Tuesday, May 3, 2016

Calling All Secondary Securities Market Aficionados! A Little Help?

What factors generate a healthy secondary market in securities?  That is my question for this week.  I have found myself struggling with this question since I was first called by a reporter writing a story for The Wall Street Journal about a work-in-process written by one of our colleagues, Seth Oranburg (a Visiting Assistant Professor at Chicago-Kent College of Law).  The article came out yesterday (and I was quoted in it--glory be!), but the puzzle remains . . . .

Secondary securities markets have been hot topics for a while now. I followed with interest Usha Rodrigues's work on this paper, for example, which came out in 2013.  Yet, that project focused on markets involving only accredited investors.  

Seth's idea, however, is intended to prime a different kind of secondary market in securities: a trading platform for securities bought by the average Joe (or Joan!) non-accredited investor in a crowdfunded offering (specifically, an offering conducted under the CROWDFUND Act, Title III of the JOBS Act).  [Note: I will not bother to unpack the statutory acronyms used in that last parenthetical expression, since I know most of our readers understand them well.  But please comment below or message me if you need help on that.]  Leaving aside one's view of the need for or desirability of a secondary market for securities acquired through crowdfunding  (which depends, at least to some extent, on the type of issuer, investment instrument, and investor involved in the crowdfunding), the idea of fostering a secondary securities market is intriguing.  What, other than willing buyers and sellers and a facilitating (or at least non-hostile) regulatory environment, makes a trading market in securities?

Continue reading

May 3, 2016 in Corporate Finance, Crowdfunding, Joan Heminway, Securities Regulation | Permalink | Comments (1)

Monday, April 25, 2016

Congratulatons to the Newly Appointed Dean of the J. Reuben Clark Law School at Brigham Young University!

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Although other outlets in the blogosphere (including the blog he founded, The Conglomerate) beat us to the punch by a few weeks (see, e.g., here and here), I want to take time out today to congratulate D. Gordon Smith, currently Glen L Farr Professor of Law at BYU Law, on his appointment as Dean of BYU Law commencing May 1.  (That's this coming Sunday!)

I have had the privilege of working with Gordon a number of times over the years (perhaps most notably in the formation and leadership of the AALS Section on Transactional Law and Skills and with The Conglomerate), and he is a consummate professional.  He represents his institution impeccably as a scholar and servant of the academy and the profession.  He has great judgment and is a kind, considerate soul.  I know that he will be a great leader for BYU Law.

My only regret is that Gordon will likely have to step back from the many leading roles he has had in pushing business transactional law scholarship forward.  His service as a symposium sponsor, conference panel organizer, moderator, discussant, and presenter are so appreciated by me.  [sigh]

Nevertheless, I admit it's great to see another strong business law teacher, scholar, and servant in a law deanship.  I am delighted for him.  And I wish him all the best.

April 25, 2016 in Joan Heminway, Law School | Permalink | Comments (0)

Monday, April 18, 2016

2016 Society of American Law Teachers (SALT) Teaching Conference - Call for Panels and Papers

Call for Panels and Papers


Society of American Law Teachers (SALT) Teaching Conference
in partnership with the
LatCrit-SALT Junior Faculty Development Workshop

SALTlogo

www.saltlaw.org
Friday and Saturday, September 30 and October 1, 2016
The John Marshall Law School, Chicago, Illinois

From the Classroom to the Community: Teaching and Advancing Social Justice

In 2015, law school applications hit a fifteen-year low. The drop reflects a radically changed employment market and a prevailing view that law school is no longer a sound investment. To attract qualified applicants and respond to a changing marketplace, many law schools have embraced experiential learning mandates and other “practice-ready” curricular shifts. The plunge in applications has also prompted law schools to lower admissions standards. In turn, the admission of students with below-average LSAT scores and modest college grade point averages has created new concerns about bar passage, job placement, and prospects for longterm professional success.

In this environment, the legal academy is faced with unprecedented challenges. On one hand, pressure exists to ensure that students are adequately prepared to navigate a courtroom, draft legal documents, and exhibit other “practice-ready” skills upon graduation. At the same time, law professors are urged to cover a wide spectrum of theory, rules, and doctrine to increase prospects for bar passage. In the struggle to achieve both goals, the critical need to integrate social justice teaching into the curriculum is often overlooked, rejected as extraneous, or abandoned in light of time constraints.

To the contrary, social justice teaching plays an essential role in improving legal analysis, enhancing practical skills, and cultivating professional development. Moreover, social justice teaching can help instill passion, commitment, and focus into students burdened with debt and facing an uncertain job market. Most important, as the legal marketplace contracts, access to counsel for lower- and middle-income people continues to grow -- creating a pressing need for effective and committed pro bono lawyers.

In response to new educational and professional challenges, law schools and the legal profession must join in a concerted effort to integrate social justice teaching into the classroom and expand social justice throughout the community. This conference will provide opportunities to engage in broad, substantive, and supportive discussions about the role of legal education and the legal profession in teaching students to become effective social justice advocates and the ways faculty can set an example through their own activism.

