Last week, I led a “legal hack” for some of the first year students during orientation. Each participating professor spoke for ten minutes on a topic of our choice and then answered questions for ten minutes. I picked business and human rights, my passion. I titled my brief lecture, “Are you using a product made by slaves, and if you are, can you do anything about it”?

     In my ten minutes, I introduced the problem of global slavery; touched on the false and deceptive trade practices  litigation levied against companies; described the role of shareholder activists and socially responsible investors in pressuring companies to clean up supply chains; raised doubts about the effectiveness of some of the disclosure regimes in the US, EU, and Australia; questioned the efficacy of conscious consumerism; and mentioned blockchain as a potential tool for provenance of goods. Yes. In ten minutes. 

     During the actual hack later in the afternoon, I had a bit more time to flesh out the problem. I developed a case study around the Rana Plaza disaster in which a building collapse in Bangladesh killed over 1,000 garment workers six years ago. Students brainstormed solutions to the problems I posed with the help of upperclassmen as student facilitators and community stakeholders with subject matter expertise. At the end of the two-hour brainstorming session, the students presented their solutions to me.  

     We delved deeper into my subject matter as I asked my student hackers to play one of four roles: a US CEO of a company with a well-publicized CSR policy deciding whether to stay in Bangladesh or source from a country with a better human rights record; a US Presidential candidate commenting on both a potential binding treaty on business and human rights and a proposed federal mandatory due diligence regime in supply chains; a trade union representative in Bangladesh prioritizing recommendations and demands to EU and US companies; and a social media influencer with over 100 million followers who intended to use his platform to help an NGO raise awareness.

     This exercise was identical to an exercise I did in March in Pakistan with 100 business leaders, students, lawyers, government officials, and members of civil society as part of an ABA Rule of Law Initiative. The only difference was that I asked Pakistanis to represent the Bangladesh government and I asked the US students to represent a political candidate. 

     In both Pakistan and Miami, the participants had to view the labor issues in the supply chain from a multistakeholder perspective. Interestingly, in both Pakistan and Miami, the participants playing the social media influencer rejected the idea of a boycott. Even though multiple groups played this role in both places, each group believed that seeking a boycott of companies that used unsafe Bangladeshi factories would cause more harm than good. 

     Of note, the Miami Law students did their hack during the call for a boycott of Soul Cycle due to Steve Ross’ decision to hold a fundraiser for President Trump. In my unscientific poll, three out of three students who patronized Soul Cycle refused to boycott. When it came to the fictionalized case study, all groups raised concerns that a boycott could hurt garment workers in Bangladesh and retail workers in the US and EU. Some considered a “buycott” to support brands with stronger human rights records. 

     I’ve written before about my skepticism about long term boycotts, especially those led by millennials. Some of these same students echoed my concerns about their own lack of sustained commitment on proposed boycotts in the past. The “winning” hack- #DoBetterBangladesh was a multipronged strategy to educate consumers, adopt best practices of successful campaigns such as the Imokalee

farm workers, and form acoalition with other influencers to encourage consumer donations to reputable NGOs in Bangladesh. After seeing what these student groups could do in just two hours, I can’t wait to see what they can accomplish after three years of law school. 

This is my fifth year compiling a list of open business law professor positions in law schools and other settings (mostly business schools).

See the 2018-19, 2017-18, 2016-17, 2015-16 (law schools; business schools), and 2014-15 (law schools, business schools) lists to get a sense of what the market for business law professors has looked like over the past few years.

I will likely update this list from time to time; feel free to e-mail me with additions. Updated 9/30/19.

Law School Professor Positions – Business Area Identified

  1. American University (business law program director)
  2. Chicago-Kent
  3. City University of New York (CUNY)
  4. Emory University 
  5. Northeastern University
  6. Ohio State University
  7. Pennsylvania State University
  8. Samford University
  9. Southern Illinois University
  10. Suffolk University (transaction legal clinic)
  11. University of Akron
  12. University of California-Davis (transaction legal clinic)
  13. University of Cincinnati
  14. University of Dayton
  15. University of Kansas
  16. University of Kentucky
  17. University of Massachusetts – Dartmouth
  18. University of Memphis
  19. University of Nebraska
  20. University of Richmond
  21. University of Wisconsin
  22. Vanderbilt University
  23. Washington University (St. Louis)
  24. Wayne State University

Legal Studies Professor Positions (Mostly Business Schools)

