D. Gordon Smith

534 JRCB

smithg@law.byu.edu

D. Gordon Smith

Ira A. Fulton Chair and Professor of Law

Former BYU Law Dean Smith is a leading figure in the field of law and entrepreneurship and has done foundational work on fiduciary theory. He has also made important contributions to the academic literature on corporate governance and transactional lawyering.

After writing extensively about venture capital contracts early in his career, Professor Smith began thinking more broadly about the connections between law and entrepreneurship. Among other works, two articles with Darian Ibrahim of William & Mary Law School are aimed at advancing the nascent field of law and entrepreneurship. Law and Entrepreneurial Opportunities, 98 Cornell L. Rev. 1533 (2013); Entrepreneurs on Horseback: Reflections on the Organization of Law, 50 Ariz. L. Rev. 71 (2008). Professor Smith served as the associate director of the Initiative for Studies in Technology Entrepreneurship at the University of Wisconsin, where he launched the annual Law & Entrepreneurship Retreat. More recently, he co-founded (with Brian Broughman of the Indiana University School of Law) the Law & Entrepreneurship Association, a scholarly society that encourages the study of law and entrepreneurship by organizing conferences and building networks of scholars. He is also one of the founding faculty members of the Crocker Innovation Fellowship at BYU.

A Delaware corporate lawyer, Professor Smith has written extensively on fiduciary law, including two foundational pieces -- The Shareholder Primacy Norm, 23 J. Corp. L. 277 (1998) and The Critical Resource Theory of Fiduciary Duty, 55 Vand. L. Rev. 1399 (2002) -- that have become standard citations in the field. One of his more recent works, Fiduciary Discretion, 75 Ohio State L.J. 609 (2014) (with Jordan C. Lee), continues his effort to build an overarching theory of fiduciary law. Professor Smith also co-authors a popular teaching casebook, Business Organizations: Cases, Problems & Case Studies, with Professor Cynthia Williams of Osgoode Hall Law School of York University, and he is editing The Research Handbook on Fiduciary Law (Edward Elgar) with Andrew Gold of DePaul University College of Law.

Throughout his career, Professor Smith has been active in developing scholarly communities. In 2004 he co-founded (with Christine Hurt, also of BYU Law School) The Conglomerate Blog, a popular law professor blog focusing on business law. He has served as Chair of the Section on Business Associations in the American Association of Law Schools (AALS), and he participated in the creation of the Section on Transactional Law and Skills, for which he currently serves as Secretary. In 2009 he served on the planning committee for the AALS Workshop on Transactional Law. During that same year, he co-founded the annual Rocky Mountain Junior Scholars Forum. In 2012 he co-founded (with Afra Afsharipour of UC Davis School of Law) the Transactional Law Workshop, a monthly virtual gathering of transactional law scholars. And in 2013, he co-founded (with Colleen Baker) the Business Ethics Book Club, a virtual book club of law professors, who meet once a semester to discuss a recent work on business ethics.

During his five years as the Associate Dean of Faculty and Curriculum (2009-14), BYU Law School developed a large number of new course offerings, including a Law and Entrepreneurship Clinic. He has taught at six law schools in the U.S., as well as law programs in Australia, China, England, Finland, France, Germany, and Hong Kong. Before entering academe, Professor Smith clerked for Judge W. Eugene Davis in the United States Court of Appeals for the Fifth Circuit and was an associate in the Delaware office of the international law firm Skadden, Arps, Slate, Meagher & Flom.

CV/SSRN

Courses Taught

  • Business Organizations
  • Contracts
  • Corporate Finance
  • Law and Entrepreneurship
  • Law and Leadership
  • Securities Regulation

Education

  • B.S., Brigham Young University
  • J.D., University of Chicago

Casebooks

  • Fiduciary Law: Cases and Materials, (forthcoming Wolters Kluwer 2018) (with Evan Criddle, Andrew Gold & Paul Miller).
  • Handbook on Law and Entrepreneurship, (forthcoming Cambridge University Press 2017) (with Christine Hurt).
  • Research Handbook on Fiduciary Law, (forthcoming Edward Elgar 2016) (with Andrew Gold).
  • Business Organizations: Cases, Problems & Case Studies, (3d ed. Wolters Kluwer 2012) (with Cynthia A. Williams).
  • Bromberg & Ribstein on Partnerships, (2d ed. Wolters Kluwer 2014) (with Christine Hurt).
  • Bromberg & Ribstein on Limited Liability Partnerships, the Revisited Uniform Partnership Act, and the Uniform Limited Partnership Act, (Wolters Kluwer 2015) (with Christine Hurt).