Suggested topics include, but are not limited to:

1. Innovative methods to incorporate social justice concepts into the law school curriculum.
2. Strategies to encourage students to become more engaged in academic and community activism.
3. Collaborative efforts between law schools and the legal profession to respond to the need for greater
access to legal services.
4. Techniques to help law students and new lawyers develop resilience, stamina, and “grit” to face the
enduring challenges of social justice advocacy.
5. Responses to the ever-increasing cost of legal education and its impact on social justice and access
to justice.

We welcome other related topics and encourage a variety of session formats. You may submit a proposal as an individual speaker, as a panel, or group. Whatever your topic and format, please use the required format as provided below for your proposal.

Please send your proposals to Hugh Mundy (hmundy@jmls.edu) by June 15, 2016.

Other members of the SALT Teaching Conference Committee include Margaret Barry (mbarry@vermontlaw.edu), Emily Benfer (ebenfer@luc.edu), Davida Finger (dfinger@loyno.edu), Allyson Gold (agold@luc.edu), and Aníbal Rosario Lebrón (anibal.rosario.lebron@gmail.com). Please share information about
the Teaching Conference with your colleagues, particularly new and junior faculty, who are not yet members of SALT. Visit www.saltlaw.org for additional details.

Required Format for Proposed Presentations

Please submit all proposals by using the bolded headings set forth below.

1. Title of proposed presentation

2. Presenter name and contact information

Submit contact information for each individual who will participate in the presentation; however, you must identify one person to serve as the primary contact person. The contact person is responsible for receiving and transmitting information about the SALT conference to the other members of the panel.

Contact person:

Presenter’s school (as listed in the AALS Directory) and mailing address
E-mail
Office phone number
Mobile phone number
Fax number

Other panel members (if applicable):

Presenter’s school (as listed in the AALS Directory)
E-mail

3. Summary of the proposed presentation.

The description or narrative portion of the proposal should accurately and succinctly describe the content, format, and anticipated duration of the presentation. The ideal length of the summary is approximately one page of double-spaced text.

4. Related papers or documents (if applicable).

We do not expect all submissions to include related scholarship or documents- especially at this early point in the process; however, if you have any related documents that help to support or illustrate your proposed presentation, feel free to attach them to your submission.

April 18, 2016 in Call for Papers, Conferences, Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (0)

SAVE THE DATE: Central States Law Schools Scholarship Conference

The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.  

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.

April 18, 2016 in Call for Papers, Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Imagine This: First-Semester Second-Year Students in Your Business Associations Class Who Already Have a Sense of Transactional Practice . . .

This is not a pipe dream!  I honestly believe that in the fall of 2017, this will be a reality for me.  (I typically teach Business Associations in the fall semester to a large number of students who understand "cases," not "deals.")

The reason for my good spirits and honest belief in the positive change in my students?  Our new 1L curriculum, which is rolling out this fall.  No doubt, we will find some changes that need to be made as we implement our relatively bold plan.  But I am truly excited that the new first-year curriculum exposes every student to a transactional experience in the first year of law school.  

There are many reasons for implementing this kind of change, of course.  Among other things, this new approach to the first year at UT Law responds to suggestions that we got from our students and represents an effort to better connect the 1L year to our upper division curriculum (on which we have spent a lot of time over the years).  The new 1L transactional offering is part of a larger plan constructed by a College of Law committee, chaired by my colleague (and e-discovery queen) Paula Schaefer, that spent several years looking at our overall curriculum and that of many other schools before fashioning a number of alternative options for the faculty to review.  

The implementation involves a lot of work.  Many colleagues are chipping in to construct new courses and re-fashion existing courses to meet the new curricular requirements.  It takes a village.  I am grateful for all of the work being put in.  I work with a great bunch of folks.

An article in the National Jurist last week describes the new 1L curriculum in general.  Our academic policies, however, add some detail.  I quote from them below, with some reformatting for easier reading in this space.

For students entering in or after Fall 2016, the first-year curriculum is as follows:

First Semester
Civil Procedure I* (3)
Contracts I (3)
Criminal Law (3)
Lawyering & Professionalism (1) Legal Process I (3)
Torts I* (3)

Second Semester
Civil Procedure II (3)
Contracts II (3)
Legal Process II (3)
Property (4)
Torts II (2)
Transactional Lawyering Lab (1)

*First-year students enroll in an experiential section of either Civil Procedure I or Torts I. The experiential sections include three graded, simulation-based assignments. Each simulation places students in the role of lawyer, raises professionalism issues, requires students to perform a lawyering skill, and results in a written and/or oral work product. In addition to a final examination, the course also includes a midterm exam that includes at least one essay question.

