Thursday, December 21, 2017
Earlier this week, President Trump gave his annual speech on national security. As in the past, he failed to stress human rights (unlike his predecessors) but did allude to cooperation, even with China and Russia, when warranted by geopolitical interests. Over the last several months, he has touted bilateral trade agreements. Coincidentally, my latest law review article on a potential bilateral investment treaty with Cuba came out the same day. As you may recall, Trump recently reversed some Obama-era policies on Cuba over human rights. My article may help his administration reconcile some of the apparent contradictions in his policies. The abstract is below.
You Say Embargo, I Say Bloqueo—A Policy Recommendation for Promoting Foreign Direct Investment and Safeguarding Human Rights In Cuba
The United States is the only major industrialized nation that restricts
trade with Cuba. Although President Obama issued several executive orders
that have facilitated limited trade (and President Trump has scaled some
back), an embargo remains in place, and by law, Congress cannot lift it until,
among other things, the Cuban government commits to democratization and
human rights reform. Unfortunately, the Cuban and U.S. governments
fundamentally disagree on the definition of “human rights,” and neither side
has shown a willingness to compromise. Meanwhile, although some U.S.
investors clamor to join their European and Canadian counterparts in
expanding operations in Cuba, many have an understandable concern
regarding the rule of law and expropriation in a communist country. Bilateral
investment treaties aim to address those concerns.
After discussing the legal and political barriers to lifting the embargo, I
propose a partial solution to the stalemate on human rights, which will: (1)
facilitate foreign direct investment in Cuba; (2) protect investor interests
through a bilateral investment treaty; and (3) require an examination of
human rights impacts on the lives of Cuban citizens before investors can
receive the protection of the treaty.
Specifically, I recommend the inclusion of human rights clauses in bilateral
investment treaties (BITs) and investor-state dispute mechanisms as a condition precedent
to lifting the embargo. My solution also requires “clean hands” so that investors seeking relief must
provide proof that their business interests have not exacerbated or been
complicit in human rights abuses, rebut claims from stakeholders that their
business interests have not exacerbated or been complicit in human rights
abuses, or both. Finally, I propose revisions to the 2016 U.S. National Action
Plan on Responsible Business Conduct to incorporate human rights
requirements in future BITs and other investment vehicles going forward.
Anyone with connections to Rex Tillerson is free to pass it on. Happy Holidays to all.
Friday, November 10, 2017
After my daughter Allie's first stay at Vanderbilt Children’s hospital, with what we think was a virus that attacked her lungs, Allie seemed to return to normal for a couple weeks before having another episode. This time, we spent 4 days in the hospital. The praise I lavished on Vanderbilt last time was less deserved on this trip, mostly blamed, staff repeatedly claimed, on a new computer system. (Note: In a place like a hospital, don’t you think you should provide adequate training and work out the bugs before launching a new computer system?)
In any event, Allie is back home again, though we are still working with doctors to uncover the precise cause.
Obviously, my daughter’s health is much more important than work, but I do need to continue to work (if for no other reason than health insurance...we would be bankrupt without health insurance). Given that my focus has been diverted, I have had to push on quite a number of deadlines -- 4 writing assignments and 2 speaking engagements -- and have been slower than normal in returning graded work. Thankfully, students, editors, and colleagues have been quite understanding.
As a professor and a person, I am a big believer in meeting deadlines, so it has been difficult for me to ask for extensions. When asking for extensions, I do think students and professors can “cry wolf” too often, and then, when true emergencies do arise, it becomes harder for the other side to happily grant the extension. This situation has made me even more committed to hitting every deadline I can, so that when I do ask for an emergency extension, people know it is for a valid reason.
Also, this situation has reminded me of the need to create some margin in my life. This past month was going to be a busy one, even without my daughter’s situation. It was doable, but all time needed to be available and efficiently used. Without margin, many projects were impacted, in domino fashion. Now, this situation with my daughter was unexpected and extraordinary and difficult to plan for, and I am not suggesting that we all run at 50% capacity in case of an emergency, but I do think I could have benefited from having built a bit more flexibility into my schedule. (Note: As a law review adviser, I recommended that my students to build some of this margin into their publishing schedule for professors. For example, tell the professors you need the article about a month before you actually do because various issues almost invariably arise.)
In any event, I am quite appreciative to all those who have been so understanding, and I am catching up. Barring any future issues, I think I will be back in the grove and on schedule in about 10 days or so, just in time to gear up for finals.
Wednesday, July 26, 2017
As some of you know (and as I noted in a prior post), I have taught from time to time in the past (and will be teaching again this fall) a course focusing on nonhuman animals and the law. The course reveals, among many other things, that business law doctrine and practice have a number of significant intersections with nonhuman animals. Although I am likely to say more on that later, the earlier post linked in above notes a few things.
Yesterday, I received the "Call for Papers and Features" reproduced below. Many of the suggested topics--and the overall theme of "animal welfare in the context of human development"--engage business law. In particular, agricultural business seems to be on the ends of the editors . . . . Accordingly, I am posting the call thinking that some of our readers would be interested in knowing about this.
