as a future likelihood, rather than a reality. Now, the actual experiment has begun. It is time to test the "visioning" in this paper, which I recently posted to SSRN. Here is the abstract.
Benefit corporations have enjoyed legislative and, to a lesser extent, popular success over the past few years. This article anticipates what recently (at the eve of its publication) became a reality: the advent of a publicly held U.S. benefit corporation — a corporation with public equity holders that is organized under a specialized U.S. state statute requiring corporations to serve both shareholder wealth aims and social or environmental objectives. Specifically, the article undertakes to identify and comment on the structure and function of U.S. benefit corporations and the unique litigation risks to which a publicly held U.S. benefit corporation may be subject. In doing so, the article links the importance of a publicly held benefit corporation's public benefit purpose to litigation risk management from several perspectives. In sum, the distinctive features of the benefit corporation form, taken together with key attendant litigation risks for publicly held U.S. benefit corporations (in each case, as identified in this article), confirm and underscore the key role that corporate purpose plays in benefit corporation law.
Ultimately, this article brings together a number of things I wanted to think and write about, all in one paper. While many of the observations and conclusions may seem obvious, I found the exploration helpful to my thinking about benefit corporation law and litigation risk management. Perhaps you will, too . . . .
April 17, 2017 in Anne Tucker, Business Associations, Corporate Governance, Corporations, Current Affairs, Haskell Murray, Joan Heminway, Litigation, Management, Social Enterprise | Permalink | Comments (0)
Friday, April 14, 2017
By now, I am sure virtually all of our readers have heard about the United Airline issue involving the dragging of a passenger off the plane.
Shortly following the incident, United Airlines stock dropped sharply, losing hundreds of millions of dollars of value. (Of course, it is difficult to tell how much of this drop is related to the incident).
The CEO of United Airlines' first public statement was tone deaf at best. He wrote, "I apologize for having to re-accommodate these customers" when better terms would have been "unacceptable" and "immediate corrective procedures." There is not evidence that they "had" to remove passengers; they removed passengers because they wanted to transport some of their employees on that flight. The internal e-mail to the corporation's employees was no better, calling the passenger "disruptive and belligerent."
My social media feeds, which include many lawyers and legal academics, are full of debate over whether United Airlines acted within the bounds of the law and their terms & conditions. While this is an interesting discussion, I think it is largely beside the point in this case. Regardless of whether United Airlines was legally correct, they surely could have handled the situation better (by offering more money for volunteers to go on a later flight, by explaining the terms of the deal better, by having their employees transported in another plane, etc.)
United Airlines is already paying a heavy public relations price. One thinks they would have learned from the United Airlines Breaks Guitars incident that went viral a few years ago and which I use in my negotiation classes every year.
After this incident, I just kept thinking how unlikely it would be for something like this to happen at Southwest Airlines. Southwest Airlines has a famously great company culture. See here, here, and here. Their employees always treat me significantly better than any other airline employee I have dealt with on my travel. Southwest Airlines is not perfect--I don't love their odd boarding procedure, for example---but they do strive to treat their consumers and their own employees extremely well, not just as poorly as the law will allow.
Southwest Airlines' company culture has also translated to remarkably reliable profits. Perhaps United needs to take notes.
Note: This appears to detail the rights of passengers who are denied boarding (up to $1,350) that many in the media are citing, though one can wonder whether this applies since the passenger in question had already boarded.
Friday, April 7, 2017
Today’s topic does not have a direct connection to business law, but I do think toughness is important to students, professors, and lawyers. And the Barkleys Marathon is all about toughness, and maybe insanity. So indulge me. I have been thinking about the race, which happened this past weekend, all week. My wife said I wasn't allowed to talk about the Barkley Marathons anymore, so I am going to write about it here.
If you have not seen the documentary on Netflix entitled The Barkley Marathons: The Race that Eats its Young, watch it. See the documentary's trailers here and here. See more about the race here.
I will save you from this overlong, mostly unrelated post with a page break, but if you are interested, you can proceed and read below.
Friday, March 31, 2017
As Professor Steve Bainbridge and others reported last May, SSRN was sold to Elsevier.
Until a few weeks ago, I hadn't noticed much of a difference, except for an improved layout on the article pages.
