Friday, October 27, 2017
A former student brought this fundraising website to my attention: To the Stars Academy of Arts and Sciences ("TTS Academy). (Image above from a Creative Commons search).
This article describes TTS Academy as follows: "Former Blink-182 singer and guitarist Tom DeLonge is taking his fascination with/conspiracy theories about UFOs to their logical conclusion point: He's partnering with former government officials on a public benefit corporation studying 'exotic technologies' from Unidentified Aerial Phenomenon (UAP) that the consortium says can 'revolutionize the human experience.'"
Remember the Blink-182 song Aliens Exist?
I couldn't make this up. And I did spend some time trying to determine if it was a joke, but TTS Academy's 63-page offering circular suggests that it is no joke. And TTS Academy appears to have already raised over $500,000.
According to the organization's website, Tom DeLonge of Blink-182 fame is in fact the CEO and President. Supposedly, DeLonge has teamed with former Department of Defense official Luis Elizondo who confirmed to HuffPost that the TTS Academy is planning to "provide never before released footage from real US Government systems...not blurry, amateur photos, but real data and real videos." Rolling Stone reports that "DeLonge has long been interested in UFO and extraterrestrial research. After parting ways with Blink-182 in 2015, he delved deeper into the subject, releasing the book Sekret Machines: Gods earlier this year and he's also working on a movie that is related to those interests called Strange Times." TTS Academy is a Public Benefit Corporation, formed in Delaware.
The TTS Academy website states: "To The Stars Academy is a Public Benefit Corporation (PBC), which means our public benefit purpose is a core founding principle of our corporate charter alongside the traditional goal of maximizing profit for shareholders." Hmm... How does one pursue a public benefit purpose and seek to maximize profit for shareholders? A main point of benefit corporations is liberate companies from the perceived restrictions of shareholder wealth maximization.
The website continues: "Our public purpose: Education - Community - Sustainability - Transparency. PBCs have enjoyed a surge in popularity as the public becomes more interested in corporate responsibility, transparency, and more recently, the concept of impact investing.* It’s clear that an expanding portion of the general population is looking to make an impact on the world around them, not only through volunteering, or speaking out on social media, but through financial decision making.** We believe raising resources through Regulation A+ crowdfunding will allow us to expedite expansion of TTS Academy’s PBC initiatives, like promoting citizen science, enhancing traditional education with science, engineering and art-related programming, supporting veterans and their families, and promoting underrepresented people in film." Color me skeptical.
As Professor Christine Hurt noted way back in 2014/15, the crowdfunding and social enterprise circles may overlap significantly. Professor Hurt wrote, "for-profit social entrepreneurship may find equity crowdfunding both appealing and available. For-profit social entrepreneurs may be able to use the crowdfunding vehicle to brand themselves as pro-social, attracting individual and institutional cause investors who may operate outside of traditional capital markets and may look for intangible returns. Just as charitable crowdfunders rebut the conventional wisdom that donors expect tax-deductibility, prosocial equity crowdfunders may rebut the conventional wisdom that early equity investors expect high returns or an exit mechanism." Not sure if she, or any of us, predicted exactly this type of company.
Wednesday, October 25, 2017
Today I sat through a panel at the ABA International Law Section Meeting entitled, I, Robot - The Increasing Use and Misuse of Technology by In-House Legal Departments. I have already posted here about Ross and other programs. I thought I would share other vendors that in-house counsel are using according to one of the panelists:
- Deal point - virtual deal room.
- Casetext - legal research.
- Disco AI; Relativity; Ringtail - apply machine learning to e-discovery.
- Ebrevia; Kira Systems; RAVN - contract organization and analysis.
- Julie Desk - AI "virtual assistant" for scheduling meetings.
- Law Geex - contract review software that catches clauses that are unusual, missing, or problematic.
- Legal Robot - start-up uses AI to translate legalese into plain English; flags anomalies; IDs potentially vague word choices.
- LexMachina - litigation analytics.
- NeotaLogic - client intake and early case assessment.
- Robot Review - compares patent claims with past applications to predict patent eligibility.
- Ross Intelligence - AI virtual attorney from IBM (Watson).
These and their future competitors lead to new challenges for lawyers, law professors, and bar associations. Will robots engage in the unauthorized practice of law? What are the ethical ramifications of using artificial intelligence in legal engagements? How much do you tell clients about how or what is doing their legal research? What about data security issues for this information? How do we deal with discovery disputes? Can robot lawyers mediate? Why should lawyers who bill by the hour want the efficiency of artificial intelligence and machine learning? Finally, how do we help students develop skills in “judgment” and how to advise and counsel clients in a world where more of the traditional legal tasks will be automated (and 23% of legal task already are)? These are frightening and exciting times, but I look forward to the challenge of preparing the next generation of lawyers.
Monday, October 2, 2017
As some of our BLPB readers know, I am a habitual 12,000-step-a-day walker. I monitor my progress on steps, stairs, and sometimes sleep using a Fitbit "One" that I have had since Christmas Day 2012. Fitbit recently announced that it is discontinuing the One. So, if my existing One dies off, I will have to switch trackers. And, sadly, I am likely to have to switch suppliers. While Fitbit has been good to me, the rest of its trackers are not at all interesting or suitable for my desired uses. They are almost all wrist models, and the one clip-on tracker Fitbit sells is relatively bulky and antiquated.
I am not the only one who is unhappy about the discontinuation of the One tracker. Fitbit has discussion boards for members of its "community." The discussion board titled "Is Fitbit One being discontinued?" (which was started over the summer) has lit up over the past week. As of the time of this post, there were 519 posts in the Fitbit forum.
I have been impressed by the passion of the folks who have posted comments and responses. Many posted reviews of other Fitbit products and competitor products that might be adequate substitutes for the One for some users. But I have been fascinated by the nature of several posts, including a number that focus on corporate governance and finance matters. Community members were motivated to check into and comment on Fitbit's published financial statements, litigation profile, and trends in the mix of product sales. Some encouraged calling either Fitbit's customer service line or mutual funds that hold Fitbit shares (and they named the funds) to express concerns. One member of the community posted that he is worried about Fitbit's employees, customers, and shareholders in the event Fitbit's business goes South.
