Monday, June 27, 2022

Oklahoma Law - Seeking Faculty in Tax, Patents, Antitrust, and More

The University of Oklahoma College of Law 

Hiring For Associate/Full Professor of Law 

The University of Oklahoma College of Law seeks outstanding applicants, entry-level or lateral, for up to three full-time tenure-track positions beginning fall 2023. We welcome candidates in all subject areas, with particular interest in filling curricular needs in tax, patents, wills & trusts, evidence, civil procedure, antitrust, and alternative dispute resolution (ADR). 

OU Law is a high-quality, affordable, and forward-looking institution committed to developing a socially-involved and inclusive legal profession. We boast world-class facilities and a diverse student body. Our strong national reputation is buttressed by a commitment to attracting and supporting excellent faculty with summer research grants, publication placement bonuses, course reductions based on productivity, and an extraordinary number of endowed positions.

Our law school sits on the main OU campus in Norman, a university town alive with entertainment, arts, food, and sports. A perennial “best place to live,” Norman has excellent public schools and low cost-of-living. Neighboring Oklahoma City features a dynamic economy, outstanding cultural venues, and a major airport. Visit http://www.ou.edu/flipbook and http://soonerway.ou.edu for more information.

Qualifications

  1. Must have a J.D. or equivalent academic degree.
  2. Must have strong academic credentials.
  3. Must have a commitment to excellence in teaching and demonstrably outstanding potential for scholarship.

Application Instructions

To apply, please submit a CV and job-talk paper to oulawhiring@ou.edu. Cover letter optional. If selected for an interview, teaching evaluations will be requested if available. Application review will begin immediately, and the positions will remain open until filled.

Equal Employment Opportunity Statement

The University of Oklahoma, in compliance with all applicable federal and state laws and regulations, does not discriminate on the basis of race, color, national origin, sex, sexual orientation, genetic information, gender identity, gender expression, age, religion, disability, political beliefs, or status as a veteran in any of its policies, practices, or procedures. This includes, but is not limited to: admissions, employment, financial aid, housing, services in educational programs or activities, or health care services that the University operates or provides.

Diversity Statement

The University of Oklahoma is committed to achieving a diverse, equitable and inclusive university community by recognizing each person's unique contributions, background, and perspectives. The University of Oklahoma strives to cultivate a sense of belonging and emotional support for all, recognizing that fostering an inclusive environment for all is vital in the pursuit of academic and inclusive excellence in all aspects of our institutional mission.

June 27, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Tuesday, June 21, 2022

More Commentary on the SEC's ESG Proposal - Sharfman and Copland

Courtesy of friend-of-the-BLPB Bernie Sharfman, I am linking to his coauthored (with James Copland) comment letter to the Securities and Exchange Commission (SEC) on the climate change rule-making proposal.  The letter includes copious footnotes.  As with other comment letters that have been written on the substance of the SEC proposal, there are some interesting definitional questions on which intelligent folks disagree.  E.g., what is included under the umbrella of investor protection?  What regulation promotes "efficiency, competition, and capital formation"?  These all are among the big picture issues on which the SEC has the opportunity to speak.  I expect thoughtful responses.

June 21, 2022 in Corporate Finance, Corporate Governance, Corporations, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Monday, June 20, 2022

So much to say today . . . .

NBLS2022(OULawPhoto)

Having just come back from the first in-person National Business Law Scholars Conference since 2019 (at The University of Oklahoma College of Law, pictured here), I have many thoughts swirling through my head.  I always love that conference.  The people, whom I dearly missed, are a big part of that. And Megan Wischmeier Shaner was an awesome planning committee host. But the ideas that were shared . . . .  Wow. So many great research projects were shared by these wonderful law teachers and scholars!  Over time, I hope to share many of them with you.  

But for today, I want to focus on one thing that I heard in a few presentations at the conference: that the shareholder wealth maximization norm is and always has been the be-all and end-all of corporate purpose and board decision making. I am posting on that topic today not only because of my engagement with the conference, but also because the issue is implicated in Ann's post on Saturday (Bathrooms are About Stakeholders) and by Stefan's post yesterday (ESG & Communism?). I want to focus on a part of Stefan's post (and Stefan, you may that issue with my remarks here, based on your response in the comments to your post), but I promise to work in a reference to Ann's post, too, along the way.

Like Paul, I am somewhat troubled by the connections made in abstract for the article featured in Stefan's post—albeit perhaps for different reasons. I will read the article itself at some point to learn more about the issues relating to the Fed. And I agree with Stefan's commentator Paul that the Elizabeth Warren reference in the abstract is a bit of a stalking horse. I want to address here, then, only the asserted corroboration of an “incipient trend” offered as an aside at the end of the abstract excerpted in Stefan's post.

