Corporate Governance

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The first webinar hosted by the Association of American Law Schools Section on Leadership for the 2025 membership year is scheduled for Thursday (March 6) from 1 pm – 2 pm ET/12 pm – 1 pm CT/11 am – 12 pm MT/10 am – 11 am PT.  The speaker is Elsbeth Magilton, Lecturer and Director of Externships at the University of Nebraska College of Law.  She will be speaking on “Law Students Learning to Lead through Non-Profit Board Service.”  The abstract for her talk is set forth below.  

This presentation showcases the work of attorneys on nonprofit boards, how the Nebraska Law Nonprofit Board Service Program has succeeded at Nebraska, and what challenges it is still overcoming. The program places law students with an area nonprofit board of directors for an academic year to observe, support, and engage with the nonprofit governance process, under the mentorship of an attorney board member. The Nonprofit Board Service Program “courses + shadow experience” model is an opportunity for students to learn about board service, engage with area attorneys and nonprofits, and reflect on how they can use their developing professional skills to benefit and lead in their community.

The session…

Business Transactional Skills Professor
University of Richmond School of Law

The University of Richmond School of Law is seeking applicants for a full-time faculty member to teach business law courses, including transactional skills courses. The position will begin in the summer or fall of 2025. The full position description is here — law.richmond.edu/faculty/hiring.html.

Our new hire will teach one section of Business Associations (our foundational business law course), Mergers & Acquisitions, and two transactional skills courses. The skills courses will emphasize experiential learning, allowing students to work on assignments that resemble the type of work they will do in practice and to develop skills as legal and business advisors to their clients. Candidates must have several years of practice experience in business transactional law and a J.D. from a U.S. accredited law school.

This is a non-tenure track position that focuses on teaching and mentoring students during the nine-month academic year. Depending on experience, a successful candidate will be hired as an Assistant or Associate Professor of Law, Legal Practice and will be eligible for promotion and five-year presumptively renewable contracts upon promotion to Professor of Law, Legal Practice.

The University of Richmond is a private university located just…

This year’s symposium, titled Navigating the Relationship Between the Administrative State and Emerging Technology, will focus on the evolving regulatory frameworks around emerging technologies like digital assets and artificial intelligence (AI). These technologies are rapidly transforming the way individuals and businesses engage in commerce, interact socially, and innovate. These advancements, however, raise profound questions about the applicability of existing regulatory structures. The symposium will bring together leading experts to discuss how the administrative state can balance the protection of innovation with the mitigation of risks associated with these technologies, while ensuring that laws evolve to meet the challenges of the future.

We are thrilled to welcome Michele Korver, Head of Regulatory & Operating Partner at a16z crypto, to deliver the opening keynote. Michele’s wealth of experience in both the public and private sectors will provide invaluable insights into the state of digital asset regulation. The event will conclude with a thought-provoking closing address, offering reflections on the key discussions of the day.

Welcome and Opening Remarks (1:15 PM – 1:25 PM)

The symposium will begin with brief welcoming remarks, setting the stage for an afternoon of in-depth discussions and exploring the complexities surrounding the intersection of technology, law, and…

At the annual meeting of the Association of American Law Schools earlier this month, the Section on Agency, Partnerships, LLCs, and Unincorporated Associations (for which I was the outgoing Chair) focused its principal panel on the intersection of the section’s mandate with technology. As might be expected, blockchains and generative artificial intelligence (AI) were a core focus. It was exciting to hear about some of the work being done in this space.

I was reminded as I was listening to the speakers about an article that I knew was forthcoming. I checked in with the author this past week and it has, in fact, now been published. The article is Zhaoyi Li‘s Artificial Fiduciaries, available here through the Washington and Lee Law Review and here on SSRN. Here’s the SSRN abstract.

The rapid development of technology in the last decade has affected all levels of society. Corporate governance has not been immune to these changes. In the future, Artificial Intelligence (“AI”) fiduciaries may be technologically capable of serving as independent corporate directors. This could be an effective way to address the challenge of the absence of truly independent directors in the traditional governance framework. Artificial fiduciaries could also

…

Two days after the US election, I moderated and participated on a Society of Corporate Compliance and Ethics (SCCE) panel on  ESG through the life cycle of a business with Eugenia Maria Di Marco, who focused on startups and international markets, and Ahpaly Coradin, who focused on M&A, private equity, and corporate governance.

I shared these stats with the audience before we delved into the discussion:

  • In July 2024, SHRM, the
    • …

     The Society of Corporate Compliance and Ethics is hosting a virtual ESG and Compliance Conference on November 7.  I love to hear academics talk about these issues at conferences but because I still engage in the practice of law and I teach about compliance, governance, and sustainability, I find the conversations are very different when listening to practitioners.

