Dept of Self-Promotion

12/12/2019

We got a lovely compliment from Father Bill Dailey

Posted at 06:11 PM in Dept of Self-Promotion | | Comments (0)

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10/24/2019

Yours truly cited re validity of disgorgement as relief in cases brought by the SEC

In SEC v. Westport Capital Markets LLC., 2019 WL 4857337 (D. Conn. Sept. 30, 2019), THE SEC "accused Westport Capital Markets, LLC, and its owner Christopher E. McClure of violating the Investment Advisers Act of 1940. Westport and McClure have moved to dismiss the SEC complaint to the extent that it seeks a disgorgement remedy."

The Court declined to decide the motion at present, explaining that:

Deferring decision on whether the Court may enter a disgorgement remedy is appropriate in view of uncertainty about the ... extent the SEC may seek disgorgement for strictly victim restitutionary purposes and whether disgorgement for victim restitutionary purposes may retain an equitable character that distinguishes it from disgorgement for deterrent penalty purposes. 

A further reason to forbear ruling for now on the defendants' motion is the likelihood that precedent on whether the SEC may continue to seek a disgorgement remedy may change or be clarified in the coming months. ...

Now pending before the U.S Supreme Court is a certiorari petition on the issue of “[w]hether the Securities and Exchange Commission may seek and obtain disgorgement from a court as ‘equitable relief’ for a securities law violation even though this Court has determined that such disgorgement is a penalty.” Liu v. SEC, No. 18-1501 (petition for writ of certiorari filed on May 31, 2019); see also Stephen Bainbridge, Kokesh Footnote 3 Notwithstanding: The Future of the Disgorgement Penalty in SEC Cases, 56 WASH. U. J. L. & POL'Y 17 (2018); Daniel B. Listwa & Charles Seidell, Note, Penalties in Equity: Disgorgement After Kokesh v. SEC, 35 Yale J. Reg. 667 (2018).

Granted, it's not much of a cite. But it counts. Now I need to get the Supreme Court to cite the article.

On that score, I was pleased to see that counsel for petitioners in the Liu case cited my article in their brief:

The SEC first successfully obtained disgorgement in SEC v. Texas Gulf Sulphur Co., 312 F. Supp. 77 (S.D.N.Y. 1970), aff’d in part, rev’d and remanded in part on other grounds, 446 F.2d 1301 (2d Cir. 1971). See Stephen M. Bainbridge, Kokesh Footnote Three Notwithstanding: The Future of the Disgorgement Penalty in SEC Cases, 56 Wash. U. J.L. & Pol’y 17, 20- 21 (2018). The Second Circuit affirmed the award, adding that “the SEC may seek other than injunctive relief in order to effectuate the purposes of the Act.” SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (2d Cir. 1971). Even there, however, the court noted that such equitable relief must be “remedial” and thus cannot be “a penalty assessment.” Id.

It'd have been nice if they had cited the arguments I made on the merits, but so be it.

Posted at 01:10 PM in Dept of Self-Promotion, Insider Trading, Securities Regulation |

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09/20/2019

An announcement for adopters of the Klein, Ramseyer, Bainbridge Business Associations Casebook

Posted at 11:13 AM in Books, Dept of Self-Promotion, Law School |

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09/18/2019

Yours Truly on The Economist's Podcast on Corporate Social Responsibility

Posted at 10:32 AM in Corporate Social Responsibility, Dept of Self-Promotion |

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08/21/2019

Slate's Jordan Weissman takes some shots at the Business Roundtable's statement on corporate purpose and I gave him some ammo

From Slate:

On Monday, the Business Roundtable, a major corporate lobbying group, released its latest “Statement on the Purpose of a Corporation,” a lofty mission statement of sorts for the country’s C-suites that the group updates every so often. For more than 20 years, every version of the document has claimed that companies exist primarily to serve the interests of their investors—which typically means making money by any means necessary, and preferably lots of it. This time, however, the roundtable dropped that language, claiming it “does not accurately describe” how corporations view their role today. The new version states that businesses are responsible to all of their various “stakeholders,” including their workers, suppliers, and local communities. ...

