Wednesday, July 29, 2015

Comparative Corporate Law - Important New Teaching Text

My friend and corporate law colleague Marco Ventoruzzo (Penn State Law and Bocconi University) recently let me know that he and several others--Pierre-Henri Conac, Gen Goto, Sebastian Mock, Mario Notari, and Arad Reisberg--have published a coauthored teaching text entitled (and focused on) Comparative Corporate Law.  As someone who has taught that subject (as well as comparative and cross-border mergers and acquisitions) in the past, I have been very interested in taking a look at the book--the first of its kind, as far as I know.  Luckily, I was able to grab a review copy from the publisher, West Academic Publishing (American Casebook Series), at the Southeastern Association of Law Schools (SEALS) conference, which I am attending this week.  This post shares a bit about the book (based on a relatively quick examination--peeking more closely into some chapters than others) and my ideas for teaching from it.  

I recommend the book and would use it in a course I would teach on the subject matter.  The content is really wonderful.  Nearly everything I need as a foundation for a course in comparative or cross-border corporate law is included.  However, I have a few general criticisms, primarily based on my personal teaching perspective, that I will note in this post.

Continue reading

July 29, 2015 in Books, Business Associations, Corporations, Joan Heminway, Teaching | Permalink | Comments (0)

Friday, July 24, 2015

Summer Reading: Excellent Sheep

For a university discussion group this summer, I read William Deresiewicz's book Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life (2014).

Deresiewicz, a former Yale English professor, caused quite a stir in higher education circles with his Don't Send Your Kid to the Ivy League article in the New Republic (and other articles in various outlets), which promoted Excellent Sheep pre-publication.

Deresiewicz's attack on the ivy league can be summarized as follows:

  • Encourages a system that leads to resume-padding instead of authentic learning and service
  • Too much focus on future financial success and not enough focus on life's big questions
  • Not enough socioeconomic diversity
  • Faculty preoccupied with research and do not spend enough time on teaching/service
  • Risk-taking is not encouraged; error for margin for students is too small
  • Coursework not rigorous enough
  • Students are kept doing busy-work rather than allowed to explore
  • Encourages a system that can lead to depression, isolation, etc. 

Deresiewicz taught at Yale for 10 years and was supposedly denied tenure in 2008. When I found out that Deresiewicz's was denied tenure, I was tempted to write off his book as sour grapes, but I think it best to evaluate his claims on their own merit.

In my view, Deresiewicz doesn't bring much new to the conversation, and a number of his challenges to the ivy league could be brought against many colleges and universities. His proposed solution is for students to consider attending a small liberal arts college (where teaching is still a priority) or a state school (where there is much more true diversity). Deresiewicz, however, seems to underestimate the value of connections, brand, resources, and opportunities at ivy league schools. 

Deresiewicz also laments the dwindling interest in the liberal arts and the increasing focus on majors that are more directly profession-focused (like economics and finance). While Deresiewicz seems to realize the risk in turning down an ivy league education and also choosing a major like History or English, he does not seem to fully realize how some students simply cannot afford those risks. While return on investment should certainly not be the only focus in choosing a school and a major, it is rightfully important to many.

Personally, I don't think the entire 242-page book was worth the read. There simply was not much new, aside from a few glimpses behind the curtain at Yale. If I had it to do over again, I probably would have just stuck with Deresiewicz's article and the responses (e.g., here and here).

July 24, 2015 in Books, Business School, Haskell Murray, Law School, Teaching | Permalink | Comments (3)

Thursday, July 23, 2015

Faculty Openings at Texas A & M

TEXAS A&M UNIVERSITY SCHOOL OF LAW seeks to expand its academic program and its strong commitment to scholarship by hiring multiple exceptional faculty candidates for tenure-track or tenured positions, with rank dependent on qualifications and experience.  Candidates must have a J.D. degree or its equivalent.  Preference will be given to those with demonstrated outstanding scholarly achievement and strong classroom teaching skills.  Successful candidates will be expected to teach and engage in research and service.  While the law school welcomes applications in all subject areas, it particularly invites applications from:

1)    Candidates who are interested in building synergies with Texas A&M University’s Mays Business School, with an emphasis on scholars engaged in international business law who focus on cross-border transactions, trade, and economic law (finance, investments, dispute resolution, etc.);

2)    Candidates who are interested in building synergies with the broad mission of Texas A&M University’s College of Agricultural and Life Sciences, which include but are not limited to scholars engaged in agricultural law (including regulatory issues surrounding agriculture), rural law, community development law, food law, ecosystem sciences, and forensic evidence; and

3)    Visionary leaders in experiential education interested in guiding our existing Intellectual Property and Technology Law Clinic (with concentrations in both trademarks and patents), Entrepreneurship Law Clinic, Family Law and Benefits Clinic, Employment Mediation Clinic, Wills & Estates Clinic, Innocence Clinic, Externship Program, Equal Justice/Pro Bono Program, and Advocacy Program, with a particular emphasis on candidates who may have an interest in participating in our Intellectual Property and Technology Law Clinic or developing an Immigration Law Clinic.

Texas A&M University is a tier one research institution and American Association of Universities member.  The university consists of 16 colleges and schools that collectively rank among the top 20 higher education institutions nationwide in terms of research and development expenditures.  As part of its commitment to continue building on its tradition of excellence in scholarship, teaching, and public service, Texas A&M acquired the law school from Texas Wesleyan University in August of 2013.  Since that time, the law school has embarked on a program of investment that increased its entering class credentials and financial aid budgets, while shrinking the class size; hired eleven new faculty members, including nine prominent lateral hires; improved its physical facility; and substantially increased its career services, admissions, and student services staff. 

Texas A&M School of Law is located in the heart of downtown Fort Worth, one of the largest and fastest growing cities in the country.  The Fort Worth/Dallas area, with a total population in excess of six million people, offers a low cost of living, a strong economy, and access to world-class museums, restaurants, entertainment, and outdoor activities.

As an Equal Opportunity Employer, Texas A&M welcomes applications from a broad spectrum of qualified individuals who will enhance the rich diversity of the university’s academic community. Applicants should email a résumé and cover letter indicating research and teaching interests to Professor Timothy Mulvaney, Chair of the Faculty Appointments Committee, at appointments@law.tamu.edu.  Alternatively, résumés can be mailed to Professor Mulvaney at Texas A&M University School of Law, 1515 Commerce Street, Fort Worth, Texas 76102-6509.

