Friday, March 7, 2014
Most professors I know are asked some version of the title question by their students on a relatively regular basis.
- Will this be on the exam?
- Will this in-class exercise be graded?
- Will we get extra credit for this outside event you recommended?
When I was a student I may have asked some of these same questions, and as a professor, I gladly answer these questions. For some reason, however, I have a silent, negative visceral reaction to these questions, and I know many other professors who feel similarly.
This week, with my family on spring break in North Carolina, I have been pondering why I have such a negative reaction. I think my reaction is not because there is anything inherently wrong with the questions, but because I desperately want my students to understand that, ultimately, our classes are (or should be) about something much more important than just a grade. A grade should approximate the level of mastery and the components of the grade should be as clear as possible, but many of the things that students should be developing -- critical thinking, intellectual curiosity, compassion, perseverance, professionalism, ethics, etc. -- are difficult to fully capture in a grade.
As I pondered my reaction to the student questions, I realized that many professors ask a similar question:
- Does it count for promotion and tenure?
Better for us to ask if our teaching, research and service is positively affecting our students, our colleagues, and society in general.
Directors and officers of public corporations also tend to ask a similar question:
- How does it affect earnings per share?
Better for directors and officers to ask if the corporation is contributing to human flourishing. See Professor Scott Pryor’s recent post (and the embedded links, especially this one) for some additional thoughts on corporate purpose. For the record, my post from earlier today was meant to be a descriptive, not normative.
We all know, I think, that there are bigger, deeper, more important questions that we should ask, but the bullet-pointed questions above capture a large percentage of our attention. At least part of the reason these items often attract myopic focus is because the subject matter is relatively easy to quantify. Something in us loves to measure and compare accomplishments.
Recently, I nominated a mentor of mine for a lifetime achievement award. She has spent over 35 years of her life as a professor, and she is one of the people who helped me break into this academic world that I love. In my nomination letter I wrote that she is the type of professor who gives of her time “even when she has no reason to expect recognition or another line on her resume.”
Like my mentor does, I hope that my students and I will focus our attention on the most important issues, even if we cannot fully capture the results of our efforts on a report card, resume, or spreadsheet.
Thursday, March 6, 2014
Some law professors may remember when Justices Roberts and Kennedy opined on the value legal scholarship. Justice Roberts indicated in an interview that law professors spend too much time writing long law review articles about “obscure” topics. Justice Kennedy discussed the value he derives from reading blog posts by professors who write about certs granted and opinions issued. I have no doubt that most law students don’t look at law review articles unless they absolutely have to and I know that when I was a practicing lawyer both as outside counsel and as in house counsel, I almost never relied upon them. If I was dealing with a cutting-edge issue, I looked to bar journals, blog posts and case law unless I had to review legislative history.
As a new academic, I enjoy reading law review articles regularly and I read blog posts all the time. I know that outside counsel read blogs too, in part because now they’re also blogging and because sometimes counsel will email me to ask about a blog post. I encourage my students to follow bloggers and to learn the skill because one day they may need to blog for their own firms or for their employers.
Blogging provides a number of benefits for me. First, I can get ideas out in minutes rather than months via the student-edited law review process. This allows me to get feedback on works/ideas in progress. Second, it forces me to read other people’s scholarship or musings on topics that are outside of my research areas. Third, reading blogs often provides me with current and sophisticated material for my business associations and civil procedure courses. At times I assign posts from bloggers that are debating a hot topic (Hobby Lobby for example). When we discuss the Basic v. Levinson case I can look to the many blog posts discussing the Halliburton case to provide current perspective.
But as I quickly learned, not everyone in the academy is a fan of blogging. Most schools do not count it as scholarship, although some consider it service. Anyone who considers blogging should understand her school’s culture. For me the benefits outweigh the detriment. Like Justice Kennedy, I’m a fan of professors who blog. In no particular order, here are the mostly non-law firm blogs I check somewhat regularly (apologies in advance if I left some out):
http://www.theconglomerate.org/ (thanks again for giving me first opportunity to blog a few months into my academic career!)
http://law.wvu.edu/the_business_of_human_rights (currently on a short hiatus)
I would welcome any suggestions of must-reads.
March 6, 2014 in Business Associations, Corporate Governance, Corporations, Current Affairs, Entrepreneurship, Marcia L. Narine, Merger & Acquisitions, Securities Regulation, Social Enterprise, Teaching, Unincorporated Entities, Weblogs | Permalink | Comments (2)
Tuesday, March 4, 2014
West Virginia University has a new LLM program in Energy & Sustainable Development Law. At the moment, the program is open only to those with a U.S. law degree. The degree program capitalizes on a wide and deep range of expertise at WVU Law in a one of the nation's most energy-rich states. (Full bias disclosure: I direct the program.)
All students in the program are required to take both the Energy Law Survey and the Environmental Protection Law course. This is because we firmly believe that all lawyers connected to the energy sector need to have a firm grasp on both energy law issues and envirnonmental law issues. Both courses touch on each other's area, but having both courses as a base will lead to better prepared professionals, whether the graduate wants to work for industry, an NGO, or a regulator.
