Sunday, February 7, 2021
NORTHERN ILLINOIS UNIVERSITY COLLEGE OF LAW invites applications for an anticipated opening for an entry-level tenure-track faculty position beginning August 2021. Duties include engaging in high quality research and teaching, as well as being an active participant in law school and university service. Applicants must hold a J.D. degree from an ABA accredited law school, or a foreign law school equivalent, and must provide evidence of the potential for engaging in high quality research and teaching.
Preferred qualifications include record of scholarly publication, teaching experience (particularly in a law school), legal practice experience, strong law school record, law journal membership, and clerkship experience.
We will consider candidates with a broad range of teaching and research interests, but the successful candidate will be expected to teach at least one first-year course (which may include Constitutional Law I: The Federal System). Our upper-level needs include, but are not limited to, Business Law, Commercial Law, Criminal Law and Procedure, Tax, Trusts and Estates, and skills courses. Applications are encouraged from women, members of minority groups, and others whose background and experience would contribute to the diversity of the law school community.
If you wish to apply, please go to the position posting at the NIU applicant tracking system at https://employment.niu.edu/postings/55269 where you will find a full description of the position (including preferred qualifications) along with a list of documents you will need to submit for the search committee’s consideration.
Please direct questions to the search committee chair, Professor Marc Falkoff, at firstname.lastname@example.org, or to Tita Kaus, Administrative Assistant to the Dean, at 815-753-1068 or email@example.com. For full consideration, applications should be received by March 1, 2021.
Monday, February 1, 2021
Wow. All I can say is . . . wow. Last Monday, GameStop Corp. was, for me, just a dinosaur in the computer gaming space--a firm with a bricks-and-mortar retail store in our local mall that I have visited maybe once or twice. What a difference a week makes . . . .
Now, GameStop is: frequent email messages in my in box; populist investor uprisings against establishment institutional investors; concern about students investing through day-trading accounts; news and opinion commentary on all of the foregoing (and more); compulsion to inform an under-informed (and, in some cases, bewildered) community of friends and family. This change of circumstances, which is centered on, but not confined to, the volatile market for GameStop's common stock, raises many, many questions--legal questions and factual questions. Some are definitively answerable, others are not.
The legal questions run the gamut from possibilities of securities fraud (including insider trading) and market manipulation, to the governance of trading platforms, the propriety of trading limitations and halts, and the authority and control of clearinghouses. Co-blogger Ben Edwards published a post here last Thursday on the trading halts in GameStop stock, the role of clearinghouses, and the possibility of market manipulation. Others also have written about these and other legal issues--including the role of the U.S. Securities and Exchange Commission as the cop on the beat (see, e.g., here and here).
But there are few answers to these legal queries given that many facts remain unknown. Who are the short-sellers in these stocks? Who are the community members on electronic bulletin boards (and elsewhere) urging active trading in the stock of GameStop and other firms that have been subject to significant short-selling that has led to perceived under-valuation by others in the market? Who are the populist traders actively bidding up the price of these firms? What knowledge do all of these people have about GameStop and the trading of its securities? Assumptions are being made about all of these things and more. However, our current knowledge is limited and, as time progresses, the composition of these groups undoubtedly has changed and will continue to change as traders rapidly enter and exit the market for these securities.
As many of our law schools hold forums on the GameStop phenomenon (UT Law has a roundtable featuring some of your favorite BLPB editors on Wednesday), more legal and factual questions will be raised. The situation will be dynamic, and regulators and policymakers will enter the fray in unknown (and perhaps unanticipated) ways. As I teach Securities Regulation and Advanced Business Associations this semester, all of this will be happening. Some of the topics of conversation would not normally be part of my course plans. But, like others I know who teach business law courses, I am pivoting to meet the need to respond to these evolving circumstances in our securities markets. Throughout, there are many roles that lawyers (and law professors) are playing and will continue to play. I suspect GameStop will be an asset this semester in educating our students on securities law and much more.
Monday, January 25, 2021
Over six years ago, I began writing about the job-seeking cover letter as an important piece of the career development and execution puzzle. My first post focused on the essential elements and formatting of an appropriate cover letter for a job search. My second cover letter post, written a bit more than a year later, honed in on best practices for creating the body of the letter--the part of the letter that does the key substantive work in making a case with the employer that you deserve an interview, principally by showing the employer that y0u have something the employer needs or finds valuable. A key element of that post was the its emphasis on introduction of the "PAR" method, which I maintain is a key to both cover letters and job interviews. About six months after that second post, I wrote a third post on networking letters.
That last post was published in July of 2016. That just does not seem possible. It cannot have been that long ago! But it is. Time flies when you are having fun, as they say.
It may go without saying, but I have continued to give resume, cover letter, and job search communication advice to law students and lawyers on a regular basis. In these interactions, two things have been coming up with some frequency recently. The first is the difference between a CV and a resume. I will leave that to a future post. The second is what the body of a well-drafted cover letter reads like. I illustrate that here by posting a simple form of cover letter that illustrates many points from my posts.
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[Name of Recipient]
Re: Summer Associate - [Your Name]
Dear [Name of Recipient]:
I am a [first/second]-year student at [Law School Name] and I write to apply for a position as a summer associate in your [Specific Geographic Location] office. I am drawn to [Employer] because of its strong practice in corporate transactional law and because of its location in the [Geographic Region]. I am interested in the ways in which the firm’s emphasis on innovation operates in serving clients.
