Monday, October 25, 2021

Heminway on Murray on Reforming the Benefit Corporation

Last week, I posted about the first of my two published commentaries from the 2020 Business Law Prof Blog Symposium, Connecting the Threads IV.  That earlier post related to my comments on an article written by BLPB co-blogger Stefan Padfield.  The subject?  Public company shareholder proposals--specifically, viewpoint diversity shareholder proposals.

This week, I am posting on the second commentary, History, Hope, and Healthy Skepticism, 22 TRANSACTIONS: TENN. J. BUS. L. 223 (2021).  This commentary offers my observations on co-blogger J. Haskell Murray’s, The History and Hope of Social Enterprise Forms, 22 TRANSACTIONS: TENN. J. BUS. L. 207 (2021).  The main body of the abstract follows.

In this comment, I play the role of the two-year-old in the room. Two-year-old children are well known to ask “why,” and that is what I do here. Specifically, this comment asks “why” in two aspects. First, I ask why we do (or should) care about making modifications to existing social enterprise practices and laws, the subject of Professor Murray’s essay. Second, assuming we do (or should) care, I ask why the changes Professor Murray suggests make sense. My commentary is largely restricted to the benefit corporation form because corporate forms loom large in the debates relevant to Professor Murray’s essay and because the benefit corporation is acknowledged to be the most widely adopted corporate form as among the social enterprise forms of entity.

And so, Haskell and I are "at it again" over whether the benefit corporation is worth reforming/saving.  More precisely, I am (again) picking a bit of an academic fight with Haskell.  His good nature and patience in response to my continued questions and push-backs have been and are deeply appreciated.

Do/should we care about modifying benefit corporation practices and laws and, if so, do Professor Murray's proposed reforms make sense?  [SPOILER ALERT!]  My bottom line:

I am satisfied—even if not wholly persuaded—that there is a reason to care. Benefit corporations may alter mindsets in a positive way, even if they do not positively or meaningfully alter applicable legal principles. And . . . I am convinced that Professor Murray generally has the right idea in calling for more accountability to a broader base of stakeholders—beyond just shareholders.

So, in the end, I was ready to call a limited truce--or really more of a detente. 

But I do maintain, as Haskell knows, a healthy doubt that the benefit corporation form has any broad-based value (making it hard to agree that amending the standard statutory framework or related practices has any merit).  And it looks like I have a new convert to this cause.  In his recent, provocative thought piece, Capitalism, heal thyself, Alan Palmiter avers as follows:

[W]e don’t really need benefit corporations, those corporations that have a hybrid profit and social/environmental purpose. All the companies that are doing big ESG -- world-changing ESG -- are your garden-variety for-profit (for-shareholder profit) companies. Maybe there are some benefit corporations, like my friend Patagonia, that like the label. But Patagonia didn’t have to be a benefit corporation to do what it’s doing.

That said, there’s a problem with fake benefit corporations, the ones pretending to do ESG. . . .

Alan, as you know, you are beating my drum--a drum I earlier have beaten here, here, and here, among other places, in various ways.  We shall see where it all goes.  But I remain a believer in the ability of the traditional for-profit corporation's ability tio engage in effective, efficient social enterprise and (more broadly) ESG initiatives.

 

October 25, 2021 in Conferences, Haskell Murray, Joan Heminway, Social Enterprise | Permalink | Comments (0)

Monday, October 18, 2021

Viewpoint Diversity Shareholder Proposals - A Commentary

Earlier this year, Transactions: The Tennessee Journal of Business Law, published papers presented at the 2020 Connecting the Threads IV symposium, held on Zoom just about a year ago.  Back in July, I wrote about my coauthored piece from the 2020 symposium.  That was my primary contribution to the event and the published output.

However, I also had the privilege of commenting on two papers at the symposium last year, and my comments were published in the Transactions symposium volume. I have been wanting to post about those published commentaries for a number of months, but other news just seemed more important.  Given the recent completion of this year's Connecting the Threads V symposium, it seems like a good time to make those posts.  I start with the first of the two here.

This post covers my commentary on Stefan Padfield's paper, An Introduction to Viewpoint Diversity Shareholder Proposals.  It was a fascinating read for me.  I was unaware of this genre of shareholder proposal before I picked up Stefan's draft.  If you also are in the dark about these shareholder proposals, his article offers a great introduction.  Essentially, viewpoint diversity shareholder proposals are shareholder-initiated matters proposed for a shareholder vote that (1) are included in a public company's proxy statement through the process set forth in Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and (2) serve "to restore some semblance of balance" in public companies that are characterized by viewpoint bias or discrimination.  Stefan's article offers examples and provides related observations.

My commentary is entitled A Few Quick Viewpoints on Viewpoint Diversity Shareholder Proposals.  It is posted on SSRN here. The SSRN abstract is as follows:

This commentary essay represents a brief response to Professor Stefan Padfield’s "An Introduction to Viewpoint Diversity Shareholder Proposals" (22 TRANSACTIONS: TENN. J. BUS. L. 271 (2021)). I am especially interested in two aspects of Professor Padfield’s article on which I comment briefly in turn. First and foremost, I focus in on relevant aspects of an academic and popular literature that Professor Padfield touches on in his article. This literature addresses an area that intersects with my own research: the diversity and independence of corporate management (in particular, as to boards of directors, but also as to high level executive officers--those constituting the so-called “C-suite”) and its effects on corporate decision-making. Second, I offer a few succinct thoughts on the suitability of the shareholder proposal process as a means of promoting viewpoint diversity in publicly held firms.

The essay is reasonably brief (so feel free to read it in its entirety).  But the essence of my conclusion offers the bottom line.  

Although viewpoint diversity may be a vague or malleable term, the business environment and exemplar shareholder proposals featured in Professor Padfield’s Article offer guidance as to the contextual meaning of that term. Based on his depiction and the literature on management diversity’s role in efficacious decision-making, viewpoint diversity has the capacity to add value to the business management enterprise and enhance the existence and sustainability of a healthy, happy workforce. Moreover, his Article indicates, and this commentary affirms, that the shareholder proposal process may be a successful tool in raising viewpoint diversity issues with firm management. Even if the inclusion of specific shareholder proposals in public company proxy statements may be questionable under Rule 14a-8, the existence of viewpoint diversity shareholder proposals may open the door to productive dialogues between shareholders and the subject companies. In sum, Professor Padfield’s Article represents a thought-provoking inquiry into an innovative way in which securities regulation may contribute to forwarding corporate social justice in the public company realm.