  1. Boise State University
  2. California State University-Los Angeles (real estate law focus)
  3. California State University-Northridge
  4. Christopher Newport University
  5. Hagerstown Community College
  6. Indiana University (possibly multiple positions)
  7. Ithaca College (full-time, non-tenure track)
  8. Morgan State University
  9. Sam Houston State University (2 positions)
  10. Sierra College (Community College)
  11. St. Bonaventure University (spring 2020 start)
  12. Temple University
  13. Texas State University
  14. Tulane University (visiting lecturer, full-time, non-tenure track)
  15. University of Georgia
  16. University of North-Texas (full-time, non-tenure track)
  17. U.S. Air Force Academy (visiting professor)
  18. Wake Forest University (full-time, non-tenure track)
  19. Wenzhou-Kean University (China)

In a previous post, I plugged a short piece that was published in the Georgetown Online Journal, and at that time, I explained it was a preview of a longer, in-progress article about the need for a corporate disclosure system intended for non-investor audiences.  I have now posted a draft of that longer paper to SSRN.  Here is the abstract:

Not Everything is About Investors: The Case for Mandatory Stakeholder Disclosure

Corporations are constantly required to disclose information, but only the federal securities laws impose generalized public disclosure obligations that offer a holistic overview of corporate operations.  Though these disclosures are intended to benefit investors, they are accessible by anyone, and thus have long been relied upon by regulators, competitors, employees, and local communities to provide a working portrait of the country’s economic life.

Today, that system is breaking down.  Congress and the SEC have made it easier for companies to raise capital without becoming subject to the securities disclosure system, allowing modern businesses to grow to enormous proportions while leaving the public in the dark about their operations.  Meanwhile, the governmentally-conferred informational advantage of large investors allows them to tilt managers’ behavior in their favor, at the expense of consumers, employees, and other corporate stakeholders.  As a result, securities disclosures do not provide the comprehensive picture necessary to maintain social control over corporate behavior.

This Article recommends that we explicitly acknowledge the importance of disclosure for noninvestor audiences, and discuss the feasibility of designing a disclosure system geared to their interests.  In so doing, this Article excavates the historical pedigree of proposals for stakeholder-oriented disclosure.  Both in the Progressive Era, and again during the 1970s, efforts to create generalized corporate disclosure obligations were commonplace.  In each era, however, they were redirected towards investor audiences, in the expectation that investors would serve as a proxy for the broader society.  As this Article establishes, that compromise is no longer tenable.

As you can see, this one is a work in progress, so I’m very much interested in hearing everyone’s thoughts.

Yesterday was the first day of 1L Orientation at Creighton University School of Law, which meant it was really my first day of school as a dean, too. I’ve been on the job for a month, but summer school has a very different feel.  This morning I also dropped my son off for this first day of high school.  (And my daughter starts 6th grade tomorrow.) It’s a lot of firsts in our new city, at our new schools, and it’s exciting. And perhaps a little intimidating. I am sure it was for our 1Ls, just like it was back when I started law school.  And I was about to turn 30.

There’s lots of good advice for new law students our there (here, for example), so I focused my brief welcome to our new 1Ls on introducing myself and laying out my expectations for all of us.  This is obviously specific to Creighton Law, though I think and hope it is true at a lot of other places, too. I didn’t actually write out a speech, but here’s the gist: 

First, I let our new students know that we’re in this together. I chose to be here, and so did they. We all had options, and this is where we chose to be. I wanted to mark that so that we can remember why, when things get tough, we’re here in the first place. The reason is at least slightly different for all of us, but we made the same choice. 

Next, I wanted them to know this: I have your back.  I have told the same thing to our faculty and staff, too.  That doesn’t mean I can always say yes, but it does mean that I will work to see you, hear you, and help you.  

I also made clear that I would not ignore the past, but I will work to make sure we do not relive it, either. Our institution (like many others) has faced many challenges, internally and externally. We have a path forward and a group of people committed to our students.  I also wanted to make sure that they knew that even when, as a faculty, some of us disagree with each other, we all agree that our students come first. 

I then talked about how I plan to help us move forward: by building a foundation based on trust, faith, and hope. Trust in each other. Faith in our institution and values, spiritual and otherwise. And hope that working together, we can build a better, and more just, future for everyone. I noted that a key thing about faith and trust, is that they are personal choices. No one can give them to others. We can be trustworthy, which I will work to do. And we can support others in their faith.  But we each chose whether to trust and have faith.  By choosing to do this job, I am putting a lot of trust and faith into this institution and its people, and I hope others will do the same. 

