Thursday, July 13, 2017
Clinical Faculty Position
The Ohio State University, Michael E. Moritz College of Law
Description: The Moritz College of Law invites applications for the position of Assistant Clinical Professor of Law in its Entrepreneurial Business Law Clinic (EBLC), to start in January 2018. The EBLC professor has primary responsibility for directing and teaching the Entrepreneurial Business Law Clinic, which provides third-year law students with the opportunity to learn lawyering skills by representing entrepreneurs and their start-up businesses. EBLC students typically work with clients on all phases of starting a business, including client intake, entity formation, legal business planning, and contract drafting (including employment and independent contractor contracts). When relevant for the client, students also learn how to protect the intellectual property of a business. The EBLC’s clinical professor will have several areas of responsibility, including 1) supervising law students who represent clients under the Ohio Supreme Court's student practice rule 2) classroom teaching of lawyering skills, 3) engaging with the local and regional entrepreneurial community, and 4) participating in the life and governance of the College of Law.
We will consider all applicants; however, we prefer candidates with significant experience in representing entrepreneurs and early-stage companies. Candidates also should have an excellent academic record that demonstrates potential for clinical teaching and preparation of clinical educational materials. Candidates should be admitted to the Ohio Bar or eligible for admission in Ohio. The starting salary range will be $78,000 - $81,000 for a 12-month contract; full University fringe benefits are provided as well. The ideal starting date will be November 15, or as soon thereafter as possible. The successful candidate will begin teaching in January 2017.
Application Instructions: A resume, references, and cover letter should be submitted to Professor Paul Rose, Associate Dean for Academic Affairs, The Ohio State University Moritz College of Law, 55 West 12th Avenue, Columbus, Ohio 43210. Send e-mail applications to email@example.com. Applications will be reviewed immediately and will be accepted until the position is filled; preference will be given to applications received before September 1st.
The Ohio State University is committed to establishing a culturally and intellectually diverse environment, encouraging all members of our learning community to reach their full potential. The Ohio State University is an equal opportunity employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability status, or protected veteran status.
About Columbus: The Ohio State University campus is located in Columbus, the capital city of Ohio. Columbus is the center of a rapidly growing and diverse metropolitan area with a population of over 1.5 million. The area offers a wide range of very affordable housing, many cultural and recreational opportunities, excellent schools, and a strong economy based on government as well as service, transportation, and technology industries (see http://columbusregion.com/). Columbus and its many suburbs have consistently been rated as one of the Top U.S. places for quality of life. Additional information about the Columbus area is available at http://www.columbus.org.
Tuesday, July 11, 2017
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 2, 2017.
Hotel rooms are now available for pre-booking. The conference hotel is the Holiday Inn Conference Center in Carbondale. To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL. SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events. Other hotel options (without shuttle service) are listed on our website. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.
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.
The following law review articles relating to securities regulation are now available in paper format:
Vincenzo Bavoso, Filling the Accountability Gap in Structured Finance Transactions: The Case for a Broader Fiduciary Obligation, 23 Colum. J. Eur. L. 369 (2017).
Tyler Johnson, Note, Nobody's Stock Compares to Your Own: How Treasury Can Revive Stock Compensation in Cost-Sharing Agreements, 111 Nw. U. L. Rev. 793 (2017).
Thomas Murphy, Note, Playing to a New Crowd: How Congress Could Break the Startup Status Quo by Raising the Cap on the JOBS Act's Crowdfunding Exemption, 58 B.C. L. Rev. 775 (2017).
Eric A. Posner, What Legal Authority Does the Fed Need During a Financial Crisis?, 101 Minn. L. Rev. 1529-1578 (2017).
Cary Martin Shelby, Closing the Hedge Fund Loophole: The SEC as the Primary Regulator of Systemic Risk, 58 B.C. L. Rev. 639 (2017).
Urska Velikonja, Are the SEC's Administrative Law Judges Biased? An Empirical Investigation, 92 Wash. L. Rev. 315 (2017).
Monday, July 3, 2017
The following law review articles relating to securities regulation are now available in paper format:
Joanna Howard, Note, Reforming SEC ALJ Proceedings, 50 U. Mich. J.L. Reform 795 (2017).
