Business Law Prof Blog

Work-Life Balance: The Best House Music Podcast of the Year

If your thing is business law, then you've likely been quite busy recently.  Please allow me to remind you that it is important to maintain a healthy balance in your life, including spending time with loved ones, getting plenty of rest, eating right, exercising and, of course, listening to lots of that soulful spawn of disco--house music.

Okay, so maybe house music isn't for everyone.  But if you dig it, then I submit for your consideration my current nomination for the best house music podcast of the year: Lee Harris's "House Nation UK" podcast of 8/16/10.  You can find it here (it's currently #2 on the list).

Enjoy!

SJP

Merging Skills and Doctrine in the Classroom: One Professor's Modest Beginning

The AALS Annual Meeting bulletin arrived in my mailbox today, reconfirming that curricular reform, new forms of  assessment, and the need to bring skills into the class are hardly new topics of conversation for most faculties.  From the Carnegie Report to Best Practices, there seems to be an emerging consensus that more skills and professional training are necessary for law students.  What is not always clear is how to do it. 

A number of schools, including University of Detroit Mercy and Washington & Lee, have transitioned to full programs that seek to modify the way students experience law school, especially in their third year. Whether the new programs actually achieve their goals remains to be seen, but such programs certainly provide an interesting new method of one part of legal education.  

Of course, not every school has the resources, consensus, or personnel to make such a change (often, all three are probably lacking to some degree).  But that doesn't mean nothing can be done.  As we consider how best to update and evolve our curriculum at the University of North Dakota School of Law on a school-wide basis, a number of us have also looked at what we can on a micro level to build on our current offerings.  

To me, helping student be come more practice ready is an essential part of our mission.  The emerging importance of teaching students skills is one major part of this.  I believe that this means having a concerted effort of the full-time faculty to at least consider integrating skills into their courses and providing new learning experiences for their students. Despite the often highly specialized and superb talents of many adjuncts, we cannot rely only on non-full-time teachers to handle such a critical part of learning to become a lawyer.    

While it is not realistic to expect that we can prepare law students to handle "partner-level" work on day one of practice, we can do a better job of preparing students to handle life in practice from the moment they join the firm, start at the prosecutor's or public defender's office, or hang out a shingle.  This means giving them a taste of what it's like work think and write in a practice setting. 

For my Business Associations I class, which usually has between 55 and 85 students, I use some exercises and share real-life documents to help provide connections to practice.  Beyond that, though, I haven't found a way to make this a highly skills centered class.  I am okay with that, because I don't think every course needs to (or should) be skills focused in the same way I don't think every class should be taught by, for example, a lecture with a single comprehensive exam at the end.  

In my Labor & Employment Law class, however, I do something a little different.  This is my second time through this iteration of the course, and my students (and I) enjoyed it in the first year.  Here's the plan:   I run the course as a small law firm, where everyone works with me. Enrollment is capped at 24.  I use the Case and Controversy files, which are formerly the CaseFile Method, (available here) as the primary materials, and I have created a number of my own materials, especially for the labor-related issues I cover.  Below the break are some excerpts from my syllabus and course overview.  I welcome questions, comments, and/or suggestions (via comments to this blog or my e-mail, which can be found on the left bar of this page). 

Labor & Employment Law Course Overview and Syllabus (excerpts)

Course Introduction:

Welcome to Labor and Employment Law. By enrolling in this course, you have just joined a virtual law practice, Dewey, Servem & Howe, P.C., in which you and your classmates are entry-level associates. As such, my expectations of you will parallel to those found in the workplace. For example, our classroom will be a casual “office,” but professional dress is expected during times where it would be in the law firm (e.g., a client meeting). Your reading assignments are provided in this syllabus. However, your writing assignments, which are part of how you will be assessed in this course (described in detail below), will be provided via e-mail in the same way you would likely receive assignments in practice. Those assignments will explain your overall audience, such as the client, opposing counsel, or legislators, but at all times you will also be writing for me as your assigning partner. Below you will find a description of the course materials, objectives, and expectations, and a syllabus. I look forward to working with you.

Course Overview and Expectations Objectives: 

Upon successful completion of the course, students should be able to 

• Recognize issues and argue legal positions related to labor and employment law problems, including an understanding of employment markets; hiring, firing, and dispute resolution processes; and contract interpretation and negotiation. 

