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Should we hold corporations liable or the officers and directors who run them? Specifically, social media companies?

A journalist recently posed the following question to me:

I'm looking at the U.K. Government's recent moves to add an amendment to its forthcoming Online Safety law, to create criminal sanctions for the executives of social media companies that are in breach of the law.

On the one hand, this suggests social media companies will work harder to comply with the British regulator that is enforcing the new guidelines, and this seems necessary given that so many of these firms have failed to prevent harm on their networks and have hitherto seen regulatory fines as a cost of doing business. On the other hand, this sort of move would also seem to do more to pierce the corporate veil, which could undermine efforts by corporations to mitigate risk for directors and employees.

The question of individual versus institutional liability is a very interesting one.

There is an argument for imposing civil liability on corporations and other institutions (i.e., legal persons) where their agents commit torts or breach contracts. A major function of civil liability, after all, is compensation of victims of malfeasance and misfeasance. The legal person will often have far deeper pockets than any of the natural persons amongst its stakeholders. Having one defendant rather than many, moreover, reduces tertiary costs for both parties and society.

Having said that, however, I'm not completely convinced. In the first place, most major corporate misconduct implicates senior corporate officials, such that a regime of personal--rather than corporate--liability would provide them with incentives to cause the corporate entity to insure against the risk of such losses, which satisfies the goal of compensation.

More important, however, the role of compensation as a justification for corporate liability is more complicated than one might think. In an important article, Vicarious Liability for Fraud on Securities Markets: Theory and Evidence, 1992 U. Ill. L. Rev. 691, Jennifer Arlen and William Carney tackled this question with regard to corporate liability for securities frauds committed by agents of the firm. As they demonstrate, when a corporation pays a large fine the resulting balance sheet effect is to reduce assets on the left side. On the right hand side, liabilities remain constant. To offset the decline in net assets, accordingly, shareholder equity must fall. As a result, the effect of civil monetary liability is to replace "one group of innocent victims with another: those who were shareholders when the fraud was revealed. Moreover, enterprise liability does not even effect a one-to-one transfer between innocent victims: a large percentage of the plaintiffs' recovery goes to their lawyers. Finally, enterprise liability may injure innocent people in addition to shareholders. For example, employees are injured if enterprise liability sends a firm into bankruptcy or causes it to lay off employees." Id. at 719.

The case for corporate criminal liability is even weaker. The principal functions of criminal liability are retribution and deterrence.

A corporation is not a moral actor. Edward, First Baron Thurlow, put it best: "Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and nobody to be kicked?" The corporation is simply a nexus of contracts between factors of production. As such, there is no moral basis for applying retributive justice to a corporation - there is nothing there to be punished.

So who do we punish when we force the corporation to pay fines? Since the payment comes out of the corporation's treasury, it reduces the value of the residual claim on the corporation's assets and earnings. In other words, the shareholders pay. Not the directors and officers who actually committed the alleged wrongdoing. Retributive justice is legitimate only where the actor to be punished has committed acts to which moral blameworthiness can be assigned. Even if you assume the corporation is still benefiting from alleged wrongdoing, the shareholders are mere holders in due course. It is therefore difficult to see a moral basis punishing them. They have done nothing for which they are blameworthy.

As always in corporate accountability, both efficiency and morality require that punishment be directed solely at those who actually commit wrongdoing. In this context, it would be the directors, officers, or controlling shareholders who actually committed the wrong. 

My conclusion in this regard was influenced in part by the Arlen and Carney paper, which argues for imposing liability on the corporation's agents: “we find that there is little reason to believe that enterprise liability is the superior rule from the standpoint of deterrence, and there are many reasons to suspect the contrary. The deterrent effect of the available monetary sanctions under agent liability probably exceeds the deterrent effect of enterprise liability because a civil judgment against an agent hurts his reputation more than does a sanction imposed by the firm in private. Moreover, the threat that sanctions will be imposed appears to be greater under agent liability. Agent liability places the responsibility of sanctioning wrongful agents with the victims, who have no reason not to proceed against them and have every reason to proceed. Enterprise liability, by contrast, places the responsibility of proceeding against the wrongful agents with the firm, and thus with the very agents (and their close associates) most likely to have committed fraud. Moreover, agent liability in effect enlists insurance companies as corporate monitors and disciplinarians, thereby eliminating the agency costs associated with firm managers monitoring and disciplining each other. Furthermore, the judgment proof problem under agent liability can be completely eliminated if, in addition to civil liability, the government imposes sufficient nonmonetary criminal penalties on agents, such as imprisonment.”

