Business Law Prof Blog

Upcoming Program of Potential Interest: Business and Family

This comes to us courtesy of Rachel Ezrol at Emory Law:

 

A Vulnerability and the Human Condition Initiative & Feminism and Legal Theory Workshop Project

A Workshop on Vulnerability at the Intersection of the Changing Firm and the Changing Family

When: October 16-17, 2015
Where: Emory University School of Law

 Registration is FREE for Emory students, faculty, and staff.

http://events.r20.constantcontact.com/register/event?oeidk=a07eb2ejk3i2e13daef&llr=7da4m4gab

From the Call for Papers:

Theories of dependency situate the limitations that attend the caregiving role in the construction of the relationship between work and family.  The “worker,” defined without reference to family responsibilities, becomes capable of autonomy, self-sufficiency, and responsibility through stable, full-time employment.  The privatized family, created by the union of spouses, is celebrated in terms of a self-sufficient ideal that addresses dependency within its own ranks, often through the gendered assumptions regarding responsibility for caretaking.   The feminist project has long critiqued these arrangements as they enshrine the inequality that follows as natural and inevitable and cloak the burdens of caretaking from examination or critique. The interpenetrations of the family and the firm have thus been understood as both multiple and wide-ranging. Both this system and the feminist critique of it, however, are associated with the construction of wage labor that arose with industrialization.  This workshop will apply the lens of vulnerability to consider the implications that arise from large scale changes in the structure of employment - changes that place this prior ideal of stable self-sufficiency beyond the reach of much of the population.

Issues For Discussion May Include:

This workshop will use vulnerability theory to explore the implications of the changing structure of employment and business organizations in the information age.  In considering these changes, we ask in particular:

• How does the changing relationship between employment and the family, and particularly the disappearance of the breadwinner capable of earning a stable “family wage,” affect our understanding of the family and its association with care and dependency?             
• How does the changing structure of employment and business organization affect possibilities for reform? What should be the role of a responsive state in directing these shifting flows of capital and care?
• How might a conception of the vulnerable subject help our analysis of the changing nature of the firm? What relationships does it bring into relief?
• What kind of legal subject is the business organization?  Are there relevant distinctions among business and corporate forms in regard to understanding both vulnerability and the need for resilience?
• How are business organizations vulnerable? The family? Have these vulnerabilities shifted over time, and what forms of resilience are available for both institutions to respond to new economic realities?
• What, if any, should be the role of international and transnational organizations in a neoliberal era? What is their role in building both human and institutional resilience?
• Is corporate philanthropy an adequate response to the retraction of state regulation? What forms of resilience should be regulated and which should be left to the ‘free market’?
• How does the Supreme Court's willingness to assign rights to corporate persons (Citizen's United, Hobby Lobby), affect workers, customers and communities?  The relationship between public and private arenas?

Rachel Ezrol
Program Coordinator | Emory University School of Law
1301 Clifton Road | Atlanta, GA 30322 | Room G500 Gambrell Hall
404-712-2420 (t) | 404-727-1973 (f)
Vulnerability and the Human Condition Initiative
Feminism and Legal Theory Project

Puchniak and Lan on "Independent Directors"

Last week I ventured a few blocks from Belmont's campus to our neighbor Vanderbilt University Law School for their conference on The Future of International Corporate Governance. 

One of the many interesting papers presented was Independent Directors in Singapore: Puzzling Compliance Requiring Explanation by Dan Puchniak and Luh Luh Lan, both of the National University of Singapore.

The entire paper is worth reading, but I want to share three take-aways with our readers.

1. "[O]nly a handful of jurisdictions [roughly 7%] have ever adopted the American concept of the independent director (i.e., where directors who are independent from management only— but not substantial shareholders—are deemed to be independent)." (pg. 6)

2. Singapore adopted an American-style definition of "independent director" in 2001, which did not include independence from substantial shareholders. Despite this weaker definition of independence in a jurisdiction with much more concentrated shareholding than the U.S., Singapore enjoyed relative success through "functional substitutes" that limited the private benefits of control. According to the authors, these "functional substitutes" include social relationships in Family Controlled Firms ("FCFs")" and legally imposed limits on the controlling government shareholder in Government Linked Companies ("GLCs"). 

3. Despite relative success with the American-style definition of "independent director," Singapore changed its definition "independent director" to require independence from management and 10%+ shareholders in their 2012 Corporate Code (effective at the start of 2015). This change seems prompted, at least in part, by scandals involving S-Chip companies (non-Singapore based companies that are listed on the Singapore Exchange.) The authors suggest that these S-Chip companies do not have the same "functional substitutes" as the FCFs and GLCs.

The article includes a helpful history of Singapore's recent corporate codes, and is a useful article for comparative corporate governance research. I do wonder if the "functional substitutes" explain quite as much as the authors suggest, but I highly recommend the article, especially for those interested in international corporate law.  

The Business Case for Obergefell (?)

We here in Tennessee took a strong interest in the decision in Obergefell v. Hodges, since one of the cases being decided was from Tennessee (Tanco v. Haslam). We at The University of Tennessee were especially interested. The plaintiffs in the Tanco case are University of Tennessee faculty members at the College of Veterinary Medicine, located on our adjacent sister campus (for The University of Tennessee Institute of Agriculture) here in Knoxville. As East Tennessee awaited the Supreme Court's decision--and in the aftermath of the opinion's release, the press sought for and found many angles on the case.