[Aside: I do not subscribe to the citation policy of the journal for the "features" being sought through this call--e.g., "Almost every sentence must be cited" and "If a sentence does not have a citation, you should have a good reason (i.e., it is your concluding argument or a recommendation)." Unless those who established these requirements are confident that "features" otherwise meeting their requirements do not contain novel legal or policy arguments or recommendations, that pair of citation "requirements" is absurd, imv.]
* * *
CALL FOR PAPERS AND FEATURES
The Sustainable Development Law & Policy Brief (SDLP) is currently accepting submissions for its Fall 2017 edition on topics related to animal welfare in the context of human development. Development will not be sustainable if animal welfare and human-animal relationships are not included in development programs, policies, and laws. Therefore, it is important to highlight the commonality between animal welfare issues and human justice issues.
If you would like to submit an article or feature for consideration, please contact us at firstname.lastname@example.org immediately. We will accept submissions on a rolling basis. The deadline for submissions is Monday, September 25, 2017. We will select up to four articles and four features for publication, and we will notify the Authors by Monday, October 2, 2017. Article Requirements differ from Feature Requirements – see below.
Topics may include but are not limited to:
§ Consumption of Species Versus Ecotourism in Developing Nations
§ Exploitation of Natural Fisheries and the Associated Issue of Bycatch
§ Challenges in Regulating Offshore Aquaculture
§ The Effects of Anthropogenic Noise on Marine Life
§ Going Meatless and Securing Food Sources: Moving Away from Concentrated Animal Feeding Operations and Meat Consumption
§ Socio-Economic Challenges in Shifting from Animal-Based Agriculture to Plant- Based/Non-Animal Based Agriculture
§ Intersection Between Concentrated Animal Feeding Operations and Environmental Justice
§ Habitat Loss and Deforestation from Agriculture
§ The Role of Financial Institutions in Animal Agriculture Projects
§ How to Move Toward a Global Animal Welfare Policy
§ Human Health Implications Associated with the Production and Consumption of Animal Products
§ Balancing Wildlife and Continued Land Exploitation in National Parks and Preserves
§ The Effects of Deep Sea Bed Mining on Marine Life
SDLP is available online at LexisNexis, Westlaw, VLex, Hein Online, and on our website at www.wcl.american.edu/org/sdlp.
It is also widely distributed at law and graduate schools, and to representatives of international organizations worldwide.
We reserve the right to reject submissions at any time or for any reason. We also reserve the right to hold all submissions on file for later publication and reserve the right to revise submissions and/or cut text. Authors will have the opportunity to accept or reject any revisions. SDLP accepts submission of timely articles that have already been published elsewhere, so long as permission of the previous publisher is received.
[Click on the "Continue reading" button below for the requirements for articles and features.]
Monday, April 10, 2017
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.
- 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."
- 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.
- 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.
Monday, April 3, 2017
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 . . . .
Thursday, January 26, 2017
Belmont Health Law Journal - What’s Next? The Movement from Volume to Value-based Healthcare Delivery
The Belmont Health Law Journal is hosting its first symposium tomorrow, January 27th.
The theme of the symposium will be What's Next? The Movement from Volume to Value-based Healthcare Delivery, and will feature Congressman Jim Cooper as keynote speaker.
Information is available here.
Registration is from 8:30am to 9:00am. Speakers will present from 9:00 am until noon. CLE credit and lunch provided.
Sunday, July 3, 2016
The University of Akron Law Review recently published its Symposium on Law and SocioEconomics. You can find a full list of the contributions here (Volume 49, Issue 2). As one of the organizers of the symposium, I had the honor of writing a conclusion to the issue, titled Socio-Economics: Challenging Mainstream Economic Models and Policies. I provide the abstract below, and you can read the entire piece here.
At a time when many people are questioning the ability of our current system to provide economic justice, the Socio-Economic perspective is particularly relevant to finding new solutions and ways forward. In this relatively short conclusion to the Akron Law Review’s publication, Law and Socio-Economics: A Symposium, I have separated the Symposium articles into three groups for review: (1) those that can be read as challenging mainstream economic models, (2) those that can be read as challenging mainstream policy conclusions, and (3) those that provide a good example of both. My reviews essentially take the form of providing a short excerpt from the relevant article that will give the reader a sense of what the piece is about and hopefully encourage those who have not yet done so to read the entire article.
Thursday, June 23, 2016
The Cuba Conundrum: Corporate Governance and Compliance Challenges for U.S. Publicly-Traded Companies
My latest article on Cuba and the US is out. Here I explore corporate governance and compliance issues for US companies. In May, I made my third trip to Cuba in a year to do further research on rule of law and investor concerns for my current work in progress.
In the meantime, please feel free to email me your comments or thoughts at email@example.com on my latest piece
The abstract is below:
The list of companies exploring business opportunities in Cuba reads like a who’s who of household names- Starwood Hotels, Netflix, Jet Blue, Carnival, Google, and AirBnB are either conducting business or have publicly announced plans to do so now that the Obama administration has normalized relations with Cuba. The 1962 embargo and the 1996 Helm-Burton Act remain in place, but companies are preparing for or have already been taking advantage of the new legal exemptions that ban business with Cuba. Many firms, however, may not be focusing on the corporate governance and compliance challenges of doing business in Cuba. This Essay will briefly discuss the pitfalls related to doing business with state-owned enterprises like those in Cuba; the particular complexity of doing business in Cuba; and the challenges of complying with US anti-bribery and whistleblower laws in the totalitarian country. I will also raise the possibility that Cuba will return to a state of corporatism and the potential impact that could have on compliance and governance programs. I conclude that board members have a fiduciary duty to ensure that their companies comply with existing US law despite these challenges and recommend a code of conduct that can be used for Cuba or any emerging markets which may pose similar difficulties.
