Thursday, April 27, 2017
The following comes to us from Brian Quinn:
Access to the Courts in the Transactional Setting
2018 AALS Annual Meeting
San Diego, CA
This call for papers solicits unpublished papers that analyze the question of access to the courts in a variety of transactional law settings.
From small business disputes, to mandatory consumer arbitration, to restrictions on shareholder lawsuits, it is no longer obvious that parties will have access to courts in the event of a dispute. In many cases small businesses may negotiate for alternative dispute resolution in commercial contracts as more efficient than going to courts. In others, like in the context of consumer contracting, restricting access to the courts is not typically subject of negotiation, and many consumer transactions now come with mandatory arbitration clauses. In recent years, in response to an explosion in shareholder and class action litigation, corporations also began to look to a variety of self-help remedies (often aided by state legislatures), including exclusive forum provisions and fee-shifting provisions among others, to restrict access to the courts by shareholders.
Taken together one could reasonably question whether the current trajectory in common business and consumer settings to limit parties and third parties access to the courts through a variety of transactional mechanisms is good policy or it goes too far.
The Section on Transactional Law and Skills invites submissions from any full-time faculty member of an AALS member school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper on this topic to submit a 1 or 2-page proposal to the Chair of the Section by August 31, 2017. Papers accepted for publication as of August 31, 2017 that will not yet be published as of the 2018 meeting are also encouraged. The Executive Committee will review all submissions and select proposals for presentation as part of our AALS 2018 Section Meeting.
Please direct all submissions and questions to the Chair of the Section, Brian JM Quinn, section chair, at the address below:
Brian JM Quinn
Boston College Law School
885 Centre St., Newton MA 02459
Sunday, April 23, 2017
House Dodd-Frank reform bill would sharply limit shareholder proposals https://t.co/NljrPyGmgl— Professor Bainbridge (@ProfBainbridge) April 21, 2017
Thursday, April 20, 2017
Sunday, April 16, 2017
"Multistate bar exam scores drop to lowest point ever" https://t.co/l12IS5GUOr— Stefan Padfield (@ProfPadfield) April 14, 2017
“too big to disclose”: "matters..significant..in absolute terms may be deemed immaterial & remain undisclosed" 64 UCLA L. Rev. 602 #corpgov— Stefan Padfield (@ProfPadfield) April 16, 2017
Are "an enterprise & its agents..a single actor incapable of the meeting of..minds necessary to form a conspiracy"? 105Geo.L.J.871 #corpgov— Stefan Padfield (@ProfPadfield) April 16, 2017
"on the same day..the chief justice.. [upheld] viewpoint..discrimination in Morse, he..announced.. [WRTL]" 71 U. Miami L. Rev. 359 #corpgov— Stefan Padfield (@ProfPadfield) April 16, 2017
Thursday, April 13, 2017
Sunday, April 9, 2017
"the First Amendment ... has nothing to say about speech that is ultra vires" 2016 Colum. Bus. L. Rev. 595 #corpgov— Stefan Padfield (@ProfPadfield) April 9, 2017
Thursday, April 6, 2017
Sunday, April 2, 2017
"As both legal subject & institution, a corporation..seem[s] to have conflicting..responsibilities." 25Am.U.J.GenderSoc.Pol'y&L.51 #corpgov— Stefan Padfield (@ProfPadfield) March 28, 2017
"Antitrust is dead, isn't it? That was my impression." - Posner, 7th Cir judge and antitrust giant #StiglerConcentration— Lina Khan (@linamkhan) March 28, 2017
Thursday, March 30, 2017
I only had 2 relevant SSRN postings in my Twitter feed the past 7 days, so I'm starting with 3 additional items I just pulled from "SSRN Top Downloads For Corporate Governance Network ... for all papers first announced in the last 60 days" (available here).
more than 80% of IROs [Investor relations officers] report that they conduct private 'call-backs' with sell-side analysts and institutional investors following public earnings conference calls
Bargains between those who control corporations and those who control government institutions to benefit themselves ....
