Friday, May 22, 2015
In my first post of this series, I asked whether business leaders had unknowingly provided the legal industry with a long-term solution to declining interest in the legal profession and potential waning influence. I suggested that business leaders may be the driving force that ends up saving the legal profession, and its "respectability". In my second post, I discussed the current state of in-house attorneys. In this post, I would like to look at the current state of private firms as it relates to the in-house attorney discussion. My view is that the competitive marketplace reactions of a growing number of firms are partially contributing to the dimming of their own future prospects. Firms will need to evolve rather quickly; how they can, I’ll discuss in a future post. However, because of the firms’ relatively weaker position compared to corporations, many firms are in very precarious circumstances.
In this interim period between past firm dominance and the future corporate acceptance of Professors Bird and Orozco’s “corporate legal strategy” (in which attorneys are fully accepted and integrated as part of business teams in corporations, resulting in greater legal opportunities), firms are struggling. From my discussions with attorneys, I have learned that many private firms are beginning to intentionally screen out attorneys that even appear to be on a path to in-house corporate life in the future. They feel less inclined to provide expensive training for someone that has (in their perception) little intention of making a career of private practice, especially their private practice. This diminishes the number of opportunities for new lawyers. Firms have a harder time training the new lawyers they have, because much of the basic business work is now taken up by in-house counsel. Corporations, for their part, have exacerbated the lack of work for new associates by using their increased influence and wealth to insist that only the most senior firm attorneys handle their corporate work—perhaps shortsightedly robbing firms of talent continuity that has historically benefitted the corporations in the end. Expensive summer clerkships and recruiting drives have all but disappeared.
Additionally, firms have become focused on hiring attorneys with portable business for the “quick hit” of income and are less concerned about hiring new law graduates. This cannibalization of mature legal talent has always occurred, but it now seems to be a much greater part of firm business plans. It has resulted in some lawyers commoditizing themselves, rather than some of their clients doing so, perhaps further weakening the profession's "respectability". Of course, because the legal industry is currently well staffed, this “horse-trading” approach will work for the present. However, it will eventually be unsustainable—as lawyers retire, there will be fewer talented lawyers to replace them or have the capacity to buy out retiring partners’ percentages. Of those, even fewer still will invite the rigors of private practice if the rewards diminish.
I, for one, am not a complete believer in the “end of Big Law”, or any size "Law", for that matter. (The late Professor Larry Ribstein discussed the subject here--disappointingly, he only briefly touched on the in-house counsel effect, and instead, focused on the firms themselves.) However, I do believe in the necessary evolution of “All Law”—where the legal industry (firm, in-house, and academia) evolves to a point of natural and mutual support which benefits society as a whole (creating greater “respectability” for all lawyers)—and businesses will initially play a dominant role. How will businesses do so? More soon in a post coming your way!
--Marcos Antonio Mendoza
Thursday, May 14, 2015
I sincerely appreciate the opportunity to post! I have been following this blog for some time with great interest. I hope to bring a third perspective—not as an academic, nor a private firm practitioner, but as an employee of a company who happens to be a lawyer.
A few weeks back, Professor Heminway posted, and I commented, on the difficulty good law students have in finding jobs. I made the point that the law is in a state of transition—firms are becoming smaller, but more opportunities are arising within corporate models. Over the past 20 or so years, attorneys have gradually become more integrated in the corporate world, and we have seen the number of positions with firms gradually decline in comparison.
As part of this mainstreaming of lawyers into the business model, lawyers are becoming more and more part of business teams, not walled-off in legal departments.* By incorporating lawyers into operational divisions, have businesses “humanized” lawyers, making them more accepted and respected? Will this growing engagement and familiarity, with lawyers as co-workers in the business environment, lead to greater opportunities for all lawyers, including those in private practice? The answer is, maybe, possibly. It’s complicated. Allow me to explain.
Let’s be clear—external counsel are respected for their pure legal skill, or otherwise, businesses wouldn’t hire them! However, business leaders often view external counsel with some trepidation, as engaging them could result in great cost and perceived “rolling roadblocks” of legal reasons things cannot done. Additionally, while lawyers and business leaders work in parallel, their goals do not exactly align. Law firms are for-profit organizations, after all, and have their own operating concerns. Nevertheless, businesses value the private law firm stamp of approval on the company’s work product for many reasons.
