Monday, June 26, 2017

The Traveling Business Law Prof: Part III - Using What You Pack

This post follows on my earlier travel posts on prepacking and packing for conference travel.  For last week's post, I used my trip to Mexico City for the Law and Society Association conference as an example.  This week, I assess my packing skills by chronicling briefly what I used and commenting on that assessment.  Bottom line: I did OK but could have left a few items of clothing and my flip flops at home.

For my plane travel to Mexico City a week ago last Sunday, I wore the reversible dance leggings (pattern side facing out), one of the tank tops, the embellished sweatshirt, and the suit jacket wth my sneakers.

BLPBOutfits1

Once I got to the hotel, I determined to take a walk through Chapultepec Park (Mexico's rough equivalent of New York's Central Park).  For the walk (and the rest of the day), I swapped out the sweatshirt and jacket for one of the button-downs I had brought--a medium green insect-repelling shirt I originally had bought to use when I taught in a study abroad program in Brazil.

For Monday, another sightseeing day (but one that I planned to end with an Ashtanga yoga class), I dressed for the day at the outset: reversible yoga shorts (pattern side facing out), light blue tank top, same green button down, and sneakers.

BLPBOutfits2

I noticed during the day that folks in Mexico City do not wear yoga shorts around.  So, I would revisit my decision to wear them all day on that basis.

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June 26, 2017 in Conferences, Joan Heminway, Travel | Permalink | Comments (0)

Monday, June 19, 2017

Thinking Ahead to Next June: Georgia on My Mind - Save the Dates for Emory Law and NBLS in 2018

As I am traveling and conferencing, my thoughts already have turned to next summer's conference schedule.  It seems like a good time to get two important business law conferences on the agenda for next year.  Those two conferences are: the sixth biennial conference on teaching transactional law and skills, “To Teach is to Learn Twice: Fostering Excellence in Transactional Law and Skills Education,” which will be held on June 1 - 2, 2018, at Emory Law in Atlanta, GA and the National Business Law scholars conference, which will be held at the University of Georgia School of Law in Athens, GA on June 21-22, 2018.  Emory Law's "Save the Date" notice hit my in box this morning and appears below, FYI.

*          *          *

SAVE THE DATE

Emory’s Center for Transactional Law and Practice cordially invites you to attend its sixth biennial conference on the teaching of transactional law and skills. The conference, entitled “To Teach is to Learn Twice: Fostering Excellence in Transactional Law and Skills Education,” will be held at Emory Law, beginning at 1:00 p.m. on Friday, June 1, 2018, and ending at 3:45 p.m. on Saturday, June 2, 2018.

We welcome you to share your experiences teaching any aspect of transactional law and skills, focused primarily on what general approaches, teaching methods, and specific exercises have been the most effective. Additionally, we want to know how you have implemented the ABA’s standards on learning outcomes and assessment and whether your teaching has changed as a result.

A formal request for proposals will be distributed in the fall.

Note: For this Sixth Biennial Conference, we will be offering a discounted registration rate for new teachers as well as for adjunct professors. Please encourage your colleagues to attend.

Looking forward to seeing all of you in June of 2018!

Sue Payne                                                                                                                                Katherine Koops
Executive Director                                                                                                                  Assistant Director
sue.payne@emory.edu                                                                                                         katherine.koops@emory.edu

June 19, 2017 in Conferences, Joan Heminway, Research/Scholarhip, Teaching, Travel | Permalink | Comments (2)

The Traveling Business Law Prof: Part II - What and How to Pack

Hola de la Ciudad de Mexico.  I arrived in Mexico City for the Law and Society Association conference yesterday to get acclimated and take some personal time to see the city.  Today, I carry forward the theme I posted on last week: packing for conference travel.  Last week, I shared my prepacking strategy.  This week, I will offer some parameters for packing for the actual trip, using the trip I am on now as an example.  This is what I was working toward (and achieved).

BLPBPacking4

I noted in my post last week that I almost always travel with one carry on duffle-like bag (soft-sider) and one tote bag that holds, among other things, my handbag for the trip.  That is what I chose for this trip!  The main advantage is that I do not have to check bags.  I had a tight connection yesterday in Atlanta, and my grab-and-go luggage helped me to make that connection with time to spare.

To quote the Talking Heads, " . . . you may ask yourself, well, how did I get here?"