The comments made on the Fitbit community discussion board reminded me of Hillary Sale's work on publicness, including her article entitled Public Governance. In that article, she observes:
Publicness is both a process and an outcome. When corporate actors lose sight of the fact that the companies they run and decisions they make impact society more generally, and not just shareholders, they are subjected to publicness. Outside actors like the media, bloggers, and Congress demand reform and become involved in the debate. Decisions about governance move from Wall Street to Main Street.
Friday, September 29, 2017
I recently finished Elizabeth Pollman and Jordan Barry's article entitled Regulatory Entrepreneurship. The article is thoughtfully written and timely. I highly recommend it.
This Article examines what we term “regulatory entrepreneurship” — pursuing a line of business in which changing the law is a significant part of the business plan. Regulatory entrepreneurship is not new, but it has become increasingly salient in recent years as companies from Airbnb to Tesla, and from DraftKings to Uber, have become agents of legal change. We document the tactics that companies have employed, including operating in legal gray areas, growing “too big to ban,” and mobilizing users for political support. Further, we theorize the business and law-related factors that foster regulatory entrepreneurship. Well-funded, scalable, and highly connected startup businesses with mass appeal have advantages, especially when they target state and local laws and litigate them in the political sphere instead of in court.
Finally, we predict that regulatory entrepreneurship will increase, driven by significant state and local policy issues, strong institutional support for startup companies, and continued technological progress that facilitates political mobilization. We explore how this could catalyze new coalitions, lower the cost of political participation, and improve policymaking. However, it could also lead to negative consequences when companies’ interests diverge from the public interest.
Wednesday, September 20, 2017
Friend of the blog and South Texas College of Law (Houston) Professor Joe Leahy sent over the following post he authored. It is cross-posted at UberLaw.Net and Medium. Embarrassingly, I had not heard about Loftium before reading this post, though at least I know of and have used Airbnb. Joe has some interesting thoughts, and I am happy to include his post on this blog.
Loftium will provide prospective homebuyers with up to $50,000 for a down payment, as long as they are willing to continuously list an extra bedroom on Airbnb for one to three years and share most of the income with Loftium over that time.
At first glance, the arrangement between Loftium and participating homebuyers might sound like a loan. (Indeed, the Times even describes it as such in an infographic.) But upon a closer look, the arrangement that Loftium contemplates with homebuyers clearly is not a loan. First of all, Loftium says it is not a loan; rather, according to Loftium, the down payment assistance it provides to homebuyers is “a part of a services agreement” lasting 12-36 months. Second, and more important, the arrangement between Loftium and homebuyers has none of the characteristics of a traditional (term) loan. There is no “principal” amount that the homebuyer is required to repay in a set period of time, and Loftium does not charge the homeowner any “interest.” In fact, the homebuyer is not required to make anypayments to Loftium in return for the company’s cash (unless the homeowner breaches the parties’ agreement and stops renting on Airbnb before the term expires).
All the homebuyer must do in exchange for Loftium’s money is (1) list her spare room on Airbnb continuously through the term of her agreement with Loftium, (2) be a decent host (i.e., “not be rude to guests”) and (3) split her Airbnb rental revenue with Loftium (with two-thirds going to the company.) If, at the end of the term, Loftium has not been repaid its initial investment, the homeowner is not required to repay Loftium’s initial contribution. Hence, if renting out the homeowner’s spare room is not profitable during the term of the parties’ agreement, “Loftium takes full responsibility for that loss.”
Of course, Loftium expects that the total income from renting out a homeowner’s spare room will greatly exceed the amount that it originally provided to the homebuyer, so that both will profit. If Loftium makes more in rental income than it pays towards the homeowner’s down payment, Loftium will make a profit.
Further, by all appearances, there is no cap on Loftium’s potential profit is its business arrangement with homebuyers. In fact, Loftium makes clear that it wants to maximize the income that it splits with homebuyers: Loftium promises that it will work with them “to increase monthly bookings as much as possible, so both sides can benefit from the additional income.” To that end, Loftium provides homebuyers with some start-up supplies for their spare bedroom (and a keyless entry lock), access to advice and know-how regarding how to rent an Airbnb room, and online tools to help maximize their rental income.
So, if the business arrangement between Loftium and homeowners is not a loan, what is it? It is almost certainly a general partnership for a term (i.e., a “joint venture”).
[Post continues after the page break]
Thursday, September 7, 2017
As previously mentioned, I am always looking for good podcasts. I listen to podcasts while mowing our lawn and on road trips.
StartUp is the latest podcast series that I have uncovered, thanks to a recommendation from my sister Anna who works for a media/marketing start up herself.
From what I have uncovered so far, StartUp seems to be quite like NPR's How I Built This, which I mentioned in a previous post. Hosts of both podcasts interview entrepreneurs about the founding of their businesses and the ups and downs thereafter. The biggest difference I see is that StartUp seems to focus on smaller companies (a number that I had never heard of), while How I Built This seems to focus on companies that are now quite large and successful. In early seasons of StartUp there appear to be a number of the podcasts that depart from the entrepreneur-interview model, but I haven't dug into the early seasons yet. I am mainly focused on the recent podcasts.
Perhaps most interestingly, I recently listened to a podcast on StartUp about Mokhtar Alkhanshali and his specialty coffee. Mokhtar sources his coffee beans from war-torn Yemen and a cup of his coffee sells for $16 a cup. At first, this seemed like a ridiculous price for a cup of coffee, but after hearing how Mokhtar risked his life for his business in Yemen (bombings, escaping on a tiny boat, being captured, etc.) and listening to the specialty coffee to wine comparison, the pricing does make more sense. I might pay $16 once, just for the story, but I couldn't see a $16 cup of coffee becoming even a semi-regular purchase for me. That said, I know people who are getting increasingly serious about their coffee and perhaps it can be sustained in some cities.
