ProfessorBainbridge.com

On to 1000

As of this morning, I cracked the 900 follower level on Twitter. On to 1000!

Today's procrastination project

So I set up a Google Scholar page to track citations to my work [Insert self-deprecating reference to Carly Simon's "You're So Vain here]. Although I'm well familiar with Brian Leiter's citation count system, in which I've done quite well [Insert another self-deprecating reference to Carly Simon's "You're So Vain here], Google Scholar uses a different set of citation indices:

All Since 2007 Citations 4435 2230 h-index 36 27 i10-index 56 45

So today's procratination project is figuring out whether, say, an h-index of 27 is good, bad, or mediocre.

In any case, it was interesting to see which of my articles and books are most frequently cited. Several projects over which I slaved long hours and ended up being quite proud of are disappointingly low on the list. I would have hoped that my treatise Corporation Law and Economics would have garnered more cites, for example, considering it was the biggest project of my professional life. I am pleased to see, however, that my main article on director primacy is my most frequently cited work. It's certainly the piece of which I am most proud and the one I think made my most important contribution. [Insert a particularly self-deprecating reference to Carly Simon's "You're So Vain here]

Quoted re Carlyle Group

Businessweek:

Carlyle Group LP abandoned a plan to ban shareholders from filing class-action lawsuits after U.S. regulators threatened to block a stock sale the private-equity firm is seeking to complete as soon as April. ...

“My guess is they were getting pushback from investors” on the arbitration provision, said Stephen Bainbridge, a corporate and securities law professor at the UCLA School of Law in Los Angeles. “Probably their underwriters were telling them that the investor community was not going to go for it.”

An alternative theory I advanced to the reporter that he ended up not using was that Carlyle may have decided that the delay necessary to fight the mandatory arbitration provision past the SEC wasn't worth it. It's been a good year so far for IPOs, but the upcoming Facebook IPO is going to suck a lot of the oxygen out of the room as far as analysts, underwriters, and investors are concerned. Maybe Carlyle decided to strike now while the market's good and the Facebook offer is still on the drawing boards.

I get misused and abused by American Association for Justice President Gary M. Paul

Regular readers will recall that a while back I opined on the Carlyle Group's aggressive effort to include a mandatory arbitration provision in its foundational documents as it went public. Carlyle has announced that it is going to drop that provision, which prompted an outfit (of which I had never heard) called the American Association for Justice to put out a press release in which its President, some guy named Gary M. Paul, is quoted as saying that:

"With the investor community, lawmakers, and former SEC officials speaking out against the use of forced arbitration in Carlyle's proposed IPO, it was evident that this was an ill-conceived move from the start.  Corporations intent on skirting accountability have used forced arbitration as a weapon to hide wrongdoing and deny legal recourse to countless workers and consumers.  Today's developments should send a strong signal to other companies that forced arbitration clauses will not be accepted by investors or the SEC."

The press release continues with clips from a bunch of experts, including yours truly:

What the Experts Say

...

"If Carlyle can get away with this, you are going to have a bunch of CEOs telling their tax accountants, 'Price out what it would cost me.'" –Stephen Bainbridge, a corporate and securities law professor at the UCLA School of Law

I deeply resent the use of my name in this way. They cherry picked one quote from a news story to make it seem as though I was critical of what Carlyle was trying to do. In fact, however, I was in favor of what they were doing. In that same news story, for example, I was also quoted as saying:

The high court would be “almost certain” to strike down SEC policy if Carlyle were to push the issue, Bainbridge said. “Carlyle is admittedly taking an extremely aggressive position, but it’s a position I believe is fully consistent” with U.S. and Delaware law, he said.

And here on the blog, I wrote that:

Setting aside the issues relating to litigation rights and mandatory arbitration, I'm not especially bothered by the governance provisions of Carlyle's set up.  ...

Turning to the mandatory arbitration provision, I continued:

If you can limit fiduciary duties by contract in the case of a public limited partnership, why wouldn't a mandatory arbitration clause be enforceable as well? And, if you can do that with respect to state law claims, why shouldn't you be able to do it with respect to federal claims?

In sum, FREEDOM OF CONTRACT + SUPREME COURT POLICY FAVORING ARBITRATION + MARKET WILL PRICE TERMS = the SEC policy is wrong. Mandatory arbitration clauses ought to be enforced as to both state and federal claims.

So this so-called American Association for Justice is invoking my good name to advance their nefarious pro-litigation, anti-freedom of contract goals. Where's the justice in that?

Update: It turns out that the American Association for Justice is the new name for the American Trial Lawyers Association, the plaintiffs' bar trade association. Since they'll probably sue me for saying their goals are "nefarious," I guess I should emphasize that that's an OPINION. Anyway, I called their PR person and she refused to change the press release. 

