Current Affairs

Subscribe to Current Affairs via RSS

The Legal Skills Prof Blog has posted an article entitled Our Broken Bar Exam by Deborah Jones Merritt. The post discusses Merritt’s proposal for a task force on the bar exam. Merritt’s article states, among other things:

The bar exam is broken: it tests too much and too little. On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary.
 
This flawed exam puts clients at risk. It also subjects applicants to an expensive, stressful process that does little to improve their professional competence… The bar examination should test the ability of an applicant to identify legal issues in a statement of facts, such as may be encountered in the practice of law, to engage in a reasoned analysis of the issues, and to arrive at a logical solution by the application of fundamental legal principles, in a manner which demonstrates a thorough understanding of these principles… Why doesn’t our definition of minimum competence include cognitive skills that are essential for effective client…

Last week, a reporter interviewed me regarding conflict minerals.The reporter specifically asked whether I believed there would be more litigation on conflict minerals and whether the SEC’s lack of enforcement would cause companies to stop doing due diligence. I am not sure which, if any, of my remarks will appear in print so I am posting some of my comments below:

I expect that if conflict minerals legislation survives, it will take a different form. The SEC asked for comments at the end of January, and I’ve read most of the comment letters. Many, including Trillium Asset Management, focus on the need to stay the course with the Rule, citing some success in making many mines conflict free. Others oppose the rule because of the expense. However, it appears that the costs haven’t been as high as most people expected, and indeed many of the tech companies such as Apple and Intel have voiced support for the rule. It’s likely that they have already operationalized the due diligence. The SEC has limits on what it can do, so I expect Congress to take action, unless there is an executive order from President Trump, which people have been expecting since February. 
 
The Senate

…

More than a few legal blogs and scholars have taken note of a recent paper by Adam Bonica (Stanford University), Adam S. Chilton (University of Chicago), Kyle Rozema (Northwestern University) and Maya Sen (Harvard University), “The Legal Academy’s Ideological Uniformity.”  The paper finds that those in the legal academy are more liberal than those in legal profession generally.  Anecdotally, I have to say I am not surprised. 

The abstract of the piece is as follows:

We find that approximately 15% of law professors are conservative and that only approximately one out of every twenty law schools have more conservative law professors than liberal ones. In addition, we find that these patterns vary, with higher-ranked schools having an even smaller presence of conservative law professors. We then compare the ideological balance of the legal academy to that of the legal profession. Compared to the 15% of law professors that are conservative, 35% of lawyers overall are conservative. Law professors are more liberal than graduates of top 14 law schools, lawyers working at the largest law firms, former federal law clerks, and federal judges. Although we find that professors are more liberal than the alumni at all but a handful of law schools, there is a strong relationship between

…

Ratings behemoth Bill O’Reilly is out of a job at Fox News “after thorough and careful review of the [sexual harassment] allegations” against him by several women. Fox had settled with almost half a dozen women before these allegations came to light, causing advertisers to leave in droves once the media reported on it. According to one article, social media activists played a major role in the loss of dozens of sponsors. Despite the revelations, or perhaps in a show of support, O’Reilly’s ratings actually went up even as advertisers pulled out. Fox terminated O’Reilly– who had just signed a new contract worth $20 million per year– the day before its parent company’s board was scheduled to meet to discuss the matter. The employment lawyer in me also wonders if the company was trying to preempt any negligent retention liability, but I digress.

An angry public also took to social media to expose United Airlines’ after its ill-fated decision to have a passenger forcibly removed from his seat to make room for crew members. However, despite the estimated 3.5 million impressions on Twitter of #BoycottUnited, the airline will not likely suffer financially in the long term because…

I rarely post twice in one day, but I am making an exception today.  After posting this morning, I learned that today is International Haiku Poetry Day.  I loved Haiku poetry as a kid.  I still love it as an adult.  It has structure–a structure that, in my opinion, encourages both brevity and creativity.

In honor of this special day, I wrote a personal haiku for my Facebook page.

Yoga feeds the soul
And calms the body and mind.
Breathe and move. Repeat.

I am pretty proud of that one, inspired by my Monday night Iyengar practice.  So, I thought I would try my hand at a BLPB haiku.  Here goes.

A new President.
Time to revamp business regs!
Uncertainty reigns.

The inspiration for this haiku is obvious . . . .  :>)

Prefer more humorous verse? I also loved limericks.  So, I checked to see whether there might be an International or National Limerick Day.  Indeed, it appears that we will celebrate limericks on Friday, May 12, 2017.  Hmm . . . .

