Business Law Prof Blog

Updated (and Still Thoughtful!) CTA Analysis

Stoll Keenon Ogden PLLC's Corporate Transparency Act ("CTA") guidance, about which I posted back in June, was recently updated.  You can find the update here.  Hat tip to friend-of-the-BLPB Tom Rutledge from Stoll Keenon Odgen on this development. 

I know many are struggling to interpret and apply the CTA.  I appreciate the work firms and individual lawyers are undertaking to help enlighten that effort.  Please feel free to send me links to guidance you may have seen that you believe to be particularly useful.

Widener Law Commonwealth Faculty Openings Include Commercial Law, IP, and More!

Widener Law Commonwealth seeks entry-level or pre-tenure lateral faculty members to fill three or more tenure track positions starting in the 2025-2026 academic year. We have specific needs in our year-long Contracts and Property courses.  As to the rest of the teaching package, we have flexibility, but we have particular needs in the areas of Legal Methods, Administrative Law, Commercial Law, Environmental Law, and Intellectual Property.  

 

Established in 1989, Widener Law Commonwealth is an independently accredited law school within Widener University.  Located in Harrisburg, PA, the law school's location in the capital of Pennsylvania provides impactful experiences for both our faculty and students.  

 

WLC is a dynamic community of teachers and scholars.  We pride ourselves on our dedication to our students, our engagement with teaching, and our scholarly impact.  Many of our scholars are actively engaged in law reform efforts at both the state and federal level.

 

The law school is committed to fostering an environment in which faculty, staff, and students from a variety of backgrounds, cultures, and personal experiences are welcomed and can thrive. Faculty and staff are active participants in our work to enhance diversity, equity, inclusion, and belonging.  We welcome applications from members of historically underrepresented groups.

 

We are looking for candidates with strong academic backgrounds, commitment to excellence in teaching, and demonstrated potential to be productive scholars.  Candidates must possess at least a JD degree or its equivalent.  

 

Application can be submitted by submitting a cover letter, CV, and list of three references to the appointments committee at [email protected].  Please contact Professor Robyn Meadows, Appointments Committee Chair ([email protected]), with any questions.

Stetson Law Seeking Business Law Faculty

STETSON UNIVERSITY COLLEGE OF LAW seeks to fill four entry-level or lateral tenure-track positions.  Our hiring needs will focus on candidates willing and eager to extend our existing institutional strengths and help us build into new areas of excellence. We specifically seek candidates with expertise in the areas of legal research and writing, public and private international law, transactional and corporate law, advocacy, elder law, professional responsibility, data privacy, cybersecurity, and compliance. We also seek candidates who will build upon our teaching depth in all our first-year courses.

Stetson Law was Florida’s first law school, founded in 1900.  Stetson Law has a national reputation for its advocacy program, ranked #1 in the nation, and its legal writing program, ranked #3 in the nation, by U.S. News and World Report.  It also boasts renowned centers, institutes, and clinics in various fields, such as advocacy, elder law, higher education, biodiversity and the environment, legal communication, Caribbean law, and veterans law. 

Stetson Law is part of a private university, which includes a College of Arts and Sciences, a School of Music, and a School of Business Administration, the latter of which supports the law school’s joint JD/MBA program.  Stetson nurtures a vibrant intellectual community, situated on a beautiful campus, just minutes from Florida’s Gulf Coast, in the Tampa Bay area, the nation’s 17th largest metro area. We encourage potential applicants to visit our website at https://www.stetson.edu/portal/law/ to learn more about our school, our community, and our programs. 

Stetson encourages applications from women, persons of color, LGBTQ+ candidates, and others who will contribute to our stimulating and diverse cultural and intellectual environment. Stetson’s Equal Employment Opportunity policy is available at: https://www.stetson.edu/law/career/nondiscrimination-policy-for-employers.php.

Applicants should email a cover letter that explains your teaching and scholarly interests, attaching a current curriculum vitae and contact information for at least three professional references.  Please send the email to Professors Rebecca Morgan and Stacey-Rae Simcox at [email protected].  You may also apply by paper mail to Professors Morgan and Simcox, Stetson University College of Law, 1401 61st Street South, Gulfport, FL 33707.  The Faculty Appointments Committee will continue to review applications until positions are filled. 

Business Law Faculty Searches - Missouri Law

The University of Missouri School of Law invites applications for multiple tenure-track or tenured positions. We are seeking candidates with a strong commitment to scholarship, teaching, and public service; a strong academic record; and either legal practice experience or advanced academic training. A J.D. or Ph.D. in a related field is required.

 

Our hiring needs are flexible, and we invite candidates in any subject matter to apply. We are especially interested in applicants planning to teach Property, Civil Procedure, Constitutional Law, Environmental Law, and corporate law topics.

 

Lateral candidates may be considered for hiring under Mizzou Forward. Mizzou Forward is a transformational effort to strengthen research innovation and improve the lives of people around the world. The initiative is an investment by the University of Missouri to hire up to 150 world-class faculty over the next several years. A successful Mizzou Forward candidate is a research leader with a robust publication and citation record, national awards and/or membership in national academies and external research funding or publication of at least one book. Candidates will also be committed to student success and university service. 

 

The University of Missouri-Columbia is the flagship campus of the University of Missouri system and is one of only 33 public universities in the country belonging to the Association of American Universities, a group of elite research universities. As both a research and land grant university, we have extraordinary opportunities for interdisciplinary interaction. In addition, Columbia is a wonderful college town halfway between St. Louis and Kansas City that is regularly ranked as one of the most livable cities in the country.

 

Application Procedure: Review of applications will begin August 15, 2024 and continue until the position is filled. To apply, please submit a cover letter, CV, and references for job ID 52095 at hr.missouri.edu/job-openings. Inquiries should be directed to Associate Dean Sandra Sperino at [email protected] or 573-882-1799.

 

Additional information about the School of Law is available at www.law.missouri.edu. The University of Missouri is an equal opportunity/ADA institution. The University of Missouri is fully committed to achieving the goal of an inclusive academic community of faculty, staff and students. We seek individuals who are committed to this goal and our core campus values of respect, responsibility, discovery and excellence. To request ADA accommodations, please call the Disability Inclusion and ADA Compliance Manager at 573-884-7278.

Hofstra Law Seeks Faculty to Teach Property and Intellectual Property

The Maurice A. Deane School of Law at Hofstra University invites applications for up to three entry-level or junior tenure-track or newly-tenured faculty members, to begin in Fall 2025. We seek candidates with a strong record of or potential for significant scholarship and commitment to excellence in teaching who will bring diverse experiences and perspectives to enrich our law school community. We seek candidates across all subject areas, but have particular interest in fulfilling curricular needs in Constitutional Law, Criminal Law, Property, Environmental Law, and Intellectual Property.

Located on Long Island, less than thirty miles from midtown Manhattan, Hofstra Law is known as an innovator in legal education, from being one of the first schools to implement clinical education as a means of graduating practice-ready lawyers to recent advancements in experiential learning and interdisciplinary programming.  Hofstra's strong national reputation is the product of a demonstrated commitment to attracting and supporting talented and productive faculty through summer research grants, sustained teaching load reductions, and other resources for both teaching and research initiatives. 