Practically speaking, the roundtable statement doesn’t do much. Tim Cook can tell anyone he wants that Apple has lots of different stakeholders and doesn’t just answer to the whims of its shareholders. But the next time investors decide they want the company to start dropping cash on stock buybacks, they can still pressure him to do it. Likewise, just because a lobbying group got together and decided that the purpose of a corporation is to help humanity, that doesn’t make it so. “They don’t get to do that,” Stephen Bainbridge, a law professor at UCLA, told me. “The law gets to do that. And in corporate law, Delaware is the only law that matters.”

My friend Todd Henderson is quoted too. Go read the whole thing. It's quite good, even if I disagree with the policy recommendation.

Posted at 08:11 AM in Corporate Social Responsibility, Dept of Self-Promotion |

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08/19/2019

Kindly help popularize the Bainbridge Hypothetical

Can we please popularize the "Bainbridge Hypothetical"? Anyway, here is an excellent analysis of the problem under Australian law:

At the heart of the Bainbridge Hypothetical is a simple question - by what standard should company directors make their decisions?

Devised by Stephen Bainbridge, a law professor from UCLA*,  his thought experiment asks what the ends of corporate governance should be.    This post revisits the question from the perspective of an Australian director (changes to the original are in bold and are mine):

Acme's Limited board of directors is considering closing an obsolete plant. The board is advised that closing the plant will cost many long-time workers their job and be devastating for the local community. On the other hand, the board's advisors confirm that closing the existing plant will benefit Acme's shareholders through a planned share buy back, new employees hired to work at a more modern plant to which the work previously performed at the old plant will be transferred, and the local communities around the modern plant. 

 Assume that:

  • Acme Limited is an Australian Public Company

  • The long- time workers are research scientists from leading universities;

  • obsolete means sustainably profitable but less profitable than the new plant; and

  • the latter groups cannot gain except at the former groups expense.

 By what standard should the board make the decision in Australia. 

In response to his original hypothetical, the Professor says:

“Shareholder wealth maximization provides a clear answer -- close the plant.

And, from what I can gather from recent comments from the Chief Justice of the Delaware Supreme Court, there's little doubt the Professor is right - in Delaware.

But, corporations being creatures of statute, what passes for the ends of governance in one place are out of place in another.  Put simply, corporations aren't corporations.  Outside of Delaware their nature and purpose reflect the varieties of the world's legislatures.

In Australia, we have an entity statute which makes the shareholder versus stakeholder debate, implicit in the Professor's answer, a false dilemma.  

Posted at 12:43 PM in Corporate Social Responsibility, Dept of Self-Promotion |

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My Tweet to the Business Roundtable Linking My NY Times oped on the importance of the shareholder wealth maximization norm

Posted at 12:34 PM in Corporate Social Responsibility, Dept of Self-Promotion |

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In response to the Business Roundtable Statement on Corporate Purpose, Some Law Review Articles by Yours Truly that are Pertinent

Director Primacy: The Means and Ends of Corporate Governance (February 2002). Available at SSRN: https://ssrn.com/abstract=300860

Any model of corporate governance must answer two basic sets of questions: (1) Who decides? In other words, when push comes to shove, who has ultimate control? (2) Whose interests prevail? When the ultimate decisionmaker is presented with a zero sum game, in which it must prefer the interests of one constituency class over those of all others, whose interests prevail?

On the means question, prior scholarship has almost uniformly favored either shareholder primacy or managerialism. This article argues that control - the power and right to exercise decisionmaking fiat - is vested neither in the shareholders nor the managers, but in the board of directors. According to this "director primacy" model, the corporation is a vehicle by which the board of directors hires various factors of production. The board of directors thus is not a mere agent of the shareholders, but rather is a sui generis body - a sort of Platonic guardian - serving as the nexus of the various contracts making up the corporation. As a positive theory of corporate governance, director primacy thus claims that fiat - centralized decisionmaking - is the essential attribute of efficient corporate governance. As a normative theory of corporate governance, director primacy claims that resolving the resulting tension between authority and accountability is the central problem of corporate law.

