Tuesday, October 5, 2021

AULR's "My Favorite Law Review Article"

The following comes to us from one of our devoted readers (and fellow business law blogger), Walter Effross. He writes to inform us about a new initiative that he suggested to the American University Law Review, in which faculty, practitioners, judges, regulators, and others discuss "My Favorite Law Review Article." The inaugural video (in which Walter recommends an Elizabeth Warren article) is here.

The guidelines for submissions are as follows:

1. Select the law review article that you wish to discuss. (Please choose an article that you did not write or co-author.)
2. All forms of video recording (Zoom, Photo Booth, phone camera, etc.) are acceptable; our team will edit appropriately.
3. Please try to keep your review between five and seven minutes long.
4. At the beginning of the video, please introduce (1) yourself and (2) the title and author of the Article. [including the citation, or at least the year of publication?]
5. Please provide a brief synopsis of the piece, read one or more pertinent passages, and/or discuss a particularly moving/interesting segment.
6. Most importantly, explain why this article is your favorite. You might consider discussing: when and how you first read it; what makes it special to you—the topic itself, the writing style, and/or something else; why others should read it; and/or how it contributed to your understanding of, or passion for, specific areas of the law.
7. Email your recording to Emily Thomas, at thomasemilyjane@gmail.com

I am intrigued by this initiative.  I admitted to Walter that it is making me think about what my favorite might be . . . .  The website notes that the law review hopes "that this collaborative project brings legal thinkers together and initiates productive conversation about the legal community and how we can better understand each other’s points of view." I will be interested to see where this goes.  Let me know if you contribute!

[Editor's Note: Most of this post comes directly from an email I received from Walter.  So, I tip my hat to him and thank him for the text of this post!]

October 5, 2021 in Joan Heminway, Law Reviews, Research/Scholarhip | Permalink | Comments (0)

Monday, October 4, 2021

Connecting the Threads 2021 - My Thread in the Tapestry . . . .

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With my bum shoulder and a lot of work on our dean search cramping my style over the past few weeks, I have been remiss in posting about the 2021 Business Law Prof Blog Symposium, Connecting the Threads V.  The idea behind the name (and Doug Moll likes to riff on it--so have at it, Doug!) is that our bloggers here at the BLPB connect the many threads of business law in what we do--here on the blog and elsewhere.

Anyhoo (as Ann would say), as always, my BLPB co-bloggers did not disappoint in their presentations.  I know our students look forward to publishing many of the articles and the related commentaries in the spring book of our business law journal, Transactions: The Tennessee Journal of Business Law.  I also am always so proud of, and interested to hear, the commentary of my colleagues and students.  This year was no exception.

In the future, I will post more about the article that I presented.  But I will offer a teaser here, accompanied by the above screen shot from the symposium.  (It was "Big Orange Friday" on our campus.  The orange had to be worn.  Go Vols!)

The title of my presentation and article is Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.  A brief excerpt from the continuing legal education handout for the symposium presentation is set forth below (footnotes omitted).

[T]his presentation urges that competent, complete legal counsel on choice-of-entity for nonprofit business undertakings should extend beyond advising clients on which form of business entity best fits their needs and wants, if any. For many small business ventures that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended (“IRC”), as religious, charitable, scientific, literary, educational, or other eligible organizations under Section 501(c)(3) of the IRC . . . , the time and expense of organizing, qualifying, managing, and maintaining a tax-exempt nonprofit corporation under state law may be daunting (or even prohibitive). Moreover, the structures imposed by business entity law may not be needed or wanted by the founders or promoters of the venture. Yet, there may be distinct advantages to entity formation and federal tax qualification that are not available (or not as easily available) to unincorporated not-for-profit business projects. These may include, for example, exculpation for breaches of performative fiduciary duties and limitations on personal liability for business obligations available to participants in nonprofit corporations under state statutory law and easier clearance of or compliance with initial and ongoing requirements for tax-exempt status under federal income tax law.

The described conundrum—the prospect that founders or promoters of a nonprofit project or business may not have the time or financial capital to fully form and maintain a business entity that may offer substantial identifiable advantages—is real. Awareness of this challenge can be disheartening to lawyer and client alike. Fortunately, at least for some of these nonprofit ventures, there is a third option—fiscal sponsorship—that may have contextual benefits. This presentation offers food for thought on the benefits of fiscal sponsorship, especially for arts and humanities endeavors.

Again, I will have more to say about this later, once the article is fully crafted.  But your thoughts on fiscal sponsorship--and examples, stories, and the like--are welcomed in the interim as I continue to work through the article.

October 4, 2021 in Ann Lipton, Conferences, Joan Heminway, Lawyering, Nonprofits, Research/Scholarhip | Permalink | Comments (0)

Friday, September 24, 2021

Ten Ethical Traps for Business Lawyers

I'm so excited to present later this morning at the University of Tennessee College of Law Connecting the Threads Conference today at 10:45 EST. Here's the abstract from my presentation. In future posts, I will dive more deeply into some of these issues. These aren't the only ethical traps, of course, but there's only so many things you can talk about in a 45-minute slot. 

All lawyers strive to be ethical, but they don’t always know what they don’t know, and this ignorance can lead to ethical lapses or violations. This presentation will discuss ethical pitfalls related to conflicts of interest with individual and organizational clients; investing with clients; dealing with unsophisticated clients and opposing counsel; competence and new technologies; the ever-changing social media landscape; confidentiality; privilege issues for in-house counsel; and cross-border issues. Although any of the topics listed above could constitute an entire CLE session, this program will provide a high-level overview and review of the ethical issues that business lawyers face.

Specifically, this interactive session will discuss issues related to ABA Model Rules 1.5 (fees), 1.6 (confidentiality), 1.7 (conflicts of interest), 1.8 (prohibited transactions with a client), 1.10 (imputed conflicts of interest), 1.13 (organizational clients), 4.3 (dealing with an unrepresented person), 7.1 (communications about a lawyer’s services), 8.3 (reporting professional misconduct); and 8.4 (dishonesty, fraud, deceit).  

