Business Law Prof Blog

Call for Papers - American Business Law Journal

Dear BLPB Readers:

 

"The American Business Law Journal (ABLJ) is currently accepting submissions for Volume 61 (2024).   The ABLJ is a faculty-edited, triple blind, peer-reviewed journal, continuously published since 1963. The journal is ranked #4 in the 2022 Washington & Lee Law Journal Rankings for journals in Business, Corporations and Securities Law, and #2 among all refereed journals. It is ranked as an “A” journal by the Australian Business Deans Council. Our mission is to publish only top quality law review articles that make a scholarly contribution to all areas of law that impact business theory and practice, either U.S. or comparative in scope. We search for those articles that articulate a novel research question and make a meaningful contribution directly relevant to scholars and practitioners of business law. The blind peer-review process means legal scholars well-versed in the relevant specialty area have determined selected articles are original, thorough, important, and timely, and peer editors provide expert feedback and support throughout the editorial process.  In particular, our editors are looking for articles that explore contemporary legal topics with direct impact on business and commerce, including: --equality and discrimination in the workplace of the future --speech in the workplace --the future of the administrative state  --technology and privacy --healthcare of the future and bioethics  --the Metaverse --insolvency and SMEs --alternative currencies  --the impact of AI on work and healthcare    The ABLJ is published quarterly. Articles should be between 16,000 and 20,000 words (inclusive of footnotes). We do not accept notes (student articles), book reviews, or essays.    Authors may submit their manuscripts and CVs/resumes through Scholastica or directly via email to Robert Landry, Managing Editor at [email protected]. We strongly encourage ALSB members to submit their articles outside of the normal law review submission time periods to allow more time for our review to take place and to receive feedback from peer editors. That is, we encourage you to submit from October through January, and April through July.    For more information on submissions, please review Author Guidelines information on the ABLJ Wiley website."

Book and Upcoming Symposium: Investment Crowdfunding

Friend-of-the-BLPB Andrew Schwartz has written his first book on a topic about which we both enjoy thinking and researching and writing: investment crowdfunding.  We have been cohabiting this corporate finance space for more than ten years now.  All credit is due to Andrew for laying down these words—his hard-fought wisdom—in a book.  He captures so much about the law and regulation of crowdfunding in the investment context in this volume.  I had the opportunity to offer some feedback to Andrew during the drafting process.   I recommend having the book on your bookshelves.

Colorado Law is hosting an event on its campus in Boulder on September 8, The Future of Startup Finance: A Symposium on "Investment Crowdfunding", honoring the release of the book, which is entitled Investment Crowdfunding.  If you are in the neighborhood, you’ll want to stop by.  Among the invited speakers are many friends from the corporate finance law academy, as well as former SEC Commissioner Allison Herren Lee.

Congrats to Andrew!

Again with the corporate scienter

I’ve previously blogged about difficulties that courts have when determining the scienter of a “corporation” in Section 10(b) cases.  The summary judgment decision Roofer’s Pension Fund v. Papa, 2023 WL 5287783 (D.N.J. Aug. 17, 2023), is another example of the genre.

There, the defendants were alleged to have concealed Perrigo’s collusion with other generic drug makers.  By the time the case got to summary judgment, however, the court concluded that the only individual defendants and named speakers had not acted with scienter.  The plaintiffs maintained that scienter could be shown against the corporate entity by virtue of the knowledge of two non-speaking executives, who were alleged to have been complicit in the collusive scheme.  The question, then, was the legal standard the court would use to determine corporate scienter.  I.e., would the non-speaking executives’ scienter be imputed to the corporate entity?

At that point, the court identified a purported difference among circuit approaches, which – the court lamented – was particularly difficult to examine in the summary judgment context because most of the prior decisions were reached on a motion to dismiss:

The narrow approach, applicable in the Fifth and Eleventh Circuits, requires a plaintiff to identify a corporate official responsible for the challenged statement who also possessed scienter…. Judge Walls rejected this narrow approach, finding it would allow corporations to escape “liability through tacit encouragement and willful ignorance,” and because it “fails to address instances where widespread corporate fraud cannot be connected to individual defendants at the pleading stage.”….