July 23, 2015 in Jobs, Law School, Marcia Narine, Teaching | Permalink | Comments (0)

Wednesday, July 22, 2015

The Powers and Perils of Using Group Oral Midterm Examinations in Business Associations

For a number of years now, I have been using group (3-person teams) oral midterm examinations in my Business Associations course.  I have found these examinations to be an effective and rewarding assessment tool based on my teaching and learning objectives for this course.  At the invitation of the Saint Louis University Law Journal, as part of a featured edition of the journal on teaching business associations law, I prepared a short article giving folks the "why, how, and what" of my experience in taking this approach to midterm assessment.  The article was recently published, and I have posted it to SSRN.  The abstract reads as follows:

I focus in this Article on a particular way to assess student learning in a Business Associations course. Those of us involved in legal education for the past few years know that “assessment” has been a buzzword . . . or a bugaboo . . . or both. The American Bar Association (ABA) has focused law schools on assessment (institutional and pedagogical), and that focus is not, in my view, misplaced. Until relatively recently, much of student assessment in law school doctrinal courses was rote behavior, seemingly driven by heuristics and resulting in something constituting (or at least resembling) information cascades or other herding behaviors.

In the fall of 2011, I began offering an oral midterm examination to students in my Business Associations course as an additional assessment tool. This Article explains why I started (and have continued) down that path, how I designed that examination, and what I have learned by using this assessment method for three years. Although some (probably most) will not want to do in their Business Associations courses exactly what I have done in mine (as to the midterm examination or any other aspects of the course described in this Article), I am providing this information to give readers ideas for, or courage to make positive changes in, their own teaching (for a course on business associations or anything else).

You may think I am crazy (even--or especially--after reading this article).  Regardless, I do hope the article sparks something positive in you regarding your teaching in Business Associations or some other course.  Since I am working on finishing a long-overdue book on teaching business associations for Aspen this summer, I would welcome your honest reactions to the article and your additional thoughts on assessment or other aspects of teaching Business Associations.

July 22, 2015 in Business Associations, Corporate Governance, Corporations, Joan Heminway, LLCs, Teaching | Permalink | Comments (0)

Friday, July 10, 2015

Business Associations in Real Life

I’ve always been eager to do pro bono work. I went to law school with the intent of helping the indigent upon graduation, but then with a six-figure debt load, I went to BigLaw in New York and Miami, and then corporate America so that I could pay that debt off. But even as an associate and as in house counsel, I dutifully accepted pro bono cases. As a relatively new academic, I paid my way out of pro bono for the first couple of years as Florida allows and assuaged my guilt with the knowledge that my payments were going to fund the local legal aid office.

This year, as a condition of attending a family law CLE for free, I volunteered to take a case. I’ve devoted over 70 hours to it thus far, and we still aren’t finished even after today’s marathon 6.5 hour hearing dealing with a motion for contempt and enforcement, modification of alimony and child support, a QDRO (qualified domestic relations order), and a house in foreclosure. The case was complicated even according to my seasoned family law practitioner friends.

As a former litigator and current BA professor, I found that my skills helped to make up for my lack of family law expertise. The techniques for cross examining witnesses, preparing for hearing, and introducing exhibits came flooding back. From a BA perspective, knowing to ask questions about the structure of the petitioner’s LLC, inquiring about charging orders, and dissecting the financial statements and corporate tax returns put me in a much better position to protect my client’s interests. I always tell my students on the first day of BA that they never know where they will end up as practitioners, and that in today’s market many of them will be in small firms taking on a number of kind of clients. I try to make them understand how BA can help them in practice areas that don’t seem directly related to business. Now, thanks to this pro bono case I can back that up with proof from my own experience. 

July 10, 2015 in Business Associations, Family Business, Law School, Litigation, LLCs, Marcia Narine, Teaching | Permalink | Comments (1)

Thursday, June 25, 2015

The Future of Respectability for Lawyers (Part 5)

In my final post on the subject of “respectability” of lawyers (the first four can be found here, here, here and here), I’d like to tie my thoughts together, discussing what the various parties can do to make Bird and Orozco’s thesis of assimilation of lawyers into corporate business teams the “new normal”.  This should give lawyers more career opportunities in the future, slow the loss of influence of the legal profession in businesses, and make legal education a more attractive choice.  Much of the discussion in academia has ignored the in-house counsel approach as being a viable option for the woes of the legal industry.  Below the fold, this post will discuss the roles that academia, in-house counsel, and business firms each may play in increasing the potential for success of a new model for business lawyers.

Continue reading

June 25, 2015 in Business School, Compensation, Corporate Governance, Corporate Personality, Corporations, Jobs, Law School, Teaching | Permalink | Comments (0)

Tuesday, June 9, 2015

Exam Monitoring in the Digital Age

Exam time has come and gone and grades are filed. I have never had any trouble, as far as a I know, with cheating in my exams.  My expectation is that most problems arise from plagiarism in writing assignments.   There may be people trying to cheat on my exams, I suppose, but I am not sure it would prove helpful.   I change my exams and take steps to try to make the exam as fair possible, so that cheaters, should there be any, can't get much of an advantage.  

I was interested to see the report that China took proctoring to new heights this week, according to a news report in The Guardian, China deploys drones to stamp out cheating in college entrance exams:

Authorities in China are employing surveillance drones in an effort to stamp out cheating in college entrance exams.

But this year officials have unleashed a six-propeller drone, flown over two testing centres in Luoyang in Henan province on Sunday – the first day of the exam – to scan for signals being sent to devices which may have been smuggled in. No such signals were detected, local reports said.

I suppose it makes sense to add enforcement mechanisms, especially with the stake so high for the exams.  Drones sure make my walking of the aisles seems a little outdated. 

Apparently some employers are taking steps to combat cheating, too.  Potknox, a cloud-based online assessment tool, is used by some employers to screen applicants. According to the Potknox Blog, here, there are ways to combat cheaters. Among other things, the program can take random pictures of the test-taker (which can catch them on the phone) and random screenshots (checking Wikipedia).  

