April 24, 2016
icon Corporate Practice Commentator's Top Ten Corporate and Securities Articles of 2015
Posted by Usha Rodrigues

The list is out!  And it contains many former Glom guests and friends of Glom.  Congratulations to all.

Bartlett, Robert P. III. Do Institutional Investors Value the Rule 10b-5 Private Right of Action? Evidence from Investors' Trading Behavior following Morrison v. National Australia Bank Ltd. 44 J. Legal Stud. 183-227 (2015).

Bebchuk, Lucian, Alon Brav and Wei Jiang. The Long-term Effects of Hedge Fund Activism. 115 Colum. L. Rev. 1085-1155 (2015).

Bratton, William W. and Michael L. Wachter. Bankers and Chancellors. 93 Tex. L. Rev. 1-84 (2014).

Cain, Matthew D. and Steven Davidoff Solomon. A Great Game: The Dynamics of State Competition and Litigation. 100 Iowa L. Rev. 465-500 (2015).

Casey, Anthony J. The New Corporate Web: Tailored Entity Partitions and Creditors' Selective Enforcement. 124 Yale L. J. 2680-2744 (2015).

Coates, John C. IV. Cost-benefit Analysis of Financial Regulation: Case Studies and Implications. 124 Yale L .J. 882-1011 (2015).

Edelman, Paul H., Randall S. Thomas and Robert B. Thompson. Shareholder Voting in an Age of Intermediary Capitalism. 87 S. Cal. L. Rev. 1359-1434 (2014).

Fisch, Jill E., Sean J. Griffith and Steven Davidoff Solomon. Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform. 93 Tex. L. Rev. 557-624 (2015).

Fried, Jesse M. The Uneasy Case for Favoring Long-term Shareholders. 124 Yale L. J. 1554-1627 (2015).

Judge, Kathryn. Intermediary Influence. 82 U. Chi. L. Rev. 573-642 (2015).

Kahan, Marcel and Edward Rock. Symbolic Corporate Governance Politics. 94 B.U. L. Rev. 1997 (2014).

Velikonja, Urska. Public Compensation for Private Harm: Evidence from the SEC's Fair Fund Distributions. 67 Stan. L. Rev. 331-395 (2015).

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April 22, 2016
icon The Uber Settlement is an Unstable Equilibrium and/or Collective Bargaining
Posted by Matt Bodie

Uber has settled two California class actions in which the underlying issue was their employee status.  The company will pay up to $100 million to the class of roughly 385,000 drivers and also provide a new process for "deactivation" that provides drivers with a voice in whether Uber takes them off of its platform.  There is a lot of great academic writing about Uber out there, and I hope to contribute to the lit soon, but at present I just wanted to flag two quick points:

  1. This "settlement" does not and cannot settle the ultimate issue of whether Uber drivers are employees or independent contractors.  As Shannon Liss-Riordan, the attorney representing the drivers in the suit (as well as a classmate of David and mine), said in a statement: "“Importantly, the case is being settled — not decided.  No court has decided here whether Uber drivers are employees or independent contractors and that debate will not end here."  I suppose this class of drivers is giving up their claims, but it's not preclusive to future drivers or the State of California or Massachusetts or the IRS, as far as I can tell.  So what exactly is Uber getting for its money?  These class claims are settled (if the court approves), but the issue remains open and will continue to generate potential claims down the road.  However, Uber does get a temporary litigation reprieve and a better relationship with its drivers.  Which leads to the second point . . . .
  2. This settlement really looks like a collective bargaining agreement. It provides the workers with:
    • additional pay (aka a settlement "bonus") based on miles driven
    • a peer-driven arbitration-like process for deactivation (aka termination)
    • an internal arbitration-like process for pay disputes
    • a notification that tips are not included in the Uber fee, and 
    • the facilitation and recognition of an Uber Driver Association who will bargain with Uber (or, in the works of the press release, "who will be able to bring drivers' concerns to Uber management, who will engage in good faith discussions (on a quarterly basis) regarding how to address these concerns")

   That last one really clinches it, no?  But if the drivers are not employees, then will this Driver Association be an unlawful restraint of trade?  Or will the NLRB find the drivers to be employees despite the settlement and then find that Uber has violated NLRA Sec. 8(a)(2) by providing assistance to a labor organization?  (Uber's CEO says the company "will help fund these two associations.")

