Tuesday, June 26, 2018
Call for Papers for
Section on Agency, Partnership, LLCs and Unincorporated Associations on
Respecting the Entity: The LLC Grows Up
at the 2019 AALS Annual Meeting
The AALS Section on Agency, Partnership, LLCs and Unincorporated Associations is pleased to announce a Call for Papers from which up to two additional presenters will be selected for the section’s program to be held during the AALS 2019 Annual Meeting in New Orleans on Respecting the Entity: The LLC Grows Up. The program will explore the evolution of the limited liability company (LLC), including subjects such as the LLCs rise to prominence as a leading entity choice (including public LLCs and PLLCs), the role and impact of series LLCs, and differences in various LLC state law rights and obligations. The program will also consider ethics and professional responsibility and governance raised by the LLC. The Section is particularly seeking papers that discuss the role of the LLC as a unique entity (or why it is not).
The program is tentatively scheduled to feature:
- Beth Miller, M. Stephen and Alyce A. Beard Professor of Business and Transactional Law, Baylor Law
- Tom Rutledge, Member, Stoll Keenon Ogden PLLC, Louisville, KY
Our Section is proud to partner with the following co-sponsoring sections:
- AALS Section on Business Associations
- AALS Section on Transactional Law and Skills
Please submit an abstract or draft of an unpublished paper to Joshua Fershee,Joshua.Fershee@mail.wvu.edu on or before August 1, 2018. Please remove the author’s name and identifying information from the paper that is submitted. Please include the author’s name and contact information in the submission email.
Papers will be selected after review by members of the Executive Committee of the Section. Authors of selected papers will be notified by August 25, 2018. The Call for Paper presenters will be responsible for paying their registration fee, hotel, and travel expenses.
Any inquiries about the Call for Papers should be submitted to: Joshua Fershee, West Virginia University College of Law, Joshua.Fershee@mail.wvu.edu or (304) 293-2868.
Friday, June 1, 2018
Greetings from Atlanta, Georgia, site of the Emory Transactional Law & Skills Conference. After only a few hours of presentations, I'm already inspired to make some changes in my new transactional lawyering class. I will write about some of the lessons learned next week. Today, I want to share some of Tina Stark's remarks from the conference dinner that ended moments ago. Although she initially teased the audience by stating that she would make "subversive" statements, nothing that she said would scandalize most law students or surprise practicing lawyers.
Her "radical" proposal entailed having transactional skills education be a part of every law student's curriculum. In support, she cited ABA Standard 301(a), which states:
OBJECTIVES OF PROGRAM OF LEGAL EDUCATION (a) A law school shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.
She argued that for the academy to meet this standard, schools must go beyond a narrow reading of ABA rules and provide every student with the foundation to practice transactional law, particularly because half of graduates will practice in that area even if they don't know it while they are in law school. She also referenced ABA Standard 302, which states in part:
LEARNING OUTCOMES A law school shall establish learning outcomes that shall, at a minimum, include competency in the following: (a) Knowledge and understanding of substantive and procedural law; (b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context.
Stark correctly observed that notwithstanding the litigation focus in law school, lawyers write more than predictive memos and briefs. She emphasized that competency in oral and communication skills is particularly important for deal lawyers.
If she came even close to being "radical," (and I don't think she did), it's because she went beyond calling on more schools to offer, much less require drafting courses. Instead, she recommended that schools add at least one credit to the first year contracts course so that students can learn the structure of contracts and build a foundation for more advanced work. She likened law students failing to learn the parts of a contract to medical students studying anatomy without doing dissections.
She anticipated the argument that schools do not have enough time to add an extra credit to the basic contracts course by countering that another first year course could be moved to the second year. This would allow professors to spend the first part of the semester teaching 1Ls to read and analyze a contract so that they can understand business drivers when reading cases in contracts and property class.
Although some in the academy might resist the proposal, I believe that members of the bar and business community would applaud this move. If the long waiting list for my transactional lawyering course and similar ones around the country are any indication, law students would appreciate more balance in the curriculum as well.
Friday, May 4, 2018
Does CSR Really Exist in Latin America? Should Corporations be Treated as Persecutors Under Asylum Law? Is Labor an Extractive Industry? Buy This Book and Find Out
In 2015, I and several academics and other experts traveled to Guatemala as part of the Lat-Crit study space. The main goal of the program was to examine the effect of the extractive industries on indigenous peoples and the environment. During our visit, we met with indigenous peoples, government ministers, the chamber of commerce, labor leaders, activists (some who had received multiple death threats), and village elders.
Our labor of love, From Extraction to Emancipation Development Reimagined, edited by Raquel Aldana and Steve Bender, was released this week. My chapter "Corporate Social Responsibility in Latin America: Fact or Fiction" introduces the book. I first blogged about CSR in the region in 2015 in the context of a number of companies that had touted their records but in fact, had been implicated in environmental degradation and even murder. Over the past few years, one of the companies I blogged about, Tahoe Resources, has been sued in Canada for human rights violations, the Norwegian pension fund has divested, and shareholders have filed a class action based on allegations re: the rights of indigenous people.
