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I had planned to post about the intersection of business and CSR in light of the Pepsi/Kendall Jenner debacle and the Bill O’Reilly sponsorship flap, but I will save that for next week. For the last two days, I’ve been at my 25th anniversary reunion. I protested every year at HLS due to the lack of faculty diversity, and I also didn’t believe that I had learned a lot that prepared me for the real world, and thus had mixed emotions about coming back.

 HLS turns 200 this year, and Dean Martha Minow is stepping down because she actually misses full time teaching and scholarship. She raised some fascinating statistics about the incoming class that all of us in the profession should think about as we teach and work with the next generation of lawyers. Of course, Harvard is at the cutting edge, but schools at every tier should try to follow HLS’ lead where possible. 

Eighty percent  of  the incoming class didn’t come straight from college. Twenty-five percent have  four or more years of work experience, which means that these are students who didn’t just default into law school. They made a considered choice and their work experience adds…

No, not that conference, although I suppose that one’s nice too.  

In (very) loose association with that other conference, Tulane hosted a corporate academic conference, made possible by the generous donation of one of our alums, Gordon Gamm, and his wife Grace.

The academic conference, which took place on Saturday, April 1 immediately following the Tulane Corporate Law Institute, was great fun, and allowed me to reconnect with old friends and make some new ones.  It was structured on the theme of Navigating Federalism in Corporate and Securities Law, and featured presentations by 11 corporate and securities scholars (including me!).  

Discussion ranged from how to encourage retail shareholders to exercise their corporate voting rights to whether to redesign the internal affairs doctrine to controlling corporate political spending to issues of SEC regulatory capture and the intensity of its enforcement efforts to – of course – how, and even whether, we should distinguish corporate law from securities law.  Most of the papers were in draft form and are not yet publicly available, but a few are up, including Ed Rock’s and Daniel Rubenfeld’s Defusing the Antitrust Threat to Institutional Involvement in Corporate Governance, Robert Jackson’s, Robert…

The big news in securities litigation this week is that the Supreme Court has agreed to resolve the circuit split over whether a failure to disclose required information can function as a misleading omission for purposes of Section 10(b).

I’ve blogged about this split before; basically, my take is that courts are wary of omissions liability not simply because they distrust securities litigation in general, but because they are concerned about further blurring the line between fraud claims and claims for mismanagement.

Which, fortuitously, happens to be the subject of my new article, forthcoming in the Fordham Law Review and just posted to SSRN.  I argue that courts are using issues like puffery, loss causation/damages, and omissions liability to draw distinctions between fraud claims and mismanagement claims and – further – to sketch out a (relatively narrow) view of the proper role of shareholders within the corporate governance structure.  I hastily amended the piece before posting to account for the cert grant; my quick prediction is that if the Supreme Court does permit omitted information to serve as the basis of a Section 10(b) claim, lower courts – concerned about this fraud/mismanagement line – will find themselves narrowing…

I only had 2 relevant SSRN postings in my Twitter feed the past 7 days, so I’m starting with 3 additional items I just pulled from “SSRN Top Downloads For Corporate Governance Network … for all papers first announced in the last 60 days” (available here).

more than 80% of IROs [Investor relations officers] report that they conduct private ‘call-backs’ with sell-side analysts and institutional investors following public earnings conference calls

https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2934937

Bargains between those who control corporations and those who control government institutions to benefit themselves ….

https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2909183

Lack of comparability due to the lack of reporting standards is the primary impediment to the use of ESG [environmental, social and governance] information.

https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2925310

And here are the Tweets:

This semester, I’m teaching a seminar on the financial crisis.  And because my specialty is corporate and securities law, not property, I brought in a ringer – in the form of Chris Odinet of Southern University Law Center – to talk to my class about the Mortgage Electronic Registration System (MERS) and foreclosures.  MERS is a private organization that mortgage bankers have used to track mortgage assignments in the age of securitization, but after the housing bubble burst, it wreaked havoc in the foreclosure process because of sloppy recordkeeping and its inconsistency with the traditional manner in which interests in land have been recorded.  See generally Christopher Lewis Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory, 53 Wm. & Mary L. Rev. 111 (2011).

As Chris Odinet described it to my class, MERS was formed when several financial institutions (including, as it turns out, the Mortgage Bankers Association, Fannie Mae, Freddie Mac, the Government National Mortgage Association, the Federal Housing Administration, and the Department of Veterans Affairs) decided that publicly recording mortgage assignments in county property offices was too expensive and cumbersome.  Instead, these institutions decided to form a shell corporation that would “own” all…