The intermediate approach taken by the Sixth Circuit looks to the state(s) of minds of certain employees to determine whether to impute scienter to the corporation. …Under this approach, courts may look to:

1. The individual agent who uttered or issued the misrepresentation;
2. Any individual agent who authorized, requested, commanded, furnished information for, prepared (including suggesting or contributing language for inclusion therein or omission therefrom), reviewed, or approved the statement in which the misrepresentation was made before its utterance or issuance;
3. Any high managerial agent or member of the board of directors who ratified, recklessly disregarded, or tolerated the misrepresentation after its utterance or issuance.

The broad approach, applicable in the Second and Seventh Circuits, allows a plaintiff to establish scienter against a corporation without specifically identifying an individual in a pleading. … Under this approach, scienter can be imputed to a corporation in two ways: (1) from an individual defendant, director, or officer who either made the challenged statement, or who was “involved in the dissemination of the fraud” even if not the speaker; or (2) from the statement itself in those “exceedingly rare instances” where the statement is “so dramatic that collective corporate scienter may be inferred.” …If a plaintiff seeks to impute scienter to a corporation from a person who was “not the actual speaker” of the challenged statement, the plaintiff must establish “connective tissue between those employees and the alleged misstatements.”…

To infer scienter from the statement itself, the statement must be “so dramatic” or extreme to permit an inference that knowledgeable corporate officials approved the statement. In Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702 (7th Cir. 2008), the Seventh Circuit gave an example of such a statement:

        Suppose General Motors announced that it had sold one million SUVs in 2006, and the actual number was zero. There would be a strong inference of corporate                   scienter, since so dramatic an announcement would have been approved by corporate officials sufficiently knowledgeable about the company to know that the                    announcement was false.

…Setting aside these varying approaches, “at the summary judgment stage, ‘[t]o prove liability against a corporation, ... a plaintiff must prove that an agent of the corporation committed a culpable act with the requisite scienter, and that the act (and accompanying mental state) are attributable to the corporation.’ ”

Plaintiffs seem to believe that Boothe's and Wesolowski's state of minds can be imputed to Perrigo, but they offer no explanation on how. They do not show any connection between Boothe's and Wesolowski's alleged misdeeds and their knowledge of the price-fixing scheme to the challenged statements at issue. Plaintiffs have left this Court clueless because they have not shown, for example, whether Boothe or Wesolowski furnished any information to Papa and Brown, or drafted, reviewed, or approved the challenged statements. … It is truly unfortunate that Plaintiffs have not adequately addressed this theory at this late stage of the case. Nonetheless, as an exercise of caution, and acutely aware that further delay will result, the Court will require additional briefing on the corporate scienter doctrine and the evidence (if any) Plaintiffs rely on to support its corporate scienter argument.

Now, first, the issue of procedural posture is something I highlighted in one of my earlier posts on the subject.  Because the question of corporate scienter comes up a lot in the motion to dismiss context, it’s often hard to tell from the rhetoric what courts are treating as the definition of corporate scienter – what does it mean, substantively, for a corporation to act with intent – versus what kind of facts are sufficient to show it, which, presumably, will vary to some extent on a motion to dismiss vs summary judgment (or trial).

Second, the court faults the plaintiffs for failing to show how these two particular executives may have been involved with any of the allegedly false statements.  And I agree with the court that under prevailing standards in all circuits, if you want to show that a non-speaking individual’s state of mind should be imputed to the corporation, you need to show some kind of connection that individual had to the allegedly false statement. 

My problem with the court’s analysis (and, to be fair, I think it’s taken from earlier decisions) is that it fails to recognize that all of these approaches are the same.  Or at the very least, we do not have enough information about them to determine where they differ.

Substantively, every single one of these approaches requires that there be someone in the corporation who was in some sense “responsible” for the false statement, and who acted with scienter.  The difference between the Second/Seventh Circuit and the others has to do with evidence.  Namely, the Second and Seventh Circuits have explicitly allowed for the possibility that under some circumstances, the plaintiff may be able to create an inference that there was such a person without in fact naming them.  I.e., if a dramatically false statement was approved by the board, you can infer that at least someone on the board knew the statement was false, because there’s no way that kind of information wouldn’t have made it to the board, even if you don’t know which board member(s) it was.