Although the whole book should be of interest to business law professors and practitioners, chapters of particular interest include a discussion of the environment and financial institutions, the Central American experience with investor protections under CAFTA, whether corporations should be treated as persecutors under asylum law, climate adaptation and climate justice, the impact of mining on self-determination, environmental impact assessments, and labor as an extractive industry.
Other chapters that don't tie directly to business also deserve mention including my mentor Lauren Gilbert's closing chapter on gender violence, state actions, and power and control in the Northern Triangle, and other chapters on the right to water and sanitation in Central America, community-based biomonitoring, and managing deforestation.
We encourage you to buy the book and to invite the chapter authors to your institutions to present (shameless plug for panels, but we would love to share what we have learned).
Wednesday, October 11, 2017
From our friend and BLPB colleague, Anne Tucker, following is nice workshop opportunity for your consideration:
We (Rob Weber & Anne Tucker) are submitting a funding proposal to host a works-in-progress workshop for 4-8 scholars at Georgia State University College of Law, in Atlanta, Georgia in spring 2018 [between April 16th and May 8th]. Workshop participants will submit a 10-15 page treatment and read all participant papers prior to attending the workshop. If our proposal is accepted, we will have funding to sponsor travel and provide meals for participants. Interested parties should email email@example.com on or before November 15th with a short abstract (no more than 500 words) of your proposed contribution that is responsive to the description below. Please include your name, school, and whether you will require airfare, miles reimbursement and/or hotel. We will notify interested parties in late December regarding the funding of the workshop and acceptance of proposals. Please direct all inquiries to Rob Weber (mailto:firstname.lastname@example.org) or Anne Tucker (email@example.com).
Call for Proposals: Organizing, Deploying & Regulating Capital in the U.S.
Our topic description is intentionally broad reflecting our different areas of focus, and hoping to draw a diverse group of participants. Possible topics include, but are not limited to:
- The idea of financial intermediation: regulation of market failures, the continued relevance of the idea of financial intermediation as a framework for thinking about the financial system, and the legitimating role that the intermediation theme-frame plays in the political economy of financial regulation.
- Examining institutional investors as a vehicle for individual investments, block shareholders in the economy, a source of efficiency or inefficiency, an evolving industry with the rise of index funds and ETFs, and targets of SEC liquidity regulations.
- The role and regulation of private equity and hedge funds in U.S. capital markets looking at regulatory efforts, shadow banking concerns, influences in M&A trends, and other sector trends.
This workshop targets works-in-progress and is intended to jump-start your thinking and writing for the 2018 summer. Our goal is to provide comments, direction, and connections early in the writing and research phase rather than polishing completed or nearly completed pieces. Bring your early ideas and your next phase projects. We ask for a 10-15 page treatment of your thesis (three weeks before the workshop) and initial ideas to facilitate feedback, collaboration, and direction from participating in the workshop. Interested parties should email firstname.lastname@example.org on or before November 15th with a short abstract (no more than 500 words) of your proposed contribution that is responsive to the description below. Please include your name, school, and whether you will require airfare, miles reimbursement and/or hotel. We will notify interested parties in late December regarding the funding of the workshop and acceptance of proposals. Please direct all inquiries to Rob Weber (email@example.com) or Anne Tucker (firstname.lastname@example.org).
Anne & Rob
October 11, 2017 in Anne Tucker, Call for Papers, Corporate Finance, Financial Markets, Joshua P. Fershee, Law School, M&A, Research/Scholarhip, Securities Regulation, Writing | Permalink | Comments (0)
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 . . . .
Friday, March 17, 2017
Professor Keith Diener of Stockton University School of Business, who is a former law school classmate of mine and the current managing editor of the Atlantic Law Journal, agreed to answer some questions related to the journal.
The flagship journals for the Academy of Legal Studies in Business ("ALSB") are the American Business Law Journal (ABLJ) and the Journal of Legal Studies Education (JLSE, primarily pedagogy articles and teaching cases). In addition to these two journals, each regional association is generally responsibly for at least one journal with the Atlantic Law Journal coming out of the Mid-Atlantic region.
As Keith explains below, these journals are open to a wide range of scholars, including professors from law schools. I would encourage legal scholars who have not published in a traditional peer reviewed journal to consider submitting to one of the ALSB journals. I have published in both the ABLJ and the JLSE, and I have had good experiences in both cases.
Please provide us a brief overview of the Atlantic Law Journal and the MAALSB.
The Mid-Atlantic Academy for Legal Studies in Business (MAALSB) is an association of teachers and scholars primarily in the fields of business law, legal environment, and law-related courses outside of professional law schools with members from the Mid-Atlantic states, including Delaware, Maryland, Pennsylvania, Virginia & West Virginia. Residence in those states is not required for membership in the MAALSB, and many of our members come from different regions and states. In addition to sponsoring the Atlantic Law Journal, MAALSB holds an annual conference for our region usually in April of each year, where our members meet, present papers, and exchange ideas. The MAALSB is one of the regional branches of the national Academy of Legal Studies in Business (ALSB).