Yours truly quoted on Carlyle's IPO

Miles Weiss has a very thorough and careful article on Carlyle's planned IPO, which includes provisions limiting fiduciary duties of the controlling persons, mandating arbitration of investor claims, and so on. He quoted a number of prominent lawyers and law makers opposed to what Carlyle's doing, but he also quoted yours truly at some length:

The U.S. Supreme Court held in the late 1980s that brokerages could require arbitration of customer disputes. The justices have never ruled on whether public companies can extend the concept to shareholders, said Stephen Bainbridge, a corporate and securities law professor at the UCLA School of Law in Los Angeles. That could change should Carlyle meet opposition from the SEC and respond by suing the agency, Bainbridge said.

The high court would be “almost certain” to strike down SEC policy if Carlyle were to push the issue, Bainbridge said. “Carlyle is admittedly taking an extremely aggressive position, but it’s a position I believe is fully consistent” with U.S. and Delaware law, he said.

Carlyle’s structure as a limited partnership, rather than a corporation, is critical to the legality of its arbitration provision, Bainbridge said. That’s because Delaware, the state in which most companies are incorporated, gives partnerships more leeway than corporations to restrict their fiduciary duties to shareholders.

Many closely held firms that manage hedge and buyout funds are also structured as limited partnerships, meaning they too could go public with mandatory-arbitration clauses if Carlyle succeeds, Bainbridge said. Technology and industrial firms that are set up as corporations might consider converting into limited partnerships, weighing the huge tax liabilities they would incur, the UCLA professor said.

“If Carlyle can get away with this, you are going to have a bunch of CEOs telling their tax accountants, ‘Price out what it would cost me’” to convert from a corporation to a partnership, Bainbridge said in a telephone interview.

Convert was a poorly chosen word, of course. You'd have to do it via a merger. Anyway, it's a great article. Go read the whole thing.

Buy a personally signed copy of Bainbridge on Insider Trading

Ever want a short introduction to insider trading signed by the author (namely, yours truly)? If so, I'm selling 20 of them on eBay. Other eBay sellers charging up to $20. I'm selling it at $4.99 plus S&H.

The interactive third edition of Klein, Ramseyer & Bainbridge's case book on Agency, Partnership, and Limited Liability Entities

I just got the author's copies of the new edition of our agency case book and I think it looks great. There are a lot of new features, including several new cases:

• Rash v. Intermediate, Ltd.
• Davis v. Loftus
• Sandvick v. LaCrosse
• Nemec v. Shrader
• RNR Investments Ltd. Partnership v. Peoples First Community Bank
• Fisk Ventures, LLC v. Segal
• Gottsacker v. Monnier
• Racing Investment Fund 2000 LLC v. Clay Ward Agency, Inc.
• R&R Capital v. Buck & Doe Run Valley Farms.

The book also contains many points for discussion, hypotheticals, and executive summaries.

I think the most exciting feature, however, is that this is our first interactive case book. Working with Foundation Press, we have created a learning resource we believe is more in tune with the ways that law students think and learn today. As we know, students are familiar with online legal research resources and accustomed to electronic materials. Accordingly, an electronic version of Agency, Partnerships and Limited Liability Entities accompanies the print version to provide students with interactive study and research tools that include:

• Hyperlinks to westlaw.com that provide full text of cases, statutes, Restatements, and articles
• A searchable text function that allows users to highlight and annotate selected text
• Live links to related websites and other online material

Each book includes a keycode that provides access to the online version of the book for 12 months. Students interested in purchasing only the online version may do so at store.westlaw.com. This should help make the case book both more user friendly and, at least in its digital form, less expensive.

A day in the life of a law professor on sabbatical

At lunch today, my guests asked how I juggle blogging, teaching, and scholarship. I get that question a lot. My usual glib answer is that having tenure and not having kids leaves me a lot of free time. But they seemed interested, as have various other readers over the years, so I told them I'd blog what I did today.

6:34 AM: Wake up. Sort of. Helen long since up and at it. Don't know how she does it. Ponder life briefly. Hit the head. Too early. Back to bed. Toby joins me. Bella never does. Odd. And a little sad.

7:30-ish: Wake up as bed shakes massively. Earthquake? Nope. Toby scratching prodigiously. Ponder life a while. Decide this is a bit more civilized time to start day.

7:35-ish: Let dogs out. Wait. Yell for dogs to come back in.