Congrats to Shannon and the Uber drivers for pulling off what looks to be a real step forward for the drivers' relationship with the company.  But in my view, the settlement that seeks to confirm that drivers are not employees only ends up making them look even more like employees.

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April 21, 2016
icon Business Law at Ryerson in Toronto
Posted by David Zaring

If you're interested, details after the jump.

more ...

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icon This startup's technology powered the Panama Papers investigation
Posted by Usha Rodrigues

I enjoyed this article about Swedish software (now headquartered in San Mateo--that Silicon Valley pull is hard to resist) Neo Technology, whose graphic database Neo4j allowed investigative journalists to make connections between the vast amounts of data contained in 11.5 million documents. Equally fun for me is that an MIS professor at the business school forwarded me the article because a project on which we're collaborating will use Neo4j. I'm cutting edge!

Neo Technology has paying clients that use the technology to crunch data in the service of worthy goals like giving online purchasers customized recommendation (Walmart) and fraud prevention (UBS).  But here's the money quote: "Eifrem lets investigative journalists use the free version of his software. 'I’m not in the business to make money out of eight journalists who are trying to save the world—that’s not my business model,' he said, laughing."

Permalink | Entrepreneurship, Technology | Comments (View) | Bookmark

April 20, 2016
icon AALS Call for Papers: Securities Regulation and Technological Change
Posted by Erik Gerding

Call for Papers
AALS Section on Securities Regulation - 2017 AALS Annual Meeting


January 3-7, 2017, San Francisco


The AALS Section on Securities Regulation invites papers for its program on “Securities Regulation and Technological Change” at the 2017 AALS annual meeting.

TOPIC DESCRIPTION: This panel discussion will explore the intersection of securities regulation and technology.  The Executive Committee welcomes papers on a broad range of related topics, including technology in financial markets, high frequency trading, crowdfunding, transactional and financial innovation, securities offering reform, and information overload.

ELIGIBILITY: Full-time faculty members of AALS member law schools are eligible to submit papers. 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 faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses. 

PAPER SUBMISSION PROCEDURE: Up to four papers may be selected from this call for papers. There is no formal requirement as to the form or length of proposals. However, more complete drafts will generally be given priority over abstracts, and presenters are expected to have a draft for commentators three weeks prior to the beginning of the AALS conference.

Papers will be selected by the Section's Executive Committee in a double-blind review. Please submit only anonymous papers by redacting from the submission the author's name and any references to the identity of the author. The title of the email submission should read: "Submission - 2017 AALS Section on Securities Regulation."

Please email submissions to the Section Chair Verity Winship at:  vwinship@illinois.edu on or before August 19, 2016.

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April 19, 2016
icon Welcome to the Blawgosphere: The Surly Subgroup
Posted by Christine Hurt

Welcome to the blawgosphere/blogosphere: The Surly Subgroup:  Tax Blogging on a Consolidated Basis!  This new blog was launched fittingly on Tax Day (yesterday).  Sorry I missed the launch, but I was running to the post office.  The array of authors promises interesting takes on a variety of tax issues:  Jennifer Bird-Pollan, Benjamin Leff, Leandra Lederman, Philip Hackney, David Herzig, Stephanie Hoffer, Diane Ring, Sam Brunson, and Shu-Yi Oei.

Happy Posting!

 

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icon 2015 Stetson Law Review Symposium - Inequality, Opportunity, and the Law of the Workplace
Posted by Matt Bodie

In March 2015, the Stetson Law Review hosted a symposium on "Inequality, Opportunity, and the Law of the Workplace."  The day was a terrific opportunity to think about how the concern about income inequality -- the focus of this guy's campaign -- is and can be addressed by the law, especially labor and employment law.  The symposium is dedicated to Michael Zimmer, who tragically passed away months after the symposium.  Below are links to videos of the event and to papers published from the symposium:

Video:

Papers

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icon Dictation and Delegation in Securities Regulation
Posted by Usha Rodrigues

Glom readers, it has been a busy semester!  I am trying to get back to blogging, and will start with some happy news.  I've been obsessing about the politics of securities regulation for some time--specifically, why did we get the JOBS Act, and more generally what explains why and when Congress intervenes in securities law.  Between teaching and associate deaning I've also been writing, and I'm proud to report I now have a draft posted on SSRN and accepted at the Indiana Law Journal.  Abstract below; comments welcome.

