Monday, October 12, 2020
On Friday night, I finished five days of group oral midterm exam appointments with my Business Associations students. (I wrote a law review article on these group oral midterms five years ago, in case you are interested in background and general information.) It is an exhausting week: twenty-one 90-minute meetings with groups of three students based on a specific set of facts. And this year, of course, the examinations were hosted on Zoom, like everything else. Especially given social distancing, mask-wearing, and the overall hybrid instructional method for the course (about which I wrote here), I admit that I headed into the week a bit concerned about how it all would go . . . .
The examination is conducted as a simulated meeting of lawyers in the same law office--three junior lawyers assisting in preparing a senior colleague for a meeting with a new client. The student teams are graded on their identification and use of the applicable substantive law. I was pleased to find that the teams scored at least as well overall and individually as they typically do. That was a major relief. I had truly wondered whether students would be less well prepared in light of the mixed class format and the general distractions of the pandemic. The students were, however, well prepared. It was clear each student had achieved individual mastery of a good chunk of the course substance. It also was clear that, in preparing for and taking the examination as a group, the students had expanded their base of knowledge. Several teams were so well versed that they were able to point out--in a collegial manner--an error in one of my teaching materials, which I since have corrected.
But what really wowed me were the intangibles. Each team was earnest and focused during the entire examination meeting. I was awed by the dedication and diligence of my students in executing on a group oral examination in this unusual and stressful pandemic. Moreover, team members uniformly treated each other with respect, courtesy, patience, and compassion. In the end, it was one of the best teaching experiences I have had in over twenty years as a law professor. I could not be more grateful for the work that my students put into studying for and carrying through on the examination, and I am highly motivated to work with them to cover the remaining material in the course (more on corporations!) in the weeks to come.
Although I undoubtedly need additional time to reflect on the exams more deeply (and I am committed to undertake that deeper reflection before I share more comprehensive observations at the Association of American Law Schools Annual Meeting in January), I am extremely pleased with the overall results of these virtual group oral examinations in meeting my teaching and learning objectives for the course. Icing on the cake? Two students (on separate examination teams) thanked me for the exam before leaving the examination Zoom meeting, and a third student, in communicating with me on another matter over the weekend, noted in passing: "I actually enjoyed the midterm and thought it worked really well on zoom and was a great format to get to know the material and other students especially with the circumstances this semester!" If the examination format was able to overcome some of the social and mental isolation so many of us have been feeling over the course of the semester, that certainly is a surprise bonus. As we all know, we learn from our students every day . . . .
Oh, and I almost forgot to mention that one team went out of its way to show that its members were "in role" for the examination as a simulation exercise. They created their own custom law firm logo Zoom background (based on the firm name--my name plus that of my intellectual property law colleague, Gary Pulsinelli--set forth at the top of the memo I sent to them that included the facts for use in the examination). It was a hoot! I have included a screenshot below. This definitely put a smile on my face!
Monday, October 5, 2020
The fourth annual Business Law Prof Blog symposium, Connecting the Threads, is happening, despite the pandemic. We are proceeding in a virtual format, hosted on Zoom on Friday, October 16. More information is available here.
The line-up includes an impressive majority of our bloggers speaking on a wide range of topics from shareholder proposals to social enterprise, opting out of partnership, and much more. Most papers will have a faculty and student discussant. My submission, “Business Law and Lawyering in the Wake of COVID-19,” is coauthored with two students and carries one hour of Tennessee ethics credit. While I wish we could host everyone in person in Knoxville, it always is an amazing day when we all get together. I look forward to learning more about what everyone is working on and hearing what everyone has to say.
Monday, September 28, 2020
Photo Credit: Pixabay
With almost six weeks of hybrid Business Associations classes now under my belt (and many more to go), I wanted to share a bit more about my experience teaching in the hybrid classroom. This follows and builds on my post from the beginning of the semester offering initial impressions (based on my Professional MBA teaching experience). As I noted in that post, technology can differ from classroom to classroom. As a result, my observations here (which are based on a hybrid course with an in-class projection system featuring a camera and document camera and an online component hosted on Zoom), may not hold in other teaching environments. Hopefully, however, some of what I have to say here may be useful to some of you . . . .
Teaching a hybrid course is a bit like managing a three-ring circus. Ring #1 is your in-class student population, #2 is your online students population, and #3 is your technology. It is a lot to pay attention to. I find it more than a bit exhausting.
I have 63 students in total in Business Associations this fall. That is a bit low but within a normal range for that course in the fall semester. Six of the students are "synchronous online only"; the remaining 57 rotate into and out of class--roughly half attending in person Mondays and every other Friday and the remainder attending in person on Wednesday and alternate Fridays. I have a "producer" teaching assistant who participates online to (1) monitor the chat for me, (2) encourage student camera usage and microphone muting, and (3) help handle breakout room monitoring. She also has helped to identify issues with sound--in particular when online folks are having trouble hearing their me or in-person colleagues.
My biggest gaffs so far include the following:
- Clicking on "Leave Meeting" instead of closing the chat box as I was about to begin class and, as a result, kicking all of my online students out of class;
- "Pinning" (highlighting) the video footage of the wrong student named Morgan for projection on the in-class screen (thinking I had called on her--but there are two women named Morgan in the class) and not realizing the mistake because the video of the other Morgan was so dark; and
- Calling for tech help when the in-room camera was not capturing/showing video (my Zoom square was black--showing no video), when, in fact, the issue was that my Zoom video had defaulted to the document camera (which was not then deployed).
Notwithstanding these issues, based on the first writing assignment in the course and questions during my office hours, students in the course are learning! Business Associations is hard to learn (and teach) in a traditional classroom environment. The hybrid classroom is not ideal for many reasons--including without limitation the fractured attention span created by the three-ring-circus. I truly feared that the combined experience of teaching Business Associations in a hybrid environment would be overwhelming for students. But by speaking loudly, repeating student questions and comments, reaching out visually to students in both environments as directly as possible, and keeping technology usage simple and targeted, I seem to be communicating relevant information effectively, and as a group, we seem to be staying engaged with each other. Fingers crossed all of that continues . . . .
