Business Law Prof Blog

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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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

 

 

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).

"Reopening Justly or Just Reopening?"

Earlier today (July 14), Fordham University hosted a webinar entitled Reopening Justly or Just Reopening: Catholic Social Teaching, Universities & COVID-19.   

Speakers on the topic of the ethics of reopening schools include the following theology professors: 

• Christine Firer Hinze (Fordham)
• Gerald Beyer (Villanova) 
• Craig Ford (St. Norbert) 
• Kate Ward (Marquette) 

Christine Firer Hinze discussed Catholic Social Thought, human dignity, and solidarity. She reminded us that reopening universities is literally a question of life and death, but is also a question of livelihood. Gerald Beyer stressed looking to the the latest science and considering the common good (the flourishing of all). Craig Ford commented on the reality that some universities may be facing financial collapse, that the pandemic is likely to be with us for a long while, and that there are no perfect solutions. Ford also suggested a focus on protecting those who are most vulnerable. Kate Ward talked about moral injury, lamentation, and redemption. A question and answer period --- including on the topics of racial justice, transparency, shared sacrifices and mental health --- followed opening remarks.

The Plague, Breath, and Work

What remains when the intoxicating distractions of life are removed?

Albert Camus in The Plague (1947) engages this question, and nearly 70 years later, so does Doctor Paul Kalanithi in When Breath Becomes Air (2016).

I read both of these books on vacation at Ocean Isle, NC late last month; this was not exactly light, uplifting beach reading.

Before the plague engulfed the Algerian coastal town of Oran, Camus’ narrator notes that:

Our citizens work hard, but solely with the object of getting rich. Their chief interest is in commerce, and their chief aim in life is, as they call it, “doing business.” Naturally they don’t eschew such simpler pleasure as love-making, sea bathing, going to the pictures. But, very sensibly they reserve these past times for Saturday afternoons and Sundays and employ the rest of the week in making money, as much as possible . . . . Nevertheless there still exist towns and countries where people have now and then an inkling of something different. In general it doesn’t change their lives. Still they have had an intimation, and that’s so much to the good. Oran, however, seems to be a town without intimations; in other words, completely modern.

In sharp contrast to the citizens of Oran, Ben Ellis had steadier footing in advance of tragedy. Ben Ellis was a teacher at the private school connected to our church in Nashville (CPA). Our current pandemic has been clarifying for me in many ways, and it has convinced me that Saint Paul was correct when he wrote that faith, hope, and love are the things that remain. Ben Ellis was already building his life on those three things prior to his cancer diagnosis. As his condition worsened in September of 2016, over 400 students gathered outside of his home to sing worship songs with him. Ben Ellis died about 10 days later. Difficulties can clarify, and Ben’s death clarified that he spent his time focused on meaningful things outside of himself. Watch the clip below to see clear evidence of a man who loved God, his students, and his family well. (His daughter is so poised and thoughtful, and the headmaster obviously valued him).  

But for many of the citizens of Oran, and many of us in the individualistic, materialistic United States, difficulties can also show that we rest on a shaky foundation. If we are focused primarily on financial success and personal status, something like a pandemic or cancer can destroy the entire endeavor in short order.

In terms of “success,” as it is typically defined in the United States, few could be said to surpass Doctor Paul Kalanithi. He followed an undergraduate and masters degree at Stanford University with medical school at Yale. At the time of his cancer diagnosis, he was in his last year of neurosurgical training as the chief resident back at Stanford University. But even with just a few months left to live, Paul went back to work. The purpose of work does not have to be centered on finances and status. In Paul’s case, he returned to work, I think, primarily because he was doing meaningful work with people he cared about. Impending death clarified that status was of little importance, and he turned down a prestigious and lucrative job offer far from family. I do wonder if he would have taken that job in Wisconsin, but for his diagnosis. From his writing, it sounds like he probably would and that may have been a mistake given his underlying priorities. We often lean toward finances and status, even if our highest priorities lie elsewhere. Hopefully, this pandemic can give us all some time for reflection and help us make decisions that elevate those things that are most important.