For over a decade, the Atlantic Law Journal was tied to the MAALSB annual conference. Presentation at the conference provided an opportunity for publication in the journal. A few years ago, the journal restructured and began accepting articles on a rolling basis, year-round. We welcome submissions from law professors, whether in law schools or not, but generally do not accept student-authored articles. We are soon entering our twentieth year as a viable legal publication.
What is your current role with the journal and what roles do other faculty members play?
The Atlantic Law Journal has a dedicated team of editors who, depending on classification, perform different roles within the journal.
Our Editor-and-Chief, Professor Cynthia Gentile, leads the journal, manages its website, publishes the annual volume, manages its listings in Cabell’s and Washington and Lee’s Journal Rankings, and coordinates indexing and archiving on Westlaw. As Editor-and-Chief, Professor Gentile is primarily responsible for journal outreach, growth, and sustainability.
I currently serve the journal as the Managing Editor. In this capacity, I receive all submissions to the journal, sanitize them for double, blind peer review, send the sanitized articles to our staff editors for review, receive their recommendation and feedback forms, and notify authors of publication decisions.
We currently have two Articles Editors, Professors Laura Dove and Evan Peterson, who work with the accepted authors to prepare their manuscripts for publication, by editing the articles and making suggestions for improvement even after acceptance.
We also have a team of roughly 30-40 professors from around the country who serve the journal as Staff Editors. Without our Staff Editors, our journal would not function. They are responsible for peer-reviewing the submitted articles, and making recommendations for (i) acceptance, (ii) conditional acceptance, (iii) revision and resubmission, or (iv) rejection of the submitted articles.
What details can you provide about the submission process, including contact information, desired word-count range, typical article topics, etc.?
We generally publish annually, usually in July or August. September through January are typically the best months to submit if you are seeking to be published in the following summer. Spring semester submissions are also welcome, but are often more competitive. Although there are no per se word ranges, article lengths typically span 7,500 to 15,000 words. We publish a wide range of articles, but to be published in the Atlantic Law Journal, the article must have a nexus to business law theory or pedagogy, broadly construed.
The acceptance rate remains at or below 25%. This means that for every article we accept, at least three are initially turned down (although some are given the opportunity to resubmit).
You can submit by emailing the Managing Editor a complete copy and a blind copy, with Bluebook formatted footnotes, in accordance with the instructions and contact information found on our website.
What details can you provide about the review process and editing process?
Upon submission, you will receive a response, typically within a few days, confirming receipt of your article. From there, soon after, the article is typically sent to Staff Editors for peer review. To the extent possible, we match article content with the expertise of our Staff Editors to ensure a fair and professional review. We also find that the feedback provided by Staff Editors to authors is most helpful when they have expertise related to the article. Once appropriate and available Staff Editors are identified, they then review the article and return their recommendations to the Managing Editor. The Managing Editor then notifies the author of the publication decision. If an article is accepted, then the author is introduced to one of our Articles Editors for finalization of the essay.
We strive to inform authors of publication decisions within eight (8) weeks of submission.
In your opinion, what are the advantages and disadvantages of publishing with the Atlantic Law Journal?
In my opinion, there are many advantages to publishing with the Atlantic Law Journal.
The first advantage is that (unlike many law reviews today), if you submit to the Atlantic Law Journal, someone will respond to you when you submit it. Yet, not only will you receive a response, but you will also have your article read and reviewed by professional academics in the field of business law (who are also lawyers). We do not utilize law students in our publication process, and all our editors are professional academics.
Second, the Atlantic Law Journal is listed in Cabell’s, ranked by Washington and Lee, and available on Westlaw. This means that articles appear not only in our volumes linked on our website, but are also indexed, searchable, and fully archived on Westlaw. This produces the potential for a broad impact and increased author visibility.
Third, while there appears to be a trend towards some law reviews accepting shorter articles, the Atlantic Law Journal already accepts shorter pieces (circa 7500 words). Let’s face it, sometimes there’s just not 50,000 words to say about certain topics. If you have a shorter piece that might not be long enough for a law review, the Atlantic Law Journal may be interested in it.
Fourth, unlike many law reviews, the Atlantic Law Journal is interested in articles, not only as to theoretical and scholastic topics, but also topics related to business law pedagogy. If you’ve tried something new in the classroom, had good results, and desire to share it with others, the Atlantic Law Journal may be interested. Our primary readership includes business law professors, who are always looking for new and innovative pedagogical techniques. We also welcome scholarly and theoretical articles, and try to include a mix of both scholarly and pedagogical articles in each edition.
Finally, all articles are double, blind peer reviewed. If your article is not accepted, we endeavor to provide high quality feedback that will allow you to improve your article as you continue your work on it. Our blind review is a genuine process. As Managing Editor of the journal, I am committed to ensuring the journal’s integrity by sanitizing all submissions (removing all meta-data) prior to sending the articles for review.
For more on the MAALSB and the Atlantic Law Journal, see our website.
