Wednesday, September 19, 2018
employee representation on corporate boards: "worker voice now represents best corporate governance practice in the majority of OECD countries, and ... asset managers are voting on 'other people’s money': those people are usually employees saving for retirement" https://t.co/iY8gODen3A— Stefan Padfield (@ProfPadfield) September 17, 2018
some "explanations for the...growth...of firms despite the imposition of fiduciary constraints.... by requiring many of their disputes to be arbitrated.... clients of financial conglomerates rarely sue their fiduciaries." https://t.co/dSW8yWZtJQ #corpgov ht @ProfBainbridge— Stefan Padfield (@ProfPadfield) September 17, 2018
"Virtually every major innovation in any industry—regardless of what it is, when it was created, or who created it—has one common denominator: at one point or another, it required financing. That means that finance is the very language of business ...." #corpgov https://t.co/ia5aQDEMqQ— Stefan Padfield (@ProfPadfield) September 18, 2018
"What are business entities for? What are security interests for? ... both ... exist to partition assets .... Security interests construct asset pools subject to fixed priority .... Conversely, entities are associated with floating priority ...." https://t.co/fQpiThqK43 #corpgov— Stefan Padfield (@ProfPadfield) September 18, 2018
Sunday, September 16, 2018
"New York state’s top banking regulator on Friday sued the federal government to void its decision to award national bank charters to online lenders and payment companies, saying it was unconstitutional and put vulnerable consumers at risk." https://t.co/9talm0RgWy #corpgov— Stefan Padfield (@ProfPadfield) September 15, 2018
"we find that greater competition from S corporation banks increases the likelihood that rival C corporation banks convert to Subchapter S status.... competition from tax-advantaged firms influences the organizational form choice" https://t.co/g7cQHOUE2f #corpgov— Stefan Padfield (@ProfPadfield) September 16, 2018
"the company made the decision in efforts to avoid controversy. 'There is a wide range of viewpoints on the Nike controversy' .... 'Texas Farm Bureau & Affiliated Companies employees are asked to not wear Nike branded apparel while representing the companies'" #corpgov https://t.co/d35lCnppMb— Stefan Padfield (@ProfPadfield) September 16, 2018
Wednesday, September 12, 2018
In New Hampshire, "no state campaign finance statutes discuss, define, or even mention LLCs.... The LLC loophole is hardly a feature unique to New Hampshire's campaign finance laws." 41 Seattle U. L. Rev. 1227 #corpgov— Stefan Padfield (@ProfPadfield) September 9, 2018
"CBS CEO & executive chairman Les Moonves made $650.2 million leading the company since ... 2006.... He resigned on Sunday after multiple reports of sexual misconduct. He was negotiating a $100 million severance but might leave with" no severance https://t.co/qc5Fif1xhJ #corpgov— Stefan Padfield (@ProfPadfield) September 10, 2018
JPMorgan "to boost philanthropic giving by 40% to $1.75 billion over five years. Mr. Dimon said that although investing in cities often has no immediate impact on the bank’s bottom line, over time it could boost consumer & small-business banking." https://t.co/Iwmrf1Lv6i #corpgov— Stefan Padfield (@ProfPadfield) September 12, 2018
Uber "may be saving more than $500 million a year by misclassifying its California drivers as independent contractors, according to a lawsuit that claims the ride-hailing company is flouting a ruling by the state’s highest court." https://t.co/xQaheb5ett #corpgov— Stefan Padfield (@ProfPadfield) September 12, 2018
Corporate law geek in need of a fix? Watch today's arguments before the Del Supreme re MFW's ab initio requirement here. (If none of that makes any sense, you may continue with your day.)https://t.co/ZsoxXYlwvr— Brian JM Quinn (@bjmquinn) September 12, 2018
"McDonald’s is fighting a National Labor Relations Board complaint alleging it wields enough control over franchisees and their workers to share legal responsibility in an unfair labor practice case." #corpgov https://t.co/t2Rf8jxtFA— Stefan Padfield (@ProfPadfield) September 12, 2018
“Few trends could so...undermine the...foundation of our free society as the acceptance by corporate officials of a social responsibility other than to make as much money for...SHs as possible. This is a fundamentally subversive doctrine.” Friedman, Capitalism & Freedom #corpgov— Stefan Padfield (@ProfPadfield) September 12, 2018
Sunday, September 9, 2018
