Business Law Prof Blog

Of Directorships: Reconfiguring the Theory of the Firm

It always is a great pleasure to pass along and promote the work of a colleague.  And today, I get to post about the work of a UT Law colleague!  Many of you know Tomer Stein, who came to join us at UT Law back in the summer.  He is such an ideal colleague and, like many of us, has broad interests across business finance and governance.

This post supports a recent draft governance piece, the title of which is the same as this post--Of Directorships: Reconfiguring the Theory of the Firm.  You can find the draft here.  The abstract is included below.

This Article develops a novel account of directorships and then uses it to reconfigure the theory of the firm. This widely accepted theory holds that firms emerge to satisfy the economic need for carrying out vertically integrated business activities under a fiduciary contract that substitutes for the owners’ multiple agreements with contractors and suppliers. As per this theory, the fiduciary contract is inherently incomplete, yet often preferable: while it cannot address all future contingencies in the firm, it will effectively direct all unaccounted-for firm events by placing them under the owners’ purview as a matter of default, or residual right. Under this contractual mechanism, firm owners, such as corporate shareholders, acquire the status of residual claimants who have the power to decide on all contractually unenumerated contingencies.

This view of the firm is conceptually flawed and normatively mistaken. Firms do carry vertically integrated business activities managed by their fiduciaries, but those fiduciaries—agents, trustees, and directors—are not functional equivalents from either the legal or economic standpoint. Unlike agents and trustees who receive commands from principals and settlors, respectively, directors manage the firm’s business by exercising decisional autonomy. Conceptually, shareholders who hire directors do not run the firm’s business as residual claimants. Rather, it is the directors who manage the firm as residual obligors—all contractually unaccounted for contingencies are placed under the fiduciary’s purview as a matter of obligation. This feature makes directorship an attractive management mechanism that often outperforms other fiduciary mechanisms, and the residual-claimant structure that stands behind them, in a broad variety of contexts. By developing this critical insight, the Article proposes not only to reconfigure the prevalent theory of the firm, but also to redesign both federal and state laws in a way that will facilitate directorships not only in corporations, but also across several indispensable dimensions of our financial, communal, and familial organizations.

As someone who understands both the central role of the director in corporate governance and the incomplete and inaccurate principal/agent relationship between shareholders and directors, I have enthusiasm for this project!  But I also am intrigued by the thought that the ideas in the paper can be translated to non-business institutions and groups.

Read on, and enjoy!

Governance, Finance, and HBO Max's Succession

The title of this post is the name of the advanced business associations law course I will teach in the spring.  I got the idea for this course after talking to students about decreasing enrollments in advanced business law courses.  Although they attributed much of the decrease to grade shopping, they also noted that they and their peers often base course registration decisions on course names (from which they make assumptions) without reading the course descriptions.  So, a course named "Advanced Business Associations," no matter how creatively it is taught (and I teach it as a discussion seminar), is not likely to attract positive attention.  When I floated using the HBO Max series Succession as a jumping off point for a discussion seminar on business law, they responded favorably.  The rest is, as they say, history. The proof of the pudding will be in the registration numbers.

The idea for the Succession-oriented course came to me quite naturally. I already was writing an essay on fiduciary duties relating to the series--forthcoming in the DePaul Law Review in a special volume focusing on Succession.  So, it was only a small jump to think about teaching more broadly from the many business law situations in the four seasons of the show.

Some of my friends from West Publishing heard about my teaching plans when they were visiting UT Law recently.  They mentioned the course to their colleague, Leslie Y. Garfield Tenzer, who produces a podcast for West Academic, Legal Tenzer: Casual Conversations on Noteworthy Legal Topics.  Leslie reached out and asked me to record an episode with her on the series and my course, which I recently did.  The podcast was released last week.  You can find it here.

My Succession course syllabus is still under construction.  If you have a favorite episode that you would like me to include--one that illustrates concepts from business governance or finance--let me know.  I admit that I am excited to teach from the material in Succession, a series that I enjoyed watching.

Listservs, Emails, Texts, and Maintaining Relationships

As I reflect on the current contentious world environment, I cannot help but note the impact that electronic communication has on maintaining quality personal and professional relationships.  Although it sometimes may seem that business law professors are less impacted by domestic and global events, our work's engagement with broader economic, social, and political issues and our individual intersectionalities can keep us in the throes of it all.  As someone who cares deeply about (and believes in the power of) human relationships and interpersonal communication (leading me to co-design and co-teach small group communication course for our leadership curriculum), I offer some food for thought here.

We all enjoy free speech.  And I respect that right deeply.  I bear a tattoo on my body (an open "speech bubble" on my right scapula) as a symbol of that belief.

I also believe in the careful, considerate exercise of that important right.  I have written a bit about this before, in another blog space, arguing for well considered communication.  My conclusion in that post?

Just because a person can say something in the exercise of their rights to free speech, does not mean that the person should say something. And if someone chooses to say something, the way in which the communication is made can make all the difference. Through mindful collegiality, Ubuntu, civility, and other conduct reinforcing inclusion, a lawyer-leader can motivate action and loyalty in and outside their law practice.

Although I wrote that post back in February of 2022, what I say in the post still rings true to me.

