Photo of Douglas Moll

Professor Moll graduated with highest honors from the University of Virginia in 1991 with a Bachelor of Science degree in Commerce. He attended Harvard Law School where he served as the Developments in the Law chairperson on the Harvard Law Review. Professor Moll graduated magna cum laude from Harvard Law School in 1994.

Professor Moll teaches in the areas of business organizations, business torts, and commercial law. His courses include Business Organizations, Doing Deals, Business Torts, Secured Financing, and Sales and Leasing. He is the co-author of a treatise on closely held corporations, three casebooks on business law (closely held business organizations, business organizations generally, and business torts), and a concise hornbook on business organizations. He has also written numerous law review articles focusing on closely held businesses and related fiduciary duty and oppression doctrines. Read More

A year and a half ago I was attending a panel discussion on sports law issues at the Academy of Legal Studies in Business (ALSB) Conference in Philadelphia.  A meaningful discussion arose about the logistics of moving toward the pay-for-play model in college sports.  At one point somebody asked whether anyone has thought about the tax consequences of moving towards that model, to which my co-author Adam Epstein (who was one of the panelists) responded yes, and noted that our paper analyzing the state tax implications of paying student-athletes was our most downloaded article on SSRN.

Thus far the NCAA hasn’t evolved from the paradigm of amateurism, but every time the debate seems to quiet down about whether it should something new pops up that brings the idea of paying student-athletes back into the spotlight.  This week it was the headline, Could Fournette, McCaffrey Skipping Bowls Lead to NCAA Paying Players?  As long as there is a remote possibility of moving in that direction in the future, tax issues should be included in the overall discussion of the effects of pay-for-play on college sports.

This past November I presented a working paper at the Southeastern Academy of Legal Studies

As I mentioned in my Show Me the Money!” blog last week, back in March of 2014 the Chicago District (Region 13) of the National Labor Relations Board (NLRB) held that Northwestern University football players qualified as employees and could unionize and bargain collectively.  Although this decision was later overturned, the national level NLRB’s final holding specifically targeted unionization efforts at private schools – leaving the door wide open to revisit this issue at some point with respect to public universities.

Although the Regional decision was reversed, I was interested in Peter Sung Ohr’s (Director of Region 13) analysis, especially with respect to athletic scholarships.  He noted that although student-athletes don’t officially receive paychecks from universities, they do receive “a substantial economic benefit for playing football” in the form of scholarships.  He also focused on the extent of control exerted by coaches on players (something that has been touched on quite a bit in academic literature) and the amount of time players spend on football related activities, ultimately concluding that receiving scholarships in exchange for playing football amounts to a contract-for-hire between employer and employee.

I was inspired to write my 3rd sports/ tax paper, Northwestern, O’Bannon And

And everything that seemed possible at twenty-four, twenty-five, is now just such a joke, such a ridiculous fiction, every birthday an atrocity.
    -Dave Eggers, A Heartbreaking Work of Staggering Genius

Today is my 60th birthday. It’s also the end of my blogging here on the Business Law Prof Blog.

No, we don’t have a mandatory retirement program. I’ve just run out of interesting things to say. (Some of you would say that happened months ago.)

Having interesting things to say is not a requirement for blogging. The blogosphere is filled with writers who keep churning away even though they haven’t had a fresh thought in years. But I’m not motivated solely by the sound of my own voice. I don’t want to keep writing if I’m not contributing anything worthwhile. I’m stepping aside to make room for those younger than me with fresher ideas.

Thank you to my co-bloggers, all of whom are younger than me and have fresher ideas: Ann, Anne, Haskell, Joan, Josh, Marcia, and Stefan. They always have interesting things to say and I’ve learned a lot from them, both on and off the blog. I will continue to read their thoughtful posts, even though

Let Feeling, Passion, Reason, Sense appear—
But mark you! Let us have some Nonsense too!
    -Goethe

Whatever happened to humor in law reviews?

In the past, leading law reviews had no qualms about including legal humor. Yale, for example, published Jim Gordon’s How Not to Succeed in Law School, 100 YALE L. J. 1679 (1991). Northwestern published my The Gettysburg Address as Written by Law Students Taking an Exam, 86 Nw. U. L. REV. 1094 (1992). Michigan published Dennis Arrow’s incredible tome, Pomobabble: Postmodern Newspeak and Constitutional “Meaning” for the Uninitiated, 96 MICH. L. REV. 461 (1997).

At least two law reviews in the nineties published symposia on legal humor: BYU (Symposium on Humor and the Law, 1992 B.Y.U. L. REV. 313-558) and Nova (Nova [Humor in the] Law Review, 17 NOVA l. REV. 661-1001 (1993)). The BYU symposium even includes an excellent bibliography of legal humor: James D. Gordon, III, A Bibliography of Humor and the Law, 1992 B.Y.U. L. REV. 427.

The era of law review humor seems to have passed. There isn’t much legal humor in law reviews anymore. There are exceptions: Green Bag and the Journal of Legal

“[T]he effective date of a registration statement shall be the twentieth day after the filing thereof.” That statement, in section 8(a) of the Securities Act of 1933,  makes the process seem so reassuringly quick and simple. If I want to offer securities to the public, I file a registration statement with the SEC and, less than three weeks later, I’m ready to go. But, as every securities lawyer knows, it isn’t really that easy.