We also require some form of experiential learning, a portfolio of written work, and a Research Paper or Field-Work Project. Full details of the program are here. For this venue, and in my area of interest, I will note our business offerings. I teach my Energy Business: Law & Strategy course, details here, in addition to my Business Organizations course and the Energy Law Survey. We also have great variety of courses in energy law, environmental law, and sustainable development law.
In addition, we have a fellowship opportunity in the Land Use and Sustainable Development Clinic. This fellowship is a part-time (at least twenty hours per week), two-year position from August 2014 through July 2016. The Fellow will receive an annual stipend of $20,000 and tuition remission for the LL.M. program. The Fellow would take 6-7 credits per semester allowing time for part-time work at the Clinic. Details available here.
In a world where the Future of Business is the Future of Energy, this program is one option to consider.
Monday, March 3, 2014
Business law has a broad overlap with tax, accounting, and finance. Just how much belongs in a law school course is often a challenge to determine. We all have different comfort levels and views on the issue, but incorporating some level of financial literacy is essential. Fortunately, a more detailed discussion of what to include and how to include it is forthcoming. Here's the call:
Call For Papers
AALS Section on Agency, Partnerships LLCs, and Unincorporated Associations
Bringing Numbers into Basic and Advanced Business Associations Courses: How and Why to Teach Accounting, Finance, and Tax
2015 AALS Annual Meeting Washington, DC
Business planners and transactional lawyers know just how much the “number-crunching” disciplines overlap with business law. Even when the law does not require unincorporated business associations and closely held corporations to adopt generally accepted accounting principles, lawyers frequently deal with tax implications in choice of entity, the allocation of ownership interests, and the myriad other planning and dispute resolution circumstances in which accounting comes into play. In practice, unincorporated business association law (as contrasted with corporate law) has tended to be the domain of lawyers with tax and accounting orientation. Yet many law professors still struggle with the reality that their students (and sometimes the professors themselves) are not “numerate” enough to make these important connections. While recognizing the importance of numeracy, the basic course cannot in itself be devoted wholly to primers in accounting, tax, and finance.
The Executive Committee will devote the 2015 annual Section meeting in Washington to the critically important, but much-neglected, topic of effectively incorporating accounting, tax, and finance into courses in the law of business associations. In addition to featuring several invited speakers, we seek speakers (and papers) to address this subject. Within the broad topic, we seek papers dealing with any aspect of incorporating accounting, tax, and finance into the pedagogy of basic or advanced business law courses.
Any full-time faculty member of an AALS member school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper in this area is invited to submit a 1 or 2-page proposal by May 1, 2014 (preferably by April 15, 2014). The Executive Committee will review all submissions and select two papers by May 15, 2014. A very polished draft must be submitted by November 1, 2014. The Executive Committee is exploring publication possibilities, but no commitment on that has been made. All submissions and inquiries should be directed to Jeff Lipshaw, Chair.
Jeffrey M. Lipshaw
Suffolk University Law School
Click here for contact info
Thursday, February 20, 2014
Our BLPB group has had a number of email discussions recently about the use of social media including blogs, Facebook, LinkedIn and Twitter for professional purposes. My home institution has discussed the same topic and even held a “training” session on technology in and outside of the classroom. Because I am a heavy user, I volunteered to blog about how I use social media as a lawyer and academic in the hopes of spurring discussion or at least encouraging others to take a dip in the vast pool of social media.
Although I have been on Facebook for years, I don’t use that professionally at all. I also don’t allow my students to friend me, although I do know a number of professors who do. I often see lawyer friends discussing their clients or cases in a way that borders on violations of the rules of professional conduct, and I made sure to discuss those pitfalls when I was teaching PR last year.
I have also used LinkedIn for several years, mainly for professional purposes to see what others in my profession (at the time compliance and privacy work) were thinking about. I still belong to a number of LinkedIn groups and have found that academics from other countries tend to use LinkedIn more than US professors. I have received a number of invitations to collaborate on research just from posts on LinkedIn. I also encourage all of my law students to join LinkedIn not only for networking purposes, but also so that they can attract recruiters, who now use LinkedIn almost as often as they use headhunters. When I blog, I link my posts to LinkedIn, which in turn automatically posts to Twitter.
I admit that I did not like Twitter at first. I now have three Twitter accounts- follow me at @mlnarine. I started using Twitter when I was a deputy general counsel and compliance officer and I followed law firms and every government agency that was online that regulated my industry. The government agencies were very early to the Twitter game and I once learned about a delay in the rollout of a regulation via Twitter a full week before my outside counsel who was working on the project informed me.
I also use the hashtag system (#) to see what others are saying on topics that hold my interest such as #csr (corporate social responsibility and unfortunately also customer service rep), #socent for social enterprise, #corpgov for corporate governance, and #Dodd-Frank and #climatechange (self explanatory).
I make an effort to tweet daily and am now an expert in trying to say something useful in 140 characters or less (being on yearbook staff in high school and counting characters for headlines made this a breeze for me). I re-tweet other tweets that I believe may be of interest to my followers or links to articles, and often gain new followers based on what I have chosen to tweet, largely because of my use of hashtags. In fact, after a marathon tweeting session following the Dodd-Frank conflict minerals oral argument before the DC Circuit Court of Appeals, I received four calls from the press for interviews, a nice, unexpected benefit of trying to educate my followers. Often when I attend conferences, such as last week’s ABA meeting or the UN’s Business and Human Rights Forum, the organizers develop a hashtag so that those who cannot attend in person can follow the proceedings through tweets and the attachments to those tweets.