Electronic communication seems to be an enabler of suboptimal behaviors in this regard.  I am, of course, not the first to observe this.  But I see relationships falling apart right and left (political pun acknowledged) because of people's choices in using electronic communication, especially (although not exclusively) in group settings.  Most recently, as some of you readers know, this has been happening on the Association of American Law Schools Section on Women in Legal Education listserv.  This has saddened me.  That group, and the listserv that binds us, has historically been an inclusive space.  I hope we can revive that ethos of inclusion, even as long-term members of the section determine to disengage from communication in that forum.

There is so much information on the Internet about etiquette in electronic communication.  In the course I taught this semester, my co-instructor and I assigned some of those publications.  We had a robust discussion with the students.  Some expressed their surprise at the way certain words and phrases in emails and text messages may impact the reader in unintended ways.  We discussed whether to communicate electronically at all, and if so, how.  We assigned out-of-class work on related issues.  I felt good about the information we conveyed and the discussions we had.  That positive feeling was borne out when one of the students in the course used the material in another course (Corporate Finance) in which I also am the instructor.

I wish we had covered listservs in our course.  I plan to add that to future iterations of the course.  I have discovered that many organizations, undoubtedly struggling with the threat that listservs will disrupt group relations, have formalized rules about their usage.  This seems like a sensible approach to help avoid (or at least limit) the disrespect that may be shown to listserv managers and moderators in the event of a conflict over the appropriate use of the listserv.  For example, the American Bankruptcy Institute has listserv guidelines.  They provide instruction on best practices (including a statement on topic scope) and also on prohibited practices.  Among the prohibited practices is one that seems relevant to communications I now notice more frequently.

Subjects Generating More Heat Than Light

Occasionally, a subject will come up that generates lots of posts because of its controversial nature. If the discussion threatens to overwhelm our mailboxes or becomes nasty, we will ask that those interested in discussing it further take the discussion off the list.

Do not challenge or attack others. The discussions on the lists are meant to stimulate conversation, not to create contention. Let others have their say, just as you may.

The guidelines also include instructions on brevity, advise users how to alert readers to message content and length, and caution folks to "[o]nly send a message to the entire list when it contains information that everyone can benefit from."  Other websites I reviewed offered similar guidance (in some cases using some of the same wording).

I offer all of this up for what it may be worth to you.  I am committing myself to working on being the best group member I can be because I value my relationships with members of the groups to which I belong.  These people have helped me ride over many bumps in my personal and professional lives over the years.  They have supported me in handling stress caused by deaths, recessions, bullying/verbal abuse, a global financial crisis, a global pandemic, a number of wars and political conflicts, and much more.  I know my students will benefit more from my teaching if I can manage that stress.  I also aim to teach them some of what I have learned about the importance of relationships as opportunities arise.

Moreover, as I earlier noted here on the BLPB, I am writing an essay that connects with this topic based on a presentation I gave at the annual Business Law Prof Blog symposium, "Connecting the Threads," last month.  The essay, Business Lawyer Leadership: Valuing Relationships, will cover the connection of business law and lawyering to relationship building and maintenance.  It will be published in a forthcoming (spring 2024) volume of Transactions: The Tennessee Journal of Business Law that will feature works presented at the symposium together with faculty and student commentary.  I will post on the essay and the volume once online access is available.

The Future of ESG - Symposium on Thursday & Friday

I am proud to be presenting (alongside a stellar group of business law folks) at this symposium and honoring my friend and our wonderful colleague Jill Fisch. More information, including information on how to register to attend (if you are in the neighborhood) can be found here.

Materiality and the SEC's Rulemaking Authority

Over the summer, friend-of-the-BLPB Bernie Sharfman posted a draft paper to SSRN that was the subject of a short colloquy between us.  The paper, The Ascertainable Standards that Define the Boundaries of the SEC's Rulemaking Authority, asserts, among other things, that materiality is one of three "ascertainable policy standards that Congress has placed in the Acts to guide the SEC’s rulemaking discretion."  The reasoning? 

• "[T]here are multiple references to materiality in the Acts."
• The SEC's 1972 annual report avers that "[a] basic purpose of the Federal securities laws is to provide disclosure of material financial and other information on companies seeking to raise capital through the public offering of their securities, as well as companies whose securities are already publicly held."
• "As observed by Professor Ruth Jebe, it is fair to say that materiality 'constitutes the primary framing mechanism for financial reporting.'"

Bernie acknowledges that "there is no explicit statutory language in the Acts that forbids the SEC from promulgating rules requiring non-material disclosures."  I might add that nothing in either the Securities Act of 1933, as amended ("1933 Act"), or the Securities Exchange Act of 1934, as amended ("1934 Act"), explicitly limits the SEC's rulemaking authority to rules qualified by materiality.

Since the U.S. Congress knew to use materiality to qualify some disclosure, enforcement, and other responsibilities under the 1933 Act and the 1934 Act and not others, it easily could have provided an express constraint on the SEC's overall rulemaking authority in that regard.  Arguably, since Congress did not qualify all of the disclosure mandates in the 1933 Act or 1934 Act by materiality, SEC rulemaking that introduces a materiality qualification may be subject to unfavorable scrutiny.  (Congress could then take the view that, if it had meant to restrict the statutory disclosure or other mandates to only those items that are material, it would have said so.)  Yet, overall, Congress has delegated relatively broad authority to the SEC to engage in rule making that serves the investor protection, market integrity maintenance, and capital formation policies underlying the various provisions of the 1933 Act and the 1934 Act.