June 23, 2016 in Comparative Law, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Human Rights, International Business, Law Reviews, Marcia Narine Weldon, Research/Scholarhip | Permalink | Comments (0)
Thursday, May 5, 2016
Today I hit “submit” on an article I was asked to review for an international law journal. Because the process required blind peer review, I won’t be any more specific other than to say that the article related to a topic that I have written and spoken about extensively over the past few years. Unfortunately, the author did not cite any of the main (or even ancillary) articles on the topic and instead focused on a number of disparate theories that barely related to the title or topic of the piece. In short, the article had a few good pages and might make a few decent articles, but only after major revisions. I knew what the article was missing because I have read almost every other piece written on the topic.
As a junior academic, I admit that the most frustrating part of the law review process is the lack of peer review, at least in the United States. My colleagues in the EU review articles of 10-12,000 words on average and generally have 1-2 other reviewers deciding on publication of a scholar’s piece. The review period tends to be 6-8 weeks (or so I have been told) and generally journals require exclusive submission. In worst case scenarios, authors can wait several months for an acceptance or rejection. Although I am not a fan of the exclusive submission process, I do prefer the peer review model. It may be subjective, but it’s no more subjective than having articles accepted by 2Ls and 3Ls, who may have no expertise or familiarity with the topic they are reviewing.
A 2014 essay by Josephine Potuto raises another issue with the U.S. law review system—how the articles are edited. The abstract states simply:
Law professors publish in law reviews, not peer-reviewed journals. They are edited by law students. The editing process can be both irritating and exasperating. From experiences lived and those shared by colleagues across the country, I provide concrete examples of where law student editors go wrong, and also explain why.
Finally, in an effort to improve the process, I recommend that faculty advisors and editors read some of my co-bloggers’ insights on the topic.
Happy grading to all and I wish you a productive summer. I will be writing less frequently in May due to a honeymoon and then a research trip to Cuba, which of course, I will blog about. I'm also writing a law review article on Cuba, so hopefully editors won't hold this column against me!
Thursday, March 31, 2016
Business and Human Rights Scholars Conference
University of Washington School of Law, Seattle, Washington
September 16-17, 2016
The University of Washington School of Law, the NYU Stern Center for Business and Human Rights, the Rutgers Business School, the Rutgers Center for Corporate Law and Governance, and the Business and Human Rights Journal announce the second Business and Human Rights Scholars Conference, to be held September 16-17, 2016 at the University of Washington School of Law in Seattle. Conference participants will present and discuss scholarship at the intersection of business and human rights issues.
Upon request, participants’ papers may be considered for publication in the Business and Human Rights Journal (BHRJ), published by Cambridge University Press. The Conference is interdisciplinary; scholars from all global regions and all disciplines are invited to apply, including law, business, business ethics, human rights, and global affairs.
To apply, please submit an abstract of no more than 250 words to BHRConference@kinoy.rutgers.edu with the subject line Business & Human Rights Conference Proposal. Papers must be unpublished at the time of presentation. Please include your name, affiliation, contact information, and curriculum vitae.
The deadline for submission is May 15, 2016. Scholars whose submissions are selected for the Conference will be notified no later than June 15, 2016. We encourage early submissions, as selections will be made on a rolling basis.
About the BHRJ
The BHRJ provides an authoritative platform for scholarly debate on all issues concerning the intersection of business and human rights in an open, critical and interdisciplinary manner. It seeks to advance the academic discussion on business and human rights as well as promote concern for human rights in business practice.
BHRJ strives for the broadest possible scope, authorship and readership. Its scope encompasses interface of any type of business enterprise with human rights, environmental rights, labor rights and the collective rights of vulnerable groups. The Editors welcome theoretical, empirical and policy/reform-oriented perspectives and encourage submissions from academics and practitioners in all global regions and all relevant disciplines.
A dialogue beyond academia is fostered as peer-reviewed articles are published alongside shorter ‘Developments in the Field’ items that include policy, legal and regulatory developments, as well as case studies and insight pieces.
Thursday, December 17, 2015
A year ago today, President Obama shocked the world and enraged many in Congress by announcing normalization of relations with Cuba. A lot of the rest of the United States didn’t see this as much of a big deal, but here in Miami, ground zero for the Cuban exile community, this was a cataclysmic event. Now Miami is one of the biggest sources of microfinance for the island.
Regular readers of this blog know that I have been writing about the ethical and governance issues of doing business with the island since my 10-day visit last summer. I return to Cuba today on a second research trip to validate some of my findings for my second article on governance and compliance risks and to begin work on my third article related to rule of law issues, the realities of foreign direct investment and arbitration, what a potential bilateral or multilateral investment agreement might look like, and the role that human rights requirements in these agreements could play.