Discussion topics will include:

  1. Do lawyers have an ethical duty to take care of their wellbeing? Can a person with a substance use disorder or major mental health issue ethically represent their client? When can and should an impaired lawyer withdraw? When should a lawyer report a colleague?
  2. What ethical obligations arise when serving on a nonprofit board of directors? Can a board member draft organizational documents or advise the organization? What potential conflicts of interest can occur?
  3. What level of technology competence does an attorney need? What level of competence do attorneys need to advise on technology or emerging legal issues such as SPACs and cryptocurrencies? Is attending a CLE or law school course enough?
  4. What duties do lawyers have to educate themselves and advise clients on controversial issues such as business and human rights or ESG? Is every business lawyer now an ESG lawyer?
  5. What ethical rules apply when an in-house lawyer plays both a legal role and a business role in the same matter or organization? When can a lawyer representing a company provide legal advice to an employee?
  6. With remote investigations, due diligence, hearings, and mediations here to stay, how have professional duties changed in the virtual world? What guidance can we get from ABA Formal Opinion 498 issued in March 2021? How do you protect confidential information and also supervise others remotely?
  7. What social media practices run afoul of ethical rules and why? How have things changed with the explosion of lawyers on Instagram and TikTok?
  8. What can and should a lawyer do when dealing with a businessperson on the other side of the deal who is not represented by counsel or who is represented by unsophisticated counsel?
  9. When should lawyers barter with or take an equity stake in a client? How does a lawyer properly disclose potential conflicts?
  10. What are potential gaps in attorney-client privilege protection when dealing with cross-border issues? 

If you need some ethics CLE, please join in me and my co-bloggers, who will be discussing their scholarship. In case Joan Heminway's post from yesterday wasn't enough to entice you...

Professor Anderson’s topic is “Insider Trading in Response to Expressive Trading”, based upon his upcoming article for Transactions. He will also address the need for business lawyers to understand the rise in social-media-driven trading (SMD trading) and options available to issuers and their insiders when their stock is targeted by expressive traders.

Professor Baker’s topic is “Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis.” Professor Baker will provide an overview of the regulation of Texas’ electric power system and the severe outages in February 2021, explaining why Texas is on the forefront of challenges that will grow more prominent as the world transitions to cleaner energy. Next, it explains competing electric power business models and their regulation, including why many had long viewed Texas’ approach as commendable, and why the revealed problems will only grow more pressing. It concludes by suggesting benefits and challenges of these competing approaches and their accompanying regulation.

Professor Heminway’s topic is “Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.” Professor Heminway will discuss how for many small business projects that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended, the time and expense of organizing, qualifying, and maintaining a tax-exempt nonprofit corporation may be daunting (or even prohibitive). Yet there would be advantages to entity formation and federal tax qualification that are not available (or not easily available) to unincorporated business projects. Professor Heminway addresses this conundrum by positing a third option—fiscal sponsorship—and articulating its contextual advantages.

Professor Moll’s topic is “An Empirical Analysis of Shareholder Oppression Disputes.” This panel will discuss how the doctrine of shareholder oppression protects minority shareholders in closely held corporations from the improper exercise of majority control, what factors motivate a court to find oppression liability, and what factors motivate a court to reject an oppression claim. Professor Moll will also examine how “oppression” has evolved from a statutory ground for involuntary dissolution to a statutory ground for a wide variety of relief.

Professor Murray’s topic is “Enforcing Benefit Corporation Reporting.” Professor Murray will begin his discussion by focusing on the increasing number of states that have included express punishments in their benefit corporation statutes for reporting failures. Part I summarizes and compares the statutory provisions adopted by various states regarding benefit reporting enforcement. Part II shares original compliance data for states with enforcement provisions and compares their rates to the states in the previous benefit reporting studies. Finally, Part III discusses the substance of the benefit reports and provides law and governance suggestions for improving social benefit.

All of this and more from the comfort of your own home. Hope to see you on Zoom today and next year in person at the beautiful UT campus.

September 24, 2021 in Colleen Baker, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Ethics, Financial Markets, Haskell Murray, Human Rights, International Business, Joan Heminway, John Anderson, Law Reviews, Law School, Lawyering, Legislation, Litigation, M&A, Management, Marcia Narine Weldon, Nonprofits, Research/Scholarhip, Securities Regulation, Shareholders, Social Enterprise, Teaching, Unincorporated Entities, White Collar Crime | Permalink | Comments (0)

Monday, September 13, 2021

AALS Section on Transactional Law & Skills - Extended Submission Deadline

The Section on Transactional Law & Skills has extended its deadline for paper proposals for its program at the 2022 Annual Meeting to Friday, September 17. Submissions can be sent directly to Megan Shaner at mshaner@ou.edu. I cribbed the following from a message she wrote to the section membership last week.  (Thanks, Megan!)

The topic of the section's program this year is "Transactional Lawyering at the Intersection of Business and Societal Well-Being" and, according to the preliminary program for the conference, the program is tentatively scheduled for 11 a.m. to 12:15 p.m. on Friday, January 7, 2022. The first part of the program focuses on how to incorporate ESG issues and impact topics across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses. The second part of the program consists of scholarly presentations to be selected from the Call for Papers set forth below. If you incorporate ESG, corporate social responsibility, impact investing or governance, or related topics into your scholarship in any way, you should consider submitting your paper in response to the Call for Papers.

CALL FOR PAPERS
AALS SECTION ON TRANSACTIONAL LAW AND SKILLS
Transactional Lawyering at the Intersection of Business and Societal Well-Being
2022 AALS Annual Meeting

The AALS Section on Transactional Law and Skills is pleased to announce a call for papers for its program, “Transactional Lawyering at the Intersection of Business and Societal Well-Being,” at the 2022 annual meeting of the AALS. This program will explore how ESG and broader societal considerations are increasingly influencing the flow of capital in the global marketplace, corporate governance planning, merger and acquisition activity and structures, as well as other transactional topics. The events of 2020, for example, have shifted the focus of business entity governance, equality and access in securities markets, and transactional planning and deal structures in significant and lasting ways – questioning whether current structures and systems are working well for all stakeholders and society more broadly. COVID-19 and social movements have broadened ESG efforts to include previously overlooked issues such as human resource policies (e.g., sick leave, parental leave), workplace health and safety, supply chain management, continuity and emergency planning, and diversity and inclusion hiring practices and training. In addition, proposals are being considered (and some adopted) to require gender diversity on boards of directors as well as additional disclosures related to human capital. This program will look at how transactional lawyering in a variety of contexts can address/respond to recent calls for increased consideration and balancing of ESG issues and impact topics.

The annual meeting will be held virtually from January 5-9, 2022, with the Section on Transactional Law and Skills panel scheduled for Friday, January 7, from 11 a.m.-12:15 p.m. (EST). In addition to the paper presentation, the program will feature a panel focusing on how to incorporate these topics and issues across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses.

Submission Information:

The Section on Transactional Law and Skills invites any full-time faculty member of an AALS member school who has written an unpublished paper, or who is interested in writing a paper on this topic, to submit a 1 or 2-page proposal or full draft to Megan Shaner, Chair of the Section, at mshaner@ou.edu on or before September 17, 2021. Papers accepted for publication but that will not yet be published as of the 2022 meeting are also welcome. Please remove the author’s name and identifying information from the submission and instead include the author’s name and
contract information in the submission e-mail.

After review and selection by the Section’s Executive Committee, the authors of the selected papers will be notified in mid-September 2021. The Call for Paper presenters will be responsible for paying their registration fee for the conference.