I would be missing an important aspect of all of this if I did not mention my biggest pandemic teaching silver lining so far: feeling the love of my students--seeing them come to class in person, complying with numerous restrictions on their lives. and hearing from them in a positive way. The number of students who have reached out in genuine ways to thank me for working hard on their behalf to produce class has been so gratifying. This past week, I even had a student from last year reach out to check in on me. The patience, flexibility, and compassion of my students has been remarkable.
So, I am surviving, and even striving to thrive. It is like learning how to teach all over again some days. But the students make it all worthwhile. 🧡
Monday, September 21, 2020
As we continue to move through the Fall 2020 semester in "pandemic mode" (whatever that may be for you), the investments of colleagues in their teaching continues to amaze me. The number of teaching webinars and conference panels has been truly awesome, starting in the spring and continuing through the present. Social media posts on Facebook and Twitter offer individualized tips and the opportunity for innovators to build from them and post their responsive comments and additional advice. My friend Jessica Erickson (Richmond Law) wrote an excellent series of Prawfsblog posts at the end of the summer, the last of which can be found here (with links to the earlier posts in the series). Law faculties (including my own) are checking in with each other on challenges and victories on a regular basis. Although the experiences of others may be different, I have felt supported (and very much like I am part of a team) the whole way along.
Among the more stimulating--and daunting--parts of pandemic teaching presentations and conversations are those relating to the introduction of new teaching technologies. We have all dealt with this part of COVID-19 teaching in some respects and in our own ways. Some of us are more comfortable with technology than others. There's Zoom and the like, of course, but then there also are routers, and cameras, and lighting, and more. (I had never heard of a "ring light,", for example, until the COVID-19 pandemic was in full force.) I have been impressed by the extent to which colleagues not only have found technological solutions to some of the novel teaching issues that have arisen during the pandemic, but also have been willing to promote these solutions to colleagues and educate them on their use.
Over the weekend. I became aware that my UT Law colleague Glenn Reynolds had written a short piece on his use of a relatively simple three-camera system he has constructed (in his pool house!) to improve the production quality of his online classes. He is teaching exclusively online this semester. The piece, TIRED OF LOOKING GRAY AND BORING ONLINE? A SIMPLE 3-CAMERA TV STUDIO/CLASSROOM FOR LIVELY ONLINE TEACHING, is posted on SSRN here. The exceedingly short abstract is as follows:
Tired of the dreary webcam-look in my online classroom, I created a fairly simple and reasonably inexpensive three-camera studio using real video cameras for online teaching. This paper outlines how it was done, and provides suggestions for simpler, cheaper alternatives that are still far superior to traditional webcam approaches.
Glenn includes photographs in his brief treatment to better illustrate the camera functionality and his own working view, which I found really helpful. He also is very specific about the human resources he consulted, the equipment he has chosen to use (and why), and the expenses associated with doing what he has done. I share it here for your consideration. The more we can share our victories--as well as our challenges--with each other, the easier it will be for us all to survive (and even thrive) in our teaching through the pandemic.
Thanks to friend of the BLPB Christina Sautter for sending along the following hiring announcement:
LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire a tenure-track faculty member in commercial law, including, but not limited to, bankruptcy. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching.
We additionally seek to hire a full-time faculty member with security of position to direct the Immigration Law Clinic as part of LSU Law’s Experiential Education Program. The Immigration Law Clinic is a fully in-house, one-semester, 5 credit clinic in which students represent non-citizens in their defensive proceedings before the Executive Office of Immigration Review (EOIR) and affirmative applications with U.S. Citizenship and Immigration Services (USCIS) Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, substantial experience in Immigration practice and be admitted and in good standing in a U.S. jurisdiction. Prior clinical teaching experience and fluency in Spanish is preferred. We may consider applications from persons who specialize in other areas as additional needs arise.
We also seek to hire a full-time Assistant Professor of Professional Practice to teach legal analysis and writing. A successful candidate will teach the fundamentals of legal reasoning and writing by way of predictive and objective memoranda in the fall semester and advance those skills by teaching persuasive writing of an appellate brief and appellate oral advocacy in the spring semester. The legal writing faculty collaboratively develop the course materials that are used across the 1L curriculum. Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, and should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing.
The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.
Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:
Christina M. Sautter
Chair, Faculty Appointments and Adjuncts Committee
c/o Pam Hancock (or by email to firstname.lastname@example.org)
Paul M. Hebert Law Center
Louisiana State University
1 East Campus Drive
Baton Rouge, Louisiana 70803-0106
Monday, September 14, 2020
Lawyers as leaders.
Reputation is sacred.
So, guard it closely.
In my new role as Interim Director of UT Law's Institute for Professional Leadership (IPL, for short), I have made a commitment to sit in on the classes in the Institute's curriculum. One of them, Lawyers as Leaders, is the flagship course--the course that catalyzed the establishment of the IPL. This semester, it is being hosted on Zoom.
In that course this afternoon, the students wrestled with attorney misconduct--and how to punish it. During the first hour of the two-hour session, they spent time in breakout rooms discussing three cases that involved different lapses of professional responsibility rules (and, in some cases, criminal law rules). They were asked to report out/comment on several things about those cases, including the propriety and relative severity of the penalties imposed on the respective transgressor attorneys. During the second hour of class, the students had the opportunity to listen to one of the three offenders tell his story and share what he learned about leadership through his misconduct. They also were invited to ask him questions.
The story that the students heard was the one involved in this case. But they heard about the facts in a way that the Tennessee Supreme Court could not possibly convey them. And they heard about the personal family tragedy that intersected with the case.
