Saturday, September 7, 2019
Have you ever wanted to learn the basics about blockchain? Do you think it's all hype and a passing fad? Whatever your view, take a look at my new article, Beyond Bitcoin: Leveraging Blockchain to Benefit Business and Society, co-authored with Rachel Epstein, counsel at Hedera Hashgraph. I became interested in blockchain a year ago because I immediately saw potential use cases in supply chain, compliance, and corporate governance. I met Rachel at a Humanitarian Blockchain Summit and although I had already started the article, her practical experience in the field added balance, perspective, and nuance.
The abstract is below:
Although many people equate blockchain with bitcoin, cryptocurrency, and smart contracts, the technology also has the potential to transform the way companies look at governance and enterprise risk management, and to assist governments and businesses in mitigating human rights impacts. This Article will discuss how state and non-state actors use the technology outside of the realm of cryptocurrency. Part I will provide an overview of blockchain technology. Part II will briefly describe how public and private actors use blockchain today to track food, address land grabs, protect refugee identity rights, combat bribery and corruption, eliminate voter fraud, and facilitate financial transactions for those without access to banks. Part III will discuss key corporate governance, compliance, and social responsibility initiatives that currently utilize blockchain or are exploring the possibilities for shareholder communications, internal audit, and cyber security. Part IV will delve into the business and human rights landscape and examine how blockchain can facilitate compliance. Specifically, we will focus on one of the more promising uses of distributed ledger technology -- eliminating barriers to transparency in the human rights arena thereby satisfying various mandatory disclosure regimes and shareholder requests. Part V will pose questions that board members should ask when considering adopting the technology and will recommend that governments, rating agencies, sustainable stock exchanges, and institutional investors provide incentives for companies to invest in the technology, when appropriate. Given the increasing widespread use of the technology by both state and non-state actors and the potential disruptive capabilities, we conclude that firms that do not explore blockchain’s impact risk obsolescence or increased regulation.
Things change so quickly in this space. Some of the information in the article is already outdated and some of the initiatives have expanded. To keep up, you may want to subscribe to newsletters such as Hunton, Andrews, Kurth's Blockchain Legal Resource. For more general information on blockchain, see my post from last year, where I list some of the videos that I watched to become literate on the topic. For additional resources, see here and here.
If you are interested specifically in government use cases, consider joining the Government Blockchain Association. On September 14th and 15th, the GBA is holding its Fall 2019 Symposium, “The Future of Money, Governance and the Law,” in Arlington, Virginia. Speakers will include a chief economist from the World Bank and banking, political, legal, regulatory, defense, intelligence, and law enforcement professionals from around the world. This event is sponsored by the George Mason University Schar School of Policy and Government, Criminal Investigations and Network Analysis (CINA) Center, and the Government Blockchain Association (GBA). Organizers expect over 300 government, industry and academic leaders on the Arlington Campus of George Mason University, either in person or virtually. To find out more about the event go to: http://bit.ly/FoMGL-914.
Blockchain is complex and it's easy to get overwhelmed. It's not the answer to everything, but I will continue my focus on the compliance, governance, and human rights implications, particularly for Dodd-Frank and EU conflict minerals due diligence and disclosure. As lawyers, judges, and law students, we need to educate ourselves so that we can provide solid advice to legislators and business people who can easily make things worse by, for example, drafting laws that do not make sense and developing smart contracts with so many loopholes that they cause jurisdictional and enforcement nightmares.
Notwithstanding the controversy surrounding blockchain, I'm particularly proud of this article and would not have been able to do it without my co-author, Rachel, my fantastic research assistants Jordan Suarez, Natalia Jaramillo, and Lauren Miller from the University of Miami School of Law, and the student editors at the Tennessee Journal of Business Law. If you have questions or please post them below or reach out to me at firstname.lastname@example.org.