Most businesses (I believe, and from what I have seen) initially began onboarding lawyers not to deepen the bench of their overall business talent, but simply to lower costs tied to legal spending for basic legal services. An excellent article in the MIT Sloan Management Review by Professors Robert C. Bird and David Orozco outlines the progression for effective use of internal counsel, and I’ll return to some specific discussion of that in later posts. But I think the article accurately reflects the continuum for integration of lawyers, and most companies are somewhere around the early “avoidance” or “compliance” stages for use and understanding of internal lawyers.
However, as businesses advance in their view of legal assistance and business models incorporate lawyers as part of their entrepreneurial focus at the highest levels, I think their lawyers are on the path to becoming valued in a way that is impossible for private practice attorneys. Rather than the (unfair or not) stereotypical view of self-serving or disinterested firm lawyers some business leaders may have dealt with in the past, will these same leaders that work daily with lawyers integrated into their corporate teams grow to appreciate and respect them more, since their talent and loyalty to the companies’ interests is paramount? Will this eventually lead to a shift as to societal viewpoints about lawyers, as they become more familiar and helpful personas around everyday workplaces? And in turn, will the law firms become more generally appreciated and respected (and less commoditized!), as this growing force of in-house attorneys bridge the communication gaps with external counsel, thus increasing trust levels between the entities?
Maybe business leaders, who have historically been at odds with their law firms to some degree, will actually be the force (perhaps initially, quite inadvertently) that saves the legal profession from potentially destructive isolation and gives greater hope to aspiring law students. This interim period—as the prevalence of the private firms lessens and corporate legal strategy grows—may be difficult for all involved. More thoughts on this soon.
--Marcos Antonio Mendoza
*Depending on the organization, direct control of such lawyers may or may not remain in the general counsel’s office.
Thursday, May 7, 2015
I currently teach two classes that are on the bar exam—civil procedure and business associations. Many of my BA students are terrified of numbers and don’t know much about business and therefore likely would not take the course if it were not required. I know this because they admit that they take certain classes only because they are required or because they will be tested on the bar, and not because they genuinely have an interest in learning the subject. I went to Harvard for law school and although I had an outstanding education, I learned almost nothing that helped me for the NY, NJ, or FL bars (hopefully that has changed). I owe all of my bar passages to bar review courses so naturally (naively?), I think that almost any student can learn everything they need to know for the bar in a few short months assuming that they had some basic foundation in law school and have good study habits.
The pressure to ensure that my students pass the bar exam definitely informs the way I teach. Though there has only been one round of civil procedure testing on the multistate, this semester I found myself ensuring that I covered certain areas and glossed over others, even though I know having litigated for 20 years, that some subjects are more relevant in real life. Similarly, in BA, I had to make sure that I covered what will be on the Florida bar, while still ensuring that my students understand Delaware law and some basic finance and accounting, which isn't on the Florida bar, but which they need to know.
New York recently announced that it would join other states in adopting the uniform bar examination effective July 2016. The other states using the UBE include Alabama, Alaska, Arizona, Colorado, Idaho, Kansas, Minnesota, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Utah, Washington, and Wyoming. New York, as the largest adopter, hopes to inspire other states to do the same.
NY students would still have to take online courses and pass a 50-question test regarding specific NY laws, but the students would take the MBE, and MPT or multistate performance test. According to the National Conference of Bar Examiners, the two 90-minute MPT exercises are “designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. The MPT is not a test of substantive knowledge. Rather, it is designed to evaluate certain fundamental skills lawyers are expected to demonstrate regardless of the area of law in which the skills arise.” The NY graduates will also no longer have to write on 6 NY-based essays, but will instead write the multistate essay examination. Students will have to write on topics including: Business Associations (Agency and Partnership; Corporations and Limited Liability Companies), Civil Procedure, Conflict of Laws, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Family Law, Real Property, Torts, Trusts and Estates (Decedents' Estates; Trusts and Future Interests), and Uniform Commercial Code (Secured Transactions).
In adopting the change, New York officials explained, a “significant advantage of adopting the UBE is that passage of the test would produce a portable score that could be used by the bar applicant to gain admission in other UBE states, assuming the applicant satisfies any other jurisdiction-specific requirements. This portability is crucial in a legal marketplace that is increasingly mobile and requires more and more attorneys to engage in multi-jurisdictional practice.”
