Ten years ago, on November 16, 2004 (Gordon's birthday), he and I joined forces and started blogging together here at Conglomerate. Most of you know the story, or here's our About page. Earlier that year, I had tried to rally a group blog together, and he was blogging alone. We decided to through our blogging lots in with one another, and the rest is history. I consider blogging with Gordon (and then Vic, Lisa, Fred, Usha, Dave and Erik) to be a privilege, honor and pleasure. I miss the fun days of the early blawgosphere when commercial and commercial-ized blogs were mere rumors, and we read and linked to each other early and often. The issues and concerns that were raised back then seem almost quaint now. The false dichotomy of blogging v. scholarship has been proven, and the spectre of untenured bloggers being fired never quite came to be. Long-form scholarship still has its detractors, but was not displaced by short-form bloggership. The bottom line for me is that blogging continues to be a way for scholars from different disciplines and different geographical areas to engage in real-time discourse and easily make connections, which is even more important in this age of dwindling travel budgets. Finally, it's hard to remember the last ten years of the blawgosphere without recognizing Larry Ribstein and Dan Markel, two pioneers of blogging who are sorely missed. Two people that I met on the internet.
Here is a photo taken in January 2007 with a quorum of Glommers and Friends of the Glom:
For the next couple of weeks, we'll have the chance to hear from two law professors who, like me, are posted at business schools, David Orozco at Florida State and Robert Bird at UConn. They've got an interesting collaboration going on corporate legal strategy, and other subjects of note as well. So welcome David and Robert!
Many of you may remember that a year ago this month, I won the New Yorker Cartoon Caption Contest.
I was very excited. Then, my husband told me that I was due a prize for this noble honor. Embedded in the rules for the contest is this paragraph:
The Qualified Winner of each Cartoon Caption Contest will receive a print of the cartoon, with the caption, signed by the artist who drew the cartoon (the “Prize”). If the winner cannot be contacted or does not respond within three (3) days, an alternate winner may be selected, and awarded to the person whose caption received the next greatest number of votes. The approximate retail value of the Prize is $250. Income and other taxes, if any, are the sole responsibility of the winner.
I was not alerted to this by my contact at the New Yorker. Let's call him "M." M emailed me to tell me that I was a finalist, and asked for my address and agreement, which I gave him immediately via email. After I won, I emailed him and asked about my prize. He said the NY was backed up and to remind him in 3 months if I had not heard from him. As you might imagine, I emailed him again on Jan. 8, and he said give him another month. I emailed him again on Feb. 3, and got the same reply. I emailed him again on Mar. 30, but this time his email bounced back. I then tried to email the New Yorker via the "Contact Us" interface and never heard back from anyone.
I then even emailed The Haggler at the New York Times, but I guess he's too busy fixing other people's bills. Today, I tried calling different numbers at Conde Nast, including the NY headquarter number which is eternally busy. Finally, I was given a number that ended in a human's voicemail. I left a message, but I am not hopeful.
If anyone knows someone at the New Yorker who can get me my prize, please let me know!
UPDATE: Right after I posted this, an awesome editor at the caption contest emailed me to say that would send asap. Unfortunately, the email went to my old UI email address, so I can't reply. I tweeted the editor, so maybe we will connect. Here's to social media! BTW, if you need my new email it's email@example.com or firstname.lastname@example.org.
We are pleased to welcome Sung Hui Kim of the UCLA School of Law as a guest blogger for the next two weeks. Sung is Professor of Law and Director of the General Counsel Initiative, Lowell Milken Institute for Business Law and Policy at UCLA. She has taught Business Associations, Contracts, Professional Responsibility, and Securities Regulation, among other things, and her current research interests lie at the intersections of professional responsibility, securities regulation, and corporate governance. I am particularly fond of her recent papers on insider trading, which you can find here and here. Welcome, Sung!
In addition to his own blog launch, my colleague Eric Orts has agreed to occasionally blog for us for the next couple of weeks. He's the Guardsmark Professor here at Wharton, seconded in the Management Department, and is the director of the school's Initiative for Global Environmental Leadership. He's also the author of Business Persons. Welcome, Eric!
The Lowell Milken Institute for Business Law and Policy at UCLA School of Law is now accepting applications for the Lowell Milken Institute Law Teaching Fellowship. This fellowship is a full-time, year-round, one or two academic-year position (approximately July 2015 through June 2016 or June 2017). The position involves law teaching, legal and policy research and writing, preparing to go on the law teaching market, and assisting with organizing projects such as conferences and workshops, and teaching. No degree will be offered as part of the Fellowship program. Only one fellowship will be offered.
Fellowship candidates must hold a JD degree from an ABA accredited law school and be committed to a career of law teaching and scholarship in the field of business law and policy. Applicants should have demonstrated an outstanding aptitude for independent legal research, preferably through research and/or writing as a law student or through exceptional legal experience after law school. Law Teaching Fellowship candidates must have strong academic records that will make them highly competitive for law teaching jobs.