 When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of congressional legislation. The data support what I call the dictation/delegation thesis. According to this thesis, even controlling for shifts in political-party dominance, Congress is more likely to delegate to an agency in the wake of a salient securities crisis than in a period of economic calm. In times of prosperity, when cohesive interest groups with unitary preferences can summon enough political will to pass deregulatory legislation on their behalf, the result will be laws that cabin agency discretion. In other words, when industry can play offense, Congress itself engages in the making of governing rules and does not punt to an agency—even on issues that would seem the logical province of administrative technocrats. In contrast, following a crisis, industry is forced to play defense rather than offense. Its goal is to minimize the deleterious impact of inevitable legislation by shifting regulation as much as possible to the agency level, where it has time to regroup and often delay regulation until the political pressure for reform abates.

Permalink | Legal Scholarship, Politics, Securities | Comments (View) | Bookmark

April 13, 2016
icon Congrats to SMU and my coauthor!
Posted by Matt Bodie

Just wanted to say congratulations to both the SMU Dedman School of Law and my coauthor Grant Hayden on Grant's upcoming move to SMU.  Grant is going there along with Joanna Grossman, James Coleman, and Dale Carpenter -- a terrific group of lateral hires.  Along with a few articles in the works, Grant and I are working on a book for Cambridge titled "Reconstructing the Corporation."  I'm excited for him and Joanna and congratulate SMU Dean Jennifer Collins and the SMU faculty for choosing an excellent set of new colleagues.

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April 08, 2016
icon The 2016 Texas Legal Scholars Workshop
Posted by Gordon Smith

The Southern Methodist University (SMU) Dedman School of Law and the University of Houston Law Center are sponsoring The 2016 Texas Legal Scholars Workshop. Here is the announcement:

Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at SMU and Houston invite you to join us for the second annual Texas Legal Scholars Workshop, to be held on August 26-27, 2016, at the SMU Dedman School of Law in Dallas, Texas. The Texas Legal Scholars Workshop provides an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.

At the Workshop, each author will present a 5-10 minute synopsis of his or her paper, followed by 15-20 minutes of comments by a primary commenter, followed by an open discussion with other attendees.

The workshop will give participants the chance to meet other early-career scholars in Texas, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but SMU will pay for meals, including a hosted dinner at a restaurant on Friday night.

more ...

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April 07, 2016
icon The MetLife Designation Opinion - To Designate, FSOC Must Do A Cost-Benefit Analysis
Posted by David Zaring

MetLife successfully appealed its designation as a SIFI to the district court in Washington, which took an awfully searching review of the factors used by the FSOC to make the determination.  The court, in the end, concluded that the council's designation was arbitrary and capricious, which means it was illegal.  The most interesting part of the opinion is the part requiring the FSOC to do a cost benefit analysis before designating.

FSOC has refused to do a quantified cost benefit analysis, which is a departure for the executive branch.  The White House requires agencies to conduct one before they promulgate expensive rules.  That a financial regulator, where excel spreadsheets and quantified stress tests are part of the job, would refuse to do one in making a determination about the riskiness of a financial institution is a pretty interesting rebuke to those who believe that cost benefit analyses are essential components of effective regulation.  But perhaps the FSOC has been listening to John Coates.

Here's what the court had to do to require a cost benefit analysis - most, um, interestingly it relied on the word "appropriate" while ignoring the word "deems" in Congress's guidance about how to do SIFI designations.  Most administrative lawyers would conclude that it was up to the Council to decide whether to take costs into account in designations if the statute provides that the FSOC “shall” consider a number of factors and also “in making a designation, any other risk-related factors that the Council deems appropriate.”