Holding individual corporate actors is not inconsistent with limited liability. As I explained in my book, Limited Liability: A Legal and Economic Analysis (Edward Elgar Publishing 2016), coauthored with M. Todd Henderson (Chicago Law), the purpose of limited liability is to encourage investment by shareholders. As the residual claimants on corporate assets and earnings, shareholders do not get a return on their investment until all other claims on the corporation have been satisfied. Because risk and return are positively correlated, shareholders prefer that the corporation take on risky, high return projects so that something will be left over after all other claimants have been paid. By insulating shareholders from the downside risk of firm investments, limited liability thus incentivizes shareholders to use their voting control of the corporation to elect directors who will opt for business activities consistent with the risk preferences of shareholders rather than those of the more risk averse fixed claimants.

Officers and directors are in a different position. To be sure, there may be arguments for limiting their liability exposure to shareholders through doctrines such as the business judgment rule, but those arguments do not apply to civil or criminal liability.

Footnotes are legal in California

Apropos my post the other day about Alan Palimter's smackdown of footnotes, Keith Paul Bishop passed along a link to a 2018 post of his, in which he observes:

My question for today is whether it is legal to use footnotes.  It turns out that this is a question that the California legislature has actually addressed in statute.   For example, Section 1363(c) of the California Health & Safety Code provides:

"Nothing in this section shall prevent a plan from using appropriate footnotes or disclaimers to reasonably and fairly describe coverage arrangements in order to clarify any part of the matrix that may be unclear." 

In other cases, however, the legislature discourages, but doesn't prohibit, footnotes.  See, for example, Insurance Code Section 10509.950 that provides:

"Insurers should, as far as possible, eliminate the use of footnotes and caveats and define terms used in the illustration in language that is understandable by a typical person within the segment of the public to which the illustration is directed."

The SEC's Regulation S-K includes numerous references to footnotes and in some cases actually requires footnote disclosure.   See, e.g., Instruction 1 to Item 402(c)(2)(v) and (vi) 

In short, California never met anything it didn't think was worth regulating. Including footnotes.

Keith goes on to discuss Gibbon's use of footnotes, which (I must confess) was news to me.

The Restatement of The Geography of Revlon-Land

As regular readers know, I am working on several projects relating to the tentative draft of the restatement of the Law of Corporate Governance. As I've plowed through the draft, I noticed that the drafters touch in passing on the geography of Revlon-land.

Reporter’s Note 3 to Section 2.01 comments in passing on the issue of when Revlon duties trigger, suggesting that “when a corporation is sold for cash” and “all of the shareholders will be cashed out” “the board may not balance the interests of shareholders against the interests of other stakeholders. This is the clear holding of Delaware’s Revlon case and a long line of other cases.” It is true that Revlon clearly held that when Revlon duties have triggered, there can be no consideration of interests other than those of the shareholders.

The implicit suggestion that Revlon is always triggered by a sale for cash, however, is controversial. True, dictum in some Delaware Chancery Court decisions suggest that that all cash and some mixed consideration sales trigger Revlon.[1]I have elsewhere argued that those decisions are inconsistent with controlling Delaware Supreme Court precedent.[2] In my view, the relevant Supreme Court precedents clearly indicate “that an acquisition by a publicly held corporation with no controlling shareholder that results in the combined corporate entity being owned by dispersed shareholders in the proverbial “large, fluid, changeable and changing market” does not trigger Revlon whether the deal is structured as all stock, all cash, or somewhere in the middle. The form of consideration is simply irrelevant.”[3]

