Tuesday, October 16, 2018
I try not to use this space too often to brag on my students--the folks whose quest for knowledge gets me up in the morning. But three of my students have been co-authors of two separate pieces in the American Bar Association's Business Law Today publication since May. The initiative and the follow-through that these students (two of whom have graduated and are now in private practice) exhibited is truly extraordinary. And so, I brag . . . .
Most recently, my current student Samuel Henninger has co-authored an article with a practitioner on preference payments in bankruptcy entitled "I Scream, You Scream, We All Scream at Preference Claims." Samuel graduates in May 2019. He will clerk for a local bankruptcy court judge next year and then practice with Waller Lansden Dortch & Davis, LLP in Nashville after his clerkship concludes.
Back in May, my former students Brian Adams and Bo Cook co-authored an article together entitled "Limiting the Scope of Post-Closing Actions in Private Mergers & Acquisitions: The Role of Non-Reliance and Integration Clauses in Delaware," delving into enforcement issues in mergers and acquisitions relating to allegations of fraud based on "extra-contractual representations." Brian and Bo graduated in the spring of this year (2018). Brian is a newly minted associate at Polsinelli PC in Nashville and Bo holds the same august position at Bass Berry & Sims PLC also in Nashville.
Few students understand the significant contribution that these kinds of articles may make in solving the problems of practicing lawyers and, potentially, the judiciary. Fewer yet have the chutzpah to think that their article of this kind, if submitted, would make it to publication. Even fewer students would undertake and complete the tailored research and writing that an article of this kind takes. These three guys deserve some real credit, in my estimation. And so, I brag!
Monday, October 8, 2018
BLPB reader Tom N. sent me a link to this article last week by email. The article covers Elon Musk's taunting of the U.S Securities and Exchange Commission (SEC) in a post on Twitter. The post followed on the SEC's settlement with Musk and Tesla, Inc. of a legal action relating to a prior Twitter post. The title of Tom N.'s message? "Musk Pokes the Bear in the Eye." Exactly what I was thinking (and I told him so) when I had read the same article earlier that day! This post is dedicated to Tom N. (and the rest of you who have been following the Musk affair).
Last week, I wrote about scienter issues in the securities fraud allegations against Elon Musk, following on Ann Lipton's earlier post on materiality in the same context. This week, I want to focus on state corporate law--specifically, fiduciary duty law. The idea for this post arises from a quotation in the article Tom N. and I read last week. The quotation relates to an order from the judge in the SEC's action against Musk and Tesla, Alison Nathan, that the parties jointly explain and justify the fairness and reasonableness of their settlement and why the settlement would not hurt the public interest. Friend and Michigan Law colleague Adam Pritchard offered (as quoted in the article): “She may want to know why Tesla is paying a fine because the CEO doesn’t know when to shut up.” Yes, Adam. I agree.
What about that? According to the article, the SEC settlement with Musk and Tesla "prevents Musk from denying wrongdoing or suggesting that the regulator’s allegations were untrue." The taunting tweet does not exactly deny wrongdoing or suggest that the SEC's allegations against him were untrue. Yet, it comes close by mocking the SEC's enforcement activities against Musk and Tesla. Musk's action in tweeting negatively about the SEC is seemingly--in the eyes of a reasonable observer--an intentional action that may have the propensity to damage Tesla.
At the very least, the tweet appears to be contrary to the best interests of the firm. But is it a manifestation of bad faith that constitutes a breach of the duty of loyalty under Delaware law? As most of us well know,
[b]ad faith has been defined as authorizing a transaction "for some purpose other than a genuine attempt to advance corporate welfare or [when the transaction] is known to constitute a violation of applicable positive law." In other words, an action taken with the intent to harm the corporation is a disloyal act in bad faith. . . . [B]ad faith (or lack of good faith) is when a director acts in a manner "unrelated to a pursuit of the corporation's best interests." It makes no difference the reason why the director intentionally fails to pursue the best interests of the corporation.
Bad faith can be the result of "any emotion [that] may cause a director to [intentionally] place his own interests, preferences or appetites before the welfare of the corporation," including greed, "hatred, lust, envy, revenge, . . . shame or pride."
In Re Walt Disney Co. Derivative Litigation, 907 A.2d 693, 753-54 (Del. Ch. 2005). Of course, Musk was not authorizing a transaction--or even clearly acting for or on behalf of Tesla--in making his taunting tweet. But he is identified strongly with Tesla, and his tweet was intentional and inconsistent with the best interests of the firm. Did he intend to harm Tesla in posting his tweet? Perhaps not. Did he act in a manner "unrelated to a pursuit of the corporation's best interests?" Perhaps. The tweet is certainly an imprudent (and likely grossly negligent or reckless) action that appears to result from Musk intentionally placing his own hatred or revenge ahead of the interests of Tesla.
"To act in good faith, a director must act at all times with an honesty of purpose and in the best interests and welfare of the corporation." Id. at 755. Yet, it is unclear how far that goes in a Twitter-happy world in which the personal blends into the professional. Musk was (in all likelihood) not taking action as a director or officer of Tesla when he tweeted his taunt. Yet, he was undoubtedly cognizant that he occupied those roles and that his actions likely had an effect on the firm. Should his fiduciary duties extend to this type of conduct?
And what about the Tesla board's duty to monitor? Does it extend to monitoring Musk's personal tweeting? E.g., the argument made in the Chancery Court's opinion in Beam Ex Rel. Martha Stewart Living Omnimedia, Inc. v. Stewart. Even of not mandated by fiduciary duty law, the SEC clearly wants the board to have that monitoring responsibility. The settlement with the SEC reportedly provides for "Tesla’s board to implement procedures for reviewing Musk’s communications with investors, which include tweets." More for us all to think about when we think about Elon Musk and Tesla . . . . It's always best not to poke the bear.
Monday, October 1, 2018
I have been so grateful for Ann Lipton's blog posts (see here and here) and tweets about Elon Musk's going-private-funding-is-secure tweet affair. Her post on materiality on Saturday--just before the SEC settlement was announced--was especially interesting (but, of course, that's one of my favorite areas to work in . . .). She tweeted about the settlement here:
[Note: this is a screenshot.] Ann may have more to say about that in another post; she did add a postscript to her Saturday post reporting the settlement . . . .
But I also find myself wondering about another of the contentious issues in Section 10(b)/Rule 10b-5 litigation: scienter. This New York Times article made me think a bit on the point. It tells a tale--apparently relayed to the U.S. Securities and Exchange Commission (SEC) in connection with its inquiry into the tweet incident--of fairly typical back-room discussions between/among business principals. This part of the article especially stuck with me in that regard:
On an evening in March 2017, . . . Mr. Musk and Tesla’s chief financial officer dined at the Tesla factory in Fremont, Calif., with Larry Ellison, the chairman of Oracle, and Yasir Al Rumayyan, the managing director of the Saudi Public Investment Fund. During the meal, . . . Mr. Rumayyan raised the idea of taking Tesla private and increasing the Saudi fund’s stake in it.