Any inquiries about the Call for Papers should be submitted to the Section Chair Megan Shaner, University of Oklahoma College of Law, at mshaner@ou.edu or (405) 325-6619.

On behalf of the Section on Transactional Law and Skills

Chair: Megan W. Shaner (University of Oklahoma)
Chair-Elect: Eric Chaffee (The University of Toledo)
Past Chair: Matthew Jennejohn (Brigham Young University)

Members of the Executive Committee:

Andrea Boyack (Washburn University)
Patience Crowder (University of Denver)
Cathy Hwang (University of Virginia)
Jay Kesten (Florida State University)
Praveen Kosuri (University of Pennsylvania)
Greg Shill (University of Iowa)

September 13, 2021 in Call for Papers, Conferences, Joan Heminway, Research/Scholarhip, Social Enterprise | Permalink | Comments (0)

Monday, August 23, 2021

AALS Section on Securities Regulation: CFP Deadlines Extended

Please note the deadline extensions on the following previously posted calls for papers for the 2022 AALS Annual Meeting.

+     +     +     +     +

Section on Securities Regulation: Open Call for Papers

The AALS Section on Securities Regulation invites submissions for its session at the 2022 annual meeting of the AALS. The annual meeting will be held virtually from January 5-9, 2022, with Section on Securities Regulation panel scheduled for Saturday, January 8 from 12:35-1:50pm. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. The submission should relate to the following session description:

Equality and Access in Securities Markets

Recent years have seen increasing attention to issues of equality and access in securities markets. Nasdaq has proposed requiring listed company boards to include at least one female member and one member from an underrepresented minority. The SEC recently amended Regulation S-K to add human capital as a broad topic for disclosure, but declined to require companies to divulge diversity data. In addition to issues relevant to regulated companies, gaps remain in the gender and racial diversity of the SEC’s own commissioners and staff. More broadly, equity and access in securities markets have expanded due to Robinhood and similar modalities, as exemplified by the “meme stock” phenomenon. This panel will provide a forum for securities regulation scholars to discuss the reforms on the table as well as others that require more attention.

By August 31, 2021, please send your submission to Jackie Walters at jljamiso@illinois.edu. The authors of the selected papers will be notified in September 2021. In addition to the proposal submission please also indicate (a) whether you are tenured, pre-tenure, or other; and (b) whether you are in your first five years as a law professor (including any years spent as a fellow or visiting assistant professor).

Section on Securities Regulation: Emerging Voices in Securities Regulation

The AALS Section on Securities Regulation invites submissions from junior scholars (defined as those who have been in a tenure-track position for 7 or fewer years) for its Emerging Voices session at the 2022 AALS annual meeting. The session will be held virtually on Saturday, January 8 from 4:45-6:00 p.m. (EST). The session brings 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 31, 2021, please send your draft to Professor Jeremy McClane at jmcclane@illinois.edu. 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 mid-September 2021. 

If you would like to volunteer to provide feedback as a more senior scholar, please let Professor McClane know, at jmcclane@illinois.edu, by August 31, 2021. Thank you in advance for your generosity.

On behalf of the Section on Securities Regulation

Chair: Jeremy McClane (University of Illinois)
Chair-Elect: Kristin N. Johnson (Emory University)

Member of the Executive Committee:
Benjamin Edwards (University of Nevada, Las Vegas)
Gina-Gail S. Fletcher (Duke University)
Arthur B. Laby (Rutgers University)
Usha R. Rodrigues (University of Georgia)
Andrew Tuch (Washington University in St. Louis)
Yesha Yadav (Vanderbilt University)

August 23, 2021 in Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Monday, August 9, 2021

REMINDER:  Inaugural West Coast Bankruptcy Roundtable (Call for Papers)

USC Gould School of Law and Lewis & Clark Law School present the inaugural West Coast Bankruptcy Roundtable to be held February 3-4, 2022 in Los Angeles.  Spearheaded by Robert Rasmussen, Michael Simkovic, and Samir Parikh, the Roundtable seeks to bring together experienced and junior scholars to discuss particularly noteworthy scholarship involving financial restructuring and business law.  We seek scholars exploring diverse topics and will be interested in interdisciplinary perspectives.

The Roundtable invites the submission of papers.  Selected participants will receive a $1,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting.  Current attendees include Barry Adler (NYU), Ken Ayotte (Berkeley), Douglas Baird (Chicago), Bruce Bennett (Jones Day), Mitu Gulati (UVA), Yair Listokin (Yale), Bruce Markell (Northwestern), Ed Morrison (Columbia), Alan Schwartz (Yale), Jamie Sprayregen (Kirkland & Ellis), David Skeel (Penn), and Fred Tung (BU). 

Papers will be selected through a blind review process.  Scholars are invited to submit a 3 – 5 page overview of a proposed paper.  Submissions may be an introduction, excerpt from a longer paper, or extended abstract.  The submission should be anonymized, and – aside from general citations to the author’s previous articles – all references to the author should be removed.

Please submit proposals by September 7, 2021.  Invitations will be issued via email by October 8th.  Working drafts of papers must be available for circulation to participants by January 11, 2022.  

Proposals – as well as questions and concerns – should be directed to Samir Parikh at sparikh@lclark.edu

August 9, 2021 in Bankruptcy/Reorganizations, Call for Papers, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Sunday, July 4, 2021

New Journal - Open Call for Submissions

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OPEN CALL FOR SUBMISSIONS

The Journal of Law and Political Economy is delighted to announce an open call for submissions to Volumes 2 and 3.

WHO WE ARE

JLPE is an online, peer-reviewed journal published three times yearly, supported by the University of California’s eScholarship platform, https://escholarship.org/uc/lawandpoliticaleconomy. As the “house journal” of the pathbreaking Law and Political Economy movement, our sister organizations include ClassCrits, Inc. (classcrits.org), the Law and Political Economy Project (lpeproject.org), and the Association for the Promotion of Political Economy and Law (APPEAL, politicaleconomylaw.org). Our Editorial and Advisory Boards consist of distinguished, nationally and internationally known scholars drawn widely from law, the social sciences, and the humanities.

With the conviction that conventional Law and Economics is inadequate to the multiple and overlapping crises of our time, JLPE seeks to promote multi- and interdisciplinary analyses of the mutually constitutive interactions among law, society, institutions, and politics. Our central goal is to explore power in all its manifestations (race, class, gender, sexuality, disability, global inequality, etc.) and the relationship of law to power. Accordingly, JLPE aims to provide an academic and practical resource for, and to foster discussion among, scholars, activists, and educators from countries around the world to build bridges among the diverse groups whose work engages and resists the legal foundations of structural subordination and inequality.

