Georgia Law, ASIL to cosponsor conference on legal responsibility of corporations and nation-states

  • When private companies perform governmental functions and governments own companies, which acts should be attributed to the state?
  • Which should be attributed to the corporation?
  • And whose religious beliefs, speech rights, and moral standing can those entities claim?

These questions and more will be explored in The Law and Logics of Attribution: Constructing the Identity and Responsibility of States and Firms, a 2-day online conference that our Dean Rusk International Law Center, University of Georgia School of Law, will cohost next month.

Melissa “MJ” Durkee, Allen Post Professor at Georgia Law, is leading the event, which will bring together a multinational group of scholars in law and social sciences. It’s cosponsored by the American Society of International Law and ASIL’s Interest Group on International Legal Theory. Durkee serves as Vice Chair of that interest group; Chair is her Georgia Law colleague Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of our Center. Registration is available here.

Scheduled to speak at the conference, which will take place 1-5 p.m. Friday, September 11, and Friday, September 18:

Olabisi Akinkugbe, Assistant Professor, Schulich School of Law, Dalhousie University, Canada

William C. Banks, Board of Advisors Distinguished Professor, Syracuse University College of Law, New York

Joshua Barkan, Associate Professor, Department of Geography, University of Georgia

Kristen Boon, Miriam T. Rooney Professor of Law, Seton Hall School of Law, New Jersey

Rachel Brewster, Jeffrey and Bettysue Hughes Professor of Law, Duke Law School, North Carolina

David Ciepley, Fellow, Center for Advanced Study in the Behavioral Sciences, Stanford University, California

Laura Dickinson, Oswald Symister Colclough Research Professor of Law, George Washington School of Law, District of Columbia

Melissa “MJ” Durkee, Allen Post Professor, University of Georgia School of Law

Benjamin Edwards, Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas

James Gathii, Wing-Tat Lee Chair in International law, Loyola University Chicago School of Law, Illinois

Sarah Haan, Associate Professor of Law, Washington and Lee School of Law, Virginia

Catherine Hardee, Associate Professor of Law, California Western School of Law

Doreen Lustig, Associate Professor, Tel Aviv University, Buchmann Faculty of Law, Israel

Kish Parella, Associate Professor of Law, Washington and Lee University School of Law, Virginia

Dalia Palombo, Senior Research Fellow, Institute for Business Ethics, University of St. Gallen, Switzerland

Mikko Rajavuori, Academy of Finland Post-Doctoral Fellow, University of Eastern Finland Law School

Ingrid Wuerth, Helen Strong Curry Chair in International Law, Vanderbilt School of Law, Tennessee

 

They’ll be examining aspects of the conference’s concept note:

“In international law, scholars and practitioners struggle to attribute rights and responsibilities between state and private entities in areas as diverse as military contracting, environmental accountability, human rights, international investment, and cyber espionage and warfare. In the corporate governance realm, attributing responsibility to entities is increasingly challenging in the context of globally dispersed corporate families with intricate parent-subsidiary structures; identity attribution has also produced headlining debates.

“While attribution questions fuel important conversations in both corporate and international law, the two literatures are not often in conversation. Questions of attribution in both domains nevertheless are becoming more complex and urgent, and the fields increasingly intersect: In some areas of law, attribution doctrines must determine the dividing line between states and firms. Doctrines of attribution construct the public domain, and thereby also the private. Attribution questions in both domains reinvigorate classic inquiries about the nature of a corporation, the relationship between private entities and the state, and the proper function of the law in mediating between the two.

“This conference will draw together corporate and international legal scholars, as well as thinkers outside the law, in order to cross-pollinate these two fields and the questions at their intersection, and to unearth promising theoretical tools. It will consider theoretical and doctrinal approaches to attribution, potential consequences of these approaches, and whether they may reconcile the ambiguities and deficiencies that drive current debates. The project aims to offer a new point of entry to enduring theoretical and doctrinal questions about the nature of corporations, of states, and of the relationship between them. It is particularly relevant at a time where corporations are ‘jurisdictionally ambiguous and spatially diffuse,’ states are deferential, dependent or outflanked, and multilateralism is at an ebb.”

Full details, including registration for this online event, are available here.

Georgia Law Professor Christopher Bruner presents to International Monetary Fund on corporations and sustainability

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, recently presented “The Corporation as Technology: Re-Calibrating Corporate Governance for a Sustainable Future” to the International Monetary Fund, a 75-year-old organization of 189 countries that, operating within the United Nations system, works to “foster global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world.”

