Tuesday, September 5, 2017
Reading closely is a highly valuable skill for both lawyers and law students. But reading closely is not the only key to getting the most out of reading materials. Often, knowing what to look for can help us discern what we're really being told. An article at LawFare, How to Read a News Story About an Investigation: Eight Tips on Who Is Saying What, by Benjamin Wittes, does a nice job of providing some tools to help read news stories more carefully, and perhaps accurately, especially when it comes to sources. Note that this piece applies to reputable reporters, not everyone who has written something about current events.
One solid takeaway:
Reporters publish what they know. If a story describes a series of interactions between a witness or a subject of an investigation and the investigators and the story contains information about one side’s thinking but not the other’s, that’s a powerful sign of where the disclosure came from.
Many of the skills here would translate into other settings, too. For example, Wittes' first rule: The Words Describing a Source Should Be Presumed Accurate. He says, "Always start with the precise words the journalist is using to describe her sources. An ethical journalist will never write a sentence that is not on its own terms true." This should be true of a SEC filings or other corporate disclosure documents, too, but it does not mean that the words will clearly communicate the same thing to all readers.
Wittes' Rule No. 2 also applies: Don’t Make Hasty Assumptions About Vague Sourcing.
While the words have to be true, they emphatically do not have to be evocative of some larger truth. While the words have to be true, they emphatically do not have to be evocative of some larger truth. The conventions associated with sourcing stories like these permit a certain degree of misdirection about which the reasonable reader should be savvy. Reporters have a duty to inform the public; they also have a duty to protect their sources. These goals often conflict, and the solution is sometimes to inform the public in a fashion that is technically accurate but is not what a naive reader would expect certain words to mean.
As to this rule, I would not say that "misdirection" is permitted in SEC filings, but this last part seems generally true of many SEC disclosures: they inform the public in a "technically accurate" way but not necessarily in a way that "a naive reader would expect certain words to mean." I know some people will disagree with my cynical view on this, but that's my take. The closing advice: "Read sourcing sentences both literally and broadly." Same with disclosures.
I recommend reading Wittes' piece for its intended purpose and to see what you might take away for application in other settings. It's a solid and thought-provoking overview, whether you agree with my assessment or not.
Monday, September 4, 2017
Now that Hurricane Harvey's threat to the United States has dissipated, we can begin to fully appreciate the damage it has caused to person, property, and business. It's staggering. The screenshot included above was captured from the Houston Chronicle's website yesterday. Although I am not sure how one calculates such things, Wikipedia notes that, "[b]ased on current damage estimates made by multiple agencies, Hurricane Harvey is likely to be at least the second-most costly natural disaster in U.S. history, behind only Hurricane Katrina in 2005." I am heartbroken for all those who have lost so much, yet grateful for those who survived such a wicked storm, including the BLPB's own Doug Moll.
I am confident that too many folks are using this holiday weekend--one they had hoped to spend enjoying last-of-summer moments with family and friends--mourning the loss of life and digging out from the mess at their homes or workplaces. The damage in Tennessee from the related rain and winds was significant but pales in comparison to what the folks have suffered and continue to contend with in Houston and the surrounding areas. Luckily, the storm threw very little at Knoxville, since the heart of it passed to the West of us. West and middle Tennessee were hit harder.
Many of us give to local and national charities at times like this, not knowing what else we might have to offer from afar. Certainly, financial support directed to the right paces is always a good idea. But there's more we, as licensed attorneys, can do. As you may have heard, the Texas Supreme Court has entered an order to permit the practice of Texas law by out-of-state licensed attorneys. Our dean informed us about a helpful information page on the ABA website that you may want to check out that includes related and other information about how attorneys can help through and outside the ABA. And there are many other websites with valuable information that we can either pass on or use to help. Among others, on Labor Day, I might recommend the Department of Labor's website, which has a webpage dedicated to recovery efforts.