WHAT WE PUBLISH

We are interested in publishing original research articles (roughly 12,000 words inclusive of notes and references) on a range of topics relevant to law and political economy, including the corporation, finance, antitrust, banking, money, and globalization; the political economy of race (including “racial capitalism”), gender, settler colonialism, and caste relations; property (including intellectual property); technology and the information economy; labor markets; the relationship between democracy and capitalism; the carceral state; economic inequality and precarity; the “triple crisis” of environment, economics, and development; international trade relations; and more.

JLPE also publishes two types of book reviews:

• Brief reviews of recent scholarship (publication date within the last two years) relevant to the emerging field of law and political economy (approximately 1,000 words in length)

• Book review essays examining a classic work or works that should be considered part of the LPE “canon,” especially work whose importance may have been initially underappreciated, marginalized, or misunderstood (approximately 2,500 words in length).

SUBMISSION GUIDELINES

To submit an article or essay, please visit our website, https://escholarship.org/uc/lawandpoliticaleconomy, and click the orange button marked “Submit” on the far right hand side of the screen. To propose a book review, or for other queries, please contact our Managing Editor, Eric George, at jlpemanagingeditor@gmail.com. The Journal of Law and Political Economy will review manuscripts submitted in any generally accepted citation style (including the “Bluebook” law review style), as long as the manuscript includes footnotes or endnotes and a list of references. Authors must revise accepted manuscripts to conform to the JLPE style sheet, which is available on our website.

We look forward to working with you!

July 4, 2021 in Joan Heminway, Law Reviews, Research/Scholarhip | Permalink | Comments (0)

Wednesday, May 12, 2021

National Business Law Scholars 2021 - Going Virtual, Again

The planning committee for the National Business Law Scholars Conference has again determined to host a virtual workshop this year (June 17-18). As is the custom, the workshop will consist of several keynote events and many, many moderated paper panels featuring the work of business law scholars who submitted proposals. We are working on finalizing the program now.  Each registrant for the 2021 conference who submitted an accepted proposal will receive a message with additional details. 

As you may recall, the conference this year was scheduled to be held at The University of Tennessee College of Law. We still do hope to hold a future National Business Law Scholars Conference at UT Law in Knoxville--perhaps next June. Stay tuned for more on that at a later time.  However, for those who have a yen to travel out my way this June during the conference (maybe your heart was set on it--or at least on getting out of the house), I am happy to host you in person.  While our campus has various restrictions that would need to be addressed for you to access our buildings, the surrounding area (Knoxville and East Tennessee generally, including the Great Smoky Mountains National Park) is rapidly returning to normalcy in most aspects.  Please let me know if you would like to visit our area and patch into the conference from Knoxville.

It looks like we may have a record number of attendees this year.  All of us on the planning committee (listed below) are grateful to all who registered.  We truly look forward to getting everyone together in person next year.  For many of us, this conference has a unique capacity to produce discussions that push our work forward.  While we understand (now, more than ever) that a virtual meeting is not a perfect substitute for an in-person event, we hope to make the conference engaging and useful to all.

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)

May 12, 2021 in Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Saturday, April 24, 2021

Paper from Prof. Haneman: Menstrual Capitalism, Period Poverty, and the Role of the B Corporation

My friend and colleague Prof. Victoria Haneman has shared her paperMenstrual Capitalism, Period Poverty, and the Role of the B Corporation.  Here is the abstract: 

A menstruation industrial complex has arisen to profit from the monthly clean-up of uterine waste, and it is interesting to consider the way in which period poverty and menstrual capitalism are opposite sides of the same coin. Given that the average woman will dispose of 200 to 300 pounds of “pads, plugs and applicators” in her lifetime and menstruate for an average of thirty-eight years, this is a marketplace with substantial profit to be reaped even from the marginalized poor. As consciousness of issues such as period poverty and structural gender inequality increases, menstrual marketing has evolved and gradually started to “go woke” through messaging that may or may not be genuine. Companies are profit-seeking and the woke-washing of advertising, or messaging designed to appeal to progressively-oriented sentimentality, is a legitimate concern. Authenticity matters to those consumers who would like to distinguish genuine brand activism from appropriating marketing, but few objective approaches are available to assess authentic commitment.

This Essay considers the profit to be made in virtue signaling solely for the purpose of attracting customers and driving sales: pro-female, woke menstruation messaging that may merely be an exploitative and empty co-optation. Feminists should be expecting more of menstrual capitalists, including a commitment that firms operating within this space address the diapositive issue of period poverty, one of the most easily solved but rarely discussed public health crisis of our time, and meaningfully assist those unable to meet basic hygiene needs who may never be direct consumers. This Essay serves as a thought piece to explore the idea of B Corporation certification as an implicit sorting device to distinguish hollow virtue signaling from those menstrual capitalists committed to socially responsible pro-womxn business practices.

It is well-known that I am not fond of benefit corporation statutes, but given that they are a thing (along with B Corp certification), we have to deal with them.  I still feel strongly that they benefit entity type, as it currently exists, is not helpful and potentially counterproductive.  And I really don't like that B Corp certification has moved to include mandating entity type.  But that's just facts, for now, anyway.  

My opposition to benefit entities, though, is not anti-signaling by an entity of their values, and there's little doubt in my mind that a benefit entity (if it must exist) certainly makes sense for nonprofits (thought I still think the nonprofit thing told us all we needed to know).  We're stuck with benefit entities, so Professor Haneman is probably correct that choosing the entity type could have value in marketing and signaling to consumers shared values.  I still think companies should signal through acts, not entity choice, and that all entity types should have the latitude to do such signaling. But in the world we live in, this just may be how it is.  Regardless, I recommend taking a look -- even when I disagree, Professor Haneman is always thoughtful, smart, and entertaining.  

April 24, 2021 in Corporations, CSR, Entrepreneurship, Joshua P. Fershee, Marketing, Nonprofits, Research/Scholarhip | Permalink | Comments (1)

Wednesday, March 31, 2021

Peer Reputation Score v. Overall Rank

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

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

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

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

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

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

Low Peer Assessment v. Overall Rank

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

High Peer Assessment v. Overall Rank

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

 

March 31, 2021 in Haskell Murray, Law School, Pre-Law, Research/Scholarhip | Permalink | Comments (5)

Tuesday, March 16, 2021

2021 National Business Law Scholars Conference - Call for Papers

2021 National Business Law Scholars Conference
June 17-18, 2021

The University of Tennessee College of Law
Knoxville, Tennessee

Call for Papers

The National Business Law Scholars Conference (NBLSC) will be held on Thursday and Friday, June 17-18, 2021.  The 2021 conference is being hosted by The University of Tennessee College of Law.  The conference will be conducted in a hybrid or online format, as determined by the NBLSC planning committee in the early part of 2021.