We are pretty excited to get this new curricular show on the road.  I look forward to sharing more with you as we see how students react in the short term and long term.  But my UT Law colleagues and I are very hopeful that this new approach to the first year will lay a strong foundation for upper division academic work and for practice.

 

April 18, 2016 in Business Associations, Joan Heminway, Law School, Lawyering, Teaching | Permalink | Comments (4)

Tuesday, April 12, 2016

So Lucky (And Grateful) in So Many Ways . . . .

There are those I-need-to-pinch-myself moments in life that come along every once in a while.  I was lucky enough to have one last week.  I was invited to attend a conference and comment on two interesting draft papers written by two law faculty colleagues whose work I have long admired and who are lovely people.  And the location was Miami Beach.  Does it get any better than that for a law professor who likes the beach?  I think not.

The event was the annual conference for the Institute for Law and Economic Policy (ILEP).  The conference theme was "Vindicating Virtuous Claims."  The papers will be published in the Duke Law Journal, which co-sponsored the program. 

I will save details on the papers for later (when the papers are finalized).  But I will briefly describe each here.  The first paper on which I commented, written by Rutheford B ("Biff") Campbell (University of Kentucky College of Law), argues for federal preemption of state securities regulation governing the offer and sale of securities, since federal preemption would be more efficient.  The second paper, written by James D. ("Jim") Cox (Duke University School of Law, who was honored at the event and received the most amazing tribute from his Dean, David Levi, at the closing dinner), argues for attaching more value to the normative effects of judicial decisions arising out of indeterminate doctrine (using materiality and the business judgment rule as core examples).  I know that last part is a mouthful, but read it again, and I think you'll get it . . . .

Both papers were intellectually stimulating, and both scholars were quite engaging in their presentations.  The other invited commentators were interesting and thought-provoking.  And the day was filled overall with other interesting academic paper panels and a lively keynote lunch speaker.  Together with the panel discussion on the evolution of Rule 23 and dinner the night before, it was an action-packed, invigorating conference!

 . . . And then there was the time I spent after the conference recollecting myself (and writing student bar recommendation letters).  The weather was cooperative (downright sunny and warm), and the surroundings at the hotel (food, accommodations, etc.) were fabulous.  My Facebook friends got tired of my colorful photos and happy posts, especially since many of those folks were in locales further North and to the East in which it was cold and snowing on Saturday or Sunday.

So, I am taking this opportunity to note and celebrate my good fortune on, and to offer thanks for, being invited to the ILEP conference to comment on the forthcoming scholarly work of two great business law colleagues.  I met some fascinating, pleasant new people among the conference constituents (from the bench, bar, and academy).  And I enjoyed time on a chaise lounge.  [sigh]  But now, it's back to the reality of the final few weeks of the semester.  I wish everyone the best in pushing through.

 

April 12, 2016 in Business Associations, Conferences, Delaware, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Monday, April 4, 2016

A Constructive Resolution to [What Otherwise Would Have Been] Another Ugly Law Review Experience . . .

Imagine this: You open an email message late in the evening from a law review managing editor.  The message includes as an attachment the edited version of an article being published by the law review--or, more precisely--reprinted by the law review.  So far, so good.

But also imagine your surprise when you open the attachment and find that the edits are extensive--more extensive than you had expected.  So, you dig right in to see what's amiss.  The first three modifications are changes to footnote citations.  They are incorrect edits.  As you review the edited draft, you find that most of the suggested changes are erroneous or unnecessary.  Some are even undesirable or undesired (e.g., edits to the text of quoted passages that deviate from the source quoted).  In frustration, you wonder whether you should complete your review of the edits or just, based on what you've read to date, throw in the towel and ask the law review to start all over, reminding the law review managing editor that the article already has been published and, in the process, edited by you and the other journal's editors and staff.

I experienced a version of this law scholar nightmare recently. What did I do?  I completed my review of the edits (which took six solid hours) and sent the law review managing editor my responses under cover of an email message that explained (1) my likely-to-be-interpreted-as-curt tone and (2) the nature of the changes or reversals of changes I made.  I tried to educate through these materials.  But I was worried that the managing editor (with whom I had exchanged productive emails on other subjects, including the reprint permission and the publication agreement) might be angered by or otherwise negatively predisposed against my comments.

What happened next was absolutely super, however.  Later that day, I received a message from the managing editor reading as follows, in relevant part:

Hello Professor Heminway,

Thank you so much for such a detailed and quick response! I understand your concerns, and we will work through the comments and suggestions that you have made. . . .

Your explanations and feedback throughout this process have been both educational and humbling. I appreciate your attention to detail as well as your willingness to ensure that you thoroughly explain your basis of thought behind certain suggestions and concerns. There's no doubt that your students have a lot to learn from you. Thank you for everything.

I was blown away.

