Even though I have never participated in a single Yoga class, I enjoyed my co-editor Joan Heminway’s Yoga Analogy Post from a couple weeks ago. Her post inspired this analogy post about running and the law.

While I am not the most consistent runner among the BLPB editors—that title goes to Josh Fershee—I have been running 3+ times a week consistently for the last 6 months or so, following a few very inconsistent years.

Below the break, I discuss some parallels between running (particular long-distance running) and the practice of law. Due to these parallels, as a hiring partner, I believe I would look favorably on an applicant who was a distance runner.

Also about distance running, is anyone else really excited about watching the Olympic Trials for the Marathon on NBC tomorrow? Not a great spectator sport, to be sure, but I love that so many people with normal jobs are running. Nashville-area elementary school teacher Scott Wietecha qualified for the Trials (though he has chosen not to run, due, at least in part, the some health issues). Scott has details and predictions here; after reading his long post, I can quickly see that he is even much more excited about watching the race than I am. 

Continue Reading Running, The Olympic Trials for the Marathon, and the Practice of Law

Call for Papers
Vol. 7, No. 1
(Spring 2017)

Special Issue –
The Ethics of Social Entrepreneurship
Donald W. Caudill, Executive Editor (Godbold School of Business, Gardner-Webb University), invites authors to submitpapers for a special issue of the Journal of Ethics & Entrepreneurship  on The Ethics of Social Entrepreneurship (Vol. 7 No. 1, Spring 2017).
 
Mission of the Journal of Ethics and Entrepreneurship
The mission of the JEE is to publish (double-blind, peer reviewed) interdisciplinary scholarly research (conceptual, theoretical, empirical) or teaching cases that connect entrepreneurship and ethics and appeal to both the academic and the practitioner.
Special Issue Call for Papers
This Special Issue is being offered in conjunction with the Special Interest Group in Social Entrepreneurship of the United States Association of Small Business and Entrepreneurship (USASBE) and the issue will be celebrated at the January 2017 USASBE Annual Meeting in Philadelphia, PA.
Social entrepreneurship has become a dynamic force in positively addressing market and institutional social and economic failures as well as providing beneficial solutions for those living on the margins of society.  At the heart of this growing field are the promotion of the social good and the rectifying of social injustices. This focus places social entrepreneurship at the intersection of ethics and entrepreneurship.
JEE is soliciting scholarly manuscripts which explore ethical issues associated with social entrepreneurship. We welcome conceptual, empirical, and pedagogical submissions that blend ethics and social entrepreneurship. Possible research topics can include, but are not limited to:
  • How does an ethical perspective on social entrepreneurship enhance social enterprise opportunity recognition?
  • How do ethics help us understand social venture creation and operations?
  • What ethical questions arise when traditional nonprofit organizations move to an earned income revenue model of operations?
  • What ethical questions arise when social enterprises move from nonprofit legal forms to a for profit legal form?    
  • What are the ethical implications of competing logics within hybrid organizations?
  • What are the links between social entrepreneurship theories and ethical theories?
  • Which ethical theories aid in our understanding of social venturing?
  • How can an ethical lens for social entrepreneurship best be utilized to address significant social change?
  • How can ethics be brought into the social entrepreneurship classroom?
We cast a wide net for differing perspectives on both ethics and social entrepreneurship and invite contributions from all business disciplines and social sciences, including but not limited to Entrepreneurship, Management, Marketing, Accounting, Finance, Information Systems, Sociology, and Economics.
Acceptance Notification: within 60 days from the date of manuscript submission
Submission deadline:  June 1, 2016
Submit manuscript in APA format to the Special Issue editors Kenneth Wm. Kury or Robert S. D’Intino atkkury@sju.edu or dintino@rowan.edu

 

 

 

A colleague recently encouraged me to undertake to write a blog post series.  The essence of his idea?   Reveal how those who regularly turn out quality research and writing over a period of time do it. He suggested it might be valuable for readers to know how one might organize the applicable research, deal with research assistants, write, etc.  He indicated his belief that I am qualified to undertake this task (which was/is both flattering and daunting at the same time).  He concluded with the following observation:  “I’m sure that you work harder than many people, but my guess is there’s more to it than that.”