This is the twelfth meeting of the NBLSC, an annual conference that draws legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Junior scholars and those considering entering the academy are especially encouraged to participate. If you are thinking about entering the academy and would like to receive informal mentoring and learn more about job market dynamics, please let us know when you make your submission.  We expect to be in a position to offer separate programming for aspiring law professors and market entrants, as we have done in the past, likely on a separate date after the conference concludes.

Please use the conference website to submit an abstract or paper by April 9, 2021.  If you have any questions, concerns, or special requests regarding the schedule, please email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu. We will respond to submissions with notifications of acceptance shortly after the deadline. We anticipate the conference schedule will be circulated in May.

Conference Planning Committee:

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 (Emory University School of Law)
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)

March 16, 2021 in Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Monday, December 21, 2020

National Business Law Scholars 2021 - Save the Date; Paper Submissions Accepted Starting in January

2021 National Business Law Scholars Conference
June 17-18, 2021

The University of Tennessee College of Law
Knoxville, Tennessee

The National Business Law Scholars Conference (NBLSC) will be held on Thursday and Friday, June 17-18, 2021.  The 2021 conference is being hosted by The University of Tennessee College of Law.  The conference will be conducted in a hybrid or online format, as determined by the NBLSC planning committee in the early part of 2021.

This is the twelfth meeting of the NBLSC, an annual conference that draws legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Junior scholars and those considering entering the academy are especially encouraged to participate. If you are thinking about entering the academy and would like to receive informal mentoring and learn more about job market dynamics, please let us know when you make your submission.  We expect to be in a position to offer separate programming for aspiring law professors and market entrants, as we have done in the past, likely on a separate date after the conference concludes.

Please use the conference website, which will be available at https://law.utk.edu/ in January, to submit an abstract or paper by April 9, 2021. An announcement will be made on the Business Law Prof Blog when the conference site becomes available.  If you have any questions, concerns, or special requests regarding the schedule, please email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu. We will respond to submissions with notifications of acceptance shortly after the deadline. We anticipate the conference schedule will be circulated in May.

Conference Planning Committee:

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 (Emory University School of Law)
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)

December 21, 2020 in Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Saturday, December 5, 2020

Sabbatical Thoughts

This coming spring, I am on sabbatical.

Typically, I teach 4 courses per semester – each with 5 to 8 decent-sized assessments. Among other responsibilities, I am a pre-law advisor for our undergraduate students. So the school year tends to be a bit of blur.

Our fall semester ended just before Thanksgiving, and I already miss teaching. That said, I do feel fortunate to be on sabbatical during what will be another hybrid-teaching semester for us. While hybrid, masked teaching was O.K., it did not hold a candle to typical in-person teaching in my opinion.

In any event, I have my main writing project for the spring (somewhat) mapped out, but would love thoughts on sabbaticals in general for those who have taken them. Some of my plans are a bit uncertain, given the pandemic. In addition to research/writing, a few things I hope to do are – take another Open Yale Course, connect/reconnect with business lawyers/judges in Nashville, and give a few presentations (if COVID allows).

Anyway, feel free to e-mail me here or leave a comment below.

December 5, 2020 in Business School, Haskell Murray, Research/Scholarhip, Teaching | Permalink | Comments (0)

Monday, July 13, 2020

U.S. Securities Crowdfunding: A Way to Economic Inclusion for Low-Income Entrepreneurs in the Wake of COVID-19?

Earlier today, I submitted a book chapter with the same title as this blog post.  The chapter, written for an international management resource on Digital Entrepreneurship and the Sharing Economy, represents part of a project on crowdfunding and poverty that I have been researching and thinking through for a bit over two years now.  My chapter abstract follows:

The COVID-19 pandemic has exacerbated and created economic hardship all over the world.  The United States is no exception.  Among other things, the economic effects of the COVID-19 crisis deepen pre-existing concerns about financing U.S. businesses formed and promoted by entrepreneurs of modest means.

In May 2016, a U.S. federal registration exemption for crowdfunded securities offerings came into existence (under the CROWDFUND Act) as a means of helping start-ups and small businesses obtain funding.  In theory, this regime was an attempt to fill gaps in U.S. securities law that handicapped entrepreneurs and their promoters from obtaining equity, debt, and other financing through the sale of financial investment instruments over the Internet.  The use of the Internet for business finance is particularly important to U.S. entrepreneurs who may not have access to funding because of their own limited financial and economic positions. 

As the pandemic continues and the fifth year of effectiveness of the CROWDFUND Act progresses, observations can be made about the role securities crowdfunding has played and may play in sustaining and improving prospects for those limited means entrepreneurs.  A preliminary examination indicates that, under current legal rules, securities crowdfunding is a promising, yet less-than-optimal, financing vehicle for these entrepreneurs.  Nevertheless, there are ways in which U.S. securities crowdfunding may be used or modified to play a more positive role in promoting economic inclusion through capital raising for the innovative ventures of financially disadvantaged entrepreneurs and promoters.

I value the opportunity to contribute to this book with scholars from a number of research disciplines and countries.  I have been looking for ways to concretize some of my ideas from this project in a series of shorter publications, and this project seems like a good fit.  Nevertheless, I admit that I have been finding it challenging to segment out and organize my ideas about how securities crowdfunding may better serve entrepreneurs and investors, especially in the current economic downturn.  As always, your ideas are welcomed.

July 13, 2020 in Books, Corporate Finance, Crowdfunding, Entrepreneurship, International Business, Research/Scholarhip, Securities Regulation | Permalink | Comments (0)

Wednesday, June 24, 2020

Stakeholder v. Shareholder Capitalism: Bebchuk and Mayer Debate

Tomorrow (6/25/20) at 9am EST, Colin Mayer (Oxford) will debate Lucian Bebchuk (Harvard) on the topic of stakeholder v. shareholder capitalism. 

Oxford is streaming the debate for free here.  

June 24, 2020 in Business Associations, Corporate Governance, Corporations, CSR, Haskell Murray, International Business, Management, Research/Scholarhip, Shareholders | Permalink | Comments (0)

Monday, March 2, 2020

The Health Care Crisis Through A Business Law Frame

I recently had occasion to offer background to, and be interviewed by, a local television reporter about a publicly traded firm that owns several health care facilities in East Tennessee and has been financed significantly through loans from and corporate payments made by a member of its board of directors.  The resulting article and news clip can be found here.  Since the story was published, a Form 8-K was filed reporting that the director has resigned from the board and the firm is negotiating with him to cancel its indebtedness in exchange for preferred stock.

In reviewing published reports on the firm, Rennova Health, Inc., I learned that it had been delisted from NASDAQ back in 2018.  The reason?  The firm engaged in too many stock splits.

I also came across an article reporting that another health care firm, a middle Tennessee skilled nursing provider, Diversicare Healthcare Services, Inc., had been delisted in late 2019.  The same article noted two additional middle Tennessee health care firms also were in danger of being delisted from stock exchanges.  One was subsequently delisted. 