The class was a very moving experience for me--even though I have heard the story told before. I can only hope that the learning done by the students was as powerful as the teaching. The haiku that introduces this post only covers the top line; there is so much more richness there that can only be appreciated by hearing the story in person. I found myself wishing that I had been afforded the opportunity to learn about professional responsibility and leadership in a similarly compelling way during my law school career. I am grateful for the opportunity to lead this program.
Monday, September 7, 2020
I have written here in the past about laboring on Labor Day. Most recently. I wrote about the relationship between work and mindfulness in this space last year. But it seems I also have picked up this theme here (in 2018) and here (at the end of my Labor Day post in 2017). Being the routine "Monday blogger" for the BLPB does give me the opportunity to focus on our Monday holidays!
This year, however, Labor Day--like so many other days in 2020--is markedly different in one aspect: I am required to teach today. When I logged in to the campus app on my phone this morning to do my routine daily health screening, I was greeted by this (in clicking through from the main event schedule page):
This is the first day in my 20 years of teaching, and maybe in my 35 years of post-law school work, that I have been required to work on Labor Day. My daughter, a Starbucks night shift manager, is required to work every year on Labor Day. But this is new to me . . . .
Of course, the ongoing pandemic is the reason for this change. By compacting the semester, we are endeavoring to keep folks who are attending class in person here on campus in a more constrained environment until the holidays (at which time we will release everyone to their families and friends until the new semester begins in January). Our campus website offers the following by way of a top-level explanation of the adjustments to the ordinary, customary academic calendar:
Thank you, COVID-19, for yet one more "first" in this year of many unprecedented things (including the 2019 novel coronavirus itself).
I have tried to make the best of teaching on the holiday, especially given the great weather we are having here in East Tennessee right now. I taught both of my classes today in the outfit I would have worn if I had been at home (as shown above at the top of the post and below, in both cases in my Corporate Finance class this morning--photo credits to Kaleb Byars and Landon Foody and mask design and sewing credit to my sister, Susan) and encouraged my in-person Business Associations students (almost half of my hybrid class) to come to school in the clothes they would typically wear to a Labor Day BBQ. I also brought in a special treat for my Corporate Finance students (what could be better at 8:30 am than equity instruments and donuts?) and sent my online Business Associations students into breakout rooms to connect over one of our assigned cases with a smaller group of their classmates while the in-person students wrestled with a case of their own. There was sparse but constructive attendance at Zoom office hours after class. In the end, it all has worked out fine. Not a bad day.
Wishing a happy Labor Day 2020 to all. Whether you are working today (at home or at a workplace outside the home) or taking the day off, stay safe and well. Personally, I look forward to Labor Day hamburgers tonight!
Monday, August 31, 2020
Call for Papers – EXTENDED DEADLINE
AALS Section on Transactional Law and Skills
The New Public Interest in Private Markets: Transactional Innovation for Promoting Inclusion
January 5-9, 2021, AALS Annual Meeting
The AALS Section on Transactional Law and Skills is pleased to announce a program titled The New Public Interest in Private Markets: Transactional Innovation for Promoting Inclusion during the 2021 AALS Annual Meeting, which will be held virtually. This session will explore how recent developments in corporate and transactional practice address issues of bias in corporate governance and the workplace, with examples ranging from Weinstein representations & warranties in M&A agreements to California’s Women on Boards statute to inclusion riders in the entertainment industry. These developments raise immediate questions of whether public policy goals of achieving greater inclusivity are being met, and they also shed light on perennial debates about the role public law and private ordering play in spurring social innovation.
In addition to paper presentations, the program will feature a panel focusing on how to incorporate concepts, issues, and discussions of equity and inclusivity across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses.
FORMAT: Scholars whose papers are selected will provide a presentation of their paper, followed by commentary and audience Q&A.
SUBMISSION PROCEDURE: Scholars who are interested in participating in the program should send a draft or summary of at least three pages to Professor Matt Jennejohn at email@example.com on or before Friday, September 25, 2020. The subject line of the email should read: “Submission—AALS Transactional Law and Skills Section Program.”
Scholars whose papers are selected for the program will need to submit a draft by December 16, 2020.
Pursuant to AALS rules, faculty at fee-paid non-member law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all presenters at the program are responsible for paying their own annual meeting registration fees and travel expenses.
Monday, August 24, 2020
ILLINOIS TECH CHICAGO-KENT COLLEGE OF LAW
HIRING ANNOUNCEMENT -- GALVIN CHAIR
AUGUST 17, 2020
Chicago-Kent College of Law of the Illinois Institute of Technology is excited to announce its search for the inaugural Michael Paul Galvin Chair in Entrepreneurship & Applied Legal Technology. We seek a tenured scholar (at any rank) researching and teaching in the fields of (i) intellectual property (with a focus on innovation and/or the patent system), (ii) business law (with a focus on issues related to technology, start-ups, entrepreneurship, etc.), (iii) the legal regulation of emerging technologies, or (iv) applied legal technology. In addition to residing in the law school and teaching law school classes, the Galvin Chair will be affiliated with Illinois Tech’s Ed Kaplan Family Institute for Innovation and Tech Entrepreneurship. The Kaplan Institute teaches innovative and entrepreneurial students from across Illinois Tech how to convert their creative ideas into significant and viable businesses, services, and new solutions. The Galvin Chair is expected to engage in interdisciplinary research in furtherance of the Kaplan Institute’s mission and help facilitate law student involvement in the Kaplan Institute.
Required qualifications for the Galvin Chair include: (1) a JD or PhD with experience teaching law classes; (2) a record of scholarship, including in one or more of the fields identified above, appropriate for appointment as a tenured professor; and (3) experience and/or interest in interdisciplinary research and teaching in furtherance of the Kaplan Institute’s mission. Preferably, the successful Galvin Chair candidate will have administrative experience and experience/interest in integrating computational thinking into the law school curriculum.