It's the same substantive standard for defining what it means for a corporation to act intentionally as prevails in the other circuits – there was a human being who had scienter and was responsible for the statement – it’s just, the Second and Seventh Circuits have been explicit that the type of proof they require does not necessarily include naming the human.  Of course, since these were motions to dismiss, one might say you need a different proof at the summary judgment stage – but the facts you’re trying to prove remain the same.

 

Where the circuits might differ has to do with what it means to be “responsible” for a false statement.  Almost certainly, approval by a board level official counts.  Almost certainly, drafting by a high level official, but leaving their name off of it, counts.  But the circuits get very squirrely about what other kinds of internal actions would be sufficient, and whether the responsible person has to have a certain level of authority within the entity.  That’s a potential substantive difference as to what it means for a corporation to act with intent, but it’s not reflected in the court’s opinion or the quotes the court uses.

Call for Papers: Second Annual Junior Faculty Business and Financial Law Workshop

INSTITUTE FOR LAW & ECONOMICS
UNIVERSITY OF PENNSYLVANIA CAREY LAW SCHOOL

SECOND ANNUAL JUNIOR FACULTY BUSINESS AND FINANCIAL LAW WORKSHOP

CALL FOR PAPERS

The Institute for Law & Economics (ILE) at the University of Pennsylvania Carey Law School is pleased to announce its second annual Junior Faculty Business and Financial Law Workshop. The Workshop will be held in person on December 7, 2023 at Penn Carey Law.

The Workshop supports and recognizes the work of untenured legal scholars in the business and financial fields, including accounting, banking, bankruptcy, corporations, economics, finance, tax and securities, while promoting interactions with such scholars, selected tenured faculty and practitioners. By providing a forum for the exchange of creative ideas in these areas, ILE also aims to encourage new and innovative scholarship in the business and financial arena.

Approximately 6-8 papers will be chosen from those submitted for presentation at the Workshop. One or more senior scholars and practitioners will comment on each paper, followed by a general discussion of each paper among all participants. The Workshop audience will include invited untenured scholars, faculty from Penn Carey Law, The Wharton School, and other institutions, practitioners, and invited guests.

We welcome submissions from scholars within the U.S. and abroad who hold a full-time tenure-track academic appointment but have not yet received tenure as of the submission date. Scholars who do not yet hold a full-time tenure-track academic appointment such as PhD or doctoral candidates, or visiting or academic fellows without a full-time tenure-track academic appointment are not eligible for consideration. Co-authored submissions are welcome so long as each of the authors individually meet the submission criteria. Work that is published or is expected to be published by the date of the Workshop is not eligible for submission. However, submissions may include work that has been accepted for publication so long as such work is still capable of incorporating substantive edits. ILE will cover reasonable travel, hotel, and meal expenses of all presenters.

Those interested in presenting a paper at the Workshop should submit by e-mail on or before September 8, 2023. Submissions may be in the form of an abstract, summary or draft. Please submit using the following format for your file name – author’s last name.first name.title. Direct your submission, along with any inquiries related to the Workshop, to:

Professor Lisa M. Fairfax
University of Pennsylvania Carey law School
3501 Sansom Street
Philadelphia, PA 19104-6204
[email protected]

Submissions will be selected after review by members of ILE. Authors of accepted submissions will be notified by October 6, 2023. Please feel free to share this Call for Papers with any colleagues who may be interested.

Nebraska Law Seeks Tenure-Track Faculty in Multiple Business Law Areas

From Danielle C. Jefferis at Nebraska Law through the Association of American Law Schools portal:

Nebraska Law is seeking entry-level and lateral candidates for tenure-track positions in Contracts and Business Organizations. Other courses that would fill curricular needs include but are not limited to Antitrust, Trademark/Unfair Competition, Corporate Finance, Transactional Drafting, Wills and Trusts, Accounting for Lawyers, Mediation, Negotiation, Client Counseling, Remedies, Natural Resources, Environmental Law, and Health Law. The posting is here: employment.unl.edu/postings/87281. 

I am on the Appointments Committee and happy to answer any questions from those interested. You may also reach out to the committee chair, Anthony Schutz, at [email protected].

Mercer Law Seeks Tenure-Track Commercial Law (& Other) Faculty

The Mercer University School of Law invites applications from entry-level and pre-tenure lateral candidates (Assistant and Associate rank) for three tenure-track faculty positions to begin in the Fall of 2024. We welcome applications from candidates in all subject matter areas, especially commercial law and legal writing. We also welcome candidates who are truly entry-level, with no prior law teaching experience, but who show significant promise for excellence in teaching and scholarship.   