The best part of twitter is that I met fellow blogger, Haskell Murray because of one his tweets and that led to an invitation to speak at a conference. Haskell has published a useful list of business law professors on Twitter so if you’re not on his list, let us know and we will update it.
Next week I will post about the benefits or perils of blogging, especially for someone new to academia.
February 20, 2014 in Business Associations, Anne Tucker, Conferences, Corporate Governance, Corporations, Current Affairs, Entrepreneurship, Ethics, Haskell Murray, Marcia L. Narine, Social Enterprise, Stefan J. Padfield, Teaching, Web/Tech | Permalink | Comments (0)
Friday, February 14, 2014
Recently, I completed reviewing my mid-course student evaluations.
I have found mid-course evaluations to be quite valuable. As a student, I remember wishing we had mid-course evaluations so that my comments could be used to improve our class, rather than merely helping the professor improve the course for the next batch of students.
The mid-course evaluation gives students a chance to voice concerns, anonymously, relatively early in the course. While professors quickly learn that is likely impossible to please all of their students—some students love the exact same thing that other students hate—trends in mid-course evaluations can alert professors to potential issues and give time to make modifications before the end of the semester.
Mid-course evaluations can also be used as a teaching tool—modeling the proper way to seek and evaluate advice. The class period after I administer the mid-course evaluation, I take a few minutes to explain to the class what (if any) changes I plan to make on their advice and why I chose not to follow some of their advice (for example, even if a number of students dislike group work, I explain why we are going to continue with some group exercises). The students may not agree with my reasonsing, but they seem to appreciate the explanations.
The mid-course evaluations only take a total of about 10 minutes of class time (5 minutes for the students to fill out the sheets and 5 minutes to review in the next class). I simply ask: What is working well? What is not working well? Other comments? Every semester I get some students complaining about how difficult the course is and other “I don’t want to eat my vegetables” comments, but I also usually get some useful information.
For those of you who don’t already do mid-course evaluations, I suggest giving it a try.
Wednesday, February 5, 2014
If you practiced as a transactional attorney before law teaching, chances are that you looked at form agreements provided in treatises, saved on your law firm database, handed to you by partners from past deals, or saved in your own template archives. This is no different from what litigators do either—they look for model existing memos, complaints, document requests, etc. that guide the first draft and let you start somewhere past “zero”. The rapidly changing legal environment and unique needs of each client in each deal limits the shelf life of form agreements and saddles them with all sort of potential downsides if they aren’t used thoughtfully, verified by research, or tailored to the specific deal. This disclaimer aside, I am curious about how we teach students about the role of exemplars, and as a starting point, where to find exemplars. Students and junior attorneys, if not given the right tools to find the best models, will use bad model forms. If you don’t believe me, see what you get when you search for “standard asset purchase agreement”.
This raises the question of where should students, attorneys, law professors wanting to incorporate experiential learning exercise modules into their courses look for these resources.
This post will be the first in a series that will highlight these resources. If you have suggestions for a source, please leave a comment or email me at email@example.com. I will compile a list of sources and link a word document in the final post. If there is interest, I will be happy to update the list over time. For now, the first installment of free, publically available resources. Paid sources will be next.
- Harvard Law School Library Transactional Sources and Tips
- North Carolina Central University Transactional Law Resources
- Emory Exchange for Transactional Teaching Materials
- Georgetown Law Library Transactional Form
Wednesday, January 29, 2014
I recently discovered that YouTube hosts a collection of content related to contracts. If you teach this first year course, it is at least worth browsing through the options to see if you can include something in class, a follow-up email to students, or linking through your course website. These videos are silly and hard to believe that one could devote so much time to a task like "contracts" songs, but bless those who do.
If you use other content in your first year contracts course, please leave a comment or send me an email. I will update the post with your suggestions.
Thursday, January 23, 2014
Even before I read the book The Happy Lawyer by my former colleagues Nancy Levit and Doug Linder, I loved every legal job I ever had from judicial law clerk to BigLaw associate (twice), to deputy general counsel. I am still a happy lawyer after twenty-two years in the profession. I am clearly an anomaly among my attorney friends, most of whom looked at me with envy when I said that I was leaving practice to pursue academia. One friend, a partner in a South Florida firm quipped, “litigation has to be one of the only professions where your client hates you, your opposing counsel hates you, and the judge probably thinks you’re an idiot. When the outcome is positive, the client loves you until they see the bill.” No wonder lawyers aren’t happy.
But the situation for lawyers is more serious than a few clients grumbling about high bills. Earlier this week CNN reported that lawyers are the 4th most unhappy professionals behind dentists, pharmacists, and physicians, and are 3.6 times more likely to suffer from depression than non-lawyers. According to the article, 40% of law students report that they have suffered from depression before graduation. That acknowledgement of a diagnosis of depression or indeed seeking any help for mental illness or substance abuse can adversely affect the graduate’s chances for admission to the bar.