It can take months for the registration statement in an IPO to become effective. The statutory deadline is circumvented through the use of a delaying amendment, a statement in the registration statement that automatically extends the 20-day period until the SEC has finished its review. See Securities Act Rule 473, 17 C.F.R. § 230.473.

But wouldn’t it be so much more conducive to capital formation if there really was a hard 20-day deadline? I understand that the SEC doesn’t have the staff to complete a full review in that time frame, but it would force them to focus on the important disclosure issues rather than some of the trivialities one sees in the current comment letters.

I’d like to see someone test that automatic

If you have been following my guest posts regarding white collar crime and how white collar offenders rationalize their conduct, you likely have noticed that the discussion thus far has been largely theoretical. In this post, I’d like to offer some more concrete uses of rationalization theory and discuss how it may (should?) impact lawmakers and business people.  

But before doing that, I have to explain, just for a moment, a bit more theory. One of the most fascinating things about rationalizations, in addition to how they operate, is where they come from. Researchers have concluded that rationalizations are not created in a vacuum; offenders do not invent them in the spur of the moment. Instead, offenders find their “vocabularies of motive” within their own environments. Donald Cressey suggested that rationalizations are “taken over” from “popular ideologies that sanction crime in our culture.” He pointed to commonplace sayings that suggest wrongdoing is acceptable in certain situations: “Honesty is the best policy, but business is business” and “All people steal when they get in a tight spot.”  (Warren Buffett once called the phrase “Everybody else is doing it,” which is a clear rationalization, the five most dangerous words in business

Although my guest blogging has been focused on white collar rationalizations, I can’t help but mention that, just about any way you cut it,* ninety days have passed since former Attorney General Holder asked U.S. Attorneys investigating the financial crisis to report back on whether they could make criminal cases against any individuals.  I’m guessing that since we didn’t hear any big announcements, there are no indictments sitting on current Attorney General Loretta Lynch’s desk.  Or maybe the currency trading guilty pleas were the announcement.  Of course, those were charges against corporations, not individuals . . . and deals with the regulators have ensured the banks will continue to basically operate as usual . . . and hinky currency trading isn’t what caused the financial crisis . . . and the banks involved weren’t the biggest players in MBS in the run up to the collapse.  You get the point.  It looks like Wall Street executives may truly and forever be off the hook for what happened in 2008.  

* If AG Holder was speaking generally, three months since his February 17 announcement was last Sunday.  If he actually meant a hard ninety days, that elapsed last Monday.  If he’s a kind boss and has been

My last post outlined the criminological and behavioral ethics theories that help explain why corporate executives commit unethical and illegal acts.  I’d like to unpack that a bit more by providing some specific rationalizations used by white collar offenders.  This list includes the first five rationalizations to be identified by researches (sometimes called the “famous five”), and then supplements three others that are particularly relevant.  Not surprisingly, there are disagreements as to exactly how many rationalizations there are and precisely how they operate.  But, as one team of researchers put it, what is interesting about rationalization theory is what rationalizations do, “not the flavors they come in.”

Denial of Responsibility.  Called the “master account,” the denial of responsibility rationalization occurs when the offender defines her conduct in a way that relieves her of responsibility, thereby mitigating “both social disproval and a personal sense of failure.”  Generally, offenders deny responsibility by claiming their behavior is accidental or due to forces outside their control.  White collar offenders deny responsibility by pleading ignorance, suggesting they were acting under orders, or contending larger economic conditions caused them to act illegally.

Denial of Injury.  This rationalization focuses on the injury or harm caused

CNM

On May 12, 2015, I will present at a breakout session of the Center for Nonprofit Management’s 8th Annual Bridge to Excellence Nonprofit Conference. My talk will focus on the legal issues facing entities with multiple bottom lines. 

If interested, you can register here.

As you can tell from the conference description, this conference is designed for nonprofit and community leaders. From the conference schedule, it appears that I will be the only professor presenter. While I enjoy academic conferences, and find them useful, I also think it is important for professors to engage with practitioners. Professors should share the knowledge they have uncovered and should also listen to the current, practical concerns. 

This coming Monday, I will be presenting – virtually – at the above titled conference. My piece of the presentation will cover my recent research on benefit corporation reporting.

Further information is available here and reproduced below. Personally, I am looking forward to hearing from the many impressive speakers, including Sara Burgess, the Regulator of Community Interest Companies in the UK.

May 11, 2015

08:00 AM – 06:00 PM ET

Morgan Lewis, in conjunction with the Impact Investing Legal Working Group, invites you to join us for an exclusive all-day conference featuring panels of leading lawyers who work in the area of impact investing—in business, academia, government, multilateral development institutions, and nonprofit organizations and foundations.

Topics will include:

How are investors aggregating capital for impact investing?

What are the newest social finance innovations in impact investing?

How can we build a robust legal community of practice in impact investing?

How can we advance the development of regulatory regimes and government policies that promote impact investing?

Details

8:00 – 8:30 AM | Registration

8:30 – 6:00 PM | Program

6:00 PM | Networking reception

View the agenda >>

Credit

CLE credit in CA (1.25 hours),