More than a year later, . . . Mr. Musk and Mr. Rumayyan met at the Tesla factory on July 31. When Mr. Rumayyan spoke again of taking the company private, Mr. Musk asked him whether anyone else at the fund needed to approve of such a significant deal. Mr. Rumayyan said no . . . .
Could Musk have actually believed that a handshake was all that was needed here? We all know a handshake can be significant. (See here and here for the key facts relating to the now infamous Texaco/Getty/Pennzoil case.) But should Musk have taken (or at least should he have known that he should take) more care to verify before tweeting? In other words, can Musk and his legal counsel actually believe they can prove that Musk (1) had no knowledge that his tweet was false and (2) was merely negligent--not reckless--in relying on the oral assurance of a business principal to commit to a $70+ billion transaction?
Don Langevoort has written cogently and passionately about the law governing scienter. One of my favorite articles he has written on scienter is republished in my Martha Stewart book. What he urges in that piece is that the motive and purpose of a potentially fraudulent disclosure are not the relevant considerations in determining the existence of scienter. Rather, the key question is whether the disclosing party (here, Musk) knew or recklessly disregarded the fact that what he was saying was false. Join this, Don notes, with the securities fraud requirement that manipulation or deception be in connection with the purchase or sale of a security, and the test becomes not merely whether Musk misrepresented material fact or misleadingly omitted to state material fact, but also whether he could reasonably foresee the likely impact of his misrepresentation on the market for Tesla's securities.
On the one hand, as Ann points out in her post on Saturday, a number of investors in the market thought the tweet was a joke. Given that, might we assume that Musk--a person perhaps similarly experienced in finance--knew or should have known that his tweet was false? On the other hand, as Ann notes in her post, the SEC's complaint states that "market analysts - sophisticated people - privately contacted Tesla’s head of investor relations for more information and were assured that the tweet was legit. So that’s evidence the market took it seriously." Yet, Musk might just be presumptuous enough to believe he could reasonably rely on an oral promise by a person who is in control of executing on that promise--thinking it represented a deal (although, of course, not one that experienced legal counsel would understand to be legally, or even morally, binding or enforceable). Too wealthy men jawing about a deal . . . .Puffery, or the way business actually is done in this crowd?
Based on what I know today (which is not terribly much), my sense is that a court should find that Musk acted in reckless disregard of the falsity of his words and understood the likely impact those words would have on the trading of his firm's stock. To find otherwise based on the specific facts alleged to have occurred here would inject too much subjectivity into the (admittedly subjective) determination of scienter. But we shall see. As Ann noted in Saturday's post, a private class action also has been brought against Musk and Tesla based on the tweet affair. So, we may yet see the materiality and scienter issues play themselves out in court (although I somehow doubt it).
Monday, September 24, 2018
This past Friday, Burr & Forman LLP and the Clayton Center for Entrepreneurial Law at the University of Tennessee College of Law (including its business law journal, Transactions: The Tennessee Journal of Business Law), cosponsored a conference entittled "Law and Business Tech: Cybersecurity, Blockchain and Electronic Transactions." This was, as you may recognize, the second business law conference UT Law sponsored in a week's time (the first being the Business Law Prof Blog symposium, "Connecting the Threads II," the week before). It has been a busy time for business law faculty and students at UT Law!
(Parenthetically, I will note here that one of the attendees at Friday's event, who also had been at the Business Law Prof blog symposium, came back to this past week's conference because he was so jazzed up about Marcia's presentation at the first event--which she mentions here and here. Thanks, Marcia, for encouraging this interest in blockchain technology in our legal community!)
At Friday's conference, I moderated and participated in a panel on "The Coming Second Wave of Digital and other Electronic Signatures in Commerce." The panelists included Ed Snow of Burr & Forman and Katy Blackwell from SIGNiX. The panel walked through a history and course of conduct from handwritten signatures to electronic signatures to digital signatures, discussing the transitions from one to another (which are, as yet, incomplete). Interesting questions emerged as among us as to, e.g., why banking/credit transactions and mergers/acquisitions tend to lag behind in the adoption of new signature technologies. (Your thoughts are welcomed.)
At the end of the prepared program, my co-panelists asked me to speak about Tennessee's adoption of a digital signature statute back in the spring. This was another of the legislative review projects that I have undertaken as a member of the Tennessee Bar Association Business Section Executive Council. We were given 24-48 hours to comment on a digital signature bill that had been introduced in the Tennessee General Assembly based on an Arizona statute adopted in 2017 (information available here). Although I personally thought the bill/statutory revision was likely unnecessary and would have preferred to spend more time studying it before commenting on it, two of us on the Executive Council pooled comments on the draft bill, which also received comments from other quarters.
The ostensible legislative policy was to ensure the enforceability of legally valid and binding transactions occurring in a distributed ledger environment. Tennessee proponents of the bill wanted to support business in this environment, as I noted in commentary quoted in this article. With that in mind, two issues were, in the short time we had, important.
Monday, September 17, 2018
I am still basking in the warm glow of having hosted a number of my fellow Business Law Prof Blog editors in Knoxville last week for our second annual "Connecting the Threads" event. What a great day we had on Friday. I could listen to these folks talk about business law until the cows come home (so to speak--no actual cows here!).
As BLPB readers may recall, the title of my paper for the 2018 "Connecting the Threads II" symposium is Lawyering for Social Enterprise. I am sure that I will blog more on that topic in this space later--when my paper from the symposium has been published--but I want to offer here the three paragraphs of conclusion to the handout I prepared for the continuing legal education materials for the program, which focus on the need of judgment, discretion, and even wisdom.
Advising entrepreneurs, founders, promoters, and directors of social enterprises can be both satisfying and frustrating. The satisfaction most often comes from helping these businesses achieve financial success while also serving the public good. The frustration comes from the difficulty of the task in providing the necessary counsel—both in selecting the optimal legal form for the firm and in advising management as the business operates over time. These legal advisory contexts involving social enterprises are richly textured and immerse legal counsel in multi-level decision-making that impacts both internal and external business constituencies. The overall advisory environment implicates, among other things, hortatory text in the Preamble to the Model Rules of Professional Conduct providing that “[a] lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.” In lawyering for social enterprise, the legal advisor’s skill and public service responsibilities interact meaningfully.
Said another way, the complex decision-making involved in lawyering for social enterprise presents obvious challenges for business venturers and their legal counsel that involve not only baseline professional responsibility matters of competence (comprising doctrinal knowledge and solid, rational legal analysis), diligence (by offering patient and perceptive insights in helping the client to choose from among available alternatives), and communication (with the goal of ensuring informed client decision-making), but also the exercise of appropriate discretion and professionalism that require the savvy built from doctrinal, theoretical, and practical experience and leadership capabilities. As Professor Jeff Lipshaw has written in his intriguing and engaging book Beyond Legal Reasoning: A Critique of Pure Lawyering, “I am firmly convinced that great lawyers . . . bring something more than keen analytical skills to the table. They bring some kind of wisdom—a metaphorical creativity—that transcends disciplinary boundaries, both within the law and without.” That brand of wisdom is especially important in the kinds of questions that arise in lawyering for social enterprise.