So, even if you don't read my commentary, you should read his article.

October 18, 2021 in Conferences, Corporate Governance, Corporations, Joan Heminway, Shareholders, Stefan J. Padfield | Permalink | Comments (2)

Monday, October 4, 2021

Connecting the Threads 2021 - My Thread in the Tapestry . . . .

Screen Shot 2021-10-04 at 7.36.06 PM

With my bum shoulder and a lot of work on our dean search cramping my style over the past few weeks, I have been remiss in posting about the 2021 Business Law Prof Blog Symposium, Connecting the Threads V.  The idea behind the name (and Doug Moll likes to riff on it--so have at it, Doug!) is that our bloggers here at the BLPB connect the many threads of business law in what we do--here on the blog and elsewhere.

Anyhoo (as Ann would say), as always, my BLPB co-bloggers did not disappoint in their presentations.  I know our students look forward to publishing many of the articles and the related commentaries in the spring book of our business law journal, Transactions: The Tennessee Journal of Business Law.  I also am always so proud of, and interested to hear, the commentary of my colleagues and students.  This year was no exception.

In the future, I will post more about the article that I presented.  But I will offer a teaser here, accompanied by the above screen shot from the symposium.  (It was "Big Orange Friday" on our campus.  The orange had to be worn.  Go Vols!)

The title of my presentation and article is Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.  A brief excerpt from the continuing legal education handout for the symposium presentation is set forth below (footnotes omitted).

[T]his presentation urges that competent, complete legal counsel on choice-of-entity for nonprofit business undertakings should extend beyond advising clients on which form of business entity best fits their needs and wants, if any. For many small business ventures that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended (“IRC”), as religious, charitable, scientific, literary, educational, or other eligible organizations under Section 501(c)(3) of the IRC . . . , the time and expense of organizing, qualifying, managing, and maintaining a tax-exempt nonprofit corporation under state law may be daunting (or even prohibitive). Moreover, the structures imposed by business entity law may not be needed or wanted by the founders or promoters of the venture. Yet, there may be distinct advantages to entity formation and federal tax qualification that are not available (or not as easily available) to unincorporated not-for-profit business projects. These may include, for example, exculpation for breaches of performative fiduciary duties and limitations on personal liability for business obligations available to participants in nonprofit corporations under state statutory law and easier clearance of or compliance with initial and ongoing requirements for tax-exempt status under federal income tax law.

The described conundrum—the prospect that founders or promoters of a nonprofit project or business may not have the time or financial capital to fully form and maintain a business entity that may offer substantial identifiable advantages—is real. Awareness of this challenge can be disheartening to lawyer and client alike. Fortunately, at least for some of these nonprofit ventures, there is a third option—fiscal sponsorship—that may have contextual benefits. This presentation offers food for thought on the benefits of fiscal sponsorship, especially for arts and humanities endeavors.

Again, I will have more to say about this later, once the article is fully crafted.  But your thoughts on fiscal sponsorship--and examples, stories, and the like--are welcomed in the interim as I continue to work through the article.

October 4, 2021 in Ann Lipton, Conferences, Joan Heminway, Lawyering, Nonprofits, Research/Scholarhip | Permalink | Comments (0)

Friday, September 24, 2021

Ten Ethical Traps for Business Lawyers

I'm so excited to present later this morning at the University of Tennessee College of Law Connecting the Threads Conference today at 10:45 EST. Here's the abstract from my presentation. In future posts, I will dive more deeply into some of these issues. These aren't the only ethical traps, of course, but there's only so many things you can talk about in a 45-minute slot. 

All lawyers strive to be ethical, but they don’t always know what they don’t know, and this ignorance can lead to ethical lapses or violations. This presentation will discuss ethical pitfalls related to conflicts of interest with individual and organizational clients; investing with clients; dealing with unsophisticated clients and opposing counsel; competence and new technologies; the ever-changing social media landscape; confidentiality; privilege issues for in-house counsel; and cross-border issues. Although any of the topics listed above could constitute an entire CLE session, this program will provide a high-level overview and review of the ethical issues that business lawyers face.

Specifically, this interactive session will discuss issues related to ABA Model Rules 1.5 (fees), 1.6 (confidentiality), 1.7 (conflicts of interest), 1.8 (prohibited transactions with a client), 1.10 (imputed conflicts of interest), 1.13 (organizational clients), 4.3 (dealing with an unrepresented person), 7.1 (communications about a lawyer’s services), 8.3 (reporting professional misconduct); and 8.4 (dishonesty, fraud, deceit).  

Discussion topics will include:

  1. Do lawyers have an ethical duty to take care of their wellbeing? Can a person with a substance use disorder or major mental health issue ethically represent their client? When can and should an impaired lawyer withdraw? When should a lawyer report a colleague?
  2. What ethical obligations arise when serving on a nonprofit board of directors? Can a board member draft organizational documents or advise the organization? What potential conflicts of interest can occur?
  3. What level of technology competence does an attorney need? What level of competence do attorneys need to advise on technology or emerging legal issues such as SPACs and cryptocurrencies? Is attending a CLE or law school course enough?
  4. What duties do lawyers have to educate themselves and advise clients on controversial issues such as business and human rights or ESG? Is every business lawyer now an ESG lawyer?
  5. What ethical rules apply when an in-house lawyer plays both a legal role and a business role in the same matter or organization? When can a lawyer representing a company provide legal advice to an employee?
  6. With remote investigations, due diligence, hearings, and mediations here to stay, how have professional duties changed in the virtual world? What guidance can we get from ABA Formal Opinion 498 issued in March 2021? How do you protect confidential information and also supervise others remotely?
  7. What social media practices run afoul of ethical rules and why? How have things changed with the explosion of lawyers on Instagram and TikTok?
  8. What can and should a lawyer do when dealing with a businessperson on the other side of the deal who is not represented by counsel or who is represented by unsophisticated counsel?
  9. When should lawyers barter with or take an equity stake in a client? How does a lawyer properly disclose potential conflicts?
  10. What are potential gaps in attorney-client privilege protection when dealing with cross-border issues? 