Monday, August 14, 2017
Former BLPB editor Steve Bradford has posted a new paper adding to his wonderful series of articles on crowdfunding (on which I and so many others rely in our crowdfunding work). This article, entitled "Online Arbitration as a Remedy for Crowdfunding Fraud" (and forthcoming in the Florida State University Law Review), focuses on a hot topic in many areas of lawyering--online dispute resolution, or ODR. Steve brings the discussion to bear on his crowdfunding work. Specifically, he suggests online arbitration as an efficacious way of resolving allegations of fraud in crowdfunding. Here's the abstract:
It is now legal to see securities to the general public in unregistered, crowdfunded offerings. But offerings pursuant to the new federal crowdfunding exemption pose a serious risk of fraud. The buyers will be mostly small, unsophisticated investors, the issuers will be mostly small startups about whom little is known, and crowdfunded offerings lack some of the protections available in registered offerings. Some of the requirements of the exemption may reduce the incidence of fraud, but there will undoubtedly be fraudulent offerings.
An effective antifraud remedy is needed to compensate investors and help deter wrongdoers. But, because of the small dollar amounts involved, neither individual litigation nor class actions will usually be feasible; the cost of suing will usually exceed the expected recovery. Federal and state securities regulators are also unlikely to focus their limited enforcement resources on small crowdfunding offerings. A more effective remedy is needed.
Arbitration is cheaper, but even ordinary arbitration will often be too expensive for the small amounts invested in crowdfunding. In this article, I attempt to design a simplified, cost-effective arbitration remedy to deal with crowdfunding fraud. The arbitration remedy should be unilateral; crowdfunding issuers should be obligated to arbitrate, but not investors. Crowdfunding arbitration should be online, with the parties limited to written submissions. But it should be public, and arbitrators should be required to publish their findings. The arbitrators should be experts on both crowdfunding and securities law, and they should take an active, inquisitorial role in developing the evidence. Finally, all of the investors in an offering should be able to consolidate their claims into an arbitration class action.
Although I haven't yet read the paper (which was just posted this morning, it seems), Steve's idea totally makes sense to me on so many levels. Among other things, ODR has a history in e-commerce and social media, two front-runners and foundations of crowdfunding. Also, the dispute resolution expense issue that Steve alludes to in the abstract is real. It has been raised by a number of us, including by me in this draft paper, in which I assert, among other things:
Prosecutors and regulators may not be willing or able to devote financial and human resources to enforcement efforts absent statutory or regulatory incentives or extraordinary policy reasons for doing so . . . . Individual funders also are unlikely to bring private actions or even engage alternative dispute resolution since the cost of vindicating their rights easily could exceed their invested money and time, although the availability of treble damages (often a statutory right for willful violations of consumer protection statutes) or other extraordinary remedies may change the calculus somewhat.
. . . [C]lass actions tend to be procedurally complex—difficult to get in front of a court—and may not be available in some jurisdictions. Moreover, the prospects for recovery are unknown and, based on recent information from U.S. securities class action litigation, financial compensation to individual members of the plaintiff class is likely to be relatively insignificant in dollar value and in relationship to losses suffered, even if the aggregate amount of damages paid by the defendant is relatively high . . . . Accordingly, class action litigation also may be of limited utility in bringing successful legal claims in the crowdfunding context.
This will be an area for much further thought as the crowdfunding adventure continues . . . .
Monday, July 10, 2017
Conference Announcement and Call for Papers
2017 Junior Scholars #FutureLaw Workshop 2.0 at Duquesne
The conference is organized by Seth Oranburg, Assistant Professor, Duquesne University School of Law. Funding is provided in part by the Federalist Society. All papers are selected based on scholarly merit, with an emphasis on scholarly impact, topical relevance, and viewpoint diversity.
September 7-8, 2017
By invitation only
OVERVIEW: The conference aims to foster legal and economic research on “FutureLaw” (as defined below) topics particularly by junior and emerging scholars by bringing together a diverse group of academics early in their career focusing on cutting-edge issues.
TOPICS: The conference organizers encourage the submission of papers about all aspects of FutureLaw, which includes open-data policy, machine learning, computational law, legal informatics, smart contracts, crypto-currency, block-chain technology, big data, algorithmic research, LegalTech, FinTech, MedTech, eCommerce, eGovernment, electronic discovery, computers & the law, teaching innovations, and related subjects. FutureLaw is an inter-disciplinary field with cross-opportunities in crowd science, behavioral economics, computer science, mathematics, statistics, learning theory, and related fields. Papers may be theoretical, archival or experimental in nature. Topics of interest include, but are not limited to:
- Innovation in legal instruments (e.g., new securities, new corporate forms, new litigation procedures, etc.)
- Innovation in legal technology (e.g., new law firm governance, legal automatic, democratizing access to legal services, legal chatbots, etc.)
- Innovation in legal teaching (e.g., new classroom techniques, distance learning studies, experiential learning, transactional clinics, etc.)
Papers regarding the effect of these innovations (e.g., diversity, inclusion, equity, equality, fairness, return on investment, productivity, security, etc.) are also welcome.
DUAL SUBMISSION PROCESS: For the 2017 conference, the FutureLaw Workshop and the Duquesne Law Review (DLR) announce a new, non-exclusive, combined submission process. At your discretion, a paper submitted to the 2017 FutureLaw Workshop 2.0 may also be considered for publication by DLR free of charge. The rules for this dual submission process are as follows:
(1) You must apply online at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20. Submitted papers will be considered for publication by the DLR free of charge. A reply to your submission in acceptance to the Workshop or invitation to publish in the DLR is your option, not your obligation.
(2) If you do not wish to be considered by the DLR while submitting for the FutureLaw Workshop, please indicate this in the comments field provided.
(3) Papers submitted for dual consideration must not already be accepted by another journal.
(4) While under consideration as a dual submission for the 2017 FutureLaw Workshop and invitation by the DLR, a paper may be submitted to another journal (or JAR).
PAPER SUBMISSION PROCEDURE: Please upload a PDF version of your working paper, by August 4, 2017 via the online submission form at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20. When you select the radio button for “Attendance Category: Participant,” you will see an option to upload a paper.
The FutureLaw Workshop may reimburse presenters and discussants reasonable travel expenses and accommodations. Please let us know if your academic institution does not provide you with travel and accommodation expenses.
CONFERENCE ATTENDANCE: Attendance is free and by invitation only. Academics interested in receiving an invitation to attend but who do not wish to submit a paper may apply online as “observers” at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20.