This is an interesting time to be visiting Cuba. The Venezuelan government, a large source of income for Cuba has suffered a humiliating defeat. Will this lead to another “special period” for the nation similar to the collapse of the Soviet Union? Major league baseball players who defected from Cuba just a few years ago announced a homecoming trip today. Yesterday, the US government authorized commercial flights to return to Cuba. The property claims for the multinationals and families who had homes and business confiscated by Castro are being worked out, or so some say.
Over the next few days in between touring Old Havana and fishing villages, I will learn from lawyers and professors discussing arbitration law in Cuba, foreign investment law 118/2014, tax and labor implications for the foreign investor, the 2015 amendments to the Cuban Assets Control Regulations, requirements for gaining government approval and forming state partnerships, and the Cuban banking system.
Strangely, I am excited. While I should be decompressing from the shock of reading student exams discussing “creepy tender offers” and “limited liability corporations,” I can’t wait to delve into the next phase of my research and practice my business Spanish at the bar of the Parque Central in La Habana. My internet access will be spotty and expensive but if you can think of any pressing questions I should ask leave a comment below or email me at firstname.lastname@example.org.
December 17, 2015 in Comparative Law, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Food and Drink, Human Rights, International Business, International Law, Law Reviews, Marcia Narine Weldon, Religion, Writing | Permalink | Comments (0)
Friday, October 23, 2015
This week I thanked the law review editors at the West Virginia Law Review for their hard work on my forthcoming article. They seemed truly grateful for the thanks, which was well deserved, and it made me think that I should thank law review editors more often.
Law review editors put in a tremendous amount of time working on our articles, often well after-hours given all of their other commitments. Even when the process is frustrating, I think we need to be thankful and professional. Also, given that I have had a few rough editing experiences, I now state my preferences up front, which (at least this time) led to better results.
Personally, I don't have a problem with exploding offers, and I actually think more law reviews should use them. The submission game incentivizes submission to many journals and trading up multiple times. This process wastes an incredible amount of student editor time and they have every right to effectively shut down the expedite process.
As I have mentioned before, the exclusive submission window is an elegant solution to the expedite problem. Under this strategy, the law review promises a prompt decision and the professor promises to accept the offer if made. The only downside to the exclusive submission window is that the professor usually cannot shop the article during that window, so it slows the submission process.
Maybe the solution is to allow multiple submissions, but prevent professors from trading-up. If that were the rule, professors would be incentivized to submit only to journals where they would be happy to publish and the process would be faster.
Finally, I can't have a post about law reviews without asking, again, why more law reviews have not moved to blind review. I cannot think of a good reason, but am I missing something?
Thursday, October 15, 2015
How and when should CSR codes be enforced through litigation? This short article by Jan M. Smits attempts to answer that question. The abstract is below and the link to the article is here:
A central question in the debate on corporate social responsibility is to what extent CSR Codes can be enforced among private parties. This contribution argues that this question is best answered by reference to the applicable doctrinal legal system. Such a doctrinal approach has recently regained importance in American scholarship, while it is still the prevailing method of legal analysis in Europe. Applying a doctrinal analysis of CSR Codes allows to make the possibility of private law enforcement, i.e. enforcement by means of contract or tort, dependent on three different elements: the exact type of claim that is brought, the evolving societal standards about the binding nature of CSR Codes, and the normative complexity of the doctrinal system itself. This approach allows to make a typology of cases in which the enforceability of CSR Codes can be disputed. It is subsequently argued that societal standards have not yet reached the stage where the average consumer who buys a product from a retailer can keep that retailer legally liable for violations of the norms incorporated in the code.
Wednesday, September 16, 2015
Last month, a colleague of mine received a request from a law review (one unaffiliated with her or our institution) to perform a peer review of an article that the law review was considering for publication. The period for the requested review was short--about a week--and arrived with no prior notice two weeks before classes started. No compensation was offered. While she (an acknowledged expert in the overall field and on the specific topic covered in the article) was, indeed, flattered by the request and very interested in the article, she had to turn the request down given the nature and extent of her commitments here.
She wondered, and I did, too, how prevalent these kinds of requests are from law reviews. I have performed peer reviews of articles for our journals here at UT Law from time to time and have considered it part of my service to the institution. But the only other peer reviews I have done have been of books or book proposals for publishers, for which I have received some (not a lot of) compensation for my trouble. So (given that I know I sometimes have blinders on and miss things that are going on outside my narrow span of activity), I asked around . . . . My co-bloggers and other colleagues contributed to the facts and ideas I share here.
Tuesday, September 8, 2015
Limited liability companies (LLCs) are often viewed as some sort of a modified corporation. This is wrong, as LLCs are unique entities (as are, for example, limited partnerships), but that has not stopped lawyers and courts, including this nation's highest court, from conflating LLCs and corporations.
About four and a half years ago, in a short Harvard Business Law Review Online article, I focused on this oddity, noting that many courts
seem to view LLCs as close cousins to corporations, and many even appear to view LLCs as subset or specialized types of corporations. A May 2011 search of Westlaw’s “ALLCASES” database provides 2,773 documents with the phrase “limited liability corporation,” yet most (if not all) such cases were actually referring to LLCs—limited liability companies. As such, it is not surprising that courts have often failed to treat LLCs as alternative entities unto themselves. It may be that some courts didn’t even appreciate that fact. (footnotes omitted).
