Business Law Prof Blog

Belmont University - Nashville, TN - Assistant Professor and Program Director of Legal Studies

Belmont University (my employer) is seeking an Assistant Professor and Program Director of Legal Studies.

This professor will sit across campus from me, in our College of Liberal Arts and Social Sciences ("CLASS"), but I will likely interact with them because my Business Law 1 and 2 classes feature in the legal studies major, in addition to the business majors on campus. Happy to discuss Belmont University with anyone who may be interested. 

You can apply for the position (by March 15) here.  

ESG and Mrs. Thompson

“Human beings are far more complicated and enigmatic and ambiguous than languages or mathematical concepts.” – Iris Murdoch, The Sovereignty of Good Over Other Concepts (88)

During lunch yesterday, I attended a panel on “Measuring the S in ESG” at Belmont University's Hope Summit. The presenters made plenty of thoughtful comments, but I did not leave with much hope that we will be able to accurately measure "S" (social good). (The panel also seemed to confirm that most institutional investors view ESG data primarily as a tool to assist in achieving excellent financial performance, and most are not very interested in sacrificing profits, at least not for more than a few years.)

Later that afternoon, at a celebration for our neighborhood bus driver, I began to realize why I had so little hope for numerical scores of social good. Glendra Chapman Thompson has been driving the same bus route in our neighborhood for 32 years; she is only retiring now due to serious health issues. To say she is beloved is an understatement. Her joy emanates. She is patient, kind, and always smiling. She knows the name of every child, and you can sense that she cares deeply for each one. As Iris Murdoch writes in the opening quote, languages or mathematical concepts cannot capture Mrs. Thompson's essence.

Organizations are made up of human beings like Mrs. Thompson. While I think we could agree that Mrs. Thompson has created a massive amount of social good, we can’t capture her goodness in a number. Her love is irreducible.  

Attempting to measure social good is not only practically impossible, but the attempted measurement may also do harm. By attempting to reduce the impact of someone like Mrs. Thompson to a number, you would miss nuance and beauty. Further, by measuring and marketing social good you can cut against humility, which is often considered a cornerstone virtue.  

In the corporate context, there may be some ESG data that is helpful. (Wage data, for example, can be telling). But I think we should be honest about the many things we cannot measure. Stories and interviews may be needed, and the most significant social good may be the least flashy.  

Watch the video our school system did for Mrs. Thompson here. We often walk our children to school, but we would let them ride the bus the 800m to school on occasion simply to be in her caring presence. We will miss you Mrs. Thompson.

Limits, Running, and Teaching

More and more of my posts are focusing on running.

I promise to tie the post to teaching at the end, but I will put the text under the break to spare the uninterested. 

 

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The Wit and Wisdom of Tom N.

It was so wonderful to be able to host an in-person version of our "Connecting the Threads" Business Law Prof Blog symposium on Friday.  Connecting the Threads VI was, for me, a major victory in the continuing battle against COVID-19--five healthy bloggers and a live audience!  Being in the same room with fellow bloggers John Anderson, Colleen Baker, Doug Moll (presenting with South Carolina Law friend-of-the-BLPB Ben Means), and Stefan Padfield was truly joyful.  And the topics on which they presented--shadow insider trading, exchange trading in the cloud, family business succession, and anti-ESG legislation--were all so salient.  (I offered the abstract for my own talk on fiduciary duties in unincorporated business associations in last week's post.)  For a number of us, the topic of our presentations arose from work we have done here on the BLPB.

This year, as I noted in my post last week, we had a special guest as our luncheon speaker.  That guest would be known to many of you who are regular readers as "Tom N."  Tom has commented on our blog posts here on the BLPB for at least eight years.  (I rooted around and found a comment from him as far back as 2014.)  And Tom lives right here in Tennessee--in middle Tennessee, to be exact (closer to Haskell Murray than to me).  You can check out his bio here.  I am delighted that we were able to coerce Tom to give up a day of law practice to come join us at the symposium.

The title/topic for Tom's talk was "A Country Boy Busines Lawyer's View from Down in the Weeds."  The talk was, by design, a series of reflections on Tom's wide-ranging business law practice here in the state of Tennessee.  He tries to stay out of the courtroom, but by his own recounting, he has been in court in every county in the state--and Tennessee has 95 counties!  

In the end, Tom ended up offering a bunch of tips for law students and lawyers (both of whom were in attendance at the symposium).  I took notes during Tom's talk.  I have assembled them into a list below.  The key points are almost in the order in which they were delivered.  The stories that led to a number of these snippets of practical advice were priceless.  You had to be there.  Anyway, here is my list, together with a few editorial comments of my own.  Tom can feel free to add, correct, or dispute my notes in the comments!