As readers may know from my published work and commentary on the BLPB, I do not accept that there is a legal duty to maximize shareholder wealth embedded in corporate law. (Articles have pointed out that the shareholder wealth maximization mantra has not existed consistently over the course of corporate history, but I will leave commentary on that literature for another day.) Regardless, to be sustainable, a corporation must make profit that inures to the benefit of shareholders, while also understanding and being responsive to the corporation's other shareholder commitments—commitments that may vary from corporation to corporation. But that does not mean that the board must maximize shareholder wealth, especially in each and every board decision. (Let's leave Revlon duties aside, if you would, for these purposes.). It also does not mean that shareholder wealth is properly ignored in corporate decision making, but in my experience, few firms actually completely ignore short-term and long-term effects on shareholder wealth in making decisions.

In essence, the standard shareholder wealth maximization trope would have us believe that the board's task is too simple, as I have noted in some of my work. A compliant, functional board engaged in corporate decision making first needs to understand as well as it can the firm's business and the markets in which the firm operates and then needs to assess in that context how the corporation should proceed. Some of the board's decisions may require it taking a stand on what have (regrettably, imv) become highly politicized social justice and commercial issues. It involves weighing and balancing. It is hard work. But that is the board's job. The board may want to inform itself of which political party likes what (especially as it relates to its various constituencies), but the board's decisions ultimately need to be made in good faith on the basis of what, after being fully informed in all material respects, they collectively believe to be in the best interest of the corporation (including its shareholders).

Some folks seem to ignore that reality. Instead, they assume (in many cases without adequate articulated foundation) that a board is catering to or rejecting, e.g., ESG initiatives based on a political viewpoint. I have more faith in corporate boards than that. I urge people to check those assumptions before making them (and to leave their own political preferences behind in doing so). Although I have seen a few dysfunctional boards in my 37 years as a lawyer and law professor, I have seen many more that are looking out for the long-term sustainability of the firm for the financial and other benefit of shareholders. That does require that employee interests, customer/client interests, and the interest of other stakeholders be understood and incorporated into the board’s decision making. Ann seems to agree with this last point when she writes in her post that: "despite occasional rhetoric to the contrary, it may very well be profit-maximizing to bow to employee demands; it doesn’t mean the CEO is pursuing a personal political agenda, it simply means that restive employees make a company difficult to run."

In concluding, I do not see an “incipient trend” or any “diametric opposition” of the kind noted in the abstract posted by Stefan. I also see board (and overall corporate management) support for ESG—although I admittedly am not a fan of looking at all the E, S, and G together—as the probable acknowledgement of an economic or financial reality in or applicable to those firms. Economies and markets are changing, and firms that do not respond to those changes one way or another will not survive. And that will not inure to the benefit of shareholders or other corporate stakeholders. The Business Roundtable Statement on the Purpose of the Corporation acknowledges the importance of corporations in our local, national, and global economies and, in light of that, articulates management’s recognition of the need to create sustainable economic and financial symbiosis through the firm's decision making: “Each of our stakeholders is essential. We commit to deliver value to all of them, for the future success of our companies, our communities and our country.”

As scholars, we should recognize the realities of the boardroom and of firm management in general, which optimally involve complex, individualized decision-making matrices. Moreover, as we theorize about, and assess the policy objectives of, the laws we study and on which we comment, we should keep those realities in mind. Rather than assuming why boards (and C-suite officers, for that matter) act the way they do based on our theoretical and political viewpoints, we should interrogate their management decisions thoroughly, understanding and critiquing the actual bases for those decisions and, when possible, suggesting a "better way."

Thanks to the National Business Law Scholars Conference participants for their stimulating presentations and to Ann and Stefan for their posts. I hope that this post serves to illuminate my perspective on shareholder wealth maximization a bit. The conversation is important, even if a common understanding may not be forthcoming.

June 20, 2022 in Ann Lipton, Conferences, Corporate Governance, Corporations, Joan Heminway, Management, Stefan J. Padfield | Permalink | Comments (4)

Monday, June 13, 2022

Change Leadership

In a post last month, I mentioned my recently published article on teaching change leadership in law schools.  That article, Change Leadership and the Law School Curriculum, 62 Santa Clara L. Rev. 43 (2022), offers some ideas about preparing our students for leading change.  The SSRN abstract follows.

Lawyers, as inherent and frequent leaders in professional, community, and personal environments, have a greater-than-average need for proficiency in change leadership. In these many settings, lawyers are charged with promoting, making, and addressing change. For example, one commentator observes that, “as stewards of the family justice system and leaders of change, family law attorneys have an ongoing responsibility to foster continuous system improvement.” Change is part of the fabric of lawyering, writ large. Change leadership, whether voluntarily assumed or involuntarily shouldered, is inherent in the lawyering task. Yet, change leadership—well known as a focus for attention in management settings and related academic literature—is rarely called out for individual or focused attention in the traditional law school curriculum. This article presents a brief argument for the intentional and instrumental teaching of change leadership to law students.

Many of our students already have been in or are assuming leadership roles.  Others are leading from where they stand.  And, as the abstract indicates, all will likely find themselves leading--in and outside the profession--at a later date.

Moreover, the world has been in, and continues to be in, a state of seemingly constant evolution.  Some of that evolution can be catalyzed or channeled by lawyers who have a compelling vision for the future.  Legal training can help foster that kind of vision.