Finally, I told our students what I need them to know:

You are a remarkable group. Every one of you belongs here, or you wouldn’t be here. We expect you to succeed, and we will help you succeed. I ask you to do everything you can to be all in. Be open and committed to what you are doing. This is a lot of work if you do it right, and it’s a lot of fun, too.

Good wishes to all of you in whatever your new beginnings may be. It’s going to be a heck of a year. 

Call for Papers
AALS Section on Securities Regulation—2020 AALS Annual Meeting
Emerging Voices in Securities Regulation
Works-in-Progress Program
January 2-5, 2020
Washington, DC

The AALS Securities Regulation section invites proposals for its “Emerging Voices in Securities Regulation” works-in-progress workshop at the 2020 AALS Annual Meeting.  The workshop will bring together junior and senior securities regulation scholars for the purpose of giving junior scholars feedback on their scholarship and helping them prepare their work for the spring law review submission cycle.  A junior scholar is any untenured full-time faculty member as of January 2, 2020. 

FORMAT:  The program will involve multiple simultaneous roundtables, with one junior scholar, one or two senior scholars, and interested observers at each table.  Junior scholars’ presentations of their drafts will be followed by oral comments from senior scholars and further discussion, as time permits. 

SUBMISSION PROCEDURE:  Junior scholars who are interested in participating in the program should send an abstract (or longer summary) or draft-in-progress to Professor Eric C. Chaffee, Chair of the AALS Securities Regulation Section, at Eric.Chaffee@utoledo.edu, on or before September 16, 2019.  The cover email should state the junior scholar’s institution, tenure status, number of years in his or her current position, and any previous positions in academia.  The subject line of the email should read: “Submission—Sec Reg WIP Program.”

Junior scholars whose papers are selected for the program will need to submit their presentation drafts to Professor Chaffee by December 13, 2019, in order that the assigned commenters will have sufficient time to read the drafts prior to the Annual Meeting.

ELIGIBILITY:  Junior scholars at AALS member law schools are eligible to submit proposals.  Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit.  Please note that all presenters at the program are responsible for paying their own annual meeting registration fees and travel expenses.

In college, I majored in business administration with a concentration in finance, but I learned next to nothing about personal finance. Thankfully, my father provided some advice, and I did a bit of reading on the subject before I graduated law school. But I am still learning, and have dug deeper this summer.

More universities should instruct their students on matters of personal finance. As I mentioned a few months ago, I spoke on personal finance for a group of students at my university last school year,  and I hope to bring Joey Elsakr to speak at my university this school year. Joey is a graduate student and is the co-founder of the blog Money and Megabytes.

Last week, Joey graciously invited me to guest post on his blog. As I mention in the post, I don’t think I have that much to add to his many useful and detailed posts on personal finance, but I do think personal finance gets a lot more difficult after you have a family (namely because there are so many more non-financial factors to weigh in most financial decisions). I pose some of those difficult questions in the linked post below, and I welcome any thoughts on those questions from our readers.

Here is my guest post.

BeautyClipart

We hear a lot about unicorns in technology, finance, and the sharing economy.   But many of us do not realize that a number of unicorns are owned by women and a number of those focus on make-up and skin care–products geared to a female audience.  Female-owned beauty unicorns are all around us . . . .

Why should we care?  Well for one thing, female-owned businesses have historically been somewhat rare.  (In 1972, women-owned businesses accounted for only 4.6% of all firms, e.g.)  And for another, it has been noted that women often have a tough time financing their businesses. (See this 2014 U.S. Senate Committee report and other sources cited below for some details.) Also, it may be interesting to some (it is to me) that a business in such a traditional space can succeed so well in private capital markets given the competitive dominance of major conglomerates (most of which are publicly traded). Also, as I note in closing below (for those teaching in the business law area), the facts and trends in this space may be fodder for great exercises and exam questions.

Women-owned businesses are beginning to catch up in the race for space in commercial and capital markets.  The National Association of Women Business Owners (NAWBO) represents on its website (based on data from an American Express report, updated here) that “[w]omen-owned firms (51% or more) account for 39% of all privately held firms and contribute 8% of employment and 4.2% of revenues.”  The Women’s Business Enterprise National Council (WBENC) notes that “From 2007 – 2018, total employment by women-owned businesses rose 21%, while employment for all businesses declined by 0.8%.”  Women Owned, a WBENC initiative and WEConnect International, asserts that “[o]ver the past 20 years, the number of Women Owned businesses has grown 114 percent compared to the overall national growth rate of 44 percent for all businesses.”  More relevant to the matter of female-led unicorns, however, the NAWBO reports that “[o]ne in five firms with revenue of $1 million or more is woman-owned” and that “4.2% of all women-owned firms have revenues of 1 million or more.”