Eight states, including my home state of Florida, have added a mental health component to the continuing legal education requirement, in part to address a rise in attorney suicides. No one can pinpoint the cause for the increase in unhappiness. Perhaps it’s the recession, which led to layoffs at every level and which will forever alter the legal landscape. Perhaps, like doctors, pharmacists and dentists, lawyers tend to be type A personalities who thrive on perfection and success and drive themselves harder than others.
I read the CNN article while was on a tour in Switzerland two days ago. I thought I wanted to live the life of the Swiss with their low taxes, 3.1% unemployment rate, high income and great medical and social insurance programs, when the tour guide stunned us by acknowledging that Switzerland has the third highest suicide rate in the world. “It’s the relentless pressure to succeed and the tremendous competition here,” he explained. It seems as though the Swiss have something in common with American lawyers.
I was actually in Switzerland for the 4th annual kickoff of the innovative LawWithoutWalls program founded by University of Miami Professor Michele DeStefano. The program requires law and business students from around the world to work on teams to develop a project of worth addressing a problem facing the legal profession or legal education. I serve as an academic mentor with entrepreneurs, venture capitalists, in house counsel, practitioner mentors and lawyers from sponsor Eversheds. The students learn about the commoditization of legal services from the very firms that are disrupting the profession, Axiom and LegalZoom, who have representatives serving as mentors or thought leaders. They watch actual pitches on legal innovations to venture capitalists. They learn about doing a business plan for their projects of worth from entrepreneurs, and they use that knowledge when they present their project in a Shark Tank-like presentation in April. The next few months of their lives as part of this program will help the students learn skills and make contacts for an ever-evolving global legal market. Hopefully, they will be better equipped to handle what’s out there than the students who take their career cues from the television show Suits.
But what about the practicing lawyers? Not everyone wants to or can make the leap to academia. There are few LawWithoutWalls programs for veteran, burned-out lawyers. Many attorneys will continue to suffer from soul-crushing anxiety, depression or boredom. I don’t have the answer but look out for the follow-up to Levit and Linder’s book entitled The Good Lawyer: Seeking Quality in the Practice of Law due out this summer.
Thursday, January 16, 2014
(1) Corporate Disclosures, (2) Indirect Advocacy, (3) Climate Change, and (4) Institutional Investors
The Union of Concerned Scientists, an alliance of more than 400,000 citizens and scientists, released a report today: Tricks of the Trade: How Companies Influence Climate Policy Through Business and Trade Associations. The report is based on data collected by CDP, an international not-for-profit that “works with investors, companies and governments to drive environmental disclosure”. CDP administers an annual climate reporting questionnaire to more than 5,000 companies worldwide with the support of various institutional investors (722 institutional investors with over $87 trillion in capital). The 2013 questionnaire asked companies about climate policy influence, including board membership in trade associations, lobbying, and donations to research organizations.
Tricks of the Trade highlights outsourced political influence through the use of trade associations and interest groups that lobby on behalf of their members rather than the members engaging in these activities in their own name. The report highlights 3 main issues: (1) lack of transparency, (2) incongruence with the outsourced message among responding companies, and (3) the continued role that the Citizens United decision has on corporate spending and political discourse.
Of the 5,557 companies that received the climate change questionnaire (through either CDP’s request or their voluntary participation), 2,323 responded, and only 1,824 (33 percent) of them replied publicly.
Ninety-seven Global 500 companies—the top 500 companies in the world by revenue—including Apple, Amazon, and Facebook, did not participate.
In the Standard & Poor’s (S&P) 500—a market value index of large U.S. companies—166 companies, including Comcast and the Southern Company, did not participate.
The report highlights that proposed rules before the SEC for corporate political spending disclosures would address some transparency concerns and notes that the SEC has no plans to address this issue in 2014. This is no small issue considering the number of institutional investors and amount of invested capital ($87 trillion, with a "T"!!) behind this initiatve. CDP sends its survey to corporations on behalf of the signatory institutional investors who are shareholders.
These shareholder requests for information encourage companies to account for and be transparent about environmental risk. Transparency of this data throughout the global market place ensures the financial community has access to the best available corporate climate change information to help drive investment flows towards a low carbon and more sustainable economy
Ninety-five companies noted that at least one of their trade groups had a climate policy position that was partially or wholly inconsistent with their own, for a total of 172 such responses across all trade groups.
The 2013 questionnaire, while focused on climate change issues, is relevant to broader questions of corporate political influence and spending, the SEC’s agenda for 2014, and the role of corporate disclosures. If you are teaching corporations/BA this semester, this 12 page report raises several issues that, in my opinion, would elicit a great classroom discussion when you get to the role and purpose of corporations, sections on the disclosure regime of our securities markets, and even on shareholder rights to information.
Wednesday, January 15, 2014
Francis G.X. Pileggi and Kevin F. Brady at Delaware Corporate & Commercial Litigation Blog closely track Chancery and Supreme Court cases out of Delaware. Their annual Delaware round up, is always a top-notch, quick and dirty summary of the year. If you haven't kept up with the major cases, or want a quick reference when thinking about what developments to include in your classes this spring or next fall--then this list is for you.
