Monday, July 6, 2020
The title of this post is the title of a panel discussion I organized for the 2019 Business Law Prof Blog symposium, held back in September of last year. (Readers may recall that I posted on this session back at the time, under the same title.) The panel experience was indescribably satisfying for me. It represented one of those moments in life where one just feels so lucky . . . .
Why? Because it fulfilled a dream, of sorts, that I have had for quite a while. Here's the story.
About ten years ago, I ended up in a conversation with two of my beloved Tennessee Law colleagues while we were grabbing afternoon beverages. One of these colleagues is a tax geek; the other is a property guy. Somehow, we got into a discussion about mergers and acquisitions. I was asked how I would define a merger as a matter of corporate law, and part of my answer (that mergers are magic) got these two folks all riled up (in a professional, academic, nerdy way). The conversation included some passionate exchanges. It was an exhilerating experience.
I have remembered that exchange for all of these years, vowing to myself that some day, I would work on publishing what was said. When the opportunity arose to hold a panel discussion to recreate our water-cooler chat at the symposium last fall, I jumped at the chance. I was tickled pink that my two colleagues consented to join me in the recreation exercise. They are good sports, wise lawyers, and excellent teachers.
My objective in convening the panel was two-fold.
First, I thought that students would find the conversation illuminating. "Aha," they might justifiably say. "Now I know why I am confused about what a merger is. It's because the term means different things to different lawyers, all of whom may have a role in advising on a business combination transaction. I have to understand the perspective from which the question is being asked, and the purpose of answering the question, before I can definitively say what a merger is." Overall, I was convinced that a recreation of the conversation through a panel discussion could be a solid teaching tool.
But that's not all. Faculty also can earn from our dialogue. It helped me in my teaching to know how my tax colleague (who teaches transactional tax planning and business taxation) and my property colleague (who teaches property and secured transactions) define the concept of a merger and what each had to say about his definition as it operates in practice. I like to think my two colleagues similarly benefitted from an understanding of my definition of a merger (even if neither believes in statutory magic) . . . .
Now, you and your students also can benefit from the panel. Although it is not quite as good as hearing us all talk about mergers and acquisitions in person (which one can do here), Transactions: The Tennessee Journal of Business Law, recently published an edited transcript of the panel discussion as part of the symposium proceedings. It also is titled "What is a Merger Anyway?" And you can find it here. (The entire volume of the journal that includes the symposium proceedings can be found here. Your friends from the BLPB are the featured authors!) I am sure that your joy in reading it cannot match my joy in contributing to the project, but I hope you find joy in reading it nonetheless.
Tuesday, June 30, 2020
As many of you may know, I enjoy reading and writing about leadership. I am proud of the work that our law school has been doing for a number of years in highlighting the value of lawyers as leaders--through teaching, scholarship, and service--under the auspices of our Institute for Professional Leadership. I am privileged to have the opportunity to serve as Interim Director of that program effective as of August 1. I am grateful for the support of our incoming Interim Dean, Doug Blaze, and so many of my colleagues as I assume this new responsibility.
Among the service elements of the Institute is its weblog, Leading as Lawyers. Last year, I began writing occasional posts for the blog--first on Leading Without a Title and next on The Role of Process in Leadership. (I mentioned and linked to the latter in this BLPB post last summer.) I have continued my leadership blog post writing this spring, and the first of my spring posts, There is No Place for Schadenfreude in Leadership, was published late last week. Although my Leading as Lawyers posts may well have value for business lawyers and business law instructors, they are not specifically written with our BLPB audience in mind. Nevertheless, I will endeavor to bring them to your attention from time to time.
Given that my interest in leadership will happily soon become a more formal part of my job, I hope that many of you will bring to my attention things that you read or see or hear that relate to, e.g., teaching leadership to law students, lawyers and law professors leading through their work and in their communities, and law students assuming leadership roles. The Institute focuses on all of these things. I look forward to continuing this work in my new role.
I will end by offering two lines from my recent schadenfreude post as food for thought:
Leadership is, of course, about looking out for and lifting up those on your team—not just yourself, and especially not yourself at the expense of others. While individualism, diversity, independence, and self-pride are important aspects of a functional team, each team member must use these attributes for the collective good of the whole—not selfishly or with ego or malice.
Especially in the challenging environment in which we business lawyers now practice and teach, maintaining a positive, inclusive, collaborative, empowering workplace would seem to be critically important. It not only can help mitigate schadenfreude, but also can help lay a foundation of trust that enables projects, programs, organizations, and institutions to survive and progress in a dynamic social, economic, and political setting.
Monday, June 22, 2020
Thanks to all of our readers who were able to come to the National Business Law Scholars Conference (NBLSC) last Thursday and Friday. It was lovely to see so many of you there, even though it was somewhat sad that we could not be with each other in person. The conference enjoyed record participation, and we have received a lot of useful informal feedback about our virtual format from folks who attended.
I was the beneficiary of many "teaching moments" in hosting and participating in the NBLSC this year. I later will post on some of the outtakes from the NBLSC teaching panel (to which co-blogger Marcia Narine Weldon--who blogged about teaching on Friday--contributed meaningfully). Today, however, I am focusing my post today on a few new things my fellow UT Law conference hosts and I learned about Zoom in the process of hosting the conference. A list follows.