Accordingly, as lawyers representing social enterprises, we need to develop knowledge of a complex set of laws and well-practiced, contextual legal reasoning skills. But that, while necessary, is insufficient to the task. We also must impose judgment borne of a deep understanding of the nature of social enterprise and of our clients and their representatives working in that space. Only then can we fulfill our professional promise as legal advisors: to provide clients with both “an informed understanding of . . . legal rights and obligations” and an explanation of “their practical implications.”
(footnotes omitted; hypertext links added).
Agree? Disagree? Can we help students (and inexperienced members of the bar) develop complex decision-making rubrics that incorporate judgment and wisdom? Can we teach judgment, wisdom, and the like to law students? Forever the optimist, I have an intuition that we can.
And with that thought in mind, I close with a picture of a UT Law student who gives me that hope. He commented on my draft paper at the symposium on Friday. He has been in my classroom for two semesters now (taking Advanced Business Associations, Corporate Finance, and Mergers & Acquisitions). He spoke about why limited liability companies may be a better legal option for organizing social enterprise firms than corporations. Proud moment for him and for me. He aced it.
Monday, September 10, 2018
I am writing this fall about (among other things) business deregulation in the Trump era. Given that the President's campaign for office featured business deregulation as a prominent tenet, it seems like a good time to visit what's been done to fulfill those campaign promises. Business being a broad area for focus, I am trying to narrow the subject down a bit by picking some salient examples.
I reference the early executive orders on agency rule rulemaking and assessments of their success. See, e.g., here and here. But the deregulatory moves impacting business that have gotten the most media attention are the Trump administration's tax cuts and a few smaller initiatives--like the tamp-backs to parts of bank regulation in the Dodd–Frank Wall Street Reform and Consumer Protection Act. Apart from these headline items, what catches your attention, if anything, about the current administration's forays into deregulation? I would be interested in knowing.
Of course, there also are areas where it seems that there is new business regulation or business re-regulation rather than business deregulation. Perhaps the most prominent area in which the current administration has taken a non-deregulatory approach to business operation is in international trade. The reported outcome of recent trade talks with Mexico, for example, as well as the imposition of significant tariffs on Chinese imports earlier this year, have both been classified as contrary or counterproductive to a deregulatory agenda. See, e.g., here and here, respectively. Query whether and, if so, how these contrary or counterproductive measures should be weighed in any evaluation of business deregulatory success . . . .
And that's just it. Successful deregulation is somewhat in the eye of the beholder. No single reference point represents an established determinant or embodiment of deregulatory triumph. There are no standardized rules of the road governing the evaluation of efficacious deregulatory actions (taken individually or collectively). Thus, political and other biases often underlie reports of effective or ineffective deregulatory initiatives, just as they underlie reports of effective or ineffective regulatory initiatives, even though deregulatory impact may intuitively seem to be more capable of simple measurement and objective assessment.
I will be presenting a draft paper on business deregulation during the Trump administration at an upcoming symposium sponsored by the Mercer Law Review. The symposium, "Corporate Law in the Trump Era," will be held on October 5 at the Mercer University School of Law. I will have more to say on that essay in later posts, I am sure. But for now, I invite you to let me know what current areas of business deregulation interest you most. I would like to make my choices meaningful to the target audience for this essay, which likely includes many BLPB readers.
Monday, September 3, 2018
Like many in the law academy, I find three-day holiday weekends a great time to catch my breath and catch up on work items that need to be addressed. This Labor Day weekend--including today, Labor Day itself--is no exception to the rule. I am working today, honoring workers through my own work. My husband and daughter are doing the same.
This blog post and the announcement it carries are among my more joyful tasks for the day. I have been remiss in not earlier announcing and promoting our second annual Business Law Prof Blog symposium, which will be held at The University of Tennessee College of Law on September 14. The symposium again focuses on the work of many of your favorite Business Law Prof Blog editors, with commentary from my UT Law faculty colleagues and students. This year, topics range from the human rights and other compliance implications of blockchain technology to designing impactful corporate law, with a sprinkling of other entity and securities law related topics. I am focusing my time in the spotlight (!) on professional challenges in the representation of social enterprise firms. More information about the symposium is available here. For those of you who have law licenses in Tennessee, CLE credits are available.
I am looking forward to again hosting some of my favorite law scholars at this symposium. I am sure some will blog about their presentations here (Marcia already has previewed her talk and summarized all of our presentations, and I plan to later blog about mine), Transactions (our business law journal) will publish the symposium proceedings, and videos will be processed and posted on UT Law's CLE website later in the year. But if you are in the neighborhood, stop by and hear us all in person! We would love to see you.
Saturday, September 1, 2018
Did I lose you with the title to this post? Do you have no idea what a DAO is? In its simplest terms, a DAO is a decentralized autonomous organization, whose decisions are made electronically by a written computer code or through the vote of its members. In theory, it eliminates the need for traditional documentation and people for governance. This post won't explain any more about DAOs or the infamous hack of the Slock.it DAO in 2016. I chose this provocative title to inspire you to read an article entitled Legal Education in the Blockchain Revolution.
The authors Mark Fenwick, Wulf A. Kaal, and Erik P. M. Vermeulen discuss how technological innovations, including artificial intelligence and blockchain will change how we teach and practice law related to real property, IP, privacy, contracts, and employment law. If you're a practicing lawyer, you have a duty of competence. You need to know what you don't know so that you avoid advising on areas outside of your level of expertise. It may be exciting to advise a company on tax, IP, securities law or other legal issues related to cryptocurrency or blockchain, but you could subject yourself to discipline for doing so without the requisite background. If you teach law, you will have students clamoring for information on innovative technology and how the law applies. Cornell University now offers 28 courses on blockchain, and a professor at NYU's Stern School of Business has 235 people in his class. Other schools are scrambling to find professors qualified to teach on the subject.
To understand the hype, read the article on the future of legal education. The abstract is below:
The legal profession is one of the most disrupted sectors of the consulting industry today. The rise of Legal Tech, artificial intelligence, big data, machine learning, and, most importantly, blockchain technology is changing the practice of law. The sharing economy and platform companies challenge many of the traditional assumptions, doctrines, and concepts of law and governance, requiring litigators, judges, and regulators to adapt. Lawyers need to be equipped with the necessary skillsets to operate effectively in the new world of disruptive innovation in law. A more creative and innovative approach to educating lawyers for the 21st century is needed.