Let's begin with the things I packed in the blue soft-sider.  I started by considering what I plan do on the trip.  For this trip, I have four days of conference proceedings (for which I will dress up) and three days of walking/sight-seeing.  I also plan to attend at least two yoga classes and have to teach Barbri in Nashville on my way home.  I next consider the climate.  I am in one place almost the whole time, and the weather is forecasted to be pretty consistent--mid-eighties (Fahrenheit) during the day and mid-fifties in the evenings.  Chances of rain are slim most days, but higher at the end of the week.  Here's what I chose to pack:

A three-piece coordinated suit set: skirt, cropped trousers, and jacket
9 shirts/blouses (6 tank tops--3 with shelf bras--and 3 wrinkle-resistant long-sleeved button-downs)
1 pair of reversible yoga shorts
1 pair of reversible dance/yoga leggings
PJs (undershirt tank top and boxers)
1 light rain jacket
1 French terrycloth embellished sweatshirt
Appropriate underwear items (gals, you can PM me for details, if you'd like)
2 extra pairs of earrings
1 necklace
1 pair of pumps
1 pair of fold-up flats
1 pair of sneakers
1 pair of flip-flops
1 traveling yoga mat

[Addendum:  I forgot to add that I also packed a printed silk scarf and a printed cotton bandana scarf!  I almost always travel with a scarf or two to accessorize outfits and make them look different when I am reusing the same basic suit pieces.]

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June 19, 2017 in Conferences, Joan Heminway, Travel | Permalink | Comments (4)

Monday, June 12, 2017

The Traveling Business Law Prof: Part I - Prepacking

It's conference season, yet again.  It seems like just yesterday that I was embarking on my June Scholarship and Teaching Tour 2016.  In fact, it was over a year ago.  My, how time flies . . . .

This year, I am doing the "City" tour for the first part of the summer season.  I have already been to Kansas City, MO (Midwest Symposium on Social Entrepreneurship), New York City, NY (Legal Issues in Social Entrepreneurship and Impact Investing: In the US and Beyond), and Salt Lake City, UT (National Business Law Scholars Conference).  Next week, I will be in Mexico City, Mexico for the Law and Society Association's International Meeting on Law and Society.  Not fitting into the "City" theme is my teaching day for Barbri in Nashville, TN and the Southeastern Association of Law Schools conference in Boca Raton, FL at the end of the summer.

Because of my travel schedule throughout the year, I often am asked about packing for my conference trips, which typically include some personal elements (e.g., touring, yoga, walking, or other exercise, etc.).  So, I decided to do a few posts on some packing tips and hacks that I use.  

Today, I focus on having a prepacked bag.  Given that I am a woman and choose to dress up for conferences, men and those who dress more casually will have to make significant modifications to my system.  Nevertheless, I hope that by sharing my conventions, I am offering something new to think about (at the very least). 

First things first: the generalities of my luggage (such as it is).  Unless I am teaching in a study abroad program (which I have not done since 2010), I pack in a soft-sided carryall and a tote large enough to fit my handbag (usually a small cross-body bag).  This combination works well for me.  (I am sure, however, that my doctor doesn't approve and would like me to use a wheelie bag, given the cervical and thoracic issues that I have in my neck and back.)  I do not like to have to lift wheelie bags into the overhead bins. The carryall lifts easily and typically fits nicely, even in the overhead bins on the small puddle-jumper planes that I sometimes must take from my beloved TYS (Knoxville's McGee-Tyson Airport). 

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June 12, 2017 in Conferences, Joan Heminway, Travel | Permalink | Comments (6)

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).  

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

Monday, May 29, 2017

Memorial Day Reflections: Choosing the Non-Profit Corporate Form for Organizations Helping the Families of Fallen Warriors

MemorialDayWreath

Wikipedia tells us what most (if not all) of us already knew: "Memorial Day is a federal holiday in the United States for remembering the people who died while serving in the country's armed forces."  As I have often noted in conversations and communications with friends, regardless of one's views on the appropriateness of war in general or in specific circumstances, most of us understand the importance of honoring those who have lost their lives in serving their country.  My dad, father-in-law, secretarial/administrative assistant, and many friends and students have served in the U.S. armed forces and survived the experience.  Others have not been so lucky.  I dedicate this post to all of them.

Last week, I had the pleasure of presenting at and attending a conference on Legal Issues in Social Entrepreneurship and Impact Investing—In the US and Beyond (also featuring co-blogger Anne Tucker).  My presentation was part of a panel on securities crowdfunding as impact investing.  But I attended many other presentations and participated in a lunch table talk on choosing the right entity for social enterprise and a brainstorming session on how legal education can better support social entrepreneurship and impact investing.  The conference was fabulous, and I learned a lot by listening to the great folks invited by the organizers--including others on my panel.

As I reflected on the holiday today in light of last week's conference, my thoughts turned to organizations serving the families of fallen warriors and what types of formal entity structures they had chosen.  These organizations are mission-driven and socially conscious.  They exist, at least in part, to serve society.  All of the ones I could think of or easily find in a Web search (among them Children of Fallen Patriots FoundationThat Others May Live Foundation, and Travis Manion Foundation--although I do not intend to endorse any specific organization) are organized as non-profit corporations under various state laws and qualified as exempt from federal income taxes under Section 501(c)(3) of the U.S. Internal Revenue Code.  One might ask why.  

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May 29, 2017 in Anne Tucker, Business Associations, Conferences, Joan Heminway, Nonprofits, Social Enterprise, Teaching | Permalink | Comments (0)

Monday, May 22, 2017

Shareholder Wealth Maximization at the Firm Level

I ask my Advanced Business Associations students to recognize and process theory and policy and relate them to doctrine at the practical level.  This is, as most of you will recognize, a tall order of business for students who have just recently learned what business associations law is and may not yet (at the time they take the course) have applied the law in a practical context outside the classroom.  (The course is open to 2L and 3L students who have already taken Business Associations.)