- Although meeting participants should mute themselves on entering a meeting, it is best for a meeting host to set up the meeting so that all participants will be muted on entry, especially for large meetings. It can be challenging to track down and mute participants who join a meeting and bring background noise or conversations into a meeting that is already in progress.
- If you have set up a Zoom meeting with yourself as the host and you hand off the hosting to another meeting participant during the meeting, you may leave the meeting without ending the meeting for all. However, you cannot then initiate a second meeting as host until the first meeting has concluded. You cannot, in other words, host two concurrent meetings, even if you handed off hosting in the first meeting to someone else. See here. (Fix? Set up someone else as an alternative host of the first meeting. Also have that alternative host start the first meeting as host. Join the first meeting as a participant. Sign off any time and initiate the second meeting.)
- If you are hosting a meeting, consider assigning someone as a co-host so that, if your Internet connection fails, the meeting continues to proceed with the co-host as host until you can re-join. This was particularly welcome to me, since my power went out three separate times on Friday afternoon during conference sessions I was hosting.
- Have a telephone or data-enabled smart pad handy as a back-up connection device if you are hosting or participating in a Zoom meeting on a computer using the Zoom client. Although data rates may apply, you can easily reconnect using the Zoom app on your phone or smart pad if you lose your Internet connection. (This is how I reconnected those three times on Friday.)
- If the meeting host allows all participants to share screens at the outset of the meeting, if a presenter who is sharing slides drops out of the meeting because of, e.g., Internet hiccups, the presenter can immediately re-share the slides after re-joining the meeting (without having to be named as a host or co-host). A meeting host would not want to allow all participants to share screens, however, unless the participants are trusted.
- A host can kick a participant out of a meeting, but that participant can re-enter the meeting room unless the "Allow removed participants to rejoin" feature is disabled.
- A meeting host can report an aberrant user to Zoom if that feature ("Report participants to Zoom") is enabled in the host's settings.
- Some meeting participants like to communicate with other meeting participants privately through the chat feature of Zoom. See here. It approximates sitting next to (or close to) others in a physical room. If you want to allow this kind of background chatter, enable "Allow meeting participants to send a private 1:1 message to another participant" in your profile settings on Zoom.
- Although I did not use them for the NBLSC, meeting hosts should consider the desirability of using waiting rooms, password requirements, meeting locks and other security features, and breakout rooms to manage participants.
I am sure there is more I could say, but these were the main things I learned that were not necessarily things I had picked up in establishing and engaging Zoom meetings for classroom activities. While some of the above-listed items may be of limited utility in using Zoom to teach online (as opposed to using Zoom to host a two-day, 31-meeting conference), if you substitute "class" for "meeting" in the listed items, you can get a sense of how some of them may apply to class activities in general or in specific circumstances, too. In any event, i have come to the understanding that we all can benefit from knowing as much as possible about the technologies were are using as we continue to navigate the virtual conference and online teaching waters as business law professors.
Wednesday, June 17, 2020
Just a quick reminder that the 2020 National Business Law Scholars Conference--the 11th annual conference and our first virtual conference--begins tomorrow morning at 9:00 am EDT and extends through Friday afternoon at 4:30 pm EDT. The conference schedule is available here. Even if your workday is full, think about joining us (with or without a beverage) for some business law fellowship at 6:15 pm EDT tomorrow during our virtual happy hour.
Please make sure that you have upgraded your Zoom client to Zoom 5.0 before attempting to join in from your computer. Effective as of June 1, Zoom is no longer supporting earlier versions. If you have questions about upgrading, check out this page from the Zoom Support Center.
We hope to see many of you there!
Monday, June 15, 2020
The full schedule for the 2020 National Business Law Scholars Conference, which is being hosted on Zoom Thursday and Friday of this week, is now available. You can find it here. If and as additional changes are necessary, we will re-post.
As is always the case, the conference includes folks presenting work in a variety of areas of business law. These traditional paper panels are the heart of the conference. In addition, as I noted in my post last week, we are including three plenary sessions--one on "Business Law in the COVID-19 Era," one reflecting on teaching business law in the current environment, and one on current bankruptcy law and practice issues. There is something for almost everyone in the business law space in the conference program.
I am pleased and proud to note that several of my fellow bloggers from the Business Law Prof Blog are participating in the conference this year. They include (in addition to me): Colleen Baker, Ben Edwards, Ann Lipton, and Marcia Narine Weldon. I hope many of you will join us for all or part of the program and offer comments to colleagues on and relating to their work.
Monday, June 8, 2020
The 2020 National Business Law Scholars Conference will be hosted on Zoom on Thursday, June 18 and Friday, June 19. Conference sessions include paper panels covering a variety of areas of business law and plenary sessions on several current topics of interest. As is true for the in-person conference, no registration fee is required for attendance.
The conference will begin on Thursday at 9:00 am EDT with a plenary Q&A session entitled "Business Law in the COVID-19 Era" (focusing on the ways in which Business Law has impacted and been impacted by the pandemic in various academic and practice settings). Thursday's formal proceedings end with a second plenary Q&A session at 4:45 pm EDT, "Teaching Business Law: Applying What We Learned from Emergency Remote Teaching During the Pandemic," featuring doctrinal and experiential (including clinical) business law faculty reflecting on their recent experiences teaching remotely on an emergency basis and the lessons learned from that experience that inform future teaching. An informal virtual cocktail hour follows that program, beginning at approximately 6:15 pm EDT.
