ProfessorBainbridge.com

Teresa Stanton Collett offers "A Catholic Perspective on Law School Diversity Requirements"

Interesting and provocative:

“Diversity” is a polarizing concept in American politics. I argue that under current legal education guidelines and policies, it is a concept that is Ill-defined, clumsily implemented, and often justified on grounds that have been rejected by the US Supreme Court. My quarrel is not with the underlying perception that cultural pluralism is increasing both here and abroad, nor with the idea that such pluralism can be the entry point to a more just and peaceful world. My quarrel is with the legal academy’s embrace of what others have called “check-the-box diversity” with little to no attention to viewpoint diversity and authentic dialogue. This is evidenced by both the development of a grievance culture on campus as well as a dangerous refusal to engage ideas and arguments that differ from the dominate liberal worldview. Sadly there is little to no evidence that Catholic law schools differ from their secular counterparts in this area. This should not be so, given the guidance of the Vatican’s Congregation for Catholic Education on multicultural dialogue. By embracing the Church’s approach to educating students in a multi-cultural society, I argue that Catholic law schools could and should become places of authentic dialogue, cultural appreciation and reform, and a more universal understanding of justice and the role law can play in responding to the challenges of our time.

Collett, Teresa Stanton, A Catholic Perspective on Law School Diversity Requirements (2018). U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-27. Available at SSRN: https://ssrn.com/abstract=3302905

Fisch and Solomon on Sunset Provisions in Dual Class Stock

An important and insightful new article on a hot topic:

An increasing percentage of corporations are going public with dual class stock in which the shares owned by the founders or other corporate insiders have greater voting rights than the shares sold to public investors. Some commentators have criticized the dual class structure as unfair to public investors by reducing the accountability of insiders; others have defended the value of dual class in encouraging innovation by providing founders with insulation from market pressure that enables them to pursue their idiosyncratic vision.

The debate over whether dual class structures increase or decrease corporate value is, to date, unresolved. Empirical studies have failed to provide conclusive evidence as to the effect of dual class structures, and calls for regulators or stock exchanges adopt prohibitions banning dual class structures outright have been unsuccessful, although several index providers have banned dual class stock from major indexes such as the S&P 500.

As a result, some commentators have advocated a compromise position permitting corporations to go public with dual class structures but requiring that they be required to include mandatory time-based sunset provisions. The sunset provisions would automatically convert the dual class structure to a single share structure after the passage of a pre-determined period of time. The Council of Institutional Investors has asked the New York Stock Exchange and Nasdaq to refuse to list the shares of dual class firms unless they contain a time-based sunset provision that would convert within seven years.

We do not take a position on whether dual class structures are value-enhancing, but we challenge the proposition that time-based sunsets are an appropriate response to the debate over dual class and that they should be imposed through regulation or stock exchange rules. To the extent that dual class structures are problematic, sunsets do not solve that problem. Moreover, time-based sunsets are an arbitrary response to the concern that developments such as the decline in a founder’s economic interest or the transfer of high-vote shares to third parties may reduce the attractiveness of the dual class structure. In addition, time-based sunsets create potential moral hazard problems. We further argue that the limitations of time-based sunsets cannot be addressed through a retention vote by the minority shareholders due to the problematic incentives of the minority shareholders.

We observe that event-based sunsets, which have received less attention, focus on the specific developments that are likely to erode the potential value of dual class, and we call for market participants to explore them further through private ordering. Nonetheless, we argue that, at the present time, investors and policymakers lack sufficient information about either dual class or sunsets to justify using regulation, index requirements or stock exchange rules to force companies into adopting sunsets. We further argue that, rather than relying compulsory sunsets to evade the difficult policy issues raised by dual class, the debate should encompass a more thorough framing of the role and importance of shareholder voting rights.