If you need some ethics CLE, please join in me and my co-bloggers, who will be discussing their scholarship. In case Joan Heminway's post from yesterday wasn't enough to entice you...

Professor Anderson’s topic is “Insider Trading in Response to Expressive Trading”, based upon his upcoming article for Transactions. He will also address the need for business lawyers to understand the rise in social-media-driven trading (SMD trading) and options available to issuers and their insiders when their stock is targeted by expressive traders.

Professor Baker’s topic is “Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis.” Professor Baker will provide an overview of the regulation of Texas’ electric power system and the severe outages in February 2021, explaining why Texas is on the forefront of challenges that will grow more prominent as the world transitions to cleaner energy. Next, it explains competing electric power business models and their regulation, including why many had long viewed Texas’ approach as commendable, and why the revealed problems will only grow more pressing. It concludes by suggesting benefits and challenges of these competing approaches and their accompanying regulation.

Professor Heminway’s topic is “Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.” Professor Heminway will discuss how for many small business projects that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended, the time and expense of organizing, qualifying, and maintaining a tax-exempt nonprofit corporation may be daunting (or even prohibitive). Yet there would be advantages to entity formation and federal tax qualification that are not available (or not easily available) to unincorporated business projects. Professor Heminway addresses this conundrum by positing a third option—fiscal sponsorship—and articulating its contextual advantages.

Professor Moll’s topic is “An Empirical Analysis of Shareholder Oppression Disputes.” This panel will discuss how the doctrine of shareholder oppression protects minority shareholders in closely held corporations from the improper exercise of majority control, what factors motivate a court to find oppression liability, and what factors motivate a court to reject an oppression claim. Professor Moll will also examine how “oppression” has evolved from a statutory ground for involuntary dissolution to a statutory ground for a wide variety of relief.

Professor Murray’s topic is “Enforcing Benefit Corporation Reporting.” Professor Murray will begin his discussion by focusing on the increasing number of states that have included express punishments in their benefit corporation statutes for reporting failures. Part I summarizes and compares the statutory provisions adopted by various states regarding benefit reporting enforcement. Part II shares original compliance data for states with enforcement provisions and compares their rates to the states in the previous benefit reporting studies. Finally, Part III discusses the substance of the benefit reports and provides law and governance suggestions for improving social benefit.

All of this and more from the comfort of your own home. Hope to see you on Zoom today and next year in person at the beautiful UT campus.

September 24, 2021 in Colleen Baker, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Ethics, Financial Markets, Haskell Murray, Human Rights, International Business, Joan Heminway, John Anderson, Law Reviews, Law School, Lawyering, Legislation, Litigation, M&A, Management, Marcia Narine Weldon, Nonprofits, Research/Scholarhip, Securities Regulation, Shareholders, Social Enterprise, Teaching, Unincorporated Entities, White Collar Crime | Permalink | Comments (0)

Thursday, September 23, 2021

Fifth Annual Business Law Prof Blog Symposium - Tomorrow on Zoom!

Screen Shot 2021-09-23 at 5.04.49 PM

Although we had hoped to be together again in person this year, our annual gathering of bloggers from the BLPB is back on Zoom again this year.  [sigh]  The good news for all of you readers is that you do not have to travel to Knoxville, TN to "see" and hear us!  This year's edition of "Connecting the Threads" will be held tomorrow (Friday) from 9:30 am to 4:30 pm, Eastern time.  The full schedule is available here and this is the Zoom connection for the entire day.

Here is the basic schedule, so you can get a quick lay of the land:

Schedule of Events

  • Registration / 9 - 9:30 a.m.
     
  • Introduction / 9:30 - 9:45 a.m.

    Interim Dean Doug Blaze

  • Panel I - Insider Trading in Response to Expressive Trading / 9:45 - 10:30 a.m.

    John Anderson

  • Panel II - Ten Ethics Traps for Business Lawyers / 10:30 - 11:30 a.m.

    Marcia Narine Weldon

  • Break / 11:30 - 11:45 a.m.
  • Panel III - Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis / 11:45 - 12:30 p.m.

    Colleen Baker and James Coleman

  • Lunch / 12:30 - 1 p.m.
     
  • Keynote Speaker - Securities Regulation and the Supreme Court / 1 - 1:45 p.m.

    Adam Pritchard

  • Panel V - Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation / 1:45 - 2:30 p.m.

    Joan Heminway

  • Break / 2:30 - 2:45 p.m.
     
  • Panel VI - An Empirical Analysis of Shareholder Oppression Disputes / 2:45 - 3:30 p.m.

    Douglas Moll

  • Panel VII - Enforcing Benefit Corporation Reporting / 3:30 - 4:15 p.m.

    Haskell Murray

  • Closing / 4:15 - 4:30 p.m.
 

Each panel also features brief commentaries from a member of the UT Law faculty (full-time or adjunct) and a current UT Law student.  We hope that many of you can join us for all or part of the day to listen in.  Please contact me if you have any question.

[Editor's Apologia: I had planned to post on tomorrow's symposium earlier in the week.  But Monday (my normal blogging day for the BLPB) came and went; Tuesday and Wednesday, too.  At least I have a decent excuse.  I have somehow strained my shoulder and this is the first day this week that I can type comfortably with my right hand.  I finally gave in and saw a doctor on Tuesday evening.  No broken bones, but the mobility in my right upper arm is very limited, and movement in some directions and in some tasks is painful.  I am taking prednisone and a muscle relaxant (the latter only when needed) and the pain is significantly reduced unless I try to move my arm up or back.  That is a huge improvement over where I was on Tuesday.  More news when I have it.  Physical therapy starts Monday.  I am not looking forward to that!]