My curriculum at [Law School Name] has already given me experiential training in business law that I desire to leverage in my work next summer. For example, in my Business Associations course, I participated as part of a three-person team of students in an oral examination relating to a failed Tennessee distillery partnership based on facts drawn from a recently published Tennessee state court opinion. We were given a week to assess client facts and then met with the senior partner in our law firm (portrayed by our professor) to discuss possible courses of action to benefit the client. This assignment was instrumental in developing critical problem-solving skills and detail-orientation and allowed me to apply partnership and limited liability company law through oral communication in a real-world setting.
I also gained valuable research and writing experience in my [Name of Course] class in the fall semester. [Describe research in legal context]. I compiled the information obtained through that research into a [length] paper that examined [describe thesis or analysis]. The long-term nature of this assignment allowed me to develop and refine fact-finding, written composition, and time management skills while engaging in the analysis of [generalized description of legal issue resolved].
My resume is attached. I look forward to the opportunity to interview for a summer associate position with your firm. I can be reached at the telephone number or email address set forth above. I appreciate your time and consideration.
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I hope that posting this exemplar is helpful to law students seeking employment and to the law professors and others who advise them. I post it here for that purpose and also in the hopes that it will generate commentary that is similarly useful in career counseling and in revising the form. So, have at it. What do you find worthwhile about the exemplar letter? What do you find less compelling? Post your comments here or send me a private message.
Monday, January 18, 2021
As we launch into another online/hybrid semester of legal education, I want to share a new article by Jen Randolph Reise: Moving Ahead: Finding Opportunities for Transactional Training in Remote Legal Education. Here’s the abstract:
This article builds on the many calls for teaching business acumen and transactional skills in law school with a timely insight: the shift to remote legal education creates opportunities to do so, in particular by incorporating practice problems and mini-simulations in doctrinal courses. Weaving together the literature on emerging best practices in online legal education, cognitive psychology, and the science of teaching and learning, Professor Reise argues that adding formative assessments and experiential education is effective in teaching and is critical in remote learning.
Offering vivid examples from her experience teaching Business Organizations online, she urges legal instructors to use the opportunity presented by the shift to remote education to incorporate problems and simulations as an effective way to motivate students to prepare for class, to expose them to transactional practice skills, and to effectively teach them key doctrinal concepts.
For those of you who do not know Jen, she is currently a Visiting Professor at Mitchell Hamline School of Law (Twitter: @jenreise). She and I have communicated/traded information on transactional business law teaching. I am grateful that she brought this article to my attention--and effectively authored this post! I look forward to continuing to engage with her on teaching and scholarship in our mutual areas of interest.
It really boils down to this: that all life is interrelated. We are all caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. We are made to live together because of the interrelated structure of reality.
Did you ever stop to think that you can't leave for your job in the morning without being dependent on most of the world? You get up in the morning and go to the bathroom and reach over for the sponge, and that's handed to you by a Pacific islander. You reach for a bar of soap, and that's given to you at the hands of a Frenchman. And then you go into the kitchen to drink your coffee for the morning, and that's poured into your cup by a South American. And maybe you want tea: that's poured into your cup by a Chinese. Or maybe you're desirous of having cocoa for breakfast, and that's poured into your cup by a West African. And then you reach over for your toast, and that's given to you at the hands of an English-speaking farmer, not to mention the baker. And before you finish eating breakfast in the morning, you've depended on more than half of the world.
This is the way our universe is structured. It is its interrelated quality. We aren't going to have peace on earth until we recognize this basic fact of the interrelated structure of all reality.
Martin Luther King Jr.
Ebenezer Baptist Church
December 24, 1967
Mutuality = reality. The truth of this is experienced in education, business and the professions, and our personal lives. I appreciate Dr. King's cogent reflection (parts of which are repeated from his other remarks and writings) today more than ever before. I honor him and his memory with the republication of his meaningful words here on the holiday that celebrates his life and legacy. May he rest in peace knowing these words continue to be heard.
[Should you want to listen to the entire Christmas Eve sermon from which the quoted words were taken, one of several online recordings can be found here.]
Friday, January 15, 2021
In my ongoing work for the Tennessee Bar Association, I was alerted to a recent Delaware Chancery Court decision of note. The decision is embodied in a December 22, 2020 letter to counsel written by Chancellor Andre G. Bouchard in the case captioned In re WeWork Litigation (Consol. Civil Action No. 2020-0258-AGB). It offers an illustration of the attorney-client privilege challenges that may exist in business associations that operate within networks consisting of affiliated or associated business firms.
The In re WeWork Litigation letter opinion involves a document production dispute. The controversy relates to communications engaged in by discovery custodians employed at Sprint, Inc. but working on behalf of SoftBank Group Corp. Specifically, the Sprint employees assisted SoftBank with document discovery relating to its involvement with The We Company (“WeWork”), a plaintiff in the case. (Sprint is not involved in any substantive way in the litigation. However, at times relevant to the chancellor's opinion, SoftBank owned 84% of Sprint.) The controversy centers around the conduct of Sprint CEO Michael Combes and a Sprint employee, Christina Sternberg. Each provided SoftBank’s chief operating officer with document discovery assistance. As Chancellor Bouchard aptly noted, these Sprint employees “wore multiple hats.” (This comment in the letter opinion reminded me of the U.S. Supreme Court opinion in United States v. Bestfoods, in which the court quotes from Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 779 (5th Cir. 1997): "directors and officers holding positions with a parent and its subsidiary can and do ‘change hats’ to represent the two corporations separately, despite their common ownership.")