I know it's early for Thanksgiving, but let's all take a moment to be grateful for what we have this Labor Day. For me, having a job that I love that enables me to help others while working with really intelligent and kind people is something to be grateful for every day. Labor Day is a good day to remember that, so I have chosen an image to honor that sentiment below. But let's also take a moment to reflect on those whose lives and homes and work have been destroyed or disrupted by Hurricane Harvey and consider how we can play a role in the recovery. Happy Labor Day, y'all.
Sunday, September 3, 2017
"reconsidering the issue of morality and antitrust from an interdisciplinary perspective" 62 S.D. L. Rev. 11, 15–16 (2017) #corpgov— Stefan Padfield (@ProfPadfield) September 3, 2017
Saturday, September 2, 2017
So last week I posted about the problem of buyer/customer discrimination; we have laws to deal with discrimination by employers, by businesses that sell to the public, by landlords – but there isn’t much to address discrimination that runs in the other direction.
It was timely, then, that this article has been making the internet rounds:
When Penelope Gazin and Kate Dwyer decided to start their own online marketplace for weird art, they didn’t expect it to be easy. After all, the L.A.-based duo of artists were bootstrapping the project with a few thousand dollars of their own money and minimal tech skills. But it wasn’t just a tight budget that added friction to the slow crawl toward launching; the pair also faced their share of doubt from outsiders, spanning from the condescending to the outright sexist.
… After setting out to build Witchsy, it didn’t take long for them to notice a pattern: In many cases, the outside developers and graphic designers they enlisted to help often took a condescending tone over email. These collaborators, who were almost always male, were often short, slow to respond, and vaguely disrespectful in correspondence. In response to one request, a developer started an email with the words “Okay, girls…”
That’s when Gazin and Dwyer introduced a third cofounder: Keith Mann, an aptly named fictional character who could communicate with outsiders over email.
“It was like night and day,” says Dwyer. “It would take me days to get a response, but Keith could not only get a response and a status update, but also be asked if he wanted anything else or if there was anything else that Keith needed help with.”
Dwyer and Gazin continued to deploy Keith regularly when interacting with outsiders and found that the change in tone wasn’t just an anomaly. In exchange after exchange, the perceived involvement of a man seemed to have an effect on people’s assumptions about Witchsy and colored how they interacted with the budding business. One developer in particular seemed to show more deference to Keith than he did to Dwyer or Gazin, right down to the basics of human interaction.
“Whenever he spoke to Keith, he always addressed Keith by name,” says Gazin. “Whenever he spoke to us, he never used our names.”
Stories like this are pretty common; for company founders, they may be disadvantaged but they can just try to power through it – as these women did – but when the woman on the receiving end is someone else’s employee, it can affect her job performance, as illustrated by this twitter thread.
In sum, plus ça change, plus c'est la même chose.
Friday, September 1, 2017
There has been quite a lot written about the relative lack of women on boards of directors (and their impact on boards of directors). See here, here, here, here, here, here, here, and here. Women hold slightly less than 20% of the board of director seats at major U.S. companies, depending on what group of companies you consider. See here, here, and here.
In this post, I am not going to discuss the vast literature on the topic of women in the boardroom or the quotas that some countries have established, but I do want to point out the curious lack of fathers at playgrounds in Nashville this summer. I am including this post in the Law & Wellness series because I think men and women would both benefit if we saw more fathers at playgrounds during the week.
During ten trips to our popular neighborhood playground, during weekday working hours, I saw 6 men and 72 women. Now, it is probable that some of the people I saw were nannies or grandparents, but I excluded the obvious ones and quite a large percentage seemed like parents anyway.
This is an extremely small sample, but the percentage of fathers at playgrounds with their children looks lower than the percentage of women on boards. While I haven’t counted, I have noted fairly similar ratios at the public library story-time, the trampoline park, the zoo, and the YMCA pool during weekday working hours.
Perhaps this is not surprising, and perhaps the ratios are different in non-Southern cities (though Nashville is pretty progressive, at least for this area of the country). But I will say that I sometimes feel out of place and sometimes feel the need to explain myself when I am out solo with my children during "working hours."