General Law Review Articles

  • Family Law and Entrepreneurial Action, 77 Ohio St. L.J.: Furthermore 31 (2016) (response to Benjamin Means, The Contractual Foundation of Family-Business Law, 75 Ohio St. L.J. 675 (2014)). [SSRN]
  • Fiduciary Discretion, 5 Ohio St. L.J. 609 (2014) (with Jordan C. Lee). [SSRN]
  • Private Ordering with Shareholder Bylaws, 80 Fordham L. Rev. 125 (2011) (with Matthew Wright & Marcus Kai Hintze), reprinted in 54 Corporate Practice Commentator 147 (2012). [SSRN]
  • Contracts as Organizations, 51 Ariz. L. Rev. 1 (2009) (with Brayden King) (published with commentary by Robert P. Bartlett, III & Anna Gelpern). [SSRN]
  • Entrepreneurs on Horseback: Reflections on the Organization of Law, 50 Ariz. L. Rev. 71 (2008) (with Darian M. Ibrahim). [SSRN]
  • The Dystopian Potential of Corporate Law, 57 Emory L.J. 985 (2008) (published with a companion piece: Kent Greenfield, Saving the World with Corporate Law, 57 Emory L.J. 948 (2008)). [SSRN]
  • The Exit Structure of Venture Capital, 53 UCLA L. Rev. 315 (2005) (selected as one of the Best Corporate & Securities Articles of 2006 in a poll of corporate and securities law professors). [SSRN]
  • The Critical Resource Theory of Fiduciary Duty, 55 Vand. L. Rev. 1399 (2002). [SSRN]
  • Toward a New Theory of the Shareholder Role: “Sacred Space” in Corporate Transactions, 80 Texas L. Rev. 261 (2001) (with Robert B. Thompson), reprinted in 44 Corporate Practice Commentator 453 (2002) (selected as one of the Best Corporate & Securities Articles of 2002 in a poll of corporate and securities law professors). [SSRN]
  • The Shareholder Primacy Norm, 23 J. Corp. L. 277 (1998). [SSRN]
  • Corporate Governance and Managerial Incompetence: Lessons From Kmart, 74 N.C. L. Rev. 1037 (1996). [SSRN]
  • Beyond “Public Concern”: New Free Speech Standards for Public Employees, 57 U. Chi. L. Rev. 249 (1990) (student comment).