So, when it came time to lionize my friends Lyman Johnson and David Millon at a symposium honoring their work (which, as you may recall, I first heralded on the BLPB a year ago and wrote a bit about back in October), I decided to put my scholarship pen (keyboard) where my teaching mouth is.  My goal for the symposium was to write something that linked theory and policy through doctrine to law practice and, at the same time, incorporated Lyman's and David's work. The essay I produced in fulfillment of these objectives was recently released and posted to SSRN.  I excerpted from it in my post on Saturday.  The full SSRN abstract follows.

In context, corporate law is often credited with creating, hewing to, or reinforcing a shareholder wealth maximization norm. The now infamous opinion in Dodge v. Ford Motor Co. describes the norm in a relatively bald and narrow way: “A business corporation is organized and carried on primarily for the profit of the stockholders." As a matter of theory and policy, commentators from the academy (law and business) and practice (lawyers and judges) have taken various views on this asserted norm—ranging from characterizing the norm as nonexistent or oversimplified to maintaining it as simple fact.

In an effort to broaden the conversation about the shareholder wealth maximization norm in an applied context, this essay describes shareholder wealth maximization under various state laws (in and outside Delaware) as a function of firm-level corporate governance—corporate law statutes, decisional law interpreting and filling gaps in that statutory law, and corporate charter and bylaw provisions—as applicable to both publicly held and privately held corporations in a variety of states. In this overall context, the essay considers the possibility that holders of shares in for-profit corporations may desire to maximize overall utility in their shareholdings of a particular firm, rather than merely the financial wealth arising from those holdings. To accomplish its purpose, the essay first briefly and generally addresses shareholder wealth maximization as a function of applicable statutory and decisional law and as a matter of private ordering (collecting, synthesizing, and characterizing, in each case, points made in the extant literature) before suggesting the broad implications of that analysis for corporate governance and shareholder wealth maximization and concluding. Ultimately, the essay makes a case for a more nuanced look at the shareholder wealth maximization norm. Given differences in doctrine and public policy among the states and variance in that doctrine and public policy among public, private, and statutory close or closely held corporations within individual states, answers to open questions are likely to (and should) depend on individualized facts assessed through the lens of specific statutory and decisional law and applicable public policy.

I fear that this short piece does not do the subject (or Lyman and David's amazing work) justice.  But my biggest regret is that the essay went to press without the addition of thanks to two special folks in my author's footnote.  I want to call those two colleagues out here.  

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May 22, 2017 in Business Associations, Corporate Governance, Corporations, Haskell Murray, Joan Heminway, Teaching | Permalink | Comments (2)

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?  

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

Monday, May 15, 2017

Creating a More Productive Space for Social Entrepreneurship - A Unique Birthday Present

Today, I am spending my birthday attending and presenting at the Fifth Annual Midwest Symposium on Social Entrepreneurship in Kansas City, Missouri.  I owe my presence here to my entrepreneurship colleagues and friends Tony Luppino (UMKC Law) and John Tyler (Kauffman Foundation).  Thanks for the awesome birthday present, guys.

There's so much I have to say about just the first day of this event.  (I also will be here and presenting tomorrow.)  The proceedings so far have been incredibly thought-provoking and instructive.  Most intriguing has been the focus around creating an ecosystem for social entrepreneurship.  Of course, law and lawyers have roles in that.  Hence, this blog post . . . .

Specifically, I want to devote today's post to the four essential action-elements necessary to generate a successful, sustained future for social entrepreneurship as posited and described by Mark Beam, Maverick in Residence at the Kauffman Foundation, in his kick-off keynote presentation this morning.  (As an aside, I will note that Mark started his talk with a brief recounting of the origin of the word "maverick," which was independently fascinating.)  Here are Mark's four elements, as I captured them in my notes (likely imperfectly), together with a bit of summary definitional commentary.  He contended that, to build a sustainable ecosystem for social entrepreneurship, we must:

  1. Redefine work (recognizing entrepreneurship as work; taking into account the power and effects of technology, but knowing it needs to serve us and the human potential)
  2. Nurture entrepreneurial ecosystems that mimic and integrate natural systems (e.g., helping people to help themselves; moving resources from the “haves” to the “have-nots”)
  3. Evolve our capacity to serve more of the entrepreneurial community through ecosystem design (referring to three megatrends outlined by Kauffman Foundation CEO Wendy Guillies--demography, geography, and technology; opening up entrepreneurship to all to increase business, start-ups employment, productivity)
  4. Tell new stories (relating anecdotes that connect us; “we create the future through the stories we tell ourselves”—visioning the future through stories)

That may not sound like much, but trust me.  The talk (beautifully delivered with amazing graphics, photography, and media content) was much better than my quick summary of the outtakes.