When asked, I do have a “good” explanation – a fabulously flexible job – but I sometimes imagine those conversations if I had chosen to stay home while my wife worked or if I were taking time off a "normal" 8 to 5 job. Unfortunately, I don't think we are at a place, at least in my community, where we give fathers much respect for taking care of their children. I consider raising my children an incredibly important and valuable role. Raising children is demanding and draining, but my life is undoubtedly richer for it. Over the last few years, I have also gained quite a lot of appreciation for people who raise children on their own; the job is difficult enough for my wife and me together. I am not sure what actions from government and business would be best for children, but I do know that both should be seriously considering their options.
Thursday, August 31, 2017
Uber has a new CEO. Perhaps his first task should be to require one of his legal or compliance staff to attend the FCPA conference at Texas A & M in October given the new reports of an alleged DOJ investigation.. I might have some advice, but Uber needs to hear the lessons learned from Walmart, who will be sending its Chief Compliance Officer. Thanks to FCPA expert, Mike Koehler, aka the FCPA Professor, for inviting me. Mike has done some great blogging about the Walmart case (FYI- the company has reported spending $865 million on fees related to the FCPA and compliance-related costs). Details are below:
THE FCPA TURNS 40:
AN ASSESSMENT OF FCPA ENFORCEMENT POLICIES AND PROCEDURES
Thursday, October 12, 2017
Texas A&M University School of Law
Fort Worth, Texas
This conference brings together Foreign Corrupt Practices Act enforcement officials, experienced FCPA practitioners, and leading FCPA academics and scholars to discuss the many legal and policy issues relevant to the current FCPA enforcement and compliance landscape.Register here
Registration, 8:30 a.m.
Morning Session, 9:00 a.m. to Noon
FCPA Legal and Policy Issues
- Daniel Chow, Professor, Ohio State School of Law
China’s Crackdown on Government Corruption and the FCPA
- Mike Koehler, Professor, Southern Illinois School of Law
Has the FCPA Been Successful In Achieving Its Objectives?
- Peter Reilly, Associate Professor, Texas A&M School of Law
The Fokker Circuit Court Opinion and Deferred Prosecution of FCPA Matters
- Juliet Sorensen, Professor, Northwestern School of Law
The Phenomenon of an Outsize Number of Male Defendants Charged with Federal Crimes of Corruption
- Marcia Narine Weldon, Professor, Univ. of Miami School of Law
What the U.S. Can Learn from Enforcement in Other Jurisdictions and What Other Jurisdictions Can Learn from Us
Luncheon, Noon to 1:00 p.m.
Afternoon Session, 1:00 to 3:00 p.m.
(1:00 to 2:00 p.m.)
- Jay Jorgensen
Executive Vice President, Global Chief Ethics and Compliance Officer, Walmart
Follow-up panel (2:00 to 3:00 p.m.):
FCPA Enforcement and Compliance Landscape: Past, Present, and Future
- Kit Addleman, Attorney, Haynes and Boone LLP, Dallas and Fort Worth Offices
- Jason Lewis, Attorney, Greenberg Traurig LLP, Dallas Office
Tuesday, August 29, 2017
And so it continues:
In a recent case in the United States District Court, District of Columbia, a court messes up the entity (referring to one of the parties as “Howard Town Center Developer, LLC, is a limited liability corporation (‘LLC’)") and also does a fine job of improperly stating (or really, failing to state) the law for veil piercing.
I took the initiative to pull the initial complaint and the answer to see if either of the parties were responsible for calling the LLC a corporation. Both sides properly referred to the LLC as a “limited liability company,” so it appears the corporation reference is a court-created issue.
In the case, a property developer brought action to require a university landowner to reinstate a ground lease and development agreement between developer and university, after the university sent notices of termination. The University counterclaimed to recover unpaid rent. The court determined, among other things, that the university was entitled to the damages it sought of $1,475,000 for unpaid rents and to attorney fees related to the developer's breach of a ground lease and development agreement. But the opinion doesn’t stop there.
