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Joan Heminway

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Professor Heminway brought nearly 15 years of corporate practice experience to the University of Tennessee College of Law when she joined the faculty in 2000. She practiced transactional business law (working in the areas of public offerings, private placements, mergers, acquisitions, dispositions, and restructurings) in the Boston office of Skadden, Arps, Slate, Meagher & Flom LLP from 1985 through 2000.

She has served as an expert witness and consultant on business entity and finance and federal and state securities law matters and is a frequent academic and continuing legal education presenter on business law issues. Professor Heminway also has represented pro bono clients on political asylum applications, landlord/tenant appeals, social security/disability cases, and not-for-profit incorporations and related business law issues. Read More

Herbert Hovenkamp has posted “Antitrust and Platform Monopoly” on SSRN.  The abstract is below.  I was particularly struck by: “The history of antitrust law is replete with firms that are organized as single entities under corporate law, but that function as competitors and [are] treated that way by antitrust law.”

This article first considers an often-discussed question about large internet platforms that deal directly with consumers: Are they “winner take all,” or natural monopoly, firms? That question is complex and does not produce the same answer for every platform. The closer one looks at digital platforms they less they seem to be winner-take-all. As a result, we can assume that competition can be made to work in most of them.

Second, assuming that an antitrust violation is found, what should be the appropriate remedy? Breaking up large firms subject to extensive scale economies or positive network effects is generally thought to be unwise. The resulting entities will be unable to behave competitively. Inevitably, they will either merge or collude, or else one will drive the others out of business. Even if a platform is not a natural monopoly but does experience significant economies of scale in production or…

Jeffrey Lipshaw has posted “The False Dichotomy of Corporate Governance Platitudes” on SSRN.  I have set forth the abstract below.  I had the pleasure of reading an early draft, and I highly recommend the paper.  Among other things, Jeff brings a level of practical experience to the topic (“more than a quarter century as a real world corporate lawyer and senior officer of a public corporation”) that makes his views a must-read.  Having said that, my own view is that the “shareholder vs. stakeholder” debate is meaningful even if it only really matters in “idiosyncratic cases in which corporate leaders have managed to be either bullheaded or ill-advised.”

In 2019, the Business Roundtable amended its principles of corporate governance, deleting references to the primary purpose of the corporation being to serve the shareholders. In doing so, it renewed the “shareholder vs. stakeholder” debate among academic theorists and politicians. The thesis here is that the zero-sum positions of the contending positions are a false dichotomy, failing to capture the complexity of the corporate management game as it is actually played. Sweeping and absolutist statements of the primary purpose of the corporation are based on arid thought experiments and idiosyncratic…

One of my Westlaw alerts contained a link to a recently published article I thought BLPB readers might find of interest.  Here is the abstract:

The reigning antitrust paradigm has turned the notion of competition into a talisman, even as antitrust law in reality has functioned as a sorting mechanism to elevate one species of economic coordination and undermine others. Thus, the ideal state idea of competition and its companion, allocative efficiency, have been deployed to attack disfavored forms of economic coordination, both within antitrust and beyond. These include horizontal coordination beyond firm boundaries, democratic market coordination, and labor unions. Meanwhile, a very specific exception to the competitive order has been written into the law for one type of coordination, and one type only: that embodied by the traditionally organized, top-down business firm.

This Article traces the appearance of this legal preference and reveals its logical content. It also explains why antitrust’s firm exemption is a specific policy choice that cannot be derived from corporate law, contracts, or property. Indeed, because antitrust has effectively established a state monopoly on the allocation of coordination rights, we ought to view coordination rights as a public resource, to be allocated and regulated in…

The title of this post is the title of a panel discussion I organized for the 2019 Business Law Prof Blog symposium, held back in September of last year.  (Readers may recall that I posted on this session back at the time, under the same title.)  The panel experience was indescribably satisfying for me.  It represented one of those moments in life where one just feels so lucky . . . .

Why?  Because it fulfilled a dream, of sorts, that I have had for quite a while.  Here’s the story.

About ten years ago, I ended up in a conversation with two of my beloved Tennessee Law colleagues while we were grabbing afternoon beverages.  One of these colleagues is a tax geek; the other is a property guy.  Somehow, we got into a discussion about mergers and acquisitions.  I was asked how I would define a merger as a matter of corporate law, and part of my answer (that mergers are magic) got these two folks all riled up (in a professional, academic, nerdy way).  The conversation included some passionate exchanges.  It was an exhilerating experience.

I have remembered that exchange for all of these years, vowing to myself…

Friend of the blog Bernard Sharfman has a new post up on the Oxford Business Law Blog, responding to Martin Lipton’s recent “On the Purpose of the Corporation” posts.  Bernie’s full post can be found here, and I’ve excerpted some portions (slightly out of  order) below.  I appreciate that the post highlights that a big part of the shareholder v. stakeholder debate is about whose rights are determined by contract v. fiduciary duties.

[T]he Lipton, Savitt, and Cain definition of corporate purpose is missing both an objective and a strategy on how it will create social value….

I am disappointed with this definition, a definition that ignores the social value created by for-profit businesses, namely the goods and services they produce; ignores that this social value is being produced for the financial benefit of its shareholders; and uses the pretense that uninformed institutional investors are partners in the management of a company….