What Mark said made a lot of sense to me based on my related experience and work.  But I found myself thinking about the role of the lawyer in these action items.  How can lawyers--especially business lawyers--who support social enterprise help social entrepreneurship to productively move forward?

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May 15, 2017 in Conferences, Entrepreneurship, Joan Heminway, Social Enterprise | Permalink | Comments (4)

Wednesday, May 10, 2017

Call for Papers: Cambridge Handbook of Corporate Law, Corporate Governance and Sustainability

I received this call for papers and wanted to pass it on.

This Call for Papers invites contributions to the Cambridge Handbook of Corporate Law, Corporate Governance and Sustainability. Those tentatively selected to contribute will be invited to a Cambridge Handbook Symposium in Oslo on 12-14 March 2018, with draft chapters to be submitted to the editors beforehand. Participation at the Symposium is not a condition to contribute to the Handbook, but it is strongly encouraged. The Symposium is expected to enhance the quality of the contributions, reinforce the cohesive nature of the volume, and contribute to the timeliness of the manuscript.

The Handbook will be edited by Professor Beate Sjåfjell, University of Oslo, and Professor Christopher Bruner, Washington and Lee University. Final confirmation of contributions for the Handbook will be contingent on review of the chapters and will be decided by the editors. . . .

More information is available here.  In case you need a bit of encouragement to make a proposal, I will add that (in case you do not know them) the editors are well-regarded scholars in the field and also great people.

May 10, 2017 in Call for Papers, Conferences, Corporate Finance, Corporate Governance, Joan Heminway | Permalink | Comments (0)

Monday, May 8, 2017

Call for Papers - Alternative Finance and Financial Inclusion - Burgundy School of Business

Call for Papers

Financial Inclusion: A Sustainable Mission from Microfinance to Alternative Finance

Social and Technological Paradigms

ITEM 8

Dijon, France

December 7-8, 2017

CEREN, EA 7477, Burgundy School of Business - Université Bourgogne Franche-Comté

Microfinance has sought to include individuals that financial institutions exclude. The mission has been progressively widening to alternative finance, which has thrived outside of conventional financial instruments and channels.

Alternative finance takes different forms, such as angel investment, asset funding, cash flow funding, crowdfunding, crypto-currencies (Bitcoin), fair investment, fintech, slow money, pension fund investments, social impact bonds, etc. All the types have resulted from social and/or technological innovations or a mix of both. They provide significant values to customers and investors. Some of the benefits include absence of lengthy applications, low documentation, almost no collateral, minimum or no credit score requirements, high approval rates, and fast funding.

Alternative finance has also widened the base of customers. While microfinance mainly aimed at making financial services available to people at the ‘Bottom of the Pyramid’, alternative finance has gone beyond to target not only the poor, but also small enterprises, young and innovative ventures, women, minorities, individuals with no credit history, and any other audience excluded by the conventional institutions. While microfinance’s target is mainly the poor, alternative finance’s finance is the excluded.

The Burgundy School of Business will organize the 8th edition of its annual conference “Institutional and Technological Environments of Microfinance” (ITEM) on "financial inclusion" in Dijon, France on 7th and 8th December 2017.

The conference welcomes research papers, monographies, case studies, PhD research-in-progress and experiential insights on different topics and experiments of alternative finance. ITEM encourages in particular reflections on the social and technological innovations, which broaden and deepen the range of alternative finance.

The leading topic is "Financial Inclusion: A Sustainable Mission from Microfinance to Alternative Finance--Social and Technological Paradigms". However, the conference welcomes other related topics that scope out the perspective and discussion on financial inclusion.

As the preceding editions, the ITEM conference provides a forum for both academic researchers and practitioners to discuss and exchange.

Submission procedure:

Proposals: All contributions require a proposal in the first instance. A proposal is a short abstract between 300 and 500 words, containing the research objectives, methodology, findings, recommendations and up to five keywords, the full names (first name and surname, not initials), email addresses of all authors, and a postal address and telephone number for at least one contact author.

Submission period for the proposals: Up to September 15, 2017.

Acceptance of proposals: By September 30, 2017. Notifications will be sent out to relevant authors. Please indicate clearly the contact author(s) and their email address(es).

Full paper: Upon acceptance of proposal, full papers are required. The paper includes abstract, keywords, references and a text of less than 5000 words.

Due date for the full papers: Up to November 30, 2017.

Publication opportunity: Papers presented at the conference will also be considered for publication in collaborating journals.

Contacts:

Fees for registration:

  • 300 Euros for academic and professional participants and presenters
  • 250 Euros for early-bird (before October 31)
  • 100 Euros for students
  • 70 euros for early bird students (before October 31)

All are invited to complete registration and payment by November 30, 2017.
Details are also available on the ITEM 8 website.

Web site: http://item-8.blogspot.com

Special attraction: The flying club of Darois is willing to take you for an aerial trip over the historical wine region in a ULM (ultra-léger motorisé--ultra-light aircraft) for a modest fee. Depending on the number of people interested, they will fix the price.