Health care mergers and acquisitions also have been in the news here in Tennessee.  A Tennessee/Virginia health care business combination finalized in 2018 is one of two under study by the Federal Trade Commission.  The combining firms, Mountain States Health Alliance and Wellmont Health System, avoided federal and state antitrust merger approvals and challenges through the receipt of a certificate of public advantage (COPA) under Tennessee law and a coordinated process in Virginia.  The resulting firm, Ballad Health, is an effective health care monopoly in the region and has had well publicized challenges in meeting its commitment to provide cost-effective, quality patient care.

I can only assume that these health care corporate finance issues in Tennessee are a microcosm of what exists nationally.

All of this has made me interested in the U.S. healthcare industry as an engaging and useful lens through which one could teach and write about the legal aspects of corporate finance . . . .  Many of the current business law issues in U.S. health care firms stem from well-known financial challenges in the industry and the related governmental responses (or lack thereof).  With public debates--including in connection with this year's presidential caucuses, primaries, and election--over the extent to which the federal government should provide financial support to the health care industry under existing conditions and whether the health care industry has become too big to fail, health care examples and hypotheticals seem very salient now, in the same way that banking or telecomm examples and hypotheticals may have had pedagogical and scholarly traction in corporate finance in the past.  

Some of the business law issues facing U.S. health care firms may be quite the same as they are for firms in any other industry.  Yet, some also may be unique to the health care industry and worth further, individualized exploration in the classroom or in the research realm.  For example, innovation and entrepreneurship--intricately tied to corporate finance--may be different in the health care space, as currently configured in the United States.  This article makes arguments in that regard.

In all, it seems there is a synergy worth examining in the connections between the U.S. health care crisis and business law teaching and research.  Unless and until something fundamental changes in the U.S. health care delivery system, corporate finance lawyers and professionals are likely to have important (if somewhat hidden) roles in ensuring that health care firms survive while providing cost-effective care to those who need it.  Business law analyses and innovations are sure to play strong roles in this environment, making business law professors key potential contributors. Time for us to step up and take the challenge!

March 2, 2020 in Corporate Finance, Current Affairs, Entrepreneurship, Joan Heminway, M&A, Research/Scholarhip, Teaching | Permalink | Comments (0)

Sunday, November 10, 2019

New Essay: An Overt Disclosure Requirement for Eliminating the Fiduciary Duty of Loyalty

I have a new(ish) essay that focuses on the concept of eliminating the fiduciary duty in an LLC, as permitted by Delaware law, and what that could mean for future parties. The paper can be found here (new link). When parties A and B get together to create an LLC, if they negotiate to eliminate their fiduciary agreements as to one another, I’m completely comfortable with that. They are negotiating for what they want; they are entering into that entity and operating agreement together of their own free will. So there may be differences in bargaining power—one may be wealthier than the other or have different kinds of power dynamics—but they are entering into this agreement fully aware of what the obligations are and what the options are for somebody in creating this entity.

My concern with eliminating fiduciary obligations comes down the road. That is, how do we make sure that if people are going to disclaim the fiduciary duty of loyalty, particularly, what happens if this change is made after formation? In such a case, I like to look at our traditional partnership law, which says there are certain kinds of decisions, at least absent an agreement to the contrary, that have to go to the entire group of entity participants. That is, a majority vote is not sufficient; there is essentially a minority veto.

I like the freedom of contract elimination of fiduciary duties provides, but I also am sensitive to the risks such eliminations can provide.  Thus, I argue that Delaware (and other states allowing reduction or elimination of the duty of loyalty) should require an express statement about the fiduciary duties (when modified from the default) and an express statement of how those duties can be modified, whether expanding, restricting, or eliminating the duties. To protect against the predatory modification of fiduciary duties, I believe that states should include a statutory requirement that changes to fiduciary duties must be express. Here’s my proposal:

Any limited liability company agreement that provides for a modification of the default rules for what constitutes a breach of duties (including fiduciary duties) of a member, manager or other person to a limited liability company, whether to expand, restrict, or eliminate those duties, must expressly state if the modifications are intended to expand, restrict, or eliminate the duties. Any limited liability company agreement that allows the modification of fiduciary duties must state expressly how those modifications can be made and by whom. Absent such any such statement, fiduciary duties may only be modified by agreement of all the members.

Supporting freedom of contract has value, but I also think we need to account for the fact that we did not traditionally allow for the elimination of fiduciary duties. As such, we should make sure that those participating in LLCs should know both what they signed up for initially, and also if the entity has provided the opportunity for a majority to make a fundamental change to traditional duties. This balance, I think, is essential to protecting investor expectations while still allowing for entities to develop the model that best serves the members’ goals.   

November 10, 2019 in Business Associations, Delaware, LLCs, Research/Scholarhip, Unincorporated Entities | Permalink | Comments (2)

Monday, September 30, 2019

Call for Proposals - Feminist Judgments: Rewritten Corporate Law

Call for Proposals – Feminist Judgments: Rewritten Corporate Law

DEADLINE: Friday November 1, 2019

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and private contracts, and commentaries on rewritten opinions and contracts, for an edited collection tentatively titled Feminist Judgments: Rewritten Corporate Law.  This edited volume is part of a collaboration among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press.  Cambridge University Press has approved a series of Feminist Judgments books. In 2017, Cambridge University Press published the tax volume titled Feminist Judgments: Rewritten Tax Opinions. Other volumes in the pipeline include rewritten opinions in the areas of reproductive justice, family law, torts, employment discrimination, trusts and estates, and health law. More information about the project can be found at https://law.unlv.edu/us-feminist-judgments.

Corporate law volume editors are Anne Choike, Usha R. Rodrigues and Kelli Alces Williams. The corporate law volume’s advisory panel is comprised of Alina Ball; Lisa Fairfax; Theresa Gabaldon; Joan MacLeod Heminway; Kristin Johnson; Elizabeth Pollman; Poonam Puri; Darren Rosenblum; Cindy Schipani; Kellye Testy; Cheryl Wade; and Cindy Williams.

With the guidance of the advisory panel, the editors have selected cases that have not appeared in other Feminist Judgments volumes, doctrinally significant cases, and cases that raised issues of particular salience to women’s lives.  This volume also seeks to include a rewritten “contract,” given corporate law’s emphasis upon default law and the precedent-setting power of privately negotiated arrangements. Potential authors are welcome to suggest other opinions or contracts that they would like to address, but the overall number of cases and contracts finally included in the volume must remain limited.

Interested prospective contributors should submit a proposal to either: 1) rewrite an opinion or contract (subject to a 10,000 word limit), or 2) comment on a rewritten opinion (4,000 word limit). Rewritten opinions may be majority opinions, concurrences, dissents, or private contracts.