• Take tax courses; if you fear they may hurt your GPA, audit them.
• Use all available resources to get more knowledge.  (Tom indicated that he bought Westlaw/used Practical Law as a solo practitioner for many years but recently gave it up.  he also noted that he regularly reads a number of the law prof blogs.)
• Be a bar association member and access the resources bar associations provide.  (Tom noted the excellent written materials published by the American Bar Association and the superior continuing legal education programs produced by the Tennessee Bar Association.)
• “You are going to learn to write in law school.”  (Tom advised focusing on clear, efficient writing—something I just emphasized with my Business Associations students last week.)
• Publish in the law.  (Tom shared his view that writing in the law improves both knowledge and analysis.)
• Expect the unexpected, especially in court (e.g., confronting in court transactions in pot-bellied pigs involving a Tennessee nonprofit).  And as a Corollary: "You can't make this stuff up."  The truth often is stranger than anything you could make up . . . .)
• In business disputes, never assume that an attorney was there on the front end.  (And yes, there was mention of the use by many unknowledgeable consumers of online entity formation services.)
• As a lawyer, be careful not to insert your own business judgment.  The business decision is the client's to make.
• Relatedly, let the business people hand you the framework of the deal.
• Along the same lines: "I am not paying people to tell me I can’t do it; I am paying people to tell me how to do it.”  (As heard by Tom from his father, a business owner-manager.  I think many of us have heard this or learned this—sometimes the hard way . . . .  I do try to prevent my students from learning that lesson the hard way by telling them outright.)
• And further: “You want to screw up a deal, put the lawyers in the center of it.”
• As a courtroom lawyer, know the judges and—perhaps more importantly—court clerks!
• Introduce yourself to everyone; they may be in a position to help you now or later (referencing the time he introduced himself, unknowingly, to John Wilder, the former Lt. Governor of Tennessee, who proceeded to introduce him to the local judges).
• Preparation for the bar exam is a curriculum of its own.  (That's close to a quote.)
• “A lot of things go more smoothly of you can get people talking.”  (Tom is more of a fan of mediation than arbitration.)
• Local rules of court may not be even published; sometimes, you just need to pick up the phone and call the court clerk.  (Another reason to get to know local court clerks!)
• Developing rapport with a judge is incredibly important to successful courtroom lawyering.
• Saying "I don’t know" does not hurt anything; in fact, it may help judges/others develop confidence in you and your integrity.
• Your law school grades will not matter after your first or second job.  Employers will be looking at you and your professional record, not your grades.

I am sure I missed something along the way.  Maybe my fellow bloggers in attendance will have something to add.  But this list alone is, imv, pure gold for students and starting lawyers.

Belmont University (Nashville, TN) - Assistant Professor of Business Systems and Analytics

We are hiring for an open Assistant Professor of Business Systems and Analytics position.

We will consider lawyers/law professors with data governance/privacy law experience/research.

I am on the hiring committee; feel free to reach out to me with any questions.

Position posting here.

Neighborliness, Ideals, and Business

(Some neighborhood children playing duck-duck-goose in our common space on July 4th.)

Recently, I finished philosopher David McPherson’s book The Virtues of Limits published by Oxford University Press this year. While I disagree with McPherson in certain areas, I highly recommend his book. I was reacting to the book with friends and the author before I even completed it. Perhaps it would have been best to refrain from commenting until I had finished, but it was a sign that the book was quite thought-provoking. The book was well-written and accessible, even to a non-philosopher like me. 

Given that this post only has a loose connection to business law, I will place the remainder of my thoughts below the page break. 

 

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Business Ethics in a Pandemic

Recently, I published a short piece for the Nashville Institute for Faith and Work (NIFW) about Business Ethics in a Pandemic.

As mentioned there, I have found teaching Business Ethics courses extremely challenging, but important. While law can be unclear, the boundaries of business ethics are even more vague. 

Perhaps it is simply because one of my younger brothers is an English professor, but I have been increasingly drawn to using literature in the teaching of business ethics as a way to grapple with the lack of clarity.

So far, I have used the fiction and poetry of Derrick Bell, Wendell Berry, Octavia Butler, Anton Chekov, Ross Gay, Ursula Le Guin, Cormac McCarthy, Mary Oliver, Ranier Maria Rilke, May Sarton, George Saunders, and Leo Tolstoy. Admittedly, this is a bit of an odd mix, but I think each of these writers have something important to say, even if I do not use each of them every semester. 

I remain open to other suggestions, and I plan to rotate in other authors as I continue to teach our business ethics course. (I also hope to write a few longer pedagogy articles in the law & literature and ethics & literature space). 

(Photo of Bass Lake in Blowing Rock, NC, which is perhaps my favorite place to read).

Strengthening or Destroying

As I have heard many other educators state, this was the toughest semester in my dozen years as a teacher. In my case, it was a mix of difficulties – teaching an overload, representing my colleagues in a heated faculty senate term, and balancing family responsibilities.