Yet, unicorns owned by women are the exception rather than the rule in women-owned businesses.  Overall, according to the WBENC, the revenues generated by businesses owned by women contribute only 4.3% of the total revenues of private sector firms, despite the fact that they constitute almost 4 of every 10 privately held businesses. WBENC also reports that “88% of women-owned businesses generate less than $100,000 in revenue,” noting that “[t]his group is growing at a rate that is faster than the growth rate for larger women-owned companies.” So, women still have some work to do in producing gender equity through the creation of large, independent, private firms–whether in the beauty industry or another sector.

Why would an investor fund a female-owned beauty unicorn?  Here’s an answer from one who did—Glossier, well-known by me for its lip glosses, founded by Emily Weiss:

“A category that is mostly acceptable price points with high margins and consumable products—that’s a pretty good business setup,” says Green, who was the first person to back Glossier. Green points out that the momentum women like Weiss and Soare [Anastasia Soare, founder of Anastasia Beverly Hills, a leader in eyebrow products, including its famously popular Brow Wiz®] have created has forced investors to reevaluate what has historically been considered a niche women’s space but is on track to grow to $750 billion by 2024. It has also unleashed a harras of unicorn foals—entrepreneurial hopefuls working to emulate this kind of megawatt success in the cosmetics industry and beyond. “Beauty companies have never been considered companies that are changing the world,” says Weiss. But they are changing the dynamics of who’s in the boardroom.

Venture firms go where the money is, and it appears the beauty market is not yet saturated.  One needs only note the soaring popularity of Korean beauty products in the United States to understand that this is a big market.  Women are credible business leaders in this industry as key, long-term consumers of beauty products.

There is much more data out there on various aspects of women-owned businesses and unicorns.  I plan to poke at these topics more from time to time in this space.  Information about these types of firms–as part of a growth economy–may be useful to both law academics and legal practitioners–especially those working with, or engaged with issues relating to, entrepreneurs, start-ups, or small businesses.  

The mainstream business news media already has taken note.  Witness this article on Glossier in Forbes and this one in Business Insider on Anastasia Beverly Hills, the two firms mentioned above.  And, of course, the fashion retail media and blogosphere are awash with information on these firms. That’s where I learned about these beauty unicorns in the first place.  Some super exercises and exams questions may come out of this space.  I already base an experiential exercise on Urban Decay, which once was a privately held female-owned beauty business.  See this case for details.  Other ideas for how to use the information and trends presented here are, of course, invited.  Leave a comment to share yours.

Hat tip to The Faculty Lounge for these!

+++++

The University of Cincinnati College of Law is looking to hire two tenure-track professors this Fall (note that our AALS ad says only one, but we recently were approved for two), both at the level of Assistant Professor of Law.  Although we’re looking for candidates in all areas, subject areas of particular interest include business law, health law, intellectual property, property, and tax.  The job posting from the AALS bulletin appears below.  University of Cincinnati policy requires that candidates also apply through the University recruitment system, which can be accessed at http://bit.ly/2KdXJhS.  

THE UNIVERSITY OF CINCINNATI COLLEGE OF LAW invites applications from entry-level candidates for the tenure-track position of Assistant Professor of Law. We welcome candidates across all areas of law, although subject areas of particular interest include business law, health law, intellectual property, property, and tax. Applicants must possess a J.D. or equivalent degree and outstanding academic credentials and have demonstrated potential for outstanding teaching and scholarship. Relevant experience in private practice, government service, or a judicial clerkship is strongly preferred. We welcome applications from persons who would add to the diversity of our academic community and engage with the broader community. Questions about the hiring process should be directed to Professor Felix Chang, Chair of the Faculty Appointments Committee (felix.chang@uc.edu). Candidates must also apply online via the UC recruitment system (http://bit.ly/2KdXJhS) to be considered an applicant. The University of Cincinnati is an affirmative action/equal opportunity institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status.

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The University of Dayton School of Law invites applications for a tenure-track Assistant Professor position and a Full Professor with tenure position to begin in August 2020. 

Applicants for the Assistant Professor position must have a J.D. or the equivalent international law degree.  We welcome applications from candidates across all areas of law. Areas of particular interest include secured transactions, business organizations, constitutional law, family law, wills and trusts, tax, conflicts of law, contracts, and property. Applications must be received by January 1, 2020. Applications should include a cover letter and CV and must be submitted through the University of Dayton’s electronic employment site.