I think this is sound reasoning. Many of today’s graduates do not know where they will end up, and I personally know that the thought of taking yet another bar exam was a reason that I decided to stay in Florida when I was in private practice. But the better reason to move to the UBE is the testing of the practical skills that lawyers say recent graduates lack. It won’t solve the problem of the lack of legal work, but it will make it easier for students who want to try to find work in other states. I doubt that Florida, which wants to make it as difficult as possible for snowbirds to set up practice here, will ever adopt the UBE but it should. Many oppose the adoption because schools may not have the faculty or resources to prepare students for the new test. But I welcome the change. Despite the pressure to prep my students for the bar, I have ensured that my students work on drafting client memos, discovery plans, markups of poorly written documents, and even emails to partners and clients so that they can be ready for the world that awaits them. If Florida joins the UBE bandwagon, they will be ready for the MPT too.
Friday, May 1, 2015
- welcoming new hires into the academy (or to their new positions) and
- providing a summary of the state of the legal academic hiring market
As a curious law firm associate, with hopes of an academic career, lists of this type were especially valuable in shining light on the qualifications of new academic hires.
While the lists of law professor hires seem well-covered elsewhere, I have not seen similar hiring lists for legal studies professor hires in business schools. For this first edition, I am simply pasting the material sent to me via e-mail or in the comments. I will cover full-time entry level or lateral hires in this list, but may split them into separate posts in future years. I will continue to update this list periodically until the new hires start in August, as some business schools may still be hiring.
Details below the page break.
Wednesday, April 22, 2015
There's good news and no news from me on the 3L job search front.
First, the good news. One of the talented 3L business law students whom I have been mentoring in the Quest for Employment (Q4E) recently secured a position that is perfect for him. He is a great fit for the firm and the position, and the firm is lucky to get him. Yay for our team!
The rest of the news on the Q4E front is same-old, same-old. Two other terrific 3L business law students who have had career/life changes that have led them to seek employment in new markets better suited to their professional or personal objectives are still on the market. Of course, this is nothing new in Knoxville and much of the rest of the State of Tennessee, where many law firms cannot really assess their needs until much closer to the bar exam/hiring start date. And these two promising lawyers-to-be are getting bites at the line.
Haskell earlier wrote a great post here on resumes and interviews, and I earlier wrote a companion post on cover letters. But what happens after you've sent the cover letter and resume and have not been granted an interview? Give up on the Q4E with those folks? No way! At least, that's not my advice . . . .
Some business schools are still hiring for this coming August. Here is a recent legal studies professor posting by University of Louisiana-Lafayette. University of Louisiana-Lafayette is a special school to me because they made my first tenure track offer, which was quickly followed by an offer from another school that was in a better geographic location for my family. While my decision was definitely the right one for our family, I have only good things to say about University of Louisiana-Lafayette. They ran a professional search process and have a collegial, bright faculty. Also, Lafayette seemed to have a wonderful, unique culture and excellent food.
I have updated my legal studies professor openings list here.
Friday, April 10, 2015
As I have previously mentioned, unlike law schools, business schools appear to hire virtually year-round. While most of the business schools have filled their open positions by this late date, there have been some recently posted positions.
Saturday, April 4, 2015
Emory Law School seeks an Assistant Director of the Center for Transactional Law and Practice to teach in and share the administrative duties associated with running the largest program in the Law School. Each candidate should have a J.D. or comparable law degree and substantial experience as an attorney practicing or teaching transactional law. Significant contacts in the Atlanta legal community are a plus.
Initially, the Assistant Director will be responsible for leading the charge to further develop the Deal Skills curriculum. (In Deal Skills – one of Emory Law’s signature core transactional skills courses – students are introduced to the business and legal issues common to commercial transactions.) The Assistant Director will co-teach at least one section of Deal Skills each semester, supervise the current Deal Skills adjuncts, and recruit, train, and evaluate the performance of new adjunct professors teaching the other sections of Deal Skills.
As the faculty advisor for Emory Law’s Transactional Law Program Negotiation Team, the Assistant Director will identify appropriate competitions, select team members, recruit coaches, and supervise both the drafting and negotiation components of each competition. The Assistant Director will also serve as the host of the Southeast Regional LawMeets® Competition held at Emory every other year.