For more on how blockchain is changing business and corporate governance, come by my talk at the University of Tennessee on September 14th where you will also hear from my co-bloggers. In case you have no interest in my topic, it's worth the drive/flight to hear from the others. The descriptions of the sessions are below:
Session 1: Breach of Fiduciary Duty and the Defense of Reliance on Experts
Many corporate statutes expressly provide that directors in discharging their duties may rely in good faith upon information, opinions, reports, or statements from officers, board committees, employees, or other experts (such as accountants or lawyers). Such statutes often come into play when directors have been charged with breaching their procedural duty of care by making an inadequately informed decision, but they can be applicable in other contexts as well. In effect, the statutes provide a defense to directors charged with breach of fiduciary duty when their allegedly uninformed or wrongful decisions were based on credible information provided by others with appropriate expertise. Professor Douglas Moll will examine these “reliance on experts” statutes and explore a number of questions associated with them.
Session 2: Fact or Fiction: Flawed Approaches to Evaluating Market Behavior in Securities Litigation
Private fraud actions brought under Section 10(b) of the Securities Exchange Act require courts to make a variety of determinations regarding market functioning and the economic effects of the alleged misconduct. Over the years, courts have developed a variety of doctrines to guide how these inquiries are to be conducted. For example, courts look to a series of specific, pre-defined factors to determine whether a market is “efficient” and thus responsive to new information. Courts also rely on a variety of doctrines to determine whether and for how long publicly-available information has exerted an influence on security prices. Courts’ judgments on these matters dictate whether cases will proceed to summary judgment and trial, whether classes will be certified and the scope of such classes, and the damages that investors are entitled to collect. Professor Ann M. Lipton will discuss how these doctrines operate in such an artificial manner that they no longer shed light on the underlying factual inquiry, namely, the actual effect of the alleged fraud on investors.
Session 3: Lawyering for Social Enterprise
Professor Joan Heminway will focus on salient components of professional responsibility operative in delivering advisory legal services to social enterprises. Social enterprises—businesses that exist to generate financial and social or environmental benefits—have received significant positive public attention in recent years. However, social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Professor Heminway will discuss how these legal uncertainties have the capacity to generate transaction costs around entity formation and management decision making and the pertinent professional responsibilities implicated in an attorney’s representation of such social enterprises.
Session 4: Beyond Bitcoin: Leveraging Blockchain for Corporate Governance, Corporate Social Responsibility, and Enterprise Risk Management
Although many people equate blockchain with bitcoin, cryptocurrency, and smart contracts, Professor Marcia Narine Weldon will discuss how the technology also has the potential to transform the way companies look at governance and enterprise risk management. Companies and stock exchanges are using blockchain for shareholder communications, managing supply chains, internal audit, and cybersecurity. Professor Weldon will focus on eliminating barriers to transparency in the human rights arena. Professor Weldon’s discussion will provide an overview of blockchain technology and how state and nonstate actors use the technology outside of the realm of cryptocurrency.
Session 5: Crafting State Corporate Law for Research and Review
Professor Benjamin Edwards will discuss how states can implement changes in state corporate law with an eye toward putting in place provisions and measures to make it easier for policymakers to retrospectively review changes to state law to discern whether legislation accomplished its stated goals. State legislatures often enact and amend their business corporation laws without considering how to review and evaluate their effectiveness and impact. This inattention means that state legislatures quickly lose sight of whether the changes actually generate the benefits desired at the time off passage. It also means that state legislatures may not observe stock price reactions or other market reactions to legislation. Our federal system allows states to serve as the laboratories of democracy. The controversy over fee-shifting bylaws and corporate charter provisions offers an opportunity for state legislatures to intelligently design changes in corporate law to achieve multiple state and regulatory objectives. Professor Edwards will discuss how well-crafted legislation would: (i) allow states to compete effectively in the market for corporate charters; and (ii) generate useful information for evaluating whether particular bylaws or charter provisions enhance shareholder wealth.
Session 6: An Overt Disclosure Requirement for Eliminating the Duty of Loyalty
When Delaware law allowed parties to eliminate the duty of loyalty for LLCs, more than a few people were appalled. Concerns about eliminating the duty of loyalty are not surprising given traditional business law fiduciary duty doctrine. However, as business agreements evolved, and became more sophisticated, freedom of contract has become more common, and attractive. How to reconcile this tradition with the emerging trend? Professor Joshua Fershée will discuss why we need to bring a partnership principle to LLCs to help. In partnerships, the default rule is that changes to the partnership agreement or acts outside the ordinary course of business require a unanimous vote. See UPA § 18(h) & RUPA § 401(j). As such, the duty of loyalty should have the same requirement, and perhaps that even the rule should be mandatory, not just default. The duty of loyalty norm is sufficiently ingrained that more active notice (and more explicit consent) is necessary, and eliminating the duty of loyalty is sufficiently unique that it warrants unique treatment if it is to be eliminated.
Session 7: Does Corporate Personhood Matter? A Review of We the Corporations
Professor Stefan Padfield will discuss a book written by UCLA Law Professor Adam Winkler, “We the Corporations: How American Businesses Won Their Civil Rights.” The highly-praised book “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’ – the centuries-long struggle for equal rights for corporations.” However, the book is not without its controversial assertions, particularly when it comes to its characterizations of some of the key components of corporate personhood and corporate personality theory. This discussion will unpack some of these assertions, hopefully ensuring that advocates who rely on the book will be informed as to alternative approaches to key issues.
September 1, 2018 in Ann Lipton, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, Current Affairs, Employment Law, Human Rights, Intellectual Property, International Business, Joan Heminway, Joshua P. Fershee, Law School, Lawyering, LLCs, Marcia Narine Weldon, Real Property, Shareholders, Social Enterprise, Stefan J. Padfield, Teaching, Technology, Web/Tech | Permalink | Comments (0)
Tuesday, August 28, 2018
Are corporations (and other business associations) political actors? Of course. Some of Marcia's posts here on the BLPB have raised, for example, questions about the use of boycotts as firm political activity. See, e.g., here. Marcia also pointed out here that National Football League teams (typically owned by and operated through some form of business association) have been caught up in political activity surrounding the players-kneeling-during-the-national-anthem controversy.
The Vanderbilt Law Review has recently published an essay on the political corporation written by a Dream Team of sorts--two friends who are married to each other--at the University of South Carolina School of Law, Susan Kuo and Ben Means. Susan teaches advocacy and dispute resolution courses (currently focusing on criminal law and procedure, conflicts, and social justice issues) and is the Associate Dean for Diversity and Inclusion. Ben is likely known to many BLPB readers as a business law guy (with a special focus on small and family owned busnesses). He's been a member of the executive committee for the Association of American Law Schools (AALS) Section on Business Associations and is past chair of the AALS Section on Agency, Partnership, LLCs, and Unincorporated Business Associations. They bring their individual and collective talents to this essay, entitled The Political Economy of Corporate Exit. Here is the SSRN abstract.