Applicants for the Full Professor position must have tenure at a United States or International law school, a J.D. or the equivalent international law degree, a record of outstanding scholarship and publication in the fields of commercial or constitutional law, and excellent teaching evaluations. Applications must be received by September 12, 2019. Applications should include a cover letter, CV, and a sample of recent teaching evaluations. Applications must be submitted through the University of Dayton’s electronic employment site:

Inquiries may be directed to Associate Professor Jeffrey Schmitt, Chair of the Faculty Recruitment Committee, at jschmitt1@udayton.edu.

I just returned from the Annual Conference of the Academy of Legal Studies in Business (ALSB) in Montreal, Canada.  It was a great conference, packed with a variety of panels, paper presentations, workshops, social opportunities, and events showcasing this beautiful city to the north.  Hence, there’s much that could be shared!  In today’s post, I’ve decided to highlight two conference panels whose format I found to be creative and intellectually exciting.  Both identified an overarching theme, and then scholars with divergent interests discussed the theme in the context of their own research.  Then, after panelists’ initial remarks, the moderator posed questions to panel participants before welcoming audience queries.   

Stephen Park assembled and moderated a group of scholars (including me!) to discuss interconnections among global financial markets and sovereign actors, as both regulators and market participants.  Tim Samples examined sovereign debt restructuring; Matthew Turk focused on the sovereign/banking nexus and interactions between governments and intergovernmental actors; Jeremy Kress discussed bank capital requirements for sovereign debt; and, I considered the use of sovereign debt to meet clearinghouse margin requirements.  The panel was a lot of fun and we were all really grateful to Stephen for taking the lead in organizing it!  Here’s the panel’s official description:

Financial Crisis and Reform: Sovereign Debt, Systemic Risk, and Government Insolvency. Like companies, governments participate in the financial markets in various ways, including issuing bonds. However, this shared modus operandi obscures fundamental legal differences between corporate and government financing and the deep linkages between government debt and the broader financial markets. The significance of these differences is particularly evident when governments become insolvent or when their activities pose a risk to the financial system. This panel explores the implications of these dynamics under bankruptcy, banking, securities, and international law and in the context of sovereign and municipal debt restructurings, the use of sovereign debt as collateral, and macroprudential regulation.

Sarah Light and Stephen Park organized the second panel.  It centered on standard setting, collective action problems, and governance by private actors in different subject matter areas.  David Zaring discussed the Equator Principles and the Santiago Principles; Kevin Kolben examined the protection of labor rights in global supply chains; Scott Shackelford considered the issue of cyber peace; Stephen Park focused the intersection of international economic law, corporate social responsibility, and financial law, particularly in regard to ESG reporting; and, Sarah Light explored efforts to insure nature by private actors.  Here’s the panel’s official description:

Private Governance and the Collective Action Problems Facing Business Today. Private standards—created, monitored, and enforced by groups of non-state actors—are proliferating to address emerging risks and opportunities in business. Their appeal lies in their capacity to address collective action problems that governments are not addressing effectively on their own. Their growing influence calls for new ways of analyzing the process of lawmaking, the accountability of lawmakers, and the enforceability of standards that do not rely on coercive governmental authority. This panel will address these questions and others across several emerging areas, including labor and employment law, cybersecurity, financial regulation, international trade, environmental protection, and socially responsible investing.

In sum, both panels were thought-provoking, and followed a great format.  I’m already looking forward to the 2020 ALSB Annual Conference in Providence, Rhode Island!  And, lastly, on the flight home today, I read through half of Cal Newport’s Deep Work: Rules for Focused Success in a Distracted World (noted by co-blogger Haskell Murray).  Thus far, I strongly second his recommendation!      

Revised: 8/13/19

Milton Friedman, shareholder primacy’s true north, wrote:

In a free-enterprise, private-property system, a corporate executive is an employee of the owners of the business. He has direct responsibility to his employers. That responsibility is to conduct the business in accordance with their desires, which generally will be to make as much money as possible while conforming to their basic rules of the society, both those embodied in law and those embodied in ethical custom.

Much judicial, political, and academic ink has been spilled over the first part of this pronouncement, but the second part has always baffled.  What ethics?  Whose ethics?  How do we identify ethical customs that are not instrumental in generating higher profits (because if they were, there would be no need for the qualification; we would simply recognize that pursuit of profits may include pursuit of community goodwill because in its absence it may be hard to sell one’s product).