Law schools that use exam software can lock out the internet, which can help limit such things, though I wonder just how much smartphones have changed the game.  I have never caught anyone looking at a phone during an exam, but these days, one could get a basic definition of the business judgment rule or the Howey Test pretty quickly, I suppose. I'd be shocked if anyone could cheat their way to a high grade on my exams, but one who is struggling might find it useful to get by.

I'll have to give some thought about other ways to catch cheating. I have almost no interest in catching cheaters, because that's awful for everyone.  However, I have zero interest in sending people out into the legal profession who would do such a thing, so I'll keep looking. 

June 9, 2015 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (2)

Tuesday, June 2, 2015

The Academic Importance of Non-Academic Skills

NPR recently posted a story titled, Nonacademic Skills Are Key To Success. But What Should We Call Them? The story, by Anya Kamenetz, is about labeling non-cognitive skills (or skill areas) that are important -- I would argue essential -- to success.  The listed areas are as follows: (1) character, (2) non-cognitive traits and habits, (3) social and emotional skills, (4) growth mindset, (5) 21st Century skills, (6) soft skills, and (7) grit.  

Ms. Kamenetz explains:

More and more people in education agree on the importance of learning stuff other than academics.

But no one agrees on what to call that "stuff".

There are least seven major overlapping terms in play. New ones are being coined all the time. This bagginess bugs me, as a member of the education media. It bugs researchers and policymakers too.

"Basically we're trying to explain student success educationally or in the labor market with skills not directly measured by standardized tests," says Martin West, at the Harvard Graduate School of Education. "The problem is, you go to meetings and everyone spends the first two hours complaining and arguing about semantics."

 

Whatever you call it, it matters.  

Beyond the semantics, it would be easy to debate the relative importance of these areas, and I am not sure I'd organize (or label) my own list in this way, but the concept behind the story is critically important to legal education.  As we in law schools strive to prepare practice-ready lawyers (at least, that's a primary focus of those with whom I have taught), I have often noticed that the skills students lack are often not information based.  Many times, it's that students have a hard time with deadlines, responsiveness, accountability, and thoroughness. 

Though it's less true today that it may have been ten, twenty, and thirty years ago, it's easy to get caught up in the idea that students might not have been taught how to draft a complaint, or file a motion, or create an LLC.  These are all things a lawyer should be able to do, of course, but I am finding that just showing students how to file a motion or form an LLC does not mean they are ready to actually do it.  That is, I am confident that some students I have taught how to form an LLC (and did well in my class) would not be ready to do that on their own. And I know some students who weren't in my class and have never seen an LLC statute who would be ready to figure it out. Why?  Life skills.  

Anyone who worked in a BigLaw job saw people who were clearly not cut out to do the job, even though the folks there come with a very serious pedigree. I sure saw people who couldn't (or wouldn't) do the work.  I worked with some truly brilliant and wonderful people, and I worked with some folks who had no idea (or at least no interest) in doing the work required.  For that matter, I also worked with some brilliant and wonderful partners, and just a couple smart partners who did good work but seemed committed to making people cry.  (That's for a different post). 

How, in addition to cognitive skills, do we teach deadlines, responsiveness, accountability, and thoroughness? I think it's through clinics and externship, as part of it, but it's also through committed efforts in courses throughout the curriculum.  We often teach first-year students about hard deadlines in their writing course, and we do it to some degree with rigid exam schedules, but that lacks the constant nature of deadlines (and moving parts) we see in practice. We can do it in other classes, with additional assignments, and I think it's worth trying. 

For my seminar courses, I have added small assignments and I don't remind people. They do it, or they don't. When students ask for an extension or change in their assignment date, I allow it if it fits my schedule and the class schedule. I'll decline or add a penalty if it causes others a problem. (They know this up front.)  It allows me to have conversations throughout the course about the importance of deadlines, and to talk more realistically about how things work in the real world.  I know I'm not solving everything, but I do think talking about these things candidly forces students to engage with these life skills in a way that might not otherwise.  

It's easy to think a lot of the life skills are things you have or you don't, but that's not true.  They just come to some people more easily. Others can be taught, if they want to be. For those who want to learn, I think it's our job to teach them.  And for those who don't want or care to learn these skills, if we offer the education, it's one less thing they can blame when they're shown the door or otherwise don't get what they want.  

[Author's note:  My colleague Steve Bradford's post "Practice-Ready" Law Graduates? is a worthwhile companion to this post.]

June 2, 2015 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (3)

Wednesday, May 13, 2015

2016 Emory Transactional Law and Skills Teaching Conference - Save the Date

Emory’s Center for Transactional Law and Practice cordially invites you to attend its fifth biennial conference on the teaching of transactional law and skills. The conference, entitled “Method in the Madness: The Art and Science of Teaching Transactional Law and Skills,” will be held at Emory Law, beginning at 1:00 p.m. on Friday, June 10, 2016, and ending at 3:45 p.m. on Saturday, June 11, 2016.

The registration fee for the conference is $189 and includes:

 Pre-conference lunch and snacks
 A pre-dinner reception on June 10
 Breakfast, lunch and snacks on June 11

We are planning an optional dinner for attendees on Friday evening, June 10, at an additional cost. Attendees are responsible for their own hotel accommodations and travel arrangements. Additional information on the optional dinner and accommodations to come.

A request for proposals will be distributed in the fall.

We look forward to seeing you in June of 2016!

Sue Payne
Executive Director and Professor in the Practice of Law
Center for Transactional Law and Practice
Emory University School of Law
sue.payne@emory.edu

May 13, 2015 in Conferences, Joan Heminway, Teaching | Permalink | Comments (0)

Tuesday, May 12, 2015

Sports Law Grading Break: A Little Perspective on Deflategate

I had planned to write a post about Delaware LLCs and who has standing to request judicial dissolution, but that post is going to wait.  I'm knee deep in Sports Law exam grading, and so sports is on my mind.  The big thing going on right now is, of course, Tom Brady's four-game suspension for his apparent participation in having footballs deflated to a psi that was not in compliance with league rules.  