Additionally, the Assistant Director will be responsible for the creation of two to three new capstone courses for the transactional law program. (A capstone course is a small, hands-on seminar in a specific transactional law topic such as mergers and acquisitions or commercial real estate transactions.) The Assistant Director will identify specific educational needs, recruit adjunct faculty, assist with curriculum design, and monitor the adjuncts’ performance.
Besides the specific duties described above, the Assistant Director will assist the Executive Director with the administration of the transactional law program and the Transactional Law and Skills Certificate program. This will involve publicizing the program to prospective and current students, monitoring the curriculum to assure that students are able to satisfy the requirements of the Certificate, and counselling students regarding their coursework and careers. The Assistant Director can also expect to participate in strategic planning, marketing, fundraising, alumni outreach, and a wide variety of other leadership tasks.
Emory University is an equal opportunity employer, committed to diversifying its faculty and staff. Members of under-represented groups are encouraged to apply. For more information about the transactional law program and the Transactional Law and Skills Certificate Program, please visit our website at:
To apply, please mail or e-mail a cover letter and resumé to:
Emory University Law School
1301 Clifton Road, N.E.
Atlanta, GA 30322-2770
APPLICATION DEADLINE: April 30, 2015
[Hat tip to Bobby Ahdieh for this post]
Monday, March 9, 2015
Western Carolina University has posted an opening for an assistant professor of legal studies. More information is available here. The position is fixed-term and non-tenure-track, though it comes with the title "assistant professor."
Last year, I greatly enjoyed my time presenting at Western Carolina University. WCU is in a beautiful part of the country, about an hour from Ashville, NC. WCU has a strong group of legal studies professors and has one of the nation's few Business Administration and Law degrees at the undergraduate level.
I've updated my list of legal studies professor positions in business schools. Many of the positions have now been filled, but I placed the newer postings in bold font.
Friday, March 6, 2015
It’s always nice to be validated. Day two into torturing my business associations students with basic accounting and corporate finance, I was able to post the results of a recent study about what they were learning and why. "Torture" is a strong word-- I try to break up the lessons by showing up to the minute video clips about companies that they know to illustrate how their concepts apply to real life settings. But for some students it remains a foreign language no matter how many background YouTube videos I suggest, or how interesting the debate is about McDonalds and Shake Shack on CNBC.
My alma mater Harvard Law School surveyed a number of BigLaw graduates about the essential skills and coursework for both transactional and litigation practitioners. As I explained in an earlier post, most of my students will likely practice solo or in small firms. But I have always believed that the skills sets are inherently the same regardless of the size of the practice or resources of the client. My future litigators need to know what documents to ask for in discovery and what questions to ask during the deposition of a financial expert. My family law and trust and estates hopefuls must understand the basics of a business structure if they wish to advise on certain assets. My criminal law aficionados may have to defend or prosecute criminal enterprises that are as sophisticated as any multinational corporation. Those who want to be legislative aides or go into government must understand how to close loopholes in regulations.
What are the top courses students should take? The abstract is below:
We report the results of an online survey, conducted on behalf of Harvard Law School, of 124 practicing attorneys at major law firms. The survey had two main objectives: (1) to assist students in selecting courses by providing them with data about the relative importance of courses; and (2) to provide faculty with information about how to improve the curriculum and best advise students. The most salient result is that students were strongly advised to study accounting and financial statement analysis, as well as corporate finance. These subject areas were viewed as particularly valuable, not only for corporate/transactional lawyers, but also for litigators. Intriguingly, non-traditional courses and skills, such as business strategy and teamwork, are seen as more important than many traditional courses and skills.
Did you take these courses? Has your school started adding more of this type of coursework and does your faculty see the value? Do you agree with the results of this survey? Let me know in the comments or email me at firstname.lastname@example.org.
March 6, 2015 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Current Affairs, Jobs, Law School, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (2)
Wednesday, March 4, 2015
In response to my earlier post entitled "So . . . You Think You Want a Business Law Job . . . .," a reader commented as follows:
I have also seen the shift of students in my college going from other areas of law into corporate law. . . . What advice in general would you offer up? Is it a good, secure job market to want to get into in this economy?
My initial response was that, " . . . in general I would not suggest that anyone become a lawyer of any kind merely because it is a good job in this or any other economy. You should want to be a lawyer before venturing off to law school."
