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Last week, I made the argument that Nike’s Kaepernick Ad Is the Most Business Judgmenty Thing Ever.  I still think so.  

To build on that post (in part based on good comments I received on that post), I think it is worth exploring that ability and appropriateness of boards delegating certain duties, as this impacts any assessment of the business judgment rule. 

As co-blogger Stefan Padfield correctly noted, directors “become informed of all material information reasonably available.” However, does that apply to a particular ad campaign? Hiring of all spokespeople? Only certain ones? How about a particular ad?  Or is it the hiring of a marketing and ad team (internally or externally)? 

Nike has a long list of sponsorship (here) for teams and individuals. I sincerely doubt that all of those were run by the board of directors, though it is possible.  The board may also weigh in from time to time, based on the behavior of the people they sponsor.  Nike famously terminated contracts with Oscar Pistorius and Ray Rice in September 2014. Are these all board decisions? Maybe. Or maybe they have a protocol for dealing with such issues. Regardless, how they deal with this…

I knew it would be impossible. There was no way to relay my excitement about the potential of blockchain technology in a concise way to lawyers and law students last Friday at the Connecting the Threads symposium at the University of Tennessee School of Law. I didn’t discuss cryptocurrency or Bitcoin other than to say that I wasn’t planning to discuss it. Still, there wasn’t nearly enough time for me to discuss all of the potential use cases. I did try to make it clear that it’s not a fad if IBM has 1500 people working on it, BITA has hundreds of logistics and freight companies signed up to explore possibilities, and the World Bank, OECD, and United Nations have studies and pilot programs devoted to it. As a former supply chain person, compliance officer, and chief privacy officer, I’m giddy with excitement about everything related to distributed ledger technology other than cryptocurrency. You can see why when you read my law review article in a few months in Transactions.

I’ve watched over 100 YouTube videos (many of them crappy) and read dozens of articles. I go to Meetups and actually understand what the coders and developers…

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…

Like many in the law academy, I find three-day holiday weekends a great time to catch my breath and catch up on work items that need to be addressed.  This Labor Day weekend–including today, Labor Day itself–is no exception to the rule.  I am working today, honoring workers through my own work.  My husband and daughter are doing the same.

This blog post and the announcement it carries are among my more joyful tasks for the day.  I have been remiss in not earlier announcing and promoting our second annual Business Law Prof Blog symposium, which will be held at The University of Tennessee College of Law on September 14.  The symposium again focuses on the work of many of your favorite Business Law Prof Blog editors, with commentary from my UT Law faculty colleagues and students.  This year, topics range from the human rights and other compliance implications of blockchain technology to designing impactful corporate law, with a sprinkling of other entity and securities law related topics.  I am focusing my time in the spotlight (!) on professional challenges in the representation of social enterprise firms.  More information about the symposium is available here.  For those of you…

Did I lose you with the title to this post? Do you have no idea what a DAO is? In its simplest terms, a DAO is a decentralized autonomous organization, whose decisions are made electronically by a written computer code or through the vote of its members. In theory, it eliminates the need for traditional documentation and people for governance. This post won’t explain any more about DAOs or the infamous hack of the Slock.it DAO in 2016. I chose this provocative title to inspire you to read an article entitled Legal Education in the Blockchain Revolution.

The authors Mark Fenwick, Wulf A. Kaal, and Erik P. M. Vermeulen discuss how technological innovations, including artificial intelligence and blockchain will change how we teach and practice law related to real property, IP, privacy, contracts, and employment law. If you’re a practicing lawyer, you have a duty of competence. You need to know what you don’t know so that you avoid advising on areas outside of your level of expertise. It may be exciting to advise a company on tax, IP, securities law or other legal issues related to cryptocurrency or blockchain, but you could subject yourself to discipline for doing so…

Two weeks ago, I blogged about why lawyers, law professors, and judges should care about blockchain. I’ll be speaking about blockchain, corporate governance, and enterprise risk management on September 14th at our second annual BLPB symposium at UT. To prepare, I’m reading as many articles as I can on blockchain, but it can be a bit mind numbing with all of the complexity. After hearing Carla Reyes speak at SEALS, I knew I had to read hers, if only because of the title If Rockefeller Were A Coder.