Applications should be submitted electronically at this link on the Hofstra portal and include the following: 

• A letter of application
• CV
• Scholarly agenda
• Proposed job talk topic or paper

Questions may be directed to Alafair Burke and Dan Greenwood, Co-Chairs of the Faculty Appointments Committee, at [email protected] and [email protected], respectively.

Albany Law Faculty Search Includes Business Law!

ASSISTANT/ASSOCIATE/PROFESSOR OF LAW

 

ALBANY LAW SCHOOL, in New York's Capital City, invites applications from entry-level and lateral candidates for multiple faculty positions beginning in July 2025. We are committed to the diversity of our student body and faculty. We seek candidates with experience in teaching and mentoring students from groups historically excluded from higher education and the legal profession and whose work advances critical thinking on questions of importance to society. We welcome applications from qualified candidates across all areas and specializations, from core first-year classes to specialty upper-level courses. In addition, we have particular interest in candidates with expertise in the following primary areas: business law (including contracts, corporate, commercial and transactional law courses); clinic (including the Director of the Immigration Law Clinic and Director of a new Housing Clinic); Introduction to Lawyering. Secondary areas include: administrative law, legislation, regulation, tax, law & technology, intellectual property, criminal law, evidence, constitutional law and environmental/energy law.

As part of our unitary tenure system, tenure-track opportunities are available across all positions. In addition, Albany Law School is poised to begin new programming that will increase online opportunities for our students and our faculty. Applicants should express their potential interest in teaching in an online format, although an applicant's preference with respect to teaching format will not impact their candidacy.

Qualifications
We seek candidates with a strong academic record, capacity for scholarly merit, and whose work encourages innovative and critical thinking. Applicants must hold a J.D. degree or the equivalent and demonstrate a commitment to teaching excellence. Appointment rank will be determined commensurate with the candidate's qualifications and experience.

Application Instructions
For full consideration, applicants should apply by September 15, 2024, but we recommend that you submit your materials as soon as possible. To apply, please submit a cover letter, curriculum vitae, research agenda, writing sample, diversity statement, and the contact information for at least three references. Applicants seeking a lateral appointment are encouraged to apply as soon as possible and will be considered on a rolling basis. For more information about these opportunities, please contact Professor Jennifer Martin, Recruitment Committee Chair, at [email protected]. All applications must be submitted on our employment webpage.

 

Compensation
The estimated salary range for this position is $90,000-$160,000 per year, plus comprehensive benefits package. Salary will be based on the rank and tenure status of appointment offered, the successful candidate's relevant experience, knowledge, skills and abilities, and in consideration of internal equity.
 

ABOUT ALBANY LAW SCHOOL: Established in 1851, ALBANY LAW SCHOOL is the oldest independent law school in the nation and the oldest law school in New York State. Our faculty are productive, collaborative, and growth oriented. We are committed to admitting and retaining a student body that represents the diversity of the society in which we live. Our students enter the law school from undergraduate institutions, other graduate studies, industry, and often as part of a career progression or change. Our graduates consistently secure employment and career advancement across several areas of practice, including government service, Big Law, and public interest. Our most recent graduating class performed over 52,176 hours of pro bono and public service work during their law school careers.

Albany Law School's commitment to diversity, equity, and inclusion means that our community does not discriminate on the basis of gender, gender identity or expression, race, creed, color, national origin, ethnicity, religion, disability, sexual orientation, marital status, familial status, pregnancy, domestic violence victim status, military or veteran status, genetic predisposition status, age, or any other protected characteristic under applicable local, state or federal law, in its programs and activities. We are committed to building and sustaining a more diverse, equitable, and inclusive community to address specific forms of discrimination that have historically affected the legal profession in particular. To that end, we take active steps to support this goal, including but not limited to: promoting Anti-Racism, working to actively oppose racism by advocating for changes in political, economic, and social life where necessary to overcome racial inequality; promoting Gender Justice, advocating changes necessary to ensure that everyone is treated equally and with respect and enjoys full rights and equal dignity regardless of their gender, transgender or nonbinary identity or expression, or lesbian, gay, bisexual, and queer existence; and, promoting Disability Equity, committing to ensuring the profession values access, self-determination, and an expectation and valuing of difference in terms of disability, identity, and culture.

 

ABOUT NEW YORK'S CAPITAL DISTRICT: As the home of the state capital of New York, the Capital District is a vibrant and diverse area with significant political impact both at the state and national levels. Albany, Troy, Schenectady, and Saratoga Springs are the four cities around which New York's Capital District-a metro region with over one million in population-is centered. Boasting some of the best schools in New York, access to mountain ranges and lakes, and the robust artistic life of the Hudson Valley, the region is especially attractive for its work-life balance. In addition, the Capital District is a short drive to major metropolitan regions including Boston, New York City, and Montreal.

Kentucky Law is Looking for Business Law Faculty

THE UNIVERSITY OF KENTUCKY ROSENBERG COLLEGE OF LAW invites applications for an entry-level or lateral, tenure-track faculty position at the rank of Assistant or Associate Professor, beginning in August 2025. The College is seeking to fill needs in several areas of law, up to two faculty positions this year. We are interested in considering candidates who teach and/or research in Commercial Law, Contracts, Secured Transactions, and Bankruptcy as well as others not included in this list of priorities. We may consider an applicant for a full Professor position. The Rosenberg College of Law is an important part of a major research university and offers a collegial and supportive atmosphere for its faculty, staff, and students. Applicants should have a J.D. or equivalent law degree, a record of high academic achievement, and a demonstrated potential for excellence in teaching and in scholarly productivity. Salary for this position will be commensurate with experience.

To receive consideration for this position, applicants must apply through the University of Kentucky’s Integrated Employment System at https://ukjobs.uky.edu/postings/540069 where they can submit a letter of application and resume. Please send any questions to Faculty Appointments Committee Chair Alan Kluegel, [email protected], or by mail at the University of Kentucky Rosenberg College of Law, 620 South Limestone, Lexington, KY 40506-0048.

The University of Kentucky provides a range of employee benefits to its faculty. There are several healthcare plans available. Faculty are also eligible to participate in the University's retirement plan. Essentially, the University will deduct five percent of your salary and contribute it to the plan of your choice (among several investment alternatives), and the University contributes an additional ten percent to the plan. Several other insurance policies are available to faculty members. We can help you obtain further information on these benefits from Human Resources, or you can go to their website for additional Information (https://hr.uky.edu/insurance-and-retirement).

Lexington is in the center of the Bluegrass, an internationally acclaimed cultural landscape, and in close proximity to Louisville and Cincinnati. It is a community of 300,000 and is distinguished by its rating as one of the top 10 most educated cities in the nation (according to the U.S. Census), top 5 cities for young professionals (Kiplinger), top 3 mid-sized cities for lowest cost of living (KPMG LLP), and top 5 cities to raise a family (Forbes). More information on Lexington is available at http://www.visitlex.com and http://www.aceweekly.com.

The University of Kentucky is an Equal Opportunity University that values diversity and inclusion. Individuals with disabilities, individuals from minoritized populations, veterans, women, and members of other underrepresented groups are encouraged to apply.

Call for Papers: ILE/Penn Law Junior Faculty Business and Financial Law Workshop

Institute for Law & Economics
University of Pennsylvania Carey Law School

THIRD ANNUAL JUNIOR FACULTY
BUSINESS AND FINANCIAL LAW WORKSHOP

 

CALL FOR PAPERS

            The Institute for Law & Economics (ILE) at the University of Pennsylvania Carey Law School is pleased to announce its second annual Junior Faculty Business and Financial Law Workshop.  The Workshop will be held in person on November 22, 2024 at Penn Carey Law.