September 23, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)

Monday, September 13, 2021

AALS Section on Transactional Law & Skills - Extended Submission Deadline

The Section on Transactional Law & Skills has extended its deadline for paper proposals for its program at the 2022 Annual Meeting to Friday, September 17. Submissions can be sent directly to Megan Shaner at mshaner@ou.edu. I cribbed the following from a message she wrote to the section membership last week.  (Thanks, Megan!)

The topic of the section's program this year is "Transactional Lawyering at the Intersection of Business and Societal Well-Being" and, according to the preliminary program for the conference, the program is tentatively scheduled for 11 a.m. to 12:15 p.m. on Friday, January 7, 2022. The first part of the program focuses on how to incorporate ESG issues and impact topics across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses. The second part of the program consists of scholarly presentations to be selected from the Call for Papers set forth below. If you incorporate ESG, corporate social responsibility, impact investing or governance, or related topics into your scholarship in any way, you should consider submitting your paper in response to the Call for Papers.

CALL FOR PAPERS
AALS SECTION ON TRANSACTIONAL LAW AND SKILLS
Transactional Lawyering at the Intersection of Business and Societal Well-Being
2022 AALS Annual Meeting

The AALS Section on Transactional Law and Skills is pleased to announce a call for papers for its program, “Transactional Lawyering at the Intersection of Business and Societal Well-Being,” at the 2022 annual meeting of the AALS. This program will explore how ESG and broader societal considerations are increasingly influencing the flow of capital in the global marketplace, corporate governance planning, merger and acquisition activity and structures, as well as other transactional topics. The events of 2020, for example, have shifted the focus of business entity governance, equality and access in securities markets, and transactional planning and deal structures in significant and lasting ways – questioning whether current structures and systems are working well for all stakeholders and society more broadly. COVID-19 and social movements have broadened ESG efforts to include previously overlooked issues such as human resource policies (e.g., sick leave, parental leave), workplace health and safety, supply chain management, continuity and emergency planning, and diversity and inclusion hiring practices and training. In addition, proposals are being considered (and some adopted) to require gender diversity on boards of directors as well as additional disclosures related to human capital. This program will look at how transactional lawyering in a variety of contexts can address/respond to recent calls for increased consideration and balancing of ESG issues and impact topics.

The annual meeting will be held virtually from January 5-9, 2022, with the Section on Transactional Law and Skills panel scheduled for Friday, January 7, from 11 a.m.-12:15 p.m. (EST). In addition to the paper presentation, the program will feature a panel focusing on how to incorporate these topics and issues across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses.

Submission Information:

The Section on Transactional Law and Skills invites any full-time faculty member of an AALS member school who has written an unpublished paper, or who is interested in writing a paper on this topic, to submit a 1 or 2-page proposal or full draft to Megan Shaner, Chair of the Section, at mshaner@ou.edu on or before September 17, 2021. Papers accepted for publication but that will not yet be published as of the 2022 meeting are also welcome. Please remove the author’s name and identifying information from the submission and instead include the author’s name and
contract information in the submission e-mail.

After review and selection by the Section’s Executive Committee, the authors of the selected papers will be notified in mid-September 2021. The Call for Paper presenters will be responsible for paying their registration fee for the conference.

Any inquiries about the Call for Papers should be submitted to the Section Chair Megan Shaner, University of Oklahoma College of Law, at mshaner@ou.edu or (405) 325-6619.

On behalf of the Section on Transactional Law and Skills

Chair: Megan W. Shaner (University of Oklahoma)
Chair-Elect: Eric Chaffee (The University of Toledo)
Past Chair: Matthew Jennejohn (Brigham Young University)

Members of the Executive Committee:

Andrea Boyack (Washburn University)
Patience Crowder (University of Denver)
Cathy Hwang (University of Virginia)
Jay Kesten (Florida State University)
Praveen Kosuri (University of Pennsylvania)
Greg Shill (University of Iowa)

September 13, 2021 in Call for Papers, Conferences, Joan Heminway, Research/Scholarhip, Social Enterprise | Permalink | Comments (0)

Monday, August 23, 2021

AALS Section on Securities Regulation: CFP Deadlines Extended

Please note the deadline extensions on the following previously posted calls for papers for the 2022 AALS Annual Meeting.

+     +     +     +     +

Section on Securities Regulation: Open Call for Papers

The AALS Section on Securities Regulation invites submissions for its session at the 2022 annual meeting of the AALS. The annual meeting will be held virtually from January 5-9, 2022, with Section on Securities Regulation panel scheduled for Saturday, January 8 from 12:35-1:50pm. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. The submission should relate to the following session description:

Equality and Access in Securities Markets

Recent years have seen increasing attention to issues of equality and access in securities markets. Nasdaq has proposed requiring listed company boards to include at least one female member and one member from an underrepresented minority. The SEC recently amended Regulation S-K to add human capital as a broad topic for disclosure, but declined to require companies to divulge diversity data. In addition to issues relevant to regulated companies, gaps remain in the gender and racial diversity of the SEC’s own commissioners and staff. More broadly, equity and access in securities markets have expanded due to Robinhood and similar modalities, as exemplified by the “meme stock” phenomenon. This panel will provide a forum for securities regulation scholars to discuss the reforms on the table as well as others that require more attention.

By August 31, 2021, please send your submission to Jackie Walters at jljamiso@illinois.edu. The authors of the selected papers will be notified in September 2021. In addition to the proposal submission please also indicate (a) whether you are tenured, pre-tenure, or other; and (b) whether you are in your first five years as a law professor (including any years spent as a fellow or visiting assistant professor).

Section on Securities Regulation: Emerging Voices in Securities Regulation

The AALS Section on Securities Regulation invites submissions from junior scholars (defined as those who have been in a tenure-track position for 7 or fewer years) for its Emerging Voices session at the 2022 AALS annual meeting. The session will be held virtually on Saturday, January 8 from 4:45-6:00 p.m. (EST). The session brings together junior and senior securities regulation scholars for the purpose of providing junior scholars feedback on their scholarship and helping them prepare their work for submission for publication. Junior scholars’ presentations of their drafts will be followed by comments from senior scholars and further audience discussion.

