Sunday, December 14, 2014

ICYMI: Tweets From the Week (Dec. 14, 2014)

December 14, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, December 7, 2014

ICYMI: Tweets From the Week (Dec. 7, 2014)

December 7, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, November 30, 2014

ICYMI: Tweets From the Week (Nov. 30, 2014)

November 30, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, November 23, 2014

ICYMI: Tweets From the Week (Nov. 23, 2014)

November 23, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, November 16, 2014

ICYMI: Tweets From the Week (Nov. 16, 2014)

November 16, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, November 9, 2014

ICYMI: Tweets From the Week (Nov. 9, 2014)

November 9, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, November 2, 2014

ICYMI: Tweet From the Week (Nov. 2, 2014)

November 2, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, October 26, 2014

ICYMI: Tweets of the Week (Oct. 26, 2014)

October 26, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, October 19, 2014

ICYMI: Tweets From the Week (Oct. 19, 2014)

October 19, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, October 12, 2014

ICYMI: Tweets From the Week (Oct. 12, 2014)

October 12, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, October 5, 2014

ICYMI: Tweets from the Week (Oct. 5, 2014)

October 5, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, September 28, 2014

ICYMI: Tweets From the Week (Sept. 28, 2014)

September 28, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, September 21, 2014

Frank Pasquale on “how masterful manipulation of the law has allowed tech and finance giants to grow incredibly fast”

Like many people I know, I am a huge fan of Frank Pasquale.  Thus, I was very excited to read his Balkanization interview (available here) discussing his forthcoming book, “The Black Box Society.”  The interview touches on a wide range of topics, so you should go read the whole thing, but here is an excerpt to tempt you in case you’re on the fence:

I think our academic culture is very good at analysis, but oft-adrift when it comes to synthesis. Specialization obscures the big picture. And law can succumb to this as easily [as] any other field. For example, in the case of internet companies, cyberlawyers too often confine themselves to saying: “Google and Facebook should win key copyright cases, and subsequent trademark cases, and antitrust cases, and get certain First Amendment immunities, and not be classified as a ‘consumer reporting agency’ under relevant privacy laws,” etc. They may well be correct in every particular case. But what happens when a critical mass of close cases combines with network effects to give a few firms incredible power over our information about (and even interpretation of) events?

 

Similarly, old banking laws may fit poorly with the new globalized financial landscape. Finance lawyers churn out position papers dismantling the logic of Dodd-Frank, Basel, Sarbanes-Oxley, etc. But if too-big-to-fail firms keep growing bigger, assured of state support, while everything else the government does is deemed contingent: what kind of social contract is that?

 

The lawyers of the Progressive Era and the New Deal dealt with similar challenges: massive firms that warped the fabric of economic, political, and even cultural life to their own advantage. They consulted the best of social science to recommend regulation—but they didn’t let some narrow field (like neoclassical economics) act as a straitjacket (as, say, antitrust lawyers of today are all too prone to do).

September 21, 2014 in Books, Current Affairs, Financial Markets, Stefan J. Padfield, Web/Tech | Permalink | Comments (0)

Sunday, September 14, 2014

Hobby Lobby Redux: 7 Corporate Law/Theory Quotes

This coming Tuesday, I am scheduled to provide a brief overview of the corporate law/theory aspects of Hobby Lobby as part of the University of Akron’s Supreme Court Roundup.  What follows are the seven key quotes from the opinion that I plan to focus on (time permitting) in order to highlight what I see as the key relevant issues raised by the opinion. Comments are appreciated.

Issue 1: Did corporate theory play a role in Hobby Lobby?

While I believe the majority made a pitch for applying a pragmatic, anti-theoretical approach (“When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of … people.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768 (2014)), the following quote strikes me as conveying an underlying aggregate view of corporations:

In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows: “General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F.3d, at 385 (emphasis added). All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.

134 S. Ct. at 2768.

 

Continue reading

September 14, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporate Personality, Corporations, Current Affairs, Religion, Social Enterprise, Stefan J. Padfield, Unincorporated Entities | Permalink | Comments (2)

Sunday, September 7, 2014

ICYMI: Tweets From the Week (Sep. 7, 2014)

September 7, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, August 31, 2014

ICYMI: Tweets From the Week (Aug. 31, 2014)

August 31, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, August 24, 2014

ICYMI: Tweets of the Week (Aug. 24, 2014)

August 24, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, August 17, 2014

ICYMI: Tweets From the Week (Aug. 17, 2014)

August 17, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, August 10, 2014

Essays on Competing Theories of Corporate Governance

The following paragraph is an excerpt from Micro-Symposium on Competing Theories of Corporate Governance, 62 UCLA L. Rev. Disc. 66, which can be found online (here) and is also available via Westlaw.

On Friday, April 11, and Saturday, April 12, 2014, the UCLA School of Law Lowell Milken Institute for Business Law and Policy sponsored a conference on competing theories of corporate governance…. This conference provided a venue for distinguished legal scholars to define the competing models, critique them, and explore their implications for various important legal doctrines. In addition to an oral presentation, each conference participant was invited to contribute a very brief essay of up to 750 words (inclusive of footnotes) on their topic to this micro-symposium being published by the UCLA Law Review’s online journal, Discourse. These essays provide a concise but powerful overview of the current state of corporate governance thinking….

The included essays:

  • Stephen M. Bainbridge, An Abridged Case For Director Primacy
  • George S. Georgiev, Shareholder vs. Investor Primacy in Federal Corporate Governance
  • David Millon, Team Production Theory: A Critical Appreciation
  • Usha Rodrigues, David and Director Primacy
  • Stefan J. Padfield , Citizens United, Concession Theory and Corporate Social Responsibility (CSR)
  • Christopher M. Bruner, Corporate Governance Theory and Review of Board Decisions
  • Robert T. Miller, The Board Veto and Efficient Takeovers
  • Lisa M. Fairfax, Toward a Theory of Shareholder Leverage
  • Iman Anabtawi, Shadow Directors
  • Michael D. Guttentag, Shareholder Primacy and the Misguided Call for Mandatory Political Spending Disclosure by Public Companies
  • James J. Park, Averages or Anecdotes? Assessing Recent Evidence on Hedge Fund Activism

Shameless self-promotion excerpt:

In extremely truncated form, my argument proceeds as follows. While both director primacy and shareholder primacy differ in terms of who should control corporate decisionmaking, both identify shareholder wealth maximization as the positive and normative goal of corporate governance. In addition, while team production theory tempts advocates of CSR, in the end it also falls short of supporting mandatory CSR. As for the theories of corporate personality, both aggregate theory and real entity theory view the corporate entity as standing in the shoes of natural persons to some meaningful degree (typically the shareholders in the case of aggregate theory and the board of directors in the case of real entity theory), thereby providing corporations a basis for resisting government regulation. Only concession theory, which views the corporation as fundamentally a creature of the state created to serve public ends, can support mandatory CSR as a normative matter. Thus, the advocates of mandatory CSR should use concession theory, with its emphasis on the public roots of corporations, to provide the compelling narrative necessary to move our corporate law beyond its exclusive focus on shareholder wealth maximization.

Stefan J. Padfield , Citizens United, Concession Theory and Corporate Social Responsibility (CSR), 62 UCLA L. Rev. Disc. 84, 86 (2014).

August 10, 2014 in Business Associations, Conferences, Corporate Governance, Corporate Personality, Corporations, Stefan J. Padfield | Permalink | Comments (0)

Sunday, August 3, 2014

ICYMI: Tweets From the Week (Aug. 3, 2014)

August 3, 2014 in Stefan J. Padfield | Permalink | Comments (0)