May 8, 2017 in Call for Papers, Conferences, Corporate Finance, Crowdfunding, Joan Heminway, Web/Tech | Permalink | Comments (0)

Monday, May 1, 2017

The Criminalization of Insider Trading: Has It Gone Too Far?

A bit more than a year ago, I had the opportunity to participate in a conference on corporate criminal liability at the Stetson University College of Law.  The short papers from the conference were published in a subsequent issue of the Stetson Law Review.  This was the second time that Ellen Podgor, a friend and white collar crime scholar on the Stetson Law faculty, invited me to produce a short work on corporate criminal liability for publication in a dedicated edition of the Stetson Law Review.  (The first piece I published in the Stetson Law Review reflected on corporate personhood in the wake of the U.S. Supreme Court's Citizen's United opinion.  It has been downloaded and cited a surprising number of times.  So, I welcomed the opportunity to publish with the law review a second time.)

For the 2016 conference, I chose to focus on the reckless conduct of employees and its capacity to generate corporate criminal insider trading liability for the employer.  The abstract for the resulting paper, (Not) Holding Firms Criminally Responsible for the Reckless Insider Trading of their Employees (recently posted to SSRN), is as follows:

Criminal enforcement of the insider trading prohibitions under Section 10(b) and Rule 10b–5 is the root of corporate criminal liability for insider trading in the United States. In the wake of assertions that S.A.C. Capital Advisors, L.P. actively encouraged the unlawful use of material nonpublic information in the conduct of its business, the line between employer and employee criminal liability for insider trading becomes both tenuous and salient. An essential question emerges: when do we criminally prosecute the firm for the unlawful conduct of its employees?

The possibility that reckless employee conduct may result in the employer's willful violation of Section 10(b) and Rule 10b–5 (and, therefore, criminal liability for that employer firm) motivates this article. The article first reviews the basis for criminal enforcement of the insider trading prohibitions established in Section 10(b) and Rule 10b–5 and describes the basis and rationale for corporate criminal liability (a liability that derives from the activities of agents undertaken in the course of the firm’s business). Then, it reflects on that basis and rationale by identifying the potential for corporate criminal liability for the reckless insider trading violations of employees under Section 10(b) and Rule 10b–5, arguing against that liability, and suggesting ways to eliminate it.

I was not the only conference participant concerned about the criminal liability of an employer for the insider trading conduct of an employee.  John Anderson, who co-led an insider trading discussion group with me at the 2017 Association of American Law Schools annual meeting back in January and also enjoys exploring criminal insider trading issues, contributed his research on the overcriminalization of insider trading at the conference.  His paper, When Does Corporate Criminal Liability for Insider Trading Make Sense?, identifies the same overall problem as my article does (employer criminal liability for insider trading based on employee conduct).  However, he views both the problem and the potential solutions more broadly.  

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May 1, 2017 in Conferences, Corporate Governance, Joan Heminway, Securities Regulation, White Collar Crime | Permalink | Comments (2)

Monday, April 24, 2017

Lawyers and Compliance: Business Entity Clients with Control Persons Who Recklessly Disobey

As a business lawyer in private practice, I found it very frustrating when the principals of business entity clients acted in contravention of my advice.  This didn't happen too often in my 15 years of practice.  But when it did, I always wondered whether I could have stopped the madness by doing something differently in my representation of the client.

Thanks to friend and Wayne State University Law School law professor Peter Henning, who often writes on insider trading and other white collar crime issues for the New York Times DealBook (see, e.g., this recent piece), I had the opportunity to revisit this issue through my research and present that research at a symposium at Wayne Law back in the fall of 2015.  The law review recently published the resulting short article, which I have posted to SSRN.  The abstract is set forth below.

Sometimes, business entity clients and their principals do not seek, accept, or heed the advice of their lawyers. In fact, sometimes, they expressly disregard a lawyer’s instructions on how to proceed. In certain cases, the client expressly rejects the lawyer’s advice. However, some business constituents who take action contrary to the advice of legal counsel may fall out of compliance incrementally over time or signal compliance and yet (paradoxically) act in a noncompliant manner. These seemingly ineffectual varieties of the lawyer/client relationship are frustrating to the lawyer.

This short article aims to explain why representatives of business entities who consider themselves law-abiding and ethical may nevertheless act in contravention of the business’s legal counsel and offers preliminary means of addressing the proffered reasons for these compliance failures. The article does not address willful noncompliance or even willful blindness. Rather, it makes observations about behavior that falls squarely into what the law typically recognizes as recklessness. An apocryphal lawyer-client story relating to insider trading compliance provides foundational context.

The exemplar story derives from things I witnessed in law practice.  Perhaps some of you also have experienced clients or business entity client principals which/who act contrary to your advice in similar ways.  Regardless, you may find this short piece of interest.