Of interest to me, as a business lawyer, was the interaction of the case with local business--existing and potential. As with most things, there were (and are) two sides to this coin. Locally, and nationally, both have gotten some play. For opportunistic business lawyers, both sides present advisory possibilities.

Some press time was spent on what I call the "Sweet Cakes" issue (covered by blogs as well as the traditional press, with my favorite law coverage coming from Eugene Volokh over at The Volokh Conspiracy, including this post). Sweet Cakes is, of course, the now-famous family-owned-and-run Oregon wedding cake purveyor that expressly refused to sell wedding cakes to same-sex couples. Eugene outlines a number of interesting legal issues in his posts, and regardless of whether you agree with his conclusions, you can see there is much lawyering involved in the business decisions of those who are intent on being conscientious objectors to same-sex marriage through their business activities. In Tennessee, the Obergefell decision has been famously followed with reports of anti-same-sex marriage signage, like this press item on a sign posted by the owner/proprietor of a hardware store.

The other side of the coin is, of course, the new opportunities that same-sex marriage creates for existing businesses and entrepreneurs. In the run-up to the Supreme Court's ruling, The Tennessean reported that "[o]pening marriage to same-sex couples would yield an additional $36.7 million in spending in Tennessee in three years as more than 5,400 same-sex weddings are expected to be held in the state during that period, according to estimates from the Williams Institute, a think tank at UCLA Law dedicated to sexual orientation and gender identity research." And after the decision, the Nashville Business Journal reiterated the message. New businesses formed to take advantage of this new market for marriages in the state will need--you guessed it--lawyers!  Since Gatlinburg--in the Smoky Mountains just a stone's throw from Knoxville--is a wedding destination, our end of the state should see its fair share of that "action," assuming the business environment is welcoming . . . .  This article indicates there may be some businesses in that part of the state that are willing to participate in same-sex weddings.

So, as with other legal changes of any magnitude, we may conceptualize Obergefell as a full-opportunity-for-lawyers act, and those opportunities will likely enure to business lawyers as well as others.

 

Business Associations in Real Life

I’ve always been eager to do pro bono work. I went to law school with the intent of helping the indigent upon graduation, but then with a six-figure debt load, I went to BigLaw in New York and Miami, and then corporate America so that I could pay that debt off. But even as an associate and as in house counsel, I dutifully accepted pro bono cases. As a relatively new academic, I paid my way out of pro bono for the first couple of years as Florida allows and assuaged my guilt with the knowledge that my payments were going to fund the local legal aid office.

This year, as a condition of attending a family law CLE for free, I volunteered to take a case. I’ve devoted over 70 hours to it thus far, and we still aren’t finished even after today’s marathon 6.5 hour hearing dealing with a motion for contempt and enforcement, modification of alimony and child support, a QDRO (qualified domestic relations order), and a house in foreclosure. The case was complicated even according to my seasoned family law practitioner friends.

As a former litigator and current BA professor, I found that my skills helped to make up for my lack of family law expertise. The techniques for cross examining witnesses, preparing for hearing, and introducing exhibits came flooding back. From a BA perspective, knowing to ask questions about the structure of the petitioner’s LLC, inquiring about charging orders, and dissecting the financial statements and corporate tax returns put me in a much better position to protect my client’s interests. I always tell my students on the first day of BA that they never know where they will end up as practitioners, and that in today’s market many of them will be in small firms taking on a number of kind of clients. I try to make them understand how BA can help them in practice areas that don’t seem directly related to business. Now, thanks to this pro bono case I can back that up with proof from my own experience. 

Social Enterprise, Brazilian Style

As a semi-closeted (now "out," I guess) foodie* and as a lover of "things Brazilian" (including Havaianas flip-flops and Veja sneakers, as well as churrascarias and caipirinhas), I read with interest a recent electronic newsletter headline about a thriving Brazilian chef.  I clicked through to the article.  I loved it even more than I had thought I would.

The article tells the story of an emergent Brazilian chef and restauranteur, Rodrigo Oliveira, and his flagship establishment (Mocotó), as promised.  That was great.  But that was not all.  The piece also told the story of a business run using a "holistic business model."

Today, Oliveira focuses on his employees as much as his customers. . . .  Oliveira pays for his employees’ part-time education. And their kids’ health care. And daily jiujitsu and yoga classes in the room he built upstairs. It’s a rarely encountered, holistic business model that contributes to his restaurant’s roaring success. . . .

 . . . 

Beneath the street level they’re boring out new dormitories for employees, for a quick nap and shower between jiujitsu, work and class. . . .

He also seems to be attentive to the greater local community beyond his customers and employees, preferring (to date) to expand his business locally rather than into larger metropolitan areas.  Good business?  Yes!  But it seems like more than that.  This business appears to have more than one bottom line!

Perhaps this is not a remarkable story, in the end.  Regardless, I wanted to share it.  Another Brazilian social enterprise, Ashoka, gets a lot of attention.**  But it's now clear to me that we can and should look beyond larger, storied examples of social entrepreneurship for other manifestations of social enterprise in action in Brazil.

 

*Yes, Steve Bainbridge, I do read  your wonderful posts on food and beverage pairings, including this one on my birthday earlier this month.

**Actually, much to my surprise, Ashoka is a U.S. organization that networks social enterprises across the globe.  So, it's not even Brazilian!  Having been in Rio teaching for a few summers and known of its presence there, I  assumed it was a Brazilian organization.  Please forgive the error.  Hat tip to co-blogger Haskell Murray for pointing it out to me.