I offer this correspondence and this entire story not to toot my own horn for having made the right decision to "stick it out" and offer explanations for my dissatisfaction with the draft that was returned to me by the law review.  Rather, having earlier vented here about the law review editorial process and read similar blog critiques written by others (like this one or this one), I want to offer, as Haskell recently did here, a net positive view of the law review editorial experience with a student-edited publication.  Bloggers here and elsewhere have made many suggestions on how the student editorial process may be able to be improved (see, e.g., here, here, and here).  In the mean time, however, I continue to believe that a bit of patience and good communication can extend the learning experience for student editors in meaningful ways.

April 4, 2016 in Crowdfunding, Joan Heminway, Research/Scholarhip | Permalink | Comments (1)

Tuesday, March 29, 2016

Stanford Corporate Governance Fellowship (Hat Tip to Current Fellow Cathy Hwang)

The Rock Center for Corporate Governance at Stanford University seeks to hire a resident academic fellow to begin in September or October 2016 for a 12-month or one-academic-year term, with the possibility of renewal for a second year. The fellow will pursue his or her own independent research, as well as work closely with Stanford Law School faculty on a range of projects related to corporate governance, securities regulation, vehicles for public and private investment, and financial market reform. The ideal candidate has excellent academic credentials and experience in relevant fields of practice. The position is particularly well suited to a practicing attorney, with either a litigation or transactional background, seeking a transition to academia, or a post-doctoral economics or finance student with interests in corporate governance. More information can be found at https://stanfordcareers.stanford.edu/job-search?jobId=70496

March 29, 2016 in Corporate Governance, Joan Heminway, Jobs, Research/Scholarhip, Securities Regulation | Permalink | Comments (0)

Monday, March 28, 2016

Not All Contract Attorneys Are Alike . . . Or Are They?

There's been a lot of bad press lately about contract lawyers.  Between legal actions for overtime pay and articles in bar publications and elsewhere, it's easy to conclude that all of these warriors in the legal workforce are overworked and underpaid in this post-financial-crisis world.

Yet, I just had a corporate general counsel in my Advanced Business Associations class last week who regularly uses contract counsel and, based on his description, those he works with seem to be a relatively contented lot.  He has gone ahead and hired a few of them (although he notes that some prefer independent contractor status for its flexibility).  So, I wonder whether many of us make the same mistake with the press on contract lawyers that we do with the press on law schools: generalizing a description and drawing conclusions from limited, nonscientific data (i.e., one-sided or narrowly drawn press reports). For one thing, most of what I read focuses on contract lawyers performing e-discovery reviews or rote due diligence.  I know that there are more varied assignments out there (even if those two areas represent most of the territory).

I do know former students who, for a variety of reasons, have worked as contract lawyers after graduation or during a career interruption.  In most cases, this has been intended as and has been in fact a temporary position.  But (although I do not stay in touch with everyone after graduation) I am sure that some have ended up staying in contract lawyering longer than they had planned . . . or wanted.  Still, I have not heard about any abusive behavior or unusually long hours.  I have heard complaints about the routine and unstimulating nature of much of the work.

What information do you have about contract lawyers?  Are they a uniformly mistreated lot because employers--especially maybe Big Law and other large firms--take advantage of them and view them only as low-cost, low-quality providers of legal services?  How often do those who use contract lawyer services hire the lawyers in as employees?  How many contract lawyers continue in that role for more than two years?  Let me know what you know.

March 28, 2016 in Joan Heminway, Jobs | Permalink | Comments (0)

Tuesday, March 22, 2016

Microfinance and Crowdfunding

Jet lag prevented me from posting this yesterday.  (Yes, I am scheduled to be the BLPB every-Monday blogger going forward.)  But at least I am awake enough now to post a bit more on the 7th International Conference on Innovative Trends Emerging in Microfinance (ITEM 7 Conference) I attended last week in Shanghai, China.  My initial post on Wednesday provided some information on Chinese microfinance and the initial day of the conference.  This week, my post focuses on definitional questions that I have been pondering relating to my participation in this series of conferences.  Specifically, I have been sorting through the relationship between microfinance and crowdfunding.  My understanding continues to evolve as I become more familiar with the literature on and practice of microfinance internationally.

At the conference, one of the participants noted that while microfinance and crowdfunding appear to be mutually reinforcing, they still do not enjoy comfortable relations in scholarship and practice.  After weighing that statement for a moment, I had to agree.  I actually have been personally struggling with the nature of the relationship between the two for a few years now.  (I often wonder whether folks like co-blogger Haskell Murray who commonly work in the social enterprise space have this issue in talking about the relationship between social enterprise and corporate social responsibility . . . .)

Two years ago at the ITEM 5 Conference, I posited that crowdfunding could be a vehicle for microfinance.  The establishment of this point required defining both microfinance and crowdfunding--in each case, no small task.  To enable the audience to understand my observation, I used a broad definition of microfinance that focuses on financial inclusion (like the one found here).  I believed after my presentation that I had made the point well enough.