How much & what kind of information regarding projected backlash losses did Nike need to review in order to satisfy its duty of care to shareholders here? "Nike Loses $3.75 Billion in Market Cap After Colin Kaepernick Named Face of 'Just Do It'" https://t.co/UIuZanOUon #corpgov— Stefan Padfield (@ProfPadfield) September 6, 2018
DOJ "listened 'closely' to the morning’s testimony.... a meeting on Sept. 25 with state attorneys general 'to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas'" https://t.co/wLCOWaIbYh #corpgov— Stefan Padfield (@ProfPadfield) September 6, 2018
"In the late 1980s and 1990s .... Driven by a clamor for 'shareholder democracy' ... the U.S. government implemented regulatory changes that set the stage for hedge-fund activism" #corpgov https://t.co/zBMyelhIIn— Stefan Padfield (@ProfPadfield) September 6, 2018
Jonathan Macey & Leo Strine: "We base our argument that corporations are separate and distinct legal entities and that they are not 'associations of citizens' as Citizens United asserts on three facts about the corporate form" https://t.co/ZLDByaVhWV #corpgov— Stefan Padfield (@ProfPadfield) September 7, 2018
"Under Hobby Lobby, the answer to who is causing the harm is neither a corporation nor an individual, but rather an individual granted the powers and privileges afforded corporations under state law." https://t.co/c3JIZpigsS #corpgov— Stefan Padfield (@ProfPadfield) September 7, 2018
It was a busy second half of the week. More after the break:
Wednesday, September 5, 2018
"argument for categorically denying a corporation's religious freedom claims usually rests on a conception of what the corporation is .... [but] business corporations' incapacity to assert religious freedom claims in Canada might be rethought" 51 R.J.T. 337, 340 #corpgov— Stefan Padfield (@ProfPadfield) September 4, 2018
"The strong growth of Islamic capital markets internationally has seen the corresponding development of regulatory frameworks incorporating sharia law.... This article examines ... the evolution of hybrid Islamic capital market regulation." https://t.co/ypRUCtuB98 #corpgov— Stefan Padfield (@ProfPadfield) September 4, 2018
"Fundamentally, economists don’t know why booms happen.... But it is possible to identify some factors that might ... be contributing to the strength of this economic expansion." https://t.co/azsTNeY23p #corpgov— Stefan Padfield (@ProfPadfield) September 4, 2018
2/2 "'Young people are just smarter,' Zuckerberg told the audience ..., adding that successful startups should only employ young people .... said VC Vinod Khosla .... 'People over 45 basically die in terms of new ideas' ... 'The cutoff ... is 32'" https://t.co/wlrSadh6p0 #corpgov— Stefan Padfield (@ProfPadfield) September 5, 2018
Monday, September 3, 2018
Like many in the law academy, I find three-day holiday weekends a great time to catch my breath and catch up on work items that need to be addressed. This Labor Day weekend--including today, Labor Day itself--is no exception to the rule. I am working today, honoring workers through my own work. My husband and daughter are doing the same.
This blog post and the announcement it carries are among my more joyful tasks for the day. I have been remiss in not earlier announcing and promoting our second annual Business Law Prof Blog symposium, which will be held at The University of Tennessee College of Law on September 14. The symposium again focuses on the work of many of your favorite Business Law Prof Blog editors, with commentary from my UT Law faculty colleagues and students. This year, topics range from the human rights and other compliance implications of blockchain technology to designing impactful corporate law, with a sprinkling of other entity and securities law related topics. I am focusing my time in the spotlight (!) on professional challenges in the representation of social enterprise firms. More information about the symposium is available here. For those of you who have law licenses in Tennessee, CLE credits are available.
I am looking forward to again hosting some of my favorite law scholars at this symposium. I am sure some will blog about their presentations here (Marcia already has previewed her talk and summarized all of our presentations, and I plan to later blog about mine), Transactions (our business law journal) will publish the symposium proceedings, and videos will be processed and posted on UT Law's CLE website later in the year. But if you are in the neighborhood, stop by and hear us all in person! We would love to see you.