It is quite clear that the developer LLC does not have the funds to pay the judgment, so the question of whether the LLC’s veil could be pierced was also raised. The court, I think properly, determined that “a targeted asset or individual must be named before veil-piercing may be considered.” Howard Town Ctr. Developer, LLC v. Howard U., CV 1075 (BAH), 2017 WL 3493081, at *56 (D.D.C. Aug. 14, 2017). The court continued: “The University should not lament, nor the Developer celebrate, that conclusion, however, on the erroneous assumption that the University has waived its right to veil-piercing in this matter.” Id.
The court then determined that, because of “considerations of justice and equity,” the university could later seek a veil-piercing action if it were unable to satisfy its judgment. “Any such action will be fairly straightforward given the instant decision, including the Court's observations regarding the inadequacy of the Developer's capitalization . . . and the University may then be entitled to the additional discovery it presently seeks.” Id.
Wow. That’s some heavy dicta. First, the court never states what the rule is for veil piercing an LLC, so it is a pretty bold assertion to say veil-piercing will be “straightforward.” Is the sole test adequate capitalization? What does that mean? And what is that test? Well, the court gives us an explanation in footnote 22:
The Developer's status as an inadequately capitalized shell company is an ongoing demonstration of bad faith. LLCs are a legitimate corporate form, and the societal benefits of such entities are significant. Dickson testified that the use of such entities in transactions like this one is “typical[ ],” explaining that “single-asset entities are established as borrowers” so that “the borrower[ ] contains one asset,” the advantage from a “liability standpoint” being that “on a transaction of this size, the asset couldn't be pulled into bankruptcy.” Trial Tr. Day 7 AM at 49:25–50:7. Yet, even a single-asset entity must be capitalized to the extent necessary to satisfy its obligations to the project it was created to support. See Lawlor v. District of Columbia, 758 A.2d 964, 975 (D.C. 2000) (noting inadequate capitalization as factor in determining whether a given entity's corporate form should be respected). Consequently, abuse of the corporate form to render a company judgment-proof is impermissible and reflects bad faith.
Um, no. First, the LLC is not a corporate form. And an entity not being able to pay its debts is not, in and of itself, a showing of bad faith. Otherwise, what’s the point of limited liability? The court seems to think that being judgment proof because of a lack of funds is not allowed. But it is specifically allowed. If there is fraud or deception, that is not allowed. But an inability to pay the bills is not, alone, at all improper. It is unfortunate, and perhaps awful, but it is not improper.
Ultimately, it may be that veil piercing could be justified under DC law, but first, we’d need to know what that law is. And it should be clear that it is LLC-veil-piercing law that is to be applied, and not the “corporate” veil piercing this court has apparently relied upon. Once again, I will repeat my call for courts to state specifically the law (and the test) they are applying in LLC-veil-piercing cases, explain why the factors of the test are appropriate in the LLC setting, and then apply that test.
Instead, the court suggests that veil piercing is essentially inevitable, which could have a strong role in forcing a settlement. This language amounts to phantom veil piercing. The court never stated a veil-piercing test, never ran the test, and yet, there it is: the specter of a pierced limited liability veil.
The court seemed frustrated with the developer, and that may be well founded. Maybe the developer committed fraud. Maybe the developer and other representatives made binding promises that should make them all guarantors. The case also suggests that there may be an argument for enterprise liability among some of the entities mentioned. And those are all issues that should have been considered. But none of them are veil piercing claims, and if the court is going to go down that road, the court needs to be more precise to ensure justice and equity prevail.
Monday, August 28, 2017
I am excited and proud to make the following announcement about a cool (!) upcoming program being held on Saturday, September 16 at UT Law in Knoxville:
The University of Tennessee College of Law will host a conference and CLE program that will focus on trends in business law. Discussions will take place throughout the day featuring panel discussions that center upon business law scholarship, teaching and law practice.