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

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

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

            Those interested in presenting a paper at the Workshop should submit through this website: https://www.law.upenn.edu/live/forms/76-call-for-papers-junior-faculty-business-amp on or before September 6, 2024. Submissions may be in the form of an abstract, summary, or draft.  Please submit using the following format for your file name – author’s Last name.First name.Title (ex. Smith.Jane.BusinessLawPaper). Direct any inquiries related to the workshop to:

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

            Submissions will be selected after review by members of ILE. Authors of accepted submissions will be notified by October 4, 2024. Please feel free to share this Call for Papers with any colleagues who may be interested.

Texas Tech Law Hiring - Business Law

The School of Law at Texas Tech University invites applications for a full-time, 9-month tenure-track Professor of Law position to begin in August of 2025.  The position is open to both entry-level candidates and candidates who are on the tenure-track or tenured at another school.  Candidates who satisfy Texas Tech University’s requirements to be hired with tenure will also be eligible to hold the Frank McDonald Endowed Professorship in business law.

Required Qualifications

In line with TTU’s strategic priorities to engage and empower a diverse student body, enable innovative research and creative activities, and transform lives and communities through outreach and engaged scholarship, applicants should have experience or demonstrated potential for working with diverse student populations at the undergraduate and/or graduate levels within individual or across the areas of teaching, research/creative activity, and service.

Specific required qualifications are:

1. Candidates should have a J.D.;
2. Candidates should have a demonstrated potential for excellence in research, teaching, and service; and
3. Candidates should have demonstrated potential for excellence in the areas of Contracts and in corporate/business law, such as Business Entities, Securities Regulation, Mergers & Acquisitions, and related courses.

Preferred Qualifications

In addition to the required qualifications, individuals with the following preferred qualifications are strongly encouraged to apply:  Experience teaching corporate/business law courses and scholarly publications in corporate/business law areas.

About the University and School of Law

Established in 1923, Texas Tech University is a Carnegie R1 (very high research activity) Doctoral/Research-Extensive, Hispanic Serving, and state-assisted institution. Located on a beautiful 1,850-acre campus in Lubbock, a city in West Texas with a growing metropolitan-area population of over 300,000, the university enrolls over 40,000 students with 33,000 undergraduate and 7,000 graduate students.  As the primary research institution in the western two-thirds of the state, Texas Tech University is home to 10 colleges, the Schools of Law and Veterinary Medicine, and the Graduate School.  The flagship of the Texas Tech University System, Texas Tech is dedicated to student success by preparing learners to be ethical leaders for a diverse and globally competitive workforce.  It is committed to enhancing the cultural and economic development of the state, nation, and world.

The School of Law has approximately 440 students and 38 full-time faculty members.  The School of Law is an integral part of the University and offers 10 dual-degree programs with other Texas Tech schools and colleges. The School of Law has a strong focus on students and is committed to a practical education to produce practice-ready graduates.

About Lubbock

Referred to as the “Hub City” because it serves as the educational, cultural, economic, and health care hub of the South Plains region, Lubbock boasts a diverse population and a strong connection to community, history, and land.  With a mild climate, highly rated public schools, and a low cost of living, Lubbock is a family-friendly community that is ranked as one of the best places to live in Texas.  Lubbock is home to a celebrated and ever-evolving music scene, a vibrant arts community, and is within driving distance of Dallas, Austin, Santa Fe, and other major metropolitan cities.  Lubbock’s Convention & Visitors Bureau provides a comprehensive overview of the Lubbock community and its resources, programs, events, and histories.

Equal Opportunity Statement

All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, gender expression, national origin, age, disability, genetic information or status as a protected veteran.

To Apply for this Position

Please include the following documents in your application at the Texas Tech Jobs website  https://www.depts.ttu.edu/hr/workattexastech/

• Curriculum Vitae
• Cover Letter
• List of references

Questions about this position should be directed to Jarod Gonzalez, J. Hadley and Helen Edgar Professor of Law and Chair, Faculty Appointments Committee at [email protected]. For your application to be considered, you must submit it at the Texas Tech Jobs website. If you need assistance with the application process, contact Human Resources, Talent Acquisition at [email protected] or 806-742-3851.

Application Process

Submission of applications is preferred by September 16, 2024. To ensure full consideration, please complete an online application at https://www.depts.ttu.edu/hr/workattexastech/ Requisition # 38114BR.

Business Law Openings at Oregon Law!

The University of Oregon School of Law invites applications from entry-level and lateral candidates for two tenure-track positions at the rank of either assistant or associate professor:

• Business & Sports Law: https://careers.uoregon.edu/cw/en-us/job/533942 

• Intellectual Property / Law & Technology: https://careers.uoregon.edu/cw/en-us/job/533943

Each position will start August 2025. Candidates of all viewpoints and employing any research methodology or approach are welcome to apply.

To apply for either position, applicants should submit (1) a letter of interest; (2) a current resume or CV; (3) a description of their research agenda; (4) a statement addressing their potential contribution(s) to diversity, equity and inclusion (see next paragraph); and (5) a list of references. To ensure consideration, application materials should be submitted by August 21, 2024, although applications will be accepted until the positions are filled.

As part of the application process, applicants must submit a statement about promoting equity, inclusion, and diversity in their professional careers. In evaluating such statements, the law school will consider an applicant’s awareness of inequities and challenges faced by students and faculty belonging to underrepresented or disadvantaged groups; track record (commensurate with career stage) of activities that reduce barriers in education or research for students and faculty belonging to underrepresented or disadvantaged groups; vision and plans for how their work will continue to contribute to the University of Oregon’s mission to serve the needs of our demographically and ideologically diverse state and student population and create an inclusive campus; and other relevant factors.

About the Law School

The University of Oregon School of Law is a dynamic, forward-thinking ABA-accredited law school. We are also Oregon’s only public law school, with our main campus in Eugene and a satellite campus in Portland, the state’s largest city. Our mission is to provide a worldclass education. We prepare students through excellent classroom teaching paired with robust experiential learning and professional development opportunities. We are nationally recognized for our top-ranked programs and distinguished faculty.

About the University of Oregon

The University of Oregon (UO) is an R1 institution, a member of the Association of American Universities, and enrolls approximately 20,000 undergraduate and 4,000 graduate students. The UO recently joined the Big Ten Conference, with student-athlete competition within the new group starting in 2024. As a part of this move, UO will also join the Big Ten Academic Alliance, bringing together research and academic institutions sharing a common mission of research, graduate, professional, and undergraduate teaching, and public service. The UO’s 295-acre main campus in Eugene features state-of-the-art facilities in a verdant, arboretum-like setting. Eugene, a vibrant city of approximately 200,000, is within easy traveling distance of the Pacific Coast, the Cascade Mountains, Portland, and the rest of the beautiful Pacific Northwest.

Applications must be submitted online using the relevant link above.

For questions about either position, please contact Professor Mohsen Manesh at [email protected]. 