Friday, July 7, 2017
A few weeks ago, Stephen Bainbridge asked about the benefits of the social media site LinkedIN. His question caused me to revisit the costs/benefits of social media. Below I reflect on the social media websites I use.
With so many professors getting in trouble on social media - see, e.g., here, here, here, here, and here - it may make sense to ask if any of the websites are worth the risk. As long as you are wise when you post, and assume a post will be seen in the worst possible light, I think social media can be worth using.
- Benefits. Facebook has a broader network of people than any of the other social media sites I use. My parents are on Facebook, as is my wife's grandmother and great aunt, as are my peers, as are my much younger cousins. Facebook also has a wide range of user generated content -- photos, links, short & long posts, groups, etc. The "Friends in ___ City" feature has allowed me to catch up with old acquaintances when traveling for conferences or family trips. Just a few weeks ago, I visited with two of my old coaches for the first time since high school. Neither of their e-mails were online, and I have only kept up with them via Facebook.
- Costs. For me, Facebook is the biggest time waster among the various social media sites. Recently, I deactivated my Facebook account for the time being. I will probably be back at some point. The benefits of Facebook could probably be achieved in about 30 minutes a week, but until I learn to limit my use to around that amount of time, I will likely continue to deactivate for periods of time to cut back usage.
- Use for Work. I don’t allow current students to “friend” me, given the more personal nature of Facebook, but I have allowed alums to connect, which has been rewarding. I follow my university and my alma maters on Facebook. I am Facebook friends with a handful of professional contacts.
- Benefits. I have kept Twitter almost entirely professional; I rarely tweet about my family or my personal hobbies. As such, for me, the benefits of Twitter are captured in the "Use for Work" section below.
- Costs. Twitter can also eat time, though unlike Facebook, I am rarely tempted to spend long amounts of time on Twitter. Twitter doesn't allow for very nuanced debate and your posts can be taken the wrong way. Professor Eric Posner recently posted some harsh comments about Twitter; his comments have a kernel of truth. That said, I do think he is overly negative. For example, I think Twitter can actually be better than newspapers for some information. With Twitter you get the news directly from the source, and the news reaches you more quickly and with fewer words. Also, newspapers are unlikely to cover niche topics, like the latest happenings in social enterprise law.
- Use for Work. I maintain two hashtags - #MGT2410 and #MGT6940 – for news tweets related to my two primary courses. I allow current students to follow me, though I do not require it nor do I post anything necessary for my classes. I follow mostly professional contacts and professional organizations on Twitter. Given the accounts that I follow, Twitter can be a relatively good place to get quick news. Finally, I have found that a number of C-level executives, lawyers, and well-known academics are easier to engage via Twitter than any other medium.
- Benefits. In thinking about Steven Bainbridge’s question about LinkedIN, I had a difficult time thinking of many significant benefits. I see LinkedIN as a place to connect with professional contacts that you want to share less information than you share on Facebook. I rarely log into LinkedIN, but I haven’t deleted my account either, as the costs of being on the website are incredibly low.
- Costs. LinkedIN takes the least amount of my time among the various social media sites. I spend 0 to 30 minutes on LinkedIN most months. There does appear to be a fair bit of spam in the various work groups I have joined, but it is pretty easy to ignore by unsubscribing to group e-mail updates.
- Use for Work. LinkedIN seems to be my MBA students' preferred method of connecting, and the site is worthwhile just to stay connected to them. I belong to a number of work related LinkedIN groups, but, as mentioned, most have been overtaken by spammers, so I almost never read the shared content.
- Benefits. Strava is a social media website for runners, cyclists, and swimmers. For me, Strava’s main purpose is as an online place to log my runs without annoying my friends on other social media websites. On Strava, I only have about 30 friends, all of whom are committed to fitness. The website is an incredibly good accountability tool, as those friends can see if you have been slacking for a few days, and some of them will even call you out. It is also nice to have a few people notice when you have a good race or workout. You can also borrow workout ideas from posts.
- Costs. I don't love that people can tell when you are out of town, based on the location of your runs, but with only 30 friends and the privacy settings set tight as to other users, this isn't a huge issue. Strava doesn't take much time. The routes automatically upload from my Garmin and the newsfeed isn't designed to keep you engaged with it.
- Use for Work. I don't really use Strava for work other than staying in touch with a couple attorney runner friends.
Instagram, Pinterest, Etc. I never got into Instagram, Pinterest, or any other social media websites. Instagram does seem to be quite popular among my somewhat younger friends and students, but it also appears to be a giant time waster, so I am glad I never got hooked.
Feel free to share any comments or additional thoughts.
Wednesday, May 31, 2017
I listened to a podcast today entitled “What Law Schools Should be Teaching, and Aren’t (with Mark Cohen).” Cohen is the founder and CEO of Legal Mosaic. In a previous life he served as a partner in a large law firm, a partner in his own boutique firm, a receiver, and the founder of a now defunct legal tech startup, Clearspire.
Given all of his experience, I value what he has to say about what law schools need to do to prepare students for the current legal marketplace. I recommend that you listen to the podcast yourself, but here is his list of gaps in student knowledge:
- How to interview clients
- The importance of project management, collaboration and teamwork
- How to provide legal solutions and not just merely legal opinions.
- How to use technology and deal with the rise of legal process outsourcing
- Marketing and getting clients
- The importance of emotional intelligence
Many may quibble with his list in an age in which bar passage rates are at historical lows. But I think he has a point, especially since most of students will work for small law firms and will not have the infrastructure/safety net of Big Law. As Cohen mentioned, lawyers increasingly work within a legal supply chain and must provide value beyond what they are being taught in law school. These include the soft skills that business schools typically teach, and which will enable our students to get and keep clients.
I particularly liked his discussion of project management and collaboration. As we know, many law students can’t manage their time properly, don’t like working in groups, and focus more on regurgitating what they are taught in class rather than thinking of creative, constructive solutions. Students also haven’t developed the skills to deal with the increasing automation of document review/drafting and the potential rise of robots, which thankfully, won’t replace lawyers (yet).