Founded in 1873, Mercer University School of Law has a long tradition of producing lawyers who are ready to practice and committed to service. The School has earned a reputation as an excellent provider of legal education with an intense focus on student and faculty interaction. With an enrollment of about 375 students, Mercer Law School is one of 12 schools and colleges of Mercer University, which has been listed among the top institutions of higher education in the nation. The School of Law is nationally recognized for its exceptional programs in legal writing, advocacy (moot court and mock trial), public service, and professionalism and ethics. 

The School of Law is located in Macon, Georgia, a city of approximately 156,000. Macon is known for its strong musical heritage (e.g., Otis Redding, Little Richard, the Allman Brothers), its vibrant arts community, its recreational offerings (e.g., the Ocmulgee Mounds National Historic Park), and its affordable cost of living. Located 85 miles from Atlanta, Macon offers the livability of a smaller city with ready access to large city amenities. 

Mercer University recognizes the power of a diverse community and encourages applications from individuals with varied experiences, perspectives, and backgrounds. Mercer University is an AA/EEO/Veteran/ADA employer.  

Applicants should have a J.D. degree from an accredited university/college, a commitment to excellence in teaching, and demonstrated potential for excellence in research and scholarship. Interested applicants will need to complete the brief online application at merceruniversity.wd1.myworkdayjobs.com/en-US/external/... and attach a current CV with the names and contact information for three references. For information contact Professor Pam Wilkins, Chair, Appointments Committee, Mercer University School of Law, [email protected]. 

Tenure-Track Faculty Searches at Santa Clara Law - Focus on IP and Technology

Santa Clara University School of Law welcomes applications for three tenure-track positions to begin in the 2024-2025 academic year. Ideal candidates will be creative and committed scholars, exemplary teachers, and engaged colleagues, eager to serve our students and our institution alike. The School of Law has a longstanding commitment to the diversity of its faculty and its student body.  Of the three positions, we seek two who have expertise in the area of Intellectual Property or technology.  In filling these positions, we prefer candidates with experience and demonstrated abilities for teaching and successfully mentoring students from groups underrepresented in the legal profession, first generation students, and those coming from economically disadvantaged backgrounds.  Whether the applicant has taught for a short time or is a tenured professor, candidates should be prepared to teach at least one California Bar tested course as well as a balance of upper-level elective courses. Candidates also should have a well thought-out research agenda and a demonstrated commitment to producing excellent legal scholarship. Applicants should send a C.V., statement of interest, and representative publications to the Santa Clara University HR Portal HERE.      

Alabama Law Seeks New Faculty

The University of Alabama School of Law seeks to fill up to five tenure-track positions for the 2024-25 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. Qualified applicants in any of the following areas will be considered: civil procedure, criminal law, torts, property, environmental, business (all sub-fields), antitrust, healthcare, intellectual property, legal ethics, evidence, election law, employment/labor, state & local law, and law & economics. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law. These positions will remain open until filled. Questions should be directed to Benjamin McMichael, Chair of the Faculty Appointments Committee ([email protected]). Interested candidates can apply online at careers.ua.edu/jobs/search/law.

Visit UA's employment website at careers.ua.edu/home for more information. The University of Alabama is an equal-opportunity employer (EOE), including an EOE of protected vets and individuals with disabilities.

Deadline Extension - Emory Conference on Teaching Transactional Law/Skills

Emory's Center for Transactional Law and Practice has extended the deadline for proposal submissions for the 8th Biennial Conference on the Teaching of Transactional Law and Skills, scheduled for October 6-7, 2023.  Quoting from the email message from Sue Payne, Katherine Koops, and Kelli Pittman:

We know that mid-August is a busy time.  Therefore, by popular demand, we are extending the deadline for submitting a proposal through August 31st.  Submit your proposal here.

We are also extending the deadline for you to nominate a colleague or yourself for the Tina L. Stark Award for Teaching Excellence through August 31st.  Submit your nominations here.

I know many of you have valuable things to offer at this conference, which always is among my favorites.  I have picked up wonderful ideas for my teaching--things I do not hear in other conferences. I hope you will submit a proposal and attend.