Of particular relevance to the dispute, Combes and Sternberg engaged in document production matters with SoftBank’s legal counsel and used their Sprint email accounts in that activity. In response to plaintiffs' discovery requests, SoftBank determined to withhold from production 89 documents that were conveyed to or from Combes’s and Sternberg’s Sprint email accounts. SoftBank's argument was that the communications were privileged. The chancellor’s opinion addresses a motion to compel production of those 89 documents.
Chancellor Bouchard granted the motion to compel production of the documents, finding that Combes and Sternberg did not have a reasonable expectation of privacy when using the Sprint email accounts. As a result, the documents could not constitute “confidential communications” under Delaware Rule of Evidence 502. Importantly, both Combes and Sternberg were afforded--and could have used--other email accounts (affiliated with WeWork or SoftBank, respectively) in their discovery work for SoftBank.
I noted in my summary of this opinion for the Tennessee Bar Association that the case "offers important cautions to businesses desiring to ensure that communications and transmitted documents can be kept in confidence." It is telling in this regard that proprietary email accounts were afforded to Combes and Sternberg to best ensure confidential treatment of their discovery communications, yet no attempt was made to monitor the relevant use of those email accounts as a matter of document control and discovery policy. Accordingly, I noted that it seems prudent, in light of Chancellor Bouchard’s decision, to suggest that business firms and their legal counsel review operative existing document custody and retention guidance (in the form of compliance policies and the like) to evaluate whether they include appropriate control mechanisms geared to best ensuring the confidential treatment of privileged communications and documents. As the facts of the In re WeWork Litigation opinion indicate, this may be especially important for businesses that operate within a networked system of firms.
Monday, January 11, 2021
Indiana University Robert H. McKinney School of Law seeks one or more entry-level or experienced applicants interested in serving as a full-time, temporary faculty member for the 2021-2022 academic year. Subject matter needs include property, intellectual property, administrative law, and health law-related courses.
As part of IUPUI, Indiana’s premier urban research institution, the law school is committed to being a welcoming community that reflects and enacts the values of diversity, equity, and inclusion that inform academic excellence. We seek candidates who will not only enhance our representational diversity but whose research, teaching, and community-engagement efforts contribute to diverse, equitable, and inclusive learning and working environments for our students, staff, and faculty. IU McKinney condemns racism in all its forms and has taken an anti-racist stance that moves beyond mere statements to interrogating its policies, procedures, and practices. We hope to identify individuals who will assist in our mission to dismantle racism so that everyone has the opportunity to succeed at IU McKinney. The law school is an Equal Opportunity/Affirmative Action Institution with a strong commitment to inclusion and offers domestic partner benefits: https://mckinneylaw.iu.edu/about/administration/policies/diversity-and-inclusion.html. For more information about the school, please visit http://indylaw.indiana.edu/.
Interested candidates should submit a CV and cover letter to Vice Dean Cynthia Adams at firstname.lastname@example.org. Individuals who require a reasonable accommodation in order to participate in the application process should give Vice Dean Adams adequate notice. Applications will be reviewed on a rolling basis with February 1 as the deadline for all applications.
Monday, January 4, 2021
As our legal academy readers know, this week features the annual conference of the Association of American Law Schools ("AALS"), the professional association for law schools and their faculty and staff. I am sure many of us will publish posts now and later about the conference and its varied programs. I focus today on the Section on Leadership, of which my Dean (Doug Blaze) is the current chair. Doug has been among the national leaders in the movement to teach leadership in law schools. Among other things, he was a founder of the section and of the Institute for Professional Leadership at UT Law (of which I am the current Interim Director).
I highlight two things in this post.
First, the Fall 2020 section newsletter deserves attention. The entire issue focuses on racism. It includes a number of short articles written by a variety of contributors, including (but not limited to) law professors. Tony Thompson, Professor of Clinical Law at NYU Law, introduces the issue, referencing the events that catapulted racism and racial injustice into the legal news and public eye in meaningful ways earlier this year. He writes: "T]he public protests have . . . sparked . . . a relentless insistence that we acknowledge the stark reality that racism infects every system in this country. We as lawyers, as law teachers, as people who care about justice must actively work toward a genuine reckoning on race and racism in this country." Among the contributions are articles written by Berkeley Law Dean Erwin Chemerinsky, a prep school student from Newark, New Jersey, and our Visiting Leadership Fellow at UT Law, David Gibbs. The issue makes for thought-provoking end-of-year reading and inspires leadership on race issues in and through law teaching (among many other things).
Second, I want to promote the four programs sponsored or co-sponsored by the AALS Section on Leadership. They are listed below.
- Calling Out and Leaning In to Racial and Class Inequities in Experiential Learning Opportunities (Wednesday, January 6, 11:00 am - 12:15 pm)
- Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement (Thursday, January 7, 11:00 am - 12:15 pm)
- Legal and Judicial Ethics in the Post-#MeToo World (Thursday, January 7, 2:45 pm - 4:00 pm)
- Teaching Leadership Skills in a Time of Crisis (Saturday, January 9, 2:45 pm - 4:00 pm)
I have the honor of presenting a short "idea paper" on teaching change leadership to law students at the Thursday morning session. I hope that you will join me in attending some or all of these programs if you are registered to attend the conference. Our students are the legal and community leaders of tomorrow. Studying and practicing leadership in law school can help them to see their leadership potential, harness it, and use it constructively in and outside law practice.