After posting my American Business Law Journal ("ABLJ") article, however, I got an e-mail that my article had been taken down. They claimed that the copyright was held by the ABLJ, which is simply incorrect, as my contract with Wiley (the publisher of the ABLJ) clearly states "The Author retains ownership of the copyright in the Article," and the contract explicity allows me to post the article (including on SSRN) with citation. (Section 2.1)
I sent SSRN my contract and waited a number of days without a response. I then called SSRN's help line and received an apology, but the person did not have the ability to post my article even though she said that they had received the contract and that everything was cleared. The article is now up (and went up shortly after my phone call to SSRN), unless they have already taken it down again.
The whole thing was quite a hassle, and I am not quite sure why they flagged this article.
I do generally find SSRN useful, and in the grand scheme of things this is not a huge deal, but if anyone has a better alternative, I may be willing to try it.
Friday, March 24, 2017
In the latest Impact Esq. newsletter, Kyle included a link to the Kickstarter’s 2016 Benefit Statement. Kyle wrote that he had “never seen [a benefit report] as strong as Kickstarter’s.” Personally, I am not sure I would go that far. I think Greyston Bakery’s Report and Patagonia’s Report are at least as good. I do think the Kickstarter report is relatively good, but the bar is incredibly low, as many benefit corporations are ignoring the statutory reporting requirement or doing a pathetically bad job at reporting.
While the Kickstarter report is more detailed than most, it still reads mostly like a PR piece to me. The vast majority of the report is listing cherry-picked, positive statistics. That said, Kickstarter did note a few areas for possible improvement, which is extremely rare in benefit report. Kickstarter stated that they could do more to promote “sustainability,” that they could do more to encourage staff to “take advantage of the paid time off we provide for volunteering,” and that they wanted to “encourage greater transparency from creators, better educate backers about the risks and rewards of this system, and further empower our Integrity team in their work to keep Kickstarter safe and trusted.” These “goals” for improvement are quite vague, and I would have liked to see more specific goals.
A few other things to note:
- University of Pennsylvania produced a study, which was cited and used in the report. I think involving universities in the creation of these reports could be a good idea, though possible conflicts should be considered.
- “Including both salary and equity, our CEO's total compensation equaled 5.52x the median total compensation of all non-CEO, non-founder employees in 2016. For context, a 2015 study examining the executive pay gap found that the average CEO earns 204 times that of the median worker for the same company.” I would be interested in how Kickstarter’s number compares to companies in their industry, especially direct competitors. I imagine the CEO/Employee compensation ratio is lower in the technology industry, where the market demands fairly high employee compensation, but even considering the industry, Kickstarter's ratio still seems quite low.
- “Kickstarter overall team demographics: 53% women; 47% men. 70% White/Caucasian; 12% Asian; 12% two or more races; 4% Hispanic or Latino; 2% Black/African American.” This seems to be a good bit more diverse, especially as to gender, than other technology companies who have released similar data.
- “Everyone who works at Kickstarter receives an annual Education Stipend to explore their interests outside the office. In 2016, our employees used their stipends towards blacksmithing classes, a bookmaking class, a synthesizer, pottery courses, an herbal medicine workshop, art supplies, improv classes, a neon light making seminar, and embroidery.” I didn’t see how much the education stipend was, but this seems like a good perk.
- “We donated 5% of our after-tax profits to six organizations working to build a more creative and equitable world.” Profits are easier to manipulate than revenues; I’d like to see a revenue floor (as Patagonia does – donating the greater of 10% of profits and 1% of revenues). That said 5% of profits can be significant and does show some commitment to these causes.
Friday, March 17, 2017
Professor Keith Diener of Stockton University School of Business, who is a former law school classmate of mine and the current managing editor of the Atlantic Law Journal, agreed to answer some questions related to the journal.
The flagship journals for the Academy of Legal Studies in Business ("ALSB") are the American Business Law Journal (ABLJ) and the Journal of Legal Studies Education (JLSE, primarily pedagogy articles and teaching cases). In addition to these two journals, each regional association is generally responsibly for at least one journal with the Atlantic Law Journal coming out of the Mid-Atlantic region.
As Keith explains below, these journals are open to a wide range of scholars, including professors from law schools. I would encourage legal scholars who have not published in a traditional peer reviewed journal to consider submitting to one of the ALSB journals. I have published in both the ABLJ and the JLSE, and I have had good experiences in both cases.
Please provide us a brief overview of the Atlantic Law Journal and the MAALSB.