As we all know, however, merely having a good idea is not enough.  The process of change-making can be critical to its success.  Change leadership can play an important role, and we can expose students to successful change leadership models while they are in law school.  That's what this article advocates.  I am interested in your reactions . . . .

June 13, 2022 in Joan Heminway, Teaching | Permalink | Comments (2)

Friday, June 10, 2022

Sean Griffith on Whether the SEC's Proposed ESG Disclosure Regime Violates the First Amendment

There have been number of recent BLPB posts representing a diversity of viewpoints concerning the SEC's proposed rule to "Enhance and Standardize Climate-Related Disclosures for Investors". For example, co-blogger Joan MacLeod Heminway recently posted on a comment letter drafted by  Jill E. FIsch, George S. Georgiev, Donna Nagy, and Cynthia A. WIlliams (and signed by Joan and 24 others) that affirms the proposed rule is within the SEC's rulemaking authority. I have offered a couple posts raising concerns about the proposed rule from the standpoint of utility and legal authority (see here and here). One of the concerns I have raised is that the SEC's proposed disclosure regime may compel corporate speech in a manner that runs afoul of the First Amendment. SEC Commissioner Hester Pierce raised this same concern, and now Professor Sean J. Griffith has posted a new article, "What's 'Controversial' About ESG? A Theory of Compelled Commercial Speech under the First Amendment", which offers a more comprehensive treatment of this problem. Professor Griffith has also submitted a comment letter to the SEC raising this issue. Here's the abstract for Professor Griffith's article:

This Article uses the SEC’s recent foray into ESG to illuminate ambiguities in First Amendment doctrine. Situating mandatory disclosure regulations within the compelled commercial speech paradigm, it identifies the doctrinal hinge as “controversy.” Rules compelling commercial speech receive deferential judicial review provided they are purely factual and uncontroversial. The Article argues that this requirement operates as a pretext check, preventing regulators from exceeding the plausible limits of the consumer protection rationale.

Applied to securities regulation, the compelled commercial speech paradigm requires the SEC to justify disclosure mandates as a form of investor protection. The Article argues that investor protection must be conceived on a class basis—the interests of investors qua investors rather than focusing on the idiosyncratic preferences of individuals or groups of investors. Disclosure mandates that are uncontroversially motivated to protect investors are eligible for deferential judicial review. Disclosure mandates failing this test must survive a form of heightened scrutiny.

The SEC’s recently proposed climate disclosure rules fail to satisfy these requirements. Instead, the proposed climate rules create controversy by imposing a political viewpoint, by advancing an interest group agenda at the expense of investors generally, and by redefining concepts at the core of securities regulation. Having created controversy, the proposed rules are ineligible for deferential judicial review. Instead, a form of heightened scrutiny applies, under which they will likely be invalidated. Much of the ESG agenda would suffer the same fate, as would a small number of existing regulations, such as shareholder proposals under Rule 14a-8. However, the vast majority of the SEC’s disclosure mandates, which aim at eliciting only financially relevant information, would survive.

June 10, 2022 in Joan Heminway, John Anderson, Securities Regulation | Permalink | Comments (0)

Wednesday, June 8, 2022

Pace Law Seeks Visiting Professor for Spring 2023

Elisabeth Haub School of Law at Pace University invites applications for a Visiting Professor for Spring 2023 

The Elisabeth Haub School of Law at Pace University is currently seeking applicants for a Visiting Professor to teach during the Spring 2023 semester. We are particularly interested in applicants who can teach Constitutional Law, Corporations and other courses in the business law area.

All applicants should have excellent academic credentials as well as demonstrated skill and experience in teaching.  The position is a temporary, non-tenure-track appointment.

Applicants should be willing and available to teach using in-person or hybrid formats, depending on changing circumstances and the needs of the particular classes.

Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school.  Pace University is committed to achieving completely equal opportunity in all aspects of University life.

Please apply via https://careers.pace.edu/postings/22602. Applications will be considered on a rolling basis.

Pace University’s Elisabeth Haub School of Law offers J.D. degrees, Masters of Law degrees in both Environmental and International Law, and a series of joint degree programs including a Doctor of Juridical Science (SJD) in Environmental Law. The school, housed on the University’s campus in White Plains, NY, opened its doors in 1976 and has over 8,000 alumni around the world. The school maintains a unique philosophy and approach to legal education that strikes an important balance between practice and theory. For more information, visit http://law.pace.edu.

Please direct any questions via email to Senior Associate Dean for Academic Affairs and Law Operations, Professor Jill Gross, at jgross@law.pace.edu.

June 8, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Tuesday, June 7, 2022

Comment Letter of Securities Law Scholars on the SEC’s Authority to Pursue Climate-Related Disclosure

This post alerts everyone to a comment letter, drafted by Jill Fisch, George Georgiev, Donna Nagy, and Cindy Williams (signed by the four of them and 26 other securities law scholars, including yours truly and Ann Lipton), affirming that the Securities and Exchange Commission’s recent proposal related to the enhancement and standardization of climate-related disclosures for investors is within its rulemaking authority.  The letter was filed with the Commission yesterday and has been posted to SSRN.  The SSRN abstract is included below.