The entire program for this year's AALS annual meeting can be found here.
Monday, December 28, 2020
This post catches up on a few recent position listings that may be of interest to business law faculty and have not yet been posted here.
TEMPLE UNIVERSITY BEASLEY SCHOOL OF LAW
LOW INCOME TAXPAYER CLINIC DIRECTOR
AND VISITING PRACTICE PROFESSOR OF LAW
Position Summary: The Temple University Beasley School of Law was recently notified that it will receive funding from the IRS to open and operate a Low Income Taxpayer Clinic (LITC) on its Main Campus in North Philadelphia which will also serve taxpayers in northeastern Pennsylvania. It is therefore soliciting applications for the position of Visiting Practice Professor of Law and Director of the LITC, which is expected to operate on a part-time basis during 2021. The position will begin on January 15, 2021 or as soon thereafter as practicable, and will run through the end of the calendar year. The Clinic Director will be expected to establish and operate the LITC, including developing a panel of pro bono attorneys and performing community outreach, and to take a leadership role in applying to the IRS for a multi-year grant, which will likely need to be submitted in June, 2021. In addition, the Clinic Director will be expected to develop and teach a course through which students can enroll to participate in the LITC for academic credit in 2021.
It is anticipated that this part-time, visiting position will be enhanced and converted into a clinical faculty position upon receipt of a multi-year grant from the IRS. A national search for an individual to fill the clinical faculty position will be conducted if the multi-year grant is received; the individual selected to fill the part-time visiting position will be eligible for consideration for the clinical faculty position.
Minimum Qualifications: Candidates must have an excellent academic record and a J.D. degree, as well as experience working in an LITC or equivalent organization, either as a student or practicing lawyer, or other tax practice experience. Candidates must have sufficient tax law expertise to perform and oversee the substantive and procedural aspects of client representation, and be either admitted to practice before the U.S. Tax Court or eligible for such admission.
Temple University values diversity and is committed to equal opportunity for all persons regardless of age, color, disability, ethnicity, marital status, national origin, race, religion, sex, sexual orientation, gender identity, veteran status, or any other status protected by law; it is an equal opportunity/affirmative action employer, and strongly encourages veterans, women, minorities, individuals with disabilities, LGBTQI individuals, and members of other groups that traditionally have been underrepresented in law teaching to apply.
To Apply: Potential candidates are encouraged to contact the selection committee’s Chair, Professor Alice Abreu, at email@example.com with the following: 1) cover letter and/or statement of interest; 2) resume or CV; 3) the names, affiliations, and contact information for at least three individuals who can serve as professional references; and 4) any other material that demonstrates the candidate’s ability to succeed in the position, such as a publication, brief, or similar document.
Applications should be submitted as soon as possible; interviews, which will be conducted online, could begin as early as January 4, 2021. The position will remain open until filled.
BU/MIT TECHNOLOGY LAW CLINIC
VISITING CLINICAL ASSISTANT PROFESSOR
BU Law is hiring for a Visiting Clinical Assistant Professor to teach in the BU/MIT Technology Law Clinic, part of BU Law’s unique collaboration with MIT to provide legal assistance to current MIT and BU students. This is a two-year position, for the 2021–22 and 2022–23 academic years.
BU Law believes that the cultural and social diversity of our faculty, staff, and students is vitally important to the distinction and excellence of our academic programs. To that end, we are especially eager to hear from applicants who support our institutional commitment to BU as an inclusive, equitable, and diverse community.
More information and application instructions are available at https://sites.bu.edu/techlaw/2020/12/14/vcap/. Applications received before January 31, 2021 will be given full consideration.
Monday, December 21, 2020
2021 National Business Law Scholars Conference
June 17-18, 2021
The University of Tennessee College of Law
The National Business Law Scholars Conference (NBLSC) will be held on Thursday and Friday, June 17-18, 2021. The 2021 conference is being hosted by The University of Tennessee College of Law. The conference will be conducted in a hybrid or online format, as determined by the NBLSC planning committee in the early part of 2021.
This is the twelfth meeting of the NBLSC, an annual conference that draws legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Junior scholars and those considering entering the academy are especially encouraged to participate. If you are thinking about entering the academy and would like to receive informal mentoring and learn more about job market dynamics, please let us know when you make your submission. We expect to be in a position to offer separate programming for aspiring law professors and market entrants, as we have done in the past, likely on a separate date after the conference concludes.
Please use the conference website, which will be available at https://law.utk.edu/ in January, to submit an abstract or paper by April 9, 2021. An announcement will be made on the Business Law Prof Blog when the conference site becomes available. If you have any questions, concerns, or special requests regarding the schedule, please email Professor Eric C. Chaffee at firstname.lastname@example.org. We will respond to submissions with notifications of acceptance shortly after the deadline. We anticipate the conference schedule will be circulated in May.