On the ends question, prior scholarship has tended to favor either shareholder primacy or various forms of stakeholderism. Again, director primacy rejects both approaches. Although shareholder primacy and the shareholder wealth maximization norm are often conflated, one can have the latter without necessarily endorsing the former. Hence, this article argues that director decisionmaking primacy can be reconciled with a contractual obligation on the board's part to maximize the value of the shareholders' residual claim.

In Defense of the Shareholder Wealth Maximization Norm. Washington & Lee Law Review, Vol. 50, 1993. Available at SSRN: https://ssrn.com/abstract=303780

This essay, "In Defense of the Shareholder Wealth Maximization Norm, appeared in the Symposium on New Directions in Corporate Law published in volume 50 of the Washington & Lee Law Review. This essay was written as a reply to an article in the same symposium by Professor Ronald M. Green - "Shareholders as Stakeholders: Changing Metaphors of Corporate Governance," 50 Wash. & Lee. L. Rev. 1409 (1993) - in which Professor Green criticized the dominant view of corporate governance, according to which directors have a fiduciary duty to maximize shareholder wealth. In sharp contrast, this essay argues that the principle of shareholder wealth maximization is both a valid positive account of corporate law and also a legitimate normative proposition.

The essay is grounded in a contractarian approach to corporate governance. The essay begins by observing that in the nexus of contracts theory the concept of ownership goes out the window, along with its associated economic and ethical baggage. Consequently, the traditional justification for shareholder wealth maximization - i.e., that shareholders own the corporation - is unavailing. There is a considerable difference between showing that the traditional private property model is inadequate, however, and showing that we should adopt a new decisionmaking norm to which corporate officers and directors must conform their behavior.

The essay then identifies and critiques the two principal normative arguments running through Professor Green's article. First, Green treats the limited liability rule as a privilege conferred by society, in return for which society can demand socially responsible corporate behavior. My essay points out that this is little more than a revival of the long-dead concession theory of corporate governance. Second, Green contends that limited liability is a mechanism through which shareholders harm nonshareholders by externalizing certain costs onto them. Although this is a more substantial argument, my essay contends that it is not persuasive. Although limited liability does permit such externalities, Green's proposed solution - i.e., allowing/requiring directors to consider the effects of their decisions on nonshareholder constituencies of the corporation - is highly flawed. Such a multi-constituency fiduciary duty would be unworkable, at best, and would significantly increase the agency costs inherent in the separation of ownership and control.

The Bishops and the Corporate Stakeholder Debate (April 2002). Villanova Journal of Law and Investment Management. Available at SSRN: https://ssrn.com/abstract=308604

Prepared for a conference on faith-based investing practices, this essay critiques Catholic social teaching on corporate social responsibility. Specifically, the essay focuses on one of the policy recommendations made by the U.S. Bishops in their pastoral letter on economic justice, Economic Justice for All: Pastoral Letter on Catholic Social Teaching and the U.S. Economy. In that letter, the Bishops addressed the so-called stakeholder debate; i.e., whether decisionmaking by directors of public corporations should take into account the interests of corporate constituencies other than shareholders. This essay focuses on the Bishops' position as matter of public policy rather than as a matter of theology. The essay evaluates three ways in which the Bishops' position might be translated into public policy: (1) directors could be given nonreviewable discretion to make trade-offs between shareholder and stakeholder interests; (2) directors could be given reviewable discretion to make such trade-offs; or (3) directors could be required to make such trade-offs subject to judicial (or regulatory) oversight. None of these approaches is an improvement on current law; to the contrary, all are worse. The first approach would be toothless, the second would increase agency costs, and the third would either prove unworkable or pose an unwarranted threat to economic liberty (or both).

The Shared Interests of Managers and Labor in Corporate Governance: A Comment on Strine (May 10, 2007). Available at SSRN: https://ssrn.com/abstract=985683

In his essay, Toward Common Sense and Common Ground?, Delaware Vice Chancellor Leo Strine seeks to identify common concerns of corporate management, labor, and shareholders. In so doing, Strine endorses a vision of the corporation as "a social institution that, albeit having the ultimate goal of producing profits for stockholders, also durably serves and exemplifies other societal values." Accordingly, he directs our attention to the prospects of creating "a corporate governance structure that better fosters [the corporation's stakeholders'] mutual interest in sustainable economic growth."