This Comment Letter, signed by 30 securities law scholars, responds to the SEC’s request for comment on its March 2022 proposed rules for the “Enhancement and Standardization of Climate-Related Disclosures for Investors” (the “Proposal”). The letter focuses on a single question—whether the Proposal is within the SEC’s rulemaking authority—and answers this question in the affirmative.

The SEC’s authority for the Proposal is grounded in the text, legislative history, and judicial interpretation of the federal securities laws. The letter explains the objectives of federal regulation and demonstrates that the Proposal’s requirements are properly understood as core capital markets disclosure in the service of those objectives. The statutory framework requires the SEC to adjust and update the content of the federal securities disclosure regime in response to the evolution of the economy and markets, and, in recent decades, the SEC has done so to require disclosures on a variety of subjects from Y2K readiness, to cybersecurity, to human capital management, to the effects of the Covid-19 pandemic. Rules mandating climate-related disclosure fit with this pattern of iterative modernization. Such rules do not represent a foray into new and uncharted territory, since the SEC has a long history of requiring disclosure on environmental and climate-related topics dating back more than 50 years. Finally, the federal securities laws do not impose a materiality constraint on the SEC’s authority to promulgate climate-related disclosure requirements.

The Comment Letter therefore concludes that the SEC has the statutory authority to promulgate the Proposal, and that the climate-related disclosure rules under consideration are consistent with close to nine decades of regulatory practice at the federal level and with statutory authority dating back to 1933 that has been repeatedly reaffirmed by Congress and the courts.

There is more that has been, can, and will be said about the Commission's rulemaking proposal as a matter of process and substance.  But I will leave that for another day.  For now, we just wanted you to know about the filing of the letter and offer you an easy way to find it and review it.

June 7, 2022 in Ann Lipton, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (11)

Monday, June 6, 2022

Colin Marks: Total Return Swaps ≡ Secured Transactions?!

I am excited to be promoting here an inventive and interesting paper, Total Return Meltdown: The Case for Treating Total Return Swaps as Disguised Secured Transactions, written by friend-of-the-BLPB Colin Marks (St. Mary's School of Law).   The SSRN abstract follows.

Archegos Capital Management, at its height, had $20 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world’s largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland’s biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan’s Nomura, lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. These losses were made possible due to the unique characteristics of total return swaps and Archegos’ formation as a family office, both of which permitted Archegos to skirt trading regulations and reporting requirements. Archegos essentially purchased beneficial ownership in large amounts of stocks, particularly ViacomCBS Inc. and Discovery Inc., on credit. Under Regulation T of the Federal Reserve Board, up to 50 percent of the purchase price of securities can be borrowed on margin. However, to avoid these rules, Archegos instead entered into total return swaps with the banks whereby the bank is the actual owner of the stock, but Archegos would bear the risk of loss should the price of the stock fall and reap the benefits if the stock were to go up or were to make a distribution. Archegos would still pay the transaction fees, but the device permitted Archegos to buy massive amounts of stock without having the initial margin requirements, thus making Archegos heavily leveraged. This article argues that the total return swap contracts are analogous to and should be re-characterized as what they really are – disguised secured transactions. Essentially the banks are lending money to enable the Archegoses of the world to buy stocks, and are simply retaining a security interest in the stocks. Such a re-characterization should place such transactions back into Regulation T and the margin limits. But re-characterization also offers another contract law approach that is more draconian. If the structure of the contract violates a regulation, then total return swaps could be declared void as against public policy. This raises the specter that a court could apply the doctrine of in pari delicto and leave the parties where they found them in any subsequent suits to recover outstanding debts.

I do not teach, research, or write in the secured transactions space, but this work engages corporate finance and contract law as well.  (I am grateful that Colin, among others, has encouraged my forays into contract law research over the years.)  I was privileged to have the opportunity to preview Colin's arguments and offer some feedback during his research and writing of this paper, which is forthcoming in the Pepperdine Law Review.  I find his argument creative and intriguing.  I think you may, too.

June 6, 2022 in Contracts, Corporate Finance, Financial Markets, Joan Heminway, Securities Regulation | Permalink | Comments (1)

Tuesday, May 31, 2022

New Scholarly Journal Focused on Law Pedagogy!

This exciting news came to us earlier today from Emily Grant, Professor of Law and Co-Director, of the Institute for Law Teaching and Learning at Washburn University School of Law:

The Institute for Law Teaching and Learning is thrilled to be launching a new scholarly journal. The Journal of Law Teaching and Learning will publish scholarly articles about pedagogy and will provide authors with rigorous peer review. We hope to publish our first issue in Fall 2023.

If you have a scholarly article that might fit the needs of The Journal of Law Teaching and Learning, please consider submitting it directly to us via email at mcolatrella@pacific.edu or through the Scholastica platform.

Thanks for bringing this to our attention, Emily!  I know there is lots of good business law teaching going on out there that all can learn from.  I hope that some of you will consider sharing your teaching wisdom.