UMKC Law Seeks Business Law Faculty

UNIVERSITY of MISSOURI-KANSAS CITY
SCHOOL of LAW

Job Description

The UMKC School of Law seeks to hire for an entry level or lateral tenure-track or tenured faculty position in Business Law and related fields, which will begin in Fall 2025. The School of Law is looking for faculty members with a strong commitment to educating lawyers for the twenty-first century and those who will actively participate in our collegial, collaborative community. We encourage applications from candidates who would add diversity to our faculty.

UMKC offers a wide range of traditional Business Law courses and also several projects-based and experiential learning courses and programs, some of which are interdisciplinary and involve interactions with departments in UMKC’s Henry W. Bloch School of Management and other academic units. As part of the J.D. program, students may earn a Business and Entrepreneurial Law Emphasis. Additionally, students with potential interest in business-related fields are presented with a variety of skills training options through a team-taught Transactional Lawyering Skills Lab course and other simulation courses, an Entrepreneurial Legal Services Clinic, an Intellectual Property Clinic, and competitions, internships, externships, and supervised independent study opportunities.

One component of the faculty position would be teaching a Business Organizations course. Beyond that, there is flexibility for candidates with business-oriented research and teaching interests to fashion a teaching package that might include a combination of courses from such subjects as Antitrust Law, Business Finance, Mergers and Acquisitions, Securities Regulation, Taxation of Corporations, co-teaching in the Transactional Lawyering Skills Lab course; and other courses such as Health Care Law or Business Planning where knowledge of organizational structures strongly overlaps. The teaching package might also include participation in one of our innovative projectsbased interdisciplinary entrepreneurship courses operated out of the Law School-led Center for Law, Entrepreneurship & Innovation, which connects faculty, staff, and students from multiple UMKC academic units and other programs with projects and in many cases collaborators from other institutions and organizations. Many of the Law School’s entrepreneurship endeavors have been supported by funding from the Ewing Marion Kauffman Foundation. We also welcome the inclusion of one or more other courses that offer critical perspectives on business law, which the candidate might propose to enrich the Law School’s business curriculum.

Qualifications

A J.D. or equivalent degree is required.

Anticipated Hiring Range

Rank and salary are commensurate with qualifications, experience and evidence of success in legal education and research. This is a 9-month, benefit-eligible, full-time (1.0) faculty appointment eligible for tenured promotion. Your total compensation goes beyond the number on your paycheck. The University of Missouri provides generous leave, health plans, and retirement contributions that add to your bottom line. Our academic workloads and schedules promote a positive work/life balance.

Application Materials

The Faculty Appointments Committee of the School of Law will review applications submitted through the UMKC Human Resources portal. For consideration, you must apply online at http://www.umkc.edu/jobs, click on Academic Positions (Job Opening ID 52378).

Please combine all application materials (personal letter of interest and applicable experience which qualifies you for a tenure-eligible faculty position, current curriculum vitae, and evidence of success in publication) into one PDF or Microsoft Word document and upload as your resume attachments. Limit document name to 50 characters and do not include any special characters (e.g., /, &, %, etc.).

For more information, please contact:

Mikah Thompson
Chair, Faculty Appointments Committee
UMKC School of Law
[email protected]
816-235-2688

• If you are experiencing technical problems during application, please email [email protected].
• Reasonable accommodations may be requested during the application and recruitment process. If you need an accommodation, please contact the Office of Affirmative Action at (816) 235-1323.
• Higher education transcripts and/or verification of J.D. will be required for candidates advancing as finalists.
• Candidates will receive prior notification if references will be contacted.

Handling of Application Materials

After initial review by the committee all uploaded materials may be shared with all faculty in the prospective home department. For affiliations and joint appointments materials may be shared with all faculty in all departments involved.

Application Deadline

Review of applications begins upon receipt. Applications will be accepted until this position is filled.

Other Information

The School of Law at the University of Missouri-Kansas City is the urban law school of the University of Missouri System and is located on a beautifully landscaped campus in the Country Club Plaza area of Kansas City, Missouri. It is the only law school in a diverse and vibrant metropolitan area of more than two million people and offers courses leading to J.D. or LL.M. degrees for approximately 450 students. It benefits from its metropolitan location, a university with opportunities for interdisciplinary collaboration, a dedicated faculty and staff, and strong community and alumni support.

UMKC is a public, urban, research university with more than 15,000 undergraduate, graduate, and professional students. It is part of the larger University of Missouri System. Our university is committed to being a model urban university that is recognized for our partnerships with surrounding urban communities to effectively foster a healthy, safe, and more economically secure quality of life.

A City on the Rise: Big City Life and Midwest Charm, Kansas City offers the best of both worlds - a vibrant, urban community with midwestern appeal and an affordable cost of living. The university is located in a Kansas City metropolitan area that is among the most entrepreneurial cities in America with a population of more than 2.4 million. Our UMKC campuses are centered in the hubs of business activity, cultural arts, (some great barbeque and ethnic cuisine!) and health science research engagement for both the Volker and Health Sciences campuses. Our community boasts championship professional athletic teams, NASCAR racing, and a rich history of music and performing arts. Our beautiful state provides rivers, lakes, biking/hiking trails and mountains for outdoor enthusiasts all within an easy drive.

Benefit Eligibility

This position is eligible for University benefits. As part of your total compensation, the University offers a comprehensive benefits package, including medical, dental and vision plans, retirement, and educational fee discounts for all four UM System campuses. For additional information on University benefits, please visit the Faculty & Staff Benefits website at https://www.umsystem.edu/totalrewards/benefits.

Values Commitment

We value the uniqueness of every individual and strive to ensure each person’s success. Contributions from individuals with diverse backgrounds, experiences and perspectives promote intellectual pluralism and enable us to achieve the excellence that we seek in learning, research and engagement. This commitment makes our university a better place to work, learn and innovate.

In your application materials, please discuss your experiences and expertise that support these values and enrich our missions of teaching, research, and engagement.

Equal Employment Opportunity

The University of Missouri System is an Equal Opportunity Employer. Equal Opportunity is and shall be provided for all employees and applicants for employment on the basis of their demonstrated ability and competence without unlawful discrimination on the basis of their race, color, national origin, ancestry, religion, sex, pregnancy, sexual orientation, gender identity, gender expression, age, disability, or protected veteran status, or any other status protected by applicable state or federal law. This policy applies to all employment decisions including, but not limited to, recruiting, hiring, training, promotions, pay practices, benefits, disciplinary actions and terminations. For more information, visit https://www.umsystem.edu/ums/hr/eeo or call Human Resources at 816-235-1621.

To request ADA accommodations, please call the Office of Equity & Title IX at 816-235-6910.

Bragging on a Student Today . . . .

We do not often talk or write about the scholarship our students produce.  A number of my students have won prizes for their work; more have seen their work published (in one case I know of, three times!).  I wish I had said more about all of that as it was happening.

Today, I want to promote the work of a rising 3L that I am working with on a project.  He is the Editor-in-Chief of the Tennessee Journal of Law and Policy.  His name is Caleb Atkins.

Caleb recently completed work on an article in the area of healthcare regulation, a big topic in the State of Tennessee, as you may know.  Healthcare is a big business in Tennessee.  Many of our students get jobs in that field. 

I became interested in Caleb's research while he was working on it because of my knowledge of the merger that underlies and inspired his inquiries.  The consolidation of healthcare facilities in various parts of the United States can have alarming effects on people.  His article provides illustrations.  I just love that Caleb has taken on this work as a student.  Months ago, I asked if I could share his work with you once it came out. 