I have tried to teach my students to understand the importance of learning their client’s business so that they can provide solutions rather than standard law school exam answers. I grade based on deliverables and time management to the extent that I don’t accept late work (barring extraordinary circumstances). In every class, I have had students do some work in groups, even though they don’t like it at first. I have also stressed the importance of learning to explain complex concepts clearly and concisely through blogging (which also provides marketing opportunities).
Now I plan to see how I can incorporate more of Cohen’s suggestions. Practitioners- is there anything else professors can do to produce more effective and efficient graduates?
Tuesday, January 10, 2017
I am happy to say I just received my new article, co-authored with a former student, S. Alex Shay, who is now a Trial Attorney in the Office of the United States Trustee, Department of Justice. The article discusses property law challenges that can impeded business development and negatively impact landowners and mineral owners in shale regions, with a focus on the West Virginia portion of the Marcellus Shale. The article is Horizontal Drilling Vertical Problems: Property Law Challenges from the Marcellus Shale Boom, 49 John Marshall Law Review 413-447 (2015).
If you note the 2015 publication date, you can see the article has been a long time coming. The conference it is linked to took place in September 2015, and it has taken quite a while to get to print. On the plus side, I was able to do updates to some of the issues, and add new cases (and resolutions to cases) during the process. I just received my hard copies yesterday -- January 9, 2017 -- and I received a notice it was on Westlaw as of yesterday, too.
I always find it odd when law reviews use a specific year for an issue, as opposed to the actual publication year. I can understand how a January publication might have a 2016 date. That would have made sense, but dating the issue back to 2015, when I discuss cases decided in 2016 seems a little weird. I know there is a certain level of continuity that the dates can provide, but still, this seems too long.
When I was editor in chief of the Tulane Law Review, one of the things we prided ourselves on was not handing off any issue from our volume to the next board. A few years prior to our arrival, a committed group of Law Review folks caught up everything -- publishing, if memory serves (and legend was correctly passed on), two and a half volumes. And Tulane Law Review publishes six issues a year. They, apparently, did not sleep.
I am happy to have the article our, and the editors did good work. It just would have been nice to have it appear a little more timely and relevant than I think this "new" article does. For anyone who is interested, here's the abstract (article available here):
This article focuses on key property challenges appearing as part of the West Virginia Marcellus Shale play. The paper opens with an introduction to the Marcellus Shale region that is the focus of our analysis. The paper explains the horizontal drilling and hydraulic fracturing process that is an essential part of shale oil and gas development. To help readers understand the property challenges related to shale development, we include an introduction to the concept of severed estates, which can create separate ownership of the surface estate and the mineral estate. The article then focuses on two keys issues. First, the article discusses whether horizontal drilling and hydraulic fracturing constitute a “reasonably necessary” use of surface land to develop mineral rights, and concludes they are, at least in most instances. Second, the article discusses difficulties in analyzing deed language related to minerals rights and royalty interests, which has created challenges for mineral owners, leasing companies, and oil and gas developers. Please note that although the publication date is 2015, the article was not in print until January 2017 and discusses cases from 2016.
Ultimately, the article concludes, legislators and regulators may choose to add surface owner protections and impose other measures to lessen the burden on impacted regions to ease the conflict between surface owners and mineral developers. Such efforts may, at times, be necessary to ensure continued economic development in shale regions. Communities, landowners, interest groups, companies, and governments would be well served to work together to seek balance and compromise in development-heavy regions. Although courts are well-equipped to handle individual cases, large-scale policy is better developed at the community level (state and local) than through the adversarial system.
RESEARCH COLLOQUIUM: CALL FOR PAPERS
Law and Ethics of Big Data
Hosted and Sponsored by:
The Carol and Lawrence Zicklin Center for Business Ethics Research
The Wharton School of the University of Pennsylvania
Virginia Tech Center for Business Intelligence Analytics
The Department of Business Law and Ethics, Kelley School of Business
Washington & Lee Law School
April 21st and 22nd 2017
Wharton School of the University of Pennsylvania, Philadelphia, Pennsylvania
Abstract Submission Deadline: February 24, 2017
We are pleased to announce the research colloquium, "Law and Ethics of Big Data," at The Wharton School of the University of Pennsylvania, Philadelphia, Pennsylvania, co-hosted by Professor Philip M. Nichols, Assistant Professor Angie Raymond of Indiana University and Professor Janine Hiller of Virginia Tech.
Due to the success of this multi-year event that is in its fourth year, the colloquium will be expanded and we seek broad participation from multiple disciplines; please consider submitting research that is ready for the discussion stage. Each paper will be given detailed constructive critique. We are targeting cross-discipline opportunities for colloquium participants, and the Wharton community has expressed interest in sharing in these dialogues.
A non-inclusive list of topics that are appropriate for the colloquium include: Ethical principles for the Internet of Things, Intellectual Property and Data Intelligence, Bribery and Algorithms, Health Privacy and MHealth, Employment and Surveillance, National Security, Civil Rights, and Data, Algorithmic Discrimination, Smart Cities and Privacy, Cybersecurity and Big Data, Data Regulation. We seek a wide variety of topics that reflects the broad ecosystem created by ubiquitous data collection and use, and its effect in society.
TENTATIVE Colloquium Details:
- The colloquium will begin at noon on April 21st and conclude at the end of the day on April 22nd 2017.
- Approximately 50 minutes is allotted for discussion of each paper presentation; 5-10 minute author comments, and then a discussant will lead the overall discussion.
- The manuscripts will be posted in a password protected members-only forum online.
- Participants agree to read and be prepared to participate in discussions of all papers. Each author may be asked to lead discussion of one other submitted paper.
- A limited number of participants will be provided with lodging, and all participants will be provided meals during the colloquium.
Submissions: To be considered, please submit an abstract of 500-1000 words to Lauretta Tomasco at firstname.lastname@example.org by February 24, 2017. Abstracts will be evaluated based upon the quality of the abstract and the topic’s fit with the theme of the colloquium and other presentations. Questions may be directed to Angie Raymond at email@example.com or Janine Hiller at firstname.lastname@example.org. If you are interested in being a discussant, but do not have a paper to present, please send a statement of interest to the same.