I have also argued that the Chancery Court dicta is inconsistent with the policy concerns that motivated Revlon.[4]The Chancery Court dicta is premised on the notion that Revlon is concerned with “whether there will be a tomorrow for the shareholders,” but Revlon was mainly concerned with whether the structure of the transaction allows the market to redress any conflicts of interest on the part of the target directors.[5] As long as the acquirer is publicly held, the conflict of interest concerns are muted and “diversified shareholders will be indifferent as to the allocations of gains between the parties. In turn, those shareholders also will be indifferent as to the form of consideration.”[6] It is that approach to Revlonduties that the drafters should restate.

Scalia on Restatements of the Law

I am working away at a couple of law review articles about the tentative draft of the Restatement of the Law of Corporate Governance. In doing so, a friend pointed me to a great quote from Justice Scalia:

[M]odern Restatements . . . are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. . . . Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

Kansas v. Nebraska, 574 U.S. 445, 475–76 (2015) (Scalia, J., concurring in part) (citations omitted). I concur.

Lynn LoPucki "Chapter 11's Descent into Lawlessness"

Most of his work is outside of my wheelhouse, but I always learn something from Lynn's scholarship. You will too:

The bankruptcy courts that compete for big cases frequently ignore the Bankruptcy Code and Rules. This Article documents that lawlessness through a detailed examination of the court file in the Belk one-day Chapter 11 and a series of empirical studies.

Chapter 11’s lawlessness reached a new extreme in Belk. Belk filed in Houston on the evening of February 23, 2021. The court confirmed the plan at ten o’clock the next morning, and the parties consummated the plan that same afternoon. Almost none of Chapter 11’s procedural requirements were complied with. The court did not give the creditors notice of the disclosure statement or plan confirmation hearings until after those hearings were held. Belk filed no list of creditors’ names and addresses, no schedules, no statement of financial affairs, and no monthly operating reports. No creditors’ committee was appointed, no meeting of creditors was held, and none of the professionals filed fee applications. The ad hoc groups that negotiated the plan failed to file Rule 2019 disclosures. Because no schedules were filed, no proofs of claim were deemed filed. Only eighteen of Belk’s ninety-thousand creditors filed proofs of claim, and Belk apparently just made distributions to whomever Belk considered worthy.

The procedural failures in Belk are just the tip of the iceberg. The competing courts are looking the other way on retention bonuses, refusing to appoint mandatory examiners, failing to monitor venue or transfer cases, granting every request to reject collective bargaining agreements, and providing debtors with critical-vendor slush funds.

LoPucki, Lynn M., Chapter 11's Descent into Lawlessness. Forthcoming 96 American Bankruptcy Law Journal (June 2022), UCLA School of Law, Law-Econ Research Paper No. 21-12, Available at SSRN: https://ssrn.com/abstract=3946577

Steve Bank on Taxation’s Summer Blockbuster: A Review of Michael Keen & Joel Slemrod, Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages

My friend and UCLA colleague Steve Bank has a new article posted to SSRN:

In Rebellion, Rascals, and Revenue, Michael Keen and Joel Slemrod have written a fantastic book that collects and loosely organizes a treasure trove of anecdotes about tax systems, trivia, and events around the world and throughout history. In many respects the book, which endeavors to include stories about any type of tax, in any type of tax system, in any period in history, is overly ambitious. Nevertheless, Keen and Mick identify several common themes that persist over time. More contextualization might have revealed an omitted theme – the effect of societal changes on the development and adaptation of tax systems – but the book’s main contribution is in taking readers on a raucous ride through tax history that will leave them convinced that taxation is not only important, but exciting as well.