Lack of comparability due to the lack of reporting standards is the primary impediment to the use of ESG [environmental, social and governance] information.
And here are the Tweets:
Progressive Movement (1905-1923) + Realist Movement (1923-1941) > Classical Legal Thought (1870-1920’s) https://t.co/tV1ckzNkrI— Stefan Padfield (@ProfPadfield) March 27, 2017
Sunday, March 26, 2017
Thursday, March 23, 2017
Sunday, March 19, 2017
2/2: "Remuneration in Germany is ... now linked to the sustainable development of the company." 18 Fordham J. Corp. & Fin. L. 751 #corpgov— Stefan Padfield (@ProfPadfield) March 14, 2017
Thursday, March 16, 2017
A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social welfare. The distance between the welfarist enterprise of a half century ago and the concerns that motivate today’s corporate legal theory has been widening ever since. This Essay examines the widening gulf. It compares the vision of the corporation and of the role it plays in society that prevailed during the immediate post-war era, before the fulcrum years of the 1980s, with the very different vision we have today, and traces the path we took from there to here. It will close with a brief prediction regarding corporate law’s future.
Sunday, March 12, 2017
shareholder-oriented #corpgov: "social price for..nonoccupational income provision outside of direct state control" 40 Seattle U. L.Rev. 427— Stefan Padfield (@ProfPadfield) March 7, 2017
Thursday, March 9, 2017
In 2016, the Securities and Exchange Commission (SEC) for the first time sought public comment on whether financial disclosure reform should address indicators of firms’ sustainability risks and practices. Securities disclosure reform now appears poised to take a deregulatory turn, and innovations at the intersection of sustainability and finance appear unlikely in the face of new policy priorities. Whether the SEC should take any steps to improve how sustainability-related information is disclosed to investors is also deeply contested.
This Article argues that the SEC nonetheless faces a sustainability imperative, first to address this issue in the near term as part of its ongoing review of the reporting framework for financial disclosure, and second, to promote disclosure of material sustainability information within financial reports in furtherance of its core statutory mandate. This conclusion rests on evidence that the current state of sustainability disclosure is inadequate for investment analysis and that these deficiencies are largely problems of comparability and quality, which cannot readily be addressed by private ordering, nor by deference to policymaking at the state level. This Article highlights the costs of agency inaction that have been largely ignored in the debate over the future of financial reporting and concludes by weighing potential avenues for disclosure reform and their alternatives.
Sunday, March 5, 2017
Hobby Lobby: "an assault on the..notion of corporate interests separate from the..interests of..immediate owners" 101Minn.L.Rev.963 #corpgov— Stefan Padfield (@ProfPadfield) March 5, 2017
Thursday, March 2, 2017
The majority of states have now passed laws prohibiting bad faith assertions of patent infringement. The laws are heralded as a new tool to protect small businesses and consumers from harassment by so-called patent trolls. But state “anti-patent laws” are not a new phenomenon. In the late nineteenth century, many states passed regulations to prevent rampant fraud by patent peddlers who aggressively marketed fake or low value patents to unwitting farmers. However, courts initially held the laws were unconstitutional. Congress, courts reasoned, had power under Article I, Section 8, Clause 8 to “secure” patent rights. If states could tax patents or alter the terms on which patents were sold and enforced, this risked destroying a federal property right and nullifying an Article I power. In the early twentieth century, the U.S. Supreme Court finally held that states retained some authority to regulate, and to tax, patent transactions. But the Court made clear that states could never impose an “oppressive or unreasonable” burden on federal rights. The Federal Circuit has completely ignored this preemption law. But it has never been overruled and must be consulted today in assessing the constitutionality of states’ current efforts to combat patent trolls.
Sunday, February 26, 2017
Friday, February 24, 2017
The following comes to us from Professor Stephen Diamond, Santa Clara University School of Law.