The Mid-Atlantic Academy for Legal Studies in Business (MAALSB) is an association of teachers and scholars primarily in the fields of business law, legal environment, and law-related courses outside of professional law schools with members from the Mid-Atlantic states, including Delaware, Maryland, Pennsylvania, Virginia & West Virginia. Residence in those states is not required for membership in the MAALSB, and many of our members come from different regions and states. In addition to sponsoring the Atlantic Law Journal, MAALSB holds an annual conference for our region usually in April of each year, where our members meet, present papers, and exchange ideas. The MAALSB is one of the regional branches of the national Academy of Legal Studies in Business (ALSB).
For over a decade, the Atlantic Law Journal was tied to the MAALSB annual conference. Presentation at the conference provided an opportunity for publication in the journal. A few years ago, the journal restructured and began accepting articles on a rolling basis, year-round. We welcome submissions from law professors, whether in law schools or not, but generally do not accept student-authored articles. We are soon entering our twentieth year as a viable legal publication.
What is your current role with the journal and what roles do other faculty members play?
The Atlantic Law Journal has a dedicated team of editors who, depending on classification, perform different roles within the journal.
Our Editor-and-Chief, Professor Cynthia Gentile, leads the journal, manages its website, publishes the annual volume, manages its listings in Cabell’s and Washington and Lee’s Journal Rankings, and coordinates indexing and archiving on Westlaw. As Editor-and-Chief, Professor Gentile is primarily responsible for journal outreach, growth, and sustainability.
I currently serve the journal as the Managing Editor. In this capacity, I receive all submissions to the journal, sanitize them for double, blind peer review, send the sanitized articles to our staff editors for review, receive their recommendation and feedback forms, and notify authors of publication decisions.
We currently have two Articles Editors, Professors Laura Dove and Evan Peterson, who work with the accepted authors to prepare their manuscripts for publication, by editing the articles and making suggestions for improvement even after acceptance.
We also have a team of roughly 30-40 professors from around the country who serve the journal as Staff Editors. Without our Staff Editors, our journal would not function. They are responsible for peer-reviewing the submitted articles, and making recommendations for (i) acceptance, (ii) conditional acceptance, (iii) revision and resubmission, or (iv) rejection of the submitted articles.
What details can you provide about the submission process, including contact information, desired word-count range, typical article topics, etc.?
We generally publish annually, usually in July or August. September through January are typically the best months to submit if you are seeking to be published in the following summer. Spring semester submissions are also welcome, but are often more competitive. Although there are no per se word ranges, article lengths typically span 7,500 to 15,000 words. We publish a wide range of articles, but to be published in the Atlantic Law Journal, the article must have a nexus to business law theory or pedagogy, broadly construed.
The acceptance rate remains at or below 25%. This means that for every article we accept, at least three are initially turned down (although some are given the opportunity to resubmit).
You can submit by emailing the Managing Editor a complete copy and a blind copy, with Bluebook formatted footnotes, in accordance with the instructions and contact information found on our website.
What details can you provide about the review process and editing process?
Upon submission, you will receive a response, typically within a few days, confirming receipt of your article. From there, soon after, the article is typically sent to Staff Editors for peer review. To the extent possible, we match article content with the expertise of our Staff Editors to ensure a fair and professional review. We also find that the feedback provided by Staff Editors to authors is most helpful when they have expertise related to the article. Once appropriate and available Staff Editors are identified, they then review the article and return their recommendations to the Managing Editor. The Managing Editor then notifies the author of the publication decision. If an article is accepted, then the author is introduced to one of our Articles Editors for finalization of the essay.
We strive to inform authors of publication decisions within eight (8) weeks of submission.
In your opinion, what are the advantages and disadvantages of publishing with the Atlantic Law Journal?
In my opinion, there are many advantages to publishing with the Atlantic Law Journal.
The first advantage is that (unlike many law reviews today), if you submit to the Atlantic Law Journal, someone will respond to you when you submit it. Yet, not only will you receive a response, but you will also have your article read and reviewed by professional academics in the field of business law (who are also lawyers). We do not utilize law students in our publication process, and all our editors are professional academics.
Second, the Atlantic Law Journal is listed in Cabell’s, ranked by Washington and Lee, and available on Westlaw. This means that articles appear not only in our volumes linked on our website, but are also indexed, searchable, and fully archived on Westlaw. This produces the potential for a broad impact and increased author visibility.