- Dr. Keith William Diener
Wednesday, February 8, 2017
Prominent corporate governance, corporate finance and economics professors face off in opposing amici briefs filed in DFC Global Corp. v. Muirfield Value Partners LP, appeal pending before the Delaware Supreme Court. The Chancery Daily newsletter, described it, in perhaps my favorite phrasing of legal language ever: "By WWE standards it may be a cage match of flyweight proportions, but by Delaware corporate law standards, a can of cerebral whoopass is now deemed open."
Point #1: Master Class in Persuasive Legal Writing: Framing the Issue
Reversal Framing: "This appeal raises the question whether, in appraisal litigation challenging the acquisition price of a company, the Court of Chancery should defer to the transaction price when it was reached as a result of an arm’s-length auction process."
Affirmance Framing: "This appeal raises the question whether, in a judicial appraisal determining the fair value of dissenting stock, the Court of Chancery must automatically award the merger price where the transaction appeared to involve an arm’s length buyer in a public sale."
Point #2: Summary of Brief Supporting Fair Market Valuation: Why the Court of Chancery should defer to the deal price in an arm's length auction
- It would reduce litigation and simply the process.
- The Chancery Court Judges are ill-equipped for the sophisticated cash-flow analysis (ouch, that's a rough point to make).
- Appraisal does not properly incentivize the use of arm's length auctions if they are not sufficiently protected/respected.
- Appraisal seeks the false promise of THE right price, when price in this kind of market (low competition, unique goods) can best be thought of as a range. The inquiry should be whether the transaction price is within the range of a fair price. A subset of this argument (and the point of the whole brief) is that the auction process is the best evidence of fair price.
- Appraisal process is flawed because the court discounted the market price in its final valuation. The argument is that if the transaction price is not THE right price, then it should not be a factor in coming up with THE right price.
- Appraisal process is flawed because the final valuation relies upon expert opinions that are created in a litigation vacuum, sealed-off from market pressure of "real" valuations.
- The volatility in the appraisal market—the outcome of the litigation and the final price—distorts the auction process. Evidence of this is the creation of appraisal closing conditions.
Point #3: Summary of Brief Supporting Appraisal Actions: Why the Court of Chancery should reject a rule that the transaction price—in an arm's length auction—is conclusive evidence of fair price in appraisal proceedings.
- Statutory interpretation requires the result. Delaware Section 262 states that judges will "take into account all factors" in determining appraisal action prices. To require the deal price to be the "fair" price, eviscerates the statutory language and renders it null.
- The Delaware Legislature had an opportunity to revise Section 262—and did so in 2015, narrowing the scope of eligible appraisal transactions and remedies—but left intact the "all factors" language.
- The statutory appraisal remedy is separate from the common law/fiduciary obligations of directors in transactions so a transaction without a conflict of interest and even cured by shareholder vote could still contain fact-specific conditions that would make an appraisal remedy appropriate.
- There are appropriate judicial resources to handle the appraisal actions because of the expertise of the Court of Chancery, which is buttressed by the ability to appoint a neutral economic expert to assist with valuations and to adopt procedures and standards for expert valuations in appraisal cases.
- The threat of the appraisal action creates a powerful ex ante benefit to transaction price because it helps bolster and ensure that the transaction price is fair and without challenge.
- Appraisal actions serve as a proxy for setting a credible reserve in the auction price, which buyers and sellers may be prohibited from doing as a result of their fiduciary duties.
- Any distortion of the THE market by appraisal actions is a feature, not a bug. All legal institutions operate along side markets and exert influences, situations that are acceptable with fraud and torts. Any affect that appraisal actions create have social benefits and are an intended benefit.
- Let corporations organized/formed in Delaware enjoy the benefits of being a Delaware corporation by giving them full access to the process and expertise of the Delaware judiciary.
My thinking in the area more closely aligns with the "keep appraisal action full review" camp on the theory--both policy and economic. Also the language in the supporting/affirmance brief is excellent (they describe the transaction price argument as a judicial straight jacket!). I must admit, however, that I am sympathetic to the resources and procedural criticisms raised by the reversal brief. That there is no way for some corporate transactions, ex ante, to prevent a full scale appraisal action litigation—a process that is costly and time consuming—is a hard pill to swallow. I can imagine the frustration of the lawyers explaining to a BOD that there may be no way to foreclose this outcome. Although I hesitate to put it in these terms, my ultimate conclusion would require more thinking about whether the benefits of appraisal actions outlined in the affirmance brief outweigh the costs to the judiciary and to the parties as outlined in the reversal brief. These are all points that I invite readers to weigh in on the comments--especially those with experience litigating these cases.
I also want to note the rather nuanced observation in the affirmance brief about the distinction between statutory standards and common law/fiduciary duty. This important intellectual distinction about the source of the power and its intent is helpful in appraisal actions, but also in conflict of interest/safe harbor under Delaware law evaluations.
For the professors out there, if anyone covers appraisal actions in an upper-level course or has students writing on the topic-- these two briefs distill the relevant case law and competing theories with considerable force.
Thursday, January 19, 2017
Bernard Sharfman, a prolific author on corporate governance, has written his fourth article on the business judgment rule. The piece provides a thought-provoking look at a subject that all business law professors teach. He also received feedback from Myron Steele, former Chief Justice of the Delaware Supreme Court, and William Chandler III, former Chancellor of the Delaware Court of Chancery during the drafting process. I don’t think I will assign the article to my students, but I may take some of the insight when I get to this critical topic this semester. Sharfman has stated that he aims to change the way professors teach the BJR.
