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Colleen Baker

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PhD (Wharton) Professor Baker is an expert in banking and financial institutions law and regulation, with extensive knowledge of over-the-counter derivatives, clearing, the Dodd-Frank Act, and bankruptcy, in addition to being a mediator and arbitrator.

Previously, she spent time at the U. of Illinois Urbana-Champaign College of Business, the U. of Notre Dame Law School, and Villanova University Law School. She has consulted for the Federal Reserve Bank of Chicago, and for The Volcker Alliance.  Prior to academia, Professor Baker worked as a legal professional and as an information technology associate. She is a member of the State Bars of NY and TX. Read More

Today, in honor of my Dad, my father-in-law, my cousin, my administrative assistant, many friends, and others who have honored us with their military service, I am posting a link to a recent episode of The Home Team with Jared Allen’s Homes for Wounded Warriors.  The episode features an interview by my former student, Betty Rhoades, of one of my new military buddies, Captain Chris Davis, USMC.  Chris is a 3L at UT Law and a super guy.  He founded a nonprofit last year, Vols for Vets, of which I (and others) are very proud.

Thanks to all who have served in our armed forces for helping to protect us from enemies far and near.  Your service is to be honored and cherished.  We thank you for our lives and our freedom.

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Friend of the BLPB Josephine Nelson informs us of the following:

The second-annual ComplianceNet conference will take place on June 3-4, 2019. Villanova University Charles Widger School of Law and its Girard-diCarlo Center for Ethics, Integrity and Compliance will host the conference. Like the highly successful inaugural conference at UC Irvine in 2018, this conference will allow scholars from across disciplines and different legal and regulatory topics to exchange research and explore connections for collaboration.

The timing of this year’s conference is designed to follow on the heels of the Law & Society meeting in nearby Washington, D.C. If you are already headed to Law & Society, Villanova is a short train-ride away and easily accessible by public transportation. Regardless of whether you will be attending Law & Society, Villanova is in a beautiful location right outside Philadelphia, easily serviced by major international airports (Philadelphia (PHL), Newark (EWR), Baltimore (BWI), two more in NYC, and two more in DC); 90 minutes from NYC; and two hours from D.C.

The theme of this year’s conference is Business Ethics, although we welcome additional papers discussing compliance across diverse settings. This year’s theme seeks to engage the question of how to run ethical…

By the time many of you read this, Election Day 2018 will be upon us (or even over).  I have had elections on my mind for some time now–elections of the political and corporate kind.  As a result of an invitation to participate in last week’s symposium on women and corporate governance hosted by the George Washington Law Review (“Women and Corporate Governance: A Conference Exploring the Role and Impact of Women in the Governance of Public Corporations“), my election-oriented thoughts somehow became infused with gender reflections . . . .

1992 was dubbed the political “Year of the Woman.” The appointment of Clarence Thomas to the U.S. Supreme Court in 1991 after hearings focused on sexual harassment allegations and revelations of Bill Clinton’s extramarital sexual conduct during his first campaign for election as U.S. President were and are credited with the record number of women elected to federal legislative positions in 1992. “When the ballots were counted, America had elected a record-breaking four women as senators and 24 women as representatives to Congress.” Li Zhou, The striking parallels between 1992’s “Year of the Woman” and 2018, explained by a historian, VOX, Nov 2, 2018, https://www.vox.com/2018/11/2/17983746/year-of-the-woman-1992…

Last Friday, I had the honor of being the keynote speaker for the 64th annual conference of the Southeastern Academy of Legal Studies in Business (SEALSB).  The invitation for this appearance was extended to me months ago by BLPB contributing editor Haskell Murray.  It was a treat to have the opportunity to mingle and talk shop with the attendees (some of whom I already knew).

The participants in SEALSB are largely business law faculty members teaching at business schools.  Having never before attended one of their meetings and as a bit of a “foreigner” in their midst, I wondered for quite a bit about what I should talk about.  Should I take the conservative route and present some of my work, hoping to dazzle the group with my legal knowledge (lol), or should I take a riskier approach and tell them what was really on my heart when I accepted Haskell’s kind invitation?

I chose the latter.  I spoke for 15-20 minutes on “Valuing and Visioning Collaboration” between business law faculties in business and law schools and then took about 10 minutes of questions.  I started with the stories of two of my students–who could have been the students…

Friend of the Business Law Prof Blog Anat Beck recently posted a draft of her article entitled Unicorn Stock Options – Golden Goose or Trojan Horse? on SSRN.  I heard presentations on earlier versions of this piece, which I personally find quite intricate and interesting.  An excerpt fro the SSRN abstract follows:

This article examines a contemporary puzzle in Silicon Valley – is there a shift in unicorn employees expectations that results in labor contracting renegotiations? It explores the challenges faced by unicorn firms as repeat players in competitive technology markets. It offers the following possible solutions. First, new equity-based compensation contracts, and critiques them. Second, alternatives to the traditional liquidity mechanisms, and critiques them.

It concludes with proposals to remove legal barriers to private ordering, and new mandatory disclosure requirements.

The article has been picked up by the Harvard Law School Forum on Corporate Governance and Financial Regulation and linked to in a Matt Levine column for Bloomberg.  This is a good read, especially for those of you interested in entrepreneurial business law (which is Anat’s speciality).

BLPB reader Tom N. sent me a link to this article last week by email.  The article covers Elon Musk’s taunting of the U.S Securities and Exchange Commission (SEC) in a post on Twitter.  The post followed on the SEC’s settlement with Musk and Tesla, Inc. of a legal action relating to a prior Twitter post. The title of Tom N.’s message?  “Musk Pokes the Bear in the Eye.”  Exactly what I was thinking (and I told him so) when I had read the same article earlier that day!  This post is dedicated to Tom N. (and the rest of you who have been following the Musk affair).