Fisch, Jill E. and Davidoff Solomon, Steven, The Problem of Sunsets (December 17, 2018). Boston University Law Review, 2019, Forthcoming; U of Penn, Inst for Law & Econ Research Paper No. 19-04. Available at SSRN: https://ssrn.com/abstract=3305319

Adrian Vermeule's path to Rome from "Mind, Heart, and Soul: Intellectuals and the Path to Rome" -- and a personal confession

I've never met Harvard law professor Adrian Vermeule or read much of his (reportedly outstanding) legal scholarship. But when I heard a few years ago that he had converted to Roman Catholicism, I began following his Twitter feed and reading his essays on politics and religion. In short order, I became a fan.

So when I bought Mind, Heart, and Soul: Intellectuals and the Path to Rome (edited by Robert P George and J.J. Snell), which offers "the stories of sixteen converts [to Roman Catholicism], each a public intellectual or leading voice in their respective fields, and each making a significant contribution to the life of the Church," I turned immediately to Adrian's chapter. It's interesting, provocative, but sadly short.

In some ways Adrian's story resonated with me, but in some ways my own conversion story is very different

Adrian was a convert from Episcopalianism. I came to Rome from a sort of generic Protestantism.[1]

Adrian fell away from the faith in college and eventually returned Ito it as an adult, only to find that the Episcopal Church had fallen into the hands of "herterodox forces."

Heterodoxy is part of my story too. In the years immediately before my conversion, I had attended Presbyterian churches. During the 1990s, of course, the PCUSA was riven with ugly disputes over social issues, especially sexual ones. The PCUSA leadership was increasingly captured by social justice warriors whose agenda seemed to be driven by progressive political policies rather than theology. That attitude increasingly trickled down to the local churches in my area, where I heard a lot more sermons on issues like race, sexuality, and the evils of the Israeli occupation of the West Bank rather than sin and salvation. Eventually, enough was enough. 

Back to Adrian's interview:

On what legal fronts do you find the most hope for influencing the culture away from the “culture of death” of materialism and nihilism we seem to be gradually embracing?

I put little stock or hope or faith in law. It is a tool that may be put to good uses or bad. In the long run it will be no better than the polity and culture in which it is embedded. If that culture sours and curdles, so will the law; indeed that process is well underway and its tempo is accelerating. Our hope lies elsewhere.

Right.

Finally, an interesting observation:

As for influences, there were many .... But behind and above all those who helped me along the way, there stood a great Lady.

Did you experience any kind of mystical or possibly supernatural signs or occurrences relating to your conversion?

Let me refer back to the end of the previous answer and leave it at that.

I assume the reference is to Mary. And now for a personal confession: Most of the Catholic doctrines as to which I have the greatest doubts relate to Mary. To be sure, the Catholic theology of Mary is far more complex and nuanced than the caricature I learned as a Protestant. But nevertheless I simply don't have the emotional commitment to Marian devotion that so many Catholics seem to have. And that devotion all too often seems to obscure the necessary focus on Christ.

Put another way, the Mother of God is undoubtedly an important figure, but God the Son is orders of magnitude more important. I see no scriptural basis for the theological claim that she collaborated in Christ's work of salvation. To the contrary, calling her co-mediatrix and co-redemptrix smacks of matriarchal paganism.

So am I a cafeteria Catholic on this central set of issues? I don't think so. I am perfectly happy to take Immaculate Conception and the Assumption on faith. I'm prepared to venerate Mary and to request her intercession. I'm simply suggesting that Mariology must be understood as Christ-centric and acknowledging -- even confessing -- that Mary plays a small role in my personal faith walk.

I take some comfort from the fact that one of my great heroes, John Henry Newman, acknowledged that he had difficulty adopting some Catholic practices. 

What's striking to me, however, is how many of my fellow converts who are interviewed in "Mind, Heart, and Soul" embrace Marian devotion:

Michael Ward:

Marian devotions were foreign to me when I first swam the Tiber, but they quickly ceased to be alien. Now I not only understand and accept them but find the Marian dimensions of Catholic piety to be extremely helpful. I would put Marian devotions a close third, after daily Mass and frequent confession, in a list of the things I have found most beneficial to my spiritual regimen since becoming a Catholic.

George, Robert P.. Mind, Heart, and Soul: Intellectuals and the Path to Rome (Kindle Locations 2614-2616). TAN Books. Kindle Edition.