For example, Schedule A to the 1933 Act sets forth the initial disclosure mandates provided for by Congress for registration statements. See §7(a)(1) of the 1933 Act.  Congress then notes that the SEC "may by rules or regulations provide that any such information or document need not be included in respect of any class of issuers or securities if it finds that the requirement of such information or document is inapplicable to such class and that disclosure fully adequate for the protection of investors is otherwise required to be included within the registration statement."  Id. The disclosure requirements for registration statements are now executed primarily through registration forms adopted by the SEC under the 1933 Act.  In both Schedule A and in the forms of registration statement adopted by the SEC under the 1933 Act, disclosures were or are required that are not expressly qualified by materiality.  In fact, few of the mandatory disclosures in Schedule A are limited only to supplying material information.  The same is true for the initial disclosure mandates applicable to 1934 Act registration statements.  See § 12(b) of the 1934 Act.

There's more I could say, but I will leave it there for now.  As you might guess from the above, I am skeptical, at best, about the argument that materiality is a required constraint on SEC rule making.  I consider Congress's words and actions to be most important in this matter (absent any issues identified under the U.S Constitution).  Your thoughts on the asserted materiality constraint are welcomed.

Two Exciting Chair Opportunities at Brandeis (Louisville) Law!

Faculty Position (Harold Edward Harter Endowed Chair)

uofl.wd1.myworkdayjobs.com/en-US/UofLCareerSite/details/...

Position Description:

The University of Louisville's Brandeis School of Law invites applications for the Harold Edward Harter Endowed Chair of Commercial Law, to commence July 1, 2024. The holder of the Harter Chair should have a well-established record of outstanding scholarship as well as teaching expertise in one or more areas of Commercial Law, consistent with the expectations of a tenured, full professor. The University of Louisville is a vibrant, intellectual community while Louisville is a thriving, major metropolitan city with a great legal market.

The Brandeis School of Law is committed to excellence in preparing lawyers for productive careers. The school boasts an excellent faculty with a deep commitment to teaching and academic support, and a low student-faculty ratio. Our smaller class sizes foster close interaction between students and faculty, nurture a culture of collegial learning, and provide opportunities for individualized attention. In addition to teaching excellence, our faculty is deeply committed to producing excellent scholarships and to community engagement. Our faculty boasts many engaged scholars.

The School of Law strives to promote collegiality and professionalism, and its culture is based on civility and respect for all students, faculty, and staff. The school also seeks to admit and support a diverse law school population and provides opportunities to share and discuss differing opinions.

Applicants for this position should have distinguished academic credentials, a record of scholarship, and a strong commitment to scholarship, teaching, service, professional ethics, and collegiality. The School of Law values the diversity of its faculty and encourages applications from persons who will contribute to that diversity.

Documents Requested: Letter of interest – CV – Teaching Philosophy – Teaching Evaluations

The Committee will begin reviewing applications immediately and continue to review until hiring needs are met.

Equal Employment Opportunity

The University of Louisville is an equal opportunity, affirmative action employer, and is committed to providing employment opportunities to all qualified applicants without regard to race, sex, age, color, national origin, ethnicity, creed, religion, disability, genetic information, sexual orientation, gender, gender identity and expression, marital status, pregnancy, or veteran status. If you are unable to use our online application process due to an impairment or disability, please contact the Employment team at [email protected] or 502.852.6258.

 

Faculty Position (Grosscurth Chair)

uofl.wd1.myworkdayjobs.com/en-US/UofLCareerSite/details/...

The University of Louisville's Brandeis School of Law invites applications for the Grosscurth Chair in Intellectual Property to commence July 1, 2024. The holder of the Grosscurth Chair should have a well-established record of outstanding scholarship as well as teaching expertise in one or more areas of Intellectual Property, consistent with the expectations of a tenured, full professor. The University of Louisville is a vibrant, intellectual community with significant opportunities to develop interdisciplinary programs while Louisville is a thriving, major metropolitan city with a need for more attorneys with IP experience.

The Louis D. Brandeis School of Law: The Brandeis School of Law is committed to excellence in preparing lawyers for productive careers. The school boasts an excellent faculty with a deep commitment to teaching and academic support, and a low student-faculty ratio. Our smaller class sizes foster close interaction between students and faculty, nurture a culture of collegial learning, and provide opportunities for individualized attention. In addition to teaching excellence, our faculty is deeply committed to producing excellent scholarships and to community engagement. Our faculty boasts many engaged scholars.

The School of Law strives to promote collegiality and professionalism, and its culture is based on civility and respect for all students, faculty, and staff. The school also seeks to admit and support a diverse law school population and provides opportunities to share and discuss differing opinions.

Applicants: Applicants for this position should have distinguished academic credentials, a record of scholarship, and a strong commitment to scholarship, teaching, service, professional ethics, and collegiality. The School of Law values the diversity of its faculty and encourages applications from persons who will contribute to that diversity.