If you would like to present your draft as a junior scholar, by August 31, 2021, please send your draft to Professor Jeremy McClane at jmcclane@illinois.edu. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. The authors of the selected papers will be notified by mid-September 2021. 

If you would like to volunteer to provide feedback as a more senior scholar, please let Professor McClane know, at jmcclane@illinois.edu, by August 31, 2021. Thank you in advance for your generosity.

On behalf of the Section on Securities Regulation

Chair: Jeremy McClane (University of Illinois)
Chair-Elect: Kristin N. Johnson (Emory University)

Member of the Executive Committee:
Benjamin Edwards (University of Nevada, Las Vegas)
Gina-Gail S. Fletcher (Duke University)
Arthur B. Laby (Rutgers University)
Usha R. Rodrigues (University of Georgia)
Andrew Tuch (Washington University in St. Louis)
Yesha Yadav (Vanderbilt University)

August 23, 2021 in Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Sunday, August 22, 2021

February 2022 Virtual Symposium on Sustainability and Call for Papers

VIRTUAL SYMPOSIUM and SPECIAL ISSUE

CALL FOR PAPERS

The Changing Faces of Business Law and Sustainability

The Business and Human Rights Initiative at the University of Connecticut, the Center for the Business of Sustainability at Penn State University’s Smeal College of Business, the College of Business at Oregon State University, and the American Business Law Journal (ABLJ) are pleased to invite submissions related to the role of business law to support and enhance firm and societal engagement on sustainability. This theme is consistent with 2020 AACSB Standard 9.

The COVID-19 pandemic, climate change, and public protests for social justice—as well as whole host of other emerging risks and threats to the environment and society—have generated newfound questions about the appropriate roles of legal rules, principles, and institutions towards promoting sustainable and broad-based value through business. Legal scholarship provides fertile ground for identifying the definitions, conflicts, contradictions, barriers, and limitations of business sustainability. It also provides promise for generating solutions to these challenges that accord with the rule of law, fairness, and equity while furthering the interests of firms and impacted communities. Effective scholarship in this regard requires a perspective that transcends any single area of law, regulatory domain, industry, or jurisdiction.

We seek manuscripts related to any areas of law applicable to the ways in which sustainability is, or should be, addressed by business. Appropriate topics include, but are not limited to:

· Legal structures, opportunities, or regulatory mechanisms to incentivize or increase sustainability in business

· Private and hybrid public-private governance mechanisms related to sustainability and business

· Incentive systems for technological and commercial innovation in sustainability

· Regulation of ESG investing, reporting, and risk management practices

· Critiques of legal and economic structures that fuel unsustainable business practices

· The implications of diversity, equity, and inclusion practices by business for sustainability

· The intersections of business sustainability with human rights and/or globalization

· Issues related to the intersection of business, sustainability, and environmental justice, social justice, and/or structural racism

Complete information about the Symposium on Sustainability and Call for Papers is here: Download ABLJ 2022 Symposium Call for Papers

August 22, 2021 in Call for Papers, Colleen Baker, Conferences | Permalink | Comments (0)

Wednesday, June 30, 2021

Call for Papers - AALS Section on Transactional Law and Skills

CALL FOR PAPERS

AALS SECTION ON TRANSACTIONAL LAW AND SKILLS

Transactional Lawyering at the Intersection of Business and Societal Well-Being

2022 AALS Annual Meeting

The AALS Section on Transactional Law and Skills is pleased to announce a call for papers for its program, “Transactional Lawyering at the Intersection of Business and Societal Well-Being,” at the 2022 annual meeting of the AALS. This program will explore how ESG and broader societal considerations are increasingly influencing the flow of capital in the global marketplace, corporate governance planning, merger and acquisition activity and structures, as well as other transactional topics. The events of 2020, for example, have shifted the focus of business entity governance, equality and access in securities markets, and transactional planning and deal structures in significant and lasting ways – questioning whether current structures and systems are working well for all stakeholders and society more broadly. COVID-19 and social movements have broadened ESG efforts to include previously overlooked issues such as human resource policies (e.g., sick leave, parental leave), workplace health and safety, supply chain management, continuity and emergency planning, and diversity and inclusion hiring practices and training. In addition, proposals are being considered (and some adopted) to require gender diversity on boards of directors as well as additional disclosures related to human capital. This program will look at how transactional lawyering in a variety of contexts can address/respond to recent calls for increased consideration and balancing of ESG issues and impact topics.

The annual meeting will be held virtually from January 5-9, 2022, with the Section on Transactional Law and Skills panel scheduled for Friday, January 7, from 11 a.m.-12:15 p.m. (EST). In addition to the paper presentation, the program will feature a panel focusing on how to incorporate these topics and issues across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses.

Complete call is here: Download AALS Section on Transactional Law & Skills CFP

June 30, 2021 in Colleen Baker, Conferences | Permalink | Comments (0)

Monday, June 21, 2021

Yoga, Materiality, and the 2021 National Business Law Scholars Conference

So much going on today . . . .   Rather than choose one focus, I will offer three.  Each is near and dear to my heart in one way or another.

Happy International Yoga Day to all.  This year's theme is "Yoga for well-being" or "Yoga for wellness." The Hindustan Times reports: "On International Yoga Day on Monday, Prime Minister Narendra Modi said yoga became a source of inner strength for people and a medium to transform negativity to creativity amid the coronavirus pandemic." The United Nations's website similarly adds that:

The message of Yoga in promoting both the physical and mental well-being of humanity has never been more relevant. A growing trend of people around the world embracing Yoga to stay healthy and rejuvenated and to fight social isolation and depression has been witnessed during the pandemic. Yoga is also playing a significant role in the psycho-social care and rehabilitation of COVID-19 patients in quarantine and isolation. It is particularly helpful in allaying their fears and anxiety.

Yes!  I am so grateful for yoga, including asanas and meditation, and other mindfulness practices at this time--for their positive effects on me, my faculty and staff colleagues, and my students.  👏🏼  Namaste, y'all.