7:45: Head upstairs to kitchen. Make breakfast. Egg sandwich. Tully's Breakfast Blend coffee with sugar and half and half. I love K-cups. So convenient. No mess, no fuss, no wasted coffee. Read Wall Street Journal front section. As usual, appalled by political news. Looks like Election 2012 will be another "none of the above" year. Second cup of coffee. Read finance section.

8:30: Downstairs to office. Third cup of coffee in hand. Check email. Answer some. Gawd, I get a lot of spam.

8:45: Check Facebook and Twitter. Nothing much going on.

8:50: Check Google Reader feed, Drudge, Memeorandum. Decide to do a blog post re WSJ Kodak coverage. Turns into very long post.

9:30-ish: Fire up Word and pull up essay on "Corporate Lawyers as Gatekeepers." They want 5,000 words on it for next UCLA faculty law journal. So I'm adapting a chapter from Corporate Governance after the Financial Crisis. Have been working on essay for a while. Am at second draft stage. Reviewing, revising, and so on. Hope to finish today.

9:35: Wish for millionth time I had a two-monitor set up like the one at my law school office. Can't go to office. Why, you ask? They kicked me out so a two-week visiting professor can use my office. They say I don't need it because I'm on sabbatical. On the plus side, I can't go to the office wearing the old sweats that serve as my pajamas. Well, not any more. At home, the dogs don't mind as much. Consider buying second monitor for home office. Decide to wait. Fourth cup of coffee? Yes, please. But switch to Tully's Kona blend. 

10:10: Take break to check emails. Do back stretching exercises. Facebook, Twitter, Drudge. 

10:20: Shave (special occasion). Shower. Dress. Let dogs out.

10:45: Back to work.

11:05: Outside. Car dusty. Wish for millionth time that I had a garage. Decide to get car washed.

11:15: At car wash. First soda of the day.

11:35: These guys work really hard and are super friendly. Tip generously.

12:00: Arrive at law school to pick up distinguished visitors. Famous judge. Famous lawyers.

12:10: Lunch at Hotel Bel Air. Lobster club sandwich. Fries. Iced tea. Yum. Good conversation. Admit still haven't forgiven Romney for dog incident. Pretty restaurant. Love the remodel.

1:30: Return guests to law school.

1:55: Back home. Let dogs out. Change back into sweats. Mentally recreate morning and start writing this post.

2:13: This post brought up to date. Plan to update regularly through rest of day. Check email, Facebook, Twitter, Drudge, Memeornadum.

2:15: I must confess to using Google alerts as a clipping service. It's picked up a story quoting me on insider trading. Write blog post about it. (After all, I have an entire blog category entitled "Dept of Self-Promotion." Hey, at least I'm self-aware.)

2:17: Tweet OMG link to story from Memeorandum about "Oklahoma mom calling 911 asks if shooting an intruder is allowed." Briefly ponder adage that it's better to ask forgiveness than permission.

2:19: Tweet link to Scott Brown op-ed (via Memeorandum) on why Newt Gingrich is off base about judges. Newt's basic problem is a lack of discipline and a tendency to shoot from the lip (not a typo). Ponder sending Brown campaign some $. Decide to wait.

2:23: Check Google Reader feed to see what the bloggers I follow are doing. Toby bugging me. The infamous "golden retriever nudge." Pet with one hand while scrolling through news feed with other.

2:28: Saw a Joshua Fershee post about Larry Ribstein that also says a couple of nice words about yours truly. Blog post link.

2:32: Read three Erik Gerding posts about scholarly panels at the AALS. These days I'd sooner sit through a Golden Girls marathon than go to an AALS meeting. Especially if getting there means flying. But YMMV.

2:39: Read Francis Pileggi's post about noteworthy 2011 Delaware corporate cases. Blog post link.

2:43: Noting lots of blawg posts about Obama's "recess" appointments. Decide I don't care one way or the other. Both sides playing games while economy burns.

2:45: Okay. Back to work on Corporate Lawyers as Gatekeepers.

4:00: Break. Decide it's still warm enough for a swim.

4:05: Do back stretching exercises. Dip one foot in pool. Decide it's not warm enough. Retreat.

4:15: Back to work on Corporate Lawyers as Gatekeepers. Third draft/proofreading stage. Why does Word's grammar check think "counsel are" is incorrect? In context, counsel is clearly being used as a plural noun. I blame Bill Gates.

6:18: Finished work on Corporate Lawyers as Gatekeepers. Emailed it to editor. Also submitted it for SSRN posting. Now the real work of the sabbatical can begin, albeit not tonight. Make list: Edit anthology of essays on insider trading. Herd cats--I mean valued law professors contributing articles to anthology--to get work in on time. Write own essay on the rise and fall of the fiduciary duty element of insider trading. Write introduction. Edit cats' product. Write as much of book on employee involvement in corporate governance as possible. Update business associations statutory supplement. Shepherd eighth edition of business associations case book through galleys to production. Ditto third edition of mergers and acquisitions treatise. Update insider trading treatise publisher is letting go out of print, convert into e-book, and self-publish on Kindle. Decide a sufficiently rigorous update will justify treating it as a separate resume line entry. Review list. Decide taxpayers will be getting their money's worth from my sabbatical.