Documents Requested: Letter of interest – CV – Teaching Philosophy – Teaching Evaluations

The Committee will begin reviewing applications immediately and continue to review until hiring needs are met.

Equal Employment Opportunity

The University of Louisville is an equal opportunity, affirmative action employer, and is committed to providing employment opportunities to all qualified applicants without regard to race, sex, age, color, national origin, ethnicity, creed, religion, disability, genetic information, sexual orientation, gender, gender identity and expression, marital status, pregnancy, or veteran status. If you are unable to use our online application process due to an impairment or disability, please contact the Employment team at [email protected] or 502.852.6258.

UConn Law Seeking Faculty

ASSOCIATE PROFESSOR OF LAW / PROFESSOR OF LAW

The University of Connecticut School of Law invites applications from entry-level and lateral candidates for two full-time, tenure-track, or tenured-at-hire faculty positions commencing in the fall of 2024. Although we will consider candidates with a range of curricular and scholarly expertise, subject areas of particular interest include criminal procedure, environmental and energy law, and taxation; we also have needs in civil procedure, constitutional law, cybersecurity, land use, professional responsibility, property, securities regulation, and trusts and estates. A successful candidate will have a record of professional accomplishments commensurate with an appointment at the rank of (1) Associate Professor (for entry-level candidates) or (2) Professor (for lateral candidates) with an opportunity for tenure-at-hire.

The UConn School of Law is especially interested in candidates who will add to the diversity of our faculty and community. We welcome applications from underrepresented groups and other candidates with experiences, backgrounds, and viewpoints that will enrich the diversity of our institution. UConn Law School is the top-ranked public law school in the Northeast, offering a professional education and scholarly environment of the highest quality. The School is committed to building and supporting a vibrant, multicultural, and diverse community of students, faculty, and staff. Its beautiful Gothic Revival campus is located in the West End of Hartford, a few miles from the state capitol and courts, as well as the headquarters of leading insurance companies and other major corporations. The School has both day and evening divisions and offers the JD (Juris Doctor) degree, LLM (Master of Laws) degrees, and the SJD (Doctor of Laws) degree, as well as several dual degree programs. The UConn Law faculty includes leading scholars, experienced practitioners, and internationally known experts in a wide range of fields. The Law School hosts four student journals, over forty student organizations, extensive clinical and public service for the surrounding communities, and one of the largest law libraries in the world.

Founded in 1881, UConn is a Land Grant and Sea Grant institution and member of the Space Grant Consortium. It is the state’s flagship institution of higher education and includes a main campus in Storrs, CT, four regional campuses throughout the state, and 13 Schools and Colleges, including a Law School in Hartford, and Medical and Dental Schools at the UConn Health campus in Farmington. The University has approximately 10,000 faculty and staff and 32,000 students, including nearly 24,000 undergraduates and over 8,000 graduate and professional students. UConn is a Carnegie Foundation R1 (highest research activity) institution, among the top 25 public universities in the nation. Through research, teaching, service, and outreach, UConn embraces diversity and cultivates leadership, integrity, and engaged citizenship in its students, faculty, staff, and alumni. UConn promotes the health and well-being of citizens by enhancing the social, economic, cultural, and natural environments of the state and beyond. The University serves as a beacon of academic and research excellence as well as a center for innovation and social service to communities. UConn is a leader in many scholarly, research, and innovation areas. Today, the path forward includes exciting opportunities and notable challenges. Record numbers of undergraduate applications and support for student success have enabled the University to become extraordinarily selective.

MINIMUM QUALIFICATIONS

• A JD degree or equivalent terminal degree in a related field.
• Demonstrated expertise and ability to teach effectively in one or more of the following areas: civil procedure, constitutional law, criminal procedure, cybersecurity, environmental and energy law, land use, professional responsibility, property, securities regulation, and taxation.
• A demonstrated capacity for scholarly excellence.
• A demonstrated commitment to advancing diversity, equity, inclusion, and belonging in the workplace, legal academy, and/or profession.

PREFERRED QUALIFICATIONS

Entry-Level

• Demonstrated expertise and ability to teach in either criminal procedure, environmental and energy law, or federal income taxation.
• Published or accepted work that demonstrates scholarly aptitude and long-term promise.
• Active participation in relevant scholarly and/or professional communities.
• Law school teaching experience.

Lateral

• Demonstrated expertise and ability to teach in either criminal procedure, environmental and energy law, or federal income taxation.
• A strong national reputation in the candidate’s field of expertise.
• A record of outstanding achievement in scholarship, teaching, and service.
• Prominence in relevant scholarly and/or professional communities.

APPOINTMENT TERMS

This is a full-time appointment for a tenure-track or tenured-at-hire position. Lateral applicants must meet University requirements for appointment at the rank of Full Professor, with tenure. Salary and rank will be highly competitive and commensurate with background, qualifications, and experience. Benefits include health insurance, retirement annuities, and research support. Candidates should expect to work at the Law School located in Hartford, Connecticut.

TERMS AND CONDITIONS OF EMPLOYMENT

Employment of the successful candidate is contingent upon the successful completion of a pre-employment criminal background check.