But the court thought differently:

FSOC, too, has made the decision to regulate—by designating MetLife. That decision intentionally refused to consider the cost of regulation, a consideration that is essential to reasoned rulemaking. Cf. [Michigan v. Environmental Protection Agency, 135 S. Ct. 2699 (2015)] at 2707 (“Consideration of cost reflects the understanding that reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.”) (emphasis in original). In light of Michigan and of Dodd-Frank’s command to consider all “appropriate” risk-related factors, 12 U.S.C. § 5323(a)(2)(K), FSOC’s position is at odds with the law and its designation of MetLife must be rescinded.

I'm pretty unpersuaded by that reasoning.  Cost benefit analysis may be a good idea, or it may not be, but I don't see how the courts should go around requiring it on the basis of a catch-all clause awarded discretion to the agency to add factors to an already long list of factors to be considered in SIFI designations.

Permalink | Administrative Law, Finance, Financial Crisis, Financial Institutions | Comments (View) | Bookmark

April 04, 2016
icon Peter Conti-Brown: The Next Symposium
Posted by David Zaring

I trust you all enjoyed our symposium on The Power And Independence of the Federal Reserve.  There's another one starting on the (excellent) Notice and Comment blog, so do head over there for more takes on Peter Conti-Brown's book, and on assessing the place of the Fed and how it works.

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icon Colorado Law Transactional Threepeat
Posted by Erik Gerding

Congratulations to my three Colorado Law students Stephanie Drumm, Josh Kohler, and Parker Steel who were named co-national champions (along with a UCLA team) at the annual Transactional LawMeet competition this weekend in New York.  The Colorado Law team also won the best draft award.

This competition -- a sort of moot court for transactional law -- was the brainchild of Drexel law professor (and friend of the Glom) Karl Okamoto.  It has been running for over five years and has now grown to the point where the competition has seven regional competitions that feed into the national finals.  Colorado Law students have shared the national title for the last three years.  Go Buffs!

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April 01, 2016
icon Family Film Blogging: Batman v. Superman: Dawn of Justice
Posted by Christine Hurt

So, our family did not go see any of the Easter-related movies this past weekend (Risen, The Young Messiah).  No, wait, we did.  We saw Batman v. Superman.

First, my disclaimers.  I love Marvel.  I'm not a D.C. person.  I am not very familiar with the D.C. universe.  In addition, I have not seen the Dark Knight trilogy.  I was not a big fan of Man of Steel.  "My" versions of Batman and Superman are Michael Keaton and Christopher Reeve, respectively.  So, I wasn't really excited about seeing this installment, but I was outvoted by my children and Captain America:  Civil War isn't out yet.

Second, it was not as bad as I feared.  It's no Captain America, but it was interesting.  (Rotten Tomatoes has it at 29% from critics; 71% from viewers.  I disagree with the critics.)  Ben Affleck, as much as I wanted to hate him, was pretty good as an older, resigned, wise Batman.  The problem with the movie is not Batman; it's Superman.  This man of steel is not like the Superman of yore.  He does not fight for Truth, Justice and the American Way.  He does not love America, or humans.  He loves Lois Lane.  He is depicted here (and in Man of Steel) as a stranger in a strange land basically biding his time until he wakes up back on planet Krypton.  Perhaps there was too much stuff to put in the movie so we couldn't waste time watching him save random people or have any sort of personality at all.  But the result is that he seems more like someone in hiding than a superhero.  Batman has more dialogue and more air time; we know what makes him tick.  While Superman reacts to situations around him, Batman is a proactive superhero.  Or antihero.  Or whatever.

Whether or not Superman or Batman are heroes is the main question of the movie.  What would we do if there were humans among us with powers that threatened democratic debate and civil society should those humans prove not to be benevolent dictators?  Should we fear Superman?  Is the planet better off without a Superman?  (This, of course, is a question played out in the X-Men series as well as The Avengers.  And how do we feel about vigilantes?  Assassins?  These fears are stirred up in a crucible located in what I'll call the "twin cities" of Gotham and Metropolis, which are apparently right next to each other.  In a creative scene, Bruce Wayne is present at the final fight scene between Superman and General Zod that ends Man of Steel.  The destructive battle, in the middle of Metropolis, topples a skyscraper bearing the name of Bruce Wayne's company and kills many employees.  Bruce tries to save as many on the ground as he can, but the devastation is overwhelming.  In that moment, Bruce Wayne becomes Superman's biggest critic. (Batman does not seem to contemplate what would have happened to his employees under General Zod, but his heartbreak is palpable and his misplaced rage seems logical.)  Two years later, Batman is still monitoring Superman, and Clark Kent (almost lamely) wants the Daily Planet to investigate Batman, who he sees as an out-of-control vigilante, branding his captured bad guys so they are marked in prison.