    My panel is titled ESG Due Diligence Across the Corporate Lifecycle From Start-Up to Maturity: The Roles of Compliance, Ethics, Legal, and the Board. My co-panelists, Ahpaly Coradin, Partner, Pierson Ferdinand, and Eugenia di Marco, a startup founder and international legal advisor, and I will focus on:

    •  how to measure and prioritize ESG factors at different stages of a company's life cycle, according to a company's industry, and technology use.
    •  how ESG creates value in M&A  beyond risk mitigation and learn the impact of ESG on target selection, valuation, and integration.
    • board and management responsibilities in overseeing and managing ESG-related risks, particularly in light of Caremark duties and Marchand.

    Date & Time: Thursday, November 7 from 12:45 PM – 1:45 PM central time

    Other topics that speakers will discuss include:

    • Supply chains and European due diligence 
    • Global regulatory and legislative developments
    • Sustainable governance

    …

    Last month I had the privilege of presenting some of my current work at Bocconi University in Milan, Italy.  The promotional poster for the event is included below. All of the workshop presentations (present company excepted) were engaging.

    I presented on part of an ongoing research project–a series of papers on environmental, social, and governance (ESG) information.  The first two papers on the series, The Materiality of ESG Information: Why It May MatterT, 84 LSU L. Rev. 1365 (2024), and ESG and Insider Trading: Legal and Practical Considerations, 26 U. Penn. J. Bus. L. __ (forthcoming 2024), address the significance of ESG information under the U.S. federal securities laws and the potential and actual involvement of ESG information in insider trading.  In Milan, I shared my ideas and preliminary research for a third paper currently titled Corporate Information Compliance in an ESG World.  I expect to turn to work on this paper in earnest in the coming months.  I will briefly lay out my current thoughts here in the hope that you may have some feedback.

    ESG information plays a role in many business operational settings that are invoked in legal compliance and addressed in compliance policies…

    I am please to be able to publish this post authored by our former BLPB editor/co-blogger Stefan Padfield.  We miss his voice here, but he is doing good work in his current role, as this post shows!  Thanks for contributing this, Stefan.

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    On November 14, 2023, the National Center for Public Policy Research (NCPPR) – where I work – submitted a shareholder proposal to Johnson & Johnson that sought disclosures related to overboarding. (For the uninitiated, overboarding refers to the issue of corporate directors sitting on too many boards but can also be extended, as it is here, to other commitments.) On March 1, 2024, the SEC staff informed J&J that no action would be recommended against the company by the staff if J&J excluded NCPPR’s proposal. This no-action relief arguably represents a change in the long-standing SEC practice of supporting proposals related to overboarding and is thus worthy of further examination. (The underlying documents can be accessed here; the SEC staff also granted no-action relief to Verizon and Lowe’s on the same proposal.)

    By way of background, the SEC staff is on record as saying that an overboarding proposal “relates to director qualifications.” Accordingly, the SEC…

    Many in the business law world have been following the saga involving the adoption of  S.B. 313 by Delaware's General Assembly last week.  S.B. 313 adds a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL) that broadly authorizes corporations to enter into free-standing stockholder agreements (not embodied in the corporation's charter) that restrict or eliminate the management authority of the corporation's board of directors.  See my blog posts here and here and others cited in them, as well as Ann's post here.

    In the floor debate on S.B. 313 last Thursday in the Delaware State House of Representatives, a proponent of the legislation stated that fiduciary duties always trump contracts.  That statement deserves some inspection in a number of respects.  I offer a few simple reflections here from one, limited perspective.

    The historical centrality of corporate director fiduciary duties (which were the fiduciary duties referenced on the House floor) is undeniable.  Those who have taken business associations or an advanced business course with me over the years know well that I emphasize in board decision making that the directors’ actions must be both lawful and consistent with their fiduciary duties in order to…

    Further to Ann's post on Sunday sharing the text of her comment letter on Delaware's S.B. 313 (and more particularly the proposal to add a new § 122(18) to the General Corporation Law) and my post on § 122(18) last week, I share below the text of my comment letter to the Delaware State House of Representatives Judiciary Committee.  Although Ann and I each got one minute to deliver oral remarks at the hearing held by the Judiciary Committee on Tuesday, 60 seconds was insufficient to convey my overarching concerns–which represent a synthesis and characterization of selected points from my post last week.  The comment letter shared below includes the prepared remarks I would have conveyed had I been afforded additional time.

    Madame Chair and Committee Members:

    I appreciated the opportunity to speak briefly at today’s hearing. As I explained earlier today, although I am a professor in the business law program at The University of Tennessee College of Law, my appearance before the committee relates more to my nearly 39 years as a corporate finance practitioner, which has included bar work (most recently and extensively in the State of Tennessee) proposing and evaluating corporate and other business…