TO APPLY

Please apply online to Academic Jobs Online https://academicjobsonline.org/ajo/jobs/25446 and submit the following application materials:

• A letter of interest,
• Curriculum vitae,
• Scholarship statement,
• Teaching statement,
• Commitment to diversity statement,
• Sample journal articles or books,
• Names and contact information for three (3) letters of reference.

Any questions about application materials may be directed to the appointments committee chair, Minor Myers, at [email protected].

At the University of Connecticut, our commitment to excellence encompasses a commitment to building a culturally diverse community.

This position will be filled subject to budgetary approval.

All employees are subject to adherence to the State Code of Ethics, which may be found at http://www.ct.gov/ethics/site/default.asp.

All members of the University of Connecticut are expected to exhibit appreciation of, and contribute to, an inclusive, respectful, and diverse environment for the University community.

The University of Connecticut aspires to create a community built on collaboration and belonging and has actively sought to create an inclusive culture within the workforce. The success of the University is dependent on the willingness of our diverse employee and student populations to share their rich perspectives and backgrounds in a respectful manner. This makes it essential for each member of our community to feel secure and welcomed and to thoroughly understand and believe that their ideas are respected by all. We strongly respect each individual employee’s unique experiences and perspectives and encourage all members of the community to do the same. All applicants will receive consideration for employment without regard to race, color, religion, gender, gender identity or expression, sexual orientation, national origin, genetics, disability, age, or veteran status.

The University of Connecticut is an AA/EEO Employer.

How Do Law Partners Fare When Their Firms Fail?

Andrew Granato has posted his draft paper After the “Partner Run”: the Dewey & LeBoeuf Diaspora on SSRN.  You can find it here.  The abstract reads as follows:

“Partner runs” are a phenomenon distinctive to the American legal profession, a result of legal professional responsibility rules, partnership governance, and bankruptcy law that occasionally causes individual law firms to spiral into liquidation following unexceptional setbacks. It is unclear whether this idiosyncratic feature of law firm collapse can pose a threat to the industrial organization of the legal profession. Can lawyers easily recover and recreate the benefits of law firm scale by re-merging into other law firms with ease, or does a partner run mark a scarlet letter that poisons lawyers’ careers, and the legal profession as a whole, permanently?

I provide the first rigorous examination of this issue using the case study of the 2012 downfall of Dewey & LeBoeuf, the largest law firm bankruptcy ever. I hand-construct a dataset using public information in directories, news reports, and LinkedIn of the career outcomes of every lawyer who worked at Dewey’s U.S. offices in 2012 and a control group of similarly situated lawyers at law firms identified to me by former Dewey leadership as Dewey’s benchmark competition (1,575 lawyers total). Immediately after the firm crumpled, about 80% of Dewey’s partners remained in Biglaw as partners or forms of counsel, while about half of Dewey’s associates remained Biglaw associates. Ex-Dewey associates who were cluster-hired with their practice area out of Dewey as the firm collapsed are more likely to be (1) men and (2) Biglaw partners in 2022. I find suggestive and inconclusive evidence that ex-Dewey partners, a decade on, are marginally less likely to be partners at top law firms than alumni of control firms, and find that the overall distribution of 2022 employment, especially for ex-Dewey associates, is quite similar between alumni of Dewey and its rivals. I therefore find little evidence for stigma against (non-core management) Dewey lawyers or damage from dissolution of firm-specific relational capital in the labor market in the long run.

My findings suggest that the long-run cost of partner runs to the legal profession at an institutional level, at least in times when the overall legal job market is somewhat liquid, is modest at most. The policy implication of this finding is that policymakers and state bar associations should be cautious in modifying the rules that inadvertently generate partner runs, like the requirement of exclusive lawyer ownership of law firms, if such changes would also generate costs. These law firm glass houses, it seems, can regenerate elsewhere.

I first became acquainted with this work at the 2023 National Business Law Scholars Conference this past summer.  As a former Biglaw (a/k/a BigLaw and Big Law--maybe we can settle on one of these terms sometime?) lawyer, I find Andrew's inquiry interesting and the findings somewhat unsurprising (although I admit to being relieved that the impacts on partners were, in fact, modest).  Having known folks in firms that dissolved, I believe it's good to know that a law firm can fail and the partners can survive (and maybe even thrive).

SEALS 2024 - More Business Programming

Last week, I posted about a discussion group I am organizing on teaching numeracy for the Southeastern Association of Law Schools (SEALS) 2024 annual meeting.  (Thanks to those who responded!)  I also am working with folks who are organizing another session.  More on that in another post!  And some of you or others you know also may be proposing panels or discussion groups.  But the Business Law Workshop at the conference can always use another program, imv.

With that thought in mind, I am reaching out to suggest that you organize a business program for the SEALS 2024 annual meeting.  The SEALS submission webpage includes instructions and information about the submission process and a hypertext link to the the submission site.  The submission site is open for 2024 program proposals now and is easy to navigate.  I am happy to help by answering any questions you may have (or by getting answers for you).