May 31, 2022 in Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (0)

Monday, May 30, 2022

Memorial Day Moment

I am at a family reunion this weekend celebrating the joys of family.  We celebrate those that are here.  At the same time, we remember and honor those who are gone.  Some of those no longer with us have been lost in armed conflict or otherwise in service to their country--service to all of us.

Today, reflecting on all this, I have found it important to remind myself of the meaning of Memorial Day.  It always has had special meaning to/for me.  Yet, I was unfamiliar with the statute designating the national holiday.  When I read it, it was not what I expected (although I do not plan to offer a lawyerly or personal critique here).

(a) Designation.—

The last Monday in May is Memorial Day.

(b) Proclamation.—The President is requested to issue each year a proclamation—

(1) calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace;
(2) designating a period of time on Memorial Day during which the people may unite in prayer for a permanent peace;
(3) calling on the people of the United States to unite in prayer at that time; and
(4) calling on the media to join in observing Memorial Day and the period of prayer.

36 U.S. Code § 116 (2018).  In fact, the statute is not wholly representative of the history of Memorial Day.  Nevertheless, it is poignant and powerful in its call for reflective time to offer a personal and collective solemn request for permanent peace.  With members of our armed forces fighting for justice and freedom in service to our country every day, it seems more than appropriate for us to stop, one day each year, to honor the ultimate sacrifice of those who have lost their lives in that service and ask for lasting peace.

May 30, 2022 in Family, Joan Heminway | Permalink | Comments (0)

Monday, May 23, 2022

Teaching Leadership to Transactional Business Lawyers

The edited (and annotated) transcript of my 2021 "Try This" session from the 7th Biennial Conference on the Teaching of Transactional Law and Skills ("Emerging from the Crisis: The Future of Transactional Law and Skills Education," hosted virtually by Emory Law in the spring of 2021) was recently published.  Leadership for the Transactional Business Law Student, 23 Transactions: Tenn. J. Bus. L. 311 (2022), offers background and tips on teaching leadership to transactional business law students.  The substantive part of the SSRN abstract follows.

We do not always acknowledge this in legal education, but our students are learning to be leaders, because lawyers are leaders. That is as true of transactional business lawyers as it is of litigators, lawyers who hold political or regulatory appointments, lawyers engaged with compliance, and lawyers in general advisory practices. Yet, most law schools do little, if anything, to teach law students about leadership, or allow them to explore the contours and practices of lawyer leadership.

This edited transcript explains the importance of teaching leadership skills, traits, and processes to transactional business law students and offers insights on how instructors in a law school setting might engage in that kind of teaching as part of what they do. . . .

Edited transcripts of interactive teaching sessions at conferences are imperfect communication tools.  But I hope the publication of my teaching forum offers some food for thought for fellow business law profs (and maybe others).  I continue to explore teaching law leadership in specific and general settings.  Along those lines, I will have more to say about teaching leadership in law schools in a future post featuring my recently published piece in the Santa Clara Law Review on teaching change leadership, which I mentioned in an earlier post on Teaching Leadership in/and Law.

May 23, 2022 in Joan Heminway, Law School, Lawyering, Teaching | Permalink | Comments (2)

Monday, May 9, 2022

Pandemic Fallout: Legal Questions About Relational Contracts

In a recent article, I offer a description and critique of the utility of "formal relational contracts" when the going gets rough for businesses.  That article, The Potential Legal Value of Relational Contracts in a Time of Crisis or Uncertainty, 85 Law & Contemporary Probs. 131 (2022), was published as part of a symposium volume focusing on "Contract in Crisis" (co-edited by Temple Law's Jonathan C. Lipson & Rachel Rebouché).  The table of contents for the entire volume can be found here.  The abstract for my article follows.

A co-authored October 2020 Harvard Business Review (“HBR”) article promotes the use of “formal relational contracts” as a means of obviating or limiting opportunistic behaviors by contracting parties, including parties contending with cataclysmic events or factors in or outside the business that place significant financial stress on the business and its relations with others. The HBR co-authors note that the uncertainties exposed by and emanating from the ongoing COVID-19 pandemic are formative to their proposition. They specifically focus their attention on supply contracts, although their ideas may have broader application. This article preliminarily inspects the claims made in that HBR article from the standpoint of U.S. legal doctrine and lawyering and suggests avenues for future research, with the limited goal of offering legal commentary on a broad-based contract design idea that responds to the need for business operations flexibility in a pandemic or in other times of systemic or individualized crisis.

Many of us in business law watched as the pandemic raised significant questions about supply agreements, distribution agreements, merger/acquisition agreements, insurance contracts, and more.  I found it interesting to inquire, investigate, and contemplate whether any type of contract design fares more or less well in circumstances of crisis impacting businesses.  Over a period of months, in sessions with many of the authors of work in this symposium book, I had the opportunity to do that and to write up some of my thoughts.  As many readers may realize, I do not publish pure contract pieces often.  But I was inspired and encouraged to research and write this one.