• Write, reason, and deliver writing projects on deadlines similar to those found in legal practice. 

• Present legal ideas in a clear and cohesive manner for a variety of audiences, including other attorneys, current and potential clients, opposing parties and counsel, judges, arbitrators, and mediators.

Attendance and Participation: For the Case and Controversy materials to be effective, students must attend class regularly and must be prepared for class. Students must be prepared to discuss the cases and other materials and support their clients’ positions, as well as explain the counterarguments. Students will be permitted one opportunity to “pass.” Beyond this, additional “passes” will be counted as an absence. That said, the course is designed to be less formal and have the discussion flow naturally. As such, the goal and expectation is that there will be little need for anyone to “pass.” To be clear, incorrect answers are never a problem in this course. No response or uniformed guesses are a problem. There will never be sanctions for trying in this course, only for not trying. Students are expected to attend every class. Students are permitted to miss up to four classes for other obligations without explanation. This number is to include all absences (except those for religious observance, which are separate), including sickness, out-of-town interviews, etc. If classes in excess of four are missed, to avoid withdrawal from the course a written explanation may be required, including the reason for missing additional classes, the student’s plan to ensure the materials covered in the missed classes will be learned, and the reasons the student should be permitted to continue in the course. Please contact me or Dean McLean with any questions about the attendance policy. 

Evaluation/Grading: Because of the course and assignment structure, grading in this course is not anonymous. 

Short Writing Assignments – 60% of the course grade (3 assignments at 15% each and 3 rewrites at 5% each) For each segment of the course, students must pick three Files upon which to complete their writing assignments. Students may be asked to write a short memorandum, draft proposed legislation, suggest contract language, or craft other practice-related documents. These assignments will be 2-4 single-spaced pages addressing the issues related to the relevant File. Rewrites and/or corrections to the assignments are also required. Once signed up for an assignment day, the specific assignment will be provided by e-mail between 48 and 96 hours before that class. More detailed requirements for these assignments will be provided during the first class meeting. 

Class Participation/In-Class Assignments – 10% of the course grade In-class assignments will be distributed in some of the classes. Some of these assignments will be completed in small groups and others will be individual assignments. These assignments, along with the contributions to the class, will be part of the grade. The expectation is that each student will get all the available points in this segment of the course, assuming each student makes an effort to participate and engage in the discussions. Obviously, regular (but not perfect) attendance is necessary. 

Student-Led Review – 5% of the course grade After the materials for each the Employment Law section of course is completed, there will be two days of review that will be student led. Each student must present a portion of the course (5 minutes) related to one of the CCFs. Students may choose to work in groups of two, if they wish (groups of two would have 10 minutes of presentation time). A sign-up sheet will be provided during class to assign each student a case or group of cases for review. 

Course Material Presentation – 15% of the course grade Each student will be required to teach a portion of one class (15 minutes) in the last third of the semester. The student will be provided the materials to teach and will be responsible for presenting a portion of that day’s materials. 

“Exit Memos” – 10% of the course grade (5% mid-term, 5% end of course) After the review for each portion of the course is completed, students will be asked to write an Exit Memo of 1-2 pages. The Exit Memo is designed to be self-reflective and will explain what the student has learned during that section of the course, what was most important to them in that section, and what they believe is likely to be the most significant impact on the law and practice of law. A detailed description of the exit memo will be provided.

--Joshua Fershee

New Proxy Access Rules

Lisa Fairfax has a nice summary here.  She highlights what I think has to be one of the money quotes from the release:

[C]orporate governance is not merely a matter of private ordering.  Rights, including shareholder rights, are artifacts of law, and in the realm of corporate governance some rights cannot be bargained away but rather are imposed by statute.  There is nothing novel about mandated limitations on private ordering in corporate governance.

Larry Ribstein shares some of his thoughts on the new rules here.  From his perspective, we can "expect months or years of litigation, political wrangling and disruption. Just what corporate America needs in a fragile economy."