Bank, Steven A., Taxation’s Summer Blockbuster: A Review of Michael Keen & Joel Slemrod, Rebellion, Rascals, and Revenue: Tax Follies and Wisdom through the Ages (May 3, 2021). UCLA School of Law, Law-Econ Research Paper No. 21-05, Available at SSRN: https://ssrn.com/abstract=3838933

 

Best judicial smackdown of the year (maybe ever)

#appellatetwitter Also, the Ninth Circuit makes it official, holding that, as a matter of law, Disney’s THE LAST JEDI was “mediocre and schlocky.” https://t.co/G0RE56hPXP pic.twitter.com/Cxkstoy6Ji

— tedfrank 💉 (@tedfrank) June 1, 2021

Using Insider Reverse Veil Piercing to Vindicate the Free Exercise Rights of Close Corporation Shareholders

Kent Greenfield and Daniel Rubens want courts to invoke the legal fiction of corporate personhood to frustrate the free exercise rights of close corporation shareholders (although they frame the issue somewhat differently):

Corporations increasingly assert the right to discriminate, based either on free speech claims, religious freedom claims, or statutory claims arising from the Religious Freedom Restoration Act. Such claims have been considered by the Supreme Court in Hobby Lobby (RFRA) and Masterpiece Cakeshop (First Amendment), and in both cases the Court held in favor of the business.

In neither case, however, did the Court address a fundamental flaw with the arguments of the company asserting the speech and religion claims: that the claims depend on the rejection of corporate personhood. The putative religious and speech claims arose not from the beliefs of the companies but of their dominant shareholders. But corporate “personhood” means the interests of the firm are distinct from those of the shareholders. Allowing companies to assert the beliefs of shareholders as their own contradicts established doctrine and risks corporate manipulation of regulations designed to be generally applicable.

Greenfield, Kent and Rubens, Daniel, Corporate Personhood and the Putative First Amendment Right to Discriminate (April 29, 2021). Forthcoming in the Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman & Robert B. Thompson, eds.,Edward Elgar Publishing),  https://ssrn.com/abstract=3836962

As long time readers know, I am not a far of either veil piercing or reverse veil piercing in its role as a corporate law doctrine. To the contrary, I have urged its abolition as a corporate law doctrine.

But the fact that a doctrine is not fit for one purpose does not mean that the doctrine may not be fit for another purpose.

I believe that insider reverse veil piercing makes sense as a constitutional law doctrine. Indeed, in this context insider reverse veil piercing is the only doctrinal way of deciding when a corporation's shareholders may assert their free exercise rights when the state infringes on those rights by regulating their corporation.

I was prompted to examine this issue by a colloquy between U.S. District Court Judge Reggie Walton and Department of Justice lawyer Benjamin Berwick in Tyndale House Publishers, Inc. v. Sebelius, which was one of the cases that led up to the Holly Lobby decision:

Berwick argued that employers who chose to incorporate their business are precluded from raising First Amendment free exercise of religion-based objections to regulations affecting their business. In response, Judge Walton posed the following hypothetical:

[M]y wife has a medical practice. She has a corporation, but she’s the sole owner and sole stock owner. If she had strongly-held religious belief and she made that known that she operated her medical practice from that perspective, could she be required to pay for these types of items if she felt that that was causing her to violate her religious beliefs?

Berwick replied that the corporation and its shareholders are separate legal persons. The judge thereupon summarized his understanding of the government’s position as being that his wife would “have to go as an individual proprietor with no corporation protection in order to assert her religious right.” Berwick did not contest that characterization.

I find Berwick (and the government's) position on this issue nonsensical. According to Berwick, a sole proprietor could raise a valid free-exercise-based challenge to the mandate, but otherwise identically situated businesspersons who had incorporated their company lose the ability to do so. Talk about elevating form over substance, which often makes sense in a transactional setting but makes no sense when fundamental rights are at issue. Remember we dealing here with a right the Founders expressly embedded in the very first amendment to the Constitution.

Insider reverse veil piercing is the only doctrinal option that allows courts to make the sort of fine distinctions that are at issue here. As I explain in my article, Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers (March 6, 2013). The Green Bag, Vol. 16, No. 3, Spring 2013,  https://ssrn.com/abstract=2229414. In it, I assert that:

Invoking RVP in the mandate cases would not be outcome determinative. Instead, it would simply provide a coherent doctrinal framework for determining whether the corporation is so intertwined with the religious beliefs of its shareholders that the corporation should be allowed standing to bring the case.