Mike Koehler, Foreign Corrupt Practices Act Statistics, Theories, Policies, and Beyond, 65 Clev. St. L. Rev. 157 (2017).
Lisa Newman, Note, Are SEC Administrative Proceedings the New [Unconstitutional] Normal?, 36 Rev. Litig. 193 (2017).
Kevin M. Talbot, Comment, What Does "Green" Really Mean?: How Increased Transparency and Standardization Can Grow the Green Bond Market, 28 Vill. Envtl. L.J. 127 (2017).
Tuesday, June 27, 2017
The Supreme Court has greated certiorari in Cyan Inc. v. Beaver County Employees Retirement Fund. At issue in the case is whether the Securities Litigation Uniform Standards Act prohibits a state court from exercising jurisdiction over lawsuits that only allege violations of the Securities Act of 1933. As my recent article discuses, the Roberts Court's interest in securities litigation procedure runs deep.
In California Public Employees’ Retirement System v. ANZ Securities, Inc., the Supreme Court of the United States has held that the three year limitation period applicable to Securities Act Section 11 claims cannot be extended or tolled based upon the language of Section 13. Justice Kennedy wrote the opinion for the Court in a 5 to 4 decision.
As with all securities regulation cases involving the Roberts Court, Chief Justice was in the majority. The case continues the Court's recent focus on procedural issues in securities regulation cases. For commentary on the Roberts Court and securities law, see my recent article here.
Tuesday, June 20, 2017
Stanislav Dolgopolov has posted Securities Fraud Embedded in the Market Structure Crisis: High-Frequency Traders as Primary Violators on SSRN with the following abstract:
This Article analyzes approaches to attaching liability for securities fraud to high-frequency traders as primary violators in connection with the current market structure crisis. One of the manifestations of this crisis pertains to inadequate disclosure of advanced functionalities offered by trading venues, as exemplified by the order type controversy. The Article’s analysis is applied to secret arrangements between trading venues and preferred traders, glitches and gaming, and the reach of the doctrine of market manipulation, and several relevant issues are also viewed from the standpoint of the integrity of the trading process. The Article concludes by arguing for a balanced approach to catching certain problematic practices of high-frequency traders as securities fraud.
The following law review articles relating to securities regulation are now available in paper format:
Ilya Beylin, Taxing Fictive Orders: How an Information-Forcing Tax Can Reduce Manipulation and Distortion in Financial Product Markets, 85 U. Cin. L. Rev. 91 (2017).
Randall Bryer, Comment, The SEC's Potential Appointments Clause Defect and How It Could Impact the Administrative State, 19 U. Pa. J. Const. L. 521 (2016).
Elisabeth de Fontenay, The Deregulation of Private Capital and the Decline of the Public Company, 68 Hastings L.J. 445 (2017).
Luke I. Landers, Comment, To Be a "Whistleblower," or Not to Be a "Whistleblower?" that is the Question--Whether 'Tis Nobler in the Mind of the Courts to Suffer for Reporting Wrongdoing to the SEC or Employers Internally: Examining the Recent Circuit Split Regarding the Definition of a Whistleblower under Dodd-Frank, 10 J. Bus. Entrepreneurship & L. 79 (2016).
Alison M. Zeitlin, Note, Improving Protections for Whistleblowers: Why Congressional and Agency Intent Helped Provide the Second Circuit with the Correct Answer of Encouraging Reporting of Securities Violations, 105 Ky. L.J. 393 (2016-2017).
Thursday, June 15, 2017
Matthew C. Turk has posted Regulation by Settlement on SSRN with the following abstract:
This article explores a recent development at the intersection of administrative law and financial regulation: the explosion in enforcement actions brought by federal agencies against financial institutions, and the exclusive resolution of those cases via settlement agreements that preclude meaningful judicial review. It argues that those practices have given rise to a distinct new form of policymaking, “regulation by settlement,” which has significant implications for both areas of the law.
Regulation by settlement has two defining features. First, by pursuing settlements that target certain areas of the financial system on a comprehensive basis, agencies are able to leverage those agreements in a manner that effectively establishes novel legal standards of general applicability. Settlements are now a tool for setting policy in financial regulation. Second, the procedural posture of those settlements allows agencies to engage in a uniquely freewheeling style of policymaking, which sidesteps nearly all of the constraints that administrative law applies to more conventional forms of agency action.