I got news of the publication of the article while I was away a few weeks ago.  It is entitled "The Anticompetitive Nature of Certificate of Need and Certificate of Public Advantage Laws in the United States."  It was recently published in the Marquette Benefits & Social Welfare Law Review here.  The abstract for the paper is set forth below.

Certificate of Need (CON) laws serve as a major barrier to entry in the healthcare market, which already suffers from a high degree of market concentration. Certificate of Public Advantage (COPA) laws give healthcare providers robust antitrust immunity by allowing a merger to go through that would oftentimes be illegal. These COPAs can lead to a reduced quality of care for patients, reduced access to care in the communities where hospitals with COPAs operate, reduced wages for hospital employees in the relevant geographic market, and increased prices for patients seeking care. Given the essential nature of healthcare services, addressing the anticompetitive effects of CON and COPA laws is of the utmost importance.

In places like Northeast Tennessee, the anticompetitive effects of CON and COPA laws are particularly troubling when we consider how little economic power the citizens in the region wield. In 2018, a COPA was granted that allowed the two largest hospitals in the region, Mountain States Health Alliance (Mountain States) and Wellmont Health Systems (Wellmont Health), to form a new entity, Ballad Health Systems (Ballad Health), in a merger. Since the merger in 2018, the citizens of Northeast Tennessee have been incredibly unsatisfied with what Ballad Health has done in their region. Accordingly, the state of Tennessee should eliminate, or at least greatly restructure, their CON laws and require Ballad Health to deliver on their promises that the state and Ballad used to justify the COPA being created in the first place. Additionally, states that are considering eliminating their CON laws or whether to grant a COPA to a hospital should carefully consider the harms that CON and COPA laws can cause.

Law school can make a difference.   Law students can make a difference.  Caleb is a great example of what is great about all that.  And if you are interested in healthcare regulation--and even if you are not--you may want to check out his article.

OU Law Seeks Tenure/Tenure-Track Faculty (Including In Bankruptcy Law)

The College of Law at the University of Oklahoma (OU Law) seeks outstanding applicants, entry-level or lateral, for up to three full-time tenure/tenure-track positions to begin in the Fall Semester of 2025, at the rank of Associate Professor or Professor.  OU Law welcomes applicants in all subject areas but has particular interest in filling curricular needs in Bankruptcy, Constitutional Law, Criminal Law (principally upper-division electives), and Family Law. 

OU Law's strong national reputation is buttressed by a commitment to attracting and supporting excellent faculty with summer research grants, publication placement bonuses, course reductions based on scholarly productivity, and an extraordinary number of endowed positions. 

OU Law is a high-quality, affordable, and forward-looking institution committed to developing a socially involved legal profession. OU Law boasts world-class facilities, a commitment to technological innovation, and a varied student body. 

OU Law sits on the university's main campus in Norman, a college town alive with entertainment, arts, food, and sports. A perennial "best place to live," Norman has excellent public schools and low cost-of-living.  Neighboring Oklahoma City features a dynamic economy, outstanding cultural venues, and a major airport. For additional information regarding the university, Norman, and Oklahoma City, visit: 

https://www.ou.edu/facultyrecruitment    https://www.visitnorman.com/    https://www.visitokc.com/

Qualifications

1. J.D. or equivalent academic degree

2. Strong academic credentials

3. A commitment to excellence in teaching and demonstrably outstanding potential for scholarship

Application Instructions

All applicants must submit their application materials (CV and job-talk paper) via Interfolio, https://apply.interfolio.com/148218.  A cover letter is optional.  If one is selected for an interview, teaching evaluations will be requested of those candidates with teaching experience.  Review of applications will begin immediately, and the positions will remain open until filled.  Inquiries (but not application materials) may be sent directly to the chair of the Faculty Appointments Committee, Steven J. Cleveland, [email protected].

Equal Employment Opportunity Statement

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

Why You Belong at the University of Oklahoma

The University of Oklahoma fosters an inclusive culture of respect and civility, belonging, and access, which are essential to our collective pursuit of excellence and our determination to change lives. The unique talents, perspectives, and experiences of our community enrich the learning, and working environment at OU, inspiring us to harness our innovation, creativity, and collaboration for the advancement of people everywhere. 

Mission of the University of Oklahoma

The Mission of the University of Oklahoma is to provide the best possible educational experience for our students through excellence in teaching, research and creative activity, and service to the state and society.

Business Law Center Director - The University of Tennessee College of Law

THE UNIVERSITY OF TENNESSEE COLLEGE OF LAW invites applications from business law scholars and teachers for the position of Director of the Clayton Center for Entrepreneurial Law and Professor of Law to commence no later than August 1, 2025. All the details can be found here: apply.interfolio.com/147825. 

Fiduciary Duties Trump Contracts?!

Many in the business law world have been following the saga involving the adoption of  S.B. 313 by Delaware's General Assembly last week.  S.B. 313 adds a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL) that broadly authorizes corporations to enter into free-standing stockholder agreements (not embodied in the corporation's charter) that restrict or eliminate the management authority of the corporation's board of directors.  See my blog posts here and here and others cited in them, as well as Ann's post here.

In the floor debate on S.B. 313 last Thursday in the Delaware State House of Representatives, a proponent of the legislation stated that fiduciary duties always trump contracts.  That statement deserves some inspection in a number of respects.  I offer a few simple reflections here from one, limited perspective.

The historical centrality of corporate director fiduciary duties (which were the fiduciary duties referenced on the House floor) is undeniable.  Those who have taken business associations or an advanced business course with me over the years know well that I emphasize in board decision making that the directors’ actions must be both lawful and consistent with their fiduciary duties in order to be legally valid and enforceable.  I doubt my teaching is exceptional in that regard.

But the floor debate involved a different kind of tangle between legal obligations and fiduciary duties than exists in the board decision-making context in which corporate action is written on a tabula rasa.  The comment made in last Thursday’s legislative session responded to the suggestion that a board of directors may later decide to breach a contract that is lawful and was approved by the board in a manner that is consistent with director fiduciary duty compliance.  That scenario involves board action to disregard the terms of an agreement—by authorizing and directing the corporation to breach a legal obligation of the corporation because the directors have, in good faith and with due care, determined that the breach of contract is in the best interest of the corporation.

This type of board action is certainly not unprecedented.  An example from my practice immediately springs to mind: no-shop, non-solicitation, and related clauses in business combination (M&A) agreements.  These provisions may be (or at least appear to be) lawful and compliant with director fiduciary duties when made but may interfere with a target board’s fiduciary duties if the board later determines it has a fiduciary obligation to engage in interactions with a potential transactional partner in violation of that type of deal protection provision. 

The resolution of this issue in the M&A context has largely been contractual.  Fiduciary outs of various kinds have been common in M&A agreements for decades.  (I gave my first CLE talk on them back in the 1980s.)  Through these provisions, directors consider and prepare in advance for the potentiality of a later conflict between the deal protection obligations of the corporation and their fiduciary duties to the corporation.  Properly drafted, fiduciary outs help  protect the legal validity and enforceability of the original contract from future challenge and preserve the board’s legal right to respond to new circumstances without breaching the contract.