The abstract is below:
Anyone who has had the opportunity to teach corporate law understands how difficult it is to provide a compelling explanation of why the business judgment rule (Rule) is so important. To provide a better explanation of why this is so, this Article takes the approach that the Aronson formulation of the Rule is not the proper starting place. Instead, this Article begins by starting with a close read of two cases that initiated the application of the Rule under Delaware law, the Chancery and Supreme Court opinions in Bodell v. General Gas & Elec. By taking this approach, the following insights into the Rule were discovered that may not have been so readily apparent if the starting point was Aronson.
First, without the Rule, the raw power of equity could conceivably require all challenged Board decisions to undergo an entire fairness review. The Rule is the tool used by a court to restrain itself from implementing such a review. This is the most important function of the Rule. Second, as a result of equity needing to be restrained, there is no room in the Rule formulation for fairness; fairness and fiduciary duties must be mutually exclusive. Third, there are three policy drivers that underlie the use of the Rule. Protecting the Board’s statutory authority to run the company without the fear of its members being held liable for honest mistakes of judgment; respect for the private ordering of corporate governance arrangements which almost always grants extensive authority to the Board to make decisions on behalf of the corporation; and the recognition by the courts that they are not business experts, making deference to Board authority a necessity. Fourth, the Rule is an abstention doctrine not just in terms of precluding duty of care claims, but also by requiring the courts to abstain from an entire fairness review if there is no evidence of a breach in fiduciary duties or taint surrounding a Board decision. Fifth, stockholder wealth maximization (SWM) is the legal obligation of the Board and the Rule serves to support that purpose. The requirement of SWM enters into corporate law through a Board’s fiduciary duties as applied under the Rule, not statutory law. In essence, SWM is an equitable concept.
Friday, December 30, 2016
At the end of every semester I resolve to give less work to my students so that I don't have so much to grade. This upcoming semester I may actually keep that resolution, but I do plan to keep my blogging assignment. In each class, I provide an extra credit or required post or series of posts of between 200-500 words so that students can learn a fundamental legal skill—communicating clearly, correctly, and concisely.
If you are reading this post, then you are already a fan of legal blogs. Academics blog to get their ideas out quickly rather than waiting for the lengthy law review cycle to publicize their thoughts. Academics can also refine ideas they are incubating by blogging and receiving real time feedback from readers. Practicing lawyers blog (or should) for a slightly different reason. Blogging can enhance a lawyer’s reputation and visibility and ultimately lead to more business.
Yesterday, I met with an attorney who will speak to the students in my new course on Legal Issues for Startups, Entrepreneurs, and Small Businesses. I mentioned to him that I found his blog posts enlightening and that they filled a gap in my knowledge base. Although I practiced for almost twenty years before entering academia and had a wide range of responsibility as a deputy general counsel, I delegated a number of areas to my colleagues or outside counsel. That attorney is now part of a growing trend. In 2011, when I left practice, lawyers rarely blogged and few utilized social media. Now, many recognize that lawyers must read legal blogs to keep up on breaking developments relevant to their practice. However, most lawyers understandably complain that they do not have the time to get new clients, retain their existing clients, do the actual legal work, and also blog.
Leaving blogging to the wayside is a mistake, particularly for small or newer firms. A 2016 Pew Research Center Study revealed that only 20% of people get their news from newspapers yet almost 40% rely on social media, which often provides summaries of the news curated to the consumer’s interests. The potential client base’s changing appetite for instant information in a shorter format makes blogging almost a necessity for some lawyers. Indeed, consumers believe that hiring a new lawyer is so overwhelming that some clients are now crowdsourcing. But when they receive multiple “offers” to represent them, how do/should consumers choose? Perhaps they will pick the firm with a social media presence, including a blog that highlights the firm’s expertise.
I read several blogs a day. Admittedly, I have a much longer attention span than many of our students and the lay public. I also get paid to read. Nonetheless, I consider reading blogs an essential part of my work as an academic. In prepping for my new course, I have found posts on startups and entrepreneurship particularly helpful in providing legal information as well as insight into the mindset of entrepreneurs. If I were a busy founder running a new startup, I would likely try to learn as much as possible as quickly as possible online about certain topics prior to retaining a lawyer. Some lawyers, however, don’t really know how to speak to clients without talking down to them, much less write anything “short” and free of jargon. A lawyer/blogger who wrote in a way that I could understand, without all of the legalese, would be more likely to get my business.
Thus, even though I want to grade fewer papers, I also want my students to leave my class with the critical skill of communicating complex topics to the public in digestible chunks (and in line with state bar rules on social media). Over the years, I have advised students to volunteer to update or start a blog for their internship employers. Many have told me that they enjoyed these projects and that their employers have found value in this work. This blogging practice also puts students in the position to start to blog after graduation.