I recognized immediately the value of his suggestion.  Many of us struggle with keeping the scholarship leg of the three-legged academic stool for law faculty roughly as long as the teaching and service legs.  But what enables law faculty not only to survive this struggle, but also to consistently produce worthy scholarship?  And am I really qualified to speak on this?  

Because I do think the topic is meritorious and because I respect the colleague who made this suggestion, I am going to give the topic a shot.  This post offers my preliminary reflections.  They may or may not represent reality for others.  Perhaps (regardless) my thoughts will sponsor other productive ideas.

First, I do work long hours.  Those who know me well know this well.  My husband has said that he believes I work longer hours in law teaching than I did in private practice (and I worked long hours in private practice).  I admit that, although my doctor has indicated it’s not good for my health, I do not always get eight hours of sleep.  But I want to be clear that my short nights of sleep, when they happen, are largely my choice.  That choice is made because of the heartfelt passion I have for my work.  (The key is to not let things go to an extreme . . . .)

Continue Reading Roots of Scholarly Productivity (Take I)

Bernard Sharfman, in his new article on SSRN, The Tension Between hedge Fund Activism and Corporate Law, argues that hedge fund activism for control of a publicly traded corporation is a positive corrective measure in corporate governance.  After asserting that hedge fund activism should be permitted, Sharfman, argues, controversially, that courts should depart from traditional deference to a corporate board’s decision making authority under the business judgment rule.  Alternatively, Sharfman urges courts to adopt a heightened standard of scrutiny when reviewing defensive board actions against hedge funds.

[Hedge Fund Activism] has a role to play as a corrective mechanism in corporate governance and it is up to the courts to find a way to make sure it continues to have a significant impact despite the courts’ inclination to yield to Board authority. In practice, this means that when the plaintiff is an activist hedge fund and the standard of review is the Unocal test because issues of control are present, a less permissive approach needs to be applied, requiring the courts to exercise restraint in interpreting the actions of activist hedge funds as an attempt to gain control. 

If there are no issues of control, then Board independence and reasonable investigation still needs to be the focus. That is, before the business judgment rule can be applied, the courts need to utilize an enhanced level of scrutiny in determining whether the Board is truly independent of executive management or any other insider such as a fellow Board member. As previously discussed, Board independence is critical to maximizing the value of HFA. Moreover, reasonable investigation of the activist hedge fund’s recommendations should be required to justify Board action taken to mute the fund’s influence. Like the Unocal test, the burden of proof for establishing independence and reasonable investigation needs to be put on the Board. In sum, what is required in the court’s review of Board actions to mute the influence of an activist hedge fund is something similar to the first prong of the Unocal test except independence and reasonable investigation is now focused on the Board’s evaluation of the fund’s recommendations, not the threat to corporate policy and effectiveness.

Sharfman uses Third Point LLC v. Ruprecht, the 2014 Delaware case invovling Sotheby’s poison pill, to illustrate how the traditional (deference) standard of review leads to boards being able to defeat hedge fund activists.

An interesting comment published in the Yale Law Journal by Yale Law Student Carmen X.W. Lu, Unpacking Wolf Packs, offers an alternative view of the Third Point case emphasizing the coalition of hedge funds acting in that case and the court’s skepticism of wolf pack activist investors. 

-Anne Tucker

 

This week, Delaware Governor Jack Markell nominated Joseph R. Slights, III for the position held by retiring Vice Chancellor John Noble on the Delaware Court of Chancery.

Judge Slights previously served a 12-year term on the Delaware Superior Court. Immediately prior to his nomination, Judge Slights was a commercial litigation partner at the firm of Morris, James, Hitchens & Williams LLP.