Third, while there appears to be a trend towards some law reviews accepting shorter articles, the Atlantic Law Journal already accepts shorter pieces (circa 7500 words). Let’s face it, sometimes there’s just not 50,000 words to say about certain topics. If you have a shorter piece that might not be long enough for a law review, the Atlantic Law Journal may be interested in it.
Fourth, unlike many law reviews, the Atlantic Law Journal is interested in articles, not only as to theoretical and scholastic topics, but also topics related to business law pedagogy. If you’ve tried something new in the classroom, had good results, and desire to share it with others, the Atlantic Law Journal may be interested. Our primary readership includes business law professors, who are always looking for new and innovative pedagogical techniques. We also welcome scholarly and theoretical articles, and try to include a mix of both scholarly and pedagogical articles in each edition.
Finally, all articles are double, blind peer reviewed. If your article is not accepted, we endeavor to provide high quality feedback that will allow you to improve your article as you continue your work on it. Our blind review is a genuine process. As Managing Editor of the journal, I am committed to ensuring the journal’s integrity by sanitizing all submissions (removing all meta-data) prior to sending the articles for review.
For more on the MAALSB and the Atlantic Law Journal, see our website.
- Dr. Keith William Diener
Friday, March 10, 2017
On of the many interesting things discussed during the social enterprise law workshop at Notre Dame Law School was the "FairShares Model." Nina Boeger (University of Bristol-UK) brought the model to the group's attention, and the model was new news to me.
The FairShares Model was "created during a research programme on democratising charities, co-operatives and social enterprises involving academics at Sheffield Hallam University and Manchester Metropolitan University in the UK."
The FairShares Model cites the "Social Enterprise Europe Ltd" when noting that social enterprises "aim to generate sustainable sources of income, but measure their success through:
Specifying their purpose(s) and evaluating the impact(s) of their trading activities;
Conducting ethical reviews of their product/service choices and production/consumption practices;
- Promoting socialized and democratic ownership, governance and management."
To address theses aims, the FairShares Model offers social audits and suggests the issuing some combination of (1) founder shares, (2) labour shares, (3) investor shares, (4) user shares.
While I agree that significant corporate governance changes should be considered, at first glance this model seems a bit unwieldy if all four types of shares are issued. Still, I am interested in learning more.
Friday, March 3, 2017
With co-editor Joan Heminway (and Anne Tucker via Skype), I am at Notre Dame for a symposium on social enterprise law. I will be presenting on aforthcoming book chapter, which builds on my stakeholder advisory board idea. My article Adopting Stakeholder Advisory Boards article was recently published in the American Business Law Journal and I posted it to SSRN this week. The abstract is reproduced below.
Over the past decade, interest in socially responsible business has grown exponentially. The social business movement seeks to have firms focus on the interests of all corporate stakeholders, rather than solely the financial interests of shareholders. Coupled with the social business movement of the past decade has been the passage of social enterprise statutes by over thirty states. The social enterprise statutes provide legal frameworks for firms that seek profit alongside broader social and environmental ends. A plethora of social enterprise legal forms have been created in the United States since 2008, including benefit corporations, public benefit corporations, benefit LLCs, low-profit limited liability companies (L3Cs), general benefit corporations, specific benefit corporations, sustainable business corporations, and social purpose corporations.
Despite the interest in social business and the passage of numerous social enterprise laws, the basic corporate governance framework has stayed largely the same. In both socially-focused traditional companies and in newly formed social enterprises, the corporate governance system is one that empowers directors, officers, and shareholders, but largely ignores other stakeholders such as employees, customers, vendors, creditors, the environment, and the community at large.
This Article explores the shortcomings of the current corporate governance framework, reveals inadequacies in previous proposals to focus firms on all stakeholders, and proposes a stakeholder advisory board as a solution. As proposed, the stakeholder advisory board will give all major stakeholders a more direct voice in firm governance and will grant more stakeholders limited but significantly powers, without harmfully disrupting the efficiency of the board of directors. If adopted, the stakeholder advisory board will better align the corporate governance framework with the recent social business movement by including representatives of all stakeholder groups in decision-making. This proposal suggests mandating adoption of a stakeholder advisory board for large social enterprises, and encourages the voluntary adoption of a stakeholder advisory board by all firms that take their social commitments seriously.