Friday’s sessions begin at 9:00 am EDT and end at 4:30 pm EDT. The final program of the day is a plenary panel on "Bankruptcy and COVID-19" that begins at 3:00 pm EDT. This panel includes judicial, practical, and academic perspectives an bankruptcy law changes, challenges, and opportunities during and related to the pandemic.
The full schedule for the conference with assigned Zoom meeting rooms will be available later this week or early next week. A link will be posted here and shared on social media. Although the networking opportunities will not be quite the same in the virtual format, the Planning Committee (listed below) is looking forward to a vibrant conference filled with significant opportunities to promote and forward valuable business law scholarship, teaching, and service.
Megan Wischmeier Shaner (University of Oklahoma College of Law)
Monday, June 1, 2020
The AALS Section on Securities Regulation distributed two calls for papers earlier today.
Both are included below.
AALS Call for Papers:
What Can Securities Regulation Contribute to Environmental Law, and Vice Versa?
The AALS Sections on Environmental Law and Securities Regulation are delighted to present a joint session at the 2021 AALS Annual Meeting, titled “What Can Securities Regulation Contribute to Environmental Law, and Vice Versa?” We are awaiting final scheduling information from AALS, but we anticipate receiving a three-hour joint program slot. We are planning an innovative format that will include short (5-7 minute) paper presentations in plenary session, followed by collaboration in “table discussion” groups.
The political vicissitudes of environmental policy in recent years have led to increased focus on the potential of private mechanisms to achieve environmental results that had traditionally been sought by government action. At the same time, investors and market regulators have become increasingly aware of the need for corporations to grapple with environmental risks, particularly with respect to global climate disruption.
This joint session will bring together leading scholars from the fields of environmental and securities law to discuss the reciprocal influences that environmental and securities law exert on each other, including a discussion of the following questions: How do the goals of securities regulation intersect with environmental policy? Are the securities laws an effective means of advancing environmental policy? What are the regulatory implications, both for securities regulation and environmental law, of this intersection? What are innovative investors and companies doing in response to the risks of climate change?
We invite papers that explore these questions from a diversity of perspectives, both theoretical and applied. The authors of the selected papers will present short, TED-style talks at the 2021 Annual Meeting and engage in dialogue with each other and attendees about the ideas presented.
By August 15, 2020, please send your submission to Professor Steve Gold at firstname.lastname@example.org and Professor Wendy Couture at email@example.com. 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 September 15, 2020.
The Call for Paper presenters will be responsible for paying their registration fee and travel expenses. Please note that AALS anticipates that the Annual Meeting will proceed in person as planned in San Francisco, (https://am.aals.org/), and the theme is The Power of Words.
AALS Call for Papers:
Emerging Voices in Securities Regulation
The AALS Section on Securities Regulation is delighted to bring 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 15, 2020, please send your draft to Professor Wendy Couture at firstname.lastname@example.org. 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 September 15, 2020.
If you would like to volunteer to provide feedback as a more senior scholar, please let Professor Couture know, at email@example.com, by August 15, 2020. Thank you in advance for your generosity.
The Call for Paper presenters will be responsible for paying their registration fee and travel expenses. Please note that AALS anticipates that the Annual Meeting will proceed in person as planned in San Francisco, (https://am.aals.org/), and the theme is The Power of Words.
Call for Papers
AALS Section on Agency, Partnership, LLCs & Unincorporated Associations
Entrepreneurship and the Entity
January 5-9, 2021, AALS Annual Meeting
The AALS Section on Agency, Partnership, LLCs & Unincorporated Associations will sponsor a panel on “Entrepreneurship and the Entity” at the 2021 AALS Annual Meeting in San Francisco, California. This panel will showcase scholarship on subjects relating to business law and entrepreneurship, including entity choice throughout a company’s evolution, financing alternatives, and how legal rules promote and discourage different kinds of entrepreneurship. Scholars are encouraged to interpret the subject of the Call for Papers broadly and creatively.
SUBMISSION PROCEDURE: Scholars should send a summary of a work or a work-in-progress of no more than 600 words to Professor Sarah C. Haan at firstname.lastname@example.org on or before Friday, August 21, 2020. The summary should be a pdf or Word document that has been stripped of information identifying the author; only the cover email should connect the author to the submission. The subject line of the email should read: “Submission—[author name & title].” Papers will be selected through an anonymous review by the Section’s Executive Committee.
SPECIAL NOTE: Interested parties are encouraged to submit even if they are not certain at this time that they will attend the AALS Annual Meeting in person.
ELIGIBILITY: Scholars at AALS member law schools are eligible to submit. Pursuant to AALS rules, faculty at fee-paid non-member law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all program presenters are responsible for paying their own annual meeting registration fees and, for those attending the AALS Annual Meeting in person, travel expenses.
Any inquiries about the Call for Papers should be submitted to: Professor Sarah C. Haan at email@example.com.