Yet, something still niggled at me after the presentation and conference were long gone.  I kept feeling as if I had inserted a square peg into a round hole.  Something was just a bit off.  Part of the issue is, no doubt, the fact that my observation was incomplete.  Microfinance is bigger than crowdfunding, and not all crowdfunding is microfinance, even under a broad definition.  So, picture a venn diagram like the one below.

VennDiagram

The red point of intersection illustrates crowdfunding's place as a means of conducting microfinance.  This leaves part of microfinance to be handled through other types of financing (e.g., microcredit).  It also leaves part of crowdfunding to other capital-raising uses.  This conception of the relatonship between microfinance and crowdfunding is undoubtedly more complete.

The importance to microfinance of the non-microfinance part of crowdfunding was confirmed at our microfinance site visit last week in Shanghai.  Our host for the visit explained, in response to my question about the relationship of microfinance to crowdfunding in China, that crowdfunding typically is seen as an alternative to, rather than a means of, microfinance in China.  He noted that equity crowdfunding is uncommon (although growing) in Chinese small business finance overall because the number of shareholders of Chinese limited liability companies is statutorily capped.    Specifically, Article 20 of the Companies Law of the People's Republic of China provides that "[a] limited liability company shall be jointly invested in and incorporated by not less than two and not more than fifty shareholders."  I made a mental "note to files" that crowdfunding might get crowded out of microfinance or other types of financing--intentionally or unintentionally--by positive regulation.

I invite any readers who are more familiar with world-wide microfinance than I to comment further on its relationship to crowdfunding.  Do I have the principal story right, in your view, based on your experience?  Can you provide examples from your work or life that help me to see new aspects of the relationship between the two?  I invite any related thoughts.

March 22, 2016 in Conferences, Corporate Finance, Crowdfunding, Haskell Murray, Joan Heminway | Permalink | Comments (0)

Wednesday, March 16, 2016

Greetings from Shanghai - Microfinance in China

ITEM7(MFIVisit-1)

Between jet lag and the comprehensive conference proceedings and activities here in Shanghai, it’s all I can do to stay awake to finish this post . . . . But I am not complaining. Shanghai is a wonderful city, and the 7th International Conference on Innovative Trends Emerging in Microfinance (ITEM 7 Conference) has been a super experience so far.

Given my sleep-deprived state, I will just share with you here today a few key outtakes from the presentations we had yesterday (at a pre-conference site visit to the largest microfinance lender in Shanghai) and earlier today (at the conference itself) on microfinance in China.  Here goes.

  • Chinese microfinance is not really microfinance, in major part. It is SME (small and medium enterprise) lending. MSE loans are loans up to  30,000,000 Yuan RMB (about $4,600,000), and the average single loan amount for MSE lending is about  5,000,000 Yuan RMB (just under $770,000).
  • Unlike those in archetypal microfinance and those involved in actual micro-credit lending transactions in many other countries, borrowers in Chinese microfinance lending (such as it is) are largely men rather than women.
  • Despite these and other marked differences between Chinese microfinance and global microfinance, Chinese microfinance data does not affect global studies of microfinance in a statistically significant way. However, Chinese microfinance data does influence study results for the East Asia and Pacific region to a statistically significant degree.

Most of this was “new news” to me, given that Chinese microfinance is not at the center of my work.  I am sure that I will know even more about it by the end of the conference tomorrow. In the mean time, however, I also enjoyed presentations today about:

  • the willingness of rural Ethiopian farmers to pay for insurance to cover the risks of their business (given by an Italian scholar, for which I was an assigned discussant);
  • a rural microfinance program in Nigeria (given by a research fellow affiliated with the Central Bank of Nigeria);
  • gender-based microfinance lending in Canada (given by a faculty member/Ph.D. student at the University of New Brunswick in Canada);
  • the utility of employing joint use of credit scoring and profit scoring in microfinance (given by a Ph.D. student currently serving as the research associate of the Microfinance Chair at the Burgundy School of Business in Dijon, France);
  • the relationship between financial and social objectives of microfinance (given by a Ph.D. student from the Centre for European Research in Microfinance at the Université de Mons in Belgium); and
  • Participants’ perceptions of two separate microlending programs in Australia, one involving no-interest microloans and the other offering matched savings (given by a Ph.D. student from the University of Queensland in Australia).

I speak tomorrow on crowdfunding intermediation and litigation risk and comment on a paper on crowdfunding and corporate governance. Fingers crossed that I can stay awake long enough to give my presentation . . . . :>)

March 16, 2016 in Conferences, Corporate Finance, Joan Heminway | Permalink | Comments (2)

Monday, March 14, 2016

So Long, Steve - A Short Tribute in Verse

There once was a blogger named Steve.
A positive mark he did leave.
His witty, smart style
Kept us reading a while.
The loss of his posts we shall grieve.

So long from the blogosphere, friend.  We know, as you have promised, that you'll never be far away.  But we shall, indeed, miss your byline here at the BLPB.