Here are 2 additional cases that I have found noteworthy for some combination of scholarship, teaching and practice reasons:
1. Chevron forum selection clause enforceability
Chancellor Strine’s opinion in Boilermakers Local 154 Retirement Fund v. Chevron Corp.,et al, upheld the enforceability of a Delaware forum selection clause unilaterally adopted by corporate boards of directors of Defendants. Plaintiffs dismissed their appeal, and moved to dismiss their remaining claims in Chancery Court leaving intact Chancellor Strine strong support of forum selection clauses. Chevron was preceded Chevron was preceded by National Industries Group (Holding) v. Carlyle Investment Managements LLC and TC Group LLC, a 2013 Delaware Supreme Court opinion, which addressed the contractual enforceability of forum selection clauses.
2. Huatacu Upholding waiver of dissolution rights when not “reasonably practicable” to carry on the business of the LCC.
VC Glasscock reaffirmed Delaware’s commitment to contractual freedom in LLCs by upholding an express waiver of statutory dissolution rights for LLC members. The case enforced an LLC operating agreement that “rejected all default provisions, and expressly limited members’ rights to those provided in the LLC Agreement.” The Chancery Court found that dissolution rights, were waivable by LLC members, but that the members remained subject to the non-waivable duty of good faith and fair dealing. The Chancery Court also left open the possibility that members of an LLC may not divest the Court of all of its equitable authority to order dissolution, but where the parties presented no unusual facts giving rise to such equities, the waiver is enforceable.
Friday, January 10, 2014
Alicia Plerhoples is leading an innovative Social Enterprise and Nonprofit Clinic at Georgetown University Law Center. She presented her "Representing Social Enterprise" article at AALS in 2013, and her article was recently published by the Clinical Law Review. I recommend the article to all those interested in social enterprise and/or clinical education. The article will be helpful to the academic, practitioner, and clinician (perhaps because Professor Plerhoples has experience in all three roles). “Representing Social Enterprise” includes a deep discussion of the models of social enterprise, thoughtful analysis of the corporate governance issues that are likely to arise when representing social enterprises, and interesting insights into Georgetown’s clinic.
The abstract is reproduced below and the entire article can be found on SSRN here:
"This article explores the representation of social enterprises — i.e., nonprofit and for-profit organizations whose managers strategically and purposefully work to create social, environmental, and economic value or achieve a social good through business techniques — in the Social Enterprise & Nonprofit Law Clinic at Georgetown University Law Center. The choice to represent social enterprise clients facilitates a curriculum that explicitly focuses on the business models, governance tools, and legal mechanisms that these organizations use to accomplish sustainability and charitable objectives. By serving social enterprise clients, clinic students learn to solve novel and unstructured problems and engage in information sharing and knowledge creation essential to legal advocacy. Legal issues unique to social enterprises compel clinic students to question corporate law and its underlying normative values and employ transactional lawyering for public interest purposes."
Cross-posted at SocEntLaw.
Tuesday, January 7, 2014
Tonight, I will teach my first negotiation class, to a group of Belmont University MBA students. Over the past months, I have read a number of books on negotiation and reflected upon the negotiation I did in practice and am still doing in my professional life and personal life. The more I read and think about the subject, the more I am convinced that law students and lawyers (in addition to business students and business people) need more training in negotiation.
In litigation, I have heard that well over 90% of cases settle before trial, requiring negotiation, and in the transactional context, negotiation is ever-present.
The late-Roger Fisher of Harvard Law School (and co-author of the perennial best seller Getting to Yes) has a short video clip about negotiation v. litigation posted below. My legal training did a good job sharpening my critical thinking, improving my attention to detail, and preparing me to "win" arguments. However, I cannot remember much time devoted to joint-problem solving, uncovering underlying interests, and dealing with people problems. While much of what is written in Getting to Yes and its progeny is common sense, it is easy to stray from its guidelines without considerable practice.
I am excited about teaching this "Decision Making and Negotiation Skill" MBA class and may add additional blog posts as the semester progresses. Each class includes mock negotiations from Harvard Law School's Program on Negotiation and/or The Dispute Resolution Research Center at the Kellogg School of Managment at Northwestern University.
Perhaps some of the business law professors reading this blog would like to incorporate some of the negotiation/dispute resolution literature into their classes. I know a number of professors who include one or more mock negotiations in their classes, but wonder how many also talk about the theory and research on the subject to inform the classroom interaction. For those interested in doing further reading in the area, I enjoyed Negotiation And Settlement Advocacy: A Book Of Readings, which does a nice job of compiling and editing a range of articles. Also, Professor Leigh Thompson (Northwestern) has an excellent book entitled The Mind and Heart of the Negotiator, which we use in our course.
Saturday, January 4, 2014
I am writing this while on a break at the AALS Annual Meeting, having just attended the panel discussion organized by the AALS Section on Agency, Partnership, LLCs, and Unincorporated Associations: Effective Methods for Teaching LLCs and Unincorporated Business Arrangements. The presentations were excellent, including one by BLPB co-blogger Anne Tucker. Here are a couple of items I took from Robert Rhee’s presentation that I thought might be of interest to our readers:
1. Robert J. Rhee, Case Study of the Bank of America and Merrill Lynch Merger
This is a case study of the Bank of America and Merrill Lynch merger. It is based on the article, Fiduciary Exemption for Public Necessity: Shareholder Profit, Public Good, and the Hobson’s Choice during a National Crisis, 17 Geo. Mason L. Rev. 661 (2010). The case study analyzes the controversial events occurring between the merger signing and closing. It reviews in depth the circumstances under the federal government threatened to fire the board and management of Bank of America unless it consummated the Merrill Lynch acquisition. Among other issues, this case study raises the questions: (1) what is the role of a private firm during a public crisis? (2) what are the responsibilities of the board? (3) what is the role of government and how should it treat private firms? This case study can be used in corporate ethics classes in business schools, or business associations classes in law schools.
