Corporate Formation and Governance

A detailed study of one or more selected aspects of business organizations . In 2019, the course will be essentially an extra unit of the Business Organizations. It can be taken simultaneously with or after the regular Business Organizations course and should have only minimal overlap.

Entrepreneurs and their companies face different legal risks than larger and more established companies. Emerging companies often have little leverage in the marketplace, requiring novel business and legal approaches to differentiate themselves from competitors. However, entrepreneurs also compete for the capital of VCs and other investors, whose focus on financial returns makes them more risk-averse than the entrepreneurs in whom they invest. Finally, many entrepreneurial enterprises begin as small as the proverbial mustard seed but often have correspondingly small legal budgets, creating issues in instances where assuring legal compliance will require significant resources of outside counsel. These distinctions significantly impact entrepreneurs’ legal needs and relationships with their outside attorneys. It is counsel’s job to deftly steer his or her entrepreneur clients between the Scylla of reinventing the wheel and the Charybdis of conforming with other companies, all while observing the requirements of legal ethics (and hopefully being paid for the work performed). P-LAW 203.

A study of the choice of law rules applicable where at least one of the operative issues in a case is connected with some state or country other than the one in which suit is brought at the national level or the international level; jurisdiction of courts over persons, things, and property in the national and transnational context; recognition and enforcement of judgments on the national and international levels; business and estate planning issues in law in different jurisdictions. (although this course is traditionally known as conflict of laws in the United States, it is known as private international law elsewhere)

This course considers the sustainability of the modern US corporation – that is, whether the corporation is capable of meeting current social needs while enabling future generations to meet their needs. The course looks at the corporation’s current design: its externalization of social costs, the short-termism of corporate decision-making, the “groupthink” culture of corporate management, and the corporation as political actor. It then considers some current responses to these non-sustainable attributes: planet (voluntary environmental stewardship), people (voluntary EG movement), and profits (institutional shareholder activism). The course concludes by considering paradigm shifts: the new benefit corporation form, revamped ESG disclosure, new shareholder-management consortia — as well the corporation as moral organism and re-conceptualizations of corporate leadership. Students work in groups on a weekly basis, submit reflection papers for each unit, and write a paper at the end of the term on a “corporate sustainability” topic of their choice.

The Compliance and Risk Management course will explore a range of topics within the corporate compliance framework. The goal is to provide a focus on the critical components of corporations that rely on compliance and discuss how that translates into opportunities for lawyers. Specifically, the course will focus on the governance structure of compliance and risk management as well as best practices. This will include how programs are operated, monitored, and tested while leveraging case studies and guest speakers. Federal rules will also be utilized to understand the practical application of compliance within organizations so as to enable students to understand the role compliance plays in the overall success and sustainability of an organization.

This course covers torts that businesses suffer and in which other commercial entities are the defendants. Tort law’s primary focus is on protecting against personal injury and property damage. But businesses can’t suffer personal injury and frequently the harm that they do suffer is pure economic loss. This occurs due to fraud, negligent misrepresentation, and interference with contract. At the same time, tort law has been reluctant to interfere when the parties are in a contractual relationship and the risk of loss has been (or could have been) addressed by agreement of the parties in their contract. Thus, when the only harm caused is economic loss, such as lost profits, identity theft, a loss of an inheritance, the benefit of the bargain in a contract, an opportunity to start a new business, or a product that does not perform as it should have, tort law has been very restrictive about providing relief, leaving most of such harm to contract law or uncompensated. This course will cover the areas in which tort law does provide protection and for pure economic loss and the areas in which it has deferred to contract.