Of all the cases to allow generic warnings to insulate defendants from securities fraud liability, this is the latest

The PSLRA will allow defendants to escape liability for false projections if those projections are accompanied by “meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement.” 15 U.S.C. § 78u-5(c).  Additionally, even outside the context of projection statements, warnings and disclaimers may be sufficient to render otherwise-misleading statements not “false” for securities law purposes.  See Omnicare v. Laborers District Council Construction Industry Pension Fund, 575 U.S. 175 (2015).  Yet, as I’ve previously blogged, courts often treat fairly meaningless verbiage as though it conveyed critical information.

The most recent example is Steamship Trade v. Olo, 2023 WL 4744197 (SDNY July 25, 2023).  Olo is a publicly traded company that provides software to restaurants. One of those was the Subway chain. At a time when Olo allegedly knew (but did not disclose) that Subway intended to terminate its contract, Olo’s officers made a bunch of projections of future growth, to wit:

Throughout 2022, we believe the main drivers of revenue growth will be ARPU expansion as well as increasing the number of active locations on the platform….

And for 2022, again, we're targeting a similar number of net adds as we achieved in 2021. …

[W]hen we look at all those different avenues, more locations, more transactions per location and more revenue per transaction, there's just a lot of levers that we can pull in order to maintain [a 30%] growth rate.

The court held that there were no misleading omissions because Olo’s projections were accompanied by a statement that:

there can be no assurance that we will be able to retain these customers or acquire new customers, deploy additional modules to these customers, or continue to increase the volume of transactions on our platform.

This is what the court calls meaningful. I defy anyone to explain what this could possibly communicate to an investing audience that they would not already know.  Of course clients might leave; would investors have otherwise assumed they were locked in a cage in Olo’s basement?  What possible work could these “warnings” have done that would have educated the listener?

Anyway, as I said before, it strikes me that courts are awfully skeptical of “generic” statements when plaintiffs use them for the basis of a claim (made clear most recently in the Goldman case, which I blogged about last week) but very quick to treat them as conveying meaningful information when defendants use them to fend off one.

Business and Transactional Law Faculty Sought at Baylor Law!

Baylor Law is looking to hire for multiple tenure-track positions and for someone to lead our Academic Success Program this year.

Baylor Law School seeks candidates for three tenure-track positions to fill several curricular needs. We seek highly credentialed individuals with practical experience who are interested in teaching courses in Constitutional Law, Criminal Law and Procedure, Business and Transactional Law, and Intellectual Property (Patent). 

We also seek a motivated and experienced candidate with excellent teaching and collaborative skills to lead our Academic Success Program. The ideal candidate will be a creative, organized, and compassionate leader who is eager to engage extensively with students from matriculation through their admission into the bar. This position is a full-time faculty, non-tenure-track lecturer position. The successful candidate should be available to start ideally no later than January 1, 2024, but the start date is negotiable.

More information about the positions is available here: www.baylor.edu/law/facultystaff/index.php?id=980341

Baylor Law has a small student body and a collegial faculty deeply devoted to the mission of the Law School. Our primary focus is to train students to become practice-ready upon graduation. Please direct questions about our open positions to [email protected] or [email protected].

Tulane is hiring!

Tulane University Law School invites applications from entry-level and early tenure track lateral candidates for one or more tenure-track faculty positions.  We welcome applications from candidates with teaching and research interests in all topics, but we are particularly interested in candidates who focus on commercial law, torts, civil/comparative law, race and the law, environmental law, constitutional law, and tax law.  Candidates who are not participating in the AALS faculty recruitment process should apply through Interfolio, at this link (https://apply.interfolio.com/127945).  Please direct any questions about this position to Adam Feibelman at [email protected]. To learn more about the law school, visit our website at https://law.tulane.edu/. Tulane University is committed to creating a community and culture that foster a sense of belonging for all. We are a recognized employer and educator valuing AA/EEO, Protected Veterans, and Individuals with Disabilities. We encourage all qualified candidates to apply. We are intentionally seeking candidates who are committed to fostering equity, diversity, and inclusion in support of Tulane’s strategic initiatives. 