September 7, 2019 in Compliance, Conferences, Contracts, Corporate Governance, Corporations, CSR, Current Affairs, Financial Markets, Human Rights, Law Reviews, Lawyering, Legislation, Marcia Narine Weldon, Securities Regulation, Shareholders, Technology | Permalink | Comments (0)
Tuesday, May 14, 2019
So, this post is about shameless self-promotion and a cautionary tale. A while back I was asked to write the West Virginia section of Texas A &M Journal of Property Law's Oil and Gas Survey. It's a short overview of recent developments, and one of the many perils of the law review process is how long such things take to get to print.
Even worse than a slow timeline, a miscommunication meant that my final round of edits did not make it into the piece, and there are a couple of errors. The editors were appropriately apologetic, and I know it all happened in good faith. I take some ownership, too, in that I was not at all demanding about knowing the schedule for the next round of edits or the overall timeline.
Ultimately, despite the (nonsubstantive) errors, I hope the piece will be helpful to some folks. There are some interesting oil and gas cases happening in West Virginia (and around the country), and how they turn out could have a significant impact on the oil and gas business.
Here's the abstract to my article, which you can find here:
This Article summarizes and discusses important recent developments in West Virginia’s oil and gas law, including legislative action and case law. This Article is divided into three Sections. First, West Virginia’s evolution in its approach to fractional mineral owner disputes in the Marcellus Shale. After multiple efforts to pass a forced pooling bill, the state settled instead on a cotenancy solution. Second, West Virginia addressed flat-rate royalties, following two court cases, a legislative response, and a subsequent court challenge to the legislation. Finally, this Article discusses three developments in lease interpretation: (1) what will be deemed “reasonably necessary” for oil and gas development in West Virginia; (2) if implied pooling rights are included in West Virginia leases that are silent on the matter; and (3) whether non-executory and non-participating royalty owners have rights to approve pooling.
Wednesday, February 13, 2019
I have been told there may be some flexibility on the March 1 deadline.
The UMKC Law Review is pleased to announce a call for submissions relating to the law surrounding distributed ledger ("blockchain") technology. Selected papers will be published in the Special Topics Symposium, Summer 2019 edition of the UMKC Law Review. This symposium invites proposals for papers that explore the legal and regulatory issues involved in blockchain technology. Today, blockchain technology is used to build tools and infrastructure that help lawyers draft contracts, record commercial transactions, and verify legal documents. In general, investments in blockchain technology has surged over the past year, inviting both legitimate businesses and modern-day scammers. To date, regulatory agencies have yet to determine a consistent approach to the technology that protects the public while not stifling innovation. Issue 1 of UMKC Law Review’s 88th Volume will explore these and related topics with the goal of advancing awareness of blockchain technology and cryptoassets. Articles and essays of all lengths and papers by single authors or multiple authors are invited. Preference will be given to works between 5,000 and 25,000 words. To be accepted for publication in UMKC Law Review, articles must not have been previously published. Papers are due March 1, 2019.
Authors will have the opportunity to immediately publish submitted drafts to UMKC Law Review’s Special Topics Symposium webpage during the editing process. Proposals for papers should be submitted to the attention of
Ashley Crisafulli (email@example.com); and
Prof. Del Wright (firstname.lastname@example.org).
Proposals should include the following information:
Proposed title of paper
Anticipated length as either an article or essay
Abstract or brief description of the topic
Questions may be addressed to Ashley Crisafulli (email@example.com)
Sunday, September 16, 2018
I knew it would be impossible. There was no way to relay my excitement about the potential of blockchain technology in a concise way to lawyers and law students last Friday at the Connecting the Threads symposium at the University of Tennessee School of Law. I didn't discuss cryptocurrency or Bitcoin other than to say that I wasn't planning to discuss it. Still, there wasn't nearly enough time for me to discuss all of the potential use cases. I did try to make it clear that it's not a fad if IBM has 1500 people working on it, BITA has hundreds of logistics and freight companies signed up to explore possibilities, and the World Bank, OECD, and United Nations have studies and pilot programs devoted to it. As a former supply chain person, compliance officer, and chief privacy officer, I'm giddy with excitement about everything related to distributed ledger technology other than cryptocurrency. You can see why when you read my law review article in a few months in Transactions.