As those who work in this space well know, a watershed case involving deal protection provisions is Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003). In its Omnicare opinion, the Delaware Supreme Court assesses the validity of a merger agreement that effectively locked up a majority of the votes needed to approve the merger.  The merger agreement did not include a fiduciary out provision. The directors had no ability to terminate the merger agreement or nullify its terms to comply with their fiduciary duties without breaching the contract.  The court found the deal protections invalid and unenforceable.

Proponents of S.B. 313 clearly state that a corporation's exercise of its authority to enter into stockholder agreements under § 122(18) will be subject to challenge if the directors breach their fiduciary duties to the corporation in approving a stockholder agreement or in later authorizing the corporation's performance under that agreement.  If the corporation's directors are found to be in breach, the stockholder agreement then may be found invalid or unenforceable.  The prospect of that occurring in the stockholder agreement context is as real as it is in the M&A deal protection context.

Perhaps, then, fiduciary outs are a best practice that should grow out of the new DGCL § 122(18).  If the parties truly intend for fiduciary duties to trump the contract (as the bill proponents have claimed) and we can anticipate challenges in that regard based on the nature of the agreement, stockholder agreements should provide in advance for the eventuality of a conflict.  Otherwise, a stockholder agreement authorized under DGCL § 122(18) may be found either invalid ex post because the board’s original approval of the agreement may later be determined to have been a breach of the directors’ fiduciary duties (for failure to include a fiduciary out, as in Omnicare) or unenforceable in litigation over a board decision to breach or refrain from breaching the agreement in the face of a perceived fiduciary duty conundrum related to the corporation’s performance under the terms of the agreement.  A well-crafted fiduciary out (which would undoubtedly be somewhat bespoke, as it should be in the M&A context, based on the nature of the corporation’s obligations in the contract) should help avoid litigation, or at least enable its early dismissal, in the event of either type of legal claim.

Your reactions to these musings are, as always, welcomed.  We will be operating in new territory here assuming the Governor of Delaware signs S.B. 313 into law (as he has signaled).  If I am missing an element of statutory or decisional law or strategic litigation practice that impacts my arguments, I would appreciate hearing about it.  Regardless, it is now time that we all think about how to address anticipated issues arising from the Pandora’s box that the Delaware General Assembly has opened.  That may include practice-oriented solutions to perceived legal questions or tensions as well as potential further adjustments to the DGCL.  As to the latter, I note that I raised in one of my earlier posts the desirability of looking at DGCL subchapter XIV in light of the provisions of DGCL § 122(18).  Perhaps that issue merits a subsequent post . . . .

Thoughtful CTA Guidance

The Corporate Transparency Act is among the most talked about business law topics in the bar communities I frequent. Basic information and guidance can be found in many places, but nuanced treatments are more rare. I offer one of those rare ones up for your review and consideration today.

Entitled The Corporate Transparency Act Is Happening To You and Your Clients: Dealing with the Tsunami, the analysis and guidance comes from Stoll Keenon Ogden PLLC.  More specifically, one of the two co-authors is friend-of-the-BLPB Tom Rutledge.  His work never disappoints.  I urge you to check it out--all 58 pages of it!  There is even a short resource list at the end with links to some of the key public guidance.  I am grateful for Tom and his colleague, Allison, for putting this together.

I Also Write Letters!

Further to Ann's post on Sunday sharing the text of her comment letter on Delaware's S.B. 313 (and more particularly the proposal to add a new § 122(18) to the General Corporation Law) and my post on § 122(18) last week, I share below the text of my comment letter to the Delaware State House of Representatives Judiciary Committee.  Although Ann and I each got one minute to deliver oral remarks at the hearing held by the Judiciary Committee on Tuesday, 60 seconds was insufficient to convey my overarching concerns--which represent a synthesis and characterization of selected points from my post last week.  The comment letter shared below includes the prepared remarks I would have conveyed had I been afforded additional time.

Madame Chair and Committee Members:

I appreciated the opportunity to speak briefly at today’s hearing. As I explained earlier today, although I am a professor in the business law program at The University of Tennessee College of Law, my appearance before the committee relates more to my nearly 39 years as a corporate finance practitioner, which has included bar work (most recently and extensively in the State of Tennessee) proposing and evaluating corporate and other business entity legislation. This letter expands on the virtual oral comments I offered at the hearing on the proposed addition of § 122(18) to the General Corporation Law of the State of Delaware (DGCL). My goal is simply to best ensure that the committee and the General Assembly are well informed about the significance of this proposed new section of the DGCL.

Both proponents and critics of proposed § 122(18) concur that the stockholder agreements that would be authorized by that provision can currently be accomplished in a corporation’s certificate of incorporation—the corporate charter. Indeed, as was alluded to in the testimony earlier today, current Delaware law expressly authorizes transferring governance authority from a corporation’s board of directors to its stockholders through charter amendments and through certificates of designation (instruments providing for new classes or series of stock) as well as for statutory close corporations, a status designated in the certificate of incorporation. As a result, questions raised at today’s hearing about why the new authority embodied in proposed DGCL § 122(18) is needed—or why it would be objectionable—are well taken. As I indicated in my oral testimony earlier today, the answer to those questions lies in public policy.

Current Delaware law on stockholder agreements promotes notice, transparency, and assent. Provisions in a Delaware corporation’s certificate of incorporation are matters of public record in the State of Delaware on which stockholders and prospective stockholders rely. They must be filed with the Delaware Secretary of State. Thus, Delaware’s corporate law currently requires that stockholders and potential future stockholders have public notice of any fundamental alteration in the statutory power of the board of directors to manage the corporation. Stockholder agreements like those authorized under proposed DGCL § 122(18) are not required to be filed with the state (although they would have to be filed with the U.S. Securities and Exchange Commission under the federal securities laws at some point after they are signed, for public companies). Moreover, under current Delaware law, if an amendment to the certificate of incorporation is required to achieve a shift in governance authority from the board of directors, then a stockholder vote is required. These requirements, which evidence Delaware’s public policies of notice, transparency, and assent, are what ultimately divide the supporters and detractors of proposed DGCL § 122(18). Your ultimate views on these policies—your determination as to whether they are important to the integrity of Delaware corporate law—should be strong factors in your determination of how to vote on proposed DGCL § 122(18). I submit that these policies should not be abandoned or reduced without careful consideration.

Last week, I wrote about my policy concerns relating to proposed DGCL § 122(18) in a blog post published on the Business Law Prof Blog. That post can be found here. Although my blog post was written for a different and broader legal audience (and therefore includes some technical legal references), it may be useful to you as additional statutory and judicial support for the positions I have taken in this letter and in my oral testimony. The post also includes several drafting observations relevant to the productive introduction of statutory authority for stockholder agreements that you may appreciate having.

I am grateful to have had the opportunity to share these insights with you today in writing and orally during the hearing this afternoon. I wish you well in your deliberations.

Very truly yours,

Joan M Heminway
Rick Rose Distinguished Professor of Law, The University of Tennessee College of Law
Member and Former Chair, Tennessee Bar Association Business Law Section
Former Chair and Member, Boston Bar Association Corporate Law Committee

The Delaware State House of Representatives may vote on the bill tomorrow (Thursday) afternoon.  It is the last item listed in the Main House Agenda for tomorrow's session.  I can only hope that the members of the House feel better informed after the House Judiciary Committee hearing on Tuesday.  I know many of us tried to ensure that they are well informed.

Moelis, § 122(18), and DGCL Subchapter XIV - Knowing Legislative Policy Shift?!