March 14, 2016 in C. Steven Bradford, Joan Heminway, Weblogs | Permalink | Comments (3)

Wednesday, March 9, 2016

Roots of Scholarly Productivity (Take II)

Last month, I published a post that promised subsequent posts on productive scholarly activity.  Specifically, that initial post focused on joy as a driver of scholarly productivity.  I noted there that the colleague who prompted me to start this series--my muse of sorts--thought readers might be interested in knowing about how I organize my research materials, among other things.  I pick up that idea here.

There is no single or simple answer to this question.  I am in a constant evolution in this part of my work, and the matter is complicated by the fact that research materials can be electronic, hard-copy, or orally conveyed.  I do now have some routines, however, and I have come to a few broadly applicable realizations along the way.  Most are likely obvious.  Nevertheless, I share them here today.

At the outset, it is critical to note that my work habits include mobility as a core value.  I work from wherever I am.  So, I have learned that my important research materials need to be captured in some way on my computer when possible.  

Continue reading

March 9, 2016 in Joan Heminway, Research/Scholarhip | Permalink | Comments (2)

Thursday, March 3, 2016

What I Learned at KCON XI

It's fun when students are interested in your scholarship.  Yesterday, one of my students engaged me to talk about my work on limited liability operating agreements as contracts.  (I have mentioned this work in class, and the student also is a regular reader of this blog, where I have referenced this work a number of times, including most prominently here.)  He began the exchange with something akin to the following question: "Why is it that we take two full semesters of contract law during the first year of law school and then all but ignore the connection of contract law to business entities once we get to Business Associations?"

I think I know what he means.  While the segregation of legal doctrine by subject matter in law schools enables instructors to focus students narrowly on a single--often new--body of law, it also tends to obscure the interconnections between and among applicable bodies of law, including connections between contract law and the law of business entities.  Admittedly (and I pointed this out to the student), the typical Business Associations course does typically address contracts at several points.  These junctures include, among others, the course segment in which sole proprietorships are distinguished from statutory forms of business entity, discussions on the nexus of contracts theory of the corporation, and dialog on the validity of shareholder agreements.

This conversation reminded me that I learned an important thing about the Restatement (Second) of Contracts at the 11th International Conference on Contracts (KCON XI) last weekend at St. Mary's University School of Law in San Antonio, Texas.  (Keep in mind as you read this that I do not teach and have never taught the 1L course on contract law.)  What did I learn?  I learned how to use the Restatement properly in assessing the existence and validity of a contract!

Specifically, I learned that the traditional elements of a legally valid contract, those that I had learned in law school (offer, acceptance, and consideration) are, under the Restatement (Second) of Contracts, non-exclusive means of qualifying an agreement as a valid contract.  Specifically, Section 17 of the Restatement provides as follows:

(1) Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.

(2) Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated in §§82-94.

The comments to Section 17 cast additional light on types of contract--including several different kinds of formal contract,--that do not need to meet the requirements of mutual assent and consideration.  Moreover, the sections of the Restatement referenced in Section 17(2) include Section 90, which helpfully provides in subsection 1 that

[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

I guess I knew that, but somehow I missed remembering or fully understanding it.

All of this, and much more from KCON XI, will come in handy in my future work on contracts in the business entity context, deepening and enriching points I want to make.  It's sometimes really enlightening--a scholarly "breath of fresh air"--to attend a conference of academics focused on a subject matter or scholarly tradition that is different from one's own.  I may try to do this more often.

Also, my student's point on the need to more often and more integrally show the interdisciplinary of law in the upper division classroom is not lost on me.  That's an area in which I can make immediate changes.  And with the help of my contract law brethren from KCON XI, contract law is sure to be a part of the dialogue.

March 3, 2016 in Business Associations, Conferences, Joan Heminway | Permalink | Comments (0)

Friday, February 26, 2016

Call for Student Papers: NAWL 2015 Selma Moidel Smith Competition

The mission of the National Association of Women Lawyers (NAWL) is to provide leadership, a collective voice, and essential resources to advance women in the legal profession and advocate for the equality of women under the law. Since 1899, NAWL has been empowering women in the legal profession, cultivating a diverse membership dedicated to equality, mutual support, and collective success. NAWL has established the annual Selma Moidel Smith Law Student Writing Competition to encourage and reward original law student writing on issues concerning women and the law.

The rules for the competition are as follows:

Entrants should submit a paper on an issue concerning women’s rights or the status of women in the law.

Essays will be accepted from students enrolled at any law school during the 2015-16 school year. The essays must be the law student author’s own work and must not have been submitted for publication elsewhere. Papers written by students for coursework or independent study during the summer, fall, or spring semesters are eligible for submission. Notwithstanding the foregoing, students may incorporate professorial feedback as part of a course requirement or supervised writing project.