Finally, J. Robert Brown notes that the new rules are "in effect a recognition that the use of 'independent' directors nominated by management does not work adequately to protect the interests of shareholders."  He also opines that as for the federalization of corporate law, Delaware has no one but itself to blame:

Delaware may have always had a pro-management approach to corporate law, but cases such as Citigroup, Selectica, and Axcelis, suggest that the approach has shifted much further in that direction.  The approach is almost singularly responsible for the transfer of governance rights from the states to the federal government.

SJP 

Replacing Casebooks With Study Guides

I've been toying with the idea of replacing casebooks with the popular "Examples & Explanations" study guides in at least a few of my classes.  Why?  Because the study guides are significantly less expensive and more likely to be used in practice, and I believe they would allow me to cover more black letter law in less time--thereby allowing me to try "alternative" teaching and assessment methods that I would otherwise not have the time to implement.

What do you think?

SJP

Video Games, Best Efforts, and the Plight of the Long Snapper

Yesterday, I taught Business Associations I for the first time this semester, and today I begin Labor and Employment Law. Despite the name, that latter course is primarily an employment law course that provides an introduction to the NLRA and labor issues as they relate to the employment market. While it may not seem obvious, the overlap between BA and employment law (at least as I teach it) is quite substantial.

I was (am) preparing for my first class of the semester in Labor and Employment Law, and along came an e-mail with an article highlighting this overlap: “Vikings Outraged (Kind Of) Over Exclusion Of Long Snapper In Madden.” (Full disclosure as to another reason why I might find this is relevant: I worked in the videogame industry before I went to law school.)

Madden, of course, refers to the video game Madden NFL 11. Despite the ever-increasing realism of the game (this is along way from Tecmo Bowl), the folks who publish the game at Electronic Arts have decided not to add the long snapper (the center for punts, field goals, and extra points) to the game (save for one). So, Minnesota Vikings long snapper Cullen Loeffler, who has been on the team for seven years, has never been in the videogame.

The often-humorous article provides comments from players that range from over-the-top support to good-natured teasing, and it sounds like Loeffler is taking it in stride. As examples: Punter Chris Kluwe reportedly says , "As an avid gamer, it wrenches my heartstrings to see this unfortunate lack of respect for one of the best snappers in the business. Also, [EA] should bump my stats up." Defensive tackle Pat Williams, in contrast: "I feel good about that, that's the greatest thing I've heard all day."

It got me to think, though, about whether Loeffler would have a legitimate complaint if he really cared. After all, his union, the NFL Players Association (NFLPA), is responsible for such licensing. According to the current collective bargaining agreement (CBA) (pdf), Article V – Union Security, provides:

Section 4. NFLPA Player Group Licensing Program: The NFL recognizes that players have authorized the NFLPA to act as their agent in a Group Player Licensing program (defined below) for their benefit.

. . . . Group Player Licensing shall be defined as the use of a total of six or more NFL players’ names, signatures facsimiles, voices, pictures, photographs, likenesses and/or biographical information on or in conjunction with products (including, but not limited to, trading cards, clothing, videogames, computer games, collectibles, internet sites, fantasy games, etc.) . . . .

The NFL Player Contract, which is Appendix C to the CBA, provides that each player “assigns to the NFLPA and its licensing affiliates, if any, the exclusive right to use and to grant to persons, firms, or corporations (collectively “licensees”) the right to use his name, signature facsimile, voice, picture, photograph, likeness, and/or biographical information (collectively “image”) in group licensing programs.” The contract then reproduces the definition of group licensing from the CBA.

The contract continues:

In consideration for this assignment of rights, the NFLPA will use the revenues it receives from group licensing programs to support the objectives as set forth in the Bylaws of the NFLPA. The NFLPA will use its best efforts to promote the use of NFL player images in group licensing programs, to provide group licensing opportunities to all NFL players, and to ensure that no entity utilizes the group licensing rights granted to the NFLPA without first obtaining a license from the NFLPA . . . . This paragraph shall be construed under New York law without reference to conflicts of law principles.

Which brings me to this: did the NFLPA really use its “best efforts” under New York law to help Loeffler and his similarly situated brethren appear in the game? Although New York law is not clear about what “best efforts” means, some view it to mean “do everything possible” to obtain the outcome; others think is means something more like “must at least try.” (Click here for a good, quick summary.) Regardless, it seems to me that it does require at least some attempt.