I’ll end this post with a plug for my blogging colleagues who will attend AALS next week in San Francisco. I encourage you to attend some of the socioeconomic panels highlighted here. Please introduce yourself if you attend the panel next Wednesday morning at 9:50 on whistleblowers with me, Professor Bill Black of UMKC; Professor June Carbone of Minnesota; and Professor Ben Edwards of Barry. If you have an interest in the intersection between ethics and business, please swing by next Friday at 1:30 and see me and co-panelists Christopher Dillon from Gibson Dunn; Mina Kim, GC of Sunrun; Professor Eric Orts of Wharton; Professor Joseph Yockey of Iowa; Professor Brian Quinn of Boston College; Dean Gordon Smith of BYU; Professor Lori Johnson of UNLV; and Professor Anne Choike of Michigan.
If you have legal blogs you want to recommend and/or will be speaking at AALS and want to call attention to your session, feel free to comment below. Happy New Year and happy blogging.
Wednesday, December 7, 2016
Do you love charts? Do you need/want a break from grading/procrastinating/writing frantically on a deadline real or self-imposed? All of these things at once? Welcome to the month of December-- the time of year that should be a break from our schedules, but which always (and I mean ALWAYS) is my busiest time when I try to fit 6 weeks of work into 2.
My December gift to you? The Investment Company Factbook. The Investment Company Institute (ICI), is an association of regulated funds that collects and distributes data from its members. The full text of the Factbook (an annual publication) is available here, and the charts (and underlying data) are available here. I wept when I first discovered this source while writing years ago. ICI information is widely used in legal research. A quick search produced 3,265 law reviews and journal articles. For critiques of ICI's information and framing, see John C. Bogle, Mutual Funds at the Millennium: Fund Directors and Fund Myths, at http://www.vanguard.com/bogle_site/may152000.html (May 15, 2000); John P. Freeman & Stewart L. Brown, Mutual Fund Advisory Fees: The Cost of Conflicts of Interest, 26 J. Corp. L. 609, 625/26 (2001); and yours truly in Anne M. Tucker, Locked in: The Competitive Disadvantage of Citizen Shareholders, 125 Yale L.J. Forum 163 (2015).
Now back to writing/grading/procrastinating!
Monday, October 17, 2016
Assume a state trial court issues an opinion in a particular case and the case is not appealed. Should a legal scholar using the opinion to support or refute a key point (in the text of a written work) characterize the weight or status of the opinion (e.g., noting that it is a trial court opinion and that is has not been appealed)? Justify your answer.
If the trial court at issue is the Delaware Chancery Court and the opinion addresses matters under the Delaware General Corporation Law, does that alter your answer? Why? Why not?
I am having fun considering these issues today in connection with my work on a symposium paper. I have not yet decided how to handle the specific matter that raises the questions. Accordingly, it seemed like a good idea at this juncture to share my questions and seek collaboration in answering them . . . .
Tuesday, August 9, 2016
I am not the first to notice that law professors, and academics generally, have their own jargon and favorite buzzwords. Some websites do a nice job of highlighting (or mocking) many of the odds turns of phrase many of us use. Lawyers in the practicing bar do this, too, of course, and other professionals, especially business people (see, e.g., Dilbert) and public relations professionals.
I try not to be too jargon-y, but I have caught myself more than a few times. I am big on “incentivize,” for example. After attending a great SEALS Conference (likely more on that to come), I came away with a bunch of new ideas, a few new friends, and some hope for future collaboration. I also came away noticing that, sometimes, as a group, “we talk funny.” On that front, two words keep coming to my mind: “unpack” and “normative.”
So, when did we all “need” to start “unpacking” arguments?
This seemed like a relatively recent phenomenon to me, so I checked. A Westlaw search of “adv: unpack! /3 argument” reveals 140 uses in Secondary Sources. The first such reference appears in a 1982 law review article: Michael Moore, Moral Reality, 1982 Wis. L. Rev. 1061 (1982). The phrase doesn’t appear again until 1988, in this article: Jeffrey N. Gordon, Ties That Bond: Dual Class Common Stock and the Problem of Shareholder Choice, 76 Cal. L. Rev. 1 (1988). Of the 140 citations, 113 (or 80%) of those have appeared since January 1, 2000 (69, or nearly 50%, have appeared since 2010). Relatively modest numbers, frankly, compared to how often I think I heard it said, but maybe we're just getting ramped up.
And when did things become “normative?”
It also seemed to me that it’s relatively recent that the things we expect to happen (or people to do) became “normative” in legal academic circles. Before that, I think we called things the standard or the norm, but it was far less common that legal academics discussed “normative” behavior in the way we do now.
A Westlaw search bears this out, too. A search of all secondary sources on Westlaw before January 1, 2000, revealed that the term had been used in 2,668 pieces. Since that date, normative has shown up in 7,270. The term has obviously been around for a long time, and has value in many contexts, but saying “normative” is the new normal.
To be clear, I don’t think the use of all jargon is bad, and I appreciate that as law professors do more interdisciplinary work, we will expand our jargon into other fields. Sometimes specific words help us communicate more precisely in a way that increases usefulness and understanding. I like terms of art and specificity. (See, e.g., any of my rants about LLCs.) I’m just observing what seems like a shift in how we talk. That’s not necessarily a bad thing. Maybe it’s just a thing.