There is much that is admirable in Strine's analysis of what ails corporate governance and his proposals for reform, as well as much that is debatable. In this brief comment, I identify three aspects of Strine's analysis that strike me as underdeveloped. First, what do we mean when we call the corporation "a social institution"? Second, do managers and laborers really have common interests threatened by shareholders? Finally, even if Strine's search for common ground is a worthwhile project, is corporate law and governance the appropriate arena in which to find it? Taken together, these issues raise serious questions about the viability of Strine's project.

Corporate Social Responsibility in the Night Watchman State: A Comment on Strine & Walker (September 9, 2014). Available at SSRN: https://ssrn.com/abstract=2494003

Delaware Supreme Court Chief Justice Leo Strine and Nicholas Walter have recently published an article arguing that the U.S. Supreme Court’s decision in Citizens United v. FEC undermines a school of thought they call “conservative corporate law theory.” They argue that conservative corporate law theory justifies shareholder primacy on grounds that government regulation is a superior constraint on the externalities caused by corporate conduct than social responsibility norms. Because Citizens United purportedly has unleashed a torrent of corporate political campaign contributions intended to undermine regulations, they argue that the decision undermines the viability of conservative corporate law theory. As a result, they contend, Citizens United “logically supports the proposition that a corporation’s governing board must be free to think like any other citizen and put a value on things like the quality of the environment, the elimination of poverty, the alleviation of suffering among the ill, and other values that animate actual human beings.”

This essay argues that Strine and Walker’s analysis is flawed in three major respects. First, “conservative corporate law theory” is a misnomer. They apply the term to such a wide range of thinkers as to make it virtually meaningless. More important, scholars who range across the political spectrum embrace shareholder primacy. Second, Strine and Walker likely overstate the extent to which Citizens United will result in significant erosion of the regulatory environment that constrains corporate conduct. Finally, the role of government regulation in controlling corporate conduct is just one of many arguments in favor of shareholder primacy. Many of those arguments would be valid even in a night watchman state in which corporate conduct is subject only to the constraints of property rights, contracts, and tort law. As such, even if Strine and Walker were right about the effect of Citizens United on the regulatory state, conservative corporate law theory would continue to favor shareholder primacy over corporate social responsibility.

Corporate Purpose in a Populist Era. Available at SSRN: https://ssrn.com/abstract=3237107

In the wake of the 2016 US Presidential election and similar developments parts of Europe, commentators widely acknowledged the rise of populist movements on both the right and left of the political spectrum that both were deeply suspicious of big business. This development potentially has important implications for the law and practice of corporate purpose.

Left of center corporate social responsibility campaigners have long advocated the use of “boycotts, shareholder activism, negative publicity, and so on” to pressure corporate managers to act in ways those campaigners deem socially responsible. Right of center populists could use the same tactics to induce corporate directors to make decisions they favor. The question thus is whether they are likely to do so based on their historical track record.

Assuming for the sake of argument that right-of-center populists begin focusing on corporate purpose, the question arises whether modifying the shareholder wealth maximization norms so as to give managers more discretion to take the social effects of their decisions into account would lead to outcomes populists would view as desirable. Populists historically have viewed corporate directors and managers as elites opposed to the best interests of the people. Today, right of center populists find themselves increasingly at odds with an emergent class of social justice warrior CEOs, whose views on a variety of critical issues are increasingly closer to those of blue state elites than those of red state populists.

Posted at 12:28 PM in Corporate Social Responsibility, Dept of Self-Promotion |

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08/15/2019

A lengthy Twitter thread on whether casebooks count as scholarship and whether casebooks should be more like treatises

Posted at 05:17 PM in Books, Dept of Self-Promotion |

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07/23/2019

Yours truly cited in a post-Kokesh case

In U.S. v. Bank, 378 F. Supp. 3d 451 (E.D. Va. 2019), the court explained that:

This matter is before the Court on Defendant Daryl G. Bank's (“Defendant” or “Bank”) Motion to Dismiss for Double Jeopardy Violation. Def.'s Mot., ECF No. 139. Defendant moves to dismiss the pending indictment against him in light of the United States Supreme Court's decision in Kokesh v. SEC, ––– U.S. ––––, 137 S. Ct. 1635, 198 L.Ed.2d 86 (2017).