I proposed a three-pronged version of RVP that should be adopted in the mandate cases:

Is there such substantial identity of the shareholder(s)’s religious beliefs and the manner in which the corporation is operated and the purposes to which it is devoted that the corporation is effectively the shareholder’s alter ego?

How strong is the government’s interest in ensuring that the corporation’s employees get the mandated insurance coverage?

Would reverse piercing this corporation’s veil advance significant public policies?

I elaborated that a court would balance a number of factors:

• Veil piercing is a close corporation doctrine.  In this context, in particular, a public corporation with many shareholders holding diverse views is a poor candidate for RVP-I. In contrast, a closely held corporation – even if quite large by metrics such as assets or employees – with a small number of shareholders holding common religious beliefs is a good candidate. 
• Do the corporation’s articles of incorporation include a statement of purpose referencing religious beliefs and goals? 
• Is the ownership structure of the corporation designed to ensure continuity of its religious purposes even after the original founders have retired or died? 
• Are the directors and officers of the corporation obliged to share the founders’ religious beliefs? If so, are they required to document that fact, such as by signing a statement of faith? 
• Are religious practices such as devotions, prayer, scripture reading, or worship services routinely made a part of corporate meetings? 
• Are such practices made available to employees?
• Is some substantial portion of the corporation’s profits donated to religious charities or otherwise used to advance the founders’ religious beliefs? The biblical concept of a tithe springs to mind here as a possible metric.

The more of these factors that a court finds to be present, the more willing the court should be to treat the corporation as the shareholder’s alter ego.

In Hobby Lobby, no less than 44 corporate law professors--including Greenfield--thought it necessary to file an amicus brief arguing that the essence of a corporation is its “separateness” from its shareholders and that, on the facts of these cases, there is no reason to disregard the separateness between shareholders and the corporations they control. My argument apparently so scared the 44 professors that their brief expressly tackled my argument, asserting that my “argument fundamentally misunderstands the reverse piercing remedy.”

In fact, it was the 44 professors' brief that was replete with errors, overstated claims, or red herrings, and misdirection. I took on the brief in  A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobbyand Conestoga Wood (February 21, 2014). 100 Virginia Law Review Online 1 (2014),  https://ssrn.com/abstract=2399638

My article ticked off a lot of problems with the brief, as the table of contents will suggest:

II. The Brief Overstates the Corporation’s Separateness From Its Owners

III. The Corporation’s Separate Existence Does not Always Protect Shareholders from Liability for Corporate Debts

IV. The Brief’s Attack on Reverse Veil Piercing is Overstated and Inaccurate

A. The Brief Misrepresents Hobby Lobby’s and Conestoga Wood’s Argument 

B. The Law Does Not “Strongly Oppose” Reverse Veil Piercing

C. The Brief’s Sleight of Hand Should Not Obscure the Important Policy Issues at Stake

D. The Supreme Court Should Invoke RVP-I to Prevent the Government from Continuing its “Shell Game”

E. Applying RVP-I in the Contraception Mandate Cases Would not be “Disruptive to Business”

1. Protecting the Minority Shareholders’ Interests is Straightforward 

2. The Brief’s Misleading Use of Cede & Co. v. Technicolor, Inc.

F. RVP is not Outcome Determinative 

G. Even Assuming RVP-I Would Give Hobby Lobby and Conestoga Wood a “Competitive Advantage,” They Would not be Alone 

H. RVP-I Will Not Lead to “Disruptive Proxy Contests” 

At bottom, however, my core objection goes to a point Douglas Laycock made that echoed Judge Walton's point:

Laycock observes that:

The threshold issue in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius is whether any plaintiff’s free exercise of religion is substantially burdened within the meaning of the Religious Freedom Restoration Act.