Left to their own devices, Batman and Superman may have left each other alone, but Lex Luthor sees an opening.  Lex Luthor is our young, upstart genius bad guy (and having Jesse Eisenberg, known for portraying Mark Zuckerberg, play the evil genius seems a little on the nose).  Luthor's motivations are amorphous.  Unlike the 1970s Luthor, he is not attempting to amass wealth or even power.  He could be playing the two against each other so that one will take the other one out, leaving more room for criminal minds like his, but then he creates an even worse, uncontrollable monster to fight them both.  Luthor seems to be rooting for chaos and destruction for its own sake, and doesn't seem to have a plan to save himself from that destruction.

In the end, there are a lot of interesting themes here.  Because it was Easter, I saw Superman as a Christ-figure both loved and hated, and Holly Hunter as Pontius Pilate tasked with passing judgment on him.  Batman is Saul, a hater who sets out to destroy him but who has an ephiphany along the way and becomes a convert and organizer.  Who is Luthor?  The Devil, who still blames his father.  Who is Wonder Woman?  Who knows?  She was only on screen for 10 minutes.

My boys liked the movie, but it was dark.  I thought my 8 year-old was on the line for violence and intensity, though there were much younger kids there.  There were no jokes, no witticisms, no comic relief at all.  Clark and Lois aren't flirty or cute -- they are doomed and resigned.  I prefer my action movies with a dash of fun.  This movie is obviously the "Dawn" of a new string of DC movies:  Wonder Woman, The Flash (which doesn't seem to be linked at all to the Netflix series our family has been watching), Aquaman.  I hope they have a little bit of humor.

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March 30, 2016
icon Call for Papers: Business and Human Rights Scholars Conference
Posted by Erik Gerding

Business and Human Rights Scholars Conference

University of Washington School of Law, Seattle, Washington

September 16-17, 2016

The University of Washington School of Law, the NYU Stern Center for Business and Human Rights, the Rutgers Business School, the Rutgers Center for Corporate Law and Governance, and the Business and Human Rights Journal announce the second Business and Human Rights Scholars Conference, to be held September 16-17, 2016 at the University of Washington School of Law in Seattle.  Conference participants will present and discuss scholarship at the intersection of business and human rights issues. 

Upon request, participants’ papers may be considered for publication in the Business and Human Rights Journal (BHRJ), published by Cambridge University Press. The Conference is interdisciplinary; scholars from all global regions and all disciplines are invited to apply, including law, business, business ethics, human rights, and global affairs.  

To apply, please submit an abstract of no more than 250 words to BHRConference@kinoy.rutgers.edu with the subject line Business & Human Rights Conference Proposal.  Papers must be unpublished at the time of presentation. Please include your name, affiliation, contact information, and curriculum vitae. 

The deadline for submission is May 15, 2016.  Scholars whose submissions are selected for the Conference will be notified no later than June 15, 2016. We encourage early submissions, as selections will be made on a rolling basis.

About the BHRJ

The BHRJ provides an authoritative platform for scholarly debate on all issues concerning the intersection of business and human rights in an open, critical and interdisciplinary manner. It seeks to advance the academic discussion on business and human rights as well as promote concern for human rights in business practice.

BHRJ strives for the broadest possible scope, authorship and readership. Its scope encompasses interface of any type of business enterprise with human rights, environmental rights, labour rights and the collective rights of vulnerable groups. The Editors welcome theoretical, empirical and policy/reform-oriented perspectives and encourage submissions from academics and practitioners in all global regions and all relevant disciplines.

A dialogue beyond academia is fostered as peer-reviewed articles are published alongside shorter ‘Developments in the Field’ items that include policy, legal and regulatory developments, as well as case studies and insight pieces.

 

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