Like so many others, I have wanted to say a word about West Palm Beach Firefighters’ Pension Fund v. Moelis & Company, 311 A.3d 809 (Del. Ch. 2024).  My angle is a bit different from that of many others.  It derives from my 15-year practice background, my 24-year law teaching background, and my 39-year bar service background.  It focuses on a doctrinal analysis undertaken through a policy lens.  But I want to note here the value of Ann Lipton’s existing posts on Moelis and the related proposed addition of a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL).  Her posts can be found here, here, here, and here.  (Sorry if I missed one, Ann!)  Ben Edwards also published a related post here.  They (and others offering commentary that I have read) raise and touch on some of the matters I address here, but not with the same legislative policy focus.

I apologize at the outset for the length of this post.  As habitual readers know, long posts are “not my style” as a blogger.  This matter is one of relatively urgent legislative importance, however, and I am eager to get my thoughts out to folks here.

I begin by referencing the DGCL provision in the eye of the storm.  DGCL § 141(a) provides for management of the business and affairs of a Delaware corporation by or under the direction of the corporation’s board of directors, except as otherwise provided in the corporation’s certificate of incorporation or the DGCL.  In Moelis, Vice Chancellor Travis Laster found various provisions in a stockholder agreement unlawful under DGCL § 141(a).  Specifically, a series of governance-oriented contractual arrangements at issue in Moelis were not authorized under the corporation’s certificate of incorporation or another provision of the DGCL.

The tension in this space involving DGCL § 141(a) is not new.  For many years, the legal validity of so-called stockholder agreements—technically, agreements (as opposed to charter provisions) that shift governance power from the directors of a corporation to one or more of its stockholders—has been questionable for most Delaware corporations, including public companies.  (I say “many years” because the legal validity of these agreements was an issue I routinely wrestled with before I left the full-time private practice of law in 2000.) 

The DGCL is different from the Model Business Corporation Act (MBCA) in this regard.  The MBCA has long had a broad-based statutory provision, MBCA § 7.32, authorizing shareholder agreements under specified conditions.  States adopting the MBCA have made a (presumably) conscious choice to embrace shareholder governance under the circumstances provided in the MBCA, including through § 7.32.  The MBCA’s provision expressing the management authority of the corporation’s board of directors, MBCA § 8.01(b), expressly references MBCA § 7.32, providing that:

[e]xcept as may be provided in an agreement authorized under section 7.32, and subject to any limitation in the articles of incorporation permitted by section 2.02(b), all corporate powers shall be exercised by or under the authority of the board of directors, and the business and affairs of the corporation shall be managed by or under the direction, and subject to the oversight, of the board of directors.

There is no analogous provision in the DGCL.  The only way to be sure that one could accomplish a shift in governance power from directors to stockholders under the DGCL has been for a corporation either to include the governance provisions in its certificate of incorporation or to organize as a close corporation under Subchapter XIV.  Close corporation status requires charter-based notification and conformity to a number of statutory requirements set forth in DGCL §§ 341 & 342, including that the certificate of incorporation provide that the stock be represented by certificated shares “held of record by not more than a specified number of persons, not exceeding 30,” that the stock be subject to transfer restrictions, and that there not be a “public offering” of the stock. DGCL § 342(a)(1)-(3).  Thus, by legislative design, statutory close corporation status is not available to publicly held corporations organized under Delaware law (which makes total sense for those who understand what a closely held corporation is, in a general sense).

Members of the Delaware State Bar Association (DSBA) Corporation Law Section know all of this well.  As leaders in reviewing and proposing changes to the DGCL over the years, this group of folks has thoughtfully weighed policy considerations relating to the DGCL’s application to the myriad situations that Delaware corporations may face.  Without having researched or inquired about the matter, I find it hard to believe that the section has not previously discussed the desirability of an express statutory provision allowing for the approval and execution of stockholder agreements outside a corporation’s certificate of incorporation.  The matter has been addressed by the Executive Council of the Tennessee Bar Association’s Business Law Section, which engages in similar legislative initiatives in Tennessee, more than once during the time I have been serving on it.  I therefore assume that the choice to refrain from proposing a specific statute authorizing stockholder agreements outside a corporation’s certificate of incorporation over the years has been both informed and intentional.

Yet, earlier today, Senate Bill 313 passed in the Senate Chamber of the Delaware General Assembly.  In that bill, vetted and approved by the DSBA Corporation Law Section and blessed by the DSBA Executive Committee, the longstanding policy decision to refrain from allowing stockholder agreements outside of the certificate of incorporation or Subchapter XIV is being summarily reversed through the proposal to adopt a new DGCL § 122(18)—an alteration of the corporate powers provision of the DGCL.  That new proposed DGCL section provides a corporation with the power to enter into stockholder agreements within certain bounds, but those bounds are relatively broad.

As others have noted (at least in part), the drafting of the proposed DGCL § 122(18) (and the related additional changes to DGCL § 122) reflects a belt-and-suspenders approach and is otherwise awkward.  Multiple sentences are crammed into this one new subpart of DGCL §122 to effectuate the drafters’ aims.  The DGCL has been criticized for its complex drafting in the past (resulting in, among other things, a project creating a simplified DGCL), and the approach taken by the drafters of the proposed DGCL § 122 changes adds to the complexity of the statute in unnecessary ways.  A provision this significant should be addressed in a separate statutory section, the approach taken in MBCA §7.32.  That new section then can be cross-referenced in DGCL § 141(b)—and, if deemed necessary, DGCL § 122.  Breaking out the provision in its own section also should allow legislators to more easily and coherently identify strengths and weaknesses in the drafting and build in or remove any constraints on stockholder governance that they may deem necessary as the proposed provision gets continued attention in the Delaware State House of Representatives.  I offer that as a drafting suggestion.

Apart from the inelegance of the drafting, however, I have one large and important question as Senate Bill 313 continues to move through the Delaware legislative process: do members of the Delaware General Assembly voting on this bill fully understand the large shift in public policy represented by the introduction of DGCL § 122(18)?  If so, then they act on an informed basis and live with the consequences, as they do with any legislation they pass that is signed into law.  If not, we all must work harder to enable that understanding. 

It is all fine and good for us to point out how hasty the drafting process has been, how traditional debate and procedures may have been short-changed or subverted, how waiting for the Delaware Supreme Court to act on the appeal of the Chancery Court decision before proceeding is prudent, etc.  But the fact of the matter has been that potential and actual stockholders of Delaware corporations have been able to rely exclusively on charter-based exceptions to the management authority of the board of directors—whether those exception are authorized in Subchapter XIV of the DGCL or otherwise.  This has meant that prospective equity investors in a Delaware corporation knew to carefully consider a corporation’s certificate of incorporation to identify any pre-existing constraints on the management authority of the board of directors before investing.  This also has meant that any new constraints on the board of directors’ authority to manage the corporation’s business and affairs required a charter amendment of some kind—either a board-approved and stockholder-approved amendment of the certificate of incorporation or the board’s approval of a certificate of designations under charter-based authority of which existing stockholders should be aware.