I know from her Twitter feed today that co-blogger Ann Lipton will have much to say on today's publication of the U.S. Supreme Court's opinion in Goldman Sachs Group, Inc., at al. v. Arkansas Teacher Retirement System, et al.  I will just note here two of the more prominent statements made by the Court in this Section 10(b)/Rule 10b-5 class action.  They relate to the common ground between materiality determinations (a doctrinal love of mine and Ann's), which are matters for resolution at trial, and the establishment of a price impact of alleged misstatements and omissions, which is a matter for consideration at the class certification stage.  The Court first concurs with the parties' agreement "that courts may assess the generic nature of a misrepresentation at class certification even though it also may be relevant to materiality, which Amgen reserves for the merits."  Then, in footnote 2, the Court states the following:

We recognize that materiality and price impact are overlapping concepts and that the evidence relevant to one will almost always be relevant to the other. But “a district court may not use the overlap to refuse to consider the evidence.” In re Allstate, 966 F. 3d, at 608. Instead, the district court must use the evidence to decide the price impact issue “while resisting the temptation to draw what may be obvious inferences for the closely related issues that must be left for the merits, including materiality.” Id., at 609. 

I am not a litigator, but it would seem to be a challenge to thread that needle . . . .

Finally, I want to note the successful conclusion of the 2021 National Business Law Scholars Conference last Friday.  Despite our best efforts, there were a few technical glitches, fixed by the University of San Diego School of Law, the University of Southern California Gould School of Law, and the University of Michigan Ross School of Business, each of which assumed unplanned roles as meeting hosts for one of our sessions.  (Thanks, again, to Jordan Barry, Mike Simkovic, and Will Thomas for making those arrangements.)  But the range and quality of presenters and projects was impressive, and the sense of community among the attendees was--as it always is--a highlight of this conference.  The conference tends to bring together a spectrum of international business law teacher/scholars at different stages of their academic careers, all of whom contribute to the productive, supportive, ethos of the event.  My business law colleague George Kuney described the conference well in his opening remarks.

I am grateful to so many at UT Law--including especially George (who directs our business law center) and the faculty and staff who pitched in to host virtual meeting rooms with me.  Their support was invaluable in hosting a virtual version of the conference two years in a row.  I also want to share appreciation for the members of the National Business Law Scholars Conference planning committee (a shout-out to each of you, Afra, Tony, Eric, Steven, Kristin, Elizabeth, Jeff, and Megan) for their collaboration and encouragement, as well as the abundant trust they placed in me these past two years. 

"Alone we can do so little; together we can do so much." ~ Helen Keller

 

June 21, 2021 in Conferences, Joan Heminway, Securities Regulation, Wellness | Permalink | Comments (0)

Monday, June 14, 2021

National Business Law Scholars Conference - This Thursday & Friday!

The twelfth annual (and second virtual) National Business Law Scholars Conference (NBLSC) is being hosted by The University of Tennessee College of Law on Zoom this Thursday and Friday, June 17 and 18.  The schedule for the two days of proceedings (fashioned painstakingly and patiently by planning committee member Eric Chaffee) can be found here.  Zoom links for each session are included.

This year's conference boasts, in addition to the NBLSC's flagship scholarly paper panels, a Thursday plenary session at 1:00 pm (Eastern Daylight Time) entitled "Beyond Shareholder Primacy."  The session focuses on Matt Bodie and Grant Hayden's new book, Reconstructing the Corporation: From Shareholder Primacy to Shared Governance, which follows on their 2020 Boston University Law Review article "The Corporation Reborn: From Shareholder Primacy to Shared Governance."  The 2021 conference also features a later start time each day to be more inclusive of our West coast participants.

I join the rest of the planning committee (listed below) in looking forward to seeing many of you at the conference.  Please contact any of us with questions.

Afra Afsharipour (University of California, Davis, School of Law)
Tony Casey (The University of Chicago Law School)
Eric C. Chaffee (The University of Toledo College of Law)
Steven Davidoff Solomon (University of California, Berkeley School of Law)
Joan MacLeod Heminway (The University of Tennessee College of Law)
Kristin N. Johnson (Emory University School of Law)
Elizabeth Pollman (University of Pennsylvania Carey Law School)
Jeff Schwartz (University of Utah S.J. Quinney College of Law)
Megan Wischmeier Shaner (University of Oklahoma College of Law)

June 14, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)

Tuesday, June 1, 2021

Short Paper: The Benefits and Burdens of Limited Liability

I recently received the final version of my short article, "The Benefits and Burdens of Limited Liability," in Transactions: The Tennessee Journal of Business Law.  The article is based on some of my prior blog posts, as well as my presentation as part of the fourth annual Business Law Prof Blog symposium, Connecting the ThreadsIt was great event, as always, thanks to Joan and the whole crew at Tennessee Law, and it was my pleasure to be part of it.  

Here's the abstract: 

Law students in business associations and people starting businesses often think the only choice for forming a business entity is a limited liability entity like a corporation or a limited liability company (LLC). Although seeking a limited liability entity is usually justifiable, and usually wise, this Article addresses some of the burdens that come from making that decision. We often focus only on the benefits. This Article ponders limited liability as a default rule for contracts with a named business and considers circumstances when choosing a limited liability entity might not communicate what a business owner intends. The Article notes also that when choosing an entity, you get benefits, like limited liability, but burdens (such as need for counsel or tax consequences) also attach. It's not a one-way street. The Article closes by urging courts to consider both the benefits and burdens of an entity choice, especially in considering whether to uphold or disregard an entity, to help parties achieve some measure of certainty and equity.

The journal also has thoughtful and insightful commentary from Professor George Kuney (available here) and student Tyler Ring (here). 

 

 

June 1, 2021 in Conferences, Corporate Personality, Corporations, Joan Heminway, Joshua P. Fershee, Lawyering, LLCs, Partnership | Permalink | Comments (0)

Sunday, May 30, 2021

Reminder: Emory Law Conference - This Friday, Featuring Two BLPB Editors!

Grading done?  Join in for an engaged, energizing day with fellow business law profs to start the summer.

Grading not done?  This is sure to be a fun and enlightening distraction--better than house cleaning or laundry!