Corporate political activity is understood to include financial contributions, lobbying efforts, participation in trade groups, and political advertising, all of which give corporations a “voice” in public decisionmaking. This Essay contends that the accepted definition of corporate political activity overlooks the importance of “exit.” Corporations do not need to spend money to exert political influence; when faced with objectionable laws, they can threaten to take their business elsewhere. From the “grab your wallet” campaign to the fight for LGBT rights in states such as Georgia, Indiana, and North Carolina, corporate exit has played a significant role in recent political controversies.
This Essay offers the first account of corporate exit as a form of political activity and identifies two basic rationales: (1) attaching economic consequences to public choices, and (2) avoiding complicity with laws that violate a corporation’s values. This Essay also shows how citizens can harness corporate economic power when conventional political channels are inaccessible. In an era of hashtag activism and boycotts sustained via social media, corporations cannot afford to ignore consumers, employees, investors, and other stakeholders.
I communicated with Ben about this piece a while back and was excited about it then. I am looking forward to getting into it in short order. Looks like a relevant, insightful read.
Tuesday, August 21, 2018
This post notifies/reminds everyone that the American Bar Association's LLCs, Partnerships and Unincorporated Entities Committee will be hosting its annual LLC (that's limited liability company, Josh!) Institute on October 11 and 12, 2018 in Washington, D.C. The 2018 program is being held at the Westin Washington, D.C. City Center. Registration can be accomplished here.
For those of you who have not been to this unique ABA program, to consists of a enticing, manageable, substantive programs. The audience is very participatory; lots of questions are raised and comments are freely given. Presenting in front of this group is pure joy, unless you have insufficient knowledge or are unprepared. I try to put this into my fall schedule every few years. I always learn something there.
This year's agenda includes sessions on tax and choice of entity, recent tax law changes, beneficial ownership reporting, derivative actions, ethical compliance, and charging orders, as well as the two traditional annual favorites, the non-Delaware, Delaware, and bankruptcy case summaries offered by Baylor Law's Beth Miller. In addition to Beth, from the academic side of the aisle, Duke Law's Deborah DeMott is participating in the session on derivative actions, and B.U. Law's Nancy Moore will be addressing issues relating to ethical compliance. (The compliance session comes with a particularly attractive title--at least in the version of the schedule sent to me: Ethics: The Top 15 Things Your Ethics Counsel-Risk Manager Hope You Know (and Hopefully Remember.)
Also, a little birdie (named Tom Rutledge, one of the leaders in organizing the LLC Institute) told me that plans already are in process for the 2019 LLC Institute. So, if you have ideas for topics that might be covered or speakers that might be appropriate for that program, let me or Tom know. The program for the LLC Institute always seems so full . . . . But I know that Tom--one of the nicest and smartest guys around--is receptive to topic and speaker suggestions.
Monday, August 13, 2018
On Saturday evening, I returned from the 2018 Southeastern Association of Law Schools (SEALS) annual conference (program here). My week-long tour of duty as a conference registrant spanned three different areas of engagement: (1) volunteerism in the portion of the conference dedicated to helping prepare prospective law faculty for the law school appointments process; (2) attendance at programs of interest on substantive law, law schools, and law teaching; and (3) participation (through presentation and commentary) in business law discussion groups. Although I was exhausted by the time I left (especially because I also attended portions of two meetings of the SEALS Board of Trustees), I also was rewarded by each of the three types of involvement in the conference.
The prospective law teachers component of the conference offers the opportunity for a select group of future teacher-scholars to present a sample job talk, receive comments on their draft CVs, and engage in mock interviews. This year, I participated as a mentor in all three components. Some folks needed more support with pieces of the process than others, as you might imagine. But all were amply qualified and deserving of appointments. Several sent me nice "thank you" messages. I hope that we will stay in touch.
I was able to attend a few sessions (or parts of sessions) of various kinds that did not focus on business law directly. Some featured my UT Law colleagues; others represented areas of interest wholly outside or only indirectly related to business law. For example, I attended an international panel on "Fake News" in a Digital Era, a discussion session on Strategies for Bar Preparation and Success, a New Scholars Workshop panel focusing on works-in-process relating to regulatory questions in various areas of law, a program entitled Workshop on Teaching to Engage, and a healthcare and bioethics discussion session. All had something relevant to offer to my scholarship, teaching, or service. As a result of the teaching session, I plan to move one day of office hours a week to our law school commons c=area, so that students can just drop in individually or in groups. I will try to remember to report out on that experiment.
Finally, I did participate in three discussion groups and attend a fourth as part of the Business Law Workshop at the conference. Specifically: I co-chaired--with John Anderson--an insider trading discussion session (U.S. v. Martoma and the Future of Insider Trading Law); chaired a second discussion forum on Alternative ways of Going Public; commented on forthcoming works in a Corporate Governance discussion group; and participated in a final discussion forum on The Role of Corporate Personhood in Masterpiece Bakeshop organized and chaired by our own BLPB co-editor Stefan Padfield. Fellow co-editor Marcia Narine Weldon also attended and participated in this and other programming at the conference. The discussions in these sessions were rich and varied. Perhaps Stefan will have more to say about the discussion group he organized . . . . I think he was pleased with the result of his call for participation. I found the conversation stimulating and fascinating
The 2019 conference is scheduled to start at the end of July (July 29-August 4) in Boca Raton, Florida. Look for news on it here, or sign up for the SEALS blog, through which SEALS makes major announcements of interest to subscribing faculty. If you would like to organize a business law program for next year's conference, please feel free to contact me for advice. I helped originate the SEALS Business Law Workshop years ago and can provide assistance with the proposal submission process.
The Washington and Lee University School of Law seeks to hire a faculty member with research and teaching interests in the fields of corporate law, securities regulation, and/or commercial law. Our school has a long history of outstanding scholarship and teaching in these areas, and we are excited to advance our trajectory with a new hire. In addition to this subject-matter focus, we look for an individual who will embrace and meaningfully contribute to our close-knit, collegial, and intellectually vibrant community.
We warmly invite applications for a position as Assistant or Associate Professor of Law beginning July 1, 2019, and we are particularly focused on lateral candidates with between 2-4 years of experience. In all cases, candidates for the position must demonstrate a record of excellence in both teaching and scholarship.
Washington and Lee University School of Law is an Equal Opportunity employer that does not discriminate on the basis of race, color, religion, national or ethnic origin, sex, gender identity, gender expression, sexual orientation, age, disability, veteran’s status, or genetic information with regard to employment. We have a commitment to enhancing the diversity of our faculty and, in that regard, we welcome candidates who are members of communities that are traditionally under-represented in the legal profession and academia.
Applicants should submit the following materials through the W&L portal (https://apply.interfolio.com/53173): a cover letter describing their interest in the position, a current curriculum vitae, a research agenda, and a list of references. Please address these materials to Prof. Christopher B. Seaman, Chair of the Faculty Appointments Committee. Any questions may be addressed to Prof. Seaman at email@example.com. All inquiries will be treated as confidential.