Authors will be informed of the decision by March 3, 2016. If accepted, the author agrees to submit a discussion paper by April 10, 2017. While papers need not be in finished form, drafts must contain enough information and structure to facilitate a robust discussion of the topic and paper thesis. Formatting will be either APA or Bluebook. In the case of papers with multiple authors, only one author may present at the colloquium.
Tuesday, October 18, 2016
Last week, I explained that the "War on Coal" Is Really A Competition Issue, with cheap natural gas prices as a major reason coal production and use have declined. Beyond the impact of natural gas on coal jobs, technology is also an issue. Technology is making mining more efficient, but it is making the market harder for coal miners. Following is a chart I created from Energy Information Administration data that shows coal production and employment statistics for 2013 and 2014.
Coal Production Data
|Coal-Producing||Number of Mines||Production||Number of Mines||Production||Number of Mines||Production|
|State and Region1|
|Powder River Basin (surface)||16||418,156||16||407,567||-||2.6|
Coal-Related Employment Data
|State and Region|
|Powder River Basin||-||6,592||6,592||-||6,635||6,635||-||-0.6||-0.6|
The data show the coal-production and employment figures for 2013 and 2014. Surface mining in the Powder River Basin (the highest producing region in the country) increased coal production 2.6% and employment dropped 0.6%, while underground mining production for Appalachia increased 2.8% even though employment dropped 8.9%. For the United States, overall coal production increased 1.5% between 2013 and 2014, while the number of employees dropped 6.8%. Thus, even as coal production increased modestly, the number of employees holding those jobs declined significantly.
This doesn't deter politicians from making other claims, though. As I noted last week, the presidential race has included rhetoric claiming anti-coal regulations are what really hurt coal jobs. And it's not just at the presidential level. Coal states often feature politicians promising to bring back coal jobs. In my home state of West Virginia, for example, both candidates for governor are making such a promise.
As an aside, in the Ohio U.S. Senate race between Rob Portman and Ted Strickland, Sen. Portman has made use of this similar line of attack, claiming that former Ohio and governor and U.S. Representative Strickland "turned his back" on Ohio by not supporting coal jobs. The advertisement, available here, features workers from (at least for a West Virginian) an interesting choice of mine: Rosebud Mining. (A perceptive former student, Ken Bannon, alerted me to the ad or I would have missed it.)
People outside of West Virginia may not recall the chemical spill in January 2014 that contaminated the Elk River and left 300,000 West Virginians without drinking water. As I noted in a post back then, the company that owned the chemical site was Freedom Industries, which listed as its sole owner, Chemstream Holdings, a company owned by J. Clifford Forrest. Forrest also owns the Pennsylvania company (that also has Ohio operations) Rosebud Mining, which was located at the same address Chemstream Holdings listed for its headquarters. It appears that Portman has a solid lead in the race, and if I were part of the campaign, I'd probably not feature a mining company that had been linked (through an executive) to such a major recent environmental disaster.
Despite the data (and the economic realities), claims of a war on coal continue. Even where there is some truth to the idea -- recent regulations are not especially coal friendly -- there are simply too many hurdles to overcome for coal employment numbers to go back to prior levels. One can conceivably win a war on regulations, but technology and the marketplace are far less forgiving. It's time we embrace that reality.
Friday, September 23, 2016
In January 2015, I wrote about a resolution to take a break from e-mails on Saturdays.
That resolution failed, quickly.
Since then, I have been thinking a lot about my relationship with e-mail.
On one hand, I get a lot of positive feedback from students and colleagues about my responsiveness. On the other hand, constantly checking and responding to e-mails seems to cut against productivity on other (often more important) tasks.
Five or six weeks ago, I started drafting this post, hoping to share it after at least one week of only checking my e-mail two times a day (11am and 4pm). Then I changed the goal to three times a day (11am, 4pm, and 9pm and then 5am, 11am, 4pm). Efforts to limit e-mail in that rigid way failed, even though very little of what I do requires a response in less than 24 hours. On the positive side, I have been relatively good, recently, at not checking my e-mail when I am at home and my children are awake.
A few days ago, I read Andrew Sullivan’s Piece in the New York Magazine on “Distraction Sickness.” His piece is long, but worth reading. A short excerpt is included below:
[The smart phone] went from unknown to indispensable in less than a decade. The handful of spaces where it was once impossible to be connected — the airplane, the subway, the wilderness — are dwindling fast. Even hiker backpacks now come fitted with battery power for smartphones. Perhaps the only “safe space” that still exists is the shower. Am I exaggerating? A small but detailed 2015 study of young adults found that participants were using their phones five hours a day, at 85 separate times. Most of these interactions were for less than 30 seconds, but they add up. Just as revealing: The users weren’t fully aware of how addicted they were. They thought they picked up their phones half as much as they actually did. But whether they were aware of it or not, a new technology had seized control of around one-third of these young adults’ waking hours. . . . this new epidemic of distraction is our civilization’s specific weakness. And its threat is not so much to our minds, even as they shape-shift under the pressure. The threat is to our souls. At this rate, if the noise does not relent, we might even forget we have any. (emphasis added)
Academics seem to vary widely on how often they respond to e-mails, but I’d love to hear about the experience and practices of others. Oddly, in my experience with colleagues, those who are most prompt to respond to e-mails are usually also the most productive with their scholarship. I can’t really explain this, other than maybe these people are sitting at their computers more than others or are just ridiculously efficient. As with most things, I imagine there is an ideal balance to be pursued.
One thing I have learned is that setting expectations can be quite helpful. With students, I make clear on the first day of class and on the syllabus that e-mails will be returned within 24 business hours (though not necessarily more quickly than 24 business hours). I often respond to e-mails much more quickly than this, but this is helpful language to point a student to when he sends a 3am e-mail asking many substantive questions before an 8am exam.
Our students also struggle with "distraction sickness," and most of them know they are much too easily distracted by technology, but they are powerless against it. Ever since I banned laptops in my undergraduate classes, I have received many more thanks than pushback. The vast majority of students say they appreciate the technology break, but some can still be seen giving into the technology urge and (not so) secretly checking their phones.
Interested in how our readers manage their e-mails. Any tricks or rules that work for you? Feel free to e-mail me or leave your thoughts in the comments.