Not grading at all (you lucky ducky)?  Clear the decks of other impediments and come join us for what always is a super day filled with teaching tips and catalysts for scholarship and service.

+++++

REGISTER NOW! CONFERENCE IS JUNE 4th!

Emory Law's 7th biennial conference on the teaching of transactional law and skills is just a few days away! Register here and join us on Friday, June 4th. (Note: The Registration Fee for this one-day, online conference is $50.) A copy of the Conference schedule is posted here.

Connect with transactional law and skills educators across the country to ponder our theme - "Emerging from the Crisis: The Future of Law and Skills Education." You'll hear illuminating keynote addresses from three leaders in our field - Joan MacLeod Heminway, Marcia Narine Weldon, and Robert J. Rhee. And you'll participate in exciting presentations and try-this exercises designed to help us all become better teachers.

At day's end, we'll hold a Vision Workshop to synthesize our vision for the future. We'll also announce the winner of the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills, chosen from a group of illustrious nominees.

Special Note: The State Bar of Georgia has approved our conference for four CLE credits. We will provide attendance certificates for other states.

May 30, 2021 in Conferences, Joan Heminway, Lawyering, Marcia Narine Weldon, Teaching | Permalink | Comments (0)

Friday, May 28, 2021

Transactional Law, Skills, and Tech Competency

A reminder that Emory’s 2021 conference on transactional law and skills education is next Friday, June 4, 2021. It is virtual and registration is only $50. Register here.

Today, I'm submitting a guest post by Professor Jen Randolph Reise of Mitchell Hamline School of Law.  On Friday the 11th, I'll post my reflections from the Emory conference. Jen and I have bonded over our mission to bring practical skills into the classroom. Her remarks are  below:

I’m looking forward to hearing from many leaders in transactional legal education, including keynote speakers Joan MacLeod Heminway, Marcia Narine Weldon, and Robert J. Rhee on the theme of “Emerging from the Crisis: Future of Transactional Law and Skills Education.” Marcia will also be talking about her experience launching a transactional program at Miami, joined by three of her adjunct professors.

For my part, I’ll be presenting a Try-This session sharing how I have used exercises that integrate key technological resources and techniques into teaching doctrinal courses. I’ve written in this blog before in praise of practice problems, especially in the asynchronous or flipped classroom. These exercises take that one step farther by creating a self-paced, guided discovery and low-stakes practice of some skills and resources they will need to be transactional lawyers.

Specifically, participants in the Try-This session will be introduced to, and invited to try, three exercises I have created and used in Business Organizations and M&A:

1) a State Filings Exercise, which facilitates student discovery of their state’s business entity statutes and secretary of state filing site (for example, they learn how to form an LLC, and what information on LLCs is publicly accessible);

2) a Public Company Filings Exercise, which guides students through accessing and understanding the structure of public company SEC filings and how to retrieve pertinent information from EDGAR; and

3) a Working with Definitive Agreements Exercise, which introduces M&A students to drafting based on samples and from a term sheet, and requires them to learn to create a redline using Word’s Compare feature.

I’d love to have you attend on Friday and share your experiences and feedback. Or, feel free to contact me at jen.reise@mitchellhamline.edu or on Twitter @JensJourneyOn anytime for copies or to share ideas. As a transactional in-house lawyer, newly come to the academy, I’m passionate about students getting a foothold in the distinct perspective, skills, and technology they need to become successful transactional lawyers.

May 28, 2021 in Conferences, Joan Heminway, Law School, M&A, Marcia Narine Weldon, Teaching | Permalink | Comments (0)

Tuesday, May 25, 2021

Inaugural West Coast Bankruptcy Roundtable Call For Papers

USC Gould School of Law and Lewis & Clark Law School present the inaugural West Coast Bankruptcy Roundtable to be held February 3-4, 2022 in Los Angeles. Spearheaded by Robert Rasmussen, Michael Simkovic, and Samir Parikh, the Roundtable seeks to bring together experienced and junior scholars to discuss particularly noteworthy scholarship involving financial restructuring and business law. We seek scholars researching diverse topics and will be interested in interdisciplinary perspectives.

The Roundtable invites the submission of papers. Selected participants will receive a $1,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting.

Papers will be selected through a blind review process. Scholars are invited to submit a 3 - 5 page overview of a proposed paper. Submissions may be an introduction or excerpt from an existing unpublished paper, an extended abstract, or a general paper proposal. The submission should be anonymized, and – aside from general citations to the author’s previous work – all references to the author should be removed.

Please submit proposals by September 7, 2021. Invitations will be issued via email by October 8th. Working drafts of papers must be available for circulation to participants by January 11, 2022.

The Roundtable will start with a panel discussion on the Caesars bankruptcy case led by Sujeet Indap (co-author of The Caesars Palace Coup), Bruce Bennett (Jones Day), Ken Liang (former Head of Restructuring, Oaktree Capital), and Richard Davis (examiner in the Caesars bankruptcy case).

Proposals – as well as questions and concerns – should be directed to Samir Parikh at sparikh@lclark.edu.

May 25, 2021 in Bankruptcy/Reorganizations, Call for Papers, Conferences, Joan Heminway | Permalink | Comments (0)

Wednesday, May 12, 2021

National Business Law Scholars 2021 - Going Virtual, Again

The planning committee for the National Business Law Scholars Conference has again determined to host a virtual workshop this year (June 17-18). As is the custom, the workshop will consist of several keynote events and many, many moderated paper panels featuring the work of business law scholars who submitted proposals. We are working on finalizing the program now.  Each registrant for the 2021 conference who submitted an accepted proposal will receive a message with additional details. 

As you may recall, the conference this year was scheduled to be held at The University of Tennessee College of Law. We still do hope to hold a future National Business Law Scholars Conference at UT Law in Knoxville--perhaps next June. Stay tuned for more on that at a later time.  However, for those who have a yen to travel out my way this June during the conference (maybe your heart was set on it--or at least on getting out of the house), I am happy to host you in person.  While our campus has various restrictions that would need to be addressed for you to access our buildings, the surrounding area (Knoxville and East Tennessee generally, including the Great Smoky Mountains National Park) is rapidly returning to normalcy in most aspects.  Please let me know if you would like to visit our area and patch into the conference from Knoxville.