As Haskell earlier announced here at the BLPB, The first U.S. benefit corporation went public back in February–just before publication of my paper from last summer’s 8th Annual Berle Symposium (about which I and other BLPB participants contemporaneously wrote here, here, and here).  Although I was able to mark the closing of Laureate Education, Inc.’s public offering in last-minute footnotes, my paper for the symposium treats the publicly held benefit corporation as a future likelihood, rather than a reality.  Now, the actual experiment has begun.  It is time to test the “visioning” in this paper, which I recently posted to SSRN.  Here is the abstract.

Benefit corporations have enjoyed legislative and, to a lesser extent, popular success over the past few years. This article anticipates what recently (at the eve of its publication) became a reality: the advent of a publicly held U.S. benefit corporation — a corporation with public equity holders that is organized under a specialized U.S. state statute requiring corporations to serve both shareholder wealth aims and social or environmental objectives. Specifically, the article undertakes to identify and comment on the structure and function of U.S. benefit corporations and the unique litigation…

By now, I am sure virtually all of our readers have heard about the United Airline issue involving the dragging of a passenger off the plane.

If not, you can catch up here, here, and here. And you can watch the viral video here.  

Shortly following the incident, United Airlines stock dropped sharply, losing hundreds of millions of dollars of value. (Of course, it is difficult to tell how much of this drop is related to the incident).

The CEO of United Airlines’ first public statement was tone deaf at best. He wrote, “I apologize for having to re-accommodate these customers” when better terms would have been “unacceptable” and “immediate corrective procedures.” There is not evidence that they “had” to remove passengers; they removed passengers because they wanted to transport some of their employees on that flight. The internal e-mail to the corporation’s employees was no better, calling the passenger “disruptive and belligerent.”

My social media feeds, which include many lawyers and legal academics, are full of debate over whether United Airlines acted within the bounds of the law and their terms & conditions. While this is an interesting discussion, I think it is largely beside the point in this case. Regardless of…

Barkley

Today’s topic does not have a direct connection to business law, but I do think toughness is important to students, professors, and lawyers. And the Barkleys Marathon is all about toughness, and maybe insanity. So indulge me. I have been thinking about the race, which happened this past weekend, all week. My wife said I wasn’t allowed to talk about the Barkley Marathons anymore, so I am going to write about it here.

If you have not seen the documentary on Netflix entitled The Barkley Marathons: The Race that Eats its Young, watch it. See the documentary’s trailers here and here. See more about the race here.

I will save you from this overlong, mostly unrelated post with a page break, but if you are interested, you can proceed and read below.

The Washington Post reports: 

Back in 2015, Salesforce CEO Marc Benioff admitted something many CEOs wouldn’t: The company had found a pay gap between the men and women who worked for the cloud computing giant, and it was spending $3 million to fix it. Now after acquisitions and rampant growth at the company brought in 7,000 new employees in the past year, he’s doing it again, announcing Tuesday that the company has spent another $3 million to adjust for a pay gap that affects 11 percent of its more than 25,000 employees.

In an interview with The Washington Post, Benioff said he believed the re-opened gap was largely because of the company’s acquisitive streak — it bought 14 companies in its last fiscal year, the largest in its history. When companies acquire others, Benioff said, “you buy their pay practices, and this pay practice — of, basically, gender discrimination — is quite dramatic through our industry and other industries,” he said.

If one cares about equal pay, and I think people should (beyond just today), one needs to account for it in the purchase price of another entity.  This is a great reminder about the due diligence process. We need to think about all the things that…

Attorney Kyle Westaway has started a monthly e-mail that compiles information about social enterprise and impact investing law. You can subscribe here.

In the latest Impact Esq. newsletter, Kyle included a link to the Kickstarter’s 2016 Benefit Statement. Kyle wrote that he had “never seen [a benefit report] as strong as Kickstarter’s.” Personally, I am not sure I would go that far. I think Greyston Bakery’s Report and Patagonia’s Report are at least as good. I do think the Kickstarter report is relatively good, but the bar is incredibly low, as many benefit corporations are ignoring the statutory reporting requirement or doing a pathetically bad job at reporting.

While the Kickstarter report is more detailed than most, it still reads mostly like a PR piece to me. The vast majority of the report is listing cherry-picked, positive statistics. That said, Kickstarter did note a few areas for possible improvement, which is extremely rare in benefit report. Kickstarter stated that they could do more to promote “sustainability,” that they could do more to encourage staff to “take advantage of the paid time off we provide for volunteering,” and that they wanted to “encourage greater transparency from creators, better educate…