The recent tragedies in El Paso and Dayton have raised these questions anew.  Cloudflare, which provides various website and internet security services, dropped 8chan (a breeding ground for violent white supremacist content and the site where the El Paso shooter posted a racist screed) as a client, thus knocking 8chan offline.  In so doing, its CEO, Matthew Prince, explained:

We continue to feel incredibly uncomfortable about playing the role of content arbiter and do not plan to exercise it often. Some have wrongly speculated this is due to some conception of the United States’ First Amendment. That is incorrect. First, we are a private company and not bound by the First Amendment. Second, the vast majority of our customers, and more than 50% of our revenue, comes from outside the United States where the First Amendment and similarly libertarian freedom of speech protections do not apply. The only relevance of the First Amendment in this case and others is that it allows us to choose who we do and do not do business with; it does not obligate us to do business with everyone.

Instead our concern has centered around another much more universal idea: the Rule of Law. The Rule of Law requires policies be transparent and consistent. While it has been articulated as a framework for how governments ensure their legitimacy, we have used it as a touchstone when we think about our own policies….

Cloudflare is not a government. While we’ve been successful as a company, that does not give us the political legitimacy to make determinations on what content is good and bad.

Two years ago, Cloudflare discontinued service to the Nazi site Daily Stormer.  At that time, Prince said:

Now, having made that decision, let me explain why it’s so dangerous….  Without a clear framework as a guide for content regulation, a small number of companies will largely determine what can and cannot be online. … Law enforcement, legislators, and courts have the political legitimacy and predictability to make decisions on what content should be restricted. Companies should not…

In an internal email to Cloudflare employees at that time, he was more blunt:

[T]his was an arbitrary decision. It was different than what I’d talked talked with our senior team about yesterday. I woke up this morning in a bad mood and decided to kick them off the Internet. … It was a decision I could make because I’m the CEO of a major Internet infrastructure company….  Literally, I woke up in a bad mood and decided someone shouldn’t be allowed on the Internet. No one should have that power.

Prince depicts himself as a man caught between conflicting ethical principles.  Which apply? 

After El Paso and Dayton, Andrew Ross Sorkin penned an open letter to Walmart’s CEO, the country’s largest seller of guns:

It is clear that this country is suffering from an epidemic that law enforcement and politicians are unable or unwilling to manage.

In the depths of this crisis lies an opportunity: for you to help end this violence….

You could threaten gun makers that you will stop selling any of their weapons unless they begin incorporating fingerprint technology to unlock guns, for example. You could develop enhanced background checks and sales processes and pressure gun makers to sell only to retailers that follow those measures.

You have leverage over the financial institutions that offer banking and financing services to gun makers and gun retailers as well as those that lend money to gun buyers….

It would be easy for you, and other chief executives, to argue that controlling the gun violence epidemic is Washington’s responsibility, not yours. But in an era of epic political dysfunction, corporate executives have a chance to fill that leadership vacuum.

All of this just begs the question of how much we should expect public-style regulation from the private companies that dominate our lives.  Here’s Kara Swisher on Cloudflare’s decision:

It’s long past time for the digital giants to build safety into the DNA of products from their conception. The next crop of tech companies should think about safety from the get-go….

[W]hat we have today, as I have written before, are giant digital cities that were built without adequate police, fire, medical or safety personnel, decent street signs or any kind of rules that would make them work smoothly.

Amazon’s dominant position in commerce had led it to create its own private court system for adjudicating disputes, which has given rise to an industry of Amazon-court “lawyers” to help merchants navigate it.  Facebook, as well, has proposed creating something like an internal court system for handling content disputes.

All of these examples strike me as peak “publicness,” in Hillary Sale’s terminology.  When companies take on public responsibilities, the public demands that they act with the transparency and concern for public values that we ordinarily expect of governments.  Or, to put it another way, Matthew Prince is right: His company does not have legitimacy to make these decisions, but made they must be – which is why greater public demands will be placed on Cloudflare to anticipate them, prepare for them, and avert the next El Paso rather than simply react to it.  (Check out Matt Levine’s description of the terms of Facebook’s privacy settlement.)

How successful is that effort likely to be?  Well, with both apologies and nods to Friedman, if corporations are like governments, an appeal to ethics alone isn’t going to cut it.  As FDR reportedly once told a group of labor activists, “I agree with you; I want to do it; now, make me do it.”  In the context of government, that means constituent anger and threatened disruption; companies may not be so different.  So the real question is whether public outrage can become sufficiently expensive to force change.  And that has yet to be seen.