Bottom line: the market for business law or any other legal jobs is not a uniformly good, secure job market. Law school is not and never has been a "job ticket" in any case. But those who have a desire to be business lawyers and work intelligently and diligently at finding a job in business law typically will be business lawyers. I undertook to post further this week.
So, what else shall I say to pre-law students and law students interested in business law? I will be relatively brief here and in my posts for a number of weeks since I am typing with one hand (my left, non-dominant hand) due to a broken right wrist--an extra-articular distal radius, or Colles', fracture. But I invite further observations in the comments.
Friday, February 20, 2015
Joan Heminway and I must be thinking similar thoughts because before I even saw her helpful post on business law jobs, I asked my former research assistant Samuel Moultrie to share his thoughts and advice on finding legal employment in this economic environment.
Sam is one of the hardest workers I know and took his job search seriously. He also took a big risk by going beyond the typical employers we had recruiting on campus when we were at Regent Law – mostly non-profits, government agencies, and a few VA and NC law firms. Sam wanted to practice in the state that has the greatest influence on U.S. corporate law and has made it happen. His journey was not and is not easy, but I thought his story might be inspiring. Recently, Sam was also selected as a 2015 Leadership Delaware Fellow. Sam’s thoughts on finding legal employment are reproduced below.
By: Samuel L. Moultrie
The job market for recent law school graduates is, without a doubt, miserable. While the statistics seem to vary, I think it is safe to say that the supply of new law school graduates exceeds the number of legal job openings. Nevertheless, graduates should not lose all hope. Any law school graduate can find a job, if they are motivated, willing to work hard, and take steps to distinguish themselves.
[More after the break]
Monday, February 16, 2015
It may just be my students, but it seems there is a renewed interest in business law careers among law students. Several of my students this year who had originally started down a path toward a career in another area of law have happily and passionately settled, somewhat late in the game, on being business lawyers. Somehow, after taking Business Associations and other foundational business law courses, they've been bit by the business law bug. And they are incredibly talented students--high up in their class in terms of rank and well worthy of employment in a firm or business or government. One is my research assistant.
We have been working together and with the folks in our Career Center to identify relevant geographical and employer markets. But I am seemingly engaged in a continuous struggle to help each of them (a) to enhance his resume to reflect his new-found business law passion (given that each already had accepted a second summer job somewhat or totally outside the business law area when he refocused on business law as a career path) and (b) to make the new connections that he needs to make in order to successfully pursue his revised career path. How can a middle-aged academic almost 15 years out of practice help a 3L business law job-seeker to make his resume more relevant, his contact list deeper, and his interviews more effective?
Friday, February 13, 2015
As one of Belmont University’s pre-law advisors, I have been getting an increasing number of e-mails from law school representatives across the country who are trying to recruit our students. One thing that I have been pushing for is better employment data. For the most part, the law school representatives simply send me the ABA required data, which I can already find on my own.
The ABA required data is somewhat helpful to me as an advisor, but the data is insufficient. We really need better salary data and complete (or near complete) employer/job title lists. Longitudinal studies, though difficult to do well, might be interesting.
The ABA required data tells us how many of a law school's graduates for a given year are employed in law firm jobs, judicial clerkships, government, public interest work, etc. The ABA data does not distinguish between an associate attorney position (~$160,000 + prestige + career mobility) and a staff attorney position (~$50,000 + no prestige + dead end, in most cases) at the same large firm - assuming both are full-time, long-term positions, which they can be. While I readily admit that salary is often not the most important part of a job, when prospective law students are considering taking out $100,000+ in loans, they do need to think about how they are going to pay it all back.
On the job title side, a management track job in a bank is a good bit different than working as a teller at that same bank. On the employer side, some small law firms are prestigious boutiques and others are akin to hanging your own shingle; if you had the employer names, you could look them up and uncover the type of work they do and their reputation.
I applaud The University of Michigan Law School for their employer list. According to the list, none of their graduates, over three years, opted out of the list. Only 7 out of over 1000 employment outcomes were unknown. Other schools have provided me with employer lists, but those lists are usually very incomplete, cherry-picked lists. I am not sure how Michigan pulled together this complete of a data set, but other law schools should ask and attempt to replicate.