Business, Church, and State: My Memorial Day Memories

[Image by Keturah Moller from Pixabay ]

When I was young, Memorial Day meant one thing: the Memorial Day Fair at my church, The Cathedral of the Incarnation in Garden City, New York.  As I contemplated how to honor our war dead this Memorial Day, I kept coming back to thinking about that fair.  Others have also had memories of the fair on their minds this week.  A May 25th post in a Facebook group I belong to, I grew up in Garden City, New York, asked: "What are your memories of the Memorial Day fair at the cathedral? I looked forward to it every year!"  At the time this post was published, there were over 100 comments and replies posted.  The Memorial Day Fair even gets a nod on the TripAdvisor page for the church--"Wonderful [sp] Memorial Day Fair and Concert."  Local press stories on the preparations and schedule for this year's fair can be found here and here.

The Memorial Day Fair is a collaborative community event in which local businesses join together with church volunteers to produce a major good time.  The webpage for this year's fair notes ten business sponsors and boasts that the fair "will feature games, inflatables, rides, prizes, and delicious fair food! You'll also find arts & crafts, vendors, organ concerts with patriotic sing-alongs (at 1pm and 3pm), historic tours, and an archives display."  Those commenting in the Facebook group remembered the goldfish (most of which died rather soon after the fair) that many of us won by throwing ping-pong balls into goldfish bowls, the games, the rides, and the food--especially the cotton candy.

I remember all that--and selling ice cream to a famous actor visiting our local famous basketball player.  But I also remember the American Legion's red poppies and the local Memorial Day Parade (which many also remembered in response to the Facebook group post).  These parts of the day were directed almost exclusively toward honoring those who lost their lives fighting for our country and became intertwined with the fair in meaningful ways.

My memories of the Cathedral of the Incarnation Memorial Day Fair remain relatively strong as I take time out today to remember why Memorial Day exists:  to honor the lives of people who died while serving in the U.S. armed forces.  (See also here and here.)  The forces of community in my home town--business and religious interests alike--that came together (and apparently continue to come together) in honor of the men and women who died in military service to our country is a great example of social responsibility in action.  It continues to inspire.

Fall Reading 2018

I posted about my summer reading here, and I have decided to write this sort of post each semester, at least for a few semesters. 

This semester was incredibly busy, and I didn't read as much as I would have liked, but I am glad I finished at least a few books. Nearly all of these books were pretty light

Always looking for interesting books to read - and I am open to reading in most areas - so feel free to leave a comment with suggestions or e-mail me. 

The Honest Truth About Dishonesty - Dan Ariely (Non-Fiction - Ethics/Behavioral Economics, 2013). Duke University behavioral economist examines the environs/structures that encourage or discourage honesty.

Hannah Coulter - Wendell Berry (Fiction-Novel, 2005). Elderly lady, twice widowed, reflects on her life and the lives of her family members as the world changes after World War II, and as the modern world diverts from rural, farming communities like Port William, KY. Berry’s first novel with a female narrator.

The Most Important Year - Suzanne Bouffard (Non-Fiction - Education, 2017). Discusses the importance of the year before kindergarten. (My oldest child starts kindergarten this coming fall). Biggest takeaway was to engage in Q&A with my children while reading to them; engage them.

Bad Blood - John Carreyrou (Non-Fiction - Business and Ethics, 2018). Discusses the Theranos scandal. The executives governed with fear and NDAs. Raised hundreds of millions of dollars (eventually at a $9B valuation), signed big healthcare deals, and recruited board members by appeal to ego, fear of missing out, vague grandiose claims, and name-dropping. No board members or major investors truly understood the science and were unable to uncover the fraud.

Everybody Always - Bob Goff (Non-Fiction - Religion, 2018). Lawyer, Consul to Uganda, Pepperdine Adjunct Law Professor discusses unconditional and unbounded Christian love.

Small Teaching - James Lang (Non-Fiction - Pedagogy, 2016). Read with a group of fellow Belmont professors. Encouraged me to start classes with a few questions about the previous class and/or low-stakes assessments (in the same form as the exams). Break tasks into component pieces and practice; just like football players practice steps and do drills focused on a piece of the whole. Suggests coming to class 10-15 minutes early and trying to engage each student in conversation over the course of the semester.

Your Mind Matters - John Stott (Non-Fiction - Religion, 1972). Lecture turned into a short book, encouraging Christians to engage their minds. Speaks out against anti-intellectualism.