I have been writing about this subject again recently, so I decided to revisit the question of just how many courts call LLCs “limited liability corporations” instead of “limited liability companies.” I returned to Westlaw, though this time it's WestlawNext, to do the search of cases for the term "limited liability corp!". (Exclamation point is to include corp., corporation, and corporations in my search, not to show excitement at the prospect.)
The result: 4575 cases use the phrase at least once.
That means that, since May 2011, 1802 additional cases have incorrectly identified the definition of an LLC. (I concede that some cases may have used the term to note it was wrong, but I didn't find any in a brief look.)
Even the United States Supreme Court published one case using the incorrect phrase, and it was decided around three years after my article was published. See Daimler AG v. Bauman, 134 S. Ct. 746, 752, 187 L. Ed. 2d 624 (2014) ("MBUSA, an indirect subsidiary of Daimler, is a Delaware limited liability corporation."). (Author's note: ARRRRGH!) The court also stated, "Jurisdiction over the lawsuit was predicated on the California contacts of Mercedes–Benz USA, LLC (MBUSA), a subsidiary of Daimler incorporated in Delaware with its principal place of business in New Jersey." Id. (emphasis added). (Author's Note: Really?)
This opinion was written by Justice Ginsberg, and joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan. Justice Sotomayor filed a concurring opinion that did not, unfortunately, concur in judgment but disagree with the characterization of the LLC. The entire court at least acquiesced in the incorrect characterization of the LLC!
It appears things have to get worse before they can get better, but I will remain vigilant. I’m working on an article that builds on this, and it will hopefully help courts and practitioners keep LLCs and corporations distinct.
In the meantime, I humbly submit to Chief Justice Roberts, and the rest of the Court, that there are already some useful things in law reviews.
September 8, 2015 in Business Associations, Case Law, Corporations, Joshua P. Fershee, Law Reviews, Lawyering, LLCs, Partnership, Research/Scholarhip, Unincorporated Entities | Permalink | Comments (2)
Monday, July 13, 2015
Hi, my name is Steve, and I'm an academic.
I'm paid to express my opinions. The more I publish, the greater the rewards: tenure, promotion, raises, summer research grants, chaired professorships, conference invitations.
My situation isn't unique. The reward structure is the same at most law schools and in the rest of higher education. The more you write, the more you get.
I once asked a dean (who shall remain nameless) what would happen if a faculty member received a summer research grant and the research didn't pan out, didn't produce anything worth publishing. The dean said that never happens because you can find an outlet to publish almost anything.
But do we really need all that "scholarship"? Would the world be any worse if I and other academics spent more time thinking and crafting a few high-quality articles that really added to the discussion, instead of trying to keep up the stream of constant publication? Would law and legal education suffer if we cut the number of law review articles in half?
Incentives are part of the problem. I have been in law teaching for 29 years, and my sense is that the pressure to publish is increasing. Quantity is surpassing quality as the prime criterion. When I entered legal education, two good articles was probably sufficient for tenure. Now, many untenured professors tell me they feel pressured to produce at least one article every year.
Another part of the problem is us. Sometimes, you don't have anything worthwhile to say. Sometimes, you realize you don't have anything worthwhile to say. Unfortunately, academics have big egos and, for many of us, the latter set is much smaller than the former, as illustrated by this Venn diagram.
And maybe part of the problem is generational. (WARNING: OLD FART ABOUT TO RANT ABOUT THE YOUNGSTERS) In a world where everything immediately goes to Facebook or Twitter, constant publication of low-quality material has become the norm. But, in defense of younger academics, the problem may be getting worse, but it's not new.
For whatever reason, we're overindulging in scholarship. Perhaps we need an Academics Anonymous, with a sponsor to call every time we're about to add more fodder to law reviews. "Hi, my name is Steve, and I'm an academic."
Thursday, June 25, 2015
It’s always nice to blog and research about a hot topic. Last week I wrote about compliance challenges for those who would like to rush down to do business in Cuba- the topic of this summer’s research. Yesterday, Corporate Counsel Magazine wrote about the FCPA issues; one of my concerns. Earlier this week, I attended a meeting with the Greater Miami Chamber of Commerce and the United States International Trade Commission. Apparently, on December 17th, the very same day that President Obama made his surprise announcement that he wanted to re-open relations with Cuba, Senator Ron Wyden coincidentally sent a request to the USITC asking for an investigation and report on trade with Cuba and an analysis of restrictions. Accordingly, the nonpartisan USITC has been traveling around the country speaking to lawyers and business professionals conducting fact-finding meetings, in order to prepare a report that will be issued to the public in September 2015. Tomorrow the Miami Finance Forum is holding an event titled the New Cuba Revolution.