Authors of rewritten opinions or contracts will be bound by the law and precedent in effect at the time of the original decision. Commentators will explain the original court decision or contract and its context, how the feminist opinion or contract differs from the original, and the impact that the rewritten feminist opinion or contract might have made.  The volume editors conceive of feminism as a broad movement and welcome proposalsthat bring into focus intersectional concerns beyond gender, such as race, class, disability, gender identity, age, sexual orientation, national origin, and immigration status.

To facilitate collaboration among contributors across the entire volume, the editors tentatively plan to host a gathering at the Law & Society Annual Meeting on May 28–31, 2020 in Denver, Colorado.  All contributors are invited, but not required, to participate in the workshop. Contributors attending the gathering must cover their own travel, lodging and meal expenses.

The editors will notify accepted authors and commentators by Saturday, November 30, 2019. Abstracts of rewritten opinions or contracts will be due on April 30, 2020 for circulation to fellow authors. Abstracts of commentaries will be due on May 15, 2020 for circulation to fellow authors. First drafts of rewritten opinions will be due on Wednesday, July 15, 2020. First drafts of commentaries will be due on Tuesday, September 15, 2020. The target date for submission of the completed, compiled manuscript for publication is February 2021.

To submit a proposal for rewriting an opinion or contract or providing commentary, please e-mail the following information to the volume co-editors, Anne Choike, anne.choike@wayne.edu, Usha R. Rodrigues, rodrig@uga.edu, and Kelli Alces Williams, kalces@law.fsu.edu by Friday, November 1, 2019:

  1. Your CV, your areas of corporate law interest or expertise, and why you are interested in and well suited to participate in this project. The Feminist Judgments Project and the Corporate Law volume editors are committed to including authors from diverse backgrounds. If you feel an aspect of your personal identity is important to your participation, please feel free to include that in your expression of interest.
  2. Your top two or three preferences of cases or contracts to write about from the list below. Alternatively, if you have another case or contract that you feel strongly should be included instead of one of the selected cases or contracts and that you would like to write about, provide a summary of the case or contract (no more than 250 words), a copy of the full text of the case or contract, and a brief summary (no more than 250 words) of the reasons that you think it should be included. Contributors who wish to co-author a rewritten opinion, rewritten contract or commentary, or work together on a rewritten opinion or contract and the commentary thereupon, are welcome to indicate that in the application.
  3. Your preference for contributing a rewritten opinion or contract, or a commentary.
  4. Any time constraints and other obligations that may impact your ability to meet the submission deadlines.
  5. Your willingness and ability to attend the tentatively planned gathering at the Law & Society Annual Meeting in Denver, Colorado in May 2020. Selection of contributors does not depend on their ability or willingness to attend this gathering.

This list of cases and contracts that the editors have selected for consideration to be included in the volume Feminist Judgments: Rewritten Corporate Law, is as follows:

Legal Personality, Identity, and Limited Liability of Corporate Entities:

  1. Citizens United (rights of corporate “persons” and nature of corporate personality)
  2. Walkovszky v. Carlton (limited liability/veil piercing)

Role and Purpose of the Corporation and Corporate Combinations in Society

  1. Dodge v. Ford (shareholder primacy)
  2. Merriam v. Demoulas Super Mkts. (stakeholder responsibility in family-owned business)
  3. Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (directors’ duty to maximize share price in corporate takeover)

Fiduciary Duties in Corporate Governance

  1. Meinhard v. Salmon (duty of loyalty)
  2. Smith v. Van Gorkom (duty of care and business judgment rule)
  3. Francis v. United Jersey Bank (duty of care to understand business)
  4. In re Walt Disney Derivative Litigation (duty of care regarding executive compensation)
  5. Harvey Weinstein Employment Agreement (duty of care to monitor compliance)

Closely Held Businesses and Other Considerations Regarding the Composition of Boards, Management, and Owners

  1. Ringling Bros.--Barnum & Bailey Combined Shows, Inc. v. Ringling (dispute over board seats)
  2. Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart (legitimacy of board member personal relationships)
  3. Donohue v. Rodd Electrotype (close corporations and minority shareholder oppression)

Protecting Vulnerable Investors and Potential Investors in Corporations

  1. Jordan v. Duff & Phelps (duty to disclose material information)
  2. SEC v. Howey (definition of investment contract)
  3. US v. Chestman (culpability for insider trading based on personal relationships)

September 30, 2019 in Call for Papers, Corporations, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Monday, August 5, 2019

SEALS Tidbits - 2019

I am just back from the 2019 Southeastern Association of Law Schools (SEALS) conference.  I participated in several different kinds of activities this year.  This post reports out on each.

I first served as a participant in a series of discussion groups tailored to provide information to aspiring law professors.  The attendees included newly minted fellows and VAPs, mid-to-later-career lawyers/judges looking to switch to full-time law faculty (some already adjuncts or visitors), and (in general) law practitioners testing the waters for possible engagement with the Association of American Law Schools faculty recruitment process.  SEALS has served selected prospective law professors with a specialized track of preparative programming for a number of years.  This set of discussion groups represents an extension of that type of programming, on a more general informational level, to a wider audience of folks interested in careers in law teaching.

I also presented in a discussion group, sponsors by West Academic, on "Teaching to Engage."  Steve Friesland of Elon Law moderated the session.  I shared some of my "first class" and assessment simulations for business law doctrinal and experiential courses.  I learned from many others who shared their own ways of engaging students.  It was a rich discussion.

The anual SEALS "Supreme Court and Legislative Update: Business and Regulatory Issues" featured a presentation from me on a few cases and things to watch for from a legislative viewpoint.  I was joined on the panel by several super-fun business and administrative law colleagues.  One of them, Lou Virelli, posted a summary of the session on the SEALS Blog.  You can find it here.

Michigan State law prof Carla Reyes's "New Scholar" presentation of her draft paper currently entitled "Autonomous Business Reality," was fascinating.  I was proud to serve as her assigned mentor for this session.  I hope I lived up to that role, considering she is a leader in law-and-technology research and I already cite to her work on blockchain technology!  Humbling to be a mentor under those circumstances, for sure.

As part of the Free Speech Workshop, I related the history and current status of student free speech issues involving registered student organizations at The University of Tennessee, Knoxville, based on my experience as a faculty advisor to a controversial student organization on our campus.  That presentation was part of a larger discussion group on campus free speech issues.  My UT Law colleague David Wolitz was a co-discussant. Howard Wasserman of FIU Law summarized the session here.

Last--but certainly not least--I co-moderated/moderated two substantive law SEALS discussion groups.  