Wash. U. Law Faculty Search

WASHINGTON UNIVERSITY IN ST. LOUIS HIRING ANNOUNCEMENT

August 17, 2023

Washington University School of Law invites applications from entry-level or lateral candidates for tenure-track and tenured positions, to begin in the fall of 2024. We are searching for entry level, tenure-track faculty, particularly in private law, as well as tenure-track or lateral appointments in family law, health law, intellectual property and/or technology and the law, and empirical legal analysis.

Candidates must have at a minimum a JD or, in certain cases, the equivalent in a related field. Entry level candidates should have strong scholarly potential and a commitment to excellence in teaching. Lateral candidates should have demonstrated scholarly excellence and evidence of teaching success. Strong candidates will demonstrate the ability to create inclusive classrooms and environments in which students can learn and thrive. Duties for all faculty will include engaging in research and producing scholarship, teaching assigned courses, advising students, and participating in law school and university governance and service. The committee will be reviewing entry-level applications submitted through the AALS Faculty Appointments Register, but we also invite submissions outside of the FAR process.

Candidates who are not applying through the FAR process may submit applications directly to Professor Adrienne Davis, Chair of the Appointments Committee, Washington University School of Law, by emailing them to [email protected] (please use only that e-mail address rather than emailing the chair or committee members materials directly). Although there is no deadline, lateral candidates and entry-level candidates not participating in the FAR process will have the best chance of full consideration if they are received as early as possible in September. Application materials should include a cover letter, a resume that includes at least three references, and a job-talk paper if available.

Washington University in St. Louis is committed to the principles and practices of equal employment opportunity. It is the University's policy to recruit, hire, train, and promote without regard to race, color, age, religion, sex, sexual orientation, gender identity or expression, national origin, protected veteran status, disability, or genetic information. Our Chancellor's statement on diversity can be found here.

Hofstra Law Faculty Search

The Maurice A. Deane School of Law at Hofstra University is pleased to invite applications for up to three entry-level or junior lateral tenure-track faculty members, to begin in Fall 2024. We seek candidates with a strong record or promise of significant scholarship and a demonstrated commitment to excellence in teaching who will bring diverse experiences and perspectives to enrich our law school community. We are seeking candidates across all subject areas, with particular interest in candidates who will teach courses in the following areas: Civil Procedure; Constitutional Law; Contracts; Criminal Law; Property; and Torts. We are also interested in candidates with research and teaching interests in Environmental Law and in Technology and the Law.

The Associate Professor of Law will be responsible for, but not limited to, the following:

• Teaching substantive courses in agreed-upon doctrinal areas
• Research, publishing and contributing to the national and local legal scholarly community
• Supporting efforts to create a diverse, equitable, and inclusive environment for faculty, staff, and students.

MINIMUM QUALIFICATIONS:

• Juris Doctor degree

APPLICATION INSTRUCTIONS:

Applications should be submitted electronically at https://hofstra.peopleadmin.com and include the following: a letter of application, CV, scholarly agenda, proposed job talk topic or paper, and the names and contact information for three professional references. Successful candidates will be required to provide official academic transcripts and professional letters of recommendation.

Questions may be directed to Daniel Greenwood, Chair of the Faculty Appointments Committee at [email protected]. 

Review of applicants will begin immediately and continue until the positions are filled. Due to volume of applications, only candidates selected for an interview will be contacted to participate in additional application processes as specific needs arise.

FSU Law Seeking Faculty & Public Law Chair

Florida State University College of Law invites entry-level and lateral candidates to apply for tenure-track and tenured positions to begin August 2024. Candidates in all academic areas are encouraged to apply, although business law subjects will be hiring priorities.

FSU Law also invites applications and nominations for the Tobias Simon Chair in Public Law. The Chair was established in honor of Tobias Simon, a well-known civil rights lawyer and late professor at the College of Law. Candidates must hold a J.D., Ph.D., or equivalent degree, have significant experience (5 years minimum) in teaching and/or practice, and be qualified for appointment as a tenured, full professor. Candidates must have a distinguished publication record in a public law field, including, but not limited to, civil rights and civil liberties, international law, and public policy.

If interested in either/both opportunities, please send a letter of application and curriculum vitae to:

Professor Wayne Logan, Chair
Appointments Committee
Florida State University College of Law
Tallahassee, FL 32306-1601
[email protected]

FSU is an Equal Opportunity/Access/Affirmative Action/Pro Disabled & Veteran Employer.

