May 2014

A couple of weeks ago, I posted about the Delaware Supreme Court’s recent decision in ATP Tour, Inc., et al. v. Deutscher Tennis Bund, et al., which held that nonstock corporations may adopt bylaws that require unsuccessful plaintiffs engaged in intracorporate litigation to pay the defense’s attorneys fees.  Though the decision did not technically apply to stock corporations, nothing in the decision suggested the analysis for stock corporations would be any different.

The decision prompted an immediate, somewhat panicked response from the Delaware plaintiffs’ bar, while some defense attorneys counseled their clients to adopt such bylaws to discourage merger litigation.

Though, as the previous link shows, Steven Davidoff, at least, is skeptical that these provisions would become popular with publicly traded corporations, there has been a quick push to have the Delaware legislature amend the DGCL to overrule ATP.  The Delaware Corporation Law Council has proposed new legislation that will be considered by the Delaware legislature by June 30.

Last year, Harvard Business School Professor Clayton Christensen said “15 years from now half of US universities may be in bankruptcy.”  

So, I guess half of our schools have about 14 more years to go, according to Christensen.

At least part of the reason for Clayton Christensen’s prediction is the rise of online education, including so-called “massive open online courses” or “MOOCs.”

Recently, I completed a few MOOCs, mostly because I wanted to learn about MOOCs first-hand.  I also picked subjects that interested me.

The courses I took were:

Yale – Game Theory (Ben Polak)

MIT – The Challenges of Global Poverty (Abhijit Banerjee and Esther Duflo)

Northwestern – Law and the Entrepreneur (Esther Barron and Steve Reed)

I will share some of my thoughts on MOOCs during my normal Friday posting slot, in three installments: (1) Effective MOOCs? (2) MOOCs v. In-Person Courses, and (3) MOOCs and the Future of Higher Education. 

Institutional Shareholder Services (ISS) has always had a lot of influence – some think too much- and it’s also received quite a bit of press this week. First, the Wall Street Journal reported that the proxy advisory firm slammed Wal-Mart’s board for lack of independence regarding its executive pay practices in particular how compensation is (un)affected by declining company performance. ISS also raised concerns about the company’s ongoing FCPA troubles and how or whether executives will be held accountable. ISS called for more board independence. Given the fact that the Walton family owns 50% of the company stock, it’s not likely that ISS’ recommendations will have much weight, but it’s still noteworthy nonetheless.

This morning, the press reported that ISS took aim at another troubled company, Target. In addition to its revenue declines, Target also reported a massive data breach last year, which led to numerous shareholder derivative suits. ISS recommended that seven of the ten board members lose their seats for failing to adequately monitor the risk. Target has already made a number of significant management changes. This recommendation from ISS may be an even bigger wake up call to board members (including those outside of Target) about…

Greetings from the Law and Society conference. Tomorrow I serve as the discussant on a panel entitled Theorizing the Corporation at Legal Intersections with Professors Charlotte Garden of Seattle, Sarah Haan of Idaho and Elizabeth Pollman of Loyola, Los Angeles. We will debate/discuss corporate personhood and how Citizens United has affected elections in ways that people might not expect. I’ll explain more about that and other panel discussions in next week’s blog.

If you’re at the conference or Minneapolis, swing by the University of St. Thomas, Room MSL 458 at 12:45 on Friday.

Professor Joan MacLeod Heminway (Tennessee) has a new article posted on SSRN entitled Investor and Market Protection in the Crowdfunding Era: Disclosing to and for the ‘Crowd.’ I look forward to reading the article this summer.  The article abstract is posted below:

This article focuses on disclosure regulation in a specific context: securities crowdfunding (also known as crowdfund investing or investment crowdfunding). The intended primary audience for disclosures made in the crowdfund investing setting is the “crowd,” an ill-defined group of potential and actual investors in securities offered and sold through crowdfunding. Securities crowdfunding, for purposes of this article, refers to an offering of securities made over the Internet to a broad-based, unstructured group of investors who are not qualified by geography, financial wherewithal, access to information, investment experience or acumen, or any other criterion.

To assess disclosure to and for the crowd, this short symposium piece proceeds in three principal parts before concluding. First, the article briefly describes securities crowdfunding and the related disclosure and regulatory environments. Next, the article summarizes basic principles from scholarly literature on the nature of investment crowds. This literature outlines two principal ways in which the behavioral psychology of crowds interacts with securities markets.

…

Tomorrow kicks off the 2014 Law & Society Annual meeting in Minneapolis, MN.  Law & Society is a big tent conference that includes legal scholars of all areas, anthropologists, sociologists, economists, and the list goes on and on.  A group of female corporate law scholars, of which I am a part, organizes several corporate-law panels. The result is that we have a mini- business law conference of our own each year.  Below is a preview of the schedule…please join us for any and all panels listed below.

Thursday 5/29

Friday 5/30

Saturday 5/31

8:15-10:00

0575 Corp Governance & Locus of Power

U. St. Thomas MSL 458

Participants: Tamara Belinfanti, Jayne Barnard, Megan Shaner, Elizabeth Noweiki, and Christina Sautter

10:15-12:00

1412 Empirical Examinations of Corporate Law

U. St. Thomas MSL 458

Participants: Elisabeth De Fontenay, Connie Wagner, Lynne Dallas, Diane Dick & Cathy Hwang

12:45-2:30

1468 Theorizing Corp. Law

U. St. Thomas MSL 458

Participants: Elizabeth Pollman, Sarah Haan, Marcia Narine, Charlotte Garden, and Christyne Vachon

1:00 Business Meeting Board Rm 3

2:45-4:30

Roundtable on SEC Authority

View Abstract 2967

Participants: Christyne Vachon, Elizabeth Pollman, Joan Heminway, Donna Nagy, Hilary Allen

1473 Emerging International Questions in

…

A New York Times article this weekend explained that many U.S. Supreme Court decisions are altered after they have been published, sometimes quickly and other times much later.  Article author Adam Liptak explains:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. 

I have followed this particular change because of my interest in the EPA case, but I suspect this article is the first many people had heard of it.  It makes some sense that articles would be fixed before going to final print, but the idea that opinions have been changed…

I love books. I have been buying and collecting books since I was a kid. But I have decided it’s finally time to change. E-readers have finally arrived. I know that electronic books and readers have been around for a long time now, but they’re finally good enough to satisfy even bibliophiles like me.

I have been reading everything from law review articles to law school memos on my laptop for some time now. But, until recently, that hasn’t extended to books, either the books I read for work or the books I read for pleasure.

It wasn’t for lack of interest. I looked at the earliest e-readers when they came out, but decided they wouldn’t allow me to do everything I could do with a physical book in hand. A few years ago, I bought a Nook from Barnes and Noble, but it’s been in a drawer for quite a while. The image was excellent; reading on it was a pleasant experience. But it just didn’t allow me to move around in the book, highlight, and take notes as well as I wanted to.

Six months ago, I bought a Kindle from Amazon. Not the Kindle Fire, with the…