Once Vice Chancellor Noble retires, Vice Chancellor Laster will become the judge with the most experience serving on the Delaware Court of Chancery. Vice Chancellor Laster was sworn into his position in October of 2009. It has been a quick 6+ years; it seems like that was just yesterday.

I outsource the details of Joseph Slights’ nomination below:

My home state in West Virginia is struggling.  The economy is struggling because two of the state’s main industries — coal and natural gas — are facing falling production (coal) and low prices (gas). Severance taxes for the state account for approximately 13% of the budget, and both are down dramatically. Tax revenues for the state were down $9.8 million in January from the prior year and came up $11.5 million short of estimates.  For the year-to-date, the state collected $2.29 billion, which is $169.5 million below estimates. Oddly enough, state sales and income taxes for January both exceeded estimates, but not enough to offset other stagnation in the state.  

The state has long been known as a coal state, and that industry has dominated the legal and political landscape.  West Virginia has been criticized for having a legal system that is “anti-business,” with the United States Chamber of Commerce finding stating that West Virginia is the 50th ranked state in terms of the fairness of its litigation. (See PDF here.) CNBC (with input from the National Association of Manufacturers) also ranked West Virginia last in terms of business competitiveness, so the starting point is not good.  

Now, the West Virginia legislature is considering the state’s Religious Freedom Restoration Act, which many (including me) see as about legalizing specific forms of discrimination, and not promoting or supporting religion.  And some religious groups agree.  As the Catholic Committee of Appalachia’s West Virginia Chapter explains: 

We appreciate the background of 1993 federal act with the same name, and the history leading up to it, with its pertinence to protecting Native American sacred lands and religious practices from governmental infringement. With the U.S. Supreme Court’s decision that RFRA would only be applicable to federal actions, we can recognize, also, the value of an argument for versions of a law to be passed at the local level. However, the primary motivation behind West Virginia’s bill #4012, and others like it, seems not to be the protection of legitimate religious exercises, but securing the ability of religious groups to discriminate against marginalized populations on the basis of religious convictions.

Just as important for purposes of this post, many West Virginia businesses oppose the bill.  Local Embassy Suites and Marriott hotels representatives spoke out against the bill, and the Charleston (WV) Regional Chamber of Commerce and Generation West Virginia, along with several city mayors, have opposed the bill, as well.  They have good reason.  When the state of Indiana passed a similar bill, Indianapolis promptly lost as many as twelve conventions and estimates around $60 million.  Ouch. As one mayor said, West Virginia legislators need to “Get out of the way.” 

Morgantown, home to my institution, was the state’s second city to pass an LGBT non-discrimination ordinance in February 2014. West Virginia University’s faculty senate also unanimously yesterday approved a resolution condemning the bill. And there was a chance to make clear the intent of the bill was not intended to be used as a way to discriminate against someone based sexual orientation through a proposed amendment making that clear. Unfortunately, the amendment was deemed “not germane.”

Beyond coal, natural gas, chemicals, and timber, tourism is one of our state’s main industries. It’s also a great one. From whitewater rafting to skiing to hiking, the state is a great place for outdoor activities.  Craft breweries and a few great local restaurants are helping make the state a destination.  Unfortunately, the debate about this bill, especially in the wake of the backlash in Indiana, is hurting the state’s ability to make build up it’s tourism industry by making many people feel unwelcome.  

It’s really too bad as a local restaurant, Atomic Grill, made international news for how they responded to comments about their waitresses and has been lauded for their response to other intolerance in their restaurant.  

I don’t like this bill because, to me, it’s either a tautology or an attempt to discriminate through legislation.  But beyond that, it’s stupid, terrible way to promote business in the state.  We spend enough time trying to get people to come visit — and when people do, they almost always like it. It really is a great place in so many ways.  At a time when the entire state is looking at 4% budget cuts across the board — when we need to be building bridges to broader audiences — the state’s legislature is screwing around with bills that have zero economic upside and reinforce stereotypes about the people of our state.   