Tuesday, August 2, 2016
I am traveling to the SEALS Annual Meeting today, which means my summer is over. We start orientation next week at WVU College of Law, and I have absolutely no idea where the time went.
I will be keeping myself busy at the conference, where I am participating in a number of events, including a discussion group on Sustainability & Sustainable Business and one on White Collar Crime. Today, I thought I'd write a little bit about the first subject, and engage in a bit of shameless self-promotion, as well.
The intersection of sustainability and business is a significant part of my work. My areas of focus are business law and energy law, and I have spent much of my research time looking at how companies respond to regulation, including the effects of environmental regulations. (I also teach courses in Energy Law and Business Organizations, as well as a course called Energy Business: Law and Strategy, which merges the two subjects.)
I was recently asked to submit a response to Prof. Felix Mormann's paper, Clean Energy Federalism, which appeared in the Florida Law Review. His paper, which I think is well done, offers "two case studies, a novel model for policy integration, and theoretical insights to elucidate the relationship between environmental federalism and clean energy federalism." His article argues that renewable portfolio standards (mandates that require a certain percentage of electricity generated come from renewable energy sources) and feed-in tariffs (guaranteed payments for renewable energy that are independent of the market price) can be used together to find a "better, more efficient allocation of investor and regulatory risk."
The recent influx of cheap natural gas from shale formations (using hydraulic fracturing and horizontal drilling) has lead some to believe that renewable energy goals like the ones Prof. Mormann proposes will be ineffective, or at least much weaker. Although cheap natural gas does change way the electricity market was expected to evolve, my response argues that the change does not necessarily make renewable energy goals unattainable or even less attainable. My response, Natural Gas is Changing the Clean Energy Game, But the Game is Not Over, appears in the Florida Law Review Forum. Here's the abstract (and the paper is available here):
In his article, Clean Energy Federalism, Professor Felix Mormann analyzes the keys facets of how energy law and environmental law intersect, as he considers how to implement a program to “decarbonize America’s energy economy.” In this forward-thinking piece, Professor Mormann considers the potential role of renewable portfolio (RPSs) and feed-in tariffs (FITs) and how concurrent implementation at the federal and state level could support a lower-carbon energy future. His conclusion—“that one clean energy policy (RPS) be implemented at the federal and another (FIT) at the state level”—is likely correct from a policy-optimization perspective. Still, as Professor Mormann acknowledges, such policies can face enormous political hurdles.
This Response acknowledges the enormous role fossil fuels still play in our electricity generation sector and notes that renewables still account for less than 15% of the overall U.S. generation market. The energy sector, though, can be expected to continue its diversification, in part because diversification is valuable for utility reliability and resilience, as well as for financial management purposes. With lower natural gas prices, fuel switching has continued at pace, with the bulk of the new natural gas generation replacing coal-fired generation. This is a positive development for those looking to displace coal, but the change to natural gas also delays at least some of the shifting to renewables.
This response argues that all is not lost because of that delay. The coal-fired generation that is displaced by natural gas could create at least some opportunity for a parallel increase in renewable electricity generation. Although some may believe that low natural gas prices undercut the option of bringing new renewable energy online, that does not need to be the case. Professor Mormann’s option is still a reality, and the likelihood of success is more a question of priority than opportunity.
Monday, February 22, 2016
Free Web Seminar: The Opportunities and Pitfalls of Cybersecurity and Data Privacy in Mergers and Acquisitions
One of my two former firms, King & Spalding, is hosting a free interactive web seminar on cybersecurity and M&A on February 25 at 12:30 p.m. Thought the web seminar might be of interest to some of our readers. The description is reproduced below.
An Interactive Web Seminar
The Opportunities and Pitfalls of Cybersecurity and Data Privacy in Mergers and Acquisitions
February 25, 2016
12:30 PM – 1:30 PM
Over the last several years, company after company has been rocked by cybersecurity incidents. Moreover, obligations relating to cybersecurity and data privacy are rapidly evolving, imposing on corporations a complex and challenging legal and regulatory environment. Cybersecurity and data privacy deficiencies, therefore, might pose potentially significant business, legal, and regulatory risks to an acquiring company. For this reason, cybersecurity and data privacy are becoming integral pre-transaction due diligence items.
This e-Learn will analyze the (1) special cybersecurity and data privacy dangers that come with corporate transactions; (2) strategies to mitigate those dangers; and (3) benefits of incorporating cybersecurity and data privacy into due diligence. The panel will zero in on these issues from the vantage point of practitioners in the deal trenches, and from the perspective of a former computer crime prosecutor and a former FBI agent who have dealt with a broad range of cyber risks to public and private corporations. This e-Learn is for managers and attorneys at all levels who are involved at any stage of the M&A process and at any stage of cyber literacy, from the beginner who is just starting to appreciate the complex nature of cyber risks to the expert who has addressed them for years. The discussion will leave you with a better understanding of this critical topic and concrete, practical suggestions to bring back to your M&A team.
Robert Leclerc, King & Spalding’s Corporate Practice Group and experienced deal counsel; Nick Oldham, King & Spalding, and Former Counsel for Cyber Investigations, DOJ's National Security Division; John Hauser, Ernst & Young, and former FBI Special Agent specializing in cyber investigations.
Wednesday, November 18, 2015
I recently received the following call for papers via e-mail
Law and Ethics of Big Data
Co-Hosted and Sponsored by:
Virginia Tech Center for Business Intelligence Analytics
The Department of Business Law and Ethics, Kelley School of Business
The Wharton School
Washington & Lee Law School
April 8 & 9, 2016
Indiana University- Bloomington, IN.
Abstract Submission Deadline: January 17, 2016
We are pleased to announce the research colloquium, “Law and Ethics of Big Data,” at Indiana University-Bloomington, co-hosted by Professor Angie Raymond of Indiana University and Professor Janine Hiller of Virginia Tech.
Due to the success of last year’s event, the colloquium will be expanded and we seek broad participation from multiple disciplines; please consider submitting research that is ready for the discussion stage. Each paper will be given detailed constructive critique. We are targeting cross-discipline opportunities for colloquium participants, and the IU community has expressed interest in sharing in these dialogues. In that spirit, the Institute of Business Analytics plans to host a guest speaker on the morning of April 8.th Participants are highly encouraged to attend this free event.
