Friday, August 22, 2014

Corporate Constitutional Themes Pt.2

I love a good debate and appreciate the opportunity (provided by Professor Bainbridge’s thoughtful post yesterday) to engage a bit more deeply on the thesis of Wednesday’s post suggesting an approach for how to incorporate Citizens United and Hobby Lobby into the survey BA/Corporations course. 

By way of recap and ruthless summary, Stephen Bainbridge wants nothing to do with these issues (or other constitutional law questions) in his course because of the:

  1. Existing emphasis of public law over private law and resulting imbalance in law school curriculum;
  2. False impression that constitutional law is the holy grail of law teaching and practice;
  3. These cases present a hornet’s nest of controversial and divisive topics; and
  4. Coverage constraints.  The menu options of what we can (should) teach is already more ambitious than time allows.

And to no surprise to anyone, anywhere:  Stephen Bainbridge is right on the money with all of these points.

As a survey course and one that almost every student in my law school (Georgia State) takes, I feel a responsibility to provide context for the subject matter that we teach and to do my best to “hook” students who didn’t come to my class with an interest in corporate law. 

First, hear me now when I say that corporate law matters.  It matters to the business owners who form and operate a firm.  It matters to the individuals and other businesses who interact with the firm as a supplier or customer or creditor or employee.  These first two points are significantly incorporated into the traditional BA syllabus.  Corporate law also matters to general members of society because corporations wield tremendous power in elections, in lobbying (regulatory capture anyone?), in shaping retirement savings, in religious and reproductive rights debates and setting other cultural norms around issues like corruption, sustainability, living wage, etc.   Multi-national corporations with ubiquitous brand recognition aren’t the only powerful actors.  The Hobby Lobby ruling tells us that those creatures governed largely by private law—the closely held corporation—also play a major role.  To teach corporate law in a vacuum that ignores this broader context is to teach nuclear physics without discussing the atom bomb and its consequences (if I can use hyperbole).  Should the broader context be the focus of the class? Absolutely not.  Can it be woven into context setting discussions or used as a way to elicit student participation?  In my class at least.

Second, not every student in BA enrolled out of pure self-interest; not everyone has a business background.  I consider my course to be a great equalizer in law school:  we take the health sciences majors, the B-schoolers, the political science and the anthropology kids and at the end of the semester everyone can explain basic financial concepts, the different menu options of firms, proxy fights, and even poison pills. We do this best when we can engage all of the students, which sometimes means helping students see why it might matter to them and how the subject connects with the things that they care about.  For some that will be the clever ways you can use private agreements to shape outcomes and hedge against risk, for others it will be seeing why corporate law matters even if you don’t care about corporations (see paragraph above).

My last point is that being an effective classroom teacher generally requires a sense of self-awareness about your comfort zone, your strengths, and your weaknesses (among other things). I have lots of colleagues, at GSU and other institutions (many of them BLPB editors), whom I admire, but if I tried to teach class the way that they did, I would fall short of the mark.  We teach to our own strengths and infuse classes with a sense of our own personality and passion.  I don’t think I have convinced anyone not previously inclined to incorporate these materials; and I wonder if Stephen has caused any course corrections with his thoughts.  We may have just reinforced the positions that you already held.  Either way, happy teaching to all readers who have started or are preparing to start the new semester and the new school year.

-Anne Tucker

Anne Tucker, Business Associations, Constitutional Law, Corporations, Law School, Teaching | Permalink


I do teach issues raised by Citizens United, Hobby Lobby, etc. -- mainly, through the lens of the proxy system/ shareholder proposals (using, for example, proposals relating to disclosure of electioneering activity in the wake of Citizens United), the concept of shareholder wealth maximization, other constituency statutes, DE cases like Craig'slist/ebay, minority vs. majority SH interests (particularly in smaller, closely held corps), and the like. To be clear, I do not focus on the Constitutional law doctrines -- I agree with Prof. Bainbridge that there is a tendency for students (and the law school curriculum generally) to emphasize public law vs. private law. I do, however, believe that these cases (and related issues) are important to understanding key concepts in business orgs. Without giving too much valuable "real estate" on the syllabus to these cases, I do try to put them in context.

Posted by: C. Chung | Aug 22, 2014 10:28:10 AM

I'm torn because I agree with both views. I dealt with Citizens United by having students watch part of a debate on PBS that aired shortly after the decision came down- it was hard to find objective coverage. I used that in the context of discussing shareholder proposals given the prevalence of political spending proposals over the past couple of years. I dealt with Hobby Lobby by having students read the law professor brief and Steve Bainbridge's law review article criticizing it. I focused only on reverse veil piercing and value pass through issues and the students loved it. I stayed away from the Constitutional issues because that's not my area and there was enough to cover. I'm not sure how I will fit it in this year but I will try if I can and may learn some new approaches through this discussion.

Posted by: Marcia Narine | Aug 22, 2014 1:54:13 PM

I am really glad that you raised this question and find it interesting (even surprising) that the opinions are so sharply divided.

I am squarely in the Bainbridge camp on this matter: in BA, I would not go anywhere near Citizens United or Hobby Lobby. My reasons are primarily the first three of the four you note, though coverage constraints are important also. I find it much easier to raise questions about the role of corporations in society and private ordering without going into the murky and treacherous waters of con law. The fact that Supreme Court opinions on business law matters often reflect a poor understanding of corporate and securities law further reinforces my decision.

Posted by: Urska | Aug 22, 2014 5:19:09 PM

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