6:37: Upstairs to kitchen. Feed dogs. Consider dinner options. Chicken? Yes, please. But how? Stir-fried with shallots, lots of garlic, a lot of black pepper, soy sauce, oyster sauce, and mirin. Taste. Adjust seasoning. Brown rice. Not bad.

Post-dinner: Decide I'm bored with punching clock. Rest of day gets one entry. -- Helen home. Catch up on each other's day, which always reminds me of that Seinfeld episode when Kramer explains marriage to Jerry. -- Watch Top Gear. Best TV show ever. -- Surf internet, which leads to: Find Kramer marriage bit on Youtube. Hysterical. Tweet link to Christine Hurt's comments on Larry Ribstein.  Blog post re SEC conflict minerals disclosure. Blog post re WSJ Law Blog post about Delaware Chancellor Leo Strine. Repost old blog post re AALS. -- Read. -- Finish this post. Bed. Sleep.

More coverage of Congressional insider trading

From a New Tang Dynatsy TV article on Congressional insider trading:

UCLA professor of law Stephen Bainbridge, having been the least impressed with all past and recent legislative attempts to reign in members’ attempts to profit from their nonpublic knowledge, suggests that “what Gillibrand’s proposal does is to completely rethink the STOCK Act by simply applying existing law to Congress. … In sum, Senator Gillibrand and her staff are to be highly commended for coming up with a ban on Congressional insider trading that is simple, effective, comprehensive, and workable.”

Happy Boxing Day!

I got a lovely Christmas gift from Francis Pileggi, who wrote:

For those who want gift giving ideas that can be fulfilled online, I recommend the latest publication from one of the nation’s most respected corporate law experts and a favorite of the Delaware Courts (based on their frequent citations to his scholarship), Professor Stephen Bainbridge. Entitled: Corporate Governance after the Financial Crisis, and available for pre-order via Amazon.com here , this latest work from a prolific scholar has been described by Professor Steven Davidoff, as follows:

“Professor Bainbridge has written an important book for those seeking to understand the theoretical and practical implications of Dodd-Frank, Sarbanes-Oxley and the federal government’s foray into corporate regulation. It is a book that for years to come will influence the controversial debate over the federal regulation of corporate governance.” –Professor Steven Davidoff, N.Y. Times “Deal Professor”

Many thanks!

Gawd, I'm old

Today I turn:

 

Truth on the Market gangs up on yours truly

As regular readers know, the ABA Journal has named Professor Bainbridge.com as one of the top 100 law blogs (fourth time in 5 years). But now my "friends" at Truth on the Market are giving me the backhanded compliment of ganging up on me:

Until December 30, polls are open over at the ABA Journal to vote for your favorite blog in each of the categories.  We urge all of our readers to go to http://www.abajournal.com/blawg100 to register and to vote for Truth on the Market in the Business Law category. At the moment we’re neck and neck with our friend Prof. Bainbridge for the top slot.  It may be close, but the 8 of us should be able to best the 1 of him!

Eight to one! Are you going to let the TOTM bullies gang up on our happly little community here at PB.com?

Of course not. So please go over to the ABA site, register, and vote for PB.com as one of your 12 favorite law blogs. I'm in the Business Law category. Thanks for your support!

Have you voted for me yet?

If you haven't yet voted for ProfessorBainbridge.com as one of your favorites among the Top 100 law blogs, please go over to the ABA site, register, and vote for PB.com as one of your 12 favorite law blogs. I'm in the Business Law category. Thanks for your support!

 

PB.com chosen as one of ABA's Top 100 Blogs

For the fourth time in five years, ProfessorBainbridge.com has been chosen as one of the Top 100 law blogs by the ABA Journal. I'm delighted and honored to be in such excellent company. But now it's your turn to do me a favor: Go over to the ABA site, register, and vote for PB.com as your favorite law blog. I'm in the Business Law category. Thanks for your support!

We get some Jane Galt love

Atlantic columnist/blogger Megan McArdle:

Presumably thanks to the 60 Minutes story that ran a few weeks ago, Congress is finally looking at passing a bill aimed at Congressional insider trading.

Unfortunately, insider trading expert and first-class blogger Professor Bainbridge says that the version they've taken up is, to quote him "bizarre and toothless" ....

I'm blushing.