Topics will include business transaction diagramming; risks posed by social enterprise enabling statutes; fiduciary obligations and mutual fund voting; judicial dissolution in LLCs; Tennessee for-profit benefit corporation law and reporting; corporate personality theory in determining the shareholder wealth maximization norm; and professional responsibility issues for business lawyers in the current, evolving business environment.
The presenters for the program panels are . . . well . . . us! All of the BLPB editors and contributing editors, except Anne Tucker (we'll miss you, Anne!), are coming to Knoxville to share current work with each other and conference attendees. Each editor will anchor a panel that also will include a faculty and student discussant. The BLPB blogger papers and the discussants' written commentaries will all be published in a future issue of our business law journal, Transactions: The Tennessee Journal of Business Law. We also have secured one of our former visiting professors as a lunch-time speaker.
UT Law looks forward to hosting this event. For more information, you can look here. I expect some of us will post on the conference and the conference papers at a later date.
Sunday, August 27, 2017
Saturday, August 26, 2017
As Anne Tucker pointed out, there was a flurry of news items a couple of years ago suggesting that hedge fund activists were more likely to target female CEOs over male CEOs.
Well, someone’s now done a systematic study of the issue and confirmed – yes! That is a thing that happens!
In their paper, Do Activist Hedge Funds Target Female CEOs? The Role of CEO Gender in Hedge Fund Activism, authors Bill Francis, Victor Shen, and Qiang Wu control for a variety of firm characteristics, including the “glass cliff” (that women are more likely to be elevated to CEO in times of turbulence), and still find that the presence of a woman CEO makes it more likely that a company will be targeted by activists. They attribute the difference to a couple of things. First, they find that women CEOs respond differently to activist attacks: instead of going into a defensive posture, they are more likely to cooperate. As a result, activists seek cooperative measures like board seats, and settle without proxy fights. The more cooperative posture of women CEOs makes it easier – and thus more profitable – for activists to target them. This finding, they conclude, is consistent with other findings that the market does not respond as positively to activist intervention when the firm uses aggressive defensive tactics, unless the activist further increases the hostilities with even more expensive and aggressive interventions.
The study’s authors reject the notion that pure sexism is at work, because (they find) the market responds to activism at women-led companies with larger abnormal returns both in the short term and over the course of a year. According to the authors, it is implausible that the market, as well as the activists, would be misled by pure gender bias for such a prolonged period.
On this point, I’m a little more skeptical. For one thing, if I’m reading this correctly, their long-term findings of higher abnormal returns for women-led companies are less consistent across different specifications than the short-term findings. Plus, I think it’s entirely plausible that even if the activists themselves are not “motivated” in some subjective sense by gender bias, they suspect that the other investors on whose cooperation they rely may be less trustful of women CEOs. So they know that if they target those companies, other investors will respond more positively. Indeed, the authors find that activists take smaller positions in women-led companies than men-led ones, suggesting that the activists anticipate more cooperation from the existing shareholder base.
That said, I certainly find it plausible that part of activists’ motivation stems from differential responses of men and women CEOs, so there’s a great irony in the fact that women CEO responses end up adding value to the company, yet at the same time – as the study’s authors find – women end up suffering more for it, with a greater loss in compensation and higher turnover than men CEOs who find themselves targeted, even though women begin with less compensation than their men counterparts.
In addition to having interesting implications on its own terms, this study I think can be viewed as part of a larger emerging literature on the problem of customer or end-user discrimination. As Kate Bartlett and Mitu Gulati discuss in their essay on the subject, we have a variety of laws that prevent, say, employers from discriminating against employees, and businesses from discriminating against customers, but we don’t have laws that work in the opposite direction. For the most part, buyers/customers can discriminate with impunity (with limited exceptions, like programs funded by the federal government) – which in practice means that we have real discrimination problems in the gig economy. Airbnb, for example, has been trying to address discrimination by homeowners who will not rent to people of color, and people of color who sell products on eBay may receive less than white sellers (.pdf). One article reports that women gig economy workers are used to experiencing harassment by customers, and – because they are considered to be independent contractors – don’t view themselves as having many options. Of course, this is not just a gig economy phenomenon; among other things, medical patients may not want to be treated by nonwhite doctors (here is an extreme example).