The only tricky parts are determining the type of session you want to organize and complying with the requirements for that type of session.  The two most common types of programs are panels and discussion groups, as follows:

PANELS

Panels are the traditional presentations at most conferences. The time allotted is about an hour-and-a-half, and between 4 and 6 panelists do presentations around a central theme or subject. You should leave time for questions or discussion with the audience at the end of the presentations.

Here are the rules that govern Panels:

• • Panels must include at least four speakers.
  • Panels must include both a title for the program, as well as a description of the program.
  • If your proposal would fit into a workshop in a particular area (e.g., constitutional law, criminal procedure, business law, teaching), please indicate that fact in your proposal.
  • Before you list someone as a speaker, please confirm that person is willing and able to participate.
  • The one-panel-per-person rule applies. No attendee may serve on more than one panel. This rule governs all kinds of panels and includes moderators and panelists. There are a
    couple of situations in which this rule will not apply: the Call for Papers presentations, Discussion Groups, mentors for new scholars, and programming in the other special workshops with attendance limited to special registrants (e.g., the workshops for new law teachers and prospective law teachers).
  • Only one person per school can be on a panel unless the two people are co-authors. They are treated as one person for purposes of time.
  • At least half the panelists (including the moderator) must be from institutional and affiliate member schools,

DISCUSSION GROUPS

Discussion Groups require ten discussants, with the designation of one of them as the moderator of the discussion. Groups may include a few additional discussants. Discussion Groups are scheduled in either two-hour or three-hour blocks. The discussants often have concise written papers on a central theme, abstracts, or have prepared some thoughts around several questions connected to that theme. The discussants circulate their papers or thoughts in writing before the conference, spend 3-5 minutes summarizing their points, and then discuss the theme in more depth along with all attendees in the room. Wide audience participation and discussion are the focus of this kind of programming.

To propose a Discussion Group, you will need at least ten discussants.

• • Discussion Group proposals must include a title, as well as a description of the Discussion Group.
  • Before you list someone as a speaker, please confirm that person is willing and able to participate.
  • If your proposal would fit into a workshop in a particular area (e.g., constitutional law, criminal procedure, business law, teaching), please indicate that fact in your proposal.
  • The one-panel-per-person rule does not apply.
  • The one-person-per-school rule does not apply.
  • Discussion Group organizers must issue a call for participants.
  • At least one-fourth of the discussants must be from institutional and affiliate member schools.

So, think about who you might want to join up with to vet current research or talk about teaching methods, techniques, or tools!  Then, propose a program.  The date of the conference (July 21-27, 2024) is optimally situated to position business law faculty for the new school year.  As a result, it is a great conference for rededicating oneself to one's law scholarship and teaching.

SEALS 2024 - Teaching Numeracy Discussion Session

The Southeastern Association of Law Schools (SEALS) is soliciting proposals for its 2024 annual meeting (to be held at the Harbor Beach Resort & Spa in Fort Lauderdale, Florida from July 21-July 27, 2024).  After last year's meeting, folks suggested to me it could be time again to have a teaching panel at SEALS in 2024.  Specifically, the suggestion was made that a group be put together to talk about teaching numeracy to business-inclined students.  I am happy to organize it.

Please let me know if you want to join in on this discussion group.  I am looking for at least nine folks to join me.  Email me or leave a comment here if you would like to join in.

Financial Restructuring Roundtable: Call for Papers

The Third Annual Financial Restructuring Roundtable will be held in person on April 4, 2024 in New York City. Spearheaded by Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues.

The Roundtable invites the submission of papers. Selected participants will receive a $2,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting.

We seek papers exploring diverse topics and will be interested in interdisciplinary perspectives. Papers will be selected through a blind review process. Junior scholars (with one to ten years in academia) are invited to submit a 3 – 5 page overview of a proposed paper. Submissions may be an introduction, excerpt from a longer paper, or extended abstract. The submission should be anonymized, and – aside from general citations to the author’s previous articles – all references to the author should be removed.

Please submit proposals by October 30, 2023. Invitations will be issued via email by December 1, 2023. Working drafts of papers should be available for circulation to participants by March 1, 2024.

Proposals – as well as questions and concerns – should be directed to Samir Parikh at [email protected].

Connecting the Threads VII: This Coming Friday!

I am pleased to report that Connecting the Threads is back for another year--our seventh!  As readers will recall, this annual symposium features the work of your Business Law Prof Blog editors (sometimes with coauthors), with commentary from Tennessee Law faculty members and students.  Every year, my colleagues and I offer up a variety of presentation topics covering developing theory, policy, doctrine, pedagogy, and practice trends in various areas of business law.

This year’s panels include:

“Algorithms to Advocacy: How Emerging Technologies Impact Legal Practice and Ethics”
Marcia Narine Weldon

“The Road and Corporate Purpose”
William P. Murray and J. Haskell Murray

“Is the SEC Proposing a ‘Loaded Questions’ Climate Disclosure Regime?”
John P. Anderson

“Business Lawyer Leadership: Valuing Relationships”
Joan Heminway

“Metals Derivatives Markets and the Energy Transition”
Colleen Baker and James Coleman

If you are in the Knoxville area, please come join us on Friday for the day.  The program runs from 8:30 am (registration) to 3:00 pm.  Registration for CLE credit can be accessed here.