Among the most difficult parts was working with students who were struggling more than I have ever seen. To be clear, I was quite proud of my students this semester. Even with a Zoom option, most students showed up in person, engaged with the material, and worked hard. But several students communicated true hardships, and all students seemed to drag more than usual. Typically, I am a stickler for deadlines, but I pushed deadlines back in every class this semester, and I graded with more grace.

It has been a while since Colleen or I had a running post, but today’s track workout felt a bit like this semester. My plan for this morning was 1 mile at tempo pace followed by 8x400m at goal mile race pace. I haven’t been getting great sleep this week so the run started sluggishly. The warm-up and the tempo mile went fine, but I could tell they required more effort than normal. Starting the 400s, I refocused mentally, dug deeper, and came through faster than expected on the first one. On the second 400, however, my legs felt like logs, and I stepped off the track halfway through that rep. I knew 8x400 simply was not going to happen at the planned pace, and I reconfigured the workout on the fly to 800@3K pace, 2x200@800m race pace, 800@3K pace, 2x200@800m race pace. This maintained roughly the same amount of hard running, but in a format that I could actually complete.

Younger versions of myself would have seen this “busted workout” as weakness. And the line between strength building and destruction is a fine one. At times, you want to “go to the well” and “see God” in a workout. Training yourself to be mentally tough and push through pain can be a valuable part of the process. You do have to tear down somewhat in order to build. But an effort that is “too difficult” will hamper progress either through injury or through extreme fatigue that ruins other planned runs. Disgraced Nike Coach Alberto Salazar seemed to miscalculate in his training of Mary Cain and squandered her immense talent with too much intensity.

Obviously, both as a teacher and as an athlete, finding the right balance is difficult. Frankly, I may have been a bit too easy on my students and myself this past semester, but it did seem like we were moving into territory where holding strictly to plan would have been more destructive than stengthening.     

Kindness in Law

In 2013, acclaimed short-story writer George Saunders gave a commencement speech on kindness at Syracuse University. The speech went viral, the transcript landed on The New York Times blog, and the talk later became the basis of a book. 

The entire speech is well worth listening to, but the gist is Saunders saying: “What I regret most in my life are failures of kindness.”

Oxford English Dictionary defines “kindness” as “the quality of being friendly, generous, and considerate.”

When I think of the profession of law, “kindness,” “friendly,” “generous,” and “considerate” are sadly not among the first words that come to mind. “Analytical,” “bold,” “competitive,” “critical,” and “justice” were the first five words I would use to describe our field. 

As C.S. Lewis reportedly said, “love is something more stern and splendid than mere kindness,” but I am not sure love is ever less than kindness. There may be ways, as negotiation theory teaches us, to “be soft on the person, but hard on the problem.” We can tackle injustice with vigor, but be mindful of the people across the tables from us. 

Pre-pandemic, I put a real premium on “tough love” and preparing students for the rigors of practice. While I still think there is a place for the critical and exacting skills that law training tends to emphasize, I also think we would all do well to increase our focus on kindness.

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.

 

Belmont University - Nashville, TN - Assistant Professor of Creative & Entertainment Industries (Law)

Apply to be my (across-campus) colleague.

Belmont University is hiring for a tenure track professor position in our Mike Curb College of Entertainment & Music Business. One of the main courses taught would be Entertainment Law and Licensing. I've lived in a half-dozen different cities and Nashville is my favorite by far. And Belmont has been a fabulous place to work. I am on the hiring committee, so feel free to reach out to me with questions.  

Details here. 

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.

Campbell University - Norman A. Wiggins School of Law - Hiring

Campbell University's Norman A. Wiggins School of Law in Raleigh, NC is hiring for two positions. They are especially interested in candidates in the following areas: (1) business organizations, (2) commercial law (including sales law), and/or contracts. Details here or after the break. 

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Kelley School of Business at Indiana University (Bloomington) Hiring

Indiana University has a top-notch Business Law and Ethics department in their business school. I know a number of their professors and they would be fabulous colleagues.

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The Kelley School of Business at Indiana University in Bloomington seeks applications for a tenured/tenure-track position or positions in the Department of Business Law and Ethics, effective fall 2022. The candidate(s) selected will join a well-established department of 28 full- time faculty members who teach a variety of courses on legal topics, business ethics, and critical thinking at the undergraduate and graduate levels. It is anticipated that the position(s) will be at the assistant professor rank, though appointment at a higher rank could occur if a selected candidate’s record so warrants.

To be qualified, a candidate must have a J.D. degree with an excellent academic record and must demonstrate the potential for outstanding teaching and excellent scholarship in law and/or ethics, as well as the ability to contribute positively to a multicultural campus. Qualified applicants with expertise in any area of law and/or ethics will be considered, and we welcome candidates with teaching interests across a broad range of legal and ethical issues in business, as well as research methods or perspectives, that would contribute to the diversity of our department and help usadvance the Kelley School’s equity and inclusion initiatives and programs.