Obviously, this does not mean that long snappers and punters should be on the cover of marketing materials or featured parts of advertising. EA would simply say no. But shouldn’t players who are part of every game be more of a priority for the NFLPA than practice squad players who may never, ever see the field in a live game? Shouldn’t they matter to EA, whose early slogan was, “If it’s in the game, it’s in the game?”

Perhaps long snappers were a part of the negotiation and EA did say no. But if I were Loeffler or another long snapper, I'd want to know if the NFLPA even asked about including me. After all, the NFLPA’s best efforts in that regard were the consideration for assigning group licensing rights. They could at least ask.

--Joshua Fershee

The SEC Sues New Jersey

This is no doubt the regulatory season for broad strokes.  Emphasis has been placed on entities so large as to be "systemically significant;" a whole nation has seen its sovereign debt downgraded.   

And, as was recently publicized, the State of New Jersey ran afoul of SEC disclosure rules.  Specifically, on  August 18th, the SEC filed and settled charges alleging inadequate disclosures attending the State's sale of $26 billion in municipal bonds over the course of 79 offerings.  The inadequate disclosures are said to have shielded the State's underfunding of its two largest pension plans.   

Observers will no doubt note that the settlement is a mixed bag.  The facts reach as far back as 2001, (Sarbanes-Oxley increased the SOL for private actions sounding in fraud to a maximum of 5 years).  However, Rule 10b-5 (thought to be the harshest of SEC charges) is not mentioned, even though the flexible anti-fraud prohibtion readily applies equally to misstatements/omissions in both purchases and sales of securities.  Likewise, seemingly applicable books and records violations are absent. 

Further, the State settled with the benefit of the magical "without admitting or denying" language, while the SEC avoided having to prove factual paragraphs littered with fun phrases like "unfunded actuarial accrued liability" and "benefit enhancement funds of...excess valuation assets."  As has been aptly noted, although the settlement represents the imposition of a cease and desist order premised upon fraud, no monetary penalties were implemented (the State agreed to an "enhanced" disclosure process), and no individuals were mentioned.  In short, the SEC gained its second case against a governmental unit for violations of an anti-fraud prohibition, but the resulting precedent, arguably, has limited deterrent effect.

Fans of enforcement decisions will also notice the recurring importance of the 4th estate: The Order notes that an April 2007 news article raised issues of both the State's bond offering disclosures and "New Jersey's funding of its pensions."  Of particular note is the SEC's inclusion of caselaw on Section 17(a) - Basic v. Levinson, and TSC Industries, Inc. v. Northway are re-emphasized as authorities on materiality, while two circuit court decisions from the 1990s are offered for the conclusion that 17(a) violations "may be established by showing negligence."  

For the SEC press release (with a link to the actual Order) see www.sec.gov/litigation/admin/2010/33-9135.pdf .

---JSC, 8/24/10

Investors Skeptical of Stock Market and Housing and . . .

This weekend brought news that many small investors are exiting the stock markets at a rate similar to that of the 1980s.  Similarly, people are (for the most part) not thinking of homes as long-term growth investments in the way they were five or six years ago.  This is not shocking in the near term -- people are scared. Nonetheless, it's odd to me how small investors tend to operate. That is, despite the old adage of "buy low, sell high,"  small investors tend to do just the opposite.  

Of course, not everyone is on the same page.  One survey reports that numerous respondents in California, Boston, and Milwaukee believe that housing prices are poised to increase about 10% per year over the next decade.  (Side note:  I can't help but wonder if some people think just saying it will make it true.)

Perhaps the real lesson in all of this is that, as a group, people tend to have unrealistic expectations, in both directions, of our investments (among other things). We tend to view investments as doomed to fail or destined to make us wildly wealthy.  Isn't it possible that the market, having now corrected in many areas, is poised for slow and steady growth?  

I suppose that's easy to say when you live in North Dakota -- our housing market (but for a few oil-rich areas) has been stable and steady, but unremarkable, for years.  It's why no one even brought sub-prime lending to the state -- little potential for rapid rises in home prices made such loans silly (I mean, sillier).  

As a new semester begins (for me, tomorrow), here's hoping that the next year brings stable and steady growth in both markets in a way that a little confidence in the market, instead of irrational exuberance or its opposite, returns.  

--Joshua Fershee