2. Todd D. Rakoff, Martha Minow, A Case for Another Case Method, 60 Vand. L. Rev. 597, 602-03 (2007).
[W]hen we think of what students most need that they do not now get, we think: “legal imagination.” What they most crucially lack, in other words, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.As a pedagogical matter, it seems to us that the place to start in creating these additional skills is the time frame by which materials are assigned. Appellate cases present the world as already structured in almost all dimensions, so that the few open issues can be decided crisply. Insofar as professors try to alter those frames, they must retrace steps that have already been taken. We need to start instead with a much more open-ended presentation of the world, and walk onward. We need (if the language of the VCR is not already hopelessly out-of-date) to shift from “rewind” to “play.” (Indeed, since we want to start with raw data, we might even say we are advocating using a “facts-forward” mode.)
Saturday, December 14, 2013
All the information you need is on the registration page. Here are some relevant excerpts:
The Society of Socio-Economists (SOS) is a society of law teachers, teachers of economics and other disciplines, and other professionals and interested people who approach economic issues in harmony with the principles articulated in the statement of principles entitled "What Is Socio-Economics." [Please see excerpt below.] SOS holds an annual meeting in conjunction with the Annual Meeting of the Association of American Law Schools (AALS) in coordination with the AALS Section on Socio-Economics….
Statement of Socio-Economics Principles
Socio-economics begins with the assumption that economic behavior and phenomena are not wholly governed or described by any one analytical discipline, but are embedded in society, polity, culture, and nature. Drawing upon economics, sociology, political science, psychology, anthropology, biology and other social and natural sciences, philosophy, history, law, management, and other disciplines, socio-economics regards competitive behavior as a subset of human behavior within a societal and natural context that both enables and constrains competition and cooperation. Rather than assume that the individual pursuit of self-interest automatically or generally tends toward an optimal allocation of resources, socio-economics assumes that societal sources of order are necessary for people and markets to function efficiently. Rather than assume that people act only rationally, or that they pursue only self-interest, socio-economics seeks to advance a more encompassing interdisciplinary understanding of economic behavior open to the assumption that individual choices are shaped not only by notions of rationality but also by emotions, social bonds, beliefs, expectations, and a sense of morality.
Socio-economics is both a positive and a normative science. It is dedicated to the empirical, reality testing approach to knowledge. It respects both inductive and deductive reasoning. But it also openly recognizes the policy relevance of teaching and research and seeks to be self-aware of its normative implications rather than maintaining the mantle of an exclusively positive science. Although it sees questions of value inextricably connected with individual and group economic choices, socio-economics does not entail a commitment to any one paradigm or ideological position, but is open to a range of thinking that treats economic behavior as involving the whole person and all facets of society within a continually evolving natural context.
Unique among interdisciplinary approaches, however, socio-economics recognizes the pervasive and powerful influence of the neoclassical paradigm on contemporary thought. Recognizing that people first adopt paradigms of thought and then perform their inductive, deductive, and empirical analyses, socio-economists seek to examine the assumptions of the neoclassical paradigm, develop a rigorous understanding of its limitations, improve upon its application, and develop alternative, perhaps complementary, approaches that are predictive, exemplary, and morally sound.
Thursday, December 12, 2013
Last week I attended the UN Forum on Business and Human Rights in Geneva. The Forum was designed to discuss barriers and best practices related to the promotion and implementation of the non-binding UN Guiding Principles on Business and Human Rights, which discuss the state’s duty to protect human rights, the corporation’s duty to respect human rights, and the joint duty to provide access to judicial and non-judicial remedies for human rights abuses. This is the second year that nation states, NGOs, businesses, civil society organizations, academics and others have met to discuss multi-stakeholder initiatives, how businesses can better assess their human rights impact, and how to conduct due diligence in the supply chain.
Released in 2011 after unanimous endorsement by the UN Human Rights Council, the Guiding Principles are considered the first globally-accepted set of standards on the relationship between states and business as it relates to human rights. The US State Department and the Department of Labor have designed policies around the Principles, and a number of companies have adopted them in whole or in part, because they provide a relatively detailed framework as to expectations. Some companies faced shareholder proposals seeking the adoption of the Principles in 2013, and more will likely hear about the Principles in 2014 from socially responsible investors. Several international law firms discussed the advice that they are now providing to multinationals about adopting the Principles without providing a new basis for liability for private litigants.
Although the organizers did not have the level of business representation as they would have liked of one-third of the attendees, it was still a worthwhile event with Rio Tinto, Unilever, Microsoft, Google, Nestle, Barrick Gold, UBS, Petrobras, Total, SA, and other multinationals serving as panelists. Members of the European Union Parliament, the European Union Commission and other state delegates also held leadership roles in shaping the discussion on panels and from the audience.