Monday, August 6, 2018
Today, I am at the Southeastern Association of Law Schools ("SEALS") annual conference working with aspiring law professors. More on that and other aspects of SEALS next week. But it seems a number of law schools are hiring for the 2019-20 academic year, some specifically looking for business law folks and others looking for MVPs that may include business law folks. Set forth below are several of the messages I have gotten in the past few weeks. Hopefully, I have managed not to repeat a notice someone else already has posted . . . .
* * *
Professor of Law / Assistant (Acting) Professor of Law
University of California, Irvine School of Law
The University of California, Irvine School of Law invites applications for tenured and non-tenured faculty positions beginning August 1, 2018.
UC Irvine School of Law is a visionary law school focused on training talented and passionate lawyers and driven by professional excellence, intellectual rigor, and a commitment to enrich our communities through public service. UCI Law, founded just ten years ago, is the newest public law school in California in early 50 years and currently is ranked 21st nationally by U.S. News & World Report.
The School, ranked 6th in the nation for scholarly impact, is highly regarded for its faculty and expert practical training. UCI Law offers a distinct, innovative approach to legal education that features experiential learning and interdisciplinary studies. Committed to values of public service, excellence in scholarship and teaching, and fostering a diverse, inclusive community, UCI Law is home to distinguished faculty and passionate, talented, and socially conscious students.
Applicants must hold a J.D. degree or equivalent, or a Ph.D. from an accredited institution and have demonstrated potential for outstanding teaching and scholarly achievements. Scholars from all areas of interest are encouraged to apply.
For more information about UCI Law, visit: www.law.uci.edu.
Interested applicants should submit formal materials using UC Irvine’s online application system, AP Recruit:
The University of California Irvine is an Equal Opportunity/Affirmative Action employer advancing inclusive excellence. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age, protected veteran status, or other protected categories covered by the UC nondiscrimination policy. A recipient of an NSF ADVANCE award for gender equity, UCI is responsive to the needs of dual career couples, supports work-life balance through an array of family-friendly policies, and is dedicated to broadening participation in higher education.
* * *
WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for tenure-track positions, to begin in the fall of 2019.
We are particularly interested in corporate law, property law, and criminal law. Candidates must have at a minimum a J.D., a PhD, or the equivalent in a related field. In addition, candidates should have strong scholarly potential and a commitment to excellence in teaching. Duties will include teaching assigned courses, researching and publishing scholarly work, advising students, and participating in law school and university service. The strong candidate will demonstrate the ability to create inclusive classrooms and environments in which all students can learn and thrive.
The committee will be reviewing applications submitted through the AALS Faculty Appointments Register, but is willing to consider materials outside of the FAR process. Although there is no deadline, applications will have the best chance of full consideration if they are received by August 21, 2018. Application materials should include a cover letter, a resume which includes at least 3 references, a list of publications and up to three pieces of scholarly work. Materials should be submitted to Professor Kevin Collins, Chair of Appointments Committee, Washington University School of Law, by emailing them to firstname.lastname@example.org.
Washington University in St. Louis is committed to the principles and practices of equal employment opportunity. It is the University’s policy to recruit, hire, train, and promote without regard to race, color, age, religion, sex, sexual orientation, gender identity or expression, national origin, protected veteran status, disability, or genetic information.
* * *
UNIVERSITY OF CALIFORNIA AT DAVIS SCHOOL OF LAW invites applications for two entry-level, tenure-track positions to begin July 1, 2019. Our hiring needs are flexible. We seek applications from candidates with scholarly distinction or promise and a commitment to excellence in teaching.
All candidates must apply through the UC Recruit system at the following link: https://recruit.ucdavis.edu/apply/JPF02341. In addition, as part of their application, candidates must include a Statement of Contributions to Diversity. Information about the Statement can be found at https://academicaffairs.ucdavis.edu/diversity/equity_inclusion/index.html. For full consideration, applicants should apply by September 27, 2018, although we recommend that you submit your materials as soon as possible.
Candidates must have a J.D. or equivalent degree. We require a cover letter, curriculum vitae, research agenda, teaching evaluations and/or transcripts, writing sample, and contact information for three references at this time. Please note that we may require further documentation at a future date, including, but not limited to, letters of recommendation, which will be treated as confidential per University of California Policy and California state law.
Please direct questions to Professor Peter Lee, Chair of the Faculty Appointments Committee, via email at email@example.com.
Inquiries about visiting positions should be submitted to Senior Associate Dean for Academic Affairs Afra Afsharipour, also at firstname.lastname@example.org.
The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy, see https://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct.
* * *
THE UNIVERSITY OF KENTUCKY COLLEGE OF LAW invites applications for one, possibly two, entry-level, tenure-track faculty positions at the rank of Assistant Professor, beginning in the Fall of 2019. The College is seeking to fill needs in almost any area of law. Some key areas include Criminal Law, Criminal Procedure, Property, Civil Procedure, Contracts, Family Law, Securities Regulation, and Trusts and Estates. However, we are interested in considering candidates who teach and/or research in other areas that are not included in this sample list of priorities. The College of Law is an important part of a major research university and offers a collegial and supportive atmosphere for its faculty, staff, and students. Applicants should have a J.D. or equivalent law degree, a record of high academic achievement, and a demonstrated potential for excellence in teaching and in scholarly productivity. Salary for this position will be commensurate with experience.
The University of Kentucky is an Equal Opportunity University that values diversity and inclusion. Individuals with disabilities, minorities, veterans, women, and members of other underrepresented groups are encouraged to apply.
Applicants should send a letter of application and resume to Jennifer Bird-Pollan, Chair, Faculty Appointments Committee, by mail at the University of Kentucky College of Law, 213 Mandrell Hall, Lexington, KY 40506-0048, or by email to the administrative assistant for the Committee at email@example.com.
To receive consideration for this position, applicants must apply through the University of Kentucky’s Integrated Employment System at https://ukjobs.uky.edu/postings/154559.
THE UNIVERSITY OF KENTUCKY COLLEGE OF LAW invites applications for one experienced, tenured or tenure-track faculty position at the rank of Associate Professor or Professor, beginning in the Fall of 2019. The College is seeking to fill needs in almost any area of law. Some key areas include Criminal Law, Criminal Procedure, Property, Civil Procedure, Contracts, Family Law, Securities Regulation, and Trusts and Estates. However, we are interested in considering candidates who teach and/or research in other areas that are not included in this sample list of priorities. The College of Law is an important part of a major research university and offers a collegial and supportive atmosphere for its faculty, staff, and students. Applicants should have a J.D. or equivalent law degree, a record of high academic achievement, and distinguished accomplishment in teaching and in scholarly productivity. Salary for this position will be commensurate with experience.
The University of Kentucky is an Equal Opportunity University that values diversity and inclusion. Individuals with disabilities, minorities, veterans, women, and members of other underrepresented groups are encouraged to apply.
Applicants should send a letter of application and resume to Jennifer Bird-Pollan, Chair, Faculty Appointments Committee, by mail at the University of Kentucky College of Law, 213 Mandrell Hall, Lexington, KY 40506-0048, or by email to the administrative assistant for the Committee at firstname.lastname@example.org.