FORMAT: Essays must be double-spaced in 12-point, Times New Roman font. All margins must be one inch. Entries must not exceed fifteen (15) pages of text, excluding notes, with footnotes placed as endnotes. Citation style should conform to The Bluebook – A Uniform System of Citation. Essays longer than 15 pages of text, excluding notes, or that are not in the required format will not be read.

JUDGING: NAWL Women Lawyers Journal® designees will judge the competition. Essays will be judged based upon content, exhaustiveness of research, originality, writing style, and timeliness.

QUESTIONS: Questions regarding this competition should be addressed to the chair of the Writing Competition, Professor Jennifer Martin at jmartin@stu.edu.

SUBMISSION AND DEADLINE: Entries must be received by May 1, 2016. Entries received after the deadline will be considered only at the discretion of NAWL. Entries must provide a cover letter providing the title of the essay, school affiliation, email address, phone number, and mailing address. Entries must be submitted in the following format: email an electronic version (in Microsoft Word) to jmartin@stu.edu.

AWARD: The author of the winning essay will receive a cash prize of $500. NAWL will also publish the winning essay in the Women Lawyers Journal. The most recent winning paper was “The Practice of Name Suppression: How the News Media Promotes the Stigmatization of Rape Victims” written by Emily Suran, University of Michigan Law School. Please view paper at http://www.nawl.org/p/cm/ld/fid=83.

February 26, 2016 in Call for Papers, Joan Heminway | Permalink | Comments (0)

Thursday, February 25, 2016

On Describing The Limited Liability Partnership . . . .

Our Kentucky "brother," Tom Rutledge, sent me a link to a super blog post yesterday on Mortgage Grader Inc. v. Ward & Olivo, a limited liability partnership case currently before the New Jersey Supreme Court.  Tom's focus in his post was the limited liability aspect of the case, which is fascinating--and more than a bit unsettling for those practicing in jurisdictions like New Jersey and Kentucky that require law firms organizing limited liability partnerships to maintain malpractice insurance.  The question before the court: whether, in the absence of an express provision in the partnership statute, the failure of a law firm organized as a limited liability partnership to maintain required malpractice insurance results in the loss of the partnership's limited liability status.  The trial court ruled that the lapse of malpractice insurance caused a loss of limited liability status; the appeals court reversed.

But Tom also mentions another aspect of the case in his post that I want to call out here.  Specifically, he notes references in the appellate court opinion to the conversion of a partnership to a limited liability partnership.  Here's what he says on that point:

One potentially disturbing aspect of the language used by the Court of Appeals and in the oral argument is the notion that the loss of LLP status and the treatment of the firm as a general partnership is some sort of conversion. But it isn’t. An LLP is a general partnership that has elected into a special status – it is still a general partnership but for the rule of partner limited liability. . . .

This comment reminded me of co-blogger Josh Fershee's super-helpful obsession (maybe too strong a word?) with "limited liability corporation" as an incorrect judicial (and other) descriptor of the limited liability company business form.  (See, e.g., his December 2015 post here.)  And far be it from me to disagree with either of these guys in making their respective points about these labeling inaccuracies!  

As a separate point, I want to call out the fact that this area of partnership law can be important both for bar examinations (thinking of all those folks suffering through that test this week . . .) and IRL.  In fact, I was asked a question recently about the Tennessee provision on limited liability elections by a BARBRI student.  (Little-known fact: I teach the Tennessee BARBRI segments on agency, unincorporated entities, and personal property.)  The student's question did not inappropriately refer to a conversion of a partnership into a limited liability partnership, but it did point out several differences in Tennessee law in this area that I want to mention.

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February 25, 2016 in Business Associations, Joan Heminway, Joshua P. Fershee, Partnership, Teaching | Permalink | Comments (2)

Friday, February 19, 2016

Comin' Back Atcha, Josh, on Partnerships and the Requirement of a Contract

I love your most recent post, Josh, and have been truly enjoying the ensuing commentary/conversation. I took on the “is it a contract?” issue in the LLC context because of questions similar to those raised in your post and in the comments it generated. I admit that the partnership issue on which you posted has fascinated me for quite some time. (I first encountered it when I undertook to teach Business Associations almost 16 years ago . . . .)

I have to push back on your analysis a bit, however.  In particular, here’s the part of your post with which I have some trouble:

There must be an agreement to associate for a purpose. To me, that requires consideration and assent.  If one has associated sufficiently under the law to make one both a partner and an agent of another (and thus liable for the partner), I don’t see how there is a lack of sufficient consideration or assent to form a contract.

Why does an association for a purpose require an agreement? To "associate" is to combine, connect, or link. The concept of an association builds from that: "connection or combination" or "an organization of people with a common purpose and having a formal structure."  It is clear in the comments to the RUPA that the drafters use "associate" and "association" in these common forms. In fact, the drafters refer to various forms of association created under other statutes, including “corporations, limited partnerships, and limited liability companies.” See RUPA Section 202, cmt 2.  