Conference Planning Committee:
Afra Afsharipour (University of California, Davis, School of Law)
Tony Casey (The University of Chicago Law School)
Eric C. Chaffee (The University of Toledo College of Law)
Steven Davidoff Solomon (University of California, Berkeley School of Law)
Joan MacLeod Heminway (The University of Tennessee College of Law)
Kristin N. Johnson (Emory University School of Law)
Elizabeth Pollman (University of Pennsylvania Carey Law School)
Jeff Schwartz (University of Utah S.J. Quinney College of Law)
Megan Wischmeier Shaner (University of Oklahoma College of Law)
Monday, December 14, 2020
Few of the ten preceding posts I have offered on teaching during the COVID-19 pandemic (links provided at the end of this post) have even mentioned assessment. Given that the semester's classes have ended almost everywhere, now seems like a good time to say a few words on that topic, focusing in on written final examinations. As with everything else in the COVID-19 era, the traditional written, timed final (f/k/a "in class") examination has received some serious scrutiny and reconsideration in 2020. The UT Law faculty shared ideas and opinions on the topic of online examinations in a number of faculty meetings and forums. Perhaps predictably, faculty members teaching in different parts of the curriculum (substantively and otherwise) had individualized views about how their own learning objectives could best be met in an online assessment environment.
After much discussion, UT Law ended up offering multiple options to instructors. For essay questions, we had the choice of using our proprietary portal's exam feature (with download/upload capabilities and full use of all computer functionality, including the Internet) or exam software. We had the choice of engaging monitoring or not. Multiple choice questions could be submitted electronically on the portal and hand-graded by the instructor or submitted electronically using exam software and machine-graded. Bonus: in the end, our Dean of Students offered us the opportunity to have our exams printed--an unexpected (and, in my case, welcomed) addition to the mix.
My Business Associations students took my two-hour written final exam twelve days ago. I chose a portal-based essay exam with machine-graded multiple choice questions. I had the exams printed out. I have not heard back yet from students on the exam process or anything else (for obvious reasons). But from my standpoint, the exam submission and transmission process seemed to work smoothly. It differed little, in the end, as a matter of process, from exams I have given in person in the past. I am so grateful to our academic deans (and the rest of the faculty), our Dean of Students, and the staff from our student records office for all they did to make this exam period safe, manageable, and (yes) possible.
Of course, until I finish grading and can talk to students about their part of the experience, this is about all I can say. Student views may be wildly different. I did learn (in the process of working through the exam details with them) that they are not fond of using our exam software for essay questions, since they cannot be looking at the question as they type their answer. In any event, I will look forward to sharing anything I hear in a later post.
What were your experiences with online written exams this semester? What are your preferences as to how they are best set up and managed--and why? I am interested in what others are doing in this regard and what they are learning from those experiences. Post comments or send me an email message if you have thoughts on any of this.
Links to prior posts on Teaching Through the Pandemic
(Note: Since I only began adding subtitles after the fourth post, I have added parenthetical topic information for the first four posts.)
Teaching Through the Pandemic - Part I (early distance education and Zoom tips)
Teaching Through the Pandemic - Part II (Zoom connectivity tips)
Teaching Through the Pandemic - Part III (questions about a greater movement to online education)
Teaching Through the Pandemic - Part IV (advanced Zoom tips)
Monday, December 7, 2020
In a recently published article just posted to SSRN, I examine spousal misappropriation as a basis for an insider trading claim. The article, Women Should Not Need to Watch Their Husbands Like [a] Hawk: Misappropriation Insider Trading in Spousal Relationships, leverages the facts of a specific Securities and Exchange Commission enforcement action (SEC v. Hawk, No. 5:14-cv-01466 (N.D. Cal.)), to undertake an analysis of applicable statutory and regulatory principles, existing decisional law, and the realities of the legal and social context. The SSRN abstract, derived from the text of the article, follows.
This article endeavors to sort through and begin to resolve key unanswered questions regarding spousal misappropriation as a basis for U.S. insider trading liability, some of which apply to insider trading more broadly. It identifies and describes misappropriation insider trading liability under U.S. law, recounts and analyzes probative doctrine and policy relevant to spousal misappropriation cases, and (before briefly concluding) offers related observations about the impact of that doctrine and policy on a specific motivating Securities and Exchange Commission ("SEC") enforcement action and other spousal misappropriation cases.
The analysis undertaken in the article supports enforcement actions based on a strong threshold presumption of a relationship of trust and confidence in spousal relations, as recognized by the SEC through its adoption of Rule 10b5-2(b)(3). This support derives from a focus on two fundamental building blocks of spousal misappropriation cases addressed in the article—a broad understanding of deception as it is relevant to these cases and longstanding accepted sociolegal wisdom on the nature of marital relationships as evidenced in the spousal communications privilege. Essentially, marriage is best seen as a relationship of trust and confidence. To the extent a spouse’s breach of that trust or confidence is deceptive and occurs in connection with the purchase or sale of securities, the breach should be deemed to provide a basis for insider trading enforcement (and liability). Market integrity is damaged through marital deception in the same way that it is damaged through the deception by an attorney of a client or the attorney’s law firm partners. Market actors depend on the confidentiality of information shared in marriages as well as information shared in attorney-client relationships and partnerships.
The article is one of a number that were written for a symposium on insider trading stories held at The University of Tennessee College of Law last fall. They all occupy the same issue of the Tennessee Journal of Law & Policy, which hosted the symposium. The other authors include (in the order of their respective article's appearance in the journal): Donna Nagy, BLPB co-editor John Anderson, Eric Chaffee, Mike Guttentag, Ellen Podgor, Kevin Douglas, and Jeremy Kidd. The ideas for these articles were originally the subject of a discussion group convened by John Anderson and me at the 2019 Annual Conference of the Southeastern Association of Law Schools ("SEALS").