More information on the fellowship can be found at http://lowellmilkeninstitute.law.ucla.edu/lowell-milken-institute-business-law-and-policy-teaching-fellowship/. Applications must be submitted by November 14, 2014.
So far we haven't said much about the strict scrutiny analysis that comes at the end of the Hobby Lobby opinion. That makes sense given our comparative advantage as corporate law scholars. However it does matter, both in general and for a few points we have discussed, such as Eric's call for paying attention to the interests of Hobby Lobby's employees and Jayne's skepticism as to whether a workable accommodation is truly available.
The majority assumed that assuring that women had access to contraception is a compelling interest, but argued that the mandate is not the least restrictive means to achieving that interest. The Alito opinion considers two alternatives, ultimately resting more on allowing Hobby Lobby to use the already existing accommmodation for religious nonprofits, under which the insurers pay for the contraceptive coverage. If this works, it means that the RFRA objection is met while the employees are still covered. I say "if" because the Court may yet strike down that accommodation as itself invalid under RFRA. That would be a nasty bait-and-switch, but given Justice Kennedy's concurrence, I remain hopeful that at least he will not do so.
The contrast between Alito and Kennedy illustrates at least a different tone in how they apply strict scrutiny. In law school we learn this is strict in theory but fatal in fact, which seems to fit Justice Alito's tone. However, sometimes the balancing is more nuanced and even-handed, as in Justice Kennedy's concurrence. Much anxiety over the opinion stems from a sense that Justice Alito's tone will prevail in future cases.
That could be problematic because of an inherent tension in RFRA. I am a big fan of the statute, but there is merit to some concern. RFRA applies to statutes that do not discriminate against religions either on their face or by intent, but only in effect as applied in some circumstances. Given our rich array of statutes and religious beliefs, that can happen quite a lot. If everytime it does we are going to re-write the law unless the government can satisfy a very toughly-applied strict scrutiny standard, we may be doing a lot of re-writing.
This concern isn't new. It is the core of Justice Scalia's refusal to follow a strict scrutiny standard in Employment Division v. Smith, the case that RFRA overturned. In essence, Scalia chose to follow rational basis scrutiny in such circumstances. But if strict scrutiny risks being too tough, rational basis scrutiny is too weak, providing in effect no religious liberty protection unless statutes explicitly regulate religion. Is a compromise possible?
That leads me to the missed opportunity and my doomed proposal.
The missed opportunity. There is of course an intermediate scrutiny standard of review available in constitutional law jurisprudence. That standard would allow a more even-handed weighing of the competing interests, not favoring plaintiffs as heavily as strict scrutiny or the government as heavily as rational basis. Moreover, precedent was readily available. In free speech cases (a clause separated from free exercise by a semi-colon), in time, place and manner cases the Court basically applies intermediate scrutiny. These cases occur where a statute does not regulate speech explicitly or by intent, but still has the effect of restricting speech--precisely analogous to the situation in Smith and RFRA.
So why did no one in Smith take the intermediate scrutiny route? Or, why didn't Congress do so in RFRA? Beats me. That is actually two missed opportunities.
The doomed proposal. It is still technically possible to re-visit the point. Congress could always amend RFRA. But the statute is now helplessly caught up in the culture wars, in stark contrast to the near unanimity of its passage. It is very hard to envision this weakening of RFRA passing as long as Republicans retain blocking power in the House, Senate, or Presidency.
Which leads to a more complicated version of the doomed proposal. What about a grand bargain? Republicans agree to amend the federal RFRA, and in return Democrats agree to pass the intermediate scrutiny version in a large number of states that currently have no RFRA. To my mind, it's not even a compromise--the result is better at both the federal and state levels. That's not the way the parties see it, but still each side gets a lot out of this. Alas, they both lose something too. Given the state of current politics, I can't see such a bargain working. The spirit of compromise is weak, and both sides are having too much fun rallying their bases with Hobby Lobby.
We are pleased to welcome Max Minzner for a guest blogging stint at the Conglomerate. Max is a Professor and the Associate Dean for Faculty Development at the University of New Mexico School of Law. In addition to teaching at UNM and Cardozo, Max has a wealth of experience in the public sector. He served as an Assistant U.S. Attorney in the Eastern District of New York and as Special Counsel to the Director of the Office of Enforcement at the Federal Energy Regulatory Commission. Among his articles is the fantastic new piece (co-authored with Margaret Lemos), For-profit Public Enforcement which appeared this January in the Harvard Law Review.
We are excited to welcome Elizabeth Pollman as a guest blogger for the next two weeks. Elizabeth is an Associate Professor of Law at Loyola Law School in Los Angeles, where she teaches business law courses and write about the entity status and constitutional rights of corporations, as well as on law and entrepreneurship. If you are interested in the trading of private company stock, you must read her excellent article on Information Issues on Wall Street 2.0, published last year in the Penn Law Review. Welcome, Elizabeth!