I welcome any comments on these terms, or even better, a list of other words or phrases I missed. I know there's a lot more out there.
Wednesday, July 20, 2016
Last week on the blog I featured the smart book Empire of the Fund by sharing excerpts from a conversation with author, Professor William Birdthistle. In discussing the book, he shared with me some insights on writing a book: its process, genesis and use in the classroom. I am fascinated by other's people writing process in the continual effort to improve my own.
writing a book...
[W]riting a book was more of a challenge than I expected, even though I told myself it was simply a collection of law review articles. It turns out that the blinking cursor on an empty screen is more taunting when you're obliged to fill hundreds of pages. Brief stints of productivity need to be repeated again and again and, until it all exists, nothing really exists. I developed a convoluted system of drafting notes, then sitting down with a research assistant to record a chat about those notes, then working that recording into an outline. That process still left me with plenty of writing to do, but I found it much easier to expand, polish, and revise those outlines than to fight the demon blank page.
Talking through your ideas forces you to synthesize the materials. It also retains the humanity behind the arguments. This method makes a lot of sense when you read Professor Birdthistle's book because it feels like he is talking to you— just in a way that is smarter, better organized and more pithy than most of us can muster in the average conversation. His book doesn't read like the belabored, bloated, and laborious sections that all too often find their way in law review articles (my own included).
genesis for the book...
The contents, to a large extent, have actually come from the classroom -- as these materials serve as the syllabus for a seminar I've taught for a few years. The seminar, called Investment Funds, is almost always popular: in a go-go market, all the students want to hear about private equity and hedge funds; then in downturns, I get a sober audience of students who want to know more about their 401(k)s.
application to broader classes...
I often work this material in to my BusOrg and SecReg classes too: so, I emphasize the role of funds on topics like corporate purpose (does charitable giving look different if the corporate funds might otherwise go to 401(k) holders), proxy contests (in which mutual funds are major institutional investors but often conspicuously absent from these fights), shorting (where the securities are often borrowed from mutual funds and ETFs), and behavioral versus neoclassical theory (quoting heavily from a wonderful disagreement between Judges Easterbrook and Posner in Jones v. Harris before it went to the Supreme Court).
Since almost all students will soon be figuring out their own 401(k) and mutual fund investments, I've found that it's easy to make business issues far more salient to their lives. Even to the saints who'll soon have a 403(b).
the role of behavioral work...
Finally, I highlight Professor Birdthistle's observations about changes to the corporate law landscape made space for a book like his to contribute, in a serious way, to the academic and popular debate about the efficacy of the mutual fund market.
I've been struck by the change in our intellectual and academic disposition towards investing problems. I've been in the academy for a decade now and, when I began, the rational investor model was so thoroughgoing that it was difficult to discuss problems of individual investing. Many conversations -- and job talks -- required a first-principles exegesis about how this market might possibly be anything other than highly efficient. But a tide of behavioral work in recent years has helped explain why investors might struggle, and a good deal of empirical work has concretely shown how they struggle. So conversations today focus more upon solutions rather than on whether there is even a problem.
To this last point, I wonder what ideas and principles, which seem untouchable today, will give way to the next generation's breakthrough. I think is a particularly heartening message for young scholars--not all of the work has been done! Keep at it! And it is an important message for folks who aren't writing in the mainstream. For folks who are passionate about their work, but feeling like their ideas aren't garnering the right cache with the right audiences. This is where you persevere so long as the work is thorough and well researched. Maybe you and your work are contributing to an important intellectual advancement. You could be changing the tides in ways that in presently imperceptible, but significant nonetheless. So as the August submission deadline looms and the summer hours threaten to languish, press on!
Because this post is a compilation of quotes, I now turn to Garrison Keeler to close:
Be well, do good work, and keep in touch.
*Query: Are the best motivational speeches are the ones you write for yourself?
Monday, May 30, 2016
This year, my research and writing season has started off with a bang. While grading papers and exams earlier this month, I finished writing one symposium piece and first-round-edited another. Today, I will put the final touches on PowerPoint slides for a presentation I give the second week in June (submission is required today for those) and start working on slides for the presentation I will give Friday.
All of this sets into motion a summer concert conference, Barbri, and symposium tour that (somewhere along the line) got a bit complicated. Here are the cities and dates:
New Orleans, LA - June 2-5
Atlanta, GA - June 10-11
Nashville, TN - June 17
Chicago, IL - June 23-24
Seattle, WA - June 27
I know some of my co-bloggers are joining me along the way. I look forward to seeing them. Each week, I will keep you posted on current events as best I can while managing the research and writing and presentation preparations. The topics of my summer research and teaching run the gamut from insider trading (through by-law drafting, agency, unincorporated business associations, personal property, and benefit corporations) to crowdfunding. A nice round lot.