Chicago-Kent is an equal opportunity employer. Since our founding as a law school serving Chicago’s immigrant and working-class communities, we have been committed to increasing the diversity of our faculty and fostering the inclusion of underrepresented groups in the legal profession. We accepted women and students of color from our inception, graduating our first African-American woman in 1894. Today, we continue our dedication to providing opportunities for all, regardless of age, citizenship status, class, color, disability, ethnicity, gender identity, national origin, race, religion, sex, or sexual orientation.
The Galvin Chair is named for Michael P. Galvin, a 1978 graduate of Chicago-Kent, chairman of the Illinois Tech Board of Trustees, and president of venture capital firm Galvin Enterprises, Inc. The Chair is endowed through the generous donation of Galvin and his wife Elizabeth as part of a 2019 landmark $150 million combined gift from prominent Illinois Tech leaders to help the university drive Chicago’s continued tech rise.
We welcome expressions of interest by qualified candidates, as well as nominations. Please send them, preferably with a current CV, to Hiring Committee Chair Greg Reilly at firstname.lastname@example.org.
* * *
Thanks to Greg Reilly for passing this on to us!
My friend (and former UT Law Visiting Assistant Professor) Hengameh Saberi informed me of the following academic search at her institution, Osgoode Hall Law School, that may be attractive to our readers:
We hope to make one appointment in one of the following priority areas, which for recruitment purposes is broadly defined as Business Law, including Commercial Law, Tax Law and Contract Law.
The full position posting and application information are available here. For those who may not be familiar with Osgoode Hall, it is the law school at York University in Toronto. Among the fabulous faculty members at Osgoode Hall (other than Hengameh, of course!) are business law scholars Cynthia Williams, who works in many corporate law areas (including comparative corporate governance) and formerly taught at the University of Illinois College of Law, and Poonam Puri, who is an internationally respected corporate and securities law researcher. I am sure either would be happy to answer any questions you may have to the best of her ability.
Monday, August 17, 2020
On Saturday, I taught Business Planning to the Class of 2020 Professional MBA (ProMBA) Students in the Haslam College of Business at The University of Tennessee, Knoxville. I have taught business law topics in this program for a number of years now and thoroughly enjoy it as a change-up to teaching law students. This class is no exception. And two of the students from this cohort plan to go to law school at some point in the next few years.
The class sessions on Saturday--four hours worth--were taught in a hybrid format, with some of the students in the classroom and some participating in the class remotely through Zoom. Starting Wednesday, I will be teaching my Business Associations class sessions in a synchronous hybrid flex format with half of the students rotating in and out of the classroom in accordance with a predefined schedule. The ProMBA program uses classrooms with technology different from that available at the College of Law, did not afford me Zoom hosting privileges that I have at the College of Law, and allows eating and drinking in the classroom. Nevertheless, parts of the teaching I did on Saturday are analogous to what I will be doing at the College of Law in my Business Associations course. Given that some of you also may be teaching in a similar format, I offer a few observations on Saturday's hybrid teaching experience here.
- Sanitizing: An abundant supply of sanitizing wipes were made available. The course administrator noted that she had sanitized my work station (podium, keyboard, mouse, mic) before I had arrived, but she was not offended when I also sanitized everything. A ziplock bag with a travel-sized bottle of hand sanitizer was given to me for my use during class (although I had brought my own). That was a nice touch.
- Hosting: I wish I had asked for hosting or co-hosting status for the class Zoom meeting room. I wanted to offer a short poll to the remote students, but there was a miscommunication between me and the program administrators. As a result, my poll had not been added to the meeting in advance. Also, when the course administrator put the remote students into breakout rooms for a class exercise, I was put into one room as opposed to being able to easily move between rooms. I worked around these issues, but I would have been able to smooth over these bumps in the class plan execution if I had been the Zoom meeting host or co-host.
- Producer: The course administrator served as a "producer" for the class session--a term that is being used to describe the person who is monitoring remote students for participant hand raises, questions, comments, technology issues, and course and college compliance. She sat in the back of the room and raised her hand when a remote student had a question or comment. At my request, she also conveyed information to the remote students through the chat. This worked well, although the chat comments and questions sometimes were predictably a bit out-of-sync with the instruction.
- Acoustics: The voices of the physically present students did not carry well in the room or through the room mics to the remote students. I tried to summarize or repeat the questions being asked or comments being made in the physical classroom since I was mic'ed.
- Masks: Mask-wearing was a somewhat sloppy/noncompliant. The masks of some students appeared to be too small to cover their mouth and nose. Students sometimes (inadvertently, it appeared) pulled their masks down off their noses or even down below their chins. They seemed to be unaware they were moving/removing their masks. When students wanted eat a snack or have a drink, of course, they had to at least move--if not remove--their masks to do so. For the most part, however, the students were not close enough to present a marked danger to me or each other. And there was no belligerent or other refusal to "mask up."
- Gathering: Humans are natural attractive magnets. During the in-class exercise, while most students in the classroom did as I asked and stayed in their seats or in other "eligible" seats in the classroom, I did caution one group to adjust their masks and distance themselves from each other because they stood up and moved to within six feet of each other. They seemed unaware that their masks may not have been fully covering their mouths and noses and that they had closed in on each other's space. (This incident occurred near the end of our third 75-minute session.) But I admit that the students did not look overly concerned that I was offering them cautionary instructions . . . .
I am sure there is more that I could think of if I put my mind to it. But this is the core of what I noticed. I did not sense that I was exposing myself to an uncomfortable level of risk. Teaching in a hybrid format with these ProMBA students (who by now know me reasonably well) was challenging. In the end, it was neither a bad teaching experience nor the best teaching I have ever done. But teaching and learning were happening during the class sessions. I hope that when I am teaching in my home space--with familiar technology, as the host of my class Zoom meetings, with no eating or drinking permitted in the classrooms--things will go a bit more smoothly. Fingers crossed!