The indictment charges various violations of the securities laws. The court further explained that:

Defendant claims that the 2017 Supreme Court decision in Kokesh, which declared SEC disgorgement a penalty, bars pursuit of the instant criminal action under the Double Jeopardy Clause of the Fifth Amendment because Defendant has already been punished for some of the activity with which he is charged. The Government replied on December 11, 2018, arguing ... that he cannot claim Double Jeopardy because he only received a civil punishment [in the prior SEC action].

In a footnote to the section of the opinion addressing that argument, the court observed that:

Kokesh has sparked a debate about whether district courts have the authority at all to impose disgorgement because the Supreme Court appeared to question such authority. See Kokesh, 137 S. Ct. at 1642 n.3 (stating that the court offered “[n]o opinion on whether courts possess authority to order disgorgement in SEC proceedings”); Donna M. Nagy, The Statutory Authority for Court-Ordered Disgorgement in SEC Enforcement Actions, 71 S.M.U. L. Rev. 896, 898 (2018) (explaining how, at oral argument for Kokesh, the Justices questioned the authority to order disgorgement and invited challenges to it by disclaiming, in a footnote of the opinion, that it was not deciding the issue). Those arguing there is no authority for disgorgement suggest that, now that disgorgement has been declared a penalty, it can no longer be within a district court's equitable authority because a court cannot impose penalties when acting in equity. See, e.g., Stephen M. Bainbridge, Kokesh Footnote Three Notwithstanding: The Future of the Disgorgement Penalty in SEC Cases, 56 Wash. U. J.L. & Pol'y 17, 21-22 (2018). Those arguing that there is authority posit that just because disgorgement is a penalty for one purpose does not mean it is a penalty for all purposes, and that Congress has expressly recognized a court's power to order disgorgement. See, e.g., Nagy, supra, at 901-903. In March of 2019, a bill was introduced in the Senate that would resolve this debate by amending 15 U.S.C. § 78u(d) to expressly grant district courts the authority to order disgorgement. Securities Fraud Enforcement and Investor Compensation Act of 2019, S.799, 116th Cong. (2019).

That said, a district court's authority to order disgorgement is not at issue here. Accordingly, the Court assumes, for the purposes of this motion only, that district courts necessarily have the authority to order disgorgement under the equitable authority granted to them by one of the statutes discussed above. See 15 U.S.C. §§ 77t(b), 77v(a), 78aa, 78u(d) (1).

 

Posted at 01:29 PM in Dept of Self-Promotion, Securities Regulation |

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Yours truly cited in a case involving right of refusal transfer restrictions in close corporations

The Westlaw headnote in Minority Dewey v. Bechthold, 18-CV-1739-JPS, 2019 WL 2193865 (E.D. Wis. May 21, 2019), explains:

Background: Minority shareholders of several closely held corporations and various related trusts and beneficiaries brought action against majority shareholders and corporations, alleging fraud and violations of Wisconsin state law in connection with their rights as shareholders, and seeking declaratory judgment that creation of transfer restriction on shares gave majority shareholders the ability to manipulate the books to force minority stockholders to sell their shares to the controllers at an artificially-depressed price, which rendered right-of-refusal provision in transfer restriction unreasonable and unenforceable as a matter of law. Defendants moved to dismiss for failure to state a claim. ...

Holdings: The District Court, J.P. Stadtmueller, J., held that: ... 

2 transfer restriction was not invalid, unreasonable, or unenforceable;

In support of that holding, the Court explained that:

Wis. Stat. § 180.0627(4)(a) permits right-of-refusal transfer restrictions that “obligate the shareholder...first to offer the corporation or other persons, whether separately, consecutively or simultaneously, an opportunity to acquire the restricted shares.” Most courts in Wisconsin (and throughout the country) uphold these restrictions if they are “reasonable” and if the party against whom the restriction is asserted had notice of the restriction. Allen v. Biltmore Tissue Corp., 2 N.Y.2d 534, 161 N.Y.S.2d 418, 141 N.E.2d 812, 816 (N.Y. Ct. App. 1957); Bruns v. Rennebohm Drug Stores, 151 Wis.2d 88, 442 N.W.2d 591, 596 (Wis. Ct. App. 1989) (acknowledging that “close corporations have a special need to control the number and character of shareholders”); Casper v. Kalt-Zimmers Mfg. Co., 159 Wis. 517, 149 N.W. 754, 756 (Wis. 1914) (noting that right-of-refusal restrictions reflect sound business policy).2 However, “if the by-law under consideration were to be construed as rendering the sale of the stock impossible to anyone except to the corporation at whatever price it wished to pay, we would, of course, strike it down as illegal.” Allen, 161 N.Y.S.2d 418, 141 N.E.2d at 816. Although Wisconsin courts routinely uphold these types of provisions, some courts have held that rights-of-refusal should be narrowly construed. Frandsen v. Jensen-Sundquist Agency, Inc., 802 F.2d 941, 945–46 (7th Cir. 1986) (applying Wisconsin law and holding that a right-of-refusal is not triggered by a merger). Finally, it is worth noting that there is no legally mandated option price. Rather, the option price is set at the discretion of the corporation. See Nichols Constr. Corp. v. St. Clair, 708 F. Supp. 768, 771 (M.D. La. 1989), aff'd mem., 898 F.2d 150 (5th Cir. 1990) (holding that “the mere failure to pay ‘fair value’ for stock under a stock redemption agreement” is not “fraud or breach of fiduciary duty.”); F.B.I. Farms, Inc. v. Moore, 798 N.E.2d 440, 448 (Ind. 2003) (“to the extent that restriction devalues the shares in the hands of any individual shareholder by reason of lack of transferability, it is the result of the bargain they struck”); see also Stephen M. Bainbridge, Corporate Law, § 14.2 (3d ed. 2015) (explaining the aforesaid and noting that, where a right-of-refusal provision is in place, even option prices set at fair market value will be dramatically discounted by potential third party purchasers to account for the bargain's low likelihood of success).

Posted at 01:20 PM in Corporate Law, Dept of Self-Promotion |

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Yours truly cited in a case involving, of all things, the estate of Phyllis Schlafly

In a dispute over who is entitled to collect the proceeds from two life insurance policies taken out on the late Phyllis Schlafly by defendant Eagle Forum, a non-profit membership organization incorporated under the laws of Illinois, the court held that:

There is no merit in Andrew’s argument that members of Eagle Forum own Eagle Forum’s corporate property, i.e., the Policies. It is well-settled that members or shareholders of a corporation have no right to use or possess corporate property. Stephen M. Bainbridge, The Board of Directors as Nexus of Contracts, 88 Iowa L. Rev. 1, 3 n.5, 13 n.50 (2002) (“[O]wnership is not a particularly useful concept in the corporate context.... [S]hareholders have no right to use or possess corporate property.” (citing cases) )

Schlafly v. Eagle Forum, CV172522ESSCM, 2019 WL 2498768, at *5 n.4 (D.N.J. June 17, 2019). Andrew is a member of the defendant non-profit corporation and advanced various claims that the corporation's board of directors was misusing the proceeds. In one of his claims, "Andrew seeks to direct the insurance proceeds to the benefit of the class of Eagle Forum members into a constructive trust because the members of Eagle Forum, not Eagle Forum itself, are the rightful beneficiaries of the Policies."

in reply, the Court rued that "The plain language of the John Hancock and Lincoln National Policies are subject to one interpretation only: that Eagle Forum, not its membership, is the owner and primary beneficiary on the Policies." It then dropped the footnote to dismiss the alternative argument.