Candidates with appropriate subject-matter expertise and interest would have the opportunity to be involved on the leading edge of a developing interdisciplinary collaboration between the Kelley School of Business and the Kinsey Institute, the premier research institute on human sexuality and relationships and a trusted source for evidence-based information on critical issues in sexuality, gender, and reproduction. Such expertise, however, is not required to be qualified and considered for the position or positions.

Interested candidates should review the application requirements and submit their application materials at https://indiana.peopleadmin.com/postings/11252. Candidates may direct questions to: Professor Josh Perry, Department Chair (joshperr@indiana.edu), or Professor Tim Fort, Search Committee Chair (timfort@indiana.edu), both at Department of Business Law and Ethics, Kelley School of Business, Indiana University, 1309 E. 10th Street, Bloomington, IN 47405.

Application materials received by September 15, 2021 will be assured of consideration. However, the search will continue until the position(s) is/are filled.

Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment without regard to age, ethnicity, color, race, religion, sex, sexual orientation, gender identity or expression, genetic information, marital status, national origin, disability status or protected veteran status.

Sabbatical Reflections

“Set me free from the laziness that goes about disguised as activity when activity is not required of me, and from cowardice that does what is not demanded in order to escape sacrifice.” Thomas Merton, New Seeds of Contemplation (p. 47). 

Countless people reminded me how lucky I was to have my first sabbatical this past spring semester. 

And I acknowledge my good fortune, not only for the change of pace, but also for the break during a difficult year. 

But there was something uncomfortable about this past semester. I missed the classroom. I missed my colleagues and students. I missed my office. I missed my office calendar with multiple defined events scheduled throughout the day. I even missed my commute and faculty meetings. I missed--believe it or not--busyness. 

While I had an endless amount of research and childcare responsibilities last semester, I realized that this was likely the least scheduled I’ve been since early childhood. For the first time that I can remember, I wasn’t constantly thinking about the next thing on my calendar. 

I have always been fairly future oriented, and I think legal training makes you even more focused on the future. Good lawyers, especially good transactional lawyers, see around the corner, predict possible problems, and address these issues in contracts. Good lawyers tend to be planners with a high capacity for time management. 

Prior to my spring sabbatical, I felt like my mind was always about 15 minutes ahead of my body. I didn’t even really realize this until I slowed down some during the sabbatical. The sabbatical allowed me, for the first time in memory, to be fully present. This full presence only happened in spurts, and it was both glorious and terrifying. 

In Leaving the Future Behind, an essay in The Art of Loading Brush, Wendell Berry reminds us that the present is the only time we are alive. Preoccupation with the future, fearful worries or even hopeful wishes, threaten to draw us out of the present. And the present is where both good work and good relationships exist. 

Without a doubt, we must still make time for planning, but this sabbatical started teaching me to cabin that planning time and to live more in the present than in the future. In addition, making time for silence is something I hope to continue. (I spent a day of silence at a convent in Dickson, TN and became a bit more consistent with taking a few minutes of stillness in the early mornings). Regular observance of outward silence--which is quite difficult with 3 young children in the house--can help cultivate inner silence and can lead to the mental stillness needed to reside fully in the present. 

Social Enterprise Centers

In 2008, my university (Belmont University) was supposedly the first to offer a social entrepreneurship major. Since then, not only have the schools offering majors in social entrepreneurships grown, but many schools have created centers, institutes, or programs dedicated to the area. Below I try to gather these social enterprise centers in universities. The vast majority are in business schools, some are collaborative across campus, and a few are located in other schools such as law, social work, or design. A few have a specifically religious take on business and social good. Happy to update this list with any centers I missed. 

Lewis Institute at Babson https://www.babson.edu/academics/centers-and-institutes/the-lewis-institute/about/# 

Christian Collective for Social Innovation at Baylor https://www.baylor.edu/externalaffairs/compassion/index.php?id=976437

Center for Social Innovation at Boston College https://www.bc.edu/content/bc-web/schools/ssw/sites/center-for-social-innovation/about.html

Watt Family Innovation Center at Clemson https://www.clemson.edu/centers-institutes/watt/

Center for the Integration of Faith and Work at Dayton https://udayton.edu/business/experiential_learning/centers/cifw/index.php

CASE i3 at Duke https://sites.duke.edu/casei3/

Social Innovation Collaboratory at Fordham https://www.fordham.edu/info/23746/social_innovation_collaboratory

Social Enterprise & Nonprofit Clinic at Georgetown  https://www.law.georgetown.edu/experiential-learning/clinics/social-enterprise-and-nonprofit-clinic/

and Beeck Center for Social Impact and Innovation at Georgetown https://beeckcenter.georgetown.edu

Global Social Entrepreneurship Institute at Indiana https://kelley.iu.edu/faculty-research/centers-institutes/international-business/programs-initiatives/global-social-entrepreneurship-institute.html

