Professor Bainbridge has posted:  Bainbridge, Stephen M., A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood (February 21, 2014).

The abstract is posted below:

The Patient Protection and Affordable Care Act (ACA) effected numerous changes in the legal regime governing health care and health insurance. Among the ACA’s more controversial provisions is the so-called contraceptive mandate, which requires employer-provided health care insurance plans to provide coverage of all FDA approved contraceptive methods.

 

On March 25, 2014, the Supreme Court will hear oral argument in the Hobby Lobby and Conestoga Wood cases, in which the shareholders of two for-profit family-owned corporations argue that requiring them to comply with the contraception mandate violates the Religious Freedom Restoration Act.

 

Forty-four law corporate law professors filed an amicus brief in these cases, arguing that the essence of a corporation is its “separateness” from its shareholders and that, on the facts of these cases, there is no reason to disregard the separateness between shareholders and the corporations they control. The Brief is replete with errors, overstated claims, or red herrings, and misdirection.

 

Contrary to the Brief’s arguments, basic corporate law principles strongly support the position of Hobby Lobby and Conestoga Wood. In particular, the doctrine known as reverse veil piercing provides a clear and practical vehicle for disregarding the legal separateness of those corporations from their shareholders and thus granting those shareholders standing to assert their free exercise rights.

The following announcement of the Mid-Atlantic Academy in Legal Studies in Business (“MAALSB”) Annual Conference on March 21-22, 2014 comes to us from MAALSB President Stacey B. Lee (John Hopkins).  The conference will be held at Johns Hopkins Carey Business School, 100 International Drive, Baltimore, MD 21202 (pictured below).

Papers submitted by March 1, 2014 are eligible for publication in the Atlantic Law Journal and a Best Paper cash award. Conference attendance is not required for journal submissions. For more information, please check the ALSB website’s link to MAALSB, or contact Stacey B. Lee, President at staceyb.lee@jhu.edu.

More registration information is available here.

My co-blogger Haskell Murray recently posted “Religion, Corporate Social Responsibility, and Hobby Lobby” and asked me to respond, which I am happy to do. I will admit that I am still developing my thoughts on the issues raised by Haskell’s post, so what follows is a bit jumbled but still gives a sense of why I currently oppose for-profit corporations being permitted to evade regulation by pleading religious freedom (if you have not read Haskell’s post, please do so before proceeding):

1. Corporate power threatens democracy. Corporations and other limited liability entities have been controversial since their creation because, among other things, the combination of limited liability, immortality, asset partitioning, etc., makes them incredible wealth and power accumulation devices. Of course, on the one hand, this is precisely why we have them – so that investors are willing to contribute capital they would never contribute if they risked being personally liable as partners, and thus unique economic growth is spurred, a rising tide then lifts all ships, and so on. On the other hand, because of their unique ability to consolidate power, corporations are aptly considered by many to be one of Madison’s feared factions that threaten to undermine the very democracy that supports their creation and growth:

Besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The establishment of the chaplainship in Congress is a palpable violation of equal rights as well as of Constitutional principles. The danger of silent accumulations and encroachments by ecclesiastical bodies has not sufficiently engaged attention in the U.S.

[More after the break.]

Continue Reading The Separation of Church and For-Profit Corporations

At its Friday conference, the Supreme Court considered the cert petition filed in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, concerning the definition of “falsity” under the securities laws when the relevant statement expresses a matter of opinion, rather than objective fact.  I think the Court will likely deny this particular petition, but the issue is a critical one that will have to be resolved sooner or later.

[More discussion under the cut – click to read]

Continue Reading Everyone is entitled to his own opinion, but not to his own facts.

From the Faculty Lounge:

The New York Law School Law Review is calling for papers to be published in connection with its April 25, 2014 symposium, Combating Threats to the International Financial System: The Financial Action Task Force.

 

Although this symposium will specifically address the Financial Action Task Force, the symposium’s companion Law Review publication will broadly examine contemporary threats to the international financial system, such as money laundering and terrorist financing. In examining these issues, the publication will address how these threats have been responded to in the past, as well as how they should be responded to at the international, federal, and state levels in the future.

 

The Law Review is currently accepting abstracts for papers to be considered for publication in the spring of 2015.  To be considered for publication, please send by March 28, 2014 an abstract of no more than 500 words in MS Word format, accompanied by a CV, to Editor-in-Chief G. William Bartholomew at george.bartholomew@law.nyls.edu.

