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Anne Tucker

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Anne Tucker teaches and researches contracts, corporations, securities regulations, and investment funds.

Tucker’s research focuses on three areas of business law. The first is on the regulation and administration of funds (both public and private funds) and how pooled investments can achieve significant personal and social ends, such as retirement security and private funding for social entrepreneurship. Second, she focuses on impact investing and contract terms that reinforce impact objectives alongside financial returns. Third, she studies corporate governance, including the role of institutional investors as shareholders. Read More

A hearing in the Delaware Court of Chancery highlights the question raised in my earlier post of institutional shareholder activism and provides a timely example of one brand of shareholder activism:  issue activism.

Yesterday, Vice Chancellor J. Travis Laster denied Hershey’s motion to dismiss a books-and-records suit brought by shareholder Louisiana Municipal Police Employees’ Retirement System. The suit seeks inspection of corporate books to investigate claims that the chocolate company knowingly used suppliers violating international child labor laws.  A full description of the hearing is available here.

UPDATE, Kent Greenfield who has been involved in the case, provided me with a copy of the Hershey hearing & ruling ( Download Hershey Ruling) as well as some context for the case.  Yesterday’s hearing did two things. First, it clarified the standard of review for motions to dismiss section 220 books and records demands. Citing to Seinfeld v. Verizon Commc’ns, Inc., 909 A.2d 117, 118 (Del. Supr. 2006), the proper standard is whether a shareholder has provided “some evidence to suggest a ‘credible basis’ from which a court can infer that mismanagement, waste or wrongdoing may have occurred.”    Second, the books and record request was brought on …

I am interested in the behavior of institutional investors, including defined benefit plans and large mutual funds, primarily because they trade in people’s retirement savings.   Institutional investors and hedge funds are some of the only remaining investors under the big umbrella heading of “shareholders” that have the resources and incentive to act the way that corporate law theorizes shareholders should act.  They become the lab rats and the test case of governance experiments and debates.

Notably, the passivity of institutional investors has been described, empirically documented by number of initiated shareholder proposals and with voting records on such proposals, and debated at considerable length.  Alan Palmiter, Jill Fisch, Roberta Romano, as well as a recent article by Gilson & Gordon and many others have all grappled with the evidence for and against and provided theories that augment or diminish the view of passivity by institutional investors.

The New York Times DealB%k published an article yesterday, New Alliances in Battle for Corporate Control, describing the coordination between institutional investors (both pension funds and mutual funds) and hedge fund activists.  Drawing from industry sources, the article describes informal coordination of activists courting institutional investors’ votes before…

Jonathan Macey and Joshua Mitts have a new article, The Three Justifications for Piercing the Corporate Veil, forthcoming in the Cornell Law Review.  The article smartly employs empirical research of judicial opinions to shed light on the long-convoluted and “mysterious” doctrine of corporate veil piercing.  According to the abstract, the article:

[D]evelop[s] a new theoretical taxonomy which postulates that veil-piercing decisions fall into three categories: (1) achieving the purpose of a statutory or regulatory scheme, (2) preventing shareholders from obtaining credit by misrepresentation, and (3) promoting the bankruptcy values of achieving the orderly, efficient resolution of a bankrupt’s estate. We analyze the facts of several veil-piercing cases to show how the outcomes are explained by the three theories we put forth and show that undercapitalization is rarely, if ever, an independent grounds for piercing the corporate veil. In addition, we employ modern quantitative machine learning methods ….to analyze the full text of 9,380 judicial opinions. We demonstrate that our theories systematically predict veil-piercing outcomes, the widely-invoked rationale of “undercapitalization” of the business poorly explains these cases, and our theories most closely reflect the textual structure of the opinions.

-Anne Tucker

Emory is hosting its Teaching Transactional Law and Skills Conference on June 6-7th.  The theme is “Educating the Transactional Lawyer of Tomorrow.”  Proposals are being accepted through March 17th, and additional information about the conference is available here:  Download 2014.Emory.Conf.CFP. 

I attended this conference about 18 months ago and found it to be an incredibly rich dialogue about teaching business related courses.  I walked away with aspirational ideas for  future development as well as concrete elements to implement in Contracts, Corporations and Unincorporated Business Associations (our small business planning class).

