Berle X: Berle and His World

11 05 2018

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I’m sharing the program of the Berle X conference, which will be held next week at the Adolf A. Berle, Jr. Center on Corporations, Law & Society in Seattle. Needless to say, I am very excited to be presenting along such distinguished scholars.

 

Berle X: Berle and His World

 

May 17-18, 2018

 

MAY 17 and 18, 2018 at Seattle University School of Law

BERLE X: DAY ONE

Thursday, May 17, 2018

7:30 am
Continental Breakfast

8:10 am
Welcome
Chuck O’Kelley, Director, Adolf A. Berle, Jr. Center on Corporations, Law & Society
SESSION A

8:15 am
Keynote Address
The Honorable Leo E. Strine, Chief Justice, Supreme Court of Delaware

9:15 am
Bernard Beaudreau, Professor of Economics, Laval University
Technological and Institutional Crossroads: The Life and Times of Adolph A. Berle Jr.

10:15 am
Break

SESSION B

10:30 am
Mark Hendrickson, Associate Professor of History, University of California, San Diego
“In time of stress, a civilization pauses to take stock of itself:” Adolph A. Berle from the New Era to the New Deal

11:30 am
Jessica Wang, Associate Professor of U.S. History, University of British Columbia
Looking Forward in a Failing World: Adolf A. Berle in the Interwar Years
12:30 pm
Lunch

SESSION C

1:30 pm
Eric Hilt, Professor of Economics, Wellesley College

Berle’s “New Concept of the Corporation” in Historical Perspective

2:30 pm
Brian Cheffins, Professor of Law, University of Cambridge
The Rise and Fall (?) of the Berle-Means Corporation

3:30 pm
Break


SESSION D

3:45 pm
Frank Partnoy, George E. Barrett Professor of Law and Finance, University of San Diego
Everything New is Old Again: Berle and Corporate Finance

4:45 pm
Chuck O’Kelley, Professor of Law, Seattle University
From Madonna to Caesar: The Berle-Dodd Debate in Context

5:45 pm
Conclusion of Day One

6:30 pm
Cocktails followed by dinner at the Rainier Club.  Dinner will be served at 7:30 pm.  Business Casual attire is requested
BERLE X: DAY TWO
Friday, May 18, 2018

7:30 am
Continental Breakfast

SESSION E

8:15 am
Andrew Smith, Senior Lecturer in International Business, University of Liverpool
Jason Russell, Associate Professor of History, Empire State College, SUNY
Kevin Tennent, Lecturer in Management, University of York  
Berle and Means’ The Modern Corporation and Private Property: the Military Roots of a Stakeholder Model of Corporate Governance

9:15 am
Jesse Tarbert, Visiting Assistant Professor of History at Loyola University Maryland
Corporate Lessons for Public Governance: Wall Street Elites and the American State after World War One

10:15 am
Break

SESSION F

10:30 am
Bill Bratton, Nicholas F. Gallicchio Professsor of Law, University of Pennsylvania
Gardiner Means and The Modern Corporation’s Missing Chapter

11:30 am
Elizabeth Pollman, Loyola Law School, Los Angeles
Quasi Governments and Inchoate Laws: Berle’s Vision of Limits on Corporate Power

12:30 pm
Lunch

SESSION G
1:30 pm
Harwell Wells, Herman Stern Professor of Law, Temple University Beasley School of Law
Berle and the ‘Modern Legal Profession’

2:30 pm
Bob Thompson, Peter P. Weidenbruch, Jr. Professor of Business Law, Georgetown University
Berle: After the Trifecta

3:30 pm
Break

Session H
3:45 pm
Nick Lemann, Joseph Pulitzer II and Edith Pulitzer Moore Professor of Journalism, Columbia University
Berle and the Twentieth Century

4:45 pm
Ewan McGaughey, Lecturer, King’s College, London, and Centre for Business Research, University of Cambridge
Democracy in America at Work: Ending the Enron Economy

5:45 pm
Closing Remarks and Thoughts

 

 

Berle X Symposium Presenters:

Bernard Beaudreau, Laval University
William BrattonUniversity of Pennsylvania Law School
Brian R. CheffinsCambridge University Law School
Mark HendricksonUniversity of California, San Diego
Eric Hilt, Wellesley College
Nicholas LemannColumbia University in the City of New York
Ewan McGaughey, King’s College, London and University of California, Berkeley
WIlliam NovakUniversity of Michigan
Chuck O’KelleySeattle University School of Law
Frank Partnoy, University of San Diego School of Law
Elizabeth Pollman, Loyola Law School, Los Angeles
Jason Russell, Empire State College
Andrew Smith, University of Liverpool
Leo Strine, Chief Justice, Delaware Courts
Jesse Tarbert, Loyola University, Maryland
Kevin Tennent, University of York
Robert B. Thompson, Georgetown University Law School
Jessica Wang, University of British Columbia
Harwell Wells, Temple University Beasley School of Law