The science on the benefits of deflating footballs is not clear, as noted here.  That, of course, is irrelevant to whether the rules were broken.  Some have argued that the air pressure rules are stupid, especially given that the league not long ago change the rules to allow each team to prepare their own footballs for use on offense. Andy Benoit of SI.com explains

With football being so much about strategy, the more comfortable the ball is for a quarterback and his receivers, the more entertaining the game becomes.

The NFL already agrees with this. Why do you think officials and ball boys go to such lengths to try to keep a football dry during a rainy game? Or, bringing it back to the inflate/deflate issue (or inflate/deflate controversy, since America has decided to be dramatic, if not hysterical, about this), why did the NFL permit quarterbacks to prepare their own balls before games in the first place?

The problem is, the league didn’t go far enough here. It should abolish all parameters regarding the ball’s air. Tom Brady didn’t cheat. Tom Brady’s job is to throw the football. Unfortunately, he had to go too far out of his way to do his job well.

I wouldn't think it would take a lawyer to explain that this reasoning is flawed, but perhaps it does. Even where a rule is stupid, counterproductive, or even obstructionist, it is still a rule. Failing to follow it leads to sanctions.  If a speed limit is too low, it can limit my ability to get to a meeting on time or make it so the FedEx driver can't deliver as many packages in a day.  But if either one of us gets clocked by a police officer's radar going 15 mph over the speed limit, we're going to get a ticket. And it's no defense to say, "But it's making it harder for me to do my job well!" 

Brady, through his agent, has vowed to appeal, as is his right.  Some people seem very concerned with Brady's image, and other have even suggested that the suspension could keep Brady from a future in politics.  Maybe, but given that we live in a country that has re-elected many people who have tarnished their own images while in office, I'm not going to be too concerned about this.  

The NFL, of course, has its own image issues, much of which is self-imposed.  The sanctions against Brady seem reasonable but severe, if acting in a vacuum.  But we don't, and it's hard to to look at other relative punishments for guidance.  The NFL has been aggressive with suspensions in other areas, such as Sean Payton's year-long suspension for BountyGate. Saints fans were certainly not happy with the outcome of the NFL's punishment.

On the other hand, as the Washington Post reported, A lot of people noticed that Tom Brady got twice as long a suspension as Ray Rice’s initial punishment.  The NFL could argue, of course, that Brady broke the league's rules, while Rice was subject to punishment from thecriminal justice system, too.  And they might, if they wanted to remain as tone deaf on domestic violence as they have been in the past.  

Why the NFL has this inflation rule, though, is a fair question. As Andy Benoit noted in the article linked above, why not just let each team provide footballs with whatever inflation they want?  If it is easier to catch a deflated ball, then it's also easier to intercept.  The league knows that offense sells tickets, so why not provide an advantage to all teams, if there is one to be had?  Seems like a win-win option, and it reduces the number of things NFL officials have to worry about enforcing. Less regulation of regulations that are hard to enforce and have dubious value to the integrity of game helps everyone involved, and it reduces people trying to game the system through largely irrelevant technical rule enforcement. (I'm looking at you, pine tar.)

Still, a rule is a rule, and if you get caught knowingly breaking a rule, there will (and should be) sanctions.  And let's be honest: The New England Patriots, with Bill Belichick and Tom Brady know what they are doing better than most.  They are arguably the most successful coach and quarterback combination in NFL history, and they are very, very good at what they do. They only do things they think will help them win, and if they do something risky, there's a good chance they're correct that there's an advantage to be had.  

Respect them for their skills, and hold them accountable for actions. And let's keep it all in perspective. It's still just football, and this time, no one got physically hurt.   

May 12, 2015 in Current Affairs, Games, Joshua P. Fershee, Sports, Teaching | Permalink | Comments (1)

Thursday, May 7, 2015

Is a national bar exam on the way?

I currently teach two classes that are on the bar exam—civil procedure and business associations. Many of my BA students are terrified of numbers and don’t know much about business and therefore likely would not take the course if it were not required. I know this because they admit that they take certain classes only because they are required or because they will be tested on the bar, and not because they genuinely have an interest in learning the subject. I went to Harvard for law school and although I had an outstanding education, I learned almost nothing that helped me for the NY, NJ, or FL bars (hopefully that has changed). I owe all of my bar passages to bar review courses so naturally (naively?), I think that almost any student can learn everything they need to know for the bar in a few short months assuming that they had some basic foundation in law school and have good study habits.

The pressure to ensure that my students pass the bar exam definitely informs the way I teach. Though there has only been one round of civil procedure testing on the multistate, this semester I found myself ensuring that I covered certain areas and glossed over others, even though I know having litigated for 20 years, that some subjects are more relevant in real life. Similarly, in BA, I had to make sure that I covered what will be on the Florida bar, while still ensuring that my students understand Delaware law and some basic finance and accounting, which isn't on the Florida bar, but which they need to know.

New York recently announced that it would join other states in adopting the uniform bar examination effective July 2016. The other states using the UBE include Alabama, Alaska, Arizona, Colorado, Idaho, Kansas, Minnesota, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Utah, Washington, and Wyoming. New York, as the largest adopter, hopes to inspire other states to do the same.

NY students would still have to take online courses and pass a 50-question test regarding specific NY laws, but the students would take the MBE, and MPT or multistate performance test. According to the National Conference of Bar Examiners, the two 90-minute MPT exercises are “designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. The MPT is not a test of substantive knowledge. Rather, it is designed to evaluate certain fundamental skills lawyers are expected to demonstrate regardless of the area of law in which the skills arise.” The NY graduates will also no longer have to write on 6 NY-based essays, but will instead write the multistate essay examination. Students will have to write on topics including: Business Associations (Agency and Partnership; Corporations and Limited Liability Companies), Civil Procedure, Conflict of Laws, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Family Law, Real Property, Torts, Trusts and Estates (Decedents' Estates; Trusts and Future Interests), and Uniform Commercial Code (Secured Transactions).

In adopting the change, New York officials explained, a “significant advantage of adopting the UBE is that passage of the test would produce a portable score that could be used by the bar applicant to gain admission in other UBE states, assuming the applicant satisfies any other jurisdiction-specific requirements. This portability is crucial in a legal marketplace that is increasingly mobile and requires more and more attorneys to engage in multi-jurisdictional practice.”