FSU's Equal Opportunity Statement can be viewed at: www.hr.fsu.edu/PDF/Publications/diversity/...

Positions Teaching Law in Business Schools

There are quite a number of law schools hiring in the business law area this year, but if you are on the market, do not forget about business schools. Below are a few recent postings:

Baylor University (Chair in Accounting & Business Law)

Fairfield University

Indiana University

Middle Tennessee State University

University of Pennsylvania (Wharton)

University of St. Thomas (St. Paul, MN)

And here are my thoughts (from a decade ago!) on the differences I found moving from law school teaching to business school teaching. 

 

The LLC As a Corporation -- The Hits Keep Coming

A new opinion this week tells us that "Defendant, Intermed Resources TN, LLC, [is] a Tennessee limited liability company that markets medical equipment."  Camber Spine Technologies v. Intermed Resources TN, LLC, No. CV 22-3648, 2023 WL 5182597, at *1 (E.D. Pa. Aug. 11, 2023). The opinion later, though, tells us that Intermed is a "Tennessee limited liability corporation." It was right, before it was wrong. 

The United States Supreme Court has told us that the test for general personal jurisdiction for LLCs is the same test that is used for corporations. Daimler AG v. Bauman, 571 U.S. 117, 123 (2014). Unfortunately, in that case, Justice Ginsburg referred to "MBUSA" as "a Delaware limited liability corporation." MBUSA is an LLC, not a corporation. It's a little less clear in cases of specific jurisdiction, so there is least some potential litigation value in the getting this right, in addition the more general principle of being accurate. 

Camber Spine was one the case calling an LLC a corporation that I found this week. Last week there were four more: 

1.  Ocean Tomo LLC v. Golabs, Inc., No. 22 C 4966, 2023 WL 4930348, at *2 (N.D. Ill. Aug. 2, 2023) )" Plaintiff is a limited liability corporation with a principal place of business in Illinois . . . ."). 
2. Jackson v. Reliance Constr. Servs., LLC, No. 1:20-CV-799, 2023 WL 4933269, at *2 (S.D. Ohio Aug. 2, 2023) ("Defendant Reliance Construction is a limited liability corporation that is currently unrepresented.").
3. Universitas Educ., LLC v. Benistar, No. 3:20-CV-00738 (KAD), 2023 WL 4932034, at *4 (D. Conn. Aug. 2, 2023) ("Greyhound Partners is a Connecticut limited liability corporation with the following current members: Greyhound Management Inc. and Constance Ann Carpenter.") 
4. NetApp, Inc. v. Cinelli, No. 2020-1000-LWW, 2023 WL 4925910, at *12, n.172 (Del. Ch. Aug. 2, 2023) (citing "Metro Communication Corp. BVI v. Advanced Mobilecomm Techs. Inc., 854 A.2d 121, 153-55 (Del. Ch. 2004)  and stating that "imputing fraud to the corporation where the manager of a limited liability corporation designated by the corporation made false statements.")

I suppose it is painfully obvious I am not going to let this go. If nothing else, these cases are reinforcing the need for my new paper, with Samantha Prince (available on SSRN): An LLC By Any Other Name Is Still Not A Corporation. We're still talking to editors for those interested in helping us clean up this mess.  One day, we hope to put an end to this madness.

Touro Law is Looking for Faculty to Teach Business Organizations

Touro University Jacob D. Fuchsberg Law Center Seeking to Fill
Two Tenure Track Positions in Business Organizations and Criminal Law/Evidence

 The Touro University Jacob D. Fuchsberg Law Center is pleased to announce that it is currently seeking outstanding applicants for two tenure-track appointments to its full-time faculty starting in August 2024. The law school welcomes applications from candidates interested in teaching Business Organizations, Criminal Law, and Evidence.

Ideal candidates must have a J.D. degree from an ABA accredited law school and a commitment to teaching in an environment dedicated to excellence in teaching and mentoring of students. We look for innovative faculty with a preference for both practice and teaching experience. Applicants must demonstrate a commitment to service to legal education and to the wider community as well as a desire to engage in the intellectual life of the Law Center. With one of the most diverse student bodies in the country, Touro Law Center is dedicated to the aims of diversity and strongly encourages applications from women and minorities.  Applicants are expected to be willing and capable of teaching in-person and remotely and be familiar with best practices in both modalities. 