Sergio Alberto Gramitto Ricci on The Technology and Archeology of Corporate Law

The following comes to us from Sergio Alberto Gramitto Ricci, Visiting Assistant Professor of Law and Assistant Director, Clarke Program on Corporations & Society, Cornell Law School.  I had the pleasure of listening to Sergio discuss this project at our recent SEALS discussion group on Masterpiece Cakeshop, and I found particularly interesting his conclusion that "Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans."  The concept of robo-directors is also fascinating, and adds another layer to my ongoing dystopian (utopian?) novel plot wherein corporations are allowed to run for seats in Congress directly (as opposed to what some would argue is the current system wherein we get: "The Senator from [X], sponsored by Big Pharma Corp."). You can download the full draft via SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232816.

In an era where legal persons hold wealth and power comparable to those of nation states, shedding light on the nature of the corporate form and on the rights of business corporations is crucial for defining the relations between the latter and humans. Recent decisions of the U.S. Supreme Court, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Burwell v. Hobby Lobby Stores, Inc., have called for a closer investigation of the role that corporate separateness plays in the business corporation formula. Moreover, legal personhood is a sophisticated legal technology, which employment can revolutionize the strategies to protect cultural heritage or natural features and can address emerging phenomena, including artificial intelligence and learning machines. This paper adopts archeology of corporate law to analyze three intertwining legal and organizational technologies based on legal personhood. Archeology of corporate law excavates ancient laws and language in order to solve salient issues in contemporary and future corporate debates. First, this paper sheds light on the origins and nature of legal personhood and on the rights of business corporations by analyzing laws and language that the Romans adopted when they invented the corporation. For example, excavating roman law shows how Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans. In sum, the Romans drew a line between the legal capacities of their corporations and the rights and liberties that persons possessed by virtue of being human. Second, this paper discusses the separation of ownership and control. It explains how the separation of ownership and control, together with legal personhood, constitutes the essential formula of the business corporation model. Last, this paper explores artificial intelligence in boardrooms to assist, integrate or replace human directors drawing a parallelism between robo-directors and Roman slaves appointed to run joint-enterprises. Barring the statutory restrictions that require for board directors to be natural persons and overcoming the moral concerns related to appointing robo-directors, the remaining issue that AI in boardrooms raises is that of accountability.

Christmas Cheer for All!?

Merry Christmas to all celebrating today.  I am enjoying a white Christmas in Pittsburgh, Pennsylvania with my dad and my brother and his husband, joined later today by my son and his fiancée (who had to work the night shift last night--she's a hospital nurse).  For the first time in many, many years--I think since before I was married in 1985--I am separated from my husband this Christmas.  He is back in Tennessee with my daughter, who celebrated her 26th birthday yesterday.  Their work schedules didn't accommodate holiday travel this year.  My daughter, in particular, worked yesterday and will work again tomorrow.  The working world is a different place now during the holidays than it was when I was a child.

As I sit here with a blood orange mimosa on Christmas morning, that observation set me to thinking about blue laws and Christmas.  (Ann and I are thinking along similar lines this week, it seems . . . .)  A lot of folks save their shopping--including shopping for alcohol--until somewhat the last minute.  This year, Christmas is on a Monday, meaning that Christmas Eve--a prime shopping day--was on a Sunday.  I wondered whether any blue laws prevented stores from being open or alcohol from being sold yesterday (or today, for that matter) . . . .

Back in 2006, when Christmas also was on a Monday, National Public Radio's All Things Considered covered this story from a South Carolina perspective.  Tennessee law, TCA § 57-3-406(e) (2016), provides as follows:

No retailer shall sell or give away any alcoholic beverage between eleven o'clock p.m. (11:00 p.m.) on Saturday and eight o'clock a.m. (8:00 a.m.) on Monday of each week. No retail store shall sell, give away or otherwise dispense alcoholic beverages except between the hours of eight o'clock a.m. (8:00 a.m.) and eleven o'clock p.m. (11:00 p.m.) on Monday through Saturday. The store may not be open to the general public except during regular business hours. Likewise, all retail liquor stores shall be closed for business on Thanksgiving Day and Christmas Day.

So, folks in Tennessee could not buy drinking alcohol yesterday from any store but can buy spirits today (absent applicable local ordinances to the contrary) from a retail store that is not a liquor store (if I am reading that correctly).