 

Final papers will be due June 13, 2014, and may not exceed 35 pages in length (double-spaced, including footnotes).  Details on the symposium are here.

Professor Stephen Bainbridge made me aware of Keith Paul Bishop’s post entitled:

44 Law Professors Make A Case Against Corporate Social Responsibility

Bishop writes:

I was shocked because the [law professor] brief constitutes a frontal assault on corporate social responsibility.  For example, the law professors make the following apocalyptic claim: “If this Court were to agree that, as a matter of federal law, shareholders holding a control bloc of shares in a corporation may essentially transfer their [social responsibility] beliefs to the corporation, the results could be overwhelming.”  Ok, I substituted “social responsibility” for “religious”.  However, if the transfer of stockholder religious beliefs to the corporation would be “overwhelming”, why wouldn’t the same be true of beliefs regarding climate change, the environment, or other beliefs animating the corporate social responsibility movement?

Two of my co-bloggers signed the law professor brief in the Hobby Lobby case that Bishop discusses, so they are probably better suited to respond, but I will provide a few thoughts. 

One distinction, between the Hobby Lobby case and CSR, that may be quickly raised is addressed in section II.C of the law professor brief.  Hobby Lobby is attempting to use religion to avoid legal obligations.  There may be situations where companies argue they should be able to avoid legal obligations because of  “beliefs regarding climate change, the environment, or other beliefs animating the corporate social responsibility movement” but none spring immediately to mind. 

While the parade of horribles in the second section of the law professor brief might prove compelling, the entire first section (over half of the argument) would be seriously damaged if Hobby Lobby’s articles of incorporation were amended to express the religious stance of the company.  The first section of the brief focuses on treating the corporation as a separate entity, distinct from its owners.  It seems, however, that Hobby Lobby’s owners could amend the corporation’s articles to endow the corporation with its own, separate and distinct, religious views. 

As I have previously mentioned, Hobby Lobby could have helped its chances in this case by converting to some form of for-profit benefit corporation and being specific about its religious views in its articles of incorporation.  The Delaware Public Benefit Corporation (“PBC”) statute makes the ability to maintain a religious purpose in a PBC explicit when it defines “public benefit” as “a positive effect (or reduction of negative effects) on 1 or more categories of persons, entities, communities or interests (other than stockholders in their capacities as stockholders) including, but not limited to, effects of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific or technological nature.” (emphasis added)  According to Delaware’s PBC law, each PBC must include at least one “specific public benefit” within its statement of purpose. 

I am interested in any additional thoughts on this topic, and am eagerly awaiting Professor Bainbridge’s promised full response to the law professor brief (and any responses to his response).

Update: Go here for Professors Bainbridge’s response.  Also, two of my co-bloggers have joined the conversation: here (Stefan Padfield) and here (Anne Tucker).

Western_carolina_logo

On March 3, I plan to start my spring break by speaking at Western Carolina University.  I will be speaking on the various social enterprise statutes—Benefit Corporations, Benefit LLCs, Public Benefit Corporations, Flexible Purpose Corporations, Social Purpose Corporations, and L3Cs—with a special focus on my recent research surrounding Delaware’s new (as of August 1, 2013) Public Benefit Corporation law. 

Western Carolina University has a major in Business Administration and Law and I understand that a number of students from that undergraduate program will be in attendance. 

Many thanks to Professor Melissa English for inviting me.  I love the mountains of North Carolina and always enjoy sharing my research. 

Atower

Our BLPB group has had a number of email discussions recently about the use of social media including blogs, Facebook, LinkedIn and Twitter for professional purposes. My home institution has discussed the same topic and even held a “training” session on technology in and outside of the classroom.  Because I am a heavy user, I volunteered to blog about how I use social media as a lawyer and academic in the hopes of spurring discussion or at least encouraging others to take a dip in the vast pool of social media.

Although I have been on Facebook for years, I don’t use that professionally at all. I also don’t allow my students to friend me, although I do know a number of professors who do. I often see lawyer friends discussing their clients or cases in a way that borders on violations of the rules of professional conduct, and I made sure to discuss those pitfalls when I was teaching PR last year.