Being pro-business means being pro-consumer, which really means being pro-people.  This bill is none of those.  We need to do better, and it’s disappointing our time and our money are being wasted like this.  

Every year, the Corporate Practice Commentator publishes an annual list of each year’s best corporate and securities law articles. Bob Thompson, a law professor at Georgetown, is currently the curator of that list. Each year, he circulates a ballot to corporate and securities scholars with a list of articles for them to vote on.

I’ve always been a little skeptical of this list, and not just because I’ve never been on it (I don’t think). There are over 500 articles on the list and, unless most professors have more time on their hands than I do, they haven’t read most of those articles. Even if they had, I’m not sure a popular vote, even one limited to law professors, is the best way to measure quality. And quality often becomes apparent only over time, when one can see the effect the article has had.

Having said that, I have nothing against Professor Thompson’s poll, even though I don’t participate. But his recent solicitation to participate in this year’s balloting prompted me to think about the other side of things: what are the worst corporate and securities law articles of the year?

We should probably exclude student-written notes and comments in creating such a list. It’s isn’t fair to compare amateurs to professional academics (although I’ve read many student articles that are far better than some of the professionally written drivel). But what are the worst articles law professors write each year?

I’ve read some real stinkers over my 30-year career—or I should say I have begun to read some real stinkers over my career; it’s usually clear very early if an article is terrible. It would have been nice to have a list to warn me not to waste my time.

I would start a list like that, but I’m afraid too many people would vote to put my articles on it. Instead, I’ve decided to keep my own private list, beginning this year. No one else gets to see it, but be warned that one of your publications may be enshrined on my own personal wall of shame.

Note: Any comments attempting to nominate articles for the “worst” list will not be posted. I don’t want to make any more enemies than I already have.

Starting on the first day of my Advanced Business Associations course, I attempt to tease out the policy underpinnings and theoretical conceptions of entity law and, in particular, corporate law.  This turns out to be a somewhat difficult task, since most students in the course, to the extent that they remember anything at all from their experience in the foundational Business Associations course, are more focused on what a corporation is and does than why we might have one in the first place.  As the semester proceeds and the readings unfold, the students get more comfortable talking about the rationale for certain aspects of the corporate form and why corporate law structures and operating rules promise to achieve the goals of those organizing a firm as a corporation.  But it’s a slow process.

I have to believe that some of my fellow law professors face similar challenges with their students.  I also believe that instructors in other educational settings face analogous difficulties when they incorporate abstract notions into the teaching of more “black letter” (for want of a better term at this point in my day) concepts.  My approach has been to assign readings of primary and secondary material and use classroom discussion time and projects to reveal things about why the corporation exists, why venturers form them (as opposed to conducting business as sole proprietors or using another business form), and what issues we observe and might expect to observe as among corporate constituents as time unfolds.  So, I plan to cover everything from the general role of entity law in fostering the conduct of business (by offering off-the-shelf rules for use by venturers in structuring and operating  businesses) to notions of corporate personhood and the role of the corporation in society.

I am wondering if there is an alternative to my approach that any of you use in a similar course, or whether there is a particularly good set of foundational readings that you use to approach this set of issues in a business law offering.  At the end of this semester, I will have taught this course in this general format twice, and I will be taking stock to shore it up to make sure the third time’s a charm.  [FYI, I start the semester with Bebchuk and Bainbridge, take a tour through the public company using the Disney case and its corporate documents, then move on to compare/contrast the publicly held firm with closely held corporations and unincorporated business associations before moving into some depth topics (M&A, complex business litigation, corporate social responsibility and the benefit corporation, etc.).  It is a two-hour course.]  Suggestions and other thoughts in comments or by email are welcomed.