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The Emergence And Influence Of Transactional Practice Within Clinical Scholarship, Paul R. Tremblay Oct 2019

The Emergence And Influence Of Transactional Practice Within Clinical Scholarship, Paul R. Tremblay

Boston College Law School Faculty Papers

This essay, in honor of the twenty-fifth anniversary of the founding of the Clinical Law Review, reflects on the gradual emergence, and the limited influence, of transactional practice within clinical scholarship as reflected by writing in the Clinical Law Review since 1994. The essay offers three observations. First, a review of the fifty or so published issues of the journal demonstrates that writing about transactional practice has increased demonstrably between 1994 and 2019. Second, that development notwithstanding, it appears that when writers, even in recent years, write about lawyering in some generalizable fashion, the examples that appear in those works ...


Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield Mar 2019

Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield

Boston College Law School Faculty Papers

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance ...


Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield Nov 2018

Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield

Boston College Law School Faculty Papers

No abstract provided.


How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones Aug 2018

How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones

Boston College Law School Faculty Papers

No abstract provided.


The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin Aug 2018

The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin

Boston College Law School Faculty Papers

Although much attention has been given to structural inequality as it manifests in the criminal justice context, little has been said about economic inequality as it relates to the startup ecosystem. This Article details how the historic creation of the wealth gap affects entrepreneurship, highlighting how the wealth gap adversely impacts entrepreneurs of color. Entrepreneurship is a compelling solution to wealth inequality, but wealth inequality can be an impediment to success in entrepreneurship. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup ...


Constraining And Channeling Corporate Political Power In Trump’S America, Kent Greenfield Jan 2018

Constraining And Channeling Corporate Political Power In Trump’S America, Kent Greenfield

Boston College Law School Faculty Papers

This chapter explores answers to the policy problems created by Citizens United, focusing on the possibility of using corporate governance to transform corporations into positive players in the public space.


At Your Service: Lawyer Discretion To Assist Clients In Unlawful Conduct, Paul R. Tremblay Jan 2018

At Your Service: Lawyer Discretion To Assist Clients In Unlawful Conduct, Paul R. Tremblay

Boston College Law School Faculty Papers

The common, shared vision of lawyers’ ethics holds that lawyers ought not collaborate with clients in wrongdoing. Ethics scholars caution that lawyers “may not participate in or assist illegal conduct,” or “giv[e] legal services to clients who are going to engage in unlawful behavior with the attorney as their accomplice.” That sentiment resonates comfortably with the profession’s commitment to honor legal obligations and duties, and to fidelity to the law.

The problem with that sentiment, this Article shows, is that it is not an accurate statement of the prevailing substantive law. The American Bar Association’s model standards ...


The Unicorn Governance Trap, Renee M. Jones Dec 2017

The Unicorn Governance Trap, Renee M. Jones

Boston College Law School Faculty Papers

The recent trend of large-scale start-up companies delaying an IPO creates a new kind of corporate governance problem. The prevalence of “unicorns” – privately held companies with market valuations of $1 billion or more – means the disciplinary mechanisms on which investors traditionally relied no longer function to prevent misconduct or mismanagement by unicorn founders. High profile frauds by unicorns like Zenefits and Theranos, and the recent travails of Uber highlight the need to rethink unicorn governance structure. These burgeoning controversies call for reconsideration of legal reforms that allow unicorns to remain for protracted periods in an ill-defined limbo between private and ...


Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Kent Greenfield, Daniel A. Rubens Nov 2017

Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Kent Greenfield, Daniel A. Rubens

Boston College Law School Faculty Papers

Professor Greenfield was the principal author of an amicus brief on behalf of 33 corporate law professors in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued in December 2017. The brief argues that shareholders’ religious and political beliefs should not be projected onto a corporation for purposes of First Amendment accommodation.


Corporate Migrations And Tax Transparency And Disclosure, Diane M. Ring Oct 2017

Corporate Migrations And Tax Transparency And Disclosure, Diane M. Ring

Boston College Law School Faculty Papers

Migration, broadly defined, characterizes the movement of peoples and businesses across borders. The latter part of the 20th century saw notable business expansion across borders spurred by currency, capital, and investment restrictions and by the increased ability to manage global activities through technology and communications. Twenty plus years into this business globalization, we have witnessed the dramatic rise of transparency and disclosure rules and regimes. These regimes, which have dominated much of global international tax reform, include: (1) country-by-country reporting of tax information, (2) automatic exchange of tax rulings among jurisdictions, and (3) disclosure of beneficial ownership of entities. In ...


The Ethics Of Representing Founders, Paul R. Tremblay Aug 2017

The Ethics Of Representing Founders, Paul R. Tremblay

Boston College Law School Faculty Papers

Lawyers assisting entrepreneurial startups frequently work with individual founders before any formal organizational client materializes. In advising founders about such legal matters as whether to establish an entity, and if so which entity best fits the needs of the enterprise, as well as how to arrange the owners’ relationships within the business, the lawyer necessarily has an attorney-client relationship with someone. The prevailing scholarship about startup representation pays surprisingly little attention to the posture of the lawyer and her founder clients in the pre-organization context. This Article investigates the lawyer’s responsibilities and commitments in depth.