First, John Anderson of Mississippi College Law (with only a bit of help from me) organized and moderated a session entitled "Insider Trading Stories," in which participants focused on the narratives underlying insider trading cases--known and unknown.  This proved to be an incredibly robust and diverse discussion, highlighting issues in insider trading theory, policy, and doctrine.  Longer versions of some of the discussion group offerings will be presented at a symposium at UT Law in the fall, sponsored by the Tennessee Journal of Law and Policy (TJLP).  The TJLP will publish the edited papers in a forthcoming volume.  I was pleased to see BLPB co-blogger Marcia Narine Weldon in the room!

Second, I moderated a discussion group entitled "Benefit Corporation (or Not)? Establishing and Maintaining Social Impact Business Firms."  The program description of the session follows:

As the benefit corporation form nears the end of its first decade of "life" as a legally recognized form of business association, it seems important to reflect on whether it has fulfilled its promise as a matter of legislative intent and public responsibility and service. This discussion group is designed to take on the challenge of engaging in that reflective process. The participating scholars include doctrinal and clinical faculty members who both favor and tend to recommend the benefit corporation form for social enterprises and those who disfavor or hesitate to recommend it.

The final group pf participants included researchers/writers from the United Kingdom and Canada as well as the United States.  BLPB co-blogger (and newly minted dean) Josh Fershee was among the group, and BLPB co-blogger Marcia Narine Weldon was again in attendance. The discussion was spirited and there were more than a few "aha" moments for me.

All-in-all, a busy--but enlightening--week's work.

It soon will be time to propose programs for the 2020 SEALS annual meeting, to be held in Fort Lauderdale, Florida. The date of the conference is likely to be moved up to start on July 30 to accommodate the very early (and getting earlier) starts for schools in the Southeastern United States (and probably elsewhere, too). If you have business law program ideas or would like to moderate or participate in a business law program, please contact me by email. I find that this conference (especially the discussion groups) helps to energize my teaching and scholarship in meaningful ways. Perhaps you also would find this a great place to jumpstart the academic year.

August 5, 2019 in Conferences, Joan Heminway, Joshua P. Fershee, Marcia Narine Weldon, Research/Scholarhip, Teaching, Writing | Permalink | Comments (0)

Friday, July 5, 2019

Call for Papers - The Dark Side of Entrepreneurial Finance

Screenshot 2019-07-05 15.51.43

The dark side of entrepreneurial finance

Editors: Arvind Ashta, Olivier Toutain

Theme of the special issue

Whether we are talking about start-ups, more recently "grow up" or more broadly about company creation-takeover, entrepreneurial finance attracts a lot of attention, from the entrepreneurs' side and from the side of private and public financing organisations and the media. Entrepreneurial finance includes Founder's equity, Love Money, Business Angel, Venture Capital, LBO Funds, banks, IPOs and various alternative financing treated as shadow banking: micro-credit, loan sharking, leasing, crowdfunding, Initial Coin Offerings, among others (Block, Colombo, Cumming, & Vismara, 2018; Wright, Lumpkin, Zott, & Agarwal, 2016).

Financing is considered as an inherent dimension of the entrepreneurial development process (Panda, 2016; Yunus, 2003). Without financing, there is no investment and, therefore, little chance of starting a business with adequate production tools and an organization capable of absorbing the trials and tribulations of starting and developing entrepreneurial activities. Without funding, the risk of lack of legitimacy is also high: what does it mean in the entrepreneurial ecosystem not to have the support of one or more funding agencies? More so in the start-up world! Is that conceivable? Finally, can the entrepreneur now free himself from financial support, even if he does not really need it to start his business? If the reasoning is pursued further, does the entrepreneur have a choice? In other words, is it possible to create and develop your company without mobilizing the financial resources of the territory? Without entering into a financial system and ecosystem that regulates the creation and takeover of companies in a territory? Or a system that pushes the entrepreneur to finance so much that the system itself collapses by bringing forth a financial crisis (Boddy, 2011; Diamond & Rajan, 2009; Donaldson, 2012; Guérin, Labie, & Servet, 2015; Mishkin, 2011).

Applying for funding today is often considered as a difficult adventure: is it really a fighter's path given the particularly numerous mechanisms in France? But are they also numerous in Europe? In the world? Is the cost of financing transparent or hidden (Attuel-Mendes & Ashta, 2013)? In any case, to adventure is to walk and remove obstacles while following a guide... often at the funder's request... which is often called coaching or mentoring. Or following the guide, sometimes - or often, depending on the reader's appreciation – results in respecting rules, imposed steps, in short, to adopt a good conduct... to such an extent that the entrepreneur can lose track of his North Star, or at least part of his project, modified by "pitching" and integrating the comments, suggestions, strong suggestions of potential funders... In other words, if we push the reflection further, the accompanying logic proposed in the form of good intentions by the funders of an ecosystem, are they not likely, by force, to respond to external constraints, to generate effects opposite to expectations: inhibited entrepreneurs, whose project has lost its originality, vitality and excellence through the coaching or mentoring of initially imagined value creation (Collewaert, 2009)? Isn't the finance injected into the support systems finally a Dr Jekyll and Mr Hyde of entrepreneurship? In other words, if it constitutes an unprecedented measure of support for entrepreneurial growth in the world, does it not at the same time generate "antipreneurial" effects? Normative and highly biased, do financial actors deserve such a place in the creative process? What is it that basically legitimizes their central place? (Bateman, 2010; Sinclair, 2012) What is the hidden face of entrepreneurial finance (Henderson & Pearson, 2011; Krohmer, Lauterbach, & Calanog, 2009; Toe, Hollandts, & Valiorgue, 2017)?

The purpose of this issue is to extract itself from the normative fields and discourses that highlight, in the vast majority of cases, the important role of finance in the development of entrepreneurship, whether purely economic, social or environmental. In other words, we are asking ourselves here about the secondary, even hidden, effects of finance on the emergence and development of new companies in France and around the world.

The proposals will address, among other things, the following topics:

  • What place does finance occupy today in the feeling of success and accomplishment of an entrepreneurial activity?
  • How do entrepreneurs interact with potential funders?
  • How do funders dialogue with each other?
  • How do funders make their investment decisions? Rationality, Short termism, information asymmetry....
  • How do entrepreneurs and funders negotiate? On which elements of the project or company? Are there any losers? What is lost in the process?
  • How does the relationship between entrepreneurs and funders change over time?
  • Can finance harm the value creation produced by entrepreneurial activity? Can it affect entrepreneurial freedom?
  • Is it possible to free oneself from financing circuits? How?

Finally, what is the dark side of entrepreneurial finance?

Timeline:

Submission of texts: By April 30, 2020 at the latest

Publication: March 2021

[I have omitted here the list of references supporting the text citations.  Please contact me by email if you would like a .pdf copy of the call for papers that includes the list.  There is more information after the jump.]

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July 5, 2019 in Call for Papers, Corporate Finance, Entrepreneurship, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)