I've watched over 100 YouTube videos (many of them crappy) and read dozens of articles. I go to Meetups and actually understand what the coders and developers are saying (most of the time). A few students and practitioners asked me how I learned about DLT/blockchain. First, see here, here, here, and here for my prior posts listing resources and making the case for learning the basics of the technology. What I list below adds to what I've posted in the past.
Here are some of the podcasts I listen to (there are others, of course):
1) The Decrypting Crypto Podcast
2) Block that Chain
3) Block and Roll
4) Blockchain Innovation
Here are some of the videos that I watched (that I haven't already linked to in past posts):
There are dozens more, but this should be enough to get you started. Remember, none of these videos or podcasts will get you rich from cryptocurrency. But they will help you become competent to know whether you can advise clients on these issues.
September 16, 2018 in Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Financial Markets, Human Rights, Law Firms, Law Reviews, Law School, Lawyering, Marcia Narine Weldon | Permalink | Comments (1)
Monday, July 2, 2018
What would the world look like if a public company officer or director, recognizing the value of material nonpublic firm information in his possession and intending to benefit people of limited means, gave this valuable information to those less fortunate without the knowledge or consent of the firm and without any expectation of benefit in return? How, if at all, do we desire to regulate that behavior? The officer or director apparently would be in breach of his or her fiduciary duty absent a valid, binding, and enforceable agreement to the contrary. Does that conduct also, however, violate U.S. federal insider trading rules? Should it? This article, a relatively short piece that I wrote for a "virtual symposium" issue of the Washington University Journal of Law & Policy, offers answers to those questions.
Other symposium authors with insider trading pieces in this volume include:
Great reading on this topic, all around. As we await the next insider trading regulation volley after Salman v. United States, this collection of essays and articles fills a nice gap. Although the issue is not yet posted to the journal's website, it soon should be. In the mean time, here is a photo of the relevant page from the table of contents:
(Sorry for the faint image and the shadows! I took this in my office; no natural light was available, if you know what I mean . . . .)
Thursday, May 10, 2018
Earlier today, I received this call for submissions from the American Business Law Journal ("ABLJ"). I published with the ABLJ in 2017 and had a fabulous experience. The manuscripts are blind/peer-reviewed, something we need more of in the legal academy, in my opinion. I found the substantive comments to be of a much higher quality than one gets from a typical law review, and, unlike the practice of some peer-reviewed journals, the ABLJ published my manuscript in a timely manner.
The American Business Law Journal is seeking submissions of manuscripts that advance the scholarly literature by comprehensively exploring and analyzing legal and ethical issues affecting businesses within the United States or the world. Manuscripts analyzing international business law topics are welcome but must include a comprehensive comparative analysis, especially with U.S. law.
As most of you know, the ABLJ is a triple-blind, peer-reviewed law journal published by the Academy. The ABLJ is available on Westlaw and Lexis, and ranks in the top 6% of all publications in the Washington & Lee Submissions and Ranking list by Impact Factor (2016) and in the top 1% of all peer-edited or refereed by Impact Factor (2016). The Washington & Lee list ranks the ABLJ as the Number One Refereed/peer-edited “Commercial Law” and “Corporations and Associations” journal.
Because of a physical page limit imposed by our publisher Wiley, we ask that manuscripts not exceed 18,000 – 20,000 words (including footnotes). Submissions in excess of 25,000 words (including footnotes) may be returned without review. We also require that manuscripts substantially comply with the Bluebook: A Uniform Method of Legal Citation, 20th ed. For more details, please review our Author Guidelines at: http://onlinelibrary.wiley.com/journal/10.1111/%28ISSN%291744-1714/homepage/ForAuthors.html
Because the peer-review process takes from four to six weeks to complete, we strongly suggest that you submit to the ABLJat least a few weeks prior to submitting to other journals. The peer-review process is not conducive to expedite requests (though we will attempt to honor them if possible), so if you give us a head start we will more likely be able to complete the review process.