April 24, 2017 in Compliance, Conferences, Corporate Governance, Joan Heminway, Lawyering, Securities Regulation | Permalink | Comments (2)

Monday, April 17, 2017

Bonus Post for a Monday: International Haiku Poetry Day

I rarely post twice in one day, but I am making an exception today.  After posting this morning, I learned that today is International Haiku Poetry Day.  I loved Haiku poetry as a kid.  I still love it as an adult.  It has structure--a structure that, in my opinion, encourages both brevity and creativity.

In honor of this special day, I wrote a personal haiku for my Facebook page.

Yoga feeds the soul
And calms the body and mind.
Breathe and move. Repeat.

I am pretty proud of that one, inspired by my Monday night Iyengar practice.  So, I thought I would try my hand at a BLPB haiku.  Here goes.

A new President.
Time to revamp business regs!
Uncertainty reigns.

The inspiration for this haiku is obvious . . . .  :>)

Prefer more humorous verse? I also loved limericks.  So, I checked to see whether there might be an International or National Limerick Day.  Indeed, it appears that we will celebrate limericks on Friday, May 12, 2017.  Hmm . . . .

 

April 17, 2017 in Current Affairs, Joan Heminway | Permalink | Comments (2)

Visioning the Publicly Held Benefit Corporation

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

UMKC Administrative Law Symposium - Call for Papers

CALL FOR PAPERS
Presidential Powers and Administrative Law

The UMKC Law Review is pleased to announce a call for papers relating to the executive branch’s scope of power and its impact on administrative law and the lives of real people. Selected papers will be published in the Special Topics Symposium Winter 2018 edition of the UMKC Law Review.

This symposium invites proposals for papers exploring legal and administrative issues around the authority vested in the President of the United States. The constitutional limits on executive action, ethics and accountability in government, the separation of powers, the far-reaching economic and social effects of proposed or anticipated administrative reforms, and other considerations relating to the intersection of executive and administrative authority are all topics under the umbrella of this symposium. We also welcome analysis of the interaction between the executive branch and areas of administrative concern and impact, such as the environment, healthcare, consumer protection, banking regulation, and other areas dependent on agency oversight. The recent proliferation of executive orders and new structural rules, such as the one-in, two-out regulatory policy and possible changes for the organization of the Executive Branch, make the use of executive orders another topic of interest.

Under the new administration, will established tests for judicial deference to executive agencies, such as Chevron deference and the arbitrary and capricious standard, change? Will the administration’s philosophy affect the metric for analyzing regulations’ worth? Will promises of deregulation affect how agencies approach their statutory duties? How will agencies interpret existing ethics laws and regulations? Will the Supreme Court address questions such as the Emoluments Clause, the Take Care Clause, and the Public Trust Doctrine? These questions provide examples of the broad scope of the symposium.

Issue 4 of UMKC Law Review’s 86th Volume will explore these and related topics with the goal of advancing awareness of Presidential power. Articles and essays of all lengths and papers by single authors or multiple authors are invited. Preference will be given to works between 5,000 and 25,000 words. To be accepted for publication in UMKC Law Review, articles must not have been previously published. First drafts are due August 18, 2017, and final papers are due September 1, 2017.

Proposals for papers should be submitted by May 26, 2017 to the attention of Annette Griffin (aegr86@mail.umkc.edu), Zachary Parker (zacharyjosephparker@gmail.com), and Professor Irma Russell (russelli@umkc.edu). Proposals should include the following information: *Name, title and contact information of author *Title of paper *Anticipated length as an article or essay *Abstract or brief description of the topic

Questions may be addressed to Annette Griffin (aegr86@mail.umkc.edu) or Zachary Parker (zacharyjosephparker@gmail.com).

April 14, 2017 in Call for Papers, Conferences, Joan Heminway | Permalink | Comments (0)

Monday, April 10, 2017

Editing Etiquette 101

After I published last week's post, I heard from a few of you in person and by email.  You expressed support and sympathy.  And you had stories of your own.  Those communications motivate this post.

There are, in my view, rules of etiquette that apply to editing academic and professional work for publication.  It seems that I am not the only one who holds this view.  With articles and posts titled, e.g., Editing Etiquette and Editor Etiquette, a number of others in the writing and editing biz have ideas on how editors should behave in their interactions with writers.  And my key observations about best practices in law review, law journal, and law textbook editing echo theirs.  Here are my "Top Three" rules of editing etiquette for law publications.

  1. Always show the author where changes to the text have been made.  This typically means sending the author a blacklined version of the work.  Once the give-and-take of the editorial process is under way, the backline should indicate whether changes suggested by the author have been accepted and where new changes suggested by the editor have been implemented/added.  Recently, a law review sent me a backline that was made from a clean draft and showed all of the changes made on the document as changes made by the editor (when, in fact, some were changes requested by me that the editor had transferred to the clean draft).  Since I wanted to ensure that the changes I had suggested were, in fact, made, I had to locate the marked draft I had last sent to the law review and compare it to the blackline sent to me by the law review.  Here's what I advised the law review editor:

    "Although the backline was somewhat helpful, . . . it didn’t show which of the changes adopted were mine and which were yours since you made all of the changes on a clean draft. To know which of the changes were mine, I needed to look at yet a third draft, which makes the review more complex. Just a thought for the future—that making your edits on the draft that the author has marked up, rather than on a clean draft, facilitates author review. Admittedly, I still am concerned that I missed something that I need to review more carefully in the changes you made."