Tuesday, May 26, 2020
Yesterday, I posted the AALS Section on Business Associations Call for Papers for the New Voices in Business Law program. Today, I am posting the section's general call for papers, which focuses on a very salient topic: Corporate Boards in the Age of COVID-19. There certainly is a lot that we can say about that from the advisory, compliance, and litigation (prevention and management) angles.
+ + +
Call for Papers for the
Section on Business Associations Program on
Corporate Boards in the Age of COVID-19
2021 AALS Annual Meeting
The AALS Section on Business Associations is pleased to announce a Call for Papers for its program at the 2021 AALS Annual Meeting in San Francisco, California. The topic is Corporate Boards in the Age of COVID-19. Up to three presenters will be selected for the section’s program.
The COVID-19 pandemic has put corporate boards under tremendous stress. In the midst of unprecedented financial and operational challenges, boards must comply with legal obligations that are often complex, uncertain, and contested. This panel will explore the impact of COVID-19 on the corporate board. How should boards exercise their oversight and disclosure responsibilities during these times? Should boards reevaluate the corporate purpose, especially considering the increased vulnerability of employees and other stakeholders? Should boards rethink their dividends and stock buyback policies? And, as market instability continues, how should boards approach planned transactions and use defensive mechanisms? We hope to facilitate a robust conversation that connects corporate law theory to the immediate challenges facing corporate boards.
Please submit an abstract or a draft of an unpublished paper to Jessica Ericsson, firstname.lastname@example.org, on or before August 3, 2020. Authors should include their name and contact information in their submission email but remove all identifying information from their submission.
Papers will be selected after review by members of the Executive Committee of the Section. Authors of selected papers will be notified by August 28, 2020. Presenters will be responsible for paying their registration fee, hotel, and travel expenses.
Please direct any questions to Jessica Erickson, University of Richmond School of Law, at email@example.com.
Monday, May 25, 2020
As we close out the holiday weekend, I offer simple words of respect, admiration, and thanks for those who have sacrificed their lives for all of us. Amidst the barbecues and beer and whatnot, it is sometimes difficult to remember that we take today to honor our fallen heroes. Although I spent today working (grades for all courses due tomorrow!), I took time out to remind myself that life is not all about business law prof'ing and contemplate the importance of the day.
The photo above (taken by my brother last year) depicts a gravestone honoring one of our family's military heroes. He did not die in combat, but he was wounded and received the Congressional Medal of Honor. Although we honor those kinds of commitments more directly on Veteran's Day, I was thinking about him today--and about the thin line that divides life and death, especially in times of military conflict.
My heart goes out to all who have lost family and friends in the line of battle or otherwise in service to our country. May those lost servants rest in peace. And may those who remain take pride in their ultimate sacrifice.
Call for Papers
AALS Section on Business Associations
New Voices in Business Law
January 5-9, 2021, AALS Annual Meeting
The AALS Section on Business Associations is pleased to announce a “New Voices in Business Law” program during the 2021 AALS Annual Meeting in San Francisco, California. This works-in-progress program will bring together junior and senior scholars in the field of business law for the purpose of providing junior scholars with feedback and guidance on their draft articles.
FORMAT: Scholars whose papers are selected will provide a brief overview of their paper, and participants will then break into simultaneous roundtables dedicated to the individual papers. Two senior scholars will provide commentary and lead the discussion about each paper.
SUBMISSION PROCEDURE: Junior scholars who are interested in participating in the program should send a draft or summary of at least five pages to Professor Megan Shaner at firstname.lastname@example.org on or before Friday, August 21, 2020. The cover email should state the junior scholar’s institution, tenure status, number of years in their current position, whether the paper has been accepted for publication, and, if not, when the scholar anticipates submitting the article to law reviews. The subject line of the email should read: “Submission—Business Associations WIP Program.”
Junior scholars whose papers are selected for the program will need to submit a draft to the senior scholar commentators by December 16, 2020.
ELIGIBILITY: Junior scholars at AALS member law schools are eligible to submit papers. “Junior scholars” include untenured faculty who have been teaching full-time at a law school for ten or fewer years. The Committee will give priority to papers that have not yet been accepted for publication or submitted to law reviews.
Pursuant to AALS rules, faculty at fee-paid non-member law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all presenters at the program are responsible for paying their own annual meeting registration fees and travel expenses.
Monday, May 18, 2020
This post updates my March 23 post on the 2020 National Business Law Scholars Conference.
After much deliberation, the planning committee for the National Business Law Scholars Conference has determined to cancel this year’s in-person event and instead host a virtual workshop on the original scheduled conference dates (June 18-19). The workshop will consist of moderated paper panels featuring the work of those who submitted proposals for the 2020 conference and desire to participate. We also hope to host a discussion session focusing on online teaching and perhaps one or more feature programs on business law in the COVID-19 era.
Each registrant for the 2020 conference who submitted an accepted proposal will receive a message in short order asking whether they want to participate in the virtual conference. Relatively rapid responses to this query will be requested. A workshop schedule, together with related logistics information will be constructed from those responses and circulated to participants.
As you may recall, the conference this year was scheduled to be held at The University of Tennessee College of Law. We plan to hold the 2021 National Business Law Scholars Conference at UT Law in Knoxville next June. We will determine the exact dates for next year's conference in the coming months.