DEIB and Business Law Program this Week

 

RWU Law looks forward to the next installment of the Integrating Doctrine & Diversity Speaker Series:

HOW DOES DIVERSITY, EQUITY, INCLUSION AND BELONGING PEDAGOGY FIT IN BUSINESS ISSUES AND FINANCIAL AFFAIRS CLASSES? LEADING WITH DEIB IN WILLS, TRUSTS, ESTATES, INSURANCE, CONTRACTS, AND TAXATION LAW CLASSES

Wednesday, October 4 | 2:00 – 3:00 PM EST

Zoom Webinar Registration here.

Details about the Featured Speakers & Program here.

Teaching the Core of the Securities Act of 1933

It was so much find to have our business law prof colleague Erik Gerding and two fabulous key members of his staff here in Knoxville yesterday.  I had posted on this visit last week.  Our visitors regaled us on the role of the U.S. Securities and Exchange Commission ("SEC") Division of Corporation Finance, the registration requirements and exemptions under the Securities Act of 1933, as amended ("1933 Act"), and the rule-making part of the Division's (and SEC's) mission.

Erik explained how, when he is teaching Securities Regulation, he spends two classes at the beginning of the semester putting the "fear of God" into his students about the registration requirement in Section 5 of the 1933 Act.  (His point is to make the dangers clear up front, since students tend to drop the class who should take it, given that they plan to practice business law in one way or another.)  Erik's colleague, Jennifer Zepralka, Chief of the SEC's Office of Small Business Policy, similarly noted in her remarks that there are only three kinds of securities offerings: registered, exempt from registration, and illegal.  Erik's Counsel, Jeb Byrne, echoed this.  And in the session at lunch time, one of my students (bless him!) was able to articulate my way of teaching this concept, through what I call the commandment of Section 5: "Thou shalt not offer or sell securities with out registration absent an exemption."  I used forced repetition of that commandment in teaching my Securities regulation course to refocus students as we move through the material.

Teachers of Business Associations and Securities Regulation all must contend with this central premise of the 1933 Act.  Its importance truly cannot be overstated.  So, how do you teach it to your students and make it stick?  And if you do not teach, what made the core value of Section 5 salient for you?  Share your wisdom in the comments.

Tennessee Law Welcomes the SEC Division of Corporation Finance!

We are excited to welcome our colleague Erik Gerding, the Director of the U.S. Securities and Exchange Commission Division of Corporation Finance, together with members of his staff, to The University of Tennessee College of Law a week from today. Information about the visit is included below.  If you are in the neighborhood, stop by!

NFTs from a Distinctive Angle

Thanks to my dear and patient friend and colleague Nizan Packin, I set out on a research and writing adventure a bit more than eighteen months ago.  The result is a book chapter on NFTs for her forthcoming edited volume, The Cambridge Handbook for the Law and Policy of NFTs.  The chapter is entitled "Non-investment Finance in an NFT World."  At her suggestion, I recently posted the draft chapter to SSRN.  You can find it here, and the abstract is set forth below.

Recent years have witnessed the rise of NFTs as vehicles for non-investment finance, including in nonprofit and political fundraising. As with other financial sectors in which NFTs have a role, the use of NFTs in financing nonprofits and political campaigns and committees has revealed gaps and ambiguities in existing legal regulatory systems. Appetite exists to evolve legal frameworks to complete and clarify applicable bodies of law and regulation.

This chapter undertakes to illuminate and reflect on the use of NFTs in financing nonprofits, political campaigns, and political committees. It begins by reviewing general aspects of the non-investment Internet finance environment and then describes and illustrates the use of NFTs in nonprofit and political fundraising. The chapter also offers guidance and reflections on core issues under applicable law and regulation and reflections on legal and regulatory questions and approaches relevant to non-investment finance using NFTs.

Those who know my work will recognize the roots of this chapter in the research I have conducted and published on crowdfunding.  My writing on and work with nonprofits also makes a cameo appearance in the chapter.  This one stretched my brain a bit (and that of my research assistant, too).

Business Clinicians Sought at Cornell Law

I found the message below in my "in box" yesterday from Celia Bigoness and Beth Lyon at Cornell Law and thought it important to share the opportunities they reference with the broader BLPB community.  I hope it is useful to those of you considering long-term non-tenure-track roles in the entrepreneurial law space.

I'm happy to share that Cornell Law School is seeking two new clinicians to work in our Entrepreneurship Law Clinic (ELC) and help us create the law school's first dual-campus clinic. Expanding the ELC, made possible by a generous gift creating the Blassberg-Rice Center for Entrepreneurship Law, represents Cornell Law School's commitment to community-engaged learning and partnerships throughout New York state.

We are searching for one clinician to be based at our Ithaca campus, and one clinician to be based at the Co at Cornell Law:rnell Tech campus in New York City. Both new hires will have a full-time teaching responsibility in the ELC, working alongside the ELC's founder and the director of the new center, Celia Bigoness. Both appointments will be to the long-term, presumptively renewable, contract track for permanent clinical faculty at Cornell Law School, with voting rights and academic leave rights consistent with the other permanent clinicians.

The full job posting is linked here . . . .

