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I am proud to announce that the lead official (the referee in NFL parlance) in Sunday’s Super Bowl is a graduate of my law school. Clete Blakeman graduated from the University of Nebraska College of Law in 1991, after playing for the Nebraska football team as an undergraduate. In addition to being an NFL referee, Clete is an attorney for an Omaha firm. (That’s right: the same Clete Blakeman who somehow managed to toss a coin in the Packers-Cardinals game without it flipping.)

Clete took Corporations from me so, if any corporate law issues come up during the course of the game, I’m confident he will handle them well.

If he screws up an important call, I will, of course, delete this post immediately after the game.

Most law professors want to place their articles in the top law reviews. The higher the ranking, the better. Because of that, editors at schools further down the chain have trouble getting high-quality articles.

Personally, I think it’s inappropriate to judge articles by where they’re placed. I don’t trust the quality judgments student editors make. They lack the subject-matter background to judge the true quality of an article and they often have a preference for faddish topics. But placement matters to many people, and that has a negative effect on many law reviews. They never even see some of the best articles.

The Harvard, Yale, and Chicago law reviews are never going to have trouble getting good submissions. If you’re a law review editor at a top-20 law review, you can stop reading here. But what about the rest of the reviews?
One option many people have tried is to organize symposia, but that’s not always effective. Even if leading scholars are willing to participate in those symposia, they often don’t submit their top work.

My proposed solution: use money as a motivation.

Paying for each article is a possibility, but that’s financially difficult. Professors might be willing to publish…

This piece in the Wall Street Journal reports on a recent article by David F. Benson, James C. Brau, James Cicon, Stephen P. Ferris regarding the language used in charters and bylaws of companies going public.  As described in the WSJ, they conclude that companies with shareholder-unfriendly provisions – such as, for example, staggered boards or supermajority voting – are inclined to “camouflage” this fact by using more obscure, harder-to-parse language.  And this effect is more pronounced for companies that can expect they won’t be caught – such as, companies with a smaller analyst following and fewer institutional investors.  They also find that companies that use camouflage reap benefits in the form of higher pricing.  I was intrigued by the description in the WSJ, and thought the findings might be a useful point of discussion in my Sec Reg class, so I tracked down the actual study.  But I found myself a bit confused by the evidence offered to support their conclusions.

[More under the cut]

I usually limit myself to 5-6 tweets in this post, but for some reason I just couldn’t bring myself to cut any of the below, so you will need to click “continue reading” at the bottom of this post if you want to see them all.

Back in the heady days of 2011, everyone wanted Facebook shares, but Facebook was not yet publicly traded.   It was close to bumping up against the then-500 shareholder-of-record threshold, however, which would have triggered reporting requirements under Section 12(g) of the Exchange Act. As a result, Goldman Sachs developed a single investment vehicle to allow clients to invest in Facebook indirectly; the vehicle would purchase Facebook shares (and count as a single shareholder), and then Goldman clients would buy shares of the vehicle. Eventually Goldman ultimately was forced to modify its plan due to a different SEC rule, so its legality was never tested.

Fastforward to 2016. The JOBS Act has now upped the shareholder threshold to 2000 shareholders of record (or 500 unaccredited shareholders), and eliminated the rule that tripped up Goldman’s earlier efforts, so Morgan Stanley and Merrill Lynch are playing the game again with Uber shares. Accredited investors will have the opportunity to buy interests in New Riders LP, whose sole assets will be stock in Uber.  

Rsz_new_riders

(okay, different New Riders LP). 

The minimum price tag is $1 million through Merrill, or a paltry $250K through known-populist Morgan Stanley. The 290-page offering materials are heavy on risk disclosures, but fail to include any financial information about Uber; instead, investors are urged to trust Morgan Stanley’s and Merrill’s valuation.

[More under the jump]

“Call me Ishmael.”

Legal scholarship is in many ways like whaling. We don’t use harpoons, except in especially contentious symposia. And most of the mammalian harm is emotional, rather than physical. But there are many similarities.

1. Whales, Once Abundant, Are Disappearing

In the early days of legal scholarship, novel ideas were abundant. Blackstone, Story, and Kent were out there as background, but there was much unexplored territory—both general theoretical work and summaries of the law. Whales were abundant. Today, the major theoretical positions have been staked out ad infinitum, summaries and restatements of the law are abundant, and the few remaining whales lie on the edges—inspired primarily by new developments in technology and markets.

Much of today’s scholarship merely applies old ideas to new marginal questions. (Witness the work of many late-arriving law-and-economics and critical-legal-studies scholars.) The number of truly novel ideas is dwindling; most of the whales are gone.

2. To a Desperate Whaler, Everything is a Whale

The whales are rare, but the demand for “cutting-edge” scholarship has not ceased. Tenure at most schools depends on it. And the number of legal writers has increased substantially since those early days. Fewer whales; more whalers.

Faced…

There has long been a debate about whether corporations should be forced to disclose non-financial information about their operations, particularly information pertaining to social responsibility. For example, as Marcia Narine has repeatedly discussed, Dodd-Frank’s “conflict minerals” disclosure requirement may be not only ineffective to pressure companies into making ethical purchasing decisions, but may even be counterproductive, by causing companies to pull out of the Congo entirely (thus devastating the regional economy) rather than endure the expense of ensuring that their purchases do not indirectly finance armed groups.

Further to this issue, Hans B. Christensen, Eric Floyd, Lisa Yao Liu, and Mark Maffett have recently released a paper studying the effects of Dodd-Frank’s requirement that mining companies disclose information about their compliance with the Federal Mine Safety & Health Act of 1977. They find that after mine-owning companies became subject to Dodd-Frank’s disclosure requirements, they demonstrated a marked decrease in safety violations and injuries, counterbalanced by a decrease in productivity (apparently because they are spending more time on safety compliance). They also find that mines that disclose an “imminent danger order” from regulators post-Dodd Frank not only experience an immediate stock price reaction (especially the first time such an order…

I, like many law professors, recently returned from the annual meeting of the Association of American Law Schools. I attended a number of interesting presentations, but the highlight of the conference for me was the opportunity to hear Frank Easterbrook speak on “The Corporate Law and Economics Revolution.”

I assume that most of our readers are familiar with Judge Easterbrook. He was a prominent corporate law scholar prior to (and after) being appointed to the Seventh Circuit Court of Appeals by President Reagan.

I have never met Judge Easterbrook. He left the academy two years before I began teaching. But I am certainly familiar with his writing. I have read several of his articles, and a well-used copy of his book (with Daniel Fischel) The Economic Structure of Corporate Law sits on my office bookshelf. And we do have a connection of sorts: my first citation ever came from him. He was kind enough to cite my very first article in one of his opinions, Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th Cir. 1989).

At the conference session I attended, Judge Easterbrook’s views on law and economics were forcefully challenged by one of the other…