All of us on the planning committee (listed below) are grateful to all who registered for this year's conference for their patience as we considered options and made the determination to "go virtual." We look forward to getting everyone together in person next year when we anticipate that conditions will be more safe and stable. We know that health and safety are paramount for all. We also know that business law scholars engage in productive discussions that push each other's work forward when we join forces. We understand that electronic communication is no substitute for an in-person event, but we hope that our 2020 virtual forum responds adequately to both health and safety concerns and the desire to engage with and advance business law research and writing until we can next get together in the same physical place.
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)
Monday, May 11, 2020
Maybe I am just sensitized to these media reports because of my research and teaching, but it seems that the COVID-19 pandemic has sparked new media interest in and engagement with corporate governance issues. I have received four media calls in the past few weeks--two on background and two for source quotations. That is an unusual rate of contact for me. Is anyone else noticing this?
Of course, there has been a lot to talk about. Annual meetings already called and noticed to shareholders needed to move online. As managers and employees moved out of workplaces to shelter at home, well-worn systems of decision-making and information dissemination--as well as the expectations of others in connection with them--changed or were challenged. Filing and other deadlines became guidelines . . . .
The two media calls in which I was asked to provide background information related to
- increased or altered director and legal counsel attentiveness to drafting force majeure clauses and material adverse change/effect definitions in light of what we now know about COVID-19 and its effects and
- prospects for various kinds of shareholder derivative, direct, and class action litigation in light of COVID-19 and related board decision making.
I was glad to be able to help the two journalists who called on these issues. They had great questions; made me think.
The two articles in which I was quoted are both (regrettably) secured behind firewalls. But if any of you are subscribers to Agenda, you will have access to them both. I have linked to each below. Both were written by Jennifer Williams-Alvarez.
The first piece, an April 22nd article entitled "Boards Adopt Emergency Bylaws for Critical Flexibility," put a spotlight on the potential utility of emergency bylaws in light of the pandemic. I admitted that I now am more sensitive and sympathetic to emergency bylaws than I used to be.
Decades ago, Heminway says she would not have necessarily recommended that companies include an emergency bylaw provision when drafting corporate governance documents. But with the financial crisis, the attacks on the United States on Sept. 11, 2001, and the current Covid-19 crisis, she says she would now make the suggestion.
I wonder how many of you who have been in practice for "more than a minute" feel the same way.
The second article, "DPA Forces New Unknowns for Boards to ‘Triage’," posted on April 27, offered insights on the Defense Production Act, the subject of multiple executive memoranda and orders relying to product manufacturing and distribution over the past month. This article picked up on a topic I wrote about here early last month. Since Agenda focuses on issues of importance to corporate directors and those who work with them, the article explored various angles of interest in the Defense Production Act relating to corporate boards. For example, we got into an extended conversation about public company reporting obligations and related information gathering and management.
Board members should think about disclosure responsibilities, says Heminway. For certain companies, such as manufacturers, an assessment must be made about whether it represents a material risk to repurpose operations or reprioritize contracts so that the government is at the front of the line, she says.
Between the two of us, we were able to find a few examples of COVID-19 Defense Production Act disclosures made in public filings with the U.S. Securities and Exchange Commission. Our coverage of applicable mandatory disclosure obligations led to a brief conversation about how boards of directors gather information.
“What I worry about is the board exercising its fiduciary duties in this context,” Heminway says, referring to reporting responsibilities. “The main issues here are going to be duty of care issues,” a requirement that directors fully inform themselves of all material information, she notes.
“The amount of information available now is overwhelming, and it’s changing every day. The Defense Production Act is a piece of that,” says Heminway. “It’s part of what they need to be informed about.
The article covers a lot of ground overall and quotes from a number of sources, including former and current government employees.
I admit that I have been impressed by the level of interest and engagement of the journalists with whom I have been speaking. What they and others like them are producing and publishing fueled my teaching during March and April (I assigned a number of articles to my students relating to COVID-19 and corporate governance) and is likely to continue to catalyze blog posts and, potentially, research projects as time goes on. It is good to know that corporate governance questions are motivating useful media inquiries and publications during the COVID-19 crisis. It also is nice to know that we law professors may be able to use our knowledge to help inform important constituencies during the pendency of the pandemic while, at the same time, expanding our own horizons. A true win-win.
Monday, May 4, 2020
In two earlier posts (here and here), I addressed a number of issues and tips related to the emergency remote online teaching that became the norm for most of us in the law academy back in March. I finished my "classroom teaching" for the semester two weeks ago. My online timed exam was given last week. My take-home project in another class is due this week. I survived; the students survived. That may be the best I can say for all that.
However, a larger, long-term issue looms in the background relating to the online teaching we did--and may continue to do--as a result of COVID-19. That issue? Whether our current remote teaching will catalyze a movement in higher education, including legal education, to teach more classes online. If university and law school budgets continue to contract, administrators may see cost-savings in moving more courses online.
This issue has engendered much debate among educators generally. I bring it to the fore here for consideration in the business law teaching context. I have mixed feelings about moving clinical, simulation, and standard doctrinal business law courses online. The reasons vary from course to course. And there is no doubt much that I likely do not see or anticipate that I would want to take into account.