Tuesday, August 11, 2020
The Mercer University School of Law seeks a candidate to fill the Southeastern Bankruptcy Law Institute & W. Homer Drake Jr. Endowed Chair in Bankruptcy Law. The faculty member will teach Bankruptcy Law and business related courses. Candidates who will add to the diversity of our faculty are particularly encouraged to apply. Mercer University is an AA/EEO/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: http://hr.mercer.edu/jobs/ and attach a current CV with the names and contact information for three references. For information contact Professor Stephen Johnson, Chair, Appointments Committee, Mercer University School of Law, Johnson_s@law.mercer.edu.
Monday, August 10, 2020
I recently received word from one of our former guest bloggers, Marcos Mendoza (whom I introduced here and who posted here, here, here, here, and here), that his most recent insurance article, The Limits of Insurance as Governance: Professional Liability Coverage for Civil Rights Claims Against Public School Districts, has been published in the Quinnipiac Law Review. It is available on SSRN here. The abstract follows.
Insurance intersects with people throughout their lives, sometimes with elements that are unobserved or misunderstood. That is often the case with “insurance as governance,” a form of private contractual regulation. This theory assumes that insurers, to minimize their financial losses, attempt to shape policyholder conduct by employing private regulatory measures, primarily through underwriting and contractual loss prevention methods. Insurance as governance is about risk reduction.
This article addresses a question regarding civil rights—do insurers influence the civil rights policies of public school districts? A broad legal arc encompasses civil rights litigation against schools, from freedom of speech complaints to sex-based claims involving students. School boards purchase professional liability insurance to defend their operational policies and actions. Previous research has not examined whether insurers attempt to shape school officials’ conduct to reduce these claims. This article finds that insurer influence is surprisingly minimal despite the financial and potential societal benefits.
Landmark scholarship (Rappaport, Harvard Law Review, 2017) established that insurers could positively influence police officer conduct, resulting in fewer civil rights claims against police entities. But this school environment research determines that insurers of public schools do not employ assertive loss prevention methods to limit civil rights claims. This lack of private regulation is because school boards want and exercise significant local control authority, and the administrators of interlocal risk pools—the leading type of insurer discussed within—have political concerns about membership stability, leading to regulatory hesitation.
This empirical study makes two main contributions. First, it involves a discussion of why insurer private regulation does not linearly increase when school district civil rights exposures rise. This contribution includes a review of the school districts’ mutual ownership of the predominant school insurer, the interlocal pool; an examination of the strong local control desires of school boards; and an analysis of the attendant political concerns of the interlocal pool administrators. Second, it reviews the policy adoption process of school boards, notes how school officials interact with and tend to resist insurers, and documents how this sociolegal setting creates insurers’ reluctance to attempt conduct-shaping with school districts regarding civil rights. This article will further private regulation scholarship regarding governmental entities and allow scholars to reassess the reach of insurance as governance.
Both this article and an earlier piece written by Marcos are cited in the new edition of Kenneth Abraham and Dan Schwarcz's Insurance Law and Regulation casebook.
I took a quick peak into the article, even though insurance is not my legal "thing." (I come from a line of insurance brokers and underwriters, but I went a different way . . . .) The article is well written and covers a lot of interesting ground. It is a tale of private ordering and regulation--or, rather, the absence thereof. On a macro level, the piece asks and answers the question: why, if insurance contracts incentivize policyholder behavior in some circumstances or with some insureds, do they not incentivize behavior in or with others? Its focus is, as the article title suggests, on public school districts as policyholders and civil rights claims as insured risks.
Although The University of Tennessee recently faced significant exposure for alleged Title IX violations (settled four years ago), I admit I hadn't thought much about the exposure of school districts to civil rights litigation. Of course, that exposure includes more than Title IX litigation. As the article notes, Section 1983 claims, Title VI claims, Title VII claims, and disability claims under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973 also represent potential liability threats. Overall, the level of risk is reasonably high.
Yet, perhaps not high enough . . . . In the introductory portion of the article, Marcos contrasts the regulation of public police through insurance policies (evidenced in prior literature) with the lack or failure of similar regulation of public school districts. In the conclusion, he notes, among other things, that "it seems that assertive regulation happens with public actors only when the risk exposures become extreme, and not before." He also observes that insurer, as well as insured, behaviors contribute to the creation of regulatory power through insurance arrangements. All in all, the article is an instructive read with analogies to many other areas in which common types of contracts are entered into by repeat players in a commercial or other context.
Sunday, August 9, 2020
This announcement landed in my "in box" courtesy of friend-of-the-BLPB ad compliance law expert Veronica Root Martinez at Notre Dame:
Notre Dame Law School Hiring Announcement
Monday, August 3, 2020
Drake University invites applications from entry level and lateral candidates for a tenure-track Assistant/Associate Professor of Law position beginning in the 2021-22 academic year. We are interested in candidates with demonstrated interest or experience in Technology Law. Applicants must hold a J.D. degree (or the equivalent) and should have a record of academic excellence, substantial academic or practice experience, and a passion for teaching. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.
In addition to service and scholarship, this position involves teaching courses such as Legal/Ethical Issues in Technology, Technology Law, Privacy Law, and related areas in both the Law School and the College of Arts & Sciences as well as advising law and undergraduate students and serving as a University resource on technology legal issues.
Drake University sustains a vibrant intellectual culture, and Des Moines has been recognized as the Best Place to Live (US News), the Best Place for Young Professionals (Forbes), and as the #1 Best U.S. City for Business (MarketWatch).
Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake’s core values and applicants need to demonstrate an ability to work with individuals and groups of diverse backgrounds.