May 9, 2022 in Contracts, Joan Heminway | Permalink | Comments (4)

Thursday, May 5, 2022

SEALS 2022, Elon Musk, and Cinco de Mayo

The Southeastern Association of Law Schools is holding its annual conference in Sandestin, Florida from July 27 through August 3.  The current draft program is available here.  I hope a number of you are planning to come.

In addition to my usual co-moderation (with the inimitable John Anderson) of an insider trading discussion group at the conference, I am looking to moderate the following discussion group:

Elon Musk and the Law

Moderator: Joan Heminway, The University of Tennessee College of Law

Enigmatic entrepreneur Elon Musk has found himself—and his businesses and his family—in the crosshairs of law and regulation. The legal and regulatory issues span a wide range, including First Amendment questions, securities disclosure challenges, legal contests involving the name of his son born in 2020 (with the musician Grimes), and more. This discussion group aims to identify, classify, and analyze these legal and regulatory interactions and interpret their effects on law reform, regulatory entrepreneurship, legal and administrative process, business venturing, and other areas of inquiry. Comparisons to and contrasting views of other public figures and their legal and regulatory tangles may be explored in the process.

Email me if you are interested in participating.

Also, I wish all a feliz Cinco de Mayo.  Wikipedia reminds me that Cinco de Mayo is both a celebration of Mexican-American food and culture in the United States and a commemoration of "Mexico's victory over the Second French Empire at the Battle of Puebla in 1862." The Wikipedia article notes that "[t]he victory of a smaller, poorly equipped Mexican force against the larger and better-armed French army was a morale boost for the Mexicans."  Ukraine immediately comes to mind.  And I guess (feebly tying all this back to Elon Musk) one could take the view that a smaller, poorly equipped Twitter lost out to a larger and better armed acquiror in it recent kerfuffle-turned-takeover-battle with Elon Musk . . . .  I know many of us will continue to have commentary on the Twitter acquisition as the transaction proceeds.

May 5, 2022 in Conferences, Joan Heminway, John Anderson | Permalink | Comments (2)

Tuesday, May 3, 2022

Well Being in Law Week 2022 Began Yesterday

image from lawyerwellbeing.net

It is again Well Being in Law Week!

Ways for individuals to engage with the week can be found here.  On that page, the organizers note that "[e]ach of the 5 days in Well-Being Week is focused on one dimension of overall well-being." Today's objective is alignment (spiritual wellbeing)--"Cultivating a sense of meaning and purpose in work and life. Aligning our work and lives with our values, goals, and interests."  As we head into the spring semester exam season, try focusing in on yourself a bit more this week.  There is no time like the present!  Namaste, y'all.

May 3, 2022 in Joan Heminway, Wellness | Permalink | Comments (0)

Monday, April 25, 2022

Maine Law Looking for a Visiting Professor/Visiting Assistant Professor/Visiting Professor of Practice

Mainelaw_logo-e1447856548945

 

 

 

 

The University of Maine School of Law, in the coastal city of Portland, Maine, invites applications for a one- or two-semester position as a visiting professor during the 2022-2023 academic year. Specific curricular needs include Property, Real Estate Transactions, and Land Use. The visiting appointment may be at the Professor, Associate Professor, Assistant Professor, or Professor of Practice level. Salary will be commensurate with qualifications and experience. Members of minority groups, women, and others whose background would contribute to the
diversity of the Law School are encouraged to apply.

Required: Applicants must possess a J. D. degree or its equivalent, an excellent academic record, and a record or promise of successful teaching and student mentoring, including an ability and willingness to incorporate innovative teaching approaches into the curriculum.

Applications must be submitted to the University of Maine System Hire Touch portal at: https://maine.hiretouch.com/admin/jobs/show.cfm?jobID=75546. You will need to create an applicant profile, locate the Visiting Professor of Law position in Hire Touch, and complete an application. Please upload a cover letter which fully describes your qualifications and experiences with specific reference to the required and preferred qualifications, your resume or c.v., and contact information for three professional references. You will also need to complete the affirmative action survey, the self-identification of disability form, and the self-identification of veteran status form.

Review of applications will begin immediately. To ensure full consideration, we encourage you to submit materials by May 15, 2022. You may email any questions to mainelawsearch@maine.edu. Applications, however, must be submitted via Hire Touch.

Appropriate background screening will be conducted for the successful candidate.

The University of Maine System is an EEO/AA employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, sexual orientation, age, disability, protected veteran status, or any other characteristic protected by law.

April 25, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Wednesday, April 20, 2022

Duquesne Law Looking for 2022-23 Business Law VAP

Position Number: 350124 / 20-256
Apply to: http://apply.interfolio.com/105805

Duquesne University School of Law, located in Pittsburgh, Pennsylvania, invites applications and nominations for a Visiting Assistant Professor of Law to teach during the 2022-2023 academic year. This position is a nine-month visiting position, beginning in the summer of 2022 with the possibility of one additional nine-month term. The successful candidate will be responsible for teaching three courses: one course during the fall semester and two courses the spring semester. The successful candidate will have ample time to focus on scholarship, be afforded to the Law School's library and related resources, have no administrative or faculty committee duties.