As a result, I have started reading up on online teaching and online course design, and I have been thinking through my personal experience with remote teaching this semester. Among the articles I read this past week is this one, which calls on us to push back against central administrative demands to move teaching online. In fact, I am not opposed to moving some of my teaching online. But I would want to be able to choose what to move online, when, and how based on quality information and my own assessment of the benefits to and challenges for our learners.
Have you thought about teaching all of your courses online? If so, I would be interested to know your views . . . Please share them below, or send me a message.
Monday, April 20, 2020
Corporate leniency programs promise putative offenders reduced punishment and fewer regulatory interventions in exchange for the corporation’s credible and authentic commitment to remedy wrongdoing and promptly self-report future violations of law to the requisite authorities.
Because these programs have been devised with multiple goals in mind—i.e., deterring wrongdoing and punishing corporate executives, improving corporate cultural norms, and extending the government’s regulatory reach—it is all but impossible to gauge their “success” objectively. We know that corporations invest significant resources in compliance-related activity and that they do so in order to take advantage of the various benefits promised by leniency regimes. We cannot definitively say, however, how valuable this activity has been in reducing either the incidence or severity of harms associated with corporate misconduct.
Notwithstanding these blind spots, recent developments in the Department of Justice’s stance towards corporate offenders provides valuable insight on the structural design of a leniency program. Message framing, precision of benefit, and the scope and centralization of the entity that administers a leniency program play important roles in how well the program is received by its intended targets and how long it survives. If the program’s popularity and longevity says something about its success, then these design factors merit closer attention.
Using the Department of Justice’s Yates Memo and FCPA Pilot Program as demonstrative examples, this book chapter excavates the framing and design factors that influence a leniency program’s performance. Carrots seemingly work better than sticks; and centralization of authority appears to better facilitate relationships between government enforcers and corporate representatives.
But that is not the end of the story. To the outside world, flexible leniency programs can appear clubby, weak and under-effective. The very design elements that generate trust between corporate targets and government enforcers may simultaneously sow credibility problems with the greater public. This conundrum will remain a core issue for policymakers as they continue to implement, shape and tinker with corporate leniency programs.
That last paragraph rings true to me in so many ways. The remainder of the abstract also raises some great points that engage my interest. Looks like I am adding this to my summer reading list!
Monday, April 13, 2020
This post again comes to us from friend-of-the BLPB Nadia B. Ahmad. Her offering is in the tradition of similar posts published by my co-bloggers in the past that focus on videos that can be used in teaching various topics relevant to business law. I remember this post, for example, by Marcia Narine Weldon on blockchain teaching resources. Again, thanks to Nadia for contributing to our knowledge and our blog. I hope that others will be encouraged to offer suggestions in the comments below about other helpful online video resources that they know about.
Below is a list of online video resources for business law related topics.
- Panic: The Untold Story of the 2008 Financial Crisis(1 hour, 35 minutes)
VICE on HBO looks at factors that led to the 2008 financial crisis and the efforts made by then-Treasury Secretary Henry Paulson, Federal Reserve Bank of New York President Timothy Geithner, and Federal Reserve Chair Ben Bernanke to save the United States from an economic collapse. The feature-length documentary explores the challenges these men faced, as well as the consequences of their decisions.
- To Catch a Trader
PBS Frontline correspondent Martin Smith goes inside the government’s ongoing, seven-year crackdown on insider trading, drawing on exclusively obtained video of hedge fund titan Steven A. Cohen, incriminating FBI wiretaps of other traders, and interviews with both Wall Street and Justice Department insiders.
- How to Illegally Profit From a Pandemic: Insider Trading! (LegalEagle’s Real Law Review) (20 minutes)
LegalEagle is designed for law students and gives them an insider’s view to the legal system.
- PanamaPapers – The Shady World of Offshore Companies(55 minutes)
For decades, presidents, drug smugglers and criminals have used a Panamanian law firm to hide their accounts and valuables. This is revealed in documents reviewed by media partners around the world, including NDR and WDR. A total of 370 journalists from 78 countries evaluated around 11.5 million documents in the course of their reporting on the “PanamaPapers.” An anonymous source provided the data to Germany’s Süddeutsche Zeitung. The paper then shared it with the International Consortium of Investigative Journalists (ICIJ) and partners across the globe, including NDR and WDR.
Monday, April 6, 2020
In my post last week, I mentioned the President's invocation of the Defense Production Act during the current COVID-19 crisis. I was immediately curious about this law when news of the President's March 27 memorandum focused on General Motors and ventilator production hit my radar screen (a/k/a, my laptop, which has effectively become my lap these days). Surely, it must be unusual for the U.S. government, I thought, to direct the nature, means, and timing of production and supply. That seems antithetical to the spirit, if not the letter, of U.S. capitalism. However, the more I read, the less curious and concerned I am, at least for the moment. Perhaps some of the reporting in this area is more geared to generating a splashy news item than, well, alerting us to something truly unusual or troubling. Nevertheless, I will make a few foundational points on the Act here. I may have more to say later.
