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The following is being posted on behalf of Jonathan Adler, the Johan Verheij Memorial Professor of Law, and Director of the Center for Business Law and Regulation, at Case Western Reserve University School of Law.

In recent years, the Supreme Court appears to have taken a greater interest in “business” issues, leading court watchers to question whether this is a change in the Court’s orientation, or if it is the natural outcome of the appellate process. Is the Court “pro-business”? If so, in what ways do the Court’s decisions support business interests and what does that mean for the law and the American public? On September 23, the Center for Business Law and Regulation at Case Western Reserve University will host a conference, “Business in the Roberts Court” to explore these questions. Speakers include Catherine Sharkey (NYU), Todd Henderson (Chicago), James Copland (Manhattan Inst), Brianne Gorod (CAC), Suzette Malveaux (Catholic), Cassandra Robertson (CWRU), Mitch Pickerill (NIU), Andrew Grossman (Baker & Hoestetler), Jonathan Adler (CWRU), Karen Harned (NFIB) and Ohio State Solicitor Eric Murphy. The conference is open to the public and 4.5 hours of CLE credit are available. It will also be webcast live. Details are here.

I’m finding the controversy over the Epipen price increases fascinating, because of its hoist-by-their-own-petard quality.

When Mylan acquired Epipen in 2007, it wasn’t a particularly popular product.  Then Mylan started a heavy marketing push, which included increasing awareness of the dangers of allergies, publicizing how Epipen could save lives in emergencies, and lobbying for legislation requiring that Epipens be stocked in public places as an emergency health device, like defibrillators.  Because Mylan did a tremendous job of persuading the public that the Epipen was a critical medical device, it was able to raise prices dramatically – and now, having convinced everyone and his mother that Epipens are indispensable, the company is getting backlash for price gouging on this life-saving technology (not to mention becoming the target of investigations and lawsuits over, among other things, Medicaid fraud and state law antitrust violations).

Haskell previously posted about the Epipen situation, and connected the issue to the shareholder wealth maximization norm in corporate law.  Going further, he asked whether, from a policy perspective, we particularly want to encourage some other sort of stakeholder model for the healthcare industry.

I guess my point is, the issue is not just price increases; it…

    First of all, I want to thank the editors of the Business Law Prof Blog for allowing me to guest blog over the summer.  I thoroughly enjoyed my stay here and they have been kind enough to let me continue posting from time to time as a contributing editor.  Thanks again to all of you.

    The National Conference of Commissioners on Uniform State Laws (“NCCUSL”) (also known as the “Uniform Law Commission”) promulgates several influential business organization statutes:  the Revised Uniform Partnership Act (1997), the Revised Uniform Limited Partnership Act (1985), the Uniform Limited Partnership Act (2001), and the Revised Uniform LLC Act (2006), to name a few.  Some of these statutes have been widely adopted.  The Revised Uniform Partnership Act, for example, has been adopted by 38 states (as well as the District of Columbia and the Virgin Islands) according to the Uniform Law Commission’s website.  As another example, the Uniform Limited Partnership Act (2001) has been adopted by 19 states (as well as the District of Columbia) according to the same website.

    From 2009-2013, NCCUSL engaged in an intensive effort to harmonize all of the uniform acts covering unincorporated business organizations.  The “Harmonization Project”…

At this point, it almost feels like I’ve been following the securities fraud case against Halliburton my entire career.   I was grimly amused when I heard that the Fifth Circuit had granted an interlocutory appeal – again! – to hear a challenge to class certification – again! and I diligently tracked the docket on Bloomberg, only for it to belatedly sink in that – wait a minute, I actually live in New Orleans now.  I can go see the oral argument in person, live, in color.

So I did.

It was … interesting. 

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I’ve been fascinated by the efforts of various state attorneys general to investigate Exxon for securities fraud on the ground that its climate change denial misleads investors about the risks of investing in the company.  Exxon has filed a lawsuit in Texas to halt the inquiries, arguing that they infringe on its free speech rights, and Congressman Lamar Smith, head of the House science committee, has subpoenaed the attorneys general involved, to determine if this is a coordinated political attack on the company.  The dispute has even made it into the Democratic party platform, which states that “All corporations owe it to their shareholders to fully analyze and disclose the risks they face, including climate risk. …  Democrats also respectfully request the Department of Justice to investigate allegations of corporate fraud on the part of fossil fuel companies accused of misleading shareholders and the public on the scientific reality of climate change.”

An investigation by the Virgin Islands was dropped; as far as I know, both the New York and Massachusetts investigations continue, and investigations by other states.  Exxon’s lawsuit remains pending.

It’s not a new idea, to claim that securities regulation impinges on free speech rights – the DC Circuit struck down part of the SEC’s conflict minerals rule on just that ground – but usually these arguments are aimed at rules that require issuers to speak, or prohibit issuers from making truthful statements.  The Exxon case is unusual because it comes in the context of, well, false statements.

At the same time, though, one cannot help but suspect that the real concern isn’t investors, but the nature of Exxon’s participation in public political debates.

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I’m now in my third year of teaching on the tenure track after two years of a VAP. I still consider myself a newbie because despite over twenty years of practice experience, teaching is a whole different ball game.

This semester I am teaching Civil Procedure, which is now a one-semester 4-credit class instead of a two-semester class, and a 4-credit Business Associations class. Both are required at my institution and bar tested in Florida. I have taught them both before and thankfully get strong reviews from my students, but I am always looking to improve.

To that end, I recently took a look at Emily Grant’s essay, Beyond Best Practices: Lessons from Tina Stark About the First Day of Class. The abstract states:

This Article reviews and expands the literature on best practices in a narrow subset — the first day of class. As the same time it seeks to convey words of wisdom from one of the most well-known and highly-regarded legal educators: Tina Stark, a giant in transactional drafting. The first day of any law school class can be fraught with tension and nerves, even for professors. This article presents advice from Professor Stark, supplemented with guidance…

I am still working my way through this new paper, Seeking an Angle of Repose in U.S. Business Organization Law: Fiduciary Duty Themes and Observations, from J. William Callison of Faegre Baker Daniels LLP. It’s an interesting premise, and worth a look. Here’s the abstract:

This article applies liberal, neoliberal, critical, feminist and communitarian political theories to limited liability company and partnership fiduciary duty law; discusses developments in that law over the last two decades by focusing on theory; suggests a pragmatic and balanced approach to fiduciary duty law that incorporates desirable features of different approaches; and suggests that law, as developed in uniform acts, has been moving toward a balanced approach.

The paper is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2827771