Monday, February 27, 2017
Later this week, I will head to Indiana to present at and attend a social enterprise law conference at The Law School at the University of Notre Dame. The conference includes presentations by participating authors in the forthcoming Cambridge Handbook of Social Enterprise Law, edited by Ben Means and Joe Yockey. The range of presentations/chapters is impressive. Fellow BLPB editors Haskell Murray and Anne Tucker also are conference presenters and book contributors.
Interestingly (at least for me), my chapter relates to Haskell's post from last Friday. The title of my chapter is "Financing Social Enterprise: Is the Crowd the Answer?" Set forth below is the précis I submitted for distribution to the conference participants.
Crowdfunding is an open call for financial backing: the solicitation of funding from, and the provision of funding by, an undifferentiated, unrestricted mass of individuals (the “crowd”), commonly over the Internet. Crowdfunding in its various forms (e.g., donative, reward, presale, and securities crowdfunding) may implicate many different areas of law and intersects in the business setting with choice of entity as well as business finance (comprising funding, restructuring, and investment exit considerations, including mergers and acquisitions). In operation, crowdfunding uses technology to transform traditional fundraising processes by, among other things, increasing the base of potential funders for a business or project. The crowdfunding movement—if we can label it as such—has principally been a populist adventure in which the public at large has clamored for participation rights in markets from which they had been largely excluded.
Similarly, the current popularity of social enterprise, including the movement toward benefit corporations and the legislative adoption of other social enterprise business entities, also stems from populist roots. By focusing on a double or triple bottom line—serving social or environmental objectives as well as shareholder financial wealth—social enterprises represent a distinct approach to organizing and conducting business operations. Reacting to a perceived gap in the markets for business forms, charters, and tax benefits, social enterprise (and, in particular, benefit corporations) offer venturers business formation and operation alternatives not available in a market environment oriented narrowly around the maximization or absence of the private inurement of financial value to business owners, principals, or employees.
Perhaps it is unsurprising then, that social enterprise has been relatively quick to engage crowdfunding as a means of financing new and ongoing ventures. In addition, early data in the United States for offerings conducted under Regulation CF (promulgated under the CROWDFUND Act, Title III of the JOBS Act) indicates a relatively high incidence of securities crowdfunding by social enterprise firms. The common account of crowdfunding and social enterprise as grassroots movements striking out against structures deemed to be elitist or exclusive may underlie the use of crowdfunding by social enterprise firms in funding their operations.
Yet, social enterprise’s early-adopter status and general significance in the crowdfunding realm is understudied and undertheorized to date. This chapter offers information that aims to address in part that deficit in the literature by illuminating and commenting on the history, present experience, and future prospects of financing social enterprise through crowdfunding—especially securities crowdfunding. The chapter has a modest objective: to make salient observations about crowdfunding social enterprise initiatives the based on doctrine, policy, theory, and practice.
Specifically, to achieve this objective, the chapter begins by briefly tracing the populist-oriented foundations of the current manifestations of crowdfunding and social enterprise. Next, the chapter addresses the financing of social enterprise through crowdfunding, focusing on the relatively recent advent of securities crowdfunding (including specifically the May 2016 introduction of offerings under Regulation CF in the United States). The remainder of the chapter reflects on these foundational matters by contextualizing crowdfunded social enterprise as a part of the overall market for social enterprise finance and making related observations about litigation risk and possible impacts of securities crowdfunding on social enterprise (and vice versa).
Please let me know if you have thoughts on any of the matters I am covering in my chapter or resources to recommend in finishing writing the chapter that I may not have found. I seem to find new articles that touch on the subject of the chapter every week. I will have more to say on my chapter and the other chapters of the Handbook after the conference and as the book proceeds toward publication.
Sunday, February 26, 2017
I have updated my business law professor jobs list here.
While many of the schools on this list, which was originally posted this past summer, have likely now filled those positions, there are a few new postions posted in the last month or so.
Those new position postings include two in law schools: NYU (a law & social enterprise fellowship) and Victoria University (New Zealand). And five new postings are legal studies positions in business schools: Appalachian State University, Minnesota State University, Morgan State University, St. Peter's University, and Warner University.
Friday, February 24, 2017
One of the many questions surrounding benefit corporations is whether their choice of legal entity form will scare away investors.
As previously reported, we now have our first publicly traded benefit corporation. And in this week's news certified B corp and benefit corporation Data.world announced a 18.7 million dollar raise. This raise ranks in the top-ten largest raises by a benefit corporation, according to the information I have seen on benefit corporations. I compiled the publicly available information I was able to uncover on social enterprise raises (including by benefit corporations) in a forthcoming symposium article for the Seattle University Law Review. It is quite possible that there are raises that have been kept quiet and that I have not seen. This Data.world news was announced days after final edits and will not be in my article.