-Anne Tucker

The University of St. Thomas Law Journal hosts its spring symposium on April 11, 2014 on the issue of Sustainable Financial Regulation.  Registration is available here, and the the list of speakers is top-notch including Roberta Romano, Steven Schwarcz, Eric Gerding, Richard Painter, Claire Hill and Jennifer Taub.  Kudos to Wulf Kaal, a fellow corporate law professor at St. Thomas,  for putting together a very promising panel on experts.

SOL044314_Spring_Symposium_banner_lyris

-Anne Tucker

On Sunday, the Boston Globe published a cogent, concise and compelling op-ed by Kent Greenfield  on the issue of religious exemptions for corporations as raised in the Hobby Lobby case.

Professor Greenfield argues that corporations can have a conscious, but that corporations should not use religion to avoid regulations — and thus gain a competitive advantage — “claims of religious conscience could liberate companies to become bad actors in the economy and society at large. Instead of sacrifice, corporate conscience could devolve to sacrilege.”

In last week’s post, I took a similar position in my post on Hobby Lobby, “More or Less?”.

-Anne Tucker

As previously noted on this blog, 44 law professors filed an amicus brief in Sebelius v. Hobby Lobby Stores, Inc., outlining several corporate law issues in the arts-and-craft store chain’s request for a religious exemption from complying with contraceptive requirements in the Affordable Care Act.  That brief prompted several responses and sparked a corporate law debate, which is being recapped and weighed in on at Business Law Prof Blog (see earlier thoughtful posts: here, here, and here by Stefan Padfield and Haskell Murray).   

So what is at stake in this case? Religious exemptions for corporations. The role of benefit corporations and other hybrid, triple bottom line entities.  The classic entity theory vs. aggregate theory debate of how do we treat the legal fiction of individuals acting through businesses and businesses acting, in part, on behalf of people.  The role and future of Corporate Social Responsibility generally. Corporate personhood.  Corporate constitutional rights. And existential questions like can corporations pray? You know, easy stuff. 

CSR. Our laws set the floor; they establish the minimum that social actors must do and that other members in our society can expect to receive.  Corporate social responsibility asks companies…

Today, I am highlighting the CLEAF Junior Faculty Workshop, which took place at George Washington earlier this month.  Applicants submitted unpublished papers in the fall, and if accepted were invited to attend the workshop in February.  Each paper was assigned 2 readers who specialize in the subject matter of the paper. The experts ranged from senior legal scholars, to interdisciplinary scholars, to lawyers in the field.  The 2-day workshop dedicated an hour to each paper, soliciting the formal comments of the assigned readers and a discussion from the larger group.

If time is money, the 2 days at the workshop were a great investment.  I had the opportunity to connect, personally and professionally with both junior and senior scholars in the field in a way that felt more comfortable and more productive than in other foras.   For me, it also provided tailored feedback on my project (which I am now furiously incorporating), and it also forced me to spend 2 days thinking about scholarship in terms of publication goals, audience goals, forms of proof, preference of presentation and other aspects of writing that never seem to get the attention they deserve when I am puzzling through how…

If you practiced as a transactional attorney before law teaching, chances are that you looked at form agreements provided in treatises, saved on your law firm database, handed to you by partners from past deals, or saved in your own template archives.  This is no different from what litigators do either—they look for model existing memos, complaints, document requests, etc. that guide the first draft and let you start somewhere past “zero”.  The rapidly changing legal environment and unique needs of each client in each deal limits the shelf life of form agreements and saddles them with all sort of potential downsides if they aren’t used thoughtfully, verified by research, or tailored to the specific deal.  This disclaimer aside, I am curious about how we teach students about the role of exemplars, and as a starting point, where to find exemplars.  Students and junior attorneys, if not given the right tools to find the best models, will use bad model forms.  If you don’t believe me, see what you get when you search for “standard asset purchase agreement”. 

This raises the question of where should students, attorneys, law professors wanting to incorporate experiential learning exercise modules into their courses look…

I recently discovered that YouTube hosts a collection of content related to contracts. If you teach this first year course, it is at least worth browsing through the options to see if you can include something in class, a follow-up email to students, or linking through your course website.  These videos are silly and hard to believe that one could devote so much time to a task like “contracts” songs, but bless those who do.  

Collection of Contracts Songs #1: 

Collection of Contracts Songs #2: 

If you use other content in your first year contracts course, please leave a comment or send me an email. I will update the post with your suggestions.

-AT