To receive consideration for this position, applicants must apply through the University of Kentucky’s Integrated Employment System at https://ukjobs.uky.edu/postings/154567.
Monday, July 30, 2018
Hello to all from Tokyo, Japan (Honshu). I have been in Japan for almost a week to present at and attend the 20th General Congress of the International Academy of Comparative Law (IACL), which was held last week in Fukuoka, Japan (Kyushu). By the time you read this, I will be on my way home.
As it turns out, I was at the Congress with old business law friends Hannah Buxbaum (Indiana Maurer Law), Felix Chang (Cincinnati Law), and Frank Gevurtz (McGeorge Law), as well as erstwhile SEALS buddy Eugene Mazo (Rutgers Law). I also met super new academic friends from all over the world, including several from the United States. I attended all of the business law programs after my arrival (I missed the first day due to my travel schedule) and a number of sessions on general comparative and cross-border legal matters. All of that is too much to write about here, but I will give you a slice.
I spoke on the legal regulation of crowdfunding as the National Rapporteur for the United States. My written contribution to the project, which I am told will be part of a published volume, is on SSRN here. The entire project consists of eighteen papers from around the world, each of which responded to the same series of prompts conveyed to us by the General Rapporteur for the project (in our case, Caroline Kleiner from the University of Strasbourg). The General Rapporteur is charged with consolidating the information and observations from the national reports and synthesizing key take-aways. I do not envy her job! The importance of the U.S. law and market to the global phenomenon is well illustrated by this slide from Caroline's summary.
The Congress was different from other international crowdfunding events at which I have presented my work. The diversity of the audience--in terms of the number of countries and legal specialties represented--was significantly greater than in any other international academic forum at which I have presented. Our panel of National Rapporteurs also was a bit more diverse and different than what I have experienced elsewhere, including panelists hailing from from Argentina, Brazil, Canada, France, Germany, Poland, and Singapore (in addition to me). At international conferences focusing on the microfinance aspects of crowdfunding, participants from India and Africa are more prominent. I expect to say more about the individual national reports on crowdfunding in later posts, as the need or desire arises.
A few outtakes on other sessions follow.
July 30, 2018 in Conferences, Contracts, Corporate Finance, Corporate Governance, Crowdfunding, Current Affairs, International Business, International Law, Joan Heminway, Research/Scholarhip, Securities Regulation, Social Enterprise | Permalink | Comments (0)
Thursday, July 26, 2018
One of the business law academy's power couples, Amy and Bert Westbrook, recently posted an intriguing piece on SSRN that Bert and I have been communicating about a bit this summer. It is entitled Snapchat's Gift: Equity Culture in High-Tech Firms, and it is, indeed, a lovely gift--well conceived and packaged. It is a look at dual class common equity in technology firms--and equity more generally--that confronts and incorporates many perspectives from law, economics, and other social sciences.
Some of you, like me, teach basic corporate finance in a variety of courses. In those situations, it is important for instructors to have a handle on descriptions of the basic instruments of corporate finance--debt, equity, hybrid, and other. What is the package of rights each instrument represents that incentivizes investors to supply money or other valuable assets? In my classes, we ultimately discuss equity as a bundle of rights that includes potentials for financial gain and governance. Snapchat's Gift digs into the validity of these perceived rights in relevant part by focusing on recent changes in the primary public offering market for equity securities in the United States--in particular, the advent of highly publicized and fully subscribed initial public offerings of nonvoting common shares.
Monday, July 23, 2018
On Thursday and Friday of last week, I had the honor of attending and presenting at the inaugural conference on Women's Leadership in Academia at the University of Georgia School of Law. The conference featured a wide variety of plenary and breakout/workshop sessions over the two days. My dean and two other colleagues from UT Law also were presenters at the conference; an additional UT Law colleague attended but did not present.
The opening plenary panel featured four women talking about "Me Too and the Legal Academy." The panelists offered perspectives from journalism, criminal law, tort law, constitutional law, victim/survivor advocacy, classroom teaching, law school administration, campus Title IX adjudication, and personal experience. Audience members actively participated in a dialogue with the panelists. The keynote on the second day was delivered by the interim provost at UGA, Libby Morris, who offered information on women in leadership--data, anecdotes, and observations--and moderated a related audience Q&A.
The remainder of the program included various panels, presentations, and workshops. Among them was a nifty combined PechaKucha/workshop offered by three of my UT Law colleagues on "Leadership Challenges and Solutions over the Course of a Career" and my breakout session entitled "Outside the Four Walls of the Law School: Law Faculty and Staff as Campus and University Service Leaders." A number of colleagues/friends attended my session, and two took pictures of me in action. Although I look serious and pained in all of those photos, I am including one here since it features a key slide in my presentation.
The full program can be found here.
Friend of the BLPB, Conglomerate blogger, and UGA Law colleague Usha Rodrigues worked with a team of female leaders from a number of schools to organize and carry off the conference. It was exceptionally well done. Future Women's Leadership in Academia conferences will be held at the University of Virginia School of Law (2019), the University of California, Los Angeles, School of Law (2020), and Brigham Young University, J. Reuben Clark Law School (2021). Look for more news here and elsewhere on these annual women's leadership events.
Monday, July 16, 2018
Had I not been taking pictures on the beach during a morning walk with dear college friends on the New England shoreline, I would not have seen the incoming call on my silenced cell phone--a call from a business law colleague from UT Law that I figured I ought to answer. But the call was not, as I expected, a request for help with a research or teaching question. Instead, this colleague was calling to inform me of an email message from our Dean letting us know that our junior business law colleague, Jonathan Rohr, had died the day before. (I am linking here to a YouTube video featuring Jonathan, which will tell you much more about the man that he was than any CV or website.)
Jonathan came into my life almost two years ago when he interviewed with UT Law for a permanent, tenure track position after VAP-ing at his law alma mater, Cardozo. From the start, Jonathan impressed me and others on the Appointments Committee with his intellect, his enthusiasm for the faculty task, and his intensity. He survived the appointments tournament and came to work with us last summer. Before his untimely death, he already had been invited to comment on a paper at last year's AALS annual meeting and had symposium and virtual symposium invitations--as a first-year tenure-track colleague. His scholarship was thoughtful and lucidly written. He worked hard to make every piece better and better and better through editing. He was a popular and revered teacher. He was contributing to our College of Law community in significant ways. I could not have been prouder to have him as a colleague and tried to introduce him to everyone imaginable to get his permanent teaching career off to the right start.