The article closes by considering normative issues raised by regulation by settlement, including questions concerning its consistency with rule of law values and efficiency from a cost-benefit perspective. It also reviews potential reforms, such as subjecting settlements to greater judicial scrutiny or presidential oversight. The broader contribution to the literature is to show how a richer understanding of the regulatory process can be gained by analyzing its public law and business law aspects in parallel.
Wednesday, June 14, 2017
Taylor Essner, Note, Insider Trading in Flux: Explaining the Second Circuit's Error in United States v. Newman and the Supreme Court's Correction of that Error in United States v. Salman, 61 St. Louis U. L.J. 117 (2016).
Norman Menachem Feder, Market in the Remaking: Over-the-Counter Derivatives in a New Age, 11 Va. L. & Bus. Rev. 309 (2017).
Christopher B. Grady, Note, Finding the Pearl in the Oyster: Supercharging IPOs through Tax Receivable Agreements, 111 Nw. U. L. Rev. 483 (2017).
Marc I. Steinberg & Forrest C. Roberts, Laxity at the Gates: the SEC's Neglect to Enforce Control Person Liability, 11 Va. L. & Bus. Rev. 201 (2017).
Steven L. Schwarcz, Changing Law to Address Changing Markets: A Consequence-Based Inquiry, 80 Law & Contemp. Probs. 163 (2017).
Gregory Scopino, Expanding the Reach of the Commodity Exchange Act's Antitrust Considerations, 45 Hofstra L. Rev. 573 (2016).
Tuesday, June 6, 2017
Sarah Baumgartel, Privileging Professional Insider Trading, 51 Ga. L. Rev. 71 (2016).
George S. Georgiev, Too Big to Disclose: Firm Size and Materiality Blindspots in Securities Regulation, 64 UCLA L. Rev. 602 (2017).
Stacey E. Harlow, Comment, Using "SOX" to Prevent Federal Courts' Cold Feet about Dodd-Frank's Whistleblower Provisions, 24 Geo. Mason L. Rev. 315 (2016).
Michael C. Macchiarola & Daniel Prezioso, Expanding Alternatives: From Structured Notes to Structured Funds, 19 U. Pa. J. Bus. L. 405 (2017).
Marc I. Steinberg & Abel Ramirez, Jr., The SEC's Neglected Weapon: A Proposed Amendment to Section 17(a)(3) and the Application of Negligent Insider Trading, 19 U. Pa. J. Bus. L. 239 (2017).
Harris M. Watkins, Note, Defining and Verifying Accredited Investors: Effect of Potential SEC Changes on North Carolina's Crowdfunding Statute, the NC PACES Act, 21 N.C. Bank. Inst. 469 (2017).
The Enduring Legacy of Henry G. Manne, Articles by Bernard S. Sharfman, John P. Anderson, Edward Peter Stringham, Brian F. Mannix, M. Todd Henderson & Houman B. Shadab. 12 J.L. Econ. & Pol'y 251-371 (2016).
Monday, June 5, 2017
The Supreme Court of the United States has handed down a unanimous opinion authored by Justice Sonia Sotomayor in SEC v. Kokesh. At issue was the statute of limitations in disgorgement actions by the SEC. The Court held "Because SEC disgorgement operates as a penalty . . . , any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued."
Notably, this case continues the trends by the Roberts Court of limited polarization and focusing on procedural issues in securities regulation matters. These trends were discussed in my recent article, The Supreme Court as Museum Curator: Securities Regulation and the Roberts Court.
Friday, June 2, 2017
I have posted The Supreme Court as Museum Curator: Securities Regulation and the Roberts Court on SSRN with the following abstract:
The number of opinions relating to securities regulation that have been handed down by the Supreme Court since Chief Justice Roberts began his tenure on September 29, 2005 is substantial. The Roberts Court has taken approximately two securities regulation cases per term, which is twice the number that the Rehnquist Court took. Moreover, the number of cases granted certiorari continues to shrink, which means that securities law cases represent an even larger portion of the Court’s docket.