Massachusetts, my immediate former home state, has many exceptions to its blue laws, including allowing certain retail establishments to be open on Sundays, provided that rank-and-file (non-executive, non-administrative over a certain pay grade) retail employees are paid time-and-a-half if the business employs more than seven people.  See MGL c. 136, § 6(50).  This exception does not apply to any state-defined legal holiday (and to Christmas, when it is on a Sunday), but the exception does apply to the day following Christmas when Christmas occurs on a Sunday.  The exception for alcohol sales is more detailed and includes:

The retail sale of alcoholic beverages not to be drunk on the premises on Sundays by retail establishments licensed under section 15 of chapter 138; provided, however, that notwithstanding this chapter, a municipality may prohibit the retail sale of alcoholic beverages on Sundays by licensees under section 15 by vote of the city council or board of selectmen; provided further, that there shall be no such sales prior to the hour of 10:00 a.m. or on Christmas Day if Christmas occurs on a Sunday; and provided further, that establishments operating under this clause which employ more than 7 persons shall compensate all employees for work performed on a Sunday at a rate of not less than one and one-half of the employee's regular rate. No employee shall be required to work on a Sunday and refusal to work on a Sunday shall not be grounds for discrimination, dismissal, discharge, deduction of hours or any other penalty.

MGL c. 136, § 6(52).  Massachusetts apparently delegates significant control to municipalities on the alcohol issue.  The general Massachusetts blue law proscriptions are contained in MGL c. 136, § 5:

Whoever on Sunday keeps open his shop, warehouse, factory or other place of business, or sells foodstuffs, goods, wares, merchandise or real estate, or does any manner of labor, business or work, except works of necessity and charity, shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars for a first offense, and a fine of not less than fifty dollars nor more than two hundred dollars for each subsequent offense, and each unlawful act or sale shall constitute a separate offense.

Even where retail establishments may be open, states may regulate work on Christmas--and on other holidays, too--designated as legal holidays by the state.  I grew up with a system of federal and state holidays that serve this purpose.  But The Legal Genealogist tells us that Christmas has not been a government-designated holiday from work for very long.  The Tennessee list for 2017 can be found here.  The Massachusetts legal holiday list is here.

Anyway, lest I bore you with my holiday blue law musings, I will close now by wishing you a happy continuing holiday season from here in Pittsburgh. Enjoy time with and memories of family and friends.  From my house to yours, this brings wishes for a lovely holiday week.  Enjoy.

Marketing God and Jesus: The Growing Commercialization of Religion

This past week, I traveled through parts of Tennessee and Georgia to attend a concert (Train with Natasha Bedingfield and O.A.R.--fantastic!) and visit the University of Georgia School of Law (to plan the 2018 National Business Law Scholars conference).  On that trip, I saw a number of billboards with religious messages--more than I remember having seen in the past.  This set me to reflecting on the use of billboards--typically commercial space--for this purpose.  I share a few observations today on that topic.

The messages on the billboards I saw appear to be important to the speakers who offer them.  [Note that in this paragraph I am working from memory but have tried to describe what I saw as accurately as possible.]  I saw several that were just printed with the word "JESUS" (in all capital letters, as I have written it here) and one that said: "TRUST JESUS" (again, in all caps, as written here) with a faded waving American flag in the background.  But the most striking billboard that I saw was one that stated: "In the beginning God created everything," a message that was accompanied on the left by a circle in which the Darwinian progression to humankind was depicted and across which there was a large "X."

On the one hand, highway billboards are a great vehicle for the exercise of free speech.  We are captive in our vehicles and generally bound to certain key routes when engaged in car travel over any significant distance.  Other than distinctive local flora and buildings (as well as traffic, exit, and other roadside driving guidance), billboards are the primary visual as one drives on a highway.  In fact, their size often makes them more attractive than those flowers, structures, and signage.  (Although I have never missed an exit for a billboard, I have come close.)

The use of billboards for religious messaging does not convert the message to commercial speech (to the extent that question may be relevant to any free speech analysis).  

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Summer Reading: Visions of Vocation by Steven Garber

In last week’s post, I mentioned Dr. Steven Garber. Recently, I finished his 2014 book Visions of Vocation: Common Grace for the Common Good. This book is among a handful of  books in the faith & work area that I have read over the past few months.

Visions of Vocation is beautifully written, lyrical and rich. Garber’s weaves philosophy, literature, and personal stories throughout the book’s 255 pages.