Business + Impact at Michigan https://businessimpact.umich.edu

Social Enterprise Institute at Northeastern https://www.northeastern.edu/sei/

Center for Ethics and Religious Values in Business at Notre Dame https://cerv-mendoza.nd.edu

Skoll Centre for Social Entrepreneurship at Oxford https://www.sbs.ox.ac.uk/research/centres-and-initiatives/skoll-centre-social-entrepreneurship

Wharton Social Impact Iniviative at Penn https://socialimpact.wharton.upenn.edu/

and Center for Social Impact Strategy at Penn https://csis.upenn.edu

Faith and Work Initiative at Princeton https://faithandwork.princeton.edu/about-us

Center for Faithful Business at Seattle Pacific https://cfb.spu.edu

Center for Social Innovation at Stanford https://www.gsb.stanford.edu/faculty-research/centers-initiatives/csi

Social Innovation Initiative at Texas https://www.mccombs.utexas.edu/Centers/Social-Innovation-Initiative

Taylor Center for Social Innovation and Design Thinking at Tulane https://taylor.tulane.edu/about/

Social Innovation Cube at UNC https://campusy.unc.edu/cube/

Social Innovation at the Wond’ry at Vanderbilt https://www.vanderbilt.edu/thewondry/programs/social-innovation/

Program for Leadership and Character at Wake Forest: https://leadershipandcharacter.wfu.edu/#

Program on Social Enterprise at Yale https://som.yale.edu/faculty-research/our-centers/program-social-enterprise/programs

 

 

Reforming Meritocracy

Recently, I finished two similar books on problems with extreme meritocracy in the United States: The Tyranny of Merit by Harvard philosophy professor Michael Sandel and The Meritocracy Trap by Yale law professor Daniel Markovits. Law schools and entry level legal jobs tend to be intensely meritocratic. The more competitive entry level legal jobs rely very heavily on school rank and student class rank. Once in a private firm, billable hours seem to be the main metric for bonuses and making partner.

Sandel describes at least three problems with meritocracy: (1) people are not competing on an even playing field in the US "meritocracy" (e.g., children of top 1% in income are 77x more likely to attend an Ivy League school than children of bottom 20%); (2) even if there were an even playing field, natural talents that fit community preferences would lead to wild inequality in a pure meritocracy and those natural advantages are not “earned,” (3) a strict meritocracy leads to excessive hubris among the “winners” and shame among the “losers” who believe they deserve their place in society. 

Markovits hits a lot of the same notes, but pays more attention to how the elite “exploit themselves” trying to keep themselves and their children in the shrinking upper class. While the $50,000/year competitive preschools Markovits describes are mostly limited to NYC and Silicon Valley now, the expenditures on the education and extracurriculars of children of the wealthy seems to be increasing exponentially everywhere. He also notes the lengthening work hours for the “elite” and the increasing percentage of wealth tied to labor. For example, Markovits points out that the ABA assumed that lawyers would bill 1300 hours a year in 1962 (and 1400 in 1977). As legal readers know, many firms now require 2000+ billable hours a year (which means working 2500+ hours in most cases).

Both Sandel and Markovits do a thorough job explaining the problems of meritocracy, but are fairly brief on proposed solutions. Sandel thinks meritocracy could be made more fair through elite schools eliminating SAT/ACT requirements (that tend to track family income), engaging in more aggressive class-based affirmative action, and using a lottery to admit baseline qualified students. He thinks the last suggestion would reduce the hubris of those admitted to elite schools, and acknowledge an element of luck in their selection. Sandel also suggests more government expenditures on training and retraining programs, as most economically advanced countries spend a much higher percentage of GDP on these programs (0.1% vs. 0.5% to 1.0%). He also suggests using the tax system to reward “productive labor” by, for example, “lower[ing] or even eliminat[ing] payroll taxes and rais[ing] revenue instead by taxing consumption, wealth, and financial transactions.” (218).

Markovits proposes that private schools should lose their tax-exempt status if at least half of their students do not come from the bottom two-thirds of the income distribution. Markovits also suggests promoting more mid-skill production; by, for example, reducing regulation to allow more work to be done by nurse practitioners (rather than doctors) and legal technicians (rather than lawyers.) He suggests uncapping payroll tax (so that the wealthy pay more of their share), introducing wage subsidies for middle class jobs, and raising the minimum wage.

As Ivy League professors, I think they overestimate the role of their schools in shaping the rest of the country, though they may be right about their influence among certain segments of the wealthy. And while their solutions are rather thin, I think they raise issues with meritocracy worth addressing.  As Henri Nouwen acknowledged more than 50 years ago in his book Reaching Out, “people are in growing degree exposed to the contagious disease of loneliness in a world in which a competitive individualism [ a/k/a "meritocracy"] tries to reconcile itself with a culture that speaks about togetherness, unity, and community as the ideals to strive for.”