I think this is sound reasoning. Many of today’s graduates do not know where they will end up, and I personally know that the thought of taking yet another bar exam was a reason that I decided to stay in Florida when I was in private practice. But the better reason to move to the UBE is the testing of the practical skills that lawyers say recent graduates lack. It won’t solve the problem of the lack of legal work, but it will make it easier for students who want to try to find work in other states. I doubt that Florida, which wants to make it as difficult as possible for snowbirds to set up practice here, will ever adopt the UBE but it should. Many oppose the adoption because schools may not have the faculty or resources to prepare students for the new test. But I welcome the change. Despite the pressure to prep my students for the bar, I have ensured that my students work on drafting client memos, discovery plans, markups of poorly written documents, and even emails to partners and clients so that they can be ready for the world that awaits them. If Florida joins the UBE bandwagon, they will be ready for the MPT too.

 

May 7, 2015 in Business Associations, Corporations, Current Affairs, Jobs, Law School, Marcia Narine, Teaching | Permalink | Comments (0)

Tuesday, May 5, 2015

Do Book Rentals Negatively Impact Learning?

Over the last few years, book stores and publishers have been evolving in how they offer books. Some textbooks are available electronically, and others are available for rent.  Although I always try to be thoughtful about how students learn throughout the year, I find that I am especially sensitive to such thoughts when it's time to grade exams and papers.  I obviously can't speak for all my fellow law professors, but I know a lot of us agree that we really like our students, and we want (and expect) them to succeed.  

The cost of books matters.  This article reports that students often spend $1200 a year on books and supplies, and further revealed:  

Of the students surveyed, 65% said they decided against buying a textbook because of the high cost, and 94% of those students said they were concerned that their decision would hurt their grade in that course. Nearly half of the students surveyed said the cost of textbooks affected which courses they took.

This was not a law-specific survey, and I think (and hope) most law students do buy (or rent) their books. I absolutely support trying to make books more affordable, but it cannot come at the expense of content.  I have taught some of my courses with all free materials, but that does not work for me in all cases.  

This year, my thoughts on the learning process have turned, in part, to textbook rentals. Some (and perhaps many) students have moved on to book rentals instead of purchases.  I am sympathetic to how much books cost, and I can understand why students would look for savings where they can.  I am, how, concerned that rented books could have a negative impact on learning because of limits (or perceived limits) on how a renter can treat the books.  

Barnes & Noble, for example, has the following book rental policy: 

Rules of Renting
Textbook rentals allow us to reuse and recycle books. We hope that you return your rental textbook to us in a condition for someone else to reuse later. If the textbook is returned with excessive highlighting or writing, missing pages, and/or damaged spines or covers, you will be charged for the replacement of the book. 

This seems reasonable enough, but I worry that the concern about limiting highlighting and writing in the book could serve to limit student engagement with the content.  There is other language that suggests that it's not just "excessive highlighting or writing" that could be a concern. Also from the B&N website:

Treat with Care 
Over the course of your studies be aware that other students will be renting the textbook after you, so please limit highlighting and writing in the book.

This is not merely advising against "excessive" notation -- it is also requesting "limit[ed]" highlighting and writing in the book.  I am someone who likes to write in the margins, for example, and connect thoughts or ideas with circles and lines in the text.  I am also not averse to highlighting important passages.  (As a side note, I get the point on truly excessive highlighting.  I bought one book that had so much highlighting it was easier to pick out what was not highlighted. Kind of annoying and amusing at the same time.  I was able to work with it, but I was more careful with future purchases.) 

As a first-year student, I wrote every term I didn't know (or suspected was a term of art) in the margins to look up in Black's Law Dictionary.  I sometimes even wrote the definition in the margin. This kind of connection with the material, I think, was an important part of my learning process. I realize not everyone learns this way, but for those of us who do, I fear that the textbook rental will limit that experience.

Obviously, one who knows they learn better by writing in books can just choose to buy, instead of rent. Unfortunately, at least some of us wouldn't know that's they way we learn until after we get started. I can't say that I would have known, anyway.  My (lax) undergraduate study habits were not in any way similar to my law school habits, and I was more than five years removed from school when I went back to law school.   

I don't have a great answer right now, and I have not been able to readily find any studies to support my concerns on book rentals (or allay my fears).  For students, I would say to think about how you learn and consider whether a book rental runs the risk of negatively impacting your education. For educators, I think we need to keep thinking about how students interact with the learning material, and we need to be aware of, and adjust to, the outside forces that may change the student learning process.  Comments on all of this are most certainly welcome.  

May 5, 2015 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (1)

Friday, May 1, 2015

Nat'l Bus. Law Scholars Conf. Line up & Extended Deadline

National Business Law Scholars Conference

Thursday & Friday, June 4-5, 2015 (Seton Hall University School of Law, Newark, NJ)

The organizers have put together a great line up of speakers and this conference is becoming (has already become) an intellectual highlight for the summer.  Keynote speakers include:  SEC Commissioner Troy Paredes, and Boston College Law  Professor Kent Greenfield.

In addition to the call for papers, which has been extended to May 8th (email Eric Chaffee), the conference will feature a Plenary Panel on the Extraterritorial Application of Federal Financial Markets Regulations with the following participants: 

Colleen Baker (view bio)
Lecturer, University of Illinois, College of Business

Sean Griffith (view bio)
T.J. Maloney Chair in Business Law; Director, Fordham Corporate Law Center

Eric Pan (view bio)
Associate Director, Office of International Affairs, U.S. Securities & Exchange Commission

Joshua White (view bio)
University of Georgia, Terry College of Business

For those of you unfamiliar with the NBLSC, here's a conference description from the organizers: 

This is the sixth annual meeting of the NBLSC, a conference which annually draws together legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Presentations should focus on research appropriate for publication in academic journals, law reviews, and should make a contribution to the existing scholarly literature. We will attempt to provide the opportunity for everyone to actively participate. Junior scholars and those considering entering the legal academy are especially encouraged to participate. For additional information, please email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu.