Sunday, September 2, 2018
Microsoft "will soon require its suppliers & contractors to provide at least 12 weeks of paid time off to new parents .... policy applies to Microsoft vendors w/ more than 50 employees & covers workers given substantial assignments for Microsoft." https://t.co/1PZdSMqdew #corpgov— Stefan Padfield (@ProfPadfield) August 31, 2018
As the costs of transacting in the market decline, activity will shift out of firms and toward the market. Coase (1937). https://t.co/yY4hwQ3j49— Robert Anderson (@ProfRobAnderson) August 31, 2018
"the global antitakeover device ... is based on the ability of public firms to “mix and match” between different forms of regulations through cross-listing in multiple stock exchanges or incorporation in foreign jurisdictions" https://t.co/Y3O1So6nhE #corpgov— Stefan Padfield (@ProfPadfield) September 1, 2018
A problem with the California statute is that it legislatively overrules the internal affairs doctrine and imposes its own, "often different, internal governance requirements upon foreign corporations having a specified level of contact with the forum state." #corpgov https://t.co/3Ud2s9CLGl— Stefan Padfield (@ProfPadfield) September 2, 2018
Saturday, September 1, 2018
Did I lose you with the title to this post? Do you have no idea what a DAO is? In its simplest terms, a DAO is a decentralized autonomous organization, whose decisions are made electronically by a written computer code or through the vote of its members. In theory, it eliminates the need for traditional documentation and people for governance. This post won't explain any more about DAOs or the infamous hack of the Slock.it DAO in 2016. I chose this provocative title to inspire you to read an article entitled Legal Education in the Blockchain Revolution.
The authors Mark Fenwick, Wulf A. Kaal, and Erik P. M. Vermeulen discuss how technological innovations, including artificial intelligence and blockchain will change how we teach and practice law related to real property, IP, privacy, contracts, and employment law. If you're a practicing lawyer, you have a duty of competence. You need to know what you don't know so that you avoid advising on areas outside of your level of expertise. It may be exciting to advise a company on tax, IP, securities law or other legal issues related to cryptocurrency or blockchain, but you could subject yourself to discipline for doing so without the requisite background. If you teach law, you will have students clamoring for information on innovative technology and how the law applies. Cornell University now offers 28 courses on blockchain, and a professor at NYU's Stern School of Business has 235 people in his class. Other schools are scrambling to find professors qualified to teach on the subject.
To understand the hype, read the article on the future of legal education. The abstract is below:
The legal profession is one of the most disrupted sectors of the consulting industry today. The rise of Legal Tech, artificial intelligence, big data, machine learning, and, most importantly, blockchain technology is changing the practice of law. The sharing economy and platform companies challenge many of the traditional assumptions, doctrines, and concepts of law and governance, requiring litigators, judges, and regulators to adapt. Lawyers need to be equipped with the necessary skillsets to operate effectively in the new world of disruptive innovation in law. A more creative and innovative approach to educating lawyers for the 21st century is needed.
For more on how blockchain is changing business and corporate governance, come by my talk at the University of Tennessee on September 14th where you will also hear from my co-bloggers. In case you have no interest in my topic, it's worth the drive/flight to hear from the others. The descriptions of the sessions are below:
Session 1: Breach of Fiduciary Duty and the Defense of Reliance on Experts
Many corporate statutes expressly provide that directors in discharging their duties may rely in good faith upon information, opinions, reports, or statements from officers, board committees, employees, or other experts (such as accountants or lawyers). Such statutes often come into play when directors have been charged with breaching their procedural duty of care by making an inadequately informed decision, but they can be applicable in other contexts as well. In effect, the statutes provide a defense to directors charged with breach of fiduciary duty when their allegedly uninformed or wrongful decisions were based on credible information provided by others with appropriate expertise. Professor Douglas Moll will examine these “reliance on experts” statutes and explore a number of questions associated with them.
Session 2: Fact or Fiction: Flawed Approaches to Evaluating Market Behavior in Securities Litigation
Private fraud actions brought under Section 10(b) of the Securities Exchange Act require courts to make a variety of determinations regarding market functioning and the economic effects of the alleged misconduct. Over the years, courts have developed a variety of doctrines to guide how these inquiries are to be conducted. For example, courts look to a series of specific, pre-defined factors to determine whether a market is “efficient” and thus responsive to new information. Courts also rely on a variety of doctrines to determine whether and for how long publicly-available information has exerted an influence on security prices. Courts’ judgments on these matters dictate whether cases will proceed to summary judgment and trial, whether classes will be certified and the scope of such classes, and the damages that investors are entitled to collect. Professor Ann M. Lipton will discuss how these doctrines operate in such an artificial manner that they no longer shed light on the underlying factual inquiry, namely, the actual effect of the alleged fraud on investors.