The Defense Production Act of 1950 can be found in Chapter 55 of Title 50 of the U.S. Code. The Act recognizes that "the security of the United States is dependent on the ability of the domestic industrial base to supply materials and services for the national defense and to prepare for and respond to military conflicts, natural or man-caused disasters, or acts of terrorism within the United States." 50 U.S.C. § 4502(a)(1). To meet these and other requirements, the Defense Production Act "provides the President with an array of authorities to shape national defense preparedness programs and to take appropriate steps to maintain and enhance the domestic industrial base." Id. at § 4502(a)(4).
The President's highly publicized General Motors memorandum referenced above is only one of a number of formalized presidential actions citing to or using the Defense Production Act in the war against COVID-19. That memorandum directs the Secretary of Health and Human Services to "use any and all authority available under the Act to require General Motors Company to accept, perform, and prioritize contracts or orders for the number of ventilators that the Secretary determines to be appropriate." The General Motors memorandum follows on a March 16 executive order delegating specified presidential powers under Section 101 of the Act to the Secretary of Health and Human Services. An April 2 memorandum directs the Secretary of Homeland Security "through the Administrator of the Federal Emergency Management Agency (Administrator), . . . [to] use any and all authority available under the Act to acquire, from any appropriate subsidiary or affiliate of 3M Company, the number of N-95 respirators that the Administrator determines to be appropriate." A second April 2 memorandum directs the Secretary of Health and Human Services, "in consultation with the Secretary of Homeland Security, . . . [to] use any and all authority available under the Act to facilitate the supply of materials to the appropriate subsidiary or affiliate of the following entities for the production of ventilators: General Electric Company; Hill-Rom Holdings, Inc.; Medtronic Public Limited Company; ResMed Inc.; Royal Philips N.V.; and Vyaire Medical, Inc." Finally, an April 3 memorandum directs the Secretary of Homeland Security "through the Administrator of the Federal Emergency Management Agency, in consultation with the Secretary of Health and Human Services, . . . [to] use any and all authority available under section 101 of the Act to allocate to domestic use, as appropriate, . . . [specified] scarce or threatened materials designated by the Secretary of Health and Human Services . . . ." The President also issued a related statement on April 3 that decries "wartime profiteering."
Although the use of the Defense Production Act in directing production during the ongoing COVID-19 crisis may be novel in its nature or scale, Fortune reports that the Act is used "routinely" to prioritize contracts relating to military procurements and in response to natural disasters. Other past uses also are mentioned in that Fortune article. None of the President's actions to date invoking the Act as to production by specific firms is in the form of an executive order. However, the President is afforded many powers under the Act, see 50 U.S.C. § 4554(a) (providing in relevant part that "the President may prescribe such regulations and issue such orders as the President may determine to be appropriate"), although they are subject to certain limitations (including, e.g., broad-based restrictions relating to "wage or price controls" and "chemical or biological weapons" under 50 U.S.C. § 4514).
Even without the issuance of enforceable presidential orders, however, those charged with manufacturing under the various presidential memoranda are (and in some cases, prior to presidential action, were) scrambling to make up for lost time. A report published over the weekend in The Washington Post describes the status of some of their efforts. CNBC's similar report is here. Time weighed in a few days earlier with its story. Finally, an earlier report from The New York Times offers historic details relevant at that time. Private industry has been stepping up in so many ways during the pandemic. With all the hullabaloo around the Defense Production Act, we all should know about and be proud of that.
As for the actual COVID-19 business operational effects of the powers afforded to the President under the Defense Production Act, they remain to be seen. My interest has been whetted, however, and I will be paying attention to future invocations of the Act not only in the COVID-19 crisis, but also in other contexts. My perception is that it is one of the lesser-known laws that can impact business in a significant ways if the full force of its provisions is employed. It is legislation--even 70 years out--that all of us business lawyers and law professors should be aware of.
Thursday, April 2, 2020
Due to the uncertain length of the COVID-19 global pandemic, and out of an abundance of caution, we have decided to cancel the Transactional Law and Skills Education Conference currently scheduled for June 5-6, 2020.
We will re-schedule the Conference and revisit our theme – “Hindsight, Insight, and Foresight: Transactional Law and Skills Education in the 2020s” – when it is appropriate and safe to do so.
If you have already registered for the Conference, we will refund your money. If you have submitted a proposal or a nomination for the Tina L. Stark Award for Teaching Excellence, you will have the opportunity to resubmit your proposal or nomination when we establish the new Conference date.
If you have already reserved a room at the Emory Conference Center Hotel please call them at 800.933.6679 to cancel your reservation. For other Conference-related questions, please contact our Conference Coordinator, Kelli Pittman at email@example.com.
During this period of “social distancing,” we are proud to be members of a community of transactional law and skills educators dedicated to excellence. We look forward to re-scheduling the Conference and welcoming you back to Emory.
Wednesday, April 1, 2020
This post comes to us from friend-of-the BLPB Nadia B. Ahmad. Many thanks to her for this contribution. Her post follows nicely on the spirit of my "Teaching through the Pandemic" posts, which can be found here and here. My favorite part may be the bit on "Troubleshooting Life and Expectations."