ESG and the Discipline of Secrecy

The ESG movement (or EESG, if you want to follow Leo Strine on this) has been in the business and legal news quite a lot recently.

In a Bloomberg article about the tax perks of trillions of dollars in Environmental, Social, and Governance investing by Wall Street banks, tax specialist Bryen Alperin is quoted as saying: “ESG investing isn’t some kind of hippie-dippy movement. It’s good for business.”

This utilitarian approach to ESG, and social enterprise in general, has made me uncomfortable for a while. The whole “Doing Well by Doing Good” saying always struck me as problematic.

ESG and social enterprise are only needed when the decisions made are not likely to lead to the most financially profitable outcomes. Otherwise, it is just self-interested business.

Over my spring sabbatical, I have been reading a fair bit about spiritual disciplines and the one that is most relevant here is “Secrecy.” The discipline of secrecy is defined as “Consciously refraining from having our good deeds and qualities generally known, which, in turn, rightly disciplines our longing for recognition.” In The Spirit of the Disciplines, Dallas Willard (USC Philosophy) writes, “Secrecy at its best teaches love and humility…. and that love and humility encourages us to see our associates in the best possible light, even to the point of our hoping they will do better and appear better than us.”

As a professor with active social media accounts, the discipline of secrecy is not an easy one for me. But I do think it is a good aspiration for all of us. Not every good deed has to be kept in secret. There can be good reasons for broadcasting good deeds (for example, to encourage others.) However, regularly performing good deeds in secret can help us build selfless character.

Similarly, socially conscious businesses and investors should be focused on the broader good being done, not on the personal benefits. Granted, I don’t think investors can blindly trust the ESG funds or benefit corporations --- the screens are simply unreliable. Also, it may be difficult to determine which companies are really doing social good if they are practicing much of it in secret. But the truth has a tendency of leaking out over time and investors can focus on companies they see doing the right thing without excessive marketing.

As for the companies themselves, I remain optimistic that there are at least a few businesspeople who truly want to benefit society for mostly selfless reasons. Combatting selfishness is not easy, but the discipline of secrecy is one way to fight it.  

Spring 2021 Reading

On sabbatical, so this was a pretty good semester of reading (for me). 23 books and two online courses. A good bit about contemplation and religion with some philosophy and fiction. The Remains of the Day and A River Runs Through It were probably my two favorite, though the Merton and Willard books were meaningful too.  

Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About it) - Elizabeth Anderson (2017)  (Philosophy). Tanner Lectures on Human Values at Princeton University. Four commenting essays by different professors follow, then Professor Anderson responds. Her main claim is that Adam Smith and others envisioned a free market with large amounts of self-employment. But powerful modern employers have become “unaccountable communist dictators” who use the rhetoric of freedom, but provide very little of it within their firms. Many employees have no “dignity, standing, or autonomy” in their firms and Anderson calls for more of an employee role in governance, perhaps along the German codetermination model. 

Invitation to Solitude and Silence- Ruth Haley Barton (2004) (Religion). “We are starved for quiet, to hear the sound of sheer silence that is the presence of God himself.”

The Stranger - Albert Camus (1942) (Novel). Death, relationships, crime, and the absurd. “I opened myself to the gentle indifference of the world.” 

The Shallows: What the Internet Is Doing to Our Brains - Nicholas Carr (2011) (Culture). Extending Marshall McLuhan’s Understanding Media (1964) and Neil Postman’s Amusing Ourselves to Death (1985) to the Internet. Since reading Postman’s book, I’ve been curious about what he would say about the Internet, and Carr attempts to do some of that work, looking especially at our diminished attention spans. 

My Name is Hope - John Mark Comer (2011) (Religion). Faith, anxiety, and depression. A bit memoir and a bit self-help. Admits that he is not a doctor or a therapist, but posits that there are root situational or historic causes under most cases of anxiety and depression. Makes calls for attention to the mind/body connections, prayer and meditation, and transparency and forgiveness. 

Garden City - John Mark Comer (2015) (Religion). Faith, work, and rest. “The American Dream...has devolved over the years into a narcissistic desire to make as much money as possible, in as little time as possible, with as little effort as possible, so that we can get off work and go do something else.”

Happy Money - Elizabeth Dunn and Michael Norton (2013) (Behavioral Science). Buy experiences, not stuff. Make it a treat, not daily indulgence. Savor. Buy time;  outsource dreaded time-consuming tasks. Time affluence tied to greater happiness. Stay present. The slow movement. Buy now, consume later (“delaying consumption allows spenders to reap the pleasures of anticipation without the buzzkill of reality, vacations provide the most happiness before they occur.”) Invest in others; people who donate to charity report feeling wealthier. 