A lawyer working with ...


The Irrational Actor In The Ceo Suite: Implications For Corporate Governance, Renee M. Jones Jun 2017

The Irrational Actor In The Ceo Suite: Implications For Corporate Governance, Renee M. Jones

Boston College Law School Faculty Papers

This Article challenges corporate governance theorists’ standard assumptions regarding the rationality of business leaders. It reviews scholarly research that documents the presence of irrational actors among senior corporate managers and considers the impact these executives might have on corporations and society. The Article focuses analysis on psychological literature that explores why risk-related decision-making often goes wrong.

Research shows that many individuals have a dysfunctional approach to risk that leads them to engage in self-destructive conduct. A non-trivial number of individuals with problematic personality traits work at high levels of major corporations where they have the capacity to cause significant harm ...


The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin May 2017

The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin

Boston College Law School Faculty Papers

The economic, political, and social volatility of the sixties and seventies, out of which clinical legal education was born, has certain mythical qualities for most law students, and perhaps some law professors. America still bears the scars of the economic policies of those previous eras, such as redlining, blockbusting, poverty and urban decay. While the realities of the era may seem out of reach for many of our students, those policies arising out of that era have contributed to the wealth gap in this country, which has worsened over the last twenty years. Now more than ever, society needs social ...


Amicus Brief: Koshy V. Sachdev, Brian J.M. Quinn, Niloufar Abae, Alex Pena Mar 2017

Amicus Brief: Koshy V. Sachdev, Brian J.M. Quinn, Niloufar Abae, Alex Pena

Boston College Law School Faculty Papers

No abstract provided.


Rebellious Strains In Transactional Lawyering For Underserved Entrepreneurs And Community Groups, Paul R. Tremblay Oct 2016

Rebellious Strains In Transactional Lawyering For Underserved Entrepreneurs And Community Groups, Paul R. Tremblay

Boston College Law School Faculty Papers

In his 1992 book Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice, Gerald Lopez disrupted the conventional understandings of what it meant to be an effective poverty lawyer or public interest attorney. His critiques and prescriptions were aimed at litigators and lawyers similarly engaged in struggles for social change. His book did not address the role of progressive transactional lawyers. Today, transactional lawyers working in underserved communities are far more common. This Essay seeks to apply Lopez’s critiques to the work of those practitioners.

I argue here that transactional legal services, or TLS, on behalf of subordinated ...


Uk Alternative Business Structures For Legal Practice: Emerging Models And Lessons For The Us, Judith A. Mcmorrow Sep 2016

Uk Alternative Business Structures For Legal Practice: Emerging Models And Lessons For The Us, Judith A. Mcmorrow

Boston College Law School Faculty Papers

Alternative Business Structure (ABS) law firms in the United Kingdom allow for non-lawyer owners and investors. This Article analyzes several new U.K. ABS law firms and offers an optimistic assessment of the benefits of these new firm models. ABS firms have created systems that improve legal services for the target clients and have mitigated the negative aspects of lawyer-centric thinking that pervades many traditional firms. ABS firm structure has provided access to capital to allow for investment in employee development and creative use of technology. The ABS form has brought some unregulated activities under the control of regulators and ...


End Delaware’S Corporate Dominance, Kent Greenfield Jan 2016

End Delaware’S Corporate Dominance, Kent Greenfield

Boston College Law School Faculty Papers

It is undemocratic for Delaware to dominate the terms of corporate governance in the US.


The Principle Of Subsidiarity And The Law Of The Family Business, Scott T. Fitzgibbon Jan 2016

The Principle Of Subsidiarity And The Law Of The Family Business, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

There is a considerable incongruity between the ends and aims of the business association, on the one hand, and the ends and aims of the family -- and thus of most family businesses -- on the other. This Essay proposes a principle for the guidance of the law in such matters. This is the principle of subsidiarity, which instructs government and the law to recognize the smaller organizations of society and to foster their functioning along lines appropriate to their purposes and along the lines intended by their principals.

This Essay develops an especially rich account of the principle of subsidiarity, according ...


The Problem Of Nonprofit Executive Pay?: Evidence From U.S. Colleges And Universities, Brian D. Galle, David I. Walker Apr 2015

The Problem Of Nonprofit Executive Pay?: Evidence From U.S. Colleges And Universities, Brian D. Galle, David I. Walker

Boston College Law School Faculty Papers

Nonprofit organizations suffer from agency problems that are similar to or perhaps even more severe than those observed at for-profit companies. As a result, one might expect the executive pay setting process in the two sectors to reflect similar deficiencies. This Article explains why the managerial power theory that was developed to help explain for-profit executive pay is plausibly applicable to nonprofits. More importantly, this Article offers new evidence based on data from a large panel of colleges and universities collected across a nine year period that supports the idea that potential stakeholder outrage plays a role in limiting nonprofit ...