Session 3: Lawyering for Social Enterprise
Professor Joan Heminway will focus on salient components of professional responsibility operative in delivering advisory legal services to social enterprises. Social enterprises—businesses that exist to generate financial and social or environmental benefits—have received significant positive public attention in recent years. However, social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Professor Heminway will discuss how these legal uncertainties have the capacity to generate transaction costs around entity formation and management decision making and the pertinent professional responsibilities implicated in an attorney’s representation of such social enterprises.
Session 4: Beyond Bitcoin: Leveraging Blockchain for Corporate Governance, Corporate Social Responsibility, and Enterprise Risk Management
Although many people equate blockchain with bitcoin, cryptocurrency, and smart contracts, Professor Marcia Narine Weldon will discuss how the technology also has the potential to transform the way companies look at governance and enterprise risk management. Companies and stock exchanges are using blockchain for shareholder communications, managing supply chains, internal audit, and cybersecurity. Professor Weldon will focus on eliminating barriers to transparency in the human rights arena. Professor Weldon’s discussion will provide an overview of blockchain technology and how state and nonstate actors use the technology outside of the realm of cryptocurrency.
Session 5: Crafting State Corporate Law for Research and Review
Professor Benjamin Edwards will discuss how states can implement changes in state corporate law with an eye toward putting in place provisions and measures to make it easier for policymakers to retrospectively review changes to state law to discern whether legislation accomplished its stated goals. State legislatures often enact and amend their business corporation laws without considering how to review and evaluate their effectiveness and impact. This inattention means that state legislatures quickly lose sight of whether the changes actually generate the benefits desired at the time off passage. It also means that state legislatures may not observe stock price reactions or other market reactions to legislation. Our federal system allows states to serve as the laboratories of democracy. The controversy over fee-shifting bylaws and corporate charter provisions offers an opportunity for state legislatures to intelligently design changes in corporate law to achieve multiple state and regulatory objectives. Professor Edwards will discuss how well-crafted legislation would: (i) allow states to compete effectively in the market for corporate charters; and (ii) generate useful information for evaluating whether particular bylaws or charter provisions enhance shareholder wealth.
Session 6: An Overt Disclosure Requirement for Eliminating the Duty of Loyalty
When Delaware law allowed parties to eliminate the duty of loyalty for LLCs, more than a few people were appalled. Concerns about eliminating the duty of loyalty are not surprising given traditional business law fiduciary duty doctrine. However, as business agreements evolved, and became more sophisticated, freedom of contract has become more common, and attractive. How to reconcile this tradition with the emerging trend? Professor Joshua Fershée will discuss why we need to bring a partnership principle to LLCs to help. In partnerships, the default rule is that changes to the partnership agreement or acts outside the ordinary course of business require a unanimous vote. See UPA § 18(h) & RUPA § 401(j). As such, the duty of loyalty should have the same requirement, and perhaps that even the rule should be mandatory, not just default. The duty of loyalty norm is sufficiently ingrained that more active notice (and more explicit consent) is necessary, and eliminating the duty of loyalty is sufficiently unique that it warrants unique treatment if it is to be eliminated.
Session 7: Does Corporate Personhood Matter? A Review of We the Corporations
Professor Stefan Padfield will discuss a book written by UCLA Law Professor Adam Winkler, “We the Corporations: How American Businesses Won Their Civil Rights.” The highly-praised book “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’ – the centuries-long struggle for equal rights for corporations.” However, the book is not without its controversial assertions, particularly when it comes to its characterizations of some of the key components of corporate personhood and corporate personality theory. This discussion will unpack some of these assertions, hopefully ensuring that advocates who rely on the book will be informed as to alternative approaches to key issues.