-Anne Tucker

 

 

 

 

PLENARY PANEL - THE EXTRATERRITORIAL APPLICATION OF FEDERAL FINANCIAL MARKETS REGULATIONS


Colleen Baker
 (view bio)
Lecturer, University of Illinois, College of Business

Sean Griffith (view bio)
T.J. Maloney Chair in Business Law; Director, Fordham Corporate Law Center

Eric Pan (view bio)
Associate Director, Office of International Affairs, U.S. Securities & Exchange Commission

Joshua White (view bio)
University of Georgia, Terry College of Business

CALL FOR PAPERS (EXTENDED UNTIL MAY 8, 2015)

To submit a presentation, email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu with an abstract or paper by May 8, 2015. Please title the email “NBLSC Submission – {Name}”. If you would like to attend, but not present, email Professor Chaffee with an email entitled “NBLSC Attendance.” Please specify in your email whether you are willing to serve as a commentator or moderator.

CONFERENCE ORGANIZERS

Barbara Black (The University of Cincinnati College of Law, Retired)
Eric C. Chaffee (The University of Toledo College of Law)
Steven M. Davidoff Solomon (The University of California Berkeley Law School)
Kristin N. Johnson (Seton Hall University School of Law)
Elizabeth Pollman (Loyola Law School, Los Angeles)
Margaret V. Sachs (University of Georgia Law)

HOTEL INFORMATION


Hilton Penn Station
 | Online Reservations Availalbe Here
Located one block from Seton Hall Law School

  • Located adjacent to Newark Penn Station (Amtrak and New Jersey Transit Rail Lines)
  • Four miles from Newark Liberty International Airport – Complimentary shuttle service
  • $209 + tax per night
  • Reservations may be made online here or by calling 973-622-5000
  • Reference: SETON HALL UNIVERSITY SCHOOL OF LAW
  • Location: Gateway Center – Raymond Boulevard, Newark, New Jersey
  • Hilton Penn Station will release rooms on May 13, 2015.


Courtyard Marriott Newark Downtown

Located in downtown Newark (ten minute walk)

  • Located in the heart of downtown Newark adjacent to the Prudential Center and easily accessible to all major transportation
  • Four miles from Newark Liberty International Airport – Complimentary shuttle service
  • $139 + tax per night
  • Reservations may be made by calling: 973-848-0070
  • Reference: SETON HALL LAW SCHOOL
  • Location: 858 Broad Street, Newark, New Jersey
  • Courtyard Newark Downtown will release rooms on May 13, 2015.

LOCAL ATTRACTIONS AND INFORMATION

Visit and explore Seton Hall Law and its surrounding area.

May 1, 2015 in Anne Tucker, Call for Papers, Law School, Teaching | Permalink | Comments (0)

Thursday, April 9, 2015

Would the world be a better place if law students were shareholders?

It’s that time of year again where I have my business associations students pretend to be shareholders and draft proposals. I blogged about this topic last semester here. Most of this semester’s proposals related to environmental, social and governance factors. In the real world, a record 433 ESG proposals have been filed this year, and the breakdown as of mid-February was as follows according to As You Sow:

Environment/Climate Change- 27%

Political Activity- 26%

Human Rights/Labor-15%

Sustainability-12%

Diversity-9%

Animals-2%

Summaries of some of the student proposals are below (my apologies if my truncated descriptions make their proposals less clear): 

1) Netflix-follow the UN Guiding Principles on Business and Human Rights and the core standards of the International Labour Organization

2) Luxottica- separate Chair and CEO

3) DineEquity- issue quarterly reports on efforts to combat childhood obesity and the links to financial risks to the company

4) Starbucks- provide additional disclosure of risks related to declines in consumer spending and decreases in wages

5) Chipotle- issue executive compensation/pay disparity report

6) Citrix Systems-add board diversity

7) Dunkin Donuts- eliminate the use of Styrofoam cups

8) Campbell Soup- issue sustainability report

9) Shake Shack- issue sustainability report

10) Starbucks- separate Chair and CEO

11) Hyatt Hotels- institute a tobacco-free workplace

12) Burger King- eliminate GMO in food

13) McDonalds- provide more transparency on menu changes

14) Google-disclose more on political expenditures

15) WWE- institute funding cap

One proposal that generated some discussion in class today related to a consumer products company. As I skimmed the first two lines of the proposal to end animal testing last night, I realized that one of my friends was in-house counsel at the company. I immediately reached out to her telling her that my students noted that the company used to be ”cruelty-free,” but now tested on animals in China.  She responded that the Chinese government required animal testing on these products, and thus they were complying with applicable regulations. My students, however, believed that the company should, like their competitors, work with the Chinese government to change the law or should pull out of China.  Are my students naïve? Do companies actually have the kind of leverage to cause the Chinese government to change their laws? Or would companies fail their shareholders by pulling out of a market with a billion potential customers? This led to a robust debate, which unfortunately we could not finish.

I look forward to Tuesday’s class when we will continue these discussions and I will show them the sobering statistics of how often these proposals tend to fail. Hopefully we can also touch on the Third Circuit decision, which may be out on the Wal-Mart/Trinity Church shareholder proposal issue.These are certainly exciting times to be teaching about business associations and corporate governance.

April 9, 2015 in Business Associations, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Law School, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (1)

Wednesday, April 8, 2015

Media Coverage of Business Combinations

For thirty years, I have had a pet peeve about the media's routine reporting on mergers and acquisitions.  I have kept this to myself, for the most part, other than scattered comments to law practice colleagues and law students over the years.  Today, I go public with this veritable thorn in my side.

From many press reports (which commonly characterize business combinations as mergers), you would think that every business combination is structured as a merger.  I know I am being picky here (since there are both legal and non-legal common parlance definitions of the verb "merge").  But a merger, to a business lawyer, is a particular form of business combination, to be distinguished from a stock purchase, asset purchase, consolidation, or statutory share exchange transaction.

The distinction is meaningful to business lawyers for whom the implications of deal type are well known.  However, imho, it also can be meaningful to others with an interest in the transaction, assuming the implications of the deal structure are understood by the journalist and conveyed accurately to readers.  For instance, the existence (or lack) of shareholder approval requirements and appraisal rights, the need for contractual consents, permit or license transfers or applications, or regulatory approvals, the tax treatment, etc. may differ based on the transaction structure.