This will be my third and final post on business and Cuba and in this post I will discuss the focus of my second potential law review article topic. My working thesis is as follows: As relations between the United States and Cuba thaw, American businesses have begun exploring opportunities on the island. Cuba, however, remains a communist nation with a human rights record criticized by exiles, NGOs, and even members of the United States Congress. The EU has taken a "common position" on Cuba stating that the objective of the European Union in its relations with Cuba is to encourage a process of transition to a pluralist democracy, require a respect for human rights and fundamental freedoms, as well as sustainable recovery and improvement in the living standards of the Cuban people." Individual EU member states are free to conduct business with Cuba and many European companies have joined Canadian firms in investing through joint ventures and other state-sanctioned vehicles. This Article will examine whether the US should follow the EU's model in trying to spur reform or whether allowing American firms to do business in Cuba without human rights concessions will in fact perpetuate the status quo.
As I discussed in last week’s blog post, one reason that the U.S. is unlikely to lift the embargo is the nearly 7 billion in claims for confiscated US property. Another reason is Cuba’s human rights record. For example, the island is notorious for violations of rights to freedom of press, association, assembly, and imprisonment of political protesters. The Cuban government continues to control all media limiting the access to information on the Internet due to content-based restrictions and technical limitations. Independent journalists are systematically subjected to harassment, intimidation, and detention for reporting information that was not sanctioned by the state apparatus. My colleague Jason Poblete writes often and critically about the Obama administration’s rapprochement with Cuba. (I highly recommend him for legal advice about Cuba by the way).
Depending on whom you talk to the embargo will be lifted next year, in five year or in ten years. Personally, I don't know that the EU Common Position has been particularly effective in pressuring the Castro brothers to make human rights reforms. I don’t think the U.S. government will be any more successful either. The embargo is Exhibit A.
Most of my academic research thus far has been on what drives corporations to act in the absence of legal obligations vis a vis human rights. With that in mind, I plan to examine a few options related to Cuba. First, I am researching the effect of bilateral investment treaties. A bilateral investment treaty is an "agreement between two countries for the reciprocal encouragement, promotion and protection of investments in each other's territories by companies based in either country.” These typically grant significant rights to foreign investors, provide safeguards to investments against foreign governments, and allow foreign investors to have investment disputes adjudicated outside of the country, which will be critical for those investing in Cuba. The problem is that these BITS rarely have human rights conditions. Accordingly, some scholars have recommended that they require adherence to the Universal Declaration of Human Rights, the United Nations International Covenant on Civil and Political Rights, the ILO Declaration on Fundamental Principles and Rights at Work, the United Nations Convention Against Corruption, the and the Rio Declaration on Environment and Development. I would also recommend reference to the UN Guiding Principles on Business and Human Rights and the OECD Guidance.
Another option is to condition any renewal of a development bank such as the US’s Ex-Im Bank on requiring human rights impact assessments. The Ex-Im bank is the official export credit agency of the US. It’s used when private sector lenders are unable or unwilling to provide financing to companies entering politically or commercially risky countries. Its charter is set to expire on June 30th although its supporters claim that it financed billions in exports, which supported 200 thousand jobs last year. Opponents claim that it financed exports in countries with abysmal human rights records and/or that it supports corporate welfare. I propose that Ex-Im and other lenders follow the lead of many European financers that require human rights disclosures. I (naively?) believe labor may be the only human right remotely and partially in the control of US companies operating in Cuba in the future.
I have some other ideas but those will have to wait for the upcoming article. In the meantime, if you have some thoughts or critiques of these early ideas, please comment below or send me an email at email@example.com. I’m off to Guatemala on Saturday for a week with a group of academics studying business and human rights (another research topic for this summer). We will be exploring climate change, the extractive industries, maquiladoras, corporate social responsibility, and the effects on the rights of indigenous peoples. You can be sure I will be writing about that in a future post.
June 25, 2015 in Corporate Governance, Corporations, CSR, Current Affairs, Ethics, International Business, Law Reviews, Legislation, Marcia Narine Weldon, Research/Scholarhip, Travel | Permalink | Comments (0)
Thursday, May 14, 2015
Last week, I looked lovingly at a picture of a Starbucks old-fashioned grilled cheese sandwich. It had 580 calories. I thought about getting the sandwich and then reconsidered and made another more “virtuous” choice. These calorie disclosures, while annoying, are effective for people like me. I see the disclosure, make a choice (sometimes the “wrong” one), and move on.
Regular readers of this blog know that I spend a lot of time thinking about human rights from a corporate governance perspective. I thought about that uneaten sandwich as I consulted with a client last week about the California Transparency in Supply Chains Act. The law went into effect in 2012 and requires retailers, sellers, and manufacturers that exceed $100 million in global revenue that do business in California to publicly disclose the degree to which they verify, audit, and certify their direct suppliers as it relates to human trafficking and slavery. Companies must also disclose whether or not they maintain internal accountability standards, and provide training on the issue in their direct supply chains. The disclosure must appear prominently on a company’s website, but apparently many companies, undeterred by the threat of injunctive action by the state Attorney General, have failed to comply. In April, the California Department of Justice sent letters to a number of companies stating in part:
If your company has posted the required disclosures on its Internet website or, alternatively, takes the position that it is not required to comply with the Act, we request that – within 30 days of this letter’s date – you complete the form accessible at http://oag.ca.gov/sb657 and provide this office with (1) the web links (URLs) to both your company’s Transparency in Supply Chains Act disclosures and its homepage containing a link to the disclosures; and/or (2) information demonstrating your company is not covered by the Act.