According to his web bio, Ted Sichelman of the University of San Diego School of Law "writes in the areas of intellectual property, law and entrepreneurship, empirical legal studies, law and economics, and computational legal studies, and tax law." Of course, you don't have to believe the bio ... you can also read his work for yourself. It's good stuff. I especially like the work at the intersection of law and entrepreneurship, like "Why Do Start-ups Patent?" and "Commercializing Patents." Ted will be guest blogging with us over the next two weeks, and we are very eager to see what is currently occupying his thoughts. Welcome, Ted!
Christopher Bruner is Professor of Law and Ethan Allen Faculty Fellow at Washington and Lee University School of Law. Christopher writes about corporate governance, and we recently linked to his excellent book, Corporate Governance in the Common-Law World. I am currently immersed in some of his papers on fiduciary law, and I am eager to read his upcoming posts. Welcome, Christopher!
Mike Burstein of Cardozo School of Law will be joining us as a guest blogger for the next two weeks. Mike writes about IP law, and I particularly enjoyed his article "Exchanging Information Without Intellectual Property," published last year in the Texas Law Review, which questions the need for intellectual property for the promotion of information markets. Also, check out his newer piece, "Rethinking Standing in Patent Challenges", forthcoming in The George Washington Law Review, which argues, "When ... market participants are deterred from engaging in innovative activity ... they have standing to bring what amounts to a quiet title action" before making costly investments. We are grateful to welcome Mike to the Glom.
After a delay caused by the well-publicized attack on Typepad, Robert Miller is poised to begin guest blogging. Robert is Professor of Law and F. Arnold Daum Fellow in Corporate Law at the University of Iowa College of Law, where he teaches Mergers and Acquisitions, Law and Economics, Corporate Finance, Business Associations, Antitrust, and Contracts. He is an experienced and insightful transactional lawyer, and we are grateful to have him for the next couple of weeks at the Glom. Welcome, Robert!
We have today concluded our Ribstein Memorial Symposium here at the University of Illinois College of Law. I can't think of a better way to honor the scholarly and personal legacy of Larry Ribstein, other than a week-long conference. I am grateful to our organizers, presenters and participants.
At the conference, Dean Bruce Smith announced that in conjunction with the Larry E. Ribstein Memorial Fund, our VAP program, before known as the Illinois Academic Fellowship Program, will from yesterday forward be known as the Larry E. Ribstein Academic Fellowship Program. Again, having this successful program bear his name is a perfect tribute. Larry worked very hard with each of our VAPs and on behalf of them. The fund "will support initiatives designed to advance the intellectual life of the College of Law, including a named faculty position, research support, and workshops for junior faculty members, as well as innovations designed to more effectively bridge the worlds of legal theory and legal practice, particularly in the area of business law." If you would like to learn more about the fund, and perhaps contribute to it as a way to honor Larry, you can find more information here.
You know how you get all those emails "inviting" you to a conference that takes place across the country tomorrow? Or yesterday? You weren't really invited. You were "noticed." This is not that kind of invitation.
As most readers know, my dear colleague, friend, and "friend of the Glom" Larry Ribstein passed away in December 2011. The University of Illinois College of Law has spent the better part of the last year designing an academic symposium composed of papers building on his huge and varied scholarly legacy. These papers will be published in our law review. We hope that many, many of his friends, colleagues, blog readers and fans will come to Champaign to continue exploring the ideas and themes he dedicated his career pursuing.
The information on the symposium is here. If you are coming, feel free to email me (email@example.com) or Carolyn Turner (firstname.lastname@example.org) to get registered and get a password for the papers. I would love to see you, and we will treat you like an invited guest, not an interloper with a mass email "invite." Champaign is a couple/few hours away from notable urban centers with many law schools. If you decide to drive down and spend the night, know that the fanciest hotels in town are pretty cheap!
Here is the lineup:
|October 17, 2013:|
|8:00-9:00 a.m.||Breakfast at the College of Law|
|9:00-11:15 a.m.||1st Session: Legal Practice (Moderator: Bruce Smith)|
|11:30 a.m.-12:30 p.m.||2nd Session: Jurisdictional Competition (Moderator: Verity Winship)|
|12:30-1:30 p.m.||Lunch at the College of Law|
|1:30-3:00 p.m.||3rd Session: Corporate Law I (Moderator: Christine Hurt)|
|3:15-4:45 p.m.||4th Session: Corporate Law II (Moderator: Jamelle Sharpe)|
|6 p.m.||Reception and Dinner|
|October 18, 2013:|
|7:45-8:45 a.m.||Breakfast at the College of Law|
|8:45-10:15 a.m.||5th Session: Corporate Law III (Arden Rowell)|