The Happiness Hypothesis - Jonathan Haidt (2006) (Psychology). Happiness and meaning and positive psychology through the lens of ancient wisdom. Elephant (desire) and the rider (reason). Happiness = Set Point (Meditation, Cognitive Therapy, Prosac) + Living Conditions ($70K, commute, relationships) + Voluntary Activities (gratitude, building community, being useful).

The Remains of the Day - Kazuo Ishiguro (1988) (Novel). British butler ponders duty, dignity, family, love, bantering, and tradition on a few days of countryside driving and reminiscing. 

How to Be an Antiracist - Ibram X. Kendi (2019) (Race). The expectations and comments of his teachers struck me. I have known about the powerful positive potential of our words as professors, but Kendi’s work reminds me that we can do great harm as well. Kendi writes “ I internalized my academic struggles as indicative of something wrong not just with my behavior but with Black behavior as a whole, since I represented the race, both in their eyes - or what I thought I saw in their eyes-and in my own.” He noted that “Black students who have at least one Black teacher in elementary school are 29 percent less likely to drop out of school.” He did a nice job showing problems with standardized testing, but did not have much in terms of detailed proposals in changing college admissions. 

The Practice of the Presence of God - Brother Lawrence (1895) (Religion). “His only thought was about doing little things for the love of God, since he was not capable of doing great things. Afterward, whatever happened to him would be according to God’s will, so he was not at all worried about it.” “Our sufferings will always be sweeter and more pleasant when we are Him, and without Him, our greatest pleasure will be but a cruel torture.” “I would like to be able to persuade you that God is often nearer to us in our times of sickness and infirmity than when we enjoy perfect health.” 

Abolition of Man - C.S. Lewis (1943) (Education). Short book on education, truth, the doctrine of objective value, recognizing our flaws (Lewis did not like being around small children). justice, and valor. 

Extraterrestrial: The First Signs of Intelligent Life Beyond Earth- Avi Loeb (2021) (Space). Harvard astronomy professor discusses Oumaumua, an odd interstellar object, sighted for 11 days in October of 2017 and the possibility that we are not alone in the universe. He bemoans the closed mindedness of some academic disciplines and argues for humility (even as he brags a bit about his accomplishments). 

A River Runs Through It - Norman Maclean (1989) (Novel). Family and fishing. Younger brother, troubled and beautiful. Supposedly first novel published by University of Chicago Press.  

No Man is an Island- Thomas Merton (1955) (Religion). OK to be ordinary. “All things are at once good and imperfect. The goodness bears witness to the goodness of God. But the imperfection of all things reminds us to leave them in order to live in hope. They are themselves insufficient. We must go beyond them to Him in Whom they have their true being.” “Everything in modern city life is calculated to keep man from entering into himself and thinking about spiritual things. Even with the best of intentions a spiritual man finds himself exhausted and deadened and debased by the constant noise of machines and loudspeakers, the dead air and the glaring lights of offices and shops, the everlasting suggestions of advertising and propaganda.” (108-09). “The cornerstone of all asceticism is humility.” (113). “A [person] who is not at peace with himself projects his interior fighting into the society of those he lives with, and spreads a contagion of conflict all around him….In order to settle down in the quiet of our own being we must learn to be detached from the results of our own activity. We must withdraw ourselves, to some extent, from effects that are beyond our control and be content with the good will and the work that are the quiet expression of our inner life...Our Christian identity is, in fact, a great one; but we cannot achieve greatness unless we lose all interest in being great.” 

New Seeds of Contemplation- Thomas Merton (1964) (Religion). "There is no true peace possible for the man who still imagines that some accident of talent or grace or virtue segregates him from other men and places him above them" “Hate in any form is self-destructive, and even when it triumphs physically it triumphs in its own spiritual ruin.”  “Hurry ruins saints as well as artists.” “If we were incapable of humility we would be incapable of joy, because humility alone can destroy the self-centeredness that makes joy impossible.” “A humble man can do great things with an uncommon perfection because he is no longer concerned about incidentals, like his own interests and his own reputation, and therefore he no longer needs to waste his efforts in defending them.” 

In the Name of Jesus - Henri Nouwen (1989) (Religion). From Harvard to working with people with mental challenges at L’Arche. Brought Bill with him to talk to aspiring ministers in Washington D.C. - “we did it together.”

Can You Drink the Cup? - Henri Nouwen (1996) (Religion). “Joys are hidden in sorrow.” "We want to drink our cup together and thus celebrate the truth that the wounds of our individual lives, which seem intolerable when lived alone, become sources of healing when we live them as part of a fellowship of mutual care.” 

The Tyranny of Merit - Michael Sandel (2020) (Philosophy). Even if we had a level playing field, the talented would win and talent is not deserved or earned. A bit short on solutions, but suggests a lower bar for elite college admissions and then lottery to select who goes. Thinks this would inject a bit of humility into the process and dispel that elite college admissions is earned by the individual. 