That reminds me to note for all that it is now time to submit proposals for the 2021 SEALS conference. John Anderson and I will again convene an insider trading group for this meeting. And I also will be proposing a discussion group (based in part on the colloquy between Ann Lipton and me here) on the treatment of business entity organic documents (including corporate charters and bylaws, limited liability company/operating agreements, and partnership agreements) as contracts and the application of contract law to their interpretation and enforcement. If you have a desire to participate in either group or want to propose a program of your own (whether it be a panel or a discussion group), please let me know in the comments or by private message.
Sunday, December 6, 2020
The post below is the first in Lécia Vicente's December series that I heralded in my post on Friday. Due to a Typepad login issue, I am posting for her today. We hope to get the issue corrected for her post for next week.
* * *
My series of blog posts cover the recent "Study on Directors' Duties and Sustainable Corporate Governance" ("Study on Directors' Duties") prepared by Ernst & Young for the European Commission. This study promises to set the tone of the EU's policymaking in the fields of corporate law and corporate governance. The study explains that the "evidence collected over 1992-2018 period shows there is a trend for publicly listed companies within the EU to focus on short-term benefits of shareholders rather than on the long-term interests of the company." The main objective of the study is to identify the causes of this short-termism in corporate governance and determine European Union (EU) level solutions that permit the achievement of the United Nations (UN) Sustainable Development Goals (SDGs) and the objectives of the Paris Agreement.
Both the United Nations 2030 Agenda and the Paris Agreement are trendsetters, for they have elevated the discussion on sustainable development and climate change mitigation to the global level. That discussion has been captured not only by governments and international environmental institutions but also by corporations. Several questions come to mind.
What is sustainability? This one is critical considering that the global level discussion is often monotone, with the blatant disregard of countries' idiosyncrasies, the different historical contexts, regulatory frameworks, and political will to implement reforms. The UN defined sustainability as the ability of humanity "to meet the needs of the present without compromising the ability of future generations to meet their own needs."
The other question that comes to mind is: what is development? Is GDP the right benchmark, or should we be focusing on other factors? There is disagreement among economists on the merit of using GDP as a development measure. Some economists like Abhijit Banerjee & Esther Duflo say, "it makes no sense to get too emotionally involved with individual GDP numbers." Those numbers do not give us the whole picture of a country's development.
The Study on Directors' Duties maintains as a general objective the development of more sustainable corporate governance and corporate directors' accountability for the company's sustainable value creation. This general objective would be specifically implemented either through soft law (non-legislative measures) or hard law (legislative measures) that redesign the role of directors (this includes the creation of a new board position, the Chief Value Officer) and directors' fiduciary duties. This takes me to a third question.
What is the purpose of the company? In other words, what is it that directors should be prioritizing? In a recent blog post, Steve Bainbridge says
I don't "disagree with the assertion that the law does not mandate that a corporation have as its purpose shareholder wealth maximization" but only because I don't think it's useful to ask the question of "what purpose does the law mandate the corporation pursue?
[…] Purpose is always associated with the intellect. In order to have a purpose or aim, it is necessary to come to a decision; and that is the function of the intellect. But just as the corporation has neither a soul to damn nor a body to kick, the corporation has no intellect.
Bainbridge prefers "to operationalize this discussion as a question of the fiduciary duties of corporate officers and directors rather than as a corporate purpose."
Friday, December 4, 2020
I am delighted to announce that Professor Lécia Vicente from LSU Law is joining us as a guest blogger at the BLPB this month. Her posts will be on Sundays through the end of the month. You can find her work on SSRN here.
Professor Vicente teaches Business Associations, a Comparative Corporate Law Seminar, the Louisiana Law of Obligations, and Western Legal Traditions (a comparative and legal methodology course). Her recent scholarship focuses on the several dimensions of property rights within the firm’s contractual framework. She is also expanding her research to include law and development as a result of her consultancy work with developing countries and various other professional engagements, including her roles as:
- a delegate to the 74th Session of the United Nations General Assembly in 2019;
- the Head of Delegation of the African Union at the United Nations’ High-Level Political Forum on Sustainable Development under the auspices of the United Nations Economic and Social Council in 2016; and
- an advisor of the African Union at the United Nations Sustainable Development Summit for the adoption of the Post-2015 development agenda.
Professor Vicente holds an LL.M. in Comparative, European and International Laws and a Ph.D. from the European University Institute, Florence, Italy. Her undergraduate degree was earned at the Faculty of Law, Catholic University of Portugal. She beings unique interdisciplinary perspectives to her scholarship and teaching--and now to our blog! Please join me in welcoming her to our pandemic "virtual pod" as she posts over the next few weeks.
Monday, November 30, 2020
Elisabeth Haub School of Law Faculty Hiring Announcement
The Elisabeth Haub School of Law at Pace University invites applications to fill up to two full-time, academic tenure-track/tenured faculty positions at the rank of assistant professor, associate professor, or professor. The positions will begin in August 2021. Applicants must be committed to providing excellent legal training both in person and online, engaging in meaningful service within the law school and in the broader community, and producing excellent scholarship. Applicants should have teaching and research interests in any of the following areas: environmental law, natural resources law, sustainable business law, energy and climate law, public health law, contracts law, business law, and tax law. Applicants whose interests cover multiple of these areas are particularly encouraged to apply. We welcome applications from candidates interested in doctrinal, experiential, and/or clinical teaching.