Last week, I wrote about scienter issues in the securities fraud allegations against Elon Musk, following on Ann Lipton’s earlier post on materiality in the same context.  This week, I want to focus on state corporate law–specifically, fiduciary duty law.  The idea for this post arises from a quotation in the article Tom N. and I read last week.  The quotation relates to an order from the judge in the SEC’s action against Musk and Tesla, Alison Nathan, that the parties jointly explain and justify the fairness and reasonableness of their settlement…

I have been so grateful for Ann Lipton’s blog posts (see here and here) and tweets about Elon Musk’s going-private-funding-is-secure tweet affair.  Her post on materiality on Saturday–just before the SEC settlement was announced–was especially interesting (but, of course, that’s one of my favorite areas to work in . . .).  She tweeted about the settlement here:

Screenshot 2018-10-01 10.12.17

[Note: this is a screenshot.]  Ann may have more to say about that in another post; she did add a postscript to her Saturday post reporting the settlement . . . .

But I also find myself wondering about another of the contentious issues in Section 10(b)/Rule 10b-5 litigation: scienter.  This New York Times article made me think a bit on the point.  It tells a tale–apparently relayed to the U.S. Securities and Exchange Commission (SEC) in connection with its inquiry into the tweet incident–of fairly typical back-room discussions between/among business principals.  This part of the article especially stuck with me in that regard:

On an evening in March 2017, . . . Mr. Musk and Tesla’s chief financial officer dined at the Tesla factory in Fremont, Calif., with Larry Ellison, the chairman of Oracle, and Yasir Al Rumayyan, the managing…

This past Friday, Burr & Forman LLP and the Clayton Center for Entrepreneurial Law at the University of Tennessee College of Law (including its business law journal, Transactions: The Tennessee Journal of Business Law), cosponsored a conference entittled “Law and Business Tech: Cybersecurity, Blockchain and Electronic Transactions.”  This was, as you may recognize, the second business law conference UT Law sponsored in a week’s time (the first being the Business Law Prof Blog symposium, “Connecting the Threads II,” the week before).  It has been a busy time for business law faculty and students at UT Law!

(Parenthetically, I will note here that one of the attendees at Friday’s event, who also had been at the Business Law Prof blog symposium, came back to this past week’s conference because he was so jazzed up about Marcia’s presentation at the first event–which she mentions here and here.  Thanks, Marcia, for encouraging this interest in blockchain technology in our legal community!)

At Friday’s conference, I moderated and participated in a panel on “The Coming Second Wave of Digital and other Electronic Signatures in Commerce.”  The panelists included Ed Snow of Burr & Forman and Katy Blackwell from SIGNiX.  The panel walked through a history and course of conduct from handwritten signatures to electronic signatures to digital signatures, discussing the transitions from one to another (which are, as yet, incomplete).  Interesting questions emerged as among us as to, e.g., why banking/credit transactions and mergers/acquisitions tend to lag behind in the adoption of new signature technologies.  (Your thoughts are welcomed.)

At the end of the prepared program, my co-panelists asked me to speak about Tennessee’s adoption of a digital signature statute back in the spring.  This was another of the legislative review projects that I have undertaken as a member of the Tennessee Bar Association Business Section Executive Council.  We were given 24-48 hours to comment on a digital signature bill that had been introduced in the Tennessee General Assembly based on an Arizona statute adopted in 2017 (information available here).  Although I personally thought the bill/statutory revision was likely unnecessary and would have preferred to spend more time studying it before commenting on it, two of us on the Executive Council pooled comments on the draft bill, which also received comments from other quarters.  

The ostensible legislative policy was to ensure the enforceability of legally valid and binding transactions occurring in a distributed ledger environment.  Tennessee proponents of the bill wanted to support business in this environment, as I noted in commentary quoted in this article.  With that in mind, two issues were, in the short time we had, important.

I am still basking in the warm glow of having hosted a number of my fellow Business Law Prof Blog editors in Knoxville last week for our second annual “Connecting the Threads” event.  What a great day we had on Friday.  I could listen to these folks talk about business law until the cows come home (so to speak–no actual cows here!).

As BLPB readers may recall, the title of my paper for the 2018 “Connecting the Threads II” symposium is Lawyering for Social Enterprise.  I am sure that I will blog more on that topic in this space later–when my paper from the symposium has been published–but I want to offer here the three paragraphs of conclusion to the handout I prepared for the continuing legal education materials for the program, which focus on the need of judgment, discretion, and even wisdom.

Advising entrepreneurs, founders, promoters, and directors of social enterprises can be both satisfying and frustrating. The satisfaction most often comes from helping these businesses achieve financial success while also serving the public good. The frustration comes from the difficulty of the task in providing the necessary counsel—both in selecting the optimal legal form for the…

Slide1I am writing this fall about (among other things) business deregulation in the Trump era.  Given that the President’s campaign for office featured business deregulation as a prominent tenet, it seems like a good time to visit what’s been done to fulfill those campaign promises.  Business being a broad area for focus, I am trying to narrow the subject down a bit by picking some salient examples.

I reference the early executive orders on agency rule rulemaking and assessments of their success.  See, e.g., here and here.  But the deregulatory moves impacting business that have gotten the most media attention are the Trump administration’s tax cuts and a few smaller initiatives–like the tamp-backs to parts of bank regulation in the Dodd–Frank Wall Street Reform and Consumer Protection Act.  Apart from these headline items, what catches your attention, if anything, about the current administration’s forays into deregulation?  I would be interested in knowing.

Of course, there also are areas where it seems that there is new business regulation or business re-regulation rather than business deregulation.  Perhaps the most prominent area in which the current administration has taken a non-deregulatory approach to business operation is in international…