A Skeptic's View Of Benefit Corporations, Kent Greenfield Jan 2015

A Skeptic's View Of Benefit Corporations, Kent Greenfield

Boston College Law School Faculty Papers

Over the last few years there has been a shift in the core ideas of business with respect to corporate responsibility. A new type of business classification called benefit corporations is gaining popularity in the United States. Benefit corporations are required to have a positive impact on society and the planet, and to meet a higher level of accountability and transparency. However, will benefit corporations truly change the industry and world positively? This article provides for skepticism about the positive affects benefit corporations are purported to have on business. One reason is that benefit corporations are completely voluntary; thus, the ...


Sticking The Landing: Making The Most Of The “Stakeholder Moment”, Kent Greenfield Jan 2015

Sticking The Landing: Making The Most Of The “Stakeholder Moment”, Kent Greenfield

Boston College Law School Faculty Papers

This paper illustrates that the shareholder primacy model is still the prevailing model especially as the proponents of the stakeholder model have not come up with a theoretically sound alternative. It is argued that all corporations’ principal stakeholders should be protected by the imposition of fiduciary duties on managerial decision makers. Homogeneity on corporate boards can reinforce thinking that leads to bad decision making. The findings of various researchers into behavioural economics are considered. It is pointed out that the interests of the shareholders are rarely, if ever, the same as those of other stakeholders. This supports the idea that ...


In Defense Of Corporate Persons, Kent Greenfield Jan 2015

In Defense Of Corporate Persons, Kent Greenfield

Boston College Law School Faculty Papers

This essay is a critique of this attack on corporate personhood. It explains that the corporate separateness - corporate “personhood” - is an important legal principle as a matter of corporate law. What’s more, as a matter of constitutional law, corporate “personhood” deserves a more nuanced analysis than has been typically offered in arguing in favor of an amendment to overturn Citizens United. Indeed, the concept of corporate “personhood” can in fact be marshaled in arguments against corporations being able to assert constitutional rights. In the nascent category of cases brought by corporations asserting rights of religious freedom, for example, corporations ...


Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones Aug 2014

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones

Boston College Law School Faculty Papers

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in ...


Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield Mar 2014

Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield

Boston College Law School Faculty Papers

Amicus brief filed by Nancy Gertner and Kent Greenfield in the case of Louisiana Municipal Police Employees' Retirement System v. The Hershey Company, C.A. No. 7996-ML.


Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones Jan 2014

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones

Boston College Law School Faculty Papers

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in ...


The Third Way: Beyond Shareholder Or Board Primacy, Kent Greenfield Jan 2014

The Third Way: Beyond Shareholder Or Board Primacy, Kent Greenfield

Boston College Law School Faculty Papers

There is a third possibility in corporate governance: real duties imposed on boards, but which run to all the company's stakeholders not just shareholders.


Corporate Citizenship: Goal Or Fear?, Kent Greenfield Jan 2014

Corporate Citizenship: Goal Or Fear?, Kent Greenfield

Boston College Law School Faculty Papers

Discusses the conflicting opinions about corporate "citizenship." Should corporations be insulated from politics or a part of it?


Omnicare: Coercion And The New Unocal Standard, Brian J.M. Quinn Jul 2013

Omnicare: Coercion And The New Unocal Standard, Brian J.M. Quinn

Boston College Law School Faculty Papers

When Omnicare, Inc. v. NCS Healthcare, Inc. was decided ten years ago, it was widely derided as one of the worst corporate law opinions since Smith v. Van Gorkom. In fact, Chief Justice Myron Steele of the Delaware Supreme Court remarked at a conference not long after that the opinion would likely have the life span of a "fruit fly." I subsequently offered up a modest, and perhaps lonely, defense of the Omnicare decision published in the pages of this Journal. In that defense, I argued that when sellers grant buyers deal certainty there should be no expectation that such ...


Putting Your Money Where Your Mouth Is: The Performance Of Earnouts In Corporate Acquisitions, Brian J.M. Quinn Jan 2013

Putting Your Money Where Your Mouth Is: The Performance Of Earnouts In Corporate Acquisitions, Brian J.M. Quinn

Boston College Law School Faculty Papers

This Article extends the existing literature on contingent earnout provisions in merger agreements by examining the actual performance of these provisions and drawing conclusions about their adequacy as contractual responses to asymmetric information. Recently available data suggests that actual target company performance post-closing often falls short of the expectations of both buyers and sellers – even when those expectations have been discounted for risk. The consistent failure of sellers to meet earnout targets of all types and the declining values of contingent earnout payment suggests that the earnout provision may not be an adequate response to the dual problems of adverse ...


Arbitration And The Future Of Delaware’S Corporate Law Franchise, Brian J.M. Quinn Jan 2013

Arbitration And The Future Of Delaware’S Corporate Law Franchise, Brian J.M. Quinn

Boston College Law School Faculty Papers

In an effort to maintain Delaware’s competitive position in the market for adjudications, Delaware recently adopted a Chancery Court-sponsored arbitration procedure. That procedure relies on the good offices of the Court to undertake confidential arbitration proceedings. There are serious constitutional questions with respect to the propriety of sitting judges conducting confidential arbitrations. In addition, it is not clear that the supposed benefits of a state-sponsored arbitration system outweigh the costs to the state’s ability to develop and maintain its own corporate law brought on by such a system. Although Delaware may simply be making the best of what ...