As is often the case in social enterprise news, this news could be seen as encouraging or discouraging for supporters of the benefit corporation form.
On one hand, this is a fairly sizeable raise and a bit of evidence that not all serious investors are scared away by a legal form that mandates a general public benefit purpose.
On the other hand, the mere fact that a raise of under $20 million dollars is big news in the benefit corporation world (commanding its own announcement e-mail from benefit corporation proponent organization B Lab) shows that the benefit corporation form has yet to go mainstream. A raise under $20 million dollars hardly qualifies as news in the traditional financial world. And, as mentioned, to date, there have only been a handful of raises of this size for companies using the social enterprise forms.
Still, I think it is fair to say that benefit corporations have already come further than harsh critics originally thought was possible. The benefit corporation form still needs to evolve significantly, in my opinion, but the form is still growing and the positive news for the form has not yet stopped.
Friday, February 17, 2017
Last week Runner’s World reported:
Mariya Savinova-Farnosova, a Russian middle distance runner, was given a four-year ban for doping by the Court of Arbitration for Sport on Friday. She will also be stripped of two gold medals she won at the 2011 world outdoor championships and 2012 London Olympics, as well as a 2013 world silver medal, all in the 800 meters.
As a result, U.S. athlete Brenda Martinez will likely soon be upgraded to a silver medal for her performance in the 800 meters at the 2013 world championships and American Alysia Montaño will receive bronze medals for her races at the 2011 and 2013 world championships. Officials will first need to verify the new results.
In this post, I’ll examine how the presumably clean athletes—like Brenda Martinez and Alysia Montaño in this case—should be treated with regards to their endorsement contracts. The main question is:
- Should the clean athletes be awarded their endorsement contract performance bonuses based on world rankings than have been revised to exclude doping athletes?
Respected law firm Reed Smith has some helpful contract interpretation materials available here, which is relevant to the discussion. All of the following is merely an academic exercise and not legal advice.
Contract Drafting and the Text of the Contract.
As with any contractual issue, we should start with the text of the contracts. Since few of these endorsement contracts are publicly available, I will use the language in Nike’s endorsement contract that was filed in the Nike v. Berian case last year.
A great many contract disputes could be avoided with clear drafting. If an endorsement contract stated that performance bonuses would be paid based on any revised rankings that remove doping athletes, then I imagine that language would control and the clean athletes would promptly get paid the difference between their old and new ranking. Doping has been uncovered frequently enough in sports like cycling and track & field (aka “athletics”) that such a contractual clarification might be helpful to include on the front end of the drafting process.
The proposed Nike contract in the Berian case does contain promised performance bonuses, based on world rankings, with additional bonuses for Olympic and World Championship Medals (pg. 14), but I did not see any guidance regarding world rankings that are revised due to doping. The potential bonuses in the Berian case were fairly significant, with the top bonus of $150,000 exceeding the proposed annual base pay of $125,000. The contract does allow Nike to terminate the contract due to any sponsored athlete’s doping offense (pg. 9), but, again, I don’t see anything about doping by the athlete’s competitors.
As the Reed Smith contract interpretation flowchart correctly states, judges attempt to construe contracts in accordance with the parties’ intent. We first look at the text of the contract, and can only look at the contract language if the wording in unambiguous. If the contract language is ambiguous (reasonably susceptible to more than one interpretation) then the court may be able to look beyond the contract (parol evidence) to determine the intent of the parties.
Here, I think the parties' intent might be interpreted either way. On one hand, the athlete could argue that the intent was to award bonuses based on the fair world rankings, which would exclude drug cheats. On the other hand, the sponsor could argue that they were paying for publicity, and that the revised rankings publicity is typically significantly less than the publicity surrounding achievement during the actual Olympics or World Championships.
As a practical matter, like most legal disputes, it probably makes sense for the athlete and the sponsoring company to settle the matter outside of court. An example of a principled negotiation could involve the sponsor paying the difference in the performance bonuses, and the athlete promising to do an anti-doping ad for the sponsor or a few extra appearances related to the new rankings.