There are no financial penalties for noncompliance. Rather, companies can face reputational damage and/or an order from the Attorney General to post something on their websites. A company complies even if that disclosure states that the company does no training, auditing, certification, monitoring or anything else related to human trafficking or slavery. The client I spoke to last week is very specialized and all of its customers are other businesses. Based on their business profiles, those “consumers” are not likely to make purchasing decisions based on human rights due diligence. I will be talking to another client in a few weeks on the California law. That client is business to consumer but its consumers specifically focus on low cost—that’s the competitive advantage for that client. Neither company-- the B2B nor the B2 (cost conscious)C-- is likely to lose significant, if any business merely because they don’t do extensive due diligence on their supply chains. Similarly, Apple, which has done a great job on due diligence for the conflict minerals law will not set records with the sale of the Apple Watch because of its human rights record. I bet that if I walked into an Apple Store and asked how many had seen or heard of Apple’s state of the art conflict minerals disclosure, the answer would be less than 1% (and that would be high).
People buy products because they want them. The majority of people won’t bother to look for what’s in or behind the product, although that information is readily available through apps or websites. If that information stares the consumer in the face (thanks Starbucks), then the consumer may make a different choice. But that assumes that (1) the consumer cares and (2) there is an equally viable choice.
To be clear, I believe that companies must know what happens with their suppliers, and that there is no excuse for using trafficked or forced labor. But I don’t know that the use of disclosures is the way to go. Some boards will engage in the cost benefit analysis of reputational damage and likelihood of enforcement vs cost of compliance rather than having a conversation about what kind of company they want to be. Many board members will logically ask themselves, “should we care if our customers don’t care?”
My most recent law review article covers this topic in detail. I’ll post it in the next couple of weeks because I need to revise it to cover the April development on the California law, and the EU’s vote on May 19 on their own version of the conflict minerals law. In the meantime, ignorance is bliss. I’m staying out of Starbucks and any other restaurant that posts calories- at least during the stressful time of grading exams.
May 14, 2015 in Corporate Finance, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, International Business, Law Reviews, Marcia Narine Weldon, Securities Regulation | Permalink | Comments (3)
Friday, April 24, 2015
I recently finished my law review submission season, placing two articles: The Social Enterprise Law Market at Maryland Law Review (on jurisdictional competition and social enterprise entity forms) and An Early Report on Benefit Reports at West Virginia Law Review (on data collected last summer on statutory reporting compliance by benefit corporations).
Below, I share a few words of advice for my new law review editors and any law review editor readers. I share this advice acknowledging that I disregarded much of it when I was an editor on my school’s law review. Also, as mentioned below, I fully recognize and appreciate the work law review editors put into our articles.
Consider Blind Review. I still haven’t heard a good argument against law reviews moving to blind review of articles. A very few, maybe two, of the top-ranked journals appear to have made the move, but the vast majority have not.
Consider Peer Review. I understand, a bit better, the pushback against a traditional peer-review system, but consider involving your faculty in the process more heavily and consider obtaining outside faculty reviewers (as some of the elite journals are already doing).
Consider Exclusive Submission Windows. A few journals are doing this, and it seems to be a smart move for many journals and authors. The editors have many fewer articles to review -- from authors who are serious about their journal -- and the authors get the assurance that their articles are receiving more attention in the review.
Respond. Typically, 40-50% of the journals I submit to never respond. Some of those journals are starting to get reputations for never responding. While we realize that law students have plenty on their plate, divide and conquer with your editorial team and try to respond (at least to the expedites). Even a form response, saying that the journal is full or expects a certain delay reviewing articles, is appreciated.
Express Excitement. When extending an offer, show that you appreciated and are excited about the article. Both Maryland and West Virginia did this with my articles, and I chose them over some similarly ranked journals that sent boilerplate acceptance e-mails.
Call. Extending an offer to publish over the phone is often much more personal and effective than an e-mail offer.
Provide an Editing Schedule. Providing an editing schedule early in the process can be helpful.
Edit Lightly, if at All, on Style. I violated this rule repeatedly when I was an editor, but I now see that edits that appear to be style-based can often change the very precise message that the author is trying to communicate. If a sentence is unclear or poorly written, simply note this in a comment – perhaps with a suggested revision in the comment – rather than rewriting the sentence in the text.
Edit Heavily on Bluebook and Typos/Clear Errors. Editors typically know the Bluebook better than authors, so do not be afraid to edit heavily on Bluebook issues. Also, attempt to catch any typos or other clear errors. Some editors who claim to “respect the author’s voice” do too light of an editing job on Bluebook issues and clear errors.
Not Every Sentence Needs a Footnote. Be reasonable on whether a sentence actually needs a citation or not.
Provide Redlines. In the past, a few editors have not provided redlines, which makes it incredibly difficult to check what has been changed. Also, on occasion, editors have not provided complete redlines – They provide redlines, but I found changes that did not show up on the redline, which reduces confidence and slows the process.