 

 

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Brad Miller on History and the Comeau Decision

3 05 2018

Prof. Bradley Miller of UBC has published some astute observations about the Canadian Supreme Court’s recent decision in the Comeau case and the court’s approach to the use of historical evidence. I take Miller’s point about the complexity of determining “authorial intent” in a document (the BNA Act) that had many Fathers.  My own view is that in parsing out the meaning of this text, historians and judges should focus on what was likely the intent of the individual who actually decided on the phrasing of the sections– the lawyer Francis Savage Reilly (1825-1883), the man in whose handwriting the various drafts of the BNA Act were composed. (I can offer a coherent explanation for why this individual’s intention should be regarded as the most important in this context, but doing so would involve drawing on philosophy and on the classic works on historical methodology by Von Ranke, Langlois and Seignobos,  and Sir Richard Evans. However, I will leave that taks to another day!).

I would add that while I was disappointed by the outcome of the case, I respect the fact that the Supreme Court took my historical argument very seriously.  Paragraphs 55 to 67 of the decision were basically devoted to unpacking what I had written and said and included direct quotations from my text. Moreover, I think that my testimony did have an impact on the Court’s eventual decision, for the Court did not change the existing interpretation of Section 121 enough to help Mr. Comeau, it did significantly change how this section of the constitution will be interpreted in the future.

Here’s what I mean. In 1921, the Supreme Court said that Section 121 only prohibits interprovincial trade barriers that take the form tariffs/customs duties. The Comeau decision holds that Section 121 was only designed to prohibit laws that whose essential purpose is to restrict interprovincial trade. [I suspect that from now on, governments that pass new laws that restrict interprovincial trade will be careful to avoid declaring their protectionist intentions in public and on the record]. I would say that I, and the lawyers I worked with, did help to “move the needle” a little bit.

It seems to me that Brad and other legal historians should do a study of “comparative originalism” that would investigate how historical information and historical expertise is processed differently by courts in the nations that have constitutional lawyers who advance originalist arguments. These nations include the US, Australia, and India and likely others as well. We know that originalist theory has evolved over the last 40 years in the US and that each variant of originalism privileges different types of primary sources and historical expertise. Balkin’s piece on new-style originalism may interest researchers. It seems to me that Leonid Sirota would be the ideal individual to lead a collaborative project that would compare how originalist jurisprudence in different countries process history.

By the way, some excellent papers on the Comeau decision have appeared online and haven’t been cited as much as they should have. I would like to draw them to the attention of readers.

 

Brett Capstick, “The Supreme Court of Canada’s Re-Examination of Internal Trade: The Case of Beer” (2017) Library of Parliament HillNote

Christian Whalen, “R. v. Comeau and Judicial Activism” (2016) Canadian Bar Association

Malcolm Lavoie, “R. v. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union, (2016) Dalhousie Law Journal)

Asher Honickman, “A Marriage Made in Britain: Section 121 and the Division of Powers” (2016) CanliiConects.

 

 





La Cour, c’est qui?

2 05 2018

Double Aspect

Peter McCormick, University of Lethbridge

The Supreme Court’s recent decision in Comeau has definitely put the judicial cat among the federalist pigeons.  At first glance – we have all seen the headlines – the case is about bringing cases of cheap beer into New Brunswick (“Free the Beer!”).  On a closer look, the already enfeebled Section 121 of the Constitution Act 1867 has been effectively gutted, taking with it any realistic prospect of a major shift toward greater intra-Canadian free trade.  Along the way, the sort of trial judge’s revisiting of precedent that was so highly lauded in Bedford has been severely chastised.  An interesting case, therefore, on several levels.

The decision took the somewhat infrequent form of a “By the Court” judgment – one that is both unanimous and anonymous – which arguably makes it more emphatic while coyly veiling the identity of the judge who did the drafting. …

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Management History Division: Get Involved and VOTE

29 04 2018

Thanks to OHN for publicizing this very important initiative. At the time of this election, it is very important for researchers to speak with one voice.