Garber’s thesis in this talk, which echoes in much of his work, is that “vocation is integral, not incidental to the Missio Dei (mission of God)." Garber says the book Visions of Vocation grew out of these questions: Can you know the world and still love the world? & What will you do with what you know? The first question hits home, as the flaws of jobs and people often become more vivid over time.  After the second question, Garber shows how stoicism and cynicism are unsatisfying responses.  

Garber offers no easy answers, which is, perhaps, on purpose. These are difficult questions in a difficult area, and easy answers may not exist. I finished the book still hoping for some clear principles for integrating faith and work, but maybe the stirring questions were the point. The stories of folks at International Justice Mission and Elevation Burger, among others, do help in thinking about how faith and work fit together, as do the references to Walker Percy and Wendell Berry.

Again, this is not a book that provides a few simple steps or quick takeaways, but for a number of days after finishing it, I am still pondering its contents. For that reason, I think the book was well worth reading.

Faith and Work in Business

Below are some resources related to the integration of faith and work stemming from businesses or business people.

Companies 

• Chick-fil-A
• Greyston Bakery
• Forever 21
• Hobby Lobby
• In-N-Out Burgers
• Marriott
• Timberland
• Tyson Food

Organizations

• Acton Institute 
• C12 Group
• Christian Legal Society
• Institute for Faith, Work, and Economics
• Jobs for Life

Presentations 

• Faith and Art - Vito Auito
• Vocation is Integral - Steven Garber
• Faith & Work Summit - Troy Tomlinson and Bill Lee

Books and Articles

• Vocation Needs No Justification - Steven Garber
• Visions of Vocation - Steven Garber
• Faith and Fortune - Marc Gunther
• Why Work - Dorothy Sayers
• Redeeming Law - Michael Schutt

Seeking Economic Prosperity and Social Justice: Getting Out of Our Own Way

The political discourse of this election cycle, and the respective postures of the two main political parties, suggest that social justice and economic prosperity are in opposition to one another. At times, it seems that some believe pursuing racial and gender equality are (at best) distractions from “real problems” like jobs and the economy. Others seem to think any form of business or industrial development is essentially sanctioning the destruction of the Earth and its people. Both are wrong.

Equity and fairness are not anathema to economic progress. In fact, in the big picture, they are essential. There is nothing inconsistent about being pro-business and supporting social justice. One can believe in social justice and still think there are too many regulations that hamper businesses. There are, for example, regulations that disproportionately keep women and minorities from opening their own businesses. And there are laws and regulations that create barriers to entry and help maintain market power businesses where competition is both warranted and necessary..

My colleague, Haskell Murray recently posted Faith and Work in Universities, which lists some resources related to religion and scholarly activity, particularly as it related to business. This is a worthwhile discussion, and far too often we see discussions of business and morality as separate areas – silos related to separate and competing goals. 

This is not unlike the separation in environmental law and energy law I discussed in a recent short piece about the changing role of natural gas in the clean energy movement where I noted:

Electricity generation for industrial and residential consumers was one of the major drivers behind environmental regulation, but despite this long-standing connection, environmental law and energy law have often operated in separate silos. This fact has led to disjointed and ineffective policy and a poor understanding of the full scope of legal, regulatory, and business issues in the energy sector. (footnote omitted)

This is true in the broader business and social justice realm, as well. As Haskell’s compilation shows, though, that business and social justice (including, but not limited to, religion) are interrelated is hardly novel.  When Pope Francis visited the U.S. Congress, he explained:

The right use of natural resources, the proper application of technology and the harnessing of the spirit of enterprise are essential elements of an economy which seeks to be modern, inclusive and sustainable. "Business is a noble vocation, directed to producing wealth and improving the world. It can be a fruitful source of prosperity for the area in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good" (Laudato Si', 129). 

Social justice and economic development are not either-or propositions, despite what recent election choices may have implied. There is, I think, a vast underrepresented center in America that cares both about pragmatic economic decisions and basic fairness and equity. This past election, I hope and believe, demonstrated more about the priorities of various voters rather than clear divides about the issues themselves.  To be sure, there are large numbers of people for whom this is not true -- there is some fundamental disagreement out there -- but I think the vast majority of people are decent caring people who have different ideas about the hierarchy of what is most important to move the country forward. 