The Ethics of Authenticity - Charles Taylor (1991) (Philosophy). Searches for a nuanced view of authenticity--exploring subjectivism, narcissism, apathy, horizons of significance, dialogue, and social traditions. (Lectures entitled “Malaise of Modernity”)

The Spirit of the Disciplines - Dallas Willard (1988) (Religion). Disciplines of Abstinence (solitude, silence, fasting, frugality, chastity, secrecy, sacrifice). Disciplines of Engagement (study, worship, celebration, service, prayer, fellowship, confession, submission).

The Great Omission - Dallas Willard (2014) (Religion). The great commission is not just about conversions, but about making *disciples* of all kinds of people. 

Called to Business - Dallas Willard (2019) (Religion) Extremely short book. A few articles on faith and work; serving others while making a living. 

Selected Listening.

The Promise Podcast (2020) - ~5 hours. Season 2. East Nashville public schools, diversity, wealth, and school choice. 

Justice. Professor Michael Sandel (Harvard) (edX Online).

Philosophy and Science of Human Nature - Tamar Gendler (Yale) (Open Online).

Peer Reputation Score v. Overall Rank

"Peer assessment score" - the opinion of deans and certain faculty about the overall quality of a law school - accounts for 25% of a school's score in the U.S. News ranking. It is the most heavily weighted item. Bar passage, for comparison, is just a bit over 2%. When told this my pre-law students almost inevitably say --- "why would I care what deans and faculty at other schools think?"  

Below are the 25 schools that have the lowest peer assessment relative to overall rank and the 25 schools with the highest peer assessment relative to overall rank. Tier 2 schools are not included because they do not have a specific overall rank. TaxProfBlog provided the data. 

I am not unbiased here. I teach in the business school at Belmont University, and our law school has the biggest negative gap between peer assessment and overall rank. There are some reasonable reasons for this gap --- e.g., the school is young (the law school founded in 2011, though the university was founded in 1890) and a lot of deans/faculty may not know that the law school is doing well on incoming student credentials, bar passage, and employment. FIU, the #2 school is also relatively young (founded in 2000). But it seems to me that the fact Belmont University is a Christian school and (former attorney general under George W. Bush) Alberto Gonzales is our dean is doing at least some of this work. 

10 out of the 25 biggest gaps are among religious law schools (in bold below). George Mason also likely gets hit for being openly conservative. Granted, this cannot be the only driver of the gaps . Also, there are 6 religious schools among the list of schools that have a high peer assessment relative to rank, so religion doesn't seem disqualifying. That said, there are exactly 0 Protestant schools among the high relative peer assessment score list (and I am not sure any of them are significantly conservative in reputation...so maybe it is the conservative reputation more than the religious reputation doing the work). 

Anyway, I'm pretty interested in these gaps. Peer Assessment is supposed to measure overall quality of the school. What part of that "overall quality" is not already captured in the rest of the measures? Faculty research? Faculty Twitter followers? Faculty SEALS/AALS attendees? Moot Court National Championships? Something else? Feel free to leave comments below.  

Updated to correct confusion between FIU and Florida Coastal (H/T Matt Bodie); Updated to show San Diego and Seattle are religious.

Low Peer Assessment v. Overall Rank

1. Belmont (-43)
2. Florida Int'l (-31)
3. New Hampshire (-31)
4. Wayne State (-30)
5. Baylor (-25)
6. Drake (-25)
7. Texas Tech (-25)
8. Cleveland-Marshall (-25)
9. BYU (-23)
10. George Mason (-23)
11. Missouri (Columbia) (-23)
12. Penn State-Dickinson (-23)
13. St. John's (-23)
14. Dayton (-22)
15. Duquesne (-22)
16. Villanova (-20)
17. Samford (-20)
18. Pepperdine Caruso (-18)
19. Washburn (-18)
20. Tulsa (-16)
21. South Dakota (-16)
22. St. Thomas (MN) (-15)
23. Cincinnati (-14)
24. Drexel (-14)
25. Penn State-University Park (-13)

High Peer Assessment v. Overall Rank

1. Santa Clara (+53)
2. Howard (+43)
3. Seattle (+43)
4. Loyola-New Orleans (+37)
5. American (+33)
6. San Diego (+30)
7. Indiana (McKinney) (+28)
8. Rutgers (+27)
9. Hawaii (+25)
10. Denver (+22)
11. Georgia State (+22)
12. Baltimore (+22)
13. Gonzaga (+22)
14. Arkansas-Little Rock (+22)
15. Tulane (+20)
16. Miami (+20)
17. Idaho (+20)
18. New Mexico (+19)
19. Chicago-Kent (+18)
20. Brooklyn (+17)
21. Maine (+17)
22. Memphis (+17)
23. UC-Irvine (+16)
24. Loyola-L.A. (+16)
25. Oregon (+16)