Thursday, April 27, 2017

CALL FOR PAPERS: AALS Section on Transactional Law and Skills

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This call for papers solicits unpublished papers that analyze the question of access to the courts in a variety of transactional law settings.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Law and Skills invites submissions from any full-time faculty member of an AALS member school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper on this topic to submit a 1 or 2-page proposal to the Chair of the Section by August 31,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


April 27, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, April 23, 2017

ICYMI: #corpgov Tweets From the Week (April 23, 2017)

April 23, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, April 20, 2017

ICYMI: #corpgov SSRN Roundup (April 20, 2017)

April 20, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, April 16, 2017

ICYMI: #corpgov Tweets From the Week (April 16, 2017)

April 16, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, April 13, 2017

ICYMI: #corpgov SSRN Roundup (April 13, 2017)

April 13, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, April 9, 2017

ICYMI: #corpgov Tweets From the Week (April 9, 2017)

April 9, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, April 6, 2017

ICYMI: #corpgov SSRN Roundup (April 6, 2017)

April 6, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, April 2, 2017

ICYMI: #corpgov Tweets From the Week (April 2, 2017)

April 2, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, March 30, 2017

ICYMI: #corpgov SSRN Roundup (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:

March 30, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 26, 2017

ICYMI: #corpgov Tweets From the Week (March 26,2017)

March 26, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, March 23, 2017

ICYMI: SSRN Roundup (March 23, 2017)

March 23, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 19, 2017

ICYMI: Tweets From the Week (March 19, 2017)

March 19, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, March 16, 2017

William W. Bratton on "The Separation of Corporate Law and Social Welfare"

William W. Bratton has posted "The Separation of Corporate Law and Social Welfare" on SSRN. You can download the paper here. Here is the abstract:

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.

March 16, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 12, 2017

ICYMI: Tweets From the Week (March 12, 2017)

March 12, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, March 9, 2017

Virginia E. Harper Ho on "The SEC's Sustainability Imperative"

Virginia E. Harper Ho has posted "The SEC's Sustainability Imperative" on SSRN.  You can download the paper here.  Here is the abstract:

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.

March 9, 2017 in CSR, Financial Markets, Securities Regulation, Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 5, 2017

ICYMI: Tweets From the Week (Mar. 5, 2017)

March 5, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Thursday, March 2, 2017

Hrdy on "The Reemergence of State Anti-Patent Law"

My Akron Law colleague Camilla Alexandra Hrdy has posted "The Reemergence of State Anti-Patent Law" on SSRN.  You can download the paper here.  Here is the abstract:

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.

March 2, 2017 in Intellectual Property, Stefan J. Padfield | Permalink | Comments (0)

Sunday, February 26, 2017

ICYMI: Tweets From the Week (Feb. 26, 2017)

February 26, 2017 in Stefan J. Padfield | Permalink | Comments (0)

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 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.

February 24, 2017 in Call for Papers, Conferences, Human Rights, Stefan J. Padfield | Permalink | Comments (0)

Thursday, February 23, 2017

Bruner on "Center-Left Politics and Corporate Governance: What Is the 'Progressive' Agenda?"

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.

February 23, 2017 in Corporate Governance, Securities Regulation, Shareholders, Stefan J. Padfield | Permalink | Comments (0)