As I begin this post on Sunday, March 29, 2020, there are currently 674,466 confirmed cases of coronavirus (COVID-19). Immunology and infectious disease researchers are working round the clock with their heads down for a cure and a vaccine, but we have nothing in the near term for an end to this situation. The markets have been a tumbling since January 2020 and spiraling downward since March 2020. Even Brexit and the deceleration of China's economy could not have expected this downturn in the market.
On March 12, 2020, I taught my last in person Business Organizations class for the semester. For the first half of the class, I had the students complete a practice essay in Canvas on the business judgment rule. The remainder of the time, I had them join via WebEx on their laptops. In that class, approximately 40 percent of the students were able to login to WebEx via Canvas for a lecture of derivative litigation. The rest could join with a direct link. During that triage session while they were in the room, I learned how to troubleshoot connectivity issues with the help of my students. For the past two weeks of online learning, I have had 100 percent attendance in both my classes and student engagement is up as well.
I wanted to share some insights related to teaching via WebEx as well as online teaching generally.
Learning WebEx’s Virtual Classroom
Spending some time on YouTube helped me with figuring out how the platform works. The university also offered some training sessions, but I found YouTube video easier to help me.
Periodically, WebEx may be down altogether because of the load on its system, you can check WebEx’s global status here.
For troubleshooting WebEx audio issues, visit here.
For WebEx video support, visit here.
Some students may have a weak Wifi connection. To alleviate this issue, I also provide the dial-in number. Only one or two students have this issue, but it is also a reliable backup if students cannot connect via WebEx. To locate the dial-in number for your WebEx meeting, visit here.
Checking Hardware and Connectivity (WiFi and Audio)
Some issues with WebEx meeting will be unrelated to the platform itself. While your computer’s existing audio and video functionalities may work, I have found that using a microphone enhances the audio experience. I used Professor Josh Blackman recommendation of the Blue Snowball USB microphone.
Check your high speed internet connection here. You should be running at around 50 mbps. If your internet connection is slower, consider an upgrade in speed.
Troubleshooting Life and Expectations
As an introvert, I welcome this scaling back on social interactions on some levels. At the same time, I miss my students. I have chosen to do hybrid asynchronous/synchronous sessions. I record part of my lectures, but also have live class sessions as well. I was bit nervous to record the classes until I actually did do it and later read a post by Professor William Fischer (Harvard) on Emergency Online Pedagogy. Recording classes is considerate of not only students, but the server. Fischer writes:
First, the quality of a pre-recorded lecture is likely to be substantially higher than that of lecture delivered live. Pre-recorded lectures can be constructed in segments — which can then either be posted online separately (like this) or stitched together and posted online as a single unit. If you are not happy with one segment, you can discard and replace it. Equally important, it is much easier to integrate graphics and audiovisual material in a pre-recorded lecture. (Some techniques for doing this will be discussed shortly.) Last but not least, pre-recorded lectures can be edited.
Having used both formats, I am now strongly in favor of pre-recorded rather than live lectures. Feedback from my students over several years makes clear that they share this preference. My lectures are significantly tighter and clearer when I record them in advance. You may think that you can produce an elegant lecture in “one take,” and perhaps you are right — but I confess that I thought so as well until I watched a recording of one of my unedited presentations.
The second advantage of a pre-recorded lecture is that it is not vulnerable to a major technological threat posed by the sudden and massive shift to online education prompted by the pandemic. … Betting a class on the availability of Zoom [or WebEx] at a particular time is thus risky. By contrast, a pre-recorded lecture can be uploaded to the Internet at any time. In addition, students need not “stream” it, but instead can download it to their computers and then watch it at their convenience. This delivery method is far less vulnerable to technological overload. In addition, the larger the number of teachers who rely on pre-recorded lectures, the smaller will be the aggregate burden imposed on Zoom [and other platforms] and thus the greater the likelihood that it will be available when we need it.
Part of wanting to record a portion of the lectures is also a practical matter for me. I have three kids (ages 2.5, 6, and 9) and my partner is a health care worker and is still working. At any rate, I look forward to welcoming week #4 of online learning and will share tips on integrating current events into discussion on business organizations, the markets, and derivative litigation.
Monday, March 30, 2020
COVID-19's effects on financings and M&A, as well as contracts more generally (as covered here, here, and here among many other places), the rapid adoption of the Coronavirus Act, Relief, and Economic Security Act, a/k/a the “CARES Act” (key terms summarized briefly here and elsewhere), and the President's invocation of the Defense Production Act have me feeling like I am drinking business law water out of a fire hose this past week. Anyone else feeling that way? Whew!
I am still sorting through it all. I am sure that I will have more to say on some of this as time passes. However, earlier today, in the process of reading online resources and watching and listening to others talk about the many legal aspects of the current pandemic, I came across this YouTube video, done by one of my former students, a local attorney who works with entrepreneurs, start-ups, and small businesses.
I have not fact-checked this video. And he jumps in to correct himself. But what I like about it is that it represents unvarnished, even humorous, boots-on-the-ground legal public service. He does not want businesses in the local community to miss out or waste time/money shooting in the dark--or in the wrong direction.
Sometimes, our students do great things after they leave the hallowed halls of law school. Many times, those good deeds go unrecognized. Haseeb has always been passionate. It makes me so happy to see him using his passion to help the local business community. I want to offer a "shout out" to him here. (And his dog, Simon, is the cutest! ♥)