Bruner’s online presentation was organized by the IMF Legal Department and moderated by Rhoda Weeks-Brown, Director of the Legal Department and the IMF’s General Counsel.  Attendees included staff lawyers and economists from across the IMF.

His talk was based on the book that he is currently writing, which is due to be published by Oxford University Press next year.

Georgia Law Professor Bruner presents on corporations and sustainability in University of Oslo Law forum

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, presented yesterday in Company Law Forum, a video-seminar offered by Research Group Companies, Markets and Sustainability, a unit within the University of Oslo Faculty of Law.

The Research Group described Bruner’s presentation, “Private Power and Public Good: Harnessing the Corporation for a Sustainable Future”, as follows:

The corporate form is widely described, and on some accounts defined, by reference to a core set of purportedly fixed, intrinsic attributes. Such depictions of the corporate form typically reflect strong assumptions about which corporate constituencies should be regarded as internal participants in the corporation, and go hand-in-glove with strong theoretical claims about the corporation’s core utility and corporate law’s correlative content. Christopher Bruner argues, however, that such rigid and static depictions of the corporate form and corporate law have fundamentally misconstrued the nature of the entity, giving rise to a host of corporate pathologies that include excessive risk-taking and cost externalization without regard for environmental and social impacts.

Such hidebound conceptions of the corporation have effectively sacrificed the flexibility and dynamism of the corporate form, thereby obscuring potential governance-related regulatory options that could offer promising solutions to a host of vexing problems. In his new book project, tentatively titled Private Power and Public Good: Harnessing the Corporation for a Sustainable Future, Bruner will re-conceptualize the corporation, not as a fixed and rigid set of legal characteristics but rather as a dynamic legal technology that can be calibrated and re-calibrated in varying contexts, and over time, in response to a dynamic landscape. He will then build upon that framework to explore the corporation’s potential to contribute to environmental, social, and economic sustainability.

Georgia Law Prof Bruner presents “Leveraging Corporate Law” at Maryland Law Review symposium

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, took part in last Friday’s 2020 Maryland Law Review symposium, titled “Delaware’s Emerging Competition and the Future of American Corporate Law.”

Bruner, currently on a research stay at the University of the Witwatersrand in Johannesburg, South Africa, provided his presentation remotely of his working paper titled “Leveraging Corporate Law: A Broader Account of Delaware’s Competition.” Available at SSRN, the paper explores the increasingly global competitive landscape that Delaware – in the words of symposium organizers, “historically the most important jurisdiction for corporate law in the United States” – faces in corporate chartering and related fields.

During research stay at Wits Law in South Africa, Georgia Law Prof Bruner presents on corporations, sustainability

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law at the University of Georgia School of Law, recently gave a seminar presentation at the University of the Witwatersrand School of Law, as part of his ongoing research visit at that Johannesburg, South Africa, law school.

Title of the presentation was “Private Power and Public Good: Harnessing the Corporation for a Sustainable Future.” Its focus corresponded with Bruner’s research project, a comparative corporations book that:

1st, develops a new conception of the corporate form and associated rules of corporate law and governance; and

2d, builds on that framework to explore the corporation’s potential to contribute to environmental, social, and economic sustainability.

Foreign media quote Georgia Law Professor Elizabeth Burch on mass tort suits against Bayer herbicide Roundup

University of Georgia School of Law Professor Elizabeth Chamblee Burch, an expert on mass torts and complex litigation, recently was quoted in overseas news media regarding ongoing lawsuits against Bayer AG, the Germany-based multinational corporation.

The reporting centered on negotiations to end U.S. litigation in which tens of thousands of plaintiffs have alleged that glyphosate, an ingredient in the Bayer herbicide Roundup, is a carcinogen that causes non-Hodgkin’s lymphoma.

In an article entitled “Bayer vor Glyphosat-Einigung – So sieht der teure Plan aus” (“Bayer before the Glyphosate Agreement – This Is What the Expensive Plan Looks Like”), reporters Bert Fröndhoff and Katharina Kort wrote:

“Legal expert Elizabeth Chamblee Burch, professor at the University of Georgia, thinks it makes sense in principle to withdraw the product from the market beyond agricultural use. ‘But even that doesn’t solve the problem of complaints that can come from those who have already used the product,’ warns the lawyer.”

