The following is excerpted from Richard A. Epstein, The Civil Rights Juggernaut, 2020 U. Ill. L. Rev. 1541, 1542–44 (2020).

[T]he expansions in the 1970s and early 1980s of the various provisions of the Civil Rights Act of 1964 were done to advance the purpose of ending segregation and promoting integration. I continue to feel much uneasiness about these decisions, in part because they move away from the initial “colorblind” standard by creating preferences for protected classes and allowing affirmative action in their favor. But none of these cases, whatever their merits, had the effect of targeting small and isolated businesses and individuals for powerful government sanctions. Instead, the earlier string of successes were targeted to make sure that powerful groups did not themselves engage in various forms of invidious discrimination–here the word “invidious” is used to allow for affirmative action programs but only in favor of protected groups. Today, all too many civil rights commissions especially at the state level function only to pressure small businesses and individuals to conform to a powerful and overriding vision of the “right” view of the evils of discrimination across the board. The situation marks a powerful change from the landscape that…

Very quick post this week as I comment on DoorDash’s recently-publicized S-1, and the forum selection clause contained in its current certificate of incorporation:

Unless this corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of this corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of this corporation to this corporation or this corporation’s stockholders, (iii) any action arising pursuant to any provision of the General Corporation Law or this Restated Certificate of Incorporation or the Bylaws of this corporation (as either may be amended from time to time), or (iv) any action asserting a claim governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to

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Pfizers’s CEO sold about 60% of his stake in the company on the same day that Pfizer announced vaccine trial results.  These sales reportedly occurred pursuant to a pre-arranged 10b5-1 plan, which Pfizer adopted on August 19, 2020.  Pfizers’s stock rallied over 14% on the release of vaccine trial information on the day the CEO liquidated nearly two-thirds of his holding.

Of course, Pfizer is not the only company to release curiously positive results in periods coinciding with their pre-arranged 10b5-1 plans.  Moderna also released positive information on a similar schedule.  Wharton’s Daniel Taylor provided context:  

Taylor, of the Wharton business school, said the stock sales by Pfizer’s CEO brought to mind similar concerns with another coronavirus vaccine-maker, Moderna. As NPR reported in September, multiple executives at Moderna adopted or modified their stock-trading plans just before key announcements about the company’s vaccine. Those executives have sold tens of millions of dollars in Moderna stock, even though the company has not completed its vaccine trials.

“It’s troubling to me that the general counsel or the internal controls of these companies would consider it legitimate to adopt a 10b5-1 plan one day before a major vaccine announcement,” said Taylor. “If this isn’t

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Over at Law & Liberty (here), David Osborne argues that Uzuegbunam v. Preczewski could impact “attack and retreat” strategies employed by labor unions.  Here is a brief excerpt:

Attack, retreat. Attack, retreat. Unfortunately, this is the tactical offensive increasingly used by the country’s biggest public-sector unions to keep dues money flowing. They “attack” by imposing unconstitutional, restrictive policies on public employees but “retreat” whenever they are challenged in court. Historically, it has allowed union officials to avoid important court rulings that would otherwise allow public employees to choose whether to become or remain union members.

But the Supreme Court may put an end to it this term….

The Court will hear a free speech case, Uzuegbunam v. Preczewski, that could have profound implications for public-sector union members who want to resign their union membership but keep their jobs. On its face, the case [involving two college students who distributed religious literature outside their college campus’s “free speech zones”] has nothing to do with public-sector unions. But Uzuegbunam has turned into a case about an important justiciability issue called “mootness”—and about the courts’ willingness to protect constitutional rights.

First: To all the veterans — thank you for your service!  As an immigrant who became a U.S. citizen in college and served 6 years of active duty in the U.S. Army before attending law school, I am proud to have joined you in taking the oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

Second: Jody Greene and Sharif Youssef have published “Human Rights after Corporate Personhood: An Uneasy Merger” (you can order an examination copy here or pre-order via Amazon here).  I am grateful to have had the opportunity to contribute a chapter: “Killing Corporations to Save Humans: How Corporate Personhood, Human Rights, and the Corporate Death Penalty Intersect.”  Here’s the University of Toronto Press pitch:

Human Rights after Corporate Personhood offers a rich overview of current debates, and seeks to transcend the “outrage response” often found in public discourse and corporate legal theory. Through original and innovative analyses, the volume offers an alternative account of corporate juridical personality and its relation to the human, one that departs from accounts offered by public law. In addition, it explores opportunities for the application of legal personality to assist progressive projects…

In today’s post, I thought I’d share with BLPB readers a few tidbits of information that caught my eye this morning:

1) Today, the Financial Stability Board (FSB) released the “2020 list of global systemically important banks (G-SIBs).”  Topping the list of 30 are Citigroup, HSBC, and JP Morgan Chase.

2) The FSB also recently released a discussion paper for public consultation: Regulatory and Supervisory Issues Relating to Outsourcing and Third Party Relationships.  Reading it has now been added to my “do to list” as it addresses issues such as banks’ reliance on cloud computing, a topic I wrote about in Banking on the Cloud (w/David Fratto and Lee Reiners), an article for last year’s BLPB symposium.

3) Bill Ackman, CEO of the hedge fund Pershing Square, is “hedging the pandemic again.” 

4) Ok, so this one didn’t really catch my eye so much as I went looking for it!  I’m working on finishing this year’s BLPB symposium article… Huang and Takát’s The CCP-bank nexus in the time of Covid-19 shares the happy news that despite the intense market volatility of March 2020, clearinghouses performed well.  However, procyclical margin calls by clearinghouses did create liquidity…

Perhaps of interest (full statement here):

Press Release: According To a New Siemens Stiftung Study, Social Enterprises Are Expected To Create Much Needed Jobs in Africa

The comprehensive analysis in 12 selected African countries estimates that, by 2030, 1 million new jobs can be created by local social enterprises (SEs). In addition, recommendations are outlined on how to support SEs in leveraging their job creation potential. The study, Social Enterprises as Job Creators in Africa – The Potential of Social Enterprise to Provide Employment Opportunities in 12 African Countries 2020-2030 is available as trilogy – Part I: Main Report; Part II: Country Profiles; Part III: Case Studies….

Overall, SEs focus on social effects through their products and services but also through the jobs and income opportunities they provide to marginalized groups.