While we gladly accept submissions through ExpressO and Scholastica, save yourself the submission fee and submit directly to the ABLJ at firstname.lastname@example.org.
If you have any questions or need additional information, please contact the Managing Editor, Julie Manning Magid, at email@example.com.
Thank you and we look forward to reviewing your scholarly work.
Thursday, December 21, 2017
Earlier this week, President Trump gave his annual speech on national security. As in the past, he failed to stress human rights (unlike his predecessors) but did allude to cooperation, even with China and Russia, when warranted by geopolitical interests. Over the last several months, he has touted bilateral trade agreements. Coincidentally, my latest law review article on a potential bilateral investment treaty with Cuba came out the same day. As you may recall, Trump recently reversed some Obama-era policies on Cuba over human rights. My article may help his administration reconcile some of the apparent contradictions in his policies. The abstract is below.
You Say Embargo, I Say Bloqueo—A Policy Recommendation for Promoting Foreign Direct Investment and Safeguarding Human Rights In Cuba
The United States is the only major industrialized nation that restricts
trade with Cuba. Although President Obama issued several executive orders
that have facilitated limited trade (and President Trump has scaled some
back), an embargo remains in place, and by law, Congress cannot lift it until,
among other things, the Cuban government commits to democratization and
human rights reform. Unfortunately, the Cuban and U.S. governments
fundamentally disagree on the definition of “human rights,” and neither side
has shown a willingness to compromise. Meanwhile, although some U.S.
investors clamor to join their European and Canadian counterparts in
expanding operations in Cuba, many have an understandable concern
regarding the rule of law and expropriation in a communist country. Bilateral
investment treaties aim to address those concerns.
After discussing the legal and political barriers to lifting the embargo, I
propose a partial solution to the stalemate on human rights, which will: (1)
facilitate foreign direct investment in Cuba; (2) protect investor interests
through a bilateral investment treaty; and (3) require an examination of
human rights impacts on the lives of Cuban citizens before investors can
receive the protection of the treaty.
Specifically, I recommend the inclusion of human rights clauses in bilateral
investment treaties (BITs) and investor-state dispute mechanisms as a condition precedent
to lifting the embargo. My solution also requires “clean hands” so that investors seeking relief must
provide proof that their business interests have not exacerbated or been
complicit in human rights abuses, rebut claims from stakeholders that their
business interests have not exacerbated or been complicit in human rights
abuses, or both. Finally, I propose revisions to the 2016 U.S. National Action
Plan on Responsible Business Conduct to incorporate human rights
requirements in future BITs and other investment vehicles going forward.
Anyone with connections to Rex Tillerson is free to pass it on. Happy Holidays to all.
Friday, November 10, 2017
After my daughter Allie's first stay at Vanderbilt Children’s hospital, with what we think was a virus that attacked her lungs, Allie seemed to return to normal for a couple weeks before having another episode. This time, we spent 4 days in the hospital. The praise I lavished on Vanderbilt last time was less deserved on this trip, mostly blamed, staff repeatedly claimed, on a new computer system. (Note: In a place like a hospital, don’t you think you should provide adequate training and work out the bugs before launching a new computer system?)
In any event, Allie is back home again, though we are still working with doctors to uncover the precise cause.
Obviously, my daughter’s health is much more important than work, but I do need to continue to work (if for no other reason than health insurance...we would be bankrupt without health insurance). Given that my focus has been diverted, I have had to push on quite a number of deadlines -- 4 writing assignments and 2 speaking engagements -- and have been slower than normal in returning graded work. Thankfully, students, editors, and colleagues have been quite understanding.