Matthew Franck on C.C. Pecknold:

Though now a Catholic, Pecknold had no personal Marian devotion at this time. “I knew that Catholics had a devotion to Mary, and I knew theologically in my head why Mary mattered. I could even tell you things that were important about the doctrine of the Immaculate Conception. I could tell you various things, I could probably teach a course.” But as for a personal Marianism, “I didn’t understand that.”

Yet when he went into Memorial Chapel and approached the shrine to Mary to pray about the two jobs, suddenly he felt that the eyes of the icon of Mary were on him, staying with him as he moved. He knelt down, prayed the Hail Mary, and asked for Our Lady’s help and guidance, whatever offers might come.

George, Robert P.. Mind, Heart, and Soul: Intellectuals and the Path to Rome (Kindle Locations 3006-3012). TAN Books. Kindle Edition.

Ulf & Brigitta Ekman:

What surprised us was the fervor and strength of Marian piety. It took us a while to understand how important this was. We decided to visit some Marian shrines, and over the years, we visited Lourdes, Fatima, Knock, Guadalupe, Czestochowa, Banneux, as well as many churches and monasteries connected with Mary. The Rosary started to appeal to us when we realized how Christ-centered it is, and we started to pray the Rosary even before we were received into the Church.

George, Robert P.. Mind, Heart, and Soul: Intellectuals and the Path to Rome (Kindle Locations 843-846). TAN Books. Kindle Edition.

So maybe there's more for me to learn and appreciate.

 

 

Reading "Mind, Heart, and Soul: Intellectuals and the Path to Rome" By Robert P. George (@McCormickProf) and R.J. Snell

I'm reading with great interest Mind, Heart, and Soul: Intellectuals and the Path to Rome (edited by Robert P George and J.J. Snell), which offers "the stories of sixteen converts [to Roman Catholicism], each a public intellectual or leading voice in their respective fields, and each making a significant contribution to the life of the Church."

As an adult convert to Catholicism from Evangelical Protestantism, I'm always fascinated by how other people came to the same decision. It turns out, of course, that there are many roads to Rome. As the saying goes, God works in mysterious ways, tailored to each of us individually, which is apparent from George and Snell observation that in the introduction:

For many, although certainly not all, converts entering the Catholic Church as adults, whether from another Christian community, another religion, or no faith at all, the Catholic intellectual tradition was experienced as part of the struggle to come home. Some turned to the Patristics for guidance, others to the Scholastics, yet others to the mystical or spiritual authors. For some, no one period or figure stands out as much as the entire “symphony” of truth found in the Catholic traditions of music, poetry, art, theology, literature, and moral philosophy.

Personally, I came to Rome not by any of those routes, but by reading Michael Novak and Pope John Paul II's encyclicals on work and the economy. 

I’ve spent most of my life in school. Kindergarten. Twelve years of secondary education. Four years of college. Five years of graduate and law school. Three brief years as a law clerk and attorney in private practice. And now over thirty years as a law professor.

At the risk of sounding pretentious (a risk I fear I take all too often), I have lived the life of the mind. Most of my time has been spent reading, thinking, and writing. I spend my days engaged not just with legal materials, but also with social sciences, especially economics and finance. After all, I teach corporate law and, as I tell my students, you can’t understand corporate law or advise your clients unless you understand business.

So, I’ve grappled with questions like: Why do corporations have a board of directors at the top instead of a single executive? Why do courts usually defer to the decisions made by that board of directors absent fraud or self-dealing? Why do we prohibit insider trading? And so on.

Early in my academic career I began to wonder whether my faith spoke to those sorts of issues.

Immediately, however, I bumped into what Mark Noll—a well-known and highly respected academic historian and leading Christian scholar—called “The Scandal of the Evangelical Mind.”[1] Noll argued that:

What is true throughout the Christian world is true for American Christians: we who are in pietistic, generically evangelical, Baptist, fundamentalist, Restorationist, holiness, “Bible church,” megachurch, or Pentecostal traditions face special difficulties when putting the mind to use. Taken together, American evangelicals display many virtues and do many things well, but built-in barriers to careful and constructive thinking remain substantial.[2]

Accordingly, as Noll observed, “phrases like ‘first-rate Christian scholarship’ or ‘the Christian use of the mind,’ when these phrases sound like a call to backsliding for some in the churches and like a simple oxymoron for many in the broader world.”