Stick to the Editing Schedule. As much as possible, stick to the editing schedule. Authors need to honor the schedule as well. Of course there are emergencies and those are understandable, but editors might want to build in some additional time in the schedule for these unpredictable occurrences.
Communicate. Much can be forgiven if editors communicate clearly, promptly, and respectfully with the authors.
Twitter. Post-publication, Twitter can be a great tool to promote the journal’s articles. Many, but definitely not all, journals now have Twitter accounts.
All of that said, I vividly remember the hard work and long hours of editing – on top of classes and interviews and internships and other responsibilities. We professors appreciate all that law review editors do, and we probably should express our thanks more often.
My co-bloggers and readers likely have additional thoughts – as many are more experienced than I. All are encouraged to share in the comments.
Thursday, April 16, 2015
Regular readers know that I have blogged repeatedly about my opposition to the US Dodd-Frank conflict minerals rule, which aims to stop the flow of funds to rebels in the Democratic Republic of Congo. Briefly, the US law does not prohibit the use of conflict minerals, but instead requires certain companies to obtain an independent private sector third-party audit of reports of the facilities used to process the conflict minerals; conduct a reasonable country of origin inquiry; and describe the steps the company used to mitigate the risk, in order to improve its due diligence process. The business world and SEC are awaiting a First Amendment ruling from the DC Circuit Court of Appeals on the “name and shame” portion of the law, which requires companies to indicate whether their products are DRC Conflict Free.” I have argued that it is a well-intentioned but likely ineffective corporate governance disclosure that depends on consumers to pressure corporations to change their behavior.
The proposed EU regulation establishes a voluntary process through which importers of certain minerals into the EU self-certify that they do not contribute to financing in “conflict-affected” or “high risk areas.” Unlike Dodd-Frank, it is not limited to Congo. Taking note of various stakeholder consultations and the US Dodd-Frank law, the EU had originally limited the scope to importers, and chose a voluntary mechanism to avoid any regional boycotts that hurt locals and did not stop armed conflict. Those importers who choose to certify would have to conduct due diligence in accordance with the OECD Guidance, and report their findings to the EU. The EU would then publish a list of “responsible smelters and refiners,” so that the public will hold importers and smelters accountable for conducting appropriate due diligence. The regulation also offers incentives, such as assistance with procurement contracts.
One of the problems with researching and writing on hot topics is that things change quickly. Two days after I submitted my most recent article to law reviews in March criticizing the use of disclosure to mitigate human rights impacts, the EU announced that it was considering a mandatory certification program for conflict minerals. That meant I had to change a whole section of my article. (I’ll blog on that article another time, but it will be out in the Winter issue of the Columbia Human Rights Law Review). Then just yesterday, in a reversal, the European Parliament’s International Trade Committee announced that it would stick with the original voluntary plan after all.The European Parliament votes on the proposal in May.
Reaction from the NGO community was swift. Global Witness explained:
Today the European Parliament’s Committee on International Trade (INTA) wasted a ground-breaking opportunity to tackle the deadly trade in conflict minerals. […] Under this proposal, responsible sourcing by importers of tin, tantalum, tungsten and gold would be entirely optional. The Commission’s proposed voluntary self-certification scheme would be open to approximately 300-400 companies—just 0.05% of companies using and trading these minerals in the EU, and would have virtually no impact on companies’ sourcing behaviour. The law must be strengthened to make responsible sourcing a legal requirement for all companies that place these minerals on the European market–in any form. This would put the European Union at the forefront of global efforts to create more transparent, responsible and sustainable business practices. It would also better align Europe with existing international standards on responsible sourcing, and complement mandatory requirements in the US and in twelve African countries.
I’m all for due diligence in the supply chain and for forcing companies to minimize their human rights impacts. Corporations should do more than respect human rights-- they must pay when they cause harm. I plan to spend part of my summer researching and writing in Latin America about stronger human rights protections for indigenous peoples and the deleterious actions of some multinationals.
But a mandatory certification scheme on due diligence is not the answer because it won’t solve deep, intractable problems that require much more widespread reform. To be clear, I don't think the EU has the right solution either. Reasonable people can disagree, but perhaps the members of the EU Parliament should look to Dodd-Frank. SEC Chair Mary Jo White disclosed last month that the agency had spent 2.75 million dollars, including legal fees, and 17,000 hours writing and implementing the conflict minerals rule. A number of scholars and activists have argued that the law has in fact harmed the Congolese it meant to help and news reports have attempted to dispel some of the myths that led to the passage of the law.
So let’s see what happens in May when the EU looks at conflict minerals again. Let’s see what happens in June when the second wave of Dodd-Frank conflict minerals filings come in. As I indicated in my last blog post about Dodd-Frank referenced above, the first set of filings was particularly unhelpful. And let’s see what happens in December when parents start the holiday shopping—how many of them will check on the disclosures before buying electronics and toys for the members of their family? Most important, let's see if someone can actually tie the money and time spent on conflict minerals disclosure directly to lower rates of rape, child slavery, kidnapping, and forced labor-- the behaviors these laws intend to stop.
April 16, 2015 in Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Financial Markets, International Business, Law Reviews, Marcia Narine Weldon, Securities Regulation | Permalink | Comments (0)