I think it's fair to say that no one was more excited for Jonathan's arrival at UT Law than I. He was what my dear husband calls a "Mini-Me"--someone at the early stages of a career trajectory with a similar professional background who aspires to similar career goals and seeks to be mentored by me along the way. Most of the Mini-Mes that I have worked with were and are law practice colleagues and students. Jonathan was my first faculty Mini-Me. I had plans for our ongoing work together. I think he had plans of that kind, too. We had started working in a number of areas informally. We drank beer and discussed strategies for research, teaching, tenure, promotion, etc. The one academic year that we had together was idyllic in so many ways--too good to be true, for me, as I often observed. Our last conversation about his current work and my current work was last week. He was writing a guest post for this blog. He promised to send me his most recent essay in draft form for review. On July 11, he sent the essay to me and a few others. Two days later, he was no longer with us. Unbelievable.
And so, on Saturday, after my colleague delivered the news during that beach walk, I stopped and cried. I asked "why?" so many times and shook my head in disbelief as I moaned and the tears fell. What else could I do? The once colorful, happy beach scene turned gray. Over 20 years ago, I remember my husband relating that the colors were taken from him when his Dad, a vibrant graphic artist, died too young (but at a much older age than Jonathan). I understood in that moment on the beach exactly what my husband meant. Yet, I knew I had to move on. My friends were way down the beach by that time. They needed to know what had transpired. I needed their support and love; and I knew I needed them to to try help me make sense out of the world around me. Everything was and remains a bit off-kilter. I know many of you can identify with that feeling.
As I walked down the beach, head bowed low, the first thing that stood out for me on the bland, gray sand was this rock.
It appeared blue in the sunshine--a striking blue in the dull sandy grayness--although in other lights it takes on more charcoal color, as it does in this photo. Like Jonathan, it stood out as special, a near-perfect specimen among many others. In finishing the walk, I picked up several other objects that stood out from others on the beach. Somehow, that effort comforted me. I cannot really say why . . . .
Over the past few years, those of us who research and teach business law have mourned the loss of a number of amazing colleagues. These passings have hit all of us hard, professionally and personally. But the loss of Jonathan Rohr from our midst feels qualitatively different to me, as a close colleague and mentor. It will take time for me and many others who knew him to even begin to process this tragic loss. Perhaps this post will begin a process of healing for me. But I do not know that I ever will make sense out of this. We have lost a man that many had loved and respected. In his way-too-short life, he touched colleagues and students, as well as family and friends. His enthusiasm and love for life was so palpable and contagious; I still feel that energy now. I hope that sense of connection lingers. It also is a comfort.
I dedicate this post to Jonathan, with offers of sympathy and love to his wonderful wife, Jing, and the rest of their family. I am so glad that he became part of my life and so mournfully sad that he has left us.
Monday, July 9, 2018
As a legal advisor to both for-profit and not-for-profit ventures for more than 30 years, I have had to learn about the business operations of new clients many, many times. The facts are so important in these knowledge acquisition processes (which generally take time to complete). The more experienced one is as a business lawyer, the more adept one is at getting the right facts--and analyzing the legal risks, rights, and responsibilities they represent or signal.
As a law professor, I have had many opportunities to experience joy from the work of my students. They do such amazing things! As the careers of my former students lengthen and deepen, my pride in them often exponentially increases.
With all that in mind, I bring you today a podcast featuring one of my beloved former students. She doesn't work for a law firm or a major multinational corporation. She is not a general counsel. Instead, she works for a relatively small nonprofit organization in a broad-based planning and development role.
The podcast consists of an exposition/interview by that former student, Betty Thurber Rhoades. In the podcast, Betty explains--from soup to nuts (i.e., application to move-in)--the process of getting disabled veterans into modified or new homes through Jared Allen's Homes for Wounded Warriors (JAH4WW), the nonprofit organization for which she works. Betty started her career post-law school thirteen years ago as a Presidential Management Fellow working for the Department of Veterans Affairs (VA) on regulatory policy matters. She stayed with the VA until March 2017, ending her VA career as Executive Management Officer (Chief of Staff) to the Deputy Under Secretary for Economic Opportunity, before beginning her work for JAH4WW. Totally impressive; totally heartwarming.
What I love about this podcast (other than how proud it makes me of the work Betty does) is the utility this kind of description would have/could have for a lawyer who wants to volunteer or otherwise sign on to help with one of JAH4WW's housing projects. She mentions in the podcast the contributions of lawyers; she talks about acquiring and titling property, identifying and selecting contractors, etc. She is, of course, herself a lawyer, so she is sensitive to the facts that matter. I could easily create a checklist for an engagement letter from this podcast--and get a good overall sense of the "givens" and uncertainties of the representation, too.
We probably ought to talk more in this space about the work that some of our students do once they graduate. I know I have done very little of this. But Betty's work and podcast inspire action--at least for me.
Monday, July 2, 2018
Seton Hall University School of Law welcomes applications for tenure-track positions to begin July 1, 2019. Candidates should have a J.D. or equivalent degree and a record of academic excellence. Candidates should be able to demonstrate both extraordinary scholarly promise and the ability or potential to be an outstanding teacher who can motivate students while preparing them for the practice of law in the twenty-first century. The School of Law will consider entry-level and junior lateral candidates in a variety of subject areas with particular focus on 1) Law and Technology, including data analytics/AI as it intersects with law and compliance, social media and electronic discovery, and ethics in the intersection of law and technology; 2) Business Law, preferably with a focus on Securities Regulation; and 3) Health Law, preferably with a focus on Healthcare Fraud or Food and Drug Law.
Seton Hall Law School offers a vibrant, energetic academic environment. Located in downtown Newark, New Jersey, approximately 20 minutes from Manhattan, Seton Hall Law is especially well-regarded in the health and life sciences law, intellectual property, cybersecurity, and privacy arenas, and it is in the process of expanding its role in energy, technology and data analytics. The faculty includes nationally recognized scholars and teachers with expertise in a wide range of areas.
Seton Hall Law School is an equal opportunity and affirmative action employer. We welcome applications from minorities, women, and others whose background and experiences will contribute to institutional diversity.
To apply, please send a resume and cover letter to Professor Marina Lao, Chair, Faculty Appointments Committee, Seton Hall Law School, at email@example.com.
What would the world look like if a public company officer or director, recognizing the value of material nonpublic firm information in his possession and intending to benefit people of limited means, gave this valuable information to those less fortunate without the knowledge or consent of the firm and without any expectation of benefit in return? How, if at all, do we desire to regulate that behavior? The officer or director apparently would be in breach of his or her fiduciary duty absent a valid, binding, and enforceable agreement to the contrary. Does that conduct also, however, violate U.S. federal insider trading rules? Should it? This article, a relatively short piece that I wrote for a "virtual symposium" issue of the Washington University Journal of Law & Policy, offers answers to those questions.
Other symposium authors with insider trading pieces in this volume include:
Great reading on this topic, all around. As we await the next insider trading regulation volley after Salman v. United States, this collection of essays and articles fills a nice gap. Although the issue is not yet posted to the journal's website, it soon should be. In the mean time, here is a photo of the relevant page from the table of contents:
(Sorry for the faint image and the shadows! I took this in my office; no natural light was available, if you know what I mean . . . .)