Touro Law Center, a member of the Association of American Law Schools (AALS), is part of the Touro University. Established in 1970 to focus on higher education for the Jewish community, the Touro University has grown to serve a widely diverse population. We are uniquely attuned to the importance of an education for students of all backgrounds and circumstances.

Located on beautiful and historic Long Island with its many beaches, coastlines, and parks, Touro Law Center has a unique location directly across the street from the federal and state courts, providing substantial opportunities for teaching and learning. Within the New York City metropolitan area, we are a train ride to Manhattan and an even shorter train ride to JFK Airport.

If interested, please apply through the portal here. (If the link does not immediately open for you, please hit "ctrl" and then click the link to open the page.) Questions about the position may be directed to Professor Laura Dooley, Chair, Faculty Appointments Committee at [email protected].

ICYMI: I am a Corporate Law Jotter!

I recently became a Corporate Law Jotwell contributing editor.  My first jot, TOWARD A NON-BINARY VISION OF DISCLOSURE REGULATION, promotes Lisa Fairfax's article: Dynamic Disclosure: An Exposé on the Mythical Divide Between Voluntary and Mandatory ESG Disclosure, 101 Tex. L. Rev. 273 (2022).  The crux?

At its core, Lisa Fairfax’s Dynamic Disclosure: An Exposé on the Mythical Divide Between Voluntary and Mandatory ESG Disclosure embraces mandatory disclosure rules in the spirit in which they have been enacted and employed in U.S. federal securities regulation. The article also, however, articulates the independent and cooperative value of voluntary disclosure as an important piece of the regulatory puzzle. . . . Her insightful and diplomatic treatment of the subject matter is a breath of fresh air in ongoing debates about both the regulation of ESG disclosures specifically and mandatory disclosure as a component of securities regulation more generally.

Read the jot.  But more importantly, read Lisa's excellent article!

AALS Professional Responsibility Section – 2024 Annual Meeting New Voices

The AALS Professional Responsibility Section invites papers for its program “2024 New Voices Workshop.” The goal of this audience interactive workshop is to provide a forum for new voices and new ideas related to professional responsibility (PR), broadly defined.

Many scholars might address PR without realizing it. We are interested in your potential contributions whether you are an evidence scholar writing about the attorney-client privilege, a feminist interested in gender dynamics that affect lawyering, a critical race scholar commenting on how power plays out in legal systems, an ethicist exploring the moral foundations of the rules governing lawyering, or something entirely different.

Toward that end, we encourage you to submit a proposal even if you are pursuing scholarship on PR for the first time, even if you question whether your ideas really do relate to PR, and even if you are reticent to submit for some other reason.

The selected papers will be presented at the AALS Annual Meeting in January of 2024.

WORKSHOP DESCRIPTION:

The Workshop will be an opportunity to nurture the growth of a broad scholarly community in the field of Professional Responsibility and Legal Ethics. As such, it is a place to take risks and develop high quality work—test ideas, work out issues in drafts and dialogue with academics doing interesting and cutting-edge scholarship.

We welcome consideration of works in different formats and stages of production. Depending on the stage of your work, the workshop format will differ.

• Some authors may have a full draft paper or substantial outline ready for distribution in advance of the conference. In that case, papers will be allocated sufficient time for authors and participants to thoroughly explore each work. The expectation is that all participants will read and prepare comments on fellow participants’ work prior to the conference.

• For early stage ideas, authors may only have an abstract or one-page treatment for distribution and discussion. In that context, authors and participants will brainstorm around each idea much more briefly than in a typical workshop, making space for a larger number of comments in each session.

Workshop groups will include senior scholars in the field who will aid in the discussion of the pieces and provide feedback. Successful papers and topics, depending on their stage of development, should engage with the scholarly literature and make a meaningful original contribution to the fields of professional responsibility and legal ethics, broadly defined. The format will be determined based on the submissions received and accepted.

ELIGIBILITY: Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and nonlaw school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

 

PAPER SUBMISSION PROCEDURE:

There is no formal requirement as to the form or length of proposals. Abstracts are welcome. Please email submissions to Executive Committee Member, Ben Edwards ([email protected]) on or before September 15, 2023. The title of the email submission should read: “Submission – AALS PR New Voices Program 2024.”