And recently, there have been a spate of articles about discrimination by venture capitalists, who are much less likely to fund women-led startups and, apparently, have engaged in a pattern of serious sexual harassment against women entrepreneurs. Activists who target women CEOs seem to be another data point.
The reality may be that there are forms of discrimination that the law can’t reach, but as the Bartlett and Gulati article concludes, we might start to seriously think about areas where legal intervention could be a practical, if partial, solution.
Friday, August 25, 2017
From Friend-of-the-BLPB Andrea Boyack:
WASHBURN UNIVERSITY SCHOOL OF LAW invites applications for one or possibly two tenure-track faculty positions commencing in the 2018-19 academic year. We are particularly interested in secured transactions, payment systems, and other commercial law courses. We would also be interested in candidates who could also expand our tax law offerings, in addition to those commercial law courses.The Washburn campus is located in the heart of Topeka, Kansas, blocks from the state capitol. Topeka has been named a Top Ten City in Kiplinger’s magazine. Topeka features affordable housing with beautiful, historic neighborhoods filled with well-maintained parks, and is the home of the Brown v. Board of Education historical site.
Washburn Law School is committed to diversity in its faculty and encourages applicants whose backgrounds will enrich the law school. Candidates should possess a JD degree from an ABA accredited law school; a distinguished academic record; and, a record of, or demonstrated potential for, scholarly production.
Review of applications will begin immediately, continuing until the position is filled. (All faculty appointments are contingent upon funding.) Interested candidates should send a resume, listing three references, and a cover letter. Contact: Professor Mary Ramirez, Chair, Faculty Recruitment Committee, Washburn University School of Law, 1700 College Avenue, Topeka, Kansas, 66621. E-mail: firstname.lastname@example.org
From an e-mail I recently received:
The University of Alabama School of Law seeks to fill multiple entry-level/junior-lateral tenure-track positions for the 2018-19 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Positions are not necessarily limited by subject. However, there is a particular need for applicants who study and/or teach business law (corporate finance, mergers & acquisitions, and business planning are of particular interest); criminal law; insurance law; and torts (including products liability). Family law and labor/employment are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal modeling, or historical or philosophical analysis).
The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Interested candidates should apply online at facultyjobs.ua.edu. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Professor William Brewbaker, Chair of the Faculty Appointments Committee (email@example.com).
I am delighted that Dr. Jeff Edmonds has agreed to be interviewed for this blog. Jeff and I graduated from the same high school in Chattanooga, TN, a few years apart. We both ran track, though Jeff ran a good bit faster than I ever did, and Jeff continued his running career at Rice University and Williams College. Jeff earned a PHD in philosophy at Vanderbilt University and is currently the high school academic dean at the prestigious University School of Nashville. Jeff coaches a running group called the Nashville Harriers, and he recently revived his excellent philosophy and running blog, The Logic of Long Distance.
The interview follows under the break. In the interview, Jeff shares wisdom on running and education that are well worth your time.
Thursday, August 24, 2017
From Friend-of-the-BLPB Minor Myers (blue font emphasis added by me!):
BROOKLYN LAW SCHOOL seeks one or more full-time, tenure-track or tenured faculty members. We are interested in outstanding candidates in all fields, including, in particular, securities law and regulation and corporate law. Other areas of potential interest are civil procedure, constitutional law, labor law, antitrust, and torts. Applicants should have a strong academic record and demonstrated commitment to scholarly activity and publication. We are interested in both entry-level and lateral candidates, and we are especially interested in candidates who will enhance the diversity of our faculty. In addition, Brooklyn Law School plans to hire a proven, innovative leader for our academic success program. Entry-level candidates, and candidates who have been teaching in a tenure-track position for no more than two years, should apply via the Faculty Appointments Register or by email to Professor Minor Myers, Chair, Faculty Appointments Subcommittee (firstname.lastname@example.org). Candidates who have been teaching in a tenure-track position for more than two years and candidates for the academic success position should apply via email to Professor Alex Stein, Chair, Lateral Faculty Appointments Subcommittee (email@example.com).