This coming week, I will be at the Law and Society Association annual conference. My presentation at this conference relates to an early-stage project on U.S. insider trading cases. The title and abstract for the project and the currently envisioned initial paper (which I would, of course, already change in a number of ways) are as follows:
May 30, 2016 in Business Associations, Conferences, Corporate Finance, Corporate Governance, Corporations, Joan Heminway, Research/Scholarhip, Securities Regulation, Social Enterprise, Teaching, White Collar Crime, Writing | Permalink | Comments (0)
Wednesday, April 27, 2016
The shimmering mirage of summer has cast its spell on me, which means I am laboring under the delusion that I will have so much more time to do the thinking, learning, and writing that I want to be doing. My work is increasingly dependent upon statistical evaluations that others do, and occasionally involves my own work in the area. Several years ago I attended an empirical workshop for law professors at USC (something like this) taught by Lee Epstein and Andrew Martin that was an instrumental introduction and my only formal foundation in the area. I have the bug and want to learn more! But I don't know the best way to go about it-- piecemeal or full immersion--or even what all is available. I compiled my research below and share the list for interested readers. Comments encouraged by anyone who wants to share their experience with a listed option, general advice, or add to this meager list.
Empirical Skills Resources:
Introduction/Immersion Workshops like:
- George Mason’s empirical workshop
- Duke/Northwestern’s causal inference workshop
- SELS pre-conference empirical training
- Estimate--Michigan State’s summer econometrics workshop
- ICPSR summer offerings –
Free electronic courses:
Recomended text books/books
Epstein/Martin Introduction to Empirical Research
Enroll in a course at your university (audit or pursue another degree) such as basic statistics or an Econometrics course.
Wednesday, March 16, 2016
While we adjust to the departure of our long-time contributor (and friend) Steve Bradford and plan for the future, the Business Law Professor Blog editors seek interested guest bloggers willing to write one or more substantive posts on a business law topic (scholarship, doctrinal development, current event, etc.). We are open to a variety of business law backgrounds with a particular interest in adding coverage of commercial law and related topics. For questions or if you would like to nominate yourself or a colleague to guest blog between now and the end of summer 2016, please send an email to email@example.com with the subject line: "BLPB Guest Blogger". Our selection process will depend upon the volume and variety of responses.
Monday, March 14, 2016
And everything that seemed possible at twenty-four, twenty-five, is now just such a joke, such a ridiculous fiction, every birthday an atrocity.
-Dave Eggers, A Heartbreaking Work of Staggering Genius
Today is my 60th birthday. It’s also the end of my blogging here on the Business Law Prof Blog.
No, we don’t have a mandatory retirement program. I’ve just run out of interesting things to say. (Some of you would say that happened months ago.)
Having interesting things to say is not a requirement for blogging. The blogosphere is filled with writers who keep churning away even though they haven’t had a fresh thought in years. But I’m not motivated solely by the sound of my own voice. I don’t want to keep writing if I’m not contributing anything worthwhile. I’m stepping aside to make room for those younger than me with fresher ideas.
Thank you to my co-bloggers, all of whom are younger than me and have fresher ideas: Ann, Anne, Haskell, Joan, Josh, Marcia, and Stefan. They always have interesting things to say and I’ve learned a lot from them, both on and off the blog. I will continue to read their thoughtful posts, even though I won’t be contributing myself.
Thanks also to my readers, especially those of you who commented on what I wrote. I appreciate your attention to what I had to say. I learned from your comments, even when I didn’t agree with you. “The vanity of teaching often tempteth a man to forget he is a blockhead.” (George Savile) You let me know when I was a being a blockhead.
I hope I’ve kept you informed, entertained, and amused.
Never miss a good chance to shut up.
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)
Wednesday, December 2, 2015
Monday, November 30, 2015
I never thought I would say this, but my favorite book this year is about punctuation. That’s right. Punctuation! The book is Making a Point: The Pernickety Story of English Punctuation, by David Crystal, and it's well worth reading.
It’s an enjoyable romp through the English language, with limited attention to writing in other languages as well. (I just placed something in a German English-language publication and discovered that Germans don’t know how to “correctly” use quotation marks.)
This isn’t a rule book; Crystal talks about current usage, including areas where the “experts” disagree. (Oxford comma, anyone?) But he also covers the history—how the use of punctuation has evolved over time. One of the book's recurring themes is how two functions of punctuation--clarifying the writer's meaning and providing cues to speakers--can sometimes be at odds.
The history is fascinating. I have to admit that, after reading this book and seeing what excellent writers have done in the past, it’s harder to argue for a prescriptive position. I don’t always agree with Crystal’s position on disputed issues, but his case is always cogent.
Crystal covers all the major punctuation marks: , , ;, :, . . . , ., and ( ). (Yes, I did write this sentence just to see what it would look like.) But he also covers other lesser-known punctuation marks that have fallen into disuse, as well as the use of capital letters and spacing. (I was surprised to learn that early Anglo-Saxon writing often didn’t have spacing between words.)
I’m a writing geek, so I love to read books like this. But this book isn’t just for people like me. Anyone who writes for a living or wants to write for a living—and that includes all lawyers and law students—should read this book. Making a Point is entertaining and informative, and the writing is clear. (I almost restrained the urge to write “crystal-clear.”) Check it out.