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Steve Bainbridge
Interests: Law, corporate governance, economics, politics, religion, education, books, food, and wine
Recent Activity
No brag, just fact: Dear Stephen Mark Bainbridge: Your paper, "CORPORATE DIRECTORS IN THE UNITED KINGDOM", was recently listed on SSRN's Top Ten download list for: LSN: Corporate Law (Topic). As of 24 April 2017, your paper has been downloaded 95 times. You may view the abstract and download statistics at: https://ssrn.com/abstract=2935388. Top Ten Lists are updated on a daily basis. Click the following link(s) to view the Top Ten list for: LSN: Corporate Law (Topic) Top Ten. Click the following link(s) to view all the papers in: LSN: Corporate Law (Topic) All Papers. To view SSRN's Top Ten lists... Continue reading
Posted yesterday at ProfessorBainbridge.com
Bloomberg Securities Regulation and Law Report advises that: House Financial Services Chairman Jeb Hensarling (R-Texas) wants to require anyone seeking to put a proposal on the corporate ballot to hold a minimum of 1 percent of a company's outstanding stock for three years. Currently, shareholders with as little as $2,000 in shares for a year or more can do so. The shareholder proposal rule (SEC Exchange Act Rule 14a-8), of course, has been abused by so-called gadflies for years who put forward proposals that often have little to do with the company's business and sometimes are even inimical to the... Continue reading
Posted 4 days ago at ProfessorBainbridge.com
I saw this interesting news story: A new study published in The Monthly Notices of the Royal Astronomical Society suggests that most habitable planets are wet. Like, extremely wet. Using computer models, astronomer Fergus Simpson from the Institute of Cosmos Science at the University of Barcelona found that habitable exoplanets, at least simulated ones, tend to be overrun by water, in most cases accounting for 90 percent or more of the total surface area. Being a science fiction fan of a certain age, the story immediately called to mind James Blish's classic short story Surface Tension, which you can find... Continue reading
Posted 5 days ago at ProfessorBainbridge.com
Probably not. Keith Paul Bishop explains: The Nevada Supreme Court has not expressly held that the laws for piercing the corporate veil under the alter-ego doctrine apply to LLCs, but it has applied those rules in the LLC context, “assum[ing] without deciding that” the corporate analysis applies. Pharmaplast S.A.E. v. Zeus Medical Holdings, LLC, et al. Case No. 2:15-cv-002432-JAD-PAL. (D. Nevada, March 14, 2017) (footnote omitted citing Webb v. Shull, 270 P.3d 1266, 1271 n.3 (Nev. 2012) and JSA, LLC v. Golden Gaming, Inc., 2013 Nev. Unpub. LEXIS 1449 (Nev. 2013)). Judge Dorsey could have, but did not mention, that... Continue reading
Posted 5 days ago at ProfessorBainbridge.com
Jonathan Adler makes the case that it does here. Continue reading
Posted 5 days ago at ProfessorBainbridge.com
The legal profession tips left (very), but it turns out that the legal academy is even further left than the professional ranks from which it is drawn, as Jonathan Adler comments: A new paper by Adam Bonica (Stanford University), Adam S. Chilton (University of Chicago), Kyle Rozema (Northwestern University) and Maya Sen (Harvard University), “The Legal Academy’s Ideological Uniformity,” provides some answers. Their bottom line: The legal academy is significantly more liberal than the legal profession, which is notable because the legal profession itself is more liberal than the public at large. ... I’ve certainly argued that the ideological uniformity... Continue reading
Posted 5 days ago at ProfessorBainbridge.com
Just go read the whole thing and then join me in a heavy sigh and world weary shake of the head. Continue reading
Posted 5 days ago at ProfessorBainbridge.com
I was chatting recently with a young friend about whether it is possible to be spiritual without being religious. Put another way, is it possible to believe in Jesus without believing in His Church? I took the position that it is not. But I recognized that a growing cohort, especially among the young, take the contrary position. Now, as it happens, I am currently reading Evangelical Exodus: Evangelical Seminarians and Their Paths to Rome , which is a collection of essays by young (mostly) Evangelicals who made/are making the same transition I made almost 20 years ago from being an... Continue reading
Posted 5 days ago at ProfessorBainbridge.com
Bainbridge and Anabtawi's Mergers and Acquisitions now available for law school course adoption. https://t.co/mSICOAodWt pic.twitter.com/jNN8WX4d3M — Professor Bainbridge (@ProfBainbridge) April 19, 2017 Continue reading
Posted 6 days ago at ProfessorBainbridge.com