This is not to ignore the repugnant behavior, language and acts, from some people before and since the election. There have been outrageous acts of violence and intimidation.  Shortly after the election, some of our law students were victims of such acts. As examples, one student was spit upon and racial epithets were shouted at another. There is no place hateful behavior, and it is unacceptable. A recent speaker invited to our campus said hateful and hurtful things about a valued faculty member. Free speech is a virtue, but this is simply not how we should treat each other, and it is shameful. And although racism, misogyny, anti-LGBT and anti-religious sentiment, and xenophobia have been part of virtually every government at some point, no government has found lasting peace or prosperity based on any of those things.

My point is not intended to suggest a Pollyanna-esque view of the world. I am not blindly asking, “Can’t we all just get along?”  I am asking whether we can agree to try.

It's going to take a lot of work, and there are no simple answers. But we must start somewhere. Here are three modest principles to get started moving forward together:

1. Stop succumbing to base and visceral reactions. We need to stop assuming everyone is lying and cheating and taking something from us so that we notice those who really are lying and cheating and taking something from us.

2. Be skeptical of uncompromising absolutists. There are some absolutes in this world, to sure, but not nearly as many as we have been led to believe. And this is not a conservative or liberal issue. It’s an issue. Anyone who thinks they are right all the time is wrong. 

3. Reaffirm our nation’s founding principles and self-evident truths, that all people are “created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” I think it is right to say we have evolved from knowing such rights belong to men to know such rights belong to us all.

These principles require seeing compromise as valuable. Virtually all of us agree about that, because most of us have jobs and friends and loved ones. Compromise is a big reason why or we wouldn’t have those people in our lives. Compromise does not mean sacrificing one’s beliefs or values.  It means recognizing the value and autonomy of others. It means seeing the mutual value of others in the world around us.  But also, to be clear, compromise is not one side listening and being nice while the other side sits obstinately waiting to get what they want.  Compromise requires that both sides work and give up something. Compromise is not, and cannot be, unilateral disarmament.   

Let’s debate vigorously the best way to achieve economic prosperity.  Let’s argue respectfully about how best to care for the nation’s poor and elderly.  But let’s value and respect each other. In short, let’s get out of our own way. We have work to do. 

Faith and Work in Universities

Earlier, I focused on the faith and work movement in churches, and I plan to add to that post over coming weeks. In this post, I will start aggregating information on faith and work in universities. I plan to list university initiatives, scholarly articles and books, and professor presentations.

University Initiatives

• Butler University – Center for Faith and Vocation
• Concordia College - Lorentzsen Center for Faith and Work
• LeTourneau University – Center for Faith and Work
• Princeton University – Faith and Work Initiative
• Saint John's Law School - Center for Law & Religion 
• Seattle Pacific University – Center for Integrity in Business
• University of Arkansas - The Tyson Center for Faith and Spirituality in the Workplace
• University of Dayton – Center for Integration of Faith and Work
• University of St. Thomas – Faith and Work Talk Series

Articles and Books

• Lyman Johnson (Washington & Lee University and University of St. Thomas) – Faith and Faithfulness in Corporate Theory
• David Miller (Princeton University) – God at Work
• Jeff Van Duzer (Seattle Pacific University) – Why Business Matters to God

Presentations

• David Miller (Princeton University) – Succeeding Without Selling Your Soul
• Michael Naughton (University of St. Thomas) – Beyond Career to Calling: The Vocation of the Business Leader
• Jeff Van Duzer (Seattle Pacific University) – Why Business Matters to God

Faith and Work in Churches

Interest from churches in the integration of faith and work seems to have grown exponentially over the past few decades. That said, as far back as Martin Luther, there has been a call to view even jobs outside of ministry as a vocation or religious calling.  

I plan to update this post from time to time, and I may add more discussion, but for now, I will just list some of the church-founded or church-connected faith & work initiatives or resources below. I welcome suggestions for additions to this list.

Organizations 

• Center for Faith and Work (This recent video on Civility in the Public Square is one example their events)
• Denver Institute for Faith & Work
• Institute for Faith, Work & Economics
• Nashville Institute for Faith & Work
• U.S. Conference of Catholic Bishops: The Dignity of Work and the Rights of Workers

Presentations and Panels

• Why Faith@Work Matters - Katherine Leary Alsdorf
• Redefining Work - The Gospel Coalition Panel Discussion 
• Why Work Matters - Tim Keller

Books

• Culture Making - Andy Crouch
• Every Good Endeavor - Tim Keller
• Life at Work - John Maxwell 
• Work Matters - Tom Nelson

Faith and Business: Introduction

From Hobby Lobby to Chick-fil-A to Indiana’s RFRA to wedding photographers and wedding cake bakers, “faith and business” has been in the headlines quite a bit over the past few years.