September 1, 2018 in Ann Lipton, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, Current Affairs, Employment Law, Human Rights, Intellectual Property, International Business, Joan Heminway, Joshua P. Fershee, Law School, Lawyering, LLCs, Marcia Narine Weldon, Real Property, Shareholders, Social Enterprise, Stefan J. Padfield, Teaching, Technology, Web/Tech | Permalink | Comments (0)
Wednesday, August 29, 2018
"Transamerica ... to Pay $97 Million ... Relating to ... Quantitative Investment Models ... SEC’s order finds that the models, which were developed solely by an inexperienced ... analyst, contained numerous errors, and did not work as promised." https://t.co/RkO7FpCJxS #corpgov— Stefan Padfield (@ProfPadfield) August 27, 2018
"@AnnMLipton, a corporate law professor at Tulane University, has described this [independence] standard as 'blood or money' where only a family relationship, or where a board member is literally on the payroll of the CEO or another transaction beneficiary, can taint." #corpgov https://t.co/KWj1267kc1— Stefan Padfield (@ProfPadfield) August 27, 2018
"Judge Kavanaugh believes that ... corporations ... not directly regulated by or affected by regulations almost always have standing. By contrast, he believes it should be difficult for citizen groups to establish standing ...." https://t.co/wzbDthcjO4 #corpgov— Stefan Padfield (@ProfPadfield) August 29, 2018
Sunday, August 26, 2018
"a premise of the Thatcher-Reagan conservative revolution: ... Governments should aim to increase the incomes and opportunities of all, especially the poor, but to worry about the gap between the rich and the rest is 'the politics of envy.'" https://t.co/WAsvd38qMg #corpgov— Stefan Padfield (@ProfPadfield) August 24, 2018
"A century ago .... The corporation & the general partnership were mirror images of one another & opposites on a spectrum of corporate governance, limited liability, & taxation.... Today, the corporation-partnership dichotomy has disappeared." https://t.co/cOMVqsIjK6 #corpgov— Stefan Padfield (@ProfPadfield) August 24, 2018
"Increasingly, ... seed financing is channeled ... via ... the deferred equity agreement.... the Simple Agreement for Future Equity (SAFE) — made its debut in 2013. Another version — the Keep It Simple Security (KISS) — first appeared in 2014." https://t.co/cR4cblB1RF #corpgov— Stefan Padfield (@ProfPadfield) August 24, 2018
"The SEC moved to require states and local governments to disclose bank loans and privately placed debt, seeking to address concerns that bondholders are being left in the dark about a fast-growing segment of public finance." https://t.co/U6aFocdFbg #corpgov— Stefan Padfield (@ProfPadfield) August 24, 2018
"To some who believe in the importance of the SEC’s mission against insider trading, Mr. Cuban’s acquittal was an example of jury nullification—jurors simply refusing to enforce the law against a celebrity defendant." https://t.co/z7gboajr8z #corpgov— Stefan Padfield (@ProfPadfield) August 25, 2018
Wednesday, August 22, 2018
"Democracy assumes the presence of rational actors, capable of digesting information .... If neuroconsultants are even half as good as they claim at ... shifting ... voting intentions, it calls that assumption into question." https://t.co/cjp8nqzgD9 #corpgov— Stefan Padfield (@ProfPadfield) August 20, 2018
"China ... using cyber espionage to target 'U.S. private industry, focusing on cleared defense contractors or IT and communications firms whose products and services support government and private sector networks worldwide,' the NCSC asserted." https://t.co/usgVCd9if0 #corpgov— Stefan Padfield (@ProfPadfield) August 20, 2018
"The outcome of the case ... could impact Delaware courts' global standing – a key to the state's billion-dollar corporate franchise business." https://t.co/wz5z6a2ahE #corpgov ht @AnnMLipton @AnthonyMKreis— Stefan Padfield (@ProfPadfield) August 21, 2018
"Sen. Warren says corporations shouldn’t be accountable only to shareholders. They aren’t. Corporations already answer to various arms of the federal, state and local governments." https://t.co/m2AixhKffQ #corpgov https://t.co/m1zcH28dgH— Stefan Padfield (@ProfPadfield) August 22, 2018
Sunday, August 19, 2018
The following comes to us from Sergio Alberto Gramitto Ricci, Visiting Assistant Professor of Law and Assistant Director, Clarke Program on Corporations & Society, Cornell Law School. I had the pleasure of listening to Sergio discuss this project at our recent SEALS discussion group on Masterpiece Cakeshop, and I found particularly interesting his conclusion that "Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans." The concept of robo-directors is also fascinating, and adds another layer to my ongoing dystopian (utopian?) novel plot wherein corporations are allowed to run for seats in Congress directly (as opposed to what some would argue is the current system wherein we get: "The Senator from [X], sponsored by Big Pharma Corp."). You can download the full draft via SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232816.