Add more complete salary data--could we get 75+% reporting?--to an employer list like Michigan’s and prospective students would have a much better look at their likely employment outcomes. (Michigan actually does have over 75% reporting salaries, but many schools are well under 50% reporting). Law School Transparency has been pushing for and organizing some of this data, but we can all join in the attempt to obtain even better employment data so that prospective law students can make more informed decisions.
Monday, December 29, 2014
Grades are in--a few hours late, but in nevertheless. It must be almost time for New Year's Eve, syllabus and first-assignment posting, the AALS conferenece, the first day of classes, . . . and more job searching for our students!
I was reminded in an email from a student this morning that the hunt for summer and permanent law jobs is revving back up again after the holiday doldrums. The student, a 1L mentee seeking summer employment, was asking a few questions about my cover letter post, to which I eaerlier had referred him. I expect to start getting more of these communications from students about their job searches over the next few weeks.
Our brother bloggers over at the Law Skills Prof Blog have already struck while the iron is hot on this issue. Specifically, Lou Sirico posted a quip on dressing for job interviews the other day. The quoted advice? "The interviewer should remember what you said and not what you were wearing."
Hmm. Yeah. I guess so. Well, maybe not.
Certainly, that's the advice I was given by NYU Law's fabulous placement folks in "the day." Then, that meant wearing: a black, navy or midnight blue, or gray skirt suit; a neutral (white, ivory, gray, black) collared shirt or jewel-neck blouse; skin-tone hose; dark, solid-colored, medium-heeled pumps or really lovely flats; and either Barbara Bush pearls (the double strand) or a silk floppy bow tie (like an Hermes twilly, only not as fashion-forward). Bo-ring.
I am proud (but call me lucky) to have gotten my job wearing (to the initial interview) a deep pink--almost fuchsia--silk-blend skirt suit (midi-length skirt, hip-length jacket), with a white collared blouse, neutral hose, black flats, and a patterned (pink, blue, etc.) floppy silk bow tie. (This is where the folks in the UT Law Career Center lose faith that they are sending students to the right place when they refer them to me for career advice!) I was confident and radiant in that suit (although I am not sure I realized that fully at the time), and I am convinced that made a big difference in the reception that I got from people when I wore it. However, it's true that I was interviewed by a woman (a female senior associate in a multicolored silk dress with straight blond hair down to her derrière) and I was seeking employment at an entrepreneurial, individualistic firm--Skadden.
Friday, December 26, 2014
Over the past few months, I have received a number of e-mails from the alumni associations of each of my two former law firms.
In theory, I think these alumni networks are good ideas. They could help us keep in touch and could introduce us to people with common ties to those law firms. They could also help the law firms maintain ties with alums who could become clients.
In practice, however, I rarely use any of the alumni services offered.
One of the main reasons is that my former firms do not have offices where I currently live (in Nashville) and they rarely, if ever, have events here. If I still lived in Atlanta or New York City, I would probably attend some of the offered alumni CLE events, but I am probably never going to travel for them.
As to the online alumni networks on the law firms' websites, I think the contact information for alums probably stays relatively out of date (as people choose to update their information on major social networks, but may forget about the ones at the law firms). LinkedIn law firm alumni groups are probably the most useful thing that the law firms do, but I find the content posted there is generally not that helpful and can be dominated by some desperate group member salesperson. (I also think LinkedIn is the least user friendly of the major social networks, but that is a topic for another post).
What law firm alumni network efforts have you seen be successful? Are they worth the effort that major law firms seem to be putting into them?
Thursday, December 11, 2014
In many companies, executives and employees alike will give a blank stare if you discuss “human rights.” They understand the terms “supply chain” and “labor” but don’t always make the leap to the potentially loaded term “human rights.” But business and human rights is all encompassing and leads to a number of uncomfortable questions for firms. When an extractive company wants to get to the coal, the minerals, or the oil, what rights do the indigenous peoples have to their land? If there is a human right to “water” or “food,” do Kellogg’s, Coca Cola, and General Mills have a special duty to protect the environment and safeguard the rights of women, children and human rights defenders? Oxfam’s Behind the Brands Campaign says yes, and provides a scorecard. How should companies operating in dangerous lands provide security for their property and personnel? Are they responsible if the host country’s security forces commit massacres while protecting their corporate property? What actions make companies complicit with state abuses and not merely bystanders? What about the digital domain and state surveillance? What rights should companies protect and how do they balance those with government requests for information?