Wednesday, August 23, 2017
So, don't. Over at Above the Law, Prof. Kerriann Stout wrote 10 Things That Will Absolutely Piss Off Your Law Professor. She notes it is not an exhaustive list, but it is a good one and worth a read. This year, I added a new bit of information to my first day of class about how to interact with me about absences and workload. (I often discuss this in class at some point, but I don't recall ever doing it in both of my classes on day one.)
So, here's the deal. In my classes, I allow a certain number of absences (depending on number of credits and days we meet) without questions for personal reasons, interviews, etc. Here is an example of my attendance clause:
Students are expected to attend every class. Students are permitted to miss up to four classes for other obligations without explanation. This number is to include virtually all absences, including sickness, out-of-town interviews, etc. (but does not include classes missed for religious observance). If classes in excess of four are missed, to avoid withdrawal from the course, a written explanation may be required, including the reason for missing additional classes, the student’s plan to ensure the materials covered in the missed classes will be learned, and the reasons the student should be permitted to continue in the course. The policy is designed to facilitate learning, not impose hardship.
This way, students can plan ahead (and most do), and they can make decisions as professionals must about how they prioritize their time. Despite this policy, every year I have students email me to say they will (or did) miss class because they:
- Have to finish a paper for another class
- Have a law review note or moot court brief due
- Must study for a midterm
- Need to prepare for a clinic meeting/hearing
- Plan to attend an out-of-town football game/baseball game/concert
Again, I do not require nor do I ask for an explanation (unless it is related to excess absences, and no one has tried these reasons for that). My new tack is to explain:
I am interested in you as a human being, so please do not hear me saying I don't care what you do or why. And if you need help, you should ask. And if you can't ask me, talk to our Dean of Students or Dean of Academic Affairs or ask a friend. There is help available; please let us help. What I am about to tell you is not about when you need help. It is about what you say when you can't make it to class or be prepared for that class and about what you say to me (or my colleagues) in communicating that information.
Though I do not require it, I appreciate it when you tell me you cannot be in class on a given day. I am am fine if you very rarely request a pass for the day because you are not prepared. But I don't ask you for reasons for your absence or why you are not prepared. So, if you volunteer that information and tell me that you have to miss class or are unprepared because you need to finish a paper for another class, that says to me, "I have prioritized another class over yours." You may not mean to be saying that, but it is in many ways what you are saying.
I understand that you may be sharing to be honest. I appreciate that, and if I were to ask you, honesty is the best policy. I get that you might be trying to communicate that you are not missing my class for a frivolous reason. Okay, but you have still told me your priorities. I also understand that you might want some level of absolution. I can't and shouldn't give you that. We all have a lot to do, and sometimes life gets in the way of life, so we must make tough choices. That does not make me mad. Just don't volunteer that you made such a choice when you don't need to volunteer that you did.
I raise this for you not because it really upsets me. It doesn't. It may annoy me on a given day, but I can handle it. But it really, really irritates some of my colleagues, even if they don't tell you. And it is an incredibly risky thing to share with a client or boss, who definitely don't want to hear someone else's work is more important than their's.
So, be honest when asked, and take responsibility for your actions. Don't share information unnecessarily. Don't seek external absolution from professors, or clients, or bosses. I am here to teach, and I am here to help you learn, and grow, and find the resources you need to thrive. But I am not here to make you feel better about not doing the work I have asked of you.
Tuesday, August 22, 2017
The following posting looks like an incredible opportunity to take a year to work with the Air Force cadets in Colorado Springs and maybe even check out the Olympic Training Center.
Visiting Faculty Position: Business Law
The Department of Law at the U.S. Air Force Academy in Colorado Springs, Colorado, offers an undergraduate Legal Studies Program. We seek a career employee at an American graduate or undergraduate institution or government agency to fill a 10.5 month position as a visiting faculty member to teach, among other things, an undergraduate Business Law course. This visiting position will be from July 2018 to May 2019.