In an era where legal persons hold wealth and power comparable to those of nation states, shedding light on the nature of the corporate form and on the rights of business corporations is crucial for defining the relations between the latter and humans. Recent decisions of the U.S. Supreme Court, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Burwell v. Hobby Lobby Stores, Inc., have called for a closer investigation of the role that corporate separateness plays in the business corporation formula. Moreover, legal personhood is a sophisticated legal technology, which employment can revolutionize the strategies to protect cultural heritage or natural features and can address emerging phenomena, including artificial intelligence and learning machines. This paper adopts archeology of corporate law to analyze three intertwining legal and organizational technologies based on legal personhood. Archeology of corporate law excavates ancient laws and language in order to solve salient issues in contemporary and future corporate debates. First, this paper sheds light on the origins and nature of legal personhood and on the rights of business corporations by analyzing laws and language that the Romans adopted when they invented the corporation. For example, excavating roman law shows how Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans. In sum, the Romans drew a line between the legal capacities of their corporations and the rights and liberties that persons possessed by virtue of being human. Second, this paper discusses the separation of ownership and control. It explains how the separation of ownership and control, together with legal personhood, constitutes the essential formula of the business corporation model. Last, this paper explores artificial intelligence in boardrooms to assist, integrate or replace human directors drawing a parallelism between robo-directors and Roman slaves appointed to run joint-enterprises. Barring the statutory restrictions that require for board directors to be natural persons and overcoming the moral concerns related to appointing robo-directors, the remaining issue that AI in boardrooms raises is that of accountability.
Wednesday, August 15, 2018
"reliance on market discipline has an inherent paradox: the firms that would benefit most from governance constraints are precisely the ones that are subject to weak market discipline" 8 Harv. Bus. L. Rev. 131 (citing "Evidence from myriad studies and contexts") #corpgov— Stefan Padfield (@ProfPadfield) August 14, 2018
"With regard to punitive damages, did you find by clear and convincing evidence that Monsanto acted with malice or oppression in the conduct upon which you base your finding of liability in favor of Mr. Johnson? Answer, yes." https://t.co/VwCAAr4tsj #corpgov— Stefan Padfield (@ProfPadfield) August 14, 2018
"Unlike statutes authorizing benefit corporations ... no one has articulated a legal justification for benefit LLCs. Indeed, no plausible legal justification can be articulated." https://t.co/uu8oBeWNTD #corpgov #socent— Stefan Padfield (@ProfPadfield) August 15, 2018
The evidence is at least mixed on the efficiency effects of Warren-like proposals as they operate in Europe. And: our corporate law should not solely be concerned with efficiency. It must also serve our distributional aims, our values, our culture, and our nation. https://t.co/FQDDPeAQaH— David Yosifon (@DavidYosifon) August 15, 2018
Monday, August 13, 2018
On Saturday evening, I returned from the 2018 Southeastern Association of Law Schools (SEALS) annual conference (program here). My week-long tour of duty as a conference registrant spanned three different areas of engagement: (1) volunteerism in the portion of the conference dedicated to helping prepare prospective law faculty for the law school appointments process; (2) attendance at programs of interest on substantive law, law schools, and law teaching; and (3) participation (through presentation and commentary) in business law discussion groups. Although I was exhausted by the time I left (especially because I also attended portions of two meetings of the SEALS Board of Trustees), I also was rewarded by each of the three types of involvement in the conference.
The prospective law teachers component of the conference offers the opportunity for a select group of future teacher-scholars to present a sample job talk, receive comments on their draft CVs, and engage in mock interviews. This year, I participated as a mentor in all three components. Some folks needed more support with pieces of the process than others, as you might imagine. But all were amply qualified and deserving of appointments. Several sent me nice "thank you" messages. I hope that we will stay in touch.
I was able to attend a few sessions (or parts of sessions) of various kinds that did not focus on business law directly. Some featured my UT Law colleagues; others represented areas of interest wholly outside or only indirectly related to business law. For example, I attended an international panel on "Fake News" in a Digital Era, a discussion session on Strategies for Bar Preparation and Success, a New Scholars Workshop panel focusing on works-in-process relating to regulatory questions in various areas of law, a program entitled Workshop on Teaching to Engage, and a healthcare and bioethics discussion session. All had something relevant to offer to my scholarship, teaching, or service. As a result of the teaching session, I plan to move one day of office hours a week to our law school commons c=area, so that students can just drop in individually or in groups. I will try to remember to report out on that experiment.
Finally, I did participate in three discussion groups and attend a fourth as part of the Business Law Workshop at the conference. Specifically: I co-chaired--with John Anderson--an insider trading discussion session (U.S. v. Martoma and the Future of Insider Trading Law); chaired a second discussion forum on Alternative ways of Going Public; commented on forthcoming works in a Corporate Governance discussion group; and participated in a final discussion forum on The Role of Corporate Personhood in Masterpiece Bakeshop organized and chaired by our own BLPB co-editor Stefan Padfield. Fellow co-editor Marcia Narine Weldon also attended and participated in this and other programming at the conference. The discussions in these sessions were rich and varied. Perhaps Stefan will have more to say about the discussion group he organized . . . . I think he was pleased with the result of his call for participation. I found the conversation stimulating and fascinating
The 2019 conference is scheduled to start at the end of July (July 29-August 4) in Boca Raton, Florida. Look for news on it here, or sign up for the SEALS blog, through which SEALS makes major announcements of interest to subscribing faculty. If you would like to organize a business law program for next year's conference, please feel free to contact me for advice. I helped originate the SEALS Business Law Workshop years ago and can provide assistance with the proposal submission process.