Posted at 01:14 PM in Dept of Self-Promotion |

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07/18/2019

My article, Enhanced Accountability: The Catholic Church’s Unfinished Business, has been posted to SSRN

Enhanced Accountability: The Catholic Church’s Unfinished Business (July 17, 2019). 53 University of San Francisco Law Review 165 (2019); UCLA School of Law, Public Law Research Paper No. 19-22. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3421795

Abstract: Events of the Summer 2018 brought the long running sexual abuse crisis in the Roman Catholic Church back onto the front pages, highlighting the role of diocesan bishops in covering up the scandal and enabling abusers. In response to these developments, the Church is again considering reforms to protect victims and punish abusers and enablers. This article proposes that the Church create a system for laity to anonymously report allegations, enact strong protections for whistleblowers, and impose a mandatory whistleblowing requirement on priests. As a 2018 Pennsylvania grand jury report demonstrates, however, the laity was reporting the abuse to the Church but the hierarchy buried those reports in secret files. The ultimate problem thus is not so much the lack of reporting, as it was the lack of action after the report. Accordingly, the article’s principal proposal is the creation of both diocesan and national disciplinary bodies led by expert lay members as the ultimate authorities in sex abuse cases. The proposal draws an analogy between these bodies and corporate audit committees and argues that a number of aspects of how audit committees function can be usefully adapted to the proposed review bodies.

Keywords: Roman Catholic Church, corporate governance, compliance, law and economics, credence good

Sadly, the article was finalized before the USCCB's June meeting. In anticipation of the proposals likely to be considered at the June meeting, the article was revised at the last minute to critique such ideas as the metropolitan model. I was able to get that critique into the public domain by posting a revised working draft of this paper to SSRN and by writing several short essays for Public Discourse. Although the article's criticisms did not prevail, the USCCB's June 2019 reforms have a three-year sunset provision. I hope my article will provide guidance for that review.

Posted at 07:40 AM in Dept of Self-Promotion, Religion |

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07/17/2019

New SSRN Posting--"Bob Cochran on Law and Lawyering--A Catholic Perspective"

Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3421790

Abstract

This essay is a contribution to a festschrift honoring Pepperdine law professor Robert Cochran. In addition to his many other professional accomplishments, Professor Cochran is a leading figure in the study of Law and Christianity.

One strain of Law and Christianity scholarship focuses on normative critiques of substantive legal issues based on Christian theology. In other words, it seeks to make the civil law more moral; i.e., to conform Man’s Law to God’s Law. A second strain seeks to help lawyers deal with the difficulties inherent in being a Christian and a lawyer. As Cochran has put it, one might ask “whether there is a connection between religious faith and what ordinary lawyers do in ordinary law offices on ordinary Wednesday afternoons.”

Cochran’s work has intersected both possibilities. In Part I of this Article, I tackle his analysis of the extent to which we should strive to harmonize God’s and Man’s Law. In Part II, I turn to Cochran’s analysis of the Christian lawyer’s vocation. In both parts, I come at his work from the perspective of a Roman Catholic called upon to give religious assent to both Christian scripture and, where I differ from Cochran, the Church’s Magisterium.

Keywords: law, jurisprudence, law and religion

Posted at 04:15 PM in Dept of Self-Promotion, Law, Law School, Religion |

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Apparently, I'm the Avis of corporate law professors

Readers of a certain age will recall Avis Rent-a-Car's slogan "We're #2. We try harder." Apropos of which I refer you to Robert Anderson's post: Citation Engagement Counts - The Case of Corporate Law Scholars:

Citation counts (and other types of citation-based metrics) are increasing in importance in the legal academy. Some people like the objectivity of these measures and others lament their failure to capture important non-quantifiable aspects of scholarly influence. Screen Shot 2019-07-17 at 2.30.40 PM

One of the most influential citation count rankings in the legal academy is the Sisk-Leiter approach that Greg Sisk updates every three years. Last fall when the new Sisk et al. citation count study came out I proposed a small change to the Sisk-Leiter method that would attempt to measure engagement, defined as citing a particular article more than once. This was designed to address the "throwaway" citation problem that critics of citation counts have raised--that some papers may receive a large number of perfunctory "one off" citations that are less meaningful as a measure of scholarly influence.

I decided to experiment with this using the most highly cited scholars in my field, corporate law and securities regulation, using the citation count rankings as compiled by Brian Leiter. ...

Although the two measures do produce slightly different ordinal rankings, the differences are not significant at least for this small group of 20 scholars. Professor Stephen Bainbridge moves up from third place to second place and Professor Donald Langevoort moves up from 7th place to 5th place.

Posted at 02:34 PM in Dept of Self-Promotion, Law School |

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