  2. When making changes to the wording in the text, strive to retain the author's voice and explain the reason for any change made.  I once had a law review staff member change the word "everyman" to another word that had but a small fraction of the same meaning.  The reason for the change was never offered. I wrote back and patiently explained that the word choice was quite purposeful and pointed--expressing my specific intention to reference "an ordinary individual with whom the . . . reader is supposed to be able to identify easily."  The original wording was restored. But my time in editing (and earlier theirs) had been wasted.

  3. Justify for the author any requests for additional footnotes or citations.  I have had law review editors and staff ask me for citational support for topic sentences that introduce or summarize the contents of the paragraph; same for conclusion sentences including similar content.  I also have had editors and staff request citations for my unique contributions--e.g., observations on the law or extant literature.  (Yes, I know that these are often hard to identify . . . . But just ask!)  After last week's post, one of you offered: "I kept cutting footnotes and they kept adding them back. Very frustrating."

I will spare you all the additional details.  I think you can see where these ideas are headed. I will end with a helpful thought that one of you shared with me--a thought that I and others here on the BLPB have shared in the past when writing about the law review editorial process: "I try to think of my exchanges with law review editors as part of my teaching job, aiming to show them how to edit properly and deal with 'clients' (if you will) . . . ." The publication process will work out just fine in the end if we can embrace those teaching moments and remember that we all are working toward the same objective: a quality, published piece of scholarship. 

April 10, 2017 in Joan Heminway, Law Reviews | Permalink | Comments (0)

Monday, April 3, 2017

Recent Law Review Experiences - Fewer Nightmares

From time to time, we at the BLPB offer our views on publishing with law reviews.  The excellent, the good, the bad, the ugly--apparently, we have seen it all (or at least close to it).  See, e.g., Marcia's post from last year that includes links to many of these prior posts.  This post carries forward that tradition.  

Two-and-a-half years ago, I published a post entitled Nightmare in Law Review Land . . . . That post included the two standard instructions that I routinely give to law reviews when I submit stack-check drafts.

The first is to leave in the automatic footnote cross-referencing that I have used in the draft until we finalize the article.  The second is to notify me if the staff believes that new footnote citations or citation parentheticals need to be added (specifically noting that I will handle those additions myself).

For the most part, this has worked well for me.  Recently, however, I received the following response to the second instruction:

Thank you for your notes. As part of our editing process, we add any needed citations and parentheticals. We build in time to do this and tend to be fairly thorough. If there are questions regarding sources or an individual has trouble finding sources, our Lead Article Editor (who will serve as your main contact) will reach out to ask you for assistance. As a general rule, our journal does tend to add a large number of parentheticals. I only mention this because it has sometimes caught Authors off guard in the past and I thought it would be worth mentioning on the front end. You will have two opportunites to review the parentheticals and added citations over the next few months to ensure they are consistent with your work.

I should have pushed back.  I didn't.  The result?  I got back a draft with a bunch of new, bungled footnote citations and parentheticals.  It took me hours to run down the new sources cited and consider  them.  I responded with significant edits in the draft and the following comments in my cover message, in pertinent part (edited to omit a few typos):

[F]ootnote citations were frequently inserted in places (especially in the introduction and other areas in which I have provided a “roadmap”—a summary of where the text will go next) where I do not believe they are needed. I have left specific comments in each place, although I fear they may not be well enough developed. But ask questions where you have them.

Relatedly, the citations inserted for a number of these new footnotes supported principles other than those in the cited sentence. . . .  In each case, I tried to go find the material being referenced in the cited source and evaluate whether it supported the stated principle. Then, if I found a disconnect, I suggested in the margin an alternative footnote. . . .  [I]f you decide under your editorial guidelines that a citation is required, please use the alternative I provided. . . .

Also, parentheticals were added in places where they are not required, e.g., in general citations to cases . . . .  I took them out. If you require parenthetical in these places, please just ask and I will supply them. The parentheticals that were added were either so general that they were unhelpful or included inapposite information.

I am not sure my tone was right on the message.  But I admit that I was frustrated and disappointed--maybe more with myself than with the law review students who worked on editing the article--when I wrote the message.  My time in cross-checking all those faulty citations and parentheticals was entirely wasted.  I could easily have added some footnotes and parentheticals where I had missed including them in the draft I submitted, as necessary or desired.  It would have taken a lot less time (more like ten, instead of thirty, hours).

Have any of you had this same issue with law review editors?  I originally experienced this years ago, which led to my standard instruction.  But it seems the problem persists.  So, it must have something to do with the way law review editors are instructed--or instruct each other.  Perhaps that instruction requires more thought . . . .