Confidential review of applications will begin immediately. Applications (including a letter of interest, a complete CV, teaching evaluations (if available), a diversity statement, and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: email@example.com.
Drake University Law School invites applications from entry level and lateral candidates for a tenure-track or tenured Assistant/Associate/Professor of Law position beginning in the 2021-22 academic year. We are especially interested in candidates with demonstrated interest or experience in Contracts, Sales, Tax, Intellectual Property, and Family Law. Applicants must hold a J.D. degree (or the equivalent) and should have a record of academic excellence, substantial academic or practice experience, and a passion for teaching. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.
Drake University Law School sustains a vibrant intellectual culture, and Des Moines has been recognized as the Best Place to Live (US News), the Best Place for Young Professionals (Forbes), and as the #1 Best U.S. City for Business (MarketWatch). The Law School features innovative and nationally recognized programs in agricultural law, constitutional law, legal research and writing, and practical training.
Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake’s core values and applicants need to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.
Confidential review of applications will begin immediately. Applications (including a letter of interest, a complete CV, teaching evaluations (if available), a diversity statement, and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: firstname.lastname@example.org.
Mitch Crusto, a long-term buddy from past Southeastern Association of Law Schools (SEALS) conferences, contacted me last year about participating in a discussion group at this year's SEALS conference on issues surrounding and emanating from Jeffrey Epstein's significant asset transfers to a trust (for the benefit of his brother) two days before his death, currently ruled to be a death by suicide. The discussion group, held yesterday afternoon/evening, was designed to explore interdisciplinary approaches to legal problem-solving, with the thought that the conversation might spur us to bridge doctrinal silos not merely for ourselves, but also for the benefit of our students (in and outside the classroom). Megan Chaney and Victoria Haneman spoke passionately on that issue to lead-off our discussion. Doctrinal areas covered in the session included trusts & estates, business associations, federal income taxation, criminal law, civil rights, and professional responsibility (and I am sure that I am missing some . . . ).
In our initial set of communications, I asked Mitch what possible angle I could have on the Epstein trust matter based on my work and areas of expertise. He noted in response that he would like the session to address, e.g., whether veil piercing doctrine from the business entity law sphere might have a role in helping Jeffrey Epstein's judgment creditors--especially victims of his sexual exploitation, trafficking, molestation, and rape (including the sexual exploitation of teenaged victims)--satisfy any damages awarded to them with assets transferred to and held in the trust. I took the bait, more out of allegiance and curiosity than out of a feeling that I had something valuable to contribute. The session was extremely rewarding professionally and personally. I am sharing some musings from it today, most of which I also shared in yesterday's discussion. They are in the nature of a fledgeling thought experiment and do not reflect deep research.
At its base, the Epstein asset recovery issue presents as a fraudulent conveyance question: can creditors claw back into Jeffrey Epstein's estate the assets he put into trust (presumably to avoid keeping those assets in his name and, after death, in his estate) and, if so, under what circumstances? In reporting on the trust and the ability of Jeffrey Epstein's creditors to access assets from it, a Forbes article from last year concluded, on balance, that the trust assets may well be reachable by those creditors to satisfy their judgments. Of course, certain factual and legal matters asserted or assumed in the article's assessment would need to be established in fact (and participants in yesterday's session both agreed and disagreed with the conclusion expressed in the article, based on their individual knowledge of and "take" on the facts).
Aways loving a challenge, I set out to think about the business entity law angle Mitch pitched--focusing in on veil piercing doctrine (as the same is legally recognized under the law of corporations and limited liability companies). Interestingly, the Forbes article described a trust by contrasting it with these forms of business entity.
It is important to understand what a trust is and isn't. First, what it isn't: A trust has no physical existence: You can't have it over to your house on Saturday afternoon for beer and bar-b-que. Nor does a trust have a separate legal existence either, since it is not considered a "person" under the law that can itself sue or be sued; contrast this with the legal fictions known as corporations and LLC, which are considered "persons" under the law that can sue and be sued in their own names.
Right. So, there is no legal entity to disregard (although it was noted in the discussion group that a trust may be a taxable entity--a recognized legal person--for federal income tax purposes). There is, instead, the need to disregard a unique, legally recognized fiduciary relationship built on a contract or contract-like arrangement that involves the transfer, holding, and administration of property. The lack of legal entity status gives me pause.
Also, of course, veil piercing relates to who is liable for a loss (not whether assets owned of record by a transferee may be recovered, of sorts, and used to satisfy liabilities of the transferor). Various theories (e.g., alter ego, insufficient separateness, unity of interest/ownership) underlie the equitable application of veil piercing doctrine. Given the nature of a trust, however, I am hard-pressed to come up with a theory that would explain or justify holding a properly constructed trust or its trustee liable for the grantor's wrongful conduct. The possibility of disregarding the trust is not, then, logically rooted in notions of direct or vicarious liability operative in business entity law.
All that having been said, there is an interesting, albeit imperfect, analogy to explore between reverse veil piercing and fraudulent transfer law as the same may relate to the Jeffrey Epstein trust scenario. In reverse veil piercing, as business lawyers know well, a business entity is held legally responsible for damages created by the wrongful conduct of a shareholder. As a result, the corporation's assets would be used to satisfy the judgment for that wrongful conduct. The argument in the Epstein trust situation would be that transfers to a trust should be voidable to cover damages created by the wrongful conduct of the grantor. Thus, assets of the trust would be used to satisfy the judgment for that wrongful conduct. The analogy is arguably grounded in common policy underpinnings--the desirability that a plaintiff's recovery of damages for bona fide cognizable claims not be avoided by the establishment of legal structures purposefully designed to defraud or promote fundamental injustice. Kenya Smith put a point on the analogy in our session yesterday by asking us to consider whether reverse veil piercing would be appropriate if Jeffrey Epstein had transferred his assets to a corporation instead of a trust . . . .