Sunday, August 12, 2018
Masterpiece Cakeshop "affirms an approach to public accommodations law that limits religious accommodation to prevent harm to other citizens who do not share the objector’s beliefs ... repudiating longstanding arguments for expansive exemptions." https://t.co/On4Xh1s6UN #corpgov— Stefan Padfield (@ProfPadfield) August 8, 2018
"Based ... on the ratio of aggregate market capitalization to gross domestic product, the public company is currently as important relative to the U.S. economy as it ever have been, if not more so." https://t.co/oaUPws4IXV #corpgov— Stefan Padfield (@ProfPadfield) August 9, 2018
How often does the press release / news look very different after you track down other relevant numbers? "From February 2013 to November 2016, there were 3.6 bankruptcy filers per 1,000 people 65 to 74; in 1991, there were 1.2." https://t.co/1RckQu9eOG #corpgov https://t.co/VvCsZot3Hy— Stefan Padfield (@ProfPadfield) August 12, 2018
Wednesday, August 8, 2018
[corrected link] "The Delaware Sustainability Act, which is the first of its kind in the United States, represents Delaware’s effort to support the sustainability initiatives of its corporate citizens." https://t.co/t2kpuNUGkU #corpgov— Stefan Padfield (@ProfPadfield) August 2, 2018
“Google announced in June that it would not participate in a US military program .... This week it ... is attempting to reintroduce its ... search engine into China, albeit w/ censoring and surveillance filters demanded by the Chinese government." https://t.co/raeayGHhx2 #corpgov— Stefan Padfield (@ProfPadfield) August 3, 2018
"When we control for variables affecting both value and the incidence of a staggered board in a sample of up to 2961 firms from 1990 to 2013 we find the effect of a staggered board on firm value becomes statistically insignificant." https://t.co/fc4lgdSl5a #corpgov— Stefan Padfield (@ProfPadfield) August 7, 2018
Did Elon Musk just invite a big lawsuit? “If funding is secured, then it’s a factual statement. But if he can’t prove that, he’s in some danger of a big lawsuit because short sellers will be devastated by this.” https://t.co/5t62wD53Gt #corpgov— Stefan Padfield (@ProfPadfield) August 8, 2018
"Going private transactions are challenged by a class action while going concern transactions must be vindicated via the derivative mechanism. The divergent ... procedures affect both the demand for the MFW framework & the incentive to comply." https://t.co/b5hRxrYMPU #corpgov— Stefan Padfield (@ProfPadfield) August 8, 2018
Sunday, August 5, 2018
At SEALS Saturday, 8/11? Stop by 9-11 AM for: "Discussion Group: The Role of Corporate Personhood in Masterpiece Cakeshop"
The Southeastern Association of Law Schools (SEALS) Annual Meeting is upon us. If you are free from 9-11 AM this coming Saturday, Aug. 11, please stop by our discussion group on The Role of Corporate Personhood in Masterpiece Cakeshop. Don't worry about the fact that SCOTUS ignored the personhood issue -- we'll have plenty to talk about.
Here is a summary of the program:
In the United States Supreme Court case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the issue presented is: “Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.” A group of corporate law professors has filed an amicus brief in support of the CCRC. One of the arguments in that brief is: “Because Of The Separate Legal Personality Of Corporations And Shareholders, The Constitutional Interests Of Shareholders Should Not Be Projected Onto The Corporation.” This discussion group features a dialogue on the pros and cons of this argument, together with related analysis and observations.
I'll be moderating, and here is a list of dicussants:
Professor Eric Chaffee, University of Toledo College of Law; Professor Sergio Gramitto, Cornell Law School; Professor Joan Heminway, The University of Tennessee College of Law; Professor Arnold Loewy, Texas Tech University School of Law; Professor Brett McDonnell, University of Minnesota Law School; Professor George Mocsary, Southern Illinois University School of Law; Professor James Nelson, University of Houston Law Center; Professor Thomas Rutledge, Stoll, Kennon & Ogden; Professor Ciara Torres-Spelliscy, Stetson University College of Law.