Over the next few weeks, I plan to write a series of posts exploring developments in this area of faith and business. I plan three additional posts, looking at faith and business (sometimes called, "faith and work") initiatives in (1) universities, (2) churches, and (3) businesses. My comments in this series will have a Christian focus, as that is my faith and is the area with which I am most familiar, but I welcome comments from any faith tradition.

Based on what I have seen around the country, many universities, churches, and businesses seem to be increasing their focus on the integration of faith and business. For some, this is a terrifying development. For others it is long overdue. I submit that both sides should attempt to engage in perspective-taking and nuanced discussion in an attempt to reach common ground.

As someone who prioritizes his faith, I also want to share my personal thoughts on the area of “faith and business” in this introductory post. First, some Christians, myself included, often lose sight of the fact that Jesus said that all the law hangs on loving God and loving others. Jesus cared for the societal outcasts (here, here, and here), while strongly (but lovingly) criticizing the spiritual leaders. He had and has followers with a diverse variety of political views. Jesus did things like healing people on the Sabbath that appeared to break religious law, but actually fulfilled the true, loving spirit of the law. Second, as Inside Edition correspondent Megan Alexander reminded Belmont University students and faculty last week, Christians should focus on doing high quality work, because the Christian scripture instructs for us to our work “heartily, as for the Lord.” This is a tough one for me, as I am often dissatisfied with my work product, but I think the call is to do the absolute best work you can do, with your talents and given your various responsibilities. Third, and finally, I think participants in the “faith and business” conversation have to realize that people of faith are unlikely to be able to leave their faith at home. There can be good conversations about how that faith can and should be expressed in business, but I don’t think it is realistic to think that serious people at faith can just turn off their beliefs while at work. While the discussions about the interplay of faith and business may be difficult, they are important discussions to have in this pluralistic society.

Pepperdine University, Seaver College - Business Law Professor Position

Today, the following business law professor position at Pepperdine University's Seaver College was brought to my attention. Further information is available here and below.

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Assistant Professor of Business Law

The business administration division of Pepperdine University seeks a candidate with a terminal degree in law for a tenure-track position in business law. Candidates are expected to complete all requirements for the JD before the date of appointment, which is August 1, 2017. A documented research interest in law is required and teaching experience is preferred. The expected courses taught would be undergraduate classes in business law and international business. The flexibility to teach occasionally in another field is preferred.

The business program at Seaver College, is accredited by The Association to Advance Collegiate Schools of Business (AACSB). USA Today ranked Seaver's business program as the 7th best undergraduate business program in the country. We have approximately 775 undergraduate students in the Business Administration Division. Despite the large number of majors, our classes are small (rarely more than 25 students) and our faculty is collegial and collaborative. The division offers Bachelor of Science degree programs in accounting, business administration, and international business, and a contract major in finance. Degree programs are offered on a full-time, residential basis at the campus in Malibu, California. Seaver College has an enrollment of approximately 3,200 students. Please visit our website for more information.

Pepperdine University was established in 1937 by Mr. George Pepperdine, a Christian businessman, who stressed the desirability of a complete education built on a Christian value system. The institution is committed to the ideals of the founder. Successful candidates also must demonstrate an active commitment to Pepperdine's Christian mission and tradition. Located near Los Angeles in Southern California, Pepperdine University is especially interested in candidates who can contribute through their teaching, research and service to the diversity and excellence of the University and our surrounding community.

Applicants should apply at apply.interfolio.com/35896.  A background check will be required as a condition of employment.

For more information, please contact the chair of the search committee:

Keith Whitney ([email protected] )

Chair, Recruiting Committee

Business Administration Division

Seaver College, Pepperdine University

24255 Pacific Coast Highway

Malibu, CA 90263

Entities Should Ask Before Exercising Citizens United and Hobby Lobby Rights

A recent Vanity Fair article discussing Citizens United is making the rounds. (I saw it on Facebook!)  The article notes:  

It had already been established, in Buckley v. Valeo (1976), that anyone has a First Amendment right to spend his or her own money advancing his or her own cause, including a candidacy for political office. Citizens United extended this right to legally created “persons” such as corporations and unions.