[T]hey make no mention of the social value created by the corporation through the successful management of its stakeholder relationships, the goods and services it provides. How can a definition of corporate purpose not mention this? It’s as if a corporation should be ashamed of why it…

Call for Papers
AALS Section on Agency, Partnership, LLCs & Unincorporated Associations 

Entrepreneurship and the Entity 

January 5-9, 2021, AALS Annual Meeting 

The AALS Section on Agency, Partnership, LLCs & Unincorporated Associations will sponsor a panel on “Entrepreneurship and the Entity” at the 2021 AALS Annual Meeting in San Francisco, California. This panel will showcase scholarship on subjects relating to business law and entrepreneurship, including entity choice throughout a company’s evolution, financing alternatives, and how legal rules promote and discourage different kinds of entrepreneurship. Scholars are encouraged to interpret the subject of the Call for Papers broadly and creatively. 

SUBMISSION PROCEDURE: Scholars should send a summary of a work or a work-in-progress of no more than 600 words to Professor Sarah C. Haan at haans@wlu.edu on or before Friday, August 21, 2020. The summary should be a pdf or Word document that has been stripped of information identifying the author; only the cover email should connect the author to the submission. The subject line of the email should read: “Submission—[author name & title].” Papers will be selected through an anonymous review by the Section’s Executive Committee. 

SPECIAL NOTE: Interested parties are encouraged to submit…

Yesterday, I posted the AALS Section on Business Associations Call for Papers for the New Voices in Business Law program.  Today, I am posting the section’s general call for papers, which focuses on a very salient topic: Corporate Boards in the Age of COVID-19.  There certainly is a lot that we can say about that from the advisory, compliance, and litigation (prevention and management) angles.

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Call for Papers for the
Section on Business Associations Program on
Corporate Boards in the Age of COVID-19

2021 AALS Annual Meeting

The AALS Section on Business Associations is pleased to announce a Call for Papers for its program at the 2021 AALS Annual Meeting in San Francisco, California. The topic is Corporate Boards in the Age of COVID-19. Up to three presenters will be selected for the section’s program.

The COVID-19 pandemic has put corporate boards under tremendous stress. In the midst of unprecedented financial and operational challenges, boards must comply with legal obligations that are often complex, uncertain, and contested. This panel will explore the impact of COVID-19 on the corporate board. How should boards exercise their oversight and disclosure responsibilities during these times? Should boards reevaluate the corporate purpose, especially considering the…

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As we close out the holiday weekend, I offer simple words of respect, admiration, and thanks for those who have sacrificed their lives for all of us.  Amidst the barbecues and beer and whatnot, it is sometimes difficult to remember that we take today to honor our fallen heroes.  Although I spent today working (grades for all courses due tomorrow!), I took time out to remind myself that life is not all about business law prof’ing and contemplate the importance of the day.

The photo above (taken by my brother last year) depicts a gravestone honoring one of our family’s military heroes.  He did not die in combat, but he was wounded and received the Congressional Medal of Honor.  Although we honor those kinds of commitments more directly on Veteran’s Day, I was thinking about him today–and about the thin line that divides life and death, especially in times of military conflict.

My heart goes out to all who have lost family and friends in the line of battle or otherwise in service to our country.  May those lost servants rest in peace.  And may those who remain take pride in their ultimate sacrifice.

Call for Papers

AALS Section on Business Associations

New Voices in Business Law

January 5-9, 2021, AALS Annual Meeting

The AALS Section on Business Associations is pleased to announce a “New Voices in Business Law” program during the 2021 AALS Annual Meeting in San Francisco, California. This works-in-progress program will bring together junior and senior scholars in the field of business law for the purpose of providing junior scholars with feedback and guidance on their draft articles.

FORMAT:  Scholars whose papers are selected will provide a brief overview of their paper, and participants will then break into simultaneous roundtables dedicated to the individual papers.  Two senior scholars will provide commentary and lead the discussion about each paper.

SUBMISSION PROCEDURE:  Junior scholars who are interested in participating in the program should send a draft or summary of at least five pages to Professor Megan Shaner at mshaner@ou.edu on or before Friday, August 21, 2020.  The cover email should state the junior scholar’s institution, tenure status, number of years in their current position, whether the paper has been accepted for publication, and, if not, when the scholar anticipates submitting the article to law reviews.  The subject line of the email should

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This post updates my March 23 post on the 2020 National Business Law Scholars Conference.

After much deliberation, the planning committee for the National Business Law Scholars Conference has determined to cancel this year’s in-person event and instead host a virtual workshop on the original scheduled conference dates (June 18-19).  The workshop will consist of moderated paper panels featuring the work of those who submitted proposals for the 2020 conference and desire to participate. We also hope to host a discussion session focusing on online teaching and perhaps one or more feature programs on business law in the COVID-19 era.  

Each registrant for the 2020 conference who submitted an accepted proposal will receive a message in short order asking whether they want to participate in the virtual conference.  Relatively rapid responses to this query will be requested.  A workshop schedule, together with related logistics information will be constructed from those responses and circulated to participants.

As you may recall, the conference this year was scheduled to be held at The University of Tennessee College of Law.  We plan to hold the 2021 National Business Law Scholars Conference at UT Law in Knoxville next June.  We will determine the exact dates for next…