It looks like we may have a record number of attendees this year.  All of us on the planning committee (listed below) are grateful to all who registered.  We truly look forward to getting everyone together in person next year.  For many of us, this conference has a unique capacity to produce discussions that push our work forward.  While we understand (now, more than ever) that a virtual meeting is not a perfect substitute for an in-person event, we hope to make the conference engaging and useful to all.

Afra Afsharipour (University of California, Davis, School of Law)
Tony Casey (The University of Chicago Law School)
Eric C. Chaffee (The University of Toledo College of Law)
Steven Davidoff Solomon (University of California, Berkeley School of Law)
Joan MacLeod Heminway (The University of Tennessee College of Law)
Kristin N. Johnson (Tulane University Law School)
Elizabeth Pollman (University of Pennsylvania Carey Law School)
Jeff Schwartz (University of Utah S.J. Quinney College of Law)
Megan Wischmeier Shaner (University of Oklahoma College of Law)

May 12, 2021 in Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Tuesday, May 4, 2021

Celebrating and Honoring Roberta Karmel

Brooklyn Law School is hosting a two-day symposium next week to celebrate Roberta Karmel on her retirement. Here is the key part of the promotional blurb:

Join us to celebrate the career of Professor Roberta Karmel, the Centennial Professor of Law at Brooklyn Law School. Professor Karmel has been a pathbreaker in all senses of the word. She was the first female partner at the law firm of Rogers and Wells, the first female Commissioner of the U.S. Securities and Exchange Commission, and, for over 30 years, a teacher, mentor, colleague, and prominent scholar of business and securities law.

The symposium will be held virtually May 13-14 and will include a celebration of Professor Karmel’s career hosted by the Law School with tributes from the BLS community, alumni, and special guests.

Additional information about the program (including a link to the registration form) can be found here, and the agenda can be found here.  I am privileged to be a speaker at this event.  Roberta is a hero of mine and an inspiration to us all.  I hope that you can attend. 

Please note that the organizers have invited folks to leave a short anecdote regarding or tribute to Roberta.  The registration form offers a place to do that.  But I suspect that friend-of-the-BLPB Miriam Baer (who is a coordinator of the program) would be happy to take an email from you if that proves to be best.  Her email address is miriam.baer@brooklaw.edu.

May 4, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)

Monday, April 19, 2021

2021 Emory Law Conference - Extension of Deadlines for Proposals and Nominations

ANNOUNCEMENT

Proposal and Nomination Deadline Extension

It is our pleasure to announce that the proposal and award nomination deadlines for Emory Law’s seventh biennial transactional law and skills education conference have been extended to 5 pm EDT May 7, 2021. Registration is open for the conference, which will be held virtually on June 4, 2021.

Join us to celebrate and explore our theme – Emerging from the Crisis: The Future of Transactional Law and Skills Education with you. This year, we have reduced the registration fee to $50 per person. Secure your space today!

Take a moment to review the Call for Proposals and submit your proposal here. Also, please share the CFP with your colleagues who may not have attended the Conference before. Consider forwarding it to adjuncts and professors teaching relevant subjects. Can you also think of any teachers who might be interested in attending or presenting? The Call for Proposals deadline is 5 p.m. EDT May 7, 2021. We look forward to receiving your proposals.

Last, but certainly not least, at this year’s Conference, we will announce the winner of the second Tina L. Stark Award for Teaching Excellence. Would you like to nominate yourself or a colleague for this award? We are currently accepting nominations for the 2021 Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills. You may submit your nomination here. The nomination deadline is 5 p.m. Friday, May 7, 2021. Please see here for more information about the nomination and selection process.

If you have questions regarding any of this information, please contact Kelli Pittman, Program Coordinator, at kelli.pittman@emory.edu or 404.727.3382.

Sue Payne | Executive Director

Katherine Koops | Assistant Director

Kelli Pittman | Program Coordinator

April 19, 2021 in Call for Papers, Conferences, Joan Heminway | Permalink | Comments (0)

Monday, April 5, 2021

Reminder: 2021 National Business Law Scholars Conference - Last Call for Papers

Just a quick reminder that paper submissions for the National Business Law Scholars Conference for this year are due on or before April 9--this Friday.  The conference is scheduled for June 17-18, 2021 and is being hosted by The University of Tennessee College of Law in a hybrid or virtual format.  Submissions can be made through the conference website.

The full call for papers is posted here.  Feel free to leave comments or questions below.  Questions also can be directed to Eric Chaffee, the member of the planning committee in charge of program structuring logistics.

April 5, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)

Monday, March 22, 2021

2021 Emory Law Conference on the Teaching of Transactional Law and Skills

EmoryConference2021

Registration is Open!

It is our great pleasure to announce that registration is now open for the seventh biennial transactional law and skills education conference to be held virtually on June 4, 2021. Please join us to celebrate and explore our theme – Emerging from the Crisis: The Future of Transactional Law and Skills Education with you. This year, we have reduced the registration fee to $50 per person. Secure your space today!

Call for Proposals

Please take a moment to review the Call for Proposals and submit your proposal here. Also, please share the CFP with your colleagues who may not have attended the Conference before. Consider forwarding it to adjuncts and professors teaching relevant subjects. Can you also think of any teachers who might be interested in attending or presenting?

The Call for Proposals deadline is 5 p.m. April 15, 2021. We look forward to receiving your proposals.

Last, but certainly not least, at this year’s Conference, we will announce the winner of the second Tina L. Stark Award for Teaching Excellence. Would you like to nominate yourself or a colleague for this award? More information will be forthcoming regarding award eligibility and the nomination process.

If you have questions regarding any of this information, please contact Kelli Pittman, Program Coordinator, at kelli.pittman@emory.edu or 404.727.3382.

We look forward to “seeing” you in June!

Sue Payne | Executive Director

Katherine Koops | Assistant Director

Kelli Pittman | Program Coordinator

March 22, 2021 in Conferences, Joan Heminway, Teaching | Permalink | Comments (0)