It future posts, I may write about the appropriate punishment for athletes who use performance enhancing drugs. For example, is jail time appropriate? I may also post on ways to further compensate the clean athletes for their lost earnings, publicity, and recognition.
Thursday, February 16, 2017
Assistant Professor of Business Law Position at Ross School of Business at the University of Michigan
New job posting here; information below.
How to Apply
A cover letter is required for consideration for this position and should be attached as the first page of your resume. The cover letter should address your specific interest in the position and outline skills and experience that directly relate to this position.
Applicants are required to submit their applications electronically by visiting the website: http://www.bus.umich.edu/FacultyRecruiting and uploading the following:1. Evidence of teaching experience and competence (if any)2. A curriculum vitae that includes three references
Please contact Jen Mason, Area Administrator, via email with questions at firstname.lastname@example.org
The Stephen M. Ross School of Business at the University of Michigan is a diverse learning community grounded in the principle that business can be an extraordinary vehicle for positive change in today's dynamic global economy. The Ross School of Business mission is to develop leaders who make a positive difference in the world. Through thought and action, members of the Ross community drive change and innovation that improves business and society.Ross is consistently ranked among the world's leading business schools. Academic degree programs include the BBA, MBA, Part-time MBA (Evening and Weekend formats), Executive MBA, Global MBA, Master of Accounting, Master of Supply Chain Management, Master of Management, and PhD. In addition, the school delivers open-enrollment and custom executive education programs targeting general management, leadership development, and strategic human resource management.
The Stephen M. Ross School of Business at the University of Michigan has a tenure-track position at the assistant professor level available in Business Law starting in the Fall, 2018 term. The successful candidate will have a research and teaching focus in the area of the regulation of financial and banking organizations. Strong preference will be given to candidates with demonstrated experience and expertise in this area; ideally, this would include expertise on the definition of systemically important financial institutions, international financial standards such as Basel III, and legal standards as applied to mergers and acquisitions of banks and other financial institutions.
Qualified candidates must have an earned J.D. in from an ABA accredited law school with an excellent academic record and must demonstrate interest and ability in conducting high-quality, scholarly research. A qualified candidate must demonstrate excellence in university teaching or the potential to be an outstanding teacher in business law. Preference will be given to candidates with significant professional experience as a lawyer and/or evidence of prior excellence in teaching.
For more detailed descriptions of the Business Law Area, Ross School of Business, and the University of Michigan, Please consult our websites:
- Business Law Area: http://michiganross.umich.edu/faculty-research/areas-of-study/business-law
- Ross School of Business: http://michiganross.umich.edu/
- University of Michigan: www.umich.edu
- Benefits Information: www.umich.edu/~benefits
The University of Michigan conducts background checks on all job candidates upon acceptance of a contingent offer and may use a third party administrator to conduct background checks. Background checks will be performed in compliance with the Fair Credit Reporting Act.
The review of applications will begin immediately. Job openings are posted for a minimum of seven calendar days. This job may be removed from posting boards and filled anytime after the minimum posting period has ended.
U-M EEO/AA Statement
The University of Michigan is an equal opportunity/affirmative action employer.
Friday, February 10, 2017
Laureate Education recently became the first standalone publicly traded benefit corporation. They are organized under Delaware's public benefit corporation (PBC) law, are also a certified B corporation, and will be trading as LAUR on NASDAQ.
Plum Organics, also a Delaware PBC, is a wholly owned subsidiary of publicly-traded Campbell Soup Company. And Etsy is a publicly traded certified-B corporation, but is organized under traditional Delaware corporation law.
Whether the for-profit educator Laureate will hurt or help the popularity of benefit corporations remains to be seen, but some for-profit educators have not been getting good press lately.
Inside Higher Ed reports on Laureate Education's IPO as a benefit corporation below:
The largest U.S.-based for-profit college chain became the first benefit corporation to go public Wednesday morning.
Laureate Education, which has more than a million students at 71 institutions across 25 countries, had been privately traded since 2007. Several major for-profit higher education companies have over the last decade bounced back and forth between publicly and privately held status; also yesterday, by coincidence, the Apollo Group, owner of the University of Phoenix, formally went back into private hands….In its public debut, the company raised $490 million….
Becker said the move to become the first benefit corporation that is public is one way to show that Laureate is putting quality first.“There is certainly plenty of skepticism about whether for-profit companies can add value to society, and I feel strongly we can,” Becker said, adding that Laureate received certification from the nonprofit group B Lab after years of “rigorous” evaluations….