The disconnect between “business” and “human rights” has been slowly eroding over the past few years, and especially since the 2011 release of the UN Guiding Principles on Business and Human Rights. Businesses, law firms, and financial institutions have started to pay attention in part because of the Principles but also because of NGO pressures to act. The Principles operationalize a "protect, respect, and remedy" framework, which indicates that: (i) states have a duty to protect against human rights abuses by third parties, including businesses; (ii) businesses have a responsibility to comply with applicable laws and respect human rights; and (iii) victims of human rights abuses should have access to judicial and non-judicial grievance mechanisms from both the state and businesses.
Many think that the states aren’t acting quickly enough in their obligations to create National Action Plans to address their duty to protect human rights, and that in fact businesses are doing most of the legwork (albeit very slowly themselves). The UK, Netherlands, Spain, Italy and Denmark have already started and the US announced its intentions to create its Plan in September 2014. A number of other states announced that they too will work on National Action Plans at the recent UN Forum on Business and Human Rights that I attended in Geneva in early December. For a great blog post on the event see ICAR director Amol Mehra's Huffington Post piece.
What would a US National Action plan contain? Some believe that it would involve more disclosure regulation similar to the Dodd-Frank Conflict Minerals Rule, the Ending Trafficking in Government Contracting Act, Trafficking Victims Protection Act, the Burma Reporting Requirements on Responsible Investment, and others. Some hope that it will provide additional redress mechanisms after the Supreme Court’s decision in Kiobel significantly limited access to US courts on jurisdictional grounds for foreign human rights litigants suing foreign companies for actions that took place outside of the United States.
But what about the role of business? Here are five observations from my trip to Geneva:
1) It's not all about large Western multinationals: As the Chair of the Forum Mo Ibrahim pointed out, it was fantastic to hear from the CEOs of Nestle and Unilever, but the vast majority of people in China, Sudan and Latin American countries with human rights abuses don’t work for large multinationals. John Ruggie, the architect of the Principles reminded the audience that most of the largest companies in the world right now aren’t even from Western nations. These include Saudi Aromco (world’s largest oil company), Foxconn (largest electronics company), and India’s Tata Group (the UK’s largest manufacturing company).
2) It’s not all about maximization of shareholder value: Unilever CEO Paul Pollman gave an impassioned speech about the need for businesses to do their part to protect human rights. He was followed by the CEO of Nestle. (The opening session with both speeches as well as others from labor and civil society was approximately two hours long and is here). In separate sessions, representatives from Michelin, Chevron, Heinekin, Statoil, Rio Tinto, Barrick, and dozens of other businesses discussed how they are implementing human rights due diligence and practices into their operations and metrics, often working with the NGOs that in the past have been their largest critics such as Amnesty International, Human Rights Watch and Oxfam. The US Council for International Business, USCIB, also played a prominent role speaking on behalf of US and international business interests.
3) Investors and lenders are watching: Calvert; the Office of Investment Policy at OPIC, the US government’s development finance institution; the Peruvian Financial Authority; the Supervision Office of the Banco Central do Brasil; the Vice Chair of the Banking Association of Colombia; the European Investment Bank; and Swedfund, among others discussed how and why financial institutions are scrutinizing human rights practices and monitoring them as contractual terms. This has real world impact as development institutions weigh choices about whether to lend to a company in a country that does not allow women to own land, but that will provide other economic opportunities to those women (the lender made the investment). OPIC, which has an 18 billion dollar portfolio in 100 countries, indicated that they see a large trend in impact investing.
4) Integrated reporting is here to stay: Among other things, Calvert, which manages 14 billion in 40 mutual funds, focused on their commitment to companies with solid track records on environmental, social, and governance factors and discussed the benefits of stand alone or integrated reporting. Lawyers from some of the largest law firms in the world indicated that they are working with their clients to prepare for additional non-financial reporting, in part because of countries like the UK that will mandate more in 2016, and an EU disclosure directive that will affect 6,000 firms.