Organizational History Network

In recent years management and organizational history has become an exciting and rapidly changing field, with new ideas and approaches transforming the field and many publication opportunities at leading journals. The AOM’s Management History Division is one of the key institutional foundations for these developments, but the Division needs involvement and support from scholars who are engaged and care about the future of the field. So please get involved. The AOM recently announced the release of the ballot for division elections. If you are already a member of the MH Division, please take time to vote!!! If you are not a member but care about management history, please join the Division, vote now, and join us in Chicago!  The instructions for joining the MH Division can be found here: http://aom.org/FAQs/Membership/How-do-I-change-or-add-an-additional-division-or-interest-group-to-my-profile-.aspx

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CFP: Business History Conference 2019, Cartagena

23 04 2018

The 2019 annual meeting of the Business History Conference will be held in Cartagena de Indias, Colombia, on March 14–16. The theme of the meeting will be “Globalization and De-Globalization: Shifts of Power and Wealth.” The recent phenomena of the spread of populist and economic nationalist regimes throughout North America, Europe, Asia and elsewhere taking positions against the major trading blocks and the free movement of people and goods make the topic of this conference very timely. The conference aims to concentrate on business history research agendas that enable a nuanced understanding of the phenomena of globalization and de-globalization.

The conference theme encourages contributions from a variety of approaches to business history research, covering a broad range of geographies and periods. The program committee of Marcelo Bucheli (co-chair), Andrea Lluch (co-chair), Takafumi KurosawaEspen StorliLaura Sawyer, and Teresa da Silva Lopes (BHC president) invites paper proposals addressing the following topics, but not limited to:

  • the contribution of firms and the entrepreneurs to globalization and de-globalization
  • the role and responsibility of business in shifts of power, wealth and inequality
  • the rise of emerging markets and the globalization of firms from those markets
  • globalization and environmental and social sustainability
  • business and gender during waves of globalization and de-globalization
  • risk management during globalization waves

While we encourage proposals to take up this theme, papers addressing all other topics will receive equal consideration by the program committee in accordance with BHC policy. Proposals may be submitted for individual papers or for entire panels. Each proposal should include a one-page abstract and one-page curriculum vitae (CV) for each participant. Panel proposals should have a cover letter containing a title, a one-paragraph panel description, and suggestions for a chair and commentator, with contact information for the panel organizer. To submit a proposal go to http://www.thebhc.org/2019-bhc-meeting and click on the link Submit a Paper/Panel Proposal.

All sessions will take place at the Hilton Hotel Cartagena. Rooms (all suites) are $169/night single and $189/double occupancy (plus tax) and include a full breakfast. General questions regarding the BHC’s 2019 annual meeting may be sent to conference coordinator Roger Horowitz, rh@udel.edu.

The K. Austin Kerr Prize will be awarded for the best first paper delivered by a new scholar at the annual meeting. A “new scholar” is defined as a doctoral candidate or a Ph. D. whose degree is less than three years old. You must nominate your paper for this prize on the proposal submission page where indicated. Please check the appropriate box if your proposal qualifies for inclusion in the Kerr Prize competition.

The deadline for receipt of all paper and panel proposals is October 1, 2018.

The BHC awards the Herman E. Krooss Prize for the best English-language dissertation in business history by a recent Ph.D. in history, economics, business administration, the history of science and technology, sociology, law, communications, and related fields. To be eligible, dissertations must be completed in the three calendar years immediately prior to the 2019 annual meeting, and may only be submitted once for the Krooss prize. After the Krooss committee has reviewed the proposals, it will ask semi-finalists to submit copies of their dissertations. Finalists will present summaries of their dissertations at a plenary session and will receive a partial subsidy of their travel costs to the meeting. Proposals accepted for the Krooss Prize are not eligible for the Kerr Prize. If you wish to apply for this prize please send a cover letter indicating you are applying for the Krooss prize along with a one-page CV and one-page (300 word) dissertation abstract via email to BHC@Hagley.org. The deadline for proposals for the Krooss prize is 1 October 2018.

The BHC Doctoral Colloquium in Business History will be held in conjunction with the BHC annual meeting. This prestigious workshop, funded by Cambridge University Press, will take place in Cartagena on Wednesday, March 13, and Thursday, March 14. Typically limited to ten students, the colloquium is open to early-stage doctoral candidates pursuing dissertation research within the broad field of business history, from any relevant discipline. Topics (see link for past examples) may range from the early modern era to the present, and explore societies across the globe. Participants work intensively with a distinguished group of BHC-affiliated scholars (including at least two BHC officers), discussing dissertation proposals, relevant literatures and research strategies, and career trajectories. Applications are due by November 1, 2018, via email to BHC@Hagley.org and should include: a statement of interest; CV; preliminary or final dissertation prospectus (10-15 pages); and a letter of support from your dissertation supervisor (or prospective supervisor). Questions about the colloquium should be sent to its director, Edward Balleisen, eballeis@duke.edu. All participants receive a stipend that partially defrays travel costs to the annual meeting.