Ann noted this issue in a previous post.  The enactment of proposed DGCL § 122(18) will make it more challenging for potential equity investors to identify the locus/loci of management power in the corporation.  Although both the certificate of incorporation and any stockholder agreement would be required to be filed with the U.S. Securities and Exchange Commission for reporting companies (the latter as an instrument defining the right of security holders under paragraph (b)(4) or as a material contract (b)(10) of Regulation S-K Item 601), the current draft of proposed DGCL § 122(18) does not provide that a copy of any contract authorized under its provisions be filed with the Delaware Secretary of State or that its existence be noted on stock certificates (a requirement included in MBCA §7.32(c)).  In addition, stockholders will lose their franchise if the stockholder agreement would otherwise have required a stockholder vote.

Finally, it seems important to note that the judicial doctrine or independent legal significance—or equal dignity—has been strong in Delaware over the years as a factor in the interpretation of Delaware corporate law.  This has helped practitioners and the judiciary to navigate difficult issues in advising clients about the outcomes of Delaware corporate law debates.  The rule typically has been that, if one takes a path afforded by the statute, they get what the statute provides.  And if one does not take a provided statutory path, they cannot later be heard to argue for what the statute provides for users of that untaken statutory path. 

Classically, in dicta in Nixon v. Blackwell, 626 A.2d 1366 (1993), Chief Justice Veasey wrote (on pp. 1380-81) about the importance of DGCL Subchapter XIV in construing corporate governance arrangements in light of the doctrine of independent legal significance:

 . . . the provisions of Subchapter XIV relating to close corporations and other statutory schemes preempt the field in their respective areas. It would run counter to the spirit of the doctrine of independent legal significance and would be inappropriate judicial legislation for this Court to fashion a special judicially-created rule for minority investors when the entity does not fall within those statutes, or when there are no negotiated special provisions in the certificate of incorporation, by-laws, or stockholder agreements.

With the passage of proposed DGCL § 122(18), parts of Subchapter XIV of the DGCL will seemingly be rendered vestigial (i.e., they will no longer have independent legal significance).  Consideration of this and any other potential collateral damage to the interpretation of Delaware corporate law that may be created by the enactment of proposed DGCL § 122(18) should be carefully undertaken and, as desired, additional changes to the DGCL should be debated before voting on Senate Bill 313 is undertaken in the Delaware State House of Representatives.

I do not argue for a specific result in this post.  Rather, I mean to illuminate further the significance of the decision facing the Delaware General Assembly (and, potentially, the decision of the Governor of the State of Delaware) in the review of proposed DGCL § 122(18).  In doing so, I admit to some sympathy for those who may have clients with stockholder agreements they now know or suspect to be unlawful under the Moelis opinion.  In all candor, any legislation on this topic should more directly address those existing agreements given that the provisions of proposed DGCL § 122(18) are not a mere clarification of existing law.  Agreements not re-adopted under any new legislative authority may be found unlawful in the absence of clarity on this point.  As a reference point, I note that, in amending MBCA § 7.32 to remove a previous 10-year duration limit, the drafters specified the effect on pre-existing agreements in MBCA § 7.32(h).  Take that as another drafting suggestion . . . .

I welcome comments on any or all of what I offer here.  If I have anything incorrect, please correct me.  Regardless, I hope this post provides some additional information to those in the Delaware General Assembly and elsewhere who have an interest in proposed DGCL § 122(18).

What is Equity, Anyway?

I just came back on Sunday from the 2024 Law and Society Association Annual Meeting in Denver.  It was, as always, a stimulating few days.  A number of us business law profs were in attendance.  The corporate and securities law collaborative research network (CRN46) habitually organizes several programs.  This year was no exception.  I was privileged to be featured in two.  But I will say more on my participation in the conference later.

Today, I want to highlight an interesting piece that was presented at the conference during one of the CRN46 paper panels: "The Original Meaning of Equity " by Asaf Raz (forthcoming in the Washington University Law Review).  The SSRN abstract follows:

Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point in the past (static equity). On the other, state courts—most prominently, in Delaware—administer equity to preserve the correct operation of law in unforeseeable situations (substantive equity). Only the latter interpretation complies with the historical and functional idea of equity.

This Article makes the first detailed argument for resolving the problem of static equity, and reinvigorating substantive equity in the federal judiciary and the broader legal community. To do so, this Article takes a highly innovative step, by connecting the federal discussion with an in-depth analysis of the legal scene where equity is employed most systematically (and most faithfully to its historical roots): Delaware law, including its corporate law. As this Article demonstrates, substantive equity is fully compatible with originalism and textualism; the "equity" mentioned in the Constitution and later federal texts is substantive, not static, equity. Federal law has always operated within the sphere of the common law, and this Article offers a new bridge between the two, exposing the members of each community to insights from the other, in a manner that promotes both the original understanding of the legal text, justice, and the rule of law.

Asaf's presentation of the piece at the conference generated several questions and an interesting extended discussion.  The term "equity" has many meanings in law that we must be conversant with in our work.  We also need to help students define "equity" in context and sort out its varied meanings as they learn about law in its multifarious manifestations.  These factors alone make the article a valuable read.  However, more centrally, I applaud Asaf for taking on the task of adding some clarity to the term and on connecting his research to both federal (including constitutional) and Delaware law in novel ways.  I look forward to spending more time with this piece.  And I know Asaf welcomes your comments!

Artificial Intelligence and Memorial Day

Over the years, I have written a number of blog posts here on Memorial Day that honor those who sacrificed their lives for us through national military service.  You can find the last few here, here, and here.  When practicable, I work in something about business law in those posts.

This year, as I contemplated what to write, I also was mired in grading and other teaching-related work.  On my mind throughout was generative artificial intelligence, a hot topic in law school circles and throughout education (and, of course, elsewhere, too).  The full range of benefits and burdens of generative artificial intelligence still remain to be discovered.

I wondered what a generative artificial intelligence tool would draft up as a blog post for Memorial Day.  Then, I thought, why wonder?  Why not give it a whirl?  So, I asked Google Gemini to "[w]rite a short blog post that combines business law with Memorial Day."  Set forth below is what I got back.

Honoring Heroes, Respecting Rights: Business Law and Memorial Day

Memorial Day is a time to remember the brave men and women who died serving our country. But for businesses, it also presents some legal considerations. Here's a quick look at how business law intersects with this solemn holiday.

• • Employee Rights: Federal law doesn't mandate paid time off for Memorial Day. However, some states have their own laws, and many companies offer paid holidays as part of employee contracts. Businesses must ensure they're following all applicable laws and agreements regarding employee pay and scheduling for the holiday.

  • Business Closings: If your business plans to close for Memorial Day, it's crucial to communicate this clearly to employees and customers well in advance. This helps avoid confusion and ensures smooth operations upon reopening.

  • Sales and Promotions: While Memorial Day weekend often unofficially kicks off the summer shopping season, it's important to be mindful of the true meaning of the holiday. Avoid promotions or marketing that appears disrespectful to the somber occasion.

  • Community Engagement: Businesses can choose to honor veterans and fallen soldiers by participating in local Memorial Day events or supporting veterans' charities. This demonstrates respect for the holiday's purpose while fostering positive community relations.

By understanding these legal aspects, businesses can ensure a respectful and compliant approach to Memorial Day, allowing them to honor our heroes while adhering to the law.

Honestly, it's not too far off from some of what I have posted in the past.  I am not sure whether to be sad or happy about that.  But now I no longer have to wonder . . . .

Regardless, I do want to continue to pay respect to those who have died in military service to our country.  May they rest in eternal peace knowing that their lives and work are remembered and appreciated on this Memorial Day and every Memorial Day.