Continue reading

April 8, 2015 in Business Associations, Corporate Finance, Corporations, Joan Heminway, M&A, Securities Regulation, Teaching | Permalink | Comments (1)

Saturday, April 4, 2015

Assistant Director of the Center for Transactional Law and Practice - Emory Law School

Emory Law School seeks an Assistant Director of the Center for Transactional Law and Practice to teach in and share the administrative duties associated with running the largest program in the Law School.  Each candidate should have a J.D. or comparable law degree and substantial experience as an attorney practicing or teaching transactional law.  Significant contacts in the Atlanta legal community are a plus.

Initially, the Assistant Director will be responsible for leading the charge to further develop the Deal Skills curriculum.  (In Deal Skills – one of Emory Law’s signature core transactional skills courses – students are introduced to the business and legal issues common to commercial transactions.)  The Assistant Director will co-teach at least one section of Deal Skills each semester, supervise the current Deal Skills adjuncts, and recruit, train, and evaluate the performance of new adjunct professors teaching the other sections of Deal Skills.

As the faculty advisor for Emory Law’s Transactional Law Program Negotiation Team, the Assistant Director will identify appropriate competitions, select team members, recruit coaches, and supervise both the drafting and negotiation components of each competition.  The Assistant Director will also serve as the host of the Southeast Regional LawMeets® Competition held at Emory every other year.

Additionally, the Assistant Director will be responsible for the creation of two to three new capstone courses for the transactional law program.  (A capstone course is a small, hands-on seminar in a specific transactional law topic such as mergers and acquisitions or commercial real estate transactions.)  The Assistant Director will identify specific educational needs, recruit adjunct faculty, assist with curriculum design, and monitor the adjuncts’ performance.  

Besides the specific duties described above, the Assistant Director will assist the Executive Director with the administration of the transactional law program and the Transactional Law and Skills Certificate program.  This will involve publicizing the program to prospective and current students, monitoring the curriculum to assure that students are able to satisfy the requirements of the Certificate, and counselling students regarding their coursework and careers.  The Assistant Director can also expect to participate in strategic planning, marketing, fundraising, alumni outreach, and a wide variety of other leadership tasks.

APPLICATION PROCEDURE:  

Emory University is an equal opportunity employer, committed to diversifying its faculty and staff.  Members of under-represented groups are encouraged to apply.  For more information about the transactional law program and the Transactional Law and Skills Certificate Program, please visit our website at:  

http://law.emory.edu/academics/academic-programs/center-for-transactional-law-and-practice/index.html

To apply, please mail or e-mail a cover letter and resumé to: 

 

Kevin Moody

Emory University Law School

1301 Clifton Road, N.E.

Atlanta, GA  30322-2770

sue.payne@emory.edu.

 

APPLICATION DEADLINE:  April 30, 2015

 

[Hat tip to Bobby Ahdieh for this post]

April 4, 2015 in Joan Heminway, Jobs, Law School, Teaching | Permalink | Comments (0)

Thursday, April 2, 2015

Key Legal Documents for Startups and Entrepreneurs

Earlier this week I went to a really useful workshop conducted by the Venture Law Project and David Salmon entitled "Key Legal Docs Every Entrepreneur Needs." I decided to attend because I wanted to make sure that I’m on target with what I am teaching in Business Associations, and because I am on the pro bono list to assist small businesses. I am sure that the entrepreneurs learned quite a bit because I surely did, especially from the questions that the audience members asked. My best moment, though was when a speaker asked who knew the term "right of first refusal" and the only two people who raised their hands were yours truly and my former law student, who turned to me and gave me the thumbs up.

Their list of the “key” documents is below:

1)   Operating Agreement (for an LLC)- the checklist included identity, economics, capital structure, management, transfer restrictions, consent for approval of amendments, and miscellaneous.

2)   NDA- Salmon advised that asking for an NDA was often considered a “rookie mistake” and that venture capitalists will often refuse to sign them. I have heard this from a number of legal advisors over the past few years, and Ycombinator specifically says they won't sign one.

3)   Term Sheets- the seminar used an example for a Series AA Preferred Stock Financing, which addressed capitalization, proposed private placement, etc.

4)   Independent Contractor Agreement- the seminar creators also provided an IRS checklist.

5)   Consulting Agreement- this and some other documents came from  Orrick's start-up forms page and ycombinator. FYI, Cooley Goddard also has some forms and guidance.

6)   Employment Agreement- as a former employment lawyer, I would likely make a lot of tweaks to the document, and vey few people have employment contracts in any event. But it did have good information about equity grants.

7)   Convertible Promissory Note Purchase Agreement- here's where the audience members probably all said, "I need an attorney" and can't do this from some online form generator or service like Legal Zoom or Rocket Lawyer.

8)   Stock Purchase Agreement- the sample dealt with Series AA preferred stock.

9)   IRS 83(b) form- for those who worry that they may have to pay taxes on "phantom income" if the value of their stock rises.

10) A detailed checklist dealing with basic incorporation, personnel/employee matters, intellectual property, and tax/finance/administration with a list of whether the responsible party should be the founders, attorney, officers, insurance agent, accountant, or other outside personnel.

What’s missing in your view? The speakers warned repeatedly that business people should not cut and paste from these forms, but we know that many will. So my final question- how do we train future lawyers so that these form generators and workshops don't make attorneys obsolete to potential business clients?

 

April 2, 2015 in Business Associations, Corporate Finance, Corporations, Entrepreneurship, Law School, LLCs, M&A, Marcia Narine, Teaching, Unincorporated Entities | Permalink | Comments (4)

Wednesday, March 25, 2015

Flipping Roles in the Securities Regulation Classroom

Today, part of the assignment for my Securities Regulation students was to read a chapter in our casebook and, as assigned by me, come to class prepared to teach in  a three-to-five-minute segment a part of the assigned reading.  The casebook is Securities Regulation: Cases and Materials by Jim Cox, Bob Hillman, and Don Langevoort.  The chapter (Chapter 7, entitled "Recapitalization, Reorganizations, and Acquisitions") covers the way in which various typical corporate finance transactions are, are not, or may be offers or sales of securities that trigger registration under Section 5 of the Securities Act of 1933, as amended (the "1933 Act").  I have used this technique for teaching this material before (and also use a student teaching method for part of my Corporate Finance course), and I really enjoy the class each time.