Submissions: To be considered, please submit an abstract of 500-1000 words to Angie Raymond at email@example.com and/or Janine Hiller at firstname.lastname@example.org by January 17, 2016. Abstracts will be evaluated based upon the quality of the abstract and the topic’s fit with the theme of the colloquium and other presentations. Questions may be directed to Angie Raymond at email@example.com or Janine Hiller at firstname.lastname@example.org.
Authors will be informed of the decision by February 2, 2016. If accepted, the author agrees to submit a discussion paper by March 26, 2016. While papers need not be in finished form, drafts must contain enough information and structure to facilitate a robust discussion of the topic and paper thesis. Formatting will be either APA or Bluebook. In the case of papers with multiple authors, only one author may present at the colloquium.
TENTATIVE Colloquium Details:
- The colloquium will begin at noon on April 8th and conclude at the end of the day on April 9th
- Approximately 50 minutes is allotted for discussion of each paper presentation and discussion.
- The manuscripts will be posted in a password protected members-only forum online. Participants agree to read and be prepared to participate in discussions of all papers. Each author will be asked to lead discussion of one other submitted paper.
- A limited number of participants will be provided with lodging, and all participants will be provided meals during the colloquium. All participants are responsible for transportation to Indiana University Bloomington, IN.
Friday, September 18, 2015
For many businesses a good online reputation can significantly increase revenue.
Kashmir Hill, who I know from my time in NYC, has done some interesting reporting on businesses buying a good online reputation.
Earlier this week Kashmir posted the results of her undercover investigation into the problem of fake reviews, followers, and friends. When asking questions as a journalist, those selling online reviews insisted they only did real reviews on products they actually tested.
Kashmir then created a make-believe mobile karaoke business, Freakin’ Awesome Karaoke Express (a/k/a F.A.K.E), and found how easy it was to artificially inflate one's online reputation. She writes:
For $5, I could get 200 Facebook fans, or 6,000 Twitter followers, or I could get @SMExpertsBiz to tweet about the truck to the account’s 26,000 Twitter fans. A Lincoln could get me a Facebook review, a Google review, an Amazon review, or, less easily, a Yelp review.
All of this for a fake business that the reviewers had, obviously, never frequented. Some of the purchased fake reviews were surprisingly specific. In a time when many of us rely on online reviews, at least in part, this was a sobering story. It was somewhat encouraging, however, to see Yelp's recent efforts to combat fake reviews, albeit after a 2015 article by professors from Harvard Business School and Boston University showed roughly 16% of the Yelp reviews to be suspicious or fake.
Go read Kashmir's entire article, it will make you even more skeptical of reviews you read online and small businesses with tens of thousands of friends/followers.
Monday, August 17, 2015
Bad PowerPoint is ubiquitous. PowerPoint presentations are like writing: anyone can do them, but few people can do them well. And the number of people who think they do them well is much greater than the number of people who actually do.
As anyone who has attended a legal conference can attest, many of us don't have a clue about how to design effective PowerPoint presentations. The result is distracted audiences, confusing presentations, and ineffective teaching.
The fault is not in the PowerPoint tool. The fault is in how people use the tool. As Peter Norvig has said,
PowerPoint doesn’t kill meetings. People kill meetings. But using PowerPoint is like having a loaded AK-47 on the table: You can do very bad things with it.
As I mentioned in an earlier post, I spoke at this summer’s annual conference of the Center for Computer-Assisted Legal Instruction (CALI). My topic was How to Ruin a Presentation with PowerPoint. That presentation is now available on YouTube.
My presentation focuses on some of the most common mistakes people make in creating PowerPoint presentations and discusses how to improve your PowerPoint presentations. My comments aren’t limited to the Microsoft product. Almost everything I say is also applicable to other presentation software and most of what I say also applies to graphics created for videos.
My focus is on slide design and content, not on the intricacies of PowerPoint. I don’t try to teach you all the magic things PowerPoint can do or make you a power user of PowerPoint. In fact, many of the amazing things PowerPoint can do aren't particularly good for presentations. Instead, I point out the horrors of bad PowerPoint and give people some simple hints for making more effective presentations.
The hour-long presentation is here, if you want to watch it.
The CALI conference, as usual, included a number of excellent presentations on teaching with technology and innovations in legal education. You can see all of the videos here.
If you're an academic interested in technology, you really ought to attend one of the CALI annual conferences. There's a nice mix of law school technologists, librarians, and faculty. I always learn something new. Everyone I know who has gone has come away wanting to go again.
Monday, July 20, 2015
The people at New Media Rights, a non-profit affiliated with the California Western School of Law, have developed an interesting new legal app called The Fair Use App. It is designed to help filmmakers and video editors understand the fair use doctrine in U.S. copyright law. The app runs users through a series of questions about their use of others’ content and explains how their answers to each question affect the availability of the fair use doctrine. In effect, it’s a digital flowchart.
Fair use is a complicated, multi-factor analysis, so there is no final yes-no answer. But this app would be a good start for a filmmaker trying to understand the law.
The app’s not perfect. For example, at one point, it asks if the content being used is in the public domain, with no explanation of what that means. I doubt most lay people would know exactly what that means. And I’m not a copyright expert, so I can’t say whether it’s substantively correct on all points. But, assuming it is, it’s a good tool. Consulting with an experienced copyright lawyer would be better, but most of the people using this app wouldn’t consult a lawyer anyway because they can’t afford a lawyer. This app is better than their alternative—no help at all.
I think there should be more tools like this, aimed at people who can’t afford lawyers. For some time, I have been thinking about developing something similar to explain the Securities Act registration requirements and exemptions to startup entrepreneurs raising capital. Many of those people start raising funds without consulting a securities lawyer, and many of them inadvertently violate the law (one reason I think there should be an unconditional de minimis exemption for offerings below a certain amount). An app like this could at least warn them of the dangers.
Legislators and regulators often forget that there is a tier of regulated people out there who can’t afford counsel and won’t understand the regulations. Thanks to people like New Media Rights for doing something to serve those people.
It doesn't take long to run through the app. If you're interested, it's available here.