The Santa Clara University School of Law, the Leavey School of Business at Santa Clara University, the University of Washington School of Law, the NYU Stern Center for Business and Human Rights, the Rutgers Center for Corporate Law and Governance and the Business and Human Rights Journal announce the Third Business and Human Rights Scholars Conference, to be held September 15-16, 2017 at Santa Clara University in Santa Clara, California. 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 disciplines are invited to apply, including law, business, human rights, and global affairs. The papers must be unpublished at the time of presentation. Each participant will present his/her own paper and be asked to comment on at least one other paper during the workshop. Participants will be expected to have read other papers and to participate actively in discussion and analysis of the various works in progress.
To apply, please submit an abstract of no more than 250 words to firstname.lastname@example.org with the subject line “Business & Human Rights Conference Proposal.” Please include your name, affiliation, contact information, and curriculum vitae. The deadline for submission is March 15, 2017. We will begin reviewing submissions on a rolling basis on March 1, 2017. Scholars whose submissions are selected for the symposium will be notified no later than April 15, 2017. Final papers will be due August 25, 2017.
Thursday, February 23, 2017
Christopher Bruner has posted Center-Left Politics and Corporate Governance: What Is the 'Progressive' Agenda? on SSRN. You can download the paper here. Here is the abstract:
For as long as corporations have existed, debates have persisted among scholars, judges, and policymakers regarding how best to describe their form and function as a positive matter, and how best to organize relations among their various stakeholders as a normative matter. This is hardly surprising given the economic and political stakes involved with control over vast and growing "corporate" resources, and it has become commonplace to speak of various approaches to corporate law in decidedly political terms. In particular, on the fundamental normative issue of the aims to which corporate decision-making ought to be directed, shareholder-centric conceptions of the corporation have long been described as politically right-leaning while stakeholder-oriented conceptions have conversely been described as politically left-leaning. When the frame of reference for this normative debate shifts away from state corporate law, however, a curious reversal occurs. Notably, when the debate shifts to federal political and judicial contexts, one often finds actors associated with the political left championing expansion of shareholders' corporate governance powers, and those associated with the political right advancing more stakeholder-centric conceptions of the corporation.
The aim of this article is to explain this disconnect and explore its implications for the development of U.S. corporate governance, with particular reference to the varied and evolving corporate governance views of the political left - the side of the spectrum where, I argue, the more dramatic and illuminating shifts have occurred over recent decades, and where the state/federal divide is more difficult to explain. A widespread and fundamental reorientation of the Democratic Party toward decidedly centrist national politics fundamentally altered the role of corporate governance and related issues in the project of assembling a competitive coalition capable of appealing to working- and middle-class voters. Grappling with the legal, regulatory, and institutional frameworks - as well as the economic and cultural trends - that conditioned and incentivized this shift will prove critical to understanding the state/federal divide regarding what the "progressive" corporate governance agenda ought to be and how the situation might change as the Democratic Party formulates responses to the November 2016 election.
I begin with a brief terminological discussion, examining how various labels associated with the political left tend to be employed in relevant contexts, as well as varying ways of defining the field of "corporate governance" itself. I then provide an overview of "progressive" thinking about corporate governance in the context of state corporate law, contrasting those views with the very different perspectives associated with center-left political actors at the federal level.
Based on this descriptive account, I then examine various legal, regulatory, and institutional frameworks, as well as important economic and cultural trends, that have played consequential roles in prompting and/or exacerbating the state/federal divide. These include fundamental distinctions between state corporate law and federal securities regulation; the differing postures of lawmakers in Delaware and Washington, DC; the rise of institutional investors; the evolution of organized labor interests; certain unintended consequences of extra-corporate regulation; and the Democratic Party's sharp rightward shift since the late 1980s. The article closes with a brief discussion of the prospects for state/federal convergence, concluding that the U.S. corporate governance system will likely remain theoretically incoherent for the foreseeable future due to the extraordinary range of relevant actors and the fundamentally divergent forces at work in the very different legal and political settings they inhabit.