Indeed, it appears that the reverse veil piercing argument has been used in at least a few cases. A 2020 Sixth Circuit opinion--Church Joint Venture, L.P. v. Blasingame, 947 F.3d 925 (6th Cir. 2020)--addresses reverse veil piercing in relation to a trust governed by Tennessee law. The opinion of the court notes that, under Tennessee law, reverse veil piercing has only been applied in the parent-subsidiary context. Both the opinion of the court and the concurrence offer much to consider. (I have more to say about the concurrence in the next paragraph.) Moreover, a Utah law firm has published a helpful post that offers a brief treatment of three cases--a federal tex case in which the argument was successful and two non-tax cases in which the argument was unsuccessful. (The post also includes information about two possible alternative arguments applicable to asset protection trusts: that the funding of all or part of the trust was a fraudulent transfer and, in the case of a self-settled trust, that the trust should not be recognized under applicable law.)
A problem with the reverse veil piercing analogy, to the extent it may be considered for use in a legal action, is the possible application of the doctrine of independent legal significance (a/k/a the doctrine of equal dignity). Under that doctrine, as it might be applied in this context, if a person chooses to use a corporation to accomplish a goal, then the law applicable to corporations should govern; and if a person chooses to use a trust to accomplish a goal (even if it be the same goal that could be accomplished with a corporation), then the law applicable to trusts should govern. A court may use that doctrine to reject the application of corporate law to the trust. In fact, the concurring opinion in the Church Joint Venture case cited above is grounded in independent legal significance and notes some of the points regarding the legal entity status (or a lack thereof) of trusts raised above. The concurrence begins: "I join the court’s opinion in full. I write to add a word (or two) about my discomfort with incorporating 'veil piercing' and 'alter ego' theories into trust law. Both concepts originate in corporate law, and both concepts should stay there." Church Joint Venture, L.P. v. Blasingame, 947 F.3d 925, 935 (6th Cir. 2020). I found the concurrence a great read overall. Another quotable from that opinion: "How could one 'pierce the veil' of a trust? It doesn’t have a veil, much less any form to pierce into." Id.
Notwithstanding the foregoing, it may be possible to use veil piercing not as a primary argument but, rather, as support for another legal theory of recovery (likely, fraudulent conveyance). It seems that legal actions may often raise both fraudulent transfer and veil piercing arguments, in the alternative, in any case. Regardless, it has been both instructive and satisfying to identify, think through, and discuss these issues with colleagues from other disciplines and other law schools. I look forward to future conversations of this kind with these and other colleagues in legal education, and I also look forward to engaging students with and in these discussions.
Tuesday, July 28, 2020
As I have been working on a few projects involving law firms and legal education in the pandemic, I have come across a number of fun business law items involving mergers and acquisitions. The news reports I have noted cover regulatory changes, case law, and planning/drafting. Both small and large transactions are receiving attention. I shared these with Business Law Section colleagues in the Tennessee Bar Association about a week ago. I got some positive response. So, I am sharing them here, too. Feel free to post what you are seeing in this regard in the comments.
In the small business arena, a recent American Bar Association (ABA) Business Law Today article focuses in on clawback provisions in equity sale agreements. These provisions, the article avers, “enable the former owner to participate in the consideration received in a subsequent sale of the business by the remaining owner or owners.” The article lists a number of key things to consider in drafting these kinds of provisions.
Another ABA Business Law Today piece notes the trend toward glorifying deal price in valuation determinations, as evidenced in recent Delaware court opinions on appraisal rights. The article cites to three leading cases, two in 2017 and one in 2019, that address fair value determinations under Delaware law. As to the most recent case, Verition Partners Master Fund Ltd. v. Aruba Networks, Inc., No. 368, 2018 (Apr. 16, 2019) (per curiam), the article importantly notes that “the Delaware Supreme Court sides with the Chancery Court’s position—and reinforces recent Delaware jurisprudence—by holding that the deal price should act as a ceiling for a valuation, a result that will likely reinforce the trend in place since 2016 toward decreasing numbers of appraisal petitions.”
Another noteworthy M&A news item is the recent release by the Federal Trade Commission (FTC) and Department of Justice (DoJ) of final Vertical Merger Guidelines. As multiple sources report (see, e.g., here and here), formal guidelines for non-horizontal mergers were last issued in 1984. The most recent articulation of the FTC and DoJ Horizontal Merger Guidelines occurred in 2010.
Finally, an article in the National Law Review reminds us that it may be a good time to review client charters and bylaws to ensure that anti-takeover protections are up-to-date and adequate. A helpful list of possible anti-takeover devices is included in the article. The article also covers general corporate governance upgrades that may be warranted at this time. Specifically, the article recommends “that boards evaluate potential revisions to their bylaws to allow for greater flexibility and clarity relating to shareholder meetings and board actions.” Suggestions for shareholder meeting enhancements include ideas relating to virtual meetings and meeting procedures. Advice on board action provisions relates to remote meetings and emergency bylaws.
Why should we care about these developments, observations, and recommendations? Changes in the economy and in specific client circumstances relating to the COVID-19 pandemic may make M&A a more significant part of corporate governance and transactional activity for the next year or two. As a result, it will be important for business lawyers to remain up-to-date on current M&A activity as well as related regulatory pronouncements and practice points. As academics, we, too, may be engaged in related activities for the same reason. Food for thought . . . .
Friday, July 17, 2020
This coming week, the Association of American Law Schools will host its seventh week of special summer webinars geared to providing assistance to under-supported law faculty in our current unusual circumstances. The series, dubbed "Faculty Focus," is described in the following way on the program website (which also includes information about upcoming programs):
COVID-19 has affected the normal rhythms of the legal academy in ways that may be particularly disruptive for early-career faculty.
AALS invites tenure-track, clinical, and legal writing faculty to join us on Tuesday afternoons for “Faculty Focus,” a series of weekly webinars organized around issues these individuals may be facing as well as challenges affecting higher education and the profession in general.