On the March 14, 2019, there will be a special workshop on ‘Latin American Business in a Global and Historical Perspective’ which will be in the Spanish and Portuguese languages and aims to attract papers by academics who prefer to present their research in their native languages. The deadline for submissions is October 1,  2018. For more details about the workshop and the submission process, contact Joaquin Viloria De la Hoz (Banco de la República / Central Bank of Colombia) at: jvilorde@banrep.gov.co.





Unmaking History

23 04 2018

Leonid Sirota (Auckland University of Technology Law School) has published a great piece on the recent Comeau decision in Canada.

Double Aspect

When it accepted to pronounce on the constitutionality of non-tariff barriers to inter-provincial trade, the Supreme Court had a chance to make history. In R v Comeau, 2018 SCC 15, the Court chose to unmake it instead. Far from “freeing the beer” and invalidating legislation that prevents bringing booze from one province to another and other regulatory schemes built on provincial protectionism, Comeau countenances even restriction on inter-provincial trade that would previously have been thought flatly unconstitutional. In the process, it tramples over constitutional text and history, as well as logic.

Section 121 of the Constitution Act, 1867 provides that “[a]ll Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” But free of what exactly? Of any and all regulation, or of just some particular kinds? In Gold Seal…

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Hot Takes on the Comeau Case

19 04 2018

The Supreme Court of Canada today published its ruling in the case of Her Majesty the Queen v. Gerard Comeau. For press coverage, please see here, here, and here. I was the historical expert witness at the 2015 court case that was the subject of the appeal decided today.  Here is my initial reaction (keep in mind I am a non-lawyer).

Although Mr. Comeau lost, the court accepted much of my historical interpretation (see paragraphs 55 to 66 of their decision). In paragraph 67, the Court expands the meaning of section 121, perhaps not as much as the lawyers I was working with might have wanted, but certainly enough to prohibit all interprovincial trade barriers that are protectionist in intent.

 

In paragraph 67, the Court wrote:

We conclude that the historical context supports the view that, at a minimum, s. 121 prohibits the imposition of charges on goods crossing provincial boundaries — tariffs and tariff-like measures. At the same time, the historical evidence nowhere suggests that provinces, for example, would lose their power to legislate under s. 92  of the Constitution Act, 1867  for the benefit of their constituents even if that might have impacts on interprovincial trade. The historical evidence, at best, provides only limited support for the view that “admitted free” in s. 121  was meant as an absolute guarantee of trade free of all barriers.

In paragraph 106, the Court wrote:

We conclude that a purposive approach to s. 121  leads to the following conclusion: s. 121 prohibits laws that in essence and purpose restrict trade across provincial boundaries. Laws that only have the incidental effect of restricting trade across provincial boundaries because they are part of broader schemes not aimed at impeding trade do not offend s. 121  because the purpose of such laws is to support the relevant scheme, not to restrict interprovincial trade.

It seems to me that this interpretation of s.121 is very similar to the High Court of Australia’s ruling in the 1988 case of Cole v. Whitfield, which revolved around the interpretation of Section 92 of the Australian constitution, which provides for free trade between Australia’s states. (For a comparison of these parts of the Canadian and Australian constitutions, see here). That case involved a fisherman who broke a state environmental law when he imported crabs from another Australian state. The crabs in question were of legal size in the originating state but illegal in size in his home state. The fisherman’s lawyers argued that the state law, which had been intended to protect the crab population, was a protectionist and unconstitutional trade barrier. In this decision, the court ruled that the Australian constitution prohibited only those barriers to interstate commerce that had either a protectionist purpose or effect. Australian courts now apply the so-called “Cole v. Whitfield test” in judging section 92 cases. As in today’s Supreme Court ruling, the Australian court decided that purpose of the law restricting internal trade was crucial in deciding its constitutionality.

 

Turning back to today’s SCC decision, I was pleased that the Court accepted the view that research on historical context similar to that I provided in my 2015 expert testimony is helpful in interpreting the meaning of the constitution. The Court made an interesting and important point about the role of historical research in constitutional interpretation: it ruled that while historical information of the type I shared was not, by itself, enough to overturn an existing SCC decision, it does matter. In a sense, this part of the ruling was a victory for advocates of some variant of the interpretative doctrine called originalism.

I must say that it was an honour to have worked in the case with a fantastic group of lawyers.