Some of the more interesting panels concerned protecting human rights in the digital domain; case studies on responsible investment in Myanmar (by the State Department), the palm oil industry in Indonesia and indigenous peoples in the Americas; the dangers faced by human and environmental rights defenders (including torture and murder); how to conduct business in conflict zones; public procurement and human rights; developments in transnational litigation (one lawyer claimed that 6,000 of his plaintiffs have had their cases dismissed since the Supreme Court Kiobel decision about the Alien Tort Statute); mobilizing lawyers to advance business and human rights; the various comply or explain regimes and how countries are mandating or recommending integrated reporting on environmental, social and governance factors; tax avoidance and human rights; human rights in international investment policies and contracts; and corporate governance and the Guiding Principles.
As a former businessperson, many of the implementation challenges outlined by the corporate representatives resonated with me. As an academic, the conference reaffirmed how little law students know about these issues. Our graduates may need to advise clients about risk management, international labor issues, corporate social responsibility, supply chain concerns, investor relations, and new disclosure regimes. Dodd-Frank conflict minerals and the upcoming European counterpart were frequently mentioned and there are executive orders and state laws dealing with human rights as well.
Traditional human rights courses do not typically address most of these issues in depth and business law courses don’t either. Only a few law firms have practice areas specifically devoted to this area- typically in the corporate social responsibility group- but many transactional lawyers and litigators are rapidly getting up to speed out of necessity. Small and medium-sized enterprises must also consider these issues, and we need to remember that “human rights” is not just an international issue. As business law professors, we may want to consider how we can prepare our students for this new frontier so that they can be both more marketable and more capable of advising their clients in this burgeoning area of the law. For those who want to read about human rights and business on a more frequent basis, I recommend Professor Jena Martin’s blog.
December 12, 2013 in Business Associations, Corporate Governance, Corporations, Current Affairs, Ethics, Financial Markets, Marcia L. Narine, Securities Regulation, Teaching | Permalink | Comments (1)
Wednesday, December 11, 2013
With winter break nearly upon us this means grading, writing projects, and possibly some conference travel with the upcoming AALS annual meeting. I plan on putting together my AALS talk (on incorporating experiential exercises in teaching LLCs) next week, and have drawn inspiration from the following image:
The Business Law programs are on Saturday, January 4th and are listed below. If you would like to highlight other programs, please respond in the comments, and I will add to the list.
- 10:30 am - 12:15 pm Agency, Partnership, LLCs, and Unincorporated Associations
Effective Methods for Teaching LLCs and Unincorporated Business Arrangements
- The program will explore: The ... topic of effectively teaching LLCs.
- 2:00 pm - 3:45 pm Business Associations
The Value Proposition for Business Associations in Tomorrow’s Legal Education
- The panel will be exploring: How does business associations teaching and scholarship contribute to the U.S. program of legal education? How could or should it contribute? What role does the basic law school course on business associations play in an optimized law school curriculum? What course content, pedagogy, and teaching tools best support that role? How does business associations scholarship inform and support that role?
- 4:00 pm - 5:45 pm Transactional Law and Skills
Value Creation By Business Lawyers in the 21st Century
- On the thirtieth anniversary of the influential article by Professor Ronald Gilson’s “Value Creation by Business Lawyers” this program will re-examine Professor Gilson’s thesis, evaluate the impact of the article, and discuss the prospects for business lawyers creating value in the 21st Century. The panel will feature Professor Gilson, invited participants, and scholarly works selected from a call for papers.
This is my first year attending the AALS conference, and am going whole hog with plans to also attend the mid-year meeting in June, which will be a workshop on Blurring Boundaries in Financial and Corporate Law. The call for papers (expired) includes a program description and is available here: http://www.aals.org/mm2014/AALS_2014_MM_RFP.pdf
Tuesday, December 3, 2013
Here in West Virginia, it's exam time for our law students. For my Business Organizations students, tomorrow is the day. For students getting ready to take exams, and for any lawyers out there who might need a refresher, the Kentucky Supreme Court provides a good reminder that LLCs are separate from their owners, even if there is only one owner.
Here's a basic rundown of the case, Turner v. Andrew, 2011-SC-000614-DG, 2013 WL 6134372 (Ky. Nov. 21, 2013) (available here): In 2007, an employee of M&W Milling was driving a feed-truck owned by his employer. A movable auger mounted on the feed-truck swung into oncoming traffic and struck and seriously damaged a dump truck owned by Billy Andrew, the sole member of Billy Andrew, Jr. Trucking, LLC, which owned the damaged truck. Andrew filed suit against the employee and M & W Milling claiming personal property damage to the truck and the loss of income derived from the use of damaged truck. Notably, the LLC was not a named plaintiff in the lawsuit.
Hey issue spotters: check out the last line of the prior paragraph. (Also: a bit of an odd twist is the Andrew chose not to respond to discovery requests, though that was not critical to the issue of whether the LLC had to be named for Andrew to recover.)