Thilo Kuntz of the University of Bremen Faculty of Law has posted an extensive review of Todd Henderson & my book on limited liability. Kuntz concludes: Bainbridge and Henderson’s book has a lot to offer for readers interested in limited liability and veil piercing. They provide a rich survey of the most important US-literature in the field and add to the discussion by bringing new and interesting arguments to the table. Taking into account how long this debate has been going on and the sheer mass of contributions, this is by no means a small feat. That the authors try... Continue reading
Posted 7 days ago at ProfessorBainbridge.com
Adler: The existence of ideological imbalance on law school faculties has been documented in numerous studies. Analyses of law school hiring, political contributions, and legal scholarshipall find left-right disparities. While most law schools have a few token right-leaning professors, these scholars are often relegated to “private law” subjects (e.g., business, contracts, intellectual property), and are less prevalent in “public law” subjects (e.g., constitutional law). Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court. As a consequence, at many law schools, students rarely encounter the forceful articulation of... Continue reading
Posted Apr 13, 2017 at ProfessorBainbridge.com
NYSE Listed Company Manual § 303A.02 provides a number of tests for determining whether directors of a company are independent. Most of them are fairly bright line rules, but there is a key provision that is often overlooked: No director qualifies as "independent" unless the board of directors affirmatively determines that the director has no material relationship with the listed company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the company). Hence, even if the nominally independent director satisfies the specific requirements, the board should still treat a director as not... Continue reading
Posted Apr 12, 2017 at ProfessorBainbridge.com
From today's WSJ: Two years ago, Northwestern University professor, noted feminist and cultural critic Laura Kipnis found herself targeted by student protesters when she wrote an essay in the Chronicle of Higher Education questioning the campus panic about sexual violence. The students went so far as to file a Title IX “hostile environment” complaint against Ms. Kipnis. Ultimately she was cleared of any wrongdoing, but it was a Kafkaesque ordeal at the hands of what she calls, in her new book, the school’s “midwestern Torquemadas.” Thankfully, the experience did not silence her but made her all the more determined to... Continue reading
Posted Apr 11, 2017 at ProfessorBainbridge.com
William McGurn offers a compelling critique of the recent incident at Claremont McKenna in which respected conservative speaker Heather Mac Donald was effectively silenced by a radical student mob: Ms. Mac Donald had been invited to talk about her book “The War on Cops” at Claremont McKenna College’s Marian Miner Cook Athenaeum. Among her arguments is that if you truly believe black lives matter, maybe you should recognize “there is no government agency more dedicated to the proposition” than the police who protect the law-abiding minority residents of high-crime neighborhoods. You can imagine how well that goes over. At City... Continue reading
Posted Apr 11, 2017 at ProfessorBainbridge.com
From Berkshire Hathaway's 2017 annual meeting proxy statement: Mr. Tom Beers and Ms. Mary Durfee are the joint owners of 100 shares of Class B Common Stock and have given notice that a representative of Clean Yield Asset Management intends to present for action at the meeting the following proposal. Resolved, that the shareholders of Berkshire Hathaway Inc. (“Company”) hereby request that the Company provide a report, updated semiannually, disclosing the Company’s: 1. Policies and procedures for making, with corporate funds or assets, contributions and expenditures (direct or indirect) to (a) participate or intervene in any political campaign on behalf... Continue reading
Posted Apr 7, 2017 at ProfessorBainbridge.com
Anthony Rickey and Ben Edwards (who was inadvertently omitted from an earlier version) posts: After Delaware prohibited fee-shifting provisions in corporate bylaws,[1] scholars considered alternate means by which corporations might use private ordering to limit the ability of stockholder plaintiffs to bring lawsuits challenging corporate actions. For instance, Professor Sean Griffith suggested that corporations should adopt “no pay” provisions that, unlike fee-shifting provisions, would prohibit a corporation from paying the legal fees of stockholder plaintiffs.[2] Griffith’s proposal is similar to one put forward by another Delaware practitioner shortly before the fee-shifting ban.[3] Other commentators have suggested that such “no pay”... Continue reading
Posted Apr 7, 2017 at ProfessorBainbridge.com