On that issue, the government’s argument is a shell game. Only the individuals have religious-liberty rights; only the corporations are regulated. And more: Even the individuals have no rights when they act or refuse to act as directors, officers, or managers of the corporation. Not only are the individuals separate persons from the corporation, but the individuals are divided into additional separate persons, depending on the capacity in which they act. This is formalism in the extreme.47

By advancing the same sort of extreme formalism, the Brief provides academic cover for the government's shell game.

In Barium Steel Corp. v. Wiley,the Pennsylvania Supreme Court allowed a RVP-I claim so as to prevent just such a shell game. In that case, the court allowed the plaintiff shareholder (itself a corporation) to pierce the veil in reverse to recover damages suffered by a later-created subsidiary due to a breach of warranty, on the grounds that absent RVP, the defendants would never be liable for their breach due to lack of privity with the sub and the fact that the sub was not an intended third-party beneficiary.The Supreme Court likewise should use RVP-I in this case to prevent just such a shell game.

As I have argued elsewhere, the corporation is not a real entity and to argue the contrary is “transcendental nonsense." The legal fiction of corporate personhood should not stand in the way of free exercise of religious belief by shareholders of a closely held incorporated business.

For more on veil piercing, see:

What do Delaware Vice Chancellor Sam Glasscock, Mr. Burns, and Col. Potter have in Common?

In Thomas Sweeney, et al. v. RPD Holdings Group, LLC, et al. [Dandrea Holdings], C.A. No. 2020-0813-SG, letter op. (Del. Ch. May 27, 2021), VC Glasscock explains that:

Fifteenth century Italian financier Lorenzo de Tonti promoted an investment vehicle that was a mix of joint tenancy, life insurance and the lottery. In the tontine, investors paid a sum into the vehicle that was never to be repaid. Instead, once the vehicle was subscribed, the investor received modest annuity payments. The payments for each unit were fixed. Nonetheless, the investment was attractive to investors of a sporting nature, because as each unit-holder died, his right to receive payments went not to his heirs, but was spread among the surviving unit-holders, so that the last alive received cumulative annuities that were large indeed.

1 See, e.g., Agatha Christie, 4:50 from Paddington (1957); see also The Simpsons: The Curse of the Flying Hellfish (Fox television broadcast Apr. 28, 1996).

The Chancery Daily reminds us of the pertinent Simpson's dialogue:

Burns: How many of you are familiar with the concept of a "tontine"?

[all stare at him, until Ox raises his hand]

Burns: All right, Ox. Why don't you take us through it?

Ox: Duh, essentially, we all enter into a contract whereby the last surviving participant becomes the sole possessor of all them purty pictures.

Burns: Well put, Oxford.

What came to my mind, however, was Mash S08E18 "Old Soldiers":

Sadly, I must relate that the opinion has very little to do with a tontine. It's a motion to dismiss for forum non conveniens.

New Video on the Parable of the Talents

Recommended Reading: John Paul II's Contribution to Law

Domingo Osle, Rafael, John Paul II's Contribution to Law (January 28, 2021). Available at SSRN: https://ssrn.com/abstract=3774948 or http://dx.doi.org/10.2139/ssrn.3774948

This chapter examines John Paul II’s contribution to law as a statesman, world leader, and universal pastor of the Roman Catholic Church. John Paul II’s approach to the law was shaped by the stark realities of having suffered firsthand the injustice of two totalitarian regimes and the cruelties of the Second World War. An ardent defender of human rights, especially the rights to life and religious liberty, John Paul II saw in human dignity and human solidarity the two great levers for advancing the development of legal systems. Lastly, this chapter explores John Paul II’s invaluable role in updating and reforming the canon law of the Catholic Church. He had a singular role in promulgating the Code of Canon Law of 1983, the Code of Canons of the Eastern Churches of 1990, and the Apostolic Constitution Pastor Bonus of 1988 on reforming the Roman Curia. For these and other relevant legal contributions, John Paul II well deserves the title of jurist.