The lack of first rate Christian scholarship was (and still is) especially pronounced in law and economics, the two academic disciplines in which I spend most of my time and upon which my own scholarship draws most heavily. True, there are some very fine Evangelical law professors. I am proud to count many as personal friends and hold them in the highest regards as both persons and intellectuals. But there are not many. And many (most?) teach in areas like constitutional law or jurisprudence. I can probably count the number doing serious work in the business law area on one hand. One of the best of them does mostly Japanese business law, which is way outside my bailiwick, and another does mainly bankruptcy and contract law.

Put bluntly, the life of the mind begins by reading, but I had nowhere to start. There simply was not a foundation of scholarship upon which to build.

But then I found Michael Novak. I only met Novak once and only corresponded with him a few times, but it is hard to think of anyone other than my friend and mentor the late Michael Dooley[3] who has had a bigger impact on my intellectual development. Novak's work provided a coherent Christian understanding of not just the economy, but the corporate form itself.

Reading Novak led me to Pope John Paul II's encyclicals on work and the economy. I already had developed a deep admiration for JPII's heroes life story and stand against communism, but now I found that he had profound insights into the issues with which I grappled on a regular basis. 

I thus found in Catholicism an intellectually rich and vibrant foundation for my vocational life. In turn, that led to exploring the question of whether it might provide a similarly rich and vibrant foundation for my life as a Christian.

To sum up a multi-year process of discernment and internal struggle, the answer was yes. One of these days maybe I'll explore that process in detail.

Looking back at 2018: My books, articles, monographs, columns, etc...published last year

Books

Outsourcing the Board: How Board Service Providers Can Improve Corporate Governance (Cambridge University Press 2018) (Coauthor: M. Todd Henderson)

Can Delaware Be Dethroned?: Evaluating Delaware's Dominance of Corporate Law (Cambridge University Press 2018) (Coeditors: Iman Anabtawi, Sung Hui Kim, and James Park)

Business Associations: Cases and Materials on Agency, Partnerships, LLCs, and Corporations , 10th Edition (Foundation Press 2018) (Co-editors: William A. Klein and J. Mark Ramseyer)

Articles and Book Chapters

Introduction, in Can Delaware Be Dethroned?: Evaluating Delaware's Dominance of Corporate Law (Cambridge University Press 2018)

Interest Group Analysis of Delaware Law: The Corporate Opportunity Doctrine as Case Study, in Can Delaware Be Dethroned?: Evaluating Delaware's Dominance of Corporate Law (Cambridge University Press 2018)

Conservative Critiques of Capitalism, American Affairs, Fall 2018, at 113

Parable of the Talents, in Research Handbook on Fiduciary Law 97 (Edward Elgar Publishing; D. Gordon Smith & Andrew S. Gold eds. 2018)

The Board of Directors, in The Oxford Handbook of Corporate Law and Governance 275 (Oxford University Press; Jeffrey N. Gordon & Wolf-Georg Ronge eds. 2018)

Kokesh Footnote Three Notwithstanding: The Future of the Disgorgement Penalty in SEC Cases, 56 Wash. U. J.L. & Policy 17 (2018)

Other

Perpetual Dual Class Stock versus the SEC’s Dubious Raised Eyebrow Power, The WLF Legal Pulse (February 23, 2018)

Supreme Court to Once Again Examine Limits of Rule 10b-5 Liability in October Term 2018 Case “Lorenzo v. SEC”,The WLF Legal Pulse (August 6, 2018)

California Corporate-Board Quota Law Unlikely to Survive a Constitutional Challenge, The WLF Legal Pulse (October 2, 2018)

Canon Law Should Be Changed to Make Catholic Bishops Accountable, Public Discourse (December 18, 2018)