The roughly twenty-one opinions authored by the Court might suggest a deep and abiding love of securities regulation issues. But, as this symposium article explores, the opinions themselves tell a different story with the Court serving in the role of a museum curator maintaining historical relics from bygone eras, doing minor restoration work as needed, limiting access to these relics through statutory interpretation, and occasionally offering an exhibition involving issues at the periphery of securities law. The implications of this approach include the death of the lower courts laboratories approach in regard to creating securities law, especially in regard to the Second Circuit, which was previously the “Mother Court” in securities regulation; the entrenchment of good and bad Supreme Court precedent; and a clear message that the Roberts Court is not pro-business in the securities regulation realm because the Court is not pushing any market regulation agenda. While the future remains open, this role for the Court is well-entrenched, and the narrative of the Roberts Court in regard to securities law is well-developed.
Stephen J. Choi and Adam C. Pritchard have posted Lead Plaintiffs and Their Lawyers: Mission Accomplished, or More to Be Done? on SSRN with the following abstract:
This chapter, written for the Research Handbook on Shareholder Litigation, surveys empirical work studying the lead plaintiff provision of the Private Securities Litigation Reform Act (PSLRA). That work finds that the lead plaintiff provision has encouraged institutional investors to participate in securities class actions, and that those institutional investors have negotiated lower attorneys' fees. Those benefits from the lead plaintiff provision are undercut, however, by political contributions made by plaintiffs' lawyers. We suggest additional reforms to promote transparency and competition among lawyers for lead plaintiffs. We also suggest reforms to the lead plaintiff provision intended to enhance the screening effect of the PSLRA.
Frank Partnoy has posted What's (Still) Wrong with Credit Ratings on SSRN with the following abstract:
Scholars and regulators generally agree that credit rating agency failures were at the center of the recent financial crisis. Congress responded to these failures with reforms in the 2010 Dodd-Frank Act. This article demonstrates that those reforms have failed. Instead, regulators have thwarted Congress’s intent at every turn. As a result, the major credit rating agencies continue to be hugely profitable, yet generate little or no informational value. The fundamental problems that led to the financial crisis – overreliance on credit ratings, a lack of oversight and accountability, and primitive methodologies – remain as significant as they were before the financial crisis. This article addresses each of these problems and proposes several solutions.
First, although Congress attempted to remove credit rating agency “regulatory licenses,” the references to ratings in various statutes and rules, regulatory reliance on ratings remains pervasive. I show that regulated institutions continue to rely mechanistically on ratings, and I demonstrate that regulations continue to reference ratings, notwithstanding the Congressional mandate to remove references. I suggest several paths to reduce reliance.
Second, although Congress authorized new oversight measures, including an Office of Credit Ratings, that oversight has been ineffective. Annual investigations have uncovered numerous failures, many in the same mortgage-related areas that precipitated the financial crisis, but regulators have imposed minimal discipline on violators. Moreover, because regulators refuse to identify particular rating agencies in OCR reports, wrongdoers do not suffer reputational costs. I propose reforms to the OCR that would enhance its independence and sharpen the impact of its investigations.
Third, although Congress authorized new accountability measures, particularly removing rating agencies’ exemptions from Section 11 liability and Regulation FD, the Securities and Exchange Commission has gutted both of those provisions. The SEC performed an end-run around Dodd-Frank’s explicit requirements, reversing the express will of Congress. Litigation has not been effective as an accountability measure, either, in part because rating agencies continue to assert the dubious argument that ratings are protected speech. I argue that the SEC should reverse course and implement Congress’s intent, including encouraging private litigation.
Finally, given the ongoing problems in these three areas, it is no surprise that credit rating agency methodologies remain unreliable. I conclude by illustrating the weakness of current methodologies for corporate bonds, with a particular focus on the treatment of diversification and investment holding companies. I argue that neither regulators nor investors should rely on such crude and uninformative methodologies.
This article’s overarching recommendation is straightforward: both regulators and investors should reduce reliance on credit ratings, and regulators should implement Congress’s will with respect to rating agency oversight and accountability. Credit rating agencies are a cautionary example of regulatory stickiness: reliance on ratings has proven difficult to undo. More generally, the stickiness of regulatory licenses is a warning for policymakers who are considering deferring to private entities for regulatory purposes in other areas.