The application deadline is October 15, but we encourage candidates to apply early.

If you have any questions, please contact Celia ([email protected]) and our Associate Dean for Experiential Education, Beth Lyon ([email protected]).

All the best,

Beth and Celia

Labor Day and Gratitude

I am the daughter of two Depression Era babies.  My parents always appreciated what they had and worked hard to earn it.  And they were aware of and respected those who contributed their time and efforts to bring them products and services.

On Labor Day, it seems appropriate to channel my parents' gratitude and share it here.  Too often, I take for granted that so much in my life comes from or relies on the labors of others.  I welcome the opportunity today to remember and give thanks.

Parenthetically, I have learned over time (through leadership training and mindfulness activities) that gratitude is an amazingly powerful character strength for lawyers.   As explained on the Via Institute on Character's website, 

The character strength of gratitude involves feeling and expressing a deep sense of thankfulness in life, and more specifically, taking the time to genuinely express thankfulness to others. This thankfulness can be for specific gifts or thoughtful acts. . . .Gratitude tends to foster the character strengths of kindness and love, and therefore is closely associated with empathy and with connection to others.

I am certain you can see from this excerpted description why gratitude can be a great asset in lawyering, including in business lawyering. I am lucky to have gratitude among my strongest character strengths, as assessed through the VIA Institute's character strengths survey.  I will be offering some of my thoughts on character strengths and business lawyering in my presentation at this year's Business Law Prof Blog symposium next month.  (More on that as the date gets closer.)

But for now, I will offer brief, but heartfelt, thanks to those who engage in work that benefits me, those I love, and the world around us.  Happy Labor Day, y'all.  I appreciate your hard work.  Have a relaxed, enjoyable day contemplating, honoring, and celebrating the work that you and others do in service to us all.

 

Berkeley Law/CSLS - 2024-25 Visiting Scholar Application Period Open

Berkeley Center for the Study of Law and Society

Applications for Visiting Scholars Program

 

THE APPLICATION PERIOD FOR THE 2024-25 ACADEMIC YEAR IS NOW OPEN. 

Please submit your application by December 1, 2023 by e-mail to [email protected](link sends e-mail) 

 Inquiries may be made to CSLS at [email protected]

 

For more information about the Visiting Scholars program and the Center for the Study of Law and Society, see here.

Penn State Law Hiring Visitors

psu.wd1.myworkdayjobs.com/PSU_Academic/job/... 

Penn State Law, located in University Park, Pennsylvania, invites applications for visiting positions for the spring 2024 semester and the 2024-25 academic year. The rank of this non-tenure-track, term appointment will be Visiting Professor of Practice, Visiting Lecturer, Visiting Assistant Professor, Visiting Associate Professor, or Visiting Professor, based on the applicant's experience level. The appointment will begin in spring 2024 or fall 2024 and run from one to three semesters, depending on the applicant's start date and preferences. An extension of the appointment may be possible.

Penn State Law will consider applicants in a variety of subject matter areas. Areas of particular interest include Corporations; Contracts; Real Estate Transactions; Transactional Design and Drafting; and Law and Accounting. Other areas include Trial Advocacy; Evidence; Professional Responsibility; Contract Drafting; Arbitration; Negotiation; Mediation; Criminal Law; Criminal Procedure; Administrative Law; and Constitutional Law.

A law degree – J.D., LL.M., or J.S.D. – is required. The successful applicant will also have experience that suggests the ability to effectively teach students, prior teaching experience as an adjunct professor, guest lecturer, or other equivalent experience teaching/supervising law students in an academic context, or relevant practice experience.
The Pennsylvania State University is committed to and accountable for advancing diversity, equity, inclusion, and sustainability in all of its forms. We embrace individual uniqueness, foster a culture of inclusion that supports both broad and specific diversity initiatives, leverage the educational and institutional benefits of diversity in society and nature, and engage all individuals to help them thrive. We value inclusion as a core strength and an essential element of our public service mission. Information on the different units within Penn State Law is available at https://pennstatelaw.psu.edu/.

A cover letter and curriculum vitae are required in order to be considered. Applicants with prior teaching experience will also be asked to share teaching evaluations. Questions related to this position may be directed to the search chair, Associate Dean Jud Mathews, at [email protected]. Review of applications will continue until the positions are filled.

CAMPUS SECURITY CRIME STATISTICS:

Pursuant to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act and the Pennsylvania Act of 1988, Penn State publishes a combined Annual Security and Annual Fire Safety Report (ASR). The ASR includes crime statistics and institutional policies concerning campus security, such as those concerning alcohol and drug use, crime prevention, the reporting of crimes, sexual assault, and other matters. The ASR is available for review here.

Employment with the University will require successful completion of background check(s) in accordance with University policies.

EEO IS THE LAW

Penn State is an equal opportunity, affirmative action employer, and is committed to providing employment opportunities to all qualified applicants without regard to race, color, religion, age, sex, sexual orientation, gender identity, national origin, disability or protected veteran status. If you are unable to use our online application process due to an impairment or disability, please contact 814-865-1473.

Federal Contractors Labor Law Poster
PA State Labor Law Poster
Affirmative Action
Penn State Policies
Copyright Information
Hotlines