(Translated from the original German.) The article appeared in Handelsblatt, a business newspaper headquartered in Düsseldorf.

A separate article on the same subject, “Q&A – What Are the Obstacles to Bayer Settling Roundup Lawsuits,” appeared in Israel’s Haaretz. It this article, Reuters reporter Tina Bellon wrote:

“Non-Hodgkin’s lymphoma on average can take up to 10 years to emerge, increasing the likelihood of claims being filed after the litigation has settled. Product liability settlements generally include a cut-off date for future claimants and need to be properly funded for a court to approve the agreement.

“As long as the product continues to be sold without changes to the label, plaintiffs may continue to file lawsuits, said Elizabeth Burch, a law professor at the University of Georgia.”

Professor Burch, holder of the Fuller E. Callaway Chair of Law here at the University of Georgia School of Law,  is the author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (Cambridge University Press 2019). In 2017, she presented at an international conference held by Tel Aviv University.

Georgia Law Professors Cohen, Durkee present at Miami Law for ASIL international economic law biennial

Two international law experts here at the University of Georgia School of Law presented their scholarship and took part in panel discussions at “Designing International Economic Law: Challenges and Opportunities,” an American Society of International Law biennial conference held last week at the University of Miami School of Law.

Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of our Dean Rusk International Law Center, presented “Nations and Markets,” and also participated in a roundtable on “Critical Perspectives on International Economic Law.”

Professor Melissa J. Durkee, J. Alton Hosch Associate Professor of Law, presented “Interpretive Entrepreneurs and the Re-Design of International Economic Law.”

The 2-day conference included scholars and practitioners from Argentina, Australia, Barbados, Brazil, Canada, China, Colombia, Denmark, Ecuador, England, Finland, France, Germany, Hungary, Indonesia, Israel, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Qatar, South Africa, Switzerland, and Turkey, as well as the United States.

(photo credits here and here)

New Cambridge corporate law, governance, and sustainability handbook coedited by Georgia Law Professor Christopher Bruner

Cambridge University Press has just published a handbook co-edited by Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law.

Entitled The Cambridge Handbook of Corporate Law, Corporate Governance and Sustainability, the 700-plus-page book consists of 50 chapters, by 60 contributors from around the world.

Bruner and his co-editor, Professor Beate Sjåfjell of the University of Oslo in Norway, wrote the the introduction and conclusion, which establish the conceptual framing for the project, and each also contributed substantive chapters. Bruner’s is chapter 36, “Leaders or Laggards? Corporate Sustainability In Hong Kong And Singapore.”

The book received some strong endorsements, including from senior officials in the European Commission; the Executive Director of the Aspen Institute’s Business & Society Program; a world-leading climate scientist; and prominent law and business scholars from around the world. It features forewords by Mervyn King, an emeritus professor and judge in South Africa who is a global leader in sustainability-oriented reporting, and Vanderbilt Law Professor Margaret Blair, an economist and co-author of one of the more prominent theories of corporate governance.

The Handbook is available here.

Georgia Law Professor MJ Durkee publishes “Interstitial Space Law” at Washington University Law Review

Professor Melissa J. Durkee, the J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law, has published her article “Interstitial Space Law” in the latest issue of the Washington University Law Review.

Here’s the abstract:

“Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this ‘attributed lawmaking.’

“Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space. The treaty does, however, attribute private sector activity to nations. The theory of attributed lawmaking suggests that the attribution renders the activity of private actors in space relevant to the development of binding international legal rules. As a doctrinal matter, private activity that is attributed to the state becomes “state practice” for the purpose of treaty interpretation or customary international law formation. Moreover, as a matter of realpolitik, private actors standing in the shoes of the state can force states into a reactive posture, easing the commercially preferred rules into law through the power of inertia and changes to the status quo. Attributed lawmaking is not a new phenomenon but it may have increasing significance at a time when multilateral lawmaking is at an ebb, lines between public and private entities are blurring, and the question of attribution becomes both more complex and more urgent.”

The article’s also available at SSRN.

Georgia Law Professor Bruner presents on comparative corporate governance methods at Fordham Law workshop

Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, took part this past weekend in a 2-day Comparative Corporate Governance Workshop at Fordham Law School in New York.

The  workshop centered around a new volume in progress, Research Handbook on Comparative Corporate Governance (Edward Elgar, forthcoming).

Bruner presented his own draft chapter, “Methods of Comparative Corporate Governance,” and also commented on draft chapters by two other contributors.