Applicants seeking the rank of assistant professor should hold a J.D. from an accredited law school or an equivalent degree from a non-U.S. law school. A successful candidate will have an excellent academic record and demonstrated potential for accomplishment in teaching, scholarship and research, and service.
Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school. Pace is committed to achieving completely equal opportunity in all aspects of University life.
Pace University’s Elisabeth Haub School of Law (Pace Law) offers J.D. and Masters of Law degrees in both Environmental and International Law, as well as a series of joint degree programs including a Doctor of Juridical Science (SJD) in Environmental Law. The school, housed on the University’s campus in White Plains, NY, opened its doors in 1976 and has over 8,000 alumni around the world. The school maintains a unique philosophy and approach to legal education that strikes an important balance between practice and theory. For more information visit http://law.pace.edu.
Please apply via https://careers.pace.edu/postings/16869. Applications will be considered on a rolling basis. Direct any questions via email to Appointments Committee Chair, Professor Margot Pollans, email@example.com.
Monday, November 23, 2020
I wanted to get there first, but friend, co-blogger, and Nova Southeastern Law colleague Jim Levy beat me to it. In a blog post for Legal Skills Prof Blog, Jim wrote about the incredible similarities between the game show Hollywood Squares and Zoom teaching. As I teach my last classes of the semester today--all online (thanks to our dean's promotion of online teaching for the last two class days of the semester)--I continue to be stuck on and struck by this similarity. We are not the only ones to note this comparison, of course. See, e.g., here and here and here.
I have called the Zoom squares the Hollywood Squares more than once during my class sessions this semester. Unlike Jim, however, I have not yet endeavored to "play host" in a way that mimics the show. He recalls (as do I) Peter Marshall's lengthy stint as the show's host. But it does turn out there were others.
As I bid goodbye to the Fall 2020 semester, I leave you with a picture (above) of one of my class meetings earlier this fall. UT Law alum and entrepreneur Mason Jones (founder of Volunteer Traditions, Inc.) visited our class to talk about the formation and basic governance attributes of the corporation he organized to conduct his business. It's a super-fun story--very instructive, too--and he is a humble and entertaining guy. We were delighted to have him join our Hollywood Squares (and even be spotlighted, as he is here!) for this class day. (Note that I was wearing a hat and t-shirt from his collection that afternoon while teaching. Go Vols!)
I am still formulating some additional substantive thoughts on my first full semester of pandemic teaching. I will post those reflections on a later date or dates. For today, however, in this Thanksgiving week, I merely want to express gratitude--for the Hollywood Squares that are our Zoom teaching world and, more importantly, for my continued good health, my supportive family, my hardworking students, and my student-focused faculty and staff colleagues. Without these blessings in my life, teaching through the pandemic would be so very much harder, if not impossible.
Happy Thanksgiving, y'all.
Monday, November 16, 2020
A number of years ago, I became acquainted with Kate Vitasek, a colleague in The University of Tennessee's Haslam College of Business. She introduced me to a way of supply contracting called "vested." Vested relationships are characterized by the following attributes that may differentiate them from traditional contractual relationships (as identified in the FAQs on the vested website):
- "Uses flexible Statements of Objectives, enabling the service provider to determine 'how'”
- "Measures success through a limited number of Desired Outcomes"
- "Uses a jointly designed pricing model with incentives that optimize the overall business and fairly allocates risk/reward"
- "Focuses on insight, using governance mechanisms to manage the business with the supplier"
When I first talked to Kate and her colleagues about vested, I remember noting for her that the vested approach sounded like a specific type of relational contract . . . .
Recently, Kate and I reconnected. She informed me about her recent coauthored Harvard Business Review article. It merits promotion here.
The main point of the article is to highlight the possible advantages of relational contracting in the current environment. Here's the crux:
For procurement professionals at large multinational companies, the temptation is to use their company’s clout to pressure suppliers to reduce prices. And when the supplier has the upper hand, it is hard to resist the opportunity to impose price increases on customers. Witness how the shortage of personal protective equipment (PPE) and ventilators led to skyrocketing prices. . . .
A better alternative is formal relational contracts that are designed to keep the parties’ expectations continuously aligned. This kind of agreement is a legally enforceable written contract (hence “formal”) that puts the parties’ relationship above the specific points of the deal. The parties embrace the fact that all contracts are incomplete and can never cover all the contingencies that may occur. This time it is a pandemic. Next time it will be something else.
The coauthors conclude:
Given the uncertainty that lies ahead, it is especially important now that companies try to avoid antagonizing the members of their ecosystems. Formal relational contracts, which can turn adversarial relationships into mutually beneficial partnerships, is a proven means to such an end.
This all makes great sense to me, especially for contracting parties who have long-term relationships or are repeat players in the same market. The article both explains the concept and offers several examples of how relational contracting can foster more collaborative relationships that enable contracting parties to "ride the bumps" in their relationship. Specifically the parties are incentivized to work together to devise solutions to transactional problems as they arise.
The article reminded me about the relational aspects of M&A contracting and, more specifically, Cathy Hwang's Faux Contracts as well as her work with Matthew Jennejohn--including their Deal Structure article. In Deal Structure, Cathy and Matthew write that "[r]elational contracts blend formal contract terms, which are enforceable in court, with informal constraints, such as reputational sanctions, to create strong relationships between parties." [p. 311]
Law folks and business folks should talk more often. As the pandemic continues, parallel avenues of work like this in business and law can have important practical implications for business. This collective body of business and legal scholarship may have significant value to both business managers and the legal advisers who represent them. Collaboration between business and law experts can only enhance that value.