In addition to being a fulltime career employee at an academic institution or federal agency, applicants must have a J.D. degree from an accredited law school and at least five years fulltime teaching experience. Preference will be given to experience teaching Business Law and related courses as well as on-going scholarship and practice-related activities. Visiting Faculty responsibilities in addition to teaching include development, review, and assessment of related learning outcomes, courses and programs, and engagement with students and faculty. The successful applicant may also teach the core (required) course, Law for Air Force Officers, a survey course covering topics such as criminal and constitutional law, law of armed conflict, jurisprudence, and legal tools of military discipline. The person selected may also teach upper-level law courses as part of the Legal Studies major.
The Visiting Professor Program allows the Air Force Academy to reimburse the sending institution/agency the costs of salary and benefits and pays costs of personal transportation and movement of household goods to Colorado Springs and back. Housing is available on or off the Academy grounds, but is at the visiting faculty member’s expense. Teaching expectations are negotiable, but would likely involve one or two courses both fall and spring semesters teaching sections of about 20 cadets. The Academy faculty is an integrated group of military and civilian educators. The curriculum includes core academic and professional courses, and 27 disciplinary and interdisciplinary majors. The Department of Law is composed of 18 military and civilian attorneys and a small administrative staff.
The United States Air Force Academy (USAFA), located just north of Colorado Springs, Colorado, is an undergraduate institution that awards the Bachelor of Science degree as part of its mission to educate, train, and inspire men and women to become officers of character, motivated to lead in the United States Air Force and in service to our nation. The student body consists of approximately 4,000 men and women representing every state and several foreign countries.
USAFA is dedicated to the goal of building a pluralistic faculty committed to a multicultural environment that enriches the educational experience of our students. Hence, we are especially interested in candidates whose teaching, life experience and/or research interests contribute to a climate that values and uses diversity in all its forms. Interested persons should submit a curriculum vitae and a statement of interest that addresses the ways in which the applicant’s qualifications meet the requirements of the ad to include evidence of teaching excellence, promise of research productivity, and commitment to diversity/inclusion.
Email applications are preferred and should contain: A resume/CV, list of three references, and a cover letter. Please send them to Professor John Hertel at John.Hertel@usafa.edu or Department of Law, 2354 Fairchild Drive, USAF Academy, CO 80840. Review of applications will begin as soon as possible and will continue until the position is filled. For more information, please contact Professor John Hertel at: John.Hertel@usafa.edu or 719-333-2832.
Monday, August 21, 2017
So, it happened. A total eclipse of the sun. (And how many of you are still singing one of these songs in honor of the occasion?) Where were you? What did you see and do? My best Android phone photo of totality is above.
I spent the day enjoying both the event and the charm of Charleston, South Carolina with my hubby, sister-in-law, brother-in-law, and nephew (a student at the College of Charleston)--as well as many others. The photo below shows how dark it got on the ground for us during the total eclipse. The street lights came on!
A lot of people left the park we settled in for the eclipse soon after totality. My husband and I stayed to watch the moon move away. It all was so amazing. Check out the little sliver of sun emerging from under the moon in the spot between the clouds in the photo below. Yowza! Here comes the sun!
I am sure the business and business law stories from the total eclipse of 2017 will take some time to resolve themselves. But I did note this WaPo article from earlier today reporting that the run-up to the eclipse, at least out in Oregon, may have predicted a better outcome for some businesses than they actually were able to achieve. Issues around the viewing glasses (counterfeiting, misrepresentations, scarcity) have been paramount in my neck of the woods. I wonder whether there will be any related litigation . . . . I guess the question is more of a "when" and "what," however, than a "whether" . . . .
And for those who just want an quick and amusing business-oriented angle on the eclipse, this short piece from the folks at Inc. may fit the bill.
Happy Eclipse Day 2017. I hope it was all you wanted it to be.
Sunday, August 20, 2017