DUTIES AND RESPONSIBILITIES:

Our curricular needs include: Business Associations, Property, Contracts, Emerging Technologies, Intellectual Property, Health Law, and related elective courses. Candidates must be available to teach in-person, although the public health situation may require occasional remote and/or hyflex teaching.

REQUIRED QUALIFICATIONS:

Juris Doctor from an ABA-accredited law school.

PREFERRED QUALIFICATIONS:

Experience teaching in legal education.

Evidence of significant practical experience in an area of curricular need.

Alternately, the successful candidate may possess any equivalent combination of experience and training, which provides the knowledge, skills and abilities required to perform the essential job functions. This includes, but is not limited to, the following:

Commitment to the University's values of diversity, equity and inclusion, and recognition of the importance of treating each individual with dignity and respect consistent with the University's Mission. Demonstrated experience with, and understanding of, the broad diversity of the University community (students, faculty, staff and others).

Ability to establish and maintain effective working relationships with the University Community.

Ability and willingness to contribute actively to the mission of the University and to respect the Spiritan Catholic identity of Duquesne University. The mission is implemented through a commitment to academic excellence, a spirit of service, moral and spiritual values, sensitivity to world concerns, and an ecumenical campus community.

As a condition of employment, Duquesne University requires all new employees -full-time and part-time, including adjunct faculty-to get a COVID-19 vaccine and provide proof of their vaccination upon commencement of employment.

New employees requesting a religious or documented medical exemption from the vaccine must complete and submit a Duquesne University exemption request form for review and approval. To receive the appropriate exemption request form, contact hrservices@duq.edu. Employees with approved exemptions will be required to be tested on a regular basis.

APPLICATION INSTRUCTIONS:

Catholic in its mission and ecumenical in spirit, Duquesne University values equality of opportunity as an educational institution and as an employer. We aspire to attract and sustain a diverse faculty that reflects contemporary society, serves our academic goals that enriches our campus community. We particularly encourage applications from members of underrepresented groups.

We invite applicants for this position to learn more about our University and its Spiritan heritage by visiting our Mission Statement. http://www.duq.edu/about/mission-and-identity/mission-statement. Those invited to campus for an interview may be asked about ways in which they see their talents contributing to the continued growth of our community and furthering its mission.

Application review will begin immediately and will continue until the position is filled. Duquesne University uses Interfolio to collect all faculty job applications electronically. Applicants should submit a letter of intent, a curriculum vitae, and contact information for three professional references via Interfolio. The letter of intent should include comments on ability to teach in flexible environments, including online, hybrid, and in-person classroom settings. Applicants are encouraged to describe in their letter of intent how their scholarship contributes to building and supporting a diverse and inclusive community. Applicants with questions about the position may contact Tara Willke at 412.396.2637 or willket@duq.edu.

Duquesne University was founded in 1878 by its sponsoring religious community, the Congregation of the Holy Spirit. Duquesne University is Catholic in mission and ecumenical in spirit. Motivated by its Catholic identity, Duquesne values equality of opportunity both as an educational institution and as an employer.

April 20, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, April 18, 2022

Partner Freeze-Outs are Fascinating!

On Friday, I have the honor and pleasure of presenting a continuing legal education session for the Tennessee Bar Association with Dean Matt Lyon from the LMU Duncan School of Law.  Our topic?  Partner freeze-outs--situations in which a co-venturer in a business recognized as a partnership is excluded from the business by their fellow co-venturers.  This exclusion often occurs through or involves the formation of a limited liability entity, typically a corporation or limited liability company, to conduct the operations of the business going forward.  That new business entity does not include one of the initial co-venturers.  We have titled our session "No Partner Left Behind: Organizing a Limited Liability Entity for a Pre-existing Business Venture."

I truly enjoy the judicial opinions in this area.  You probably know some of them.  Holmes v. Lerner may be one of the better known cases in this space.  But there are others.  Some of the claims in these cases, like the claims in Holmes v. Lerner, stem from co-venturers involved in a de facto partnership--a venture recognized under statutory law as a partnership for which there is no express written acknowledgment of partnership.  Entrepreneurs beware!

The partnership freeze-out genre of judicial opinions is related to the old chestnut Meinhard v. Salmon, a partnership opportunity case relating to the exclusion of a "coadventurer" from a subsequent leasehold for the property that had been the subject of the co-venturers original joint venture.  These judicial opinions also can be connected to the more recent, interesting, and aberrant Energy Transfer Partners, L.P. v. Enter. Prod. Partners, L.P., in which the court finds that “[a]n agreement not to be partners unless certain conditions are met will ordinarily be conclusive on the issue of partnership formation as between the parties,” foreclosing an argument made by one of the parties to the agreement that a partnership was nonetheless formed by conduct under the statutory definition.