At any rate, since I started issuing my two standard instructions, I have had fewer dissatisfying experiences.  I plan to continue with the practice of including them when I submit draft articles for review.  And I guess next time a law review insists in response on supplying new footnotes and parentheticals, I will send the editors a link to this post . . . .

April 3, 2017 in Joan Heminway, Law Reviews, Writing | Permalink | Comments (4)

Monday, March 27, 2017

Proposed 2018 AALS Business Regulation Discussion Group - Heminway x Tucker Collab

Call for Participants

 

Proposed Discussion Group

A New Era for Business Regulation?

Joan MacLeod Heminway, The University of Tennessee College of Law

Anne Tucker, Georgia State University College of Law

2018 AALS Annual Meeting

San Diego, CA

January 3-6, 2018

This is a call for participants in a proposed discussion group on “A New Era for Business Regulation?” at the 2018 Association of American Law Schools (“AALS”) Annual Meeting.

In January 2017, the president signed an Executive Order on Reducing Regulation and Controlling Regulatory Costs. The order uses budgeting powers to constrict agencies and the regulatory process by requiring that two regulations must be eliminated for each new regulation adopted. The order also mandates that “the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero.” While the executive order does not cover independent agencies like the Securities and Exchange Commission and the Commodity Futures Trading Commission, agencies that crafted many of the rules required by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, these agencies and their regulatory agendas will likely be the subject of future reform. The co-organizers of this proposal are looking for full-time faculty of AALS member or fee-paid schools to engage in a discussion at the AALS annual meeting about changes in the business regulatory environment and assess the consequences—good and bad—of regulatory reform affecting businesses. We invite participants from diverse legal backgrounds including, but not limited to, financial regulation, securities regulation, administrative law, business finance and governance, and related fields. If there is sufficient interest in this topic, the co-organizers will submit a proposal for this discussion group to the AALS before the April 13, 2017 deadline.

To indicate your interest in participating, please send an expression of interest by email to either Joan MacLeod Heminway, The University of Tennessee College of Law, at jheminwa@tennessee.edu or Anne Tucker, Georgia State University College of Law, amtucker@gsu.edu. In the subject line of your email, please include “AALS Business Regulation Discussion Group” and your last name. In the text of your email, please provide your name, contact information, and a one-paragraph summary of your interest in the topic, stating how it connects to your current or future research or teaching interests.

If the discussion group proposal is accepted by AALS, the co-organizers may conduct a call for additional proposals before notifying the final faculty members selected to participate. Participants will not be expected to have a formal paper, but will be asked to contribute a written treatment (5-10 pages) prior to the annual meeting.

March 27, 2017 in Anne Tucker, Conferences, Joan Heminway | Permalink | Comments (0)

Monday, March 20, 2017

What I Did On My Spring Break

Ringling1

No.  This is not a travelogue.  Rather, it's a brief additional bit of background on a case that business associations law professors tend to enjoy teaching (or at least this one does).

In Ringling Bros. Inc. v. Ringling, 29 Del. Ch. 610 (Del. Ch. 1947), the Delaware Chancery Court addresses the validity of a voting agreement between two Ringling family members, Edith Conway Ringling (the plaintiff) and Aubrey B. Ringling Haley (the defendant).  The fact statement in the court's opinion notes that John Ringling North is the third shareholder of the Ringling Brothers corporation.

I spent two days in Sarasota Florida at the end of Spring Break last week.  While there, I spent a few hours at The Ringling Circus Museum.  It was fascinating for many reasons.  But today I will focus on just one.  I noted this summary in one of the exhibits, that seems to directly relate to the Ringling case:

Ringling2

Interestingly, 1938 is the year in which the plaintiff and defendant in the Ringling case created their original voting trust (having earlier entered into a joint action agreement in 1934).  The agreement at issue was entered into in 1941.  Could it be that, perhaps, the two women entered into this arrangement as a reaction to John Ringling North's desire to acquire--or successful acquisition of--management control of the firm?  I want to do some more digging here, if I can.  But I admit that the related history raised some new questions in my mind.  John Ringling North was all but forgotten in my memory and teaching of the case, until the other day . . . .  The case takes on new interest in my mind (more broadly as a close corporation case) because of my museum visit and discovery. 

[Postscript - March 21, 2017:  Since posting this, I have been blessed by wonderful, helpful email messages offering general support, PowerPoint slides (thanks, Frank Snyder), a video link (thanks, Frances Fendler), and referrals to/copies of Mark Ramseyer's article on the Ringling case, Ringling Bros.-Barnum & Bailey Combined Shows v. Ringling: Bad Appointments and Empty-Core Cycling at the Circus, which offers all the detail I could want (thanks, again, Frances, and thanks, Jim Hayes) to help fill in the gaps--while still creating a bit of mystery . . . .  I am a much better informed instructor as a result of all this!  Many thanks to all who wrote.]

March 20, 2017 in Business Associations, Corporate Governance, Corporations, Joan Heminway, Shareholders, Teaching | Permalink | Comments (0)