But the certification and the move to becoming a benefit corporation doesn’t prove a for-profit will not make bad decisions or commit risky actions that hurt students, said Bob Shireman, a senior fellow at the Century Foundation and for-profit critic.
"The one thing that being a benefit corporation does is reduce the likelihood that shareholders would sue the corporation for failing to operate in the shareholders' financial interest," Shireman said. "So it makes a marginal difference, and there's no evidence that benefit corporations, in the 10 or so years they've existed in the economy, cause better behavior."
Companies and investors could make better choices and decisions for their students without needing a benefit corporation model to do that, Shireman said, adding that the legal protection it provides is small.
"What's more important are what commitments are being made under the rubric of being a benefit corporation," he said. "How is that going to be measured and enforced … and how can they be changed or overruled by stockholders."
Head of Legal Policy at B Lab Rick Alexander, also authored a post on Laureate Education. For those who do not know, B Lab is the nonprofit responsible for the B Corp Certification and an important force behind the benefit corporation legislation that has passed in 30 states.
Friday, February 3, 2017
With the rise of Donald Trump, Vance's book and the book's topic have been much discussed.
I, however, want to focus on Vance's discussion after the 10 minute mark where he thanks various mentors for helping him overcome family financial, and community-based problems. Without a stable immediate family, Vance found guidance from his grandparents, the military, and his professors.
Raised in a predominately individualistic culture, I believed, for a long time, that hard work was the primary driver of success. I still think individual dedication is important, but looking back, I am also incredibly thankful for the many people who provided a helping hand along the way.
While most schools do not specifically reward it, I think professors are particularly well situated to mentor students. We can also be incredibly helpful to our more junior colleagues. Recognizing the value of the mentors in my own life, I do hope to "pay it forward" and become increasingly involved in the mentorship process.
Monday, January 30, 2017
Conference information from an e-mail I recently received.
The second annual Susilo Symposium of the Susilo Institute for Ethics in the Global Economy will be held on June 15-17, 2017 at Boston University Questrom School of Business.
The event will feature distinguished and varied speakers, including Professor Francesca Gino of Harvard Business School, and site visits at Aeronaut Brewing, Bright Horizons, and Fenway Park, among other exciting area companies.
The Susilo Symposium will be part of a new Global Business Ethics week, which begins at Bentley University from June 12-15 for the Global Business Ethics Symposium and teaching workshop, and then will move to BU for June 15-17.
The event promises an audience of both scholars and practitioners from around the world. All seek to explore and exchange ideas in a unique and interactive forum about the role of ethics in the global economy.
This year’s Susilo Symposium follows the inaugural symposium, which was held in May 2016 in Surabaya, Indonesia. Featuring foremost business, academic, and political leaders, it reflected on “Global Business Ethics – East Meets West.”
What to Expect
The program is directed specifically toward both academics and practitioners. Our hope is that attendees will learn from each other and take away ideas and practices that they can implement immediately.
It will feature onsite visits to global corporations and the latest start-ups, from which you will learn about today’s cutting-edge responses to challenging dilemmas.
Symposium sessions will range from traditional academic paper presentations on the most recent research on global ethics, to interactive panels of faculty and practitioners discussing their shared perspectives, to active problem-solving and learning, to programs showcasing effective practices by leading corporate decision-makers.
The conference design intentionally builds in plenty of opportunities for networking among your colleagues and between academics and practitioners, including a Thursday evening social event, a Friday luncheon and Friday evening reception.
Registration & Questions
Friday, January 27, 2017
Many, if not most, law professors teach their students the IRAC framework --- Issue - Rule - Analysis - Conclusion --- to use in addressing legal issues and answering exam essays.
I even teach my undergraduate students the IRAC framework, and find it useful in teaching critical thinking skills.
However, like many of my former law professors, I usually underemphasize the importance of the conclusion. Of course you have to get the issue and rule correct to start, but the meat of the answer is in the fact and rule-based analysis. The conclusion, I often say, can often go either way, especially on the thorny exam issues.
Since I started hearing the term "post truth," I have been rethinking the way I teach IRAC and the underemphasized conclusion. While it is still clearly important to teach and test analysis, I am starting to realize the value of identifying the strongest and best conclusion. This may prove difficult to test, as law exams often focus on unsettled areas of law, but perhaps I will include a few more settled portions to see if students can identify legal issues with a clearer correct answer.