It is the association--of two or more persons to carry on as co-owners a business for profit--that creates an agency relationship and third-party liability for the obligations of the firm (unless the parties separately agree to those matters--which they may do independently or coincident with the formation of a partnership).  Those parts of the relationship are attributes of a partnership--aspects of the relationship that flow from the legal conclusion that a partnership has been formed. In other words, because of the formation of a partnership, the partners are agents of the partnership and are liable for partnership obligations.

Even assuming an agreement, however, it certainly is true that not every agreement is a contract.  Offer, acceptance, and (as you note) consideration would be required at common law to form a contract.  (Mohsen adds value to that analysis as well in his comment, even if he refers to the partnership agreement as opposed to partnership formation.)  Partners may and do, in fact, contract with each other under that legal meaning.  But I am not confident that a contract is required.  

Tell me what I am missing in all this . . . .

Parenthetically, I will note that I am extending my work on LLC operating agreements as contracts (referenced favorably at the outset in your post, for which I thank you) in future work, and I will be presenting the preliminary ideas on that at KCON XI next weekend in San Antonio.  It will be interesting to share some of these ideas with folks for whom contracts is their primary area of legal inquiry.  And since my associate dean is making noises about me teaching contracts sometime soon, I'd best get myself up to speed with the experts in any case . . . .

 

February 19, 2016 in Business Associations, Joan Heminway, Joshua P. Fershee, Partnership | Permalink | Comments (10)

2016-17 Business Law Faculty Visitor Sought - The University of Tennessee College of Law

I am posting this at the request of our Associate Dean for Academic Affairs, Alex Long:

The University of Tennessee invites applications for a possible visiting professor for the fall or spring semester in 2016-17. The position would involve teaching Business Associations and one other business-related course (including, perhaps, Contracts I or II). If interested, please submit a CV and cover letter via email to Alex Long, Associate Dean for Academic Affairs & Professor of Law, The University of Tennessee College of Law at along23@utk.edu. Prior teaching experience (law school or broader university teaching) is strongly preferred. The closing date for applications is Monday, February 29, 2016.

I also am happy to respond to questions about this opening.

February 19, 2016 in Business Associations, Joan Heminway, Jobs, Law School, Teaching | Permalink | Comments (0)

Monday, February 15, 2016

REMINDER: National Business Law Scholars Conference - Call for Papers

Just a quick note to remind everyone that (as previously announced) the submission deadline for the 2016 National Business Law Scholars Conference is this Friday, February 19:

The National Business Law Scholars Conference (NBLSC) will be held on Thursday and Friday, June 23-24, 2016, at The University of Chicago Law School. 

This is the seventh annual meeting of the NBLSC, a conference that annually draws legal scholars from across the United States and around the world.  We welcome all scholarly submissions relating to business law.  Junior scholars and those considering entering the legal academy are especially encouraged to participate. 

To submit a presentation, email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu with an abstract or paper by February 19, 2016.  Please title the email “NBLSC Submission – {Your Name}.”  If you would like to attend, but not present, email Professor Chaffee with an email entitled “NBLSC Attendance.”  Please specify in your email whether you are willing to serve as a moderator.  We will respond to submissions with notifications of acceptance shortly after the deadline.  We anticipate the conference schedule will be circulated in May. 

The full call for papers can be found here.

February 15, 2016 in Call for Papers, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Wednesday, February 10, 2016

Roots of Scholarly Productivity (Take I)

A colleague recently encouraged me to undertake to write a blog post series.  The essence of his idea?   Reveal how those who regularly turn out quality research and writing over a period of time do it. He suggested it might be valuable for readers to know how one might organize the applicable research, deal with research assistants, write, etc.  He indicated his belief that I am qualified to undertake this task (which was/is both flattering and daunting at the same time).  He concluded with the following observation:  "I'm sure that you work harder than many people, but my guess is there's more to it than that."

I recognized immediately the value of his suggestion.  Many of us struggle with keeping the scholarship leg of the three-legged academic stool for law faculty roughly as long as the teaching and service legs.  But what enables law faculty not only to survive this struggle, but also to consistently produce worthy scholarship?  And am I really qualified to speak on this?  

Because I do think the topic is meritorious and because I respect the colleague who made this suggestion, I am going to give the topic a shot.  This post offers my preliminary reflections.  They may or may not represent reality for others.  Perhaps (regardless) my thoughts will sponsor other productive ideas.

First, I do work long hours.  Those who know me well know this well.  My husband has said that he believes I work longer hours in law teaching than I did in private practice (and I worked long hours in private practice).  I admit that, although my doctor has indicated it's not good for my health, I do not always get eight hours of sleep.  But I want to be clear that my short nights of sleep, when they happen, are largely my choice.  That choice is made because of the heartfelt passion I have for my work.  (The key is to not let things go to an extreme . . . .)

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February 10, 2016 in Joan Heminway, Research/Scholarhip | Permalink | Comments (3)