Monday, November 9, 2020
The University of Alabama School of Law seeks to fill as many as two tenure-track positions for the 2021-22 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Contracts and Torts; however, qualified applicants in other areas may be considered. Among our secondary interests are Family Law and Business Law. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.
Interested candidates should apply online at https://facultyjobs.ua.edu/postings/47619. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Professor Fred Vars, Chair of the Faculty Appointments Committee (firstname.lastname@example.org).
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the links below to find out more.
“EEO is the Law” http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf
Monday, November 2, 2020
Since almost all of us are thinking about Election Day 2020 (tomorrow!), I am taking a moment here to reflect on conversations I recently have had with my students about parallels in political and corporate governance. Although current conversations center around the fiduciary duties of those charged with governance (a topic that I will leave for another day), just a few weeks ago, we were focused on voting (both shareholder and director voting). The above photo shows me--sporting wet hair and rain-spotted, fogged-up glasses--waiting in line to vote early last week. I admit that while I routinely vote in political elections, I have only been to a shareholder meeting once, and then as an advisor to the corporation, not to actually vote any shares held. Having said that, in my fifteen years of law practice, I did draft proxy materials, structure shareholder meetings, and address concerns associated with shareholder voting.
My students are always curious about shareholder voting and most intrigued by proxy voting. Corporate governance activities are, of course, not very transparent in daily life for most folks. A course covering corporate law introduces both new terms to a student's lexicon and new concepts to a student's base of knowledge.
Shareholder voting certainly has some commonalities with political voting (for example, proxy cards and ballots have a similar "feel" to them, and both systems of voting involve elections and may also involve the solicitation of approvals for other matters of governance and finance). Yet the system of proxy voting in the corporate world knows no real parallel in political governance, and the Electoral College knows no parallel in corporate shareholder voting. Moreover, the hullabaloo in 2020 about voting fraud in the political realm seems very foreign in a corporate space that allows people to appoint others to vote for them under the authority of a signature. (I say this knowing that proxy voting can be affected by miscounts and that challenges can be made to proxy cards in proxy contests in the "snake pit" or "pit," as it may be referred to more informally.)
The system of shareholder voting sometimes seems a bit old-school, despite the advent of electronic proxy materials, online voting, and virtual shareholder meetings--a hot topic of conversation this year, starting back in the spring, when many firms had to move to virtual meetings on an emergency basis due to the COVID-19 pandemic (as the U.S. Securities and Exchange Commission and others well recognized). Although shareholder voting on blockchains may be the wave of the future (see my coauthored article referencing that, available here), today's shareholder voting mechanics still involve somewhat traditional balloting and ballot tabulation. Because shareholders can vote in person at the shareholder meeting (even if that may rarely be done), both digital and manual systems must be available to count votes. Although, when a quorum is present, the election of directors may be ordained before the meeting even begins (especially when plurality voting obtains), the election results cannot be released until the voting ends. That happens at the shareholder meeting.
Political voting also can seem a bit antiquated--especially with this year's hand-marked ballots replacing electronic voting machines because of COVID-19. Registered voters can cast their ballots early in many states or can vote in person on election day. Depending on circumstances, some registered voters may be able to vote by absentee ballot or by mail, but in any case, their votes are tabulated electronically. There are no quorum or meeting requirements. The required vote typically is a plurality, which may be difficult to ascertain on Election Day (depending on how many absentee ballots are received and when/how they are counted). Given the fact that a vote of the Electoral College, rather than the popular vote, actually elects the President of the United States (i.e., voters merely determine the composition of the Electoral College), in close presidential elections, the election results may not be available on or even soon after Election Day. Thus, while there are common elements to shareholder and political voting, especially as to elections (other than those for the President), voting in corporate governance and voting in political governance situations can be quite different.
Having noted these comparative and contrasting reflections on voting in the corporate and political contexts in honor of Election Day, I recognize that, for many, it is difficult to be impassive about Election Day and voting this year. Students, colleagues, friends, and family members have expressed to me their hopes, fears, enthusiasm, and anxiety about, in particular, tomorrow's presidential election. Whatever the result, some will be relieved, and some will be disappointed.
As a student and teacher of mindfulness practices, I am compelled to note that they can be very useful in moments like these. They can promote calm, considered, dispassionate reactions and decision-making, and research evidences they can have impacts on the brain that are correlated with stress reduction. Of course, I recommend mindful yoga. But meditation, breath work, mindful walking, and other activities through which the brain is able to focus on what is here now, in the present moment (and not on what was or will be), can be helpful in producing a calmer state of mind.
Cheers to voting and mindfulness practices! I recommend both as Election Day fast approaches. And I have already done the voting part . . . .
Tuesday, October 27, 2020
I have written about the American Bar Association Limited Liability Institute in this space before. See, e.g., here, here, here, here, and here. The 2020 LLC Institute is being hosted virtually and begins next Friday--something to look forward to at the end of election week! This ABA program is always a premier event, and it is the only national annual program that focuses in exclusively on LLCs and unincorporated business associations.
Importantly, this year's institute is free to law students. I have recommended registration and attendance to mine. Click here for more information, including the agenda, list of speakers (including yours truly!), and registration.