Each 60-minute webinar will feature expert advice from law school leaders followed by shared experiences from early career law faculty. The sessions will be structured to encourage conversation and connection, with opportunities for participants to crowdsource solutions and discuss common issues across schools and teaching areas.
Although I am not in the target audience, I have enjoyed several of these programs. Here is a list of the programs held to date:
Week 1: Work-Life Balance and the Demands of Scholarship
Tuesday, June 9, 2020
Week 2: Meeting the Needs of All Students Online
Tuesday, June 16, 2020
Week 3: Excellence in Online Instruction
Tuesday, June 23, 2020
Week 4: Racism, Justice, and Your Fall Classes
Tuesday, June 30, 2020
Week 5: A Perspective from the Dean’s Offices
Tuesday, July 7, 2020
Week 6: Effective Use of Research Assistants
Tuesday, July 14, 2020
Week 6: How to Become an Excellent Teacher While Starting Your Career in a Pandemic
Thursday, July 16, 2020
I was honored to be asked to participate in the panel discussion, convened last Tuesday, on Effective Use of Research Assistants. The recording for that session and the other past programs is available here. This coming week, the session focuses on What Every Faculty Member Should be Doing This Summer. You can register for it here.
Monday, July 6, 2020
The title of this post is the title of a panel discussion I organized for the 2019 Business Law Prof Blog symposium, held back in September of last year. (Readers may recall that I posted on this session back at the time, under the same title.) The panel experience was indescribably satisfying for me. It represented one of those moments in life where one just feels so lucky . . . .
Why? Because it fulfilled a dream, of sorts, that I have had for quite a while. Here's the story.
About ten years ago, I ended up in a conversation with two of my beloved Tennessee Law colleagues while we were grabbing afternoon beverages. One of these colleagues is a tax geek; the other is a property guy. Somehow, we got into a discussion about mergers and acquisitions. I was asked how I would define a merger as a matter of corporate law, and part of my answer (that mergers are magic) got these two folks all riled up (in a professional, academic, nerdy way). The conversation included some passionate exchanges. It was an exhilerating experience.
I have remembered that exchange for all of these years, vowing to myself that some day, I would work on publishing what was said. When the opportunity arose to hold a panel discussion to recreate our water-cooler chat at the symposium last fall, I jumped at the chance. I was tickled pink that my two colleagues consented to join me in the recreation exercise. They are good sports, wise lawyers, and excellent teachers.
My objective in convening the panel was two-fold.
First, I thought that students would find the conversation illuminating. "Aha," they might justifiably say. "Now I know why I am confused about what a merger is. It's because the term means different things to different lawyers, all of whom may have a role in advising on a business combination transaction. I have to understand the perspective from which the question is being asked, and the purpose of answering the question, before I can definitively say what a merger is." Overall, I was convinced that a recreation of the conversation through a panel discussion could be a solid teaching tool.
But that's not all. Faculty also can earn from our dialogue. It helped me in my teaching to know how my tax colleague (who teaches transactional tax planning and business taxation) and my property colleague (who teaches property and secured transactions) define the concept of a merger and what each had to say about his definition as it operates in practice. I like to think my two colleagues similarly benefitted from an understanding of my definition of a merger (even if neither believes in statutory magic) . . . .
Now, you and your students also can benefit from the panel. Although it is not quite as good as hearing us all talk about mergers and acquisitions in person (which one can do here), Transactions: The Tennessee Journal of Business Law, recently published an edited transcript of the panel discussion as part of the symposium proceedings. It also is titled "What is a Merger Anyway?" And you can find it here. (The entire volume of the journal that includes the symposium proceedings can be found here. Your friends from the BLPB are the featured authors!) I am sure that your joy in reading it cannot match my joy in contributing to the project, but I hope you find joy in reading it nonetheless.
Tuesday, June 30, 2020
As many of you may know, I enjoy reading and writing about leadership. I am proud of the work that our law school has been doing for a number of years in highlighting the value of lawyers as leaders--through teaching, scholarship, and service--under the auspices of our Institute for Professional Leadership. I am privileged to have the opportunity to serve as Interim Director of that program effective as of August 1. I am grateful for the support of our incoming Interim Dean, Doug Blaze, and so many of my colleagues as I assume this new responsibility.
Among the service elements of the Institute is its weblog, Leading as Lawyers. Last year, I began writing occasional posts for the blog--first on Leading Without a Title and next on The Role of Process in Leadership. (I mentioned and linked to the latter in this BLPB post last summer.) I have continued my leadership blog post writing this spring, and the first of my spring posts, There is No Place for Schadenfreude in Leadership, was published late last week. Although my Leading as Lawyers posts may well have value for business lawyers and business law instructors, they are not specifically written with our BLPB audience in mind. Nevertheless, I will endeavor to bring them to your attention from time to time.
Given that my interest in leadership will happily soon become a more formal part of my job, I hope that many of you will bring to my attention things that you read or see or hear that relate to, e.g., teaching leadership to law students, lawyers and law professors leading through their work and in their communities, and law students assuming leadership roles. The Institute focuses on all of these things. I look forward to continuing this work in my new role.
I will end by offering two lines from my recent schadenfreude post as food for thought:
Leadership is, of course, about looking out for and lifting up those on your team—not just yourself, and especially not yourself at the expense of others. While individualism, diversity, independence, and self-pride are important aspects of a functional team, each team member must use these attributes for the collective good of the whole—not selfishly or with ego or malice.
Especially in the challenging environment in which we business lawyers now practice and teach, maintaining a positive, inclusive, collaborative, empowering workplace would seem to be critically important. It not only can help mitigate schadenfreude, but also can help lay a foundation of trust that enables projects, programs, organizations, and institutions to survive and progress in a dynamic social, economic, and political setting.