The WSJ reports: Tech companies are structuring their IPOs so that founders and executives wind up with far more votes than actual shares. The exaggerated voting power gives those few shareholders dominance over all corporate decisions, ranging from the election of directors to whether to sell the company someday. About 15% of the tech companies that went public in the U.S. between 2012 and 2016, including Facebook Inc., Fitbit Inc. and Twilio Inc., did so with at least two classes of stock, up from 8% between 2007 and 2011, according to data compiled by University of Florida finance professor Jay... Continue reading
Posted Apr 4, 2017 at ProfessorBainbridge.com
Interesting new article makes the case that board-managed structures are often poor choices for LLCs: The familiarity with corporate boards may prompt some business owners and their advisors to consider creating board-managed LLCs. Business owners who adopt such structures may be sorry for doing so for a number of reasons. Generally speaking, such structures are too complicated for closely held LLCs, which would benefit from simpler member-managed or manager-managed structures. Because LLC statutes generally do not provide for board-managed LLCs, boards of LLCs generally are the product of management provisions in LLC operating agreements. The lack of a statutory framework... Continue reading
Posted Apr 4, 2017 at ProfessorBainbridge.com
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Friend of the blog Francis Pileggi's post from last year on The Williams Companies, Inc. v. Energy Transfer Equity, L.P., prompted a mild rant on my part about lawyers using "best efforts" and its variants without understanding its meaning. Francis now reports on a Supreme Court decision in that case, which produced a 4-1 split, with CJ Leo Strine dissenting. Oddly, neither opinion cites my blog. Most curious. Anyway, Francis observes: The legal meaning of the phrase “commercially reasonable efforts” does not enjoy clarity in the law. Lawyers and jurists alike should be excused if they view the law on... Continue reading
Posted Mar 30, 2017 at ProfessorBainbridge.com
I am a great admirer of Bill Bratton's work in corporate law, which is always learned, informed, and provocative. His latest essay, The Separation of Corporate Law and Social Welfare, available at SSRN: https://ssrn.com/abstract=2927150, is no exception. As the abstract explains: A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like... Continue reading
Posted Mar 30, 2017 at ProfessorBainbridge.com
I've spent my professional life studying the American public corporation, but for a while I've been worried that the next generation of corporate law scholars may have to find other subjects of study. See, e.g., Corporate Governance and U.S. Capital Market Competitiveness (October 22, 2010). UCLA School of Law, Law-Econ Research Paper No. 10-13. Available at SSRN: https://ssrn.com/abstract=1696303 A new paper by Kathleen Kahle and René Stulz appears to confirm many of my worst fears. They've summarized the paper at the Harvard blog: In Is the American Public Corporation in Trouble?, we examine the evolution of U.S. public corporations over... Continue reading
Posted Mar 25, 2017 at ProfessorBainbridge.com
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Five more courses to go for my Certificate in Catholic Doctrine: Continue reading
Posted Mar 25, 2017 at ProfessorBainbridge.com
From the Washington Legal Foundation: On March 17, 2017 WLF filed comments with SEC in response to Acting Chairman Piwowar’s January 31 request for input on the Conflict Minerals Rule. WLF seeks repeal of the rule, which implements § 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, because the rule is having the exact opposite effect of what it intended. The rule curbs demand for “conflict minerals” like tin, tantalum, and tungsten in order to reduce violence in the Democratic Republic of Congo mining communities where these minerals originate. But the high costs of rule compliance (and... Continue reading
Posted Mar 24, 2017 at ProfessorBainbridge.com
"Corporate Directors in the United Kingdom" by @ProfBainbridge @UCLA - https://t.co/6kYjR4KISb #corpgov #directors #UK — OBLB (@OxfordBLB) March 24, 2017 Continue reading
Posted Mar 24, 2017 at ProfessorBainbridge.com
A new article by Kelvin Low addresses the titular debate: Of all the duties a law student encounters in the study of law, few will prove as bewildering as fiduciary duties. Whilst their core is supposed to be “relatively clear”,1 the wider content of fiduciary obligations continue to elude us. Whilst we know that fiduciaries are expected to avoid unauthorised profits and conflicts of interests, whether any fiduciary duties exist beyond this core remains controversial. Beyond a few established categories of fiduciary relationships such as trustee and beneficiary, 2 director and company,3 agent and principal,4 partners, 5 and solicitor and... Continue reading
Posted Mar 24, 2017 at ProfessorBainbridge.com