5) Is an International Arbitration Tribunal on the way?: A number of prominent lawyers, retired judges and academics from around the world are working on a proposal for an international arbitration tribunal for human rights abuses. Spearheaded by lawyers for better business, this would either supplement or possibly replace in some people’s view a binding treaty on business and human rights. Having served as a compliance officer who dealt extensively with global supply chains, I have doubts as to how many suppliers will willingly contract to appear before an international tribunal when their workers or members of indigenous communities are harmed. I also wonder about the incentives for corporations, the governing law, the consent of third parties, and a host of other sticking points. Some raised valid concerns about whether privatizing remedies takes the pressure off of states to do their part. But it’s a start down an inevitable road as companies operate around the world and want some level of certainty as to their rights and obligations.
On another note, I attended several panels in which business executives, law firm partners, and members of NGOs decried the lack of training on business and human rights in law schools. Even though professors struggle to cover the required content, I see this area as akin to the compliance conversations that are happening now in law schools. There is legal work in this field and there will be more. I look forward to integrating some of this information into an upcoming seminar.
In the meantime, I tried to include some observations that might be of interest to this audience. If you want to learn more about the conference generally you can look to the twitter feed on #bizhumanrights or #unforumwatch, which has great links. I also recommend the newly released Top 10 Business and Human Rights Issues Whitepaper.
December 11, 2014 in Business Associations, Conferences, Corporate Finance, Corporate Governance, Corporations, CSR, Current Affairs, Financial Markets, International Business, Jobs, Law School, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (0)
Tuesday, November 25, 2014
We want the best for both of our kids, and we are working to help them learn as much as they can about being good people and successful people. We're fortunate that we have a (relatively) stable life, we've had good health, and we're able to provide our children a lot of opportunities. For my daughter, as I have noted before, I do worry about institutional limits that are placed on her in many contexts.
She's in first grade, but expectations are already being set. On her homework last week: a little boy in her reading comprehension story builds a tower with sticks and bricks and stones. Next story: a little girl gets fancy bows in her hair instead of her usual ponytails. I wish I were making this up.
This is more pervasive than I think many people appreciate. Take, for example, the Barbie computer science book that had people raising their eyebrows (and cursing). NPR has a report explaining the basic issues here. The basics:
A book called Barbie: I Can Be A Computer Engineer was originally published in 2010. Author and Disney screenwriter Pamela Ribon discovered the book at a friend's house and was initially excited at the book's prospects, she tells guest host Tess Vigeland.
But then she continued reading.
"It starts so promising; Barbie is designing a game to show kids how computers work," Ribon says. "She's going to make a robot puppy do cute tricks by matching up colored blocks."
But then Barbie's friend Skipper asks if she can play it, and the book continues:
" 'I'm only creating the design ideas,' Barbie says, laughing. 'I'll need Steven's and Brian's help to turn it into a real game.' "
Harvard Business Review recently published a piece, Research: How Female CEOs Actually Get to the Top, that offers some insights. It's a good read, and is shows that success at the highest levels is often limited to women pursuing a different path and in companies with a particular culture. At a minimum, the article suggest that the advice we give women about how to get ahead may not be useful. (Not shocking given that the advice is often coming from men.) Here's an excerpt with my biggest takeaways, but I recommend the whole things (it's a short read):
The consistent theme in the data is that steady focus wins the day. The median long stint for these women CEOs is 23 years spent at a single company in one stretch before becoming the CEO. To understand whether this was the norm, we pulled a random sample of their male Fortune 500 CEO counterparts. For the men in the sample, the median long stint is 15 years. This means that for women, the long climb is over 50% longer than for their male peers. Moreover, 71% of the female CEOs were promoted as long-term insiders versus only 48% of the male CEOs. This doesn’t leave a lot of time for hopscotch early in women’s careers.
* * *
It may be that the playbook for advising young women with their sights set on leading large companies needs to be revised. Just as important, there is something inspiring for young women in the stories of these female CEOs: the notion that regardless of background, you can commit to a company, work hard, prove yourself in multiple roles, and ultimately ascend to top leadership. These female CEOs didn’t have to go to the best schools or get the most prestigious jobs. But they did have to find a good place to climb.
To be clear, I am thankful things have progressed to the point that my daughter really does have a legitimate shot at the same success as my son. Things are better than they were, and I see that. I'm just not satisfied that we're where we need to be, because her access to opportunities do not mean she has the same likelihood of success. We'll keep working on it, as I'd like to think we all should.
Sunday, November 9, 2014
I have updated my list of legal studies professor openings with USC-Upstate, University of Southern Mississippi, and Truman State University.
Details about those positions are available after the break.