I have also used LinkedIn for several years, mainly for professional purposes to see what others in my profession (at the time compliance and privacy work) were thinking about.  I still belong to a number of LinkedIn groups and have found that academics from other countries tend to use LinkedIn more than US professors. I have received a number of invitations to collaborate on research just from posts on LinkedIn. I also encourage all of my law students to join LinkedIn not only for networking purposes, but also so that they can attract recruiters, who now use LinkedIn almost as often as they use headhunters.  When I blog, I link my posts to LinkedIn, which in turn automatically posts to Twitter.

I admit that I did not like Twitter at first. I now have three Twitter accounts- follow me at @mlnarine.  I started using Twitter when I was a deputy general counsel and compliance officer and I followed law firms and every government agency that was online that regulated my industry. The government agencies were very early to the Twitter game and I once learned about a delay in the rollout of a regulation via Twitter a full week before my outside counsel who was working on the project informed me.

I also use the hashtag system (#) to see what others are saying on topics that hold my interest such as #csr (corporate social responsibility and unfortunately also customer service rep), #socent for social enterprise, #corpgov for corporate governance, and #Dodd-Frank  and #climatechange (self explanatory). 

I make an effort to tweet daily and am now an expert in trying to say something useful in 140 characters or less (being on yearbook staff in high school and counting characters for headlines made this a breeze for me). I re-tweet other tweets that I believe may be of interest to my followers or links to articles, and often gain new followers based on what I have chosen to tweet, largely because of my use of hashtags. In fact, after a marathon tweeting session following the Dodd-Frank conflict minerals oral argument before the DC Circuit Court of Appeals, I received four calls from the press for interviews, a nice, unexpected benefit of trying to educate my followers.  Often when I attend conferences, such as last week’s ABA meeting or the UN’s Business and Human Rights Forum, the organizers develop a hashtag so that those who cannot attend in person can follow the proceedings through tweets and the attachments to those tweets.

The best part of twitter is that I met fellow blogger, Haskell Murray because of one his tweets and that led to an invitation to speak at a conference.  Haskell has published a useful  list of business law professors on Twitter so if you’re not on his list, let us know and we will update it.

Next week I will post about the benefits or perils of blogging, especially for someone new to academia.    

Today, I am highlighting the CLEAF Junior Faculty Workshop, which took place at George Washington earlier this month.  Applicants submitted unpublished papers in the fall, and if accepted were invited to attend the workshop in February.  Each paper was assigned 2 readers who specialize in the subject matter of the paper. The experts ranged from senior legal scholars, to interdisciplinary scholars, to lawyers in the field.  The 2-day workshop dedicated an hour to each paper, soliciting the formal comments of the assigned readers and a discussion from the larger group.

If time is money, the 2 days at the workshop were a great investment.  I had the opportunity to connect, personally and professionally with both junior and senior scholars in the field in a way that felt more comfortable and more productive than in other foras.   For me, it also provided tailored feedback on my project (which I am now furiously incorporating), and it also forced me to spend 2 days thinking about scholarship in terms of publication goals, audience goals, forms of proof, preference of presentation and other aspects of writing that never seem to get the attention they deserve when I am puzzling through how to present a persuasive argument in written form.  

Part of the obstacles of calls for papers is whether or not you have a project in the pipeline.  For junior scholars (i.e., folks who are going up for tenure next year or more junior), seriously consider participating in this workshop next year.  It would be the perfect polish on a piece in advance of the spring 2015 submission cycle complete with fancy vanity note additions and confidence-boosting vetting.

The list of presenters, papers, and readers is available  Download GW Junior Faculty Workshop 2014 Schedule1.

-Anne Tucker

This conference is worth a look, with some great people (and great teachers), including Michael Hunter Schwartz.  It’s relevant to all disciplines, though judging by the AALS panel I attended in January, for the section on Agency, Partnership, LLCs, and Unincorporated Associations, titled “Effective Methods for Teaching LLCs and Unincorporated Business Arrangements,” a lot of people in the in the business area have been particularly focused on assessment and outcomes for their students.  BLPB’s own Anne Tucker, for one. 

Assessment Across The Curriculum

Institute for Law Teaching and Learning

Spring Conference 2014

Saturday, April 5, 2014

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.

 Conference Content:  Sessions will address topics such as

·         Formative Assessment in Large Classes

·         Classroom Assessment Techniques

·         Using Rubrics for Formative and Summative Assessment

·         Assessing the Ineffable: Professionalism, Judgment, and Teamwork

·         Assessment Techniques for Statutory or Transactional Courses

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  The conference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  The conference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law). 

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.”