As a professor and a person, I am a big believer in meeting deadlines, so it has been difficult for me to ask for extensions. When asking for extensions, I do think students and professors can “cry wolf” too often, and then, when true emergencies do arise, it becomes harder for the other side to happily grant the extension. This situation has made me even more committed to hitting every deadline I can, so that when I do ask for an emergency extension, people know it is for a valid reason.
Also, this situation has reminded me of the need to create some margin in my life. This past month was going to be a busy one, even without my daughter’s situation. It was doable, but all time needed to be available and efficiently used. Without margin, many projects were impacted, in domino fashion. Now, this situation with my daughter was unexpected and extraordinary and difficult to plan for, and I am not suggesting that we all run at 50% capacity in case of an emergency, but I do think I could have benefited from having built a bit more flexibility into my schedule. (Note: As a law review adviser, I recommended that my students to build some of this margin into their publishing schedule for professors. For example, tell the professors you need the article about a month before you actually do because various issues almost invariably arise.)
In any event, I am quite appreciative to all those who have been so understanding, and I am catching up. Barring any future issues, I think I will be back in the grove and on schedule in about 10 days or so, just in time to gear up for finals.
Wednesday, July 26, 2017
As some of you know (and as I noted in a prior post), I have taught from time to time in the past (and will be teaching again this fall) a course focusing on nonhuman animals and the law. The course reveals, among many other things, that business law doctrine and practice have a number of significant intersections with nonhuman animals. Although I am likely to say more on that later, the earlier post linked in above notes a few things.
Yesterday, I received the "Call for Papers and Features" reproduced below. Many of the suggested topics--and the overall theme of "animal welfare in the context of human development"--engage business law. In particular, agricultural business seems to be on the ends of the editors . . . . Accordingly, I am posting the call thinking that some of our readers would be interested in knowing about this.
[Aside: I do not subscribe to the citation policy of the journal for the "features" being sought through this call--e.g., "Almost every sentence must be cited" and "If a sentence does not have a citation, you should have a good reason (i.e., it is your concluding argument or a recommendation)." Unless those who established these requirements are confident that "features" otherwise meeting their requirements do not contain novel legal or policy arguments or recommendations, that pair of citation "requirements" is absurd, imv.]
* * *
CALL FOR PAPERS AND FEATURES
The Sustainable Development Law & Policy Brief (SDLP) is currently accepting submissions for its Fall 2017 edition on topics related to animal welfare in the context of human development. Development will not be sustainable if animal welfare and human-animal relationships are not included in development programs, policies, and laws. Therefore, it is important to highlight the commonality between animal welfare issues and human justice issues.
If you would like to submit an article or feature for consideration, please contact us at firstname.lastname@example.org immediately. We will accept submissions on a rolling basis. The deadline for submissions is Monday, September 25, 2017. We will select up to four articles and four features for publication, and we will notify the Authors by Monday, October 2, 2017. Article Requirements differ from Feature Requirements – see below.
Topics may include but are not limited to:
§ Consumption of Species Versus Ecotourism in Developing Nations
§ Exploitation of Natural Fisheries and the Associated Issue of Bycatch
§ Challenges in Regulating Offshore Aquaculture
§ The Effects of Anthropogenic Noise on Marine Life
§ Going Meatless and Securing Food Sources: Moving Away from Concentrated Animal Feeding Operations and Meat Consumption
§ Socio-Economic Challenges in Shifting from Animal-Based Agriculture to Plant- Based/Non-Animal Based Agriculture
§ Intersection Between Concentrated Animal Feeding Operations and Environmental Justice
§ Habitat Loss and Deforestation from Agriculture
§ The Role of Financial Institutions in Animal Agriculture Projects
§ How to Move Toward a Global Animal Welfare Policy
§ Human Health Implications Associated with the Production and Consumption of Animal Products
§ Balancing Wildlife and Continued Land Exploitation in National Parks and Preserves
§ The Effects of Deep Sea Bed Mining