Cleary Gottlieb discusses Biden Administration Labor Department's refusal to enforce rules requiring ERISA fiduciaries to put plan beneficiary welfare ahead of woke policy preferences

Although I'm sure Cleary would not approve of my headline:

On Wednesday, March 10, after engaging in conversations with stakeholders, the U.S. Department of Labor’s Employee Benefits Security Administration issued an enforcement policy statement in which it declined to enforce two DOL rules put in place by the Trump administration in 2020.

I.e., stakeholders like Senators Sanders and Warren.

The first of these rules placed limitations on the ability of plans subject to ERISA to invest in environmental, social and governance (“ESG”) funds. In particular, it provided that a fiduciary’s duty of loyalty and prudence under ERISA would only be satisfied if investments were selected solely on the basis of pecuniary factors (defined as factors that have a material effect on the risk and return of an investment), and that ESG factors could only be considered to the extent they created economic risks or opportunities that qualified investment professionals would treat as material economic considerations under generally accepted investment theories. ...

A related second rule provided that ERISA plan fiduciaries could not harness plan assets to vote on policy-related, political or ESG issues in proxy resolutions that are not solely in the economic interests of plan participants and beneficiaries or likely to enhance the economic value of the plan’s investment. 

So if you're a beneficiary of an ERISA regulated retirement plan, for example, you'll no longer be able to rest confidently that the plan managers are putting your interests ahead of woke politics.

Marcia Narine Weldon on "The Business Case For Promoting Lawyer Well-Being"

In an important post that really resonated with my memories of life practicing law, Professor Weldon addresses the evidence that there is a business case for BigLaw firms to pay attention to the well-being, health, and happiness of their partners and associates.

Book Recommendations About Business and Transactional Lawyering

I frequently get questions from students for recommendations of books that will give them basics about business and finance, as well as being a transactional lawyer. Many of these students come from a non-business background and need something to get up to speed. Some of my favorite book recommendations for these students include:

I also recommend that students read general market books about business and lawyering. It gives them a feel for what the real world's like outside of textbooks. Some of my favorites are out of print, but here's a few recommendations:

And then, of course, there's my books:

Recommended reading: Ramseyer on Contracting for Compassion in Japanese Buddhism

My friend and coauthor Mark Ramseyer is a Japanese law polymath, as well as a brilliant writer. I always enjoy his stuff, even when the legal issues in question are outside my wheelhouse. In this case, however, when I spent May 199 teaching at a Japanese law school, Helen and I had occasion to visit one of the temples about which Mark writes. They were incredibly poignant and heart breaking. The gardens were filled with these little statutes with knit hats.

Abstract: In the 1960s, Japanese women began asking temples to perform commemorative ceremonies for the fetuses or children they had aborted. They still do. Physicians have been able to perform abortions legally since 1952, and many women have had them. The ceremonies do not fit within the classic rituals offered by the temples, but many Japanese women find them helpful. They ask for the services. The temples respond.

The temples charge for these memorial services. They rely on such fee-for-service arrangements for an increasingly important segment of their finances. Traditionally, priests had stood ready to offer their parishioners counseling and ritual as needed during the existentially troubling passages in their lives. In exchange, their local communities had effectively kept the temple on retainer. This no longer works. The temples stand in low levels of tension with the surrounding society (as Stark put it). As such, they cannot trust their parishioners to give voluntarily. Instead, they had counted on the constraining power of the tightly intertwined social network within the local community.

Over the course of the 20th century, Japanese migrated out of these tightly structured villages to the often anomic cities. Without a coercive village structure to enforce giving, the low-tension temples found themselves without their effective retainer. With the first-best contract unavailable, many temples have turned to fee-for-service arrangements — of which the abortion-related ritual is merely the most notorious. Ironically, the new environment presents an entirely different challenge: temples now find themselves competing with internet-based priest-dispatch services.

Ramseyer, J. Mark, Contracting for Compassion in Japanese Buddhism (September 10, 2020). Harvard Law School John M. Olin Center Discussion Paper No. 1039, 2020, Available at SSRN: https://ssrn.com/abstract=3688691 or http://dx.doi.org/10.2139/ssrn.3688691