Articles Published as Part of a Symposium

  • Contractually Adopted Fiduciary Duty, 2014 U. Ill. L. Rev. 1793, for “Larry Ribstein Memorial Symposium,” sponsored by the University of Illinois College of Law, October 17–18, 2013. [SSRN]
  • Law and Entrepreneurial Opportunities, 98 Cornell L. Rev. 1533 (2013), (with Darian Ibrahim) for “Symposium on Law and Entrepreneurship,” sponsored by Cornell Law School, New York City, NY on November 2, 2012. [SSRN]
  • Unpacking Adaptability, 2009 BYU L. Rev. 1553 (with Andreas Engert), for “BYU Law Review Symposium on Evaluating Legal Origins Theory,” sponsored by J. Reuben Clark Law School, Brigham Young University, Provo, Utah on February 6, 2009. [SSRN]
  • A Case Study of Bloggership, 84 Wash. U. L.Q. 1135 (2006), for “Bloggership: How Blogs are Transforming Legal Scholarship,” sponsored by Harvard Law School, Cambridge, Massachusetts on April 28, 2006. [SSRN]
  • The “Branding Effect” of Contracts, 12 Harv. Negot. L. Rev. 189 (2007), for “Conference on Case Studies and Negotiations,” sponsored by Harvard Law School, Cambridge, Massachusetts on April 26, 2006. [SSRN]
  • Law & Entrepreneurship: Do Courts Matter?, 1 Entrepreneurial Bus. L.J. 353 (2006) (with Masako Ueda), for “Location, Luck, or the Law: Why Some Venture Capital Communities Flourish,” sponsored by The Ohio State University Michael E. Moritz College of Law, Columbus, Ohio on March 17, 2006. [SSRN]
  • The Exit Structure of Strategic Alliances, 2005 U. Ill L. Rev. 303 (2005), for “Uncorporation: A New Age?,” sponsored by the University of Illinois College of Law, Chicago, Illinois on April 23, 2004. [SSRN]
  • Independent Legal Significance, Good Faith, and the Interpretation of Venture Capital Contracts, 40 Willamette L. Rev. 825 (2004), for “Venture Capital after the Bubble,” sponsored by Willamette University College of Law, Portland, Oregon on March 5, 2004. [SSRN]
  • A Proposal to Eliminate Director Standards From the Model Business Corporations Act, 67 U. Cin. L. Rev. 1201 (1999), for “Twelfth Annual Conference on Corporate Law,” sponsored by University of Cincinnati School of Law, Cincinnati, Ohio on March 11, 1999. [SSRN]
  • Team Production in Venture Capital Investing, 24 J. Corp. L. 949 (1999), for “Sloan Conference on Team Production in Business Associations,” sponsored by Georgetown Law Center, Washington, D.C. on March 4–5, 1999. [SSRN]
  • Venture Capital Contracting in the Information Age, 2 J. Small & Emerging Bus. L. 133 (1998), for “Financing Innovation: The Future of Capital Formation for Small and Emerging Businesses,” sponsored by Northwestern School of Law of Lewis & Clark College, Portland, Oregon on September 26, 1997. [SSRN]
  • Chancellor Allen and the Fundamental Question, 21 Seattle U. L. Rev. 577 (1998), for “A Tribute to Chancellor William T. [SSRN]

Book Chapters

  • Firms and Fiduciaries, in Contract, Status, and Fiduciary Law 293 (Andrew Gold & Paul Miller eds., 2016). [SSRN]
  • The Modern Business Judgment Rule, in Research Handbook on Mergers and Acquisitions 83 (Steven Davidoff Solomon & Claire Hill eds., 2016). [SSRN]
  • Doctrines of Last Resort, in Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical (Jean Braucher, John Kidwell & William Whitford, eds. 2013), for a conference sponsored by the University of Wisconsin Law School, Madison, Wisconsin on October 21, 2011. [SSRN]
  • The Role of Shareholders in the Modern American Corporation, in Research Handbook on the Economics of Corporate Law 52 (Claire A. Hill & Brett H. McDonnell eds., 2012). [SSRN]
  • Commons, Hurst, Macaulay, and the Wisconsin Legal Tradition, in The Elgar Companion to Transaction Cost Economics 66 (Peter G. Klein & Michael E. Sykuta eds., 2010). [SSRN]
  • Duties of Nominee Directors, in Comparative Company Law: A Case-Based Approach, (Mathias Siems & David Cabrelli eds., 2013).
  • Associate Dean for Faculty and Curriculum, J. Reuben Clark Law School, Brigham Young University, 2009‐present
  • Glen L. Farr Professor of Law, J. Reuben Clark Law School, Brigham Young University, 2007‐present
  • Professor, University of Wisconsin Law School, 2002-2007
  • Associate Director, Initiative for Studies in Technology Entrepreneurship, 2002‐2007
  • Faculty, Master of Science in Biotechnology, University of Wisconsin, 2004‐2007
  • Faculty, Global Legal Studies, University of Wisconsin Law School, 2004‐2007
  • Associate Professor, Lewis & Clark Law School, Portland, Oregon, 1997-2002
  • Assistant Professor, Lewis & Clark Law School, Portland, Oregon, 1994-1997
  • Corporate Associate, Skadden, Arps, Slate, Meagher & Flom, Wilmington, Delaware, 1991-1994
  • Clerk, Judge W. Eugene Davis, Fifth Circuit Court of Appeals, Lafayette, Louisiana, 1990-1991