Hope to see you there!
Thursday, August 2, 2018
"The Belden electric wire factory in Richmond, Ind., ... now offers drug treatment, paid for by the company, to job applicants who fail the drug screen. Those who complete treatment are ... promised a job." https://t.co/hezzuDoVae #corpgov— Stefan Padfield (@ProfPadfield) July 30, 2018
"His argument is that 'pervasive surveillance and constant, subtle manipulation is unethical, cruel, dangerous and inhumane'. In short, ... weaponised ... advertising is polarising society, destroying democratic debate" https://t.co/B471A84aRA #corpgov— Stefan Padfield (@ProfPadfield) July 30, 2018
"Water, finance, internet access — .... This Essay draws on the historical and legal tradition of public utility regulation to develop a generalized framework for regulating these kinds of infrastructural goods and services." https://t.co/QXSIIGUP3f #corpgov— Stefan Padfield (@ProfPadfield) August 2, 2018
"Agency theory ... rests on a myth of separated ownership and control. The true separation, however, is between ownership and ownership: ownership of shares by shareholders and ownership of assets by the corporation." https://t.co/gSulKgnls0 #corpgov— Stefan Padfield (@ProfPadfield) August 2, 2018
"it’s known as 'the Weinstein clause.' ... the target attests that nobody has accused certain managers or directors, as well as certain executives who manage a large number of employees, of sexual harassment." https://t.co/ygyKtLxmQI #corpgov ht @AnnMLipton— Stefan Padfield (@ProfPadfield) August 2, 2018
Sunday, July 29, 2018
shareholder proposals: "Our analysis submitted to the SEC on July 2, 2018 concludes that certain changes in SEC practices during the 2018 proxy season raised serious threats to this well-established right." https://t.co/WtEX3cR2Dp #corpgov— Stefan Padfield (@ProfPadfield) July 26, 2018
This case has big potential - requiring interpretation of "sex" in FHA & involving for-profit corporation w/religious statements. It's Hively/Hobby Lobby/Masterpiece all rolled up. https://t.co/AdA4XR9z63— Liz Sepper (@lsepper) July 26, 2018
That's a big "or": "the board should engage: '... a director appointed from the workforce, a formal workforce advisory panel ..., or other arrangements which meet the circumstances of the company and the workforce'" https://t.co/FerPiGGSqZ #corpgov— Stefan Padfield (@ProfPadfield) July 26, 2018
"Experiences from the American low-profit limited liability company, the British and Canadian community interest company, and attempted cross-border implantation of the American benefit corporation in Canada offer valuable lessons ...." https://t.co/JK0ubyrL1z #corpgov #socent— Stefan Padfield (@ProfPadfield) July 28, 2018
Anyone know how long I've been agreeing to this (and what the top 10 overreach items in the agreement are)? "By embedding Twitter content in your website or app, you are agreeing to the Twitter Developer Agreement and Developer Policy." https://t.co/rq2RIfvx8c #corpgov— Stefan Padfield (@ProfPadfield) July 29, 2018
Wednesday, July 25, 2018
"Rather than helping speech to flourish in all its noisy, messy glory, the Roberts Court favors First Amendment claims from powerful institutional speakers while backing the government against more socially & politically marginal speakers." Magarian 95 Wash.U.L.Rev. 1459 #corpgov— Stefan Padfield (@ProfPadfield) July 22, 2018
"While a corporation may rightly be viewed as an association of individuals, it is an association of individuals who affirmatively choose the corporation.... instead of ... partnership ...." @carlissc, The Corporate Personhood Two-Step, 18 Nev. L.J. 811, 829 (2018) #corpgov— Stefan Padfield (@ProfPadfield) July 24, 2018
"Google’s parent company Alphabet ... reported better-than-expected second-quarter earnings on Monday afternoon .... Including the $5.1 billion fine from EU regulators, the ... tech giant reported ... revenues of the $32.7 billion." https://t.co/MfPznkxlya #corpgov— Stefan Padfield (@ProfPadfield) July 24, 2018
"an important puzzle in 'bad-law' jurisdictions is: why some controlling shareholders ('roving controllers') loot all ... corporate assets at once, and why others ('stationary controllers') siphon a part of corporate assets on a continuous basis" https://t.co/igyhFfKDV7 #corpgov— Stefan Padfield (@ProfPadfield) July 25, 2018