I find that the students understand the assigned material well (having already been through a lot of registration and exemption material in the preceding weeks) and embrace the responsibility of teaching me and each other.  I am convinced that they learn the material better and are more engaged with it because they have had to read it with a different intent driven by a distinct objective. For their brief teaching experience, each student needs to understand both the transaction at issue and the way in which it implicates, does not implicate, or may implicate 1933 Act registration requirements.  They do not disappoint in either respect, and I admit to being interested in their presentations and proud of them.

I also find that changing my role principally to that of a listener and questioner refreshes me.  I organize and orchestrate the general structure of the class meeting and come to class prepared with the knowledge of what needs to be brought out during the session.  But since I cannot control exactly what is said, I must listen and react and help create logical transitions and other links between the topics covered.  In addition, I can create visuals on the board to illustrate aspects of the "mini-lectures" (as I did today when a student was explaining a spin-off transaction).  I honestly have a lot of fun teaching this way.

There are, no doubt, many ways in which we can engage students in teaching course material in the classroom that may have similar benefits.  What are yours?  When and how do you use them to make them most effective?  Teach me!  :>)

March 25, 2015 in Corporate Finance, Joan Heminway, Securities Regulation, Teaching | Permalink | Comments (3)

Monday, March 16, 2015

Law Teaching: Deep and Shallow Knowledge

The depth of everyone's knowledge varies from subject to subject. I have a deep understanding of many areas of securities law, but a very shallow understanding of physics. (I’m not even in the wading pool.) But, even in subjects I teach—business associations, securities law, accounting for lawyers—the depth of my knowledge varies from topic to topic.

When I’m teaching the Securities Act registration exemptions, my knowledge base is very deep. I research and write primarily in that area. I know the law. I know the lore. I know the policy.
In other areas, my knowledge is much shallower. In some cases, I know just enough to teach the class. My business associations class sometimes touches on entity taxation issues, but I’m far from an expert on entity taxation. (My tax colleagues would say “far, far, far.”)

One’s knowledge deepens over time, of course. That’s one of the great joys of becoming an expert, whether you’re a law professor or a practitioner. I know more now about every topic I teach (including entity taxation) than I knew when I began teaching 27 years ago.

Several years ago, I decided to teach a course on investment companies and investment advisers. I started from scratch. I had no such class in law school and I didn’t practice in that area, so I had to learn the details myself before teaching the class. Now, having taught the class many times and having written two articles that deal with issues in the area, my knowledge base is much deeper.

All law professors have shallow and deep areas of knowledge. Over time, all of us should try to deepen our knowledge in the shallower areas. This improves our teaching and, less obviously, improves our scholarship. I tell my students that a broad education benefits the specialist, and my own experience confirms that. I have often drawn on what I learned in one of my shallower areas while writing an article in a deep area.

Professors also need to be careful that our teaching isn’t negatively affected by our shallow and deep areas.

  • Be sure your course coverage (and your exam coverage) is based on the importance and relevance of the topics and the needs of the students, not on your knowledge base. There’s a natural psychological tendency to focus on what we know best, which is usually also what we’re most interested in. Don’t minimize a topic just because your knowledge of the topic is shallow. Don’t stress a topic just because your knowledge is deep. I would like to spend my entire securities regulation course talking about Securities Act exemptions, but I don’t.
  • Be careful to maintain the same classroom atmosphere in shallow and deep areas. When I’m teaching in a deep knowledge area, I’m often just scratching the surface of what I know. I sometimes have to fight to stay excited about the material and avoid going on autopilot. When I’m teaching in a shallow area, the discussion is fresher and more exciting to me. I’m more likely to learn from my students and I can empathize with their struggles to master the material. The key is to keep an even keel—to keep the discussion equally fresh and exciting, no matter how deep or shallow your knowledge.
  • Don’t overwhelm the students with your deep knowledge. They need to spend some time in the shallow end before you can take them into the depths. It’s taken you years to develop your deep knowledge; you can’t replicate that for your students in an hour or two.
  • Admit when your knowledge is shallow. “I don’t know” is a perfectly appropriate response even when your knowledge is deep, even more so when your knowledge is shallow. And “I don’t know” is much better for you and your students than trying to fake it. Use these opportunities to deepen your knowledge and get back to the students with your answer. I can’t count how many times in my career I have faced situations like that.

I apologize for disillusioning any readers who, based on this blog, believed I was omniscient and had deep knowledge of everything.

 

March 16, 2015 in C. Steven Bradford, Law School, Teaching | Permalink | Comments (0)

Friday, March 13, 2015

The Sweet Briar Situation

If you keep up with higher education news, you have already read about the decision to close Sweet Briar College. This story hit close to home, in part because I am a professor and in part because I graduated from a small liberal arts college.

My biggest question is why the administration took so long to tell the students and faculty. By making the announcement in the spring semester, the administration seems to have harmed students who will be looking to transfer and faculty members who will be looking for new jobs. More reading on the faculty members' situation is available in The Atlantic.

Given the general demand for students, I assume the students will be able to find new college homes, though their options might be be somewhat more limited than if the announcement were made in the fall. Most of the Sweet Briar College faculty members, however, will be in an incredibly tough bind. Most academic hiring happens during the fall semester.

With a nearly $100 million endowment (some of which is supposedly restricted), one wonders whether the administration could have kept the school open for one more school year, for the benefit of the faculty and students looking for a place to land. Alternatively, what prevented an announcement this past fall? Perhaps administration worried about students and faculty leaving en masse if given longer lead time, but if the school is closing anyway, I do not see why that would be a problem. Perhaps creditors played a role?

Also, I wonder why the school did not make a more desperate and direct plea to their alums. Instead of abruptly announcing that the school would close, why didn't the administration say that the school would close unless they raise X dollars in Y time period?

As outsiders, we obviously do not know all the facts, but, in any event, it appears to be a sad situation.

March 13, 2015 in Ethics, Haskell Murray, Teaching | Permalink | Comments (1)