I have been giving some more thought to whole “personhood” discussion of late, and my thoughts have taken me back to both Hobby Lobby and Citizens United. What follows is a long blog post that pulls together my thoughts on these two cases in an admittedly not well developed way.  But it's a start (though I really should be grading).  

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Legislated Discrimination Is Terrible for Business

My home state in West Virginia is struggling.  The economy is struggling because two of the state's main industries -- coal and natural gas -- are facing falling production (coal) and low prices (gas). Severance taxes for the state account for approximately 13% of the budget, and both are down dramatically. Tax revenues for the state were down $9.8 million in January from the prior year and came up $11.5 million short of estimates.  For the year-to-date, the state collected $2.29 billion, which is $169.5 million below estimates. Oddly enough, state sales and income taxes for January both exceeded estimates, but not enough to offset other stagnation in the state.  

The state has long been known as a coal state, and that industry has dominated the legal and political landscape.  West Virginia has been criticized for having a legal system that is "anti-business," with the United States Chamber of Commerce finding stating that West Virginia is the 50th ranked state in terms of the fairness of its litigation. (See PDF here.) CNBC (with input from the National Association of Manufacturers) also ranked West Virginia last in terms of business competitiveness, so the starting point is not good.  

Now, the West Virginia legislature is considering the state's Religious Freedom Restoration Act, which many (including me) see as about legalizing specific forms of discrimination, and not promoting or supporting religion.  And some religious groups agree.  As the Catholic Committee of Appalachia’s West Virginia Chapter explains: 

We appreciate the background of 1993 federal act with the same name, and the history leading up to it, with its pertinence to protecting Native American sacred lands and religious practices from governmental infringement. With the U.S. Supreme Court’s decision that RFRA would only be applicable to federal actions, we can recognize, also, the value of an argument for versions of a law to be passed at the local level. However, the primary motivation behind West Virginia’s bill #4012, and others like it, seems not to be the protection of legitimate religious exercises, but securing the ability of religious groups to discriminate against marginalized populations on the basis of religious convictions.

Just as important for purposes of this post, many West Virginia businesses oppose the bill.  Local Embassy Suites and Marriott hotels representatives spoke out against the bill, and the Charleston (WV) Regional Chamber of Commerce and Generation West Virginia, along with several city mayors, have opposed the bill, as well.  They have good reason.  When the state of Indiana passed a similar bill, Indianapolis promptly lost as many as twelve conventions and estimates around $60 million.  Ouch. As one mayor said, West Virginia legislators need to "Get out of the way." 

Morgantown, home to my institution, was the state’s second city to pass an LGBT non-discrimination ordinance in February 2014. West Virginia University’s faculty senate also unanimously yesterday approved a resolution condemning the bill. And there was a chance to make clear the intent of the bill was not intended to be used as a way to discriminate against someone based sexual orientation through a proposed amendment making that clear. Unfortunately, the amendment was deemed “not germane.”

Beyond coal, natural gas, chemicals, and timber, tourism is one of our state's main industries. It's also a great one. From whitewater rafting to skiing to hiking, the state is a great place for outdoor activities.  Craft breweries and a few great local restaurants are helping make the state a destination.  Unfortunately, the debate about this bill, especially in the wake of the backlash in Indiana, is hurting the state's ability to make build up it's tourism industry by making many people feel unwelcome.  

It's really too bad as a local restaurant, Atomic Grill, made international news for how they responded to comments about their waitresses and has been lauded for their response to other intolerance in their restaurant.  

I don't like this bill because, to me, it's either a tautology or an attempt to discriminate through legislation.  But beyond that, it's stupid, terrible way to promote business in the state.  We spend enough time trying to get people to come visit -- and when people do, they almost always like it. It really is a great place in so many ways.  At a time when the entire state is looking at 4% budget cuts across the board -- when we need to be building bridges to broader audiences -- the state's legislature is screwing around with bills that have zero economic upside and reinforce stereotypes about the people of our state.   

Being pro-business means being pro-consumer, which really means being pro-people.  This bill is none of those.  We need to do better, and it's disappointing our time and our money are being wasted like this.