A limited liability company is a “hybrid business entity having attributes of both a corporation and a partnership.” Patmon v. Hobbs, 280 S.W.3d 589, 593 (Ky.App.2009). As this Court stated in Spurlock v. Begley, 308 S.W.3d 657, 659 (Ky.2010), “limited liability companies are creatures of statute” controlled by Kentucky Revised Statutes (KRS) Chapter 275. KRS 275.010(2) states unequivocally that “a limited liability company is a legal entity distinct from its members.” Moreover, KRS 275.155, entitled “Proper parties to proceedings,” states:
A member of a limited liability company shall not be a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company, except if the object of the proceeding is to enforce a member's right against or liability to the limited liability company or as otherwise provided in an operating agreement.
Not surprisingly, courts across the country addressing limited liability statutes similar to our own have uniformly recognized the separateness of a limited liability company from its members even where there is only one member.
Thursday, November 14, 2013
Last week, I attended and presented at my first legal studies in business school conference, the Southeastern Academy of Legal Studies in Business ("SEALSB") annual conference. On this recent trip, I was able to meet a number of other professors who hold positions similar to mine at other business schools. Most of the professors were from the southeast, but we also had professors from California, Michigan, Minnesota, and New York.
One of the new pieces of information I learned was that, while I was correct in my previous post stating that there is no “meat market” equivalent for legal studies in business school positions, the Academy of Legal Studies in Business (“ALSB”) does send out job postings, on occasion, to its members. Also, more than one professor in attendance claimed to have obtained his/her current position by attending the ALSB annual meeting and networking.
In this post, I will discuss some of the differences I see between my current job as a professor teaching law in a business school and my previous job as a law professor in a law school. I draw on my own experiences and conversations I have had with many professors across the country, at both types of schools. That said, this is just anecdotal evidence, and I imagine experiences differ.
- Business school deans and colleagues usually require education on legal scholarship and law journals. Business schools are used to traditional peer reviewed journals (generally double blind) that are listed on Cabell’s. That said, most business schools I know of, are accepting (at least some) law reviews as acceptable placements from their tenure track legal studies professors
- Business schools also tend to encourage, or at least not penalize, co-authored work, whereas it seems many law schools apply a significant discount to co-authored articles.
- Legal studies professors in business schools may have to struggle to obtain WestLaw access and legal research support. Everyone I talked to at SEALSB had obtained access, though it seemed to require a bit more effort than at a law school.
- In law schools, very roughly speaking, the average teaching load seems to be 2/1 at research schools and 2/2 at the teaching schools. In business schools, the normal teaching load seems to be either 2/1 or 2/2 at the research schools (with 2/2 appearing to be the norm), and 3/3 (or in some limited cases 3/4 or 4/4) at teaching business schools. Teaching loads seem to be a bit lighter at law schools, though this may be changing at some law schools given the financial challenges many are facing.
- Business school professors tend to give many more assessments than law school professors. In law schools the norm still seems to be one major assessment per semester, though plenty of professors do more. Most of the legal studies professors in business schools claimed to give at least three major assessments a semester, and sometimes as many as six or seven.
- The business school professors I spoke to tended to have smaller classes (20-50), at least smaller than the large section law classes (70-150). That said, some of the professors from large state universities reported undergraduate classes as large (or sometimes much larger) than the average large section law school class.
- Many legal studies professors I have met teach both undergraduate and graduate business law courses, though some only teach undergraduate. Obviously, law professors only teach graduate students. That said, the average MBA student likely has more work experience than the average law student.
- As far as I can tell, service requirements seem similar at law and business schools.
- Compensation of law professors and legal studies in business school professors seems relatively close, at least if the business school has an MBA program, in addition to its undergraduate program. The compensation seems a bit less uniform across business schools than across law schools, with a few business professors who would be outliers, on the low end, of current law school compensation.
These are all obviously generalizations, and I am sure there are many exceptions, but I thought the rough sketch of the differences might be useful for those who are trying to choose between teaching law at a business school or at a law school.
Wednesday, November 6, 2013
Yesterday was election day! Elections hold a special place in my heart, and I remain interested in the interplay of corporations and campaigns, especially in a post-Citizens United world. The races, candidates, and results, however, received significantly less attention without a federal election (mid-term or general) to garner the spotlight. The 2014 election season, which officially begins today, has several unknowns. While Citizens United facilitated unlimited independent expenditures (distinguishable from direct campaign contributions) for individuals and corporations alike, corporations remain unable to donate directly to campaigns. Individual campaign contributions are currently capped at $2,500 per candidate/election and are subject to aggregate caps as well. McCutcheon v. FEC, which was argued before the US Supreme Court on October 8, 2013, challenges the individual campaign contribution cap. If McCutcheon removes individual caps, the foundation will be laid to challenge corporate campaign contribution bans as well. See this pre-mortem on McCutcheon by Columbia University law professor Richard Briffault. As for current corporate/campaign finance issues, the focus remains on corporate disclosures of campaign expenditures in the form of shareholder resolutions (118 have been successful) and company-initiated disclosure policies, possible SEC disclosure requirements for corporate political expenditures, and the threat of legislation augmenting corporate disclosure requirements for political expenditures (see, for example the latest bill introduced: the Corporate Politics Transparency Act (H.R. 2214)).
As an aside, brief treatment of the questions regarding the rights of corporations to participate in elections, and the role of corporations in our democracy elicit some of the best (and most heated) student discussions in my Corporations class. If you have the stomach for it, I highly recommend that you try it!