It turns out that Matt and I are not the only folks intrigued by these cases.  Twenty-three years ago, Frank Gevurtz wrote a nifty article on partner freeze-outs: Franklin A. Gevurtz, Preventing Partnership Freeze-Outs, 40 MERCER L. REV. 535 (1989).  Ultimately, Frank focuses in on planning and drafting ideas as a means of avoiding litigation in this area.  Like Frank, Matt and I offer lawyering points emanating from what we learned in reviewing judicial opinions of this kind.  Of course, these law practice points require that co-venturers be aware of the creation of a partnership in the first place.  These cases certainly make for animated discussions in entrepreneurship and other small business settings and are especially great fodder for discussion in a business associations law course.

April 18, 2022 in Entrepreneurship, Joan Heminway, Lawyering, Partnership | Permalink | Comments (2)

Monday, April 11, 2022

The Federalization of Corporate Governance - Heminway on Karmel

Last May, I posted on a wonderful two-day event--a symposium hosted over Zoom by Brooklyn Law School celebrating the career of Professor Roberta Karmel.  As I noted then, I was honored to be invited to speak at the event. It was so inspiring.

I have just posted the essay that I presented at the symposium, "Federalized Corporate Governance: The Dream of William O. Douglas as Sarbanes-Oxley Turns 20" (recently published by the Brooklyn Journal of Corporate, Financial & Commercial Law), on SSRN.  It can be found here

The roadmap paragraph from the essay's introduction offers a brief description of the essay's contents.

This essay focuses on the federalization of U.S. corporate governance since Sarbanes-Oxley—and, more specifically, since Roberta’s article was published in 2005 [Realizing the Dream of William O. Douglas — The Securities and Exchange Commission Takes Charge of Corporate Governance, 30 DEL. J. CORP. L. 79 (2005)]—pulling forward key aspects of Roberta’s work in Realizing the Dream. To accomplish this purpose, the essay first briefly reviews the contours of Roberta’s article. It then offers observations on corporate governance in the wake of (among other things) the public offering reforms adopted by the U.S. Securities and Exchange Commission (SEC) in 2005, the SEC’s 2010 adoption of Rule 14a-11, the 2010 enactment of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), the 2012 enactment of the Jumpstart Our Business Startups Act (JOBS Act), and recent adoptions of corporate charter and bylaw provisions that constrain aspects of shareholder-initiated federal securities and derivative litigation. Finally, before briefly concluding, the essay provides brief insights on the overall implications for future corporate governance regulation of these and other occurrences since the publication of Realizing the Dream.

I found it great fun to build on the architecture of Roberta's earlier work in writing this piece.  Work on the essay allowed me to appreciate in new ways the many linkages between corporate governance and corporate finance--an appreciation that will no doubt continue to infuse my teaching with new ideas over time.  I hope some of you will take time out to read the essay and that you gain some insight from it.   Comments are, of course, always welcomed.

April 11, 2022 in Corporate Finance, Corporate Governance, Joan Heminway, Legislation, Securities Regulation | Permalink | Comments (0)

Sunday, April 10, 2022

Northwestern Still Accepting MSL Lecturer Applications

Further to my post from last Sunday, I received notice that Northwestern continues to accept applications for full-time lecturers for its Master of Science in Law program.  (The soft submission deadline was April 8.)  Preferred qualifications include a JD and 3-5 years of experience teaching or working in a field relevant to the MSL curriculum, such as a legal, business, entrepreneurship, or regulatory setting.  Applicants should submit a CV and a cover letter explaining interest in the position through Northwestern’s online application system at this link: https://facultyrecruiting.northwestern.edu/apply/MTQ2Mg%3D%3D

April 10, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Friday, April 8, 2022

Wagner Graduate Research Fellowship at NYU

The NYU Pollack Center invites applications for a Wagner Fellowship for the 2022-2023 academic year.  Thanks to a generous grant of the Leonard Wagner Testamentary Trust, the Center for Law & Business offers a one-year graduate research fellowship to help develop future law academics with an interest in the social control of business institutions and the social responsibility of business.

Requirements:

Applicants must hold a JD or LLM degree and have practiced law for two years. Preference is given to applicants with a research interest in the legal regulation of business and ethics, and to those who have a degree from NYU School of Law. Fellows are expected to make a full-time commitment to their graduate research at the center. Involvement in Pollack Center research ventures is required.

How to Apply:

Applications must be received by May 16th 2022. Applicants must submit the following materials*:

  • Statement describing academic and research interests
  • Proposal for the research project during the fellowship year
  • Curriculum Vitae
  • Law school academic transcripts
  • A letter of recommendation
  • A writing sample, preferably a scholarly paper written in the past two years

*Not all materials are required for every applicant.  Please inquire regarding required materials.

More information is available at the Pollack Center Website. Please direct all materials to Stephen Choi and David Yermack, Directors. We prefer that you first e-mail materials to Anat Carmy-Wiechman at wiechman@mercury.law.nyu.edu, followed by a physical copy mailed to the NYU Center for Law & Business at 139 MacDougal Street, Room 116, New York, NY 10012.

Please direct inquiries to Anat Carmy Wiechman at wiechman@mercury.law.nyu.edu or (212) 992-6173.

April 8, 2022 in Business School, Ethics, Joan Heminway, Jobs, Social Enterprise | Permalink | Comments (0)