I recommend this article in general, but especially for those who teach business organizations and want to find a way to enliven your entity selection discussions. The abstract is below. 

The Ethereum Decentralized Autonomous Organization (“The DAO”), a decentralized, smart contract-based, investment fund with assets of $168 million, spectacularly crashed when one of its members exploited a flaw in the computer code and stole $55 million. In the wake of the exploit, many argued that participants in the DAO could be jointly and severally liable for the loss as partners in a general partnership. Others claimed that the DAO evidenced an entirely new form of business entity, one that current laws

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There is a “post 7 book covers of books you love, without comment” campaign sweeping Facebook, and I have been tagged.

I am breaking all the rules.

Below are 8 books, 9 if you count both of the books I read by Mohsin Hamid. I don’t love all the books below, but I did read them all this summer. I am not posting a picture of the covers (but I do provide links to the books), and I couldn’t help including a brief comment on each.

Again to Carthage – John Parker Jr. (Fiction, Novel). Sequel to Once a Runner and not nearly as good. The sequel is more focused on the primary character’s midlife crisis than his running.

Inside the Magic Kingdom – Tom Connellan. (Non-Fiction, Pop-Business). My mother-in-law was reading this for her job at the beach, and I ran out of reading material. Cheesy, pop-business book, but interesting for the way Disney’s C-level executives assist in picking up the trash at the parks, and the parties at the parks they held for the families of the construction crew members. Plus, the books was more interesting to me because we plan to go to Disney World as a…

image from sealslawschools.org

On Saturday evening, I returned from the 2018 Southeastern Association of Law Schools (SEALS) annual conference (program here).  My week-long tour of duty as a conference registrant spanned three different areas of engagement: (1) volunteerism in the portion of the conference dedicated to helping prepare prospective law faculty for the law school appointments process; (2) attendance at programs of interest on substantive law, law schools, and law teaching; and (3) participation (through presentation and commentary) in business law discussion groups.  Although I was exhausted by the time I left (especially because I also attended portions of two meetings of the SEALS Board of Trustees), I also was rewarded by each of the three types of involvement in the conference.

The prospective law teachers component of the conference offers the opportunity for a select group of future teacher-scholars to present a sample job talk, receive comments on their draft CVs, and engage in mock interviews.  This year, I participated as a mentor in all three components.  Some folks needed more support with pieces of the process than others, as you might imagine.  But all were amply qualified and deserving of appointments.  Several sent me nice “thank you” messages.  I hope…

We’re a month away from our second annual Business Law Professor Blog CLE, hosted at the University of Tennessee on Friday, September 14, 2018. We’ll discuss our latest research and receive comments from UT faculty and students. I’ve entitled my talk Beyond Bitcoin: Leveraging Blockchain for Corporate Governance, Corporate Social Responsibility, and Enterprise Risk Management, and will blog more about that after I finish the article. This is a really long post, but it’s chock full of helpful links for novices and experts alike and highlights some really interesting work from our colleagues at other law schools.

Two weeks ago, I posted some resources to help familiarize you with blockchain. Here’s a relatively simple definition from John Giordani at Forbes:

Blockchain is a public register in which transactions between two users belonging to the same network are stored in a secure, verifiable and permanent way. The data relating to the exchanges are saved inside cryptographic blocks, connected in a hierarchical manner to each other. This creates an endless chain of data blocks — hence the name blockchain — that allows you to trace and verify all the transactions you have ever made. The primary function of a…

I am probably late to the game on this, but I just realized that Uber promotes their drivers as “driver-partners.”  It’s even in their ads. This seems unwise.  

Uber has a history linked to the question about whether their drivers are employees or independent contractors. But what about the question of whether Uber drivers are partners or independent contractors? That is big, potential liability conundrum.

Now, just because one says they are partners, that does not make it so, at least as to each other. The converse is also true — saying expressly “this agreement does not form a partnership” does not necessarily mean a court won’t find one. See, e.g., Martin v. Peyton, 158 N.E. 77 (NY 1927) (“Statements that no partnership is intended are not conclusive.”).  But, as to third parties, at a minimum, affirmative statements that one is a partner, can create liability for those involved.  The Uniform Partnership Act (1914) § 16. Partner by Estoppel, provides:

(1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners,

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